# Datto, Inc. v. Moore

> District Court, M.D. Florida · December 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10106604

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106604

## How later opinions describe it (automated extraction)

- 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”
- 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”
- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106604. Public record. Not legal advice.