Jenner & Block

Client Alert: Restrictive Covenants and Social Media: When are LinkedIn Requests and Other Posts Solicitations?

A recent Illinois case highlights an issue that will increasingly demand attention in both employer-employee relationships and service provider relationships in a world where social media “has become embedded in our social fabric”—whether certain social media communications violate non-solicitation agreements, and how parties to non-solicit agreements will need to consider carefully their use of social media where restrictive covenants may apply.  In this case, which itself does not set precedent, the Circuit Court of Cook County, Illinois determined, and Illinois Appellate Court affirmed, that the LinkedIn connection requests did not run afoul of the restrictive covenant at issue.  The case, like many other recent cases addressing the issue, highlights the fact-intensive inquiry essential to that determination where covenants do not address social media use expressly or other related issues arise.  This article (i) summarizes the reasoning applied in the recent Illinois case along with some other cases where courts have addressed this issue, (ii) identifies some related considerations not addressed in those cases, and (iii) makes recommendations for both businesses and individuals.

UPDATE:

As of August 7, 2017, the Illinois Appellate Court’s decision in Bankers Life and Casualty Co. v. American Senior Benefits LLC, discussed in this Client Alert, is a published decision and is no longer non-precedential under Illinois Supreme Court Rule 23.