439 P.3d 430
Okla. Civ. App.2018Background
- Allison was employed by Southwest Orthopaedic Specialists (SOS) in a legal/administrative role; his employment ended in January 2017 and he retained two company devices (a Microsoft Surface and an iPad).
- SOS alleged Allison provided or may have provided files from those devices to federal authorities (rumored FBI/DOJ contact tied to a False Claims Act matter) and sued May 2, 2017 for trade-secret misappropriation, breach of contract, breach of fiduciary duty, conversion, and "computer fraud and abuse." SOS sought injunctive relief and return/access to the devices; a TRO issued May 3.
- Allison moved to dismiss under the Oklahoma Citizens Participation Act (OCPA), claiming SOS’s suit was based on or in response to his protected communications (petition/speech). The district court dismissed the trade-secrets claim under the OCPA but allowed the remaining claims to proceed.
- On appeal, the Court of Civil Appeals applied a de novo review, found Allison satisfied the OCPA’s first-stage showing (suit related to protected petition/speech), and held the burden shifted to SOS to make a prima facie showing of each claim by "clear and specific evidence."
- The court concluded SOS failed to show specific damages for breach of contract, fiduciary duty, and conversion (relying mainly on conclusory pleadings), and also failed to show the devices were "protected computers" under the CFAA because there was no evidence they were actively used in interstate commerce proximate to the alleged access.
- The court reversed and remanded with instructions for a new OCPA hearing on SOS’s remaining tort/contract claims, giving the damages-specificity rule prospective effect so SOS may present clearer evidence of damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allison met OCPA first-stage (action "based on, relates to, or in response to" protected petition/speech) | SOS argued suit was ordinary tort/contract claims, not driven by Allison's communications | Allison argued suit was in response to communications likely to trigger government review (protected petition/speech) | Held: Allison satisfied first-stage — suit related to communications encouraging governmental review, so burden shifted to SOS to show prima facie case |
| Whether SOS produced clear and specific evidence to establish prima facie elements (esp. damages) for breach of contract, fiduciary duty, conversion | SOS relied on verified petition and general damages allegations (>$75,000; potential future HIPAA exposure) | Allison argued pleadings were conclusory and insufficient under OCPA’s heightened "clear and specific" evidentiary standard | Held: SOS failed to meet the required specificity for damages; pleadings/verified petition were conclusory and insufficient; prima facie not established for these claims |
| Whether SOS’s CFAA claim met the CFAA elements, including that the devices were "protected computers" (used in or affecting interstate commerce) | SOS asserted forensic-investigation costs exceeded CFAA $5,000 loss threshold and alleged unauthorized access after employment ended | Allison argued laptops were not shown to be used in interstate commerce at the time of alleged access | Held: Although SOS showed CFAA-type damages (investigation costs), it failed to show the laptops were used in/affecting interstate commerce proximate to access; CFAA claim dismissed |
| Effect of OCPA dismissal remedy (with or without prejudice) and whether the court should apply its holding retroactively or prospectively | SOS argued dismissal should not foreclose its ability to replead or present evidence; parties relied on uncertain precedent | Allison sought dismissal on the merits under OCPA and immediate appealability | Held: OCPA dismissal is a final, merits-type order; because the court’s clarification about the damages specificity requirement is a novel, unclear rule, the court gives that rule prospective effect and remands for a new OCPA hearing so SOS may present clearer evidence of damages |
Key Cases Cited
- Krimbill v. Talarico, 417 P.3d 1240 (Okla. Civ. App. 2018) (adopts de novo review and discusses OCPA burdens and stages)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA requires clear, specific evidence; conclusory damage allegations insufficient)
- LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) (elements for a civil CFAA claim under §1030)
- United States v. Trotter, 478 F.3d 918 (8th Cir. 2007) (internet-connected computers are instrumentalities of interstate commerce for CFAA jurisdiction)
- Jackson v. Jones, 907 P.2d 1067 (Okla. 1995) (prima facie showing and evidence standard for causes of action)
- Gomes v. Hameed, 184 P.3d 479 (Okla. 2008) (prospective application of novel appellate rules)