The Supreme Court of New York recently held that an ex-employee was permitted to write blog entries about his former employer despite signed confidentiality and non-solicitation agreements. The Court found that the First Amendment of the United States Constitution protected individuals from judicial restraint of speech related to a public concern. The former employer was required to demonstrate “extraordinary circumstances” in order to enjoin the ex-employee from writing blog articles about the company. The Court held that the employer failed to demonstrate extraordinary circumstances and allowed the ex-employee to continue writing blog entries and communicating with customer despite his confidentiality and non-solicitation agreements. For more information on this case, see Cambridge Who’s Who Publishing Inc. v. Sethi, 9175/10 NYLJ 1201482619238 (Sup. Ct. Nassau County 1/25/11).
We recommend that you speak with an employment attorney regarding your confidentiality and non-solicitation agreements before posting blog entries about an ex-employer. Although the Court ruled that a preliminary injunction was not proper in this matter, the ex-employee may still be liable for damages as a result of his breach of the confidentiality and non-solicitation agreements. Moreover, the ex-employee most likely incurred a significant amount of attorneys’ fees defending this matter and will continue incurring additional fees as the litigation proceeds.
March 22, 2011 – Castronovo & McKinney – Tom McKinney