It seems like just yesterday that the Ashley Madison site became big news. The Ashley Madison site claimed that it was the world’s largest place on the Internet for married people to find adulterous partners. Indeed, the site boasted that it had more than 38 million users. And importantly, the Ashley Madison site claimed that people looking for affairs could do so anonymously. Unfortunately for Ashley Madison users, the site was hacked in July, 2015, and some of the personally identifiable information of some of the site’s users was leaked.
As a result of this hack and the leaks, marriages suffered, jobs were lost, suicidal activity was reported, and potential blackmail of government personnel who used the site reportedly was attempted by foreign governments. Ashley Madison users affected by the hack have sought legal redress. A federal class action lawsuit has been filed in the Eastern District of Missouri.
For this lawsuit to proceed, plaintiff class representatives must be approved by the court. These representatives must have claims that re similar to those of the class, and they must be adequate representatives, among other requirements. The proposed class representatives have sought to proceed on an anonymous basis. They do not want to cause any or further publicity to themselves based on their use of the Ashley Madison adultery site.
In an important initial legal development in the case, Judge John A. Ross has ruled that the class representatives for the case cannot proceed on an anonymous basis. While he acknowledged that in cases of great sensitivity, such as those involving child abuse or rape, the plaintiffs may go forward using pseudonyms instead of their real names, but in a case like Ashley Madison, mere embarrassment is not enough to counter-balance the presumption of openness of court proceedings in the United States.
The judge ruled that while class representatives have certain duties to adequately work on behalf of the class and thus should be identifiable, Ashley Madison class members do not have to be identified by real names in the case. Accordingly, if the currently proposed class representatives do not want to be identified, they can drop out as proposed class representatives and simply remain anonymous as general class members.
Given this ruling, the lawyers prosecuting the case will need to find potential class representatives who do not mind that the case would proceed with their actual names set forth as the class representatives. Of all the many Ashley Madison users impacted and who already have been publicly disclosed by the leaks, it seems likely that the lawyers will find at least a few potential class representatives who will fit this bill.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.