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Courts Reach Different Conclusions Regarding Whether FLSA Plaintiffs Should Be Allowed to Proceed Anonymously Under Pseudonyms

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Although the issue comes up from time to time, there are few decisions discussing whether FLSA plaintiffs and opt-in plaintiffs may proceed with their claims anonymously notwithstanding the federal rules of civil procedure’s requirement that each party identify itself and the FLSA’s requirement under 29 U.S.C. § 216(b) that any person wishing to participate in a collective action file a consent to join.  As discussed here, two recent decisions took up this issue and reached different results, with one court in California permitting exotic dancers to proceed under pseudonyms, while a court in New York denied a similar motion on behalf of “white collar” worker at Bloomberg.

N.D.Cal.: Exotic Dancer Met Burden to Proceed Anonymously

Jane Roes 1-2 v. SFBSC Management, LLC

In the first case, the plaintiffs, a putative class of exotic dancers, requested that they be able to proceed under pseudonyms and the court granted their motion. The plaintiffs ask the court to do two things: First, to allow them to proceed under “Jane Roe” pseudonyms; and, second, to allow future plaintiffs to join this suit by filing their FLSA consents under seal. (ECF No. 17 at 1.) (Plaintiffs in FLSA collective suits must affirmatively “opt in” by filing consent forms. 29 U.S.C. § 216(b).). Noting that filing consents under seal was unnecessary in light of the order allowing each of the plaintiffs to use pseudonyms the court denied the second branch of plaintiffs’ motion.

The court applied a balancing test to reach its holding:

The plaintiffs express a legitimate concern for their privacy and, more compelling for the anonymity analysis, an understandable fear of social stigmatization. The Ninth Circuit has recognized that courts grant anonymity where it is needed to “preserve privacy in a matter of sensitive and highly personal nature.” Advanced Textile, 214 F.3d at 1068 (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993)). “In this circuit,” consequently, “we allow parties to use pseudonyms” where this is “necessary” to “protect a person from … ridicule or personal embarrassment.” Advanced Textile, 214 F.3d at 1067–68 (emphasis added).

Arguing against pseudonymity, SFBSC points to 4 Exotic Dancers v. Spearmint Rhino, No. 08–4038, 2009 WL 250054 (C.D.Cal. Jan. 29, 2009). (See ECF No. 19 at 4–5.) The plaintiffs in that case—who, as the case’s name suggests, were also exotic dancers—were denied anonymity where, in SFBSC’s view, they gave the “same reasons” for withholding their real names as the present plaintiffs. (Id. at 4.) SFBSC calls 4 Exotic Dancers “indistinguishable” from this case. (Id.)

The court does not agree that 4 Exotic Dancers compels the denial of anonymity here. That decision does not reflect how this district has understood the law of anonymity. The court in 4 Exotic Dancers cited a decision of this district, Doe v. Rostker, 89 F.R.D. 158 (N.D.Cal.1981), for the proposition that “some embarrassment or economic harm is not enough” to justify anonymity. See
4 Exotic Dancers, 2009 WL 250054, at *3 (citing Rostker, 89 F.R.D. at 162). SFBSC cites Rostker for the same idea. (ECF No. 19 at 3.) But Rostker itself distinguishes those insufficient fears (“some embarrassment or economic harm”) from the following, which justify anonymity:

A plaintiff should be permitted to proceed anonymously in cases where a substantial privacy interest is involved. The most compelling situations involve matters which are highly sensitive, such as social stigmatization …. That the plaintiff may suffer some embarrassment or economic harm is not enough. Rostker, 89 F.R.D. at 162 (emphases added). This district has thus considered “social stigmatization” among the “most compelling” reasons for permitting anonymity. This is consistent with the Ninth Circuit’s instruction in Advanced Textile that anonymity is permitted where the subject matter of a case is “sensitive and highly personal,” and where disclosing a party’s identity threatens to subject them to “harassment, … ridicule or personal embarrassment.” See Advanced Textile, 214 F.3d at 1067–68.

The plaintiffs have identified an adequate threat of personal embarrassment and social stigmatization that, under Advanced Textile, militates for allowing them to proceed under Jane Roe pseudonyms. To the extent that 4 Exotic Dancers points to a different conclusion, the court respectfully disagrees with that decision.

This case moreover falls into what may be roughly called the area of human sexuality. As SFBSC recognizes (see ECF No. 19 at 4–5), courts have often allowed parties to use pseudonyms when a case involves topics in this “sensitive and highly personal” area. The most famous case of this sort—which, however, did not address the question of pseudonymity—is certainly Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). But there are many others. E.g., United States v. Doe, 488 F.3d 1154, 1155 n. 1 (9th Cir.2007) (allowing defendant convicted of producing child pornography to use pseudonym); Doe v. Megless, 654 F.3d 404, 408 (3rd Cir.2011) (“Examples of areas where courts have allowed pseudonyms include … abortion, … transexuality … and homosexuality.”) (quotation omitted) (cited by SFBSC at ECF No. 19 at 4–5); John Doe 140 v. Archdiocese of Portland, 249 F.R.D. 358, 361 (D.Or.2008) (plaintiff alleging that he was sexually abused as minor allowed to proceed anonymously); Doe v. United Serv. Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y.1988) (sexual orientation); Doe v. Deschamps, 64 F.R.D. 652 (D.Mont.1974) (abortion; collecting older cases).

The court does not mean to equate the various specific topics that these cases subtend. A broad brush will do: For purposes of the anonymity discussion, it is enough to observe that courts have regularly responded to the especially sensitive nature of this area and have been willing to grant parties anonymity. The same judicial instinct should apply here. SFBSC’s contention that the business of nude and semi-nude dancing “simply does not fall within” the field of “sexuality” (ECF No. 19 at 5) is unconvincing.

The court also reasoned that each of the dancers faced a real potential harm, should they be compelled to disclose their actual identities:

The court must also consider the plaintiffs’ claim that disclosing their identities would subject them to potential harm, both physical and with regard to their careers. (See ECF No. 17 at 3–4.) The Ninth Circuit has again provided guidance: “[I]n cases where, as here, pseudonyms are used to shield the anonymous party from retaliation, the district court should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm, (2) the reasonableness of the anonymous party’s fears; and (3) the anonymous party’s vulnerability to such retaliation.” Advanced Textile, 214 F.3d at 1068. The plaintiffs “are not required to prove that the defendants intend to carry out the threatened retaliation. What is relevant is that plaintiffs were threatened, and that a reasonable person would believe that the threat might actually be carried out.” Id. at 1071. While this language specifically addresses career retaliation by an employer defendant, its terms and concerns usefully frame the general question of whether a plaintiff seeking anonymity faces any harm. The latter is, again, a recognized basis for granting anonymity. E.g., id. at 1068 (anonymity is allowed where identification “creates a risk of … physical or mental harm”); Doe, 655 F.2d at 922 n. 1 (using pseudonyms where informant “faced a serious risk of bodily harm”).

The plaintiffs express reasonable concerns that disclosing their identities would threaten them with both career and possibly physical harm. (ECF No. 17 at 3–4.) For such “privacy and personal[-]safety reasons,” they explain, at SFBSC’s nightclubs, “it is customary for the exotic dancers to use … stage names.” (Id. at 3.) SFBSC does not deny this: either the practice or its rationale. Finally, SFBSC has “agree[d] that that the public disclosure of an exotic dancer’s true identity presents substantial risk of harm.” (ECF No. 26 at 12 (emphasis added).) This consideration favors allowing the plaintiffs to proceed pseudonymously.

Finally, the court concluded that any potential prejudice to the defendants and right to judicial access was outweighed by the potential harm the plaintiffs faced. Thus, the court granted the plaintiffs’ motion.

Click Jane Roes 1-2 v. SFBSC Management, LLC to read the entire Order on Anonymity & Sealing.

S.D.N.Y.: White Collar Worker Suing Bloomberg Failed to Meet Burden to Proceed Anonymously

Michael v. Bloomberg L.P.

In the second case, the plaintiff was willing to provide his real name to Bloomberg, but refused to do so absent an agreement from Bloomberg to keep his name confidential. Thus, by his motion, the plaintiff requested that the court permit the plaintiff to proceed pseudonymously, and plaintiff additionally asked that; (1) plaintiff’s identity be filed under seal with the court; (2) plaintiff’s name, address, and other identifying information be supplied to Bloomberg; and (3) Bloomberg be directed not to disclose plaintiff’s identity or make negative public remarks concerning plaintiff. Holding that the plaintiff had failed to meet his burden of proof to warrant the requested relief, the court denied plaintiff’s motion.

In opposition, Bloomberg argued that plaintiff’s privacy concerns were too vague and that plaintiff’s request was contrary to the written notice requirement of 216(b) of the FLSA. The court agreed and reasoned:

Bloomberg has the better of the argument. Under Rule 10(a) of the Federal Rules of Civil Procedure, a complaint must “name all the parties.” Fed.R.Civ.P. 10(a). “This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188–89 (2d Cir. 2008) (internal quotations omitted). The use of pseudonyms “runs afoul of the public’s common law right of access to judicial proceedings, a right that is supported by the First Amendment.” Doe v. Del Rio, 241 F.R.D. 154, 156 (S.D.N.Y.2006) (internal quotations omitted); see also Doe I v. Four Bros. Pizza, No. 13 CV 1505 VB, 2013 WL 6083414, at *9–10 (S.D.N.Y. Nov. 19, 2013) (rejecting FLSA plaintiffs’ request for anonymity despite threat of retaliation from employer).

The court applied a similar balancing of interests test as the court in the Jane Roe case, but reached the opposite conclusion on the facts before it:

The Court has balanced plaintiff’s possible interest in anonymity against the potential prejudice to defendants and the public’s interest in disclosure, and concludes that the factors weigh in favor of denying plaintiff’s motion. There is no issue here of physical retaliation or mental harm against plaintiff. Nor is this the type of unusual case involving matters of a highly sensitive or personal nature—i.e., claims involving sexual orientation, pregnancy, or minor children—in which courts have justified anonymous plaintiffs proceeding pseudonymously. To depart in this case from the general requirement of disclosure would be to hold that nearly any plaintiff bringing a lawsuit against an employer would have a basis to proceed pseudonymously. The court declines to reach such a holding.

The court also rejected plaintiff’s middle ground position that he be permitted to disclose his identity to Bloomberg, under the condition that they maintain same confidentiality, in the name of judicial access.

Click Michael v. Bloomberg L.P. to read the entire Opinion.

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