Computer Fraud and Abuse Act

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Thomson Reuters Practical Law published a Practice Note co-authored by Peter A. Steinmeyer and Robert D. Goldstein, Members of the Firm, “Hiring from a Competitor: Practical Tips to Minimize Litigation Risk.”  This Practice Note discusses potential statutory and common law claims when hiring from a competitor, the need to identify any existing contractual restrictions a potential new hire may have, how to avoid potential issues during the recruitment process, ensuring the new hire is a “good leaver” during the resignation process, responding to cease and desist letters, and potential pre-litigation settlement concepts.

Following is an excerpt:

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Continue Reading Hiring from a Competitor: Practical Tips to Minimize Litigation Risk

James P. Flynn
James P. Flynn

In the recent case of United States v. Nosal, the United States Court of Appeals for the Ninth Circuit confirmed the applicability of both the Computer Fraud and Abuse Act and the Economic Espionage Act as safeguards against theft of trade secrets by departed former employees.  Importantly, Nosal applied such laws to convict a former employee in a case involving domestic businesses and personnel without any alleged overseas connections.  Because of civil enforcement provisions in the CFAA itself and the recently enacted Defend Trade Secrets Act, Nosal represents a possible guide…
Continue Reading Criminal Enforcement Protects Trade Secrets Taken By Departed Employees

On March 20, 2015, a California federal court rejected an expansive reading of the Computer Fraud and Abuse Act (“CFAA”) urged by two plaintiff corporations that sought to hold a competitor and two of its directors liable under the CFAA, under an agency theory, for the actions of a former employee who allegedly downloaded and stole the corporations’ confidential trade secrets.

The plaintiffs, Koninklijke Philips N.V. and Philips Lumileds Lighting Company (“Lumileds”) are engaged in the business of Light Emitting Diode (“LED”) technology.  They alleged that Dr. Gangyi Chen, while employed, downloaded Lumileds’ trade secrets and confidential business information onto…
Continue Reading Federal Court in California Sheds Light on Computer Fraud and Abuse Act: Allegations of Indirect Access Held Insufficient To State Claim

A California legislator recently introduced two bills in Congress which, if passed, could have profound effects for companies seeking to pursue claims relating to trade secrets and confidential information – one bill would create a new private right of action under federal law for trade secret theft, while the other bill would appear to limit plaintiffs’ abilities to pursue existing remedies for computer fraud and abuse.…
Continue Reading Congress Considers Companion Bills That Could Have Far Reaching Consequences For Companies Facing Trade Secret Theft And/Or Computer Fraud And Abuse

In a recent case, the United States District Court for the District of Massachusetts issued the latest opinion regarding whether former employees violated the Computer Fraud and Abuse Act before they joined a competitor by downloading electronic information without authorized access.…
Continue Reading Massachusetts Federal Court Weighs In On Computer Fraud And Abuse Act

Practitioners in the area of trade secret protection and employee mobility law are still trying to sort out the impact of a federal court jury verdict in San Francisco last month finding former Korn Ferry executive David Nosal guilty of two criminal counts stemming from his alleged misappropriation of the Company’s proprietary information after his departure.…
Continue Reading Fallout From Nosal Verdict

Last week, the U.S. Court of Appeals for the Fourth Circuit issued a decision regarding the scope of liability under the Computer Fraud and Abuse Act (“CFAA”), and sided with the Ninth Circuit in adopting a narrow reading of the statute. In affirming dismissal, the Fourth Circuit adopted “a narrow reading of the terms ‘without authorization’ and ‘exceeds authorized access’ and held that they apply only when an individual accesses a computer without permission or obtains or alters information on a computer beyond that which is authorized to access.” The Fourth Circuit further rejected any CFAA liability grounded on an agency theory, noting that such a theory for liability has far-reaching effects unintended by Congress.…
Continue Reading Fourth Circuit Adopts “Narrow Reading” of Authorization under the Computer Fraud and Abuse Act

An action pending in federal court in New York demonstrates that the Computer Fraud and Abuse Act (“CFAA”) should not simply be added to an employer’s complaint against its former employees and a competitor, primarily alleging common law claims sounding in misappropriation of trade secrets and unfair competition, in connection with the alleged poaching of the employer’s clients. In a recent decision, the Court dismissed the state law claims, finding that they formed the real body of the case, and retained jurisdiction over the CFAA claim. The CFAA claim is now the subject of defendants’ motion to dismiss, on the grounds that the former employees had authorized access to the computer systems of the employer, and therefore the statutory prerequisites to state a claim were not met.…
Continue Reading The “Authorized Access” Issue Under the Computer Fraud and Abuse Act

A lawsuit recently filed in the United States District Court for the Eastern District of Virginia could be of interest to employers and attorneys alike who are following the split in the courts across the country as to whether computer access while an employee meets the statutory test for “without authorization” under the Computer Fraud and Abuse Act.…
Continue Reading Clinical Lab Sues Former Executives and Sales Representatives For Competing with Rival Business and Soliciting Clients and Employees