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SDNY Judge Refuses to Approve Overbroad Use of Social Media to Notify Members of Opt-in Class of Action

On March 31, 2015 by Schnader in Labor and Employment

By Scott J. Wenner

As we reported here in December, Judge Nathan of the U.S. District Court for the Southern District of New York ruled that putative class representatives in an FLSA collective action could notify former Gawker interns of their opt-in rights via social media – subject to her approval of a specific plan for disseminating that notice. The lawsuit accused Gawker of misclassifying student workers as interns to avoid paying them minimum wage.

Citing evidence of the widespread use of social media by the youthful age group that comprised the class to whom the notice was intended to reach, Judge Nathan approved in principle using social media for this purpose, but ordered the parties to jointly propose the sites for and content of the notice postings. She also stated that any dispute would be resolved by the court.

The representative plaintiffs proposed an extremely broad social media notification plan: it contemplated posting, notices on public pages of Twitter, LinkedIn, Facebook, certain highly political sites, and even on pop culture-specific sites like Tumblr and Reddit (including “r/occupy wall street”).

This proved too much for Judge Nathan, who firmly rejected the plaintiffs’ plan in her recent Mark v. Gawker Media order.  The judge explained that her initial order approved notice via social media as a conceptual matter, as she was persuaded that it was a reasonable way to reach the interns. However, her approval to use social media to disseminate notice to former Gawker interns was strictly as an “anologue to the typical mailing of class notice,” and the limited use of email to which the parties had agreed earlier in the case. While the court had contemplated using social media and other websites to post direct and targeted notice of the action to a specific group that arguably could not be reached in other ways, it held that the plaintiffs’ proposal to post generally visible notices on political, entertainment, and social media sites was far beyond the proper purpose of class notice.

In the court’s view, instead of targeting interns and directly notifying them of the litigation, the plaintiffs proposed to publicize it primarily to persons with no material connection to the lawsuit. Judge Nathan observed that it is improper to use class notice to advertise a defendant’s alleged wrongdoing, and concluded that  would be the primary effect of plaintiffs’ plan, whether intended or not.

In the end Judge Nathan would not approve a plan that might garner publicity for the case before wide audiences and which strayed substantially from the purpose of the notice – to inform former Gawker interns of the claims asserted in part on their behalf and of their right to opt in. The court’s message appeared clear: had class counsel’s plan more closely replicated the more targeted and direct methods typically approved for providing notice by mail and email, the court was prepared to approve it.

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