Not a Lexis Advance subscriber? Try it out for free.

LVRC Holdings LLC v. Brekka

United States Court of Appeals for the Ninth Circuit

March 13, 2009, Argued and Submitted, San Francisco, California; September 15, 2009, Filed

No. 07-17116


 [*1128]  IKUTA, Circuit Judge:

LVRC Holdings, LLC (LVRC) filed this lawsuit in federal district court against its former employee, Christopher Brekka, his wife, Carolyn Quain, and the couple's two consulting businesses, Employee Business Solutions, Inc., a Nevada corporation  [*1129]  (EBSN), and Employee Business Solutions, Inc., a Florida corporation (EBSF). LVRC alleged that Brekka violated the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, by accessing LVRC's computer "without authorization," both while Brekka was employed at LVRC and after he left the company. See 18 U.S.C. § 1030(a)(2), (4). The district court granted summary judgment in favor of the defendants.  [**2] We affirm. Because Brekka was authorized to use LVRC's computers while he was employed at LVRC, he did not access a computer "without authorization" in violation of § 1030(a)(2) or § 1030(a)(4) when he emailed documents to himself and to his wife prior to leaving LVRC. Nor did emailing the documents "exceed authorized access," because Brekka was entitled to obtain the documents. Further, LVRC failed to establish the existence of a genuine issue of material fact as to whether Brekka accessed the LVRC website without authorization after he left the company.

LVRC operates Fountain Ridge, a residential treatment center for addicted persons, in Nevada. 2 As part of its marketing efforts, LVRC retained LOAD, Inc. to provide email, website, and related services for the facility. Among other duties, LOAD monitored internet traffic to LVRC's website and compiled statistics about that traffic.

In April 2003, LVRC hired Brekka to oversee a number of aspects of the facility. Part of his duties included  [**3] conducting internet marketing programs and interacting with LOAD. At the time Brekka was hired, Brekka owned and operated EBSN and EBSF, two consulting businesses that obtained referrals for addiction rehabilitation services and provided referrals of potential patients to rehabilitation facilities through the use of internet sites and advertisements. Stuart Smith, the owner and operator of LVRC, was aware of Brekka's businesses, although he states he was not aware of the full nature of their operations.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

581 F.3d 1127 *; 2009 U.S. App. LEXIS 20439 **; 159 Lab. Cas. (CCH) P10,165; 29 I.E.R. Cas. (BNA) 1153


Subsequent History: Related proceeding at LVRC Holdings, LLC v. Brekka, 2012 Nev. Unpub. LEXIS 1822 (2012)

Prior History:  [**1] Appeal from the United States District Court for the District of Nevada. D.C. No. CV-05-01026-KJD. Kent J. Dawson, District Judge, Presiding.

LVRC Holdings, LLC v. Brekka, 2007 U.S. Dist. LEXIS 73662 (D. Nev., Sept. 28, 2007)

Disposition: AFFIRMED.


authorization, email, accessed, district court, website, documents, log-in, cbrekka, purposes, logged, genuine issue of material fact, summary judgment, permission, exceeds, summary judgment motion, personal computer, criminal statute, loyalty, user, ambiguities, statistics, internet, argues

Computer & Internet Law, Criminal Offenses, Computer Fraud & Abuse Act, Governments, Legislation, Interpretation, Interpretation, Rule of Lenity, Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Appeals, Summary Judgment Review, Genuine Disputes