In 2016, several states enacted laws that were designed, in varying degrees, to limit non-competes, including Illinois, Utah, Connecticut and Rhode Island. Which states are most likely to do the same in 2017?

Idaho:  A bill proposed in January, House Bill 61, would amend an existing Idaho law that has made it easier for employers to enforce non-competes against the highest paid 5% of their employees and independent contractors.  The bill would alleviate the burden placed on such “key” personnel by the existing law by, among other things, eliminating the rebuttable presumption of irreparable harm to the employer that is automatically established if a court finds that the key employee or independent contractor is in breach of his or her non-compete.

Maryland:  On January 27, 2017, Maryland lawmakers proposed House Bill 506, which would render null and void any non-compete provision in an employment contract that restricts the ability of an employee who earns equal to or less than $15.00 per hour or $31,200 annually to enter into employment with a new employer or to become self-employed in the same or similar business. The bill was adopted by Maryland’s House and is now in its Senate.

Massachusetts:  On January 20, 2017, lawmakers proposed Bill SD.1578, which would impose significant limitations on the reach of non-competes in Massachusetts.  If enacted, the proposed law would, among other things:  limit the temporal scope of non-compete agreements to 12 months from the date of termination of employment (or 2 years if the employee has breached his or her fiduciary duty or has unlawfully taken property belonging to the employer); prohibit non-competes against certain categories of workers, including nonexempt employees, students, employees terminated without cause, and employees 18 years or younger; and require non-competes to be supported by consideration independent from the continuation of employment.

Nevada:  A bill proposed in February, A.B. 149, would make a non-compete “void and unenforceable” in Nevada if it prohibits an employee from seeking employment with or becoming employed by a competitor for a period of more than 3 months after the employee’s termination, which is an extremely short duration in the non-compete realm.  Willful violators of the law would be guilty of a gross misdemeanor punishable by a fine of not more than $5,000; in addition, the Nevada Labor Commissioner may impose an administrative penalty of up to $5,000 for each such violation.

New York:  On October 25, 2016, New York Attorney General Eric Schneiderman announced that he planned to introduce legislation in 2017 that would, among other things, prohibit the use of non-competes for low-wage workers and require employers to pay employees additional consideration if they sign non-compete agreements.  While he has not yet introduced this bill, Schneiderman has given no indication that he will backtrack from his 2016 announcement.

Washington:  After a bill that would have, among other things, limited non-competes to one year faced strident opposition from businesses, Washington legislators penned a more watered-down version of a bill designed to make non-compete agreements more transparent.  Specifically, Bill HB 1967, which passed the Washington House on March 8 and is now in the Senate, requires that all the terms of a non-compete contract be disclosed in writing before the employee signs the contract. While this revised bill is far less restrictive than other proposed bills, if enacted, it will nevertheless be beneficial to Washington employees.

Stay Tuned: The Maryland and Washington bills have the most traction, as they have already passed the states’ Houses.  Nevertheless, at this point it is simply too early to predict whether the law proposed in those states or elsewhere will garner enough support to clear the necessary legislative and executive hurdles to be enacted.  In the meantime, employers across all states should stay tuned and continue to draft narrowly tailored and enforceable non-competes.

David J. Clark
David J. Clark

Last month, two New England states enacted laws restricting the use of non-competition provisions in agreements governing an employment, partnership or other professional relationship of a physician.

Broadly speaking, the aim of both of these laws is to protect patients’ choice regarding medical care by limiting the ability of employers or partners to contract with physicians such that the physicians’ ability to practice medicine would be restricted at the end of the professional relationship.

Effective on July 12, 2016, the new law in Rhode Island (R.I. Gen. Laws §5-37-33) prohibits non-compete language in most physician agreements.  It renders void and unenforceable “any restriction on the right to practice medicine” found in virtually any contract creating the terms of employment, partnership or other professional relationship involving a state-licensed physician.  The new law therefore invalidates non-competition or patient non-solicitation provisions for Rhode Island physicians.  The new law does not apply in connection with the purchase and sale of a physician practice, provided the restrictive covenant is less than five years in duration.

Effective on July 1, 2016, the new law in Connecticut (Public Act No. 16-95) is less sweeping than the Rhode Island law.  Rather than prohibiting physician non-competes, the Connecticut law limits the allowable duration (to one year) and geographical scope (up to 15 miles from the “primary site where such physician practices”) of any new, amended or renewed physician agreement.  The new law also renders physician non-competes unenforceable if the physician’s employment or contractual relationship is terminated without cause.

Rhode Island and Connecticut are the latest in a slowly growing number of states that have taken legislative action to limit the use of physician non-competes.  Their neighbor Massachusetts was an early adopter of such a statute.  Mass. Gen. Laws chapter 112, §12X (enacted in 1977) bars physician non-competes which include any restriction of the right of a physician to practice medicine in any geographic area for any period of time after termination.  Much of the language in the Massachusetts law appears in the recently enacted Rhode Island statute.

Similar language appears in Delaware and Colorado statutes dating from the early 1980s, which state that covenants are void if they restrict the rights of physicians to practice medicine upon termination of the agreements containing the covenants.

More recently, Texas (in 1999) and Tennessee (in 2012) both enacted statutes (as did Connecticut) applying stricter standards to physician non-competes than are applicable to employee non-competes in general, while stopping short of invalidating such physician non-competes.

It remains to be seen if the enactment this summer of these statutes in Connecticut and Rhode Island is merely a coincidence, or foreshadows more state legislatures pursuing such limitations of physician non-competes.

David J. Clark
David J. Clark

The Massachusetts legislature ended its 2015-2106 session on July 31, 2016, and lawmakers did not pass new legislation regarding non-compete agreements before doing so.

For the last few years, numerous efforts have been made in the Commonwealth to limit the use of non-compete agreements, resulting in several bills introduced in the Statehouse.  The latest bills, introduced in the House in June and the Senate in mid-July, would have set clear boundaries on the use of non-compete agreements by employers, including by establishing requirements that such non-compete provisions be signed and in writing, not exceed 12 months in duration, and be limited to geographic areas where the employee actually provided services. Another notable feature of the proposed bills was the incorporation of the concept of “garden leave” into non-compete provisions, in which an employer would be required to pay its former employee at least 50% of his or her pay, on a pro rata basis, during the non-compete period. The bills also would have prohibited judicial modification of non-competes and enforcement of non-competes against certain types of workers like students, interns, or fired employees.

As the legislative session drew to a close, however, legislators were unable to reach compromises upon issues such as whether and in what form garden leave might be allowed, and whether an employer and employee could agree upon a payment to support a non-compete entered at the termination of employment.

In this presidential election year, the Massachusetts legislature is adjourned until the start of a new session in January 2017. Renewed efforts to pass a non-compete bill in Massachusetts can be expected then.

Barry A. Guryan
Barry A. Guryan

Over the last several years, I have blogged about the Massachusetts Legislature’s many unsuccessful attempts to pass a statute establishing guidelines applicable to non-competes.  (See my latest blog posted last March “Proposed Legislation to Place Limits on Enforcement of Non-Competes in Massachusetts.”)  Former proposed bills have contained several types of provisions to accomplish this including ones that: a) prohibited the enforcement of all non-competes following California’s approach; b) created presumptions of reasonableness regarding the time and geographic scope; and c) banned the enforcement of non-competes signed by non-exempt and lower paid employees. (See my previous blog post “Massachusetts Legislature Fails to Pass any Proposed Bills on Non-Compete or Trade Secret Laws,” which discussed these bills.)

The common goal of all of these bills has been to balance the interests of some employers (primarily startups in the High-Tech sector) in facilitating employee mobility in order to foster more innovation with those of other employers whose goal is to protect their business interests, confidential information and trade secrets.  The debate has been lively in the Legislature as well as the business community.

On May 16, the Joint Committee on Labor Workforce Development in the Massachusetts legislature made another attempt at a “compromise” bill by favorably reporting H. 1701, which includes amendments to the “Massachusetts Non-Competition Agreement Act” proposed this past March.  If it becomes law, it would apply to agreements entered into or after July 1, 2016.

Unlike prior bills, this bill contains a “garden leave” provision that has a lot of stakeholders expressing strong opinions for and against it.  Although “garden leave” traditionally has been understood as an extension of the employment relationship through the end of the “leave,” under the proposed bill the employment relationship does not continue during this period.  The proposed bill requires that a garden leave clause be included within a non-compete agreement, and that a covered departing employee will receive payment, on a pro rata basis, of at least 50% of his or her pay during the restricted period.  The only exception to the applicability of garden leave is when an employee breaches his or her fiduciary duty.

According to legislative observers, this provision has generated criticism from large employers and trade associations which could jeopardize the passage of the bill.  Garden leave provisions have been used as a technique for limiting competition from employees who leave the company, but unlike this bill, they are not used in addition to the non-compete which is supported by its own financial incentives.  Some well-known employer trade organizations have criticized the provision, stating that since the employee is usually paid an additional sum of money when the non-compete is signed, they believe it is unfair to also pay someone additional pay for not working.  Those in favor of this provision believe that an employer would be willing to pay to insure that a particular employee stays out of the market. No doubt, there will be more debate as the bill continues through the legislative process.

The following is a summary of the other key elements of the proposed bill.

Non-compete agreements:

  1. must be signed, in writing, and state that the employee has the right to seek advice from an attorney;
  2. must be given to the employee the earlier of a “formal offer of employment or 10 days before” starting work;
  3. that are signed after employment must be supported by “fair and reasonable considerationin addition to continued employment.  The current prevailing view of the courts in Massachusetts is that continued employment is adequate consideration whether signed before being hired or signed after employment;
  4. must be tailored to protect certain legitimate business interests, such as confidential business information, goodwill and trade secrets.  Interestingly, the bill states that if another restrictive covenant cannot adequately protect these interests, such as a non-solicitation agreement or a nondisclosure agreement, the non-compete “may be presumed reasonable” if it meets this mandate;
  5. may not exceed a 12 month term (This extends a former bill’s maximum term of 6 months.);
  6. must be reasonable in scope of proscribed activities.  In other words, if there is a nexus between the restricted activities and services that the affected employee has performed over the last 2 years of employment, the non-compete agreement will be “presumptively reasonable”;
  7. must be reasonable in geographic reach, which is limited to the geographic areas where the employee provided services in the last 2 years of employment;
  8. will not be enforced against certain types of workers, including non-exempt employees, student interns or employees that are employed for a short term while in school, employees that have been terminated or laid off, and employees 18 years of age and under;
  9. may not be judicially “reformed” or revised to render it valid (otherwise known as the “blue pencil” rule).  In the past, judges have not been consistent in this regard.

What to Do Now:

There is nothing different that employers must do until a final bill becomes law.  Employers should continue to seek legal advice about properly drafting and enforcing non-competes or to seek legal assistance to enjoin their enforcement.  At present, we are guided by precedent generated by different judges.  The goal of this new legislation is to pass a law that will generate more consistency.  We will continue to keep you posted on its progress through the legislature.

In a recent case in Massachusetts, a Superior Court Judge denied a former employer’s motion for a restraining order in a case alleging a violation of a non-compete agreement and granted the cross motion of the former employee and current employer to compel arbitration even though the current employer was not a party to the arbitration clause which was included in the former employee’s Employment Agreement.

Facts

In Tibco Software, Inc. v Zephyr Health, Inc. and Kevin Willoe, Civil Action No 2015-844-BLS1 (Mass. Superior Court March 31, 2015), Plaintiff Tibco Software, Inc. (“Tibco”) filed a motion for a restraining order and expedited discovery alleging that co-defendant Kevin Willoe (‘Willoe”) breached the non-compete clause in his Employment Agreement with Tibco by working for a competitor, co-defendant Zephyr Health, Inc. (“Zephyr”) shortly after he quit.  Article IX of the Employment Agreement provided that the claims alleged in the Complaint were subject to arbitration.  Even though Zephyr was not a party to the Employment Agreement, both defendants moved to compel arbitration and to stay the action pending the outcome of the arbitration.

Analysis

What is interesting about this case is that the Court was willing to defer the matter to arbitration even though Tibco sought emergency relief to enforce the non-compete clause and even though Zephyr was not a signatory to the arbitration clause in Willoe’s Employment Agreement.  Relying on the representation of counsel for both defendants that the rules governing the arbitration authorized the arbitrator to issue preliminary injunctive relief, the Court left the question of such emergency relief to the arbitrator.

In granting the defendants’ request to stay the case pending the outcome of the arbitration, the Court cautioned the parties that if “there is any delay in the selection of the arbitrator[s], the plaintiff may request an emergency hearing on its motion for a preliminary injunction, such orders, if entered, to be in force only until the arbitrator[s] is selected.”

It is important to note that the Court limited its ruling to situations in which the former employer’s claims arose directly from the restrictions specifically contained in his Employment Agreement.  This approach, adopted by the Court, has been described as “the narrow view.”  Other courts, primarily in the federal sector, have adopted the “broad view” in which a non-signatory to such agreements may compel arbitration where “the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement…”  See Vassalluzzo v. Ernst & Young LLP, No. 06-4215-BLS2, 2007 WL 2076471 (Mass. Super. Ct. June 21, 2007).

Conclusion

Regardless of whether a court relies on this broad view or the more narrow view taken in Tibco, it is important to consider the ability of a non-signatory to an employment agreement to avoid emergency relief by moving to enforce an arbitration clause contained in the agreement.  This becomes one of the many important factors an employer must consider in deciding whether or not to include an arbitration provision in an employment agreement at all or at least to carve out such disputes which seek emergency relief from the courts.

A new Uniform Trade Secrets Act bill has been proposed by the Massachusetts Board of Commissioners on Uniform State Laws for the Massachusetts Legislature to consider in its 2015 legislative session. The proposed bill represents another effort to bring Massachusetts law protecting trade secrets in line with that of the vast majority of other states. As discussed here last August, previous efforts to reform Massachusetts law on trade secrets and non-compete agreements have failed, including Governor Patrick’s efforts in the last legislative session to make non-compete agreements unenforceable in Massachusetts.

The current proposal tracks quite closely the 1985 Uniform Trade Secrets Act (“UTSA”), key provisions of which have been enacted by 48 states (other than Massachusetts and New York). The definitions of “misappropriation” and “person” are essentially the same, while the Massachusetts proposal expands the definitions of “improper means” and “trade secret,” which are expanded only slightly to reflect some additional explanation and newer technology. Like the UTSA, the Massachusetts proposal provides for injunctive relief, treble damages if willful and malicious misappropriation can be proved, and attorneys’ fees to either plaintiff or defendant if the opposing party acts in bad faith in seeking or defending a misappropriation claim. The statute of limitations in both the UTSA and the proposed bill is 3 years from the date the misappropriation is discovered, or by exercise of reasonable diligence should have been discovered. If this bill passes, the Massachusetts Uniform Trade Secrets Act would be scheduled to take effect July 1, 2016. We will watch to see whether this attempt at reform passes.

For years, I have been writing about the continuing efforts of legislators and others to reform the Massachusetts trade secret and non-compete law (see, e.g., my previous blog posts here and here). In this legislative session, Governor Patrick surprised many by submitting a bill that would, with some exceptions, make non-competes unenforceable in Massachusetts (much like the law in California), in an effort to encourage spin-offs, primarily in the high tech area, to compete more effectively with competitors in other states. There was also an effort for Massachusetts to adapt the Uniform Trade Secrets Act (“UTSA”), a federal law adopted by 48 other states. (Only New York and Massachusetts have not adopted the UTSA). There were also “compromise” bills that sought to codify the non-compete law in Massachusetts in many ways, including: a) banning the use of non-competes for non-exempt workers; b) requiring advance notice and consideration for those who are required to sign a non-compete after starting employment; and c) creating presumptions addressing the reasonableness of the duration of the non-compete obligation and the scope of the activities that would be prohibited.

Although there have been bills introduced in the Massachusetts legislature aimed at reforming the trade secret and non-compete laws in Massachusetts for years without success, I thought that this year, a compromise bill would pass. I was wrong. None of the bills introduced in this year’s Legislative session became law. The reason for my view that there would be some type of compromise bill passed was that many companies and attorneys were attracted to those provisions in the bills that would have given businesses guidance on the enforceability of restrictive covenants they required their employees to sign, as well as on the enforceability of any restrictive covenants that companies might have to comply with upon hiring someone subject to one. Many who blog on this subject, including me, believe that there will continue to be legislation on this subject proposed in the next legislative session.

We will keep you posted.

For some time, I have been following the evolution of the “material change” defense to enforcement of a non-compete agreement in Massachusetts. Recently, it has been gaining traction, but there are still unanswered questions.

The doctrine was first introduced in F.A. Bartlett Tree Expert Co. v. Barrington by the Massachusetts Supreme Judicial Court in 1968. However, it was not applied with any consistency by Massachusetts courts until very recently when a number of trial level courts and a Massachusetts Federal District Court held that a restrictive covenant is not enforceable if the employee’s job duties, compensation or employment relationship substantially changed between the time the employee signed the initial non-compete agreement and the time the employee left the company. In short, these courts have refused to issue preliminary injunctions to employers of former employees who have been hired by competitors on the grounds that there was not a likelihood of success on the merits (one of the critical requirements that parties seeking preliminary injunctive relief must demonstrate to the court). Although the Eastern District of New York in Iron Mountain Information Management, Inc. v. Taddeo, applying Massachusetts law, adopted the doctrine in 2006, other states have not embraced the “material change” defense.

Recent Illustrative Massachusetts Cases

In Rent-A-PC, Inc., d/b/a SmartSource Computer & Audio Visuals v. March, decided in May 2013, the U.S. District Court for the District Court of Massachusetts refused to issue a preliminary injunction against three former employees of the plaintiff Smartsource and defendant CCR Solutions, the company that hired them. The Court based its decision on the fact that the defendant employees had experienced “material changes” in their employment relationship from the time they entered into the restrictive covenants that SmartSource sought to enforce. One former employee entered into the restrictive covenants with a company that Smartsource later purchased. His job changed a number of times, first in the inventory department and then in the sales department. A second defendant employee’s duties, authority, and compensation changed significantly even though his job title had not changed. The third employee had not signed a non-compete agreement.

In Intepros, Inc. v. Athy, 31 Mass. L. Rep. 144, 2013 Mass. Super. LEXIS 48, 2013 WL 2181650 (May 5, 2013), the Massachusetts Superior Court relied on the fact that since signing the non-compete agreement, the former employee was promoted, his duties and responsibilities had changed, and his salary had increased several times.

Some Takeaways

1. When there has been a “material change” in an employee’s job or a change in ownership of the business, the employee should sign a new non-compete agreement.
2. Even if the employee is not given a new non-compete to sign under these circumstances, it may be prudent, in any event, to include a clause in the original non-compete that it is enforceable in the event that there are material changes in employee’s job, duties, responsibilities, salary or otherwise in the employee’s relationship with the company.

Unanswered Questions Still Remain

These suggested takeaways are given with the caveat that at present, the highest court of Massachusetts has not answered the following questions:

1. Is the “material change” clause noted above which is included in a non-compete agreement enough to defeat a “material change” defense?”
2. What is the definition of “material?” How much of a change is necessary to be considered “material?”

In light of this relative uncertainty, consideration of various options in each of these cases should be undertaken with advice of counsel.

Conclusion

If the bill recently filed by the Governor of Massachusetts to make non-competes unenforceable passes, these issues may become moot. However, pending the outcome of that bill, we suggest that employers who believe that an employee’s relationship with the company has undergone a “material change” should have the employee sign a new agreement or, at least, should consider inserting a “material change” clause into such agreements.
 

On November 13, 2013, my partner Jim Goodman and I presented a national webinar discussing recent developments in Trade Secrets and Non-Competes. In that webinar, I discussed the split in the Circuits’ interpretation of the Computer Fraud and Abuse Act (CFAA).  (Access to the recording and presentation is by request only.)  I have also blogged on the most recent case that had been decided in the District of Massachusetts dealing with the interpretation of the CFAA, Advanced Micro Devices, Inc. v. Robert Feldstein, C.A. No. 13-40007-TSH, 2013 U.S. Dist. LEXIS 81206 (D. Mass. Jun. 10, 2013).

The issue that the courts are wrestling with is how to interpret the meaning of the terms “exceeds authorized access” and “without authorization,” which are in the CFAA. The issue has unfortunately not been resolved by the United States Supreme Court. Until then, different interpretations will continue to exist in the federal courts.

Recently, Chief Magistrate Judge Leo T. Sorokin rendered the latest opinion in the District of Massachusetts on the issue in MOCA Systems Inc. v. Bernier, C.A. No. 13-10738-LTS, 2013 U.S. Dist. LEXIS 161071 (D. Mass. Nov. 12, 2013). In that case, he refused to dismiss a CFAA claim, but allowed the defendants to bring the claim up later in the case at the summary judgment stage.

MOCA Systems sued Bernier (its former CEO) and Pernier Systems, the company he founded, claiming that Bernier improperly accessed MOCA’s computer systems for the purpose of competing with MOCA. The defendants moved to dismiss the Complaint.

Judge Sorokin quoted the language from the CFAA that has caused the split by the courts which states that a defendant is civilly liable where he or she “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, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period.” 18 U.S.C. § 1030(a)(4) (emphasis added).

Judge Sorokin acknowledged that there are two views that the Courts have taken interpreting this language, commonly referred to as the “narrow” view and the “broad” view. The Courts that take the narrow view interpret the CFAA as limited to hacking. Thus, as long as the individual has authority to access the computer, he or she does not act “without authority” or “exceed” his or her “authorization” even though the employee used the information for personal needs after leaving the company. Those Courts that take the “broad” view focus on unauthorized use by the former employee on the theory that the former employee exceeds his or her authorization when the information is used in a way that is adverse to the company or violated the company’s policy.

In MOCA, the Court acknowledged that in the District of Massachusetts, in Advanced Micro Devices, Inc. v. Feldstein, District Judge Hillman recently found that the narrow construction was “preferable.” The Court also acknowledged that there is even a split in the District of Massachusetts. (See District Judge Gorton’s decision in Guest-Tek Interactive Entm’t, Inc. v. Pullen, 665 F. Supp. 2d 42, 45 (D. Mass. 2009), in which he followed the broader line of cases.) However, in MOCA, Magistrate Judge Sorokin chose to defer the issue until summary judgment just as Judge Hillman did in Advanced Micro Devices and said that he didn’t have to decide whether to adopt the “narrow” or the “broad view” at this early stage since the facts in the case “suffice under either standard.” In reaching this conclusion, he relied on the allegations in the Complaint which, assuming they are true, state that Bernier accessed the company-owned computer after he left the Company, which would support the claim that Bernier acted “without authority.”

This case illustrates once more that Courts are trying to deal with the differing interpretations of the CFAA and defer a final decision on the issue when the facts support that approach. Until the U.S. Supreme Court finally issues a definitive interpretation of the CFAA, we will continue to see different results issued by Courts depending which Court and in some cases, which judge, hears the case.

In a recent case, the United States District Court for the District of Massachusetts issued the latest opinion regarding whether former employees violated the Computer Fraud and Abuse Act (“CFAA” or the “Act”) before they joined a competitor by downloading electronic information without authorized access. The CFAA, 18 U.S.C. §1030, makes it unlawful to take information from a protected computer of an employer by unlawful means.

In Advanced Micro Devices, Inc. v. Robert Feldstein, et al., USDC (D.Mass.), Civil Action No. 13-40007-TSH, decided on June 10, 2013, the Court adopted the “narrow view” in interpreting the CFAA, ruling that the former employees had not violated the Act where the employees had downloaded confidential information “with authorization” to do so. Judge Hillman, writing for the Court, rejected the alternative “broad view” which states that even though the former employees had authorization to access the information, the former employees nevertheless violate the CFAA when they “exceed their authorization.” The Court said that “[p]roponents of the narrower interpretation suggest that Congress’s intent in passing the CFAA was to address computer hacking activities and not to supplement state misappropriation of trade secrets laws.”

In this case, four former employees worked for Advanced Micro Devices, Inc. (“AMD”), a microprocessor manufacturer. All had authorization from AMD to access confidential technical and business strategy information during their employment. They all left AMD to work for a competitor. AMD sued the former employees claiming that they had copied proprietary data from AMD’s computers before they left the company.

Different courts have taken different interpretations of the CFAA regarding these alternative views. Compare, for example, United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) with United States v. Rodriquez, 628 F.3d 1258 (11th Cir. 2010).

Judge Hillman also held that, at the time of his ruling, the First Circuit had not clearly articulated its position. See EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001).

As the courts deal with these very interesting theories, we will continue to write about the latest developments by the courts in interpreting the CFAA.