In what appears to be a sign of things to come, a federal court in New York recently approved the use of social media to notify potential class members who were more likely to be reached that way rather than by more traditional forms of notice, such as regular mail. The order permitting social media use comes on the heels of a similar order by a federal court in California.
In Mark v. Gawker Media LLC, former unpaid interns brought a collective/class action against Gawker alleging violations of the federal Fair Labor Standards Act and New York State Labor Law. Recognizing that most, if not all, of the potential class members use social media, a New York federal court allowed the interns to submit a proposal to notify them through this medium. The interns initially proposed to give notice using a Twitter account called “GawkerInterns” in conjunction with several hashtags; creating a public LinkedIn group called “Gawker Intern Lawsuit” where any person, whether inside or outside of the class, could comment; posting a link to the Court-authorized notice on multiple Reddit pages and on Tumblr; and “friending” interns on Facebook, sending them messages directing them to the lawsuit website, and publishing a public Facebook group called “GawkerInternLawsuit”.
The court rejected the interns’ initial proposal in its entirety, finding it substantially overbroad. The Court had expected the interns to use social media to provide private, personalized notifications to potential class members whose identities were known but could not be reached through other means. The interns’ proposal, on the other hand, provided, at best, messages to the general public and lacked “any realistic notice of specifically targeting its notice to individuals with opt-in rights.” It was clear to the Court that the primary purpose of the interns’ proposal was to punish Gawker by publicizing the lawsuit rather than provide notice of opt-in rights. But the court did let the plaintiffs take another stab at a revised proposal and this time it gave the thumbs up.
The revised proposal was far narrower and allowed notice via social media with a message “substantially similar” to that contained in traditional forms of notice already approved by the Court and therefore removed “the danger of simply advertising a lawsuit against Defendants.” Specifically, the plaintiffs proposed utilizing:
- Twitter: the plaintiffs using the handle @Gawkerintern would follow the intern and then if the intern followed them back, the plaintiffs would send them a private message about how to join the lawsuit.
- Facebook: plaintiffs would try to “friend” the interns and send them a message about the lawsuit; alternatively, if they did not accept the friend request, they could send a private Facebook message.
- LinkedIn: plaintiffs could send an “In-Mail” message to the intern about the lawsuit.
The court largely accepted the proposal except that it required the plaintiffs to “unfollow” interns who did not respond to the private Twitter message, and it did not allow them to “friend” any interns on Facebook; at most, they could send them a private Facebook message.
The Gawker Court was not the first and will not be the last court to approve of the use of social media to provide notice. In March, a federal court in California, in Woods v. Vector Mkt. Corp., granted a proposal to provide notice of a FLSA collective action using Facebook. Unlike in Gawker, these plaintiffs proposed using a short Facebook ad that required users to enter their last name and last four digits of their social security numbers before redirecting them to the official case website and long-form notice of their opt in rights. Because it was not clear that email could provide a reliable form of contact to these potential class members, the court found the Facebook ad a “particularly useful form of ensuring actual notice.” The court further found that the proposed verification process would filter out ineligible claims. Courts have also approved the use of social media to distribute other forms of legal notice. For example, a New York state family court allowed a summons and petition to be served via Facebook on an individual in a child support proceeding who maintained an active presence on Facebook but whose actual physical whereabouts were uncertain.
As social media use continues to grow, it is likely courts will increasingly approve of notification via social media where it is more likely to reach potential class members or other parties that way. In order to avoid the use of social media, employers, therefore, should maintain up-to-date records of employees’ traditional contact information.