Having dismissed all of the federal claims in a suit over the ownership of a LinkedIn account, U.S. District Senior Judge Ronald Buckwalter of the Eastern District of Pennsylvania has decided to proceed to trial on the remaining claims under state law. The case stems from a disagreement over an account maintained on the social-networking website for professionals, LinkedIn, that was created by Linda Eagle while she was the president of Edcomm and later transferred to her successor after she was fired.
Buckwalter was unconvinced by Eagle’s arguments under the Computer Fraud and Abuse Act and the Lanham Act, which regulates claims of unfair competition. But because the court is familiar with the case (which has been pending for more than a year), and “the trial on this matter is scheduled for less than two weeks from the date of this opinion,” Buckwalter said in the opinion issued last week that he would proceed. “Given all of these considerations, judicial economy, convenience, fairness, and comity would not be well-served by the last-minute dismissal of plaintiff’s state law causes of action,” he said in Eagle v. Morgan.
The state law claims include misappropriation of publicity, identity theft, tortious interference with contract and civil conspiracy, according to the opinion. After Eagle was fired from Edcomm, a banking education company that she co-founded in 1987, employees of the company changed the password for the account and posted the new interim chief executive officer’s picture and name, Sandi Morgan, in Eagle’s place.
“Edcomm generally followed the policy that when an employee left the company, the company would effectively ‘own’ the LinkedIn account and could ‘mine’ the information and incoming traffic, so long as it did not steal that former employee’s identity,” Buckwalter said, citing the defendants’ motion for summary judgment, which he granted in part.
Eagle argued that for the time Morgan’s name and picture were paired with Eagle’s information, she lost potential business contacts because those who searched for her would have been confused and unable to send a message to her. Under the CFAA, a plaintiff must bring evidence of loss, according to the opinion.
“Courts have held that, to fall within this definition, the alleged ‘loss’ must be related to the impairment or damage to a computer or computer system,” Buckwalter said. Eagle’s claims that she lost potential revenue from business partnerships through her LinkedIn account don’t meet that criteria, Buckwalter held. “In the present case, the evidentiary basis for plaintiff’s CFAA damages claim is scant at best,” he said. He was unpersuaded by her argument that her reputation suffered because she was unable to respond to messages sent to her LinkedIn account as well as by the declaration of Peter Chatzky, with whom she had previously done business, saying that he had tried to get in touch with her for a lucrative deal while she was unable to access her account.
Eagle “is not claiming that she lost money because her computer was inoperable or because she expended funds to remedy damages to her computer. Rather, she claims that she was denied potential business opportunities as a result of Edcomm’s unauthorized access and control over her account,” Buckwalter said. “Loss of business opportunities, particularly such speculative ones as set forth in the Chatzky declaration, is simply not compensable under the CFAA.” He similarly found that Eagle’s claim about damage to her reputation didn’t rise to meet the standard.
Regarding Eagle’s Lanham Act claim, Buckwalter explained that she must show that she owns a legally protectable “mark” and that the defendants’ use of that “mark” would be likely to cause confusion. He detailed the test for determining the likelihood of confusion developed by the U.S. Court of Appeals for the Third Circuit in Interpace v. Lapp in 1983, often referred to as the Lapp factors. “Applying a modified version of the Lapp factors, the court finds no such likelihood of confusion in this case,” Buckwalter said.
The defendants didn’t try to “pass off” Morgan for Eagle on the LinkedIn page, he said. “There was only an approximate two-week span of time that Dr. Eagle’s LinkedIn account actually showed Ms. Morgan’s name and photograph, after which time the account was restored to Dr. Eagle. Such a brief period mitigates any possibility of confusion,” he said. Buckwalter also noted that Eagle’s failure to provide any evidence of actual confusion weighed against a finding of confusion.
Philip Hirschhorn of Buchanan Ingersoll & Rooney’s New York office represented the Edcomm defendants and said they feel the opinion was justified. Of the upcoming trial on the state claims, Hirschhorn said, “We’ll proceed accordingly.”
Eagle, who is representing herself, could not be reached for comment. She had, until April, been represented by Hangley Aronchick Segal Pudlin & Schiller in Philadelphia and Vandenberg & Feliu in New York. Buckwalter rejected Eagle’s argument that she was unable to produce necessary evidence due in part to being a pro se plaintiff, saying in a footnote, “Plaintiff was represented by two different sets of counsel — one from a well-established Philadelphia firm and one from a New York firm … and thus had the benefit of counsel’s advice throughout much of the litigation and discovery period.”