[Eugene Volokh] Multi-Billion Dollar Corporation Can't Sue Inter-American Development Bank as a Pseudonymous "Doe Corporation"
From today's Doe Corp. 1 v. Inter-American Development Bank, decided by Judges Karen LeCraft Henderson, Robert Wilkins, and Florence Pan (I filed an amicus brief in the case on my own behalf, urging affirmance of the decision below; thanks to Notre Dame Law School Aleah Schrock for all her work on that):
Appellants have not shown that the district court erred by utilizing the five factors set forth in In re Sealed Case (D.C. Cir. 2019), or by considering the risk of retaliatory physical or mental harm or the ages of the persons whose privacy interests are sought to be protected when considering their request to proceed pseudonymously. See In re Sealed Case (D.C. Cir. 2020) (considering each of the five factors when evaluating non-individual's request for pseudonymity). Although appellants contend that these factors are not relevant when, as here, non-individuals request pseudonymity, they have not established that only those factors that support a party's request should be considered, and their arguments in favor of that outcome find no support in this court's case law and run contrary to the principle that permission to litigate under a pseudonym is a "rare dispensation" that requires litigants to meet a correspondingly "weighty burden."
Appellants also do not demonstrate that the district court abused its discretion in concluding that they did not meet their burden to overcome the presumption of openness in judicial proceedings. Appellants have not shown that the district court's decision is an "extreme outlier" or that the district court failed to conduct any qualitative balancing of the factors, and their concerns regarding a potential chilling effect of the district court's decision do not demonstrate any abuse of discretion. Although appellants disagree with the district court's outcome, they do not demonstrate that the reasons given by the district court fail to reasonably support its conclusion.
Appellants also fail to show any abuse of discretion in the district court's conclusion that the factors concerning the risk of retaliatory harm and the nature of the party's claims supported disclosure of their identities. Appellants do not dispute that proceeding publicly in this case presents no risk of retaliatory physical or mental harm. Although appellants contend that the district court should have determined that they demonstrated a sufficient risk of retaliatory harm from potential lost business, appellants have forfeited this argument by not making it in the district court. And, given the "far-reaching consequences" of their claims, Doe v. Hill (D.C. Cir. 2025), appellants do not show that the district court abused its discretion in concluding that the nature of those claims and the relief sought supported disclosure of their identities.
Here's an excerpt from Chief Judge James Boasberg's initial decision denying pseudonymity:
Plaintiffs are corporate entities who have filed this lawsuit against the Inter-American Development Bank, claiming that the IDB has improperly initiated sanctions proceedings against them. Doe Corporations allege that those proceedings violate both Defendant's governing charter and its contracts with Plaintiffs. Concerned that revealing that they are the subjects of the IDB's sanctions proceedings would result in "reputational harm," "crater new business," and "jeopardize existing projects," Doe Corporations now move to proceed under pseudonyms….
Generally, a complaint must identify the plaintiff. This identification requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." A party moving to proceed pseudonymously thus "bears the weighty burden of both demonstrating a concrete need for such secrecy[ ] and identifying the consequences that would likely befall it if forced to proceed in its own name" … [using the following] "five non-exhaustive factors":
[1] whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of [a] sensitive and highly personal nature;
[2] whether identification poses a risk of retaliatory physical or mental harm to the requesting party or[,] even more critically, to innocent non-parties;
[3] the ages of the persons whose privacy interests are sought to be protected;
[4] whether the action is against a governmental or private party; and, relatedly,
[5] the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously….
Although their Motion raises close questions, Plaintiffs have, for now, not met their burden to show that their privacy interests outweigh the public's presumptive and substantial interest in learning their identities….
First, disclosure of Plaintiffs' identities will not reveal any information of a "sensitive [or] highly personal nature." The Complaint reveals no "intimate or sensitive personal information" of the kind "traditionally recognized under this factor, such as sexual activities, reproductive rights, [and] bodily autonomy." Although the harms Plaintiffs allege do not fall into that category, they nonetheless maintain that disclosure would "cause severe reputational and financial harm." These concerns are certainly relevant to the first factor. They cannot, however, be mere "speculative and unsubstantiated claims of harm."
Here, Plaintiffs have provided adequate evidence to support "their contention that public disclosure that they are subject to an ongoing [IDB] investigation would likely cause them debilitating reputational and financial hardship." [Details omitted. -EV] … This, then, is not a case in which Plaintiffs have "merely asserted that disclosure of the ongoing investigation could fracture the plaintiffs' business relationships" or only "loosely identified the mechanism for potential damage but did not more specifically explain why harm was likely to result." Doe Corporations have instead provided sufficient explanations and support to succeed under the first factor.
The second and third factors, however, support disclosure. Plaintiffs do not express any fear that the IDB will retaliate against them, nor do they contend that any minors are involved. Whether these factors are thereby framed as "inapplicable" or weighing "in favor of disclosure," their disposition makes Plaintiffs' Motion less compelling insofar as they fail to support the use of a pseudonym.
The fourth factor also supports disclosure. The IDB is "an international organization that was created by a multinational agreement." While it is not a governmental actor, it nevertheless has a quasi-governmental structure and purpose and therefore may "not share the concerns about reputation that private individuals have when they are publicly charged with wrongdoing." Regardless of the governmental status of Defendant, moreover, this Court favors pseudonymity in lawsuits against a government defendant only when plaintiffs request individualized relief. Plaintiffs' challenge is not grounded in their specific circumstances or limited to individualized relief; as they explain, they seek "to resolve questions of law — including those concerning the IDB's immunity and compliance with contractual duties — on an undisputed factual record." Mot. at 15. Because their "arguments would clearly apply beyond [their] case," this factor weighs against pseudonymity.
The fifth factor, on the other hand, supports pseudonymity. Defendant would suffer no "risk of unfairness" if the Motion were granted, as it is already aware of Plaintiffs' identities.
In sum, the first and fifth factors weigh in favor of granting pseudonymity. Because the second, third, and fourth factors support disclosure, however, the Court concludes that Doe Corporations have not met "the weighty burden" of "demonstrating a concrete need" for pseudonymity in this lawsuit.
Chief Judge Boasberg reaffirmed that conclusion in response to a motion for reconsideration; a brief excerpt:
Because "[t]he presumption of openness in judicial proceedings is a bedrock principle of our judicial system, … [t]he moving party bears the weighty burden of … demonstrating a concrete need for such secrecy" that overcomes the presumption against pseudonymity. Of course, the test is flexible. But when three factors cut decisively against pseudonymity and Plaintiffs do not make an extraordinarily strong showing on the other two, then a holistic balancing shows that Plaintiffs have not carried their burden. The difficulty of meeting such a burden is simply reflective of the weighty interests underlying the presumption of openness. See United States v. Microsoft Corp. (D.C. Cir. 1995) (noting that pseudonymity is "rare dispensation" in legal system) (quotation marks omitted); Doe v. Hill (D.C. Cir. 2025) (same)….
The Court fully acknowledges that Plaintiffs possess a substantial privacy interest in this case and little risk of prejudice to IDB from pseudonymity. But "reputational and financial losses" tend not to "pose threats as grave as the type of threats … that most commonly support pseudonymous treatment," and there is zero alleged risk of retaliation by Defendant or potential harm to minor children from disclosure. The Court thus cannot conclude that Doe Corporations' need for secrecy, in light of their wide-reaching legal arguments, outweighs the interests in judicial openness….
And here, for those who are interested, is the substance of my amicus brief:
Summary of Argument
"The Federal Rules of Civil Procedure create a presumption against pseudonymous litigation." Doe v. Hill, 141 F.4th 291, 293 (D.C. Cir. 2025). And for good reason:
Requiring parties to litigate under their real names serves important values. Accurate party names allow citizens to evaluate the nature of the claims raised and the interests at stake, to assess the real-world aftermath of a suit, and to determine for themselves whether justice was done.
Knowing the identity of parties also makes it easier for citizens to investigate abuses of the judicial process like judicial conflicts of interest and ex parte contacts, and it promotes the appearance of fairness. Secrecy breeds suspicion, and so some may believe that a party's name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up.
Id. (cleaned up) (paragraph break added).
This analysis applies perfectly in this case. A business corporation is suing a multigovernmental organization, the Inter-American Development Bank. Given the nature of the allegations and the law firm hired to litigate the case, the corporation is likely wealthy and important. So is the Bank, which has received billions of U.S. taxpayer dollars, and over which the U.S. government exercises 30% voting control.
The corporation is claiming that the Bank has acted improperly, in violation of the Bank's own rules. The Bank has apparently claimed that the corporation has acted improperly. The corporation is now seeking to have the case resolved in federal court, using U.S. taxpayer resources.
Following the normal course of litigation in American courts, where the corporations would sue under their own names, the public would be able to monitor what is happening. Journalists, researchers, activists, and others could find information about the corporation. They could determine whether there had been other controversies involving the corporation in general, or having to do with the Commercial Project Agreement (Compl. ¶ 3, App. 5) in particular.
They could search for any related news stories, any related government documents, or any related court filings in other cases. They could interview the corporation's past and current employees, or employees of the corporation's past and current business partners. They could do all the research that normal media, academic, and activist commentary would normally include.
Yet Doe Corporations want this case litigated in secret. Right now, they wants to conceal their own names. And if they prevail on that, then they will likely also need to seal or redact a massive amount of information in future filings that would disclose their identities. Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1372-75 (2022) (discussing how "maintaining pseudonymity may require redacting or sealing documents filed in court").
As this Court predicted in Hill, concealing "the identity of parties" would make it harder "for citizens to investigate" whether the judicial process was properly proceeding. It would "promote[] the appearance of [un]fairness." "Secrecy" would "breed[] suspicion, and so some may believe that a party's name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up." Hill, 141 F.4th at 293 (cleaned up).
To be sure, anyone can understand why Doe Corporations would want to litigate this case pseudonymously: Publicly discussing their allegations against the Bank—which of course relate to the Bank's allegations against them—would cause them reputational harm. But that is true in a vast range of legal disputes. Nearly every dispute involves reputation-damaging allegations against a defendant, and very many involve reputation-damaging allegations against a plaintiff.
This is why many federal appellate courts have concluded that avoiding the risk of reputational, professional, and economic harm is not an adequate basis for pseudonymity (though the risk of physical and mental harm might be). See infra pp. 10-11. Ruling otherwise would risk reversing the presumption of openness that this Court has repeatedly reaffirmed.
In light of the general presumption against pseudonymity and the particular significance of the allegations in this case, this Court should conclude that the District Court did not abuse its discretion in rejecting Doe Corporations' requests to proceed pseudonymously.
Argument
[I.] A risk of reputational or economic harm does not entitle Doe Corporations to pseudonymity.
[A.] The public interest in open litigation justifies a strong presumption against pseudonymity.
"Lawsuits are public events." In re Sealed Case, 931 F.3d 92, 96 (D.C. Cir. 2019) (Sealed Case I). There is therefore a "strong presumption" against pseudonymity. Hill, 141 F.4th at 292 (cleaned up). "We generally require parties to a lawsuit to openly identify themselves to protect the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." In re Sealed Case, 971 F.3d 324, 325 (D.C. Cir. 2020) (cleaned up) (Sealed Case II).
This presumption against pseudonymity—both "customary and constitutionally-embedded"—is rooted in the importance of "open judicial proceedings." Id. at 326 (citing Sealed Case I, 931 F.3d at 96). More immediately, it is rooted in "the Federal Rules of Civil Procedure[, which] create a presumption against pseudonymous litigation." Hill, 141 F.4th at 293. "When parties 'call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.'" Doe v. Public Citizen, 749 F.3d 246, 271 (4th Cir. 2014) (quoting Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)).
Because "'[p]seudonymous litigation undermines the public's right of access to judicial proceedings,'" Sealed Case II, 971 F.3d at 326 (quoting Public Citizen, 749 F.3d at 273), "parties who seek to proceed pseudonymously seek a 'rare dispensation' from the court," id. (quoting United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995)). A party that asks for this "rare dispensation" must "demonstrate a concrete need for such secrecy." Sealed Case II, 971 F.3d at 326 (cleaned up). It must also show that the need outweighs the "countervailing interests in full disclosure," id. (quoting Sealed Case I, 931 F.3d at 96)—which include those countervailing interests laid out in detail in the Doe v. Hill passage quoted at the start of the Summary of Argument, supra p. 2.
[B.] Risk of reputational or economic damage cannot rebut the presumption against pseudonymity.
To determine when exceptions to the presumption against pseudonymity are warranted, this Court has used the following "non-exhaustive" test to "balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure," Sealed Case II, 971 F.2d at 326 (quoting Sealed Case I, 931 F.3d at 96):
[1] whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of [a] sensitive and highly personal nature;
[2] whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;
[3] the ages of the persons whose privacy interests are sought to be protected;
[4] whether the action is against a governmental or private party; and, relatedly,
[5] the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
Id. at 326-27 (quoting Sealed Case I, 931 F.3d at 97). The reference to "preserv[ing] privacy in a matter of [a] sensitive and highly personal nature" under factor one is not relevant here: As the phrase "highly personal" suggests, "[t]hat factor commonly involves intimate issues such as sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors," not corporate business interests that "bear no resemblance to those types of intimate or sensitive personal information." Sealed Case II, 971 F.3d at 327. (Even in such "personal nature" cases, pseudonymity is not universally allowed: Courts are "sharply split" about what types of private, personal issues merit protection from the court. Volokh, The Law of Pseudonymous Litigation, supra, at 1405-16.)
Rather, the dispute here is fundamentally about whether reputational and economic harm should be treated as comparable to "physical or mental harm" under factor two—or whether it is instead subsumed within the normal risk of "criticism that may attend any litigation" recognized in factor one. After all, the five-factor test calls on courts to strongly weigh the public's "interests in full disclosure" and not just the litigant's "interest in anonymity." Sealed Case II, 971 F.3d at 326 (cleaned up).
"[C]ourts consistently have rejected anonymity requests to prevent speculative and unsubstantiated claims of harm to a company's reputational or economic interests." Sealed Case II, 971 F.3d at 328. In Sealed Case II, for example, a refinery was concerned that litigation would reveal "disproportionate economic hardship" and damage its reputation among creditors, suppliers, and competitors. Id. at 325. This Court gave little weight to "speculative," "purely economic" harm, finding "no basis for concluding that disclosure of its business name will lead to the type of harm that could support pseudonymous status." Id. at 328-29.
Sealed Case II drew on Doe v. Public Citizen, where the Fourth Circuit likewise rejected the request for pseudonymity from a company that was erroneously accused of manufacturing a product that caused an infant's death. 749 F.3d at 252-54. Seeking pseudonymity, the company cited its interest in "preserving its reputational and fiscal health." Id. at 269. But the Fourth Circuit held that the public interest in open litigation outweighed "speculative and unsubstantiated claims of harm to a company's reputational or economic interests." Id. at 274.
In this case, amicus cannot discern whether Doe Corporations' fears of economic or reputational harm are substantiated. Doe Corporations' motion for pseudonymity is sealed, App. 2, and the sole evidence cited by the lower court's order is the sealed declaration by the "Group Chief Legal Officer and General Counsel of Doe Corporation 1." App. 14. Cf. Doe Corp. v. Public Company Accounting Oversight Bd., No. 1:24-cv-02443-JEB, 2025 WL 304795, at *2-*3 (D.D.C. Jan. 27, 2025) (finding that a company that provided "quotes from two studies and a sworn declaration from a Co-Chairman of the corporation" as evidence of similar reputational harm failed to substantiate its claim).
But even if Doe Corporations' concerns are seen as factually plausible, this Court should recognize other circuits' conclusion that suffering "economic harm is not enough" to overcome the presumption against pseudonymity, Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011). "[A]nonymity has not been permitted when only the plaintiff's economic or professional concerns are involved." United States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242, 1249 n.10 (10th Cir. 2017) (cleaned up). See also Doe v. Delta Airlines Inc., 672 F. App'x 48, 52 (2d Cir. 2016) (concluding that concern about "professional embarrassment and any concomitant financial harm" cannot justify pseudonymity); S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir. 1979) (rejecting pseudonymity when employee plaintiffs were concerned about the "purported economic and social hazards of disclosure"); D.E. v. Doe, 834 F.3d 723, 728 (6th Cir. 2016) (holding that "potential negative scrutiny from future employers" could not sustain a pseudonymity claim); Doe v. Trs. of Ind. Univ., 101 F.4th 485, 492 (7th Cir. 2024) (rejecting pseudonymity despite plaintiff's claims of "reputational harm"); Roe v. Skillz, Inc., 858 F. App'x 240, 241 (9th Cir. 2021) (rejecting pseudonymity despite plaintiff's claims that "disclosure could negatively affect her professional standing").
Those circuit decisions are correct in rejecting reputational, professional, and economic harm as a factor: Pseudonymity should be only allowed in "(relatively few) 'exceptional cases'" and "[l]awsuits … threaten[ing] parties' reputations" is common." Doe v. MIT, 46 F.4th 61, 70 (1st Cir. 2022). Defendants can be ruined by allegations of rape, embezzlement, or fraud. Volokh, The Law of Pseudonymous Litigation, supra, at 1416. Likewise, in business litigation, "[a]djudicating claims that carry the potential for embarrassing or injurious revelations about a corporation's image" is "part of the day-to-day operations of federal courts." Public Citizen, 749 F.3d at 269.
Thus, "if commonplace lawsuit-induced distress"—in context, including "threat[s to the] parties' reputations"—"were enough to justify the use of a pseudonym, anonymity would be the order of the day." MIT, 46 F.4th at 70. "Does and Roes would predominate." Id. This shift would threaten both the public's interest in supervising judicial proceedings and the public's confidence in the judicial process: "A judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts' work." Id. at 69. By hampering the public's ability to "evaluate the nature of the claims raised and the interests at stake, to assess the real-world aftermath of a suit and to determine for themselves whether justice was done," rampant pseudonymity would prevent citizens from "investigat[ing] the abuses of the judicial process." Hill, 141 F.4th at 293 (cleaned up).
Pseudonymous status is meant to be a "rare dispensation," id. (cleaned up), reserved for "exceptional cases," Sealed Case I, 931 F.3d at 96. Should pseudonymity be allowed in cases of reputational harm, it would no longer be limited to the rare and the exceptional. The presumption against pseudonymity would be flipped, and the exception would become the rule.
Amicus appreciates that, in this case, the District Court did accept reputational harm as a factor cutting in favor of pseudonymity, May 15 Order, App. 34, as have some other district court decisions in this Circuit, id. at 34-35 (citing cases). But the District Court was correct in at least labeling such "reputational concerns" as "comparatively lesser" than the concerns that would justify pseudonymity, June 30 Order, App. 42. And the District Court was correct on its bottom-line conclusion that such reputational concerns cannot outweigh the people's "right to know who is using their courts," Sealed Case I, 931 F.3d at 97, and "'[t]he public interest in understanding the genesis and generator of the litigation,'" June 30 Order, App. 42 (quoting Hill, 141 F.4th at 299). In any event, this Court can of course "affirm on any basis fairly presented in the record." Figgs v. Dawson, 829 F.3d 895, 902 (7th Cir. 2016); see also, e.g., United States v. Henderson, 241 F.3d 638, 649 n.1 (9th Cir. 2001); PHP Healthcare Corp. v. EMSA Ltd. P'ship, 14 F.3d 941, 945 (4th Cir. 1993).
[II.] The public has an especially strong stake in monitoring litigation against the Inter-American Development Bank.
"[T]here is a heightened public interest when an individual or entity files a suit against the government." Sealed Case II, 971 F.3d at 329. "'The appropriateness of making court files accessible is accentuated in cases where the government is a party: in such circumstances, the public's right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch.'" Public Citizen, 740 F.3d at 271 (quoting FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1997)).
When a "claim to relief … involves the use of public funds, … the public certainly has a valid interest in knowing how state revenues are spent." M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998). Thus, "the interest of the public and press in access to civil proceedings is at its apex when the government is a party to the litigation." Public Citizen, 749 F.3d at 271. The "universal public interest in access to the identities of litigants" "is heightened [when] Defendants are public officials and government bodies." Megless, 654 F.3d at 411.
These arguments apply fully to the Bank. The Bank is a multigovernmental organization, chartered to "contribute to the acceleration of the process of economic and social development of the regional development member countries." App. 9. It was established in the United States by an Act of Congress. Inter-American Development Bank Act, Pub. L. No. 86-147, 73 Stat. 299 (1959). The Bank statutorily enjoys immunity similar to foreign sovereigns. Rosenkrantz v. Inter-Am. Dev. Bank, 35 F.4th 854, 861 (D.C. Cir. 2022). Forty-eight countries hold stock in the Bank. Inter-American Development Bank, Capital Stock and Voting Power, https://www.iadb.org/en/who-we-are/how-we-are-organized/board-governors/capital-stock-and-voting-power (last visited Sept. 11, 2025).
The United States' representatives on the Bank's Board of Governors and Board of Executive Directors are Senate-confirmed officials. 73 Stat. 299, sec. 3. The United States is the Bank's largest shareholder, controlling 30% of the voting stock (and 60% of the voting stock of the non-borrowing members)—more than twice the under 12% held by the next highest stockholders (Argentina and Brazil) and six times more than the 5% held by Japan, the second highest stockholder among the non-borrowers. Inter-American Development Bank, Capital Stock and Voting Power, supra. The United States has committed over $50 billion to the Bank, of which over $4 billion has been actually paid in and nearly $4 billion more has been "fully authorized and appropriated" (the rest being "authorized by the United States Congress but not yet appropriated"). Inter-American Development Bank, Bd. of Executive Directors, Annual Report 2024, Financial Statements 36 (2024), https://publications.iadb.org/publications/english/document/Inter-American-Development-Bank-Annual-Report-2024-Financial-Statements-.pdf (Dec. 2024 data). Litigation against the Bank will affect the use of these public funds, and the public and the press should be able to monitor that litigation.
Public access to this lawsuit is also important because of its "far-reaching consequences for the public interest." Hill, 141 F.4th at 298; July 30 Order, App. 41. Though the claim before this Court is a contractual dispute, the dispute is rooted in Doe Corporations' argument that the Bank violated its charter when it initiated its enforcement proceedings and assumed "police power untethered to any source of authority." Compl. ¶ 2, App. 4. Arguing that "[t]he Charter grants the IDB carefully circumscribed enforcement authority," id. at 13, Doe Corporations also ask the court to "confirm fundamental limitations on the IDB's power," including its power to enforce sanctions for precontractual conduct, id. at 6.
The Court must thus interpret the Bank's charter to determine whether it provides authority to enforce the sanctions challenged by Doe Corporations:
Plaintiffs' challenge is not grounded in their specific circumstances or limited to individualized relief; as they explain, they seek "to resolve questions of law—including those concerning the IDB's immunity and compliance with contractual duties—on an undisputed factual record." Because their "arguments would clearly apply beyond [their] case," this factor weighs against pseudonymity.
May 14 Order, App. 36. Since the Bank's sanctioning authority is in part a means of preserving Bank funds, Doe Corporations' arguments potentially affect the Bank's mechanisms for protecting funds that U.S. taxpayers have committed to the Bank, not just in projects involving Doe Corporations but in other projects as well. And Doe Corporations' request for a gag order on the Bank (see Compl. relief ¶¶ 2, 4, App. 30; Mot. for Prelim. Inj., discussed in Appellants' Br. 15) raises independent and important questions about when it is proper for a federal court to restrict disclosures by an inter-governmental organization such as the Bank.
Yet, despite the enormous amount of money controlled by the Bank and the influence it wields—and despite the potentially controversial nature of the injunction that Doe Corporations seek—neither the public nor the press currently know any specific details about this lawsuit or the companies that brought it. They do not know
* which industries are involved,
* which countries Doe Corporations operates in,
* the identity of the project that led to the sanctions,
* any controversies that may have been publicized with regard to that project,
* whether Doe Corporations have been involved in other controversies elsewhere,
* whether Doe Corporations have been involved in other litigation related to alleged improprieties,
* any past relationship, direct or indirect, between Doe Corporations and the Bank or its Governors or Directors, and
* pretty much anything else about Doe Corporations.
The public and the press do not know this information now. If pseudonymity is allowed, they will not learn this information from future filings, which would presumably be largely sealed in order to maintain the pseudonymity. The public and the press will not be able to figure it out from interviews with Doe Corporations' employees or former employees, since no-one will know whom to ask.
As noted in the Summary of Argument, "[s]hielding [Doe Corporations' identity] from public view … will make it more difficult for the public to understand and to trust the court's ruling." Hill, 141 F.4th at 300. And that is especially troubling in a matter like this one, which may involve many millions of dollars; Doe Corporations' allegations of impropriety on the Bank's part; and the Bank's allegations of impropriety on the part of companies that seek Bank funds (and thus, indirectly, American taxpayer funds).
[III.] The district court did not abuse its discretion in denying the "rare dispensation" of pseudonymity.
Doe Corporations do not dispute the lower court's use of the five-factor standard applied by the district court; they dispute the court's application of the criteria. Appellant's Br. 29-30. The "application of … criteria" to the facts of a particular case is reviewed for an abuse of discretion. Hill, 141 F.4th at 295 (citing Sealed Case I, 931 F.3d at 96). The abuse of discretion inquiry requires considering "whether the decision maker failed to consider a relevant factor [or] relied on an improper factor, and whether the reasons given reasonably support the conclusion." Sealed Case I, 931 F.3d at 96. "A court that fails to consider one of the five enumerated factors … does not automatically abuse its discretion, as long as it has considered the factors relevant to the case before it." Id. at 97. Here the district court did consider the relevant factors, and did not abuse its discretion in finding that Doe Corporations had not "made the detailed showing required to overcome the presumption in favor of disclosure." May 15 Order, App. 32.
Doe Corporations argue that the lower court erred by (a) failing to consider reputational or economic harm under the retaliatory physical or mental harm factor (factor two) and (b) finding that litigation against government entity supported disclosure (factor four). Appellant's Br. 46-48. But not considering reputational harm to be an adequate substitute for physical or mental harm squarely aligns with the cases discussed at pp. 10-11. And Sealed Case II supports the lower court's treatment of litigation against a governmental party: "there is a heightened public interest when an individual or entity files a suit against the government." 971 F.3d at 329.
Moreover, as shown supra Part II, the public's interest in monitoring litigation against the Bank is particularly substantial. The District Court's finding that the public had an "intensified" interest in this case, July 30 Order, App. 42, was, at the very least, reasonable. So was concluding that the first and fifth factors do not "outweigh the public's presumptive and substantial interest in learning their identities." May 14 Order, App. 33; see also July 30 Order, App. 42 ("Nor do Defendant's comparatively lesser reputational concerns outweigh the intensified interest in proceeding publicly in these circumstances.") (cleaned up).
Doe Corporations also accuse the lower court of "engaging in the forbidden 'wooden exercise of ticking the five boxes'" by weighing the factors equally. Appellant's Br. 31 (quoting Sealed Case I, 931 F.3d at 97). But though the factors are "flexible," "fact driven," and "non-exhaustive," the analysis is conducted in the context of the "strong presumption" against pseudonymity. Sealed Case II, 971 F.3d at 325-26. The lower court's analysis correctly reflects the fact that "[o]nly limited exceptions are allowed" to the presumption of disclosure. Hill, 141 F.4th at 297. The court's rejection of Doe Corporations' request as lacking "the detailed showing required to overcome the presumption," is thus correct, May 15 Order, App. 32, or—at the very least—not an abuse of discretion.
Conclusion
Doe Corporations have come to a public federal courtroom, suing a Bank that is in large part funded by American taxpayer money, and that is in large part controlled by the U.S. government. Doe Corporations are alleging improper conduct by the Bank, and the Bank has apparently itself alleged improper conduct by Doe Corporations. This is the sort of litigation that Americans are generally entitled to observe and monitor, usually through the intermediaries of journalists, researchers, and activists who would gather and publish information about the litigation and the litigants.
Yet Doe Corporations seek to litigate the matter with their names concealed. If that is allowed, many more facts will have to be concealed as well. And their argument for the concealment—the risk of reputational and economic harm—is the sort of argument that a vast range of other litigants can make. Accepting that argument here would turn our legal system from one where pseudonymity is a "rare dispensation" reserved for "exceptional cases" into one where pseudonymity is the norm, at least for high-stakes cases such as this one.
The District Court was correct in rejecting pseudonymity here, and certainly did not abuse its discretion in so doing. For this reason, its decision should be affirmed.
The post Multi-Billion Dollar Corporation Can't Sue Inter-American Development Bank as a Pseudonymous "Doe Corporation" appeared first on Reason.com.
