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Counsel’s communications to class members’ Facebook group not inappropriate or misleading

By Joy P. Waltemath, J.D.

Refusing to limit the communications by plaintiff’s counsel with putative members of a state law wage hour class action via a Facebook group, a federal district court in California pointed out that his participation in the class was by invitation from an interested class member, and that anyone who had access to the group had to either request permission or consent to participation in the group if invited. Accordingly, his participation did not violate a protective order designed to protect employees who did not wish to join the lawsuit. Nor were his communications, some of which asked Facebook group members for information about other employees who had made declarations favoring the employer, inappropriate or misleading such that the court would limit them (Finder v. Leprino Foods Co., January 20, 2017, McAuliffe, B.).

State wage hour class action. The underlying state wage hour class action involved, among other things, the interlocutory appeal of whether meal period premiums are wages or penalties under California law, currently pending in the Ninth Circuit. Defense counsel had moved to limit plaintiff’s counsel’s communication with the putative class via an online Facebook group dedicated to the underlying consolidated putative class action. The employer called those communications “inappropriate and intentionally misleading” and intentionally disruptive. Employees reportedly complained their names had been published in the Facebook group after their declarations had been submitted by the employer in opposition to class certification. Plaintiff’s counsel asked for information about those employees, including why one individual’s declarations were contrary to “hundreds of other employee statements.” He also asked about several employees’ promotions and for other information about the employers’ declarants.

To the employer, these statements (1) violated the court’s protective order and (2) implied false accusations by insinuating that certain employees received special treatment or promotions in return for providing untruthful declarations on its behalf. This would have a chilling effect on employees who were willing to speak on behalf of the employer, it claimed. However, counsel for the plaintiff pointed out that the private Facebook group was created by a former employee, not counsel, to which he was invited, and that it was an entirely appropriate way to communicate with the putative class. Also, he said his statements were aimed at vetting the employer’s declarations, “which is counsel’s duty.” Plus, the employer presented no evidence from employees that they had been harassed or intimidated due to plaintiff’s counsel’s participation in the Facebook group.

“Misleading or improper” communications. Although the court agreed that it had the power to restrict communications between counsel and putative class members, based on whether the communication at issue is “misleading or improper,” it was not persuaded that the comments were harmful or misleading to warrant judicial intervention. Here, said the court, counsel was invited to participate, which was an important distinction in case law evaluating pre-certification communications by counsel. Any potential for coercion or undue influence by plaintiff’s counsel was absent here, said the court: He was invited to join and it did not appear that members were being harassed or improperly influenced in their voluntary communications with him. His participation in the Facebook group was no more than engaging in pre-certification communications with potential class members. And while some of his statements were directed at uncovering information (unflattering or otherwise) about potential employer witnesses, this was not improper and within the realm of reasonable discovery.

“Less neutral” posts. Other posts were “less neutral,” noted the court, including those which pointed out how one declarant’s statement differed from “hundreds of other employees,” and others questioning how two declarants received promotions. Acknowledging that those comments could certainly be seen as insinuations that cast the employer and it declarants in a negative light, the court pointed out that “those comments do not mislead employees about their rights as potential class members,” or create confusion or influence whether members opt-in or opt-out of the class. Case law does not require that communications to potential class members be objective and neutral, the court said, characterizing the employer’s concerns to really be about exposing employees “to negative commentary or office gossip.”

Speculation not enough. Assertedly out of fear of exposing their employees to further harassment, the employer declined to present evidence that any members of the Facebook group had harassed its employees in the workplace. But that left only speculation for the court to determine whether the references to the employees in the Facebook group are harassing enough to discourage employees from further participation on behalf of the employer. And the court was not convinced that judicial intervention was necessary here, nor had the comments created a chilling effect. These employees’ names and declarations were already public in the court’s docket; plaintiff’s counsel already asked members of the Facebook group to refrain from “intimidating” employer witnesses by contacting them; and the statements were not misleading or abusive. However, the court did caution plaintiff’s counsel that his comments made generally to this Facebook group may waive future claims to attorney-client privilege.

No violation of protective order. There was a protective order in place that, if the employer produced contact information for class members, plaintiff’s counsel will not use that information to contact class members without a specified disclaimer. Here, counsel’s participation in the Facebook group was by invitation from an interested class member, so the relevant portion of the protective order did not apply. The protective order was intended to keep plaintiff’s counsel from using the employer’s phone list to cold call or harass its employees, but the private Facebook group was the opposite: in it, potential class members who were interested in more information about the lawsuit joined in order to gather additional details about the suit. Thus, the court denied the motion to limit.