Trade Secrets Restrictive Covenants and Social Media: When are LinkedIn Requests and Other Posts Solicitations? By: Andrew W. Vail and Amit B. Patel OVERVIEW A recent Illinois case highlights an issue that will increasingly demand attention in both employer-employee relationships and service provider relationships in a world where social media “has become embedded in our social fabric”—whether certain social media communications violate non-solicitation agreements, and how parties to non-solicit agreements will need to consider carefully their use of social media where restrictive covenants may apply. In this case, which itself does not set precedent, the Circuit Court of Cook County, Illinois determined, and Illinois Appellate Court affirmed, that the LinkedIn connection requests did not run afoul of the restrictive covenant at issue. The case, like many other recent cases addressing the issue, highlights the fact-intensive inquiry essential to that determination where covenants do not address social media use expressly or other related issues arise. This article (i) summarizes the reasoning applied in the recent Illinois case along with some other cases where courts have addressed this issue, (ii) identifies some related considerations not addressed in those cases, and (iii) makes recommendations for both businesses and individuals. The Bankers Life Case On June 26, 2017, the Illinois Appellate Court, First District, entered a non-precedential Rule 23 order in Bankers Life and Casualty Co. v. American Senior Benefits LLC, 2017 IL App (1st) 160687-U affirming the trial court’s ruling on summary judgment that emails generated and sent by LinkedIn when a former branch sales manager at Bankers Life and Casualty Company requested to connect to current Bankers Life employees did not violate the non-solicitation provision of a noncompetition/non-solicitation agreement executed by the former branch sales manager. The factual scenario in Bankers Life is not necessarily unique in the world of employer-employee non-solicitation disputes, which underscores why understanding these decisions is important. In Bankers Life, plaintiff Bankers Life hired the defendant as a branch sales manager. After hiring him, it required him to execute a restrictive covenant that, during and for two years following the termination of his employment, provided that he was prohibited from “personally or through the efforts of others” “induc[ing] or attempt[ing] to induce” Bankers Life employees to resign or sell competing companies’ products, or Bankers Life customers from ceasing to do business with it. The agreement was limited to “the territory regularly serviced by the [employee]’s branch sales office.” In January 2015, the employee-defendant left to work for a competitor. In the months that followed, the employee-defendant requested to connect via LinkedIn to three Bankers Life employees that worked in the Warwick, Rhode Island branch where he formerly worked. In August 2015, Bankers Life initiated suit in the Circuit Court of Cook County, Chancery Division. It alleged that, once those three employees received email notifications from LinkedIn of the requests and clicked through to the former employee’s LinkedIn profile page through links in those email notifications, they would see a job posting at the former employee’s new, competing company on his profile page as well. This sequence of events, which started with the former employee requesting to connect on LinkedIn and ended with a current Bankers Life employee viewing a posting for a job at the former employee’s new company, was the focus of the dispute. The former employee sought summary judgment, arguing that he merely requested to connect with all the individuals on his email contact list—including the three current employees at issue—which caused the individuals to receive “generic” emails from LinkedIn as notification of the connection requests. Bankers Life argued that the former employee was responsible for sending the emails rather than LinkedIn, and that additional evidence, including the former employee’s private communications, indicated that he was sending the connection requests for recruiting purposes. Bankers Life further suggested in its opposition that additional discovery from LinkedIn itself would support its contentions. Both parties presented evidence indicating that the former employee requested to connect to current Bankers Life employees, and that those current employees received email notifications of those requests. Judge Kathleen Kennedy in the Chancery Division granted summary judgment in favor of the former employee and did not permit Bankers Life to conduct the additional discovery it claimed to need, holding that, after reviewing all the summary judgment submissions, Bankers Life “failed to identify any solicitation or other breach of contract by [the former employee].” Notably, Bankers Life did not seem to present any evidence to rebut the former employee’s contention that the emails received by the current employees were only “generic” connection requests. Bankers Life argued on appeal that there remained a genuine issue of material fact and that the trial court abused its discretion by prematurely resolving the issue without giving Bankers Life the opportunity to conduct additional discovery. The Illinois Appellate Court rejected that argument and affirmed. In affirming, the appellate court first looked to similar cases in other jurisdictions, discussed in greater detail below. Other Cases Discussed In Bankers Life Where Courts Found No Breach of Restrictive Covenant BTS, USA, Inc. v. Exec. Perspectives, LLC, like Bankers Life, 2014 WL 6804545 (Conn. Super. Oct. 16, 2014) also involved a former employee’s use of LinkedIn in the context of an employment contract containing provisions that prohibited solicitations for a period of two years following the termination of employment. When a former employee joined his new employer, he updated his LinkedIn profile to reflect his new employer. In addition, one of his first tasks upon joining his new employer was to redesign the new employer’s website, and when he completed that task, he posted a link to the redesigned website on his LinkedIn account. The former employer argued that the former employee’s LinkedIn profile update and post were in breach of his employment contract’s non-solicitation provision, but the court disagreed. Announcing new employment was, according to the court, “a common occurrence on LinkedIn,” and there was no evidence that his posting a link to his new employer’s website actually led any clients of the former employer to do business with the new employer. Moreover, the court cited the former employer’s lack of any policies governing employee use of social media during or after employment, including the lack of any policy requiring former employees to delete connections with the former employer’s clients or remaining employees. The court concluded by noting that “the use of social media . . . has become embedded in our social fabric” and suggested that it would be hard pressed to read the fairly common non-solicitation provisions at issue in that case to apply to the former employee’s social media use given the absence of any express social media-related provisions. A former employer in Invidia, LLC v. DiFonzo, 2012 WL 5576406 (Mass. Super. Oct. 22, 2012) sought a preliminary injunction to enforce a non-solicitation provision in a former employee’s employment agreement after her new employer posted a “public announcement” on the former employee’s Facebook page noting her new position, and she became Facebook friends with several of the former employer’s clients. Although the former employer claimed to have lost several of these clients, the court denied the former employer’s request for an injunction because the Facebook post from the new employer was not a solicitation, there was no evidence of any communications in which the former employee actually solicited her newly added Facebook friends or any of the former employer’s other clients, and there was no evidence that the allegedly lost clients were lost to the former employee’s new employer. Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp., 951 N.E.2d 265 (Ind. Ct. App. 2011) involved a sub-contractor relationship rather than an employer-employee relationship. Under the parties’ agreement, neither party could solicit the other’s employees through twelve months following the termination of the agreement. During the relationship, defendant Hypersonic posted a job opening on its LinkedIn page. The posting was visible to an employee of plaintiff Enhanced Network by way of that employee’s membership in a public LinkedIn group, and the employee responded to the posting and ultimately got hired for the position. Though Hypersonic posted the job opening in a manner that was visible to Enhanced Network’s employees, the fact that it was the employee who initiated contact with Hypersonic supported the trial court’s denial of Enhanced Network’s declaratory judgment request. The Court of Appeals of Indiana affirmed, noting that a clearer definition of “solicit” in the agreement perhaps could have avoided the dispute. Other Cases Discussed Where Courts Did Find A Breach Two other cases analyzed by the Illinois Appellate court, however, reached different conclusions. Amway Global v. Woodward, 744 F. Supp. 2d 657 (E.D. Mich. 2010), for example, involved an agreement where individuals would sell plaintiff Amway’s products subject to a non-solicitation requirement that prohibited resellers from “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other [reseller] to Compete with the business of [Amway].” Defendant Woodward entered into this arrangement. In response to certain blog post made by Woodward and others, Amway sued them. The court found that Amway presented evidence that Woodward and the other resellers were employing a strategy that involved “coordinated statements in which they announced that they were joining [Amway]’s competitor” and included a blog posting by Woodward that stated “If you knew what I knew, you would do what I do” and listed Woodward’s reasons for leaving Amway. The court stated that such a blog post “would readily be characterized as [a] solicitation” despite it being a “passive, untargeted communication.” Important to the court’s decision was the fact that this blog post was not an isolated occurrence but instead, according to the court’s view of the evidence, was part of a larger plan to solicit Amway’s resellers. In Coface Collections North America v. Newton, 430 F. App’x 162 (3d Cir. 2011), the agreement at issue provided that defendant Newton would not compete with or solicit the customers or employees of plaintiff Coface, or compete with Coface using any entity with “Newton” in its name. While the agreement was in effect, Newton started a competing company with “Newton” in its name, updated his LinkedIn profile to show that he was “Chairman of the Board” at that new company, posted on Facebook about the upcoming expiration of his agreement with Coface and encouraging viewers of his posts to apply for positions at his new company, and sent Facebook friend requests to current Coface employees. Notably, here, Newton’s conduct went well beyond social media requests or posts. Coface sought a preliminary injunction restricting Newton from operating or participating in any business in competition with Coface, which the district court granted and the Third Circuit affirmed. Neither the Third Circuit nor the district court indicated what facts were material in their rulings, though Newton’s undisputed use of “Newton” in the new company name may have been material to the rulings. Conclusion In Bankers Life Although Bankers Life argued that its former employee’s use of LinkedIn was also part of a larger plan to solicit other Bankers Life employees, the trial and appellate court rejected those arguments. The appellate court noted the generic content of the former employee’s LinkedIn connection request email notifications, including their undisputed lack of any mention of Bankers Life or the former employee’s new employer, link or suggestion to view job descriptions, or explicit solicitations. Whatever actions the current employees took after receiving the generic notifications, whether clicking through to the former employee’s profile, accepting the request, or viewing the job posting, were all actions for which the former employee “could not be held responsible.” The former employee’s acknowledgement that his purpose for using LinkedIn was recruiting “ma[de] no difference” because running afoul of the agreement still required “actual, direct” recruitment, which connection requests alone were not. Takeaway and Related Considerations Despite that Bankers Life and other cases suggest that generic, untargeted communications or posts using social media do not rise to the level of solicitation, Amway demonstrates that even unilateral blog posts can be considered solicitations, at least if they are part of a larger solicitation scheme. Other courts have acknowledged that “there are questions as to whether social media posts visible to the public may serve as impermissible solicitations.” While these cases may provide some useful guideposts, the highly fact-specific analyses that the courts performed in these cases underscore the pitfalls of relying on non-solicitation provisions that do not adequately address today’s myriad uses of social media. And there are many ways other than those discussed above in which an individual’s, company’s or employee’s use of social media may lead to litigation under restrictive covenants. For example, in Arthur J. Gallagher & Co. v. Anthony, 2016 WL 4523104 (N.D. Ohio, Aug. 30, 2016), the former employer unsuccessfully sued its former employee for breach of a noncompetition covenant based on the new employer’s LinkedIn and Twitter press releases announcing the hiring of the former employee. In Hayden v. Hayden, 2015 WL 13357679 (S.D. Ga. June 15, 2015), the defendants sold their gymnastics business to the plaintiff subject to non-competition and non-solicitation agreements, and an announcement by one of the defendants on her Facebook page that her daughter was opening a competing business was alleged to be a solicitation in violation of those agreements. Recommendations One lesson to take away from Bankers Life and these cases is: without clearly drafted definitions and provisions governing social media use, even seemingly routine use of social media, including mere connection requests, posts not targeted to specific individuals, or social media announcements, may trigger litigation regarding restrictive covenants. Nowadays many businesses and individuals use social media extensively to communicate, and, given the novel questions social media use raises in the context of certain restrictive covenants, both businesses and individuals need to consider the legal issues that may arise from use of social media, including how to best protect against any exposure to liability. Expressly addressing social media use in restrictive covenants or implementing clear workplace policies governing social media use may provide protection and predictability to employers, employees, and service providers alike. Taking all the various uses of social media into consideration at the outset will help parties clarify the extent to which, for example, an employee may maintain social media connections to his former employer’s clients, or a current employee may independently pursue job opportunities at a sub-contractor. And to the extent individuals or businesses are operating under existing nonsolicitation provisions, they would be wise to have an attorney review the agreements and advise them on the intersection of those covenants and social media.  Bankers Life, 2017 IL App (1st) 160687-U ¶ 5.  Id.  Bankers Life’s administrative offices are located in Chicago, Illinois, so one possible explanation for the pendency of this case in an Illinois court is a forum selection provision in the agreement at issue.  Bankers Life, 2017 IL App (1st) 160687-U ¶ 8.  Id. ¶ 12.  BTS, 2014 WL 6804545, at *2–*3.  Id. at *12.  Id.  Invidia, 2012 WL 5576406, at *5.  Trial court records indicate that the case ultimately settled.  Enhanced Network, 951 N.E.2d at 266.  Amway, 744 F. Supp. 2d at 673.  Id.  Id.  Coface, 430 F. App’x at 164.  Id. at 164–65.  Preliminary Injunction Order, Coface, No. 11-cv-52 (D. Del. Feb. 18, 2011), ECF No. 23.  Bankers Life, 2017 IL App (1st) 160687-U ¶ 23.  Id. ¶ 24.  Organo Gold Int’l, Inc. v. Ventura, 2016 WL 1756636, at *11 (W.D. Wash. May 3, 2016).  Gallagher, 2016 WL 4523104, at *15.  Hayden, 2015 WL 13357679, at *1 (S.D. Ga. June 15, 2015). Contact Us Andrew W. Vail firstname.lastname@example.org | Download V-Card Amit B. Patel email@example.com | Download V-Card Visit Jenner.com © Copyright 2017 Jenner & Block LLP, 353 North Clark Street, Chicago, IL 60654, 312 222-9350. Jenner & Block is an Illinois Limited Liability Partnership including professional corporations. Under professional rules, this communication may be considered advertising material. The material contained in this document has been authored or gathered by Jenner & Block for informational purposes only. It is not intended to be and is not considered to be legal advice. Transmission is not intended to create and receipt does not establish an attorney-client relationship. Legal advice of any nature should be sought from legal counsel.