## Facts

- Pulte Homes, Inc., a Michigan-based homebuilder, fired a construction crew member in September 2009 for alleged misconduct and poor performance.
- Laborers’ International Union of North America (LIUNA) asserted the firing was retaliation for union support and filed an unfair labor practice charge with the NLRB.
- LIUNA then initiated a national campaign urging members to call and email Pulte’s sales offices and executives.
- Pulte alleged LIUNA used an auto-dialing service and an email tool hosted on LIUNA’s website to generate thousands of communications to specified Pulte executives.
- Many communications addressed alleged unfair labor practices; some allegedly included threats and obscene language.
- Pulte claimed the high volume clogged voicemail and email systems, interfered with customer and vendor communications, and forced at least one employee to turn off a business phone.
- Pulte sued LIUNA and two union officials, asserting (among other claims) civil liability under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.

## Issues

1. Whether Pulte stated a CFAA transmission claim under 18 U.S.C. § 1030(a)(5)(A) by alleging LIUNA knowingly transmitted information and thereby intentionally caused damage without authorization to protected computers.
2. Whether Pulte stated a CFAA access claim under 18 U.S.C. § 1030(a)(5)(C) by alleging LIUNA intentionally accessed protected computers without authorization and caused damage and loss.
3. Whether impairment of system availability from high-volume calls/emails constitutes CFAA “damage,” and whether use of public-facing phone/email contact channels is “without authorization.”

## Decision

- The Sixth Circuit affirmed in part and reversed in part the dismissal of the CFAA claims.
- The court held Pulte plausibly alleged “damage” under § 1030(a)(5)(A) because the transmissions impaired the availability of Pulte’s systems and diminished Pulte’s ability to use them.
- The court held Pulte plausibly alleged LIUNA intentionally caused damage, given allegations that LIUNA organized and directed the high-volume campaign using auto-dialing and coordinated email tools.
- The court rejected the § 1030(a)(5)(C) access claim because LIUNA’s conduct was not “without authorization” where Pulte made phone numbers and email addresses available for public contact.
- The court permitted the § 1030(a)(5)(A) transmission claim to proceed and left the § 1030(a)(5)(C) claim dismissed.

## Legal Principles

- Under the CFAA, “damage” includes impairment to the availability of a system; interference that diminishes a plaintiff’s ability to use a computer system can qualify as damage.
- A § 1030(a)(5)(A) claim may be pleaded when a defendant knowingly causes transmissions and, as a result, intentionally causes system impairment constituting damage.
- “Without authorization” under the CFAA is not satisfied merely because communications are unwanted or hostile when the defendant uses public-facing contact channels the plaintiff generally invites the public to use, absent circumvention of technical restrictions or entry into restricted areas.
- At the pleading stage, allegations of at least $5,000 in qualifying “loss” (including costs of responding to and mitigating the impairment) can satisfy the civil CFAA threshold.

## Conclusion

The Sixth Circuit held that an orchestrated flood of calls and emails can state a CFAA transmission claim when it impairs the availability of a company’s computer systems, but it does not constitute CFAA “unauthorized access” when it uses ordinary, publicly offered communication channels.


Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648 F.3d 295 (6th Cir. 2011)