Can Parties Use Social Media to Provide Class Notice?

social media_class noticeLooks like it.  Courts are becoming more tolerant of social media sites, such as LinkedIn, Twitter, and Facebook, being used to assist with the class notice process.  Recently, a federal judge in New York, U.S. District Judge Alison Nathan, granted the request of former Gawker interns to notify potential class members, whose mailing addresses or email addresses were unknown, via social media.  Mark, et al. v. Gawker Media LLC, et al., No. 1:13-cv-04347 S.D.N.Y.).

In Gawker, two former interns filed suit against the news and gossip blog under the Fair Labor Standards Act for failure to pay them during their internships.  As I explained in a prior post, the FLSA was enacted to establish minimum wage, overtime pay eligibility, record keeping, and child labor standards.  FLSA cases are typically brought as collective actions, which means that, unlike Rule 23 class actions, employees (and former employees) must opt in.  29 U.S.C. §216(b).  To notify putative members of their right to opt in, the named plaintiffs requested that the Court permit them to use Facebook, LinkedIn, and Twitter, in addition to traditional notification platforms (e.g., direct mailing and publication).

Judge Nathan found that the plaintiffs' original notification plan was overbroad.  For example, plaintiffs wanted to create pages on Tumblr and Reddit to publicize the lawsuit.  The Court explained that, because the purpose of FLSA notice is to inform putative class members and not to publicize the lawsuit generally, this type of notice was not sufficiently tailored to the intended audience.

Judge Nathan also found that the plaintiffs' proposed use of Facebook went too far.  Plaintiffs are not permitted to "friend" potential class members to notify them of the lawsuit and their right to opt in.  Instead, plaintiffs may "follow" potential class members on Twitter and send private messages relating to the lawsuit, or send "InMail" via LinkedIn.  If the individuals who plaintiffs follow on Twitter fail to opt into the suit by the Court's deadline, then plaintiffs must un-follow those individuals.  In other words, Judge Nathan was careful to balance the purpose of notification with individuals' privacy rights, as well as with defendants' rights not to have their alleged violations broadcast over the Internet.

No case has yet to permit social media to serve as the only vehicle by which notice is provided.  Rather, it has served as a supplement to traditional class notice options, including direct mail, publication, and email.  This should not be surprising because social media is cost effective and an efficient means to reach a broad audience.

Of course, social media is not without its pitfalls.  Defendants (and lawyers for defendants) that find themselves on the wrong side of a class or collective action should be wary of social media used as part of the class notice process.  No company wants a litany of lawsuits to pop up in Google search results for a certain product or service.  Often, defendants find themselves subject to unintended negative publicity when social media is used as part of a class action.  Notice is not intended to punish the defendant; rather, it is to apprise putative class members of his or her rights.  Therefore, it is important to take care to define appropriate limits of class notice, communicate regularly with any notice administrator retained, and inform your judge as to the pros and cons so that she may make a reasoned and balanced decision.

About The Author

Erin Rhinehart | Faruki Partner