Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mackie v. Awtry

United States District Court, N.D. Illinois, Eastern Division

September 27, 2016

EMILY MACKIE and INSPIRED INTERIORS, INC., Plaintiffs,
v.
MASON AWTRY and MICHAEL MAYES, Defendants.

          MEMORANDUM OPINION AND ORDER

          ANDREA R. WOOD, UNITED STATES DISTRICT JUDGE

         Emily Mackie and her company, Inspired Interiors, Inc., (“Plaintiffs”) have brought this lawsuit claiming that Defendants Mason Awtry and Michael Mayes acquired a website with an address confusingly similar to that of the Inspired Interiors site and used that site to make false and defamatory statements about Mackie. Plaintiffs also allege that Awtry gained unauthorized access to Mackie's personal and business contacts, calendars, and messages on third-party storage sites. Plaintiffs seek relief for this alleged misconduct under various statutory and common law theories. Now before the Court is Awtry's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss five of the ten counts of Plaintiffs' Second Amended Complaint: Count One, a claim under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; Count Four, a claim under the Lanham Act, 15 U.S.C. 1125(a); Count Five, a claim under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d); Count Six, a claim under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS § 510/1 et seq.; and Count Ten, an Illinois common law claim for tortious interference with prospective business relations. For the reasons detailed below, the motion is denied.[1]

         BACKGROUND

         The following factual allegations are taken from Plaintiffs' Second Amended Complaint (Dkt. No. 31) and accepted as true for purposes of Defendants' motions to dismiss. Khorrami v. Rolince, 539 F.3d 782, 784 (7th Cir. 2008).

         Mackie is an interior designer and the owner of the Inspired Interiors design firm. (Second Am. Compl. ¶¶ 13, 14, Dkt. No. 31.) Mackie sought to acquire the domain name inspiredinteriors.com for her company's website. (Id. ¶ 18.) When she found that the name was already owned by a third party who wanted at least $5, 000 to relinquish it, she instead acquired the domain name inspiredinterior.com. (Id. ¶¶ 17-19, 21-23.) Mackie discussed purchasing the inspiredinteriors.com name with Awtry. (Id. ¶ 24.) Defendants acquired the inspiredinteriors.com domain name with knowledge of Mackie's desire to own the name and its similarity to the name of her company's website. (Id. ¶¶ 28-30, 41.)

         Defendants used the inspiredinteriors.com domain name to launch a website where they posted Mackie's picture along with content that described her as a liar and a cheater. (Id. ¶¶ 32, 35, 36, 38.) The website also contained statements that updates were “coming soon.” (Id. ¶ 39.) In addition, Awtry gained unauthorized access to Mackie's private third-party data storage accounts, thereby obtaining her private personal and business information. (Id. ¶¶ 49, 53-69.) Thereafter, a former employee told Mackie that he thought her company's website had been hacked, and a prospective business partner told Mackie that she had tried to visit her company's website but had found a different site instead. (Id. ¶¶ 25, 26.) Plaintiffs had a reasonable expectation of entering into and continuing a valid business relationship with that prospective partner. (Id. ¶ 221.) Defendants' conduct prevented Plaintiffs' legitimate expectancies from developing into valid business relationships. (Id. ¶ 228.) Plaintiffs hired information technology professionals to investigate the suspected hack of their information and to protect against future occurrences. (Id. ¶ 92.) They spent more than $5, 000 in information technology costs and attorney's fees in responding to Defendants' actions. (Id. ¶ 94.)

         Plaintiffs' Second Amended Complaint asserts ten claims for relief; Awtry challenges the sufficiency of five of those claims. Count One alleges that Awtry violated the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, by accessing Mackie's private information without authorization. In Count Four, Plaintiffs assert that Defendants intentionally used the inspiredinteriors.com domain name to create a false association with Plaintiffs' business, thereby violating the Lanham Act, 15 U.S.C. § 1125(a). Count Five alleges that Defendants' domain name use also violates the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d). In Count Six, Plaintiffs allege that the false statements about her on the inspiredinteriors.com website violated the Illinois Uniform Deceptive Trade Practices Act (“UDTPA”), 815 ILCS § 510/1. Count Ten asserts an Illinois common law tort claim for tortious interference with prospective business relations. Awtry seeks dismissal of these claims pursuant to Federal Rule of Civil Procedure 12(b)(6).

         DISCUSSION

         In assessing the sufficiency of a complaint under Rule 12(b)(6), this Court accepts all well-pleaded allegations in the complaint as true and views them in the light most favorable to the plaintiffs. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). The complaint must provide enough factual information to state a claim to relief that is plausible on its face and raises a right to relief above the speculative level. Doe v. Vill. of Arlington Heights, 782 F.3d 911, 914 (7th Cir. 2015).

         I. Computer Fraud and Abuse Act

         Awtry argues that Plaintiffs' CFAA claim is insufficient because it fails to allege any damages for which the statute allows recovery. The CFAA penalizes those who knowingly access computers without authorization and creates a private right of action for those who have suffered “damage or loss” as a result of a violation of its terms. 18 U.S.C. §§ 1030(a), (g). Some courts in this District have held that “damage or loss” is limited to diminution in the completeness or usability of the data on a computer system. See, e.g., Cassetica Software, Inc. v. Computer Scis. Corp., No. 09 C 0003, 2009 WL 1703015, at *3 (N.D. Ill. June 18, 2009). Plaintiffs' complaint alleges losses resulting only from the costs of investigation of the impact of the suspected hacking, measures to prevent future occurrences, and attorney's fees. Because Plaintiffs do not allege loss of or damage to their data or systems, Awtry asserts that their damages are not covered.

         The “damage or loss” analysis upon which Awtry relies has not yet been adopted by the Seventh Circuit and has not been universally accepted in this District, however. Numerous courts, citing the CFAA's explicit definition of “loss” as including “any reasonable cost to any victim, ” including “the cost of responding to an offense and conducting a damage assessment, ” have interpreted the provision to include the costs associated with conducting investigation and security assessments in response to a suspected violation of the CFAA. 18 U.S.C. § 1030(e)(11)); Pascal Pour Elle, Ltd. v. Jin, 75 F.Supp.3d 782, 791 (N.D. Ill. 2014); Farmers Ins. Exch. v. Auto Club Grp., 823 F.Supp.2d 847, 854-55 (N.D. Ill. 2011) (collecting cases). This Court finds the analysis of those cases to be persuasive and concludes that Plaintiffs need not allege damage to or unavailability of their data or systems to allege “loss” for CFAA purposes.

         The CFAA also restricts private rights of action to plaintiffs whose aggregated loss as a result of a violation is at least $5, 000. 18 U.S.C. § 1030(c)(4)(A)(i)(I). Awtry notes that Plaintiffs' complaint alleges expenditures for both information technology costs and attorney's fees; he contends that attorney's fees are not losses covered by the CFAA and that Plaintiffs have thus failed to allege loss above the threshold required to bring this action. But Plaintiffs' complaint alleges that they spent “more than $5, 000” on the aggregate of information technology costs and attorney's fees, and does not detail their expenditures. Their pleading thus does not allege that their expenditures exclusive of attorney's fees were less than the $5, 000 loss threshold amount. Accordingly, a conclusion that Plaintiffs' non-attorney losses fell short of $5, 000 may only be reached by drawing factual inferences in Awtry's favor, an improper practice at the motion to dismiss stage. The Court concludes that Count One of Plaintiffs' complaint states a sufficient CFAA claim for relief.

         II. Anticybersquatting ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.