A court in the Central District of California recently confronted the interesting issue of whether an employee’s LinkedIn contacts can be considered an employer’s trade secrets, such that the employee could be liable for misappropriation by retaining and using the LinkedIn account after leaving his employment.
In Cellular Accessories for Less, Inc. v. Trinitas LLC, an employee was sued by his former employer, a cellular accessory distributor, for breach of contract and trade secret misappropriation after leaving his account manager position and starting a competing company. The employer based its trade secret misappropriation claim on several grounds, including that the employee retained the LinkedIn account he previously used for maintaining his contacts as the employer’s account manager.
The employee argued that he was entitled to summary judgment on the misappropriation claim because his LinkedIn contact list did not constitute a trade secret. Given that, by definition, trade secrets are “not . . . generally known to the public,” the parties’ arguments at summary judgment, and therefore the court’s opinion, focused on the employee’s use or non-use of LinkedIn’s privacy settings. The employee contended that there was nothing secret about his LinkedIn contacts list as the contacts would have been “viewable to any other contact he has on LinkedIn.” The employer responded that this would not be the case if the employee had set his contacts to “private.” Because the parties failed to provide sufficient evidence regarding how LinkedIn’s privacy settings work and the employee’s actual account settings, the court held that issues of material fact remained and denied the motion.
This case raises several interesting issues that the court did not get a chance to address, including:
- The parties did not appear to raise the issues of whether the employer required the employee to maintain a LinkedIn account or use it to perform his job duties, or whether and to what extent the employer regulated the employee’s use of the account even though it was in the employee’s name. Such right to control and ownership issues would seem to be very pertinent, particularly for employers whose employees regularly use social media accounts to perform their job duties.
- Further, by even entertaining the possibility that an employee’s private LinkedIn account could constitute or contain trade secret information, the case raises questions for employers whose employees use social media as to whether employers need to re-evaluate the scope and nature of their social media and trade secrets policies to account for this type of situation.
The law in this area is still developing, but deserves close attention from employers, given the increasing prevalence of employees using social media to perform their job responsibilities.