UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1359

TECH SYSTEMS, INC.,

Plaintiff - Appellee,

v.

LOVELEN PYLES,

Defendant – Appellant,

and

JOHN AND JANE DOES 1-10,

Defendants.

No. 13-2098

TECH SYSTEMS, INC.,

Plaintiff - Appellee,

v.

LOVELEN PYLES,

Defendant – Appellant,

and

JOHN AND JANE DOES 1-10,

Defendants.
2

Appeals from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:12-cv-00374-GBL-JFA)

Submitted: October 27, 2015 Decided: November 18, 2015

Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit 

Judge.

Affirmed by unpublished per curiam opinion.

Eric H. Zagrans, ZAGRANS LAW FIRM LLC, Cleveland, Ohio, for 

Appellant. Eric Scott Crusius, Stephen P. Ramaley, MILES & 

STOCKBRIDGE P.C., Tysons Corner, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Lovelen Pyles appeals the district court’s orders denying 

her motion under Fed. R. Civ. P. 50 for judgment as a matter of 

law and granting attorney’s fees in favor of Tech Systems, Inc. 

(“TSI”). Pyles asserts that the district court erred in denying 

her motion as to violations of the Computer Fraud and Abuse Act 

(“CFAA”), 18 U.S.C. § 1030 (2012); the Electronic Communications

Privacy Act, 18 U.S.C. § 2701 (2012); and her breach of 

fiduciary duty. She also contends that the district court erred

in instructing the jury on punitive damages and in granting 

TSI’s motion for attorney’s fees. We affirm.

I.

“We review de novo the legal conclusions upon which the 

district court’s denial of judgment as a matter of law were 

premised.” Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 164 

(4th Cir. 2012). “If, viewing the facts in the light most 

favorable to the non-moving party, there is sufficient evidence 

for a reasonable jury to have found in [the non-moving party’s] 

favor, we are constrained to affirm the jury verdict.” Lack v. 

Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th Cir. 2001).

A.

“Although the CFAA is primarily a criminal statute, it 

permits private parties to bring a cause of action to redress a 
4

violation of the CFAA . . . .” A.V. ex rel. Vanderhye v. 

iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009). The civil 

suit may be brought in limited circumstances by “[a]ny person 

who suffers damage or loss” as a result of a CFAA violation. 18 

U.S.C. § 1030(g). As relevant here, the violation must have 

caused “loss to 1 or more persons during any 1-year period . . . 

aggregating at least $5,000 in value.” 18 U.S.C. 

§ 1030(c)(4)(A)(i)(I), (g). A person violates the CFAA by 

“intentionally access[ing] a computer without authorization or 

exceed[ing] authorized access, and thereby obtain[ing] . . . 

information from any protected computer,” 18 U.S.C. 

§ 1030(a)(2)(C), or “intentionally access[ing] a protected 

computer without authorization, and as a result of such conduct, 

caus[ing] damage and loss,” 18 U.S.C. § 1030(a)(5)(C).

This court narrowly interprets the terms “without 

authorization” and “exceeds authorized access.” WEC Carolina 

Energy Sols. LLC v. Miller, 687 F.3d 199, 206 (4th Cir. 2012). 

“[A]n employee . . . accesses a computer ‘without authorization’ 

when [s]he gains admission to a computer without approval.” Id.

at 204. “[A]n employee ‘exceeds authorized access’ when [s]he 

has approval to access a computer, but uses [her] access to 

obtain or alter information that falls outside the bounds of 

[her] approved access.” Id. “Notably, neither of these 
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definitions extends to the improper use of information validly 

accessed.” Id.

Pyles argues that the CFAA did not apply to her actions 

during her employment with TSI because she, as the human 

resources director, had full access to the computer information. 

Under the WEC Carolina framework, we disagree. Pyles accessed 

both the main computer network and financial servers without 

authorization or in excess of her authority. Additionally, upon 

termination of her employment, Pyles accessed her corporate 

email account and company-issued Blackberry without 

authorization. Moreover, TSI demonstrated damage that resulted 

in losses from Pyles’ actions. Thus, there was sufficient 

evidence for a reasonable jury to have found in TSI’s favor.

B.

A person violates the ECPA by: “(1) intentionally 

access[ing] without authorization a facility through which an 

electronic communication service is provided; or (2)

intentionally exceed[ing] an authorization to access that 

facility; and thereby obtain[ing], alter[ing], or prevent[ing] 

authorized access to a wire or electronic communication while it 

is in electronic storage in such system.” 18 U.S.C. § 2701(a).

Pyles limits her ECPA challenge to whether she acted 

“without authorization” or “exceed[ed] [her] authorization” in 
6

accessing TSI’s computer system.* Pyles contends not only that 

TSI granted her permission to access the computer system, but 

also that her actions did not go outside the bounds of that 

permission. We disagree.

Authorization is a matter of permission and dependent on 

its scope, not on whether information validly accessed was 

properly used. See WEC Carolina, 687 F.3d at 204. Here, 

although Pyles was permitted to use TSI’s email to carry out her 

duties as human resources manager, she was not authorized to 

access the server through which the email functioned in the 

manner she did here. Additionally, her authorization to access 

the Blackberry terminated with her employment. Thus, there was 

sufficient evidence for a reasonable jury to have found in TSI’s 

favor.

II.

In Virginia, to establish a breach of fiduciary duty, a 

plaintiff must show that (1) the defendant owed a fiduciary 

duty, (2) the defendant breached that duty, and (3) damages 

resulted from the breach. Informatics Applications Grp., 

 * Accordingly, Pyles has abandoned any challenge related to 

the other elements of her ECPA violation. Fed. R. App. P. 

28(a)(8)(A); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 

(4th Cir. 1999).
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Inc. v. Shkolnikov, 836 F. Supp. 2d 400, 424 (E.D. Va. 2011). 

“[A]n employee . . . owes a fiduciary duty of loyalty to [her]

employer during [her] employment.” Williams v. Dominion Tech.

Partners, LLC, 576 S.E.2d 752, 757 (Va. 2003). This duty 

“prohibits the employee from acting in a manner adverse to his 

employer’s interest.” Hilb, Rogal & Hamilton Co. of Richmond v. 

DePew, 440 S.E.2d 918, 921 (Va. 1994). Moreover, “termination 

does not automatically free a[n] . . . employee from his or her 

fiduciary obligations” if the action was “founded on information 

gained during the relationship.” Today Homes, Inc. v. Williams, 

634 S.E.2d 737, 744 (Va. 2006) (internal quotation marks 

omitted).

Pyles concedes that she owed TSI a fiduciary duty under 

Virginia law. She asserts that the district court improperly 

denied her motion to strike the breach-of-fiduciary-duty claim

because, she argues, the information she revealed was not the 

kind that would give an advantage to a competing business. 

Nevertheless, the record reveals that she breached her duty by 

acting in bad faith with confidential information and by 

disregarding TSI’s interests in accessing the email server, 

resulting in damages to TSI. Accordingly, the district court 

properly rejected this claim.
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III.

Finally, Pyles challenges the district court’s jury 

instructions allowing for punitive damages and its award of 

attorney’s fees in TSI’s favor. It is a “settled rule” that we

will not consider issues raised for the first time on appeal 

absent “fundamental error or a denial of fundamental justice.” 

In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014) (internal 

quotation marks omitted). “Fundamental error is more limited 

than the plain error standard that [this Court] appl[ies] in 

criminal cases.” Id. (internal quotation marks omitted). Thus, 

this court has used the plain error standard “as something of an 

intermediate step in a civil case.” Id. at 286. “[W]hen a 

party in a civil case fails to meet the plain-error standard, we 

can say with confidence that [s]he has not established 

fundamental error.” Id.

To establish plain error, Pyles must show that: (1) there 

was an error, (2) the error was plain, and (3) the error 

affected her substantial rights. United States v. Robinson, 627 

F.3d 941, 954 (4th Cir. 2010). Even if Pyles makes this 

showing, “we retain discretion to deny relief; plain errors 

should only be corrected where not doing so would result in a 

miscarriage of justice or would otherwise seriously affect the 

fairness, integrity or public reputation of judicial 
9

proceedings.” Id. (alterations, citation, and internal 

quotation marks omitted).

We have refused to undertake plain error review, however, 

where a party “failed to make its most essential argument 

anywhere in its briefs . . . : it never contended that the 

district court fundamentally or even plainly erred.” In re 

Under Seal, 749 F.3d at 292; see Makdessi v. Fields, 789 F.3d 

126, 132 (4th Cir. 2015) (refusing plain error review where 

appellant failed to assert that elements of such review were 

satisfied). Failing to argue either, Pyles has abandoned these 

claims. Moreover, Pyles’ jurisdictional argument is meritless 

because the court properly exercised subject-matter jurisdiction 

over her federal and state-law claims pursuant to 28 U.S.C. 

§ 1331 (2012) (federal question), and 28 U.S.C. § 1367(a) (2012) 

(supplemental jurisdiction).

Accordingly, we affirm the district court’s orders. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED