John Doe Company v. CFPB

Last week, the CFPB filed a motion in a D.C. federal district court seeking to unmask companies that sued the agency this past summer, in a case whose public filings bear the mysterious caption John Doe Company v. CFPB (No. 1:15-cv-1177, D.D.C.). The lawsuit was entirely under wraps until October, when the court unsealed the case but allowed the plaintiff companies to remain pseudonymous. By that time, the case had already ended.

Here's what we know about the case (all quotations from the court's October 16 opinion unsealing the case in part): In July, five companies "who provide services related to consumer credit counseling and [were then] under investigation" by the CFPB sued the CFPB because the agency was, as part of an investigation, conducting an interview with the companies' lawyer. The interview was voluntary, the lawyer was represented by a lawyer of his own, and there was no reason to suspect that lawyer would reveal any confidential information, but the companies nonetheless argued that they had a right to be present to protect their attorney-client information and accordingly that the CFPB violated the Administrative Procedure Act in denying them the opportunity to attend. The companies sought a TRO and also moved to litigate the case under seal, both of which the agency opposed. The court held a hearing on the TRO the day after the case was filed, while the case was still sealed.  "Events at the hearing largely mooted the case[.]" Accordingly, the companies voluntarily dismissed the case in August only two weeks after filing it. The court did not rule on the sealing motion until October, and it held that sealing was incompatible with the public's right to access court records. However, the court, taking a suggestion the companies made for the first time in their reply brief in support of sealing, decided that it would permit the companies to continue to conceal their identity.

The court did not seek or receive adversary presentation on the pseudonymity issue, nor did it consider in its opinion the sizable body of precedent holding that harm to corporate reputation is not a basis to permit the use of a pseudonym. Following the court's order, case documents were released to the public with significant redactions, and the case was re-captioned John Doe Company v. CFPB.

Now the CFPB is asking for the plaintiffs' names to be released. Relying primarily on the Fourth Circuit's decision in Company Doe v. Public Citizen (which we've covered here), the CFPB argued in its filing last week:

Plaintiffs’ unsupported claim that "[r]eleasing their identities and information tying them to a government investigation will surely do irreparable reputational and financial harm," is an insufficient basis with which to allow Plaintiffs to proceed pseudonymously. . . . [C]ourts faced with virtually identical allegations of reputational and economic harm "consistently have rejected anonymity requests to prevent speculative and unsubstantiated claims of harm to a company’s reputational or economic interests." (first quotation from plaintiffs' brief; second quotation from Company Doe).

The CFPB is right as a matter of public records law, and it should win for another reason as well: if regulated parties know that they can challenge regulatory action using a pseudonym, they will be more likely to file meritless or marginal cases against regulators even if they would be embarrassed to bring such cases publicly.

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