Pleading with Particularity: Decoding When Computer Fraud and Abuse Act Claims Must Comply with Rule 9(b)

Abstract

The primary tool for litigating cybercrimes is the Computer Fraud and Abuse Act (CFAA), which Congress enacted in 1984 following increased computer misuse. Since its debut, the CFAA has undergone a series of amendments. The most noteworthy of which for civil litigators came in 1994 when Congress enacted a civil penalty for cybercrimes. Part of this penalty includes 18 U.S.C. § 1030(a)(4), which prohibits fraudulent conduct in connection with computer usage. In recent years, litigators have weaponized § 1030(a)(4) to challenge a variety of conduct, most of which has nothing to do with cybercrimes. These filings have split district courts across the country, as judges cannot agree if a heightened pleading standard applies to CFAA claims alleging “fraud.” For example, § 1030(a)(4) has become the second-most-used provision in civil CFAA cases, but most district courts have declined to apply Federal Rule of Civil Procedure 9(b) to § 1030(a)(4). This fact is alarming, as Rule 9(b) uniformly applies to allegations of fraud. In failing to properly apply Rule 9(b), district court judges have allowed cases to be erroneously filed and decided in federal courts, empowering savvy civil litigants to use § 1030(a)(4) solely as a hook for subject matter jurisdiction. To combat this phenomenon, this Comment surveys fifty-one cases and scrutinizes various district court approaches. After also considering analogous areas of law, doctrinal concerns, and principles of statutory interpretation, this Comment concludes that courts should adopt a hybrid approach, looking to the unique facts of each case when determining if Rule 9(b) applies to CFAA claims. While no appellate courts have addressed this issue, this Comment outlines how adopting the proposed hybrid approach is consistent with the “sounds in fraud” framework adopted by every circuit court in the country. Thus, to promote stare decisis, this Comment urges courts to adopt a hybrid approach when determining whether Rule 9(b) applies to § 1030(a)(4).