The Volokh Conspiracy

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Pseudonymous litigation, and alleged skulduggery in the world of romance novelists


Pseudonymous lawsuits are generally (but not always) disallowed—but what if the pseudonym isn't just for the purposes of litigation, but is instead the name under which the person is known in the community in which the dispute arose? That's the hot, exciting subject of Wednesday's Nevada federal district court decision in Alexander v. Falk; but first, I just can't resist this quote from "Randi Alexander"'s site:

New York Times and USA Today Bestselling Author Randi Alexander knows a modern woman dreams of an alpha cowboy who takes the reins, and guarantees they're rode hard and put up satisfied.

OK, back to the court decision:

The Plaintiffs, "Randi Alexander" and "Jackson Young," are suing under pseudonyms. "Randi Alexander" is a pen name for an individual romance novelist. "Jackson Young" is a stage name for an individual professional model and country music performer. Plaintiffs allege that they have been defamed by Defendants Kathryn Falk [a romance novel promoter], Romantic Times, Inc. [a romance-novel-related magazine] and … Gracie Wilson [also the pseudonym of a romance author]….

Plaintiffs allege that during the April 2016 convention, Defendants Wilson, Falk and Romantic Times began or continued a malicious campaign to defame and disparage Alexander and Young. Falk and Wilson allegedly made false statements to a group of convention attendees, including romance novel authors and publishers, that: (a) Alexander and Young were involved in secret, inappropriate, illicit, salacious, and scandalous relationships with each other and third parties; (b) were blackmailing publishers and others into using and promoting Plaintiffs' goods and services; (c) Young was a predator; (d) Wilson was living in fear because of Young's threats to her; (e) Young had other victims; (f) Young sent inappropriate text messages to various authors, including a big name author whose husband became aware of texts and made threats against Young; (g) Young fraudulently obtained money from authors for services he did not perform; and (h) Young was blackmailing Alexander by using details of their supposed inappropriate relationship to keep her in a business partnership. Plaintiffs allege that the defamatory campaign continued after the convention….

Plaintiff Young alleges that as a result of the Defendants' defamation campaign, promoters of concerts cancelled his scheduled appearances or informed him that they would no longer have an association with him. A book publisher also cancelled a photo shoot with Young, allegedly as a result of defamatory statements made by Defendant Falk. Young alleges that due to the fallout, he was forced to shut down his social media and website. Plaintiff Alexander alleges that her reputation has suffered as well, and that she has lost out on business contracts, relationships and opportunities. Plaintiffs allege claims for violation of the Lanham Act-Trade Libel/Commercial Disparagement, Lanham Act-False Advertising, common law business disparagement/trade libel, defamation, false light, intentional interference with contractual relations and prospective economic advantage, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud/deceptive trade practices, and civil conspiracy.

Plaintiffs request permission to continue to prosecute this action under their professional pseudonyms because they fear that if their true names are disclosed to Defendants or become publicly known, they will be subjected to harassment and abuse touching on their personal lives which they have kept separate from their professional identities and activities. In support of their motion, Plaintiffs have submitted exhibits showing comments posted on the Romantic Times Facebook account in early May, 2016, in response to a post from an individual who stated that "a certain cover-model has been removed from the group due to multiple allegations of abuse and blackmail. Anyone feeling the need to jump to his defense can certainly do so but I'm not letting him back in." The responses included a May 3, 2016, post from Defendant Falk which stated that Plaintiff Young was banned from any RT events….

Plaintiff also attached posts from the Facebook account of Defendant Wilson made in early May 2016 setting forth the manner in which she had allegedly been harassed by Plaintiff Young. The comments in response to Defendant Wilson's posts also appear to have been made in early May 2016. In March 2017, Defendant Wilson posted a request for donations to help her retain counsel to defend this lawsuit. In that post, Defendant Wilson repeated allegations that she had previously made against Plaintiff Young in May 2016. This post drew several contributions from individuals who indicated their sympathy and support for Defendant Wilson….

A plaintiff's use of a fictitious name runs afoul of the public's common law right of access to judicial proceedings and the requirement of Fed.R.Civ.P. 10(a) that the complaint include the names of all the parties…. "[T]he normal presumption in litigation is that parties must use their real names…. This presumption is loosely related to the pubic's right to open courts, … and the right of private individuals to confront their accusers…." … Rule 10(a) "protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties…. This creates a strong presumption in favor of parties' proceeding in their own names. Defendants have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not." … [In a Seventh Circuit case] in which the plaintiff sued her ex-boyfriend for illegally distributing a videotape of them having sex when the plaintiff was a minor … [the court] noted that plaintiff had denied defendant the shelter of anonymity in bringing her lawsuit, and "yet it is [defendant], and not the plaintiff who faces disgrace if the complaint's allegations can be substantiated. And if the complaint's allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability."

Courts have nevertheless permitted parties to proceed anonymously when special circumstances justify secrecy. A party may be permitted to use a pseudonym "in the 'unusual case' when nondisclosure of the party's identity 'is necessary … to protect a person from harassment, injury, ridicule or personal embarrassment.'" The court must balance the need for anonymity against the general presumption that parties' identities are public information and the risk of unfairness to the opposing party. Plaintiffs have been permitted to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve privacy in a matter of sensitive and highly personal nature; or (3) when the anonymous party is compelled to admit his or her intention to engage in criminal conduct and thereby risk criminal prosecution.

In cases where a pseudonym is 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…. [E]xamples of plaintiffs who are particularly vulnerable to retaliation … [include] children plaintiffs or a prison inmate who served as a government witness….

In this case, Plaintiffs Alexander and Young do not allege fear of retaliatory physical injury if their true names are disclosed. The potential injury to Plaintiffs if their true names are publicly disclosed in this lawsuit is the reputational and emotional injury that they will suffer in their private lives, which have so far been shielded by their use of professional pseudonyms.

This case differs from any of the … cases cited by the parties, in that the Plaintiffs are known to the Defendants, and to the romantic novel and musical performance communities in which the allegedly defamatory statements have been published, only by their professional pseudonyms. Plaintiff Young alleges that his ability to earn a livelihood as a professional model or country music entertainer under the name "Jackson Young" has been damaged by Defendants' allegedly defamatory statements. Plaintiff Alexander more generally and vaguely alleges that her reputation as the romance novelist "Randi Alexander" has been damaged by Defendants' defamatory accusations and she has lost out on business contracts and relationships.

The case for allowing Plaintiffs to proceed under their professional pseudonyms is strengthened by their allegation that Defendants stated that Plaintiffs engaged in an illicit, salacious and scandalous relationship with each other. Plaintiff Alexander is married, and this allegation if connected to her true name could cause injury to her reputation in the community where she is known by her true name. An accusation of marital infidelity is a matter of a sensitive and highly personal nature. Although Plaintiff Young is apparently not married, he could also potentially suffer similar personal harm in his private life if this accusation is connected to his true name.

It is possible that persons who know Plaintiffs by their true names are also aware of their professional pseudonyms and therefore can or already have connected the allegations in this lawsuit to the Plaintiffs. If this is established, then the grounds for permitting Plaintiffs to proceed under their professional pseudonyms will diminish. At this point, the Court accepts Plaintiff's representations that they have kept their actual identities separate from their professional identities.

Given that Plaintiffs are known to Defendants and the professional communities in which they have allegedly been defamed only by their professional pseudonyms, the public interest in requiring that Plaintiffs sue in their true names is not strong. Assuming that there may be some validity to Plaintiffs' allegations that they have been defamed, requiring them to sue in their true names would potentially spread the damaging effects of the defamation to the arena of their private lives where it has not yet reached.

Defendants' counsel had been provided with Plaintiffs' true identities and is able to conduct discovery relevant to the claims in this case…. Accordingly, … Plaintiffs may proceed with this action under their professional pseudonyms, and without disclosing their true names to the Defendants or the public, up to the time of trial. Prior to trial, the Court will determine whether Plaintiffs should be required to publicly disclose their true names at trial.