From Doe v. Intel Corp., decided today by Judge Paul Oetken (S.D.N.Y.):
The Complaint alleges the following facts [which at this point are of course only allegations -EV]. Plaintiff John Doe is a “Jewish Israeli citizen who proudly served with the Israel Defense Forces,” and who has family members currently living in Israel. Plaintiff first moved to the United States to “establish [a] U.S. market presence” for a “Startup” he was working for at the time. Shortly thereafter, Intel acquired the company and Plaintiff “began working for Intel as an Engineering Lead.” In the ensuing years, Plaintiff had a successful career at Intel and was ultimately promoted to “Vice President of Engineering.”
Following the October 7, 2023 attack on Israel by Hamas, Defendant Badr, “the Vice President of Customer Success at Intel,” allegedly made a number of statements and interacted with a number of social media posts supporting Hamas’s actions and “advocat[ing] for and celebrat[ing] the murder of Israelis like [Plaintiff] and the members of his family.” On January 29, 2024, Badr became Plaintiff’s direct manager. Plaintiff complained, but Intel “did not respond.” Subsequently, Badr took actions to “mak[e] [Plaintiff’s] professional life as intolerable as possible because of his Jewish and Israeli heritage,” including acting “frigid and isolating” toward Plaintiff, asking Plaintiff which of his fellow employees were Israeli and making disparaging comments about them, refusing to approve Plaintiff’s expense requests, interrupting Plaintiff in meetings, and interfering with Plaintiff’s job responsibilities.
Plaintiff again complained and Intel conducted an investigation. Following the investigation, “Intel took no corrective action against Badr,” but, on April 2, 2024, Plaintiff was “laid-off.” When Plaintiff complained, “Intel then created a new job” for him, albeit “with a significant pay cut.” Badr allegedly replaced Plaintiff in his old position with a new employee, “Ahmed,” who “shared the same anti-Israel sentiments as Badr.”
On July 3, 2024, Intel’s Human Resources department informed Plaintiff “that his retention bonus was being cancelled.” Plaintiff claims that this was done as “punish[ment] for protesting discrimination.”
The court concluded that plaintiff, like other plaintiffs, had to sue under his own name:
Federal Rule of Civil Procedure 10(a) requires that “all the parties” be named in the title of the complaint. “This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.” … Plaintiff has “invoked the public forum of litigation in which there is a strong presumption of public access.” “[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting that presumption.”
And the court concluded that the strong presumption against pseudonymity wasn’t rebutted here:
Plaintiff argues first that the litigation concerns sensitive and personal matters. Courts in this Circuit have found in the past that such matters include “birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families.” But the mere “potential for embarrassment or public humiliation does not, without more, justify a request for anonymity, and only in “extreme” cases is “the sensitivity of the subject matter … so great as in itself to justify pseudonymity without a specific showing of harm.”
Plaintiff appears to recognize, as he must, that mere membership in a protected class based on race, ethnicity, religion, or national origin is not typically considered “highly sensitive.” Nor is such an identity converted into a sensitive matter just because a plaintiff has filed a discrimination or retaliation lawsuit.
Rather, Plaintiff argues that “these are not normal times” and the “current political climate” means that Jewish and Israeli people are more likely to be attacked. The Court does not view this as an independent allegation of sensitivity, akin to having experienced sexual harassment, or having a stigmatized medical condition. Rather, the Court understands the alleged sensitivity of Plaintiffs’ claims as stemming from his fears of harm ….
Plaintiff’s strongest argument in support of anonymity is his alleged fear of harm. Plaintiff points to a number of instances of harassment of and attacks on individuals in New York based on their Jewish identity or their public support for Israel.
Plaintiff extrapolates from these events that “he and his family would be at significant risk of physical harm by … anti-Israel protestors in the United States.” Plaintiff believes that, because “anti-Israel protestors … have shown through their past conduct that they will use every tool at their disposal to harm those who challenge their anti-Israel belief systems,” “[he] and his family will be subjected [to] a campaign of intimidation and harassment at the very least, and real physical harm and possibly death at the worst.”
While mindful not to suggest that Plaintiff’s concerns are “trivial,” the Court is also cognizant that an alleged risk of harm cannot justify anonymity when it is “speculative in nature.” Courts have found a real risk of harm when, for example, “there is a history of substantiated prior action directed at plaintiff(s) from defendant(s).” Conversely, courts have rejected claims of harm where they are insufficiently “particularized,” provided “without corroboration,” or “generalized” and “conclusory.”
Notwithstanding the examples of harassment and assault that Plaintiff highlights, he has not provided any “direct evidence linking disclosure of [his] name to a specific physical or mental injury” or threat thereof. While the examples of violent attacks that Plaintiff highlights are abhorrent, they were “not directed at plaintiff or similarly situated individuals[] and so do[] not demonstrate that plaintiff is at risk of harm.” {Individuals are not “similarly situated” simply because they belong to the same protected group. Plaintiff has not pointed to any examples of individuals being harassed or attacked based on their filing of a discrimination lawsuit or similar conduct.}
Plaintiff claims that “growing unrest … floods the streets of New York on a daily basis.” But the evidence that Plaintiff provides—several New York Post articles {[discussing] several instances of vandalism, a clash between street protestors, and two assaults} and an Anti-Defamation League dataset of antisemitic incidents—does not satisfy his burden of demonstrating that he personally faces a non-speculative risk of harm. Plaintiff has not shown that the risks he faces are so substantially greater than those faced by members of other protected groups to justify a departure from the well-settled norm that plaintiffs bringing discrimination claims must publicly disclose their identities. Indeed, a central reason why protected classes like race and religion are protected at all is because such groups are more vulnerable to precisely the kind of harassment, intimidation, and even violence that Plaintiff highlights in his briefs.
Were the general existence of discrimination a sufficient reason to proceed anonymously, then scarcely any discrimination cases would be exempt. Nor can the Court discern any limiting principle that would justify granting Plaintiff’s request but denying anonymity to other plaintiffs bringing racial, ethnic, religious, or national origin discrimination claims. And even if Plaintiff has taken steps to keep his participation in this lawsuit secret from the public, Plaintiff does not allege that he has kept secret his political views, his Jewish identity, his Israeli nationality, or his past IDF service. Because much of the “unrest” that Plaintiff highlights is targeted at Jews and Israelis merely based on their identities, it is unclear what “incremental injury” would be caused by public disclosure of Plaintiff’s participation in this lawsuit.
{Plaintiff cites [Anti-Defamation League] data purporting to show that “antisemitic incidents in 2023 rose by 110% in New York, reaching 1,218 total incidents—the highest number ever recorded.” The data appears to contain at least a substantial number of incidents that do not plausibly constitute cognizable harm for purposes of Plaintiff’s motion. For example, the list includes a number of incidents that appear to primarily involve the exercise of First Amendment protected speech, such as distributing pamphlets, posting political statements on an online forum, and a student organization disinviting “Zionists” from an event it hosted. Similarly, Plaintiff also cites articles recounting instances of verbal harassment where individuals wearing IDF clothing were called names, including “baby killing Jewish coward” and “white piece of shit.” The kind of harm that might result from such speech and advocacy cannot justify withdrawing Plaintiff’s lawsuit from public scrutiny.
The Second Circuit has long held that “the First Amendment … secure[s] to the public and to the press a right of access to civil proceedings,” and that “adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny.” Such access may be restricted only if some “higher values in the First Amendment framework so demand.” While some of the conduct in Plaintiff’s dataset—such as violence—is not protected by the First Amendment, “[a]s a general matter … in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Indeed, the First Amendment generally protects individuals’ right to engage even in speech that the public regards as hateful. The Court rejects Plaintiff’s contention that his name may be withheld from public scrutiny in order to shield him from the risk of unseemly, vituperative, or offensive criticism that might be directed at him based on the views expressed in his lawsuit.}
Moreover, as Defendants note, Plaintiff’s interest in anonymity due to the risk of harm is not one-sided; rather, it must be balanced against the corresponding interest that Defendants face having been publicly named in Plaintiff’s suit…. “[Defendants] have no lesser interests in their reputations than plaintiff … and they were not afforded an opportunity to seek to have their names withheld from the public. If we are to have a policy of protecting the names of individual litigants from public disclosure, there is a very substantial interest in doing so on a basis of equality.” … The individual Defendants here are, like Plaintiff, members of protected groups, and plausibly also face risks of harassment and violence. (See, e.g., ECF No. 30-1 (attesting that at least one Defendant has already received harassing communications and a death threat).)
The Second Circuit has instructed courts to place special emphasis on the risk of harm to “innocent non-parties” should anonymity be denied. Here, Plaintiff alleges that, because his family lives in Israel, disclosure of his identity would subject them to a heightened risk of harm at the hands of Hamas. Ultimately, these claims too conclusory and speculative to bear the weight that Plaintiff seeks to place on them.
Plaintiff has provided no evidence that Hamas is aware of proceedings in the Southern District of New York, that Hamas would be interested in Plaintiff’s lawsuit, or that Hamas has the capacity to locate and attack Plaintiff’s family members. The events of October 7 also, as Plaintiff recognizes, demonstrate that Hamas is already committed to perpetrating violent attacks on Israelis. Therefore, it is again unclear what “incremental” risks would come with disclosure. Without further, specific evidence, the Court agrees with Defendants that such claims are too speculative to support anonymity in this case….
The court adds:
Defendants, too, would be substantially prejudiced if the Court were to permit Plaintiff to proceed anonymously. While Defendants already know Plaintiff’s identity, such knowledge is not enough to negate prejudice. Indeed, “case law recognizes a defendant’s interest in confronting an identified accuser,” including publicly, and “basic fairness dictates that plaintiffs who publicly accuse defendants in civil suits must sue under their real names,” Disclosure also deters plaintiffs from fabricating or embellishing their claims, and anonymity might prevent “yet unknown witness[es]” from, upon learning about a case, “step[ping] forward with valuable information,” Finally, though insufficient to support disclosure on its own, anonymity imposes “non-trivial” costs on both the parties and the Court associated with “sealing or redacting court filings.”
The court closes thus:
Overall, there is no doubt that Plaintiff’s allegations are emotionally and politically charged, and that Plaintiff is a member of certain groups subject to discrimination. That, however, is true of a plethora of cases in the federal courts and has generally not been understood to authorize anonymous pleading. Rather, the countervailing interests of the public and the defendants in public access to the courts undergirds a “strong default rule that parties must proceed under their real names.” The Court is not persuaded to depart from that rule here.
As this Court previously remarked in a similar case,
Plaintiff wants what most employment-discrimination plaintiffs would like: to sue his … employer without future employers knowing about it. But while that desire is understandable, our system of dispute resolution does not allow it. Defendants—including two individuals—stand publicly accused of discrimination and harassment, including detailed allegations of misconduct. Defendants do not have the option of proceeding pseudonymously. Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage…. Courts allow such an imbalance only in unique circumstances, and Plaintiff has not shown that this is one of those special cases.
Ultimately, “the Court finds that Plaintiff[] [has] not provided sufficient justification to overcome the people’s right to know who is using their courts.”
For more on how courts generally treat such cases, see The Law of Pseudonymous Litigation. Note also that courts tend to be more open to pseudonymity in cases involving purely legal issues, on the theory that the litigants’ identities are less significant in such a situation; but “[t]he suit here is primarily factual, not legal, in nature.”
