Social Media and Non Solicitation Agreements

Great post from Michael P. Maslanka's work Matters blog on Texas Lawyer.  A lot of attorneys are nervous about entering into the fray of social media for this very reason.  Here's something to think about when embarking on writing social media posts for employment attorneys.


Let's play claim or no claim: Can a Facebook post violate an employee's agreement not to solicit former colleagues if he leaves his employment? The answer: possibly, but not in run-of-the-mill situations. That’s according to a magistrate judge’s report and recommendation, issued Jan. 22 and adopted by the U.S. District Court for the Eastern District of Oklahoma on Feb. 12, in Pre-Paid Legal Services Inc. v. Cahill.

The magistrate judge laid out the basics of the case: The defendant went to work for the plaintiff company and became a manager. He signed a nonsolicitation clause prohibiting him from soliciting any former co-worker from leaving his or her employment and going to work with the defendant or a company for which he works. He left for Nerium, a company called that sells skin cream, and allegedly does solicit them through Facebook. His former employer sued him, seeking injunctive relief. So, what was his Facebook activity? He posted general information about his new employer on his Facebook page.

The court summed up the plaintiff's argument: The plaintiff “complains that Facebook posts that tout generally the benefits of Nerium as a product and Defendant's professional satisfaction with Nerium constitute solicitations presumably because some of Defendant's Facebook ‘friends’ are also [former colleagues of defendant] and may view Defendant's posts.”
This was a bridge too far for the court to accept. Bottom line from the court: The plaintiff was unlikely to win its argument that the Facebook postings violated the nonsolicitation clause, and there was no evidence that irreparable harm would result if the injunction didn’t issue. Note that the court said the result might differ if the defendant was posting directly on the Facebook walls of his former colleagues. Here is the bonus room: It looks as if the court reviewed all the decisions on this point (albeit only three).

A final thought: While this case is interesting, it simply applies common sense to a common situation. Lawyers shouldn’t panic simply because a case like this involves "social media." The fundamental things apply as life goes by.