Friday, June 17, 2022

Google And Departing Lawyers

A Memorandum Opinion of the United States District Court for the District of Columbia (District Judge Boasberg) dismissed litigation brought in the wake of a lawyer departure from his longtime firm

Perhaps it can be characterized as an occupational hazard, but disputes between law-firm partners tend to devolve into litigation. This case is no exception. Plaintiff William Lightfoot left Defendant Koonz, McKenney, Johnson & DePaolis LLP (KMJD) after working as a lawyer there for several decades. After his departure, KMJD retained the log-in credentials for Lightfoot’s Google My Business (GMB) page, which he used to advertise his services online. Lightfoot alleges that the firm subsequently accessed this page without his permission and also altered the telephone number there to KMJD’s own as a means to divert clients its way. He brings similar allegations with regard to the GMB page for his new law firm, Plaintiff May Lightfoot PLLC. Plaintiffs believe that KMJD’s actions violate two federal statutes — the Computer Fraud and Abuse Act and the Lanham Act — and constitute tortious interference with prospective advantage, negligence, and conversion under D.C. law. Defendant now moves to dismiss all counts. Because the Court finds in the firm’s favor on the federal causes of action, it will dismiss them and decline to exercise supplemental jurisdiction over the D.C.-based claims.

The opinion notes a post-departure development

Although he and his new firm have long since sorted out the [google] problem, Lightfoot is hardly disengaging, perhaps because an arbitrator socked him with nearly a half-million dollar award in favor of KMJD in 2021.

Merits of the federal claim

KMJD does not deny accessing Lightfoot’s page, but rejoins that such access could not have been unauthorized since it possessed the log-in credentials and, by Plaintiffs’ own description, “controlled” the GMB page during the relevant time period. 

So "unauthorized" is at least potentially at issue

Fortunately for the Court, it can allow these questions to percolate among those more learned in the field, since no resolution is necessary here. This is because Defendant’s third argument for dismissal carries the day.

That one urges the Court to find Count I insufficiently pled because the Complaint has not alleged a loss that meets the CFAA’s statutory requirement.

On that issue

First, although Plaintiffs allege that they suffered a “loss of more than $2,100,000.00,” they do not tie that loss to KMJD actions that occurred during the relevant timespan — namely, the brief period between February 6, 2020 (if the loss resulted from denial of access to the page) or February 14, 2020 (if it stemmed from the changing of the phone number) and February 20, 2020, when they gained control of Lightfoot’s GMB page...

Second, even assuming that lost revenues is a valid form of “loss” under the CFAA, Plaintiffs have not alleged that theirs resulted from an “interruption of service,” as the statute requires.

Lanham Act

Next up is Count II, in which Plaintiffs allege that KMJD violated the Lanham Act by “misappropriating and altering Mr. Lightfoot’s and Lightfoot’s GMB account” and “falsely designat[ing] the ownership, origin, and purveyor of the services advertised by Mr. Lightfoot’s and May Lightfoot’s GMB page in an effort to cause confusion and mistake as to the services offered and advertised by the May Lightfoot GMB page.” Compl., ¶ 39; id., ¶¶ 35–44. The firm believes that this count must be dismissed because Plaintiffs have not alleged the three elements of a trademark claim — namely, trademark rights, use of a trademark by KMJD, and likelihood of confusion.

This claim also was rejected, leaving only D.C. allegations. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/06/a-memorandum-opinion-of-the-united-states-district-court-for-the-district-of-columbia-perhaps-it-can-be-characterized-as-an.html

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