@Rule12(b)(6)#Social Media

Phonedog v. Kravitz, Case No. C 11-03474 MEJ, 2011 U.S. Dist. Lexis 129229 (N.D. Ca., decided 11/8/2011)Eagle v. Morgan, Case No. 11-4303, 2011 U.S. Dist. Lexis 147247 (E.D. Pa., decided 12/22/2011)

Topic:  Pleading claims based on ownership of social media assets.


In Phonedog, employee-defendant Kravitz attracted 17,000 followers to his employer-provided Twitter account. When his employment ended, Kravitz changed his Twitter username instead of relinquishing the account as requested by employer-plaintiff Phonedog. Phonedog brought suit against Kravitz alleging misappropriation of trade secrets, conversion and intentional and negligent interference with economic advantage. On Kravitz's 12(b)(6) motion, the district court dismissed the interference claims, but said that Phonedog had adequately pled trade secret misappropriation and conversion. The court also found that a fully developed evidentiary record was necessary to assess a challenge to subject matter jurisdiction, including a question of whether Twitter's terms of service make all accounts the exclusive property of Twitter.

Similarly in Eagle, the parties disputed who owned an employee's LinkedIn profile and connections after the employee's termination. The employer pled that, though the profile was in the name of the former employee, other employer personnel actually maintained the LinkedIn content and connections. The employer allegations of misappropriation rested on the fact that the employer could not access the connections it had created because the employee had changed the LinkedIn account password. (Initially, the employer was able to lock the employee out of her LinkedIn account because its staff knew the password.) The district court held it could not grant the employee's 12(b)(6) request because the pleadings gave rise to a question of fact regarding the claimed misappropriation.

BuLits Points:

  • Social media blurs ownership lines. Social media's emerging standards can lead to disputes about who actually owns social media assets. For companies that use social media in marketing and other efforts, it is apparent that the ownership of those social media accounts-to the extent they are set up and maintained by employees-can be challenged when an employee departs. 
  • Old-fashioned misappropriation and conversion rules still apply.  While claims of intentional and negligent interference with contracts or with prospective economic advantages have not gotten much traction in the social media context, claims for the misappropriation of ideas and for conversion have been allowed to proceed. These well-worn theories may provide a company's best bet for protecting emerging social media assets from plunder by departing employees.
  • But don't forget the Terms of Use. The terms of service issued by a social media provider may indicate that the social media provider retains ownership of all user accounts. This could pose a challenge to a company's ability to regain access to a social media account created by a former employee.

And Remember:

To protect themselves, companies should use social media policies or employee contracts to define their property interests in social media accounts that have been created and maintained by employees at the company's direction. 

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