IN THE SUPREME COURT OF THE STATE OF MARSHALL
Jane Shapiro,
Petitioner,
Vs.
U.S. Apparel
Respondent.
On Petition for Writ of Certiorari to the Circuit Court of Nashville County
BRIEF FOR PETITIONER
Team Number 2
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ISSUES PRESENTED
1. Whether U.S. Apparel intentionally intruded upon Shapiro’s Seclusion by
accessing her desktop computer files and disclosing private information about
her business dealings with Hanoi Labour, Co.
and that this disclosure
damaged her business and personal reputation.
2. If U.S. Apparel committed Computer Fraud when Bennett on the directions of
Valentini the then (CEO) of the U.S. Apparel after Jane Shapiro, knowingly
accessed Shapiro’s desktop computer and her personal files on that computer
including her LinkedIn and Twitter accounts without her affirmation. Also by
deleting Shapiro’s personal info, images and names from the LinkedIn and
Twitter accounts and changing their password without her authorization.
3. Whether U.S. Apparel committed tort of conversion by
intentionally
converting the personal information and changing the personal data of Jane
Shapiro on her LinkedIn and Twitter accounts including the contacts and
followers associated with them, thereby Interfering with Shapiro’s Right to
exercise Control over these accounts.
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TABLE OF CONTENTS
QUESTIONS PRESENTED.................................................................... 2
TABLE OF AUTHORITIES...................................................................... 6
STATUTES AND RESTATEMENT PROVISIONS...........................11, 12
STATEMENT OF THE CASE...........................................................12, 13
SUMMARY OF ARGUMENT................................................................. 18
STANDARD OF REVIEW...................................................................... 20
LEGAL REASONING............................................................................ 21
ARGUMENT OF THE CASE................................................................. 23
I.
RESPONDENT’S ACT OF INTRUSION UPON SECLUSION AND
ERRENAEOUS JUDGEMENT OF CIRCUIT COURT IN GRANTING
MOTION TO DISMISS THE CLAIM UPON THE RULE §12(B)(6) “FAILURE
TO STATE CLAIM UPON WHICH RELIEF CAN BE
GRANTED”................................................................................................... 23
(a) Respondent’s action of accessing the desktop computer of Jane
Shapiro without her affirmation and
authorization..................................................................................... 25
(b) Respondent disclosed the information obtained without the
authorization and affirmation of the petitioner with intention to
damage the reputation of the
petitioner........................................................................................... 27
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 Information was wrongfully accessed by the respondent
without the authorization of the petitioner with intention to
damage her reputation...................................................... 27

Sudden Disclosure of the Information Obtained in Press
Conference Regarding business dealings of Petitioner injured
her business Reputation and Image................................... 28
II.
COMPUTER FRAUD COMMITTED BY RESPONDENT AFTER ACCESSING
PETITIONER’S SURREPTIITOUS INFORMATION FROM HER DESKTOP
COMPUTER AND CHAGING HER ACCOUNT PASSWORDS AND
PERSONAL INFORMATION WITHOUT HER AUTHORIZATION.
REVIEWING THE ORDER OF CIRCUIT COURT FOR COMMITING ERROR
BY GRANTING RESPONDENT MOTION TO DISMISS THE CLAIM UNDER
RULE §12(b)(6) OF CIVIL PROCEDURE.................................................... 31
(a) Respondent’s Unauthorized access to petitioner’s desktop
computer used by her for accessing business plans and written
policies etc. of U.S. Apparel............................................................ 32
(b) Respondent’s action of accessing the LinkedIn and Twitter
accounts of petitioner and changing all the basic and professional
info stored therein and substituting the same without
authorization..................................................................................... 34
(c) Respondent’s action caused irreparable loss and damage to the
petitioner and her business reputation by disclosing the
information which was taken out of petitioner’s desktop computer
without her authorization in press conference and changing her
account passwords and user profile info...................................... 37
III.
CIRCUIT COURT ERRED IN GRANTING RESPONDENT’S MOTION TO
DISMISS THE CLAIM FOR CONVERSION UNDER THE §12(b)(6) STATE
OF MARSHALL RULES OF CIVIL PROCEDURE FOR FAILURE TO STATE
CLAIM BECAUSE PETITIONER PRESENTED AMPLE EVIDENCE AND
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FACTS TO PROVE HER COMMON LAW CONVERSION CLAIM AGAINST
THE RESPONDENT..................................................................................... 39
(a) Sharon Bennett acting as an agent of U.S. Apparel or
working under the authority of U.S. Apparel intentionally
converted Shapiro’s (Petitioner) Twitter and LinkedIn
accounts and changed her personal info therein by
substituting the same with Victor Valentini which
amounted to tort of conversion.......................................... 40
(b) Respondent intentional act of converting the Twitter and
LinkedIn accounts of the petitioner by deleting all her
images and personal info therein and substituting them
with Victor Valnetini and further denying petitioner’s right
to exercise her control over those accounts by changing
their passwords................................................................... 42
CONCLUSION & PRAYER FOR GRANTING
RELIEF.................................................................................................................. 46
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TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES:
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)...................................... 38
UNITED STATES CIRCUIT COURT OF APPEALS CASES:
A.V. EX REL. VANDERHYE V. IPARADIGMS, LLC 562 F.3D 630 (4TH
CIR. 2009)............................................................................................. 34
Birnbaum v. United States, 588 F.2d 319, 323 (2d Cir.
1978)..................................................................................................... 29
Creative Computing v. Getloaded.com LLC, 386 F.3d 930, 935 (9th
Cir. 2004)............................................................................................... 34
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999)..................................................................................................... 38
Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 653-54 (1st Cir.
1997)..................................................................................................... 37
Int'l Airport Centers, L.L.C. v. Citrin, 440 F.3d 418, 419-20 (7th Cir.
2006)..................................................................................................... 32
Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003)................................ 39
Telemark Development Group, Inc. v. Mengelt, 313 F.3d 972, 983
(2002).................................................................................................... 43
Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d 283 (N.Y.
2007)..................................................................................................... 39
U.S. v. Millot, 433 F.3D 1057 (8TH CIR. 2006)................................... 35
United States v. Mitra, 405 F.3d 492, 494-96 (7th Cir.
2005)..................................................................................................... 36
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United States v. John, 597 F.3d 263 (5th Cir. 2010)........................... 34
United States v. Nosal, 642 F.3d 781 (9th Cir. 2011)......................... 34
Vernars v. Young, 539 F.2d 966 (3d Cir. 1976)................................... 26
William F. Shidler v. All American Life & Financial Corp., Etc., 775
F.2d 917 (8th Cir. 1985)........................................................................ 44
STATE COURT CASES:
Ainsworth v. Century Supply Co., 693 N.E.2d 510, 295 Ill. App. 3d
644, 230 Ill. Dec. 381............................................................................. 28
Bailer v. Erie Insurance Exchange, 687 A.2d 1375
(Md. 1997)............................................................................................. 28
Benitez v. KFC Nat. Management Co., 714 N.E.2d 1002
(Ill. App. Ct. 1999).................................................................................. 23
Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973).............................. 29
Burns v. Masterbrand Cabinets, Inc., 369 Ill.App.3d 1006, 1010, 314
Ill.Dec. 162, 874 N.E.2d 72 (Ill. 2007).................................................... 29
Boyles v. Kerr, 806 S.W.2d 255 299(Tex.Ct.App.1991)...................... 27
Cirrincione v.Johnson, 184 Ill.2d 109, 114 (1998).............................. 43
Gen. Motors Corp. v. Douglass, 565 N.E.2d 93, 96–97 (Ill. App. Ct.
1990)..................................................................................................... 39
Green v. Chicago Tribune Co., 286 Ill.App.3d 1, 221 Ill.Dec. 342, 675
N.E.2d 249 (1996)................................................................................. 27
Housh v. Peth(1956), 165 Ohio St. 35, 133 N.E.2d 340..................... 28
Hegarty v. Addison County Humane Soc'y, 2004 VT 33, ¶ 9, 176 Vt.
405, 848 A.2d 1139 (accord)................................................................. 44
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In re Thebus, 483 N.E.2d 1260 (Ill. 1985)............................................. 41
Jensen v. Chi. & W. Ind. RR., 94 Ill.App.3d 915, 50 Ill.Dec. 470, 419
N.E.2d 578, 593 (1981)......................................................................... 42
Johnson v. K mart Corp., 311 Ill. App. 3d 573, 578
(2000).................................................................................................... 23
Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 23 Ill.Dec. 559, 384 N.E.2d
353 (1978)............................................................................................. 43
Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 (Minn.
1998)..................................................................................................... 22
Lawlor v. North American Corp. of Illinois, 2012 IL
112530................................................................................................... 25
Loman v. Freeman, 229 Ill.2d 104, 321 Ill.Dec. 724, 890 N.E.2d 446
(2008).................................................................................................... 41
Lovgren v. Citizens First Nat'l Bank of Princeton, 126 Ill.2d
411, 417,534 N.E.2d 987, 989 (1989)................................................... 23
Martel Enters. v. City of Chi., 584 N.E.2d 157, 159 (Ill. App. Ct.
1991)..................................................................................................... 42
Melvin v. Burling, 141 Ill. App. 3d 786 (1986)................................. 24,26
Mercantile Holdings, Inc. v. Keeshin, 261 Ill.App.3d 546(1st Dist.
1983)..................................................................................................... 44
O'Brien, 160 Vt. at 299, 629 A.2d at 328.............................................. 45
PETA v. Bobby Berosini, Ltd.,111 Nev. 615, 895 P.2d 1269, 1281
(1995).................................................................................................... 24
Shulman v. Group W. Productions, 955 P.2d 469, 489 (Cal.
1998)..................................................................................................... 27
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Stengart v. Loving Care Agency, Inc., 973 A.2d 390
(N.J. Super. Ct. App. Div. 2009)............................................................ 27
UNITED STATES DISTRICT COURT CASES:
Amati v. City of Woodstock, Ill. 829 F. Supp. 998......................... 25
Amstar Corp. v. M/V Alexandros T., 472 F.Supp. 1289
(D.Md.1979)........................................................................................... 44
Arience Builders, Inc. v. Baltes, 563 F. Supp. 2d 883
(N.D. Ill. 2008)....................................................................................... 33
Bank of Indiana v. Tremunde, 50 Ill. App. 3d 480
(1977).................................................................................................... 23
Bauer v. Ford Motor Credit Co., 149 F. Supp. 2d 1106..................... 22
C.H. Robinson Worldwide, Inc. v. Command Transp., LLC, 2005 WL
3077998, at *4 (N.D.Ill. Nov.16, 2005).................................................. 31
Charles Schwab & Co.,Inc. v. Carter, 2005 WL 2369815, at *8
(N.D.Ill. Sep.27, 2005)........................................................................... 32
Credentials Plus, LLC v. Calderone, 230 F.Supp.2d 890
(N.D.Ind.2002)....................................................................................... 32
Engman v. Southwestern Bell Tel. Co., 591 S.W.2d 78 (Mo.
App. 1979)............................................................................................. 28
Expert Janitorial, LLC v. Williams, 2010 WL 908740 at * 6 (E.D. Tenn.
Mar. 12, 2010)....................................................................................... 33
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Facebook, Inc. v. Power Ventures, Inc., 844 F.Supp.2d 1025, 1038–
39 (N.D. Cal. 2012)................................................................................ 36
Grubb v. BD. OF TRUSTEES OF THE UNIV. OF ILLINOIS, 730 F.
Supp. 2d 860 (N.D. Ill. 2010)........................................................................ 31
Haynes v. Office of Atty. Gen. Phill Kline, 298 F. Supp. 2d 1154
(2003).................................................................................................... 23
In re Intuit Privacy Litig., 138 F.Supp.2d 1272, 1281(C.D.Ca.
2001)................................................................................................. 37
Mobile Mark v. Pakosz, 2011 WL 3898032 (N.D. Ill. Sept. 6,
2011)..................................................................................................... 33
Nexans Wires S.A. v. Sark-USA, Inc., 319 F.Supp.2d 468
(S.D.N.Y.2004)...................................................................................... 33
P.C. of Yonkers, Inc. v. Celebrations! The Party and Seasonal
Superstore, LLC, 2007 WL 708978, at *6 (D.N.J. Mar.5, 2007)........... 30
Paradigm Alliance, Inc. v. Celeritas Tech., LLC, 248 F.R.D. 598, 602
(D.Kan.2008)......................................................................................... 31
Penrose Computer MarketGroup, Inc. v. Camin, 682 F. Supp. 2d
(N.D.N.Y. 2010)..................................................................................... 34
Phansalkar v. Andersen Weinroth & Co., LP, 175 F. Supp. 2d 635
(S.D.N.Y. 2001)..................................................................................... 40
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Pioneer Commercial Funding Corp. v. United Airlines, Inc., 122 B.R.
871, 883 (S.D.N.Y.1991)....................................................................... 40
R. Rudnick & Co. v. G.F. Protection, Inc., No. 08 C 1856, 2009 WL
112380, at *3 (N.D.Ill. Jan. 15, 2009).................................................... 40
Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238, 252 n. 12
(S.D.N.Y. 2000)..................................................................................... 37
Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc., 119
F.Supp.2d 1121, 1125 (W.D.Wash. 2000)............................................ 35
Sioux Biochemical, Inc. v. Cargill, Inc., 410 F. Supp. 2d 785
(N.D. Iowa 2005)................................................................................... 41
Stimmel v. Weiner, No. 89 C 6510, 1991 WL 117928, at *3 (N.D.Ill.
June 25, 1991)....................................................................................... 40
STATUTES AND RESTATEMENT PROVISIONS INVOLVED
Restatement (Second) of Torts §652B (1977) sets forth the elements of
intrusion upon seclusion as “one who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private affairs or concems, is subject
to liability to the other for invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.
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The Marshall Statute for Computer Fraud and Abuse Act, ¶ 1030(a) (2008)
provides in part: (a) Whoever knowingly accesses a computer without authorization
or exceeding authorized access and by means of such conduct obtains personal
information commits the offence of a fraud and related activity in connection with
computers.
(b) Any person who suffers damage or loss by reason of a violation of
this section may maintain a civil action against the violator to obtain compensatory
damages or injunctive relief or other equitable relief.
RESTATEMENT (SECOND) OF TORTS § 222A (1965) provides: (a)
Conversion is an intentional exercise of dominion or control over a chattel which so
seriously interferes with the right of another to control it that the actor may justly be
required to pay the other the full value of the chattel. (b) In determining the
seriousness of the interference and the justice of requiring the actor to pay the full
value, the following factors are important: (i) the extent and duration of the actor’s
exercise of dominion of control; (ii) the actor’s intent to assert a right in fact
inconsistent with the other’s right of control; (iii) the actor’s good faith (iv) the extent
and duration of the resulting interference with the other’s right of control;
(v) the
harm done to the chattel; (vi) the inconvenience and expense caused to each other.
STATEMENT OF THE CASE
I. STATEMENT OF FACTS
a) The Parties
U.S. Apparel is famous clothing designer, Manufacturer & Retailer which
supplies its clothing to pre-teen and teen population and has a prominent
reputation in Market.
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Jane Shapiro founded U.S. Apparel and
served as Chief executive officer (CEO) for 10 years. She had
responsibilities and liabilities for developing the company’s business by
making strategies, operations, marketing, and making certain policies for
business development due to this reason she usually worked remotely
while travelling and attended meetings on behalf of U.S. Apparel as the
CEO using her Personal cell Phone and tablet both synchronized to her
desktop computer at U.S. Apparel. She had all access to U.S. Apparels
detailed business from those devices.
Sharon Bennett was appointed by Jane Shapiro
as her administrative assistant and she created Twitter and LinkedIn
accounts for Shapiro for promoting and communicating with public for U.S.
Apparel. She was given the passwords of both the accounts by Jane
Shapiro against U.S. Apparel’s Policy but with limitations to access the
accounts and only with Shapiro’s authorization.
b) LinkedIn and Twitter accounts
LinkedIn is a professional network on internet which allows users of similar
interests to connect with each other based on common “connections”.
Users profile page contains different segments for Associations, honours
and awards achieved by user to register in user’s profile. Jane Shapiro
used her LinkedIn account (i) to promote U.S. Apparels products (ii) to
build her reputation (iii) to connect with her family, friends and colleagues
(iv) to maintain social and professional relationship. Twitter on the other
hand is also Social networking and blogging site which allows readers to
send and receive short messages called “Tweets”. Jane Shapiro used her
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Twitter account (i) to share U.S. Apparel news (ii) to interact with her
customers (iii) to communicate with groups and individuals at one time.
c) U.S. Apparel experiencing plummet in business
In the past few years U.S. Apparel had been losing some of its business to
competitors. In an attempt to reinvent the image and change in its market
strategy The U.S. Apparels Board of Directors voted for a change in
leadership and Jane Shapiro was terminated from her leadership in the
U.S. Apparel as CEO. Victor Valentini
one of the industry’s most
promising star was appointed as the new CEO of U.S. Apparel. Shapiro
left U.S. Apparel and took her personal tablet and cell phone with her.
d) Uncloaked enigma of Shapiro’s Private Business Plan
Valentine gave directions to Bennett to access the files in Shapiro’s
desktop computer and opened all her documents. While searching the
desktop computer of Jane Shapiro Bennett found a folder labelled
“Personal” on the directions of Valentini Bennett open the same and found
another file labelled “Threads Business Plan” which was Shapiro’s private
business plan for a new start-up company whose business plans included
the manufacture of clothing for U.S. Teens. Bennett opened another
document called “Hanoi Labor, Co.” this file contained Jane Shapiro’s
private business plan and her agreement with Hanoi Labor, Co. to
manufacture clothing for Threads.
e) Information found and disclosed by Bennett
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Bennett immediately disclosed the information that she had obtained from
Shapiro’s personal files to Valentini who in turn reported it to U.S.
Apparel’s Chairman of the Board , Thomas Stephan.
f) Chairman of the Board’s (COB) direction and Reaction after sudden
disclosure of Shapiro’s Acts
Though U.S. Apparel did not do any business with Hanoi Labor, Co. but
Stephan (COB) directed Valentini to conduct an investigation and tell him
more about Hanoi Labor, Co. At his directions Valentini conducted a
month long investigation and found the terrible and dire working conditions
of Hanoi Labor, Co.’s Plants where young children worked 14-hour days,
in poorly lit and unsanitary warehouses for less than $25 a month.
Valentini prepared a report and Stephan (COB) called a press conference
and disclosed Shapiro’s Plans to start a new clothing company in
connivance with Hanoi Labor, Co. and also disclosed the terrible working
conditions and child labor used in the manufacturing of clothing at Hanoi
Labor, Co. on the basis of report made by Valentini.
g) Valentini’s directions to Bennett to take over all the accounts of Jane
Shapiro related to U.S. Apparel
At the directions of Valentini Bennett accessed all the information in
Shapiro’s LinkedIn and Twitter Accounts and deleted her name, photo and
all other personal information and substituted them with Valentini’s.
Bennett changed the Twitter handle from @U.S.Apparel_Shapiro to
@U.S.Apparel_Valentini and also changed the passwords denying
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Shapiro any further access to the LinkedIn and Twitter accounts. However
all the information in these accounts including and posts, connections and
followers, remained the same.
II. PROCEDURAL HISTORY
After the disclosure of above statements and acts by U.S. Apparel and its
employees, Jane Shapiro brought action against U.S. Apparel by filing a
three-count complaint for Intrusion upon seclusion, Violation of the State of
Marshall Computer Fraud and Abuse Act and Conversion claim against
the respondents in the Nashville County Circuit Court, in the State of
Marshall.
(i) Shapiro alleged that U.S. Apparel (herein referred as
Respondent) had intentionally intruded upon her seclusion by accessing
her private files from her desktop computer and disclosing the private
information about her business dealings with Hanoi Labor, Co. and that
this disclosure and acts of respondents damaged her business and
personal reputation. (ii)
Shapiro alleged in her second count that
Bennett, as an agent of U.S. Apparel , committed computer fraud as she
knowingly accessed Shapiro’s personal files on her desktop computer
without her authorization, and also accessed her LinkedIn and Twitter
accounts , deleting her name, photo and other personal information and
substituted them with Valentini’s the then CEO of U.S. Apparel by
changing
the
twitter
handle
from
@U.S.Apparel_Shapiro
to
@U.S.Apparel_Valentini and changing her account passwords without her
authorization, in violation of the State of Marshall Computer and Fraud
Act.¶1030(a) (2008 (iii) Shapiro in her third count brought a common law
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conversion claim , alleging that Bennett, as an agent of the U.S. Apparel
(Respondent), intentionally converted the information, contacts and
followers associated with the LinkedIn and Twitter accounts, thereby
interfering with Shapiro’s personal right to control them.
III. VERDICT & HOLDING
The Circuit Court of Nashville County granted respondent’s motion to
dismiss the three counts filed by Jane Shapiro, finding that Shapiro had
failed to state a claim upon which relief can be granted in accordance with
§12(b)(6) of Marshall Rules of Civil Procedure. Shapiro appealed to the
Third District of the Appellate Court of the State of Marshall “appellate
court” and Appellate Court determined that the three questions raised by
Shapiro should be decided by this Honourable Court. Hence this Petition.
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SUMMARY OF ARGUMENT
A. INTRUSION UPON SECLUSION
The Circuit Court of Nashville County misjudged the claim of intrusion upon
seclusion filed by Jane Shapiro (Herein after referred to as petitioner) against
the alleged respondents U.S. Apparel as respondent had intentionally
intruded upon her seclusion by accessing her personal data from the desktop
computer without her authorization and then disclosing the private information
about petitioner’s business dealing’s with Hanoi Labr, Co. which was
objectionable to the reputation of the petitioner and due to this act of intrusion
damaged the business , image and personal reputation of Jane Shapiro. It is
therefore prayed before this Honourable Court to kindly review the verdict of
the Circuit Court of Nashville County and grant relief to the petitioner against
the intrusion of her privacy.
B. COMPUTER FRAUD AND ABUSE ACT, ¶ 1030 (a) (2008)
The Verdict and Judgement of the Circuit Court of Nashville County was
erroneous because the violation of the above act was well established and the
facts herein duly state a claim as alleged
by the petitioner when the
respondent and its employee namely Sharon Bennett knowingly accessed the
desktop computer of the petitioner without her prior authorization and
exceeded beyond the authorized access by obtaining personal information
from those files. Not enough she also accessed petitioner’s personal LinkedIn
and Twitter accounts and changed the
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Twitter
handle
including
all
the
personal information and petitioner’s account passwords without her consent
or authorization, this clearly shows the mala-fide on part of the respondent as
they had explicit intentions to obtain any personal information related to the
petitioner and clearly violated the provisions of the Computer Fraud and
Abuse Act. It is therefore prayed that the respondents be pleaded guilty for
their acts and petitioner be granted the privilege of relief in the interest of
justice.
C. CONVERSION RESTATEMENT (SECOND) OF TORTS §222A (1965)
In Shapiro’s third count of common law conversion claim the respondents
were again granted motion to dismiss the claim on basis of failure to state
claim on the part of petitioner which is highly erroneous and needs to be
reviewed by this Honourable court because Bennett being an agent of U.S.
Apparel (Respondent), intentionally converted petitioner’s LinkedIn and
Twitter accounts interfering with her right to exercise control over them. The
conversion over the chattel was intentional as Bennett was directed to do so
on the directions of Valentini CEO of U.S. Apparel. Respondent were well
aware of this fact that they were accessing all these accounts and information
without the affirmation and authorization of the petitioner and after accessing
the same they changed all the information from these accounts, changed their
passwords denying Shapiro’s access to them and also her right to control
them.
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STANDARD OF REVIEW
Hearing the Appeal of the petitioner Jane Shapiro the Third District of the Appellate
Court of the State of Marshall determined that the three-counts raised by the
petitioner of (a) intrusion upon seclusion (b) Computer fraud and abuse act, ¶ 1030
(a) (2008) (c) Conversion Restatement (second) of Torts §222A (1965) and they are
of such importance that they should be decided by this Honourable Court. Hence
certified the case to this Honourable Court for disposal and decision of the same in
the interest of Justice.
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LEGAL REASONING
1. The “intrusion upon seclusion” according to Restatement of Torts § 652B
(1977) occurs when one intentionally intrudes, physically or otherwise, upon
the solitude or seclusion of another or his private affairs or concerns, is
subject to the other for invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person. The respondents committed intrusion :(a) When the respondents intentionally infringed upon the petitioner’s right of
accessing the private files on her desktop computer and disclosing her
private information regarding her business dealings with another firm this
damaged petitioners business and market reputation.
(b) The respondents changed the petitioner’s LinkedIn and twitter account
passwords and all the personal information in them denying her the right to
exercise her control over it by interfering upon her privacy with respect to
her personal concerns and affairs.
2. The “Computer Fraud and Abuse act , ¶1030(a) (2008)” is applicable on
anyone who knowingly accesses a computer without authorization and by that
unauthorized access obtains personal information. Thus anyone who commits
such an act is liable under the violation of this act. Respondent (U.S. Apparel)
violated the provisions of this act :(a) When they knowingly accessed the personal files in the desktop
computer of the petitioner without her consent and authorization and using
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this access they obtained all her personal information from that computer
which is a key factor showing the act of Respondent .
(b) Bennett as an employee of U.S. Apparel (Respondent) knowingly
accessed the LinkedIn and Twitter accounts of Petitioner and substituted
all the personal information from that account with Valentini’s without
conveying the same to the petitioner and denying her any access to these
accounts by changing their passwords without her authorization, which is a
clear violation of this act.
3. “Conversion” according to §222A Restatement (Second) of Torts (1965) is
defined as the Wrongful or unauthorized exercise of dominion or control over
the chattel and Respondent committed the Tort of “Conversion”
(a) When respondent wrongfully accessed the LinkedIn and Twitter accounts
of the petitioner without her authorization and converted all the personal as
well as professional info of the petitioner by interfering upon her right to
exercise control over these accounts.
(b) The respondent thus confined the interest of the petitioner to exercise her
control over the accounts by changing the passwords of the same and
committing the above tort of conversion.
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ARGUMENT OF THE CASE
I. RESPONDENT’S
ACT
OF
INTRUSION
UPON
SECLUSION
AND
ERRENAEOUS JUDGEMENT OF CIRCUIT COURT IN GRANTING
MOTION TO DISMISS THE CLAIM UPON THE RULE §12(B)(6)
“FAILURE TO STATE CLAIM UPON WHICH RELIEF CAN BE
GRANTED”.
Circuit court committed error when it granted respondent’s
motion to
dismiss the claim of the petitioner under the Civil Procedure Rules
§12(b)(6) which is “failure to establish claim upon which relief is to be
granted”.
Whereas there is sufficient uncontested evidence on record
which is in favour of the petitioner that her right of privacy was violated by
the respondent. Intrusion upon seclusion occurs when “[o]ne intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another
or his private affairs or concerns, is subject to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person.”
According to Lovgren v. Citizens First Nat'l Bank of Princeton, 126
Ill.2d 411, 417,534 N.E.2d 987, 989 (1989), an intrusion upon seclusion
involves at its core "the offensive prying into the private domain of another"
Restatement Second of Torts § 652B (1977) ; see also Bauer v. Ford
Motor Credit Co., 149 F. Supp. 2d 1106; (citing Lake v. Wal-Mart
Stores, Inc., 582 N.W.2d 231, 233 (Minn. 1998) (quoting)Restatement
(Second) of Torts § 652B (1977)). "While what is `highly offensive to a
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reasonable person' suggests a standard upon which a jury would properly
be instructed, there is a preliminary determination of `offensiveness' which
must be made by the court in discerning the existence of a cause of action
of intrusion." (citing Benitez v. KFC Nat. Management Co., 714 N.E.2d
1002 (Ill. App. Ct. 1999)); (Citing Melvin v. Burling, 141 Ill. App. 3d 786
(1986)). See also Bank of Indiana v. Tremunde, 50 Ill. App. 3d 480
(1977) (Fifth District, impliedly recognizing the cause of action).
The Supreme Court of Nevada in PETA v. Bobby Berosini, Ltd., 111
Nev. 615, 895 P.2d 1269, 1281 (1995) (citing J. Thomas McCarthy, The
Rights of Publicity and Privacy, § 5.10(A)(2)) gave its view that "[t]he
question of what kinds of conduct will be regarded as a `highly offensive'
intrusion is largely a matter of social conventions and expectations."
Shapiro can sufficiently plead the facts and circumstances that
support her cause of action for U.S. Apparel’s (Respondent) intrusion upon
Shapiro’s seclusion because she had a reasonable expectation of privacy
with the info which she had in her desktop computer to the extent that her
dealings would not be publically revealed (citing Johnson
v. K mart
Corp., 311 Ill. App. 3d 573, 578 (2000)). Even the federal District court of
Kansas in (Haynes v. Office of Atty. Gen. Phill Kline, 298 F. Supp. 2d
1154 (2003)) found “an employee may have a reasonable expectation of
privacy in certain personal files on a work computer”. In this case there is
sufficient evidence to prove the respondent’s liability for the tort of intrusion
upon seclusion.
24 | P a g e
(a) Respondent’s action of accessing the desktop computer of Jane
Shapiro without her affirmation and authorization
When the petitioner Jane Shapiro left U.S. Apparel she took her personal
cell phone and tablet with her, leaving behind her confidential data in her
desktop computer and Valentini directed Bennett (Both Employees to U.S.
Apparel) to access the desktop computer of the petitioner and seek all the
information it had.
The following establish the tort of Intrusion upon seclusion: (1) Bennett
obtained the personal information from the desktop computer of the
petitioner without her authorization in order to obtain information as per the
orders by the then CEO Valentini; (2) Valentini Knew that Bennett obtained
information from petitioner’s desktop computer without her authorization by
accessing the same; (3) Bennett and Valentini both were acted as agents
of U.S. Apparel when Bennett obtained the information on the directions of
Valentini from the petitioner’s desktop computer; (4) Valentini and Bennett
acting within the scope authority granted by U.S. Apparel when Bennett
obtained the said information on the directions of Valentini from the
desktop computer of the petitioner without her authorization; (5) U.S.
Apparel knew that Bennett had obtained information from the desktop
computer of the petitioner by accessing the same without her
authorization. (Citing Lawlor v. North American Corp. of Illinois, 2012 IL
112530) Id. ¶ 33 “b.The invasion may be *** by some other form of
investigation or examination into his private concerns, as by opening his
private and personal mail, searching his safe or his wallet, examining his
25 | P a g e
private bank account, or compelling him by a forged court order to permit
an inspection of his personal documents. The intrusion itself makes the
defendant subject to liability, even though there is no publication or other
use
of
any
kind
of
the
***
information
outlined.”)
Restatement (Second) of Torts § 652B cmt. b, at 378-79 (1977). See also
Burns v. Masterbrand Cabinets, Inc., 369 Ill. App. 3d 1006 (4th Dist.
2007); (citing 829 F. Supp. 998: Amati v. City of Woodstock, Ill.).
Hence there was sufficient evidence as to
establish a claim against the respondent where the respondent knowingly
and intentionally intruded upon the right of privacy of the petitioner by
accessing her desktop computer without her authorization and then the
information that was being collected from that computer was disclosed
with mala-fide to injure her image and market reputation which definitely
caused suffering to the petitioner as the ingredients of tort of intrusion
upon seclusion established by the Appellate Court of Illinois in Melvin v.
Burling, (Supra). The Circuit Court inadvertently neglected the contents of
the instant case where the respondents had every intention to intrude
upon the privacy of the petitioner. In fact where the respondent had no
authorization and affirmation regarding accessing the desktop computer of
the petitioner and no authorization to obtain any information relating to the
petitioner which was private subject to conditions of the same and then
disclosing the information in order to injure the image and reputation of
that person, this constitutes to Intrusion upon Seclusion and therefore the
Circuit Court granting Respondent’s motion to dismiss the claim against
26 | P a g e
the petitioner was erroneous, improper and misappropriate. (See also
Vernars v. Young, 539 F.2d 966 (3d Cir. 1976) (Employer reads
Employee’s mail));(See also Stengart v. Loving Care Agency, Inc., 973
A.2d 390 (N.J. Super. Ct. App. Div. 2009) (Employee’s e-mail to lawyer on
company laptop are off limits)).
Moreover the contents of the case reveal that the
invasion of privacy of the petitioner caused her anguish and suffering
because the disclosure made by the respondent scandalized her image
and business reputation. (citing Shulman v. Group W. Productions, 955
P.2d 469, 489 (Cal. 1998))
(b) Respondent
disclosed
the
information
obtained
without
the
authorization and affirmation of the petitioner with intention to
damage the reputation of the petitioner.

Information was wrongfully accessed by the respondent
without the authorization of the petitioner with intention to
damage her reputation.
After the respondent wrongfully accessed the information contained
in the desktop computer of the petitioner the U.S. Apparel’s
Chairman of the Board instructed Valentini the then CEO of the
company to get more data from the personal information obtained
through petitioner’s desktop computer and disclose the same by
calling out a press conference, which itself shows the curiosity
shown by the respondent to intrude the privacy of the petitioner.
27 | P a g e
(citing Green v. Chicago Tribune Co., 286 Ill.App.3d 1, 221 Ill.Dec.
342, 675 N.E.2d 249 (1996));
(See also Boyles v. Kerr, 806
S.W.2d 255 299(Tex.Ct.App.1991)(stating that "the basis for liability
in a privacy action may rest upon a negligent, as well as an
intentional, invasion")). The respondent had knowledge that the
access was unauthorized and was well aware of the consequences
that the disclosure of the same by calling a press conference may
lead to reputation issues for the petitioner. This is the only reason
that the respondent immediately after obtaining the private
information from the desktop computer of the petitioner and getting
extra details from that information obtained called out a press
conference and leaked all of that information to the public.
Subsequently this act of respondent injured the image and
damaged the business reputation of the petitioner.

Sudden Disclosure of the Information Obtained in Press
Conference Regarding business dealings of Petitioner injured
her business Reputation and Image.
U.S. Apparel’s Chairman of the Board called out a press conference
and disclosed all the information obtained from petitioner’s
Computer regarding her alleged secret of private business plan and
business dealings with Hanoi Labor, Co. There is no doubt in this
that U.S. Apparelhad intentionally intended the result of its acts both
by deliberately disclosing the information in press conference and in
knowing that the sudden disclosure would cause humiliation and
28 | P a g e
embarrassment to petitioner Jane Shapiro and injure her business
and market Reputation. (Citing Bailer
Exchange, 687 A.2d 1375 (Md. 1997)).
v.
Erie
Insurance
(See also Housh
v. Peth(1956), 165 Ohio St. 35, 133 N.E.2d 340.) in which Ohio
court of appeals Acknowledged invasion of privacy through three
distinct means : appropriation of another’s personality, publicizing
another’s private affairs and intruding into another’s solitude.(citing
Ainsworth v. Century Supply Co., 693 N.E.2d 510, 295 Ill. App.
3d 644, 230 Ill. Dec. 381).
All these acts committed by respondent are
itself proof that respondent intentionally invaded privacy of the
petitioner with his mala-fide intention to harm, injure and damage
the Reputation of the petitioner because he knew that by publically
revealing the surreptitious information and business dealings of the
petitioner with another company namely Hanoi Labor Co, under the
camouflage of the dire working conditions and use of child labor
would definitely harm and damage the reputation of the petitioner
and cause her embarrassment as well as business loss still the
respondent called out press conference and the information
disclosed caused the petitioner reputation damage and business
loss as such respondent is wholly liable for the tort of intrusion upon
seclusion
from
the
facts
mentioned
above.
Moreover
the
information obtained was a result of an unauthorized access (citing
Engman v. Southwestern Bell Tel. Co., 591 S.W.2d 78 (Mo.
29 | P a g e
App. 1979)); (see also Burns v. Masterbrand Cabinets, Inc., 369
Ill.App.3d 1006, 1010, 314 Ill.Dec. 162, 874 N.E.2d 72 (Ill. 2007).
The “core of the tort of intrusion upon seclusion is the offensive
prying into the private domain of another”); (see also Birnbaum v.
United States, 588 F.2d 319, 323 (2d Cir. 1978). When someone
open’s mail without authorization.) and the circuit court erred in
granting respondent’s motion to dismiss the claim of the petitioner
on basis of failure to state a claim whereas the facts mentioned
above truly state a valid claim against the respondent and the acts
of the respondent define the gravity of the tort and Respondent’s
intention to harm and injure the reputation of the petitioner under
the garb of the surreptitious information obtained from the computer
without her authorization and by invading her right of privacy.
Therefore it is before this Honourable Court to kindly consider the
facts and give remedy for the legal injury caused to the petitioner for
invading her privacy. (Citing Billings v. Atkinson, 489 S.W.2d 858
(Tex.1973), the Supreme Court of Texas declared that "an
unwarranted invasion of the right to privacy constitutes a legal injury
for which a remedy will be granted).
As the right of privacy is violated in this case
therefore the petitioner seeks remedy from this Court and Jane
Shapiro petitioner has alleged sufficient facts to meet with the
requirement of intrusion upon seclusion it is therefore prayed before
this honourable court to deny the motion granted by the circuit court
30 | P a g e
in favour of respondent and give remedy to the petitioner on the
basis of facts sated herein.
II. COMPUTER FRAUD COMMITTED BY RESPONDENT AFTER ACCESSING
PETITIONER’S
SURREPTIITOUS
INFORMATION
FROM
HER
DESKTOP COMPUTER AND CHAGING HER ACCOUNT PASSWORDS
AND PERSONAL INFORMATION WITHOUT HER AUTHORIZATION.
REVIEWING THE ORDER OF CIRCUIT COURT FOR COMMITING
ERROR BY GRANTING RESPONDENT MOTION TO DISMISS THE
CLAIM UNDER RULE §12(b)(6) OF CIVIL PROCEDURE.
Circuit court committed grave error when it granted respondent motion to
dismiss the claim of the petitioner under rule §12(b)(6) of civil procedure
for failure to state claim upon which relief can be granted. (See also P.C.
of Yonkers, Inc. v. Celebrations! The Party and Seasonal Superstore,
LLC, 2007 WL 708978, at *6 (D.N.J. Mar.5, 2007) (citing cases holding
CFAA claims must satisfy general notice pleading requirements of Rule
8(a), not the heightened pleading standard of Rule 9(b)). Whereas
petitioner had placed before the court sufficient facts to prove the violation
of the State of Marshall Computer Fraud and Abuse act ¶1030(a)(2008).
(citing Patrick Patterson Custom Homes, Inc. v. Bach, 586 F. Supp. 2d
1026 (N.D. Ill. 2008)).
According to the ¶ 1030(a)(2008) Computer Fraud and Abuse Act is
said to have been committed when “someone knowingly accesses a
computer without authorization or exceeding authorized access and by
means of such conduct obtains personal information commits the offence”.
31 | P a g e
(See also Grubb v. BD. OF TRUSTEES OF THE UNIV. OF ILLINOIS,
730 F. Supp. 2d 860 (N.D. Ill. 2010)); (citing Paradigm Alliance, Inc. v.
Celeritas Tech., LLC, 248 F.R.D. 598, 602 (D.Kan.2008) ("As a practical
matter, a computer providing a `web-based' application accessible through
the internet would satisfy the `interstate communication' requirement")).
When the computer was accessed it had all the information contained in it
relating to business because Petitioner at the time when she was the CEO
of U.S. Apparel had all the remote access to her cell phone and tablet
which automatically synced with her desktop computer at U.S. Apparel
including her LinkedIn and Twitter accounts enabling her to access all
business plans, written policies, and contact information from any of the
three devices (As per the Record of Appeal). The information obtained by
the respondent by breaching upon the computer and accessing to all the
business files is clear commencement of Computer fraud.
(a) Respondent’s Unauthorized access to petitioner’s desktop
computer used by her for accessing business plans and
written policies etc. of U.S. Apparel.
After accessing petitioner Jane Shapiro’s desktop computer without her
authorization, Valentini the then CEO of U.S. Apparel directed Sharon
Bennett to access the LinkedIn and Twitter accounts of the petitioner
not enough but directed Bennett to substitute the personal information
on these accounts with his profile and also to change the passwords of
these accounts. (See also C.H. Robinson Worldwide, Inc. v.
Command Transp., LLC, 2005 WL 3077998, at *4 (N.D.Ill. Nov.16,
32 | P a g e
2005) (citing Charles Schwab & Co., Inc. v. Carter,2005 WL
2369815, at *8 (N.D.Ill. Sep.27, 2005) (downloading substantial
volumes of files from plaintiff's computers involved interstate commerce
because plaintiff maintained interstate computer network on which files
were stored)). This act of the respondent without the authorization of
the petitioner to change data and access her accounts and change
their passwords were clearly in violation of the Computer Fraud and
Abuse act as respondent had full knowledge of the access being
proceeded without authorization and on the basis of this unauthorized
access only respondent obtained all that information regarding Threads
Business, Hanoi Labor, Co. in furtherance of the computer fraud
respondent also changed the user profile data of the petitioner on
LinkedIn and Twitter accounts and their account passwords which
shows a clear offence under this act.
(As per the record of appeal) The desktop computer of the petitioner
was synched with her cell phone and tablet where she used to do her
work remotely accessing all the business plans and operated her
LinkedIn and Twitter accounts. (Citing Credentials Plus, LLC v.
Calderone, 230 F.Supp.2d 890 (N.D.Ind.2002) (finding computer used
to send and receive e-mail to customers throughout the country
qualified as a protected computer)). (See also Int'l Airport Centers,
L.L.C. v. Citrin, 440 F.3d 418, 419-20 (7th Cir. 2006) (employee who
downloaded secure erasure program to his computer at work would be
exceeding authorized access under CFAA)). All these acts committed
33 | P a g e
by the respondent are well recognised by the State of Marshall for
establishing a civil action under this act. For all the damages caused by
the actions of the respondent after the computer was access without
authorization and information was taken out and disclosed. (citing
Mobile Mark v. Pakosz, 2011 WL 3898032 (N.D. Ill. Sept. 6, 2011).
(b) Respondents action of accessing the LinkedIn and Twitter
accounts of petitioner and changing all the basic and
professional info stored therein and substituting the same
without authorization.
As per Computer fraud and abuse act recognised by the State of
Marshall there needs to be an “unauthorized access” to a computer
with intention to obtain “personal information” and due to the same if
any person suffers damage or loss may maintain a civil action against
the violator of this act to obtain compensatory damages or injunctive
relief (see also Nexans Wires S.A. v. Sark-USA, Inc., 319 F.Supp.2d
468 (S.D.N.Y.2004) (reviewing the legislative history of section 1030
and concluding that nothing "suggest[s] that the `loss' or costs alleged
can be unrelated to the computer"). Intentional cause of loss by
knowingly accessing without authorization or by obtaining personal
information commits the offence of a fraud. (Citing Arience Builders,
Inc. v. Baltes, 563 F. Supp. 2d 883 (N.D. Ill. 2008); (See also Expert
Janitorial, LLC v. Williams, 2010 WL 908740 at * 6 (E.D. Tenn. Mar.
12,
2010) “protected
computer
emails”).
The
respondent
after
accessing the personal information from computer accessed the
34 | P a g e
Twitter and LinkedIn accounts and changed their info and also the
password denying Shapiro any access to it . (citing United States v.
John, 597 F.3d 263 (5th Cir. 2010), The Fifth Circuit stated that “at
least when the user knows or reasonably should know that he or she is
not authorized to access a computer and information obtainable from
that access in furtherance of or to perpetrate a crime,” the user is
subject to prosecution under § 1030. Id. at 271);(See also United
States v. Nosal, 642 F.3d 781 (9th Cir. 2011). Almost Similar to this
fact the respondent also knew that the access was unauthorized and
there was no reason to proceed with the personal info and disclose it
by calling a press conference and then changing all the personal
information from petitioner’s account and substitute it due to all these
facts Shapiro (Petitioner) suffered loss to her business and personal
reputation. (Citing Penrose Computer MarketGroup, Inc. v. Camin,
682 F. Supp. 2d (N.D.N.Y. 2010); See Creative Computing v.
Getloaded.com LLC, 386 F.3d 930, 935 (9th Cir. 2004) (concluding
that the "economic damages" limitation "precludes damages for death,
personal injury, mental distress, and the like" but includes "loss of
business and business goodwill"); A.V. EX REL. VANDERHYE V.
IPARADIGMS, LLC 562 F.3D 630 (4TH CIR. 2009).
Petitioner had stated adequate facts before the Circuit Court but
the Court erred the Judgement by granting respondent motion to
dismiss the claim well established by petitioner because as alleged
respondent accessed the accounts and personal information of the
35 | P a g e
petitioner and the honourable circuit Court never appreciated this fact.
It is true and admitted that Sharon Bennett being a part of U.S. Apparel
did her work as per directions of Valentini the then CEO after the
petitioner and the desktop computer access was granted by Shapiro
during her tenure as the CEO was not all unauthorized but accessing
her private files on that computer and her LinkedIn and Twitter by
changing account passwords amounting to hacking was in a way
unauthorized access (Citing Shurgard Storage Ctrs., Inc. v.
Safeguard Self Storage, Inc., 119 F.Supp.2d 1121, 1125 (W.D.Wash.
2000) (relying on the Restatement (Second) of Agency11 to find that
"the authority of the plaintiff's former employees ended when they
allegedly became agents of the defendant," and thus, that the
employees "lost their authorization and were `without authorization'
[under the CFAA] when they allegedly obtained and sent [the plaintiff's]
proprietary information to the defendant via e-mail");(See also U.S. v.
Millot, 433 F.3D 1057 (8TH CIR. 2006). Petitioner has suffered a lot
due to the acts of the respondent as all the information that was taken
out of the petitioner’s desktop computer without her authorization and
the same was being disclosed by calling a press conference to damage
and injure her reputation. The act of changing the personal info of the
petitioner’s LinkedIn and Twitter accounts and changing their
passwords is sufficient to prove petitioner’s claim against the
respondent for violation of State of Marshall Computer Fraud and
Abuse Act. For these acts petitioner prays before this Honourable
Court for relief and reviewing the error committed by Honourable
36 | P a g e
Circuit court by granting respondent motion to dismiss the claim of the
petitioner and also for the loss suffered by the petitioner in connection
to respondent’s acts. (Citing Facebook, Inc. v. Power Ventures, Inc.,
844 F.Supp.2d 1025, 1038–39 (N.D. Cal. 2012) (holding that access
was without authorization under the CFAA where defendants
“circumvented technical . . . barriers in place to restrict or bar a user’s
access”); United States v. Mitra, 405 F.3d 492, 494-96 (7th Cir.
2005) (affirming CFAA conviction under CFAA where defendant
interfered with a municipality’s use of a computer-based radio system
for police, fire, ambulance and other emergency communications).
(c) Respondent’s action caused irreparable loss and damage
to the petitioner and her business reputation by disclosing
the information which was taken out of petitioner’s
desktop computer without her authorization in press
conference and changing her account passwords and user
profile info.
The state of Marshall Computer Fraud and Abuse act ¶1030 (a) (2)
provides any person who suffers damage or loss by reason of a
violation of this section may maintain a civil action against the violator
to obtain compensatory damages or injunctive relief or other equitable
relief.
Under this rule provided by the State of Marshall Computer
Fraud and Abuse act Petitioner brought an action against the
respondent but the Honorable Circuit Court erred while granting
respondent motion to dismiss the claim of petitioner for failure to state
37 | P a g e
claim whereas the act itself proofs that respondent committed
Computer fraud by damaging the reputation of petitioner while
disclosing the information obtained by respondent from petitioner’s
desktop computer and changing petitioner’s account passwords
denying her any access to those accounts. See Inmates of Suffolk
Cty. Jail v. Rouse, 129 F.3d 649, 653-54 (1st Cir. 1997). The word
"loss" means "detriment, disadvantage, or deprivation from failure to
keep, have or get." The Random House Dictionary of the English
Language 1137 (2d ed. 1983); (Citing In re Intuit Privacy Litig., 138
F.Supp.2d 1272, 1281(C.D.Ca. 2001) (loss means "irreparable
damage" and any other interpretation "would render the term
`damage' superfluous"); Register.com, Inc. v. Verio, Inc., 126
F.Supp.2d 238, 252 n. 12 (S.D.N.Y. 2000) (lost business or goodwill
could not constitute loss absent the impairment or unavailability of data
or systems). Under all these Circumstances it is submitted before this
Honourable Court to grant relief to the petitioner.
Petitioner Shapiro has submitted sufficient evidence and
proof to settle the claim against the alleged respondent and under the
light of all the facts mentioned above petitioner prays before this court
to review the verdict of Circuit Court and settle petitioner‘s claim
against U.S. Apparel (Respondent) for Violation of State of Marshall
Computer Fraud and Abuse Act.
III. CIRCUIT COURT ERRED IN GRANTING RESPONDENT’S MOTION TO
DISMISS THE CLAIM FOR CONVERSION UNDER THE §12(b)(6)
38 | P a g e
STATE OF MARSHALL RULES OF CIVIL PROCEDURE FOR FAILURE
TO STATE CLAIM BECAUSE PETITIONER PRESENTED AMPLE
EVIDENCE
AND
FACTS
TO
PROVE
HER
COMMON
LAW
CONVERSION CLAIM AGAINST THE RESPONDENT
The circuit court committed grave error in giving respondent’s motion to
dismiss the claim under §12(b)(6) of State of Marshall Rules of Civil
Procedure finding that petitioner had failed to state a claim upon which
relief can be granted. In relation to this verdict of the Circuit Court it is
submitted that in the instant case Shapiro had secured sufficient evidence
to justify her claim against the respondent’s. Similar to the State of
Marshall Rules of Civil Procedure Courts in Fed.R.Civ.P. 12(b)(6) held that
the purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to
test the sufficiency of the plaintiff's complaint. See Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Accordingly, a 12(b)(6)
motion ought not be granted unless "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The Supreme Court of Marshall adopted the Restatement’s definition of
conversion and the Restatement defines conversion as follows:
"(1) Conversion is an intentional exercise of dominion or control over a chattel
which so seriously interferes with the right of another to control it that the actor
may justly be required to pay the other the full value of the chattel."
(Restatement (Second) of Torts §222A (1965).)
39 | P a g e
Under this definition of conversion both tangible and intangible
Both tangible items and intangible property can be the subject of a claim for
conversion under. See (Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003));
when the domain name sex.com was wrongfully transferred to a con man, a
claim for conversion was held to be available against the domain name
registrar; (Citing Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d
283 (N.Y. 2007);The court abandoned the tangible/intangible property
distinction and held that conversion applies to computer data. Moreover
Conversion under Illinois law requires: (1) an unauthorized and wrongful
assumption of control, dominion, or ownership by defendant over plaintiff’s
property; (2) plaintiff’s right to the property; and (3) plaintiff’s right to
immediate possession of the property, absolutely and unconditionally. Gen.
Motors Corp. v. Douglass, 565 N.E.2d 93, 96–97 (Ill. App. Ct. 1990). It is
very much clear here that petitioner stated her claim before the Circuit Court
under the light of all the facts mentioned herein that Bennett being an agent of
U.S. Apparel committed conversion by intentionally converting petitioner’s
Twitter and LinkedIn accounts and all her personal info in them and
substituting the same with Victor Valentini but the court erred while granting
respondent’s motion to dismiss the claim.
(a) Sharon Bennett acting as an agent of U.S. Apparel or working
under the authority of U.S. Apparel intentionally converted
Shapiro’s
(Petitioner)
Twitter
and
LinkedIn
accounts
and
changed her personal info therein by substituting the same with
Victor Valentini which amounted to tort of conversion.
40 | P a g e
Sharon Bennett the (former) Administrative Assistant of Jane Shapiro and the
then Administrative Assistant of Victor Valnetini(the then CEO of U.S Apparel)
on his directions and as an agent of Respondent, Bennett intentionally
accessed Shapiro’s Twitter and LinkedIn accounts and deleted her name and
photo and other personal information and substituted them with Valentini and
further
changed
the
Twitter
handle
from
@U.S.Apparel_Shapiro
to
@U.S.Apparel_Valentini . She changed all the accounts of petitioner
intentionally and their passwords too as she was the only person who knew
the personal account passwords of both the accounts belonging to the
petitioner. The Restatement (Second) of Torts, a tort for conversion can arise
from "any material alteration in characteristics to chattel." R. Rudnick & Co.
v. G.F. Protection, Inc., No. 08 C 1856, 2009 WL 112380, at *3 (N.D.Ill. Jan.
15, 2009); See Loman v. Freeman, 229 Ill.2d 104, 321 Ill.Dec. 724, 890
N.E.2d 446 (2008); Restatement (Second) of Torts § 226 ("One who
intentionally destroys a chattel or so materially alters its physical condition as
to change its identity or character is subject to liability for conversion to
another who is in possession of the chattel or entitled to its immediate
possession."); (Citing Pioneer Commercial Funding Corp. v. United
Airlines, Inc., 122 B.R. 871, 883 (S.D.N.Y.1991) (quoting Black's Law
Dictionary 300 (5th ed.1979)). The act of converting the accounts was subject
to conversion because it was the chattel as stated above regardless of
physical possession should be under control of the owner since it was used
by Jane Shapiro she was the owner at the time before it was converted by the
Respondent. (Citing Phansalkar v. Andersen Weinroth & Co., LP, 175 F.
Supp. 2d 635 (S.D.N.Y. 2001)); ( See also Stimmel v. Weiner, No. 89 C
41 | P a g e
6510, 1991 WL 117928, at *3 (N.D.Ill. June 25, 1991). The facts are
perspicuous as to what respondent did or under what circumstances
conversion took place it was all intentional and in a way to deny the petitioner
to access control over the accounts. The accounts were changed, the
information therein was changed , pictures were deleted and replaced with
Victor Valentinis and then the passwords were changed and all these factors
subsequently fulfil the tort of conversion for which respondent is wholly
reliable and the loss suffered by the petitioner due to these malicious acts of
respondent cannot be rule out. The Circuit Court gave respondent
unanticipated relief by granting motion to dismiss the claim of the petitioner for
failure to state claim upon which relief can be granted. (Citing Sioux
Biochemical, Inc. v. Cargill, Inc., 410 F. Supp. 2d 785 (N.D. Iowa 2005)).
Therefore it is prayed before this honourable court to kindly envisage the facts
mentioned above and in the light of these facts grant relief to the petitioner.
(b) Respondent intentional act of converting the Twitter and
LinkedIn accounts of the petitioner by deleting all her images
and personal info therein and substituting them with Victor
Valnetini and further denying petitioner’s right to exercise her
control over those accounts by changing their passwords.
Conversion is categorized as an intentional tort because it requires “an
intentional exercise of dominion or control over a chattel.” Martel Enters. v.
City of Chi., 584 N.E.2d 157, 159 (Ill. App. Ct. 1991) (citing In re Thebus, 483
N.E.2d 1260 (Ill. 1985); Restatement (Second) of Torts § 222A (1965)).
Respondent intentionally converted the LinkedIn and Twitter accounts, the
42 | P a g e
information contained in these accounts, and the contacts and followers
associated with them, thereby interfering with Shapiro’s right to control them.
As has been noted by the Illinois Appellate Court, conversion does not center
on the "acquisition by the wrongdoer, but a wrongful deprivation of the owner
thereof." Jensen v. Chi. & W. Ind. RR., 94 Ill.App.3d 915, 50 Ill.Dec. 470,
419 N.E.2d 578, 593 (1981).
Under the Restatement of Torts Second for
§222A(2) In determining the seriousness of the interference and the justice of
requiring the actor to pay the full value, the following factors are important:
(i)
the extent and duration of the actor’s exercise of dominion of control;
(ii)
the actor’s intent to assert a right in fact inconsistent with the other’s
right of control;
(iii)
the actor’s good faith
(iv)
the extent and duration of the resulting interference with the other’s
right of control;
(v)
the harm done to the chattel;
(vi)
the inconvenience and expense caused to each other.
In the instant case where the gravity of the Respondent’s tortuous act
is itself revealed when the respondent accessed the account of
petitioner without her authorization, deleted all her pictures from her
accounts and changed their passwords denying petitioner’s right to
exercise control over the same and the same by substituting all the
personal info with Valentini damaging petitioner’s business reputation
by doing the same satisfies almost all of the elements required for
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claim of conversion by the petitioner against the respondent for the
intentional harm caused by U.S. Apparel to Jane Shapiro interfering
with her right to control her own LinkedIn and Twitter accounts by
changing their account passwords and substituting all the information
contained in these accounts. Under these circumstances petitioner
prays before this Honourable Court for remedy and relief against the
tortuous act of interference with her right to control her account and
hence committing the tort of conversion. The Seventh Circuit in
Telemark Development Group, Inc. v. Mengelt, 313 F.3d 972, 983
(2002), stated that under Illinois law, where the stock appreciated after
conversion, the plaintiff may recover the highest value of the stock
within a reasonable time after conversion, even up to the time of the
judgment (citing Mercantile Holdings, Inc. v. Keeshin, 261
Ill.App.3d 546(1st Dist. 1983). Damages can be awarded by the court
for the loss suffered by the petitioner due to the malicious intentional
act of the respondent. (Citing Cirrincione v.Johnson, 184 Ill.2d 109,
114 (1998)); Punitive damages are awraded “when torts are committed
with fraud, actual malice, * * * or when the defendant acts wilfully, or
with such gross negligence as to indicate a wanton disregard of the
rights of the others.” Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 23
Ill.Dec. 559, 384 N.E.2d 353 (1978). Moreover to establish a claim for
conversion, the owner of property must show only that another has
appropriated the property to that party's own use and beneficial
enjoyment, has exercised dominion over it in exclusion and defiance of
the owner's right, or has withheld possession from the owner under a
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claim of title inconsistent with the owner's title." (See O'Brien, 160 Vt.
at 299, 629 A.2d at 328); (citing Hegarty v. Addison County
Humane
Soc'y, 2004
VT
33,
¶
9, 176
Vt.
405, 848
A.2d
1139 (accord)). "The key element of conversion, therefore, is the
wrongful exercise of dominion over property of another." O'Brien, 160
Vt. at 299, 629 A.2d at 329; (See William F. Shidler v. All American
Life
&
Financial
(8th Cir. 1985));(conversion
Corp.,
of
Etc.,
shares).
775
See
F.2d
917
also Restatement
(Second) of Torts, § 927(2) (owner of converted chattel, in addition to
diminished value, may recover "any further pecuniary loss of which the
deprivation has been a legal cause"); (Amstar Corp. v. M/V
Alexandros T., 472 F.Supp. 1289 (D.Md.1979) (awarding expenses of
handling and testing damaged cargo of sugar, as well as loss of value
of cargo)). The petitioner under the contemplation of all the facts and
cases cited for the conversion claim prays before this Honourable court
to give him relief and consider his conversion claim against the
respondent for the tort committed by them.
Shapiro has alleged sufficient facts to satisfy
the requirements of the tort of Conversion, or at a minimum Shapiro
has established genuine issues of material fact to survive her claim
against the respondents for the end of justice.
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CONCLUSION & PRAYER FOR GRANTING RELIEF
In view of all the facts stated above, it is therefore prayed before this Hon’ble Court
that the appeal of the appellant/petitioner may please be accepted and relief to the
petitioner/appellant may kindly be ordered to be granted with directions to the
respondent/appellee to pay damages to the petitioner for the loss stated by her
before the circuit court, after amending the impugned Verdict of the Circuit Court, for
providing Justice to the petitioner.
After all the facts and evidence proved above. It is sufficient that the
petitioner has proved her claim with the fulfilment of all the ingredients required
under the above sections and clauses for claim and for damages of the loss caused
to her by the respondent and therefore it is before this Hon’ble Court to appreciate
the facts and envisage them accordingly and kindly Reverse the Judgement and
Verdict of the Hon’ble Circuit Court and remand the case back to the trial Court for
proper decision and for the End of Justice.
Dated: 26.09.2014
Respectfully Submitted:
Through Counsel
Mayur Karkra
(Brief for Petitioner)
Team Number 2
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