The settlement over Ashley Madison s data breach presents a unique conundrum: How do you find class members who don t exactly want to be found?
From the start, anonymity has plagued lawsuits over the 2015 hack that compromised the personal information of 37 million subscribers to AshleyMadison.com, an online dating site that targets people looking to have an affair. Many class action attorneys, questioning who would want to be identified as a plaintiff, bowed out of the litigation. Those who pursued cases asked a federal judge in Missouri to allow their clients to use pseudonyms, but they weren t successful.
Heading into this month s $11.2 million settlement, there was the potential for embarrassment on both sides. The deal contains provisions that acknowledge the problems inherent in sending out notices and distributing payouts to class members in this case: Many of them gave fake email or street addresses when setting up accounts and, truth be told, they might not want notices of the deal sent to their businesses or home addresses.
In this particular case, direct notice to the class is impossible and has the potential to create future harm to class members, plaintiffs attorneys wrote in a July 14 motion to approve the settlement.
As a result, lawyers came up with a plan to distribute notices to all online dating users not just Ashley Madison subscribers through People and Sports Illustrated magazines and on banner ads, rather than emails or mailboxes. They also plan to advertise the agreement in a prominent location on the websites of the lawyers firms. And the settlement will have its own website, although the URL won t make reference to Ashley Madison or any other information identifying it as being related in any way to the substance of this litigation or purpose of ashleymadison.com.
Claim forms will be strictly confidential, according to the agreement.
On Friday, U.S. District Judge John Ross in St. Louis, Missouri, is set to hear oral arguments on whether to preliminarily approve the settlement.
Co-lead plaintiffs attorney W. Lewis Garrison of Heninger Garrison Davis in Birmingham, Alabama, declined to comment.
Richard Cassetta, a partner at Bryan Cave in St. Louis, and Robert Atkins, a partner at New York s Paul, Weiss, Rifkind, Wharton & Garrison, who represent Ruby Corp., the rebranded name of Ashley Madison s parent company, Avid Life Media Inc., did not respond to requests for comment, and Paul Keable, a spokesman for the company, declined to comment as this matter is still before the courts.
In the settlement agreement, Ruby cited a need to avoid further expense, inconvenience and burden by agreeing to a settlement without admitting liability for any of the alleged acts or omissions in the complaint.