Don’t Friend My Friends: Nonsolicitation Agreements Should Account for Social Media Strategies

Orrick - Trade Secrets Group

As social media becomes an important part of many companies’ sales and branding strategies, issues relating to companies’ ability to protect their investments in such strategies are emerging. Indeed, this blog has previously covered whether LinkedIn contacts can qualify as trade secrets (answer: maybe). Another such issue, recently addressed in a district court in Idaho, is whether and to what extent a nonsolicitation agreement can restrict a former employee’s Facebook interactions with the former employer’s customers.

In Herrick v. Potandon Produce, LLC, potato and onion broker Potandon Produce brought a motion for preliminary injunction against its former employee, Colette Herrick. Potandon accused Herrick of violating a noncompete/nonsolicitation agreement by, among other things, interacting with Potandon’s customers via Facebook. In particular, Herrick shared a post from radio personality Lou Brutus on her Facebook page and tagged a partner and executive of a Potandon customer in the post, adding “thought of you immediately!! xoxo.”

The court found that Herrick’s post, as well as her text message exchanges with other Potandon customers, did not breach the nonsolicitation clause in the agreement. The clause stated that Herrick “shall not . . . [a]ttempt, assist or actually solicit, divert, take away, or advertise to any customer, co-packer, or other supplier of Potandon or a Potandon affiliate, for whom [Herrick] performed services, or with whom [Herrick] developed a relationship, while working on behalf of Potandon or a Potandon affiliate during her employment with Potandon.” The court found that the clause did not prohibit Herrick from merely communicating with Potandon’s customers.

This case raises some important issues that employers should consider—particularly if their sales and branding strategies rely heavily on social media.

Social media creates unique relationships and interactions that do not have direct parallels with the physical world. A post on Facebook, Twitter, LinkedIn, or Instagram might be somewhat analogous to posting something on a public bulletin board, but social media posts are unique in that they have instant global reach and can be shared, re-Tweeted, commented on, or “liked.” As in Herrick, one can also “tag” another Facebook friend or LinkedIn connection in a public post.

Some courts have recognized that merely becoming a Facebook friend or LinkedIn connection with a former employer’s customer does not necessarily qualify as a solicitation. For example, in Invidia, LLC v. DiFonzo, a Massachusetts Superior Court found that a hair stylist did not violate a nonsolicitation clause between her and her former employer by becoming Facebook friends with at least eight clients of her former employer after she resigned. The court emphasized that there was no evidence of any actual communications. (The court did not, however, note who had “friended” whom.  It appears to us that there may be a material distinction between a “friend request” and a mere “friend acceptance” in this context.)

In BTS, USA, Inc. v. Executive Perspectives, LLC, a Connecticut Superior Court confronted an issue similar to that in Herrick. An employee subject to a nonsolicitation agreement went to work for a competitor of his former employer. The employee remained “linked” with LinkedIn connections he developed while at his former employer and, after developing a website for his new employer, he posted an invitation on his LinkedIn page to come “check out” the new site. The court found that the posts did not amount to solicitation, in part, because there was no evidence that the former employer’s customers received the posts, visited the website, or became customers of the new employer as a result. The court also noted that the former employer did not request or require the former employee to “unlink” with its customers after he left and, in fact, did not discuss his LinkedIn account with him at all.

The main takeaway from these cases appears to be that companies that invest heavily in their social media strategies (and even those that don’t) should tailor their nonsolicitation agreements to account for the dynamic and unique nature of various social media. Making expectations regarding postemployment social media activities clear and specific in an agreement is likely to save confusion on the front end and increase the chances of success in enforcing the agreement later.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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