“Are Tweets Okay — Or Not?” The Parties Reached An Agreement — On An Unresolved General Question: Advertising In Putative Class Actions

MRK-Smith-Gender-Advert-08-01-2016 Way back in November of 2013 (after re-thinking several things, with the help of an HR-trained executive/friend with whom I’d reconnected, earlier that summer), I said I would monitor this litigation, but not likely take a position on the merits.

I intend to continue to adhere to that view.

That said, last week an interesting question presented itself: the plaintiffs’ firm put out a press release about this would-be gender discrimination class action. Merck’s lawyers immediately moved the able US District Court Judge in Newark for a so-called “cease and desist” order. Essentially Merck’s claim was that the advertising was misleading and did not comport with a prior agreement on putative class communications, by the parties, and their lawyers. Before the Judge had a chance to decide the motion though, the plaintiffs’ lawyers indicated that they had no need for any more advertising — to the putative class. So the motion was denied as moot, late last week.

For general background, I’ll link to the plaintiffs’ opposition memo of law (a 19 page PDF file), to the Merck motion — not because I endorse the merits of the plaintiffs’ position on gender discrimination in the underlying litigation, but because — in our system of ordered liberty, and as a very free society, we place such a premium on mostly unfettered free speech. The general remedy for wrong-headed or even false speech [by tweet or otherwise, Mr. Trump(!)] is. . . more speech, by the opponent. So, I do wonder whether the motion would have survived — absent the parties’ mutual agreement, which effectively ended this side-dispute. Here’s a bit from the memo, for flavor:

. . . .Merck objects to a message displayed on Sanford Heisler’s Twitter page that states that the firm is looking for female sales representatives who were discriminated against at Merck. (Dkt. 176-6, Ex. 5 to Defs’ Mtn.) The “tweet” contains a link to the webpage for this litigation so that individuals can receive basic information regarding the case. This message does not summon class members to join the litigation or to sue Merck. It is perfectly acceptable for Counsel to investigate the class’ claims, as Merck itself conceded when, in response to Plaintiffs’ Letter Motion to Compel (Dkt. 61) it agreed in July 2015 to provide [putative] class member names and contact information to Plaintiffs for investigatory purposes. The Twitter message in question serves only as a simple restatement of what the Court-ordered Notice and reminder postcard already say: that female sales representatives may be eligible to join the case. There can be no possible harm from this innocuous statement, except inasmuch as Merck views class members coming forward to participate in or inquire about this litigation as harmful.

Any class counsel worthy of the name must serve as more than a potted plant. Counsel must actively investigate the facts and prosecute the case to ensure that plaintiffs defeat the inevitable motion to decertify and prevail in the action. That is all that class counsel did here. . . .

For the sake of clarity, I should say that I have no connection whatsoever to any of the known plaintiffs, or their lawyers — or for that matter, any of the defense lawyers. But I do think all women who worked at Merck (or more-precisely, legacy Schering-Plough, under Fred Hassan’s allegedly fraternity-stlye, male-dominated Rutgers cult) should be robustly advised of their rights — regardless of whether they choose to act on them. Yet another potential bar tab Mr. Hassan had long ago skipped out on — now potentially coming due.

Onward then, after a busy, silly and insightful weekend — with my grown man of a son — smiling widely, as I walk. Be excellent to one another.

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