Datto, Inc. v. Moore

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DATTO, INC., and

DATTO EUROPE LIMITED,

Plaintiffs,

v. Case No. 8:20-cv-2446-T-33TGW

DANIEL MOORE,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Daniel Moore’s Motion to Dismiss or, in the

Alternative, Motion for a More Definite Statement and/or

Summary Judgment (Doc. # 21), filed on November 4, 2020.

Plaintiffs Datto Europe Limited and Datto, Inc., responded on

November 18, 2020. (Doc. # 34). For the reasons that follow,

the Motion is denied.

I. Background

Datto, Inc. (“Datto”) “is the leading provider of cloud-

based software and technology solutions, delivered through

managed service providers (‘MSPs’) to small and medium

businesses (‘SMBs’).” (Doc. # 1 at 4). “Datto’s software and

technology solutions are delivered or sold to SMBs by its

worldwide network of MSPs. Each member of Datto’s MSP network

is referred to as an ‘MSP’ or ‘MSP partner.’” (Id.). “An MSP

is an IT professional or company that manages a customer’s IT

infrastructure by handling functions, such as managing

network infrastructure (including email), hosting servers,

and protecting data.” (Id. at 5). “Datto’s product engineers

invest significant time refining Datto’s suite of technology

products based on hours of surveying and researching the

market pressures facing its MSP partners and their small and

medium business clients.” (Id.).

Moore accepted a position with Datto Europe Limited

(“Datto Europe”) in the United Kingdom in December 2018 and

began working there in January 2019. (Id.). Moore served as

“Director of Commercial Operations, EMEA” and “was broadly

responsible for helping to drive Datto’s revenue by analyzing

and compiling data and implementing tools and strategies to

grow Datto’s global sales, increase market share, to identify

the needs of current and prospective MSP partners, and to

improve the operational efficiency of Datto’s sales efforts.”

(Id.). “Moore was the primary ‘deal desk’ approver for deals

involving the EMEA (i.e., Europe, the Middle East, and Africa)

and APAC (i.e., Asia-Pacific) regions and was the secondary

approver for U.S. deals.” (Id. at 6). “Another key

responsibility of Moore’s position was to analyze Datto’s

sales reports, market research, and other intelligence to

help identify markets where Datto could increase its market

share by either increasing its sales with current MSP partners

or strategically pursuing engagements with new MSPs.” (Id.).

As a result of his position, Moore had access to various

types of confidential information maintained by Datto and

Datto Europe for their business globally. (Id. at 6-10).

Because of the value of this confidential information, Datto

and Datto Europe take many steps to protect the information,

including asking employees to sign confidentiality and non-

competition agreements. (Id. at 10-11). Moore signed an

Employment Agreement on December 6, 2018, which contains a

“Confidential Information” clause, as well as “Non-

competition,” “Non-poaching,” “Non-solicitation,” and “Non-

dealing” provisions. (Id. at 12).

The “Confidential Information” clause — Clause 15 —

provided that Moore must “respect and preserve the

confidentiality of the Confidential Information for a period

of five years after the date of such disclosure” and that the

“duty of confidentiality continue[d] to apply after

termination of [his] employment.” (Id. at 12-13). Clause 14

contained the restrictive covenants, which continue in effect

for six months after the termination of employment. (Id. at

13-14). “Although the Employment Agreement states it shall be

interpreted and construed in accordance with English law, the

Employment Agreement identifies that either party may enforce

the provisions contained therein ‘in the courts of any

jurisdiction having competence to issue an injunction

directly enforceable against such party.’” (Id. at 14).

In July 2020, Moore’s employment was terminated,

although he ceased performing work in May 2020 when he was

notified of the impending termination. (Id. at 15). “On July

24, 2020, Moore also entered into the Settlement Agreement,

in which he acknowledged that [Clauses] 14 and 15 of his

Employment Agreement survived and remained enforceable.” (Id.

at 14).

He mailed his two work laptops back to Datto Europe that

August. (Id. at 15). “Forensic analysis shows that between

May 11, 2020, when he was informed of his redundancy, and

August 3, 2020, after the end of his employment, Moore

inserted at least four different USB storage devices into his

Datto laptops, which contain hundreds of confidential Datto

documents.” (Id.). According to Datto and Datto Europe, Moore

“had no business reason to access his Datto laptops” at this

time, he “never returned any of these USB devices to Datto

and, upon information and belief, Moore is currently in

possession of these devices that contain hundreds of

confidential Datto documents.” (Id.). Additionally, on August

3, 2020, Moore allegedly “accessed hundreds of confidential

files on the laptops after inserting an USB device into his

Datto-issued laptops for the purpose of misappropriating

Datto’s confidential trade secrets information.” (Id. at 16).

“The documents Moore accessed and misappropriated contain,

among other things, information about current and target

customers, spend by customer and product, sales forecasts,

and geographic regions ranked by sales opportunities.” (Id.).

Then, despite the non-competition provisions of the

Employment Agreement, Moore began working with Datto’s direct

competitor, ConnectWise, in Tampa, Florida, on September 1,

2020. (Id. at 18). The complaint alleges that “Moore’s role

as Vice-President of Sales Operations at ConnectWise is

similar to, and in direct competition with, the role and

responsibilities he was performing for Datto” and his “new

duties with ConnectWise involve the same responsibilities he

performed for Datto, including driving revenue, formulating

strategies for increasing market share in new and existing

markets, assessing the needs of current MSP partners,

identifying ways to grow the MSP network, and generally

improving sales performance and efficiency.” (Id.). Moore’s

knowledge and possession of Datto and Datto Europe’s

confidential information allegedly “will assist him” in his

duties at ConnectWise by “giv[ing] [him] a nuanced

understanding of the needs of Datto’s MSP partners and

critically, vulnerable areas that ConnectWise can exploit.”

(Id. at 19). Datto and Datto Europe aver that “Moore is in

possession of, and is using, Datto’s confidential

information, such as its customer list, sales data, financial

metrics and global business strategies, in his new role for

ConnectWise.” (Id. at 20).

Datto and Datto Europe initiated this action on October

19, 2020, asserting the following claims: breach of contract

regarding the confidential information provision of the

employment agreement (Count I); breach of contract regarding

the non-competition provision of the employment agreement

(Count II); violation of the Defend Trade Secrets Act (“DTSA”)

(Count III); violation of the Florida Uniform Trade Secrets

Act (“FUTSA”) (Count IV); and violation of the Computer Fraud

and Abuse Act (“CFAA”) (Count V). (Doc. # 1).

Now, Moore has moved to dismiss, or alternatively for a

more definite statement or summary judgment. (Doc. # 21).

Datto and Datto Europe have responded (Doc. # 34), and the

Motion is ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint

and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, the Court favors the plaintiff

with all reasonable inferences from the allegations in the

complaint. Stephens v. Dep’t of Health & Human Servs., 901

F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its

consideration to well-pleaded factual allegations, documents

central to or referenced in the complaint, and matters

judicially noticed. La Grasta v. First Union Sec., Inc., 358

F.3d 840, 845 (11th Cir. 2004).

Additionally, under Rule 12(e), “[a] party may move for

a more definite statement of a pleading . . . [if it] is so

vague or ambiguous that the party cannot reasonably prepare

a response.” Fed. R. Civ. P. 12(e). Such motions are

disfavored because the Federal Rules generally require only

notice pleadings. Scarfato v. Nat’l Cash Reg. Corp., 830 F.

Supp. 1441, 1443 (M.D. Fla. 1993).

Therefore, “[t]he basis for requiring a more definite

statement is not that the complaint lacked details but rather

that the complaint is unintelligible and the defendant is

unable to respond.” Riviera Fort Myers Condo. Ass’n, Inc. v.

QBE Ins. Corp., No. 2:13-cv-494-FtM-38UAM, 2013 WL 12388599,

at *1 (M.D. Fla. Aug. 14, 2013). “If a pleading provides

sufficient notice of the claim or defense, litigants should

obtain additional details through the liberal discovery rules

and not through Rule 12(e).” Burnetti v. Westchester Fire

Ins. Co., No. 8:18-cv-482-T-23JSS, 2018 WL 7253073, at *2

(M.D. Fla. May 24, 2018)(citation omitted).

III. Analysis

A. Forum Selection Clause

First, Moore argues that this case belongs in an English

court because the July 2020 Settlement Agreement includes an

exclusive forum selection clause. (Doc. # 21 at 8). The Court

disagrees.

Typically, “[t]o obtain dismissal for forum non

conveniens, ‘[t]he moving party must demonstrate that (1) an

adequate alternative forum is available, (2) the public and

private factors weigh in favor of dismissal, and (3) the

plaintiff can reinstate his suit in the alternative forum

without undue inconvenience or prejudice.’” GDG Acquisitions,

LLC v. Gov’t of Belize, 749 F.3d 1024, 1028 (11th Cir.

2014)(quoting Leon v. Millon Air, Inc., 251 F.3d 1305, 1310–

11 (11th Cir. 2001)).

Still, “the Supreme Court in [Atlantic Marine

Construction Company, Inc. v. United States District Court

for the Western District of Texas, 134 S. Ct. 568 (2013)]

explained that an enforceable forum-selection clause carries

near-determinative weight in this analysis.” GDG

Acquisitions, LLC, 749 F.3d at 1028.

When parties agree to a forum-selection clause,

they waive the right to challenge the preselected

forum as inconvenient or less convenient for

themselves or their witnesses, or for their pursuit

of the litigation. . . . As a consequence, a

district court may consider arguments about public-

interest factors only. Because those factors will

rarely defeat a transfer motion, the practical

result is that forum-selection clauses should

control except in unusual cases.

Atl. Marine, 134 S. Ct. at 582 (internal citations omitted

and emphasis added). “Thus, a district court now must consider

an enforceable forum-selection clause in the forum non

conveniens analysis.” GDG Acquisitions, LLC, 749 F.3d at

1029.

The Atlantic Marine analysis “presupposes a

contractually valid forum selection clause.” Atl. Marine, 134

S. Ct. at 581 n.5. Therefore, the Court must determine whether

the forum selection clause is, in fact, valid. “Beyond

validity, in analyzing the application of a forum-selection

clause a court must determine whether the claim or

relationship at issue falls within the scope of the clause —

by looking to the language of the clause itself — and whether

the clause is mandatory or permissive.” Blue Ocean Corals,

LLC v. Phoenix Kiosk, Inc., No. 14-CIV-61550, 2014 WL 4681006,

at *4 (S.D. Fla. Sept. 19, 2014).

The validity of the Settlement Agreement’s forum

selection clause is not challenged. Rather, the parties

disagree over whether the claims in this action fall within

the scope of that forum selection clause.1 “To determine if a

claim falls within the scope of a clause, we look to the

language of the clause.” Bahamas Sales Assoc., LLC v. Byers,

701 F.3d 1335, 1340 (11th Cir. 2012).

Here, the Settlement Agreement’s forum selection clause

states: “This Agreement shall be governed by and construed in

accordance with the laws of England and the English courts

shall have exclusive jurisdiction for all purposes connected

1 Here, although both the Settlement Agreement and Employment

Agreement’s choice of law provisions select English law,

Moore failed to analyze English contract law on the issue of

whether Datto and Datto Europe’s claims fall within the scope

of the Settlement Agreement’s forum selection clause.

Instead, Moore only cited federal cases from within the

Eleventh Circuit when analyzing the scope of the forum

selection clause. (Doc. # 21 at 11-13). At most, when

discussing whether a court should enforce a mandatory forum

selection clause apart from the scope issue, Moore asserts

that “applying English law does not change this Court’s

analysis.” (Id. at 16). Similarly, Datto and Datto Europe do

not analyze English law regarding their discussion of scope,

instead citing federal and Florida case law. (Doc. # 34 at 7-

9). Thus, given the parties’ apparent agreement that English

law should not be considered in determining the scope of the

forum selection clause, the Court will apply the law of this

forum. See Harris v. Kellogg, Brown & Root Servs., Inc., 796

F. Supp. 2d 642, 651 (W.D. Pa. 2011)(“The parties . . .

generally carry both the burden of raising the issue that

foreign law may apply in an action, and the burden of

adequately proving foreign law to enable the court to apply

it in a particular case. Where parties fail to satisfy either

burden the court will ordinarily apply the forum’s law.”

(citation omitted)).

with this Agreement.” (Doc. # 21-1 at 12)(emphasis added).

And the Settlement Agreement makes clear that its purpose was

to resolve “any claims which [Moore] has or may have against

the Company.” (Id. at 3). But the claims in this case are not

“connected with” Moore’s termination or the potential

employment claims Moore was settling through the Settlement

Agreement, and thus the claims here are not connected with

the Settlement Agreement. See Newco Energy Acquisitions

Holdings, LLC v. Shulgen, No. 12-81249-CIV, 2013 WL 12149763,

at *3 (S.D. Fla. Mar. 28, 2013)(“[T]he Court interprets the

phrase ‘in connection with’ to encompass fewer situations

than a broad ‘in any way related to’ clause.”). Rather, the

claims at issue here involve Moore’s subsequent employment

with a direct competitor, as well as his allegedly copying

numerous confidential documents from Datto’s laptop after his

employment with Datto had ended.

Additionally, the claims in this case are not brought

under the Settlement Agreement. Instead, three claims are

brought under Florida or federal statutes and the two breach

of contract claims are based on alleged violations of the

Employment Agreement’s confidentiality and non-compete

provisions. (Doc. # 1). And, despite Moore’s argument to the

contrary, the Settlement Agreement does not supersede the

relevant clauses of the Employment Agreement. True, the

Settlement Agreement contains a merger clause stating that it

“sets out the entire agreement between them and supersedes

all previous discussions between them and their advisers and

all statements, representations, terms and conditions,

warranties, guarantees, proposals, communications and

understandings (if any).” (Doc. # 21-1 at 12).

But, even if that merger clause could be interpreted as

superseding some parts of the Employment Agreement, the

Settlement Agreement also contains an explicit acknowledgment

by Moore that “he continues to be bound by Clauses 14 and 15

of the Contract of Employment both before and after the

Termination Date” — the confidentiality and non-compete

provisions of the Employment Agreement. (Doc. # 21-1 at 7).

Therefore, while Moore tries to cast this as an incorporation

of the Employment Agreement’s Clauses 14 and 15, the

Settlement Agreement simply did not alter the binding legal

effect of those clauses of the Employment Agreement on Moore.

And Clause 15.7 of the Employment Agreement provides

that “either party may enforce the other party’s obligation

of confidence in the courts of any jurisdiction having

competence to issue an injunction directly enforceable

against such party.” (Doc. # 1-2 at 6). Thus, the Settlement

Agreement did not eliminate Datto and Datto Europe’s ability

to file suit in any court with jurisdiction to issue an

injunction, which includes this Court. Furthermore, the Court

agrees with Datto and Datto Europe that the phrase “obligation

of confidence” does not limit them to bringing only a breach

of contract claim under the confidentiality clause of the

Employment Agreement in this Court. (Doc. # 34 at 10). Both

the confidentiality and non-compete clauses of the Employment

Agreement are intended to prevent Moore from sharing Datto’s

confidential information with others, including future

employers. See Quirch Foods LLC v. Broce, No. 3D20-842, 2020

WL 6053263, at *10 (Fla. 3rd DCA Oct. 14, 2020)(“Companies

who provide confidential information to [their] employees

need to know that [they] will be protected if an employee

resigns or is terminated because the non-compete agreement

will be enforced.”); Littlewoods Organisation Ltd. v Harris

[1977] 1 WLR 1472, 1479 (“[E]xperience has shown that it is

not satisfactory to have simply a covenant against disclosing

confidential information. . . . [T]he only practicable

solution is to take a covenant from the servant by which he

is not to go t[o] work for a rival in trade.”).

In short, the claims in this case do not fall within the

scope of the Settlement Agreement’s forum selection clause

and the Employment Agreement’s forum selection clause is

still in force. Because the Court finds the forum selection

clause in the Settlement Agreement does not apply to the

claims in this case, dismissal based on that forum selection

clause is unwarranted. Furthermore, the Court need not

convert the Motion to a motion for summary judgment because

the Court has already considered the Settlement Agreement and

determined that the Settlement Agreement’s forum selection

clause does not apply.

B. Failure to State a Claim & More Definite Statement

Moore also argues that the complaint should be dismissed

because it is a shotgun complaint and fails to state claims

for relief or, alternatively, the Court should require Datto

and Datto Europe to provide a more definite statement of their

claims.

1. Shotgun Complaint

First, Moore argues the complaint is a shotgun complaint

because it incorporates all the background section paragraphs

into each count. (Doc. # 21 at 24). “But this does not render

the [complaint] a shotgun complaint. It is perfectly

acceptable that each count of the [complaint] incorporates

all of the general factual allegations, so long as the counts

do not incorporate the allegations of the previous counts.”

Alvarez v. Lakeland Area Mass Transit Dist., No. 8:19-cv-

1044-T-33SPF, 2019 WL 2868943, at *3 (M.D. Fla. July 3, 2019);

see also Weiland v. Palm Beach Cty. Sheriff’s Office, 792

F.3d 1313, 1324 (11th Cir. 2015)(“[Plaintiff’s] re-alleging

of paragraphs 1 through 49 [from the fact section] at the

beginning of each count looks, at first glance, like the most

common type of shotgun pleading. But it is not.”). Thus, the

complaint is not a shotgun complaint.

2. Failure to State a Claim

Next, Moore argues that each of the five counts fails to

state a claim.

a. Breach of Non-Compete

Moore argues that the complaint fails to state a

plausible claim that he breached the non-compete clause of

the Employment Agreement. (Doc. # 21 at 19). Specifically, he

points out the language from the “Further Particulars”

section of the Employment Agreement stating:

There are no terms applying to this Agreement which

relate to the following: [1] the period for which

the employment is intended to continue or the date

when it is to end; [2] any collective agreements

which directly affect the terms and conditions of

employment; [and] [3] Work outside the United

Kingdom.

(Doc. # 1-2 at 10)(emphasis added).

As the complaint acknowledges, Moore worked for

ConnectWise in the United States. (Doc. # 1 at 17-18).

Therefore, according to Moore, Count II does not allege a

plausible violation of the Employment Agreement.

Importantly, however, Moore fails to cite any law — let

alone English law — to support his argument. The choice of

law provision in the Employment Agreement selected English

law. (Doc. # 1-2 at 6)(“This agreement shall be interpreted

and construed in accordance with English law.”). Thus,

English law applies to the breach of contract claims. Without

any guidance from Moore on why his argument succeeds under

English law, the Court is unpersuaded by his argument. See

Harris, 796 F. Supp. 2d at 651 (explaining that Federal Rule

of Civil Procedure 44.1 “imposes no obligation on this Court

to determine foreign law on its own accord”).

Furthermore, the only English law before the Court is

that presented by Datto and Datto Europe in their response.

(Doc. # 34 at 12-13). And the authority cited by Datto and

Datto Europe supports that the context of the Employment

Agreement, including facts outside the agreement, may be

considered to interpret this provision regardless of whether

it is ambiguous. See Westminster City Council v. Nat’l Asylum

Support Serv. [2002] 1 WLR 2956, 2958 (“It is therefore wrong

to say that the court may only resort to evidence of the

contextual scene when an ambiguity has arisen.”); Reardon

Smith Line Ltd v. Yngvar Hansen-Tangen (trading as H E Hansen-

Tangen) [1976] 1 WLR 989, 995-96 (“In a commercial contract

it is certainly right that the court should know the

commercial purpose of the contract and this in turn

presupposes knowledge of the genesis of the transaction, the

background, the context, the market in which the parties are

operating.”).

The Court agrees with Datto and Datto Europe that the

meaning of this provision “cannot be decided on the basis of

[the] [c]omplaint alone” “because contextual matters — such

as, the genesis of the transaction, the background, and the

market in which the parties are operating, which are factual

issues — must be considered.” (Doc. # 34 at 14). Thus, the

Motion is denied as to Count II. Moore may raise this argument

again at the summary judgment stage.

b. Breach of Confidentiality

Regarding Count I for breach of the confidentiality

clause of the Employment Agreement, Moore argues without any

citation to authority that the claim should be dismissed

because “the information at issue is that which has belonged

to [Moore], third parties or was in the public domain, or is

otherwise non-proprietary, and is therefore excluded from the

definition of Confidential Information.” (Doc. # 21 at 19).

He argues the information he allegedly accessed and retained,

thus, does not fit the Employment Agreement’s definition of

confidential information, which includes information “which

is not known outside of the Company or which the Company

compiled or collected at significant expense or effort.”

(Doc. # 1-2 at 5).

The Court rejects this argument, which would be better

raised at summary judgment. The complaint alleges that Moore

“misappropriated and failed to return [], among other things,

confidential information regarding Datto’s sales operations

and prospective opportunities globally, 2020 sales quotas,

plans and targets for Datto’s sales representatives in EMEA,

confidential compensation information for all Datto sales

representatives globally, [and] confidential and proprietary

information about Datto’s MSP partners.” (Doc. # 1 at 16).

According to the complaint, the misappropriated information

“derive[s] independent economic value from not being

regularly known” and Datto and Datto Europe “invest[]

significant time and resources to collect and analyze the

data” in the misappropriated information. (Id.). Taking these

allegations as true at the motion to dismiss stage, Datto and

Datto Europe have sufficiently alleged a breach of the

Employment Agreement’s confidentiality clause. The Motion is

denied as to Count I.

c. DTSA and FUTSA Claims

DTSA “creates a private cause of action in favor of the

‘owner of a trade secret that is misappropriated . . . if the

trade secret is related to a product or service used in, or

intended for use in, interstate or foreign commerce.’” Adams

Arms, LLC v. Unified Weapon Sys., Inc., No. 8:16-cv-1503-T-

33AEP, 2016 WL 5391394, at *5 (M.D. Fla. Sept. 27,

2016)(quoting 18 U.S.C. § 1836(b)(1)). Under DTSA, a

plaintiff “must show (1) it possessed information of

independent economic value it lawfully owned and for which it

took reasonable measures to keep secret; and (2) [the

defendant] used or disclosed that information despite a duty

to maintain its secrecy.” ActivEngage, Inc. v. Smith, No.

6:19-cv-1638-Orl-37LRH, 2019 WL 5722049, at *3 (M.D. Fla.

Nov. 5, 2019), appeal dismissed, No. 19-14850-JJ, 2020 WL

3042093 (11th Cir. Mar. 5, 2020). Similarly, under FUTSA, a

plaintiff must allege “(1) [it] possessed secret information

and took reasonable steps to protect its secrecy and (2) the

secret it possessed was misappropriated.” Id. (citation

omitted). Claims under “FUTSA and DTSA can be analyzed

together.” Id.

Moore argues that the claims under DTSA and FUTSA, Counts

III and IV, fail to state plausible claims for relief because

the complaint lacks sufficient detail. (Doc. # 21 at 20-21).

He insists the complaint only includes “threadbare

assertions” that “simply recite the elements of a trade

secret” and fails “to assert any well pled factual allegations

that Defendant actually copied and disclosed any trade secret

information.” (Doc. # 21 at 20-21).

The Court disagrees. Datto and Datto Europe have

sufficiently pled claims under both statutes. The complaint

provides sufficient detail to support that the allegedly

misappropriated information qualified as trade secrets that

have independent economic value. Much of that information —

including sales quotas, confidential compensation

information, and information regarding products purchased by

MSPs — took significant resources to collect and “gives Datto

a substantial competitive advantage over its competitors

because it gives Datto a broad insight into the buying

behaviors of MSPs.” (Doc. # 1 at 16); see Lighthouse List

Co., LLC v. Cross Hatch Ventures Corp., No. 13-60524-CIV,

2013 WL 11977916, at *7 (S.D. Fla. Aug. 13, 2013)(denying

motion to dismiss FUTSA claim where the complaint

“describe[d] with reasonable particularity the information

alleged to be misappropriated, including but not limited to:

business and corporate strategies, business plans, product

strategies, product cost and pricing information, customer

lists and information, rate and data cards, vendor lists,

lead lists, lead conversion, lead formation sales reports,

operating plans, marketing strategies and plans”).

The complaint also alleges Datto and Datto Europe keep

this information secret by having employees sign

confidentiality agreements, providing access to that

information on a “need-to-know basis,” and using password

protection and security software. (Id. at 27, 30); see

RxStrategies, Inc. v. CVS Pharmacy, Inc., 390 F. Supp. 3d

1341, 1352 (M.D. Fla. 2019)(finding the existence of a trade

secret was sufficiently alleged at the motion to dismiss stage

where plaintiff alleged it expended significant effort to

compile the customer information and “restrict[ed] access to

authorized users only via password-protected portals”). Thus,

Datto and Datto Europe have sufficiently alleged that the

information at issue included at least some trade secrets

that it takes reasonable steps to keep secret.

Additionally, regarding whether Moore actually copied

and disclosed trade secret information, the Court finds that

the complaint sufficiently alleges this element of the claim.

Specifically, the complaint raises the plausible inference

that Moore copied the trade secret information onto his USB

devices when he inserted those USB devices into the laptop

and accessed confidential information on the laptop after his

employment had ended. (Doc. # 1 at 15-16, 26, 29). Finally,

the complaint alleges Moore “is improperly using Datto’s

trade secret information in his capacity as an employee of

ConnectWise.” (Id. at 28). The complaint explains at length

Moore’s new position with ConnectWise and how Moore’s alleged

possession of the confidential information “will assist him”

at ConnectWise by “giv[ing] [him] a nuanced understanding of

the needs of Datto’s MSP partners and critically, vulnerable

areas that ConnectWise can exploit.” (Id. at 19).

The Court must accept these allegations as true at this

stage and, taken together, these allegations raise a

reasonable inference that Moore actually used the

confidential information. See Trinity Graphic, USA, Inc. v.

Tervis Tumbler Co., 320 F. Supp. 3d 1285, 1293 (M.D. Fla.

2018)(“The misappropriation allegations, whether or not

Defendant Tervis’s actions were improper and met the

statutory definition of ‘misappropriation’ are also questions

of fact that cannot be resolved on a motion to dismiss. The

Amended Complaint contains detailed allegations that Tervis

misappropriated Plaintiff’s trade secrets by acquiring them

through improper means and disclosing them to third

parties.”).

Thus, the Court denies the Motion to the extent it seeks

to dismiss Counts III and IV.

d. CFAA Claim

The CFAA “prohibits accessing a computer and obtaining

information without authorization or by exceeding authorized

access.” Agilysys, Inc. v. Hall, 258 F. Supp. 3d 1331, 1340

(N.D. Ga. 2017)(citation omitted). “Although principally a

criminal statute, the CFAA provides that ‘any person who

suffers damage or loss [as a result of a violation] . . . may

maintain a civil action . . . for compensatory damages and

injunctive relief or other equitable relief.’” Diamond Power

Int’l, Inc. v. Davidson, 540 F. Supp. 2d 1322, 1341 (N.D. Ga.

2007)(quoting 18 U.S.C. § 1030(g)).

In Count V, Datto and Datto Europe allege Moore violated

Section 1030(a)(2)(C) of the CFAA, which provides that a

person violates the CFAA if he “intentionally accesses a

computer without authorization or exceeds authorized access,

and thereby obtains . . . information from any protected

computer.” 18 U.S.C. § 1030(a)(2)(C). “ The CFAA does not

define the phrase ‘without authorization,’ but it defines

‘exceeds authorized access’ as ‘to access a computer with

authorization and to use such access to obtain or alter

information in the computer that the accesser is not entitled

so to obtain or alter.’” EarthCam, Inc. v. OxBlue Corp., 703

F. App’x 803, 808 (11th Cir. 2017)(quoting 18 U.S.C. §

1030(e)(6)).

Moore argues that Count V, the CFAA claim, fails to state

a claim because it fails to include: (1) “facts that support

the conclusion that Defendant exceeded his authorized use” of

the computer system; (2) “well pled facts that support the

conclusion that [Moore] misused data he obtained from

Plaintiffs’ computer”; (3) allegations that Moore’s

“activities on the computer resulted in damage”; and (4)

“factual allegations that [Moore]’s actions actually resulted

in” the diminished value of Datto’s trade secrets and

confidential information. (Doc. # 21 at 22-23).

Again, the Court disagrees. The complaint plausibly

pleads that Moore “exceeded his authorized use” by alleging

that Moore accessed confidential documents and copied them to

a USB device after his employment had ended. Over the years,

there has been disagreement among district courts in this

Circuit regarding the breadth of the phrase “exceeds

authorized use.” See Enhanced Recovery Co., LLC v. Frady, No.

3:13-cv-1262-J-34JBT, 2015 WL 1470852, at *2 (M.D. Fla. Mar.

31, 2015)(noting that “reasonable jurists consistently

disagree” regarding this phrase and holding that “the CFAA’s

definition of ‘exceeds authorized access’ does not reach an

employee who has permission to access proprietary

information, but subsequently uses it in violation of company

policy”); Aquent LLC v. Stapleton, 65 F. Supp. 3d 1339, 1346

(M.D. Fla. 2014)(“Courts have split on the meaning of

exceeding authorization under the CFAA.”).

However, in the context of criminal CFAA actions, the

Eleventh Circuit has adopted the broader view. See United

States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir.

2010)(holding that even a person with authority to access a

computer can be guilty of criminal computer fraud if that

person subsequently misuses the computer); United States v.

Van Buren, 940 F.3d 1192, 1208 (11th Cir. 2019)(upholding

defendant’s criminal conviction under the CFAA because “under

Rodriguez, there is no question that the record contained

enough evidence for a jury to convict” where the defendant

police officer accessed a database he was authorized to use,

but for the improper purpose of selling information he

obtained there), cert. granted, 140 S. Ct. 2667 (2020).2 Thus,

the broader interpretation is the correct one.

Under this broader view, Moore plausibly exceeded his

authorized use when he accessed the information after he had

stopped working for Datto and Datto Europe for the improper

purpose of using that information at his next employment with

a competitor. See Aquent LLC, 65 F. Supp. 3d at 1346 (finding

at motion to dismiss stage that a defendant’s “conduct

exceeded her authorization because she accessed the computers

for non-business-related purposes and is thus covered by the

CFAA”); Amedisys Holding, LLC v. Interim Healthcare of

Atlanta, Inc., 793 F. Supp. 2d 1302, 1315 (N.D. Ga.

2011)(“While there is some question of whether Plaintiff

generally permitted Mack to send the Referral Logs to her

personal email account, there is no question that Mack

exceeded any authority she had when she sent them to herself

after accepting a position at Interim for use in competing

with Amedisys.”).

2 The Court acknowledges that Van Buren is currently before

the Supreme Court. However, unless and until such time that

the Supreme Court reverses that decision, Van Buren and

Rodriguez remain binding.

Next, use of the unlawfully obtained information is not

an element of a CFAA claim. But, regardless, the complaint

alleges Moore is “improperly using Datto’s trade secret

information in his capacity as an employee of ConnectWise.”

(Doc. # 1 at 28).

Finally, “to bring a civil action under the CFAA, a

plaintiff must suffer ‘damage or loss’ as a result of

violation of the statute, and the conduct must be one of five

enumerated types.” Aquent LLC, 65 F. Supp. 3d at 1344.

“Because of the disjunctive nature of the statute, plaintiffs

suing under [Section] 1030(a)(2)(C) . . . are not required to

plead damage in addition to the required amount of loss.” Id.

Loss is defined 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).

Here, the complaint sufficiently pleads loss, including

“costs incurred by Datto to investigate, assess, and address

Moore’s misconduct,” such as “the costs associated with

identifying Moore’s unauthorized access to Datto’s computers,

computer systems, and computer networks, and the confidential

information contained in the documents he has retained.”

(Doc. # 1 at 32). And, because the complaint pleads loss, the

complaint need not plead in greater detail how the value of

Datto’s trade secrets and confidential information was

diminished by Moore’s conduct. Regardless, the complaint

raises the plausible inference that the misappropriated

information was diminished in value by Moore’s alleged

disclosure to a competitor, because the “substantial

competitive advantage” this information gives Datto “would be

lost if this information became known to the public or to

Datto’s competitors.” (Doc. # 1 at 10).

The Motion is denied as to Count V.

3. More Definite Statement

Moore’s alternate request for a more definite statement

of the claim is denied because the Court has found all claims

of the complaint to be sufficiently pled.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Daniel Moore’s Motion to Dismiss or, in the

Alternative, Motion for a More Definite Statement and/or

Summary Judgment (Doc. # 21) is DENIED.

(2) Moore’s answer to the complaint is due within 14 days of

the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

lith day of December, 2020.

lanier. Hesnerby (reni¥h.

VIR! IA M. HERNANDEZ'COVINGTON

UNITED STATES DISTRICT JUDGE

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