Can a blog post constitute evidence of solicitation in violation of a non-solicitation agreement? According to a federal district court in Michigan, it can. The case is Amway Global v. Woodward, No. 09-12946 (E.D. Mich. Sept. 30, 2010)
Petitioner Amway Global (“Amway”), sells health and beauty products through a network of individuals known as Independent Business Owners (“IBOs”). Respondents were former IBOs. Following the separation of the IBOs, Amway initiated arbitration proceedings, asserting breach of contract, tortious interference, and misappropriation of tort secrets. The claims were based on the former IBOs’ alleged violation of contractual prohibitions against soliciting other IBOs to compete against Amway.
The arbitrator determined that the former IBOs had breached their contractual obligations as set forth in Amway’s standard contract, which it called the “Rules of Conduct.” Specifically, Respondents were held liable for violating Rule of Conduct 6.5.5, which prohibited IBOs from “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other IBO to Compete with the business of the Corporation.” Respondents appealed the arbitrator’s decision, contending that there was not sufficient evidence that they have violated the anti-solicitation provision
Amway had introduced evidence that showed that the IBOs terminated their contracts but remained in contact with each other and subsequently issued coordinated statements announcing that they were joining Amway’s competitor. The most captivating part of the decision, however, is the evidence upon which the arbitrator relied in finding that the former IBOs had solicited their former colleagues to join them in working for Amway’s competitor.
Specifically, one of the respondents had announced his decision to join the competitor in a blog post and wrote, “If you knew what I knew, you would do what I do.” As you may imagine, the respondents contended that blog posts were “passive, untargeted communications [that] fail as a matter of law to qualify as actionable solicitations.”
The court did not agree. Instead, the court found that this language in the blog post “would readily be characterized as [a] solicitation.” The court rejected the respondents’ argument that “passive placement” of a solicitation on the Internet can qualify as a solicitation even if it does not involve “one-on-one importuning” and was not directed at any specific individual.
[H/T to Evan Brown at Internet Cases]
See also, Blog Post as Trial Evidence