14-547-cv
Amphenol Corp. v. Paul

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 2nd day of February, two thousand fifteen.

PRESENT:           JOSÉ A. CABRANES,
                   CHESTER J. STRAUB,
                   DEBRA ANN LIVINGSTON,
                                 Circuit Judges.


AMPHENOL CORPORATION,

                   Plaintiff-Appellant,

                            v.                                       No. 14-547-cv

RICHARD PAUL,

                   Defendant-Appellee,

TE CONNECTIVITY, LTD.,

                   Defendant.


FOR PLAINTIFF-APPELLANT:                             JAMES L. BEAUSOLEIL, JR. (Robert M.
                                                     Palumbos, on the brief) Duane Morris LLP,
                                                     Philadelphia, PA.

FOR DEFENDANT-APPELLEE:                               LINDA L. MORKAN (Nuala E. Droney, Ian T.
                                                      Clarke-Fisher, on the brief), Robinson & Cole
                                                      LLP, Hartford, CT.
       Appeal from orders of February 21, 2013 and January 24, 2014 of the United States District
Court for the District of Connecticut (Alfred V. Covello, Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders of the District Court be and hereby are
AFFIRMED.

        Plaintiff-appellant Amphenol Corporation appeals the District Court’s January 24, 2014
orders granting summary judgment to defendant Richard Paul and denying plaintiff’s motion for
attorney’s fees, as well as a prior discovery order of February 21, 2013 applicable to subpoena
recipient TE Connectivity, Ltd (“TE”). Amphenol had asserted multiple claims against its former
employee Paul for breach of contract, misappropriation of trade secrets, breach of fiduciary duty,
unfair competition, and violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030
(“CFAA”), all arising from misconduct allegedly committed when Paul resigned from Amphenol
and accepted employment with TE. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

        We review de novo an order granting summary judgment and “resolv[e] all ambiguities and
draw[] all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). “A
defendant is entitled to summary judgment where the plaintiff has failed to come forth with
evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential
element of a claim on which the plaintiff[] bear[s] the burden of proof.” Selevan v. N.Y. Thruway
Auth., 711 F.3d 253, 256 (2d Cir. 2013) (quotation marks and alterations omitted). “[C]onclusory
statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v.
New York, 316 F.3d 93, 100 (2d Cir. 2002). Because Amphenol’s motion for attorney’s fees turns
upon an interpretation of a governing contract, we also review the District Court’s denial of fees de
novo. Carco Grp., Inc. v. Maconachy, 718 F.3d 72, 79-80 (2d Cir. 2013).

         On appeal, plaintiff challenges the dismissal of its breach of contract claim on the grounds
that Paul failed to return to Amphenol all confidential information in his possession pursuant to the
Intellectual Property Agreement (“IPA”) and that Paul breached the non-compete provisions of the
IPA and other agreements (the “Shareholder’s Agreements”) in the course of his employment with a
competitor. However, Amphenol’s Amended Complaint did not allege that he breached the IPA by
failing to return documents to Amphenol. Rather, it alleged only that he breached the IPA and
Shareholder’s Agreements by engaging or attempting to engage in the development of competitive
products, and by disclosing or using its confidential information. See Dist. Ct. Dkt., ECF #36,
Amended Complaint, at ¶¶ 85-90 (Jun. 4, 2012). Upon de novo review of the record, we agree with
the District Court that Amphenol has failed to demonstrate that Paul engaged in any of these alleged
violations. As the District Court explained, although the email traffic suggested that Paul “may not
have been abundantly cautious,” the evidence “fail[ed] to demonstrate that he directly, or even
indirectly, engaged in the production, development, sale or distribution of the [TE or Deutsch]
products” allegedly competitive with Amphenol products. Amphenol Corp. v. Paul, 993 F. Supp. 2d
100, 107 (D. Conn. 2014).
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        We also affirm, upon de novo review, the District Court’s holding with respect to Amphenol’s
CFAA claim. The CFAA creates a civil cause of action against a defendant who “intentionally
accesses a computer without authorization or exceeds authorized access, and thereby obtains . . .
information from any protected computer” or a defendant who “knowingly and with intent to
defraud, accesses a protected computer without authorization or exceeds authorized access, and by
means of such conduct furthers the intended fraud and obtains anything of value [in excess of
$5,000].” 18 U.S.C. § 1030(a)(2)(c) and (a)(4).

         Amphenol alleges that Paul violated the CFAA by “exceed[ing] his authorized access”
pursuant to the IPA when, prior to his departure from Amphenol, Paul downloaded electronic
material that “had no pertinence whatsoever to his specific job duties.”1 Appellant’s Br. at 41.
Amphenol has failed, however, to present sufficient, specific evidence regarding what data, if any,
fell outside the scope of Paul’s authorization at the time he downloaded it. Rather, the limited
evidence Amphenol cites in support of its CFAA claim—in the form of certain conclusory
assertions in an Amphenol executive’s affidavit—may instead undermine plaintiff’s position by
emphasizing that, on the contrary, Paul “had full access to strategic confidential company
information.” App’x at 86; Appellant’s Reply Br. at 21. Because Amphenol’s CFAA claim rests on
mere “conclusory statements,” the District Court properly granted summary judgment on this cause
of action. See Davis, 316 F.3d at 100.

        The District Court also properly denied Amphenol’s motion for attorney’s fees. Interpreting
the operative section of the IPA as a whole, see Postlewaite v. McGraw-Hill, Inc., 411 F.3d 63, 67 (2d
Cir. 2005), we conclude that Paul would only have been obligated to reimburse Amphenol’s
attorney’s fees “in the event of a breach by [Paul],” see App’x at 46. Having already determined that
Amphenol did not sufficiently establish the condition precedent—i.e., a breach of contract by
Paul—we accordingly conclude that Amphenol was not contractually entitled to attorney’s fees.

        Finally, we affirm the District Court’s ruling on Amphenol’s motion to compel discovery,
which we review for abuse of discretion. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir.
2010). A district court abuses its discretion “if it based its ruling on an erroneous view of the law or
on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located
within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal
citations and quotation marks omitted). In light of the District Court’s comprehensive in camera
review of sensitive business material, and mindful of its “broad latitude to determine the scope of

1

          The District Court’s opinion and the parties’ briefing devoted considerable attention to the issue of
whether the CFAA applies to an authorized individual’s later misappropriation or misuse of a former
employer’s confidential information. See Amphenol Corp., 993 F. Supp. 2d at 108-10; Appellant’s Br. at 41-45;
Appellee’s Br. at 37-44. On appeal, however, Amphenol has specifically disclaimed any misuse theory. See
Appellant’s Reply Br. at 22 (“Amphenol has never argued that the CFAA violation at issue rests upon Paul’s
later misuse of confidential information”). Accordingly, we need not reach the question of the CFAA’s
application to misuse or misappropriation claims here.

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discovery,” we find no reason to disturb its discovery order here. EM LTD. v. Republic of Argentina,
695 F.3d 201, 207 (2d Cir. 2012).

                                          CONCLUSION

       We have considered all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the District Court’s orders.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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