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Grow Financial Federal Credit Union v. GTE Federal Credit Union

United States District Court, M.D. Florida, Tampa Division

August 15, 2017

GROW FINANCIAL FEDERAL CREDIT UNION, a Federally Chartered Credit Union, Plaintiff,
GTE FEDERAL CREDIT UNION d/b/a GTE FINANCIAL, a Federally Chartered Credit Union, and ERICA PIERSON HOLLIDAY a/k/a Erica Pierson, an individual, Defendants.



         THIS CAUSE comes before the Court upon Defendants' Motions to Dismiss (Dkts. 15, 16) and Plaintiff's Response in Opposition (Dkt. 24). Upon review, the Court concludes that Defendants' motions should be granted in part and denied in part.


         In this lawsuit, Plaintiff Grow Financial Federal Credit Union (“Grow Financial”) is suing its competitor, Defendant GTE Federal Credit Union d/b/a GTE Financial, and Grow Financial's former employee Erica Pierson Holliday, who is now employed by GTE Financial. Grow Financial alleges that Holliday, while still employed by Grow Financial, sent Grow Financial's trade secrets and confidential/proprietary information to GTE Financial.

         Grow Financial alleges the following claims against Holliday: the Federal Computer Fraud and Abuse Act (“CFAA”) (Count I); the Florida Computer Abuse and Data Recovery Act (“CADRA”) (Count II); and common law breach of duty of loyalty (Count VIII). Grow Financial alleges the following claims against both Defendants: misappropriation of trade secrets under the Federal Defendant Trade Secrets Act (“DTSA”) (Count III) and the Florida Uniform Trade Secrets Act (“FUTSA”) (Count IV); tortious interference with advantageous business relationships (Count V); conversion (Count VI); common law unfair competition (Count VII), and civil conspiracy (Count IX).

         Holliday and GTE Financial now move to dismiss all of the claims for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As explained below, the Court grants the motions to the extent that it dismisses the claims against Holliday under the CFAA and the CADRA. The Court also dismisses the claim of tortious interference with advantageous business relationships based on Grow Financial's withdrawal of this claim.


         Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted). It must also construe those factual allegations in the light most favorable to the plaintiff. See Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (internal citation omitted). To withstand a motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleadings that offer only “labels and conclusions, ” or a “formulaic recitation of the elements of a cause of action, ” will not do. Twombly, 550 U.S. at 555.


         I. CFAA

         The CFAA provides a cause of action for the improper access to protected computers. See 18 U.S.C. §1030, et. seq. As it relates to this case, the statute provides that “[w]hoever - (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains” information from a protected computer is subject to liability. Id. at 1030(a)(2). Holliday argues that Grow Financial does not allege any facts demonstrating that she exceeded her authorized access. The Court agrees.

         The term, “exceeds authorized access” is defined in the CFAA as “access to a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” Id. at 1030(e)(6). Here, Grow Financial alleges that access to the subject information was necessary for Holliday to perform her job duties. Grow Financial contends that Holliday improperly used or disclosed the information that she accessed when she provided it to GTE Financial while she was still employed at Grow Financial. But, as this Court has previously held, an improper use of data is not tantamount to exceeding authorization under the CFAA. See Maintenx Mgmt., Inc. v. Lenkowski, No. 8:14-cv-2440-T-30MAP, 2015 WL 310543, *2-*3 (M.D. Fla. Jan. 25, 2015) (“The facts put forth by Maintenx support the notion that Lenkowski misused data he obtained from Maintenx's computers, not that he somehow exceeded his seemingly unfettered access.”).

         Although this Court's prior holding in Lenkowski is not addressed in the parties' briefs, Lenkowski is consistent with the majority view in this circuit that applies a narrow definition of “exceeds authorized access.” See Enhanced Recovery Co., LLC v. Frady, No. 3:13-cv-1262-J-34JBT, 2015 WL 1470852, *5-*7 (Mar. 31, 2015) (listing cases). As the court explained in Enhanced Recovery, “[q]uite simply, without authorization means exactly that: the employee was not granted access by his employer. Similarly, exceeds authorized access simply means that, while an employee's initial access was permitted, the employee accessed information for which the employer had not provided permission.” Id.

         The Court sees no reason to depart from its reasoning in Lenkowski or from the majority view. Notably, if the Court were to apply the CFAA to an employee like Holliday, who allegedly divulged trade secrets that she was actually permitted to access, or who violated computer usage policies, the Court would be taking the CFAA beyond “its original purpose of targeting computer hackers.” Enhanced Recovery 2015 WL 1470852 at *8 (citations omitted). Under this broad interpretation, the CFAA would be potentially violated each time an employee ...

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