comScore Lawsuit and that Pesky Loss Requirement of the Computer Fraud and Abuse Act

A jurisdictional threshold to bringing a civil Computer Fraud and Abuse Act claim is that the plaintiffs satisfy the $5,000 loss requirement–generally only costs constitute a loss–not economic damages or violated privacy rights. If you were at the Continuing Legal Education seminar I presented this past Monday, you’ve already heard this, right?

You also heard me say that this loss requirement confuses lawyers and judges alike, right? (hint: check out slide 25 at the right of the screen).

Now take a look at Paragraphs 110 – 112 of the Class Action Complaint in Harris v. comScore that was filed yesterday:

110.   As a result, Defendant’s conduct has caused a loss to one or more persons during any one-year period aggregating at least $5,000 in value in real economic damages.

111.   Plaintiffs and the Classes expended time, money and resources to investigate and remove comScore’s tracking software from his computer.

112.   Plaintiffs and Classes members [sic] have additionally suffered loss by reason of these violations, including, without limitation, violation of the right of privacy.

Do you remember when, during the presentation, I asked what you would always make sure to do if you were the lawyer advising a client considering bringing a civil CFAA claim? (hint: check out slide 31). Did they get it right?

Now you be the judge. Let’s say Comscore files a Motion to Dismiss the Computer Fraud and Abuse Act claim for failure to meet the jurisdictional threshold to bring a civil claim. Do you dismiss the CFAA claim or not? If you find that comScore has adequately pled a loss, which of the allegations suffice and which do not?

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