nonsolicitation – Attorney Evan Brown

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Need assistance? Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases.

Invidia, LLC v. DiFonzo, 2012 WL 5576406 (Mass.Super. October 22, 2012)

Defendant hairstylist signed an employment agreement with plaintiff that restricted her from soliciting any of plaintiff’s clients or customers for 2 years. Four days after she quit plaintiff’s salon, her new employer announced on Facebook that defendant had come on board as a stylist. One of defendant’s former clients left a comment to that post about looking forward to an upcoming appointment.

Either before or after she left plaintiff’s employ (the opinion is not clear about this), defendant had become Facebook friends with at least 8 of the customers she served while working for plaintiff.

Plaintiff sued for breach of contract and sought a preliminary injunction. The court denied the motion, in part because plaintiff failed to show evidence that defendant had violated the nonsolicitation provision.

The court found that it did not constitute solicitation of plaintiff’s customers to post a notice on Facebook that defendant was beginning work at a new salon. The court said it would have viewed it differently had plaintiff contacted a client to tell her that she was moving to a new salon, but there was no evidence of any such contact.

As for having clients as Facebook friends, the court noted that:

[O]ne can be Facebook friends with others without soliciting those friends to change hair salons, and [plaintiff] has presented no evidence of any communications, through Facebook or otherwise, in which [defendant] has suggested to these Facebook friends that they should take their business to her chair at [her new employer].

See also, TEKsystems, Inc. v. Hammernick.

Photo courtesy Flickr user planetc1 under this Creative Commons license

Amway Global v. Woodward, 2010 WL 3927661 (E.D.Mich. September 30, 2010)

Amway Global went after some of its former distributors in arbitration for, among other things, violating the “Rules of Conduct” which serve as an agreement as to how the distributors (formally known as Independent Business Owners or “IBOs”) operate. Amway claimed that the IBOs violated the Rules of Conduct by soliciting others to leave Amway and join competing enterprises.

The arbitrator found in Amway’s favor, and Amway filed a motion with the court to confirm the award. The court granted the motion.

One of the factual questions was whether one of the IBOs violated the rules against solicitation by blogging about his decision to leave Amway and join another company. One of his posts said “[i]f you knew what I knew, you would do what I do.”

The IBOs argued that this statement did not constitute actionable solicitation because the communication was passive and untargeted, and because there was no evidence that anyone responded to the solicitation by leaving Amway.

The court rejected these arguments. As to the “passive and untargeted” argument, the court observed that:

[C]ommon sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation. The [statement] is readily characterized as an invitation for the reader to follow his lead and join [Amway’s competitor], and this is true despite the diffuse and uncertain readership of the site.

As to the argument based on the fact that no one responded, the court found that the express language of the nonsolicitation clause which prohibited “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other IBO to compete with” Amway did not turn on the success of those prohibited efforts.

Tag: nonsolicitation

Blog post violated nonsolicitation clause in Amway agreement