On February 4, 2016, the US Court of Appeals for the Eleventh Circuit issued an opinion in Vista Marketing, LLC v. Burkett, holding the Stored Communications Act (SCA) did not authorize a court to award statutory damages without a finding that actual damages occurred ( (11th Cir. Feb. 4, 2016); 18 U.S.C. §§ 2701-2712).

This suit arose from actions that took place during a divorce proceeding between Terri and Franklin Burkett to determine ownership of their telemarketing company, Vista Marketing, LLC. During the time Terri and Franklin were married, Franklin gave Terri the password to his Vista-based email account and permission to check his email. Once the divorce proceeding began, Terri continued to check Franklin's email, and admitted to occasionally reading unopened emails. After the divorce was finalized, Vista filed suit against Terri in the US District Court for the Middle District of Florida, alleging she violated the SCA when she accessed Vista's web-based mail account and Franklin's email account during the divorce proceeding.

Although a jury found Terri guilty of violating the SCA, it determined that Vista had not suffered any actual damages as a result of Terri's actions, and the verdict did not award Vista actual or punitive damages. Appealing to the district court judge, Vista argued it was entitled to statutory damages in the amount of $450,000, or $1,000 per violation. Exercising its discretion, the district court awarded Vista statutory damages in the amount of $50,000, but declined to award punitive damages or attorney's fees. Both Vista and Terri filed timely appeals.

On appeal, Terri argued before the Eleventh Circuit that the SCA precluded the district court from awarding Vista any statutory damages because:

The SCA provides for a damage award consisting of the "sum of actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1000…" (18 U.S.C. § 2707(c)). Agreeing with Terri's reading of the statute, the Eleventh Circuit focused on the meaning of the phrase "person entitled to recover." The court noted that the US Supreme Court construed the nearly identical phrase, "person entitled to recovery," under the Privacy Act in Doe v. Chao, and concluded that the simplest reading of the phrase refers to the immediately preceding provision for recovering actual damages (540 U.S. 614 (2004); 5 U.S.C. § 552a).

Similarly, the phrase "person entitled to recover" in the SCA follows a provision for recovering actual damages. Therefore, relying on Doe, the Eleventh Circuit reasoned that:

Finally, the court noted that the US Court of Appeals for the Fourth Circuit had similarly concluded that statutory damages under the SCA were only available upon a finding of actual damages.

Accordingly, the court vacated the district court's award of $50,000 in statutory damages.