Michael v. Bloomberg, L.P.
Filing
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OPINION re: 8 MOTION to Approve Collective Action Notice filed by Eric Michael, 11 MOTION for Protective Order Notice of Motion filed by Eric Michael. The court denies plaintiff's motion for a protective ord er and leave to proceed pseudonymously. Plaintiff is directed to file a second amended complaint identifying the plaintiff by name within 30 days of the date of this opinion. The second amended complaint shall otherwise be identical to the first amen ded complaint. Should plaintiff not file a second amended complaint identifying plaintiff by name before this deadline, the court will dismiss the FAC without prejudice. This opinion resolves item 11 on the docket. SO ORDERED. (See Opinion.) (Signed by Judge Thomas P. Griesa on 2/11/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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-X
ERIC MICHAEL, individually and on
behalf of others similarly situated,
14-cv-2657 (TPG)
Plaintiffs,
ECF CASE
V.
BLOOMBERG L.P.,
OPINION
Defendant.
--------------X
Plaintiff, a former employee in the Analytics Department at Bloomberg
L.P. ("Bloomberg"), brings this civil action under the Fair Labor Standards Act
("FLSA") and New York Labor Law ("NYLL"). Proceeding under a pseudonym,
plaintiff alleges that Bloomberg failed to pay proper overtime premiums to
workers in its Analytics Department, and seeks unpaid overtime wages,
liquidated damages, costs and attorneys' fees, as well as declaratory relief
under the FLSA and NYLL. Plaintiff has filed suit on behalf of himself and
others similarly situated.
Plaintiff has two motions pending before the court. First, plaintiff moves
for a protective order and leave from the court to proceed under the pseudonym
"Eric Michael." (Dkt. No. 11.) While plaintiff is willing to provide his real name
to Bloomberg, he refuses to do so absent an agreement from Bloomberg to keep
his name confidential. Should the court grant plaintiff's request to proceed
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pseudonymously, plaintiff additionally asks that: (1) plaintiffs identity be filed
under seal with the court; (2) plaintiffs name, address, and other identifying
information be supplied to Bloomberg; and (3) Bloomberg be directed not to
disclose plaintiffs identity or make negative public remarks concerning
plaintiff.
Second, plaintiff moves the court to approve its proposed collective action
notice, pursuant to 29 U.S.C. § 216(b) of the FLSA.
(Dkt. No. 8.) In his motion
to approve the collective action notice, plaintiff seeks the court's authorization
(1) to issue plaintiff's proposed notice to all potential class members, (Dkt. No.
10-1), (2) to issue plaintiffs proposed reminder mailing to all potential class
members, (Dkt. No. 10-2), and (3) to issue plaintiffs proposed Consent to Sue
form. (Dkt. No. 10-3.) Plaintiff also seeks a court order requiring Bloomberg to
post the collective action notice in the workplace of potential class members,
and to provide contact information, including social security numbers, for all
persons employed by defendants in the Analytics Department since September
21, 2009.
For the reasons discussed below, plaintiffs motion for a protective order
and leave from the court to proceed under a pseudonym is denied. Plaintiffs
motion to approve the collective action notice is stayed until plaintiff files a
second amended complaint identifying the plaintiff by name.
Background
The following facts are drawn from the First Amended Complaint (Dkt.
No. 6) {the "FAC") and plaintiffs submissions made in connection with the
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pending motions. The facts alleged are assumed to be true for purposes of the
pending motions.
From August 2012 through January 2014, plaintiff worked in the
Analytics Department at Bloomberg. Plaintiff represents a putative class of "all
representatives in the Analytics Department who were not paid time and one
half for hours over 40 worked in one or more weeks." FAC
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9. The class
includes three different job titles, which reflect varying levels of training and
experience: Analytics Representatives, Analytics Specialists, and Advanced
Analytics Specialists (collectively, "ADSK Reps").
The primary duty of ASDK Reps is to answer questions from Bloomberg
customers regarding the operation of software running on Bloomberg
terminals. These questions primarily came through electronic "Bloomberg
Chat" requests initiated by Bloomberg customers through their Bloomberg
terminals.
The FAC alleges that ADSK Reps are paid by salary and assigned an
eight-hour shift, five days a week. According to the FAC, ADSK Reps regularly
worked more than 40 hours per week, including time spent working before and
after shifts and during lunch hours. The FAC further alleges that ADSK Reps
were required to work from home, as well as on weekends and holidays. The
FAC alleges that Bloomberg failed to pay overtime at the rate of time and a half
for hours worked above 40 hours in a single workweek.
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Discussion
I.
Motion For Protective Order
Plaintiff moves for a protective order and leave to proceed under a
pseudonym. Plaintiff claims that Bloomberg has publicly disparaged plaintiffs
in other FLSA suits against Bloomberg, which could negatively impact
plaintiffs future employment prospects. In a pseudonymous affidavit, plaintiff
claims that he fears "publicity associated with the complaint will harm [his]
future job prospects with other future employers." (Dkt. No. 14
at~
3.) Plaintiff
further claims that his "need for anonymity in the public filing to prevent a
lifetime of harm outweighs any harm to the public or Bloomberg." (Dkt. No. 13
at 5.) Because plaintiff has offered to disclose his real identity to Bloombergsubject to the issuance of a protective order prohibiting Bloomberg from
disseminating plaintiffs identity to the public-plaintiff argues that Bloomberg
will not be prejudiced in its ability to conduct an internal investigation of
plaintiffs claims. At most, according to plaintiff, Bloomberg's prejudice will be
limited to the costs involved in redacting public filings and filing documents
under seal.
In opposition, Bloomberg argues that plaintiff's purported privacy
concerns are vague and shared by nearly every plaintiff suing his or her
employer, and that plaintiffs argument "would render every FLSA case an
exceptional case justifying such secrecy in their proceedings." (Dkt. No. 22 at 8
(internal quotation marks omitted).) Bloomberg argues that, "as in any FLSA
lawsuit, Bloomberg has a right to know the identity of its adversary, the
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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."' Id. (quoting
Guerrilla Girls, Inc. v. Katz, 224 F.R.D 571, 573 (S.D.N.Y. 2004)).
Bloomberg has the better of the argument. Under Rule 1O(a) of the
Federal Rules of Civil Procedure, a complaint must "name all the parties."
Fed.R.Civ.P. 10(a). "This requirement, though seemingly pedestrian, serves the
vital purpose of facilitating public scrutiny of judicial proceedings and therefore
cannot be set aside lightly." Sealed Plaintiffv. Sealed Defendant, 537 F.3d 185,
188-89 (2d Cir. 2008) (internal quotations omitted). The use of pseudonyms
"runs afoul of the public's common law right of access to judicial proceedings, a
right that is supported by the First Amendment." Doe v. Del Rio, 241 F.R.D.
154, 156 (S.D.N.Y. 2006) (internal quotations omitted); see also Doe I v. Four
Bros. Pizza, No. 13 CV 1505 VB, 2013 WL 6083414, at *9-10 (S.D.N.Y. Nov. 19,
2013) (rejecting FLSA plaintiffs' request for anonymity despite threat of
retaliation from employer).
Nevertheless, courts in the Second Circuit have "carved out a limited
number of exceptions to the general requirement of disclosure [of the names of
parties], which permit plaintiffs to proceed anonymously." Sealed Plaintiff, 537
F.3d at 189 (internal citations and quotation marks omitted). The central
inquiry in determining whether a plaintiff may proceed pseudonymously is a
balancing of a "plaintiffs interest in anonymity ... against both the public
interest in disclosure and any prejudice to the defendant." Id. The Second
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Circuit has identified a non-exhaustive list of factors that district courts may
take into consideration in balancing these interests:
[W]hether the litigation involves matters that are highly
sensitive and [of a] personal nature; (2) whether identification
poses a risk of retaliatory physical or mental harm to the ...
party [seeking to proceed anonymously] or even more critically,
to innocent non-parties; (3) whether identification presents
other harms and the likely severity of those harms, including
whether the injury litigated against would be incurred as a
result of the disclosure of the plaintiffs identity; (4) whether the
plaintiff is particularly vulnerable to the possible harms of
disclosure, particularly in light of his age; (5) whether the suit is
challenging the actions of the government or that of private
parties; (6) whether the defendant is prejudiced by allowing the
plaintiff to press his claims anonymously, whether the nature of
that prejudice (if any) differs at any particular stage of the
litigation, and whether any prejudice can be mitigated by the
district court; (7) whether the plaintiffs identity has thus far
been kept confidential; (8) whether the public's interest in the
litigation is furthered by requiring the plaintiff to disclose his
identity; (9) whether, because of the purely legal nature of the
issues presented or otherwise, there is an atypically weak
public interest in knowing the litigants' identities; and (10)
whether there are any alternative mechanisms for protecting
the confidentiality of the plaintiff.
Id. at 190 (internal citations and quotation marks omitted).
The Court has balanced plaintiffs possible interest in anonymity against
the potential prejudice to defendants and the public's interest in disclosure,
and concludes that the factors weigh in favor of denying plaintiffs motion.
There is no issue here of physical retaliation or mental harm against plaintiff.
Nor is this the type of unusual case involving matters of a highly sensitive or
personal nature-i.e., claims involving sexual orientation, pregnancy, or minor
children-in which courts have justified anonymous plain tiffs proceeding
pseudonymously. To depart in this case from the general requirement of
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disclosure would be to hold that nearly any plaintiff bringing a lawsuit against
an employer would have a basis to proceed pseudonymously. The court
declines to reach such a holding.
It is true that plaintiff has offered to disclose his true identity to
Bloomberg, as long as it remains under seal-somewhat mitigating Bloomberg's
potential prejudice in investigating plaintiffs claims. But this unorthodox
arrangement still runs against the public's traditional right of access to judicial
proceedings, and may also preclude potential class members from properly
evaluating the qualifications of the class representative. Plaintiff has not
offered sufficient grounds justifying leave to proceed pseudonymously.
II.
Motion to Approve The Collective Class Action Notice
In light of the court's denial of plaintiff's motion to proceed
pseudonymously, plaintiff's motion to approve the collective action notice (Dkt.
No. 8) is stayed until the filing of a second amended complaint identifying the
plain tiff by name.
Conclusion
The court denies plaintiff's motion for a protective order and leave to
proceed pseudonymously. Plaintiff is directed to file a second amended
complaint identifying the plaintiff by name within 30 days of the date of this
opinion. The second amended complaint shall otherwise be identical to the
first amended complaint. Should plaintiff not file a second amended complaint
identifying plaintiff by name before this deadline, the court will dismiss the
FAC without prejudice.
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This opinion resolves item 11 on the docket.
SO ORDERED.
Dated: New York, New York
February 11, 2015
//
·/l4P~
Thomas P. Griesa
U.S. District Judge
USDCSDNY
.
DOCUMENT
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ELECfRONICALLY FlLED i.
DOC#:
DATE FILED: 2./~t /t.s.
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