Fla. Atl. Univ. Bd. of Trs. v. Parsont

• Decision Date: 09 June 2020
• Docket Number: CASE NO. 19-81644-CIV-ALTMAN
• Citation: 465 F.Supp.3d 1279
• Parties: FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Plaintiff, v. Neil PARSONT, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

465 F.Supp.3d 1279

FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Plaintiff,

v.Neil PARSONT, et al., Defendants.

CASE NO. 19-81644-CIV-ALTMAN

United States District Court, S.D. Florida.

Signed June 9, 2020

Amy S. Rubin, Fox Rothschild LLP, West Palm Beach, FL, Megan Anne McNamara, Fox Rothschild, LLP, West Palm beach, FL, for Plaintiff.

Richard Dean Rivera, Smith, Gambrell and Russell, Jacksonville, FL, Holly B. Lance, Pro Hac Vice, James L. Bikoff, Pro Hac Vice, Smith, Gambrell & Russell, LLP, Washignton, DC, for Defendants.

Before the Hon. Roy K. Altman:

ORDER AND PRELIMINARY INJUNCTION

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

While attending business school at Florida Atlantic University ("FAU" or the "University"), Neil Parsont started Owl Tutoring, which caters exclusively to FAU students. From its inception, however, Owl Tutoring used a logo and color scheme that, according to FAU, infringed the University's intellectual property. So, in 2019, FAU began investigating Owl Tutoring with an eye towards filing suit. During that investigation, FAU became aware of other, more serious problems with Parsont's business. Specifically, FAU learned that Parsont was collecting (and storing) its students’ login credentials—and that he was using those credentials to send marketing emails to University students and faculty.

In late 2019, FAU filed this lawsuit, in which—as relevant here—it alleges that Parsont accessed the University's email servers without authorization. Soon after the Complaint was filed—and to forestall FAU's plan to pursue a preliminary injunction—Parsont agreed, in a signed document, not to collect or store the login credentials of FAU's students. And, for a time, that agreement held. Unfortunately, in April of 2020, FAU learned that Owl Tutoring had used two of its students’ accounts to send mass-marketing emails to other FAU students and staff. Believing that Parsont had reneged on his previous agreement—and afraid that its computer systems were being accessed without its consent—FAU filed its motion for a preliminary injunction. This Order follows.

THE FACTS

The Plaintiff is FAU's Board of Trustees, the University's governing body. See Complaint [ECF No. 1] ¶ 10. The Defendants are Neil Parsont, a former FAU student, and his company, Owl Tutoring—the Florida corporation through which Parsont provides tutoring services to FAU students. See id. ¶¶ 12–14. Parsont started Owl Tutoring while he was a student in FAU's MBA program. See id. ¶¶ 49–54.

FAU filed this lawsuit in December of 2019. See generally Compl. In it, FAU pursues the following causes of action: (Count I) Federal Trademark Infringement; (Count II) Federal Trade Dress Infringement, False Designation of Origin, and Unfair Competition; (Count III) Common Law Trademark and Trade Dress Infringement; (Count IV) Tortious Interference with Business Relationships; (Count V) Violation of the Computer Fraud and Abuse Act (the "CFAA"); and (Count VI) Violation of the Florida Computer Abuse and Data Recovery Act (the "CADRA"). See id. at 22–29. As redress, FAU seeks a permanent injunction and monetary damages. See id. at 29–31.

The Complaint focuses on two separate aspects of the Defendants’ conduct. First , FAU claims that the Defendants have infringed its intellectual property by adopting a logo, mascot, and color scheme that mirrors its own trademarks. See id. ¶¶ 20–41. Second , FAU avers that the Defendants violated Florida and federal law by obtaining the login credentials of FAU students and then using those credentials to "gain unauthorized access to FAU's Computers and send mass marketing emails from the students’ email accounts." Id. ¶ 47; see also id. ¶¶ 42–48.

On April 20, 2020, FAU filed a Motion for Preliminary Injunction (the "Motion") [ECF No. 34]. In that Motion, FAU says that, after it caught the Defendants violating the CFAA and the CADRA in November of 2019, Parsont executed a declaration—in which he promised that his collection of FAU credentials "would immediately cease." Mot. at 2; see also Mot. Ex. 2 (the "Parsont Declaration") [ECF No. 34-2].

The Parsont Declaration is illuminating because it contains Parsont's own explanation of what happened. In it, for instance, he describes how the Owl Tutoring website had an "Invite Classmates" option, which—in exchange for a discount on tutoring services—asked students to supply Owl Tutoring with their FAU credentials. See id. ¶¶ 4–5. The Defendants would then use those credentials to log in to the students’ accounts and send marketing emails to other FAU students. See id. ¶¶ 6–8. Through the Declaration, Parsont promised to "remove[ ] the pop-up from Owl tutoring's website and disable[ ] the ‘Invite Classmates’ function on Owl Tutoring's ‘Study Feed’ platform." Id. ¶ 9. Parsont also agreed to turn over all the student credentials he had stored, see id. ¶ 10, and promised to cease collecting those credentials in the future, see id. ¶ 9. Satisfied with the terms of the Parsont Declaration, FAU agreed not to seek injunctive relief at that time.

But, in April of 2020, things changed. Specifically, on April 9, 2020, Parsont accessed two FAU students’ email accounts and, once in the FAU network, sent three mass-marketing emails to dozens of FAU students and staff. See Declaration of James Cooley [ECF No. 34-1] ¶¶ 23–37; Petition-Emails [ECF No. 51-3]; Composite Petition-Emails [ECF No. 51-4]; Change.org Petition [ECF No. 51-5]. Believing that these new emails violated both the terms of the Parsont Declaration and several provisions of federal and state law, FAU filed its Motion.

In their Response to the Motion [ECF No. 36], the Defendants allege that the April 2020 emails were sent, not by Parsont, but by the students themselves—by a sharing function accessible through Change.org. See id. at 2–3. In particular, the Defendants say, the students voluntarily sent the emails, while they were logged into their own FAU accounts on the Defendants’ computers, by completing a Change.org petition and forwarding the ensuing signature request to some of their friends. See id. In support, the Defendants have submitted affidavits from the two students¹ —in which those students attest, under oath, to having sent, voluntarily and from their own accounts, the mass-marketing emails in question. See Affidavit of Margaux Williams [ECF No. 39]; Affidavit of Man Mui [ECF No. 40].

But, at an evidentiary hearing on the Motion [ECF No. 52], the Defendants’ story quickly crumbled. Margaux Williams—one of the students—recanted the assertions she had made in her affidavit and explained that: (1) she did not send the Change.org petition herself; (2) Parsont had used her FAU login credentials to access her FAU email account and to send the petition to her contacts; (3) Parsont had stored her FAU login credentials on his Owl Tutoring computer; (4) Parsont would often access her FAU account outside of her presence, see, e.g. , April Text Messages [ECF No. 51-8]; and (5) Parsont had directed her to sign her affidavit (without edits) under the false pretense that doing so would "100% guarantee no one bothers [her] with other questions," see April 26, 2020 Email [ECF No. 51-9]. Towards the end of her testimony, Ms. Williams candidly expressed regret over her decision to sign her affidavit, explained that she had signed it because of Parsont's misrepresentation to her, and made clear that, if she had understood the import of her actions, she would not have signed it. Her testimony was clear, unwavering, and entirely corroborated by her emails with Parsont and her conversation with Dean Aubrey Pusey.²

Parsont, for his part, conceded as much as he could of Ms. Williams’ testimony. He admitted, for example, that: (1) he and his attorneys had drafted the affidavit for Ms. Williams; (2) he had promised Ms. Williams that she would have no further obligations after she signed the affidavit; and (3) he had instructed Ms. Williams to leave the affidavit open on her computer for awhile, to make fake edits to it, and to delete those fake edits before signing the document and returning it to him—presumably to trick the IT specialists into believing that she (and not he) had composed it. Notably, Parsont also admitted to accessing (on several occasions) Ms. Mui's FAU account outside of her presence.³ In fact, Parsont admitted that, in a rather cynical attempt at deception, he (and not Ms. Mui) had composed the somewhat-garbled, English-as-a-second-language syntax that pervades the Mui Affidavit. Ms. Mui is Chinese, and Parsont conceded that he had (again, rather cynically) tried to make the affidavit sound as if it had come from her. Parsont did, however, stand firm on one point: Mesdames Williams and Mui—he insisted—completed the Change.org petition and emailed it to their contacts.

Notably—and unlike Ms. Williams—Parsont's testimony was neither consistent nor particularly credible. The following recitation identifies, in no particular order, only the most poignant—and memorable—examples of Parsont's prevarications. He had a great deal of trouble, for example, remembering the contents of conversations he had with Ms. Williams and her father just a few days before. On the other hand, he was able to recall even the most minute details about the tutoring sessions at issue here—which occurred almost six weeks earlier. He told us, for instance, precisely when the students arrived and when they left, where they (and he) were sitting, what they discussed, and even the tilt and angle of the computer screens. No less probative, when asked about the terms of a policy he had admittedly signed several times before, he quibbled with opposing counsel about the meaning of the word "familiar." Moreover, despite operating a business that relies almost exclusively on the use of computers, he disclaimed any knowledge about even the most rudimentary internet security measures. At the same time, he was able to describe precisely how Change.org auto-populates...