A Nevada federal district court recently refused to enjoin plaintiffs’ counsel’s solicitation of potential class members via an advertising campaign on Facebook and Twitter.

In Gamble v. Boyd Gaming Corp., No. 2:13-cv-01009-JCM-PAL (D. Nev. Nov. 20, 2013), defendant Boyd Gaming accused plaintiffs’ counsel of using “false and misleading” advertisements in its attempt to identify and recruit additional collective action members.

According to the defendant, plaintiffs’ counsel set up a website and posted advertisements on Facebook claiming to represent “employees of Boyd Gaming who are owed overtime for work performed off-the-clock.”

The defendant claimed that an internal link to the defendant’s own Facebook page resulted in the advertisement appearing on the defendant’s Facebook newsfeed.

Boyd Gaming argued that the advertisements were characterized in such a way as to make potential collective action members wrongly believe that the case had already been determined, and to think that the defendant itself had endorsed the messages.

In denying the defendant’s motion to enjoin, the court balanced its responsibility to sanction “false or misleading” advertisements under Nev. R. of Prof’l Conduct 7.1 with the plaintiffs’ right to “reach out to collective action members.”  The court opined that scrutiny of every such advertisement would frustrate the interests of judicial economy and force the court to micromanage each activity of the parties or their counsel—a role it was not willing to undertake.

This opinion implicitly endorses the right of plaintiffs to employ certain social networking avenues to solicit additional potential collective action members.

But it does not absolve plaintiffs from complying with the rules of professional conduct, which bar false or misleading communication about an attorney’s services.  In addition, courts often dictate permissible advertising methods through court order.

Class action plaintiffs or defendants may wish to raise the issue of social media advertising with the court prior to the court issuing its order on the circulation of notice.  See Davis v. Westgate Planet Hollywood Las Vegas, LLC., 2009 U.S. Dist. LEXIS 116663, *32 (D. Nev. Dec. 15, 2009) (sanctioning plaintiffs for failing, in their advertisements, to restrict the class to the states dictated by court order).

This article was prepared by Seth Jaffe (seth.jaffe@nortonrosefulbright.com / +1 713 651 5370), an associate in Norton Rose Fulbright’s Intellectual property practice group.