GLOBAL POLICY PARTNERS, LLC v. YESSIN
| Decision Date | 24 November 2009 |
| Docket Number | No. 1:09cv859.,1:09cv859. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | GLOBAL POLICY PARTNERS, LLC, et al., Plaintiffs, v. Brent YESSIN, Defendant. |
Bernard Joseph Dimuro, Stacey Rose Harris, Dimuro Ginsberg & Mook PC, Alexandria, VA, for Plaintiffs.
Charles Michael Sims, LeClair Ryan PC, Richmond, VA, C. Matthew Haynes, LeClair Ryan PC, Alexandria, VA, for Defendant.
This is a dispute between feuding business partners who are—not incidentally— also feuding marriage partners in the process of dissolving their marriage, as well as their business relationship. According to the complaint, the husband accessed and intercepted his wife's business e-mail, without authorization, in order to review messages between the wife and her attorney related to the pending contested divorce proceeding. Accordingly, plaintiffs allege that defendant is liable under (i) the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030(a), (ii) the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2511, (iii) the Stored Communications Act (SCA), 18 U.S.C. § 2701, and (iv) three Virginia statutes (Va.Code § 19.2-62(A), Va.Code § 18.2-152.3, and Va.Code § 18.2-152.5) criminalizing unauthorized access to, or interception of, communications. Defendant seeks threshold dismissal of these claims pursuant to Rule 12(b)(6), Fed.R.Civ.P., on the grounds that (i) any access to the communications was authorized, and (ii) he did not intercept the communications within the meaning of the relevant statutes. Alternatively, he requests a stay of this case pending the outcome of a declaratory judgment proceeding currently pending in a Florida court.
The matter was fully briefed, and oral argument was heard on October 9, 2009, following which a ruling issued from the bench, which ruling was subsequently memorialized by Order. This Memorandum Opinion elucidates the reasons for the ruling on defendant's motion.
The individual plaintiff, Katherine Yessin, is a lawyer and a citizen of Virginia. She is currently married to defendant Brent Yessin, a citizen of Florida who is also a lawyer. Mrs. and Mrs. Yessin are in the midst of a contested divorce. The second plaintiff is Global Policy Partners, LLC ("GPP") a limited liability company established under the laws of the state of Florida and engaged in the business of lobbying and business consulting. Plaintiffs allege that Mr. and Mrs. Yessin were two of three managers of GPP within the meaning of Florida law.2 The third manager, Jeffrey Weiss, is not a party to this action, but plaintiffs allege that he assented to bringing suit on GPP's behalf. It appears from the complaint that at the time of the alleged conduct, all three were managers of the company. Mr. Yessin now claims that he is the sole manager of GPP. In support of this claim, he submitted documents filed with the State of Florida purporting to remove Mrs. Yessin and Mr. Weiss as managers. Plaintiffs assert that these documents are fraudulent.3 Plaintiffs further claim that GPP's policy during the relevant time involved "strictly protecting and maintaining the confidential and proprietary nature of its trade secrets, software, documents, communications, and services with passwords and other safeguards." Compl. ¶ 10. Moreover, plaintiffs allege that Mr. Yessin did not have an account on the GPP computer server and thus lacked any authorization to access it.
According to the complaint, Mr. Yessin, on or about the date of their separation, May 24, 2009, began to log onto Mrs. Yessin's GPP e-mail account. The complaint does not address how this access was accomplished, but subsequent briefing suggests that he did so using the password that Mrs. Yessin had inadvertently stored on his computer. Plaintiffs allege that Mr. Yessin, in accessing Mrs. Yessin's GPP account, read her emails, which included some that she had not yet viewed. These messages included sensitive communications with her attorney concerning strategy in the divorce proceeding. Mrs. Yessin alleges she became suspicious that Mr. Yessin was accessing her e-mail account when he began using phrases during settlement negotiations that she and her divorce lawyer had used in their e-mail exchanges. Accordingly, Mrs. Yessin alleges she changed her password on June 25, 2009, and further alleges that Mr. Yessin then attempted, unsuccessfully, to obtain the new password from GPP's information technology specialist. Upon learning of these efforts, plaintiffs' counsel sent Mr. Yessin a letter demanding that he cease any efforts to access Mrs. Yessin's e-mail accounts. Plaintiffs allege that Mr. Yessin nonetheless continued to attempt to access Mrs. Yessin's e-mail account.
Thereafter, plaintiffs brought this suit against Mr. Yessin on July 31, 2009. They allege that through his conduct, Mr. Yessin has impaired the value of the GPP computer system and forced them to incur substantial costs in order to secure the network. Mrs. Yessin also alleges that she has suffered a loss of bargaining power in the ongoing divorce proceedings as a result of Mr. Yessin's conduct. Accordingly, plaintiffs seek relief under (i) the CFAA (Counts 1 and 2), (ii) the ECPA (Counts 3, 4, and 5), (iii) the SCA (Counts 6 and 7), (iv) Va.Code § 19.2-62(A) (Counts 8, 9, 10 and 11), (v) Va.Code § 18.2-152.3 (Count 12), and (vi) Va.Code § 18.2-152.5 (Count 13). Mr. Yessin filed his motion to dismiss on September 5, 2009, alleging that plaintiffs have failed to state valid claims upon which relief may be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P. More specifically, Mr. Yessin argues (i) that he is a manager of GPP and as such he was authorized to access the computer network in question, (ii) that plaintiffs have not alleged facts sufficient to create a plausible inference that he "intercepted" communications within the meaning of governing federal and state laws, (iii) that they have not alleged any facts suggesting that Mr. Yessin obtained, embezzled, or converted property as required for one of the claims arising under Virginia law, (iv) that there are no factual allegations giving rise to plausible inferences that Mr. Yessin viewed employment or financial information as required under one of the Virginia law claims, and (v) that Mrs. Yessin lacks standing to bring suit on behalf of GPP.4 Moreover, even assuming, arguendo, that valid claims have been stated, Mr. Yessin argues that this case should be stayed pending the outcome of a declaratory judgment action in Florida.
The Supreme Court has recently and sensibly declared that threshold dismissal pursuant to Rule 12(b)(6) must be granted unless the complaint "contains sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). It follows that to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. And in this respect, it is also true that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. (emphasis added). Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., quoted in Walker v. Prince George's County, Md., No. 08-1462, 2009 WL 2343614, at *5 (4th Cir. July 30, 2009) (O'Connor, J.). Accordingly, Mr. Yessin's motion to dismiss must be granted if the complaint does not allege a sufficient factual basis to create a plausible inference that plaintiffs are entitled to relief.
Counts 1, 2, 6, 7, and 12 of the complaint allege civil liability on the ground that Mr. Yessin acted without authority or exceeded his authority in accessing or using a computer or computer network in violation of the CFAA, 18 U.S.C. § 1030(a), the SCA, 18 U.S.C. § 2701(a), Va.Code § 18.2-152.3, and Va.Code § 18.2-152.5. The CFAA prohibits, in pertinent part, "knowingly accessing a computer without authorization or exceeding authorized access" and thereby (i) obtaining information or (ii) obtaining any thing of value. 18 U.S.C. § 1030(a)(2)(C); § 1030(a)(4). The SCA prohibits "intentionally accessing without authorization a facility through which electronic communications are provided" or doing so in excess of authorization, and, in so doing, obtaining access to an electronic communication while it is in electronic storage. 18 U.S.C. § 2701(a). The relevant Virginia statute prohibits using a computer network "without authority" and thereby obtaining, embezzling, or converting property.5 Va. Code § 18.2-152.3. Thus, common to all of these statutes is a prohibition against unauthorized access to a computer network, a violation of which triggers civil liability.
Mr. Yessin argues that these counts must be dismissed because there is no dispute that he was a manager of GPP during the relevant time period, and that as a manager, he was authorized as a matter of Florida law to access Mrs. Yessin's GPP e-mail account. In essence, he contends that Florida law allows a manager of a limited liability corporation unfettered access to the LLC's computer network, including the password-protected e-mail accounts of his co-managers. This argument fails.
Courts have generally and sensibly concluded that the scope of an individual's authorization to access a computer network is analyzed "on the basis of the expected norms of intended use." United States v. Phillips, 477 F.3d 215, 219 (5th Cir.2007).6 In other words, authorization to access a computer network may not, in some cases, turn simply on a person's status or position because the "expected...
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