The plaintiff company sued a former executive for refusing to turn over contact information for a private LinkedIn group. The group was allegedly developed by the company over several years and at significant expense. The court found there were insufficient details to rule out the possibility that the group constituted a trade secret. However, the plaintiff failed to show that specific communications within the group or data stored on the defendant's phone qualified as trade secrets or were misappropriated. The plaintiff also did not provide enough facts to support an argument that the defendant would inevitably disclose trade secrets to his new employer.

1. When a former media company executive
refused to turn over a private LinkedIn
group’s contact information, the company
responded with a multi-count lawsuit. In CDM
Media USA,Inc.v.Simms,1
the plaintiff company
alleged that the LinkedIn group (the Group),
which was geared toward high-level IT profes-
sionals and administered by the defendant, was
company property. The plaintiff also claimed
the Group’s comments threads were competi-
tively valuable trade secrets.
The plaintiff joined a common law misap-
propriation claim premised on the allegation that
the defendant downloaded confidential company
data onto his cell phone and refused to return
it. In partially granting the ex-employee’s motion
to dismiss, the court considered whether social
media content and contacts can qualify for trade
secret protection under the Illinois Trade Secret
Act (ITSA).
The LinkedIn Private Group:
A Trade Secret?
The court first considered whether the
Group (which contained nearly 700 members)
fit the definition of a trade secret under Illinois
law.An Illinois trade secret plaintiff must allege:
(1) the existence of a trade secret, (2) misap-
propriation of that trade secret, and (3) that
the trade secret was used in the defendant’s
business. The ITSA defines “trade secret” to
include, among other things, “list of actual or
potential customers.”2
Computer
InternetLawyer
Computer
Internet&
TheThe
Is the Refusal to Give Up Control of a Private
LinkedIn Group a Trade Secret Violation?—
Court Weighs In
By Paul B. Porvaznik
Ronald L. Johnston, Arnold & Porter, LLP, Editor-in-ChiefVolume 32 ▲ Number 7 ▲ JULY 2015
Paul B. Porvaznik is an attorney at Molzahn, Rocco,
Reed & Rouse in Chicago, IL. Mr. Porvaznik has nearly
15 years of experience representing corporate and
individual clients in a wide range of matters with
a focus on commercial litigation and trials, real
estate litigation, and mechanics’ lien litigation. He has
handled numerous fraud, negligent misrepresentation,
unfair competition, TRO/injunctions, trade secrets, and
tortious interference claims.

2. Social Media
A key common law trade secrets factor is the time
and expense incurred in developing a client base.
The more time and money spent, the better chance
of showing a trade secret. Here, the media company’s
allegation that the Group was developed at signifi-
cant expense over several years and was secret enough
to give plaintiff a competitive advantage over rival
business-to-business marketers was sufficient to state
a trade secrets claim under the ITSA for purposes of a
motion to dismiss.The court found that “too little is
known” about how the Group was set up, its contents,
and how it impacted the plaintiff’s business to defini-
tively rule that the Group wasn’t a trade secret as a
matter of law.
The Group Communications/
Comments: Not a Trade Secret
The court rejected the plaintiff’s trade secrets claim
based on the Group comments.While the court allowed
that in some cases a social media group’s communica-
tions might qualify as a trade secret,the plaintiff failed to
pinpoint the specific Group content that was secret or
that gave the plaintiff advantage over the competition.
Because the Group trade secrets allegations were too
vanilla, the claim was dismissed.
The court found that “too little is
known” about how the Group was set
up, its contents, and how it impacted
the plaintiff’s business to definitively
rule that the Group wasn’t a trade
secret as a matter of law.
Defendant’s Cell Phone Data:
No Allegation of Use in Business
The plaintiff’s trade secrets claim premised on
the allegation that the defendant swiped informa-
tion from plaintiff’s private database and downloaded
it to his cell phone also failed. Trade secrets
misappropriation requires an allegation that defen-
dant actually used a trade secret in his business.
Here, the plaintiff failed to allege that defendant used
any of the cell phone data in the course of his current
employment.
Under the inevitable disclosure rule,
a trade secrets claim will succeed if
the plaintiff shows that the defendant
can’t function or operate in his new job
without relying on the plaintiff’s trade
secrets.
Lastly, the court found the plaintiff’s “inevitable dis-
closure” allegations too sparse to be actionable. Under
the inevitable disclosure rule, a trade secrets claim
will succeed if the plaintiff shows that the defendant
can’t function or operate in his new job without rely-
ing on the plaintiff’s trade secrets. Here, the plaintiff
failed to allege any facts to support his bare-bones
assertion that the defendant would inevitably disclose
the plaintiff’s trade secrets to the defendant’s new
employer.
Afterword
This case is noteworthy for its modeling of some cre-
ative lawyering: Trade secrets law isn’t the typical legal
theory of choice in a dispute over who owns a private
social media account. If a private social media group is
secret enough to give an employer a competitive advan-
tage and was developed over a long period of time and at
significant expense,the group can qualify as a trade secret.
Even under federal notice pleading, a plaintiff must allege
use in business to establish misappropriation and must give
some specifics to support an inevitable disclosure theory.
Notes
1. CDM Media USA, Inc. v. Simms, 2015 WL 1399050 (N.D. Ill
Mar. 25, 2015).
2. See 765 ILCS 1065/2(d).
Copyright © 2015 CCH Incorporated.All Rights Reserved.
Reprinted from The Computer & Internet Lawyer, July 2015, Volume 32, Number 7, pages 17–18,
with permission from Wolters Kluwer, NewYork, NY,
1-800-638-8437, www.wklawbusiness.com.