Gawker Interns Can't Use Social Media to Find Plaintiffs, Judge Rules

Last month, I wrote about an interesting fight between Gawker Media and a group of unpaid interns who were seeking compensation for wage violations. While the suit itself was a fairly typical unpaid internships lawsuit (interns are hired for unpaid positions; interns are given employee-level work that should be paid; interns take company to court), one thing made this case stand out: the plaintiffs wanted to use social media to seek out more opt-in plaintiffs – and Gawker was fighting back.

First, some background. The suit was filed as a collective action, meaning that those who wished to be part of the suit had to “opt-in” and weren’t automatically included like they would be in a typical class action. Because this meant former Gawker interns - who could potentially qualify for a settlement – could miss out, the plaintiffs wanted to use Facebook, Twitter, LinkedIn and other social media sites to contact potential new plaintiffs and invite them to join the lawsuit. Gawker wrote to the presiding judge and argued that such tactics were biased, intrusive, and – if allowed – needed to be carefully monitored, with the company having a say in the wording of tweets and Facebook posts.

Why is this interesting? Because it’s relatively untested ground. Contacting potential plaintiffs on social media raises a lot of valid legal questions: How many times should you be allowed to contact the same person? Should you create a Facebook page or a Facebook group? Can you use hashtags? What if the hashtags are controversial?

In addition, Gawker’s handwringing over the use of “inflammatory” wording and its general resistance to the use of social media, came across as a bit…insincere. This is a company that made its name producing viral and often controversial content. Rather than a pious concern for the standards of the American legal system, Gawker’s protestations seemed entirely self-serving. The fewer people that find out about the lawsuit and any future settlement, the better for the company – and as the use of social media would undoubtedly increase coverage of the suit, Gawker wanted none of it.

In the end, they needn’t have bothered. U.S. District Judge Alison J. Nathan ruled earlier this week that plaintiffs won’t be allowed to send opt-in notices via any social media platforms. The proposed use, she wrote, was “overbroad,” and the intent of the plan seemed to be to “punish defendants rather than provide notice of opt-in rights.”

What did she mean by that? Well, among other things, in submitting their intended social media plan, plaintiffs asked for permission to post in Reddit forums including r/Progressive and r/OccupyWallStreet – forums likely to be filled mostly with individuals who have no connection to the lawsuit. In Judge Nathan’s view, it looks like plaintiffs went too far and lost sight of the reasons the court had initially given approval for the use of social media.

“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 identifies were known and would 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 notices that the Court has already approved.”

It’s a shame that the plaintiffs in this case got a bit carried away. They had the court’s approval and, had they not exceeded the original limitations on the plan, Gawker’s protests may have fallen flat. As it is, Gawker was actually right, technically, when they criticized the plaintiffs’ plan. It’s an important lesson to learn, and the next group of unpaid interns who file a collective action (and there will be a next time; the number of unpaid intern lawsuits has been rising steadily for the last two years) will need to tread carefully, balancing the potential offered by social media with the restrictions placed by the court.