Federal Court Considers Social Media Posts in Non-Solicitation Case

Susan H. Hargrove

Todd Cahill was keyed-in to the power of social media. Cahill’s employer, Pre-Paid Legal Services, Inc. took advantage of Cahill’s skills, enlisting him to generate company Facebook pages recognizing Pre-Paid’s top producers. But when Cahill used those pages, as well as repeated posts to his own Facebook page and Twitter account to announce his new position and his satisfaction with his subsequent employer, Pre-Paid cried foul.   

As a Pre-Paid sales associate, Cahill had agreed that he would not “proselytize, recruit or solicit” other associates for two years after his departure from Pre-Paid. In a complaint filed with the Federal District Court for the District of Oklahoma, Pre-Paid alleged that Cahill’s social media posts violated his agreement, and sought, among other remedies, a preliminary injunction to keep Cahill from posting job information on Facebook and Twitter. Pre-Paid Legal Services, Inc. v. Cahill, No. 12-CV-346, order affirming magistrate’s report (D. Okla., Feb. 12, 2013). 

The court was not persuaded that Cahill’s Facebook and Twitter posts violated the agreement and explicitly noted the absence of any evidence indicating that Cahill was targeting Pre-Paid’s sales associates by posting on their walls or through private messaging. The Cahill court did not address the implications of the distinction between a genuinely public audience (such as readers of a newspaper or an on-line job posting service) and the narrower and potentially more targeted audience of one’s Facebook “friends.” The holding, rather, reflects the general view historically taken by courts that broadcast announcements or job postings do not violate non-solicitation agreements.   

In its opinion, the court cited as persuasive the case of Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies, Corp., 191 N.E. 2d 265 (Ind. Ct. App 2011) in which the Indiana Court of Appeals held that job posting on the cite LinkedIn did not violate defendant’s non-solicitation agreement. In Enhanced Solutions the court suggested that a carefully worded non-solicitation provision that defined clearly the conduct it wished to prohibit could eliminate the possibility of the unwanted conduct 

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