XYZ Corp. v. United States ( 2017 )

Slip Op 17-124
UNITED STATES COURT OF INTERNATIONAL TRADE
XYZ CORPORATION,
Plaintiff,
v.
UNITED STATES and U.S. CUSTOMS &
Before: Jennifer Choe-Groves, Judge
BORDER PROTECTION,
Court No. 17-00125
Defendants,
and
DURACELL U.S. OPERATIONS, INC.,
Defendant-Intervenor.
MEMORANDUM AND ORDER
[Plaintiff may not proceed anonymously in this action under the pseudonym “XYZ
Corporation”]
Dated: September 12, 2017
John M. Peterson, Russell A. Semmel, and Richard F. O’Neill, Neville Peterson LLP, of New
York, N.Y., for Plaintiff XYZ Corporation.
Alexander J. Vanderweide, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, N.Y., for Defendants the United States and U.S. Customs
and Border Protection. With him on the brief were Chad A. Readler, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director, and Tara K.
Hogan, Assistant Director. Of counsel on the brief was Beth C. Brotman, Office of the Assistant
Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, New York,
N.Y.
Frances P. Hadfield, Crowell & Moring LLP, of New York, N.Y., and Robert N. Phillips and
John Patrick Donohue, Reed Smith LLP, of San Francisco, CA and Philadelphia, PA, for
Defendant-Intervenor Duracell U.S. Operations, Inc.
Court No. 17-00125 Page 2
Choe-Groves, Judge: XYZ Corporation (“Plaintiff”) is a company engaged in the
business of importing and distributing bulk-packaged gray market batteries bearing the
“DURACELL” mark, a United States trademark currently owned by Duracell U.S. Operations,
Inc. (“Duracell”). Plaintiff commenced this action to obtain judicial review of the decision made
by U.S. Customs and Border Protection to grant Duracell’s application for Lever-Rule
protection, thereby restricting imports of certain gray market batteries bearing its trademark. See
Amended Compl. ¶ 1; see also U.S. Customs and Border Protection Grant of “Lever-Rule”
Protection, 51 Cust. Bull. & Dec. No. 12 (Mar. 22, 2017). Before the court is the issue of
whether Plaintiff may designate its identity as confidential information in all filings with the
court and instead use the pseudonym “XYZ Corporation.” For the reasons explained below, the
court concludes that Plaintiff may not continue to proceed in this action under a pseudonym.
BACKGROUND
Plaintiff commenced this action against the United States and U.S. Customs and Border
Protection (collectively, “Government”) on May 19, 2017 with the filing of a summons and
complaint. See Summons, May 19, 2017, ECF No. 1; Compl., May 19, 2017, ECF No. 2. The
summons and complaint both named “XYZ Corporation” as the plaintiff. See Summons; Compl.
Plaintiff noted in its complaint that “XYZ Corporation is an assumed name of Plaintiff, which
fears commercial retaliation if its name is revealed. Contemporaneous with the filing of this
action, Plaintiff submitted an application for a judicial protective order, which would make the
name known to counsel for parties in this action, subject to certain specified limitations on
dissemination.” Compl. n.1.
After obtaining the Government’s consent, Plaintiff moved the court to enter a judicial
protective order. See Consent Mot. Judicial Protective Order, May 19, 2017, ECF No. 10.
Court No. 17-00125 Page 3
The court entered the requested protective order on May 26, 2017, restricting the disclosure of
confidential information produced in this action according to the terms of the protective order.
See Judicial Protective Order, May 26, 2017, ECF No. 21. Plaintiff filed a summons and
complaint under seal revealing Plaintiff’s true identity. See Confidential Summons, June 1,
2017, ECF No. 26; Confidential Compl., June 1, 2017, ECF No. 27; see also USCIT Rule
81(h)(1) (requiring a party to file a confidential and public pleading if confidential or privileged
information is referenced).
Duracell moved to intervene in this action on July 11, 2017. See Ex Parte Appl. Leave
Intervene, July 11, 2017, ECF No. 61. The court granted Duracell permissive intervention and
Duracell was entered as a defendant-intervenor in this action.1 See Order, July 13, 2017, ECF
No. 63. The Parties then filed a joint motion to amend the judicial protective order to enable
Duracell’s counsel to have access to confidential information in this action. See Joint Mot.
Amend Judicial Protective Order, July 19, 2017, ECF No. 74. The motion was expressly “made
without prejudice to Duracell’s right to challenge the designation of any information as
Confidential” pursuant to the terms of the protective order. See id. The court granted the motion
and issued the amended judicial protective order on July 19, 2017.
The amended judicial protective order provides for the following procedure in the event
there is disagreement regarding what information may be designated as confidential:
In the event the receiving party disagrees with the producing party’s designation
of confidentiality, whether as to particular information or document, the receiving
party shall so advise the producing party in writing, and the producing party shall
thereupon have twenty (20) days in which to withdraw the claim to confidentiality
1
The Rules of the Court provide that a party may intervene as of right or with permission from
the court. See USCIT Rule 24(a)–(b). The court granted Duracell permissive intervention
because Duracell, as the applicant for the Lever-Rule grant that is the subject of this action, “has
a claim or defense that shares with the main action a common question of law or fact.” USCIT
Rule 24(b). Duracell did not claim in its motion that it had any right to intervene in this action.
Court No. 17-00125 Page 4
or otherwise resolve the disagreement, or move the Court to resolve the
disagreement. During the pendency of any such motion the receiving party will
not disclose the information or documentation that is the subject of said motion.
Amended Protective Order ¶ 9, July 19, 2017, ECF No. 75. On July 28, 2017, Duracell advised
Plaintiff by e-mail that it objected to Plaintiff’s assumption of a fictitious name and challenged
Plaintiff’s designation of its identity as confidential information under the amended judicial
protective order. See Pl.’s Mot. Order Directing Def.-Intervenor to Show Cause Why
Confidential Information Should Not Be Redacted, or to Redact Confidential Information Ex. A,
Aug. 17, 2017, ECF No. 103. Duracell stated that there was no justification to treat Plaintiff’s
identity as confidential information and informed Plaintiff that, according to the terms of the
protective order, Plaintiff had until August 17, 2017 either to withdraw the claim of
confidentiality to its identity or move the court to resolve the disagreement. See id. Plaintiff
refused to withdraw the designation of its identity as confidential information.
On August 17, 2017, Plaintiff filed a motion for an order directing Duracell to show
cause why Plaintiff’s identity should not be redacted as confidential information under the
amended judicial protective order. See Pl.’s Mot. Order Directing Def.-Intervenor to Show
Cause Why Confidential Information Should Not Be Redacted, or to Redact Confidential
Information, Aug. 17, 2017, ECF No. 103. Plaintiff argued that it should be able to proceed in
this action under a pseudonym because Plaintiff’s need for anonymity due to fear of commercial
and legal retaliation from Duracell outweighs countervailing interests in full disclosure. See id.
at 4–14. By letter dated August 21, 2017, the court invited the Government and Duracell to
submit written comments addressing whether Plaintiff’s identity should be treated as confidential
under the judicial protective order in this case. See Letter filed by the Honorable Jennifer Choe-
Groves, Aug. 21, 2017, ECF No. 109. Duracell filed comments on August 23, 2017, explaining
Court No. 17-00125 Page 5
that there is no factual or legal basis to justify allowing Plaintiff to conceal its identity. See Def.-
Intervenor’s Resp. Pl.’s Mot. Order Directing Def.-Intervenor to Show Cause Why Confidential
Information Should Not Be Redacted, or to Redact Confidential Information, Aug. 23, 2017,
ECF No. 111. The Government filed comments on the same date, “defer[ring] to the Court’s
discretion to determine whether the plaintiff has demonstrated, through particularized evidence,
that its concern of retaliation outweighs the countervailing interest in open judicial proceedings.”
Def.’s Resp Court’s Order Dated Aug. 21, 2017 3, Aug. 23, 2017, ECF No. 113.
DISCUSSION
Plaintiff wishes to proceed anonymously in this action using the pseudonym “XYZ
Corporation.” The amended judicial protective order issued on July 19, 2017 affords the Parties
limited protections regarding the disclosure of business information produced in this action.
Amended Protective Order, July 19, 2017, ECF No. 75. According to the terms of the protective
order, the following categories of information may be designated as confidential information and
may not be disclosed to the public:
(1) proprietary, business, financial, technical, trade secret, or commercially
sensitive information; (2) information that any party is prohibited from releasing
publically pursuant to contractual obligations, applicable statutes, applicable
regulations, or directives from the Government; (3) private information that is
otherwise protected from disclosure under applicable law including, but not
limited to, personnel files; and (4) other confidential research, development, or
commercial information as set forth in USCIT Rule 26(c)(1)(G).
Amended Protective Order ¶ 2.A, July 19, 2017, ECF No. 75. Plaintiff’s identity does not
appear to fall within any of these categories, nor has Plaintiff advanced any argument claiming
that its identity is confidential information pursuant to the terms of the protective order. Thus,
the court concludes that Plaintiff may not designate its identity as confidential information
according to the terms of the protective order.
Court No. 17-00125 Page 6
Having concluded that the protective order does not permit designating Plaintiff’s
identity as confidential, the court determines next whether to exercise its discretion to allow
Plaintiff to proceed anonymously in this action. The Rules of the Court provide that a summons
and complaint must “name all the parties,” USCIT R. 10(a), and that “[e]very action shall be
prosecuted in the name of the real party in interest.” USCIT R. 17(a). These rules serve to
apprise all parties of the identities of their adversaries and to protect the public’s interest in
knowing all the facts and events surrounding court proceedings. AD HOC Utils. Grp. v. United
States, 33 CIT 1284, 1291 n.14, 650 F. Supp. 2d 1318, 1326 n.14 (2009) (quoting Doe v.
Rostker, 89 F.R.D. 158, 160 (N.D. Cal. 1981)); Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 573
(SDNY 2004).2 Although Plaintiff’s identity is known to the Parties in this action, Plaintiff’s
identity is unknown to the public because the pseudonym “XYZ Corporation” has been used to
reference Plaintiff in the caption, the docket, and all public filings in this action, upon the
consent of the original parties to the case. Neither the Rules of the Court nor the Federal Rules
of Civil Procedure provides an explicit exception that allows a litigant to proceed anonymously.
There is no precedent from the Court of Appeals for the Federal Circuit addressing this
issue, but several other federal courts of appeals have held that, in determining whether a party
may use a pseudonym and remain anonymous in an action, “a district court must balance the
need for anonymity against the general presumption that parties’ identities are public information
and the risk of unfairness to the opposing party.” Does I thru XXIII v. Advanced Textile Corp.,
214 F.3d 1058, 1068 (9th Cir. 2000) (allowing plaintiffs to litigate under a pseudonym due to
2
“Since the Rules of the Court of International Trade mirror the Federal Rules of Civil
Procedure, it is without question that this court may look to the decisions and commentary on the
Federal Rules in the interpretation of its own rules.” Tomoegawa (U.S.A.), Inc. v. United States,
15 CIT 182, 185–86, 763 F. Supp. 614, 617 (1991) (citing Zenith Radio Corp. v. United States,
823 F.2d 518, 521 (Fed. Cir. 1987)).
Court No. 17-00125 Page 7
threats of physical violence, immediate deportation, and likely arrest); see also Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 189–90 (2d Cir. 2008) (requiring district court to balance
plaintiff’s interest in anonymity against the public interest in disclosure and prejudice to
defendants before deciding whether to allow a plaintiff to litigate under a pseudonym). The
balancing test is a highly fact intensive inquiry and it is within the court’s discretion to determine
whether the circumstances warrant “grant[ing] the ‘rare dispensation’ of anonymity against the
world.” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting James,
6 F.3d at 238).
In this case, Plaintiff wishes to proceed anonymously because it fears that revealing its
identity would result in commercial and legal retaliation by Duracell. See Pl.’s Mot. Order
Directing Def.-Intervenor to Show Cause Why Confidential Information Should Not Be
Redacted, or to Redact Confidential Information 4–8, Aug. 17, 2017, ECF No. 103. Plaintiff
states that during the twenty-seven years it has been importing gray market battery products
bearing Duracell’s trademark, neither Duracell nor previous owners of the trademark have taken
any action to interrupt Plaintiff’s business. See id. at 6. Plaintiff believes that anonymity in this
case is justified because revealing its identity would expose Plaintiff to suit in district court for
alleged infringement of Duracell’s trademark, which would bankrupt Plaintiff and destroy
Plaintiff’s reputation. See id. at 8. Plaintiff’s reason for anonymity – to avoid a potential suit in
another forum and prevent financial hardship – does not present the type of special circumstance
that warrants the use of a pseudonym. “Courts should not permit parties to proceed
pseudonymously just to protect the parties’ professional or economic life.” Guerrilla Girls, Inc.,
224 F.R.D. at 573. After balancing the interests presented by the Parties in this motion, the court
Court No. 17-00125 Page 8
holds that Plaintiff’s interest in anonymity has failed to overcome the public interest in disclosure
of the identity of a litigant.
Therefore, it is hereby
ORDERED that the information Plaintiff has designated as confidential to protect the
identities of Plaintiff and its corporate officers shall no longer be designated as confidential
information in all future filings in this action; it is further
ORDERED that, on or before September 13, 2017, 5:00 p.m. EDT, Plaintiff shall refile
its public summons and amended complaint without redactions of Plaintiff’s identity and its
corporate officers; it is further
ORDERED that the Government and Duracell shall not submit any public filings with
the court that reveal the identities of Plaintiff and its corporate officers prior to the refiling of
Plaintiff’s public summons and amended complaint; and it is further
ORDERED that Plaintiff’s Motion for Order Directing Defendant-Intervenor to Show
Cause Why Confidential Information Should Not Be Redacted, or to Redact Confidential
Information is denied as moot.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: September 12, 2017
New York, New York