-1- 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMERICAN FURUKAWA, INC., 

Plaintiff, 

v. 

ISTHIHAR HOSSAIN, 

Defendant. 

 /

Case No. 14-cv-13633 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

MICHAEL J. HLUCHANIUK

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR 

PARTIAL JUDGMENT ON THE PLEADINGS [30] 

I. INTRODUCTION

American Furukawa, Inc. (“Furukawa” or “Plaintiff”) commenced the instant action 

against its former employee, Isthihar Hossain (“Defendant”), on September 19, 2014. See Dkt. 

No. 1. In the Complaint, Furukawa alleges that Hossain unlawfully accessed its computers to 

obtain confidential information in violation of the Computer Fraud and Abuse Act (“CFAA”), 18 

U.S.C. § 1030. Additionally, Furukawa brings claims under Michigan law for Fraud, Breach of 

Contract, Breach of Fiduciary Duty, Misappropriation of Trade Secrets, and Conversion. Id. 

When it filed the Complaint, Furukawa simultaneously moved for a Temporary 

Restraining Order (“TRO”). See Dkt. No. 4. On September 22, 2014, the Court entered a TRO 

enjoining Hossain from using Furukawa’s information, and ordering Hossain to show cause why 

a preliminary injunction should not be issued; account for and return Furukawa’s confidential 

information; and abide by a confidentiality agreement between the parties. See Dkt. No. 7. The 

parties entered a Stipulated Order leaving the terms of the TRO in place, while setting forth an 

agreed protocol for examining the computers and email accounts at issue. See Dkt. No. 18. 

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Presently before the Court is Defendant’s Partial Motion for Judgment on the Pleadings 

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Dkt. No. 30. Furukawa filed 

a Response to Hossain’s Motion, but Hossain failed to file a Reply in accordance with the 

Court’s Local Rules. See E.D. Mich. L.R. 7.1(e)(1)(c). After reviewing the briefing, the Court 

concludes that oral argument will not aid in the resolution of this matter. Accordingly, the Court 

will resolve the Motion on the briefs as submitted. See E.D. Mich. L.R. 7.1(f)(2). For the reasons 

discussed herein, the Court will DENY Hossain’s Motion for Partial Judgment on the Pleadings 

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure [30]. 

II. FACTUAL BACKGROUND

American Furukawa, Inc. is a Delaware corporation and its principal place of business is 

located at 47677 Galleon Ct, Plymouth, Michigan. Furukawa is a supplier of advanced 

technology automotive, electronics and specialty products to several high technology industries. 

Isthihar Hossain accepted employment with Furukawa in September, 2011 as a Power Systems 

Electrical Engineer. Hossain reported to Furukawa’s General Manager and Vice President. 

When Hossain began his employment with Furukawa, Furukawa asserts that Hossain 

agreed to abide by Furukawa’s Policies regarding “Supplier and Vendor Information,” “Conflicts 

of Interest,” “Confidentiality,” “Outside Employment,” “Company Property” and “Removable 

Media Use.” Furukawa also asserts that Hossain entered into an Invention Assignment & 

Secrecy Agreement (“Secrecy Agreement”) with Furukawa, which dictated that Hossain “will 

regard and preserve as confidential all trade secrets pertaining to the Company’s business that 

have been or may be obtained by me by reason of my employment.” The Secrecy Agreement 

also dictated that Hossain would not “without prior authority from the Company to do so, use for 

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my own benefit or purposes, nor disclose to others, either during my employment or thereafter” 

any trade secrets pertaining to Furukawa’s business. 

By 2014, Hossain had become a Production Manager and Senior Production Manager 

with access to Furukawa’s trade secrets, know-how, intellectual property and other confidential 

information. On March 11, 2014, while he was still employed by Furukawa, Furukawa asserts 

that Hossain entered into an “Employment Agreement” (“Agreement”) with Huatong—a 

competitor and supplier to Furukawa. As part of Hossain’s alleged Agreement with Huatong, 

Hossain was to serve as CEO of a new sales company, American Huatong. Also on March 11, 

Furukawa asserts that Hossain downloaded 910 Furukawa files to his external hard drive without 

his manager’s permission. 

On March 14, 2014, Furukawa states that Hossain called into Furukawa’s offices and 

indicated he was sick. Yet, on March 17, 2014, Furukawa asserts that Hossain downloaded 

another 875 Furukawa files and also moved two-and-a-half years of email from Furukawa’s 

exchange server to his external hard drive without his manager’s permission. While files were 

allegedly being downloaded on March 17, 2014, Furukawa states that Hossain informed 

Furukawa he was unable to work due to a basketball injury. Notably, pursuant to his alleged 

Agreement with Huatong, Hossain was scheduled to begin his employment with Huatong on 

March 17, 2014. 

As a result of his reported injury, Hossain was granted a leave of absence, commencing 

March 18, 2014. Critically, as a condition for granting the leave of absence, Furukawa asserts 

that it instructed Hossain that he could not do “any work” for Furukawa during his leave of 

absence. Despite the instructions to the contrary, Furukawa asserts that Hossain accessed 

information on his company laptop and copied Furukawa files from his company email to his 

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personal “gmail” account during his leave of absence. Furukawa purportedly did not learn of 

Hossain’s activities until the following chain of events raised suspicion. 

On March 20, 2014, Huatong announced that it would no longer sell Electrical 

Submersible Pump (“ESP”) cables to the United States market through a partnership with 

Furukawa. Huatong also announced that it would no longer sell service drop cables to Kingwire, 

and photovoltaic (“PV”) cables to the United States market, through Furukawa. 

On Thursday, April 24, 2014, Hossain sent an email to Furukawa’s Manager of Human 

Resources stating that his doctor had cleared him to return to work. On April 25, 2014, Furukawa 

claims Hossain reported for work late and left early. On Monday, April 28, 2014, Hossain 

announced that he was resigning his employment, effective May 2, 2014. Furukawa accepted 

Hossain’s resignation, effective April 29, 2014, and paid him through May 2, 2014. 

Despite his alleged Agreement with Huatong, when he resigned his employment, Hossain 

allegedly indicated he did not “have another job lined up or anything,” but his “previous 

employer” had been contacting him, and he was “pretty sure” that he could get a job with them. 

Upon his departure from Furukawa, Hossain was asked to sign an “Employee Certification & 

Agreement on Termination,” certifying that he had returned all property belonging to the 

Company, had complied with the Secrecy Agreement and would continue to abide by that 

Agreement. Hossain allegedly refused to sign. 

On or about May 12, 2014, Furukawa learned that Huatong had approached WTEC—one 

of Furukawa’s customers—about buying cable from Huatong. On May 16, 2014, Furukawa 

received an email from WTEC regarding WTEC's “compound” requirements and “payment 

terms.” The email from WTEC was addressed to Hossain at his former Furukawa email address. 

On May 30, 2014, WTEC confirmed that Hossain was acting as Huatong’s agent with respect to 

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the sales negotiations between WTEC and Huatong. On June 5, 2014, Furukawa received 

another email from WTEC, addressed to Hossain’s Furukawa email address purportedly asking 

Hossain to quote the price for “PV Wire 2kV AL S-8000” and “PV Wire 2kV CU.” 

Furukawa sent a letter to Hossain on June 9, 2014, reminding him of his obligations 

under the Secrecy Agreement. In the letter, Furukawa demanded that Hossain immediately cease 

and desist from any further solicitation of cable business from WTEC or any other customer of 

Furukawa. Furukawa also sought assurances that Hossain would abide by his trade secret 

obligations, and would not use or disclose any trade secret information that he acquired during 

his employment with Furukawa. Hossain purportedly refused to comply with this request. 

Furukawa attempted to negotiate with Hossain to resolve the dispute. Throughout the 

negotiations, Hossain purportedly maintained that he had returned all property belonging to 

Furukawa and fully complied with the Secrecy Agreement. After looking into the actions of 

Hossain, Furukawa brought the instant action pursuant to the CFAA and Michigan law. 

III. DISCUSSION

A. LEGAL STANDARD

Federal courts review motions for judgment on the pleadings brought pursuant to Federal 

Rule of Civil Procedure 12(c) using the standards applicable to motions filed under Rule 

12(b)(6). See Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 846 (6th Cir. 2012). Though 

litigants employ these procedural mechanisms at different stages of the proceedings, the purpose 

of both motions is to test the legal sufficiency of a plaintiff's pleadings. Thus, as with Rule 

12(b)(6) motions, a Rule 12(c) motion allows a court to make an assessment as to whether a 

plaintiff has stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 

As articulated by the Supreme Court of the United States, “[t]o survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 

L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570, 127 S.Ct. 1955, 167 

L.Ed.2d 929 (2007)). This facial plausibility standard requires claimants to put forth “enough 

fact[s] to raise a reasonable expectation that discovery will reveal evidence of” the requisite 

elements of their claims. Twombly, 550 U.S. at 557. Even though a complaint need not contain 

“detailed” factual allegations, its “factual allegations must be enough to raise a right to relief 

above the speculative level.” Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 

545, 548 (6th Cir. 2007) (citing Twombly, 550 U.S. at 555) (internal citations omitted). 

While courts are required to accept the factual allegations in a complaint as true, 

Twombly, 550 U.S. at 556, the presumption of truth does not apply to a claimant’s legal 

conclusions, Iqbal, 556 U.S. at 678. Therefore, to survive a motion to dismiss, a plaintiff’s 

pleading for relief must provide “more than labels and conclusions, and a formulaic recitation of 

the elements of a cause of action will not do.” Ass'n of Cleveland Fire Fighters, 502 F.3d at 548 

(quoting Twombly, 550 U.S. at 555) (internal citations and quotations omitted). 

In addition to evaluating the sufficiency of the factual allegations within the four corners 

of a complaint, courts may consider any exhibits attached to the complaint, matters of public 

record, and exhibits attached to a defendant's 12(b)(6) motion, provided that the latter are 

referred to in the complaint and are central to the claims therein. See Bassett v. NCAA, 528 F.3d 

426, 430 (6th Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).

 

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B. LEGAL ANALYSIS

The central question presented by Hossain’s Motion is whether this Court should adopt 

the approach taken by other district courts in Michigan to find that Hossain did not violate the 

CFAA when he removed files from Furukawa servers in contravention of a confidentiality 

agreement and computer policy. 

The Court must also resolve the following questions presented by Hossain’ Motion: 

whether the Michigan Uniform Trade Secrets Act (“MUTSA”) preempts Furukawa’s claims for 

Fraud, Breach of Contract, Breach of Fiduciary Duty, and Conversion; whether Furukawa’s 

Breach of Contract claim is precluded by disclaimer language in the Furukawa Policies and 

Practices Handbook; and whether Furukawa can bring a claim for Conversion. 

With respect to the central question advanced in Hossain’s Motion, the Court navigated a 

deep circuit split regarding interpretations of the CFAA’s phrases “without authorization” and 

“exceeds authorized access.” The Sixth Circuit has given separate meaning to both of these 

phrases. Following the Sixth Circuit’s guidance, this Court finds that Furukawa has stated a 

proper claim under the CFAA, because Furukawa has plead that Hossain accessed some files 

when he was told not to work for Furukawa—“without authorization”—and accessed other files 

in in violation of a computer policy—“exceeds authorized access.” 

With respect to the remaining questions presented by Hossain’s Motion, the Court finds 

that Furukawa’s claims under Michigan law are not preempted by MUTSA because Furukawa’s 

claims are not based solely on trade secrets. Additionally, the Court finds that Furukawa’s 

Breach of Contract claim is not premised on the Furukawa Policies and Practices Handbook, so 

the handbook does not warrant the dismissal of Furukawa’s claim. Lastly, the Court finds that 

Furukawa has presented a proper claim for Conversion because Hossain took information from 

Furukawa’s servers. The Court’s findings are addressed in detail below. 

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1. Furukawa Properly Asserts Claims Under the CFAA 

The CFAA prohibits seven types of conduct involving unauthorized access to computers. 

See 18 U.S.C. § 1030(a)(1)-(7). While the CFAA was initially just a criminal statute, in 1994 

Congress added private civil causes of action to permit “[a]ny person who suffers damage or loss 

by reason of a violation of [the statute]” to “maintain a civil action against the violator to obtain 

compensatory damages and injunctive relief or other equitable relief.” 18 U.S.C. § 1030(g). 

Furukawa contends that Hossain violated 18 U.S.C. § 1030(a)(2)(c) (“Subsection 

(a)(2)(c) of the CFAA”), which imputes liability to anyone who “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). Additionally, Furukawa 

asserts that Hossain violated 18 U.S.C. § 1030(a)(4) (“Subsection (a)(4) of the CFAA”), which 

imputes liability to anyone who “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[.]” 18 U.S.C. § 1030(a)(4). 

Under both Subsection (a)(2)(c) and Subsection (a)(4) of the CFAA, Hossain would be 

liable if Furukawa is able to demonstrate that he accessed a “protected computer”1

 either 

“without authorization” or in a manner that “exceeds authorized access.” However, Furukawa 

must also show that it suffered “damage”2

 or “loss” 3 as a result of Hossain’s purported violation 

of the CFAA, and must demonstrate that the purported violation involved at least one of five 

 1

 A “protected computer” is defined as any computer “used in or affecting interstate or foreign commerce or 

communication[.]” 18 U.S.C. § 1030(e)(2)(B). 

2

 The CFAA defines the term “damage” as “any impairment to the integrity or availability of data, a program, a 

system, or information[.]” 18 U.S.C. § 1030(e)(8). 

3

 The CFAA indicates that “the term ‘loss’ means any reasonable cost to any victim[.]” 18 U.S.C. § 1030(11). 

Specifically, the CFAA explains that loss includes “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[.]”Id. 

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aggravating factors “set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i).” 

18 U.S.C. § 1030(g). Only one factor is relevant to the present claim: 18 U.S.C. § 

1030(c)(4)(A)(i)(I), which requires the showing of “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). 

Thus, to set forth a proper civil claim under the CFAA based on a violation of Subsection 

(a)(2), Furukawa must show that Hossain: (1) intentionally accessed a computer, (2) without 

authorization or exceeding authorized access, and that he (3) thereby obtained information (4) 

from any protected computer (if the conduct involved an interstate or foreign communication), 

and that (5) there was loss to one or more persons during any one-year period aggregating at 

least $5,000 in value. See LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132 (9th Cir. 2009). 

To successfully bring an action under the CFAA based on a violation of Subsection 

(a)(4), Furukawa must show that Hossain: (1) accessed a “protected computer,” (2) without 

authorization or exceeding such authorization that was granted, (3) “knowingly” and with “intent 

to defraud,” and thereby (4) “further[ed] the intended fraud and obtain[ed] anything of value,” 

causing (5) a loss to one or more persons during any one-year period aggregating at least $5,000 

in value. See id. (citing P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, 

LLC, 428 F.3d 504, 508 (3d. Cir. 2005)). 

Here, Hossain contends that he is entitled to partial judgment on the pleadings because 

Furukawa cannot satisfy the first and second factors of either of these inquiries. In other words, 

Hossain contends that Furukawa cannot show he accessed a protected computer either “without 

authorization” or in a manner that “exceeds authorized access.” The Court disagrees. 

The CFAA does not define the phrase “without authorization,” however the CFAA does 

define “exceeds authorized access” as follows: “[T]o access a computer with authorization and to 

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use such access to obtain or alter information in the computer that the accesser is not entitled so 

to obtain or alter.” 18 U.S.C. § 1030(e)(6). Given the similarity of the phrases, there is a deep 

circuit split regarding interpretations and the scope of the CFAA. The circuit split has been cast 

as a clash between “broad” and “narrow” interpretations of the CFAA’s phrases “without 

authorization” and “exceeds authorized access.” 

 The “broad” approach was first adopted by the First Circuit, which found that an 

employee “exceeds authorized access” by violating a confidentiality agreement. See EF Cultural 

Travel BV v. Explorica, Inc., 274 F.3d 577, 581–84 (1st Cir. 2001). Later, the Seventh Circuit 

adopted a “broad” view based on principles of agency when it found that an employee acted 

“without authorization” as soon as the employee severed the agency relationship through disloyal 

activity. See Int'l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). 

More recently, however, courts have moved away from a “broad” view premised on 

theories of agency and violations of confidentiality agreements. The more recent trend for the 

“broad” approach finds that an employee “exceeds authorized access” by violating employer 

policies regarding access and use of computers. See, e.g., United States v. John, 597 F.3d 263, 

271–73 (5th Cir. 2010) (“While we do not necessarily agree that violating a confidentiality 

agreement . . . would give rise to criminal culpability, we do agree with the First Circuit that the 

concept of ‘exceeds authorized access’ may include exceeding the purposes for which access is 

‘authorized.’”); United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010); EF Cultural 

Travel BV v. Zefer Corp., 318 F.3d 58, 62 (1st Cir. 2003) (“A lack of authorization could be 

established by an explicit statement [.]”); see also United States v. Salum, 257 F. App’x 225, 230 

(11th Cir. 2007); United States v. Teague, 646 F.3d 1119, 1121–22 (8th Cir. 2011). 

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The Ninth Circuit was the first Circuit to adopt the “narrow” interpretation of the CFAA 

by narrowly interpreting the CFAA’s “without authorization” language. See LVRC Holdings LLC 

v. Brekka, 581 F.3d 1127 (9th Cir. 2009). In so doing, the Ninth Circuit repudiated the “broad” 

approach, which used principles of agency to give meaning to the CFAA’s “without 

authorization” language. See Brekka, 581 F.3d at 1134. The Court in Brekka explicitly refused to 

hold an employee liable under the CFAA’s “without authorization” language based on an agency 

theory in order to avoid interpreting the CFAA in a “surprising and novel way[] that impose[s] 

unexpected burdens on defendants.” Brekka, 581 F.3d at 1134. 

Instead, the Ninth Circuit in Brekka advanced what it deemed a “sensible” interpretation 

of the CFAA, giving separate meaning to the phrases “without authorization” and “exceeds 

authorized access” by focusing on “the employer’s decision to allow or to terminate an 

employee’s authorization to access a computer[.]” Brekka, 581 F.3d at 1133. In so doing, the 

Brekka decision adopted a “narrow” approach when giving meaning to the CFAA’s “without 

authorization” language. However, to give meaning to the CFAA’s “exceeds authorized access” 

language, the Brekka Court simply applied the definition provided by Congress. Under the 

analysis put forth by the court in Brekka, whether an individual “exceeds authorized access” 

“depends on the actions taken by the employer.” Brekka, 581 F.3d at 1135. 

In Pulte Homes, Inc. v. Laborers’ International Union of North America, the Sixth 

Circuit relied heavily on the Brekka decision to give meaning to the CFAA’s “without 

authorization” and “exceeds authorized access” language. 648 F.3d 295 (6th Cir. 2011). In Pulte 

Homes, the Sixth Circuit found that the phrases were separate and distinct. See Pulte Homes, 648 

F.3d at 304 (citing Citrin, 440 F.3d at 420, to note “that ‘the difference . . . is paper thin,’” and 

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citing Daniel v. Cantrell, 375 F.3d 377, 383 (6th Cir. 2004), to note that the Sixth Circuit can 

give meaning to both “without authorization” and “exceeds authorized access” under the CFAA). 

The Sixth Circuit relied on the Brekka decision to apply a “narrow” interpretation to the 

CFAA’s “without authorization” language. See Pulte Homes, 648 F.3d at 303-04. However, after 

recognizing a distinction between the CFAA’s phrases, the Sixth Circuit did not go beyond the 

CFAA’s provided definition to give meaning to “exceeds authorized access;” opting instead to 

simply apply the meaning provided by Congress, just as the Ninth Circuit did in Brekka. See 

Pulte Homes, 648 F.3d at 304; cf. Brekka, 581 F.3d at 1135. Essentially, the Sixth Circuit 

adopted the original “sensible” interpretation put forth by the Ninth Circuit’s Brekka decision. 

Nevertheless, the Ninth and Fourth Circuits later widened the circuit split by applying the 

“narrow” interpretation to give meaning to the CFAA’s “exceeds authorized access” language as 

well. See United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc); WEC Carolina Energy 

Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012). Under the Ninth and Fourth Circuit’s new 

“narrow” interpretation of “exceeds authorized access,” an employee given access to a computer 

is authorized to access the computer regardless of any policies that regulate the use of the 

computer or its information. See Nosal, 676 F.3d at 863-64; WEC Carolina, 687 F.3d at 207. 

Hossain argues that the approach taken by the Ninth and Fourth Circuits is proper 

because they interpret both the phrases “without authorization” and “exceeds authorized access” 

narrowly. Hossain urges this Court to follow other district courts in Michigan that have followed 

the Ninth and Fourth Circuit’s new “narrow” approach. See, e.g., Ajuba Int’l, L.L.C. v. Saharia, 

871 F. Supp. 2d 671 (E.D. Mich. 2012); Dana Ltd. v. Am. Axle & Mfg. Holdings, Inc., No. 1:10-

CV-450, 2012 WL 2524008 (W.D. Mich. June 29, 2012). 

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However, this Court is not bound by such decisions. See Camreta v. Greene, 131 S. Ct. 

2020, 2033 n.7, 179 L. Ed. 2d 1118 (2011)). This Court must take its guidance from the Sixth 

Circuit, which interpreted the CFAA’s “without authorization” and “exceeds authorized access” 

language separately to give meaning to each phrase. See Pulte Homes, 648 F.3d at 303-04. 

While “[d]ifferent interpretations of the same statute within the same district court are 

generally not preferred (except, perhaps, by courts of appeals, which were created in part to 

resolve such differences of opinion)[,]” Dice Corp. v. Bold Technologies, No. 11-13578, 2012 

WL 263031, at *7 (E.D. Mich. Jan. 30, 2012), this Court will follow the guidance of the Sixth 

Circuit to find that a “narrow” interpretation is warranted to give meaning to the CFAA’s 

“without authorization” language, but not “exceeds authorized access.” 

a. Without Authorization 

The Court agrees with the other courts in this district who have adopted the “narrow” 

approach to give meaning to the CFAA’s “without authorization” language. In light of the 

meaning the Sixth Circuit gave to the phrase “without authorization,” this Court finds that 

adopting the “broad” agency approach advanced by Furukawa would be contrary to plain 

meaning of the CFAA. Nevertheless, even under, the “narrow” approach, the Court finds that 

Furukawa has properly alleged that Hossain accessed some files “without authorization.” 

i. The Sixth Circuit adopted a narrow interpretation of “without 

authorization,” which is controlling in this Court. 

Furukawa pushes the Court to adopt a “broad” agency approach to give meaning to the 

CFAA’s “without authorization” language, arguing that “‘an employee accesses a computer 

‘without authorization’ whenever the employee, without the employer’s knowledge, acquires an 

interest that is adverse to that of his employer or is guilty of a serious breach of loyalty.” Dkt. 

No. 33 at 18 (quoting GuestTek v. Interactive Entm’t, Inc., 665 F. Supp. 2d 42, 45 (D. Mass. 

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2009)); see also id. (quoting Citrin, 440 F.3d at 420-21 to state: “The reasoning behind this 

approach is that ‘[v]iolating the duty of loyalty, or failing to disclose adverse interests, voids the 

agency relationship’ and, therefore, ‘terminates’ the agent’s ‘authority.’”). 

This Court will not adopt a broad agency approach in light of the meaning the Sixth 

Circuit provided for the CFAA’s “without authorization” language. Because the CFAA’s 

“without authorization” language was not defined by Congress, the Sixth Circuit looked to 

term’s ordinary usage. See Pulte Homes, 648 F.3d at 303 (“Because Congress left the 

interpretation of ‘without authorization’ to the courts, we [] start with ordinary usage.”). 

To define “authorization” the Sixth Circuit found that the “plain meaning of 

‘authorization’ is ‘[t]he conferment of legality; . . . sanction.’” Id. at 303-04 (citing 1 Oxford 

English Dictionary 798 (2d ed. 1989)) (brackets in original). With this definition for 

“authorization,” the Sixth Circuit definitively concluded: “Commonly understood, then, a 

defendant who accesses a computer ‘without authorization’ does so without sanction or 

permission.” Id. (citing Brekka, 581 F.3d at 1132–33) (emphasis added). 

The Sixth Circuit’s definition of “without authorization” is in accord with other circuits 

that defined the term. For example, the Ninth Circuit explained that “a person who ‘intentionally 

accesses a computer without authorization,’ accesses a computer without any permission at 

all[.]” Brekka, 581 F.3d at 1133 (citing RANDOM HOUSE UNABRIDGED DICTIONARY, 

139 (2001) and WEBSTER'S THIRD INTERNATIONAL DICTIONARY, 146 (2002) to define 

“without authorization”) (internal citations omitted); cf. WEC Carolina, 687 F.3d 199 at 204 

(citing Oxford English Dictionary (2d ed. 1989; online version 2012), to define “‘authorization’ 

as ‘formal warrant, or sanction[,]” and citing Brekka, 581 F.3d at 1133, to state an employee is 

“‘without authorization’ when he gains admission to a computer without approval.”). 

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While Furukawa argues that Hossain’s authorization terminated with his alleged breach 

of the Secrecy Agreement, this Court disagrees. Just because an employee acquires interests 

adverse to their employer’s, it does not inevitably follow that the employee accessed information 

“without authorization.” Indeed, in Brekka—which the Sixth Circuit relies on heavily—the Ninth 

Circuit rejected such a “broad” agency based interpretation of the CFAA’s “without 

authorization” language noting: “Nothing in the CFAA suggests that a defendant’s liability for 

accessing a computer without authorization turns on whether the defendant breached a state law 

duty of loyalty to an employer.” Brekka, 581 F.3d at 1135 (9th Cir. 2009). This Court agrees, and 

will follow the guidance of the Sixth Circuit and interpret the CFAA’s “without authorization” 

language narrowly. See Pulte Homes, 648 F.3d at 304. 

ii. The rule of lenity requires a “narrow” interpretation of the CFAA’s 

“without authorization” language. 

Furukawa also argues “that the ‘legislative history’ supports the broad view.” Dkt. No. 33 

(citing Shurgard Storage Ctrs., Inc. v. Safegard Self Storage, Inc., 119 F. Supp. 2d 1121, 1127-

29 (W.D. Wash. 2000)). The Brekka court rejected a “broad” agency approach to avoid 

interpreting the CFAA’s “without authorization” language in a “surprising and novel way[] that 

impose[d] unexpected burdens on defendants.” Brekka, 581 F.3d at 1134 (citing United States v. 

Santos, 553U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (J. Scalia) (plurality opinion)). 

Because the CFAA is also a criminal statute, the Ninth Circuit emphasized that “[t]he 

rule of lenity, which is rooted in considerations of notice, requires courts to limit the reach of 

criminal statutes to the clear import of their text and construe any ambiguity against the 

government.” Id. at 1135 (citing United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006)). 

The Court in Brekka explained that unexpected results would follow if criminal liability 

were to turn on principles of agency. See id. (“If [an] employer has not rescinded the defendant’s 

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right to use the computer, the defendant would have no reason to know that making personal use 

of the company computer in breach of a state law fiduciary duty to an employer would constitute 

a criminal violation of the CFAA.” 

To avoid unexpected results with respect to interpreting “without authorization,” the 

Ninth Circuit explicitly rejected the rational underpinning decisions finding liability under the 

CFAA based on an agency theory. See Brekka, 581 F.3d at 1135 (finding that the “interpretation 

[relied upon in] Citrin does not comport with the plain language of the CFAA, and given the care 

with which we must interpret criminal statutes to ensure that defendants are on notice as to which 

acts are criminal we decline to adopt the interpretation of ‘without authorization’ suggested by 

Citrin.”). Again, this Court agrees with the Ninth Circuit’s opinion in Brekka, and finds that the 

rule of lenity favors a narrow construction of the CFAA’s “without authorization” language. 

iii. Furukawa properly alleges that Hossain took some files “without 

authorization” 

The Sixth Circuit provided the following guidance for determining whether an individual 

accesses information without authorization: “We ask [] whether [the defendant] had any right to 

call [the plaintiff’s] offices and email its executives.” Id. (emphasis in original). Following the 

guidance of the Sixth Circuit, this Court similarly asks whether Hossain had any right to access 

the Furukawa files. This Court finds Hossain did have a right up to a certain point. 

In Furukawa’s Complaint, it notes that “[i]n his capacity as Production manager and 

Senior Production Manager, Hossain had access to Furukawa’s trade secrets, know-how, 

intellectual property or other confidential information[.]” Dkt. No. 1 at ¶ 30. Nonetheless, 

Furukawa claims Hossain illegally downloaded a total of 1,785 files to his external hard drive 

and two-and-half years of email from Furukawa’s exchange server on March 10, 2014 and 

March 17, 2014. 

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Because Hossain had access on March 10, 2014 and March 17, 2014, the Court finds that 

the 1,785 files and the two-and-a-half years of email Hossain downloaded from Furukawa’s 

exchange server were not downloaded “without authorization” under the CFAA. Cf. Pulte 

Homes, 648 F.3d at 304 (“Because [the plaintiff] does not allege that [the defendant] possessed 

no right to contact [the plaintiff’s] offices and its executives, it fails to satisfy one of the 

elements—access “without authorization”—of its claim.”) (emphasis in original).

Furukawa points to its Removable Media Policy to argue Hossain illegally accessed the 

files on March 11, 2014 and March 17, 2014. However, the Removable Media Policy is relevant 

in determining whether Hossain “exceeded authorized access,” on March 11, 2014 and March 

17, 2014; not whether Hossain accessed the files “without authorization.” Hossain’s alleged 

disregard of the limitation put in place by the Removable Media Policy does not change the fact 

that Hossain was still authorized to access the files. See Brekka, 581 F.3d at 1133. 4 

Nevertheless, Furukawa does make a compelling point by noting that “[w]hile on leave of 

absence from his employment with Furukawa, [Hossain] also downloaded Furukawa’s files from 

his company computer to an external hard drive, and copied Furukawa’s files from his company 

email account to his personal ‘gmail’ account.” Dkt. No. 1 at ¶ 53. 

Furukawa highlights the fact that it informed Hossain he was not authorized to work 

during the period of March 18, 2014 to April 24, 2014. See Dkt. No. 33 at 21 (citing Dkt. No. 33-

1 at 2-3). As a condition for granting the leave of absence, Furukawa instructed Hossain that he 

 4

 A helpful analogy for the application of the “narrow” interpretation of the CFAA’s “without authorization” 

language was explained in a district court opinion out of the Eastern District of Pennsylvania: 

An analogy to burglary provides clarity . . . “If a person is invited into someone’s home and steals 

jewelry while inside, the person has committed a crime—but not burglary—because he has not 

broken into the home. The fact that the person committed a crime while inside the home does not 

change the fact that he was given permission to enter.” 

Dresser-Rand Co. v. Jones, 957 F. Supp. 2d 610, 614 (E.D. Pa. 2013) (quoting Thomas E. Booms, Hacking into 

Federal Court: Employee “Authorization” Under the Computer Fraud and Abuse Act, 13 VAND. J. ENT. & TECH. L. 

543, 571 (2011)). 

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could not do “any work” for Furukawa during his leave of absence. See Dkt. No. 33 at 9. An 

interchange during Hossain’s deposition indicates that Hossain was verbally instructed he could 

not work for Furukawa, and that his access to his Furukawa email account and Furukawa’s 

network was physically revoked. Dkt. No. 1-1(Deposition of Isthihar Hossain). 

In light of these facts, and assuming Furukawa’s allegations are true, the Court finds 

Hossain actually had no right to access files during his leave of absence. See Pulte Homes, 648 

F.3d at 305; see also Brekka, 581 F.3d at 1136 (9th Cir. 2009) (“There is no dispute that if [the 

defendant] accessed [the company’s] information . . . after he left the company . . ., [the 

defendant] would have accessed a protected computer ‘without authorization’ for purposes of the 

CFAA.”); United States v. Steele, 595 F. App’x 208, 211 (4th Cir. 2014) (“[T]he fact that [the 

defendant] no longer worked for [the company] when he accessed its server logically suggests 

that the authorization he enjoyed during his employment no longer existed.”).5

Accordingly, the Court finds that the 1,785 files and the two-and-a-half years of email 

Hossain downloaded to his external hard drive from Furukawa’s exchange server on March 10, 

2014 and March 17, 2014 were not downloaded “without authorization” under the CFAA. 

However, because there were files allegedly downloaded without any permission during 

Hossain’s leave of absence, the Court finds that Hossain is not entitled to judgment on the 

pleadings for the CFAA claim as it pertains to accessing some files “without authorization.” 

 5

 The Court is aware that Hossain was still employed by Furukawa while on his leave of absence, this does not 

overshadow the fact that Furukawa took overt steps to revoke Hossain’s access such that he would recognize he was 

“without authorization.” See, e.g., Steele, 595 F. App’x at 211 (noting the defendant in that case “clearly acted 

‘without authorization’ under the plain meaning of the CFAA” because: “Common sense aside, the evidence 

provides ample support for the jury's verdict. [The company] took steps to revoke [the defendant’s] access to 

company information, including collecting [the defendant's] company-issued laptop, denying him physical access to 

the company's offices, and generally terminating his main system access. And [the defendant] himself recognized 

that his resignation effectively terminated any authority he had to access [the company's] server, promising in his 

resignation letter that he would not attempt to access the system thereafter. Just because [the company] neglected to 

change a password on [the defendant's] backdoor account does not mean [the company] intended for [the defendant] 

to have continued access to its information.”). 

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a. Exceeds Authorized Access 

This Court will depart from the other district courts in Michigan that have found the Sixth 

Circuit favors a narrow approach to both the phrases “without authorization” and “exceeds 

authorized access.” This Court finds that the Sixth Circuit’s narrow approach does not extend to 

the CFAA’s “exceeds authorized access” language, because the Sixth Circuit relied on the 

unambiguous definition provided for the phrase. Accordingly, this Court finds that Furukawa 

properly alleged that Hossain “exceeded authorized access” by downloading Furukawa files in 

contravention of the Removable Media Policy. 

i. The Sixth Circuit adopted the unambiguous definition of “exceeds 

authorized access” provided by Congress in the CFAA. Nothing in the 

definition provided by Congress forecloses employers from 

implementing computer polices that restrict both access and use. 

As discussed, the Sixth Circuit recognized the distinction between the CFAA’s phrases 

“without authorization” and “exceeds authorized access.” Pulte Homes, 648 F.3d at 304 (citing 

Citrin, 440 F.3d at 420and citing Cantrell, 375 F.3d at 383). This distinction is important 

because the Sixth Circuit’s opinion in Pulte Homes only adopted the “narrow” approach as it 

pertained to interpreting the phrase “without authorization;” not “exceeds authorized access.” See 

Pulte Homes, 648 F.3d at 304; see also Dana Ltd., 2012 WL 2524008, at *3 (“[T]he Sixth 

Circuit’s opinion in Pulte Homes, suggests that the Sixth Circuit would adopt the narrow view 

insofar as it relied heavily on the ninth Circuit’s opinion in LVRC Holdings for a definition of 

‘without authorization.’”) (emphasis added) (internal citation committed). 

 With respect to the phrase “exceeds authorized access,” the Sixth Circuit did not go 

beyond the plain language of the CFAA’s provided language. See Pulte Homes, 648 F.3d at 304 

(citing 18 U.S.C. § 1030(e)(6) to note: “Unlike the phrase ‘without authorization,’ the CFAA 

helpfully defines ‘exceeds authorized access’”). The Sixth Circuit cited the Ninth Circuit’s 

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opinion in Brekka to analyze the CFAA’s definition of “exceeds authorized access” and note: 

“Under this definition, ‘an individual who is authorized to use a computer for certain purposes 

but goes beyond those limitations . . . has ‘exceed[ed] authorized access.’” Pulte Homes, 648 

F.3d at 304 (quoting Brekka, 581 F.3d at 1133); cf. Brekka, 581 F.3d at 1133 (interpreting only 

the phrase “without authorization,” yet looking to the plain language of the phrase “exceeded 

authorized access” to reach “a sensible interpretation of §§ 1030(a)(2) and (4)[.]”). 

The Sixth Circuit never indicated that limitations on employee access and use of 

employer computers were foreclosed by the CFAA. Thus, this Court disagrees with the court 

decisions cited by Hossain that take a “narrow” approach to the CFAA’s “exceeds authorized 

access” language in order to find that there can be no liability for an individual who violates a 

computer use policy. See, e.g., Dana, WL 2524008, at *4 (citing Nosal, 676 F.3d at 859, for the 

proposition that “[f]ederal criminal liability should not be based on every violation of a private 

computer use policy.”); Ajuba, 871 F. Supp. 2d at 685-88 (narrowly interpreting “exceeds 

authorized access” to dismiss a CFAA claim where the employer alleged an employee exceeded 

his authorization by accessing computers in violation of use limitations). 

The Ninth Circuit opinion from which the courts taking a narrow approach base their 

reasoning is out of step with the findings of the Sixth Circuit. While the Sixth Circuit simply 

looked to definition provided by Congress to interpret the CFAA’s “exceeds authorized access” 

language, the Ninth Circuit panel in Nosal looked beyond the definition provided by Congress to 

the legislative history of the CFAA to interpret the phrase. See Nosal, 676 F.3d at 860. 

In Nosal, the United States (“the government”) sought to enforce a computer policy 

focused on access, purpose, and use. See Reply Brief for Petitioner Appellant, United States v. 

Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc) (No. 10-10038), 2010 WL 6191782, at *3. The 

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government argued that the employees in Nosal were liable under the CFAA because the 

company “granted [the employees] a restricted right to access [the company] computers by 

explicitly instructing [the employees] to access information in the Searcher database only for 

legitimate [company] business purposes.” Id. at *3. According to the government, “[w]hen [the 

employees] accessed the Searcher database for other purposes, they violated this express access 

restriction and thereby obtained proprietary [company] information that they were ‘not entitled 

so to obtain.’” Id. (citing 18 U.S.C. § 1030(e)(6)). 

The Nosal panel disagreed and found that “‘exceeds authorized access’ in the CFAA is 

limited to violations of restrictions on access to information, and not restrictions on its use.”

Nosal, 676 F.3d at 864. To reach its decision, the Nosal panel claimed “to follow in the path 

blazed by Brekka[.]” Id. at 863. To the contrary, however, the Nosal panel parted from the path 

blazed by Brekka by refusing to emphasize the plain language of the CFAA and resorting to an 

unnecessary analysis of the CFAA’s legislative history. In so doing, the panel took “a plainly 

written statute and pars[ed] it in a hyper-complicated way that distort[ed] the obvious intent of 

Congress.” United States v. Nosal, 676 F.3d 854, 864 (9th Cir. 2012) (Silverman, J., dissenting). 

The Nosal panel ignored the “sensible interpretation of [the CFAA]” put forth in Brekka

that relied on the plain language of the CFAA. See Brekka, 581 F.3d at 1133. In Brekka, the 

Ninth Circuit used the CFAA’s plain language to describe “a person who ‘exceeds authorized 

access’” as a person who “has permission to access the computer, but accesses information on 

the computer that the person is not entitled to access.” Id. (emphasis added). 

As the government argued in Nosal, the operative term in the CFAA’s definition of 

“exceeds authorized access” is “entitled,” which is defined by Webster’s New Riverside 

University Dictionary as “to furnish with a right.” Brief for Petitioner Appellant, United States v. 

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Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc) (No. 10-10038), 2010 WL 6191778, at *15 (citing 

Webster’s New Riverside University Dictionary 435). As the government explained, “[s]ince the 

employer furnishes the right to access its computer systems and obtain information from it, 

explicit policies restricting the right to obtain information from workplace computers determines 

when an individual ‘exceeds authorized access.’” Id. 

The government further highlighted that the term “so” in definition provided for “exceeds 

authorized access” was defined as “[i]n the state or manner indicated or expressed.” Reply Brief 

for Petitioner Appellant, United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc) (No. 10-

10038), 2010 WL 6191782, at *8 (quoting Webster's II New Riverside University Dictionary

1102 (1988)). By noting that the provided definition of “exceeds authorized access” focused on 

the manner of access, the government explained that the provided definition means “someone 

exceeds authorized access when he obtains or alters information that he is not entitled to obtain 

or alter in those circumstances.” Id. (citing 18 U.S.C. § 1030(e)(6)) (emphasis in original). 

Essentially, the government argued that the provided definition comports with the Sixth 

Circuit’s finding that “‘an individual who is authorized to use a computer for certain purposes 

but goes beyond those limitations . . . has ‘exceed[ed] authorized access.’” Pulte Homes, 648 

F.3d at 304 (quoting Brekka, 581 F.3d at 1133); cf. Reply Brief for Petitioner Appellant, 2010 

WL 6191782, at *9 (“[T]he definition of ‘exceeds authorized access’ shows that someone 

exceeds authorized access by obtaining information in a prohibited manner, even if the accesser 

might be entitled to obtain the same information under other circumstances.”) (emphasis added). 

Nevertheless, the Nosal panel disagreed, finding that computer policies focused on use 

were “a poor fit with the statutory language [of the CFAA].” Nosal, 676 F.3d at 857. Instead, the 

Nosal panel found that in the provided definition of “exceeds authorized access,” “[a]n equally 

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or more sensible reading of ‘entitled’ is as a synonym for ‘authorized.’” Id. The Nosal panel then 

found that the government placed “a great deal of weight on a two-letter word that is essentially 

a conjunction,” before finding that “the government’s ‘so’ argument [didn’t] work because the 

word has meaning even if it doesn’t refer to use restrictions.” Nosal, 767 F.3d at 857-58. 

Thus, rather than address the government’s argument, which focused on the manner of 

access, the Nosal panel discounted the argument because it found “Congress could . . . have 

included ‘so’ as a connector or for emphasis.” Id. at 858. This Court does not believe the Sixth 

Circuit would take the Nosal panel’s approach. By inflexibly focusing only on the government’s 

defining of the word “so,” the Nosal panel missed the overarching point that the government was 

attempting to make: that someone exceeds authorized access by obtaining information in a 

prohibited manner, even if the accesser might be entitled to obtain the same information under 

other circumstances. See Reply Brief for Petitioner Appellant, 2010 WL 6191782, at *9. 

The Nosal panel seemed to imply that the manner in which an individual accesses 

information is inconsequential after providing the following hypothetical to explain why the 

government’s “so” argument purportedly didn’t work: 

Suppose an employer keeps certain information in a separate database that can be 

viewed on a computer screen, but not copied or downloaded. If an employee 

circumvents the security measures, copies the information to a thumb drive and 

walks out of the building with it in his pocket, he would then have obtained access 

to information in the computer that he is not “entitled so to obtain.” 

Nosal, 676 F.3d at 858. However, in its hypothetical, the Nosal panel suggests that an employer 

is certainly able to bring an action against an individual under the CFAA if the individual 

accesses the employer’s computers in a manner that exceeds “security measures.” 

This Court fails to see a difference between an employee who circumvents “security 

measures,” and an employee who circumvents explicit computer limitations provided by an 

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employer for employees regarding the employee’s access, use, or purpose when accessing the 

employer’s systems. To this Court, such explicit policies are nothing but “security measures” 

employers may implement to prevent individuals from doing things in an improper manner on 

the employer’s computer systems. 

Such a view is in accord with the plain language of the statute. Indeed, the Nosal panel 

acknowledged that employer policies restricting the manner of use and access fit the plain 

language of the CFAA. See Nosal, 767 F.3d at 858 (“[T]he CFAA is susceptible to the 

government’s broad interpretation[.]”). Nevertheless, the Nosal panel explicitly rejected this 

idea, finding that “it is possible to read both prohibitions as applying to hackers.” Id. 

According to the Nosal panel: “‘[W]ithout authorization’ would apply to outside hackers 

(individuals who have no authorized access to the computer at all) and ‘exceeds authorized 

access’ would apply to inside hackers (individuals whose initial access to a computer is 

authorized but who access unauthorized information or files).” Id. But this “outside hacker” and 

“inside hacker” distinction fails to account for the employer’s ability to dictate the manner in 

which “inside hackers” access unauthorized information or files. 

As discussed, the Sixth Circuit in Pulte Homes adopted the Brekka approach to make 

clear that an individual only acts “without authorization” when they are completely prohibited 

from accessing, obtaining, or altering anything on a protected computer, in any manner. Thus, an 

employee’s “authorized access” is completely dependent on the scope of the authorization 

provided by employers, who dictate at a threshold level how and what an employee may properly 

access, obtain, or alter on the employer’s computer. As the dissent in Nosal explained, “[t]his is 

not an esoteric concept.” Nosal, 676 F.3d at 865 (Silverman, J., dissenting). Indeed, the concept 

was originally advanced by the Ninth Circuit in Brekka when they acknowledged that “[t]he 

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plain language of the statute [] dictates that ‘authorization’ depends on the actions taken by the 

employer.” Brekka, 581 F.3d at 1135 (emphasis added). 

The Court in Brekka explained that, “for purposes of the CFAA, when an employer 

authorizes an employee to use a company computer subject to certain limitations, the employee 

remains authorized to use the computer even if the employee violates those limitations.” Brekka 

581 F.3d at 1133 (emphasis added). Because an individual can violate employer-placed limits, 

yet still have authorization to access an employer’s computer; limitations dictating the manner in 

which the employee may properly access, obtain or alter information on the computer, give full 

effect to the CFAA’s “exceeds authorized access” language.6

 

Foreclosing purpose and use restrictions by employers, simply conflicts with the plain 

language of the statute. See Nosal, 676 F.3d at 864 (Silverman, J., dissenting). If an employee 

were to take customer information in violation of a use policy to commit widespread identity 

theft, it would still be the work of an “inside hacker.” Cf. United States v. John, 597 F.3d 263, 

271-73 (5th Cir. 2010) (finding an employee of Citigroup exceeded her authorized access in 

violation of the CFAA when she accessed confidential customer information in violation of her 

employer’s computer use restrictions and used that information to commit fraud). 

Moreover, the CFAA provides an avenue to obtain civil relief against this “inside 

hacker,” regardless of whether the employee’s actions were part of a criminal scheme. Cf. 

United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010) (rejecting the argument that the 

Defendant should not be liable under the CFAA because his conduct was “not criminal,” and 

 6

 For example, a company may explicitly instruct a driver that he/she can only access the company’s car to deliver 

the company’s pizzas; provided the driver delivers the pizzas in the manner the company dictates he/she can use the 

company’s car. The driver’s access to the car—the driver’s entitlement/authorization—will remain so long as the 

driver does not go beyond the instructions provided by the company regarding the use of the car. However, the 

driver would not be entitled/authorized—the driver would “exceed authorized access”—to use the company’s car to 

deliver a competing company’s pizza; sell drugs out of the company’s car; or do anything else beyond of the scope 

of how the driver was instructed to use the company’s car. 

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noting: “The problem with [the defendant’s] argument is that his use of information is irrelevant 

if he obtained the information without authorization or as a result of exceeding authorized 

access.”) (emphasis added). 

The Nosal panel never clearly explains why the CFAA’s plain language does not permit 

computer owners to “spell out explicitly what is forbidden” on its computers. See EF Cultural 

Travel B.V. v. Zefer Corp., 318 F.3d 58, 63 (1st Cir. 2003); see also United States v. John, 597 

F.3d at 271–73; United States v. Rodriguez, 628 F.3d at 1263; United States v. Salum, 257 F. 

App'x at 230; United States v. Teague, 646 F.3d at 1121–22. Indeed, that was the interpretation 

originally adopted by the Ninth Circuit. See Brekka, 581 F.3d at 1135. Accordingly, this Court 

finds that the Sixth Circuit would look to the provided definition under the CFAA to find that 

whether an employee “exceeds authorized access,” depends on actions taken by the employer. 

ii. There is no need to apply the rule of lenity to interpret the CFAA’s 

“exceeds authorized access” language because Congress provided a 

clear and unambiguous definition for the phrase. 

The Court’s inquiry should end with the unambiguous definition provided by Congress 

for “exceeds authorized access” because “[i]f the statute is not ambiguous, the use of canons of 

construction, reference to legislative history, and application of the rule of lenity is not 

appropriate.” United States v. Lumbard, No. 1:10-CR-388, 2011 WL 4704890, at *1 (W.D. 

Mich. Oct. 6, 2011) aff'd, 706 F.3d 716 (6th Cir. 2013); see also Dep’t of Housing and Urban 

Dev. v. Rucker, 535 U.S. 125, 132, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002); United States v. 

Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). 

Both the Supreme Court of the United States and Sixth Circuit have noted that the rule of 

lenity only “comes into operation at the end of the process of construing what Congress has 

expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” 

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United States v. Adams, 722 F.3d 788, 804 n.8 (6th Cir. 2013) (quoting Callanan v. United 

States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)) (emphasis added). 

The Nosal panel never explained how the CFAA’s definition for “exceeds authorized 

access” was ambiguous, yet the panel examined the legislative history of the CFAA to conclude: 

“If Congress meant to expand the scope of criminal liability to everyone who uses a computer in 

violation of computer use restrictions . . . we would expect it to use language better suited to that 

purpose.” Nosal, 676 F.3d at 857 (emphasis added); see also id. at 857 n.3 (citing 18 U.S.C. § 

1832(a) to note Congress did, in fact, use specific language “in the federal trade secrets statute [] 

where it used the common law terms for misappropriation[.]); id. at 858 (stating that the 

“narrow” construction of “exceeds authorized access is a “perfectly plausible construction of the 

statutory language” that does not turn the CFAA “into a sweeping Internet-policing mandate.”); 

id. at 858 n.5 (outlining the legislative history to support the “narrow” construction). 

However, the judiciary’s “expectation” that Congress would use “better suited” language 

is not an excuse to encroach upon powers explicitly reserved to the legislative branch. See

Violette v. P.A. Days, Inc., 427 F.3d 1015, 1017 (6th Cir. 2005) (quoting Rucker, 535 U.S. at 

134-35, to note: “To avoid a law’s plain meaning in the absence of ambiguity ‘would trench 

upon the legislative powers vested in Congress by Art. I, § 1, of the Constitution.’”). Unlike the 

Nosal panel, this Court will not read ambiguity into the definition of “exceeds authorized access” 

at the beginning of its analysis “as an overriding consideration of being lenient to wrongdoers.” 

Adams, 722 F.3d at 804 n.8 (quoting Callanan v. United States, 364 U.S. at 596). 

The Nosal panel resorted to the CFAA’s legislative history to apply the rule of lenity due 

to concerns that “millions of unsuspecting individuals would find that they are engaging in 

criminal conduct.” Nosal, 676 F.3d at 859; see also id. at 860 (worrying that “[b]asing criminal 

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liability on violations of private computer use polices can transform whole categories of 

otherwise innocuous behavior into federal crimes simply because a computer is involved[,]” and 

worrying that a broad reading of the CFAA could turn “minor dalliances” into “federal crimes”).

The Nosal panel’s concern was rooted in the fact that “[w]hile it’s unlikely that you’ll be 

prosecuted for [innocuous conduct] on your work computer, you could be.” Nosal, 676 F.3d at 

860 (emphasis in original); see id. at 860 n.7 (providing a hypothetical of an aggressive 

prosecutor who might attempt to prosecute an employee who spends six hours a day tending to 

his FarmVille stable on his work computer in violation of the company’s use policy).7

 

The Nosal panel sought to narrow the definition of “exceeds authorized access” in order 

to “consider how the interpretation [] will operate wherever in [the CFAA] the phrase appears.” 

Nosal, 676 F.3d at 859; see also id. (noting that the “phrase appears five times in the first seven 

subsections of the statute, including subsection 1030(a)(2)(C)”). The panel paid specific attention 

to Subsection (a)(2)(c), which it labeled as “the broadest” provision because Subsection (a)(2)(c) 

makes it a crime to access a computer “without any culpable intent.” Nosal, 676 F.3d 859.8 

Under Subsection (a)(2)(c), the Nosal panel found that “the broad interpretation of the 

CFAA” would allow “private parties to manipulate their computer-use and personal policies so 

as to turn these relationships into ones policed by the criminal law.” Nosal, 676 F.3d at 860; see 

 7

 However, this concern does not warrant avoiding a definition provided by Congress. The Court agrees 

prosecuting an individual for using his FarmVille account at his job “does not appear to be a worthy way to expend 

valuable law enforcement resources.” Lawrence v. Texas, 539 U.S. 558, 605, 123 S. Ct. 2472, 156 L. Ed. 2d 508 

(2003) (Thomas, J., dissenting). Nevertheless, just because inane prosecutions are possible, it does not mean that the 

statutes underlying the prosecutions are flawed. 

8

 However, this concern is overstated because liability under the CFAA will not attach unless an individual 

accesses a computer and obtains something to which they are not entitled. So even if an individual exceeds 

authorized access by accessing Facebook in a wrongful manner, in order for liability to attach the individual would 

still have to obtain something to which they were not entitled so to obtain or alter. See, e.g., Lee v. PMSI, Inc., No. 

8:10-CV-2904-T-23TBM, 2011 WL 1742028, at *2 (M.D. Fla. May 6, 2011) (“Because the only information [the 

employee] allegedly accessed was on [] personal websites, not [the employer’s]computer system, [the employee] 

never ‘obtained or alter[ed] information in the computer.’ [The employee] accessed her facebook, personal email, 

and news websites but did not access any information that she was ‘not entitled so to obtain or alter.’). 

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also id. at 860 n.6 (noting that “[e]nforcement of the CFAA against minor workplace dalliances 

is not chimerical,” and stating that a district court case from Florida—where an employer 

brought claims against an employee under the CFAA—could not have been dismissed if 

“exceeds authorized access included violations of private computer use policies.”).9

 

Thus, to quell its concerns, the Nosal panel rejected the Government’s position that the 

CFAA’s definition of the phrase “exceeds authorized access” includes use restrictions. Nosal, 

676 F.3d at 875-58. Instead, to avoid a harsh construction, the Nosal panel found that the phrase 

“exceeds authorized access” only applies to someone who accesses data that the accesser is 

completely prohibited from obtaining at all, in any manner. See Nosal, 676 F.3d at 864. 

The Fourth Circuit agreed with the Nosal panel, but labeled the Ninth Circuit’s approach 

the “harsher approach.” WEC Carolina, 687 F.3d at 206. The Fourth Circuit found that Congress 

did not “clearly intend to criminalize” behavior such as “an employee who with commendable 

intentions disregards his employer’s policy against downloading information to a personal 

computer so that he can work at home and make headway in meeting his employer’s goal.” Id.10 

Despite the unambiguous definition provided by Congress, the Nosal panel and the 

Fourth Circuit resorted to the rule of lenity because they felt Congress clearly meant for the 

CFAA’s “exceeds authorized access” language to be limited to violations of restrictions on 

 9

 However, the Florida case could have been dismissed if “exceeds authorized access included violations of private 

computer use policies.” It is important to note that Lee v. PMSI, Inc. was a civil action. No. 8:10-CV-2904-T23TBM, 2011 WL 1742028 (M.D. Fla. May 6, 2011). The Nosal panel does not account for the fact that, in order to 

be civilly liable that under CFAA, there must be damage or loss to one or more persons during any one-year period 

aggregating to at least $5,000 in value. See 18 U.S.C. § 1030(c)(4)(A)(i)(I). Indeed, the counterclaim by the 

employer in PMSI, Inc. was dismissed, in part, because the employer could not show there was sufficient damage or 

loss caused by the employee simply accessing Facebook at work. See PMSI, Inc., 2011 WL 1742028, at *1 (“The 

[CFAA] does not contemplate ‘lost productivity’ of an employee, and with the exception of the loss of productivity, 

the defendant fails to allege ‘damage’ caused by the plaintiff's internet usage.”).

10 Again, however, this concern does not warrant avoiding a definition provided by Congress. The Court agrees 

that such a prosecution by a federal prosecutor would be silly. Nevertheless, this Court must decide this case based 

on CFAA as Congress unambiguously wrote it; “[i]t is the essence of judicial duty to subordinate [this Court’s] own 

personal views, [and] ideas of what legislation is wise and what is not.” Griswold v. Connecticut, 381 U.S. 479, 530-

31, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (Stewart, J. dissenting). 

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access to information. See Nosal, 676 F.3d at 863; WEC Carolina, 687 F.3d at 206. However, the 

Nosal panel and Fourth Circuit only point out that ridiculous prosecution may occur by including 

use restrictions; they do not point to any ambiguity in the definition of “exceeds authorized 

access” provided by Congress. 

Given the circumstances, the Nosal panel and Fourth Circuit were well-intentioned by 

seeking to prevent harsh results. However, both the Supreme Court and the Sixth Circuit have 

cautioned that “[t]he judiciary is not ‘licensed to attempt to soften the clear import of Congress' 

chosen words whenever a court believes those words lead to a harsh result.’” Id. (quoting United 

States v. Locke, 471 U.S. 84, 95, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). All told, “[w]here there 

is no ambiguity, as is the case here, ‘the rule of lenity does not come into play.’” United States v. 

Adams, 722 F.3d at 804 n.8 (quoting United States v. Turkette, 452 U.S. 576, 587 n.10, 101 S. 

Ct. 2524, 69 L. Ed. 2d 246 (1981)). 

The rule of lenity does not apply here, as both the Supreme Court and Sixth Circuit have 

cautioned that the rule of lenity “only serves as an aid for resolving an ambiguity; it is not to be 

used to beget one.” Adams, 722 F.3d at 804 n.8 (6th Cir. 2013) (quoting Callanan v. United 

States, 364 U.S. at 596) (emphasis added). The Sixth Circuit found no ambiguity in the CFAA’s 

definition for “exceeds authorized access,” and searching for or creating possible contrary intent 

is unwarranted. P.A. Days, Inc., 427 F.3d at 1017 (quoting Am. Tobacco Co. v. Patterson, 456 

U.S. 63, 75, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982), to caution that “[g]oing behind the plain 

language of a statute in search of a possibly contrary congressional intent is a step to be taken 

cautiously even under the best of circumstances.”). The intent of Congress is clear given the 

plain language of CFAA’s definition of “exceeds authorized access,” and the Court need not 

look beyond the definition provided by Congress to determine its intent. 

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iii. Furukawa properly alleges that Hossain “exceeded authorized access” 

in order to take files. 

Here, Furukawa has a Removable Media Policy that explicitly requires permission from a 

manager before accessing files with removable media. See Dkt. No. 1-4. Even under the 

“narrow” approach advanced by the Nosal panel and Fourth Circuit, Hossain would have 

exceeded authorized access because he removed files in violation of a policy that was focused on 

how Hossain accessed Furukawa files. This being the case, the Court finds that Furukawa has 

properly stated a claim under the CFAA that Hossain “exceeded authorized access” by 

downloading a total of 1,785 files to his external hard drive and two-and-half-years of email 

from Furukawa’s exchange server files on March 11, 2014 and March 17, 2014.

2. The Michigan Uniform Trade Secrets Act (“MUTSA”) Does Not Preempt 

Furukawa’s Claims Pursuant To Michigan Law. 

 Section 8 of the Michigan Uniform Trade Secrets Act (“MUTSA”) preempts claims 

based on conflicting state tort law and provides civil remedies for misappropriation of trade 

secrets. See Mich. Comp. Laws § 445.1908(1); Wysong Corp. v. M.I. Industries, 412 F.Supp.2d 

612, 622–23 (E.D. Mich. 2005). However, the MUTSA does not preempt “[o]ther civil remedies 

that are not based upon misappropriation of a trade secret.” Mich. Comp. Laws. § 445.1908(2). 

The critical inquiry for courts in determining whether a claim is displaced by the MUTSA 

is whether the claim in question is based solely on the misappropriation of a trade secret. See 

Dura Global Technologies, Inc. v. Magna Donnelly Corp., No. 07-10945, 2009 WL 3032594, at 

*3 (E.D. Mich. Sept. 18, 2009) (quoting Bliss Clearing Niagara, Inc. v. Midwest Brake Bond 

Co., 270 F .Supp.2d 943 (W.D. Mich. 2003)). 

If a claim is based solely upon the misappropriation of a trade secret, “the claim must be 

dismissed.” Bliss Clearing Niagara, Inc., 270 F .Supp.2d at 947; see also Dura Global 

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Technologies, Inc., WL 3032594, at *3. Conversely, where “a cause of action exists in the 

commercial area not dependent on trade secrets, that cause continues to exist.” Id.; see also Dura 

Global Technologies, Inc., WL 3032594, at *3. 

Here, Hossain argues that Furukawa’s “Fraud, Breach of Fiduciary Duty, and Conversion 

claims [] are based on alleged trade secret misappropriation and are preempted [by] Michigan’s 

Trade Secret Act[.]” Dkt. No. 30 at 14 (citing Mich. Comp. Laws § 445.1908(a)). However, 

Hossain’s argument fails because Furukawa’s Breach of Fiduciary Duty and Conversion Claims 

are not “solely based on misappropriation of a trade secret.” Wysong, 412 F.Supp.2d at 623. 

Furukawa argues it is “also suing for tortious conduct that does not involve 

misappropriation of information[.]” Dkt. No. 33 at 25. Notably, Hossain actually supports 

Furukawa’s assertion by acknowledging Furukawa’s claims support causes of action beyond just 

the misappropriation of trade secrets.11 

This being the case, this Court finds that the Complaint alleges facts, independent of the 

MUTSA claim, supporting causes of action for Fraud, Breach of Fiduciary Duty, and 

Conversion. See McKesson Med.-Surgical, Inc. v. Micro Bio-Medics, Inc., 266 F.Supp.2d 590, 

600 (E.D. Mich. 2003) (finding MUTSA did not preempt a claim because the plaintiff’s claim 

“both according to its Complaint and its Response to Defendants' Motion, [is] based not only on 

[the plaintiff’s] trade secrets, but also other confidential information.”); see also Lube USA Inc., 

2009 WL 2777332, at *8; Dura Global Technologies, Inc., 2009 WL 3032594, at *5. 

 11 See, e.g., Dkt. No. 30 at 15 (Hossain citing Dkt. No. 1 at ¶ 115 to note: “Plaintiff’s fraud claim alleges that 

Plaintiff relied on Mr. Hossain’s representations by allowing him to have access to trade secret and confidential and 

proprietary information which led to unfair competition . . . .”) (emphasis added); id. (Hossain citing Dkt. No. 1 at ¶ 

128 to note: “Plaintiff’s breach of fiduciary duty claim, alleges that Mr. Hossain violated a purported duty of good 

faith and loyalty by using Plaintiff’s trade secrets and other information to divert business away from Plaintiff and 

assist[] Huatong to compete against Plaintiff.”) (emphasis added); id. at 16 (Hossain citing Dkt. No. 1 at ¶¶ 144-45 

to note: “Plaintiff’s conversion claim alleges Mr. Hossain had access to Plaintiff’s trade secret and other confidential 

information . . . .”). (emphasis added). 

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3. Furukawa’s Employment Handbook Does Not Affect Furukawa’s Breach Of 

Contract Claim. 

In Michigan, if “contract language is clear and unambiguous, its meaning is a question of 

law.” Gerken Paving Inc. v. LaSalle Grp. Inc., No. 10-CV-14905, 2012 WL 3079249, at *4 

(E.D. Mich. July 30, 2012) aff'd, 558 F. App'x 510 (6th Cir. 2014) (quoting Port Huron Educ. 

Ass'n v. Port Huron Area Sch. Dist., 452 Mich. 309, 550 N.W.2d 228, 237 (1996)). 

Hossain argues that Furukawa bases its Breach of Contract claim on documents that are 

not enforceable contracts by their express terms, because Furukawa’s “Policies and Practices 

Handbook” explicitly notes that “the adoption of this employee handbook is entirely voluntary 

on the part of the company and shall not be construed as creating a contractual relationship 

between the company and any employee. It is neither a contract nor an agreement of employment 

for a definite period of time[.]” Dkt. No. 30 at 17 n.3 (quoting Dkt. No. 1-3 at 26). 

However, the Court need not address the Polices and Practice Handbook with respect to 

the Breach of Contract claim because Furukawa’s Breach of Contract Claim is only premised on 

the “Invention Assignment & Secrecy Agreement,” see Dkt. No. 1 at ¶ 120, and, impliedly, 

Furukawa’s Removable Media Policy. See id. at ¶122. Hossain argues that Furukawa’s 

Removable Use Policy is only a “guide,” but the Court sees nothing in the Removable Media 

Use Policy indicating it is meant to be a guide by its express terms. See Dkt. No. 1-4 at 2.

Moreover, Hossain does not even address the Invention Assignment & Secrecy Agreement as it 

pertains to the Breach of Contract claim. See Dkt. No. 40 at 18 (arguing that the Breach of 

Contract claim should be dismissed “to the extent it relies upon exhibits 1, 2, and 3[.]”). Thus, 

the Court finds nothing in the Removable Media Policy nor the Invention Assignment & Secrecy 

Agreement that warrants the dismissal of Furukawa’s Breach of Contract claim. 

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4. Furukawa’s Conversion Claim Is Properly Alleged Where Hossain Allegedly 

Took Emails From Furukawa’s Servers. 

In Michigan, conversion arises from “any distinct act of domain wrongfully exerted over 

another's personal property in denial of or inconsistent with the rights therein.” Llewellyn-Jones 

v. Metro Prop. Grp., LLC, No. 13-11977, 2014 WL 2214209 (E.D. Mich. May 27, 2014) (citing 

Foremost Ins. Co. v. Allstate Ins. Co., 439 Mich. 378, 391, 486 N.W.2d 600 (1992)); see also 

Murray Hill Publ'ns, Inc. v. ABC Commc'ns, Inc., 264 F.3d 622, 636–37 (6th Cir. 2001). 

Hossain argues that Furukawa’s conversion claim should be dismissed because Furukawa 

“attached various email communications from companies and individuals who are distinct and 

unrelated” to Furukawa to support the claim for Conversion. See Dkt. No. 30 at 18. The Court 

disagrees. The Court points out that all of the documents and information allegedly removed 

were removed from Furukawa’s servers. As Furukawa points out, “[t]he fact that some of the 

information ‘pertains to third parties unrelated to Plaintiff,’ does not negate the information as 

being personal property belonging to [Furukawa]; nor has [Hossain] cited any authority for that 

proposition.” Dkt. No. 33 at 28.

Indeed, “Michigan appellate courts have held that certain intangible property can be the 

subject of a conversion action.” Sarver v. Detroit Edison Co., 225 Mich. App. 580, 586, 571 

N.W.2d 759, 762 (1997) (citations omitted). In each case where the Michigan courts have found 

that the intangible property can be the subject of a conversion action, “the plaintiff's ownership 

interest in intangible property was represented by or connected with something tangible.” Id. 

Here, even though some emails on the server contain information pertaining to third 

parties, the emails were still sent to Furukawa, stored inside Furukawa’s tangible property, and 

constituted trade secrets. See Wysong, 412 F. Supp. 2d at 630 (“the plaintiff's supplier contact 

data meets the definition of a protectable trade secret); id. at 629 (“customer lists developed by a 

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former employee and information relating to a customer's needs are not “trade secrets” under the 

MUTSA, unless the employee is bound by a confidentiality agreement.”) (emphasis added). 

Accordingly, looking at the Complaint in a light most favorable to Furukawa, Furukawa has set 

forth a proper claim for conversion since Hossain took 1,785 files and two-and-half-years of 

email from Furukawa’s exchange server and placed the information on his external hard drive. 

VI. CONCLUSION

For the reasons discussed, the Court DENIES Defendant Hossain’s Motion for Partial 

Judgment on the Pleadings [30]. 

SO ORDERED. 

Dated: May 6, 2015 

 /s/Gershwin A Drain 

 HON. GERSHWIN A. DRAIN 

 United States District Court Judge

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