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Ninth Circuit Grills Wynn’s Views in ‘Judy Does’ Harassment Case

Oct. 4, 2021, 9:39 PM

A federal appeals court panel appeared skeptical Monday of Wynn Resorts’s arguments that a group of anonymous salon workers shouldn’t be allowed to revive a lawsuit accusing former CEO Steve Wynn of sexually harassing them.

Attorneys for Wynn Resorts Ltd. and Wynn Las Vegas LLC told the San Francisco-based U.S. Court of Appeals for the Ninth Circuit that the nine women are attempting to move forward without enough information to defend their accusations, and failed to follow proper procedure to file an amended complaint.

The three-judge panel, however, asked the company attorneys why the lawsuit couldn’t be refiled since the Nevada federal judge who dismissed the lawsuit last year indicated that the complaint’s deficiencies—largely a lack of specific detail— could be cured.

“If it’s not futile to re-plead, why shouldn’t they be given the opportunity?” Circuit Court Judge Richard Clifton said. He later added, “I get the sense there is a game of gotcha going on here.”

However, the appellate judges also grilled the workers’ attorney on how it would be possible for former Chief Executive Steve Wynn and the company to adequately defend themselves, moving forward, if the employees don’t reveal their names and more details about the claims.

The women, who are identified only as Judy Does 1 through 9 and still work at the Wynn Salon and Encore Salon, had asked to pursue their claims anonymously because they fear further harassment and retaliation. They sued in September 2019 in the wake of high-profile probes by Nevada and Massachusetts gaming authorities that spurred Wynn’s resignation as CEO.

Similar “Jane Doe” cases arose from the #MeToo movement, where women brought forward claims of harassment but asked courts to allow them to proceed under pseudonyms.

Fictitious Names

The women’s attorney, Danielle Barraza of Maier Gutierrez & Associates, acknowledged the complaint didn’t reveal details to protect the workers’ identities, but added that the Nevada federal judge said it was possible to cure the deficiencies in their complaint.

Clifton, however, said it might not be practical to proceed completely anonymously in this case.

“How could the fictitious names argument last very long?” he asked Barraza. “I understand your clients’ concern, but electing to go to court, I’m not sure what ill will befall them, because they will get revealed some day.”

Barraza responded that the women don’t want to be outed in public as victims of Steve Wynn. She said if given the opportunity to refile, the attorneys would update the complaint with details, and will file later in the process for a protective order during discovery.

“There’s a social stigmatization here,” she said. “There is a privacy interest to be preserved at this point.”

‘Litigate in Secrecy’

Wynn’s attorney, Deverie Christensen of Jackson Lewis P.C., cited a Nevada district court local rule that requires a party to first file a motion to amend a complaint, and said the attorneys for the salon workers failed to do so.

She added that there are questions about whether some of the anonymous allegations fall within the 300-day statute of limitations requirement for harassment claims.

“What they have insisted on is to litigate this case in secrecy,” she said, noting that the company originally didn’t oppose the women proceeding under Judy Doe status. Wynn would have agreed to allow discovery with redaction under seal for any identifying information, Christensen said.

Circuit Judge Michelle Friedland said it wasn’t clear whether the lower court used the required balancing test for claims to proceed anonymously. “It seems like something got confused here,” she said.

Clifton, Friedland, and U.S. District Judge Michael McShane, sitting by designation, comprised the panel.

Maier Gutierrez & Associates and Gilbert & England Law Firm represent the women. Jackson Lewis P.C. represents the companies.

The case is Doe v. Wynn Resorts Ltd., 9th Cir., No. 20-16551, oral argument 10/4/21.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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