bankers Life & casualty co. v. American senior benefits llc
2017 IL App (1st) 160687 (2017)
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Rule of Law:
Sending a generic request to connect on a professional networking site, such as LinkedIn, does not constitute solicitation in violation of a non-solicitation agreement. The substance of the communication, rather than the medium, determines whether it is an improper solicitation.
Facts:
- In 2004, Bankers Life and Casualty Company hired Gregory P. Gelineau as a branch sales manager for its Warwick, Rhode Island office.
- In 2006, Gelineau signed an employment agreement containing a non-solicitation clause, prohibiting him from inducing Bankers Life employees within his former territory to leave the company for 24 months after his employment ended.
- Gelineau's employment with Bankers Life ended on or about January 15, 2015.
- After leaving Bankers Life, Gelineau was hired by a competitor, American Senior Benefits LLC (ASB), as its senior vice president.
- Gelineau sent generic LinkedIn connection requests from his account to three Bankers Life employees who worked in the restricted Warwick, Rhode Island office.
- Gelineau's public LinkedIn profile page contained a job posting for a position with his new employer, ASB.
- In text messages to another ASB employee about recruiting, Gelineau stated he would “linkin[sic] with agents from their offices and see where it leads,” but none of the potential recruits mentioned were in the restricted Warwick, Rhode Island area.
Procedural Posture:
- Bankers Life and Casualty Company filed a complaint for breach of contract against Gregory G. Gelineau and others in the Circuit Court of Cook County, Chancery Division (the court of first instance).
- Gelineau filed a motion for summary judgment, arguing he did not breach the contract.
- Bankers Life filed an opposition to the motion and submitted an affidavit requesting additional discovery under Illinois Supreme Court Rule 191(b).
- The circuit court denied Bankers Life's request for additional discovery.
- The circuit court granted summary judgment in favor of Gelineau.
- The circuit court's judgment was made final and appealable.
- Bankers Life, as Plaintiff-Appellant, appealed the circuit court's order to the Illinois Appellate Court, First Division, with Gelineau as Defendant-Appellee.
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Issue:
Does sending generic LinkedIn connection requests to employees covered by a non-solicitation agreement, which may lead them to a public job posting on the sender's profile, constitute an inducement or an attempt to induce them to leave their employer in breach of that agreement?
Opinions:
Majority - Justice Simon
No. Sending generic electronic invitations to connect on a professional network does not breach a non-solicitation agreement because it is the substance of a message, not the medium, that determines whether it qualifies as a solicitation. The court reasoned that Gelineau's LinkedIn requests were generic and did not contain any discussion of ASB, mention of job opportunities, or any language suggesting the recipients should leave Bankers Life. Citing cases like BTS, USA, Inc., the court distinguished this passive activity from active solicitation found in cases like Amway Global, where a former employee directly urged others to leave. The court found that Gelineau could not be held responsible for the employees' independent actions of clicking on his profile and viewing a publicly available job posting. Similarly, the court found no evidence that Gelineau directed his subordinate, Mark Medeiros, to recruit within the prohibited territory, and thus no breach occurred through the efforts of others.
Analysis:
This decision provides important guidance on how traditional non-solicitation clauses apply to modern social media platforms like LinkedIn. It establishes that merely connecting with former colleagues or having a public job posting is not, by itself, a breach of contract. The ruling sets a precedent that plaintiffs must demonstrate more than just generic contact; they need to show evidence of active, targeted communication aimed at inducing an employee to leave. This may compel employers to draft more specific contractual language regarding social media interactions if they wish to prohibit such activities post-employment.
