Advanced Fluid Systems, Inc. v. Huber (28 F. Supp. 3d 306, 2014)

United States District Court for the Middle District of Pennsylvania 2014-06-18

Citations

Full opinion text

MEMORANDUM

CHRISTOPHER G. CONNER, Chief Judge.

Plaintiff Advanced Fluid Systems, Inc. (“AFS”) filed the above-captioned action seeking injunctive relief and compensatory and punitive damages based upon violations of the Lanham Act, 15 U.S.C. § 1051 et seq., the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Pennsylvania Uniform Trade Secrets Act, 12 Pa. Cons.Stat. § 5301 et seq., along with various common law claims. Before the court are two motions filed by Livingston & Haven, LLC (“L & H”), Clifton B. Vann IV, and Thomas Aufiero, (Doc. 28), and Kevin Huber and Integrated Systems and Machinery, LLC (“INSYSMA”) (Doc. 33), seeking dismissal of AFS’s amended corn-plaint in its entirety. In a memorandum and order (Docs. 53-54) dated May 7, 2014, 2014 WL 1808652, the court rejected defendants’ arguments related to subject-matter jurisdiction, personal jurisdiction, compulsory joinder, and transfer under 28 U.S.C. § 1404(a). This memorandum will assess the parties’ arguments under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court will grant in part and deny in part the motions.

1. Factual Background and Procedural History

A. Parties

Plaintiff AFS is a Pennsylvania corporation that designs, assembles, and installs hydraulic systems that use pressurized fluids to move heavy machinery for complex operations. (Doc. 65 ¶ 1). Relevant to the instant action, AFS created the Transporter/Erector/Launcher/Hydraulic System (“TELHS”)' for the Mid-Atlantic Regional Spaceport (“MARS”) on Wallops Island, Virginia, pursuant to a contract with the Virginia Commercial Space Flight Authority (“VCSFA”) dated September 30, 2009. (Id.) Under the TELHS contract, VCSFA hired AFS to “provide the complete specification, engineering drawings, analyses, testing requirements, operating descriptions, interfaces with other launch facility systems and all related engineering and professional design services to develop the final and complete design for the Antares’ [sic] rocket[’s] hydraulic motion control system.” (Id. ¶ 26).

Orbital is the developer of the Antares rocket and agreed to launch the rocket from the MARS facility upon construction of the facility and the purchase of certain hardware, including TELHS. (Id. ¶ 25). AFS successfully designed, assembled, and installed TELHS at the MARS facility, and the first test launch of the Antares rocket took place in February 2013. (Id. ¶¶ 29-31). In the process of completing the contract, AFS generated substantial internal documentation, including thousands of engineering drawings and diagrams and proprietary software code, which are kept in password-protected electronic files on AFS’s server. (Id. ¶ 36). VCSFA acquired “legal ownership to all inventions or works” created under the contract, but AFS remained in physical possession and control of the trade secrets and continued to used them in a confidential manner to fulfill its obligations. (Id. ¶ 37). When necessary, AFS provided Orbital with certain confidential information to help integrate TELHS with the Antares rocket. (Id.)

During AFS’s performance of the TELHS contract, defendant Kevin Huber served as AFS’s main point of contact with Orbital. (Id. ¶ 44). From November 2006 until October 26, 2012, AFS employed Huber as a full-time salesman and engineer. (Id. ¶ 2). Defendant Thomas Aufiero, the head of AFS’s sales force and a key member of AFS’s management team, hired and supervised Huber until Aufiero resigned from AFS in January 2011. (Id. ¶¶ 40-41). Aufiero is now the hydraulic sales manager for defendant L & H, a North Carolina company that also designs, assembles, and installs hydraulic fluid systems and competes with AFS in the national market. (Id. ¶¶ 4, 6, 39). In his capacity as a salesman and engineer, Huber had access to AFS’s confidential information, including complete sets of drawings, diagrams, and other documents generated in connection with numerous projects. (Id. ¶ 43). Huber also had access to AFS’s component and labor costs as well as AFS’s quotes for all of its projects. (Id. ¶¶ 43, 58).

On October 9, 2012, Huber announced his resignation from AFS and officially left his position on October 26, 2012. (Id. ¶ 45). When AFS finally retrieved Huber’s company-issued laptop computer and cell phone, AFS determined that Huber had attempted to erase all data from both devices. (Id. ¶¶ 45-46). Upon restoring the deleted information, AFS ostensibly discovered that Huber was working with the L & H defendants as early as January 2012 while he was a full-time AFS employee. (Id. ¶ 47).

B. Conspiracy Among Defendants

AFS avers that defendants conspired to gain access to AFS’s confidential information through Huber and to use that confidential information for the purpose of diverting business from AFS. (Id. ¶¶ 10, 40). According to AFS, Huber first accessed AFS’s server and email system in November 2011 to send L & H photographs and videotapes of the Antares rocket test launches using TELHS. (Id. ¶ 66). In January 2012, L & H granted Huber access to L & H’s private network through a Virtual Private Network (“VPN”) connection and password. (Id. ¶ 49). L & H also set up an email address for Huber in its internal email system. (Id. ¶ 51). On April 12, 2012, Huber organized a secret meeting at the MARS facility with L & H, including Clifton Vann, president of L & H, and Aufiero. (Id. ¶¶ 5, 52). According to several deleted emails, the purpose of the meeting was to discuss future upgrades to TELHS. (Id. ¶¶ 52-55). In its pleadings, AFS sets forth detailed allegations regarding actions taken by defendants in furtherance of the conspiracy.

C. Stealing Confidential Information

AFS asserts that, beginning in September 2012, Huber accessed AFS’s server and downloaded numerous files that did not correlate to any project on which he was working. (Id. ¶ 56). In October 2012, after he announced his resignation, Huber began saving significant amounts of confidential information to an external drive. (Id. ¶ 58). In particular, AFS discovered that Huber stored information about two of his past projects- — the Passaic NJ Valley Sewer and New York Power projects — as well as a folder containing all pending AFS quotes. (Id. ¶¶ 58, 92 — 93). AFS alleges that Huber transmitted this confidential information to L & H. (Id. ¶¶ 56, 58).

On October 18, 2012, Huber formed a company called INSYSMA with offices in New York and Connecticut. (Id. ¶¶ 3, 57). AFS claims that Huber duplicated at least four AFS drawings of engineering plans and re-signed them for INSYSMA with his own initials. (Id. ¶ 64). The INSYSMA website displays a photograph of a successful launch of the Antares rocket using TELHS on September 18, 2013. (Id. ¶ 74). The website does not attribute TELHS to AFS. (Id.) Rather, the website states that INSYSMA is currently working with Orbital in support of current and upcoming launches, thereby falsely implying to viewers that INSYSMA designed and installed TELHS. (Id.)

Lastly, AFS asserts that, in February or March 2012, L & H attempted to recruit AFS’s top electrical engineers, Tom Reiker- and Larry Quickel. (Id. ¶¶ 95-97). L & H called Reiker in York, Pennsylvania and offered him a position, which Reiker declined. (Id. ¶ 95). Huber also spoke in person with Quickel, AFS’s chief electrical engineer, on multiple occasions to entice him to leave AFS and join L & H. (Id. ¶ 96). In April 2013, after the successful launch of the Antares rocket, Huber called Reiker again to “congratulate” him, (id. ¶ 97), but Huber also informed Reiker that AFS would not be receiving any more upgrade work on the Antares rocket. (Id.) According to AFS, Reiker’s congratulatory call was pretense to Huber’s news of work stoppage, a transparent, second attempt to encourage Reiker to join L & H. (Id.)

D. Usurping Business Opportunities

In addition to stealing confidential information, AFS avers that the purpose of the alleged conspiracy was to divert AFS’s business opportunities related to TELHS and other projects. (Id. ¶ 40). AFS details each of these attempts in its amended complaint.

i. Business Related to TELHS

AFS claims that, in September 2012, Huber submitted an unusually high bid on behalf of AFS for upgrades to TELHS’s gripper arms. (Id. ¶ 60). According to AFS, Huber secretly and simultaneously submitted a substantially lower bid on behalf of L & H for the same project. (Id. ¶ 61). As a result, L & H and INSYSMA received Orbital’s contract for the gripper arms upgrade. (Id. ¶ 67). When Orbital later decided to move forward with a $4 million upgrade to the entire TELHS system, (see id. ¶ 68), Huber sent Orbital an informal quote on behalf of L & H and INSYSMA, as agent of the S3 Group at L & H. (Id. ¶¶ 61-63, 69). AFS alleges that Jim Vaughn, president of AFS, repeatedly informed Orbitál that AFS wanted to bid on all upgrades and all training and maintenance contracts. (Id. ¶ 71). Unsurprisingly, L & H and INSYSMA were awarded the contract for the complete TELHS upgrade. (Id. ¶ 71).

As part of the complete upgrade, Huber contacted Maritime Hydraulic, a cylinder manufacturer with whom AFS maintains a non-disclosure agreement. (Id. ¶ 65). Huber sought a quote on new cylinders. (Id. ¶ 72). Kim Carruthers, the owner of Maritime Hydraulic, informed Huber that all information related to the cylinders for TELHS was AFS’s proprietary information. (Id.) Notwithstanding this response, INSYSMA placed an order with Maritime Hydraulic for two new cylinders for the TELHS upgrade. (Id. ¶ 73). According to the amended complaint, the cylinders are now close to completion. (Id.) In light of these events, AFS alleges that it has been shut out of all future work with Orbital at other launch sites as well as VCSFA’s plan to further develop the MARS facility for Orbital and other commercial space clients. (Id. ¶¶ 75-76; see also id. ¶¶ 22, 34, 38).

ii. Other Business Opportunities

AFS also alleges that defendants usurped several non-TELHS business opportunities. (Id. ¶ 77). First, as early as November 2011, Huber emailed L & H regarding plans for a potential bid on a U.S. Army TACOM Hydraulic Manifold and suggested submitting the bid proposal through Rexroth, L & H’s principal supplier and AFS’s largest competitor. (Id. ¶ 91). Second, in December 2011, Huber and Aufiero at L & H exchanged emails regarding a U.S. Navy Hydraulic Test Stand project. (Id. ¶¶ 85-86). Huber subsequently sent numerous communications to the U.S. Navy as well as an independent engineering-and testing laboratory on behalf of L & H. (Id. ¶¶ 87-89). Huber requested extensive information in support of a potential bid on the Navy Hydraulic Test Stand project from Harry Kahn Associates, who submitted a presentation under the mistaken impression that AFS had requested the information. (Id. ¶ 90).

Finally, in June 2012, Huber sent L & H a detailed bid proposal for a U.S. Air Force Hydraulic Test Stand, listing Huber as the project manager for L & H. (Id. ¶ 78). Huber listed Orbital as a reference for L & H’s capabilities and represented that L & H designed, fabricated, and installed TELHS on Wallops Island. (Id. ¶¶ 80-81). In addition, Huber sent the U.S. Air Force a document containing the start-up procedures for TELHS, which clearly states that the document was “originated by and is the property of Advanced Fluid Systems.” (Id. ¶ 82). In an attempt “to disguise and misrepresent AFS’s role,” Huber informed the Air Force that AFS was merely a subcontractor that generated certain technical documents on behalf of L & H. (Id.) Thus, L & H and Huber, who acted as L & H’s agent while a full-time AFS employee, prevented AFS from pursuing these business opportunities. (Id. ¶ 84).

E. Procedural History

On December 24, 2013, AFS filed a complaint against defendants, alleging violations of the Lanham Act, 15 U.S.C. § 1051 et seq., the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Pennsylvania Uniform Trade Secrets Act, 12 Pa. Cons.Stat. § 5301 et seq., in addition to various common law claims. (Doc. 65). On February 14, 2014, AFS requested a preliminary injunction to prevent defendants from working on upgrades to TELHS and constructing additional hydraulic launch systems using AFS’s alleged trade secrets. (Doc. 29). Defendants simultaneously filed the instant motions to dismiss. (Does. 28, 33). The court denied the motions to dismiss on jurisdictional and compulsory joinder grounds and the motion to transfer, but reserved ruling on the motions to dismiss pursuant to Rule 12(b)(6). (Docs. 53-54). AFS filed the now operative amended complaint on May 29, 2014. (Doc. 65).

II. Legal Standard

The court’s jurisdiction in the instant matter is premised on both its power to decide questions of federal law and to hear claims by parties of diverse citizenship for amounts in controversy exceeding $75,000. See 28 U.S.C. §§ 1331, 1332(a). The court may also exercise supplemental jurisdiction over the state law claims because they are related to and share a common nucleus of operative facts with the federal law claims, thus forming part of the same case or controversy. See id. § 1367; also Lyon v. Whisman, 45 F.3d 758, 759-60 (3d Cir.1995) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)).

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.2005)). In addition to reviewing the facts contained in the complaint, the court may also consider “matters of public record, orders, exhibits to the complaint and items appearing in the record of the case.” Oshiver v. Levin Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.1994); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993).

Federal notice and pleading rules require the complaint to provide “the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To test the sufficiency of the complaint, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir.2010). In the first step, “the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Next, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009). Once the court isolates the well-pleaded factual allegations, it must determine whether they are sufficient to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955); Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (requiring plaintiffs to allege facts sufficient to “raise a right to relief above the speculative level”). A claim “has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. When the complaint fails to present a prima facie case of liability, courts should generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.2000).

III. Discussion

Defendants set forth five principal arguments in their Rule 12(b)(6) motions. First, defendants assert that AFS cannot pursue a claim for misappropriation of trade secrets because it no longer owns the trade secrets at issue. Second, defendants argue that Pennsylvania’s trade secret statute preempts AFS’s common law claims for unjust enrichment, unfair competition, conversion, conspiracy, and aiding and abetting a breach of fiduciary duty. Third and fourth, respectively, defendants contend that AFS does not adequately allege claims under the federal Computer Fraud and Abuse Act or the Lanham Act. Finally, defendants argue that AFS cannot maintain a common law claim for tortious interference with contractual relations. The court addresses each of these issues seriatim.

A. PUTSA and Trade Secret Ownership Requirements

In its amended complaint, AFS asserts a statutory claim for misappropriation of trade secrets under the Pennsylvania Uniform Trade Secrets Act (“PUT-SA”), 12 Pa. Cons.Stat. § 5301 et seq., averring that defendants willfully misappropriated, retained, and used AFS’s trade secrets,, namely “drawings, diagrams, and documentation” used in AFS’s projects. (Doc. 65 ¶¶ 98-102). Defendants assert that AFS cannot maintain a misappropriation claim because AFS assigned “legal ownership to all inventions or works” created under the TELHS contract to VCSFA. (See Doc. 35 at 10-12, 15; Doc. 43 at 4-5). According to defendants, this assignment vitiates any interest AFS purportedly had in the subject trade secrets. (See Doc. 35 at 10-12, 15; Doc. 43 at 4-5). AFS responds that “ownership,” in its traditional sense, is not a prerequisite to a successful PUTSA claim. (Doc. 47 at 23-28). The parties concede that few courts have spoken on the issue. Neither the Commonwealth’s courts nor the Third Circuit Court of Appeals have addressed the question.

The language of PUTSA itself offers little guidance with respect to whether a plaintiff must prove ownership before a court may accord relief. PUTSA defines misappropriation to include “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means.” 12 Pa. Cons.Stat. § 5302. It further defines “trade secret” as:

Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:

1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other person who can obtain economic value from its disclosure or use.

2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Id. On its face, the statute does not ascribe defendants’ suggested ownership limitation to its definition of “trade secret”; it merely proscribes misappropriation of the “trade secret of another.. ” Id. (emphasis added). Neither the commentary to the uniform law nor PUTSA’s legislative history include any specific reference to legal ownership of the trade secrets as a prerequisite to a cause of action. Cf. RMS Software Dev., Inc. v. LCS, Inc., No. 01-96-00824-CV, 1998 WL 74245, at *4, 1998 Tex.App. LEXIS 1053, at *10-11 (Tex.Ct.App.1998) (holding that ownership is required when statute at issue clearly referenced protection of the secret by “the owner thereof’ and required “the owner” to take measures to prevent the secret from becoming known “to persons other than those selected by the owner”).

The parties thus turn to judicial interpretations of PUTSA (and its corresponding provisions as adopted by other jurisdictions) for support. AFS directs the court to a decision of the Fourth Circuit Court of Appeals as support for its contention that ownership is not required to sustain a PUTSA claim. In DTM Research, LLC v. AT & T Corp., 245 F.3d 327 (4th Cir.2001), a Fourth Circuit panel affirmed the district court’s conclusion that “fee simple ownership is not an element of’ statutory misappropriation claims under the Maryland Trade Secrets Act, the language of which mirrors PUTSA.' Id. at 330-33. DTM Research (“DTM”) accused AT & T Corporation (“AT & T”) of misappropriating DTM’s trade secrets as disclosed to AT & T during contract negotiations for a data mining project. Id. at 329. Specifically, DTM offered its “Orea Blue” data mining process to AT & T and implemented a demonstration of Orea Blue in a limited test market in San Diego. Id. at 329-30. DTM required, all AT & T personnel evaluating Orea Blue to sign confidentiality agreements before disclosing its trade secrets. Id. After the demonstration, AT & T concluded that the price for Orea Blue was too high; it elected to use in-house services instead. Id. at 330. DTM brought suit, alleging that AT & T discontinued negotiations only after it had accessed DTM’s trade secrets to enhance its own technology. Id. DTM asserted claims for, inter alia, misappropriation of trade secrets under the uniform act as adopted in Maryland.

AT & T defended the suit by asserting that DTM itself had misappropriated all or some of Orea Blue from the United States. See id. AT & T subpoenaed various government agencies and commercial entities in support of its defense, but the United States intervened and moved to quash the subpoenas, asserting the state secrets privilege. Id. When the court granted the motion to quash, AT & T moved for summary judgment on the basis that the court’s order prevented it from fairly defending the claims against it. Id. The court denied that motion, but certified two questions to the Fourth Circuit Court of Appeals. Relevant to this action, the court asked whether it correctly held “that fee simple ownership is not an element of ... a violation of the Maryland Trade Secrets Act.” Id.

The Fourth Circuit Court of Appeals agreed that fee simple ownership is not a prerequisite to recovery for misappropriation. Id. at 332-33. Expounding upon the nature and purpose of trade secret laws, the panel observed ás follows:

[T]he question of whether “fee simple ownership” is an element of a claim for misappropriation of a trade secret may not be particularly relevant in this context. While trade secrets are considered property for various analyses, the inherent nature of a trade secret limits the usefulness of an analogy to property in determining the elements of a trade-secret misappropriation claim. The conceptual difficulty arises from any assumption that knowledge can be owned as property. The “proprietary aspect” of a trade secret flows, not from the knowledge itself, but from its secrecy. It is the secret aspect of the knowledge that provides value to the person having the knowledge. While the information forming the basis of a trade secret can be transferred, as with personal property, its continuing secrecy provides the value, and any general disclosure destroys the value.

Id. at 329 (internal citations omitted). In other words, it is the possession of the secret, not the possession of some abstract or academic legal right of ownership in the secret, which is proprietary and which entitles the possessor to trade secret protection. See id. Given this understanding of the inherent nature and value of trade secrets, the court held that “one ‘owns’ a trade secret when one knows of it, as long as it remains a secret.” Id. The court concluded that DTM may prevail on its claim if it demonstrates that: (1) it possesses secret information satisfying the definition of trade secret and (2) AT & T misappropriated that information by improper means. Id.

Several courts have followed DTM in the thirteen years since the opinion issued. For example, in Metso Minerals Industries, Inc. v. FLSmidth-Excel LLC, 733 F.Supp.2d 969 (E.D.Wis.2010), plaintiff Metso Mineral Industries (“Metso”), was in the business of manufacturing and selling high performance conical rock crushers. Id. at 970. Metso “sold all of the engineering, design information, and intellectual property rights” for a particular model to a separate company located in France, but reserved for itself the “nonexclusive, royalty-free right to continue to use the technology for service and warranty repair for the products sold by Metso.” Id. at 971. Metso brought suit against two former employees and its competitor, alleging that the employees had conspired with the competitor to misappropriate its trade secrets and enhance the competition’s conical rock crusher to Metso’s detriment. Id. The defendants responded that because Metso did not “own” the trade secrets at the time of the alleged misappropriation, Metso did not have standing to sue the defendants.

The district court, like the DTM court, framed the question as presented to the court sub judice: whether the statute “requires that a plaintiff ‘own’ the trade secret in order to bring suit for the trade secret’s misappropriation.” Id. at 972. To answer this question, the court first turned to the statutory language and noted that the phrase “of another” does not necessarily connote ownership. Id. at 972-73 (observing that “the phrase ‘of another’ on its face simply describes the relationship between the misappropriator and the trade secret — namely, that the trade secret belongs to one other than the misappropriator”). Finding no helpful resolution in the language of the statute, the court turned to an analysis of easelaw in reaching its ultimate conclusion.

The Metso court ultimately applied DTM. It rejected defendants’ arguments that trade secret law must necessarily mirror patent infringement law, which precludes non-exclusive licensees from bringing an infringement suit. Id. at 976-78. The court’s analysis speaks compellingly to the nature of a trade secret claim, and the reason that traditional property law ownership concepts are rejected by trade secret law: it observed that “misappropriation of a trade secret is not only an intrusion on property, it is also a breach of confidence.” Id. at 977 (emphasis added) (citing Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481-82, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974) (“The maintenance of standards of commercial ethics and encouragement of invention are the broadly stated policies behind trade secret law.”); Abbott Labs. v. Norse Chem. Corp., 33 Wis.2d 445, 147 N.W.2d 529, 533 (1967) (“The basis of the doctrine of trade secret law is an attempt to enforce morality in business.”)). The Metso court thus held that Wisconsin’s version of the uniform act “does not expressly require trade secret ownership in order to bring suit for misappropriation.” Id. at 978.

As the Metso court observed, several other courts have echoed DTM’s holding. Id. (citing Fast Capital Mktg., LLC v. Fast Capital LLC, No. H-08-2142, 2008 WL 5381309, 2008 U.S. Dist. LEXIS 103988 (S.D.Tex. Dec. 24, 2008); DaimlerChrysler Servs. v. Summit Nat’l, No. 02-71871, 2006 WL 1420812, 2006 U.S. Dist. LEXIS 32049 (E.D.Mich. May 22, 2006); Parking Co. v. Rhode Island Airport Corp., No. P.B.2004-4189, 2005 WL 419827, 2005 R.I.Super. LEXIS 37 (R.I.Super.Ct.2005); In re Cayman Island Firm of Deloitte & Touche, No. 04-01-00491-CV, 2001 WL 1042233, 2001 Tex.App. LEXIS 6214 (Tex.Ct.App. Sept. 12, 2001)). In Daimler-Chrysler, the district court rejected a counterclaim defendant’s argument that “the key concept is ownership, not physical possession,” and cited DTM for the proposition that “for purposes of trade secrets law, the focus is appropriately on knowledge, or possession, of the trade secret, rather than on mere ‘ownership’ in the traditional sense of the word.” DaimlerChrysler, 2006 WL 1420812, at *8, 2006 U.S. Dist. LEXIS 32049, at *21-27. Because the defendant never physically pos-. sessed the code at issue and thus could not capitalize on its secrecy, the court dismissed its misappropriation counterclaim. Id. In Parking Co., the state court considered whether certain financial data provided by a parking garage lessor to a lessee constituted a trade secret of the lessee when the leasing agreement designated that information as proprietary and confidential to the lessor. Parking Co., 2005 WL 419827, at *1-2, 2005 R.I.Super. LEXIS, at *1-6. The court adopted DTM, concluding that “it is possession, not ownership or title, which is the relevant inquiry.” Id. at *4, 2005 R.I.Super. LEXIS, at *11-14 (holding that because lessee “ ‘possessed’ the ... financial data as soon as it was delivered ... the data could be the subject of a trade secret misappropriation claim ... independent of whether [the lessor] could be considered to have owned the data ... ”). At least two other courts have endorsed the DTM rationale. See Fast Capital Mktg., 2008 WL 5381309,, at *12, 2008 U.S. Dist. LEXIS 103988, at *40-41 (“Courts confronting the question of whether possession or ownership is required in a trade secrets misappropriation claim have rejected the argument that traditional ownership is required to prevail.”); In re Cayman Island Firm of Deloitte & Touche, 2001 WL 1042233, at *2-3, 2001 Tex.App. LEXIS 6214, at *5-8 (holding with reliance on DTM that both possessors and owners of trade secrets may assert evidentiary trade secret privilege). Suffice it to say that substantial authority weighs in favor of AFS’s position.

Defendants respond to the caselaw offered by AFS with reliance on the common law principles of ownership that marked the law of misappropriation prior to the enactment of PUTSA. (Doc. 48 at 4 (citing Varo, Inc. v. Corbin Mfg. Co., 50 F.R.D. 376 (E.D.Pa.1970)); Doc. 50 at 7-8 (citing Choice-Intersil Microsystems, Inc. v. Agere Sys., Inc., No. 02-8219, 2004 WL 792387, 2004 U.S. Dist. LEXIS 6688 (E.D.Pa. Apr. 12, 2004)); Gruenwald v. Advanced Computer Apps., Inc., 730 A.2d 1004, 1012-13 (Pa.Super.Ct.1999)). Defendants urge the court to construe PUTSA with guidance from Pennsylvania common law, which traditionally referenced legal “ownership” when resolving misappropriation claims. Many of these cases, and the principles articulated therein, were rejected by DTM and its progeny. These more recent cases distinguish cursory references to “ownership” in common law cases after comprehensive analysis of the hybrid-interest nature of trade secrets, concluding that the knowledge-driven value of trade secrets compels a possession-based theory of liability rather than a purely ownership-based theory. See DTM, 245 F.3d at 329' (“The “proprietary aspect” of a trade secret flows, not from the knowledge itself, but from its secrecy.”); Metso, 733 F.Supp.2d at 977 (“[Misappropriation of a trade secret is not only an intriision on property, it is also a breach of confidence.”).

This court finds the DTM distinction to be well-reasoned and compelling. The DTM court’s holding appropriately contemplates the inherently hybrid nature of proprietary rights in trade secrets, and it is entirely consistent with legislative policy considerations undergirding trade secret misappropriation laws. Such laws are intended to encourage ethical business practices while preserving obvious interests in confidentiality or controlled disclosure. See Kewanee Oil Co., 416 U.S. at 481-82, 94 S.Ct. 1879; Abbott Labs., 147 N.W.2d at 533. Viewed in this light, the court’s focus is less on the existence of formal ownership rights and more appropriately on the nature of plaintiffs interest in the trade secret and the relationship between the plaintiff and the misappropriator. See, e.g., Metso, 733 F.Supp.2d at 976-78 (couching entitlement to recovery in terms of the injury suffered by “the victim of such a breach of confidence”). Consequently, the court rejects defendants’ position that traditional, common law ownership concepts necessarily mold the post-PUTSA litigation landscape.

Defendants also direct the court to Blue-Earth Biofuels, LLC v. Hawaiian Elec. Co., No. 09-00181 DAE-KSC, 2011 WL 2116989, 2011 U.S. Dist. LEXIS 56665 (D.Haw. May 25, 2011). Preliminarily, the court notes that the BlueEarth court did “not resolve the issue of whether an individual must be an owner to pursue” a misappropriation claim as defendants seem to suggest. Id. at *20-21, 2011 U.S. Dist. LEXIS 56665, at *62. Instead, the court distinguished DTM, Metso, and Daimler-Chrysler on the basis that the claimants in those decisions lawfully possessed, or averred that they possessed, the trade secrets at issue; the court held that “at the very least a plaintiff must be a lawful possessor of the trade secrets or confidential information.” Id. at *21, 2011 U.S. Dist. LEXIS 56665, at *62 (quoting DTM, 245 F.3d at 331; DaimlerChrysler, 2006 WL 1420812, at *3, 2006 U.S. Dist. LEXIS 32049, at *8; Metso, 733 F.Supp.2d at 970-71). The BlueEarth court rejected plaintiffs trade secret misappropriation claim because it failed to satisfy even the minimum requirement of lawful possession of the trade secrets. See id. at *21, 2011 U.S. Dist. LEXIS 56665 at *63 (concluding that misappropriation claim failed when plaintiff “was no longer legally in possession of the trade secrets because it had transferred, without reservation, all of the relevant confidential information and trade secrets to [the defendant]”).

The BlueEarth decision is immediately distinguishable from the matter sub judice in that AFS alleges that it remains in possession of and continues to use the trade secrets. Indeed, AFS continues to possess and use the trade secrets “in a confidential manner,” allowing access to the intellectual property only as necessary in connection with Orbital’s integration of the TELHS system. (Doc. 65 ¶ 37). AFS maintains all documentation and information related to the TELHS system on its internal servers in password-protected files. {Id. ¶ 36). AFS alleges that it permissibly used the trade secrets throughout completion of its TELHS obligations. {Id. ¶ 37). As the DTM court observed, although “information forming the basis of a trade secret can be transferred,” as it was here, it is the information’s continuing secrecy that offers value — and a cause of action — to its possessor. DTM, 245 F.3d at 332. Given AFS’s allegations of continued use, possession, and protection of its trade secrets, defendants’ reliance on BlueEarth is misplaced.

In sum, the court adopts the Fourth Circuit’s decision in DTM, joining the several district courts across the country which have directly addressed the issue. The court concludes that ownership, in the traditional sense, is not prerequisite to a trade secret misappropriation claim. See DTM, 245 F.3d at 332-33; Metso, 733 F.Supp.2d at 976-78; DaimlerChrysler, 2006 WL 1420812, at *6-8, 2006 U.S. Dist. LEXIS 32049, at *21-27; see also Fast Capital Mktg., LLC, 2008 WL 5381309, at *12, 2008 U.S. Dist. LEXIS 103988, at *40-41; In re Cayman Island Firm of Deloitte & Touche, 2001 WL 1042233, at *2-3, 2001 Tex.App. LEXIS 6214, at *5-8. It is enough, as the Fourth Circuit held in DTM, that plaintiffs demonstrate lawful possession of a trade secret in order to maintain a misappropriation claim. DTM, 245 F.3d at 332. AFS has pled facts satisfying this burden and, therefore, the court will deny defendants’ motions as to this issue.

B. PUTSA Preemption

In the alternative, defendants argue that, if the court does not dismiss AFS’s statutory misappropriation claim, it must dismiss Counts V, VI, VII, VIII, IX, and X of AFS’s amended complaint because PUTSA preempts AFS’s common law tort claims. {See Doc. 43 at 13-14). AFS responds that it is premature at this juncture to dismiss its common law tort claims on the assumption that trade secret misappropriation forms the entire basis of each claim. (Doc. 47 at 55-57).

The parties ostensibly agree that PUT-SA expressly “displaces conflicting tort, restitutionary and other law of this Commonwealth providing civil remedies for misappropriation of a trade secret.” 12 Pa. Cons.Stat. § 5308(a). The Act excepts only three categories of claims from the scope of its preemption power: contractual and criminal remedies, “whether or not based upon misappropriation of a trade secret,” and other civil remedies “not based upon misappropriation of a trade secret.” Id. § 5308(b). Consequently, any tort claims which have their basis in the alleged misappropriation of a trade secret are preempted as a matter of law. Id. § 5308(a).

Courts within the Third Circuit have construed PUTSA as preempting common law tort claims for breach of fiduciary duty and confidentiality, civil conspiracy, unfair competition, unjust enrichment, and conversion when the court determines that the misappropriated information is indeed a trade secret. See, e.g., Kimberton Healthcare Consulting v. Primary PhysicianCare, Inc., No. 11-4568, 2011 WL 6046923, at *3-4, 2011 U.S. Dist. LEXIS 139980, at *10-11 (E.D.Pa. Dec. 6, 2011) (unfair competition, conversion, misappropriation); Hecht v. BabyAge.com, No. 10-724, 2010 WL 3940882, at *4-5, 2010 U.S. Dist. LEXIS 106895, at *10-14 (M.D.Pa. Oct. 6, 2010) (breach of duty of loyalty, breach of fiduciary duty, unfair competition); Ideal Aerosmith, Inc. v. Acutronic USA Inc., No. 07-1029, 2008 WL 1859811, at *2, 2008 U.S. Dist. LEXIS 33463, at *6 (W.D.Pa. Apr. 23, 2008) (civil conspiracy and unfair competition). This court recently addressed the scope of PUTSA preemption in Cunningham Lindsey v. Bonnani No. 13-2528, 2014 WL 1612632, 2014 U.S. Dist. LEXIS 55450 (M.D.Pa. Apr. 22, 2014) (Conner, C.J.), observing that the rule of preemption assumes two overlapping contingencies: first, that plaintiffs tort claims only involve trade secrets and, second, that the allegedly misappropriated information is properly classified as a trade secret. Id. at *3-4, 2014 U.S. Dist. LEXIS 55450, at *10-11 (citing Youtie v. Macy’s Retail Holding, Inc., 653 F.Supp.2d 612, 620 (E.D.Pa.2009)). As in Cunningham, the court cannot conclude that either contingency is satisfied at this preliminary stage.

Preemption exists only to the extent that plaintiffs common law tort claim is “based on the same conduct that is said to constitute a misappropriation of trade secrets.” Youtie, 653 F.Supp.2d at 619 (collecting cases); Hecht, 2010 WL 3940882, at *4, 2010 U.S. Dist. LEXIS 106895, at *10-11 (same) (citing Hecny Transp., Inc. v. Chu, 430 F.3d 402, 405 (7th Cir.2005) (“An assertion of trade secret in a customer list does not wipe out claims of theft, fraud, and breach of the duty of loyalty that would be sound even if the customer list were a public record.”)). Based upon the pleadings, many of AFS’s tort claims allege conduct beyond misappropriation of trade secrets. For example, in support of its unfair competition claim, AFS alleges not only that defendants collectively misappropriated its trade secrets, but also that defendants conspired with Huber to use his position with AFS to defendants’ benefit and AFS’s detriment. (Doc. 47 at 56; see, e.g., Doc. 65 ¶ 49 (L & H defendants assisted Huber in setting up a VPN connection between L & H’s network and AFS’s computer; ¶¶ 60-61 (defendants intentionally foiled AFS’s opportunities to bid on and receive substantial contracts through Huber’s continued AFS association))). Unfair competition contemplates conduct beyond misappropriation of a competitor’s goods, and includes, inter alia, “misrepresentation, tortious interference with contract, improper inducement of another’s employees, and unlawful use of confidential information.” Synthes (USA) v. Globus Med., Inc., 2005 WL 2233441, *8, 2005 U.S. Dist. LEXIS 19962, at *8 (E.D.Pa. Sept. 14, 2005). Many of the same allegations support AFS’s tort claims for breach of fiduciary duty, breach of the duty of loyalty, aiding and abetting said breach, and civil conspiracy. Each of the. challenged counts involve conduct by the defendants which, assumed true, falls outside of the scope of PUTSA’s preemption clause. See, e.g., Hecht, 2010 WL 3940882, at *4-5, 2010 U.S. Dist. LEXIS 106895, at *12-13 (preemption inappropriate when claims “would constitute the named torts even if the conduct involved information that did not constitute a trade secret within the meaning of PUTSA”). Consequently, the court cannot conclude that Counts V through X are preempted by PUTSA in the context of'defendants’ Rule 12(b)(6) motions.

Defendants’ arguments also fail the second preemption contingency. The record at present does not establish whether all of the information purportedly taken by defendants does, in fact, constitute trade secrets. The parties ostensibly assume, for purposes of Rule 12(b)(6), that the documents taken were trade secrets as defined by statute. As in Cunningham, the court is disinclined to make such a determination without the benefit of a fully developed record. See Alpha Pro Tech, Inc. v. VWR Int’l LLC, 984 F.Supp.2d 425, 447 (E.D.Pa.2013) (PUTSA “does not preempt common law tort claims when it has yet to be determined whether the information at issue constitutes a trade secret.”) (quoting Cerneo Corp. v. Slater, No. 06-2632, 2007 WL 527720, *3, 2007 U.S. Dist. LEXIS 9966, at *3 (E.D.Pa. Feb. 12, 2007)); Hecht, 2010 WL 3940882, at *5, 2010 U.S. Dist. LEXIS 106895, at *13 (“To prevail under the terms of the PUTSA, the ... plaintiff would have to demonstrate the existence of a trade secret, and that determination requires discovery.”). Indeed, to dismiss common law tort claims on preemption grounds only to later determine that the documents were not in fact trade secrets would deprive AFS of an otherwise deserved remedy. See Kimberton, 2011 WL 6046923, at *5, 2011 U.S. Dist. LEXIS 139980, at *15 (preemption rulings at Rule 12 stage “risk[ ] leaving the claimant without a remedy for information he proves has been stolen”).

C. The Computer Fraud and Abuse Act

In Count II, AFS asserts claims against Huber for violation of Sections 1030(a)(2)(C) and 1030(a)(5)(A) through (C) of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. (Doc. 65 ¶¶ 103-113). AFS further asserts that “L & H and Orbital aided, abetted and conspired with Huber” in violation of Section 1030(b). (Id. ¶ 112).

The CFAA prohibits seven types of computer crimes involving unauthorized access to computers (or access in excess of authorization) which results in obtaining information from or damaging the computer. See 18 U.S.C. § 1030(a)(1)-(7). CFAA violations can expose defendants to both criminal and civil liability. Id. §§ 1030(c), 1030(g). The Third Circuit has observed that employers “are increasingly taking advantage of the CFAA’s civil remedies to' sue former employees and their new companies who seek a competitive edge through wrongful use of information from the former employer’s computer system.” P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504, 510 (3d Cir.2005) (citations omitted). The statutory provisions relevant to the instant litigation impose liability against whoever:

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—

(C) information from any protected computer;

[or] ...

(5)(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;

(B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or

(C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.

18 U.S.C. §§ 1030(a)(2)(C), 1030(a)(5)(A)-(C). To.state a civil claim for violations of the CFAA, AFS must allege: (1) damage or loss “to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value”; (2) caused by; (3) violation of one of the substantive provisions-of §§ 1030(a) or (b). Sealord Holdings, Inc. v. Radler, No. 11-6125, 2012 WL 707075, at *4, 2012 U.S. Dist. LEXIS 29878, at *11-12 (E.D.Pa. Mar. 6, 2012); also 18 U.S.C. §§ 1030(c)(4)(A)(i)(I), 1030(g).

Defendants move to dismiss the CFAA claims, contending that AFS does not allege sufficient facts to establish that: (1) L & H “accessed” a protected computer in violation of a provision of Section 1030(a); (2) L & H aided, abetted and conspired with Huber in violation of Section 1030(b); (3) Huber accessed a protected computer in excess of his authorization; and (4) AFS suffered economic damage or loss in excess of $5,000.

1. L&H

L&H asserts that the amended complaint does not include any allegations that it accessed a protected computer; rather, the amended complaint -alleges that Huber accessed AFS’s protected computer and forwarded the information obtained to L&H. (Doc. 35 at 17-18). In essence, L & H posits that because it was’ merely an end user of information unlawfully accessed by another, the CFAA does not contemplate a cause of action against it. The court disagrees.

L & H relies heavily upon a recent decision issued by the district court for the Eastern District of Pennsylvania, Dresser-Rand Co. v. Jones, 957 F.Supp.2d 610 (E.D.Pa.2013), in support of its motion to dismiss. (-See Doc. 35 at. 17-18). In Dresser-Rand, the court held that the CFAA only imposes civil liability on the individual who improperly accesses a protected computer and does not impose liability upon third parties who come into possession of the improperly obtained information. Id. at 614-15 (holding that what “happens to the data subsequent to being taken from the computers is not encompassed- in the purview of the CFAA”). Dresser-Rand is distinguishable from the instant action.

Contrary to L & H’s assertions, the amended complaint does not allege that it was merely a passive recipient of information improperly obtained by Huber. Indeed, the amended complaint states that L&H knowingly instigated and conspired with Huber to access AFS’s protected computer. (See Doc. 65 ¶¶ 106, 112). L & H’s access to AFS’s protected computer was not direct access, but it acquired access through Huber. The plain language of the CFAA requires only “access” — “no modifying term suggesting the need for ‘personal access’ is included.” Synthes, 2012 WL 4205476, at *17, 2012 U.S. Dist. LEXIS 134886, at *58. Some courts have defined “access” with reference to its common meaning, defining the term as “gaining admission to.” Id. (citing, inter alia, WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 204 (4th Cir.2012) (“‘[Access’ means ‘[t]o obtain, acquire,’ or ‘[t]o gain admission to.’ ”)). The court joins those before it which have held that the act of inducing another to access a protected computer that he or she is otherwise not authorized to use constitutes “access” within the meaning of the CFAA. See id. at *17, 2012 U.S. Dist. LEXIS 134886, at *58-59 (defendant subject to CFAA. liability when he directed, induced, or encouraged others to access plaintiffs computer systems); Se. Mech. Servs., Inc. v. Brody, No. 8:08-1151-T-30EAJ, 2008 WL 4613046, at *14, 2008 U.S. Dist. LEXIS 112332, at *14 (M.D.Fl. Oct. 15, 2008) (evidence that defendants implicitly induced others to access computers and supply information was sufficient to allege access); Binary Semantics, Ltd. v. Minitab, Inc., No. 07-1750, 2008 WL 763575, at *5-6, 2008 U.S. Dist. LEXIS 28602, at *15 (M.D.Pa. Mar. 20, 2008) (when employee of the plaintiff company acted at the direction of defendant in accessing plaintiffs protected computer to steal trade secrets, defendant could be held liable for the CFAA violation).

AFS avers that L&H installed a VPN profile on AFS’s protected computer which allowed Huber to initiate a “point-to-point connection” between the protected computer and L & H’s network. (Doc. 47 at 34-35). To the extent L&H disputes that it required access to AFS’s protected computer to set up the VPN profile, the court must accept the truth of the detailed allegations in the amended complaint. See, e.g., Santiago, 629 F.3d at 130-31. Thus, even if direct access was a prerequisite to CFAA liability, the allegations in the amended complaint properly establish the element of “access” under the CFAA.

L & H persuasively argues that AFS fails to state a valid claim under Section 1030(b). The CFAA does not create a cause of action for aiding and abetting. See Flynn v. Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP, No. 3:09-CV-00422, 2011 WL 2847712, at *2-4, 2011 U.S. Dist. LEXIS 77217, at *7-9 (D.Nev. July 15, 2011); see also 18 U.S.C. § 1030(b) (creating a cause of action against “whoever conspires to commit or attempts to commit” an offense under § 1030(a), but making no mention of aiding and abetting liability). In Flynn, the court explained that the plain language of Section 1030 only creates liability for “a primary violator, a person who attempts a primary violation, and a co-conspirator of a primary violator. Section 1030 does not provide for aiding and abetting liability.” Flynn, 2011 WL 2847712, at *3, 2011 U.S. Dist. LEXIS 77217, at *8. The court concurs with the statutory construction analysis and conclusions of the Flynn court. To the extent AFS attempts to state a claim for aiding and abetting pursuant to Section 1030, that claim will be dismissed.

Notably, however, the amended complaint also alleges that L & H knowingly instigated and conspired with Huber to access AFS’s protected computer. (Doc. 65 ¶¶ 106, 112). Defendants contend that AFS simply makes legal conclusions and that the facts alleged in the amended complaint do not support this claim. The court disagrees. As noted supra, AFS has sufficiently set forth detailed allegations that L & H conspired with Huber to gain access to confidential information stored on AFS’s server and use the information to divert AFS’s business. Accordingly, the court will deny the motions to dismiss Count II on these grounds.

2. Access in Excess of Authorization

Huber moves to dismiss the CFAA claims on grounds that AFS cannot show that he accessed the protected computer either “without authorization” or that he “exceeded authorized access.” See 18 U.S.C. § 1030. The CFAA defines “exceeds authorized access” as accessing a computer “without authorization” and using “such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Id. § 1030(e)(6). The statute does not define the term “without authorization.” Application of precedent is problematic in that there is a split of authority regarding interpretation of this phrase.

Under the narrow view adopted by the Fourth and Ninth Circuits, an employee granted access to a computer in connection with his employment is “authorized” to access that computer under the CFAA regardless of his or her intent or whether internal policies limit the employee’s use of the information accessed. See Dresser-Rand, 957 F.Supp.2d at 615 (citing WEC Carolina Energy Solutions, 687 F.3d at 205-06; United States v. Nosal, 676 F.3d 854, 857-59 (9th Cir.2012) (en banc); LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132-35 (9th Cir.2009)). A majority of circuit courts have taken a broader view of “without authorization,” concluding that an employee who is granted access to a computer in connection with his or her employment may exceed his or her authority by “misusing the information on the computer, either by severing the agency relationship through disloyal activity, or by violating employer policies and/or confidentiality agreements.” Id. at 616 (citing United States v. John, 597 F.3d 263, 271-73 (5th Cir.2010); United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir.2010); Int’l Airport Ctrs. LLC v. Citrin, 440 F.3d 418, 420-21 (7th Cir.2006); EF Cultural Travel BV v. Explorica, 274 F.3d 577, 582 (1st Cir.2001)).

The Third Circuit has yet to address the meaning of “without authorization.” District courts in Pennsylvania have largely adopted the narrow interpretation. See Dresser-Rand, 957 F.Supp.2d at 616 & n. 8 (collecting cases); see also Carnegie Strategic Design Eng’rs, LLC v. Cloherty, No. 13-1112, 2014 WL 896636, at *9, 2014 U.S Dist. LEXIS 28654, at *30 (W.D.Pa. Mar. 6, 2014) (“The scope of the CFAA does not extend to employees who were authorized to access the data in question, but did so in bad faith or to the future detriment of his former employer because [the court] interprets the term ‘authorization’ narrowly and finds that it does not extend to the improper use of information validly accessed.”); Consulting Prof'l Res., Inc. v. Concise Techs. LLC, No. 09-1201, 2010 WL 1337723, at *6, 2010 U.S. Dist. LEXIS 32573, at *14-19 (W.D.Pa. Mar. 9, 2010) (“While disloyal employee conduct might have a remedy in state law, the reach of the CFAA does not extend to instances where the employee was authorized to access the information he later utilized to the possible detriment of his former employer.”); Brett Senior & Assoc., P.C. v. Fitzgerald, No. 06-1412, 2007 WL 2043377, at *3, 2007 U.S. Dist. LEXIS 50833, at *9-10 (E.D.Pa. July 13, 2007) (rejecting argument that employee’s access to protected computer was unauthorized or exceeded authorized access because it is the “unauthorized procurement or alteration of information, not its misuse or misappropriation,” that CFAA proscribes). The court finds no reason to depart from the persuasive decisions of its sister courts, which are based upon the plain language of the statute, congressional intent, and a fair and balanced evaluation of circuit court opinions. The court holds that the CFAA prohibits unauthorized access to information rather than unauthorized use of such information. See 18 U.S.C. § 1030(a). The parties do not dispute that Huber was authorized to access the computer during the course of his employment with AFS. (Doc. 43 at 6-7; Doc. 47 at 36-37). To the extent that Huber misappropriated information from AFS’s servers and computer system while he was employed and had access thereto, AFS’s 'CFAA claim against Huber must be dismissed.

The court’s holding is limited in one significant respect. AFS alleges not only that Huber misused his access authorization during his employment, but also that Huber continued to unlawfully access AFS information through his company-issued laptop subsequent to leaving employment with AFS on October 26, 2012. (Doc. 65 ¶¶ 42, 45, 58). Such claims fall squarely within the ambit of the narrow approach to authorization adopted by the court herein. See, e.g., Synthes, 2012 WL 4205476, at *16-18, 2012 U.S. Dist. LEXIS 134886, at *64-65 (declining to dismiss CFAA claim when complaint alleged that the defendant accessed former employer’s computers subsequent to termination of his employment). To the extent AFS alleges that Huber continued to access its computers after he left AFS’s employ, the court will deny defendants’ motions to dismiss.

3. Economic Damages or Loss in Excess of $5,000

Huber also contends that AFS fails to allege cognizable damages for which a civil remedy is available under the CFAA. (Doc. 43 at 8-9). Section 1030(g) requires AFS to show that it sustained economic damage or loss “aggregating at least $5,000 in value” as a result of the defendants’ violation. 18 U.S.C. § 1030(g). In order to state a claim under Section 1030(a)(5)(A), AFS must plead the additional element of “unauthorized damage.” Consulting Prof'l Res., 2010 WL 1337723, at *7, 2010 U.S. Dist. LEXIS 32573, at *19 (“[A] violation of (a)(5)(A) is not determined by unauthorized access, rather, it is predicated on unauthorized damage.”).

The CFAA defines “damage” as “any impairment to the integrity or availability of data, a program, a system, or information.” 18 U.S.C. § 1030(e)(8). It defines “loss” as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” Id. § 1030(e)(11). Courts within the Third Circuit have held that to fall within the statutory definition of “loss,” the alleged loss “must be related to the impairment or damage to a computer or computer system.” Brooks v. AM Resorts, LLC, 954 F.Supp.2d 331, 337-38 (E.D.Pa.2013) (citing Sealord Holdings, 2012 WL 707075, at *1, 2012 U.S. Dist. LEXIS 29878, at *4; Fontana v. Corry, No. 10-1685, 2011 WL 4473285, at *2-3, 2011 U.S. Dist. LEXIS 115693, at *7 (W.D.Pa. Aug. 30, 2011)). The CFAA’s definition of loss includes lost revenue incurred because of an interruption of service, see 18 U.S.C. § 1030(e)(11), but does not include claims- for lost business opportunities, damaged reputation, and -other missed revenue opportunities. Advantage Ambulance Grp., Inc. v. Lugo, No. 08-3300, 2009 WL 839085, at *3-4, 2009 U.S. Dist. LEXIS 26465, at *10-13 (E.D.Pa. Mar. 30, 2009) (dismissing claim prefaced on future lost revenue due to dissemination of trade secrets accomplished by unauthorized access); Clinton Plumbing & Heating of Trenton, Inc. v. Ciaccio, No. 09-2751, 2010 WL 4224473, at *2, 2010 U.S. Dist. LEXIS 113215, at *6 (E.D.Pa. Oct. 22, 2010) (holding that damages related to integrity of bank funds as opposed to integrity of data did not allege damage or loss for purpose of CFAA); Eagle v. Morgan, No. 11-4303, 2011 WL 6739448, at *9, 2011 U.S. Dist. LEXIS 147247, at *22-25 (E.D.Pa. Dec. 22, 2011) (finding that allegations of loss of business relations are “precisely the type of damages that courts repeatedly have deemed beyond the purview of the CFAA”); Consulting Prof'l Res., 2010 WL 1337723, at *8, 2010 U.S. Dist. LEXIS 32573, at *19-22 (holding that a “decrease in the competitive value of [plaintifip’s confidential information does not satisfy the damage requirement of § 1030(a)(5)(A)”).

In its amended complaint, AFS avers that Huber’s improper conduct “caused damage to AFS in an amount aggregating more than $5,000 during a one-year period.” (Doc. 65 ¶ 111). The amended complaint does not state that the improper conduct impaired the integrity or availability of AFS’s data, programs, or system, nor does it include allegations that AFS incurred any costs in responding to the conduct, conducting a damage assessment, or restoring any data, programs, or the system to its prior condition. See Car negie Strategic Design Engineers, 2014 WL 896636, at *4, 2014 U.S. Dist. LEXIS 28654, at *13-14 (denying motion to dismiss when plaintiff claimed loss of more than $5,000 for retaining a computer forensic expert to investigate and mitigate the defendant’s data breach).. AFS’s concluso-ry allegations, reflecting only a formulaic recitation of the statutory loss element, are insufficient to satisfy federal pleading requirements. The court is compelled to dismiss AFS’s CFAA claims for failure to plead damages properly. This failure notwithstanding, AFS represents that it has retained an expert to conduct an analysis of the protected computer and a forensic accounting. (See Doc. 47 at 40-41 & n. 2). Therefore, the court will dismiss AFS’s CFAA claims without prejudice and will allow AFS to file a second amended complaint properly alleging damages in accordance with the CFAA.

D. Lanham Act

The Lanham Act provides, in pertinent part, as follows:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, -connection, or association of such person with another person, or as' to the origin, sponsorship, or approval of his or her goods, services,