LinkedIn Connection Requests Don’t Violate Insurance Salesman’s Noncompete – IL Court

The First District recently considered whether an insurance salesman’s generic LinkedIn invites to some former co-workers violated non-compete provisions in his employment contract.

The plaintiff in Bankers Life v. American Senior Benefits employed the defendant for over a decade as a sales manager.  During his employment, plaintiff signed an employment agreement that contained a 24-month noncompete term that covered a specific geographic area (Rhode Island).  Plaintiff sued when it learned the defendant sent some LinkedIn connection requests to some former colleagues.

The court granted the defendant’s summary judgment motion on the basis that the plaintiff failed to offer any evidence that the defendant breached the noncompete by trying to induce three of plaintiff’s employees to join defendant’s new agency.  Plaintiff appealed.

Plaintiff argued that the LinkedIn requests were veiled, if not blatant, attempts to circumvent the noncompete by inviting former co-workers to join a competitor.

The First District affirmed summary judgment for the defendant.  For support, it looked to cases in other jurisdictions that considered if social media overtures can violate employee restrictive covenants.  The Court noted that a majority of these cases hold that passive social media postings (LinkedIn and Facebook, mainly) don’t go far enough to violate a noncompete.

The cases that have found that social media breached noncompete obligations involve clear statements of solicitation by the departed employee where he directly tries to sign up a former client or colleague. Since all the defendant did in this case was send generic LinkedIn messages, they didn’t rise to the level of an actionable solicitation.

The Court also rejected the plaintiff’s argument that summary judgment was premature and that the plaintiff should have the opportunity to take more discovery on this issue.  Illinois Rule 191 allows a summary judgment opponent to stave off judgment while it takes written and oral discovery to assemble evidence to oppose the motion.  But the plaintiff must show a “minimum level of information” showing a defendant is possibly liable before initiating a lawsuit or making a defendant submit to discovery requests.

Since the plaintiff failed to produce any evidence the defendant solicited any of plaintiff’s employees in the prohibited Rhode Island area, summary judgment for the defendant was proper.

Afterwords:

LinkedIn generic invites that don’t specifically ask someone to sever his/her relationship with current employer don’t go far enough to constitute improper solicitation;

Summary judgment is “put up or shut up moment;” the party opposing summary judgment must offer evidence that raises a question of material fact that can only be decided after a trial on the merits.

 

Multi-Year Request for Facebook Activity Too Broad – Illinois Federal Court


Ye v. Veissman (1:14-cv-01531)(Memorandum Opinion and Order) examines the scope of Facebook page discovery requests in the context of a wrongful death suit.

There, the plaintiff, whose daughter was killed in a freak traffic accident as she walked on a downtown Chicago street, sued the responsible trucking company and driver for wrongful death and tried to recover for mental anguish resulting from the accident. 

To probe the depths of the plaintiff’s claimed mental malaise, the defendants sought discovery of the decedent’s Facebook communications going back seven years before the accident.  The plaintiff refused on the grounds of relevance and overbreadth (“it’s a fishing expedition”) and the defendants moved to compel the material.

Denying the defendants’ motion, the Court answered important questions on when social media evidence is relevant to a mental distress claim and the case starkly illustrates the importance of narrowly tailoring discovery requests in this computer-drenched society.

The Federal Discovery Rules and Facebook Data

Federal Rule of Civil Procedure 26(b)(1) allows discovery into any nonprivileged matter relevant to a party’s claim or defense that is proportional to the needs of the case.

Facebook discovery requests can present thorny logistical challenges since  the amount of discoverable information is voluminous, data is retained for a long time and the number of people with whom a given Facebook subscriber communicates is potentially limitless.

In spite of these difficulties, social media evidence is still discoverable so long as the requested information meets the test of relevance.  The Illinois and Federal rules of evidence define relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  See Illinois Evidence Rule 401.

The Ye court noted that while “everything posted on social media can reflect a person’s emotional state of mind” at any given snapshot of time, a plaintiff’s injection of his state of mind does not give a requesting party with a “generalized right to rummage at will through [social media] information.”

Seven Years of Facebook Data = Too Broad

Finding the defendants’ discovery requests too broad, the Court noted that the amended discovery rules, effective since December 2015, limit the scope of relevant evidence and required that discovery be proportional to the needs of a given case.

The court allowed that since plaintiff’s damage claims were nebulous by nature – they included mental suffering, grief, sorrow, loss of society, companionship, and consortium – some social media discovery was clearly permitted (and relevant).  This was because the discovery requests sought to shed light on the plaintiff’s mental state and his damages claims.

The court found that “[c]ertainly some social media content during the time period prior to death will be relevant”, this didn’t give the defendants a green light to request unlimited Facebook information.  The court found the seven-year request overbroad as it wasn’t confined to a narrower pre-accident time span.

The extensive request for Facebook data also exceeded relevance restrictions since defendants sought communications between the decedent and third parties who had nothing to do with the accident or the lawsuit.  According to the court, if the discovery requests were pruned to only include communications between the decedent and her immediate family, the requests would likely be focused enough to meet the discovery rules’ relevance and proportionality tests.

However, as the requests currently stood, the minimal relevance of the decedent’s Facebook communications was outweighed by the burden to the plaintiff in producing the data.

To support its findings, the Court cited liberally from recent Federal cases in Indiana and California that found Facebook discovery requests spanning five years (the Indiana case) and seven years (Cal.) too broad under Rule 26.

Afterwords:

This opinion is a good example of a court grappling with the discoverability of social media evidence in a case where a plaintiff’s mental state is clearly at issue.  Like so often, the discovery decision distills to a balancing test: the Court weighs the possible relevance of the requested information against the time, money and energy burden to the plaintiff in producing the information.

While some latitude is allowed in discovery requests, it’s clear from this case and others like it, that discovery requests have limits.  Where the burden of responding to Facebook discovery outweighs the possible relevance of the requests, a court will order the requesting party to constrict its requests.

 

 

 

“Make Sure You Get My Good Side” – Blogger’s Use of Photo is Transformative, Fair Use – Defeats Copyright Suit (11th Cir.)

As someone who eats, drinks and sleeps social media marketing and blogging, this 11th Circuit case naturally captured my attention.

The plaintiff in Katz v. Chevaldina, 2015 WL 5449883 (11th Cir. 2015), Raanan Katz, a Miami businessman and co-owner of the Miami Heat, sued the defendant – one of plaintiff’s former commercial tenants and a full-time blogger – for using his photograph in 25 separate blog posts that derided Katz’s real estate business practices.  The “embarrassing”, “ugly,” and “compromising” photo (according to Katz) was taken by a photographer who originally published it on-line in an Israeli newspaper, the Haaretz.  Defendant later found the photo on Google images and used it as an illustration in her scathing posts.

After taking an assignment of the photo’s copyright from its photographer, Katz sued the defendant for copyright infringement.  The District Court granted summary judgment for the blogger on the basis that her use of the photograph was satirical commentary and a fair use of the image.  Katz appealed.

Held: Affirmed.

Rules/Reasons:

Section 107 of the Copyright codifies the fair use doctrine which posits that use of a copyrighted work that furthers “criticism, comment, news reporting, teaching, scholarship, or research” is not an infringement.  17 U.S.C. s. 107.

The four factors a court considers to determine whether fair use applies are (1) the purpose and character of the allegedly infringing use (here, reproducing the photo of plaintiff on defendant’s blog), (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; and (4) the effect of the use on the potential market or value of the copyrighted work. (*2).

The Court held that three of the four factors (1, 2 and 4) weighed in favor of a fair use and affirmed summary judgment for the defendant.

(1) Purpose and Character

This factor requires the court to consider whether the use serves a nonprofit educational purpose as opposed to a commercial one and the degree to which the infringing use is “transformative” as opposed to a “superseding” use of the copyrighted work.

A use is transformative where it adds something new to a copyrighted work and infuses it with a different character and “new expression, meaning or message.”  A use of a copyrighted work doesn’t have to alter or change the work for the use to be transformative.

The court found that defendant’s use of plaintiff’s photo was both educational and transformative.  It found that the defendant posted the photo as an adjunct to articles in which she sharply criticized plaintiff’s business practices and she made no money from her use of the photo.  Her use of the photo satisfied the “comment” and “criticism” components of the fair use doctrine.

The use of photo was transformative because the defendant used it to make fun of (“satirize”) the plaintiff and impugn his business ethics.  At bottom, the defendant’s use of the photo was a critical statement and therefore transformative under copyright law.

(2) Nature of Copyrighted Work

Copyright law gives more protection to original, creative works than to derivative works or factual compilations.  Courts consider whether a work was previously published and whether the work is creative or factual.  Here, the photo was previously published in an Israeli newspaper and its use in the defendant’s blog was mainly factual.

Noting that “photography is an art form” rife with creative decisions such as tone, lighting, and camera angle, the Katz photo was a simple candid shot taken in a public forum.  It lacked any badges of creativity that could give it strengthened copyright protection.  The court also pointed out there was no evidence the original photographer sought to convey emotion or ideas through the photo.

(3) Amount of Work Used

This fair use factor considers the amount of the copyrighted work used in proportion to the whole.  This factor is less relevant when considering a photograph though since most of the time the entire photo must be used to preserve its meaning.  That was the case here: defendant had to use all of Katz’s photo to preserve its meaning.  Ultimately, because the defendant used the whole photo as an adjunct to her blog posts, the “amount used” factor was a wash or “neutral”.

(4) Effect of the Infringing Use on the Potential Market for the Work

This factor asks what would happen if everyone did what the defendant did and whether that would cause substantial economic harm to the plaintiff by materially impairing his incentive to publish the work.  The court found this fair use factor easily weighed in defendant’s favor.  In fact, the plaintiff profoundly disliked the photo and did not want it published anywhere at any time.  According to the court, because Katz used copyright law to squelch defendant’s criticism of him, there was no potential market for the photo.

Afterword:

Since three of the four fair use elements weighed in favor of the defendant, the court found that her use of the plaintiff’s photo was a fair use and immune  from copyright infringement liability.

This case provides a useful detailed summary of the four fair use factors along with instructive analysis of each factors sub-parts.  The Katz case is especially pertinent to anyone facing a copyright claim predicated on a claimed infringing use of a Google images photograph used to enhance on-line content.