Thursday, January 19, 2017
Lawyers Seek to Justify Shielding of Identities of Cheerleaders/Litigants
By ROGER M. GRACE
What argument can be made for a court of appeal shielding the identities of former cheerleaders for the Oakland Raiders who sued over alleged wage and hour violations?
Court of Appeal Presiding Justice Barbara J.R. Jones of the First District’s Div. Five, in her Dec. 13 opinion in Lacy T. v. Oakland Raiders, provides no explanation as to why she lent anonymity to these adult litigants.
As recited here yesterday, Jones—after receiving a suggestion from the Metropolitan News Company, which publishes this newspaper, to modify the opinion by using the full surnames of the parties rather than merely the first letters, and receiving letter briefs on the issue from attorneys for ex-cheerleaders, opposing modification—decided to leave the opinion as is.
The opinion affirms Alameda Superior Court Judge Wynne Carvill’s approval of a $1.25 million settlement of a class action. The class was represented by Lacy T[hibodeaux] and Sarah G[uerrero]. Submitting a letter brief arguing against their full surnames being used was Sharon R. Vinick of the Oakland firm of Levy Vinick Burrell & Hyams.
The appellant was Jenny C[orrico], who objected to the settlement. Submitting a letter brief on behalf of her, as well as Caitlyn Y[ates]—lead plaintiff in the rival action but not an appellant—was San Francisco attorney Drexel A. Bradshaw. He argued for continued secrecy, notwithstanding that it was he who revealed the identities of his clients to the MetNews last month. The clients of his who were partially identified in Jones’s opinion included Susie Sanchez, for whom Bradshaw did not seek further anonymity.
His letter asserts that “guidelines “set forth in California Rules of Court, rule 8.90, effective Jan. 1, providing for courts of appeal in deciding whether parties’ identities should be undisclosed, are advisory, only, were not put into effect until after Lacy T. was filed, and can be disregarded. It’s true that the guidelines, discussed yesterday, are not binding on the courts of appeal…but, having been approved by the state Supreme Court, they should perhaps not be lightly dismissed. They came into effect after the opinion was filed, but before it became final, and sufficient time existed within which to take the guidelines into account in deciding whether to fully identify the parties.
Vinick argues that the Raiders, itself, used only the first names and last initials of the Raiderettes, who “were instructed by The Oakland Raiders not, under any circumstances, to use their last name or to provide any identifying information about themselves to the public,” and were “explicitly told that this policy was for their, and their families’, own security and safety.” She adds:
“To emphasize the importance of this policy, the Raiderettes were told that these rules were adopted after one of the Raiderettes had experienced problems with a fan who ‘stalked’ her.”
This hardly establishes a need for hiding the identities of the former cheerleaders. If it did, the Los Angeles Superior Court would be obliged to apply a fictitious name to any Hollywood star or starlet possessed of pulchritude, or qualities approaching good looks, involved in a case of any sort, based on the mere prospect that news of the litigation would prompt attention to that litigant, conceivably resulting in a stalking.
Did the Court of Appeal for this district imperil two glamour stars by failing to employ pseudonyms in the 1995 case of Elke Sommer v. Zsa Zsa Gabor? Should that court have captioned its 1983 opinion in Carol Burnett v. National Enquirer, Inc. differently, referring merely to “Carol B.”? Was the Ninth Circuit remiss in not camouflaging the identity of the appellant in Bette Midler v. Ford Motor Company in 1988 or the appellee in Cher v. Forum International, Ltd. in 1982?
Did the mere use of these litigants’ actual surnames in opinions—with consequent mention of them in news stories—place these women in jeopardy?
No evidence of that appears.
Is Vinick’s vague reference to a Raiderette who “experienced problems” with a stalker not a confession that she can point to no Raiderette actually being harmed by an admiring fan in any context, let alone the mere mention of her name in a court opinion sparking such a fixation on her as to cause a confrontation?
There were five copycat class actions that were filed against NFL teams. Former “Ben-Gal” Alexa Brenneman in February of 2014 sued the Cincinnati Bengals in U.S. District Court for the Southern District of Ohio, using her true name (securing a $255,000 settlement for the class). Ex-cheerleader Manouchcar Pierre-Val, in May 2014, sued the Tampa Bay Buccaneers in U.S. District Court for the Middle District of Florida, sans pseudonym (gaining a $825,000 settlement). I can’t find any news story telling of their activity as litigants leading to any physical harm to them.
The justification Vinick puts forth is far-fetched, being founded on sheer speculation. Moreover, the parties in Lacy T. are no longer Raiderettes; Thibodeaux, for one, is an “Account Director/Business Developer,” according to her Linkedin page.
Bradshaw puts forth a similar, but even feebler, argument. He says in his letter:
“[T]he Court should…protect the parties’ privacy over safety concerns from retribution from Raiders fans who may not be happy these women sued the fans’ favorite football team. Football fans are notoriously loyal, Raider fans chiefly so. It is not unthinkable that a fan would learn the name of these women and seek retribution, either through harassment online, or otherwise, indeed, since the filing of these lawsuits, both Caitlin Y. and Jenny C. endured a rash of online harassment.
“Jenny C. and Caitlin Y. request this court respect their privacy, and not allow a new round of harassment to commence by disclosing their full names in this decision.”
Reference to the prospect of “retribution” against ex-cheerleaders other than in the form of online derision is speculative and unrealistic. Hinting, as it does, at the potential of violence, it is irresponsible absent any reference to past violence against any person based on suing a sports team.
What renders the argument utterly bizarre is that Bradshaw is urging anonymity for Corrico and Yates because the fact of these litigants having brought their action against the Raiders might lead to criticism of them, expressed online. Under that view, any person suing a well-known person or entity should be able to do so under a pseudonym in order to block criticism, published in whatever form, for having brought the action.
The notion, patently, is balmy.
Back to Vinick. She also contends:
“In the instant case, the last names of Lacy T. and Sarah G. were not used in any of the briefings or evidence submitted to Court, nor are they contained in any pleading submitted to the Superior Court So, Rule 8.90 is completely irrelevant. There is simply nothing in the language of the Rule 8.90, the Advisory Committee Comment to the Rule, nor the Invitation to Comment, that suggests that Rule 8.90 is intended to invest the Court of Appeals [sic] with authority to demand that the parties supplement the record (providing new information regarding the identity of the Plaintiffs), and to use that information to effectively undermine the authority of the Superior Court to allow an action to proceed with a pseudonym.”
She’s sassily saying, in other words: “You won’t find the names in the record and you can’t make us tell.”
Wrong. The Court of Appeal was not powerless to obtain that information; to the contrary, Jones was derelict in not having required it earlier—indeed, shortly after the case was assigned to her division.
When the case came into her division on April 6, 2015, she should have spotted a need to inquire as to why pseudonyms were being used. But, as noted yesterday, she’s no Paul Turner, the presiding justice of this district’s Div. Five, who does monitor cases as they arrive in his division, and red flags those where perpetuation of secrecy is sought with no evident need.
Jones definitely should have spotted that something was wrong after Bradshaw filed a “certificate of interested entities or persons” on April 15, 2015, redacting all letters of the appellant’s surname other than the first.
California Rules of Court, rule 8.208 requires the filing of such a certificate by all parties to an appeal. The first paragraph of the rule says:
“The California Code of Judicial Ethics states the circumstances under which an appellate justice must disqualify himself or herself from a proceeding. The purpose of this rule is to provide justices of the Courts of Appeal with additional information to help them determine whether to disqualify themselves from a proceeding.”
“Additional” to what? The rule requires disclosure of the identity of “any person or entity, other than the parties themselves, that has a financial or other interest in the outcome of the proceeding that the party reasonably believes the justices should consider in determining whether to disqualify themselves.”
This obviously presupposes that the identity of “the parties themselves” are already known to the justices. Indeed, if Vinick had followed the rule, the identities of Thibodeaux and Guerrero would have been known. That’s because ¶(d), subpara. (2) of the rule says:
“If the identity of any party or any entity or person subject to disclosure under this rule has not been publicly disclosed in the proceedings and a party wants to keep that identity confidential, the party may serve and file an application for permission to file its certificate under seal separately from its principal brief, motion, application, or opposition. If the application is granted, the party must file the certificate under seal and without service within 10 days of the court’s order granting the application.”
The docket shows that Vinick failed to file such an application. She did, however, file the certificate. It accompanied her respondent’s brief, as required.
The first line on the form reads: “This form is being filed on behalf of the following party:” with a blank to be filled in. Vinick inserted “Respondent Lacy T. and Sarah G. el al.”
There would be no reason for a procedure to exist under which the certificates might be filed under seal unless the expectation is that the certificates contain the true names of the filing parties. Without the true names, the justices cannot possibly determine if a conflict exists. Jones and the concurring justices, Henry E. Needham Jr. and Terry Bruiniers, each had an obligation under Canon 3E of the Code of Judicial Ethics, to step aside in the event of a conflict…yet none of them had ability to know if a conflict existed given that the identity of the parties was unknown to them.
Jones, as presiding justice, should have compelled adherence by Bradshaw and Vinick to Rule 8.208 by requiring them to file certificates in proper form. Jones, as the justice authoring Lacy T., should have realized she was using fictitious names without the requirements of Rule 8.90(d)(2) having been observed.
When Jones received Vinick’s Jan. 9 missive proclaiming that the court had no “authority to demand” the identities of the parties, Jones, as presiding justice, should, at long last, have exercised not only the authority, but under Rule 8.208 the duty, to make such a demand. Irresponsibly, she failed to do so.
Vinick proclaims that if the Court of Appeal were to insert the true names of the parties, this would “effectively undermine the authority of the Superior Court to allow an action to proceed with a pseudonym.”
There are many instances where deference to findings of the trial court are required. This is not one of them. The Alameda Superior Court permitted the parties to proceed under false names, without ever having made an express finding as to the propriety of their doing so.
Moreover, as the Sixth District Court of Appeal said in its 2007 opinion in H.B. Fuller Co. v. Doe, in connection with whether documents sealed in the trial court should remain sealed in the appellate court:
“This court is master of its own files. The presumption of correctness that attends a challenged judgment has no bearing on our power over our records.”
Code of Civil Procedure §422.40 requires that “[i]n the complaint, the title of the action shall include the names of all the parties.” The actual name of the lead plaintiff is Lacy Thibodeaux, not Lacy T. Where the law requires an identification of persons, can it reasonably be supposed that it impliedly authorizes false identifications, merely based on preference of the parties?
None of the cheerleaders gained consent either in the trial court or the Court of Appeal to proceed pseudonymnously. And Jones, in failing to correct her opinion to reflect the “names of all parties” ratified the slipshod manner in which both she and Carvill attended to their administrative duties.
Copyright 2017, Metropolitan News Company