So What’s Solicitation When It Comes To Social Media?
Here’s an interesting case from Indianathat raises an interesting question. What the heck is solicitation anyway? Two companies – Hypersonic and ENS — entered into an agreement that included a provision that neither one would solicit the other’s employees. While the agreement was in effect Hypersonic posted a job opening on LinkedIn. An employee of ENS saw the post, contacted Hypersonic, and got the job. ENS contended that Hypersonic breached the non-solicitation agreement. The Indianaappellate court disagreed. In reaching its decision, the court looked at Black’s Law dictionary, which provided the following definition of “solicitation”: “[t]he act or an instance of requesting or seeking to obtain something; a request or petition;” inducement is described as “[t]he act or process of enticing or persuading another person to take a certain course of action.” Based on this definition, the court found that the ENS employee who contacted Hypersonic was the one doing the soliciting. Hypersonic just put the word out on a publicly available site. In the court’s view, that’s not inducing or soliciting. So what’s the lesson here? If you’re in the shoes of ENS and you think a LinkedIn posting violates a non-solicitation clause you’d better include that in the contractual definition of “solicitation.” Because if you rely on Black’s Law Dictionary, you’re probably going to be out of luck.