Social Media and Non-Solicitation Covenants

Posted by Benjamin I. Fink on

We have previously discussed whether sending an announcement constitutes violation of a non-solicitation covenant and whether Facebook and LinkedIn posts can constitute a breach of restrictive covenant.[1]

This issue was addressed by a Federal District Court in Oklahoma in Pre-Paid Legal Services, Inc. v. Cahill, 924 F. Supp. 2d 1281 (2013).  The issue in that case was whether the defendant’s Facebook post on his public, personal account constituted solicitation under the terms of his non-solicitation agreement with his former employer.  The former employer complained that the Facebook posts touted the benefits of a competing product and the employee’s expression of professional satisfaction with the competing product constituted solicitation because some of the defendant’s Facebook “friends” were also sales associates of his former employer and they viewed the defendant’s posts.  The court found that the posts were more akin to Facebook announcements that were not found to be solicitations in prior cases.  The court specifically cited Invidia, LLC v. DiFonzo, 2012 WL 55576406 (Mass Super. October 22, 2012), a case cited in our previous blog post. The court also cited Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp., 951 N.E.2d 265 (Ind. Ct. App. 2011) in which the Indiana Court of Appeals found that posting an employment opportunity on a LinkedIn website that could be viewed by a contractually prohibited class did not constitute solicitation.

As a result, the court in Cahill found that the former employer had not shown it was likely to succeed on the merits of its breach of contract claim regarding the defendant’s Facebook posts or that it would suffer irreparable harm. Therefore, the defendant was not enjoined from posting on his Facebook wall regarding the competing product.  The court noted there was no evidence that the defendant’s Facebook posts had resulted in a departure of any other employees, and there was not any evidence indicating that the Defendant was targeting employees of his former employer by posting directly on their walls or through private messaging.

The law with respect to social media and restrictive covenants is still developing, but traditional principals are generally being used by the courts in addressing these situations.  Typically, if a post is nothing more than a general announcement, the courts are likely to find it does not constitute affirmative solicitation.  However, if a more targeted approach is used then an employee could cross the line into prohibited solicitation.  As in any situation, knowing the prohibitions in any restrictive covenant agreement is the key to ensuring compliance.

[1]

http://www.bfvlaw.com/does-sending-an-announcement-constitute-solicitation/

http://www.bfvlaw.com/can-facebook-and-linkedin-posts-constitute-a-breach-of-a- restrictive-covenant/