                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-1359


TECH SYSTEMS, INC.,

                 Plaintiff - Appellee,

          v.

LOVELEN PYLES,

                 Defendant – Appellant,

          and

JOHN AND JANE DOES 1-10,

                 Defendants.



                               No. 13-2098


TECH SYSTEMS, INC.,

                 Plaintiff - Appellee,

          v.

LOVELEN PYLES,

                 Defendant – Appellant,

          and

JOHN AND JANE DOES 1-10,

                 Defendants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12-cv-00374-GBL-JFA)


Submitted:   October 27, 2015         Decided:   November 18, 2015


Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Eric H. Zagrans, ZAGRANS LAW FIRM LLC, Cleveland, Ohio, for
Appellant.   Eric Scott Crusius, Stephen P. Ramaley, MILES &
STOCKBRIDGE P.C., Tysons Corner, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Lovelen Pyles appeals the district court’s orders denying

her motion under Fed. R. Civ. P. 50 for judgment as a matter of

law and granting attorney’s fees in favor of Tech Systems, Inc.

(“TSI”).     Pyles asserts that the district court erred in denying

her motion as to violations of the Computer Fraud and Abuse Act

(“CFAA”), 18 U.S.C. § 1030 (2012); the Electronic Communications

Privacy    Act,    18     U.S.C.    § 2701    (2012);    and    her    breach    of

fiduciary duty.         She also contends that the district court erred

in   instructing    the    jury    on   punitive    damages    and    in   granting

TSI’s motion for attorney’s fees.             We affirm.



                                         I.

      “We review de novo the legal conclusions upon which the

district court’s denial of judgment as a matter of law were

premised.”     Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 164

(4th Cir. 2012).           “If, viewing the facts in the light most

favorable to the non-moving party, there is sufficient evidence

for a reasonable jury to have found in [the non-moving party’s]

favor, we are constrained to affirm the jury verdict.”                     Lack v.

Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th Cir. 2001).

                                         A.

      “Although    the     CFAA    is   primarily   a   criminal      statute,   it

permits private parties to bring a cause of action to redress a

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violation   of    the     CFAA . . . .”             A.V.    ex     rel.   Vanderhye        v.

iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009).                                The civil

suit may be brought in limited circumstances by “[a]ny person

who suffers damage or loss” as a result of a CFAA violation.                                18

U.S.C. § 1030(g).             As relevant here, the violation must have

caused “loss to 1 or more persons during any 1-year period . . .

aggregating       at     least        $5,000        in     value.”            18        U.S.C.

§ 1030(c)(4)(A)(i)(I),          (g).      A       person    violates      the       CFAA   by

“intentionally access[ing] a computer without authorization or

exceed[ing]      authorized         access,       and    thereby    obtain[ing] . . .

information       from        any      protected          computer,”          18        U.S.C.

§ 1030(a)(2)(C),         or    “intentionally            access[ing]      a        protected

computer without authorization, and as a result of such conduct,

caus[ing] damage and loss,” 18 U.S.C. § 1030(a)(5)(C).

     This     court       narrowly       interprets          the     terms          “without

authorization” and “exceeds authorized access.”                           WEC Carolina

Energy Sols. LLC v. Miller, 687 F.3d 199, 206 (4th Cir. 2012).

“[A]n employee . . . accesses a computer ‘without authorization’

when [s]he gains admission to a computer without approval.”                                Id.

at 204.     “[A]n employee ‘exceeds authorized access’ when [s]he

has approval to access a computer, but uses [her] access to

obtain or alter information that falls outside the bounds of

[her]   approved       access.”        Id.         “Notably,       neither         of   these



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definitions extends to the improper use of information validly

accessed.”        Id.

      Pyles argues that the CFAA did not apply to her actions

during      her    employment        with    TSI    because          she,     as    the    human

resources director, had full access to the computer information.

Under the WEC Carolina framework, we disagree.                                Pyles accessed

both the main computer network and financial servers without

authorization or in excess of her authority.                           Additionally, upon

termination        of    her    employment,        Pyles     accessed         her    corporate

email       account         and       company-issued                 Blackberry           without

authorization.           Moreover, TSI demonstrated damage that resulted

in   losses       from   Pyles’      actions.         Thus,      there       was    sufficient

evidence for a reasonable jury to have found in TSI’s favor.

                                              B.

        A   person       violates     the     ECPA     by:            “(1)     intentionally

access[ing] without authorization a facility through which an

electronic         communication            service        is        provided;       or      (2)

intentionally           exceed[ing]     an     authorization             to    access       that

facility; and thereby obtain[ing], alter[ing], or prevent[ing]

authorized access to a wire or electronic communication while it

is in electronic storage in such system.”                       18 U.S.C. § 2701(a).

        Pyles     limits       her   ECPA    challenge          to    whether       she    acted

“without authorization” or “exceed[ed] [her] authorization” in



                                              5
accessing TSI’s computer system. *               Pyles contends not only that

TSI granted her permission to access the computer system, but

also that her actions did not go outside the bounds of that

permission.       We disagree.

      Authorization is a matter of permission and dependent on

its   scope,     not    on     whether    information        validly        accessed    was

properly    used.        See    WEC    Carolina,       687   F.3d     at    204.     Here,

although Pyles was permitted to use TSI’s email to carry out her

duties as human resources manager, she was not authorized to

access    the    server      through     which   the    email    functioned        in   the

manner she did here.            Additionally, her authorization to access

the Blackberry terminated with her employment.                         Thus, there was

sufficient evidence for a reasonable jury to have found in TSI’s

favor.



                                           II.

      In Virginia, to establish a breach of fiduciary duty, a

plaintiff       must   show    that    (1) the     defendant         owed    a   fiduciary

duty,     (2) the      defendant      breached    that       duty,    and    (3) damages

resulted     from      the     breach.       Informatics        Applications         Grp.,



      *Accordingly, Pyles has abandoned any challenge related to
the other elements of her ECPA violation.      Fed. R. App. P.
28(a)(8)(A); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999).



                                            6
Inc. v. Shkolnikov, 836 F. Supp. 2d 400, 424 (E.D. Va. 2011).

“[A]n employee . . . owes a fiduciary duty of loyalty to [her]

employer during [her] employment.”                 Williams v. Dominion Tech.

Partners,      LLC,     576   S.E.2d    752,   757    (Va.    2003).      This     duty

“prohibits the employee from acting in a manner adverse to his

employer’s interest.”           Hilb, Rogal & Hamilton Co. of Richmond v.

DePew, 440 S.E.2d 918, 921 (Va. 1994).                    Moreover, “termination

does not automatically free a[n] . . . employee from his or her

fiduciary obligations” if the action was “founded on information

gained during the relationship.”               Today Homes, Inc. v. Williams,

634    S.E.2d    737,     744    (Va.     2006)    (internal      quotation      marks

omitted).

       Pyles concedes that she owed TSI a fiduciary duty under

Virginia law.         She asserts that the district court improperly

denied her motion to strike the breach-of-fiduciary-duty claim

because, she argues, the information she revealed was not the

kind   that     would    give    an    advantage     to   a   competing     business.

Nevertheless, the record reveals that she breached her duty by

acting    in    bad     faith    with     confidential        information    and    by

disregarding      TSI’s       interests   in   accessing       the   email    server,

resulting in damages to TSI.                Accordingly, the district court

properly rejected this claim.




                                           7
                                             III.

       Finally,       Pyles     challenges             the     district       court’s       jury

instructions       allowing     for       punitive         damages      and   its     award    of

attorney’s fees in TSI’s favor.                      It is a “settled rule” that we

will not consider issues raised for the first time on appeal

absent “fundamental error or a denial of fundamental justice.”

In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014) (internal

quotation marks omitted).                  “Fundamental error is more limited

than the plain error standard that [this Court] appl[ies] in

criminal cases.”        Id. (internal quotation marks omitted).                             Thus,

this court has used the plain error standard “as something of an

intermediate step in a civil case.”                           Id. at 286.            “[W]hen a

party in a civil case fails to meet the plain-error standard, we

can    say    with     confidence          that        [s]he      has    not        established

fundamental error.”           Id.

       To establish plain error, Pyles must show that:                                (1) there

was    an    error,    (2)    the        error       was   plain,      and    (3) the       error

affected her substantial rights.                      United States v. Robinson, 627

F.3d   941,    954    (4th     Cir.       2010).           Even   if    Pyles       makes   this

showing,     “we   retain      discretion            to    deny   relief;      plain     errors

should only be corrected where not doing so would result in a

miscarriage of justice or would otherwise seriously affect the

fairness,       integrity           or      public           reputation        of      judicial



                                                 8
proceedings.”            Id.     (alterations,         citation,          and     internal

quotation marks omitted).

       We have refused to undertake plain error review, however,

where    a    party    “failed    to    make     its    most      essential       argument

anywhere in its briefs . . . :                   it never contended that the

district      court    fundamentally       or   even    plainly      erred.”          In   re

Under Seal, 749 F.3d at 292; see Makdessi v. Fields, 789 F.3d

126,    132   (4th     Cir.    2015)   (refusing       plain      error   review       where

appellant failed to assert that elements of such review were

satisfied).      Failing to argue either, Pyles has abandoned these

claims.       Moreover, Pyles’ jurisdictional argument is meritless

because the court properly exercised subject-matter jurisdiction

over    her   federal     and    state-law      claims      pursuant      to    28    U.S.C.

§ 1331 (2012) (federal question), and 28 U.S.C. § 1367(a) (2012)

(supplemental jurisdiction).

       Accordingly, we affirm the district court’s orders.                                 We

dispense      with     oral     argument     because        the    facts        and   legal

contentions      are    adequately     presented       in    the    materials         before

this court and argument would not aid the decisional process.



                                                                                  AFFIRMED




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