Free Speech

Fear of Blackballing by Employers Doesn't Justify Pseudonymity in Wages-and-Hours Class Action

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From Magistrate Judge Lauren Louis (S.D. Fla.) in Harapeti v. CBS Television Stations, Inc., decided earlier this month:

This case is brought by Plaintiff Silva Harapeti on behalf of herself and other similarly situated individuals against CBS Television Stations, Inc. and CBS Broadcasting, Inc. … for unpaid wages and overtime due to misclassification of employee status under the Fair Labor Standards Act; and on behalf of Plaintiff individually for unlawful, retaliatory discharge in violation of the FLSA…. [This] Court [has] conditionally certified a class of employees who worked for Defendants at WFOR-TV as a Freelance Television Journalist or Producer at any time within the three years prior to the filing of this action, and allowed individuals from within this conditionally certified class to opt-in to the litigation by filing an opt-in notice pursuant to 29 U.S.C. § 216(b).

Now, Plaintiff seeks to file these opt-in notices either pseudonymously or under seal to conceal the identities of the opt-in plaintiffs from the Defendants and the public. Plaintiff's basis for this request is that there are a "body of putative opt-in Plaintiffs and/or witnesses within WFOR-TV and outside of the Miami, Florida television market who desire to join this lawsuit and may join this lawsuit provided that they remain anonymous to the public because they fear retaliation or fear being 'blackballed' in the industry for participating in litigation against a media conglomerate such as the Defendants in this action." …

"Generally, parties to a lawsuit must identify themselves in their respective pleadings. Fed. R. Civ. P. 10(a) requires a complaint to 'include the names of all the parties.' This rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."  However, the Eleventh Circuit has found that there are certain exceptional circumstances that "give rise to the level necessary to overcome the presumption of openness in judicial proceedings or the explicit requirements of Rule 10(a)." Namely, "[a] plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity. The risk that a plaintiff may suffer some embarrassment is not enough."

In determining whether a plaintiff has a substantial privacy right that outweighs the customary and constitutionally-embedded presumption of openness, courts should look to the following factors: "(1) whether plaintiffs seeking anonymity are challenging governmental activity; (2) whether they will be required to disclose information of the utmost intimacy; (3) whether plaintiffs will be compelled to admit their intention to engage in illegal conduct and thus risk criminal prosecution; (4) whether the plaintiffs were minors; (5) whether they were threatened with violence or physical harm by proceeding in their own names and; (6) whether their anonymity posed a unique threat of fundamental unfairness to the defendant."

Plaintiff's Motion does not contend that the case involves matters of a highly sensitive nature nor that opt-in plaintiffs would face a real danger of physical harm. Instead, Plaintiff alleges a generalized fear on behalf of witnesses or opt-in plaintiffs of retaliation by their employers and being "blackballed" from their industry as a whole. However, such "generalized assertions of fear do not outweigh the customary and constitutionally-embedded presumption of openness in judicial proceedings."

Plaintiff supports her Motion with two declarations, which evidence a toxic and extremely problematic work environment for many years preceding Plaintiff's filing of this suit, but the evidence provided by the declarants falls far short of articulating the unique threat that might justify deviation from the presumption of openness. The declaration of Kirsten Cole describes her experience working as a full-time employee at WCBS-TV in New York from 2001-2010. Cole describes her successes as a journalist; states that she and other journalists at her station were not properly paid overtime in violation of their AFTRA (American Federation of Television and Radio Artists labor union) station contract; claims that after discussing this violation amongst fellow employees, she was wrongfully terminated on the basis of taking more vacation days than she was owed; states that after leaving WCBS-TV she began freelancing for a competitor; and further claims that she did not get offered a highly coveted job at CNN because of her previous boss—a claim that seems to be based solely on the fact that CNN questioned her about her departure from her previous job during her job interview.

Similarly, Harapeti's declaration describes the activities alleged in her complaint in this case, as well as her allegations in the separate lawsuit filed against CBS Television, including pay violations. She also describes examples of stories she has been told by unknown sources at unidentified news stations from an unknown timeframe regarding intimidation, bullying, retaliation, and improper pay—none of which allegedly stemmed from joining a lawsuit. So while Plaintiff has advanced evidence of vindictive managers and worse, the retaliatory conduct described in the declarations all occurred before—and is necessarily unrelated to—any of the witnesses' participation in a lawsuit, including Plaintiff herself, who attributes at least some of the consequences she suffered at the hands of Defendants to an event that occurred in 2016, and which had nothing to do with her complaints of unfair pay practices.

Not only is the proffered reason for anonymity generalized, the circumstances surrounding the litigation fail to meet any of the factors considered by the Court in determining whether the opt-in plaintiffs have a substantial privacy right that outweighs the presumption of openness. There is no challenge to governmental activity; the disclosure of intimate information is not required; there is no risk of criminal prosecution; there are no minors involved; and there is no alleged threat of physical violence or harm.

In her Reply, Plaintiff contends that cases in other judicial circuits have permitted litigants to proceed anonymously or pseudonymously to protect them against possible economic retaliatory harm. Other courts, however, have better reasoned that where a plaintiff seeks an economic benefit from the suit—a dollar recovery from a statutory cause of action—there is even less justification for allowing a plaintiff to proceed anonymously. See, e.g., Luckett v. Beaudet, 21 F. (D. Minn. 1998) (cited with approval by Judge Hill in concurrence in Roe v. Aware Woman Ctr. for Choice, Inc (11th Cir. 2001)). Furthermore, Plaintiff heavily relies on Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000), to assert economic harm is a ground for anonymity. In that case, however, the plaintiffs did not just fear economic retaliation but, rather, retaliation of an "extreme nature" which included being "deported from Saipan, and arrested and imprisoned by the People's Republic of China"; a fear which plaintiffs substantiated with evidence.

Furthermore, Plaintiff contends that because this is an FLSA collective action with a named plaintiff, Rule 10(a) is satisfied; and because opt-in plaintiffs need only to file their written consent to become a party plaintiff, opt-in plaintiffs should be treated differently and be allowed to file their consents anonymously. Plaintiff provides no support for this proposition, and unlike traditional class actions in which a few named plaintiffs represent a largely anonymous class, the FLSA specifically requires each individual additional plaintiff to affirmatively opt-in to a case by filing a written consent. 29 U.S.C. § 216(b) ("No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought"). As there is no dispute that opt-in plaintiffs are indeed parties to the lawsuit, the fact that one plaintiff is named does not alleviate or moot the presumption of openness in judicial proceedings.

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  1. It is part of professional standard of due care for plaintiff lawyers to explain to tort plaintiffs 1) the tax consequences for a settlement for damages that are not physical (end up borrowing money to pay taxes on the full amount, no deducting expenses), 2) the publicity will make people hate them, since all money comes from the public, and 3) the fact they will never work again, even swabbing the floor of a McDonalds.

    1. A good attorney will certainly discuss tax consequences with a client, or refer the client to a tax attorney if necessary. Also structure the settlement in such a way as to minimize taxes. As a policy matter, I would favor changing the law so that attorney's fees aren't taxable; presumably the attorney pays income tax on the fees, so allowing the IRS to take taxes from the client as well is basically double dipping by the government.

      1. I don't understand the difference between damages for physical injury versus non-physical injury like loss of money. In the case of money losses, all money is a stand in for human labor, and physical.

        In the case of distress, brain changes are induced and experienced as fear, making the damage physical.

        Taxing the full amount is taxing a fictitious amount, since the plaintiff never received that money, someone else did, the plaintiff attorney.

        All lawyer fictions violate the Establishment Clause, since we are a secular nation. One such fiction is the fictitious reasonable person standard, who is really Jesus. The justification is to make the standard objective, and not just personal bias. I understand. But, that makes that lawyer fiction outrageous and in insurrection against the constitution.

        Let me know if someone wants to challenge IRS code Section 61. Any successful tort client would have standing. I do not understand why it is tolerated. Win $million in damages, end up with nothing and borrowing to pay the taxes on the $million.

        1. The difference is because damages for physical injury means that you lost something that you *already* had -- your physical ability to do things and earn money -- and so you are being compensated to pay back what you lost. With something like lost wages, on the other hand, those wages weren't already yours, and would have been taxed if you hadn't lost them, so taxing them simply produces the result there would have been anyway. So I think the difference between physical damages and non-physical damages is legitimate.

          I do agree with you that attorney's fees should only be taxed once -- either to the client or to the attorney -- and since the attorney is the one who actually gets the money, taxing the attorney makes more sense. But again, a clever attorney can structure the settlement in such a way as to minimize tax liability, and could presumably be sued for legal malpractice if he doesn't.

          1. The labor and time are physical possessions of the plaintiff. Reading case law on behalf of a client and billing are physical acts. Some of these acts of reading are painful. Not paying for them is taking away something physical from the plaintiff. All injuries involve brain changes, whether visible or invisible.

            I would also support a brain PET scan controlled study of students before 1L and after 1L.

        2. "I don’t understand"

          This is the implied preface to every statement you go on to make, isn't it?

      2. "As a policy matter, I would favor changing the law so that attorney’s fees aren’t taxable; presumably the attorney pays income tax on the fees, so allowing the IRS to take taxes from the client as well is basically double dipping by the government."

        Do you feel the same logic applies to, say, plumber's fees?

        1. No, because plumbing fees don't come from third parties who specifically designated them as plumbing fees. If I hire a plumber, the money for it comes from my general account, and I had a choice as to whether I would spend the money on the plumber or on something else. Not so with attorney's fees. By contract, that money never did belong to the client except as a legal fiction. Most of the time, the fees go directly to the law firm and the client never even sees them. So all you're really doing is taking a cut of the client's non-attorney-fee recovery.

          1. Plumbing fees that repair a business to increase profits are deductible.

        2. I favor the converse, making contingency fee agreements illegal.

          1. Right, so only the wealthy can have access to legal services. What a great idea.

            1. That's largely what we have now -- the trial lawyers are able to skim the cream off the bucket and ignore the vast majority of quite legitimate claims because they aren't lucrative enough to bother with.

              Contingency fees *have* been restricted -- lawyers were once allowed to take a set percentage of an estate as the expense of writing a will --- and states have banned that. People still are able to get wills written though.

              Banning contingency fees would force society to address the high cost of legal representation, which directly corresponds to the high cost of law school.

              Perhaps arbitration would be expanded. Perhaps there would be other things done, perhaps law firms would adjust their business models. But I don't think the people with lucrative claims would lack representation.

              1. Historically, people won a settlement, and did not pay the lawyer. Contingency fees was a collection method, not an access method. The settlement went to the lawyer, then the lawyer gave the plaintiff the crumbs. I am neutral about them. The lawyer will be motivated to not file a losing claim.

  2. Yes, silly plaintiff. Obviously American employers are notoriously generous towards employment law litigation, and not at all likely to blackball anybody.

    1. I have heard that the ultimate bad reference is a simple "she sued us" or "I can't comment due to ongoing litigation". Some companies restrict references to confirmation of work dates and eligibility for rehire. No other clues allowed.

    2. Blackballing is only serious and worthy of considering limiting free enterprise and speech when it happens to conservatives on Twitter or something.

      1. I not only support cancelling all agents of the billionaires and of the Chinese Commie Party, I support purges. The slightest expression of disloyalty to our American Way of Life should get a school defunded and shut down. The utterance of any word ending in -ism or in ophobia? Shut down the school. Scan the output of the school. The word, diversity, gets it shut down. Those are all code for Commie. Because all PC is case, and avoidance of ruinous litigation, impeach any judge enforcing any phony anti-discrimination complaint.

        Discrimination's best remedy is the open market. I would love it if a bakery refuses to make a cake for a gay marriage. Gays are rich. Their weddings are fabulous. Open a bakery across the street with a big sign. "We love gay marriages."

        1. " I support purges"

          That's because you're an authoritarian nut case.

          " The slightest expression of disloyalty to our American Way of Life should get a school defunded and shut down. "

          This is from the fool who wrote a tirade against the American Revolution over the weekend.

          Buffoon.

  3. How can you conceal your identity from the defendant when the defendant needs to produce or examine facts about each class member? How many hours did Jane Doe #97 work?

    1. IANAL and can't answer the specific question but here's a current example which might help.

      A couple of weeks ago, I received a letter from a law firm that I was part of a class action suit against a previous employer.

      Something about insurance payments the previous company didn't process properly.

      Employees who worked at the company between certain years, e.g. 2010 - 2015, were automatically enrolled.

      There are a couple of "named" plaintiffs and then the company just has to check their records to see who was employed during this period.

      1. I believe that is different from this case since anyone who had their payments improperly handled could be determined for records, while in an employment action such as this one would need to be evaluated independently to determine the validity of the charges and what was due to each employee if anything.

        1. I see....

          In my case, I was automatically enrolled as a plaintiff and there was an option for an opt-out, in this case, the folks have to actively choose to opt-in.

    2. How can you conceal your identity from the defendant when the defendant needs to produce or examine facts about each class member? How many hours did Jane Doe #97 work?

      They're not trying to conceal the identities from the defendants, but from current/future employers, which they want to do by concealing the information from the public.

      1. According to the snippet above, they are trying "to conceal the identities of the opt-in plaintiffs from the Defendants" - which is just stupid. As John asks, how can the Defendants defend themselves if they can't even look up whether plaintiff #23 was really an employee?

        1. Yes, but it's just sloppy writing by the judge. (Filing things under seal doesn't mean that the other side doesn't have access to them in the first place.) The actual motion by the plaintiff doesn't say anything about the defendants not getting the information. Indeed, it says, "This is not to say that Defendants should not learn the names and identities of the putative opt-in plaintiffs for purposes of discovery; rather, that the need for the public to know the identities of the putative collective members is outweighed by the interest of justice in this action. "

  4. Nobody cares about CBS anymore.

  5. Prof. Volokh seems to dislike pseudonymous plaintiffs -- except when he represents or supports them (although he tends not to mention those cases quite so frequently).

    1. Oh ho. So now not only do the tech platforms have to carry your speech no matter what, but people have to shop at your store too?

      1. (And I guess the tech companies do need to censor people who put together these lists since that seems to be the only actual behavior the piece is complaining about.)

  6. Often, it's easier to prove retaliation than to prove the original alleged misconduct.

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