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Social Media Spurring Consumer Protection Litigation?

By Karen L. Stevenson, Litigation News Associate Editor – August 11, 2010

Social networking websites, like Facebook and Twitter, are helping potential plaintiffs gather information and communicate regarding potential litigation, especially consumer protection litigation. However, the same websites are also providing potential defendants and even regulators with unique ways to interact with customers.

Fostering Class Actions?
For example, in the wake of the BP oil spill in the Gulf of Mexico, social networking website groups as well as attorney-sponsored websites, such as Oil Rig Spills, Louisiana Oil Spill Lawsuits, and BP Oil Spill Class Action, quickly sprung up to offer news, information, and potential legal assistance to victims affected by the spill and to allow potential plaintiffs to communicate about their possible claims.

In another instance, spurred by a Facebook group of more than 10,000 members, a proposed national class action lawsuit was filed against Procter & Gamble (P&G) alleging that diapers made with the DryMax technology caused severe diaper rash, blisters, and infections.

“We can definitely expect to see more and more of this whenever significant litigation affects consumers,” says Michele D. Hangley, Philadelphia, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “For major litigation matters that by their nature affect large numbers, lay people are naturally going to converge on these websites to discuss and comment on their experiences,” Hangley says. Jerry G. Bradford, Fort Worth, cochair of the Section’s Products Liability Committee, believes the social networking phenomenon is a double-edged sword.

“We are moving to a point where there are a lot more Internet savvy people,” Bradford says. “Social media websites can be both an easy and cost effective way of collecting data for companies marketing their products,” but they can also serve as a means for “lawyers to go after class action plaintiffs.”

Consumer Complaints “Go Viral”
When consumer complaints “go viral,” or gain public attention by being repeatedly circulated and posted online through the use of social media, they can also spark government intervention. Investigations may be initiated more quickly than in the past when regulators may have only received product complaints on a sporadic basis through traditional mail.

Consumers also now have additional avenues like Twitter and Facebook to almost instantly post information about their problems with particular products or services. Those complaints may gain the attention of regulators by being recirculated and reposted online by other consumers or even news organizations. As a sign of the times, the U.S. Consumer Product Safety Commission has its own Twitter account that it uses to communicate with the public about product safety issues.

Recent amendments to the Consumer Product Safe Improvement Act of 2008 [PDF] could further encourage this process by creating an online searchable public database for consumer safety complaints. The database will allow consumers for the first time to have online access to complaints about products before a product recall is initiated.

A Shrinking World
“Social media is very effective in shrinking the world,” says Lynn Lincoln Sarko, Seattle, counsel for plaintiffs in the P&G diaper litigation. “It has gone a long way to level the playing field to make the individual consumer’s voice on par with the powerful public relations resources available to large corporations,” Sarko says.

“Using social media, people are able to organize in ways they never could before and this allows them to work together to advance their rights,” Hangley says.

The increasing use of social networking websites in product promotion and marketing means defense counsel must be proactive in helping corporate clients respond to social media activity affecting their products. Sarko notes that he advises his corporate clients that “the prevalence of social media makes it more difficult to control the message about their product.”

“For companies manufacturing or marketing products, following these websites can be a very useful way to get a pulse on where trends and consumer opinions are going and allow the company to proactively manage potential risks,” says Hangley.

Ethical Considerations
Notwithstanding the potential benefits for consumers and corporate defendants, the increasing role of social networking websites in litigation does raise ethical considerations that require litigators to proceed with caution.

“While there is nothing unethical per se about seeking to identify potential clients through social networking or law firm originated websites,” Hangley notes, “attorneys must look to the applicable state professional rules regarding advertising and client solicitation and ABA Model Rule of Professional Conduct 7.3.”

Keywords: Litigation, social networking, consumer protection

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