On December 3, the Second Circuit Court of Appeals became the most recent entrant into the circuit conflict on the question of when and under what circumstances an employee’s use of a computer to gain access to unauthorized information constitutes a violation of the Computer Fraud and Abuse Act. Over a dissent, the Court held that an employee cannot be convicted of violating the CFAA when he uses a database, to which he has been granted access, in a manner that is prohibited by company policy. With the Second Circuit joining the Fourth and Ninth Circuits in the minority on the issue, the answer continues to turn on the jurisdiction in which the suit was brought. Employers should take note because the decision reinforces the need to consider carefully whether and how to limit employee access to sensitive company information within its network—e.g., by use of written policy or technical access restrictions—and how those protections will play out in court if an employee takes company information for use in future employment.
Marc represents clients in federal and state courts at the trial and appellate levels with a particular focus on class actions, multi-district litigation, and mass joinders. Recently, Marc played a lead role in securing denial of class certification and affirmance by the Ninth Circuit Court of Appeals in an employment discrimination suit against Microsoft. He also successfully secured dismissal of several foreign defendants in a class action before a MDL Court in Louisiana involving allegedly defective drywall. Marc currently represents the NCAA in concussion and injury-related cases throughout the country, Marathon Oil Corporation in nationwide climate change litigation, Johnson & Johnson in talc-related litigation across the country, Sanei International Ltd. in an international contract and unjust enrichment dispute, DomainTools in a contract and Computer Fraud and Abuse Act dispute concerning terms of service for accessing WHOIS registrant data, and Global Linguist Solutions in a 29-plaintiff, mass joinder False Claims Act case. In addition, in response to the Covid-19 pandemic, Marc is actively assisting clients in strategizing around litigation arising out of the health crisis.
Marc served as a law clerk to Judge Betty B. Fletcher of the U.S. Court of Appeals for the Ninth Circuit. Prior to joining Orrick, Marc worked as an appellate and post-conviction attorney for the Equal Justice Initiative. In that capacity, he engaged in trial level and appellate representation of clients in both state and federal court, including two cases that were briefed and argued before the United States Supreme Court.
Posts by: Marc Shapiro
On July 31, the Solicitor General filed a petition for a writ of certiorari in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), asking the United States Supreme Court to address the standard for insider trading in a tipper-tippee scenario. Specifically, the Solicitor General argues that the Second Circuit’s Newman decision is in conflict with the Supreme Court’s 1983 decision in Dirks v. SEC, 463 U.S. 646 (1983), and the Ninth Circuit’s recent decision in United States v. Salman, No. 14-10204 (9th Cir. July 6, 2015). Because the Supreme Court grants certiorari in nearly three out of four cases filed by the Solicitor General, the likelihood of a cert grant in Newman is particularly high.