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Article: April 2015: Class Action Litigation Update

Business Litigation Reports

The New Role of Social Media in Class Action Notice Programs. In the early 2000s, the suggestion of providing class notice through a social networking site would have been laughable. As recently as 2010, no published authority approved the use of text messages or social network mediums for providing class notice. This is no longer true. In the last decade, social networking has changed the way American adults obtain information and communicate with each other, often at the expense of traditional media. (The Pew Research Center reports that as of January 2014, 74-percent of online adults use social networking sites. Social Networking Fact Sheet, Pew Research Center, available at http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/ (last visited March 10, 2015)). The ubiquitous use of social media has increasingly led plaintiffs distributing class notice to seek approval to use social media sites such as Facebook and Twitter. When faced with these requests, courts must determine whether distributing class notice through social media constitutes “the best notice that is practicable under the circumstances.” Fed. Rule Civ. P. 23(c)(2)(B).

Several courts have answered this question in the affirmative, approving the use of social media to disseminate class notice, both as an addition to and a replacement for more traditional methods. In Kelly v. Phiten USA, Inc., the court evaluated the sufficiency of notice in determining whether to grant final approval of a class action settlement. 277 F.R.D. 564, 569 (S.D. Iowa 2011). Among other methods of distribution, “[n]otice was displayed on Phiten’s Facebook page, which delivered individual e-mail notifications to its more than 75,000 fans and also appeared on each fan’s Facebook homepage.” Id. The Court found that the plaintiff had “provided sufficient notice, which was reasonably calculated, under the circumstances,” to apprise settlement class members of the pendency of the action and their rights under the settlement agreement. Id. at 570. Similarly, in Evans v. Linden Research, Inc., the court approved a notice distribution program that included posting class notice on Facebook “targeting individuals who have expressed an interest in” the internet role-playing virtual world that was the subject of the litigation. No. C-11-01078 DMR, 2013 WL 5781284, at *3 (N.D. Cal. Oct. 25, 2013). Recognizing that it must “ensure that the parties’ notice plan provides for the best notice that is practicable under the circumstances,” the Court found that the notice distribution plan, including the targeted internet publication on Facebook, met the standards of Rule 23. Id. at *5 (internal quotations omitted). These examples show that courts are increasingly willing to use social media where the social media notice proposals are reasonably calculated to reach potential class members and comport with the established purposes of Rule 23. Proposals that do not meet these standards will be rejected.

Most recently, on March 5, 2015, the Court in Mark v. Gawker Media LLC denied the plaintiffs’ proposed notice distribution plan, which included notice via Facebook and Twitter, only months after conditionally approving the use of social media to notify potential members of their right to join the collective action. No. 13-cv-4347 (AJN) (S.D.N.Y. Mar. 5, 2015). The Court denied the plaintiffs’ proposed social media postings, finding that they were “substantially overbroad” for the purpose of providing notice to potential opt-in plaintiffs and appeared “calculated to punish” Gawker rather than provide notice of opt-in rights. Id. The Court said the plaintiffs’ proposals to post notices on Reddit and Tumbler pages such as ‘r/OccupyWallStreet’ and ‘r/Progessive’ lacked “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.” Id. The Court also rejected the plaintiffs’ proposed use of Twitter, LinkedIn, and Facebook as overbroad, stating that it had approved the use of social media notice on the understanding that such notice would contain private, personalized notification sent to identified potential plaintiffs who may not otherwise be reachable, and not public-facing notices such as general tweets and publicly accessible groups as the plaintiffs had proposed. See id.

The Court in Flynn v. Sony Electronics, Inc. reached a similar conclusion, denying the plaintiff’s proposal to reach class members for whom the defendant did not have direct contact information via, among other methods, a case-specific Facebook site. No. 09-cv-2109-BAS (MDD), 2015 WL 128039, at *1, *4 (S.D. Cal. Jan. 7, 2015). The defendant opposed the proposal, arguing that the Facebook page did not comply with the purpose of notice and that it was overbroad because the ability to ‘friend’ or ‘like’ the page would not be limited to class members. See id. at *4. The Court concurred, stating that the purpose of the class-action notice requirement is to apprise class members of the action and given them an opportunity to opt out; by contrast, the plaintiff’s reason for the proposed Facebook page was to allow class members to become ‘friends’ or ‘like’ the page and be able to receive updates and posts related to the litigation. See id. Further, the notice plan did not provide for the case-specific Facebook page to be published or noticed anywhere, so that class members would likely have to actively seek it out. See id. Finding that “[c]lass members actively searching for notice is not what was intended by requiring notice in a class action,” the Court held that the proposed case-specific Facebook page did not comply with the purpose of class action notice under Rule 23 and denied the proposal. Id. at *4.

As the number of social networking sites and users continues to grow, we expect courts to further develop additional innovations and parameters for the role of social media in Rule 23.