10th Circuit Launches Colorado Springs Realtor’s Lawsuit Against Ex-Husband | Content reserved for subscribers

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The Denver-based federal appeals court has dismissed a Colorado Springs real estate agent’s lawsuit against her ex-husband for allegedly invading her privacy and illegally accessing her business data, causing clients to flee.

On Wednesday, the United States Court of Appeals for the 10th Circuit agreed that Bryan Seale apparently suffered no real loss from a series of actions he attributed to his ex-spouse, Gary Peacock. A three-judge panel upheld a lower court’s dismissal of Seale’s lawsuit, while allowing him to refile his claims if he could meet certain conditions.

Notably, the panel opened the door to an issue that the Colorado Supreme Court has yet to consider in interpreting state law: whether the unauthorized use of username and password another person’s pass is considered an “appropriation of a name or likeness” that invades their privacy.

“(W)e are bothered by the unstable status of Colorado law,” Judge Carolyn B. McHugh wrote in the appeals court. Opinion of April 27.

According to Seale, someone sent anonymous letters to acquaintances of his in November and December 2017. The letters included explicit photographs of him, as well as statements about his dating or sexual history. Seale himself also received a letter asking him, “Do you like breaking up families? Neither local nor federal authorities had identified who was responsible when Seale filed his complaint.

A year after the letters, Seale learned that his outsourcing program for his real estate business, called CTM Software, had a series of connections from someone else using his account. The CTM software contained the clients’ personal identifying information and their history with Seale’s company. Peacock was reportedly the only person with Seale’s login credentials, and Seale traced the IP addresses to Peacock’s locations at the time.

Seale sued Peacock for theft, invasion of privacy by appropriating his name or likeness, and breaking stored communications law, all from Peacock’s alleged access to CTM software. The Stored Communications Act prohibits intentional access to electronic communications without authorization.

In August 2020, then-U.S. Magistrate Judge Kathleen M. Tafoya dismissed the lawsuit. Because Seale had not proven that Peacock knowingly deprived Seale of anything “permanently”, as required by law, the theft claim could not stand, she reasoned. Tafoya also did not believe that Seale had claimed any specific harm from the alleged invasion of Peacock’s privacy other than “mental anguish”.

Finally, Tafoya concluded that the Stored Communications Act required Seale to demonstrate actual damages resulting from Peacock’s alleged access to the CTM software. Although Seale alleged that he lost clients during this time, he linked it to the defamatory letters, not the software connections.

Shortly after the dismissal, Seale sought to amend his lawsuit past the deadline and identify Peacock as the source of the letters, based on new inferences Seale had made. Tafoya denied the request.

On appeal, the 10th Circuit panel largely agreed with Tafoya’s handling of the allegations. McHugh, writing for the panel, raised an issue that no one had explored before in the litigation, namely whether the use of Seale’s username and password to log into the CTM software qualified under of the law as an appropriation of his “name or likeness”. “

“Specifically, the Colorado Supreme Court has not determined whether a username and password combination constitutes a ‘name’ for the purposes of this claim or whether, even if it is a name, a defendant must use it in public to appropriate it,” she wrote. .

Because the panel could not rule out whether Colorado law would support a privacy invasion claim under this theory, the 10th Circuit allowed Seale to refile this particular set of allegations – provided that he can demonstrate in more detail the injuries he suffered from the alleged privacy breach. .

Michael Kuhn, an attorney representing Peacock, said if Seale refiles his invasion of privacy claim, the defense would seek to certify, or send to the state Supreme Court for interpretation, the issue identified by McHugh. Federal courts in Colorado look to the highest court in the state when applying state law, unless there is no relevant Supreme Court decision.

“We are pleased that the three appeals judges unanimously upheld the district court’s dismissal of plaintiff’s lawsuit. This confirms our view that the lawsuit was without merit,” Kuhn said. “In light of this loss, we are hopeful that the plaintiff will finally end his failed litigation and move on with his life. »

Seale’s attorneys did not respond to a request for comment. The panel also allowed Seale to refile its Stored Communications Act claim, again with instructions on how to seek damages.

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