| reply to amigo_boy
Re: Client information said by amigo_boy:said by factchecker :
That would be true if you were walking out with the originals... If you are walking out with photocopies, but leave behind the originals, the charge of theft won't stick.
Try it. I guarantee you'll be charged with theft. You have no right to remove anything from your employer's premise without their consent. Sorry, but as the other poster has stated, I think you need to learn how the legal definition of theft works.
Without actually removing the property - the originals - you are not committing theft... The company has not been deprived of its property. Period. |
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| said by factchecker :
I think you need to learn how the legal definition of theft works.
In Dowling it hinged on whether the copies were "stolen, converted or taken by fraud." The Court held that simply copying items that were essentially publically available for sale didn't constitute "theft" (criminality, instead of copyright violation, a civil matter.).
An employers papers are not offered for sale. They were obtained through fraud (agreeing to an employment agreement and ongoing policies).
Mark |
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| said by amigo_boy:An employers papers are not offered for sale. They were obtained through fraud (agreeing to an employment agreement and ongoing policies). Actually, that would not be the case. If you are going say that the employee violated an "employment agreement or policies", that would be a breach of contract and would not constitute fraud.
The only way that it might be fraud is if the employee took the job with the specific intention of violating the employment agreement and copying the documents prior to being hired. |
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| said by factchecker :
If you are going say that the employee violated an "employment agreement or policies", that would be a breach of contract and would not constitute fraud.
Every day you enter an employer's work place without informing them that you have unilaterally rejected your employment agreement and ongoing employment policies is an act of fraud. Doing so to obtain copies of your employer's papers deemed to be the highest classification of confidential and "internal use only" is to obtain them through fraud.
A classic definition of theft.
Mark |
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| said by amigo_boy:Every day you enter an employer's work place without informing them that you have unilaterally rejected your employment agreement and ongoing employment policies is an act of fraud. Actually, it is not. Unless gain by the person who is violating those agreements can be demonstrated, fraud has not taken place.
A demonstrated gain must take place for it to be an act of fraud - for example, laundering money from the company.
I recommend you take some time to familiarize yourself with the term fraud while you are at it...
And regardless, because all of this took place in another nation, the reality is that this discussion is a waste of time because US law doesn't apply to the alleged offense. |
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| said by factchecker :
A demonstrated gain must take place for it to be an act of fraud - for example, laundering money from the company. Do you have a reference for that definition? Everything I've read says that fraud involves three elements: a material false statement made with an intent to deceive (scienter), a victim’s reliance on the statement and damages.
Blackstone's definition of fraud:
All multifarious means which human ingenuity can devise, and which are resorted to by one individual to get an advantage over another by false suggestions or suppression of the truth. It includes all surprises, tricks, cunning or dissembling, and any unfair way which another is cheated.
Source: Black’s Law Dictionary, 5th ed., by Henry Campbell Black, West Publishing Co., St. Paul, Minnesota, 1979. Mark |
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| said by amigo_boy:Do you have a reference for that definition? Everything I've read says that fraud involves three elements: a material false statement made with an intent to deceive (scienter), a victim’s reliance on the statement and damages. Gain = damages. For example, if I use deception to get your life savings for a real estate investment scam, my gain (your life savings) is the damage you can claim (the value of your life savings).
Blackstone's definition of fraud: All multifarious means which human ingenuity can devise, and which are resorted to by one individual to get an advantage over another by false suggestions or suppression of the truth. It includes all surprises, tricks, cunning or dissembling, and any unfair way which another is cheated.
Ergo, my statement stands and your own source has supported my assertion. There must be a demonstrated gain for the action to constitute fraud.
Merely lying does not constitute fraud. |
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| said by factchecker :
Gain = damages.
Damages do not have to equal gain to the damager in order for there to be damages. I might knowingly pass counterfeit money with the intent to defraud you of your money. If I burn all the real money I receive (and therefore don't gain from it) it doesn't mean I didn't defraud people and cause them damage.
Please provide a source for your assertion.
Mark |
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| said by amigo_boy:Damages do not have to equal gain to the damager in order for there to be damages. I might knowingly pass counterfeit money with the intent to defraud you of your money. Note how your example creates a gain...
If you can illustrate an example of fraud that nets you nothing (at no point do you ever gain more money, resources, etc. than you had before), I'd be willing to say that you might have some standing.
If I burn all the real money I receive (and therefore don't gain from it) it doesn't mean I didn't defraud people and cause them damage. Actually, you did gain from it because the amount of money you had was greater than when you started. Just because you were a moron and burned all of your ill gotten gains does not erase that you had a net gain. The gain at the expense of another via deception still exists. |
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| said by facthchecker :
If you can illustrate an example of fraud that nets you nothing (at no point do you ever gain more money, resources, etc. than you had before), I'd be willing to say that you might have some standing.
Unilaterally rejecting my employment agreement, and my employer's stated policies in order to copy my employer's documents I would otherwise have no right to access.
Mark |
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 wifi4milezBig Russ, 1918 to 2008. Rest in Peace
join:2004-08-07
New York, NY | reply to facthchecker
said by facthchecker :
Note how your example creates a gain...
If you can illustrate an example of fraud that nets you nothing (at no point do you ever gain more money, resources, etc. than you had before), I'd be willing to say that you might have some standing.
The "gain" doesnt necessarily need to be financial. One could conceivably leak documents for the simple fact of defaming another individual, or discrediting a corporation. That type of gain cant be measured in currency, yet is still a predictable outcome. There are many levels of gain that one must look at. In a court case, leaked documents could result in a trial being dismissed, or a person going to jail. Neither of those would involve any sense of "personal" gain, yet one would gain something none the less (time not served in jail, etc.)
--
с новым годом |
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| said by wifi4milez:The "gain" doesnt necessarily need to be financial. Right. Even just the benefit of "revenge" (as a disgruntled employee). I use the word "benefit" because that's what the Arizona Rev. Statute uses when defining fraud. Reading "benefit" narrowly as "financial gain" has no basis in how the law has been interpreted.
It's also worth noting that fraud is considered worse than simple theft because it involves an element of calculation and planning. It's usually punished more severely than ordinary theft.
Mark |
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| reply to amigo_boy
said by amigo_boy:Unilaterally rejecting my employment agreement, and my employer's stated policies in order to copy my employer's documents I would otherwise have no right to access. As I have already stated... That example is breach of contract, not fraud.
If the agreement was entered into, with the full intention of not honoring it, then that may constitute fraud. However, simply violating the agreement does NOT constitute fraud by law. |
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1 edit | said by factchecker :
As I have already stated...
Stating it and providing a reference for why you're stating it are two different things. Removing property of an employer is theft. Doing it through fraudulent means (in violation of employment agreements and policies) is fraud.
It doesn't require the perpetrator to receive monetary gain. Simply gaining access to materials that would be inaccessible is itself a benefit.
Mark |
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| reply to wifi4milez
said by wifi4milez:The "gain" doesnt necessarily need to be financial. Agreed. Medical fraud (faking injuries to score pills) is one example...
One could conceivably leak documents for the simple fact of defaming another individual, or discrediting a corporation. That type of gain cant be measured in currency, yet is still a predictable outcome. While you have described a defamation case, there is no basis for fraud unless there is a specific intent to mislead or lie to the defamed party in order to get those documents. An employee leaking documents to get back at their company is not committing fraud, but other civil (defamation) or criminal (depending on how the information was obtained - walking out with original documents, etc.) could be filed.
There are many levels of gain that one must look at. I agree with this assertion. However, in this case, fraud does not apply. There is no specific intent to mislead Swiss Bank for the purpose of gaining.
In a court case, leaked documents could result in a trial being dismissed, or a person going to jail. Neither of those would involve any sense of "personal" gain, yet one would gain something none the less (time not served in jail, etc.) In this example, it gets more complicated. The person leaking the documents may be attempting to gain something - a favorable or desirable ruling, etc. The gain is there. For example, there have been cases of corrupt officials working to get people off or arrested using means like this in exchange for bribes.
I agree with all of your points. My point of contention is that no one has demonstrated the fraud took place in this instance (the topic of the article). Breach of contract is definitely there...
With all that said, all of this discussion regarding fraud and theft is for naught. The jurisdiction where this case took place is outside of the US and US law, therefore, any discussion in the context of US law is pointless.
With that said, I'm retiring from this discussion. |
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| said by factchecker :
While you have described a defamation case, there is no basis for fraud unless there is a specific intent to mislead or lie to the defamed party in order to get those documents.
You need to distinguish between the ability to defame (revenge?) being the "benefit" resulting from fraud, and the act of obtaining the documents (necessary to perform the defamation) through fraudulent means.
You said earlier that ceasing to abide by the employment agreement isn't fraud unless the employment agreement is entered into with this intent. Isn't that a bit convenient?
"Your honor, I agreed with the agreement when I entered it into it the day before. But, *today* I changed my mind.
Yeah, that's the ticket. Yeah. Me and my wife. Yeah. Morgan Fairchild. Yeah."
Mark |
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| reply to amigo_boy
said by amigo_boy:Stating it and providing a reference for why you're stating it are two different things. Partly because the definition of fraud is the rational for stating it. If you used more than one source for your definition and the explanation of what constitutes fraud, you would see how the basis of that statement came about.
Removing property of an employer is theft. No property was removed in this case, unless originals were taken, which it appears they were not.
Doing it through fraudulent means (in violation of employment agreements and policies) is fraud. Violating an employment agree is breach of contract. PERIOD. This point has been hashed out already. Unless the agreement was entered into with the full intention of violating, fraud fails.
Simply gaining access to materials that would be inaccessible is itself a benefit. Only if there was specific intent to gain access to those materials and deception took place.
Additionally, you have not proven that those materials were inaccessible to the person that leaked them. The person who leaked the information may have had full access to the information in question.
This discussion is pointless since the laws and legal definitions being used for this discussion are from US law, not the laws of the jurisdiction where the alleged crime took place.
With that, I'm stepping out. |
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| said by factchecker :
Partly because the definition of fraud is the rational for stating it. One reference please.
said by factchecker :
No property was removed in this case, unless originals were taken, which it appears they were not. That's like saying that an MS employee walking out with *copies* of the source code of various projects isn't theft.
I urge you to try this. Photocopy your employers proprietary documents and then tell him you're quiting and taking a couple cartons of *copies* with you. He won't let you leave. And, if you call the police, complaining that you're being held against your will (or your property confiscated) they won't let you take it either.
Any reasonable person knows this.
said by factchecker :
Violating an employment agree is breach of contract. If it's done for the purpose of theft it can be fraud. A more serious form of theft due to its calculation and planning.
said by factchecker :
Only if there was specific intent to gain access to those materials and deception took place. Deception did take place (agreeing to the employer's policies with no intent to follow them), and those materials were accessed and copied.
said by factchecker :
Additionally, you have not proven that those materials were inaccessible to the person that leaked them. The person who leaked the information may have had full access to the information in question. What? Are you asserting the bank handed the information to a non-employee (or non-contractor)? It's been reported it was an employee who would only have add access by maintaining this status.
Mark |
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| reply to factchecker
said by factchecker :
No property was removed in this case, unless originals were taken, which it appears they were not. BTW, a quick google search concerning theft of "copies" turns up this:
»www.northcountrygazette.org/arti···eft.html
At least the DA felt taking "copies" was theft. I didn't investigate how it turned out for the accused.
And,
»rf-web.tamu.edu/security/secguid···stry.htm
A few cases involving theft of proprietary information.
»findarticles.com/p/articles/mi_q···21100498
A guy claiming to be a whistle-blower who was arrested at his desk while copying data. 
Mark |
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