Maryland Business Law Blog

May a Company Take Over an Officer’s LinkedIn Account?

Posted by Jeanine Gagliardi on Mon, 01/21/2013 - 05:00

It seems far-fetched. Many corporate officers create LinkedIn accounts to promote themselves and their companies. They feel the account belongs to them, not the company. They would not expect the company could take the account upon their separation. This very issue arose, however, in a recent decision issued by the United States District Court for the Eastern District of Pennsylvania.

In the case, the court looked at a situation where a company seized control of its president's account upon her termination. While she held office, the company’s president developed and used a LinkedIn account to promote herself and the company. Upon the president’s separation, the company took over the LinkedIn account that she had created.

The company logged into the account, changed the password so the president no longer had access, and amended the account to show her replacement’s name and photo. As a result of this, the president’s contacts and others who searched for her were routed to an account that showed the president’s honors, awards, recommendations, and connections, but her replacement’s name and photo.

The president sued the company for, among other things, violation of the Computer Fraud and Abuse Act (“CFAA”) for taking the account. The CFAA creates a private cause of action against persons who, with the intent to defraud, access computer systems without proper authorization. A person who suffers “loss” as a result of the access may bring the action. “Loss” under the CFAA is limited to harm related to the impairment or damage of a computer or computer system.

The president claimed missed business opportunities and harm to her reputation that arose out of her inability to access the account. She also claimed legal fees incurred to regain control of the account. The court ruled that, because the president’s claimed losses were not related to the impairment or damage of a computer or computer system, they were not cognizable under the CFAA. Accordingly, the court summarily rejected her claim.

The fact that the company successfully avoided CFAA liability in this case does not mean that businesses can take over officers’ accounts without concern. Even if a company is able to avoid liability under the CFAA, the unauthorized taking may result in liability for state law claims such as tortious interference and invasion of privacy.

If you are an employer or employee with questions about business considerations related to social media accounts, we can provide additional guidance suited to your circumstance.

May I Terminate An Employee Suspected of FMLA Cheating?

Posted by Edward Sharkey on Mon, 01/07/2013 - 05:00

Businesses continue to seek an efficient way to manage the effects of the Family and Medical Leave Act (the “FMLA”). The FMLA entitles employees to take leave to care for a sick family member. Sometimes, unscrupulous employees abuse this benefit. Employers are often uncertain about how to deal with an employee suspected of lying about the need to take leave. A new case decided by the Seventh Circuit Court of Appeals gives some guidance.

In the case, an employee was granted intermittent FMLA leave to care for his mother, who was in a nursing home. The employer had previously hired a surveillance company to monitor employees “who were suspected of misusing leave or had a high number of unexcused absences.” The plaintiff in this case was one such employee.

On one occasion, the employee requested a day of FMLA leave to go to the nursing home to assist in his mother’s care. On that day, the surveillance company found that he did not leave his house at all. The employee was suspended pending further investigation, and thereafter supplied the employer with documentation to support his claim that he had been assisting his mother. The documentation had many inconsistencies, however, and the employee was terminated.

The employee sued. The lower court ruled summarily in favor of the employer. On the question of interference with the employee’s right to be reinstated after taking leave under the FMLA, the court said that “an employer’s honest suspicion that the employee was not using his medical leave for its intended purpose is enough to defeat the employee’s” claim.

The Seventh Circuit affirmed the lower court’s ruling, holding that the surveillance report and the “facially inconsistent” documentation were enough for the employer to have an “honest suspicion” that the employee was not using his leave for its intended purpose. Therefore, he was not entitled to reinstatement after taking leave.

The “honest suspicion” defense is very deferential to employers, but has not yet been recognized in all jurisdictions. This case should, however, provide persuasive authority in similar cases.

The takeaway for employers: if your suspicion is reasonable, you can terminate an employee for FMLA abuse. You do not have to prove abuse beyond all doubt.

Can I Prevent Others from Using Domains that Contain My Business's Trademark?

Posted by Jeanine Gagliardi on Sun, 12/16/2012 - 05:00

An opinion recently issued by the United States District Court for the District of New Jersey reminds us of the value of using a domain name that corresponds to a business's own name or trademark.

The case concerns the registration and use of the domain names “nissanofedison.com” and “edisonnissan.com” by a car company who was not Edison Nissan. When this came to the attention of Edison Nissan, they rightly concluded that it would interfere with their marketing message. Edison Nissan sued for (1) trademark infringement and (2) violation of the Anticybersquatting Consumer Protection Act (“ACPA”).

To succeed on the infringement claim, Edison Nissan had to prove that the defendant:

(1) used Edison Nissan’s trademark;

(2) in connection with the sale of goods or services;

(3) in interstate commerce; and

(4) that the use was likely to cause consumer confusion about the source of the goods or services.

Although there was evidence that the Edison Nissan defendant used the domains to compete for customers, in many cases, a defendant registers, but does not actually use, the domain containing a competitor's trademark. Congress enacted the ACPA to deal with such cases.

To succeed on an ACPA claim, a plaintiff need not prove that the defendant used the domain at issue. The elements of an ACPA claim are:

(1) The plaintiff is the owner of a distinctive or famous mark;

(2) The defendant used, registered, or trafficked in a domain name that is identical to, confusingly similar to, or dilutive of the mark; and

(3) The defendant did so with the bad faith intent to profit from the use, registration, or trafficking.

Because the prosecution of trademark infringement and ACPA claims like Edison Nissan's is time consuming and expensive, we recommend that businesses take steps to avoid domain disputes before they occur. The easiest protection is to register the domain names that correspond to:

(1) the name of the business;

(2) the business's trademark(s);

(3) common misspellings of the name and trademark(s);

(4) “[the business's trademark]sucks.com;” and

(5) “[the business's name]sucks.com.”

All things considered, it is a lot cheaper to keep sensitive domain names off the market by buying them than to try to protect or procure them after a competitor, or vindictive complainant, starts to misuse one.

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