On November 13, 2015, BPI Sports, LLC ("BPI"), a distributor of sports nutrition supplements, filed a Complaint against its former endorser Camila Figueras – fitness model, glamour girl, reality tv presence, and self-proclaimed Elvis fan (the image of the King graces her right forearm) (BPI Sports, LLC v. Camila Figueras, No. 132015CA026411000001 (Fla. 11th Jud. Cir., Miami-Dade Cty. filed 2015)). Camila Figueras, a/k/a Cami Li, gained notoriety through her appearances on Celebrity Big Brother and, it seems, even in the world of social media marketing agreements, Big Brother is always watching. Indeed, the current action stems from Cami Li's Instagram endorsement of a competitor's nutritional products, purportedly a violation of the non-compete clause contained in her endorsement agreement with BPI entered into last year.
The one-year endorsement agreement was set to expire on July 13, 2015, at which point Cami Li met with BPI and apparently swung for the fences when she demanded that BPI renew the agreement and increase her compensation. Unfortunately, as Cami Li learned, when you swing big, sometimes you strike out (who out there remembers slugger Dave "King Kong" Kingman?). BPI balked at her compensation request and the parties ultimately decided to terminate the agreement. While parting ways, BPI allegedly reminded her to stay out of foul territory and not violate any of the covenants contained in the agreement.
BPI claims that the endorsement covenants bar Cami Li from, among other things, endorsing any supplement or nutritional product line, representing any nutritional companies, or providing any nutritional advice without BPI's approval for a period of 12 months after the termination of the agreement. No rookie when it comes to the law, Cami Li thought she was in good shape. According to BPI, she responded to its reminder not to run afoul of the non-compete provisions with a flippant text: "[I] don't care…. Sue me," and proceeded to hit the ground running with other marketing deals.
According to the Complaint, Cami Li almost immediately began a social media marketing campaign through her Instagram account (which currently has over 482,000 followers). Beginning in August 2015 and continuing through November 2015, Cami Li posted Instagram pictures and captions endorsing Raveolution Recovery Formula, Flat Tummy Tea, and Protein World's Carb Blocker and The Slender Bend. These nutrition supplements have uses ranging from replenishing the body and mind to boosting energy and metabolism to weight loss to strengthening skin, hair, and nails.
Not amused by Cami Li's posts, BPI supplemented its stern warnings with direct action. BPI's suit alleges that Cami Li breached the endorsement covenants because her Instagram posts endorsed a competing supplement within the non-compete period, all without BPI's approval.
Recognizing the power of social media in marketing, BPI seeks injunctive relief to prevent Cami Li from endorsing nutritional supplements on social media or otherwise, positing that given the quantity of followers and her image, she holds significant economic endorsement value. According to BPI, Cami Li's influence has the potential to irreparably harm the goodwill and business interests of its company by directing her followers to rival product lines within the sports nutrition industry. BPI seeks monetary damages for breach of contract as well as an order requiring Cami Li to take down the offending Instagram posts and any other related posts she published on the Internet. In her Answer, Cami Li sought to evict BPI from the courthouse, asserting several defenses, including, among others: BPI's selective enforcement or waiver of the non-compete clauses, BPI's alleged failure to meet the requirements for injunctive relief, BPI's alleged failure to plead cognizable damages for breach of contract, and a general assertion that the non-compete clause is overbroad.
Will the restrictive covenant be enforceable under Florida law or otherwise warrant injunctive relief, or will the suit fall flat as a well-sculpted tummy? The answer will have to remain unknown – as, earlier this month, the parties settled the matter on undisclosed terms.