Regardless of whether a class is opt-in or opt-out, providing class notice is a challenge. As technology evolves, so does the ability to reach class members who would otherwise be unreachable. But as attorneys increasingly seek to utilize non-traditional methods of class notification, such as Facebook, Twitter and LinkedIn, courts have struggled to draw appropriate limits. Two recent decisions illustrate this.
In Mark, et al. v. Gawker Media LLC, et al, group of the website’s former unpaid interns in Gawker’s Manhattan office are seeking to recover back pay under the federal Fair Labor Standards Act (FLSA). See Mark, et al. v. Gawker Media LLC, et al., Case No. 13-cv-04347 (See Nov. 3, 2014 Order, Dkt. 80). Plaintiffs’ Counsel requested permission to use social media to encourage putative class members to opt-in. Social media, plaintiffs’ argued, had the potential to solve the problem of trying to reach a “transient and highly mobile” group of individuals who “were likely to have changed addresses and dispersed throughout the country since their internships.” (Order at 1-2).
Gawker vigorously opposed this request, presumptively fearing a swarm of bad publicity. The court initially entertained the plaintiffs’ request but, after reviewing plaintiffs’ proposed notice plan, refused to allow plaintiffs from proceeding, finding that “Plaintiffs’ proposal to post notices on websites such as Reddit and Tumblr — and on pages such as ‘r/OccupyWallStreet’ and ‘r/Progressive’– 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 material connection to the lawsuit whatsoever.” The Court explained that it had contemplated using social media to send “private, personalized notifications,” “not to advertise the alleged violations by Defendants.” (See Mar. 5, 2015 Order, Dkt. 100.)
In Fitzgerald Farms, LLC, et al. v. Chesapeake Operating, Inc., the parties reached a $119 settlement in case alleging that Chesapeake underpaid gas and oil royalties to landowners. (See Case No. CJ-10-38, District Court of Beaver County, Oklahoma.) In an attempt to encourage plaintiffs’ to opt out, a local Fort Worth lawyer launched a “Royalty Ripoff” publicity campaign, using billboards, websites and social media to convey his message that “This settlement stinks.”
Hoping to preserve the settlement, Plaintiffs’ counsel filed for a temporary restraining order to prohibit the dissenter from using mass media to encourage class members to opt-out. They argued that his campaign to dismantle the settlement was a thinly veiled attempt to conduct an “unethical solicitation campaign.” While the court initially granted Plaintiffs’ motion and enjoined the dissenter, it later dissolved the injunction in response to the dissenter’s claims that his First Amendment rights were being violated.
Social media is a game-changer for parties to a class action. Its ability to effectively reach class members who would otherwise be unreachable cannot be disputed. However, the use of social media in the class notice context also creates several concerns for the courts, who have been wary of moving away from traditional, mailed notice. As we recently commented to Bloomberg News, courts have and will continue to struggle with balancing the desire to create awareness among putative plaintiffs against other legitimate concerns innate to using social media for class notice, such as the desire to preserve settlements, damage to defendants’ reputation, the potential of attracting imposters, and attorneys’ ethical limits.