Social Media Communications Insufficient to Order Halt, Court Rules

Why it matters

An employer lost a motion requesting a California federal court limit the communications of the plaintiff's counsel in a wage and hour dispute. Jerrod Finder filed a putative class action against Leprino Foods Company, alleging that his employer violated California wage law. While the case was on appeal to the U.S. Court of Appeals for the Ninth Circuit, the employer filed a motion to limit Finder's counsel's communication with putative class members via a social media group dedicated to the case, arguing the interactions were "inappropriate and intentionally misleading." Finder's counsel retorted that a former employee started the page and issued him an invitation, and that his comments and questions—even those about other employees that filed affidavits in support of Leprino—were appropriate. Ultimately, the court was not persuaded that the communications at issue were misleading or improper enough to warrant judicial intervention. Finder's counsel's appeared to be engaging in pre-certification communications with potential class members, the court said, and Leprino failed to provide evidence of any prejudicial effect on employees supportive of the company.

Detailed discussion

The dispute over proper communications between counsel and potential class members over social media began in 2013, when Jerrod Finder filed a wage and hour class action against Leprino Food Company. He alleged multiple violations of the California Labor Code as well as Private Attorneys General Act claims.

Multiple motions followed by both parties and the U.S. District Court certified for interlocutory appeal the question of whether meal period premiums are wages or penalties under California law. The U.S. Court of Appeals for the Ninth Circuit accepted the appeal in October 2016.

While the case was pending before the federal appellate panel, Leprino filed a motion to limit plaintiff's counsel's communications with putative class members. According to the employer, several Leprino employees reported to their manager that their names had been published in posts in a semi-private social media group about the lawsuit.

Specifically, Phillip Downey, counsel for Finder, named 27 individuals whose declarations were submitted by Leprino in support of its opposition to class certification, asking group members to notify him "if you know anything about the following individuals who are testifying for Leprino." Downey also quoted from the deposition of one employee that he said was contrary to hundreds of other employee statements and asked the social media group members to contact him with reasons why she would provide conflicting information.

Members of the group responded with posts such as, "someone got promise [sic] a promotion lol" and "You know that's true." Leprino argued that such commentary falsely insinuated that the declaring employee lied in return for an employment benefit, and that Downey's conduct would have a chilling effect on employees willing to speak on behalf of Leprino, hampering the employer's ability to defend itself. The comments were "amplified" by appearing in an online public forum, Leprino added.

But the social media page was created by a former Leprino employee to let other current and former employees know about the case—not by plaintiff's counsel, they argued. Downey said he was invited to join the group and that it was a perfectly appropriate way to communicate with the putative class. The comments challenged by Leprino were aimed at vetting Leprino's declarations, a duty of counsel, Downey told the court.

Were Downey's communications "misleading or improper"? No, U.S. Magistrate Judge Barbara A. McAuliffe determined.

"By all indications, the [social media] group at issue, here, is one lawfully created by an interested potential class member," she wrote, and not by Downey or other class counsel. "This factor is important because the origins of the relationships between class counsel and the putative class is a distinction that matters under current case law evaluating pre-certification communications by counsel."

While the court recognized that the potential for abusive or coercive statements is particularly high in an employer/employee context, it was not persuaded that Downey's comments required judicial intervention.

"Absent from the communications here is any potential for coercion or undue influence by Plaintiff's counsel," the court wrote. "Because neither Mr. Downey nor his law firm created the [social media] group, the Court has little concern that members are being harassed or improperly influenced in their voluntary communications with Mr. Downey. Mr. Downey is an advocate for his position in this lawsuit; a position that members can freely take or leave. Mr. Downey's participation in this [social media] group is therefore no more than Plaintiff's counsel's engagement in pre-certification communications with potential class members."

Although several of Downey's communications were directed at uncovering information—potentially unflattering about Leprino—such inquiries were not improper, Judge McAuliffe said. "The United States Supreme Court has recognized the importance of permitting class counsel to communicate with potential class members for the purpose of gathering information, even prior to class certification," she said. "[T]he bulk of the comments made by Mr. Downey are aimed at 'determin[ing] whether . . . potential class member[s] possess any evidence relating to the Complaint allegations."

The court even recognized that some of Downey's comments "may consist of insinuations" that cast the employer in a negative light, but found that "those comments do not mislead employees about their rights as potential class members," or create confusion or seek to influence whether members opt in or opt out of the class. "Defendant's arguments boil down to concerns about whether Mr. Downey's comments potentially expose Leprino employees to negative commentary or office gossip," the judge said. "Ultimately, however, case law does not require that communications to potential class members be objective and neutral."

Importantly, Leprino did not present evidence that any members of the social media group had harassed employees in the workplace. The names of the declarants were already publicly available on the Court's docket and Downey asked members of the group to refrain from "intimidating" Leprino witnesses by contacting them. The "mere possibility" of abuses did not justify the adoption of a communications ban, Judge McAuliffe wrote.

To read the order in Finder v. Leprino Foods Company, click here.



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