SOUTHWEST ORTHOPAEDIC SPECIALISTS v. ALLISON
439 P.3d 430
| Okla. Civ. App. | 2018Background
- Allison, a former SOS employee, took two company devices (a Microsoft Surface and an iPad) when his employment ended; SOS alleges he provided data to federal authorities.
- SOS sued Allison for misappropriation of trade secrets, breach of contract, breach of fiduciary duty, conversion, and "computer fraud and abuse," and obtained a temporary restraining order.
- Allison moved to dismiss under the Oklahoma Citizens Participation Act (OCPA), arguing SOS’s suit related to Allison’s communications likely to prompt government review.
- The district court dismissed the trade-secrets claim under the OCPA but denied dismissal of the remaining claims; Allison appealed.
- On appeal the court applied a de novo review, found Allison met the OCPA’s first-stage showing, and examined whether SOS made a prima facie showing of each claim (with special emphasis on damages and CFAA jurisdiction).
- The Court concluded SOS failed to present clear and specific evidence of damages for breach of contract, fiduciary duty, and conversion, and also failed to show the laptops were "protected computers" under the CFAA (no evidence they were actively in interstate commerce when accessed). Court reversed and remanded for a second OCPA hearing (given prospective application of the clarified damage standard).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of OCPA (first-stage) | SOS argued suit is ordinary private litigation, not based on protected communications | Allison argued suit related to his communications likely to prompt governmental review and thus falls within OCPA protection | Court: Allison met the first-stage showing; OCPA applies to the suit’s context |
| Prima facie burden / evidence standard | SOS relied primarily on verified pleadings to show each element | Allison argued SOS must show "clear and specific evidence" of each element per OCPA | Court: Plaintiff must present competent, fact-specific evidence (not conclusory pleadings) to make a prima facie case |
| Damages sufficiency for tort/contract claims | SOS alleged general damages ("in excess of $75,000") and possible future HIPAA exposure | Allison argued generic allegations are insufficient under the OCPA (follow Texas TCPA precedents) | Court: Generic jurisdictional or conclusory damage allegations insufficient; SOS failed to make required showing for breach of contract, fiduciary duty, and conversion |
| CFAA jurisdiction / "protected computer" issue | SOS claimed investigative costs met CFAA loss threshold and laptops were covered | Allison argued laptops were not used in interstate commerce at time of alleged unauthorized access | Court: CFAA requires the computer be actively used in or affecting interstate commerce proximate to access; SOS did not show that, so CFAA claim fails |
| Remedy / effect of OCPA dismissal | SOS sought to avoid dismissal or have leave to amend | Allison argued dismissal under OCPA should be final and immediately appealable | Court: OCPA dismissal treated as final on the merits; because legal standards were previously unclear, the court gives prospective effect and remands for a new OCPA hearing so SOS can present clear and specific evidence of damages |
Key Cases Cited
- Krimbill v. Talarico, 417 P.3d 1240 (Okla. Civ. App. 2018) (adopts de novo review for OCPA motions and discusses OCPA burden-shifting)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA requires "clear and specific evidence"; pleadings alone may be inadequate to show damages)
- LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) (elements for civil CFAA claim under §1030)
- United States v. Trotter, 478 F.3d 918 (8th Cir. 2007) (internet connection can place a computer within interstate commerce for CFAA purposes)
- Gomes v. Hameed, 184 P.3d 479 (Okla. 2008) (prospective application of new, unclear legal rules may be appropriate)
- Cates v. Integris Health, Inc., 412 P.3d 98 (Okla. 2018) (elements of breach of contract)