[author: Ted Olsen]

In our January 2012 newsletter, we reported on Maremont v. Susan Fredman Design Group, Ltd.[1], a case where a court recognized potential claims under the Lanham Act[2] and/or the Stored Communications Act[3] because an employer posted entries on a former executive's personal Facebook page and posted "tweets" on her personal Twitter account, to promote its business, without her authorization.  Recently a federal court in Pennsylvania took a different approach, ruling that a former executive had no federal statutory claims when a company took over her LinkedIn account, denied her access to the account, precluded her from communicating with those contacting the account, and inserted her successor's name and photograph, so as to claim the plaintiff's business credentials and contacts[4]

In Eagle v. Morgan, Dr. Eagle sold the company she had founded, Edcomm, Inc., took an officer position with the company, and was employed by the buyer less than a year before being discharged.  The company encouraged all employees, including Dr. Eagle, to participate in LinkedIn and to identify Edcomm, Inc., as their employer.  During Dr. Eagle's employment with Edcomm, Inc., she had a LinkedIn account to promote the company's services, to foster her business reputation, to reconnect with family, friends, and colleagues, and to build social and professional relationships.  Upon her dismissal, the company used Dr. Eagle's password to gain access to her LinkedIn account and changed the password, so that she could no longer access the account.  The company then changed Dr. Eagle's account profile to display the name and photograph of her successor.  People attempting to contact Dr. Eagle through the account were transmitted to a site with her credentials and accolades, but the name and photo of her successor.  Dr. Eagle claimed that she lost business contacts with clients and potential clients, and therefore, lost business opportunities.

One of Dr. Eagle's claims was under the Lanham Act, as in Maremont, summarized above.  The Court rejected this claim, however, because there was no evidence that the defendant's actions created a likelihood of confusion.  Although persons who attempted to reach Dr. Eagle through the account would be met with the replacement's name and photograph, there was no effort by the defendant "to ‘pass off' [the replacement] as Dr. Eagle or to suggest that Dr. Eagle endorsed or was affiliated with Edcomm.  Indeed, the plaintiff claimed that clients finding the successor's photograph and name on the account would not send messages to the account because they recognized that Dr. Eagle and her successor were not the same person.  Further, she did not allege that clients believed that she was still affiliated with the company.  There was no evidence that those attempting to contact Dr. Eagle were caused to believe she was her successor, or that her successor was the same person as Dr. Eagle.

The Court also rejected Dr. Eagle's claim under the Computer Fraud & Abuse Act.  In order to bring a CFAA claim, a plaintiff must prove - not only a violation of the CFAA - but that he or she has "suffer[ed] damage or loss by reason of" the violation.  However, cases interpreting the CFAA have ruled that the alleged loss must be related to an impairment or damage to a computer or computer system.  Here, the plaintiff's claim that she was deprived of access to her LinkedIn account, was denied receipt of e-mail messages, and was denied potential networking and business opportunities, was an insufficient injury to support a CFAA claim.  Further, even though Dr. Eagle claimed that she sold fewer training and consulting services after she was denied access to her LinkedIn account, she offered no evidence to prove that the denial of access caused the drop in her business.

After disposing of the federal statutory claims, the Court declined to rule on Dr. Eagle's various state law claims, which were remanded to state court.

[1] Maremont v. Susan Fredman Design Group, Ltd., Case No. 10 C 7811 (N.D. Ill. Dec. 7, 2011).

[2] 15 U.S.C. § 1125(a)

[3] 18 U.S.C. § 2701 et seq.

[4] Eagle v. Morgan, Case No. 11-4303 (E.D. Pa. Oct. 4, 2012).