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Non-Compete and Trade Secrets Report Developments in protecting businesses against unfair competition

LinkedIn Notification Not Competition, Mass Court Holds

The use of LinkedIn to notify professional contacts of a change in employment did not constitute competition. according to a recent Massachusetts ruling. In KNF&T v. Muller, No. 13-3676-BLS1 (October 24, 2013), the Massachusetts Superior Court denied a request for a preliminary injunction where an employer alleged that a former employee violated her non-competition agreement by, among other actions, using her LinkedIn profile to notify contacts of her new position. In denying the injunction, the court shed further light on the definition of competition and solicitation in the era of social media.

Charlotte Muller entered into a non-competition agreement with staffing company KNF&T which included prohibitions against competing with KNF&T and soliciting other KNF&T employees. Upon leaving KNF&T and taking a position with Panther Global/Total Clerical (a KNF&T competitor), Muller updated her LinkedIn page to reflect her change in employment. The update notified Muller’s 500 plus LinkedIn contacts, some of them KNF&T clients, of her new position.

In its motion for a preliminary injunction, KNF&T argued that the updated LinkedIn profile constituted “solicitation of business in direct violation of [Muller’s] non-competetion agreement.” KNF&T also attached a printout of Muller’s LinkedIn profile to its motion.

The court found “no evidence” that Muller had violated her non-competition agreement and denied the injunction. In a footnote, the court indicated it did not view the LinkedIn update as soliciting business competitive with KNF&T. The court further noted that, despite the updated LinkedIn profile, future violation of the non-competition agreement by Muller was not particularly likely.

The KNF&T decision comes on the heels of a First Circuit decision in Corporate Technologies, Inc. v. Harnett which held that an email blast to former clients announcing an employee’s new position constituted “solicitation.” The KNF&T decision indicates that LinkedIn updates may be treated differently than emails and that the definition of “solicitation” in the context of social media remains unsettled.

The use of LinkedIn was also a key issue in Eagle v. Morgan, No. 11-403 (E.D. Pa. March 12, 2013), where an employer was held liable for privacy claims after altering the LinkedIn profile of a former employee. KNF&T, along with the Eagle decision, shows that LinkedIn is becoming an increasingly prominent factor in non-compete litigation. Employers should therefore keep in mind the potential issues surrounding LinkedIn when drafting social media policies and non-competition agreements and when hiring new employees.