J&J Sports Productions Inc v. La Pica #3 LLC et al

Filing 24

ORDER signed by Judge J P Stadtmueller on 4/7/16 denying 14 Defendants' Motion for Summary Judgment and granting 23 Plaintiff's Motion to File a Surreply. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J&J SPORTS PRODUCTIONS, INC.,
v.

Plaintiff,

Case No. 15-CV-590-JPS

LA PICA #3 LLC and WILLIAM RIVERA,
Defendants.

ORDER

Plaintiff J&J Sports Productions, Inc. (“J&J”) alleges that the
defendants, La Pica #3, LLC (“La Pica”) and William Rivera, showed the May
4, 2013 (“Fight Night”) Floyd Mayweather, Jr. v. Roberto Guerrero WBC
Welterweight Championship Fight (the “Fight”) without the proper
commercial licensing agreement. (See Docket #1). As such, J&J alleges
violations 47 U.S.C. §§ 553 and 605. (Docket #1 ¶¶ 11–26).
On January 15, 2016, the defendants moved for summary judgment.
(Docket #14). On February 17, 2016, J&J filed its opposition (Docket #16), and
on March 2, 2016, the defendants filed a reply (Docket #22). On March 7,
2016, J&J filed a motion for leave to file a surreply (Docket #23), along with
the surreply as an attachment (Docket #23-1). Because the defendants’ reply
brief raised new issues related to the timeliness of the opposition, the Court
will grant J&J’s motion to file a surreply. The motions are now fully briefed
and ready for disposition. As discussed below, the Court finds material
issues of fact exist to preclude summary judgment and, thus, the Court will
deny the defendants’ motion for summary judgment.
As a preliminary matter, however, the Court must first discuss the
parties’ arguments related to the timeliness of certain filings pertaining to
summary judgment. First, J&J argues that the Court should not consider the
motion for summary judgment because the defendants filed their statement

of facts untimely. Second, the defendants argue that J&J’s opposition was
untimely. The Court need not dwell on these issues, however, because it
denies summary judgment on the merits and finds that no prejudice arose
even if the submissions were untimely. As such, and in accordance with the
Seventh Circuit’s well-established policy favoring the resolution of cases on
the merits, see Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 811 (7th Cir. 2007);
Barry Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687
(7th Cir. 2004), the Court will disregard the parties’ arguments related to the
timeliness of the briefing.
1.

FACTUAL BACKGROUND1
J&J was granted exclusive commercial distribution rights to the Fight.

(PPFF ¶ 1). As such, commercial establishments that sought to show the
fight had to pay J&J a licensing fee, which varied by the size of the
establishment. (PPFF ¶ 7).
La Pica is a bar located in Milwaukee, Wisconsin. (DPFF ¶ 1). The
Fight was shown in La Pica pursuant to the request of a customer who
brought in a digital TV box.2 (DPFF ¶ 3). The defendants never paid a

1

The cited facts are from the parties’ proposed findings of fact, unless
otherwise indicated. The Court will cite to the defendants’ Proposed Findings of
Fact (Docket #15) as “DPFF.” The Court will cite to the plaintiff’s Proposed Findings
of Fact (Docket #17) as “PPFF.” Unless otherwise indicated, the proposed findings
to which the Court cites are undisputed.
2

J&J disputes the relevance and admissibility of the customer’s request to
show the fight. (Pl.’s Resp. DPFF § 3). The Court nonetheless includes this fact to
provide a clearer picture as to the events in question. The defendants allege that the
customer brought in a cable box, which J&J disputes due to foundation and
relevance. (Pl.’s Resp. § DPFF 3). Though the type of box is important to the
ultimate outcome of this suit to the extent that it may shed light on which statute
is at issue, it is not important for the purposes of this order. Thus, the Court will
simply refer only to a “digital TV box.”

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licensing fee to J&J to watch the fight (PPFF ¶ 5). The defendants instead
maintain that the Fight was purchased through an unnamed television
provider’s pay-per-view service (DPFF ¶ 5). A five dollar cover charge was
in effect on Fight Night. The defendants allege that this was the standard
cover for a Saturday night, and was not a special charge to view the Fight.
(DPFF ¶ 10). Mr. Rivera is the registered agent for La Pica, a part-owner, and
the manager of the bar. (DPFF ¶ 2; PPFF ¶¶ 2- 3). Mr. Rivera was present at
La Pica on Fight Night, (PPFF ¶ 3), however, he maintains that he did not
specifically authorize showing the Fight, (DPFF ¶ 8).
J&J’s complaint alleges violations of 47 U.S.C. §§ 553 and 605. J&J’s
complaint presents alternative theories of liability depending on whether
the defendants intercepted the signal via satellite or cable. (See Docket
#1 ¶¶ 11–26). Section 553 governs the interception of cable television
programming traveling over a cable network and gives the Court discretion
to award between $250.00 and $10,000.00 in statutory damages for “all
violations.” 47 U.S.C. § 553; United States v. Norris, 88 F.3d 462, 468–69 (7th
Cir. 1996). It also allows the maximum statutory award to be increased by up
to $50,000.00 if a violation was committed willfully for commercial
advantage. 47 U.S.C. § 553(c)(3)(B).
Section 605 governs the interception of programming as it travels
through the air, i.e., by satellite, and allows for statutory damages ranging
from $1,000.00 to $10,000.00 for “each violation.” 47 U.S.C. § 605. The
maximum penalty increases to $100,000.00 per violation if the violations were
committed willfully for commercial advantage. 47 U.S.C. § 605(e)(3)(c)(ii).
2.

LEGAL STANDARD
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668
(7th Cir. 2011). “Material facts” are those under the applicable substantive
law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.
A dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.”
Fed.R.Civ.P. 56(c)(4).
On summary judgment, courts must construe all facts and reasonable
inferences in the light most favorable to the nonmoving party. See CTL ex rel.
Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014). Additionally,
“[o]n summary judgment a court may not make credibility determinations,
weigh the evidence, or decide which inferences to draw from the facts; these
are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
“Summary judgment is not appropriate ‘if the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting
Anderson, 477 U.S. at 248.
3.

DISCUSSION
The defendants’ motion for summary judgment argues that: (1) the

establishment is owned by La Pica and there is no basis for individual
liability as to Mr. Rivera; (2) liability cannot exist because the defendants
were authorized to receive the signal; (3) the § 605 claim must be dismissed
because it was a cable signal; (4) there can be no liability under either § 553
or § 605 because there was no signal interception; and (5) alternatively, that
the Court should grant partial summary judgment as to the claims for
enhanced statutory damages. J&J opposes all aspects of the summary
judgment motion, arguing specifically that material issues of fact exist to
preclude summary judgment.
3.1

Individual Liability—Defendant Rivera

Mr. Rivera maintains that he is not a proper defendant in this action
because La Pica owned the establishment that displayed the Fight. In
determining the extent to which an individual is personally liable in this
situation, the text of the statutes are silent on this issue and the Seventh
Circuit has not adopted a specific test. Many courts, however, have adopted
an approach promulgated in Softel, Inc. v. Dragon Med. & Sci. Communs., 118
F.3d 955, 971 (2d Cir. 1997), a copyright case, that found individual liability
where the individual: (1) has a right and ability to supervise violations; and
(2) possesses an obvious and direct financial interest in the misconduct. See,
e.g., Joe Hand Promotions, Inc. v. Speakeasy GB, LLC, No. 12-C-0343, 2013 WL
64630, at *2 (E.D. Wis. Jan. 4, 2013); J&J Sports Prods., Inc. v. 291 Bar & Lounge,
LLC, 648 F. Supp. 2d 469, 473 (E.D.N.Y. 2009); J&J Sports Prods., Inc. v. Benson,
No. 06–CV–1119, 2007 WL 951872, at *7 (E.D.N.Y. Mar. 27, 2007); J&J Sports
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Prods., Inc. v. Daley, No. CV 06-0238 ERKJO, 2007 WL 7135707, at *3 (E.D.N.Y.
Feb. 15, 2007).
Here, the Court finds that material issues of fact exist to preclude
summary judgment on this issue. J&J has established that Mr. Rivera had an
ownership interest in the establishment and that Mr. Rivera was present on
the night of the violation. The record is silent, however, as to Mr. Rivera’s
actual involvement in authorizing the showing of the Fight.
Mr. Rivera relies on distinguishable cases where a defendant’s
individual involvement was far less than the facts presented here. See 291 Bar
& Lounge, 648 F.Supp.2d at 473 (finding no individual liability where the
“plaintiff has made no allegation that [individual defendant] was present for
the violation, that he authorized or controlled it, or that he reaped
commercial profit from it.”); J&J Sports Prods v. Daley, No. CV 06–0238, 2007
WL 7135707, at *4 (E.D.N.Y. Feb. 15, 2007) (“[T]here is nothing other than
speculation to support the conclusion that [individual defendant] played any
part in the violations of the FCA committed by [the defendant
establishment], and even less to support the conclusion that any role he did
play would warrant imposing individual liability.”). Conversely, courts
which have found individual liability in this situation are grounded in facts
even less concrete. See Welch, 2010 WL 4683744, at *6 (finding individual
liability where complaint alleges that defendant “was the individual with
supervisory capacity and control over activities occurring within the
Establishment on [the date of violation];” J&J Sports Prods. v. Benson, 2007 WL
951872, at *7 (E.D.N.Y. Mar. 27, 2007) (same)).

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Accordingly, the Court finds that a reasonable jury could find Mr.
Rivera individually liable based his ownership in La Pica and because he was
present at La Pica on Fight Night. As such, the Court will deny Mr. Rivera’s
motion for summary judgment on this ground.
3.2

Authorization of Signal

Next, the defendants both argue they cannot be liable because they
were “authorized” to receive the Fight because they paid the cable company
the pay-per-view fee. Sections 553 and 605 both contain an implicit defense
when a cable operator specifically authorizes the signal. 47 U.S.C. § 553(a)(1)
(“No person shall intercept or receive…any communications service offered
over a cable system, unless specifically authorized to do so by a cable
operator….”); 47 U.S.C. § 605(a) (“No person not being authorized by the
sender shall intercept any radio communication….”).
The defendants rely on J&J Sports Productions, Inc. v. Schmalz, 745 F.
Supp. 2d 844 (S.D. Ohio, Sept. 17, 2010), where the court granted summary
judgment in favor of a defendant when the defendant was authorized by the
signal provider to receive the signal. Id. at 851. In Schmalz, the defendant
obtained the TV signal for a boxing match from the signal provider Time
Warner Cable Company (“TWC”), and displayed the program at a place of
business. There, the defendant had a commercial account with TWC, and a
TWC representative informed the defendant that the cost to broadcast the
fight was $54.95. Id. at 846. It was undisputed that the defendant did not
possess a “black box” or any equipment used to steal or intercept cable
service. Id. In light of these facts, the court found that the defendant was
specifically authorized to receive the signal from TWC, the cable operator,
and thus granted summary judgment for the defendant. Id. at 851.

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Here, the Court finds that material issues of fact preclude summary
judgment on this issue. The record is far from clear whether the defendants
were indeed authorized to receive the Fight. The defendants assert, through
Mr. Rivera’s affidavit, that the pay-per-view event was purchased on “the
cable TV service.” (DPFF ¶ 5). Unlike in Schmalz, however, the defendants
provide no further detail regarding this alleged cable service, such as, for
example, a bill for the event, the amount paid, or even the name of the cable
TV service. This is far short of the factual record in Schmalz, in which the
defendants called the cable company to order the fight and were granted
access to the fight at the residential rate. See 745 F. Supp. 2d at 845-46.
Further, the defendants in Schmalz had a valid commercial cable subscription,
and the cable company admitted it erred in granting access to the program.
Id. In addition to the lack of specifics on the pay-per-view purchase, La Pica
admits that the Fight was purchased through a customer’s cable subscription,
and not its own valid commercial cable subscription. (DPFF ¶ 3). As such,
Schmalz is distinguishable from the facts of this case, and the Court finds the
record to be unclear as to whether the defendants were authorized to receive
the Fight. Thus, the Court will deny the defendants’ motion for summary
judgment on this ground.
3.3

Dismissal of Section 605 Claim

The defendants allege that it is undisputed that the cable signal at
issue here was received via a cable TV service provider. Section 553 governs
the interception of cable television programming traveling over a cable
network and gives the Court discretion to award between $250.00 and
$10,000.00 in statutory damages for “all violations.” 47 U.S.C. § 553; Norris,
88 F.3d at 468–69. Section 605, in contrast, governs the interception of
programming as it travels through the air, i.e., by satellite, and allows for
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statutory damages ranging from $1,000.00 to $10,000.00 for “each violation.”
47 U.S.C. § 605; Norris, 88 F.3d at 468–69. Thus, because the cable signal was
received via a cable provider, defendants argue they are entitled to summary
judgment on J&J’s claim for violation of § 605.
The Court finds that material issues of fact preclude summary
judgment on this issue. J&J agrees that § 553 covers cable and § 605 covers
satellite, and that recovery may only be under one statute or the other. (See
Pl’s Opp. at 9, Docket #16). However, at this point in the proceedings, the
Court is unable to determine whether the signal at issue here was received
via cable or via satellite. The defendants contend that the violation occurred
via cable, whereas J&J’s investigator identified satellite dishes at the
establishment.3 (See Docket #22-1 at ¶ 8). As such, the Court finds that
material issues of fact exist to preclude summary judgment on this issue, and
the Court will deny the defendants’ motion on this ground.
3.4

Signal Interception

The defendants further argue they are entitled to summary judgment
because J&J has failed to prove there was an “interception” here, which is a
required element in TV signal piracy cases. (Defs’ Opening Br., Docket #14
at 11-12). This argument, however, is misplaced, and incompatible with the
plain language of §§ 553 and 605.

3

The Court notes that J&J’s investigator stated that he observed “a large dish
antenna located in the parking lot….” (Docket #19-1 at 1). While this assertion does
not specifically state that the investigator saw satellite dishes, the Court finds it at
least sufficient to create a material issue of fact. The Court also notes that resolution
of this issue will not significantly affect the outcome of this case because J&J may
ultimately recover under only one theory of liability and the statutes do not differ
that drastically in the type of permissible damages.

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Specifically, § 553 states in the substantive prohibition: “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). Similarly, § 605 states:
[N]o person receiving…any interstate or foreign
communication by wire or radio shall divulge or publish the
existence, contents, substance, purport, effect, or meaning
thereof, except through authorized channels of transmission
or reception…. No person not being entitled thereto shall
receive…any interstate or foreign communication by radio and
use such communication (or any information therein
contained) for his own benefit or for the benefit of another not
entitled thereto.
47 U.S.C. § 605(a) (emphasis added).
To begin, the defendants’ cited cases fail to discuss the language in
§ 553. This is likely so because the statutory language is clear that receiving
a signal constitutes a violation. This factor alone would be sufficient to deny
summary judgment on the § 553 claim. Moreover, the cases upon which the
defendants rely in regards to § 605 are inapposite. Section 605(a) is a long
paragraph containing four distinct prohibitions. Norris, 88 F.3d at 465 (noting
that § 605 contains four prohibitory clauses). Courts have expressly found
that at least two of the sentences in § 605(a) do require “interception,” but at
least one sentence requires only receipt. Id.; see also Nat'l Satellite Sports, Inc.

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v. Eliadis, Inc., 253 F.3d 900, 915-16 (6th Cir. 2001) (holding that interception
is not required under every clause within § 605(a)).4
As such, the Court finds the defendants’ argument regarding
“interception” of a signal to be unpersuasive. Whether the defendants
intercepted or received the signal in this case is immaterial to the issue of
liability here. Based on the facts in the record, a reasonable jury could find
defendants violated either §§ 553 or 605. Thus, the Court will deny the
defendants’ motion for summary judgment on this ground.
3.5

Enhanced Damages

Finally, the defendants argue that they are entitled to partial summary
judgment as to the enhanced statutory damages for willful violations and
those for commercial advantage or gain. (Docket #14 at 12-16). The Court ,
however, finds that the record is unclear at this juncture as to whether
enhanced damages would be appropriate.
Courts have broad discretion in awarding enhanced statutory
damages under either §553 or § 605. 47 U.S.C. § 553(c)(3)(B) (if “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
….”); 47 U.S.C. § 605(e)(3)(C)(ii) (if “violation was committed willfully and

4

Nat'l Satellite Sports includes a detailed discussion of the precedent upon

which the defendants rely. It explains that Cablevision of Michigan, Inc. v. Sports
Palace, Inc., No. 93–1737, 1994 WL 245584 (6th Cir. June 6, 1994) (non-precedential)
cited Smith v. Cincinnati Post & Times–Star, 475 F.2d 740 (6th Cir. 1973), for an
incorrect statement of law. Nat'l Satellite Sports, 253 F.3d at 915. The court noted

that Smith’s holding was limited to an interpretation of the second sentence
of § 605, and not the entire provision. Id. at 915-16. Thus, the court held that
“even though [the defendant] did not intercept the communication in question, it
nonetheless divulged the telecast of the event to an unauthorized addressee in
violation of the first sentence of § 605(a).” Id. at 916.

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for purposes of direct or indirect commercial advantage or private financial
gain, the court in its discretion may increase the award of damages….”); see
also Joe Hand Promotions, Inc. v. Kaczmar, No. 08 C 2910, 2008 WL 4776365
(N.D. Ill. October 29, 2008).
The Court finds that dismissing the claims for enhanced statutory
damages would be inappropriate at this juncture due to the discretionary
nature of the damages in this instance. To be sure, there are facts in the
record that could lead the Court to find enhanced damages appropriate. It is
undisputed that La Pica had a cover charge of five dollars the night of the
Fight and that approximately 46 to 49 patrons were present while the
investigator was present. (See DPFF ¶¶ 10-11). At the same time, there are
facts to suggest that enhanced damages are inappropriate as well. For
example, the defendants maintain that there was no advertisement for the
Fight, no cover charge attributable to the Fight (it was the “normal” cover
charge), Mr. Rivera did not know he was doing anything improper, and La
Pica did not profit from showing the Fight. (See DPFF ¶¶ 9-10).
Accordingly, the Court finds that summary judgment on the issue of
enhanced damages is not warranted at this time. The Court cautions the
parties that nothing should be read into denying summary judgment on
enhanced statutory damages. The proper damage award is unclear from the
record as it currently exists. At this time, however, some evidence exists in
the record to support any of the three levels of damages; thus, summary
judgment is improper on the issue of enhanced damages.

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4.

CONCLUSION
Based on the foregoing, the Court finds that material issues of fact

exist to preclude summary judgment in this matter. As such, the Court will
deny the defendants’ motion for summary judgment in full, and this matter
will proceed to trial.
Accordingly,
IT IS ORDERED that the defendants’ motion for summary judgment
(Docket #14) be and the same is hereby DENIED, as more fully described
above; and
IT IS FURTHER ORDERED that J&J’s motion to file a surreply
(Docket #23) be and the same is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 7th day of April, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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