Hunton Employment & Labor Perspectives

In Mark v. Gawker Media LLC (“Gawker”), S.D.N.Y. Case No. 13-cv-4347, the Court permitted Plaintiff’s counsel to submit a plan to distribute class notice through social media.  Plaintiff put forward a plan to use five websites to not only distribute notice, but also to potentially locate additional collective action members.  The Southern District of New York rejected this proposal, even after the parties had agreed to certain aspects of it, finding “[t]he proposals [were] substantially overbroad for the purposes of providing notice to potential opt-in Plaintiffs, and [that] much of Plaintiff’s plan appear[ed] calculated to punish Defendants rather than provide notice of opt-in rights.”

In Gawker, Plaintiffs filed suit individually and on behalf of all others similarly situated claiming that Gawker and its founder violated the Fair Labor Standards Act as well as the New York State Labor Law by failing to properly pay its interns.  Because the interns at issue largely no longer worked for the company and Gawker did not maintain their contact information, the question of how to provide them with notice of the action became a hot one.  Plaintiff proposed to use, in part, social media.  When first suggested, Defendants argued that Plaintiffs had failed to put forward any evidence that the interns used the proposed sites and that use of social media would rob the Court of control over the message being sent to proposed members of the action.  The Court rejected Defendants’ arguments and granted Plaintiffs’ request “[t]o the extent Plaintiffs propose to use social media to provide potential plaintiffs with notice that mirrors the notice otherwise approved by the Court[.]”  The Court further ordered that before disseminating any such notice, the parties should confer over any posting’s form and substance and submit to the Court a joint letter with a proposal.

Plaintiffs’ social media plan included using Twitter, LinkedIn, Reddit, Facebook, and Tumblr, with specific requests geared toward the capability of each site’s platform:

• Twitter:  Plaintiffs proposed creating a Twitter account called “GawkerInterns.”  In the space provided to describe the accountholder, it would state “To join the collective action lawsuit brought by former Gawker interns, please visit GawkerInternLawsuit.com for more information.”  Plaintiffs then would use the account to follow known former Gawker interns as well as “tweet, send replies and mentions (directed at other Twitter users), and private direct messages . . . to notify former Gawker interns of the lawsuit and to direct them to the Court Authorized Notice.”  Plaintiffs also proposed the use of several hashtags to use in conjunction with their tweets such as #gawker, #livingwage, #interns, #fairpay, etc.
• LinkedIn:  Plaintiffs requested permission to publish an open group called “Gawker Intern Lawsuit.”  Plaintiffs’ counsel would invite former Gawker interns to join the group with follow-up invitations should no response be received.  The group profile would have information about the lawsuit, contact information for Plaintiffs’ counsel, and would direct persons to the case website to opt-in to the suit or review the court authorized notice.  Because the group would be open, anyone on LinkedIn would be able to view it and contribute to discussions.  Members of the group would then receive announcements to remind them of the deadline to opt-in, etc.
• Reddit:  Plaintiffs proposed to post a link to the Court authorized notice on various Reddit pages including, for example, News, Business, and OccupyWallStreet.  The posts would direct interested parties to the lawsuit website as well as provide reminders about applicable deadlines to join the action.  Plaintiffs also proposed posting this information in the comment section of other users’ posts or comments regarding the litigation.
• Facebook:  Plaintiffs proposed a three prong approach.  First, Plaintiffs’ counsel asked for permission to use their own Facebook accounts to search for interns and to “friend” any interns that they find.  Second, Plaintiffs proposed that they be allowed to send known interns messages directing them to the lawsuit website and providing reminders about joining the litigation regardless of whether they are friends or not.  Third, Plaintiffs proposed that their attorneys be permitted to publish a public Facebook group called GawkerInternLawsuit and that they be permitted to invite interns to join the group.
• Tumblr:  Plaintiffs proposed that they be allowed to post a link to the Court Authorized Notice directing people to the lawsuit website as well as reminders about deadlines.  Like with Reddit, Plaintiffs also proposed that they be allowed to post this information in the comment section of other posts about the litigation or in response to comments made about the litigation.

Defendants opposed this proposal noting that “[i]n ordinary circumstances, notice of a collective action is a one-time event.”  Defendants argued that despite the use of social media, Plaintiffs should still be required to adhere to this rule.  Plaintiffs should therefore be allowed to only contact an identified intern through one social media site, i.e. Plaintiffs should not be permitted to tweet on Twitter and private message on Facebook the same intern.  Plaintiffs should also be allowed to only provide notice of the action to putative collective members once—reminders should not be permitted.  Moreover, Defendants requested that Plaintiffs’ counsel’s communications should be limited to those approved by the Court.  Defendants also objected specifically to certain aspects of the plan, including the use of irrelevant hashtags on Twitter (e.g. #livingwage, #fairpay), Plaintiffs’ establishment of a Facebook Group (a tool allowing people to communicate about and discuss common interests) as opposed to a Facebook Page (a tool allowing an organization to communicate with others broadly), Plaintiffs’ counsel’s request that they be allowed to “friend” interns, as well as the use of Reddit and Tumblr altogether—given that posting on Reddit was more calculated to connect the lawsuit to other “controversies and political causes” rather than “reach potential collective members” and that any posting on Tumblr would constitute a blog, which would be duplicative of the case website.

The parties met and conferred and Plaintiffs submitted a modified proposal to the Court outlining any agreements and any issues that remained in dispute after which, Defendants continued to object to certain aspects, including the use of multiple reminders, the use of Reddit (Plaintiffs conceded the use of Tumblr), and Plaintiffs’ counsel’s use of friend requests on Facebook.  Defendants also asked that any Twitter or LinkedIn requests to connect identify the sender as Plaintiffs’ counsel.

Despite the concessions and agreements of the parties as to certain aspects of Plaintiffs’ plan, when faced with the decision to allow it to go forward the Court said no.  With respect to the use of Reddit and Tumblr, the Court reminded the parties that “[t]he purpose of FLSA notice is to ‘notify and inform those eligible to opt in to the collective action.’  It is not to advertise the alleged violations by Defendants, which, even if inadvertently, is the primary effect of Plaintiff’s proposal to post on the websites.  They are at best messages broadcast at the general public in the off-chance hope that a potential opt-in plaintiff will read them.”   Plaintiffs’ request to use Twitter, LinkedIn and Facebook fared no better with the Court finding it also overbroad.  The Court explained that when it permitted the use of social media, it did so as an extension of traditional notice not as an investigatory tool.  “This generally means that it expected the notice to contain private, personalized notifications sent to potential plaintiffs whose identities were known and would may not be reachable by other means.  To the extent that Plaintiffs’ proposals are shot through with attempts to send public-facing notices—such as general tweets rather than direct messages, or publicly accessible groups—they cease to parallel the other forms of notice that the Court has already approved.”  And, while this decision was without prejudice, the Court stated that any time required to draft and gain approval of a new plan would not extend the ongoing notice period, making it unlikely that any new proposal will be put forward.

Though social media was not used here, Gawker shows that courts are ready and willing to use social  media to distribute collective/class action notices and that parties to such actions should expect to be ready to discuss various social media platforms, their capabilities, constraints, and potential for abuse when discussing how such notice will be distributed.  Gawker also shows that while courts will consider social media as a an extension of other forms of notice, they will not allow such use to exploit the notice process or to turn it into fact discovery.