Court allows class action plaintiffs to set up social media accounts to draw in other plaintiffs

Some former interns sued Gawker media under the Fair Labor Standards Act. The court ordered the parties to meet and confer about the content and dissemination of the proposed notice to other potential class members. Plaintiffs suggested, among other things, that they establish social media accounts (Facebook, Twitter, LinkedIn) titled “Gawker Intern Lawsuit” or “Gawker Class Action”. Gawker objected.

The court permitted the establishment of the social media accounts. It rejected Gawker’s argument that the lack of evidence that any former intern used social media would make the notice ineffective. The court found it “unrealistic” that the former interns did not maintain social media accounts.

Gawker also argued that social media to give notice would take control of the dissemination out of the court’s hands. Since users could comment on the posted content, Gawker argued, the court would be “deprived” of its ability to oversee the message. The court likewise rejected this argument, holding that its “role [was] to ensure the fairness and accuracy of the parties’ communications with potential plaintiffs – not to be the arbiter of all discussions not involving the parties that may take place thereafter.”

Mark v. Gawker Media LLC, No. 13-4347, 2014 WL 5557489 (S.D.N.Y. November 3, 2014)

Computer Fraud and Abuse Act claim dismissed where plaintiff failed to adequately plead loss or damage

Cost of investigating scope of information loss was not a “damage assessment” as contemplated by the CFAA.

BrokenlaptopPlaintiff sued defendant (a former employee) under the Computer Fraud and Abuse Act (“CFAA”) alleging that defendant intentionally and without authorization accessed plaintiff’s computers, intranet, and email system and sent plaintiff’s confidential customer information to his personal email account. Defendant allegedly used this information when he went to work for a competitor. Plaintiff also alleged that defendant attempted to conceal his actions by deleting the outgoing messages from the work email account.

Defendant moved to dismiss for failure to state a claim. The court granted the motion as to the CFAA claim.

The court found that plaintiff did not (and could not) claim defendant’s conduct caused “damage” within the meaning of the CFAA, because plaintiff did not allege any data were lost or impaired.

On the question of “loss” under the CFAA, the court found that plaintiff failed to allege any facts connecting its purported loss to an interruption of service, loss of data, or even a suspected loss of service or data. Although plaintiff attributed certain losses to “damage assessment and mitigation,” the court found it clear from the complaint that plaintiff’s “damage assessment” efforts were aimed at determining the scope of information defendant emailed to himself and disclosed to his new employer. Plaintiff did not allege it ever lost access to any of the information contained in defendant’s emails, notwithstanding defendant’s attempt to conceal his conduct by deleting the emails.

The court observed:

To be sure, assessing the extent of information illegally copied by an employee is a prudent business decision. But the cost of such an investigation is not “reasonably incurred in responding to an alleged CFAA offense,” because the disclosure of trade secrets, unlike destruction of data, is not a CFAA offense.

Accordingly, in this situation, the costs of investigating defendant’s conduct were not “losses” compensable under the CFAA.

SBS Worldwide, Inc. v. Potts, 2014 WL 499001 (N.D.Ill. February 7, 2014)

Facebook activity did not support claim that employee solicited former employer’s clients

Invidia, LLC v. DiFonzo, 2012 WL 5576406 (Mass.Super. October 22, 2012)

Defendant hairstylist signed an employment agreement with plaintiff that restricted her from soliciting any of plaintiff’s clients or customers for 2 years. Four days after she quit plaintiff’s salon, her new employer announced on Facebook that defendant had come on board as a stylist. One of defendant’s former clients left a comment to that post about looking forward to an upcoming appointment.

stylist

Either before or after she left plaintiff’s employ (the opinion is not clear about this), defendant had become Facebook friends with at least 8 of the customers she served while working for plaintiff.

Plaintiff sued for breach of contract and sought a preliminary injunction. The court denied the motion, in part because plaintiff failed to show evidence that defendant had violated the nonsolicitation provision.

The court found that it did not constitute solicitation of plaintiff’s customers to post a notice on Facebook that defendant was beginning work at a new salon. The court said it would have viewed it differently had plaintiff contacted a client to tell her that she was moving to a new salon, but there was no evidence of any such contact.

As for having clients as Facebook friends, the court noted that:

[O]ne can be Facebook friends with others without soliciting those friends to change hair salons, and [plaintiff] has presented no evidence of any communications, through Facebook or otherwise, in which [defendant] has suggested to these Facebook friends that they should take their business to her chair at [her new employer].

See also, TEKsystems, Inc. v. Hammernick.

Photo courtesy Flickr user planetc1 under this Creative Commons license

Employer not allowed to search for porn on employee’s home computer

In re Jordan, — S.W.3d —, 2012 WL 1098275 (Texas App., April 3, 2012)

Former employee sued her old company for subjecting her to a sexually hostile workplace and for firing her after she reported it. She claimed that she had never looked at pornography before she saw some on the computers at work. During discovery in the lawsuit, the company requested that employee turn over her home computer so that the company’s “forensic computer examiner” could inspect them.

The trial court compelled employee to produce her computer so that the forensic examiner could look for pornography in her web browsing history and email attachments. The employee sought mandamus review with the court of appeals (i.e., she asked the appellate court to order the lower court not to require the production of the hardware). The appellate held that she was entitled to relief, and that she did not have to hand over her computer.

The appellate court found that the lower court failed to consider an appropriate protective order that would limit inspection to uncover specifically-sought information in a particular form of production. In this case, the company had merely asked for the hardware without informing employee of the exact nature of the information sought. And the company provided no information about the qualifications of its forensic examiner. Though the trial court tried to limit the scope of the inspection with carefully chosen wording, the appellate court found that was not sufficient to protect the employee from the risks associated with a highly intrusive search.

Photo credit: Jakob Montrasio (CC BY 2.0)

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