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Yet Another Tale of (Alleged) LinkedIn Indiscretion in a Non-Compete Matter

For those of you following the saga our Employee Mobility Practice Group has been documenting about the many ways in which social media appears to be impacting the non-compete world, I present to you yet another case that highlights the treasure trove of evidence that LinkedIn may provide.

The plaintiff-employer in Nicklas Associates, Inc. v. Zimet sought to enforce a non-compete agreement against its former employee after learning about the former employee’s post-employment competitive activities through misdirected emails and a change to her LinkedIn profile.  But this time, the offending activity wasn’t the use of LinkedIn to source customers in an extra-contractual manner; rather, it was the change in the former employee’s LinkedIn profile description about her new employment that ignited the dispute.  At issue was whether the former employees’ profile change to describe herself as a “creative recruiter” violated her non-compete agreement, which banned her from engaging in the business of placing employees in the fields of creative and marketing communications.   A Maryland federal court judge rejected the plaintiff-employer’s argument at the TRO stage, not on the merits, but because the employer was unable to demonstrate the irreparable harm posed to its business by the employee’s new position – here, because the employer could not show that they lost any business to her new employer in the 4 months since she left.  Because irreparable harm was absent, the court did not analyze the likelihood of success of the employer’s claim.

While this matter stalled with the irreparable harm analysis, litigants should note that some states follow the rule that irreparable harm is presumed upon proof that a non-compete violation has occurred.  And LinkedIn may present itself, once again, as a valuable source of evidence for that purpose.

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Jennifer B. Rubin is a Mintz Member who advises clients on employment issues like wage and hour compliance. Her clients range from start-ups to Fortune 50 companies and business executives in the technology, financial services, publishing, professional services, and health care industries.