will have to proceed without the cloak of anonymity, a federal judge ruled last week. If a plaintiff does not want to use his real name, he will have to drop out of the class-action litigation, which has been consolidated at U.S. District Court in St. Louis, Missouri.
At least one Alabama law firm, Heninger Garrison Davis of Birmingham, is representing a number of plaintiffs in the case. Judge John Ross's ruling essentially dovetails with our reporting on the Ashley Madison (AM) story. We have been revealing the real names of AM customers for several months, focusing on high-level professional elites (lawyers, doctors, CEOs, wealth managers, etc.), who make up a significant percentage of users in Alabama and Missouri, the two states that have been our focus.
To our knowledge, we are the only U.S. Web site to reveal elite users of AM, providing key identifying information--real names; addresses; employers; names of spouses and children; and in some cases, account information (credit-card transactions, amount of money spent, etc.) Most reporting on the AM story has focused on technical, legal, and social issues related to the data breach itself, but we are the only news site--best we can tell--that consistently has provided information about users. We plan to continue that reporting soon, and you can see examples of our investigative work here, here, here, here, here, and here.
The technology news site Ars Technica, now owned by Conde Nast Digital, broke last week's story about the anonymity ruling, From the Ars Technica report:
We all remember last year's hype surrounding the Ashley Madison dating site's data breach. Hackers exposed identifying information about millions of users of the site that has the tagline, "Life is short. Have an affair."
Then came the lawyers smelling blood in the water—filing proposed class-action suits targeting the cheating site's not-so-perfect "Full Delete" option that was supposed to, and didn't, remove all identifying information from the service for a $19 fee per user. Then it surfaced that the site perhaps made phony profiles of women to attract more men to the site.
The massive litigation has been co-mingled in Missouri, and there are some interesting elements at play. For starters, the judge presiding over the case says that if you want to be a named plaintiff in the litigation, you can't use a pseudonym like "John Doe," and instead you have to use your real name. The judge, in agreeing with Ashley Madison's owners, ruled that only in extraordinary circumstances may civil litigation proceed under fake names, like in cases such as sex crimes and suits about juveniles.
Upon what did Judge Ross base his ruling? Ars Technica provides details, and the full ruling can be read at the end of this post:
"The disclosure of Plaintiffs' identities could expose their sensitive personal and financial information—information stolen from Avid when its computer systems were hacked—to public scrutiny and exacerbate the privacy violations underlying their lawsuit," US District Judge John Ross ruled . . . earlier this month. "At the same time, there is a compelling public interest in open court proceedings, particularly in the context of a class action, where a plaintiff seeks to represent a class of consumers who have a personal stake in the case and a heightened interest in knowing who purports to represent their interests in the litigation." Days ago, a "John Doe" plaintiff removed . . . himself from the case.
Ross has given unnamed plaintiffs until June 3 to lodge their official class-action complaint and to give them time to decide if they want to be named plaintiffs or dropped out. Another contentious issue is on the table, as Ars Technica describes:
There's also a big wrinkle that could affect the upcoming class-action filing. Attorneys want to use confidential communications between Ashley Madison executives and their attorneys as part of their lawsuit in a bid to establish that the company made fake female profiles to induce people to become one of the site's 39 million members. Obviously, Avid Life Media, the site's operator, is opposed. Plaintiffs' lawyers say the data is not protected by attorney-client privilege and can be part of the case because of the "crime-fraud" exception. That exception means that a client and their attorney's back-and-forth communications are not protected if the communications were made "with the intention of committing or covering up a crime or fraud." The plaintiffs' lawyers noted a story in Gizmodo citing the hacked data in which Avid Life attorneys are discussing "fictitious" profiles on the Ashley Madison site.
Judge Ross has not ruled on the request but is expected to do so before the June 3 filing deadline.