Online Golf Store’s Computer Access Claim against Competitor Fails to Reach the Green
The suit between battling online golf retailers Motogolf.com, LLC (“Motogolf”) and Top Shelf, LLC (“Top Shelf”) is currently in the rough after a Nevada district court dismissed all but one set of claims. (Motogolf.com, LLC v. Top Shelf Golf, LLC, No. 20-00674 (D. Nev. Mar. 25, 2021)). Though the court order left a large divot in Motogolf’s suit, the court allowed a mulligan, granting Motogolf time to file an amended complaint.
As we wrote in the May 2020 edition of Three Point Shot, Motogolf is an online golf retailer based in Nevada that sells golf apparel and equipment. Motogolf used online advertising to promote its online store. Motogolf contends that it contracts with online ad platforms on a pay-per-click (PPC) basis whereby Motogolf pays a specific amount of money for a certain number of ad clicks each day. If a prospective customer clicks on the ad, he or she is taken to Motogolf’s website. According to Motogolf, it also receives “valuable, requested demographic and other data” about prospective customers that click on an ad. Once web viewers have clicked on the ads a certain number of times in a given period, the PPC ads are “exhausted” and stop appearing online and Motogolf allegedly must pay higher rates for future PPC ads.
Top Shelf, based in Maine, is an online golf retail competitor to Motogolf. In 2019, Motogolf claims it became aware of Top Shelf’s alleged practice of selling golf equipment at lower prices than the minimum set by the equipment vendors and reported this activity to such vendors. Motogolf alleges that, in response to its calling out such irregularities on Top Shelf’s scorecard, Top Shelf, being aware of how PPC ads work, used electronic devices in various locations in or near Maine to locate Motogolf’s PPC ads and click on them repeatedly in an effort to “exhaust” or make Motogolf’s ads disappear for other viewers, prevent future potential customers from viewing the ads, and generally increase Motogolf’s ad costs and deny it access to online web advertisement data. Motogolf alleges that such actions by Top Shelf were an intentional effort to gain an economic advantage over Motogolf. In response, Motogolf sent Top Shelf multiple cease-and-desist letters stating that Top Shelf was no longer authorized to access Motogolf’s website or click on its advertisements.
On April 10, 2020, Motogolf sued the defendants for multiple claims, including accessing Motogolf’s computers without authorization in violation of the federal Computer Fraud and Abuse Act (CFAA), and its Nevada state law counterpart, as well as various tort-related claims over interference with contractual relationships and prospective economic relationships. The defendants moved to dismiss all claims.
The court began by looking at the CFAA claim. The CFAA is a federal computer fraud law that was passed in 1984 and was designed to address the growing problem of computer hacking. The CFAA prohibits a number of different computer crimes, the majority of which involve accessing computers without authorization, or in excess of authorization, and then taking specified forbidden actions, ranging from obtaining information to damaging a computer or computer data. See 18 U.S.C. § 1030(a)(1)-(7). In examining Motogolf’s CFAA claims, the court stated that they fell under 18 U.S.C. §§1030(a)(4) and §1030(a)(5)(B)-(C).
1030(a)(4) requires the plaintiff to allege the defendant:
(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 [Motogolf] during any one-year period aggregating at least $5,000 in value.
Additionally, §1030(a)(5)(B)-(C) requires the defendant to intentionally access a computer without authorization and either recklessly cause damage or cause damage and loss.
In the complaint, Motogolf alleged that Top Shelf, with intent to defraud, accessed Motogolf’s computers (or the online advertising platform’s computers that were used to conduct business with Motogolf) without authorization when it conducted its alleged illegitimate scheme to click on Motogolf’s PPC ads and thereby caused “impairment to the integrity and availability of data reposed on Motogolf’s Computers.” Motogolf further argued that the cease and desist letters it sent to Top Shelf affirmatively revoked the defendants’ access and that Motogolf was harmed because it lost valuable demographic data regarding prospective customers and the defendants gained a market advantage. The defendants countered that the claim should be dismissed because Motogolf’s website is publicly available, and therefore such access cannot be “without authorization” if it is for publicly available website content. In its approach shot, Top Shelf cited Ninth Circuit precedent holding that when a computer network or website generally permits public access to its data, a user’s accessing of that publicly available data will not constitute access “without authorization” under the CFAA. Additionally, the defendants argued that Motogolf had not alleged the requisite loss or damage, or that the defendants gained anything of value.
The judge granted the motion to dismiss the CFAA claim, with leave to amend, sending Motogolf back to the range. The court noted that Ninth Circuit precedent interpreted the CFAA’s “without authorization” language to not encompass access to publicly available websites because “information open to the public is not the kind of access that the CFAA was designed to prevent and that a computer or website would need access permissions like a password for the CFAA to apply.” Finding Motogolf’s novel CFAA claim no gimme, the court further stated that Motogolf’s CFAA “unauthorized access” claim was insufficient because it did not plausibly allege that the defendants acted "without authorization" and that even though Motogolf revoked Top Shelf’s access to its website through the cease-and-desist letters, such letters “do not affect the public website analysis.” Therefore, because both Motogolf’s websites and the ads at issue were public, the judge granted Top Shelf’s motion to dismiss.
The court followed similar reasoning in dismissing the Nevada state computer access claims under the Nevada Computer Crimes Law (NCCL). According to the court, Motogolf’s NCCL claims were similar, as that statute prohibits various acts related to accessing a computer or data on a computer "without authorization." NRS §§ 205.4765(1)(g), (h), (k). Considering the NCCL claim to “rise and fall” with the CFAA claims, the court followed the same putting line as it did with the CFAA claim and dismissed the state law claim.
On the back nine, the court, for the most part, dismissed the remaining tort- and fraud-related claims, with leave to amend. However, the court refused to dismiss Motogolf’s tort claim that Top Shelf intentionally interfered with prospective economic advantage. Such a tort claim essentially involves allegations that the defendant acted with specific intent to disrupt plaintiff’s business expectancy. Here, the court found that, although Motogolf did not allege any prospective customers specifically, Motogolf’s outlining of a class of prospective customers (i.e., those that would click on its PPC ads) was sufficient at the pleading stage of the litigation.
Despite having a shaky first round, Motogolf filed an Amended Complaint on April 15, 2021, prompting Top Shelf to counter with another motion to dismiss. Only time will tell if Motogolf can muster a miraculous recovery shot with its amended claims to drive the suit forward.