Case: Doc 1 Filed: 12/03/13 Page: 1 of 12 - Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY COVINGTON DIVISION BERTHA MAE HUFF PLAINTIFFS 10 Cambridge Drive Ft. Mitchell, Kentucky 41017 AND JAMES HAROLD HUFF 10 Cambridge Drive Ft. Mitchell, Kentucky 41017 CIVIL ACTION NO. vs. CAROL SPAW 406 Forest Avenue Erlanger, KY 41018 DEFENDANT SERVE: Carol Spaw Cincinnati/ Northern Kentucky International Airport Administrative Of?ces 2939 Terminal Drive Hebron, KY 41018 VERIFIED COMPLAINT WITH JURY DEMAND Come now the Plaintiffs, Bertha Mae Huff (?Bert Huff?) and James Harold Huff (?Jim Huff?), by and through counsel, and as their claims for injunctive and declaratory relief, damages and attorney fees under 18 U.S.C. 2520, Fed. R. Civ. P. 57, and KRS 446.070 state as follows: JURISDICTION AND VENUE 1. Plaintiffs, husband and wife, reside at 10 Cambridge Drive, Ft. Mitchell, Kenton County, Kentucky. Jim Huff currently serves as the Chairman of the Kenton County Airport Board. 2. Defendant Carol Spar-v (?Spaw?) resides at 406 Forest Avenue, Erlanger, Kenton County, Kentucky. Case: Doc 1 Filed: 12/03/13 Page: 2 of 12 - Page 2 3. At all times material to this suit, Spaw served as the administrative assistant to the Chief Executive Of?cer of the Cincinnati/ Northern Kentucky International Airport 4. Jurisdiction in the United States District Court is proper based on federal question jurisdiction pursuant to 28 U.S.C. 1331. 5. The United States District Court has supplemental jurisdiction over Plaintiffs? state law claims under 28 U.S.C. 1367 because those claims are so related to Plaintiffs? federal causes of action that they form part of the same case or controversy. 6. Venue is proper in this district and division under 28 U.S.C. 1391(b)(2) on the basis that Spaw?s actions in violating the federal Wiretap Act, 18 U.S.C. 2510, et seq., all occurred in either Boone or Kenton Counties. BACKGROUND FACTS 7. On October 24, 2013, Plaintiffs were in Italy in connection with Plaintiff Jim Huff?s attendance at a conference relating to CVG operations. 8. In the afternoon of October 24, Plaintiff Jim Huff had face?to?face conversations with Mr. Larry Savage, also a member of the Kenton County Airport Board, and separate face?to?face conversations with his wife, Plaintiff Bert Huff. 9. The face?to?face conversations between Jim Huff and Larry Savage took place in the conference meeting room at the hotel at which the conference was being conducted. The face-to?face conversations between Plaintiffs took place in Plaintiffs? private hotel room. 10. All of these face-to-face conversations were conducted in private with a complete expectation on the part of all the participants in the conversations that such conversations were private in nature. Case: Doc 1 Filed: 12/03/13 Page: 3 of 12 - Page 3 11. At 3:35 pm. on October 24, Plaintiff Jim Huff accidentally, unintentionally, and unknowingly dialed his personal cell phone to (859) 767?3153. 12. (859) 767?3153 is assigned to the Administrative Of?ces at CVG in Boone County, Kentucky. 13. Unbeknownst to Plaintiff Jim Huff, Plaintiff Bert Huff and Mr. Larry Savage, their private, face?to?face conversations described above were transmitted by Jim Huffs personal cell phone to the Administrative Offices at CVG in Boone County, Kentucky. 14. Because Plaintiff Jim Huff had accidentally dialed his personal cell phone to the number of the Administrative Of?ces at the Airport, the private, face-to-face conversations between Plaintiffs in their hotel room and between Plaintiff Jim Huff and Mr. Larry Savage in the conference meeting room were transmitted to the person who answered the call in Administrative Offices in Boone County, Kentucky. 15. The phone call transmitting the private, face-to-face conversations lasted 91 minutes. A true and correct copy of the personal cell phone records of Plaintiff Jim Huff referencing the phone call is attached hereto as Exhibit A and incorporated by reference. 16. Upon information and belief, Spaw answered the accidental phone call that was transmitted from Plaintiff Jim Huffs cell phone and eavesdropped on the private, face?to?face conversations described above. 17. Upon information and belief, Spaw, acting in concert with others, used an electronic device to record the private, face-to-face conversations that were transmitted by Plaintiff Jim Huff?s personal cell phone. Case: Doc 1 Filed: 12/03/13 Page: 4 of 12 - Page 4 18. Upon information and belief, Spaw, acting in concert with others, transcribed select portions of the private, face-to?face conversations described above. 19. Upon information and belief, Spaw gave to a third person a copy of the audio recording of the private, face-to?face conversations, as well as a copy of the typewritten transcript of certain portions of the private, face-to-face conversations, thereby disclosing to the third person the sum and substance of the private, face?to?face conversations between Plaintiffs in their hotel room and between Plaintiff Jim Huff and Mr. Savage in the conference meeting room. 20. In turn, the third person, upon information and belief, gave a copy of the audio recording and the transcript of the private, face?to-face conversations to another individual, thereby disclosing the sum and substance of the private, face?to?face conversations to such other individual. 21. At no time did Plaintiffs consent to the interception, recording, transcription or disclosure of their private, facento-face conversations. 22. Plaintiffs were at all times unaware of the interception and recording of their private, face-to-face conversations. 23. At 5:12 pm. on October 24, Plaintiff Jim Huff telephoned (859) 767-3153 with his personal cell phone. (See Exhibit A hereto). 24. Spaw answered that call and Plaintiff Jim Huff had a three-minute conversation with Spaw. 25. At no time during that phone conversation did Spaw inform Plaintiff Jim Huff that she had just eavesdropped on and recorded the private, face?to?face conversations at issue. Case: Doc 1 Filed: 12/03/13 Page: 5 of 12 - Page 5 26. An individual who has read the transcript has told the undersigned that, on the transcript, Plaintiff Jim Huff is recorded as stating that he was going to his hotel room to meet with his wife, Plaintiff Bert Huff. 27. Upon information and belief, the transcript then shows a blank space, presumably representing the time Plaintiffs were in their hotel room together. 28. Upon information and belief, the transcript concludes with Plaintiff Jim Huff?s statement that his phone has had a call in progress. 29. That statement made by Plaintiff Jim Huff was uttered in his private hotel room. COUNT I UNLAWFUL INTERCEPTION OF A WIRE, ORAL OR ELECTRONIC COMMUNICATION IN VIOLATION OF THE FEDERAL WIRETAP ACT, 18 U.S.C. 2510 et seq. 30. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 31. Spaw knew that she was not intended to be a party to Plaintiffs? private communications which were accidentally transmitted to her phone at CVG for 91 minutes. 32. By recording and transcribing the contents of Plaintiffs? private communications, Spaw intentionally acquired, aurally or otherwise, the contents of a wire, electronic, or oral communication in violation of 18 U.S.C. 2510, et seq. 33. Upon information and belief, Spaw used an electronic device to intentionally record and transcribe the contents of Plaintiffs? private communications in violation of 18 U.S.C. 2510, et seq. 34. By recording and/or transcribing the contents of Plaintiffs? private communications without consent and through the use of an electronic device, Spaw Case: Doc 1 Filed: 12/03/13 Page: 6 of 12 - Page 6 intentionally intercepted or endeavored to intercept a wire, oral or electronic communication in violation of 18 U.S.C. 2510, et seq. 35. Spaw?s intentional acts of intercepting, recording, and transcribing Plaintiffs? private communications are not part of her job duties and were not conducted in the ordinary course of business. 36. Spaw was not a party to Plaintiffs? private communications and was not given consent by any party to those conversations to intercept, record, transcribe or distribute the content of those private communications. 37. Spaw?s conduct with regard to Count I was wanton, reckless, malicious, and was undertaken with complete disregard to the rights of Plaintiffs. UNLAWFUL USE OF THE CONTENTS OF A WIRE, ORAL OR ELECTRONIC COMMUNICATION IN VIOLATION OF THE FEDERAL WIRETAP ACT, 18 U.S.C. 2511(1)(d) 38. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 39. By recording, transcribing and then distributing Plaintiffs? private communications to a third person, Spaw used, or endeavored to use, the contents of an unlawfully intercepted communication in violation of 18 U.S.C. 2511(1)(d). 40. Spaw knew or had reason to know that her interception of Plaintiffs? private communications was in violation of the law. 41. Spaw?s conduct with regard to Count II was wanton, reckless, malicious, and in complete disregard for the rights of Plaintiffs. UNLAWFUL DISCLOSURE OF A WIRE, ORAL OR ELECTRONIC COMMUNICATION IN VIOLATION OF THE FEDERAL WIRETAP ACT, 18 U.S.C. 2511(1)(c). Case: Doc 1 Filed: 12/03/13 Page: 7 of 12 - Page 7 42. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 43. By distributing the audio recording of Plaintiffs? private communications and the transcript of Plaintiffs? private communications to a third person, Spaw disclosed, or endeavored to disclose, the contents of an unlawfully intercepted communication in violation of 18 U.S.C. 2511(1)(c). 44. Spaw knew or had reason to know that her interception and disclosure of Plaintiffs? private communications was in violation of the law. 45. Spaw?s conduct with regard to Count 111 was wanton, reckless, malicious, and in complete disregard for the rights of Plaintiffs. COUNT IV PLAINTIFFS ARE ENTITLED TO A DECLARATORY JUDGMENT PURSUANT TO 18 U.S.C. 2520(b)(1) 46. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 47. Plaintiffs? Claims against Defendant represent an actual controversy within the jurisdiction of this Court. 48. Under 18 U.S.C. 2520(b)(1), Plaintiffs are entitled to a declaration that Defendant?s conduct in intercepting, recording, transcribing, disseminating and using Plaintiffs? private, face-to-face conversations violates 18 U.S.C. 2511. COM UNLAWFUL EAVESDROPPING IN VIOLATION OF KENTUCKY LAW 49. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 50. Defendant Spaw did not have the consent of any party to Plaintiffs? private communications to record, transcribe, or distribute the contents of Plaintiffs? private communications. Case: Doc 1 Filed: 12/03/13 Page: 8 of 12 - Page 8 51. Under Kentucky law, a person is guilty of eavesdropping when she ?intentionally uses any device to eavesdrop, whether or not she is present at the time.? KRS 526.020. The crime of eavesdropping is a Class felony. 52. ?Eavesdrop? means to ?overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.? KRS 526.010. 53. By intercepting, recording, transcribing and/or distributing the contents of Plaintiffs? private communications without consent, Defendant Spaw has committed unlawful eavesdropping under Kentucky law. 54. Plaintiffs have been damaged by Defendant?s unlawful eavesdropping. 55. Pursuant to KRS 446.070, Plaintiffs are entitled to recover civil damages sustained by reason of Defendant Spaw?s unlawful eavesdropping. COUNT VI UNLAWFUL DISCLOSURE OF INFORMATION OBTAINED THROUGH EAVESDROPPING IN VIOLATION OF KENTUCKY LAW 56. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 57. Under Kentucky law, it is a crime for a person to divulge information that is illegally obtained through eavesdropping. KRS 526.060. 58. By transcribing and/or distributing the audio recording of Plaintiffs? private oral communications to a third party, Defendant Spaw has unlawfully divulged illegally obtained information in violation of KRS 526.060. 59. Pursuant to KRS 446.070, Plaintiffs are entitled to recover civil damages sustained by reason of Defendant?s unlawful disclosure of information obtained by eavesdropping. Case: Doc 1 Filed: 12/03/13 Page: 9 of 12 - Page 9 COUNT VII UNREASONABLE INTRUSION UPON THE SECLUSION OF PLAINTIFFS 60. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 61. Upon information and belief, a large portion of the recorded communications at issue occurred in the private hotel room of Plaintiffs, who are husband and wife. 62. Plaintiffs had a reasonable expectation of privacy while in their hotel room. 63. By listening in on, recording, transcribing, and distributing the contents of Plaintiffs? private communications, Defendant Spaw has unreasonably intruded upon the seclusion of Plaintiffs. 64. The communications between Plaintiffs, husband and wife, while in their hotel room, are matters which the Plaintiffs have a right to keep private. 65. The methods employed by Defendant Spaw in recording, transcribing, and distributing the contents of Plaintiffs? private communications are objectionable to a reasonable person. 66. Plaintiffs are entitled to compensatory and punitive damages as a result of Defendant?s unreasonable intrusion upon their seclusion. gm INJUNCTIVE RELIEF 67. Plaintiffs incorporate the preceding paragraphs as if fully restated herein. 68. Based upon the facts outlined above, along with the law applicable to Plaintiffs? claims, Plaintiffs can clearly show that they have a substantial likelihood of prevailing on the merits of their lawsuit. Case: Doc 1 Filed: 12/03/13 Page: 10 of 12 - Page 10 69. Due to the sensitive nature of the contents of Plaintiffs? communications, along with Spaw?s egregious conduct with regard to the facts herein described, Plaintiff will suffer immediate and irreparable injury if this Court does not enjoin Spaw from further disseminating, disclosing, divulging or using the private communications of Plaintiffs which were unlawfully intercepted, recorded, transcribed and distributed by Spaw. 70. The potential injury to Plaintiffs in this case outweighs the possible harm of enjoining Spaw from further using and/ or disclosing Plaintiffs? unlawfully? intercepted communications. 71. Issuing an injunction in this case fully comports with the public interest. 72. Plaintiffs therefore request a preliminary injunction preventing Defendant Spaw from further disseminating, disclosing, divulging or using the audio recording and transcription of Plaintiffs? private communications which are the subject of this lawsuit. WHEREFORE, Plaintiffs demand the following relief: Compensatory and punitive damages under 18 U.S.C. 2520(b)(2) and under common law; Temporary, preliminary and ?nal injunctive relief under 18 U.S.C. 2520(b)(1) ordering Defendant Spaw to cease and desist from disseminating the recording and transcript and to deliver to Plaintiffs the original and all copies of the recording and transcript; A reasonable attorney?s fee and litigation costs under 18 U.S.C. 2520(b)(3); A judgment declaring the rights of the respective parties to this lawsuit; (8) A trial by jury; and Any and all other relief to which Plaintiffs may be entitled. 10 Case: Doc 1 Filed: 12/03/13 Page: 11 of 12 - Page 11 Respectfully submitted, Mark D. Guilfoyle Mark D. Guilfoyle (KBA No. 27625) DRESSMAN BENZINGER LAVELLE PSC 207 Thomas More Parkway Crestview Hills, Kentucky 41017 Phone: (859) 341-1881 Email: mguilfoyle@dbllaw.c0m Kent Wicker Kent Wicker (KBA No. 82926) DRESSMAN BENZINGER LAVELLE PSC 321 W. Main Street, Suite 2100 Louisville, Kentucky 40202 Phone: (502) 572-2500 Email: kwicker@dbllaw.com Attorneys for Plaintz?s VERIFICATION The undersigned, Jim and Bert Huff, state that the factual allegations made in the foregoing Complaint are true and correct to the best of their knowledge and belief. ?74- I a es H. Huff ertha M. Huff STATE OF KENTUCKY SS: COUNTY OF KENTON The foregoing Complaint was acknowledged before me, this day of M), We all/Wt Notary Public, State?at?Large My Comm. Expires: 47/ RHONDA Notary Public 11 Kentucky at Large Commission Expires 6-15-14 ID 421329 December, 2013, by James Huff. Case: Doc 1 Filed: 12/03/13 Page: 12 of 12 - Page 12 STATE OF KENTUCKY SS: COUNTY OF KENTON The foregoing Complaint was acknowledged before me, this day of December, 2013, by Bertha Huff. 2/ MW Notary Public, State-at?Large My Comm. Expires: (a 401723v1 RHONDA Notary Public Kentucky State at Large Commission Expires 6-15-14 ID 421329 12