California Class Action Suit Alleges LinkedIn Violated Fair Credit Reporting Act (FCRA) By Providing Employers With Reference Reports

Allen Matkins Law Firm

Another interesting case filed in California recently highlights the myriad risks employers face when using social media as part of their hiring process.

A class action lawsuit was filed in the Central District of California against LinkedIn based on allegations that thereference reports LinkedIn generates for premium subscribers, including many employers, violate the Fair Credit Reporting Act(“FCRA”). According to the plaintiffs in Sweet, et. al. v. LinkedIn Corporation, an employer who is a premium subscriber can generate a report containing the names, locations, employment areas, current employers, and current positions of all persons in a user’s network who may have worked with a job applicant and also contact the applicant’s “references.” An employer, according to the allegations, can run such a “reference report” on a job applicant without the applicant receiving any notification whatsoever. Thus, as the complaint alleges, “any potential employer can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained.” The complaint claims this activity potentially violates both the FCRA’s purposes, which include safeguards as to the accuracy, fairness, and privacy of the information that a potential employer obtains, and the FCRA’s customer notification requirements.

This latest lawsuit against LinkedIn serves as another example of the complex legal issues and risks that an employer faces when using social media to make recruiting and hiring decisions.

© 2010-2014 Allen Matkins Leck Gamble Mallory & Natsis LLP
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How to Build Trust Online by Being Human

The Rainmaker Institute

All you have to do is troll your own Facebook or LinkedIn account to know that there is LOTS of content online.

In fact, a recent post at Buffer.com noted that more content is published every day on Facebook than is found in every book published in human history!

Building Blocks with Trust

So how do you stand out from that enormous crowd and earn the trust you need to succeed with your social media marketing program?  Buffer provides these tips:

Use personal pronouns.  Using personal pronouns in your posts — I, we, you, me, etc. — and being more conversational elicits empathy from an audience, getting  you a better response.

Use simple words.  By using simple words, you can convey your idea in a way that people don’t have to think about before understanding it.  Big words and legalese will tend to alienate people, not draw them in.

Use stories.  Since the beginning of time, humans have communicated by telling stories and the propensity to listen to a story is ingrained in our DNA.  A Buffer study showed that adding a story to your blog post can increase readership by 300%.

Use contemporary culture references.  Weaving a pop culture reference or two into your post, especially if you’re able to add a celebrity name or two like Beyoncéor George Clooney (see how I did that?), helps boost readership and interest.

Use the Shaq Rule.  Shaquille O’Neal is a social media powerhouse, with a Twitter following of 8.5 million and 4.7 million Facebook fans.  His rule for posting is that 80% of his posts must be entertaining, 15% must be informative and only 5% should sell something.  People can sniff out a sales pitch online immediately, and just as quickly they are on to the next thing.

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LinkedIn for Lawyers: How to Double Your Connections in No Time [INFOGRAPHIC]

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If you practice business law of any type, then you should know by now that you need to be on LinkedIn.

But just like being on a treadmill without turning on the power won’t budge your waistline, “being on” LinkedIn is not enough to get you any benefit from this fantastic social media platform for business.  You have to be active!

The infographic below from WhoIsHostingThis.com shows you how you can double your LinkedIn connections in just five minutes a day.  Specifically, you need to:

  • Send an invitation to at least one new connection a day
  • Participate in relevant LinkedIn discussion groups at least once a week
  • Ask people you know to endorse you
  • Share your blog content, an article, a video or a presentation
  • Add a link to your LinkedIn profile to your email signature and post on your social media profiles
  • Keep your profile updated

LinkedIn Connections

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How LinkedIn Publishing Could Kill The Law Blog

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For one brief, bright, shining moment in the history of mass human communication, everyone had the ability to talk to everyone else and no corporate gatekeeper was not in control. In that moment — after the mass media no longer decided whose message would get through and before the social networks truly took over — you could hear and choose to listen to anyone who had something real to say.

It might be time to say goodbye to all that. But that goodbye comes in the form of a great opportunity for you to distribute your legal content to a huge business audience. LinkedIn has become a content aggregator, one that boasts the power of 275 million business people. LinkedIn is a social network where two-thirds of corporate general counsel go to gather business information on an at least weekly basis. Publishing a very timely and relevant piece of legal content on LinkedIn’s publishing platform can get you more qualified business eyeballs than you dreamed possible, and more comments than you’ve ever seen on your blog in a month of Sundays.

With the entrance of LinkedIn to the content aggregation world, your blog might start to look like a ghost town. Publishing that blog post on LinkedIn generates views, shares and likes that have the power to outstrip what your blog delivers. This is where the people are, and they no longer have to click through on a shortened link – the article is right there on LinkedIn for them to review.  If your goal is to have your content read by relevant audiences (and it has to be), then you must master publishing on LinkedIn, National Law Review, JDSupra, and possibly Mondaq and Lexology. And by doing so, you might kill your own blog. Its either that or let that your content die of loneliness.

This trend has more implications than I can explore in a single blog post, the most important of which are:

  1. What does this mean for your Google juice? Blog posts done right mean that you are providing an answer to the most pressing questions your potential clients are asking of search engines. Now, will the answer to those pressing questions lead those potential clients to your articles on LinkedIn rather than to your blog?
  2. If your article, published on LinkedIn, shows up in Google or Bing search results, will potential clients find the information they need to choose you as a lawyer on LinkedIn? Will your LinkedIn profile be what it should be? How’s your LinkedIn company page? Because those two things just got a lot more important!

I loved it when a law blog was a destination, but I’m a modern girl, and I think this is the next wave. What was originally called blogging has recently been re-named content creation because it is about the writing, not about publishing it to your blog. So I suggest you get onto the content aggregators and join me in a lament for the brief moment that was all about blawgs. We loved them, but it’s time to expand our thinking.

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How a Lawyer can Start a Successful LinkedIn Group for Business Development (Part 2 of 3)

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In my previous post, we looked at some preliminary steps attorneys can take to plan a LinkedIn Group. Once you’ve laid this foundation, it’s time ask yourself three questions:

LinkedIn

  • Has the niche you seek to fill with your group been addressed by existing, active groups?
  • Is the focus of your group going to be broad enough to attract a reasonable amount of participants, while being narrow enough to attract your target audience?
  • Are you able to commit to starting meaningful discussions on a daily or weekly basis, encouraging group members to participate in the conversation and removing posts that are spammy or overtly sales-oriented? (This is your last chance to back out!)

Now that you are ready to take the plunge, you’ve got some housekeeping items to attend to:

1. Develop a Strategy

Draft a brief outline of your group’s focus, target audience and goals (both for the group and for yourself). State some objectives for the group, such as, “Inform members of timely news and events” or “Enhance the interaction among professionals in this industry.” Your outline should include a content plan that identifies, for example, the types of timely issues and events your group will track. Identify how you will track this information. Put as much detail into your group plan as you can prior to launching it, to ensure that you have a clear roadmap to guide your efforts.

2. Name Your Group

LinkedIn Groups are used to attract and coalesce like-minded people, so the group name should reflect the interest area. The name is also important as a search term – what words will your target audience type to find your group? Spend some time searching LinkedIn Groups to see what is already being used and what would work best for your group. Also, keep it under 54 characters – if it’s any longer, the title will get cut-off in a search.

3. Get a Logo

A logo is a key element in presenting your group as a professional entity. If you have an in-house designer, talk with him about your group and share your strategy so he can design something appropriate. If you don’t have an in-house designer, ask around for a freelancer. This process shouldn’t take long, but it will go a long way toward giving your group an identity.

4. Create Your Group

When you create your group on LinkedIn, you’ll not only want to have your logo ready to upload, but you’ll also want to post a group summary and a list of group rules for members to refer to.

5. Finally – Invite Contacts to Join!

  • Use your existing network to build an initial membership base. Invite coworkers, past colleagues, and clients (who fit the group’s profile) to join the group. LinkedIn will allow you to send out up to 50 announcements per day to your connections.
  • As manager of the group, regularly support group members who start, and contribute to, discussions. Do this by commenting, liking and sharing their posts.
  • It is permissible to visit similar groups of which you’re a member and mention your group. Politely compliment the group and then mention that you’ve got another group that members in your group’s niche may want to consider joining.

This is the second post in a three-part series detailing how lawyers can start successful LinkedIn Groups to foster their business development efforts. For Part one, click here.

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Aileen M. Hinsch

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Knapp Marketing

How a Lawyer can Start a Successful LinkedIn Group (Part 1 of 3)

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Enter LinkedIn Groups.

I recently worked with an attorney who had identified a missing opportunity in his market. He was a member of real estate-related LinkedIn Groups, and he actively participated in these groups, but the groups weren’t focused on his local market. Knowing that his hometown had a thriving real estate community and its own specific issues (it’s a well-known tourist destination), he started planning his own group for local real estate professionals. With careful planning and maintenance, he saw his group grow to over 150 professionals in just 30 days, and he even picked up a new matter from a group member during this time. Cha-ching – SUCCESS!

So what did this attorney do to lay the foundation for a thriving group?

1. Research

This attorney researched the current LinkedIn groups for real estate as well as professionals of all industries within his local market. He made sure that his group would fill a void in the market, and he also reviewed the membership of other groups to confirm that his target audience was participating in these other LinkedIn groups – hoping to eventually lure them to his by providing a valuable network.

2. Planning

He understood that he would need to invite his own contacts to get the group up and running. Months before launching the group, he began building and categorizing his LinkedIn contacts by region and industry. He set aside time to do this every day for several months so he would have the quantity of contacts needed to start the group as well as having earmarked the appropriate contacts to invite. Put simply, he identified his target audience.

3. Participation

You know the saying, you need to walk before you can run? It’s true for starting a LinkedIn Group, too. Our attorney set aside an hour each Friday to post articles to groups he had already joined, as well as to his entire network. He also participated in discussions within these groups. This helped him to get used to the ongoing commitment required of managing a LinkedIn group, and it also educated him as to what works best in terms of providing quality content that spurs group conversations.

4. Enthusiasm

As I worked with the attorney on these initial steps, he reminded me of something that we all need to remember. Active, ongoing participation in anything – whether for business or pleasure – requires that you enjoy it. If you dread logging in to LinkedIn, then starting a group isn’t for you. But if you think this may start to “get a little bit fun,” as he did, then you know you are on the right path.

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Aileen M. Hinsch

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Knapp Marketing

How Lawyers Can Leverage LinkedIn to Build Their Practice, Part 2 of 2

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Continuing from our previous post, here are 5 more tips for leveraging LinkedIn to build your client and referral base:

5Include All Your Web Links. You can add up to three links to your firm’s websites. There are default settings, but these are also customizable. So instead of www.TheRainmakerInstitute.com, I customized it to say “law firm marketing experts”, but it still links to my website. This is another place where you should use your keywords like: “Scottsdale bankruptcy attorney” or “Chicago divorce lawyer” and link it to your website, blog or even your Facebook fan page.

6. Make Your Profile Public. Remember, it’s called “social media” for a reason—you need to be social. Be sure to make your LinkedIn profile “public”, which means all the information you put in it is available to search engines to make it easier for people to find and connect with you.

7. Don’t Use The Same Copy For Your Summary As Your Bio. The summary is not a place to talk about all the things you have done in your life. This is the place to position yourself as the go-to attorney in your particular practice area and geographical region.

8. Use LinkedIn Groups. LinkedIn Groups can be a very effective way to increase your visibility among niche audiences, like your target market. It takes a little while to get used to how this works. I recommend you start by ‘listening’ before diving in. There are some places you should start with, such as alumni groups and groups in the industry segments you follow. We run several LinkedIn groups you can join for free including: Phoenix Arizona Attorneys, Personal Injury Attorney Network and the Rainmaker Law Firm Marketing Group. Simply log into your LinkedIn account and search under groups. Once you understand how groups work, start your own focusing on your target market or potential referral sources (like CPAs, financial advisors or business brokers).

9Add LinkedIn To Your Email Signature. Most attorneys put their contact information in their email signature; add a link to your LinkedIn account. Here’s mine: http://Rainmaker.MyLinkInvitation.com. I would welcome the opportunity to connect with you on LinkedIn.

LinkedIn Logo

As soon as you start networking with LinkedIn, you increase your chances of reaching new clients and referral partners. However, be prepared, and be willing to work at it. This is not something you can “set and forget”.

If you’re not into social media or can’t make the commitment to put in the time and effort to network in several sites at the same time, this is the ONE social media site you should focus on. You may not see it at first, but with the combined use of the strategies and tips I have shared here, you will start to see your online network mature over time, leading to more prospects and referral partner relationships.

To read Part One – Click Here

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Stephen Fairley

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The Rainmaker Institute

How Lawyers Can Leverage LinkedIn to Build Their Practice, Part 1 of 2

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I think we can all agree that building long-term, meaningful and influential relationships is foundational to a successful legal practice. People don’t hire law firms; they hire an attorney. The more people you connect with, the more opportunities you have to build meaningful relationships, and the more potential clients you can generate.

With over 225 million members in over 200 countries, LinkedIn has quickly become THE ‘go to’ business-to-business directory and the most popular social networking platform dedicated to professional business development.

Here are some of the top tips from attorneys who have used LinkedIn to their advantage and know they have gained new clients from its smart use:

1. Complete Your Profile! You must commit to do this. You can’t ever hope to get the benefits without this. Put in as much information about yourself as you can. Use the same keywords and phrases prospects would use to search for an attorney in your practice area on Google.

Sometimes just where you went to college or law school can drive business or referrals to your firm. I know plenty of attorneys who have generated referrals because they went to the same school as someone else on LinkedIn, or grew up in the same hometown. Creating a shared reality with a prospect can be a powerful step toward acquiring their business. Also, certain applications with LinkedIn require that your profile be at least 50 – 75% complete in order to benefit from them.

2. Upload A Photo. Don’t be shy here. Don’t think about whether it’s right or wrong, just do it. A profile with no picture is a bad thing. LinkedIn is a social network for business professionals so your photo should convey that. Stay away from the photo of you on the golf course or holding a glass of wine. If you don’t have a professional headshot, they are available from any photography business for a nominal fee.

3. Use The Headline Below Your Profile To Make People Want to Know More.

linkedin profile

When you set up your profile, LinkedIn uses your name, title or position as your headline, but you can edit this to make it more powerful. Try to think of your headline as your professional tagline. You have the opportunity to describe the type of attorney you are and the type of work you are currently doing. Do not make the mistake of listing more than two areas of law here, as you want to appear as a specialist. Specialists generate more referrals than generalists. Remember the phrase, “jack of all trades, master of none!”

4. Use The “Sharebox” Often. If you want to see the social power of LinkedIn, this is where you will find it. This area of LinkedIn allows you to add a brief update of what you are doing, any new professional certifications you have received, interesting cases or any other information you feel comfortable sharing. This is not a ‘chat’ site; it is for information that is professionally relevant.

In tomorrow’s post, I will share 5 more tips for leveraging LinkedIn to build your client and referral base.

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Stephen Fairley

Of:

The Rainmaker Institute

Locked Out of LinkedIn: A Federal Court Opens the Door To Employer Liability

Recently an article by Jessica A. Burt of Drinker Biddle & Reath LLP regarding LinkedIn was featured in The National Law Review:

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The U.S. District Court for the Eastern District of Pennsylvania determined this week inEagle v. Morgan, et al., that a terminated employee who was locked out of her LinkedIn account by her employer suffered no legal damages despite successfully proving claims for unauthorized use of her name, invasion of privacy by misappropriation of identity, and misappropriation of publicity.  The district court previously dismissed Dr. Eagle’s federal claims under the Computer Fraud and Abuse Act and the Lanham Act, and retained jurisdiction over the remaining state law claims.

Dr. Linda Eagle, a former founder and executive of Edcomm, Inc., a banking education company that provides services to the banking community, created her LinkedIn account using her Edcomm e-mail address.  Edcomm did not require its employees to create LinkedIn accounts, nor did it pay for accounts if employees created them.  At the time of Eagle’s termination, Edcomm had no policy in place informing its employees that LinkedIn accounts were the property of the employer.  Eagle shared her LinkedIn password with several Edcomm employees to update her account and respond to invitations.  Following her termination, Edcomm employees accessed Eagle’s LinkedIn account, changed her password, and updated the account with her successor, Sandi Morgan’s picture and personal information.  However, Edcomm failed to change the homepage’s URL to remove Eagle’s name and likewise failed to remove Eagle’s honors and awards section.  Edcomm had full control of the account for approximately 16 days.  LinkedIn subsequently took over the account, and Eagle regained access approximately one month after Edcomm changed her password.  Eagle filed suit against Edcomm and several employees shortly thereafter alleging illegal use of her LinkedIn account.

With respect to Eagle’s claim for unauthorized use of her name, the Court stated that when Edcomm had control of Eagle’s account, an individual conducting a search on Google or LinkedIn for Dr. Eagle would be directed to a URL for a LinkedIn web page showing Sandi Morgan’s name, profile, and employment with Edcomm.  Specifically, the Court noted that when an individual searched for Eagle, he or she would unknowingly be put in contact with Edcomm despite the fact that Eagle didn’t work there anymore.  The name “Dr. Linda Eagle” had commercial value due to Eagle’s efforts to develop her reputation, and Edcomm therefore received the commercial benefit of using her name to promote the service of its business.

The Court similarly found that Eagle successfully proved her claim against Edcomm for invasion of privacy by misappropriation of identity because Edcomm maintained the LinkedIn homepage under a URL that contained Eagle’s name.  Despite the fact that Edcomm updated the LinkedIn homepage with Sandi Morgan’s profile information, the URL still contained Eagle’s name and the Court held that her name had the benefit of her reputation and commercial value.

Additionally, the Court entered judgment in Eagle’s favor on her claim for misappropriation of publicity because she maintained an exclusive right to control the commercial value of her name and to prevent others from exploiting it without permission.  The Court held that Edcomm deprived Eagle of the commercial benefit of her name when it entered her LinkedIn account, changed her password to prevent her from accessing it, and altered the account to display Sandi Morgan’s information.  The Court noted that Edcomm took these actions instead of creating a new account for Sandi Morgan.

Despite her success on three causes of action, the Court determined that Eagle was not entitled to any compensatory or punitive damages.  The Court was not persuaded that Eagle established with reasonable certainty she had lost any sales, contracts, deals, or clients during the period she could not access her LinkedIn account.  Eagle offered the testimony of Clifford Brody, the co-founder of Edcomm, to provide an analysis of her damages.  His calculation was based on Eagle’s average sales per year divided by the number of contacts she maintained on LinkedIn to arrive at a dollar figure per contact, per year.  The Court referred to this method as “creative guesswork” and highlighted the fact that there is a chance that even with full access to her LinkedIn account, she would not have made any deals or signed any contracts with her LinkedIn contacts.  In denying her claim for punitive damages, the Court stated that Eagle failed to call a single witness to offer evidence regarding Defendants’ state of mind or the circumstances surrounding these events.

The Court entered judgment in favor of Defendant Edcomm, Inc. with respect to Eagle’s claims for identity theft, conversion, tortious interference with her LinkedIn contract, civil conspiracy, and civil aiding and abetting.  Judgment was entered in favor of the individual defendants with respect to all of Eagle’s claims, including the claims mentioned above that she successfully proved against Edcomm.  In October 2012, the District Court dismissed Eagle’s federal claims under the Computer Fraud and Abuse Act and Lanham Act as to all defendants.

This case presents another stepping stone in the continuously changing world of social media law.  While employers do have legitimate  concerns about LinkedIn accounts with information that identifies clients’ key decision makers and a company’s strategic business relationships, preventing former employees from accessing their accounts without their consent exposes employers to damages if a former employee can proffer evidence of a lost or misdirected sale or deal. However, there is nothing in the Eagle v. Morgan opinion that restricts an employer’s ability to have employees remove customer names from their LinkedIn accounts before departing from the company.  In fact, courts have recognized that employers do have protectable rights in this information.  For example, in TEKsystems Inc. v. Hammernick, et al., the plaintiff alleged that its former employee’s use of LinkedIn to connect with former colleagues and clients violated the parties’ noncompete/nonsolicitation agreement. In that case, the Court entered a Consent Order for Permanent Injunction prohibiting the former employee from soliciting or contacting the company’s customers for a period of 12 months.  Also, in Coface Collections North America, Inc. v. Newton, the Third Circuit affirmed the district court’s entry of a preliminary injunction against the company’s former owner who, among other things, used LinkedIn to compete with his former company in violation of a restrictive covenant.   

©2013 Drinker Biddle & Reath LLP

LinkedIn Password Theft Results in Class Action Lawsuit: Privacy and Security Law Matters

The National Law Review recently published an article by Kevin M. McGinty of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding The Recent Hacking of LinkedIn:

Nearly as predictable as the sun coming up in the morning, the recent theft of 6.5 million LinkedIn user passwords has resulted in the filing of a class action lawsuit in a California federal court.  In her complaint, a LinkedIn premium subscriber asserts claims on behalf of all LinkedIn users for breach of implied and express contractual obligations, negligence and violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200.

Although the attack affected the passwords of just over 5% of LinkedIn’s approximately 120 million users, plaintiff purports to assert claims on behalf of all LinkedIn users.  Although plaintiff alleges classwide damages in excess of $5,000,000 (the jurisdictional threshold for federal court jurisdiction over the state law claims advanced in the complaint) it is unclear what damages plaintiff alleges that the class actually sustained by reason of merely losing passwords.  Some commentators have hypothesized that the propensity to use a single password for multiple online accounts could result in losses where non-LinkedIn accounts are accessed using an individual’s LinkedIn password.

Proving that such losses have occurred, however, would require highly individualized showings that would likely preclude adjudicating plaintiff’s claims as a class action.  Even less clear is what conceivable damages were allegedly sustained by LinkedIn users whose passwords were not stolen.  Thus, as with most privacy class actions, damages issues appear to pose the greatest obstacle to the success of the claims against LinkedIn.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.