Facebook Posting Advertising Former Employee's New Position Not A Violation of Nonsolicitation Agreement- Boston Business Laywers Parker Scheer LLP

December 14, 2012

A Massachusetts Superior Court recently held that a Facebook posting regarding a former employee's new employment did not violate the nonsolicitation covenant she signed with her former employer, although there was evidence that the former employee violated her non-competition agreement with the former employer.

In Invidia LLC v. DiFonzo, DiFonzo, a stylist at the Invidia hair salon, was required to sign a non-competition agreement and non-solicitation covenant with Invidia at the time she was hired. This agreement restricted her from working with any competitor of Invidia within ten miles of the salon and within two years after DiFonzo was no longer employed at Invidia. After two years of working at Invidia, DiFonzo left the hair salon. The next day, DiFonzo took a similar stylist position with one of Invidia's competitors, which was located less than two miles from Invidia. The competing salon posted an announcement on Facebook advertising that DiFonzo had joined the salon.

Following DiFonzo's departure from Invidia, the salon experienced a significant number of no-shows, cancellations and nonresponses from clients, which the salon attributed to DiFonzo. Invidia threatened to sue both DiFonzo and the competing hair salon for the loss of business and DiFonzo's violation of her non-compete agreement and nonsolicitation covenant. DiFonzo's new employer then terminated her employment, and Invidia sought a preliminary injunction against DiFonzo to enforce the non-compete agreement restrictions, and to prevent DiFonzo from soliciting Invidia clients or using confidential information she may have obtained from Invidia.

In its analysis of her non-compete agreement case, the superior court noted that, while Invidia had presented sufficient evidence to calculate any monetary damages caused by the loss of each client DiFonzo may have solicited from Invidia, it was not entitled to monetary damages if DiFonzo did not breach the nonsolicitation covenant. Invidia claimed that DiFonzo's Facebook activities violated the nonsolicitation agreement. However, the court found no such violation. First, the competing hair salon - not DiFonzo herself - posted the Facebook announcement regarding DiFonzo joining its salon, and the posting appeared on DiFonzo's personal Facebook page only as a result of her name being "tagged" in the announcement. Second, the mere fact that DiFonzo was "friends" on Facebook with some Invidia clients was not sufficient to amount to solicitation in violation of the agreement. Accordingly, the court held that DiFonzo did not breach the nonsolicitation covenant with Invidia.

Although the court denied Invidia's request for a preliminary injunction, it did note that it found sufficient evidence to support Invidia's contention that DiFonzo had violated the noncompetition covenant.

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