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Jay litigates business disputes involving technology, intellectual property, financial services, and contract rights. He regularly advises clients on contract, covenant not to compete, false advertising, social media, trademark, trade secret and unfair competition issues and in corporate dissolution and post-acquisition disputes.

In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that:

– the employer issued the cell phones to the employees;
– the employees used the cell phones for any work-related purpose; or
– the employer otherwise had any legal right to obtain employee text messages on demand.
Continue Reading Court Holds That Employer Did Not Have “Possession, Custody or Control” of Text Messages Sent or Received on its Employees’ Personal Cell Phones

Describing it as a “rather novel issue,” a federal court recently held that a former employee’s public posts on his personal Facebook page did not constitute solicitation of his former co-workers under the terms of his non-solicitation agreement with his former employer. [See Pre-Paid Legal Services, Inc. v. Cahill, No. 12-CV-346, Doc. 31 (Jan. 22, 2013), Report and Recommendation affirmed and adopted, Doc. 32 (Feb. 12, 2013)] The court further noted that invitations sent to former co-workers to join Twitter were not solicitations under the agreement because the invitations did not request the co-workers to “follow” the former employee, they did not contain any information about the new employer, and they were sent by Twitter instead of as targeted email blasts by the former employee.

Though the court found that the former employee’s social networking activities did not constitute solicitation under his agreement, it did enter a preliminary injunction against the former employee based on his direct solicitation of one of his former co-workers through a private in-person meeting and follow up text messages sent to the co-worker. The court entered the injunction until the issues could be presented to an arbitrator pursuant to the parties’ arbitration agreement.


Continue Reading Facebook Posts Not “Solicitation” Under Former Employee’s Restrictive Covenant Agreement

On April 27, 2011, the United States Supreme Court held that the Federal Arbitration Act (“FAA”) preempted California state contract law which courts had applied to invalidate arbitration agreements that did not permit class arbitration. Although the decision involved a consumer contract, the Supreme Court’s reasoning provides a basis for employers to seek enforcement of employment agreements that prohibit workplace class actions and require the individual arbitration of employment-related claims.


Continue Reading Supreme Court’s AT&T Mobility Decision Provides Support For Use Of Employment Arbitration Agreements With Class Action Waivers