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J & J Sports loses unlawful interception case and judge orders $24,499 in attorneys fees to Defendant

Posted by Steve Vondran | Jul 24, 2020 | 0 Comments

You may have received a demand letter from the Riley Law Firm in Pasadena demanding money for illegal broadcast of a boxing match.  Here is a case where Plaintiff lost and was hit with a large attorney fee award.

RILEY LAW OFFICES BOXING PIRACY

 

J & J Sports Prods. v. Flores, No. 1:10-CV-02087-AWI-JLT, 2013 U.S. Dist. LEXIS 97752, at *2-4 (E.D. Cal. July 12, 2013)

Plaintiff alleged that it possessed the exclusive nationwide distribution rights to "Firepower": Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program (hereinafter referred to as the "The Program"). (Doc. 1 at 3). The Program was televised on November 14, 2009. On this date Plaintiff tasked investigators to determine whether any businesses which had not purchased licenses were publicly exhibiting the program. Plaintiff was able to determine that The Program was being publicly exhibited without a license at 8331 Kern Canyon Road, Bakersfield, CA 93306, in the bar known as Marakas Tropical located in one of eighty rentable spaces in the swap meet known as Los Amigos. (Doc. 20-3; Doc. 41-1 ¶ 5; Doc. 41-2 ¶ 5).

On November 9, 2010, Plaintiff filed its complaint against Defendants, alleging violations of the Communications Act of 1934 (47 U.S.C. § 605, et seq.), the Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 533, et seq.) and the California Business and Professions Code § 17200, et seq. (Doc. 1 at 3-8).

In addition, Plaintiff alleged Defendants were liable for wrongful conversion of property arising under California law. Id. at 6-7. Plaintiff's claims were based upon Defendants' allegedly unlawful interception and broadcast of The Program.

It was determined that Flores and Vazquez were not owners of the Marakas Tropical bar, but were simply owners of Los Amigos.

On December 17, 2012, this court granted Defendants' motion for summary judgment on the grounds that Plaintiff failed to prove Defendants:

1) had any direct liability;

2) knowingly authorized their vendor's interception and exhibition of The Program;

3) provided an environment and market for the interception and exhibition with knowledge such activity was or would be occurring;

4) had any direct financial interest in the interception and exhibition of The Program;

or

5) had direct or indirect control over the premises of Marakas Tropical. (Doc. 59).

The court has since denied a motion by Plaintiff for reconsideration of the December 17, 2012 order, finding no plain error of law in granting summary judgment and attorneys'  [*4] fees in favor of Defendants.

The section 553 claim

Defendants further move for summary adjudication of the second cause of action for violation of section 553 of the Federal Cable Communications Policy Act of 1992, as amended. Section 553(a) provides in pertinent part:

(1) 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). "Any person aggrieved by a violation of subsection (a)(1)" may bring a civil action for actual or statutory damages for each violation. 47 U.S.C. § 553(c)(3)(A). Having reviewed the pleadings of record and all competent and admissible evidence  submitted, the Court first finds no genuine issue of material fact as to the swap meet's direct liability under section 553. Defendants point to a complete absence of evidence in the record to suggest the unauthorized interception and/or reception of The Program was committed by Defendants, and in its attempt to create a genuine issue of fact, Plaintiff adduces no competing argument or evidence other than to suggest Defendants could be held directly liable simply  because The Program appears to have been intercepted and shown at the swap meet. Plaintiff has provided no authority – and the Court's research reveals no authority – to support this proposition. Thus, no reasonable trier of fact could find the swap meet directly liable. 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. Accordingly, summary adjudication of this cause of action must be granted in favor of Defendants.

J & J Sports Prods. v. Flores, 913 F. Supp. 2d 950, 962-63 (E.D. Cal. 2012)

The section 605 claim 

As a threshold matter, Defendants move for summary adjudication of the section 605 claim, contending adjudication in their favor must be granted because no evidence suggests they could be found individually liable under the legal standards applicable to television signal piracy cases. Section 605 prohibits the unauthorized interception and exhibition of closed-circuit television programming, see Kingvision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F.Supp.2d 438 (S.D.N.Y. 2001), and satellite-delivered programming. DirecTV, Inc. v. Webb, 545 F.3d 837, 843 (9th Cir. 2008). Subsection (a) of the statute provides in pertinent part: "[N]o person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign  [*954]  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, (1) to any person other than the addressee, his agent, or attorney . . . . No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, . . . or meaning of such intercepted communication to any person." 47 U.S.C. § 605(a). "Any person aggrieved by a violation of subsection (a)" may bring a civil action for actual or statutory damages for each violation. 47 U.S.C. § 605(e)(3)(C). "Any person aggrieved" includes "any person with proprietary rights in the intercepted communication." 47 U.S.C. § 605(b)(6).  Relying principally on J & J Sports Productions, Inc. v. 291 Bar & Lounge, LLC, 648 F.Supp.2d 469 (E.D.N.Y. 2009), which held individual liability under the Federal Communications Act "[r]equires that the individual authorize the underlying violations," id. at 473

17200 Unlawful Business Practices

The court found for summary judgment in favor of Defendant on the UCL (California B&P 17200 claim):

"The UCL claim – Defendants further move for summary adjudication of the fourth cause of action for violation of the UCL. "In order to state a claim for a violation of the [UCL], a plaintiff must allege that the defendant committed a business act that is either fraudulent, unlawful, or unfair." Levine v. Blue Shield of California, 189 Cal.App.4th 1117, 1136, 117 Cal.Rptr.3d 262 (2010). The UCL "protect[s] both consumers and competitors by promoting fair competition in commercial markets for goods and services." Kasky v. Nike, Inc., 27 Cal.4th 939, 949, 119 Cal.Rptr.2d 296, 45 P.3d 243 (2002).

"'Because [the UCL] is written in the disjunctive, it establishes three varieties of unfair competition – acts or practices which are unlawful, or unfair, or fraudulent. "In other words, a practice is prohibited as 'unfair' or 'deceptive' even if not 'unlawful' and vice versa."'" Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999).  [**39] Plaintiff asserts this claim under the UCL's unlawful prong. An unlawful business practice is one that "'is forbidden by any law,'" Olszewski v. Scripps Health, 30 Cal.4th 798, 827, 135 Cal.Rptr.2d 1, 69 P.3d 927 (2003), and "[v]irtually any law – federal, state or local – can serve as a predicate for a section 17200 action," State Farm Fire & Casualty Co. v. Superior Court, 45 Cal.App.4th 1093, 1102-03, 53 Cal.Rptr.2d 229 (1996) (abrogated on other grounds by Cel-Tech Communications, Inc., supra, 20 Cal.4th at 180). The predicates for the UCL claim are the sections 605, 553 and conversion claims. Given Defendants have obtained  summary adjudication of those claim, summary adjudication of the UCL claim must also be granted in favor of Defendants.

You may also see claims for "CONVERSION" (tort) for stealing the cable or satellite signal

The Court above noted:

"The conversion claim – Defendants further move for summary adjudication of the third cause of action for conversion, which asserts Defendant's alleged misappropriation of The Program constituted conversion. In California, conversion is "the wrongful exercise of dominion over" property belonging to another. Burlesci v. Petersen, 68 Cal.App.4th 1062, 1066, 80 Cal.Rptr.2d 704 (1998). The elements of conversion are "(1) the plaintiff's ownership or right to possession of personal property, (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages." Fremont Indemnity Co. v. Fremont General Corp., 148 Cal.App.4th 97, 119, 55 Cal.Rptr.3d 621 (2007). Intangible personal property such as television signals may be the subject of a conversion action. See Don King Productions/Kingvision v. Lovato, 911 F.Supp. 419, 423 (N.D.Cal. 1995). The claim here is predicated on the alleged violations of sections 605 and 553, in that Plaintiff contends Defendants' statutory violations constituted a disposition of The Program in a manner inconsistent with Plaintiff's rights in The Program. Defendants, however, have succeeded in obtaining summary adjudication of the sections 605 and 553 claims. Because the underlying claims no longer remain, summary adjudication of the conversion claim must be granted in favor of Defendants."

Attorney Fees in Boxing Piracy Successful Defense

Defendants shall recover all allowable costs from Plaintiff as the prevailing party in this action. See Fed. R. Civ. P. 54(d). Because the Ninth Circuit has interpreted the attorneys' fees provision of the Federal Communications Act, 47 U.S.C. § 605(e)(3)(B)(iii), to be a reciprocal provision that allows the district court to award attorneys' fees not only  to an aggrieved party who prevails under the statute but also to a prevailing defendant, see EchoStar Satellite Corp. v. NDS Group PLC, 390 Fed.Appx. 764, 767-68 (9th Cir. 2010) (unpublished), the Court further exercises its discretion to award attorneys' fees to Defendants and against Plaintiff. Defendants may file a formal motion for attorneys' fees with supporting documentation within thirty (30) days of entry of this order.

Vicarious Liability?

Even though section 605 addresses only direct – but not vicarious or contributory – liability for the unauthorized interception and exhibition of closed-circuit television or satellite-delivered programming, at least six district courts have imported the vicarious and/or contributory copyright infringement law of the Second Circuit to section 605 claims against individual defendants. See, e.g., Joe Hand Promotions, Inc. v. Soviero, 2012 U.S. Dist. LEXIS 123935, 2012 WL 3779224 (E.D.N.Y. 2012), at *9; Joe Hand Promotions, Inc. v. Sorota, 2012 U.S. Dist. LEXIS 88462, 2012 WL 2414035 (S.D.Fla. 2012), at *1-*2; J & J Sports Productions, Inc. v. Arboleda, 2009 U.S. Dist. LEXIS 99782, 2009 WL 3490859 (M.D.Fla. 2009) (unpublished), at *5; J & J Sports Productions, Inc. v. Brown, 2009 U.S. Dist. LEXIS 89494, 2009 WL 3157369 (W.D.Okla. 2009) (unpublished), at *3; Ribeiro, supra, 562 F.Supp.2d at 501 (S.D.N.Y. 2008); J & J Sport Productions, Inc. v. Rosales, 2008 U.S. Dist. LEXIS 18738, 2008 WL 553292 (D.Colo. 2008) (unpublished),

Contact a TV Signal Piracy Law Firm - [California and Arizona cases]

We have helped many bar and restaurant owners fight and settle cases of alleged illegal broadcasting of championship fights and boxing matches.  If you received a letter or wish or a phone call from an IP attorney and wish to discuss your case, call us at (877) 276-5084 or email us through our contact form.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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