An Ex-Employee Takes the Password to the LinkedIn Page — Now What?

By Eric B. Meyer

Your company has set up a private LinkedIn Group.

Your company, which controls who may become a member of the Group, has seen the number of Group members swell to nearly 700. Way to go! Because it’s a private group, the names of all of the group members are not generally available to the public.

Now, let’s say that the employee whom you have appointed to manage the LinkedIn Group — the one who knows all the passwords — up and leaves. And, of course, he doesn’t return the passwords. What can you do?

How about a lawsuit for misappropriation of trade secrets?

Could be theft of a trade secret

In a recent case filed in federal court (CDM Media USA, Inc. v. Robert Simms) in Illinois, the plaintiff-employer alleged that the identities of the members of its LinkedIn group constituted a trade secret. And, when the defendant-employee failed to return the Group password, he effectively misappropriated that trade secret.

In response, the plaintiff encouraged the Court to take judicial notice of LinkedIn’s terms and conditions. However, the court (in this opinion) allowed the plaintiff’s claim to survive the defendant’s motion to dismiss:

Defendant believes Count II should be dismissed because the Speakers Bureau LinkedIn group is not secret….Plaintiff does not claim the group’s existence to be secret—only its contents. More generally, too little is known about the contents, configuration, and function of the LinkedIn group at this time, to conclude as a matter of law that its list of members did not constitute a trade secret.”

How “secret” are the group members?

Out of curiosity, I visited the LinkedIn Group in this case (CIO Speaker Bureau), of which I am not a member. However, while the group is private (i.e., the Group manager must approve me before I can become a member), I was able to identify 10 people in my extended network who are members.

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I also question how much value the identities of the Group members would have to the plaintiff. While some may be business prospects, to say that of all members would be a reach.

Another question I’d have as the fact finder is this: What is the vetting process the employer undertakes when a LinkedIn user requests to join the group. Is membership rubber-stamped? Or must the applicant meet certain criteria?

I suspect that, if this case makes it to summary judgment, I’ll have a follow-up post which addresses the “contents, configuration, and function of the LinkedIn group” which, according to the court, will help determine whether the identities of the members are a trade secret.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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3 Comments on “An Ex-Employee Takes the Password to the LinkedIn Page — Now What?

  1. I had former bosses betray me on linked in and some other websites. It isn’t what you think. They need to make it so you can delete comments, because people do get abashed on other family members pages and then can’t get work.

  2. What am I missing? Couldn’t the company have contacted LinkedIn and gotten a new password? (Or gotten the old password removed and then changed the password?)

  3. We had this happen. It isn’t challenging to work with the site to change access permissions. I think it took us 48 hours or less total. Unless there were trade secrets in the chat logs, something that shouldn’t be there anyway, I don’t see a reason to cause problems and make drama. Reputation is valuable, before you run to court it is best to get an outside opinion. If the action makes you or your company look petty, clueless or vindictive then it can scare away talent and potential clients. At a minimum you run the risk of looking like you can’t protect what needs protecting.

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