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Trading Secrets A Law Blog on Trade Secrets, Non-Competes, and Computer Fraud

Massachusetts Judge Rules That Updating LinkedIn Does Not Constitute Solicitation

Posted in Non-Compete Enforceability, Restrictive Covenants, Social Media

Judge Thomas P. Billings, of the Massachusetts Superior Court’s Business Litigation Session, recently declined to issue a preliminary injunction in a non-compete case brought by KNF&T Staffing, Inc. against its former employee, Charlotte Muller, who had left to join a competitor. Among other things, KNF&T alleged that Muller had updated her profile on LinkedIn to reflect her new position, “resulting in notification to all of Muller’s 500+ LinkedIn contacts, including the numerous contacts she established during, and which were related to, her employment at KNF&T.” Judge Billings rejected the argument, however, noting that her new firm does not compete with KNF&T in certain industries:

Quite simply, Muller was not and is not prohibited from soliciting or accepting any potential client – whether or not it is a present client of KNF&T – for recruitment of IT professionals, or anyone else in a field in which KNF&T does not recruit.

Judge Billings also noted that the same reasoning would apply to Muller’s LinkedIn activities, where she listed only generic skills and responsibilities including “internet recruiting,” “temporary staffing,” “staffing services” and “recruiting”:

There is no more specific mention of any of KNF&T’s “Fields of Placement” than this. So long as Muller has not and does not . . . solicit or accept business in the Fields of Placement for herself or others . . . she will not have violated the covenant not to compete.

The decision is rather narrow, however, and the Court did not address whether a social media post could ever violate a restrictive covenant. As we have previously noted – in a blog posting from which Massachusetts Lawyers Weekly quoted extensively in an article about this case – the issue remains unresolved and decisions like the one issued by Judge Billings are at the forefront of this burgeoning area of law.

On a separate issue, whether a material change in Muller’s employment voided her non-compete agreement, the Court assumed, but did not rule, “that Muller’s promotions, and the corresponding increases in responsibility and compensation, did not constitute an abandonment of the covenant” under F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585, 587-88 (1968). We have previously blogged about this issue as well, which also remains unresolved (as Judge Billings points out in a footnote).

We will continue to monitor the state of the law with respect to both of these issues and will report on any relevant decisions. Check in frequently or subscribe to our blog now for updates.