Category Archives: Recent Updates

Last week two federal district courts, one in Connecticut and the other in Manhattan, followed LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1130-31 (9th Cir. 2009) in dismissing Computer Fraud and Abuse Act (“CFAA”) claims brought against employees who stole company data. In neither case did the plaintiff company employer rely on company computer policies or agreements limiting or defining the scope of an employee’s access to the company computers. In University Sports Publications Co. v. Playmakers Media Co., 2010 WL 2802322 (S.D.N.Y. July 14, 2010) University Sports Publications (“USP”) alleged that both a current employee and a former … [ Continue reading → ]

A New York court held that the Computer Fraud and Abuse Act’s (“CFAA”) prohibition against unauthorized access does not apply to corporate executives who stole confidential and proprietary information from the company computers because, as company executives, they had been “granted unfettered access to . . . [the company’s] computer system and information residing on it.”  Orbit One Communications, Inc. v. Numerex Corp., 692 F.Supp2d 373, 386 (S.D.N.Y. 2010).  While recognizing that the “Courts have interpreted the CFAA’s prohibitions of ‘access without authorization’ and ‘exceed[ing] authorized access’ in two different ways,” and that the “Second Circuit has not addressed the … [ Continue reading → ]

Without referring to its Circuit’s controlling decision of LVRC Holdings LLC v. Brekka, 581 F.3d 1127, (9th Cir. 2009) , a federal district court in San Jose, California permitted a Computer Fraud and Abuse (“CFAA”) claim to proceed against an ex-employee for deleting files from her former employer’s computer. Kal-Tencor Corp. v. Murphy, 2010 WL 1912029 *6-*7 (N.D. Cal. May 11, 2010). This case is significant because it allows a CFAA claim for unauthorized access to be predicated on an employee agreement requiring an employee to return company records at the time of termination from the company. This decision is contrary to another district court decision in the same federal judicial district — U.S. v. Nosal, 2010 WL 934257 *7 (N.D. Ca. Jan. 6, 2010) — leaving open the question of whether in the 9th Circuit employer policies can be used to define employee authorization to the company computers . [ Continue reading → ]

Bell Aerospace Services, Inc. v. US. Aero Services, Inc., 690 F.Supp.2d 1267 (M.D. Ala. 2010) recently followed the 9th Circuit’s decision in LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009). The case alleges a classic employee theft of competitively sensitive data from the company computers for use at a competing business. Bell Aerospace Services fired one of its officers who two months later founded a competing company, U.S. Aero Services, and then recruited seven Bell Aerospace Services employees to join him at the new company. [ Continue reading → ]

In Marketing Technology Solutions, Inc. v. Medizine LLC, 2010 WL 2034404 *6-7 (S.D.N.Y. May 18, 2010) the court denied the defendant’s motion to dismiss the CFAA claim for stealing trade secrets from the company computer. Medizine, the employee’s new employer, argued that the employee, Daniel Brandt, could not have accessed his former employer’s computer without authorization or in excess of authorization “because of the broad access Brandt had as an employee.” Id. at *7. Relying on the First Circuit’s decision in EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581-84 (1st Cir. 2001), the court held that “[i]n … [ Continue reading → ]

The Magistrate Judge in Consulting Professional Resources, Inc. v. Concise Technologies LLC, 2010 WL 1337723 (W.D. Pa. March 9, 2010) held that the CFAA does not apply to an employee who removed trade secret protected data from the company computer and provided it to a competitor immediately prior to leaving her employer to become employed by that competitor. The court recognized that “[t]he Court of Appeals for the Third Circuit has not taken a position on the “unauthorized access” debate, but it has recognized the trend among employers to employ the “CFAA’s civil remedies to sue former employees and their … [ Continue reading → ]