Reed Smith Client Alerts

Ninth Circuit declares that selectively banning potential competitors from accessing and using public data “may well be considered unfair competition under California law.”

Authors: Gerard M. Stegmaier Christopher R. Brennan Michelle A. Mantine Gregory D. Vose

On September 9, 2019, the Ninth Circuit Court of Appeals issued a decision that could have broad implications for the role of antitrust laws in the privacy sphere. In hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783, 2019 WL 4251889 (9th Cir. Sept. 9, 2019), a Ninth Circuit panel affirmed the district court's grant of a preliminary injunction in favor of hiQ, which prohibited LinkedIn from denying access to publicly available data on LinkedIn profiles.

hiQ, described by the Ninth Circuit as a competitor to LinkedIn, is a data analytics company that "scrapes" data using automated bots from public LinkedIn profiles. hiQ then uses this data to develop corporate analytics tools (such as a tool that predicts when an employee might leave for another job) that it later sells to human resources departments. Recently, LinkedIn began to leverage the data available on its users' profiles and announced a corporate analytics tool of its own, Talent Insights, that provides businesses with data about potential employees with the skills those companies are seeking.