J&J Sports Productions, Inc. v. Giuseppe's Bistro LLC et al

Filing 34

ORDER & REASONS granting in part and denying in part 29 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 4/6/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

J&J SPORTS PRODUCTIONS, INC.

CIVIL ACTION

v.

NO. 14-1326

GIUSEPPE'S BISTRO, LLC, ET AL.

SECTION "F"

ORDER AND REASONS
Before
judgment.

the

Court

is

the

defendants'

motion

for

summary

For the reasons that follow, the motion is DENIED in

part and GRANTED in part.
Background
This is a television piracy case.

J&J Sports Productions,

Inc., is a distributor of closed circuit pay-per-view boxing and
special events. Giuseppe's Bistro, LLC, of which Mr. Jalice is the
sole member, owns Down the Hatch Bar & Grill.

J&J alleges that on

June 9, 2012, J&J's private investigator saw a pay-per-view fight
(Manny Pacquiao v. Timothy Bradley, WBO Welterweight Championship
Fight Program), to which J&J had the exclusive rights, being shown
at Down the Hatch Bar & Grill without payment to J&J.

J&J contends

that a post on the bar's Facebook page the day before advertised
that the fight would be shown the following night.1

1

The plaintiff submitted as an exhibit a very faint
screenshot of a Facebook page belonging to Down the Hatch - Nola,
accessed January 29, 2013. It appears to show a picture of the two
1

J&J filed suit because of this allegedly impermissible showing
of its programming.

It brings claims against the LLC and Mr.

Jalice under: (1) 47 U.S.C. § 605(a), which prohibits interception
and publishing radio communication; (2) the Wiretap Act, 18 U.S.C.
§ 2511, which prohibits intentional interception of any wire, oral,
or electronic communication, in conjunction with § 2520, which
creates a private right of action; and (3) 47 U.S.C. § 553, which
prohibits interception or reception of any communications service
offered

over

a

cable

system.

J&J

further

alleges

that

the

defendants willfully and intentionally intercepted the program and
did so for the purpose of commercial advantage or private financial
gain, warranting enhanced statutory damages.

The defendants now

move for summary judgment.2
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to

fighters and the name of the event: Pacquiao vs. Bradley.
It
reads, "Come out tomorrow night for the Pacquiao vs. Bradley fight!
Boxing on our projection screen! $1 PBR and $2 Wells all day!" It
includes the address of the bar. The date of the posting cannot be
made out because of the exhibit's poor quality.
2

The plaintiff contends that the motion should be denied
because it was not afforded seven days to respond, as required by
the Local Rules. The defendants first filed the motion for summary
judgment on March 23, the day before it needed to be filed for an
April 8 hearing date. The motion–which contained all the relevant
legal arguments–was marked deficient because it was formatted
improperly.
It was re-filed correctly on March 27.
Absent a
motion to strike the motion for summary judgment, the Court will
not indulge the plaintiff's timeliness argument.
2

any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claim. Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at
trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.

3

1987); FED. R. CIV. P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II.
A. Claims under Sections 553 and 605
The Federal Cable Communications Policy Act, 47 U.S.C. § 553,
prohibits

the

unauthorized

receipt

communications offered over a cable system.

or

interception

of

Section 553 creates a

civil cause of action for an aggrieved party and permits the
plaintiff to choose between actual and statutory damages. 47 U.S.C.
§ 553(c)(3)(A). Under § 553(c)(3)(A)(ii), the "party aggrieved may
recover an award of statutory damages for all violations involved
in the action, in a sum of not less than $250 or more than $10,000
as the court considers just."

Additionally, under § 553(c)(3)(B),

"[i]n any case in which the court finds that the violation was
committed willfully and for purposes of commercial advantage or
private financial gain, the court in its discretion may increase
the

award

of

damages,

whether

actual

or

statutory

under

subparagraph (A), by an amount of not more than $50,000." Finally,
under § 553(c)(3)(C), "[i]n any case where the court finds that the
violator was not aware and had no reason to believe that his acts
constituted

a

violation

of

this

section,

the

court

in

its

discretion may reduce the award of damages to a sum of not less
than $100."

4

J&J brings claims against the defendants under §§ 553 and 605.
"A signal pirate violates section 553 if he intercepts a cable
signal, he violates section 605 if he intercepts a satellite
broadcast.

But

interception."

he

cannot

violate

both

by

a

single

act

of

J&J Sports Prods., Inc. v. Manzano, No. 08-01872,

2008 WL 4542962, at *2 (N.D. Cal. Sept. 29, 2008).

See also

KingsVision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp. 2d
438, 441-42 (S.D.N.Y. 2001); Time Warner Cable of N.Y.C. v.
Barbosa, No. 98-3522, 2001 WL 118608, at *5 (S.D.N.Y. Jan. 2,
2001); Cablevision Sys. Corp. v. Maxie's N. Shore Deli Corp., No.
88-2834, 1991 WL 58350, at *2 (E.D.N.Y. Mar. 20, 1991).

The

evidence shows that Down the Hatch uses only cable service.
Accordingly, the relevant statute is § 553.

Because there is no

substantiated allegation that the defendants used a satellite
signal to intercept the program, § 605 is inapplicable.
B. Liability of Mr. Jalice
The defendants contend that the plaintiff must prove three
elements under § 553: (1) the defendant had control over the
television at the time of the alleged signal piracy; (2) the
defendant authorized the violation; and (3) the defendant derived
a benefit from the alleged signal piracy.3

3

They argue that the

The three elements that the defendants seek to apply to the
claims against them are not found in the statute, of course, but
rather in district court case law. See, e.g., Joe Hand Promotions,
Inc. v. Alvarado, No. 10-0907, 2011 WL 1740536, at *7 (E.D. Cal.
May 4, 2011) (employing the defendants' three elements in granting
5

plaintiff cannot prove these elements, at least as to Jalice,
because there is no evidence that he was even at the bar on the
night the fight was shown.
Even if the bar is liable for the broadcast, Jalice contends
that, as the LLC's sole member, he is not liable for the LLC's tort
absent evidence of his own wrongdoing. The plaintiff counters that
the specific case law under § 553, not general concepts of LLC law,
govern the question of Jalice's liability.

Relying on Broadcast

Music, Inc. v. Meadowlake, Ltd., 754 F.3d 353 (6th Cir. 2014), J&J
contends that, like in the case of copyright infringement, a person
who has the right or the power to prevent the commission of a § 553
violation and an "obvious and direct financial interest in the
infringement" is liable for the infringement, even if he did not
participate in the act.
Upon reviewing potentially persuasive cases to determine
personal liability, this Court finds itself instead in a sea of

an unopposed motion for summary judgment in favor of two
individuals who no longer owned a bar on the date when a pay-perview fight was allegedly impermissibly shown at the bar).
The
Court finds no persuasive reason to apply this test, which fit
logically a fact pattern in which ownership of the bar was at
issue, but which is not employed in other district court cases.
The defendants contend that these elements find their genesis
in J&J Sports Prods, Inc. v. 291 Bar & Lounge, LLC, 648 F. Supp. 2d
469 (E.D.N.Y. 2009).
That case, however, did not rely on the
three-part test requiring control over the television at the time
of the violation, but, rather, on the two-part test derived from
copyright case law: "[T]he complaint must establish that the
individual had a right and ability to supervise the violations, as
well as an obvious and direct financial interest in the
misconduct." Id. at 473.
6

conflicting district court case law.

Several district court cases

employ general principles of corporate or LLC law to determine the
personal liability of an establishment's owners, and several others
use a copyright-law-based standard.

Compare Joe Hand Promotions,

Inc. v. Breaktime Bar, LLC, No. 12-2618, 2014 WL 1870633, at *2
(W.D. La. May 8, 2014) (finding that the LLC form shielded the
bar's

owner

from

liability

absent

evidence

of

individual

wrongdoing, with no mention of his ability to supervise) with J&J
Sports Prods., Inc. v. J&J Keynote Lounge, Inc., No. 11-15002, 2013
WL 1747803, at *9 (E.D. Mich. Apr. 23, 2013) ("[I]n order to hold
a

corporation's

shareholders

liable

under

§

605(a)

of

the

Communication Act,4 the Plaintiff is required to prove that a
defendant shareholder had a right and ability to supervise the
violations, and that he or she had strong financial interests in
such activities.").
The Court also finds no guidance from the United States Court
of Appeals for the Fifth Circuit on the question of vicarious
liability.

A total of four Fifth Circuit cases, ranging from 1997

to 2014, even mention 47 U.S.C. § 553.

4

The defendants cite only

Courts often employ the same liability standards to both §
553 and § 605. See, e.g., J&J Sports Prods., Inc. v. Flores, 913
F. Supp. 2d 950, 963 (E.D. Cal. 2012) ("The Court further finds the
same standards enunciated above for vicarious and contributory
liability under section 605 apply equally to section 553.
Consistent with its analysis of Defendants' vicarious and
contributory liability under section 605, the Court finds no
triable issue of material fact as to Defendants' vicarious or
contributory liability under section 553.").
7

one:5

J&J Sports Prods., Inc., v. Mandell Family Ventures, LLC,

751 F.3d 346, 352-53 (5th Cir. 2014), for the proposition that §§
553 and 605 are mutually exclusive.

In Mandell, the Fifth Circuit

reversed the district court's grant of summary judgment in favor of
J&J on its claims under §§ 553 and 605.

First, the court found

that a safe harbor under § 553 may have applied to the defendants.
The defendants contended that their actions were authorized by
their cable operator, and § 553 precludes the imposition of
liability

on

customers

of

cable

providers.

The

court

then

considered whether § 605 applied to the defendants' receipt of
cable

services

and

found

that

the

statute's

plain

language

compelled the conclusion that § 605 does not encompass the receipt
or interception of communications by wire from a cable system.
Thus, Mandell offers this Court no guidance as to the liability of
the defendants here.
The other Fifth Circuit cases similarly provide no answers.
In Joe Hand Promotions, Inc. v. Chios, Inc., 554 F. App'x 444 (5th
Cir. 2013) (per curium), the Fifth Circuit held that in the bench
trial below, the district court could draw an adverse inference
from the owners' failure to testify after the introduction of a
stipulated affidavit of a private investigator, and the district
court's failure to deny sua sponte a motion for judicial notice was

5

The defendants cite another case as a Fifth
decision, but it is, in fact, from the Sixth Circuit.
8

Circuit

not plain error.

The Fifth Circuit did not have the occasion to

examine the contours of liability under § 553.

In Prostar v.

Massachi, 239 F.3d 669 (5th Cir. 2001) (per curium), the Fifth
Circuit examined only the appropriate statute of limitations for an
action brought under §§ 553 and 605.

Finally, Chair King, Inc. v.

Houston Cellular Corp., 131 F.3d 507 (5th Cir. 1997), concerned
only

a

question

of

subject

matter

jurisdiction

in

Telephone

Consumer Protection Act cases, and, in any event, was subsequently
abrogated by the United States Supreme Court.

Mims v. Arrow Fin.

Servs., LLC, 132 S.Ct. 740 (2012).
Thus, the Court is left with only one source of binding
authority: 47 U.S.C. § 553 itself.

The statute states that "no

person" shall commit TV piracy, and "any person" who does shall be
fined or imprisoned or subject to civil liability.

It seems

reasonable that in the absence of a contrary directive from
Congress, the usual limited liability of an LLC's member would
apply.

But,

on

this

record,

where

the

defendants

do

not

acknowledge the conflicting case law and neither side adequately
articulates why either standard is preferable, this Court cannot
find that the defendant Jalice has carried his burden as to justify
a ruling in his favor as a matter of law.

This Court finds no

authority to support the application of the seldom-used, three-

9

element formula that the defendants contend controls their case,6
and so it is left with the district court split explained infra.
The issue of personal liability is left for the parties to brief in
anticipation of trial.
C. Liability of Giuseppe's Bistro, LLC d/b/a Down the Hatch Bar &
Grill
The question of direct liability is much more simple.
defendants

advance

the

following

arguments:

(1)

there

is

The
no

evidence that the company authorized a signal piracy, controlled
the TVs, nor benefitted from any piracy (again employing the three
elements discussed infra); (2) there is no evidence whether the
alleged interception in this case was of a satellite or cable
signal; and (3) there was no signal interception.

The Court finds

these arguments unpersuasive. The first, which relies on the Court
adopting the defendants' elements argument, is rejected for the
reasons already discussed.7
The defendants contend that summary judgment should be granted

6

Again, those three elements are that: (1) the defendant had
control over the television at the time of the alleged signal
piracy; (2) the defendant authorized the violation; and (3) the
defendant derived a benefit from the alleged signal piracy.
7

The statute merely states: "No person shall intercept or
receive or assist in intercepting or receiving any communications
service offered over a cable system, unless specifically authorized
to do so by a cable operator or as may otherwise be specifically
authorized by law."
47 U.S.C. § 553(a)(1).
Nowhere does this
strict liability statute base liability on authorization, control,
or benefit. If it should, it is up to Congress, not this Court.
10

in their favor because there is no evidence whether the alleged
interception in this case was of a satellite or cable signal.

In

support, they cite cases that denied summary judgment in favor of
the plaintiff for failure to establish which type of signal was
intercepted.

See, e.g., J&J Sports Prods., Inc. v. Evolution

Entm't Grp., LLC, No. 13-5178, 2014 WL 3587370 (E.D. La. July 21,
2014).

On summary judgment, the Court must read the facts in the

light most favorable to the non-moving party.

In so doing, this

Court finds that there is sufficient evidence to defeat summary
judgment.

The

defendants

plaintiff's

interrogatories

state
that

in
the

their
only

response

to

the

service

at

the

TV

premises is cable, and the private investigator swore that the
fight was shown on the bar's several televisions.
Finally, the defendants contend that there was no signal
interception, and thus they are not liable.

They rely heavily on

Premium Sports Inc. v. Connell, No. 10-3753, 2012 WL 691891
(S.D.N.Y. Mar. 1, 2012), where the court found that the defendants
were not liable under § 605 for exhibiting a program that they did
not

illegally

intercept.

That

case

based

its

holding

on

Cablevision of Mich., Inc. v. Sports Palace, No. 93-1737, 1994 WL
245584 (6th Cir. June 6, 1994), a decision whose logic the Sixth
Circuit later debunked.

See Nat'l Satellite Sports, Inc. v.

11

Eliadis,

Inc.,

253

F.3d

900,

915-16

(6th

Cir.

2001).8

In

accordance with the Sixth Circuit's analysis in Nat'l Satellite
Sports, this Court does not find Premium Sports or Cablevision
persuasive.

At

the

very

least,

the

plaintiff

has

provided

sufficient evidence to show that the defendant bar received or
assisted in receiving a communications service offered over a cable
system. See 47 U.S.C. § 553(a)(1). The plaintiff has provided the
sworn declaration of its private investigator who witnessed the
fight's broadcast at the bar, as well as the advertisement for the
fight posted on the bar's Facebook page the day before.
D. Enhanced Statutory Damages
In the alternative, the defendants move for partial summary
judgment as to enhanced statutory damages.

8

Section 553(c)(3)

The court explained:

Time Warner's citation to Cablevision is unavailing. In
Cablevision, a distributor with exclusive rights to
broadcast a boxing match to commercial establishments
sued a sports bar under § 605 that had improperly
obtained the boxing match from a residential pay-per-view
service.
Cablevision cited Smith for the proposition
that when "there [is] no interception, the mere fact that
the bar divulged or published [a similar boxing match]
cannot make it liable under Section 605(a)." For the
reasons previously discussed, however, this proposition
is not a correct statement of the law. Smith's holding
is limited to an interpretation of the second sentence of
§ 605(a), not the entire provision.
As a result,
Cablevision's reliance on the broad dicta from Smith is
misplaced.
Because Cablevision is an unpublished
decision, we are not bound by its holding.
(citations omitted).
12

contains the following damages provisions:
(A) Damages awarded by any court under this section shall
be computed in accordance with either of the following
clauses:
(i) the party aggrieved may recover the actual
damages suffered by him as a result of the
violation and any profits of the violator that are
attributable to the violation which are not taken
into account in computing the actual damages; in
determining the violator's profits, the party
aggrieved shall be required to prove only the
violator's gross revenue, and the violator shall be
required to prove his deductible expenses and the
elements of profit attributable to factors other
than the violation; or
(ii) the party aggrieved may recover an award of
statutory damages for all violations involved in
the action, in a sum of not less than $250 or more
than $10,000 as the court considers just.
(B) In any case in which the court finds that the
violation was committed willfully and for purposes of
commercial advantage or private financial gain, the court
in its discretion may increase the award of damages,
whether actual or statutory under subparagraph (A), by an
amount of not more than $50,000.
(C) In any case where the court finds that the violator
was not aware and had no reason to believe that his acts
constituted a violation of this section, the court in its
discretion may reduce the award of damages to a sum of
not less than $100.
(emphasis added). The defendants contend that there is no evidence
that

they

committed

a

willful

violation

for

commercial advantage or private financial gain.

the

purpose

of

The bar did not

charge a cover on the night the fight was shown, the volume was not
on the TVs, the bar's capacity is only 43 people, Jalice did not
advertise the event, and the bar and its owner are not repeat

13

offenders.
its

Although the plaintiff does seek enhanced damages in

complaint,

in

its

opposition

to

the

motion

for

summary

judgment, the plaintiff does not offer any argument that enhanced
damages are warranted.
law

on

the

issue

of

Neither side directs the Court to any case
enhanced

damages,

though

examples

are

plentiful.
In deciding whether enhanced statutory damages are warranted,
courts consider such factors as the number of televisions on which
the defendants broadcast the program, the food and beverages sold
to customers, whether there was a cover charge, and whether it was
broadcast in an urban area where the broadcast would have had more
than a minimal impact.

See, e.g., Time Warner Cable of N.Y.C. v.

Taco Rápido Rest., 988 F. Supp. 107, 111–12 (E.D.N.Y. 1997)
(showing Event on multiple televisions is evidence of commercial
advantage, and "defendant's display of the Event most likely led to
an increased number of patrons, and thus to an increase in profits
from food and beverages."); Joe Hand Promotions, Inc. v. Chios,
Inc., No. 11–2411, 2012 WL 3069935, at *6 (S.D. Tex. July 27,
2012), aff'd, 544 F. App'x 444 (5th Cir. 2013), citing KingVision
Pay–Per–View Ltd. v. Hay Caramba Mexican Rest., No. H–02–1311 (S.D.
Tex. Mar. 10, 2003) ("It is the Court's view that the defendant
profited even if it did not charge a cover by selling food and
beverages

to

the

patrons

who

expected

and

did

view

the

broadcast."); Joe Hand Promotions, Inc. v. Carranza, No. 09-0984,

14

2009 WL 4254460, at *3 (E.D. Cal. Nov. 23, 2009) (finding that the
exhibition had more than a minimal impact where it was shown at an
establishment

with

a

capacity

of

250

persons

in

Modesto,

California, a city of more than 200,000).
Here, the private investigator states that he saw the fight on
ten televisions or monitors and counted 80 people inside the
establishment, despite its capacity of 43.

Though the volume was

off and there was no cover charge for the evening, the bar's
Facebook page promoted the fight along with its drink specials that
night.

The bar is located in a popular area of New Orleans.

Thus,

the defendants have not persuaded the Court, on this record, that
any alleged violation in this case could not warrant the imposition
of enhanced statutory damages.
E. Liability under the Criminal Wiretap Statute
Together, 18 U.S.C. §§ 2511 (the criminal wiretap statute) and
2520

provide

a

private

cause

of

action

for

the

intentional

interception of electronic communications, including both satellite
and cable transmissions.

See 18 U.S.C. §§ 2511(1)(a) and 2520(a)9;

9

Section 2511(1)(a) imposes criminal liability upon any
person who "intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept,
any wire, oral, or electronic communication." A civil action is
provided in § 2520(a): "[A]ny person whose wire, oral, or
electronic
communication
is
intercepted,
disclosed,
or
intentionally used in violation of this chapter may in a civil
action recover from the person or entity, other than the United
States, which engaged in that violation such relief as may be
appropriate."
15

DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008).

Proof of

a violation of § 2511(1)(a) entails proof of an intentional,
illegal interception.

See DirecTV, Inc. v. Robson, 420 F.3d 532,

537 (5th Cir. 2006).
The defendants contend, without citing authority, that § 2511
does not apply to an alleged unauthorized exhibition unless there
is evidence of the use of a pirate access device.
extent of their argument.10

This is the

Although it is true that many § 2511

cases involve pirate access devices, see, e.g., DirecTV, Inc. v.
Griepsma, No. 03-6243, 2005 WL 608250 (W.D.N.Y. Mar. 11, 2005),
this Court is not aware of any binding authority articulating the
need for evidence of such a device.

Thus, the Court finds that the

defendants have not carried their burden as to justify a ruling in
their favor as a matter of law.

10

The defendants devote two short paragraphs to their § 2511
argument, relying only on the absence of evidence of the use of a
pirate access device. On this record, the Court cannot find that
they have carried their burden. See Joe Hand Promotions, Inc. v.
Breaktime Bar, LLC, No. 12-2618, 2014 WL 1870633, at *3 (W.D. La.
May 8, 2014) ("Breaktime's memorandum in support of its motion
contains two brief paragraphs of argument on this point. The court
finds the defendant has not carried its burden of proof with
respect to this argument.").
16

Accordingly, because the defendants have failed in large part
to carry their burden on summary judgment, IT IS ORDERED that their
motion is hereby DENIED as to the § 553 and § 2511 claims.

It is

GRANTED as to the § 605 claim.

New Orleans, Louisiana, April 6, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

17