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Massachusetts Court Rules That Facebook Posting of New Job Does Not Violate Non-Competition Covenant

Posted in Non-Compete Enforceability, Practice & Procedure, Restrictive Covenants, Trade Secrets

A hair salon’s motion for entry of a preliminary injunction against a stylist was denied even though she had signed non-competition, non-solicitation and confidentiality agreements with the salon, and immediately after leaving her prior employment she was employed by a nearby competitor, a fact noted on her Facebook page. Invidia LLC v Difonzo, Case No. MICV20123798H (Middlesex [Mass.] County Super. Court, Oct. 22, 2012).

The stylist, DiFonzo, worked at the Invidia salon for two years. At the outset of her employment, she signed a non-competition covenant that had two-year and ten-mile restrictions. Invidia claimed that she brought no clients of her own, and it stated that it gave her “education and training” which were “unprecedented in the salon industry.” When she resigned from Invidia, she immediately commenced employment by its competitor less than two miles away. Information concerning her new position was posted on her Facebook page. Although Invidia said her departure precipitated an “unprecedented . . . wave of no-shows, cancellations or non responses,” the salon could not demonstrate that she was responsible.

After Invidia’s attorney threatened to sue both DiFonzo and the competitor, she was laid off. In a conversation with the competitor’s owner, Invidia’s majority owner, Patzleiner, allegedly stated that Invidia simply “intended to send a message” to its employees and “did not care” whether DiFonzo solicited Invidia’s customers.

The Superior Court of Middlesex (Massachusetts) County declined to determine immediately whether the two-year and ten-mile restrictions were too broad to be enforceable. Rather, the court concluded that since Invidia demonstrated its ability to calculate with reasonable certainty the monetary loss it would sustain for each client DiFonzo takes, money damages should suffice to compensate Invidia if it prevails at trial. There was no evidence that DiFonzo breached her confidentiality covenant or solicited any Invidia customers. A few contacted her but, according to the court, “So long as they reached out to [her] and not vice versa, there is no violation of the non-solicitation provision.” Thus, even though Invidia was likely to succeed in proving that DiFonzo breached the non-competition covenant and that she may have the opportunity to compete in the future, the court denied Invidia’s motion for a preliminary injunction.

This decision stands for the proposition that a non-solicitation covenant is not violated by a Facebook post that merely informs readers of the ex-employee’s subsequent employment. Also, the ruling illustrates difficulties an employer faces in demonstrating immediately after an employee quits that the ex-employee’s conduct will inflict an irreparable injury. Invidia asserted, understandably, that it had good reasons not to interview its clients and bring DiFonzo’s departure to their attention. Yet, without evidence that she solicited them or used confidential information, Invidia could not show that the harm it faced absent an injunction outweighed the harm to her if she was rendered unemployable for an extended period.