The old adage that there is “strength in numbers” is especially true in class actions and collective actions where the number of Plaintiffs is one of – if not the biggest – driver of an employer’s decision to continue to fight, or, explore possible settlement. This is especially so in collective actions under the FLSA where under 29 U.S.C. § 216(b), a collective action member must opt-in to the lawsuit before he or she will be bound. While at or near 100% of class members are effectively bound by a Rule 23 order, opt-in rates in most § 216(b) collective actions typically range from 10% to 30%.
A recent ruling from federal court in Nevada highlights what we fully expect to be a growing trend in workplace class action litigation in 2014 and beyond – trolling for Plaintiffs through Facebook, Twitter, and other social media sites. As explained below, what happened in Vegas in this case will most certainly not stay in Vegas!
In Gamble v. Boyd Gaming Corporation, 2:13-CV-1009 (D. Nev. Nov. 20, 2013), Plaintiffs brought an FLSA collective action alleging that they, and the putative class members, worked “off the clock” without pay. In an effort to inform other potential Plaintiffs of the lawsuit, and their ability to opt-in, Plaintiffs’ law firm created a website and posted advertisements on Facebook and Twitter in which they assert that they represent employees of Boyd who are owed overtime for work performed off-the-clock. Id. at 1. At one point, the Facebook advertisement of Plaintiffs’ law firm contained a link to Boyd’s Facebook page, which caused the advertisement to appear on the Defendant’s public Facebook news feed. Id. at 1-2.
The Court’s Decision
Based on their social media trolling for Plaintiffs, the Defendant in Boyd filed a motion to enjoin Plaintiffs’ counsel’s “advertising campaign” as it presented “one-sided” and “misleading” information. Namely, the defense alleged that, “potential collective action members might be wrongly led to believe that liability has already been determined in this case, and that the presence of this advertisement on defendant’s Facebook page might mislead individuals into thinking that defendant has endorsed the messages of the advertisement and/or plaintiffs’ claims.” Id.
Judge James C. Mahan denied the defense motion since “it is not the role of this Court to micromanage the activities of the parties or their counsel.” Id. While noting that Plaintiffs’ counsel has a duty not to advertise in a way that is false or misleading, the Defendant’s request for relief – an injunction preventing any “misleading advertising” would require the Court to scrutinize each and every attempt of Plaintiffs’ counsel to reach out to collective action members and determine the honesty of each representation. Id. The Court was not willing to take on such a role, as it would frustrate the interests of judicial economy and possibly chill Plaintiffs from making permissible advertisements. Id.
Implications For Employers
While Judge Mahan denied the defense motion in Gamble, it remains to be seen whether they go back to the Judge with a narrower motion in order to ensure that representations made to putative class members about the case are neither false nor misleading. This decision highlights some of the new methods that the Plaintiffs’ class action bar is utilizing to increase the publicity of their cases in order to raise the stakes for employers and hopefully score a big pay day as a result.
For this reason, employers – to the extent they are not doing so already – should run online searches from time-to-time, review their social media pages, or set up automatic alerts in order monitor what is being said about them, and their pending class actions, in order to determine if false and misleading representations have been made that may warrant court intervention. Stay tuned! Litigation via social media is here.