BAEC Bulletin | January/February 2023 | 31
BY KEVIN M. HOGAN AND SEAN C. MCPHEE Western District Case Notes
Pseudonymous Plaintiffs In Doe v. M&T Bank Corp., 21-cv-01186-LJV (Apr. 14, 2022), a pro se plaintiff asserting claims of racial discrimination, state law tort claims, and a claim for breach of contract, moved to proceed under a pseudonym. Noting first that Fed. R. Civ. P. 10(a) requires the title of the complaint to name all of the parties in order to serve the vital purpose of facilitating public scrutiny of judicial proceedings, and that pseudonyms are the exception and not the rule, the Court then evaluated the Second Circuit’s ten-factor test for courts to consider when determining whether a party should be permitted to proceed under a pseudonym. In doing so, the Court found that only the first and seventh factors (whether the litigation involves matters that are highly sensitive and of a personal nature, and whether the plaintiff’s identity has thus far been kept confidential) weighed “slightly” in plaintiff’s favor. As for the other eight factors, none weighed in favor of allowing plaintiff to proceed anonymously because, among other reasons, plaintiff’s concerns were “speculative” and “unsupported,” and would call for anonymity in virtually any case alleging racial employment discrimination. Moreover, permitting the plaintiff to make his accusations from behind a cloak of anonymity while the defendant must defend against such allegations publicly would be prejudicial to the defendant. Finally, the Court found that sealing and redacting certain documents containing sensitive information are sufficient alternatives to anonymity. Ultimately, because plaintiff failed to demonstrate that his interests outweigh the public interest in disclosure, and would prejudice defendant, the motion was denied. Solicitation of Class Members In Jerry Gradl Motors, Inc. v. ACV Auctions, Inc., 21-cv-00409-CCR (Mar. 30, 2022)—a putative class action in which plaintiffs allege that defendants used an online car auction platform to artificially inflate prices for automobiles to the detriment of consumers—one of the defendants moved for sanctions against plaintiffs’ counsel, alleging improper in-person solicitation of prospective class members in violation of New York Rule of Professional Conduct 7.3. In its motion, defendant sought to restrict plaintiffs’ counsel from contacting prospective class members going forward, as well as disclosure of prior solicitations, and attorneys’ fees incurred in relation to the investigation and briefing of the issue. Observing that “federal courts may enforce professional responsibility standards pursuant to their general supervisory authority over members of the bar,” the Court found that plaintiffs’ counsel’s “primary purpose” in contacting the prospective class member was to gather information and, “[a] lthough a close question,” there was no violation of applicable ethical standards. The Court then found that a “single instance of in-person communication supported by a mixed motive does not warrant court intervention” so as to restrict plaintiffs’ counsel from contacting prospective class members going forward, in part because “Plaintiffs have a right to seek information from putative class members” in support of their claims. Finally, the Court found that an award of attorney’s fees for either party was not warranted since there was no clear record of unethical conduct by plaintiffs’ counsel and, conversely, defendant’s motion for sanctions was not frivolous, as it presented a
KEVIN M. HOGAN Managing Partner Phillips Lytle LLP
SEAN C. MCPHEE Partner Phillips Lytle LLP
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