J&J Sports Productions Inc v. Santos
Filing
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DECISION AND ORDER signed by Magistrate Judge William E Duffin on 4/19/16. IT IS THEREFORE ORDERED that the defendants, jointly and severally, shall pay to the plaintiff the total amount of $4,370.00, consisting of $2,200.00 in damages, $1,750.00 in attorneys fees and $420.00 in costs. IT IS FURTHER ORDERED that this action is dismissed with prejudice. (cc: all counsel)(mlm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
Case No. 15-CV-665
ABEL SANTOS, d/b/a
LA CARRETA VIEJA,
Defendant.
DECISION AND ORDER
In June 2015 plaintiff J & J Sports Productions Inc. filed a complaint alleging that
defendant Abel Santos, the owner of the bar La Carreta Vieja, unlawfully intercepted a
satellite broadcast of a boxing match, Manny Pacquiao v. Juan Manuel Marquez, IV
Welterweight Fight Program, (“Pacquiao-Marquez IV”). (ECF No. 1.) The parties consented
to the full jurisdiction of a magistrate judge. (ECF Nos. 3, 19.) The parties subsequently
stipulated that Santos is liable to J & J under 47 U.S.C. § 605 and that J & J is entitled to
recover actual or statutory damages “not less than $1,000 or more than $10,000 as the
court considers just.” (ECF No. 18.) The parties filed simultaneous briefs and
simultaneous responses setting forth their respective positions on the amount of
damages that should be awarded. (ECF Nos. 22, 23, 24, 25.)
BACKGROUND
The following uncontested facts are from the complaint, affidavits submitted by
the parties, and the parties’ stipulation.
Santos’s nephew rented an apartment in a building adjacent to La Carreta Vieja.
(ECF No. 23-1, ¶ 9.) A satellite technician installed a satellite dish at the nephew’s
apartment and agreed to connect the service to La Carreta Vieja, allowing them to share
an account. (ECF No. 23-1, ¶ 9.) In December 2012 Santos’s nephew informed Santos
that he had purchased the Pacquiao-Marquez IV pay-per-view boxing match. (ECF No.
23-1, ¶ 12.) Via the joint satellite service, Santos intentionally showed the fight in La
Carreta Vieja. (ECF No. 23-1, ¶ 12.) Although he neither advertised the fight nor
solicited a cover charge, he estimates that La Carreta Vieja received an additional $500
in revenue that night. (ECF No. 23-1, ¶ 12.)
The parties stipulated that J & J was granted the exclusive rights to distribute
Pacquiao-Marquez IV, broadcasted on December 8, 2012. (ECF No. 18, ¶ 1.) J & J in turn
entered into sublicensing agreements with establishments, such as La Carreta Vieja, to
display the broadcast to their patrons. (ECF No. 1, ¶ 11.) Santos failed to pay J & J for
the showing the fight. (ECF No. 18, ¶ 2.) The rate charged by J & J to show the fight at a
commercial establishment with a maximum capacity of less than 100 people, like La
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Carreta Vieja, was $2,200. (ECF No. 18, ¶ 2.) In June 2015 J & J filed a complaint against
Santos for intercepting and displaying an encrypted satellite signal. (ECF No. 1.)
ANALYSIS
The governing statute, 47 U.S.C. § 605, prohibits intercepting communications
travelling by satellite. 47 U.S.C. § 605. A party entitled to relief under the Act may elect
actual or statutory damages. 47 U.S.C. § 605(e)(3)(C)(i). J & J has elected statutory
damages. (See ECF No. 22 at 1.) The statute allows an award of statutory damages
between $1,000 and $10,000, at the court’s discretion. 47 U.S.C. § 605(e)(3)(C)(i)(II). If,
however, the defendant “willfully” violated the statute and did so for the purpose of
financial gain, then the court may enhance the amount of damages up to $100,000. 47
U.S.C. § 605(e)(3)(C)(ii). An aggrieved party is also entitled to attorney’s fees and costs.
47 U.S.C. § 605(e)(3)(B)(iii).
Santos asks that the court award the minimum amount of statutory damages,
$1,000, because he acted under the mistaken belief that his nephew’s residential license
allowed him to show the fight in his commercial establishment. J & J seeks $2,200 in
statutory damages, an amount that coincides with the commercial rate it charged to
establishments similar to La Carreta Vieja. (ECF No. 18, ¶ 3.) J & J also seeks enhanced
damages of $6,600 “due to the willful violation” of the law by Santos. (ECF No. 22 at 2.)
Courts have adopted the amount a distributor would have charged the
commercial establishment as a benchmark for statutory damages. J & J Sports Prods., Inc.
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v. El Canaveral LLC, No. 13-CV-1384-JPS, 2014 WL 580779, at *3 (E.D. Wis. Feb. 14, 2014);
J & J Sports Prods., Inc. v. Angulo, 780 F. Supp. 2d 696, 699 (N.D. Ill. 2011). This court
finds that an award of $2,200 is reasonable here and awards that amount to J & J.
The enhanced damages J & J seeks is another story. A plaintiff is entitled to
enhanced damages under 47 U.S.C. § 605 when the defendant willfully violated the
statute and did so for the purposes of direct or indirect financial gain. 47 U.S.C.
§ 605(e)(3)(C)(ii). “‘Willful’ as used in these statutes means a ‘disregard for the
governing statute and an indifference for its requirements.’” J & J Sports Prods., Inc. v.
Sangria's Mexican Grill 2 LLC, No. 15-C-0656, 2015 WL 5824900, at *2 (E.D. Wis. Oct. 6,
2015) (quoting Kingvision Pay–Per–View, Ltd. v. Scott E'S Pub., Inc., 146 F.Supp.2d 955,
959 (E.D. Wis. 2001)); see also J&J Sports Prods., Inc. v. Dabrowski, No. 13 C 5931, 2015 WL
9304347, at *7 (N.D. Ill. Dec. 22, 2015).
Santos says that he believed his showing of the fight was authorized by virtue of
the fee that his nephew paid. Nothing in the record demonstrates otherwise—that is,
that Santos willfully violated the statute. The parties’ stipulation, for example, does not
establish that Santos’s conduct was willful. (See ECF No. 18.) Nor does the affidavit of J
& J’s investigator. (See ECF No. 22-1.) It’s J & J burden to prove damages. See Garden City
Boxing Club, Inc. v. Extasis Corp., No. 07CV3853(NGG)(CLP), 2008 WL 3049905, at *5
(E.D.N.Y. Aug. 1, 2008) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973
F.2d 155, 158 (2d Cir. 1992)); see also J & J Sports Prods., Inc. v. Homestyle Rest. Grp. LLC,
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No. 13-CV-506, 2014 WL 4072132, at *4 (E.D. Wis. Aug. 15, 2014). Because J & J has failed
to demonstrate that Santos willfully violated 47 U.S.C. § 605, the court will not enhance
the statutory damages award.
J & J is entitled to attorneys’ fees and costs. The governing statute mandates that
“[t]he court direct the recovery of full costs, including awarding reasonable attorneys'
fees to an aggrieved party who prevails.” 47 U.S.C. § 605(e)(3)(B)(iii). Counsel for J & J
estimates devoting seven hours at a rate of $250 per hour, plus $420 in fees, for a total of
$2,170. (ECF No. 22 at 2.) Santos does not challenge these amounts nor does the court
find them unreasonable. Therefore, J & J will be awarded $2,170 in attorneys’ fees and
costs.
IT IS THEREFORE ORDERED that the defendants, jointly and severally, shall
pay to the plaintiff the total amount of $4,370.00, consisting of $2,200.00 in damages,
$1,750.00 in attorneys’ fees and $420.00 in costs.
IT IS FURTHER ORDERED that this action is dismissed with prejudice. The
clerk of court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 19th day of April, 2016.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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