N.D. Ill. Notes Split re Damages under the Electronic Communications Privacy Act

Per DirecTV, Incorporated v. Schulien, --- F.Supp.2d ----, 2005 WL 3115894 (N.D. Ill. Nov. 17, 2005):

There is some debate over whether damages under section 2520(c)(2) [a provision of the Electronic Communications Privacy Act] are discretionary or mandatory. The issue that has divided the appellate circuits, but the Seventh Circuit--the first to address this issue--has held that the language of section 2520(c)(2) requires trial courts to award damages to prevailing parties under the Act. Rodgers, 910 F.2d at 448. The Seventh Circuit stated that the term “may” as used in the subsection is “ambiguous” and “there is nothing in the legislative record explaining why Congress made the change from the word ‘shall’ to the word ‘may.’ In the absence of any such statement, we are hesitant to read a grant of discretion to the district courts where none had been permitted in the past.” Rodgers, 910 F.2d at 448. Since then, the Fourth, Sixth, Eighth, and Eleventh Circuits have rejected this analysis and held that an award of damages under section 2520(c)(2) is discretionary based on the change in the plain language of section 2520(c)(2). Nalley v. Nalley, 53 F.3d 649, 652 (4th Cir.1995); Dorris v. Absher, 179 F.3d 420, 429 (6th Cir .1999); Reynolds v. Spears, 93 F.3d 428, 434 (8th Cir.1996); DirecTV, Inc. v. Brown, 371 F.3d 814, 818 (11th Cir.2004). I am constrained to follow the Seventh Circuit's decision in calculating damages.