§ 5-37-407 — Additional civil remedies

(a) (1) In addition to any other provision of this subchapter, any person aggrieved by a violation of this subchapter may bring a civil action in any court of competent jurisdiction. (2) As used in this section, "any person aggrieved" includes any communication service provider. (b) The court may: (1) Award declaratory relief and any other equitable remedy, including a preliminary or final injunction to prevent or restrain a violation of this subchapter, without requiring proof that the plaintiff has suffered or will suffer actual damages or irreparable harm or lacks an adequate remedy at law; (2) At any time while an action is pending, order the impounding, on such terms as it deems reasonable, of any communication device or unlawful access device that is in the custody or control of the violator and that the court has reasonable cause to believe was involved in the alleged violation of this subchapter; (3) Award damages as described in subsection (c) of this section; (4) In the court's discretion, award reasonable attorney fees, costs, and expenses to an aggrieved party who prevails; and (5) As part of a final judgment or decree finding a violation of this subchapter, order the remedial modification or destruction of any communication device or unlawful access device or any other device or equipment involved in the violation that is in the custody or control of the violator or has been impounded under subdivision (b)(2) of this section. (c) Damages awarded by a court under this subchapter shall be computed as either of the following: (1) (A) Upon his or her election of damages at any time before final judgment is entered, the complaining party may recover the actual damages suffered by him or her as a result of the violation of this subchapter and any profits of the violator that are attributable to the violation. (B) Actual damages include the retail value of any communication service illegally available to a person to whom the violator directly or indirectly provided or distributed any communication device or unlawful access devices. (C) In proving actual damages, the complaining party shall prove only that the violator manufactured, distributed, or sold any communication device or unlawful access devices. (D) In determining the violator's profits, the complaining party shall prove only the violator's gross revenue and the violator shall prove his or her deductible expenses; or (2) Upon election by the complaining party at any time before final judgment is entered, that party may recover in lieu of actual damages, an award of statutory damages of one thousand dollars ($1,000) for each communication device or unlawful access device involved in the action, with the amount of statutory damages to be determined by the court, as the court considers just. (d) In any case in which the court finds that any violation of this subchapter was committed willfully and for a purpose of commercial advantage or private financial gain, the court in its discretion may increase the total award of any damages under subsection (c) of this section by an amount of not more than fifty thousand dollars ($50,000) for each communication device or unlawful access device involved in the action or for each day the defendant was in violation of this subchapter.

Legislative History

Acts 2003, No. 1806, § 6; 2007, No. 827, § 41.