By: Peter Bales. Esq.
Whether an employee’s LinkedIn contacts are a former employer’s trade secrets under California law is an issue open for discussion and further litigation following a recent Order from a Los Angeles Federal District Court. In Cellular Accessories for Less, Inc. v. Trinitas LLC (C.D. Cal., Sept. 16, 2014, CV 12-06736 DDP SHX) 2014 WL 4627090, Plaintiff Cellular Accessories for Less, Inc. (“Cellular”), a seller of mobile phone accessories, sued its former employee and the competitor who hired him (“Defendants”) on various claims, including a trade secret misappropriation claim under the California Uniform Trade Secrets Act (“CUTSA”). Id. at *1-2.
According to Cellular, the former employee took trade secrets with him to the competition including his LinkedIn contacts that he developed while he was employed at Cellular. Ibid. Defendants sought summary judgment, in part, on the ground that the LinkedIn contacts were not trade secrets as a matter of law because they were publicly available on the internet. (See CUTSA, Cal. Civ. Code § 3426.1 which requires that trade secrets not be “generally known to the public.”) The Court refused to decide that issue at the summary judgment stage:
Because the Court declines to take judicial notice of the functions of LinkedIn, and because the parties’ declarants do not make sufficiently clear whether and to what degree [the former employee’s] LinkedIn contacts were indeed made public (and whether this was done with Cellular’s explicit or implicit permission), there remain issues of material fact as to the LinkedIn information. Cellular Accessories for Less, Inc., 2014 WL 4627090 at *4.
The issue of whether an employee’s “contacts” as maintained on that employee’s own LinkedIn account are protectable trade secrets is not an issue that has been directly addressed by California courts and has been addressed by courts from other states only on rare occasions. See Eagle v. Morgan (E.D. Pa., Dec. 22, 2011, CIV.A. 11-4303) 2011 WL 6739448 ( “[N]either the telephone number nor the LinkedIn account connections qualify as trade secrets, as both are either generally known in the wider business community or capable of being easily derived from public information.”) While a number of courts point to LinkedIn as an example of publically available information that can be used to recreate internal contact lists that are claimed to be trade secrets (see Sasqua Group, Inc. v. Courtney (E.D.N.Y., Aug. 2, 2010, CV 10-528 ADS AKT) 2010 WL 3613855 report and recommendation adopted, (E.D.N.Y., Sept. 7, 2010, 10-CV-528 ADS ETB) 2010 WL 3702468; EMC Corp. v. Jeremy LeBlanc (D. Mass., Aug. 11, 2014, 14-CV-12524-IT) 2014 WL 3943091) it appears that at least some courts are not prepared to acknowledge LinkedIn’s public nature without admissible evidence of its functionality.
Given the public nature of LinkedIn, it is rare to see lawsuits where an employer alleges that an employee’s contacts maintained on that website constitute trade secrets. But the recent Cellular Order could give certain employers hopes that such a claim would survive to trial if the facts and governing agreements are substantially similar.