UPDATE: Whose Account Is It Still?

Two weeks ago, I discussed the California case of PhoneDog v. Kravitz, where an employee, who used a company Twitter account as part of his job duties, left the company and continued to use the same Twitter account and tweet to the same followers.    The (former) employee claimed that he had the right to continue tweeting, and PhoneDog responded that he was barking up the wrong tree (best I could do at the moment).  As I mentioned in my last post, the court had denied the employee’s attempt to dismiss the entire case at inception, and allowed the company to amend its complaint to provide more specificity on some of its claims.   Time for an update.

Since that decision, PhoneDog amended its complaint to re-allege claims for intentional interference with prospective economic advantage and negligent interference with prospective economic advantage.    Then, the employee filed another request to dismiss those two claims, demonstrating that he was up for a dog fight (I’m trying).   Three days ago, on January 30th, the court again denied the employee’s dismissal request, ruling that the company had now sufficiently clarified – at least for pleading purposes – how it did have economic relations with the 17,000 followers of the Twitter account, and how those relations were disrupted by the employee’s post-resignation conduct.   The impact of that ruling is that PhoneDog can now proceed with the case, and the significant time and money that the employee will be forced to spend responding to requests for information and documents, and appearing at depositions.

Employer Take Away:   What should you as an employer take away from this development?   

In the dog-eat-dog world of competition between companies and their employees (I’m gaining some momentum here), the outcome of this case may provide our first definitive guidance on the questions of how we should define a “trade secret” when it comes to social media, and the extent to which social media forums and networks belong to the employer or the employee.    In the meantime, those issues can be addressed to a large extent by having your employees sign appropriate agreements that define these ownership issues.

We will continue to monitor the PhoneDog case for you, and update you on any significant developments.   Until then (I’m ready for a big finish)…  We may not learn much before the dog days of summer, but it may just be that, in the end, the former employee can’t be running with both hounds and hares when it comes to being provided access to a Twitter audience by his employer and then trying to keep that audience when he leaves.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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