Ashley Madison Says Class Action Shouldn’t Use Hacked Docs

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In a class action lawsuit alleging the makers of the Ashley Madison dating website lost private client information in a hack due to negligence, the website maker Avid Dating Life Inc. argued that the Class should not be able to use private information even though it has been leaked to the press.

A series of class actions were filed against the makers of Ashley Madison, a dating site known for facilitating adulterous rendezvous, after the names of the site users were posted on a public website in July of 2015.

Because this website is marketed to people seeking extramarital affairs, most plaintiffs in the class actions opted to keep their true identities a secret “to reduce the risk of potentially catastrophic personal and professional consequences that could befall them and their families.” The cases were consolidated into multidistrict litigation in Missouri federal court.

Avid Dating Life argued in a motion filed with the court last week that the plaintiffs in the class actions should be barred from using documents lost in the leak last July. Documents that were leaked included confidential client-attorney communications, said Avid in their motion, along with 37 million consumer records.

According to Avid’s motion, even though the documents were picked up by the press, the sources of the leaks, including Gawker and Gizmodo, should not be considered “wide dissemination” in the press and shouldn’t lose their “privileged” status that allows them to remain confidential.

According to Avid, the class action plaintiffs point out a blog called Gizmodo. “Unsurprising for a blog owned by Gawker, the libel-prone gossip website, the Gizmodo ‘articles’ about the Ashley Madison practices that were supposedly revealed by the hacked documents were, by the author’s own admission, fundamentally inaccurate,” argued Avid in its brief.

“But even if a handful of shoddy blog posts could qualify as ’wide dissemination’ in the ‘press,’ stolen documents do not lose their privileged status because they are published without the consent of the privilege holder,” the company said.

Avid also argues in its motion that the plaintiffs cannot rely on information contained in the leaked documents that qualify for confidentiality. Use of those documents in the plaintiffs’ filings would constitute use of criminally-obtained material, argues Avid.

“Whether or not plaintiffs and their counsel make explicit reference to or quote from that trove of purloined documents,” says Avid in its motion. “Their allegations and legal theories may well be informed by their review of that criminally-obtained material. Plaintiffs admit as much when they argue, with deliberate vagueness, that they only want permission to ‘rely on descriptions of Defendants’ internal business documents.”

The plaintiffs are represented by The Driscoll Firm PC, Dowd & Dowd PC, Whitfield Bryson & Mason LLP, Heninger Garrison Davis LLC, The Rosen Law Firm PA, Federman & Sherwood, Baddley & Mauro LLC and Siprut PC, among others.

The consolidated Ashley Madison Data Breach Class Action Lawsuit is In re: Ashley Madison Customer Data Security Breach, Case No. 4:15-md-02669, in U.S. District Court for the Eastern District of Missouri.

UPDATE: On June 24, 2016, in response to a recent federal court ruling, 18 plaintiffs who have filed suit against Ashley Madison over the highly-publicized data breach have amended their complaint to include their own names.

UPDATE 2: On Aug. 29, 2016, the companies behind the extramarital dating website Ashley Madison asked a federal judge to halt litigation over last summer’s data breach and refer the plaintiffs’claims to private arbitration.UPDATE 3: On July 14, 2017, Ashley Madison’s parent company agreed topay $11.2 million to settleclaims arising from a data breach that revealed personal information about those using the adultery dating website. UPDATE 4: The Ashley Madison data breach class action settlement is now open.

 Click here to file a claim. 

UPDATE 5: On Jan. 31, 2018, Top Class Actions viewers who filed a valid claim for the Ashley Madison data breach class action settlement started receiving checks worth as much as $2,915. Congratulations to everyone who got PAID!