Gawker Intern Plaintiffs Authorized to Notify Class of Lawsuit Via Social Media

Diana Uhimov, April 20, 2015.

After an initial denial, a New York federal judge for the Southern District of New York granted permission last week to a group of former Gawker Media LLC interns’ to notify potential class members of a proposed action through social media, namely Facebook, Twitter, and LinkedIn.  The judge limited the approval by finding that “friending” class members on Facebook is too extreme.  The interns brought the proposed collective action, Mark et al. v. Gawker Media LLC et al., in 2013 under the Fair Labor Standards Act (FLSA) alleging unpaid or underpaid wages.  The FLSA provides standards for minimum wage, overtime pay and child labor provisions, and sets forth a collective action procedure, which permits the aggregation of hundreds or thousands of claims among employees that are “similarly situated.” Collective actions share some characteristics with class actions, but there are some distinctions. For instance, In FLSA cases, an employee must opt in, meaning that they must sign a document stating that they intend to be a part of the lawsuit, whereas in class actions, employees are presumed to be a part of the class and if they don’t want to participate in the lawsuit, they must opt out.

The group’s justification for this novel notification request was that email or mailing addresses for 55 known former Gawker interns are not available, but 27 of them are known to have a Facebook or Twitter account and 16 have a LinkedIn account. Gawker conceded that the lack of contact information justifies the use of alternative communication methods, but argued that that does not justify abandoning the other limitations on the notice process. It maintained that notice of a collective action should be a “one-time event,” rather than the unlimited “ongoing dialogue” the plaintiffs’ proposal would allow.

The previous request on April 9th was rejected by U.S. District Judge Alison J. Nathan for being overbroad. The judge ruled that notifying potential class members by posting notices on social media sites Tumblr and Reddit would publicize the allegations to individuals not connected to the suit rather than get the attention of individuals with opt-in rights.  It also supported Gawker’s objection to the use of proposed hashtags #fairpay and #livingwage, on the basis that they were “inflammatory”.

The modified request involved “following” known former interns on Twitter in order to send a direct private message, “friending” former interns on Facebook so that the message isn’t diverted to the user’s spam folder, and sending “InMail” messages to former interns on LinkedIn.  The court agreed to the proposed limitations for ensuring that the social media notices are in compliance with the general principle governing FLSA opt-in notices, but imposed two conditions on the request: (1) that they “unfollow” the former intern on Twitter if the intern does not opt in by the deadline of April 14; and (2) that they are not permitted to “friend” individuals on Facebook so as not to create an impression of an improper relationship with plaintiffs’ counsel. The judge additionally denied as overinclusive the interns’ request to send email notices to a list of internship applicants that may include individuals who didn’t actually serve as interns, stating that any individuals who accepted an intern position with Gawker could be identified through other methods.

Gawker is one of several businesses involved in the recent spate of wage litigation brought by interns. The plaintiffs claim that Gawker hired unpaid or underpaid interns to do work essential to its business, and lodged minimum-wage and record-keeping claims against it. According to the Department of Labor, there is an exception to the FLSA’s wage requirements for “trainees” whose work is intended for their own benefit. The standard for establishing whether an individual is an intern or an employee covered by wage law is currently before the Second Circuit in the appeals of Hearst Corp. and Fox Entertainment Group Inc.  This is the first time this approach to notifying class members was permitted.  The court instituted this novel approach to notice carefully to ensure that potential class members would get actual notice.