The lawsuit that three former Gawker interns filed against the publication in June 2013 is still underway. You may recall that the digital publishing company and its founder Nick Denton were slapped with labor claims in New York federal court by Aulistar Mark, Hanchen Lu and Andrew Hudson, three former interns, who allege they worked on the company’s blogs (which include Gawker, Jezebel, and Gizmodo , among others) without receiving educational benefit or pay.
At the heart of this suit and many others like it is the claim that the plaintiffs were erroneously classified as “interns” (as opposed to entry-level employees), and thus, were not adequately compensated in accordance with federal and state labor and wage laws. Well, as of this past week, there has been a development in the case and it sheds light on the role that social media plays in such litigation.
As you may know, the federal rules of civil procedure require that members of a legal class be provided “the best notice that is practicable under the circumstances,” including individual outreach where possible, but at the same time, plaintiffs’ attorneys aren’t supposed to be intrusive or to actively solicit parties. With this in mind, late last year the court found that most former interns, the targeted audience, likely used one form or another of social media, and so, the court initially agreed to allow the plaintiffs’ legal team to use social media to reach potential class members, as this is a class action lawsuit, and thus, allows other similarly situated individuals (aka former unpaid Gawker interns) to join the lawsuit and access a portion of the monetary settlement.
Traditionally, lawyers track down parties for class actions by mail, but young people working for no pay in New York are unlikely to have fixed addresses. As such, in addition to traditional mail, the court agreed to permit tweets directing potential class members to a website about the lawsuit, the use of the hashtag #gawkerinternlawsuit, and the creation of Facebook pages and LinkedIn group to disseminate information to potential class members.
The court noted, however, that before disseminating any notice by social media, the parties should confer and describe to the court any disputes they could not resolve. To that end, plaintiffs filed a letter with the court on February 11, 2015 attaching their social media notice plan. To this, Gawker’s legal team has raised a number of objections to the plaintiffs’ proposed social media plan. Gawker did not object to notifying potential class members via Twitter, LinkedIn, and Facebook, but instead, objected to the ways and means used on these sites to notify potential class members.
Friending ex-interns on Facebook, for instance, would be “misleading,” they said in a court filing on February 17th. “Outreach via social media actually makes good sense, so long as plaintiffs’ lawyers aren’t spamming people or targeting social sites that are unlikely to reach the relevant folks,” says Gawker President and General Counsel Heather Dietrick.
Well, on Thursday, a New York federal judge denied a bid by the group of former Gawker interns to disseminate notice of their class action settlement through social media, saying their specific social media proposal lacks any realistic notion of specifically targeting its potential opt-in plaintiffs. Judge Alison J. Nathan said the plaintiffs’ proposed plan to post notices on Tumblr and on Reddit pages such as “r/OccupyWallStreet” and “r/Progressive” would call the attention of individuals not connected to the Fair Labor Standards Act suit rather than individuals with opt-in rights in the lawsuit.
This serves as a development (at least in theory) in the state of the ruled regarding the evolution of law in the digital age. Service of lawsuits has been undergoing a bit of a change in recent years. In a lawsuit that Paris-based design house Chanel filed in a Southern Florida federal court in May 2013 against one thousand domains selling counterfeit Chanel wares, Judge Joan A. Lenard allowed the service of the summons and complaint on the defendants via email to the email address associated with the domain.
This standard (which may only be allowed where the plaintiff demonstrates that service via email is likely to reach the defendant) remedies a common problem that plaintiffs face in cases against unknown defendants (aka ones hiding before websites) and/or defendants located outside of the U.S. Also in 2013, in case that the Federal Trade Commission brought against a number of Indian defendants, the FTC was allowed to serve the remainder of the documents in the case (additional pleadings, motions, notices) to the defendants via email and Facebook.
Judging by the suit at hand, it seems for now that courts are continuing to resist allowing plaintiffs to use social media in class-action suits, but that may be starting to change.