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Candidate #452207 v. CFA Inst.

United States District Court, E.D. Virginia, Alexandria Division

January 4, 2012

CANDIDATE #452207, a/k/a JA, Plaintiff
v.
CFA INSTITUTE, Defendant

For Candidate, also known as JA, Joshua Michael Adler, Plaintiffs: Stephen Charles Glassman, Vienna, VA.

For CFA Institute, a Virginia Nonstock Corporation, Defendant: Steven David Brown, LEAD ATTORNEY, Alison Drew Hurt, Elizabeth Ellen Clarke, LeClair Ryan PC (Richmond), Richmond, VA; Charles Garrison Meyer, III, LeClair Ryan PC, Richmond, VA; Elizabeth Marie Ebanks, LeClairRyan PC (Alexandria), Alexandria, VA.

Page 805

MEMORANDUM ORDER

Gerald Bruce Lee, United States District Judge.

THIS MATTER is before the Court on Plaintiff Candidate #452207's, a/k/a JA, Rule 5.2 Motion to File Complaint under a Substituted Legal Name. Dkt. No. 2. This is an action for monetary, injunctive, and declaratory relief brought by a candidate for Chartered Financial Analyst (" CFA" ) certification against the CFA Institute, the organization responsible for developing and administering the CFA membership examinations through which the CFA certification is conferred. Plaintiff filed his complaint under the substituted names " Candidate #452207," the number he was allegedly assigned by CFA Institute, and " JA," which are his initials. The issue before the Court on Plaintiff's motion is whether the Court should allow Plaintiff to maintain his suit against CFA Institute pseudonymously so as to avoid embarrassment, exposure to negative publicity, and reputational injury to Plaintiff when the subject of the suit is CFA Institute's allegedly false and procedurally flawed determination that Plaintiff cheated on a CFA examination. The Court concludes that it will not permit Plaintiff to proceed pseudonymously and denies Plaintiff's motion because Plaintiff does not plead a substantial privacy right or a substantial risk of retaliation that outweighs the presumption of openness in judicial proceedings and the risk of unfairness to Defendant CFA Institute.

I. BACKGROUND

The following factual summary is based on allegations contained in the complaint and Rule 5.2 motion filed by the plaintiff JA.

The Chartered Financial Analyst (" CFA" ) certification is a credential for finance and investment professionals awarded upon completion of a program administered by the CFA Institute, which requires successful completion of a series of three challenging examinations designated Levels I, II, and III. Plaintiff became a " CFA Level II Candidate" upon passage of the CFA Level I exam in 2008 but did not pass the Level II exam on his first try in 2009. Compl. ¶ 12. In order to sit for the Level II exam in 2010, JA paid the requisite $500 fee and entered the requisite agreement to the CFA Institute Code of Ethics and Standards of Professional Conduct and to be bound by the Institute's Rules of Procedure for Professional Conduct. Compl. ¶ ¶ 6-8.

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A few weeks after JA took the Level II exam in June 2010, CFA Institute informed JA that the Institute was accusing him of cheating by looking at the answers given by another candidate seated at the same table as JA during the exam. Compl. ¶ ¶ 16, 19. According to the complaint, after JA denied the cheating allegation, the Institute adopted new procedural rules to replace those by which JA had agreed to be bound and retroactively applied them to JA's case, which had last been amended and restated in 2007. Compl. ¶ ¶ 20-22. JA alleges that both the 2007 and new 2010 Rules of Procedure provide that a CFA candidate's true name is not disclosed by the CFA Institute in connection with exam-related disciplinary procedures. Pl.'s Mot. ¶ ¶ 5-6.

According to his complaint, JA was denied certain procedural protections in connection with CFA Institute's adjudication of the cheating charges, including a private hearing at which JA would be permitted to provide oral testimony and to question adverse witnesses. Compl. ¶ ¶ 23, 28, 36. In February 2011, a hearing panel selected by CFA Institute decided that JA had cheated on the June 2010 Level II exam. Compl. ¶ 40. CFA Institute adopted this decision, refused to inform JA of his score on the exam, implemented a five-year suspension of JA from the CFA program, and denied JA's attempts to appeal the decision. Compl. ¶ ¶ 26, 33, 40-42, 53. On October 26, 2011, JA filed a complaint with this Court for monetary, injunctive, and declaratory relief against CFA Institute for the Institute's alleged breach of contract and violation of JA's common law right to fair treatment. Dkt. No. 1.[1]

In the caption of his complaint, JA used an identification number allegedly assigned to him by the Institute, " Candidate #452207," in the place of his actual legal name. See Dkt. No. 1. The same day he filed his complaint, JA filed his Rule 5.2 Motion to File Complaint under a Substituted Legal Name requesting leave to proceed with this suit pseudonymously. Dkt. No. 2. Through this motion, Plaintiff seeks, in his own words " protect[ion] from public embarrassment and exposure to negative publicity and adverse actions by other persons active in the financial world who might make false assumptions about Plaintiff's character and abilities were his true name to be publicly disclosed in connection with allegations of cheating on the CFA's national certification exam." Pl.'s Mot. at 1. Defendant CFA Institute filed an opposition to the motion, and Plaintiff replied. Dkt. Nos. 8, 9. Plaintiff's Rule 5.2 Motion to File Complaint under a Substituted Name is now before the Court.

II. STANDARD OF REVIEW

Federal courts recognize a strong presumption of openness in judicial proceedings that generally requires disclosure of the identities of the parties to litigation. Federal Rule of Civil Procedure 10 provides that titles of civil complaints filed in federal district courts must include the names of all parties to the action. Fed.R.Civ.P. 10(a). " This rule embodies the presumption . . . of openness in judicial proceedings[]" which dates back to the English common law and finds constitutional support in First Amendment protections of freedom of speech and ...


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