The District of Nevada recently allowed Plaintiff's counsel to solicit potential collective action members on Facebook and Twitter. In Gamble v. Boyd Gaming Corp., D. Nev., No. 2:13-cv-01009-JCM-PAL (Nov. 20, 2013), the plaintiff brought a collective action under the Fair Labor Standards Act on behalf of defendant's employees that were allegedly required to work "off the clock" without pay. Defendant alleged that Plaintiff's counsel created a web site, posted advertisements on Facebook and Twitter regarding the pending action, and even linked those advertisements to the Defendant's own Facebook page, which caused the ads to run on the Defendant's public Facebook newsfeed.
The defense argued that the advertisements, which contained statements that Plaintiff's counsel was currently representing "employees of Boyd Gaming who are owed overtime for work performed off the clock," were one-sided, false, and misleading. Specifically, the defense argued that potential collective action members "might be wrongly lead to believe that liability has already been determined in the case."
The Court acknowledged that "plaintiffs' counsel has a duty not to advertise in a way that is false or misleading," citing Nevada Rule of Professional 7.1, and that the court does have the power to sanction false advertising regarding pending litigation. However, the Court declined to enjoin the advertising campaign in this case because it was not the role of the court to "micromanage the activities of the parties or their counsel." Further, the Court was concerned about the breadth of the injunction requested and that if granted, would "frustrate the interests of judicial economy and could chill plaintiffs from making permissible advertisements for fear of adverse action by the court."
Defense counsel must always be on the look-out for false or misleading advertising about pending class actions, and, as is apparent from this order, must also attempt to seek narrowly tailored injunctions to stop inappropriate contact with putative class members.
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