LinkedOut: Court finds Ex-Employee Likely Violated Non-Solicitation Provision with LinkedIn Post
The use of social media sites, like LinkedIn, can be a helpful tool to reach a customer base. But a recent district court case out of Minnesota exemplifies the need to ensure that LinkedIn usage complies with the user’s employment agreement. Specifically, in late July 2017, a Minnesota court in Mobile Mini, Inc. v. Vevea granted a preliminary injunction preventing a LinkedIn user from soliciting customers through the website in violation of non-solicitation clause in the employment agreement of her prior employer. The opinion differentiates between posting mere status updates and posting solicitations, the latter of which can trigger violations of non-solicitation clauses.
In Mobile Mini, Liz Vevea first worked at as a sales representative at the Lino Lakes, Minnesota office of Mobile Mini, Inc., a portable storage business that designs and sells storage containers. At the start of her Mobile Mini tenure, Vevea signed a Confidentiality, Non-Solicitation, Non-Compete and Inventions Agreement, in which Vevea agreed at the end of her Mobile Mini employment: a) not to work in the portable storage business at a location within fifty miles of the Lino Lakes office for six months; b) not to make sales to any Mobile Mini Customers for nine months; and c) not to directly or indirectly solicit any Mobile Mini Customers for twelve months.
Vevea resigned from her position at Mobile Mini on November 8, 2016. Within six months, Vevea joined another portable storage business Citi-Cargo, a direct competitor of Mobile Mini’s. Roughly six months after resigning from Mobile Mini, Vevea made two posts on her LinkedIn account:
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 answers. 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, XXX-XXX-XXXX.
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! XXX-XXX-XXXX.
After finding out about these posts, Mobile Mini sued Vevea and Citi-Cargo, arguing that these two LinkedIn posts violated the non-solicitation clauses in the Agreement and seeking a preliminary injunction that, among other things, restarts the clock of the non-solicitation clauses in the Agreement.
In granting the Mobile Mini’s preliminary injunction, the Minnesota court determined that Vevea likely breached the non-solicitation clauses of the Agreement. The court determined that Vevea’s two LinkedIn posts constituted “blatant sales pitches” made before the expiration of the non-solicitation provision. In coming to this conclusion, the court rejected Vevea’s argument that the posts were merely status updates. A status update would announce a job change on LinkedIn, and would not violate the non-solicitation provision. The court found that the specific purpose of Vevea’s posts was to entice members of Vevea’s LinkedIn network to call her for the purpose of selling Citi-Cargo containers. A key fact relied upon by the court was that Vevea’s old manager at Mobile Mini discussed the use of LinkedIn as a marketing tool to advertise Mobile Mini’s products. The court considered it likely that Vevea was now using this same marketing technique to solicit customers for Citi-Cargo, in violation of the non-solicitation provision.
While the court found that Mobile Mini was likely to succeed on the merits, it stopped short of granting its request to restart the clock for the non-solicitation provision. Because Mobile Mini had yet to show any actual damage from the solicitous status updates, the court determined that restarting the non-solicitation period from the beginning would result in a windfall for Mobile Mini. Therefore, the court granted Mobile Mini’s injunction, but limited its terms. Vevea was ordered to remove the two LinkedIn posts and was enjoined from creating any similar posts advertising Citi-Cargo’s products. The court specifically stated, however, that Vevea was allowed to post status updates listing her place of work and contact information.
Through this court’s holding, employees should be cognizant of two pieces of information when using social media sites to discuss a change of employment. First, the employee must be cognizant of any non-compete/non-solicitation provision that the employee signed at his or her previous place of employment. Second, with these non-solicitation restrictions in mind, the employee must be careful to post only status updates on social media during the duration of the non-solicitation period. Otherwise, any solicitous statements made on LinkedIn could end up soliciting a lawsuit.