Buckley v. Directv, Inc.

• Decision Date: 26 June 2003
• Docket Number: No. CIV.A.1:03-CV-484-MHS.,CIV.A.1:03-CV-484-MHS.
• Citation: 276 F.Supp.2d 1271
• Parties: Mark BUCKLEY, et al., Plaintiffs, v. DIRECTV, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

276 F.Supp.2d 1271

Mark BUCKLEY, et al., Plaintiffs, v. DIRECTV, INC., et al., Defendants.

No. CIV.A.1:03-CV-484-MHS.

United States District Court, N.D. Georgia, Atlanta Division.

June 26, 2003.

Paula Jeanette McGill, The McGill Law Firm, Lisa Dionne Wright, Law Office of Lisa D. Wright, Atlanta, GA, for Mark Buckley, Brian Cieszynski, Keith Fortner, Gary Frosolono, Dennis Martinez, James Newell, plaintiffs.

Dennis Gary Lovell, Jr., Boyd B. Newton, Carlock Copeland Semler & Stair, Atlanta, GA, Michael E. Williams, phv, Dale H. Oliver, phv, Quinn Emanuel Urquhart Oliver & Hedges, Los Angeles, CA, for DIRECTV, Inc., Hughes Electronics Corp., General Motors Corp., Stump, Storey & Callahan, P.A., defendants.

ORDER

SHOOB, Senior District Judge.

This action is before the Court on defendants' motion to dismiss. For the following reasons, the Court grants the motion.¹

Background

This action arises out of threats by a leading provider of satellite television service to pursue legal action against persons allegedly engaged in signal piracy. Defendant DIRECTV, Inc., sent letters to thousands of individuals, including plaintiffs in this action, who had been identified as purchasers of devices used to unscramble DIRECTV's satellite television signals without authorization and permit viewing of DIRECTV's programming without payment.² The letters explained the illegal nature of such conduct, notified the recipients that DIRECTV intended to pursue legal action against them, and provided them an opportunity to resolve potential litigation by way of settlement prior to the filing of a complaint. A follow-up letter was sent to individuals who did not respond to the initial letter reiterating the accusation that the recipient had purchased illegal signal theft equipment and stating that unless the recipient contacted the sender within 14 days a lawsuit would be filed based upon an enclosed draft complaint. DIRECTV has since filed over 2,100 lawsuits against such individuals, including a substantial number in this district.

After receiving such letters, six individual plaintiffs filed this action against DIRECTV, its parents, Hughes Electronics Corporation and General Motors Corporation, and the Orlando, Florida, law firm of Stump, Storey & Callahan, P.A., which sent the letters in question. Plaintiffs allege that the letters contain false, misleading, and deceptive statements, were sent without investigating whether the recipients had actually obtained or used a signal theft device and without any serious intent of pursuing litigation against the recipients, and were, in essence, attempts to extort money from such individuals by way of threat and intimidation. Plaintiffs assert claims against defendants for unfair and deceptive practices in violation of the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., for violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., and for stubborn litigiousness under O.C.G.A. § 13-6-11. In addition to damages, plaintiffs seek declaratory and injunctive relief prohibiting defendants from continuing their alleged actions and an accounting of all money received as a result of such conduct.

Discussion

Defendants move to dismiss plaintiffs' complaint pursuant to O.C.G.A. § 9-11-11.1, the so-called "anti-SLAPP" statute. SLAPP suits, or Strategic Litigation Against Public Participation, are civil lawsuits aimed at preventing citizens from exercising their constitutional rights to free speech and to petition the government for redress of grievances in connection with issues of public interest or concern. See Providence Constr. Co. v. Bauer, 229 Ga.App. 679, 680, 494 S.E.2d 527 (1998).

In an effort to prevent such abusive litigation, the anti-SLAPP statute imposes certain procedural safeguards. Any complaint arising from an act that "could reasonably be construed as an act in furtherance of" a defendant's free speech or petition rights must be accompanied by a written verification by both the party and his or her attorney certifying their belief, after reasonable inquiry, that the complaint "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." O.C.G.A. § 9-11-11.1(b). The plaintiff and her counsel must also certify that the act forming the basis for the complaint is not a privileged communication under O.C.G.A. § 51-5-7(4),³ and that the suit has not been filed "for any improper purpose such as to suppress a person's or entity's right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation." Id.

If the anti-SLAPP statute is applicable and the complaint is not verified, then it must be stricken unless it is verified within 10 days after the omission is called to the plaintiff's attention. Id. If the complaint is verified in violation of the statute, the court must impose an appropriate sanction, which may include dismissal of the claim and an order to pay the other party or parties their reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee. Id. Plaintiffs and their counsel have not verified their complaint in this case in accordance with the statutory requirements.

Defendants argue that DIRECTV's prelitigation demand letters, which form the basis for all of plaintiff's claims, fall squarely within the protection of the anti-SLAPP statute, and that plaintiff's unverified complaint must therefore be dismissed with prejudice. Plaintiffs contend that the statute does not apply because DIRECTV's demand letters did not involve "an issue of public interest or concern." The Court concludes that the anti-SLAPP statute applies to plaintiffs' claims. Therefore, the Court grants defendants' motion to dismiss.

The filing of a lawsuit is a well-recognized aspect of the First Amendment right to petition the government for a redress of grievances. Bill Johnson's Rests., Inc. v. N.L.R.B., 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983); McCain v. Scott, 9 F.Supp.2d 1365, 1370 (N.D.Ga. 1998). Consistent with this principle, the anti-SLAPP statute defines an "act in furtherance of the right of free speech or the right to petition government for a redress of grievances" to include "any written or oral statement, writing, or petition made before or to a . . . judicial proceeding or . . . in connection with an issue under consideration or review by a . . . judicial body . . . ." O.C.G.A. § 9-11-11.1(c). This language has been interpreted to include communications made in preparation or anticipation of legal proceedings. See Hawks v. Hinely, 252 Ga.App. 510, 513, 556 S.E.2d 547 (2001).

In an analogous case interpreting California's anti-SLAPP statute, Cal.Civ.Proc. Code § 425.16, which is similar to Georgia's law, the court found that a pre-litigation demand letter was protected by the statute because "[f]iling a lawsuit is an exercise of one's constitutional right of petition, and statements made in connection with or in preparation of litigation are subject to" the anti-SLAPP statute. Kashian v. Harriman, 98 Cal.App.4th 892, 120 Cal.Rptr.2d 576, 588 (2002). Following Kashian, a California superior court recently dismissed a lawsuit against DIRECTV virtually identical to this one. Blanchard v. DIRECTV, Inc., Case No. BC284166 (Los Angeles County Super. Ct. April 1, 2003).

Plaintiffs' contention that their complaint does not involve matters of public interest or concern is without merit. First, plaintiffs acknowledge in their complaint that their claims arise from matters of public interest and concern. In fact, as a matter of law, in order to maintain their action under Georgia's Fair Business Practices Act (FBPA), plaintiffs' claim must involve matters of public interest or concern. See Catrett v. Landmark Dodge, Inc., 253 Ga.App. 639, 642, 560 S.E.2d 101 ("The FBPA does not apply . . . to transactions that are essentially...