LinkedIn has become one of the preferred ways of corporate communication. Our own firm encourages us to maintain LinkedIn profiles and use them as a way of networking with clients and potential clients. That’s all well and good. But as with all public social media platforms, users – particularly corporate users – need to be careful to make sure that what is said is accurate, and not overblown. Remember that not just us, but lawyers for the other side, also use LinkedIn. Two recent cases piqued our interest in this topic.
In National Union Fire Insurance Co. v. Estate of Calendine, 2021 WL 4521901 (D. Colo. Oct. 4, 2021), the plaintiff asserted the defendant’s citizenship “on information and belief.” Taking that “to mean that plaintiff did not have affirmative knowledge of any of these defendants’ citizenship,” the court sua sponte questioned the basis for subject matter jurisdiction. Id. at *1. The plaintiff went to LinkedIn and attempted to use information from the defendant’s employees’ profiles against it. This attempt was unsuccessful because “[t]he allegations that plaintiff works in [the state] are based on screenshots from an unverified LinkedIn profile, which also do not establish intent to remain in [the state].” Id. The court cited two other decisions likewise “finding screenshots from Linkedin profile insufficient to establish citizenship.” Id. (citing Keita v. Barlow, 2021 WL 1748027, at *1 (D. Colo. May 3, 2021), and McLaughlin Group, Inc. v. Vac-Tron Holdings, Inc., 2020 WL 7640870, at *1 (D. Colo. Dec. 23, 2020)). Score one for the defense.
A day later, Zuzel v. Cardinal Health, Inc., 2021 WL 4552284 (E.D. Pa. Oct. 5, 2021), reached a somewhat conflicting result, relying on information from a LinkedIn profile to deny summary judgment to a defendant claiming not to be a “seller” of a product. The plaintiff pointed to the profile of an employee – questioning whether he worked for the defendant parent company, or a subsidiary. Id. at *5. The defendant rebutted with an affidavit from the employee “reaffirming that he is employed by [the subsidiary], not [the parent], and explaining that his LinkedIn profile lists [the parent] ‘for ease of reference and for networking purposes because [the subsidiary] is not a readily-recognizable entity.’” Id. Zuzel, however, found an issue of fact:
Plaintiff argues that the discrepancy between [the employee’s] interrogatory verification and LinkedIn profile, on the one hand, and his affidavit on the other, raises questions concerning his credibility . . . . The Court agrees that [the employee’s] previous statements indicating his affiliation with [the parent] raise questions about the credibility of his assertion that [the subsidiary] and [the parent] operated separately, including with their own employees.
Id. at *5-6 (citation omitted). Score one for the plaintiffs.
Hence, this take-home – when corporate separation matters, it also matters for corporate employees to be accurate on LinkedIn, and not to overstate things for any reasons, because plaintiffs look there, too. LinkedIn users who overstate their authority, or their relationship, with a corporate defendant do that defendant a positive disservice in litigation.
That’s what we found when we looked into the matter. Over and over, plaintiffs have resorted to LinkedIn in attempts to muddy the waters about both corporate domicile and corporate relationships.
As examples of the former – domicile related issues − the defendant lost on a venue motion in Virginia Innovation Sciences, Inc. v. Amazon.com, Inc., 2019 WL 3082314 (E.D. Tex. July 15, 2019), in part because of information on LinkedIn pages for it and its subsidiary tying it to activity in the relevant judicial district. Id. at *5 n.6. A similar loss occurred in City of Roseville Employees’ Retirement System v. Apple, Inc., 2021 WL 1176641 (N.D. Cal. March 29, 2021), where a corporate employee’s LinkedIn description of his duties led the court to conclude that he was a “general agent” for purposes of service of process. Id. at *12. See Philips Medical Systems (Cleveland), Inc. v. Buan, 2021 WL 1536173, at *9 (N.D. Ill. April 19, 2021) (employees’ LinkedIn profile supported “general manager” status for service of process; defendant offered no response on this point).
Conversely, the defendant won a similar motion in Ambriz Trading Corp. v. URALSIB Financial Corp., 2011 WL 5844115, at *6 (S.D.N.Y. Nov. 21, 2011), with a holding that “two vague LinkedIn pages that plaintiffs submit . . . are far too conclusory to establish that defendants actually maintain a presence” in the district. Id. at 85. See Universal Surface Technology, Inc. v. Sae-A Trading America Corp., 2011 WL 281020, at *2-3 (C.D. Cal. Jan. 26, 2011) (defendant’s employee’s LinkedIn profile did not establish employee as a “managing agent” for purposes of service of process).
Plaintiffs tend to be less successful in attempts to exploit LinkedIn information for jurisdictional purposes. For instance, in Pyure Brands, LLC v. Nascent Health Science LLC, 2019 WL 7945231, at *5 (S.D. Fla. March 5, 2019), several screenshots of the defendant’s employees’ LinkedIn pages failed to establish plaintiff’s alter ego allegations.
It is almost self-evident that this evidence is inadmissible . . .: it is unauthenticated and refers to another unauthenticated exhibit, it is double hearsay, and even if it were admissible, it provides no evidence that [the parent] and [the subsidiary] share employees. At best, it indicates that [one employee] stated on his social media that he worked for [the subsidiary] and provided a link to [the parent’s] website on his LinkedIn page, and that four self-described [subsidiary] employees described [the subsidiary] as a sales department of [the parent] on social media. [The parent] denies [these claims] and, as [it] points out, it does not and cannot control the activity of [the subsidiary’s] alleged employees on social media. Accordingly, the Court will not consider these exhibits and even if it did, would not find them to be persuasive evidence that [the parent] and [the subsidiary] share employees, let alone that [the parent] controls [the subsidiary.
Id. at *5. See Strasner v. Touchstone Wireless Repair & Logistics, LP, 210 Cal. Rptr.3d 16, 24 (Cal. App. 2016) (employee’s LinkedIn description of himself as “president” of a subsidiary insufficient to establish agency for purposes of jurisdiction); Apple, Inc. v. Allan & Assocs. Ltd., 445 F. Supp.3d 42, 54-55 (N.D. Cal. 2020) (rejecting plaintiff’s alter ego theory where “one LinkedIn post ‘treated’ [two entities] as the same company . . . and that [parent defendant] owned both companies”); Fischer v. United States Life Insurance Co., 2020 WL 8921010, at *3 (D.N.D. Nov. 12, 2020) (employees’ LinkedIn use of the parent defendant’s name “for branding and marketing purposes” insufficient to establish specific personal jurisdiction); National Steel Car Ltd. v. Greenbrier Cos., 2020 WL 4289388, at *4 (W.D. Tex. July 27, 2020) (employees’ LinkedIn affiliations insufficient to support corporate alter ego claim); Roman v. Affinity Worldwide, LLC, 2020 WL 8339208, at *4 (W.D. Mo. April 23, 2020) (“Without more than a screenshot from [the franchisor’s] LinkedIn page, the Court cannot find that Plaintiff has made a prima facie showing the listed individuals are employees of [the franchisor] − and not [a franchisee].”; personal jurisdiction denied); In re Del Valle Ruiz, 342 F. Supp.3d 448, 456 (S.D.N.Y. 2018) (defendant’s chief executive’s LinkedIn affiliations held insufficient, even with other contacts, to create general personal jurisdiction), aff’d, 939 F.3d 520 (2d Cir. 2019); Gourdine v. Karl Storz Endoscopy-America, Inc., 223 F. Supp.3d 475, 489 (D.S.C. 2016) (the “the wording of some former [defendant’s] employees’ Linkedin pages” insufficient to establish personal jurisdiction); Barantsevich v. VTB Bank, 954 F. Supp.2d 972, 985 (C.D. Cal. 2013) (defendant’s subsidiary’s LinkedIn page did not establish agency status for personal jurisdiction purposes). Cf. Commonwealth Science & Industrial Research Organization v. Real Communications, Inc., 2013 WL 12141420, at *3 (E.D. Tex. Sept. 18, 2013) (alleged “blur[ring] the line between the corporations online in their LinkedIn profiles” insufficient to establish personal jurisdiction, but justified allowing jurisdictional discovery), second motion to dismiss granted 2014 WL 12605377 (E.D. Tex. Aug. 8, 2014). But see PetroSaudi Oil Services, Ltd. v. Hartley, 617 S.W.3d 116, 126-27, 9 (Tex. App. 2020) (LinkedIn profiles of several of defendant’s employees, along with other evidence, supported finding of general jurisdiction); Concepts NREC, LLC v. SoftInway, Inc., 2021 WL 916259, at *5 (D. Mass. March 10, 2021) (LinkedIn descriptions of corporate subsidiary and its personnel featured prominently in decision to consider subsidiary an alter ego subject to personal jurisdiction); Johnson v. CL Medical SARL, 2016 WL 9665160, at *3 (C.D. Ill. July 15, 2016) (refusing to “overlook” claimed “imprecision” of LinkedIn descriptions and finding they supported specific personal jurisdiction); Ray v. Mechel Bluestone, Inc., 2016 WL 865322, at *4 (S.D.W. Va. March 2, 2016) (plaintiffs successfully relied on employee’s LinkedIn profile in meeting one factor of Warn Act control test), reconsideration granted in part on other grounds, 2016 WL 11670062 (S.D.W. Va. May 3, 2016).
The defendants still manage to win most of these cases, since most courts consider unauthenticated LinkedIn “evidence” to be unreliable hearsay. The main point, however, is that plaintiffs are attempting to take advantage of what almost always amounts to self-inflicted wounds. We defense counsel get involved only after the fact. Inaccurate, usually overstated, LinkedIn profiles always cost clients more in terms of defense costs, and sometimes result in critical lost motions. And the problem is only getting worse. Almost half of the cases we’ve cited in this post have been decided since 2020. We urge everyone on the defense side, particularly in-house, to take steps to ensure that LinkedIn descriptions are accurate, current, and not exaggerated in ways that harm the defense of litigation.