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  • Tom Holman

SDNY Denies Employee’s Motion To Use A Pseudonym in FLSA and NYLL Case Against Bloomberg L.P.

In a recent S.D.N.Y. decision, Michael v. Bloomberg L.P., 2015 U.S. Dist. LEXIS 16683 (S.D.N.Y. Feb. 11, 2015), the court denied the plaintiff’s motion for a protective order and leave to proceed under a pseudonym and stayed the plaintiff’s motion to approve a collective action notice until he filed a second amended complaint identifying himself by name.

The plaintiff is a former employee in the Analytics Department at Bloomberg L.P. He has alleged that Bloomberg failed to pay proper overtime premiums to workers in its Analytics Department and is seeking unpaid overtime wages, liquidated damages, costs and attorneys’ fees, as well as declaratory relief under the Fair Labor Standards Act and the New York Labor Law. Plaintiff made two motions to the court. First, he filed a motion for a protective order and leave from the court to proceed under the pseudonym “Eric Michael.” He asked the court to (1) file his identity under seal with the court; (2) supply his identifying information to Bloomberg; and, (3) to direct Bloomberg not to disclose his identity or make any negative public remarks about him. Second, plaintiff moved the court to approve a collective action notice which asked the court to authorize (1) the issuance of plaintiff’s proposed notice to all potential class members; (2) the issuance of plaintiff’s proposed reminder mailing to all potential class members; and, (3) the issuance of plaintiff’s proposed Consent to Sue form.

In support of his motion for a protective order, plaintiff argued that “Bloomberg has publicly disparaged plaintiffs in other FLSA suits against Bloomberg, which could negatively impact [his] future employment prospects.” He further argued that “‘his need for anonymity in the public filing to prevent a lifetime of harm outweighs any harm to the public or Bloomberg.’” In opposition, Bloomberg argued that “‘as in any FLSA lawsuit, Bloomberg has a right to know the identity of its adversary, the putative class and opt-in members have a right to know whether [plaintiff] will be an adequate representative for them, and the public has a legitimate interest in knowing the facts at issue in court proceedings.’” The court sided with Bloomberg. The court held that under FRCP 10(a) “a complaint must ‘name all the parties’” and that this serves “‘the vital purpose of facilitating public scrutiny of judicial proceedings…’” The court acknowledged that the Second Circuit has carved out a limited number of exceptions to this rule and identified the “central inquiry in determining whether a plaintiff may proceed pseudonymously is a balancing of a ‘plaintiff's interest in anonymity...against both the public interest in disclosure and any prejudice to the defendant.’” After balancing the plaintiff’s interest in anonymity against the potential prejudice to the Bloomberg and the public’s interest in disclosure, the court found that there was no issue of physical retaliation or mental harm against the plaintiff, nor did this case involve any matters that are highly sensitive or of a personal nature which justify allowing a plaintiff to proceed pseudonymously. The court also stated that “[t]o depart in this case from the general requirement of disclosure would be to hold that nearly any plaintiff bringing a lawsuit against an employer would have a basis to proceed pseudonymously.”

The court directed the plaintiff to file a second amended complaint. The second amended complaint is to be identical to the original complaint with the exception that it must identify the plaintiff by name. After the second amended complaint is filed, the court will address the plaintiff’s motion to approve a collective action notice. Until then, that motion will be stayed. If the plaintiff fails to file the second amended complaint within 30 days of the court’s decision, the case will be dismissed without prejudice.

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