(Reuters) - It takes guts to file a suit in U.S. courts. Our justice system, as you know, presumes court proceedings are public. So the price of admission to the system is public exposure.
In all but a tiny minority of cases, of course, that exposure carries scant consequences. But in some rare instances, emerging in public as the plaintiff in a lawsuit can be devastating or even life-threatening: a child sex-trafficking victim suing the website that enabled her victimization; a prison inmate filing a class action accusing guards of using unwarranted violence; members of a minority group alleging systemic racism in a county police force.
To assure that in those rare instances, when plaintiffs cannot come forward to assert claims of grave public concern without risking their safety, federal courts have devised balancing tests to determine whether the plaintiff’s need to remain anonymous outweighs the public interest in open court proceedings and the defendant’s right to know the accuser’s identity.
The 2nd U.S. Court of Appeals established its guidelines in 2008’s Sealed Plaintiff v. Sealed Defendant (537 F.3d 185), a case in which a pro se plaintiff alleged that she had been raped and assaulted by state and municipal officials and feared retaliation if she were to reveal her name. The 2nd Circuit test calls for judges to consider, among other factors, the plaintiff’s risks and vulnerabilities, the nature of the allegations and whether the public interest is advanced by disclosure of the plaintiff’s identity.
On Monday, four pseudonymous plaintiffs filed a fraud complaint against the Trump Corporation, Donald Trump in his personal capacity, and three of Trump’s children, alleging that the defendants duped unsophisticated consumers into investing in Trump-promoted “business opportunities” or signing up for Trump-backed training programs that were in fact little more than cash funnels to the Trump family. The 164-page complaint filed in federal district court in Manhattan, asserts a racketeering conspiracy in which the defendants engaged in systemic, years-long consumer fraud.
The Trump Organization has said the suit is a completely meritless political stunt. “This is clearly just another effort by opponents of the president to use the court system to advance a political agenda,” a Trump Organization spokesman said in an email statement. “It is also quite telling that the plaintiffs and, more importantly their political activist attorneys, each of whom have longstanding and deep ties to the Democratic party, waited until just over a week before the midterm elections to file this suit even though they have been obviously planning and working on this for months. The motivations here are as plain as day.”
The racketeering suit is being led by Roberta Kaplan of Kaplan Hecker & Fink and Andrew Celli of Emery Celli Brinckerhoff & Abady. Kaplan, best known for representing Edie Windsor, the New York City gay rights advocate who successfully challenged the federal Defense of Marriage Act at the U.S. Supreme Court. In 2017, Politico cited Kaplan as one of the liberal legal icons spearheading a new organization, Integrity First for America, “aiming to step up the legal pressure on President Donald Trump’s business empire.”
I was particularly interested that the plaintiffs in the new suit – described as “a hospice worker, a self-employed formerly homeless man, a food delivery driver and a mother of three who works at a national retail store” - moved right away to proceed under pseudonyms. Their motion to litigate anonymously argues that if their identity is revealed, “they and their families will undoubtedly be exposed to crushing mental, economic and professional harm — whether by President Trump, his supporters, or both,” the brief said. “Indeed, in light of recent events, it is also likely that Plaintiffs and their families will face credible threats of violence (or actual violence) if they are revealed to the world as litigants against President Trump.”
The brief conceded that the Trump plaintiffs were not revealing sensitive personal information, like pseudonymous plaintiffs alleging sexual abuse, medical history or sexual orientation. Nor were these plaintiffs claiming they feared physical retaliation from the defendants.
But they argued that President Trump has a history, dating back to before his candidacy, of subjecting his legal opponents to “threats, public backlash, intimidation, and reprisals.” The brief recounts the story of the original named plaintiff in a fraud class action by Trump University customers. In 2016, she was granted leave to withdraw from the case after “because she could no longer bear the retaliation and other consequences of being publicly named.” (The class action settled for $25 million just after President Trump took office.)
In light of that history, and the fervor of President Trump’s supporters, plaintiffs in the new case should be allowed to shield their true identities, their lawyers argued. “Using a pseudonym here does not impact societal access to the workings of the judiciary,” the brief said. “Moreover, there are no alternative mechanisms for protecting plaintiffs’ identities. If plaintiffs are required to use their actual names in this lawsuit, there is no doubt that they will be immediately publicly identified in the press and on the Internet, at their jobs and on social media, and subjected to retaliation. This is not a case where it would be sufficient to use a protective order to shield disclosure of certain confidential information, such as medical records. Here, harm to plaintiffs will occur by the public disclosure of their names alone.”
The Trump Organization had no comment on the anonymity of the plaintiffs. But I talked to plaintiffs’ lawyer Robbie Kaplan about why, in her view, it’s okay for plaintiffs to level fraud accusations against the president, his business and his family members without using their own names.
“The law is changing in this area, Kaplan said. “The scope of what we understand to be Doe cases is expanding.”
The prevalence of social media and the vitriol of political debate, Kaplan said, virtually guaranteed that the plaintiffs in the new suit would be targeted for online attacks, at a minimum. “It’s a terrible phenomenon,” she said. I wish we lived in a time when a person filing a federal complaint didn’t have to worry about her whole life being exposed.” But we don’t, Kaplan said.
Her clients, she said, are afraid that if their names are made public, they will be subjected to “horrific harassment and retaliation” from Trump supporters. And the four plaintiffs in the new suit, she said, don’t have the financial means to protect themselves or their confidential data.
Kaplan said pseudonymous filings have become routine in, for instance, suits in which college student allege their schools have violated Title IX by failing to address sexual harassment or assault claims. Courts have become increasingly tolerant to shielding plaintiffs’ identity from the public as long as defendants have an opportunity to test their credibility.
I have no reason to doubt Kaplan’s contention that Doe filings are on the rise, nor even that the Internet presents a privacy threat that courts never could have been imagined when they established the common law presumption that litigation should be conducted in public. Now, when every federal lawsuit is instantaneously available to anyone with a computer and salacious filings are quickly amplified by news outlets and social media sites, plaintiffs expose themselves to the entire world, not just to the courthouse clerk and whoever happens to be hanging around when their lawyer files their complaint.
But I’m worried about the overuse of anonymity. When people show their faces to make allegations, they gain credibility because they personally assume the risk of being exposed in public as a liar. When you sue as a Doe, you don’t bear that risk.
Kaplan and her co-counsel are extremely credible lawyers and I have no reason to think their clients have not experienced exactly what they allege in the new Trump suit. But neither can I or anyone else test their clients’ credibility because we don’t know who they are. That leaves their claims vulnerable to defense allegations of political gamesmanship.
In politically explosive litigation, anonymity may be a luxury we can’t afford.