Batting .300 In Pennsylvania
A federal court in Pennsylvania recently issued an interesting decision about who owns Linked In content created for a company when an employee leaves with that information in hand. The company — Edcomm, Inc. – made three arguments and prevailed on only one. But that small victory will allow it to proceed with a counterclaim against its former employee. The suit arose when the employee left the company. The former employee alleged that that Edcomm interfered with her use of her LinkedIn account. But Edcomm filed a counterclaim alleging that the former employee actually violated Edcomm’s rights by continuing to use the content and contacts created on the LinkedIn account while the employee worked there. Edcomm made three claims – a violation of the federal Computer Fraud and Abuse Act, a misappropriation of trade secrets claim and a more general claim for “misappropriation” under Pennsylvania law. The court dismissed the CFAA claim, finding that she never actually “accessed” a computer – she merely convinced AT&T employees to provide her certain information related to her account. In addition, the court found that any access was not “unauthorized” because the AT&T employees authorized her access to the Edcomm account. The court also found that the information that the former employee took simply did not rise to the level of a trade secret. Edcomm could not establish that the information had any “independent economic value.” But Edcomm was able to convince the court that its misappropriation claim had some merit. In Pennsylvania, a misappropriation claim requires that the plaintiff have an idea that is “novel and concrete” and that the defendant took it. Here, Edcomm alleged that company personnel developed and maintained all of the connections and much of the content on the company’s LinkedIn account. In addition, Edcomm presented evidence that that employees were required, pursuant to corporate policy, to use their corporate e-mail addresses for LinkedIn accounts; use a specific template created by the company for their corporate descriptions and work histories; provide links to the company website and the company phone number; and use a company-approved template for replying to individuals through the service. That was enough for court to allow the claim to proceed. The lesson here is that a company can protect its social media information from leaving with an employee, but it requires a little bit of proactivity (I think that’s a word) on the company’s part.