Infinity Headwear & Apparel, LLC v. Coughlin

Cite as 2014 Ark. App. 609
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-1033
Opinion Delivered November 5, 2014
INFINITY HEADWEAR & APPAREL,
LLC APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. CV2012-1813-5]
V.
HONORABLE XOLLIE DUNCAN,
MICHAEL COUGHLIN JUDGE
APPELLEE
AFFIRMED
BRANDON J. HARRISON, Judge
This case primarily asks whether, under Arkansas or federal law, Michael Coughlin
unlawfully took electronic business data from Infinity Headwear & Apparel, LLC. The
circuit court answered “no” and granted summary judgment against Infinity’s first amended
complaint. Infinity appeals that decision, but we affirm the circuit court.
I. Background
Infinity markets sportswear, apparel, and other products. In May 2008, Coughlin
was hired as Infinity’s sales manager. Coughlin signed an acknowledgment of company
policies informing him that all work product was the sole property of Infinity and was
nontransferable. Coughlin did not sign a nondisclosure provision or a non-compete
agreement. In August 2012, Coughlin began working for Outdoor Cap Co., Inc., a larger
competitor of Infinity. Before leaving Infinity, Coughlin emailed files from Infinity’s
database to his personal email account. This database contained, among other things,
Cite as 2014 Ark. App. 609
Infinity’s sales plans, margins, marketing and operating costs, customer and supplier lists,
royalty negotiations, and future project ideas. Only employees could access the database.
In September 2012, Infinity sued Coughlin for breach of contract, violating the Theft
of Trade Secrets Act, breaching a duty of loyalty, and conversion. Infinity also sought
temporary injunctive relief against Coughlin. Coughlin responded to Infinity’s motion for
a temporary restraining order.
Following an evidentiary hearing, the circuit court denied Infinity’s motion for a
temporary restraining order because Infinity had not adequately protected its information as
the trade-secrets law requires. See Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991
S.W.2d 117 (1999).
After the temporary restraining order was denied, Infinity amended its complaint.
The first amended complaint dropped the trade-secrets claim but raised six claims: that
Coughlin (1) breached a contract, (2) violated the federal Computer Fraud and Abuse Act
(CFAA), (3) committed unlawful acts under an Arkansas statute dealing with
computer-related activity (Ark. Code Ann. § 5-41-202 (Repl. 2013)), (4) breached a duty of
loyalty, (5) converted tangible and intangible property, and (6) was liable for replevin.
Infinity sought, among other things, damages, injunctive relief, and an order directing that
Coughlin to return all of Infinity’s property. Coughlin answered the complaint.
Later, Coughlin moved for summary judgment against Infinity’s first amended
complaint. Infinity opposed the motion. Following a hearing, the circuit court granted
Coughlin’s motion. The court ruled that any contract between the parties was oral and that,
Cite as 2014 Ark. App. 609
in any event, there was no triable issue on whether a breach had occurred. On the
breach-of-loyalty claim, the court ruled that there was no such claim because no fiduciary
relationship existed between the parties; nor was one ever alleged. The court also found
that Coughlin was permitted to copy data to a personal computer so that he could work
remotely.
The court also ruled that there was no genuine issue of material fact in dispute on the
point that Coughlin deliberately destroyed or misused data and thus rejected the federal
CFAA claim. Regarding the state-law computer claim, the court entered judgment for
Coughlin because the statute unambiguously stated that there was no civil remedy available
for alleged unlawful acts regarding a computer. The court entered summary judgment on
the conversion claim because, according to it, our supreme court has not recognized a cause
of action for conversion of intangible things like Infinity’s data and, in any event, Coughlin
did not deprive Infinity of the data or its use.
On appeal, Infinity abandoned some of its claims, and here argues that the court erred
when it (1) granted Coughlin’s motion on the conversion claim, (2) held that no claim exists
for breach of the duty of loyalty, and (3) found that, to assert a claim under CFAA, a misuse
or destruction of data is required.
II. Discussion
A summary judgment is proper only when there are no genuine issues of material fact
to be litigated, and the party is entitled to judgment as a matter of law. Locke v. Cont’l Cas.
Co., 2013 Ark. App. 690. Once the moving party has established a prima facie entitlement
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to summary judgment, the opposing party must meet proof with proof and show the
existence of a material issue of fact. Id. We determine if summary judgment was
appropriate based on whether the evidentiary items presented by the moving party leave a
material fact unanswered, focusing our review not only on the pleadings, but also on the
affidavits and documents filed. Id. We view the evidence in the light most favorable to the
party against whom the motion was filed, and resolve all doubts and inferences against the
moving party. Id.
A. The Contract, Unlawful Acts Regarding a Computer, and Replevin Claims
As we have mentioned, Infinity’s first amended complaint pleaded, among other
things, breach of contract, a claim under Ark. Code Ann. § 5-41-202 (Repl. 2013), and
replevin. The circuit court entered summary judgment against these claims. Because
Infinity has not appealed those adverse rulings, we will not address them further.
B. The Breach-of-Loyalty Claim
Infinity argues that the circuit court erred in ruling that Arkansas does not recognize
a claim for breaching the duty of loyalty. Infinity correctly observes that no Arkansas
appellate court has addressed whether a company like it may pursue an independent,
freestanding breach-of-loyalty claim in the circumstances this case presents. We hold that
the circuit court was correct: Arkansas law does not recognize an independent
breach-of-loyalty claim on this case’s facts, and we decline to recognize one at this time.
To support its argument that Arkansas should (or does) recognize an independent
action for breach of common law duty of loyalty—even when no fiduciary relationship is
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alleged—Infinity cites Howard W. Brill, Arkansas Law of Damages § 19:1 (5th ed. 2004) and
Vigoro Industries., Inc. v. Crisp, 82 F.3d 785 (8th Cir. 1996). Professor Brill’s book states that
“[u]nder the common law, an employee owes a duty of loyalty to the employer. At a
minimum, that duty prohibits the employee from soliciting the employer’s customers for
himself or competing with his employer while still employed.” Arkansas Law of Damages,
supra. As authority for these propositions, Professor Brill cites the United States Court of
Appeals for the Eighth Circuit’s Vigoro Indus., Inc. v. Crisp opinion.
It is true that the Eighth Circuit, in Vigoro, discussed an employee’s “breach of
loyalty,” but it did so in the fiduciary-duty context. Id. at 788. Here, however, Infinity
does not allege that a fiduciary duty existed and that it was breached. Consequently, this
case is materially different from Vigoro.
C. The Federal Computer Fraud and Abuse Act Claim
A summary judgment against Infinity’s claim that Coughlin violated the Computer
Fraud and Abuse Act, 18 U.S.C. § 1030, was also justifiable. The circuit court ruled that
there was no evidence that Coughlin had deliberately destroyed or misused Infinity’s data.
Our analysis differs somewhat from the circuit court’s—it arguably took a failure-of-proof
approach while we take more of a statutory-interpretation approach—but the end result is
the same.
Some federal courts have stated that CFAA’s general purpose was to protect the
public against computer hackers (so-called electronic trespassers). Dresser-Rand Co. v. Jones,
957 F. Supp. 2d 610 (E.D. Pa. 2013); accord Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962,
Cite as 2014 Ark. App. 609
965 (D. Ariz. 2008); U.S. Bioservices Corp. v. Lugo, 595 F. Supp. 2d 1189, 1193 (D. Kan.
2009). Generally speaking, the legislation permits a person who “suffers damage or loss”
because of a violation of the CFAA to “maintain a civil action against the violator” for
damages and injunctive relief. 18 U.S.C. § 1030(g). The act defines “damage” as “any
impairment to the integrity or availability of data, a system, or information.” 18 U.S.C. §
1030(e)(8). “Loss” under the CFAA is defined broadly as “any reasonable cost to any
victim, including the cost of responding to an offense, conducting a damage assessment, and
restoring the data, program, system, or information to its condition prior to the offense, and
any revenue lost, cost incurred, or other consequential damages incurred because of
interruption of service.” 18 U.S.C. § 1030(e)(11). The loss suffered from a violation must
exceed $5,000 before a civil suit may be filed. 18 U.S.C. § 1030(c)(4)(A)(i)(I).
Infinity argues that triable issues of fact exist regarding Coughlin’s authorization to
access its computers. Specifically, it says that “the parties dispute material facts as to whether
Coughlin was authorized to use the computers of Infinity to send files to his personal email
account in preparation to join a competitor,” and “[t]hey further dispute whether he was
authorized to keep these files after leaving Infinity’s employ.” We disagree that genuine
issues of disputed material fact exist to prevent summary judgment on this record and
CFAA’s provisions.
Under CFAA, “an employee is authorized to access a computer when his employer
approves or sanctions his admission to that computer,” an employee is “without
authorization” when “he gains admission to a computer without approval,” and an
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employee “exceeds authorized access” “when he has approval to access a computer, but uses
his access to obtain or alter information that falls outside the bounds of his approved access.”
WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 204 (4th Cir. 2012) (internal
citation omitted).
There is no genuine dispute of material fact on whether Coughlin accessed a
computer without authorization or exceeded his authorized access so as to trigger CFAA’s
provisions. Infinity allowed its employees, like Coughlin, to use computers to access
company information of the sort at issue in this case. Infinity’s CFO testified that fourteen
people had access to the same information, termed “shared resources,” that Coughlin did
when he left Infinity. Using a unique password, each Infinity employee could access all of
Infinity’s shared data. The CFO further stated that “[i]t is possible that any or all employees
have the very same documents on their personal computers as Michael Coughlin did.”
Simply put, because Infinity allowed or permitted Coughlin to access and download
Infinity’s shared data, he cannot be liable under the CFAA. See WEC Carolina, 687 F.3d at
207; see also LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1128 (9th Cir. 2009); Amphenol
Corp. v. Paul, 993 F. Supp. 2d 100 (D. Conn. 2014). That he emailed this information to a
personal email account is not a material legal point. “Whatever happens to the data
subsequent to being taken from the computers . . . is not encompassed in the purview of the
CFAA.” Dresser-Rand Co., 957 F. Supp. 2d at 615. Another court has put the matter this
way in a similar factual context: “Because [the employee] was authorized to use [the
company’s] computers while he was employed at [the company], he did not access a
Cite as 2014 Ark. App. 609
computer ‘without authorization’ in violation of § 1030(a)(2) or § 1030(a)(4) when he
emailed documents to himself and to his wife prior to leaving [the company]. Nor did
emailing the documents ‘exceed authorized access,’ because [the employee] was entitled to
obtain the documents.” LVRC Holdings, 581 F.3d at 1129.
Given this case’s facts, we hold that the circuit court did not err in granting summary
judgment against Infinity’s CFAA claim.
D. The Conversion Claim
Regarding the conversion claim, our supreme court has held that the Theft of Trade
Secrets Act preempts tort claims for conversion of trade secrets. R.K. Enter., LLC v.
Pro-Comp Mgmt., Inc., 356 Ark. 565, 571–74, 158 S.W.3d 685, 688–90 (2004). The court
made clear that the Trade Secrets Act is the exclusive remedy for the alleged
misappropriation of trade secrets. In our view, this fact answers Infinity’s electronic-data
conversion claim. To the extent it asks us to create a new cause of action for the conversion
of electronic data, we decline to do so. The circuit court’s decision to reject Infinity’s
conversion claim as it relates to electronic data is affirmed.
This case was mostly about intangible information or business data that Infinity said
Coughlin took and used to unfairly disadvantage Infinity in the marketplace. But there is a
“tangible property” argument too. On the collateral argument that some tangible property
was unlawfully taken from Infinity, the circuit court’s order more or less granted it the relief
it sought: the court found that Coughlin did not possess “the information and property . .
. described in [Infinity’s] First Amended Complaint. Any such information and property
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that is currently in the possession of [Coughlin’s] counsel shall be returned to [Infinity’s]
counsel subsequent to the entry of this Order.” That order resolved any tangible-property
dispute given the case’s history. For example, during the temporary hearing in October
2012 that addressed the then-pending trade-secrets claim, it appears that the
tangible-property angle, to the extent one existed, was “worked out between the lawyers.”
And during the hearing on the motion for summary judgment in July 2013, Infinity’s lawyer
stated that “[t]he claim for replevin need not go forward assuming the Taylor Law Firm is
keeping the information appropriately.” Finally, Infinity’s brief points us to Doug Keller’s
affidavit as it argues its conversion claim on appeal, but that affidavit does not clearly delineate
what property was wrongfully taken and needed to be returned. The bottom line is that no
triable issue exists on the conversion claim.
III. Conclusion
The circuit court’s summary-judgment order is affirmed.
Affirmed.
GRUBER and WOOD, JJ., agree.
Keith, Miller, Butler, Schneider & Pawlik, PLLC, by: G. Nicholas Arnold and George
Rozzell, for appellant.
Taylor Law Partners, LLP, by: William B. Putnam, for appellee.