Why it matters: A routine Fair Labor Standards Act suit has turned into a PR nightmare for one company. The Boyd Gaming Corporation filed an emergency motion after discovering ads on Facebook and Twitter posted by the FLSA plaintiff’s attorney seeking additional plaintiffs. One of the ads included a link to Boyd’s own Facebook page, causing it to appear on the company’s public news feed. Concerned that the advertisements implied liability had already been determined and presented potentially misleading information, Boyd asked the court enjoin the ad campaign. Although the judge noted that all attorneys have a duty to avoid “false or misleading” advertising, he declined to review the ads and denied the motion. The lesson for employers: beware of social media being used for plaintiff-generating purposes. And if seeking to challenge potentially misleading online advertisements, tailor the requested relief in lieu of requesting a complete ban on all ads, leaving less review work for a court and a greater chance of success.

Detailed Discussion

Craig Gamble filed a putative collective action under the Fair Labor Standards Act against his former employer, Boyd Gaming Corporation, in Nevada federal court. He alleged that the company required employees to work “off the clock” without being paid.

While still in the early stages of litigation, Boyd discovered advertisements posted online by Gamble’s counsel, Cogburn Law Offices. The law firm created a website and posted ads on Facebook and Twitter stating that the firm currently represents “employees of Boyd Gaming who are owed overtime for work performed off-the-clock.”

Cogburn’s own Facebook page even featured a link to Boyd’s Facebook page, which resulted in the ad appearing on the company’s public Facebook news feed.

Boyd responded to the ad campaign with an emergency motion to enjoin the advertisements, calling them “misleading” and “one-sided,” and arguing that potential collective action members could be confused into thinking liability had already been determined. The appearance of the ad on Boyd’s own news feed could also cause followers on the site to think the company endorsed or supported the ad or the plaintiffs’ claims, the employer told the court.

In his denial of Boyd’s request to halt the advertising, U.S. District Court Judge James C. Mahan noted that under the Nevada Rules of Professional Conduct, all attorneys have a duty “not to advertise in a way that is ‘false or misleading,’ and that this court has the power to sanction false advertisements regarding pending litigation.”

However, the court determined that Boyd’s request was overbroad.

“[I]t is not the role of this court to micromanage the activities of parties or their counsel. Defendant’s request for relief, that the court issue an injunction preventing plaintiffs’ counsel from performing ‘any further misleading advertising’ would potentially force this court to scrutinize Cogburn’s every attempt to reach out to collective action members and determine the honesty of each representation,” Judge Mahan wrote. “Such an activity would frustrate the interests of judicial economy and could chill plaintiffs from making permissible advertisements for fear of adverse action by the court.”

To read the order in Gamble v. Boyd Gaming Corporation, click here.