Many court decisions have found that communications on social media did not constitute improper solicitations, but the United States District Court for the District of Minnesota recently found in Mobile Mini, Inc. v. Vevea, Civil No. 17-1684 (JRT/KMM), 2017 WL 3172712 (D. Minn. July 25, 2017), that two LinkedIn posts by a former employee likely constituted solicitations in violation of her employment agreement with her former employer. While the court’s conclusion in this regard is significant, so is the court’s commentary on the significance of social media “status updates.”
Starting in March 2013, Liz Vevea was employed as a Sales Representative by Mobile Mini, Inc., a portable storage business. Vevea signed a Confidentiality, Non-Solicitation, Non-Compete and Inventions Agreement (the “Agreement”), which provided that Vevea would (1) “not work in the Portable Storage Business at a location within fifty miles of Mobile Mini’s Lino Lakes office for six months[;]” (2) “not make any Portable Storage Business sales to Company Customers for nine months[;]” [and] (3) “not directly or indirectly solicit Company Customers for the purpose of making portable storage sales.” The Agreement defined Company Customers as “any past, present, or prospective [Mobile Mini] customer . . . with whom or which [Vevea] had [Mobile Mini] business related contact . . . at any time during the one (1) year period before [Vevea’s] employment [ended] . . . or about whom or which [Vevea] learned confidential information during that one (1) year period.” In November 2016, Vevea resigned from Mobile Mini and, less than six months later, she began working for a direct competitor of Mobile Mini’s, Logistics Services, Inc. (“LSI”), within 50 miles of Mobile Mini’s Lino Lakes office. Shortly after starting employment with LSI, Vevea began working in for Citi-Cargo & Storage, Inc. (“Citi-Cargo”), another direct competitor of Mobile Mini that is owned by the same parent company as LSI.
About six months after resigning from employment with Mobile Mini, Vevea updated her LinkedIn profile to reflect her new employment with Citi-Cargo. The post stated the following:
I’m excited to have joined the Citi-Cargo Sales Team! We lease and sell clean, safe, and solid storage containers and offices. We are locally owned and operated, with local live voice answer. We offer same day delivery to the Metro, and have consistent rental rates with true monthly billing. Give me a call today for a quote. [phone number included].
The post included photos of Citi-Cargo’s portable containers. Almost one week later, Vevea also posted on LinkedIn: “Call me today for a storage container quote from the cleanest, newest, safest and best container fleet in the State of Minnesota. Let’s connect! [phone number listed].
Mini Mobile sued LSI and Citi-Cargo, alleging breach of contract and tortious interference with contractual relations. Mini Mobile filed a motion for a temporary restraining order and/or a preliminary injunction, while the defendants filed a motion to dismiss for lack of subject matter jurisdiction. This post will focus on the motion for injunctive relief and the court’s analysis under Delaware law whether Mini Mobile was likely to win on the merits.
In determining the likelihood that Mini Mobile would prevail on the merits, the court noted that the Agreement likely was enforceable and then focused on the two LinkedIn posts that formed the basis of Mini Mobile’s claim. The court found that the two posts were “not mere status updates announcing Vevea’s new position and contact information” and, citing opinions issued by a federal court in Ohio and state trial court in Massachusetts, noted that, if the posts were “mere status updates,” they likely would not constitute breaches of the Agreement. The court proceeded to explain that the language of Vevea’s posts demonstrate that her “purpose was to entice members of Vevea’s network to call her for the purpose of making sales in her new position at Citi-Cargo.” In reaching this conclusion, the court also considered a declaration provided by a Mini Mobile Branch Manager who stated that, when he and Vevea had worked together, they “discussed using LinkedIn as a marketing tool, to advertise Mini Mobile’s products and services” and Vevea did in fact use LinkedIn for that purpose while she was employed by Mini Mobile. The court further found that Vevea’s network of LinkedIn contacts likely included at least one, if not many, Company Customers. For these reasons, the court found that Mini Mobile likely would prevail on the merits. The court also found that Mini Mobile likely would suffer irreparable harm in the absence of a preliminary injunction and the balance of the equities and public interest also favored issuing the injunction.
Ultimately, the court granted Mini Mobile a preliminary injunction that required Vevea to remove any LinkedIn posts that advertised Citi-Cargo products or services or that requested viewers contact her about such products or services. Vevea also was enjoined from creating any new similar posts on LinkedIn or any other form of social media for the duration of the non-solicitation period to the extent that the Vevea’s network on the social media forum included at least one Company Customer, but Vevea was permitted to post “status updates” that included her place of employment and contact information.
The court’s decision in Mini Mobile is significant because it illustrates how LinkedIn can be used to violate a non-solicitation agreement. Although no communication in this case targeted a specific individual or group of individuals, Vevea used LinkedIn to reach a wide audience and sell the services of her current employer to customers of her former employer (which the court assumed at least some of which were included in her network). Mini Mobile also is significant for its analysis of “mere status updates.” Although Vevea did not use LinkedIn to post only a “status update” with her new contact information, the court specifically noted that such an update would not constitute an improper solicitation. This conclusion, however, downplays the utility of social media. While the court assumed that at least some of Vevea’s contacts were among the customers she used to service for her former employer, the court’s conclusion that a mere “status update” would not constitute an improper solicitation fails to acknowledge why someone in Vevea’s position would include such a status update on his/her LinkedIn profile – to encourage customers and potential customers in the individual’s network to contact the employee to conduct business. Companies should continue to monitor this area of the law and consult with counsel when developing policies, practices, and agreements to address these issues. For more information on these issues, you can review this article and a post here about a recent decision that reached a different conclusion.