Social Media

Third Circuit: Spying on Former Employee’s Social Media Account Does Not Constitute “Unclean Hands” to Bar Trade Secret Misappropriation Claim

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Consider this: a former employee has just left his or her employer and may have taken trade secrets to a competitor.  Can the employer log in to that former employee’s personal social media account to search for potentially incriminating evidence?  For most employers, the answer may be “no,” as doing so may be unlawful or at a minimum, may constitute “unclean hands” (a doctrine barring equitable relief when the party seeking the relief has committed misconduct related to the claims at issue) possibly jeopardizing the employer’s trade secret misappropriation (and other claims) against the former employee. READ MORE →

#SecretTweets: Protecting Social Media as a Trade Secret?

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Social media today connects people more than ever. It can be a means to bring together long-lost friends, new acquaintances, and love interests, or the public with celebrities, sports teams, new products, and companies—to name just a few. It can be an effective way to market images and products, as it has the potential to reach thousands instantly with the click of a button. With such public uses and goals, social media seems like an odd candidate for trade secret protection. Yet, that is precisely what BH Media Inc. is seeking to protect in its complaint, filed with the Western District of Virginia on August 6, 2018 against a former employee, Andy Bitter. READ MORE →

California Supreme Court Will Hear Arguments This Week in Defamation Case With Implications for Online Publishers, Trade Secrets Owners

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On Tuesday, April 3, the California Supreme Court will hear arguments in Hassel v. Bird.  Case No. S235968.  While seemingly a defamation case, it has direct implications on trade secrets owners and the rights of internet publishers.

In that case, a lawyer, Dawn Hassell, sued her former client, Ava Bird, for defamation in California state court because of a negative Yelp review.  247 Cal. App. 4th 1336 (2016).  Bird never responded to the lawsuit, so the trial court entered a default judgment in Hassell’s favor. The court ordered Bird and Yelp to remove her the reviews, even though Yelp was not a party to the lawsuit.  Yelp appealed on numerous grounds, including that (1) the court denied Yelp due process because Yelp wasn’t a party; (2) the order was an improper prior restraint; and (3) Yelp had immunity under the Communications Decency Act.  The court of appeal rejected all of these arguments.

This fight between the rights of internet publishers and those allegedly aggrieved by third parties who post information or statements on the publishers’ websites is an ongoing battle.  While often fought in the defamation space, many of these disputes involve trade secrets owners who claim others, including former employees, posted trade secrets on an internet publisher’s site.  See, e.g., Glassdoor, Inc. v. Superior Court, 9 Cal. App. 5th 623 (2017).  The Hassell case will have direct impact on this ongoing battle.  If upheld, it will create a potential roadmap for trade secrets owners to take down offending content published on the internet.  For the internet publishers, it creates a serious headache because it allows plaintiffs to sidestep the publisher’s right to defend against an injunction.

Trade Secrets Watch will monitor the oral argument and report back.

Don’t Friend My Friends: Nonsolicitation Agreements Should Account for Social Media Strategies

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As social media becomes an important part of many companies’ sales and branding strategies, issues relating to companies’ ability to protect their investments in such strategies are emerging. Indeed, this blog has previously covered whether LinkedIn contacts can qualify as trade secrets (answer: maybe). Another such issue, recently addressed in a district court in Idaho, is whether and to what extent a nonsolicitation agreement can restrict a former employee’s Facebook interactions with the former employer’s customers. READ MORE →