Too Many People Using Social Media?

Cozen O'Connor

Well, maybe there aren’t too many people using social media in general. But, perhaps, that is the lesson to be taken from a recent federal court decision that addressed the intersection of one statute’s purpose and the reality of social media.

Back on October 20, 2014, I posted about a New York Family Court case in which the Judge allowed the use of Facebook to serve notice of a proceeding on another party whose whereabouts could not otherwise be located. Now, in the case of Mark v. Gawker Media LLC, a federal Judge in the Southern District of New York has issued a decision with a slightly different result in a slightly different set of circumstances.

Gawker Media is a wage and hour case that involved notice being sent to “similarly situated” individuals under the federal Fair Labor Standards Act (“FLSA”). Notices are typically mailed to individuals advising them of the nature of the case and their right to join the lawsuit if they choose to do so. Here, plaintiffs’ counsel apparently asked the court for permission to post notices on various social media web sites in an effort to supplement the traditional mailings and reach a potentially larger audience that might include individuals who could potentially “opt in” to the lawsuit. The problem was, however, the argument that the sites “might include” individuals.

The court noted that, while it would contemplate the use of social media as a means to contact potential parties, the request by plaintiffs’ counsel here was “substantially overbroad” and appeared to be “calculated to punish Defendants rather than provide notice of opt-in rights.” Said the court:

“Plaintiffs’ proposal to post notices on websites such as Reddit and Tumblr – and on pages such as “r/OccupyWallStreet” and “r/Progressive” – lacks any realistic notion of specifically targeting its notice to individuals with opt-in rights, and instead would call attention to the lawsuit mostly of individuals with no material connection to the lawsuit whatsoever. The purpose of FLSA notice is to ‘notify and inform those eligible to opt in to the collective action’”

In other words, the FLSA notice provisions are designed to provide narrowly-tailored notice specifically to those individuals whose rights may be at issue and affected by a lawsuit, and to advise those individuals of their right to join. Simply putting word of the lawsuit out for the entire world to see (i.e., through social media sites of mass participation), with only a small subset of the world truly intended to get the notice and learn about the lawsuit, does not accomplish the goals of the FLSA and potentially prejudices the employer.

As the court made even clearer:

“The Court approved use of social media notice on the understanding that such notice would effectively mirror the more traditional forms of notice being used in this case. This generally means that it expected the notice to contain private, personalized notifications sent to potential plaintiffs whose identities were known and [sic] 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.... Accordingly, Plaintiffs’ request to put into action its proffered plan for social media notice is DENIED without prejudice to Plaintiffs proposing a revised plan that cures the current overbreadth issues.”

Employer Take Away: What should you as an employer take away from this development?

Courts continue to grapple with the proper balance when it comes to the somewhat informal, yet widespread appeal of, social media in the context of lawsuits. Can (and should) social media be used to benefit the process in many circumstances? Yes. But can one’s plan to use social media in the process be too overbroad? Yes.

Just as we discussed in the context of the discovery of social media in lawsuits, the best way to persuade a Judge to fall on the side of allowing some social media plan into your company’s case is to demonstrate that your plan is narrowly-tailored and serves the underlying purpose of promoting judicial economy and obtaining information or access that could not generally (or easily) be obtained through other means.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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