The outcome of a lawsuit in which a company is suing a former employee over Twitter followers will most likely hinge on how the list was developed and what value each side places on the followers, according to legal experts.
“This case is another example of the application of relatively old legal rules applied to new technology,” said Bill Nolan, an attorney with Barnes & Thornburg LLP. “It’s the 2011 version of the salesperson taking the Rolodex when he/she leaves the company.”
PhoneDog cleared the first hurdle in the lawsuit earlier last month when a court rejected Noah Kravitz’s request to dismiss the lawsuit. PhoneDog is seeking $340,000 from Kravitz, or about $2.50 for each Twitter user that started following the account @Phonedog_Noah while he was tweeting and writing for the online publication. When ravitz left the company in October 2010 he changed the account’s handle to @noahkravitz and retained the more than 17,000 followers he had amassed while working for PhoneDog.
Nolan said the case is fact specific, meaning the outcome will be determined by the specific facts of the case and is unlikely to set blanket precedents for similar lawsuits in the future. Nolan expects the case to be decided on whether the employee or the employer invested more time in creating the list and whether the list contains valuable, proprietary information that will not be easily recreated.
“If a team from the company sat in a conference room and designed a strategy under which the now-departed employee would tweet on topics to the benefit of the company, that’s a very different story than if the employee on his initiative started using Twitter to boost his job performance,” Nolan said.
The case is being closely watched by companies that have employees use social media as part of their job function, as well as employees who may want to retain control of a Twitter account after leaving a firm. But since the case is fact specific, it ultimately may hold little bearing on similar disputes.
“The takeaway for employers and employees alike is to have clarity on these subjects up front. Employers seeking to protect lists of Twitter followers developed by employees in the course of employment should have policies and agreements saying so,” Nolan said. “Employees seeking to use these lists after they leave employment should consult with counsel to ensure that they proceed without subjecting themselves to undue legal risk.”
