In October 2015, the D.C. federal district court ruled that the plaintiffs’ names should be redacted in all documents filed in a lawsuit against the CFPB initiated by the plaintiffs.  The plaintiffs are a group of businesses and an individual who provide services related to consumer credit counseling and are under investigation by the CFPB.  In a motion filed on December 16, 2015, the CFPB is asking the court to reconsider its decision and require the plaintiffs to disclose their names and other identifying information.

The plaintiffs filed the lawsuit to challenge the CFPB’s denial of their request to have their attorney attend an investigational hearing held in connection with CIDs issued to one of the plaintiffs and a company alleged to have acted as the plaintiffs’ business partner.  In addition to a complaint, the plaintiffs filed a TRO application to bar the CFPB from proceeding with the hearing without an attorney for the plaintiffs being present and a motion to seal the case.  After the court ordered the case temporarily sealed, it held a hearing on the TRO application and “events at the hearing largely mooted the case.”  The plaintiffs then voluntarily dismissed their complaint but maintained their motion to seal the case.  While rejecting the plaintiffs’ attempt to seal the entire case, the court ruled that it was appropriate “to re-caption this case as a John Doe suit and to afford Plaintiffs the opportunity to submit versions of all of the documents filed to date that redact their names and other identifying information.”

In its motion, the CFPB argues that the plaintiffs “should not be allowed to shield from public disclosure either their names or other identifying information simply because they are the subjects of a Bureau investigation.”  According to the CFPB, a litigant’s request to proceed pseudonymously can only be granted in “extraordinary circumstances” based on consideration of the following five factors:

  • Whether the justification for the request is merely to avoid the annoyance and criticism that can attend any litigation or is to protect privacy in a sensitive and highly personal matter
  • Whether there is a risk of retaliatory physical or mental harm as a result of  identification to the requesting party or innocent parties
  • The ages of the persons whose privacy interests are sought to be protected
  • Whether the action is against a governmental or private party
  • The risk of unfairness to the opposing party from allowing the action to proceed anonymously

The CFPB claims that none of these five factors weigh in favor of allowing the plaintiffs to proceed pseudonymously.  In response to the plaintiffs’ contention that they would suffer irreparable reputational and financial harm if they were tied to a government investigation, the CFPB cites to case authority which purportedly indicates that anonymity requests have consistently been rejected by courts faced with similar allegations of reputational and economic harm.  Accordingly, the CFPB asks the court to require the plaintiffs “to disclose their names and other identifying information as is required under the Federal Rules of Civil Procedure and this Court’s own Local Rules.”