Free Speech

Pseudonymity Litigation and Reputational/Economic Risks from Litigation

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I'm putting up some excerpts from my new draft article, The Law of Pseudonymous Litigation, hoping to get some feedback. This one is on how courts deal with claims that pseudonymity is needed to prevent harm to reputation or (relatedly) risk of economic retaliation. (The preceding portion of the article deals with the separate, though sometimes connected, argument that pseudonymity is necessary to protect information that is often seen as highly private, such as sexual orientation, transgender status, sexual behavior, mental illness, physical illness, and the like. Earlier portions dealt with, among other things, the costs of pseudonymity to the public, to adversaries, and to the judicial process.)

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When we get past privacy and move on to reputational harm—and the economic and professional harm that can stem from reputational harm—the dominant answer is no pseudonymity, except in one important class of cases. I'll begin by laying out a few categories of situations where the risk of reputational harm is especially serious, and then summarize the state of court decisions on the subject.

[1.] Risks of reputational harm

[a.] Defendants accused (perhaps wrongly) of serious misconduct

Many defendants could be ruined simply by being publicly accused of certain offenses (rape, sexual harassment, embezzlement, fraud, malpractice, and the like)—or can be materially harmed even by being sued for more minor matters, such as in landlords' unlawful detainer actions against tenants. [1] Even if they know they're innocent, they might agree to settle as a means of avoiding the lawsuit even being filed, thus giving in to a form of legally permissible blackmail ("pay me money or I'll file a lawsuit accusing you of misconduct").

[b.] Employees and others fearful of getting reputations for litigiousness

Plaintiffs suing ex-employers may worry that suing will make them look litigious, and thus turn off prospective future employers.[2]

Antidiscrimination laws generally forbid employers from retaliating against people who had brought discrimination claims or engaged in whistleblowing,  and "a subsequent employer may be held liable for retaliation against a current employee for engaging in protected activity at a past employer."[3] But, first, such retaliation is only illegal when done because of certain kinds of claims, and not many other employment claims (such as breach of contract claims). And second, such retaliation tends to be very hard to prove, since an employer has so many possible reasons to reject a prospective employee. As a result, many employers likely think that they won't be caught if they refuse to hire litigious employees—and likely think that, if they hire and later dismiss a litigious employee, the risk of a future lawsuit by the employee is greater than the risk of a lawsuit for retaliatory refusal to hire.[4]

The same of course is possible in other situations. Tenants, for instance, may worry that suing a landlord will lead other landlords to decline to rent to them.[5]

[c.] Plaintiffs fearful of public hostility stemming from the nature of their claim

Some plaintiffs might think that their claims will appear legally or morally unjustified to the public—even if the claims are themselves legally valid—and could lead to public ridicule or shaming.[6]

[d.] Parties fearful of revealing disabilities and other conditions that might lead to future discrimination

Plaintiffs filing lawsuits that reveal their disabilities, mental illnesses, and the like might worry that publicizing this information would lead to discrimination by future employers, clients, patients, and the like. In this respect, requests for pseudonymity in such cases might not just be a matter of protecting privacy[7] but also be a matter of protecting reputation and preventing retaliation.

[e.] Libel plaintiffs fearful of amplifying the allegedly false statements

Plaintiffs suing for libel may understandably worry that suing will just further amplify the libels.[8] People Googling for the plaintiff's name would see the lawsuit, and may easily find the complaint and other filings, which will necessarily repeat the libel in the course of alleging that it is indeed a libel. Likewise, newspaper articles or blog posts may be written about the lawsuit, especially if the plaintiff or defendant is famous.

Perhaps the libel lawsuits will ultimately vindicate such plaintiffs, and give them judgments that they can point to as evidence that the allegations over which they sued were false. But even when libel plaintiffs have strong cases, that might not happen. The lawsuit may be dismissed without a decision about the truth of the allegations (e.g., if a court concludes that the statements were privileged, or were said without "actual malice," without reaching whether they were true). Litigation costs might pressure plaintiffs into accepting a settlement. The defendant might not appear, which will give plaintiffs a default judgment that third parties might not credit as an authoritative decision on the facts. And in any event, there likely wouldn't be a final verdict for years.[9]

[f.] Other plaintiffs fearful of amplifying allegedly false allegations

The same concern would apply for other lawsuits that aren't framed as libel claims but are still based on false allegations or their consequences—lawsuits over wrongful expulsion from universities, wrongful firings, wrongful discipline of a professional,[10] and the like.

[2.] How courts deal with these risks

Despite these serious risks, courts generally refuse to allow pseudonymity aimed at avoiding "the annoyance and criticism that may attend any litigation,"[11] including "inability to secure future employment,"[12] "economic harm,"[13] "economic or professional concerns,"[14] "reputational harm,"[15] or "blacklisting."[16] And that's true both for plaintiffs[17] and defendants.[18]

As I suggested above, this may stem from the ubiquity of reputational risk in civil litigation (and even more so in criminal litigation). Courts do often say that "we allow parties to use pseudonyms in the 'unusual case' when nondisclosure of the party's identity 'is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.'"[19] But there is nothing "unusual" about em­­barrassment or risk of harassment, reputational injury, or ridicule stemming from people believing the allegations in a case, or being wary about a person because of those allegations.[20] If reputational damage sufficed to justify pseudonymity, our civil system would become (for better or worse) one in which pseudonymity is the norm.

Yet here too, courts are divided. In one recent sexual assault lawsuit, for instance, the judge let the defendant proceed pseudonymously, reasoning that:

[T]he court finds that the chance that [plaintiff] would suffer reputational harm is significant. The defendant is a partner of a well-known law firm in New York and an adjunct law school instructor.[21]

It's of course likely that an allegation of sexual assault would indeed be ruinous to a partner at a well-known law firm who also teaches at a law school. And it would be ruinous right away, even before any verdict in the case, and even if eventually the defendant is vindicated. But wouldn't it be devastating to a janitor as well?[22]

Likewise, in a lawsuit over an allegedly false credit report—basically, a narrow statutory quasi-libel claim—the court allowed plaintiff to proceed as a Doe, because "Publicly identifying Plaintiff risks impeding her future employment prospects by making the improperly disclosed information public knowledge."[23] Some cases that discuss a party's disability have likewise led to pseudonymization on the theory that they could lead to "severe" "economic and career consequences."[24] Some courts have also allowed pseudonymity for whistleblowers, out of a concern that being known as a whistleblower might create "a reasonably credible threat of some professional harm."[25]

[3.] The special case of university student lawsuits

And there is one other large array of cases where pseudonymity requests have often (though not always[26]) been granted: Lawsuits against universities by students who claim they had been wrongly punished based on false accusations and botched investigations, usually related to alleged sexual assault.[27] There the students' concerns are chiefly reputational: "being accused of sexual assault is a serious allegation with which one would naturally not want to be identified publicly."[28]

Yet all these cases don't generally explain why they are departing from the norm applicable in other reputational risk cases (except insofar as some of the university cases suggest that young adults should get special protection beyond what older adults get[29]). Some people are getting this priceless protection, and others are not, with little justification for the different treatment but just because they drew a judge who is more open to pseudonymity or because the judge found their plight to be specially sympathetic.

[1] See Hundtofte v. Encarnación, 330 P.3d 168 (Wash. 2014) ("Encarnación and Farías argued that even though the unlawful detainer action was meritless, they could not obtain sufficient rental housing after prospective landlords learned that they had an unlawful detainer action filed against them.").

[2] But see Strahilevitz, supra note 7, at 1245 (suggesting, though not specifically within the employment context, that "litigiousness signaling effects are not a strong basis for granting pseudonymity to parties. Though a party might prefer that his litigiousness be kept secret, that party's potential transaction partners will have good reasons for wanting to evaluate the litigiousness of a party before entering into a relationship with him.").

[3] Fredriksen v. Consol Energy Inc., No. 2:18-CV-00379-MJH, 2019 WL 2108099, *5 (W.D. Pa. May 14, 2019); see also United States v. Air Indus. Corp., No. 812CV02188JVSRNB, 2016 WL 11515131, *2 (C.D. Cal. Oct. 24, 2016) (citing 31 U.S.C. § 3730(h) as the proper protection against retaliation for False Claims Act whistleblowers, and rejecting pseudonymity on those grounds); 29 U.S.C. § 215(a)(3) (ban on retaliation for having filed Fair Labor Standards Act claim).

[4] This is why, when it comes to reporting of labor claims to government enforces, courts have recognized that "the most effective protection from retaliation is the anonymity of the informer. The pressures which an employer may bring to bear on an employee are difficult to detect and even harder to correct. The economic relationship of employer-employee makes possible a wide range of discriminatory actions from the most flagrant to those so subtle that they may be scarcely noticed. . . . Here the shield of anonymity is preferable to the sword of punishment." Wirtz v. Cont'l Fin. & Loan Co. of W. End, 326 F.2d 561, 563–64 (5th Cir. 1964).

[5] See, e.g., Yonathan A. Arbel & Roy Shapira, Theory of the Nudnik: The Future of Consumer Activism and What We Can Do to Stop It, 73 Vand. L. Rev. 929, 968 (2020); Esme Caramello & Nora Mahlberg, Combating Tenant Blacklisting Based on Housing Court Records: A Survey of Approaches, 2017 Clearinghouse Rev. 1, https://www.lcbh.org/resources/combating-tenant-blacklisting-based-housing-court-records.

[6] See Ressler, #WorstPlaintiffEver, supra note 7.

[7] See supra Parts II.F.7–II.F.10.

[8] See Roe v. Does 1–11, No. 20-cv-3788-MKB-SJB, 2020 WL 6152174 (E.D.N.Y. Oct. 14, 2020); Plaintiff's Motion to Seal True Name of Defendant, Doe v. Billington, No. 21STCV22207 (Cal. Super. Ct. Aug. 12, 2021); Doe v. Doe 1, No. 1:16-cv-07359 (N.D. Ill. Aug. 24, 2016). Doe v. Megless, 654 F.3d 404, 410 (3d Cir. 2011), takes the view "to the extent that the [allegedly libelous flyers over which plaintiff was suing] publicly accused him of being a pedophile, litigating publicly will afford Doe the opportunity to clear his name in the community." See also Doe v. Valencia Coll., No. 6:15-CV-1800-Orl-40DAB, 2015 WL 13739325, *3 (M.D. Fla. Nov. 2, 2015). But libel litigation often simply amplifies the original accusation, at least until a final judgment in plaintiff's favor; and often there won't be such a final judgment in plaintiff's favor, even if plaintiff is innocent of the charges against him, because the case will be dismissed on grounds of lack of "actual malice" or negligence, or based on some privilege, or simply because plaintiff runs out of money to litigate it. A plaintiff would reasonably much prefer to litigate pseudonymously until judgment (or until the other side stipulates to a retraction), and then publish his name only after such a final decision in his favor.

[9] To be sure, if the original libel were already broadly spread, the plaintiff might feel he has nothing to lose by suing. But often the libels (or especially oral slanders) have reached only a limited audience, especially if they aren't in Google-searchable media, or at least don't appear high up in Google search results. The plaintiff's lawsuit may cause them to be seen by a much broader audience.

[10] Doe v. Dep't of Army, No. 1:21-mc-00114-UNA (D.D.C. Sept. 24, 2021) (allegations of malpractice against a government doctor); Doe v. Garland, No. 21-mc-44, 2021 WL 3622425, at *2 (D.D.C. Apr. 28, 2021); Doe v. Lieberman, No. 1:20-cv-02148, at 5 (D.D.C. Aug. 5, 2020) (allegations of malpractice against a government doctor).

[11] In re Sealed Case, 931 F.3d 92, 97 (D.C. Cir. 2019); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000).

[12] Doe v. Georgia-Pac., LLC, No. CV125607PSGJCFX, 2012 WL 13223668, *2 (C.D. Cal. Sept. 26, 2012); see also Doe v. Princeton Univ., No. CV 20-4352 (BRM), 2020 WL 3962268, *3 (D.N.J. July 13, 2020); Doe v. Rider Univ., No. CV 16-4882 (BRM), 2018 WL 3756950, *4 (D.N.J. Aug. 7, 2018).

[13] Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011); see also Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 70 (2003); S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979) (risk of employer retaliation); Free Mkt. Comp. v. Commodity Exch., Inc., 98 F.R.D. 311, 313 (S.D.N.Y. 1983); A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 504 (App. Div. 1995); Balerna v. Bosco, No. HHDCV176082264S, 2017 WL 6884041, *2 (Conn. Super. Ct. Dec. 6, 2017).

[14] Nat'l Commodity & Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989); see also United States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242, 1249 n.10 (10th Cir. 2017); Doe v. Delta Airlines Inc., 672 F. App'x 48, 52 (2d Cir. 2016); Roe v. Skillz, Inc., 858 F. App'x 240, 241 (9th Cir. 2021); Doe v. United Services Life Insurance Co., 123 F.R.D. 437, 439 n.1 (S.D.N.Y. 1988).

[15] Doe v. Bogan, No. CV 1:21-MC-00073, 2021 WL 3855686 (D.D.C. June 8, 2021) (rejecting pseudonymity claim based on "[p]laintiff's concerns that public association with the racial slur—even in the context of a defamation suit—could harm 'his career as a law professor' or be 'embarrassing to have presented to the community at large'"); Doe v. Kansas State Univ., No. 220CV02258HLTTJJ, 2021 WL 84170, *3 (D. Kan. Jan. 11, 2021); Raiser v. Brigham Young University, 127 F. App'x 409, 411 (10th Cir. 2005);

[16] Nyarko v. M&A Projects Restoration Inc., No. 18CV05194FBST, 2021 WL 4755602, *6 (E.D.N.Y. Sept. 13, 2021), report and recommendation adopted, No. 1:18-CV-05194-FB-ST, 2021 WL 4472618 (E.D.N.Y. Sept. 30, 2021); Agerbrink v. Model Serv. LLC, 14 Civ. 7841 (JPO) (JCF), 2016 WL 406385, at *9-10 (S.D.N.Y. Feb. 2, 2016); Abdel-Razeq v. Alvarez & Marsal, Inc., No. 14-cv-5601, 2015 WL 7017431, *4 (S.D.N.Y. Nov. 12, 2015).

[17] See, e.g., P.D. & Assocs. v. Richardson, 64 Misc. 3d 763, 767 (N.Y. Sup. Ct. 2019) (libel); Candidate No. 452207 v. CFA Inst., 42 F. Supp. 3d 804, 808 (E.D. Va. 2012) (lawsuit alleging botched investigation of exam cheating); Doe v. Main Line Hospitals, Inc., No. 2:20-cv-02637-KSM, at 10 (E.D. Pa. Sept. 1, 2020) (lawsuit alleging failure to provide substance abuse treatment) ("[W]e do not discount Doe's very real concerns about reputational harm, both personally or professionally, or her fears of relapse in the event of such backlash. But those types of fears are similar to those of other plaintiffs who have alleged that they were discriminated against because of their histories of substance abuse, and it is clear that several similarly-situated plaintiffs have publicly identified themselves in their own litigations.");

[18] T.S.R. v. J.C., 671 A.2d 1068, 1074 (N.J. Super. App. Div. 1996); Doe v. Doe, 668 N.E.2d 1160, 1167 (Ill. Ct. App. 1996).

[19] Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000).

[20] Does I thru XXIII itself allowed pseudonymity only because of "extraordinary" risk of retaliation in that case, id. at 1071:

While threats of termination and blacklisting are perhaps typical methods by which employers retaliate against employees who assert their legal rights, the consequences of this ordinary retaliation to plaintiffs are extraordinary. As guest workers in Saipan [in the Northern Mariana Islands], plaintiffs may be deported if they lose their jobs. Moreover, if plaintiffs are fired, blacklisted, or deported, they will be burdened with debts arising from their contracts with the recruiting agencies. Plaintiffs fear accruing debts because they know Chinese citizens who have been threatened with arrest and incarceration because they could not pay their debts to recruiters.

[21] Doe v. Doe, No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020). But see Stern v. Stern, 66 N.J. 340, 343 n.1 (1975) (rejecting pseudonymity in a divorce case, where the husband was found guilty of adultery: "While we continue to believe that the use of initials in order to disguise the true identity of litigants serves a legitimate end where the interests of minor children are concerned, as well as upon other miscellaneous but rare occasions, we do not approve a resort to this practice where the effort is to throw the protective cloak of anonymity over a successful and well-known member of the bar, as would appear to have been the case here.").

[22] A few other trial court cases indeed allow alleged sexual abusers to proceed pseudonymously. See, e.g., cases cited in notes 102, 104 & 105. But see Doe v. Brown, No. FBTCV095024074S, 2009 WL 5322462, *1 (Conn. Super. Ct. Dec. 11, 2009) (rejecting pseudonymity for a sexual assault defendant; Balerna v. Bosco, No. HHDCV176082264S, 2017 WL 6884041, *2 (Conn. Super. Ct. Dec. 6, 2017) (rejecting pseudonymity when the parties merely "wish to protect themselves from embarrassment and/or economic harm in their respective professional and social communities as a result of having to proceed using their true names").

[23] Doe v. Innovative Enterprises, Inc., No. 4:20-cv-00107-RCY-LRL, at 4 (E.D. Va. Aug. 25, 2020) (allegedly false credit report). But see Doe v. Law Offices of Robert A. Schuerger Co., No. CV1713105BRMDEA, 2018 WL 4258155, at *2 (D.N.J. Sept. 6, 2018) (refusing to allow pseudonymity in a similar case).

[24] Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366 (E.D. Wash. Mar. 24, 2021); see also Doe v. Bryson, No. 1:12-cv-10240 (D. Mass. Sept. 10, 2021) (retroactively pseudonymizing case), granting Letter/‌‌Request, id. (D. Mass. July 14, 2021) (sealed), which seems likely to echo Letter/‌‌Request, id. (D. Mass. June 4, 2021) (seeking pseudonymization "so that her privacy and reputation online around the medical disability" that formed the basis of the lawsuit "is not readily searchable," and "to prevent the Plaintiff from further employment discrimination which has gravely impacting her securing employment").

[25] In re Sealed Case, 931 F.3d 92 (D.C. Cir. 2019); SEB Inv. Mgmt. AB v. Symantec Corp., No. C 18-02902 WHA, 2021 WL 3487124, *2 (N.D. Cal. Aug. 9, 2021).

[26] Doe v. Princeton Univ., No. CV 20-4352 (BRM), 2020 WL 3962268, *3 (D.N.J. July 13, 2020); Doe v. Rider Univ., No. CV 16-4882 (BRM), 2018 WL 3756950, *4 (D.N.J. Aug. 7, 2018); K.W. v. Holtzapple, 299 F.R.D. 438, 442 (M.D. Pa. 2014); Doe v. Rollins Coll., No. 616CV2232ORL37KRS, 2017 WL 11610361 (M.D. Fla. Mar. 22, 2017) (rejecting pseudonymity in such a case); see also Balerna v. Bosco, No. HHDCV176082264S, 2017 WL 6884041, *2 (Conn. Super. Ct. Dec. 6, 2017) (rejecting pseudonymity in non-Title-IX case arising out of alleged sexual assault at college).

[27] E.g., Doe v. Rollins Coll., No. 6:18-cv-1069-Orl-37LRH, 2018 WL 11275374, *4 (M.D. Fla. Oct. 2, 2018); Doe v. Kenyon College, No. 2:20-CV-4972, 2020 WL 11885928 (S.D. Ohio Sept. 24, 2020); Doe v. Rector & Visitors of George Mason Univ., 179 F. Supp. 3d 583, 593 (E.D. Va. 2016); Doe v. Trustees of Dartmouth Coll., No. 18-CV-040-LM, 2018 WL 2048385, *5–*6 (D.N.H. May 2, 2018); Doe v. Univ. of St. Thomas, No. 16-cv-1127, 2016 WL 9307609, *2 (D. Minn. May 25, 2016); Doe v. Alger, 317 F.R.D. 37, 42 (W.D. Va. 2016); Doe v. Purdue Univ., 321 F.R.D. 339, 342 (N.D. Ind. 2017); Doe v. Univ. of South, No. 4:09-CV-62, 2011 WL 13187184, at *19 (E.D. Tenn. July 8, 2011); Doe v. Texas A&M Univ.-Kingsville, No. 2:21-cv-257, at 1 (S.D. Tex. Nov. 4, 2021) (granting Motion to Proceed Under a Pseudonym, id. (Nov. 2, 2021); see also Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366, *2 (E.D. Wash. Mar. 24, 2021) (accusations of domestic violence by medical school student); Doe v. Doe, 90 Mass. App. Ct. 1120, *1 (2016) (upholding trial court's sealing of a college student's abuse prevention order case against another student, in which the trial judge had "determined that the standard for issuance of an abuse prevention order had not been met").

[28] Doe v. Univ. of South, No. 4:09-CV-62, 2011 WL 13187184, at *19 (E.D. Tenn. July 8, 2011).

[29] See supra Part II.E.2.