A recent Michigan case -- Ahmed v. Finley's Mfg. Co. -- concerned the settlement of class action claims that "halal" products offered at fast food restaurants in Dearborn did not comply with Islamic dietary restrictions.
In response, a Dearborn lawyer not otherwise involved in the action posted statements on his Dearborn Area Community Members Facebook page, alleging that the settlement represented a "backroom deal," in which the plaintiff’s lawyer would "pocket" the majority of the settlement amount, and requested that community members "Like" his "Public Notice" regarding objections to the settlement.
In an unreported decision, the presiding judge prohibited further communication by the objecting lawyer about the case, citing "materially false, deceptive and misleading" statements in the Facebook posting.
The Public Citizen Litigation Group, representing the objecting lawyer, insisted that the order constituted a "prior restraint" on speech, and noted that the lawyer, as a member of the class affected by the settlement, could properly publicize objections to the settlement. The presiding judge modified her order, specifying that the objecting lawyer could identify himself as a class member, but not as an attorney in the case (in which he had never intervened). The judge also extended the period for notice to the class of the proposed settlement.
Social media is weighing the scales of justice.
This case, though perhaps of relatively minor interest as a local action, highlights how significant social media could become in the litigation process. The use of viral communications could help lawyers as in the Ahmed matter build a case for "opting out" of a settlement. Social media may also help lawyers find class action plaintiffs, and (in cases where class action is procedurally impossible) help lawyers organize mass individual proceedings. Companies, moreover, may monitor such online developments, to help plan responses to potential litigation.
Seems to me that notice via social media is just one more tool a court could use to provide what it may consider adequate notice of the settlement of a class action matter. Indeed, in the case discussed in my piece, there was a form of social media notification of the settlement (in addition to other methods, I believe). That's not unusual (the use of multiple methods for notice).
Your article got me thinking on the many ways that social media could be used vis-a-vis class actions.
For eternity, I will be quoted in a precedent setting case where a class action settlement was overturned largely because the settlement provided for insufficient notification. With that in mind I wonder about how class action settlements could use social media for notifications of the proposed settlements.
On the one hand I object to most class action lawsuits, but so long as we have them I can see many new uses for social media.
It's the informality of the medium, but also the drive to be interesting and unique. For some people, these phenomena produce a need to "over-share" the details of their lives. For others, it is unfunny "humor" and worse.
This problem (lawyer speech) is really just a particular variation of the larger problem of employee speech. Employees have rights under the First Amendment (and other law), but they also may have obligations to their employer, and the employer may have legitimate reasons for paying attention to employee speech. Add to the mix the fact that social media (especially) have helped to blur the lines between work / personal life, and you begin to see that the balancing problem is inherent in modern life.
Lawyers have First Amendment rights, just as all citizens maintain. But they are also officers of the court, and owe professional obligations to support the system of justice. Drawing lines between these two interests can be more than difficult.
" I don't see any real dangers on social media use by the bar, they have too much to lose if not careful with their words and actions."
There is a danger of speakingb too soon and that in itself can have serious legal implications. In the age of facebook and twiiter, there is always this rush to comment or senf constant update. In such a situation, social media can get the better o even the most detail and consciouteous legal person.
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