December 22, 2010
Court Rejects Plaintiff's Proposal of Class Notice via Twitter, SMS, and Email -- Jermyn v. Best Buy
[Post by Venkat]
Jermyn v. Best Buy, No. 08-Cv-00214-CM-DCF (S.D.N.Y.; Dec. 06, 2010)
Plaintiffs brought a class action against Best Buy alleging that Best Buy failed to honor its price-match guarantee. The court certified the class with respect to New York residents who had bought certain items from Best Buy since 2002 and who were denied Best Buy's price guarantee.
The named plaintiff suggested several forms of notice to potential class members, including notification via: (1) Best Buy's "Twelpforce" Twitter account, (2) SMS, and (3) email. Noting that overinclusive individual notice is not required, and that Best Buy is only required to undertake "reasonable steps" to identify individual affected class members, the court rejects all three suggestions.
Notice via Twitter: The court conducted a random sample of Best Buy's "Tweplforce" account and concluded that it was primarily a medium for providing technical support to customers:
As an online help desk--primarily focused on providing technical advice-- Twelpforce is not tied to Best Buy's price-match guarantee in any way and therefore there is no evidence that customers denied a valid price match use or even know of Twelpforce. Further, as Best Buy points out, Twelpforce is a nationwide help desk and Best Buy cannot limit its "tweets" by geographic area. Thus, a "tweet" about the pending class action will likely reach a nationwide audience--a group that is significantly broader than the defined class.
The courts rejects this form of notice, observing that:
Notice via Twitter is a form of individual notice (akin to notice via mail).
Notice via SMS: As with respect to the suggested notice via Twitter, the court accepts Best Buy's argument that notice via SMS was overinclusive, based on Best Buy's argument that:
Best Buy is unable to restrict its text messages to class members. Best Buy's list of mobile telephone numbers includes the telephone numbers of employees (who are excluded from the class) and select high-level Reward Zone members (i.e., members of Best Buy's loyalty program). Although Best Buy may be able to restrict its text messages to New York customers, there is no link between the list of mobile telephone numbers (which includes individuals excluded from the class definition) and class members. Moreover, the list of mobile telephone numbers is underinclusive because it contains only a select group of Reward Zone members and Best Buy employees.
Notice via email: The proposed email notice suffered the same fate, since Best Buy was "unable to restrict notice via email to only class members . . . [it] only collected customer emails when a customer makes a purchase on bestbuy.com; when a customer obtains a protection or service plan for an item purchased at bestbuy.com or at a Best Buy store; or when a customer voluntarily shares her email address when visiting bestbuy.com."
The court's treatment of Twitter as an form of individual notice was interesting, and not entirely accurate. Tweets are not "individualized messages" in the sense that the list of recipients is not controlled by the sender (there's not a finite list) - the list of recipients includes people who follow the general stream of Tweets as well as those who have opted in to receive messages. Additionally, tweets can be disseminated further by those who see initial tweets, increasing the odds that the word would get out to its intended audience.
It's also worth noting that the "Twelpforce" account is not Best Buy's only Twitter account. For some reason, plaintiff didn't suggest notice via Best Buy's main account, which has approximately 123,000 followers. Given that the costs involved in disseminating notice via Twitter are de minimis, I'm surprised the court wasn't more open to the suggestion. Also, I was surprised that neither party brought up Facebook as a possibility. Best Buy's Facebook page is approaching 2 million followers, and offers a similarly inexpensive way to get the notice out to a broad group of interested people. I would think Best Buy's resistance stems from not wanting to suffer any negative branding implications from including news of this class action in its overt marketing channels, but I would have thought the minimal cost would have swayed the court.
The accepted form of class action notices will evolve over the years (the court agreed that notice via Best Buy's website was proper, and Best Buy did not object to class counsel setting up a website where it would disseminate notice). Interestingly, the court approves notice via the New York Times, and suggests a few other local newspapers where notice is appropriate, even though there's no empirical evidence that these methods of notice are any better targeted to reach prospective class members than the ones proposed by class counsel, and undoubtedly they are more expensive. (I don't know where revenue from this notice fits into a newspaper's revenue stream, but it's nice to see that the court is looking out for the dying print media.)
I was somewhat surprised - given the infinite degree of targeting and consumer tracking companies are portrayed as engaging in - that the court did not push Best Buy to take additional steps to identify individual customers within the class. Under the rules as articulated by the court, only class members that can be identified through "reasonable steps" should receive individual notice, but I would have thought Best Buy would have ample "reasonable" means at its disposal to identity affected customers.