A New York federal judge on April 17 approved a group of former Gawker Media LLC interns’ proposed revised plan to notify potential class members of their rights to opt out of a proposed collective action alleging unpaid wages through social media.  The same Court had previously rejected a social media campaign as being overbroad and untargeted.

In the renewed attempt to seek permission to contact a small subset of class members via social media, the plaintiffs’ counsel represented 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.  To effect class notice, plaintiffs’ counsel sought: (1) permission to “follow” known former interns on Twitter in order to send a direct private message; (2) to “friend” former interns on Facebook so that a direct message does not go to the user’s spam folder; and (3) to send an “InMail” message to former interns on LinkedIn.

The court largely approved the requests on two conditions: that they “unfollow” the former intern on Twitter if the intern does not opt in by the deadline of April 14 and that they are not permitted to “friend” individuals on Facebook “as it could create a misleading impression of the individual’s relationship with plaintiffs’ counsel,” according to the order.

“These two conditions were requested by defendants in their submission, and the court agrees that they are prudent limitations that ensure plaintiffs’ use of social-media notice complies with the general principle governing FLSA opt-in notices,” the judge wrote.

In addition, the court denied the interns’ request to send email notices to a mass list of intern applicants which may or may not include individuals who actually served as interns, saying the list was overly inclusive.  “There is no indication that any of the individuals on the list of applicants that plaintiffs have obtained actually took internships with Gawker.  …  Moreover, any individual names in the list who accepted an internship position with Gawker would likely be identifiable by plaintiffs through other means.”

The decision is part of a recent trend considering the use of social media to effectuate various forms of class notice in circumstances where the notice is targeted and where other, more traditional means of notice are not feasible.  Troutman Sanders LLP will continue to monitor such developments in the law of class actions.