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April 21, 2016

Suing Ashley Madison Over Data Breach? Gotta Use Real Name

ST. LOUIS, Mo.—In an Order dated April 6, U.S. District Judge John A Ross has ruled that 42 plaintiffs seeking to mount a class action suit against adultery-finder website AshleyMadison.com must use their real names in order to do so. The suit began in 2014, with the so-far-unnamed plaintiffs alleging that Avid Dating Life Inc., owner of the Ashley Madison website, "failed to adequately secure their personal and financial information; marketed a 'Full Delete Removal' service that did not, in fact, purge user account information from the Ashley Madison database; and made extensive use of artificial intelligence 'bots' and other mechanisms to mimic fake users (specifically, female users) on the Ashley Madison website in order to induce actual (predominantly male) users to make purchases." However, those 42 putative plaintiffs also argued in a pre-trial motion that they should not be forced to reveal their identities, which they used in accessing the site, in order to "'reduce the risk of potentially catastrophic personal and professional consequences that could befall them and their families' should they be publicly identified as someone whose sensitive personal information, i.e., names, email addresses, credit card information, and sexual preferences and habits, was contained in Avid’s 'cheating website' database," according to the Memorandum and Order signed by Judge Ross. While recognizing that it was within his discretion whether to allow the plaintiffs to use pseudonyms in pressing their case, Judge Ross noted that the country's courts are all over the map as to whether such pseudonymity outweighs the public's right to know who's suing whom on matters of public interest. Here, Plaintiffs assert that being forced to proceed publicly would allow others to scrutinize their extremely sensitive personal, sexual, and financial information, the exact injuries their lawsuit seeks to address, and expose them to the threat of personal humiliation as well as extortion," the judge wrote. "In its response, Avid notes that a number of Plaintiffs who have filed similar class action complaints are using their real names, which weakens the argument Plaintiffs are asserting in their motion. Avid argues that Plaintiffs’ sexual preferences and habits do not constitute information of the utmost intimacy so as to require anonymity and cites several cases which hold that potential embarrassment and economic harm are not enough to outweigh the public interest in open court proceedings." Judge Ross basically adopted Avid's argument, with one important distinction: The plaintiffs seeking anonymity also style themselves as the heads of a class of Ashley Madison users across the country who also seek to hold Avid responsible for allowing their data to be made public. In that capacity, Judge Ross noted that plaintiffs representing a class in a class action lawsuit "generally receive an incentive award as compensation for work done on behalf of the class," adding, "Given the importance of the role of class representative, the Court will require Plaintiffs to disclose their identities so that the public, including the putative class members they seek to represent, know who is guiding and directing the litigation." "Before the consolidated complaint is filed, Plaintiffs currently proceeding under pseudonym who are seeking to serve as class representatives must decide whether to proceed using their real names or dismiss their complaints and proceed, without publicly disclosing their names, as class members—if and when a class is certified," Judge Ross stated. "The Court believes this balancing of the equities does not deny a remedy to those Plaintiffs wishing to remain anonymous. Plaintiffs reply that forcing some of them to drop their claims could leave a number of subclasses without a named representative. The possibility that subclasses might not be represented is purely speculative at this stage of the proceedings. If this situation were to occur, the Court can revisit its order." Judge Ross' entire Memorandum and Order can be found here.

 
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