Social Media is a powerful marketing tool, and as its use becomes more widespread, courts grapple with legal issues regarding its use.  A recent decision by the Second Circuit, JLM Couture, Inc. v. Gutman, 24 F.4th 785 (2d Cir. 2022), held that a non-compete with a famous designer of bridal gowns was valid under New York law, and that plus the accompanying trademark assignment precluded her acting as an “influencer” on social media when she left the company.

Hayley Paige Gutman, known as Hayley Paige, is a bridal designer and social media influencer. She signed an employment agreement with JLM Couture, Inc., which was extended through 2022.  Together, Gutman and JLM have designed, manufactured, and marketed a successful line of bridal wear generating $220 million in sales of “Hayley Paige”-branded apparel.  Her employment agreement contained both a non-compete provision and a provision granting JLM rights over her name and trademarks.  She later left the company, and promoted other brands on both her social media accounts and at trade shows.

​The Second Circuit held that the covenant was valid under New York law, because it was generally reasonable, and because Gutman’s services were “special, unique or extraordinary.”  It also held that the assignment of Gutman’s name Hayley Paige, as well as associated trademarks, precluded any use on social media, especially to promote fashion products.  It accordingly affirmed the lower court’s preliminary injunction barring these actions under the Hayley Paige name.

​New York, like many states, has an anti-SLAPP statute, Civil Rights Law § 70-a, which allows for recovery of attorney’s fees and costs by defendants in cases “involving public petition and participation.”  A recent Appellate Division decision, Robbins v. 315 W. 103 Enterprises LLC, 164 N.Y.S.3d 823 (1st Dept. 2022), held that 311 phone calls made by the plaintiff complaining about construction at a neighboring site did not qualify, as they did not concern any public matter.  The defendant was represented by Steven A. Weg of Koffsky Schwalb.

In 2017, the defendants sued Robbins asserting claims for defamation based on five 311 calls he allegedly made to complain to the Department of Buildings (DOB) about defendants’ construction project next door. Plaintiff allegedly complained that defendants violated stop work orders, removed a posted DOB order, and caused damage to his property. The suit was discontinued.

​Robbins then brought suit under the New York anti-SLAPP law.  The Appellate Division affirmed dismissal of his case because he had failed to allege any connection between his 311 calls and the owner’s construction application or other attempts to obtain government approvals.  Instead, they were merely general complaints concerning the building construction next door, which did not involve matters of “public petition and participation.”