The Boyd Gaming Corporation recently lost a bid to have a federal court enjoin a law firm from soliciting clients for a class action. The case is a lesson on how reluctant courts are to stop speech before it’s actually uttered. 

The Cogburn Law Offices (not sure if this guy is the senior partner) posted advertisements on Facebook soliciting clients to join a “putative” class action (“putative” means the case was filed, but not yet certified as a class action) against Boyd Gaming. The lawsuit alleged that Boyd violated the Fair Labor Standards Act when it failed to pay employees for “off the clock” work. The ads announced that the firm was currently representing “employees of Boyd Gaming who are owed overtime for work performed off-the-clock.”

The Cogburn firm also apparently linked its ads to the Boyd Facebook page, which meant that the ads were showing up on Boyd’s Facebook news feed. Boyd contended that the ads were misleading in that they made it appear that a court had already determined Boyd had violated the law (which was not the case) and the link to the Boyd Facebook page made it appear that Boyd was endorsing the law firm ads.   

Boyd asked the court to issue an injunction preventing the Cogburn firm from performing any further “misleading advertising for [the class action].” The court wisely decided not to issue the injunction.

Now the court’s action doesn’t mean that it was approving the advertising. The Nevada Code of Professional Conduct prohibits “false or misleading” advertising by lawyers.  And it’s possible that the ads here violate that rule. But enjoining the ads raises two problems. First, the injunction effectively grants the remedy before a determination whether the ads are in fact misleading. Boyd can press the court for a remedy, but the injunction puts the cart before the horse. 

Second, the injunction didn’t seek to prevent all advertising – which would be an objective standard to enforce. It sought to prevent misleading advertising – a subjective standard. That would require the court to pre-screen the ads and determine in advance if they were misleading. The court wasn’t willing to take on that task.        

So for now, the Cogburn firm can keep advertising. All bets are off.