This piece first appeared in BakerHostetler’s Employment Class Action Blog
Social media has dramatically impacted many areas of law, and class and collective action litigation is no exception. Recently, a number of former interns who sued Gawker Media LLC and its owner Nick Denton (Gawker) for wage and hour claims repeatedly sought court approval to distribute court-authorized notice of the action through social media.
The plaintiffs claimed that Gawker, an online media company and weblog network, violated the Fair Labor Standards Act (FLSA) and New York State Labor Law by failing to properly pay its interns the minimum wage and by failing to maintain proper records. The action was originally filed on June 21, 2013, and was conditionally certified under the FLSA on August 15, 2014. We initially blogged about this case on August 20, 2014.
Beginning November 3, 2014, the court permitted the plaintiffs to propose forms of notice that would be provided to potential opt-ins via social media. But the plaintiffs’ first plan was denied. [See Case No. 1:13-cv-04347 (S.D.N.Y.), Order of 3/5/15.] The plaintiffs had proposed the use of Twitter, LinkedIn, Reddit, Facebook, and Tumblr with requests based on each site’s capabilities.
In rejecting the plan, Judge Alison Nathan found the proposals “substantially overbroad for purposes of providing notice to potential opt-in Plaintiffs, and much of Plaintiffs’ plan appears calculated to punish Defendants rather than provide notice of opt-in rights.”
Judge Nathan also found that the proposal to post notices on websites like Reddit and Tumblr and on “r/OccupyWallStreet” and “r/Progressive” pages “lacks any realistic notion of specifically targeting its notice to individuals with opt-in rights, and instead would call attention to the lawsuit mostly of individuals with no natural connection to the lawsuit whatsoever.”
The plaintiffs’ proposed use of Twitter, LinkedIn, and Facebook was also “overbroad.” The court had intended that the social media notices would follow the content of standard notices sent in FLSA cases. Yet certain of the plaintiffs’ proposals were “shot through with attempts to send public-facing notices such as general tweets rather than direct messages, or publicly accessible groups they cease to parallel other forms of notice” that the court approved. In a footnote, the court stated that while the plaintiffs drew parallels to consumer class actions, within the opt-in class there was a “fixed universe of former Gawker interns.”
On April 9, the plaintiffs submitted a revised application, which the court generally approved with two exceptions that corresponded to the defendants’ objections. The defendants objected to the plaintiffs’ request to disseminate notice to all individuals appearing on the list of Gawker internship applicants. The court denied this request because there was no evidence that any of the individuals actually became Gawker interns. Judge Nathan found that the plaintiffs’ revised request was generally tailored to provide a similar message as traditional notices and “no longer presents the danger of simply advertising a lawsuit against Defendants . . . .”
The defendants substantially agreed to the plaintiffs’ revised plan but were concerned with “two small details.” First, they asked that the plaintiffs be directed to “unfollow” any interns on Twitter when the opt-in period ended, unless the individuals had opted in to the action. Second, they requested that the plaintiffs not be permitted to “friend” individuals on Facebook because it would create an improper impression of the individual’s relationship with the plaintiffs’ counsel.
The court agreed that these concerns were valid to make sure the use of social-media notice followed traditional principles pertaining to FLSA opt-in notices.
The recent filings in Gawker illustrate several trends in communications with potential class members. First, courts are recognizing the communication value and potential utility of social media. Second, those courts also recognize the problems presented by potential abuse of that social media.
So, while the Gawker court permitted the use of social media, Judge Nathan also enforced requirements to keep it from being used to punish the defendants, improperly publicize the action, or create misunderstanding regarding the relationship between the plaintiffs’ counsel and notice recipients.
Bottom Line:
Some courts may consider permitting social media to be used as notice to potential opt-ins under the FLSA, but only after imposing substantial restrictions to prevent misunderstandings or abuse.
John B. Lewis is a partner at BakerHostetler. He concentrates his practice on the resolution of complex employment, labor and regulatory disputes, including the defense and oversight of class action litigation. The majority of John’s time is devoted to litigation, appellate practice and alternative dispute resolution procedures involving federal and state anti-discrimination, wage and hour and fair housing laws, the Railway Labor Act, the Civil Rights Acts, the Federal Reserve Act, the Sarbanes-Oxley Act, the Federal Railroad Safety Act, the Employee Retirement Income Security Act and wrongful discharge, individual employment contract, trade secret, non-competition and work-related tort claims.
