                                Cite as 2014 Ark. App. 609



                   ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                     No. CV-13-1033



                                               Opinion Delivered   November 5, 2014
 INFINITY HEADWEAR & APPAREL,
 LLC                          APPEAL FROM THE BENTON
                   APPELLANT COUNTY CIRCUIT COURT
                              [NO. CV2012-1813-5]
 V.
                              HONORABLE XOLLIE DUNCAN,
 MICHAEL COUGHLIN             JUDGE
                     APPELLEE
                              AFFIRMED

                          BRANDON J. HARRISON, Judge


       This case primarily asks whether, under Arkansas or federal law, Michael Coughlin

unlawfully took electronic business data from Infinity Headwear & Apparel, LLC. The

circuit court answered “no” and granted summary judgment against Infinity’s first amended

complaint. Infinity appeals that decision, but we affirm the circuit court.

                                       I. Background

       Infinity markets sportswear, apparel, and other products. In May 2008, Coughlin

was hired as Infinity’s sales manager. Coughlin signed an acknowledgment of company

policies informing him that all work product was the sole property of Infinity and was

nontransferable.   Coughlin did not sign a nondisclosure provision or a non-compete

agreement. In August 2012, Coughlin began working for Outdoor Cap Co., Inc., a larger

competitor of Infinity. Before leaving Infinity, Coughlin emailed files from Infinity’s

database to his personal email account. This database contained, among other things,
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Infinity’s sales plans, margins, marketing and operating costs, customer and supplier lists,

royalty negotiations, and future project ideas. Only employees could access the database.

       In September 2012, Infinity sued Coughlin for breach of contract, violating the Theft

of Trade Secrets Act, breaching a duty of loyalty, and conversion. Infinity also sought

temporary injunctive relief against Coughlin. Coughlin responded to Infinity’s motion for

a temporary restraining order.

       Following an evidentiary hearing, the circuit court denied Infinity’s motion for a

temporary restraining order because Infinity had not adequately protected its information as

the trade-secrets law requires. See Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991

S.W.2d 117 (1999).

       After the temporary restraining order was denied, Infinity amended its complaint.

The first amended complaint dropped the trade-secrets claim but raised six claims: that

Coughlin (1) breached a contract, (2) violated the federal Computer Fraud and Abuse Act

(CFAA), (3) committed unlawful acts under an Arkansas statute dealing with

computer-related activity (Ark. Code Ann. § 5-41-202 (Repl. 2013)), (4) breached a duty of

loyalty, (5) converted tangible and intangible property, and (6) was liable for replevin.

Infinity sought, among other things, damages, injunctive relief, and an order directing that

Coughlin to return all of Infinity’s property. Coughlin answered the complaint.

       Later, Coughlin moved for summary judgment against Infinity’s first amended

complaint. Infinity opposed the motion. Following a hearing, the circuit court granted

Coughlin’s motion. The court ruled that any contract between the parties was oral and that,
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in any event, there was no triable issue on whether a breach had occurred. On the

breach-of-loyalty claim, the court ruled that there was no such claim because no fiduciary

relationship existed between the parties; nor was one ever alleged. The court also found

that Coughlin was permitted to copy data to a personal computer so that he could work

remotely.

       The court also ruled that there was no genuine issue of material fact in dispute on the

point that Coughlin deliberately destroyed or misused data and thus rejected the federal

CFAA claim. Regarding the state-law computer claim, the court entered judgment for

Coughlin because the statute unambiguously stated that there was no civil remedy available

for alleged unlawful acts regarding a computer. The court entered summary judgment on

the conversion claim because, according to it, our supreme court has not recognized a cause

of action for conversion of intangible things like Infinity’s data and, in any event, Coughlin

did not deprive Infinity of the data or its use.

       On appeal, Infinity abandoned some of its claims, and here argues that the court erred

when it (1) granted Coughlin’s motion on the conversion claim, (2) held that no claim exists

for breach of the duty of loyalty, and (3) found that, to assert a claim under CFAA, a misuse

or destruction of data is required.

                                               II. Discussion

       A summary judgment is proper only when there are no genuine issues of material fact

to be litigated, and the party is entitled to judgment as a matter of law. Locke v. Cont’l Cas.

Co., 2013 Ark. App. 690. Once the moving party has established a prima facie entitlement
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to summary judgment, the opposing party must meet proof with proof and show the

existence of a material issue of fact.    Id.   We determine if summary judgment was

appropriate based on whether the evidentiary items presented by the moving party leave a

material fact unanswered, focusing our review not only on the pleadings, but also on the

affidavits and documents filed. Id. We view the evidence in the light most favorable to the

party against whom the motion was filed, and resolve all doubts and inferences against the

moving party. Id.

       A. The Contract, Unlawful Acts Regarding a Computer, and Replevin Claims

       As we have mentioned, Infinity’s first amended complaint pleaded, among other

things, breach of contract, a claim under Ark. Code Ann. § 5-41-202 (Repl. 2013), and

replevin. The circuit court entered summary judgment against these claims. Because

Infinity has not appealed those adverse rulings, we will not address them further.

       B. The Breach-of-Loyalty Claim

       Infinity argues that the circuit court erred in ruling that Arkansas does not recognize

a claim for breaching the duty of loyalty. Infinity correctly observes that no Arkansas

appellate court has addressed whether a company like it may pursue an independent,

freestanding breach-of-loyalty claim in the circumstances this case presents. We hold that

the circuit court was correct:       Arkansas law does not recognize an independent

breach-of-loyalty claim on this case’s facts, and we decline to recognize one at this time.

       To support its argument that Arkansas should (or does) recognize an independent

action for breach of common law duty of loyalty—even when no fiduciary relationship is
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alleged—Infinity cites Howard W. Brill, Arkansas Law of Damages § 19:1 (5th ed. 2004) and

Vigoro Industries., Inc. v. Crisp, 82 F.3d 785 (8th Cir. 1996). Professor Brill’s book states that

“[u]nder the common law, an employee owes a duty of loyalty to the employer. At a

minimum, that duty prohibits the employee from soliciting the employer’s customers for

himself or competing with his employer while still employed.” Arkansas Law of Damages,

supra. As authority for these propositions, Professor Brill cites the United States Court of

Appeals for the Eighth Circuit’s Vigoro Indus., Inc. v. Crisp opinion.

       It is true that the Eighth Circuit, in Vigoro, discussed an employee’s “breach of

loyalty,” but it did so in the fiduciary-duty context. Id. at 788. Here, however, Infinity

does not allege that a fiduciary duty existed and that it was breached. Consequently, this

case is materially different from Vigoro.

       C. The Federal Computer Fraud and Abuse Act Claim

       A summary judgment against Infinity’s claim that Coughlin violated the Computer

Fraud and Abuse Act, 18 U.S.C. § 1030, was also justifiable. The circuit court ruled that

there was no evidence that Coughlin had deliberately destroyed or misused Infinity’s data.

Our analysis differs somewhat from the circuit court’s—it arguably took a failure-of-proof

approach while we take more of a statutory-interpretation approach—but the end result is

the same.

       Some federal courts have stated that CFAA’s general purpose was to protect the

public against computer hackers (so-called electronic trespassers). Dresser-Rand Co. v. Jones,

957 F. Supp. 2d 610 (E.D. Pa. 2013); accord Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962,
                                  Cite as 2014 Ark. App. 609


965 (D. Ariz. 2008); U.S. Bioservices Corp. v. Lugo, 595 F. Supp. 2d 1189, 1193 (D. Kan.

2009). Generally speaking, the legislation permits a person who “suffers damage or loss”

because of a violation of the CFAA to “maintain a civil action against the violator” for

damages and injunctive relief. 18 U.S.C. § 1030(g). The act defines “damage” as “any

impairment to the integrity or availability of data, a system, or information.” 18 U.S.C. §

1030(e)(8). “Loss” under the CFAA is defined broadly as “any reasonable cost to any

victim, including the cost of responding to an offense, conducting a damage assessment, and

restoring the data, program, system, or information to its condition prior to the offense, and

any revenue lost, cost incurred, or other consequential damages incurred because of

interruption of service.” 18 U.S.C. § 1030(e)(11). The loss suffered from a violation must

exceed $5,000 before a civil suit may be filed. 18 U.S.C. § 1030(c)(4)(A)(i)(I).

       Infinity argues that triable issues of fact exist regarding Coughlin’s authorization to

access its computers. Specifically, it says that “the parties dispute material facts as to whether

Coughlin was authorized to use the computers of Infinity to send files to his personal email

account in preparation to join a competitor,” and “[t]hey further dispute whether he was

authorized to keep these files after leaving Infinity’s employ.” We disagree that genuine

issues of disputed material fact exist to prevent summary judgment on this record and

CFAA’s provisions.

       Under CFAA, “an employee is authorized to access a computer when his employer

approves or sanctions his admission to that computer,” an employee is “without

authorization” when “he gains admission to a computer without approval,” and an
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employee “exceeds authorized access” “when he has approval to access a computer, but uses

his access to obtain or alter information that falls outside the bounds of his approved access.”

WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 204 (4th Cir. 2012) (internal

citation omitted).

       There is no genuine dispute of material fact on whether Coughlin accessed a

computer without authorization or exceeded his authorized access so as to trigger CFAA’s

provisions. Infinity allowed its employees, like Coughlin, to use computers to access

company information of the sort at issue in this case. Infinity’s CFO testified that fourteen

people had access to the same information, termed “shared resources,” that Coughlin did

when he left Infinity. Using a unique password, each Infinity employee could access all of

Infinity’s shared data. The CFO further stated that “[i]t is possible that any or all employees

have the very same documents on their personal computers as Michael Coughlin did.”

Simply put, because Infinity allowed or permitted Coughlin to access and download

Infinity’s shared data, he cannot be liable under the CFAA. See WEC Carolina, 687 F.3d at

207; see also LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1128 (9th Cir. 2009); Amphenol

Corp. v. Paul, 993 F. Supp. 2d 100 (D. Conn. 2014). That he emailed this information to a

personal email account is not a material legal point. “Whatever happens to the data

subsequent to being taken from the computers . . . is not encompassed in the purview of the

CFAA.” Dresser-Rand Co., 957 F. Supp. 2d at 615. Another court has put the matter this

way in a similar factual context: “Because [the employee] was authorized to use [the

company’s] computers while he was employed at [the company], he did not access a
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computer ‘without authorization’ in violation of § 1030(a)(2) or § 1030(a)(4) when he

emailed documents to himself and to his wife prior to leaving [the company]. Nor did

emailing the documents ‘exceed authorized access,’ because [the employee] was entitled to

obtain the documents.” LVRC Holdings, 581 F.3d at 1129.

       Given this case’s facts, we hold that the circuit court did not err in granting summary

judgment against Infinity’s CFAA claim.

       D. The Conversion Claim

       Regarding the conversion claim, our supreme court has held that the Theft of Trade

Secrets Act preempts tort claims for conversion of trade secrets. R.K. Enter., LLC v.

Pro-Comp Mgmt., Inc., 356 Ark. 565, 571–74, 158 S.W.3d 685, 688–90 (2004). The court

made clear that the Trade Secrets Act is the exclusive remedy for the alleged

misappropriation of trade secrets. In our view, this fact answers Infinity’s electronic-data

conversion claim. To the extent it asks us to create a new cause of action for the conversion

of electronic data, we decline to do so. The circuit court’s decision to reject Infinity’s

conversion claim as it relates to electronic data is affirmed.

       This case was mostly about intangible information or business data that Infinity said

Coughlin took and used to unfairly disadvantage Infinity in the marketplace. But there is a

“tangible property” argument too. On the collateral argument that some tangible property

was unlawfully taken from Infinity, the circuit court’s order more or less granted it the relief

it sought: the court found that Coughlin did not possess “the information and property . .

. described in [Infinity’s] First Amended Complaint. Any such information and property
                                  Cite as 2014 Ark. App. 609


that is currently in the possession of [Coughlin’s] counsel shall be returned to [Infinity’s]

counsel subsequent to the entry of this Order.” That order resolved any tangible-property

dispute given the case’s history. For example, during the temporary hearing in October

2012 that addressed the then-pending trade-secrets claim, it appears that the

tangible-property angle, to the extent one existed, was “worked out between the lawyers.”

And during the hearing on the motion for summary judgment in July 2013, Infinity’s lawyer

stated that “[t]he claim for replevin need not go forward assuming the Taylor Law Firm is

keeping the information appropriately.” Finally, Infinity’s brief points us to Doug Keller’s

affidavit as it argues its conversion claim on appeal, but that affidavit does not clearly delineate

what property was wrongfully taken and needed to be returned. The bottom line is that no

triable issue exists on the conversion claim.

                                                III. Conclusion

       The circuit court’s summary-judgment order is affirmed.

       Affirmed.

       GRUBER and WOOD, JJ., agree.

       Keith, Miller, Butler, Schneider & Pawlik, PLLC, by: G. Nicholas Arnold and George

Rozzell, for appellant.

       Taylor Law Partners, LLP, by: William B. Putnam, for appellee.
