ex-employee's Glassdoor post wasn't commercial advertising or promotion

Schabacker v. Ferens, 2024 WL 710632, No. 22-3778 (E.D. Pa. Feb. 21, 2024)

ECRI and its CEO sued Ferens, a former ECRI employee, for various things including defamation, IIED, violations of trade secret law, and Lanham Act false advertising. ECRI provides healthcare products and services; Ferens was a former high-level ECRI employee who served as Area Vice President until his 2021 termination. His severance agreement required him, among other things, to “refrain from disparaging, criticizing, impugning, damaging, or assailing the reputation of ECRI and its employees and officers,” in exchange for twenty weeks of severance pay.

One month after executing the agreement, Ferens allegedly posted a review on Glassdoor.com, a job and recruiting website where current and former employees anonymously review companies: “Cons -- CEO is now being accused of sexual harassment. This guy is a train wreck that has destroyed the culture in the 3 years he has been here. Sales stink. People are leaving.” Ferens posted anonymously but then acknowledged that he made the post and voluntarily took it down four days later. This was the only conduct relevant to the Lanham Act claim.

The Glassdoor review was not “commercial advertising or promotion.” The post wasn’t an ad, didn’t promote a product, and wasn’t part of a proposed commercial transaction. “Reviews and ratings are not usually considered to be commercial speech actionable under the Lanham Act.” (The post could still be defamatory, though; whether it was substantially true was disputed because a jury could decide that a salesperson’s contemplation of filing suit/enlisting an attorney to negotiate severance etc. over behavior that caused her discomfort made “accused” true, or not.)