Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 1 of 18 PageID #: 1280

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1 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 1 of 18 PageID #: 1280 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ) IN RE ASHLEY MADISON CUSTOMER ) DATA SECURITY BREACH LITIGATION ) ) MDL No This Document Relates to: ) ) Case No. 4:15MD2669 JAR ALL CASES ) ) PLAINTIFFS MEMORANDUM IN SUPPORT OF THEIR MOTION FOR LEAVE TO PROCEED UNDER PSEUDONYMS In support of their Motion for Leave to Proceed Under Pseudonyms, Plaintiffs respectfully state as follows: I. INTRODUCTION A majority of the Plaintiffs in this litigation have brought claims against Defendants under pseudonyms (the Doe Plaintiffs ) 1 in order to reduce the risk of potentially catastrophic personal and professional consequences that could befall them, their families and others should they be publicly identified as someone whose sensitive personal information was contained in the breached Ashley Madison database. This information purportedly included their name, address, credit card information, sexual preferences and habits, and other profoundly personal information. Defendants oppose the Doe Plaintiffs request to proceed under pseudonyms, despite the fact that Defendants not only promised to maintain this sensitive information in confidence, but also accepted a fee from many of the Plaintiffs to completely delete their personal information from the Ashley Madison website prior to the data security breach. 1 The Doe Plaintiffs represent all Plaintiffs in this MDL other than named Plaintiffs Christopher Russell, Michael Pauly, Grant Deloach, Szilvia Berki, Chris Hrivnak, David Poyet, Gustavo Alfaro, Lee E. Campbell, Matthew Lisuzzo and Robin Fibbs. 1

2 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 2 of 18 PageID #: 1281 With the consent of the Defendants, on February 12, 2016 Plaintiffs filed a Consent Motion for Protective Order. See Doc. 90. Under the proposed Limited Protective Order, Plaintiffs would provide to Defendants the names of the Doe Plaintiffs. Doc Defendants are thereby receiving precisely the same information they would have possessed had those Plaintiffs filed complaints under their own names. This eliminates any potential prejudice to Defendants while protecting the privacy of Plaintiffs and their families. For the reasons that follow, the Doe Plaintiffs respectfully request permission to proceed in this action under pseudonyms. II. LEGAL STANDARD While not expressly authorized by Federal Rules 10(a) or 17(a)(1), a long line of cases recognizes the need for a party to proceed under a pseudonym in a variety of circumstances. When a litigant sufficiently alleges that he or she has a reasonable fear of severe harm from litigating without a pseudonym, courts of appeals are in agreement that district courts should balance a plaintiff s interest and fear against the public s strong interest in an open litigation process. Doe v. Megless, 654 F.3d 404, 408 (3rd Cir. 2011) (citing Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, (2d Cir. 2008); Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000); M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998); James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993); Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992); Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981)). Indeed, judges of this Court have sanctioned this practice on multiple occasions. See, e.g., Doe v. Nixon, No. 4:08-CV-1518-CEJ, 2009 WL , at *3 (E.D. Mo. Apr. 13, 2009); Roe v. St. Louis Univ., No. 4:08-CV-1474-JCH, 2009 WL , at *5 (E.D. Mo. Apr. 2, 2

3 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 3 of 18 PageID #: ); Doe H.M. v. St. Louis Cnty., No. 4:07-CV-2116-CEJ, 2008 WL , at *1 (E.D. Mo. Jan. 14, 2008); W.G.A. v. Priority Pharmacy, Inc., 184 F.R.D. 616, (E.D. Mo. 1999). The decision whether to permit a plaintiff to proceed anonymously is within a court s discretion. W.G.A., 184 F.R.D. at 617. There has been no standard articulated by either the Supreme Court or the Eighth Circuit to provide instruction on this issue, although both courts have allowed prosecution of suits under pseudonyms. Id. In so doing, courts have articulated several factors common to cases in which a plaintiff has been permitted to proceed under a fictitious name, the applicable factor here being whether the plaintiff would be required to disclose information of the utmost intimacy. 2 Id. (internal quotations omitted). See also Nixon, 2 In Doe v. Megless, the Third Circuit endorsed the test laid out in Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997), and concluded that the following factors weigh in favor of anonymity: (1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant s identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant s identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. 654 F.3d at 409. The court found that these considerations should be weighed against factors which militate against the use of anonymity: (1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant s identities, beyond the public s interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated. Id. The Second Circuit in Sealed Plaintiff v. Sealed Defendant summarized the list of factors courts had considered and approved the following factors, with a caution that the list was notexhaustive: 3

4 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 4 of 18 PageID #: WL , at *2 (circumstances under which proceeding under pseudonym is appropriate include cases in which the plaintiff is required to disclose information of the utmost intimacy); Frank, 951 F.2d at 323 (same). This Court has previously allowed plaintiffs to proceed anonymously when their sexual lives and the consequences of public exposure were at issue. In St. Louis University, for example, the Court found that a totality-of-the-circumstances balancing test must be used when deciding whether a party can sue under a pseudonym; in other words, the court must ascertain whether the plaintiff has a substantial privacy right which outweighs the customary [cont.] (1) whether the litigation involves matters that are highly sensitive and of a personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent nonparties; (3) whether identification presents other harms and the likely severity of those harms, including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure particularly in light of his age; (5) whether the suit is challenging the actions of the government or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court; (7) whether the plaintiff's identity has thus far been kept confidential; (8) whether the public s interest in the litigation is furthered by requiring the plaintiff to disclose his identity; (9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants identities; and (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff F.3d 185 at 190 (internal quotations and citations omitted). Similarly, in Advanced Textile Corp, the Ninth Circuit found the following factors appropriate: (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party s fears; (3) the anonymous party s vulnerability to such retaliation; (4) the prejudice to the opposing party; (5) whether the proceedings can be structured to mitigate that prejudice; and (6) whether the public s interest would be best served by requiring the litigants to reveal their identities. 214 F.3d at

5 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 5 of 18 PageID #: 1284 constitutionally-embedded presumption of openness in judicial proceedings WL , at *3. The Court in St. Louis University allowed the plaintiffs to proceed under a pseudonym, reasoning that the plaintiffs had a substantial privacy right outweighing the public interest because the case involved very private and personal matters relate[d] to their personal sexual lives. Id. at *4 (internal quotations omitted). III. PLAINTIFFS CIRCUMSTANCES JUSTIFY THE USE OF PSEUDONYMS Like the St. Louis University plaintiffs, the Does should be permitted to proceed anonymously in this litigation. The Rules provide appropriate vehicles, such as entry of a protective order pursuant to Rule 26(c) permitting Defendants to learn (but not publicly disclose) Plaintiffs identities, that would eliminate any potential prejudice to Defendants while protecting Plaintiffs privacy. As set forth above, after consultation with Counsel for Defendants, Plaintiffs have submitted a proposed Limited Protective Order that does precisely this. Here, one of the injuries Plaintiffs complain of is the leak and public disclosure of extremely sensitive private information, including not only personal and financial information but also information purporting to describe the sexual preferences and habits of Ashley Madison users. Forcing Plaintiffs to identify themselves publicly would allow others to scrutinize their extremely sensitive personal, sexual, and financial information, the very injuries this lawsuit seeks to address. See Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) (holding that a plaintiff should be permitted to proceed anonymously in cases involving matters of a highly sensitive and personal nature or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff s identity ). Indeed, public disclosure of the fact that Plaintiffs information even exists in Defendants improperly secured cheating website database would be profoundly harmful to Plaintiffs and their families. 5

6 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 6 of 18 PageID #: 1285 To be clear, Plaintiffs (and others similarly situated) face not only the threat of humiliation, but the specter of devastating personal and professional consequences, should they be publicly identified. These consequences are not lost upon criminals, who are attempting to extort money from individuals whose addresses were contained in the data leaked to the internet following the breach at issue. See Exhibit 4 3. In fact, Plaintiffs in this case have already received s (sent to the address leaked through Defendants security breach) threatening to expose leaked information available to the er to Plaintiff s friends, family and colleagues should they not give in to the sender s demands for payment. See Exhibit 5. 4 ( threatening to publish your complete data (secret fantasies, conversations, pictures...) and will match the data with your name and address ). 5 Even more troubling, as has been reported by multiple news outlets, the prospect of personal humiliation is so profound here that multiple suicides have been linked to the breach. On August 24, 2015, for example, The New York Times reported the Toronto Police Department s receipt of two unconfirmed reports of suicides related to the [Defendants ] data breach. See Exhibit 1 6. Similarly, the Huffington Post and other news outlets have reported the 3 URL Exhibit 5 is one of several threatening s received by Plaintiff John Doe in the action styled Jane Doe et al. v. Avid Life Media Inc. et al., No. 4:15-cv JAR (E.D.Mo.) 5 Moreover, it is noteworthy that, because Ashley Madison s sign-up process did not require verification, private sexual and other information purporting to describe some of the site s users was actually supplied by others who submitted the information for malicious purposes. See, e.g., Exhibits 6 5 and 7 5. The argument that these individuals (and their families) should face the prospect of ridicule and public humiliation in order to prosecute their claims is particularly tenuous. 6 URL- 6

7 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 7 of 18 PageID #: 1286 suicide of John Gibson, a pastor in New Orleans who committed suicide after his personal information was associated with the leaked data. See Exhibits 2 7 and 3 8. Significant privacy interests, such as plaintiffs interest in keeping their sexual habits from public scrutiny, justify proceeding anonymously. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001). This Court has previously allowed a Plaintiff (who had filed suit alleging childhood sexual abuse) to proceed under a pseudonym where disclosure could prove embarrassing to plaintiff and his family and could subject them to unnecessary public scrutiny. Doe H.M. v. St. Louis County, 2008 U.S. Dist. LEXIS 2691 at *2. Here, the potential consequences of proceeding publicly amount to much more than mere embarrassment for Plaintiffs and others affected by the breach at issue. Further, Defendants will not be prejudiced by Plaintiffs proceeding under pseudonyms. The Doe Plaintiffs Motion should therefore be granted. IV. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request leave to proceed in this matter under pseudonyms. 7 URL URL - 7

8 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 8 of 18 PageID #: 1287 Date: February 15, 2016 Respectfully Submitted, THE DRISCOLL FIRM, P.C. By: /s/ Christopher J. Quinn John J. Driscoll (54729MO) Christopher J. Quinn (41883MO) Gregory G. Pals (48820MO) 211 N. Broadway, 40th Floor St. Louis, Missouri Tel.: (314) Fax: (314) john@thedriscollfirm.com chris@thedriscollfirm.com greg@thedriscollfirm.com W. Lewis Garrison, Jr. Christopher B. Hood Taylor C. Bartlett HENINGER GARRISON DAVIS, LLC st Avenue North Birmingham, Alabama Tel.: (205) Fax: (205) wlgarrison@hgdlawfirm.com chood@hgdlawfirm.com taylor@hgdlawfirm.com James F. McDonough, III HENINGER GARRISON DAVIS, LLC 3621 Vinings Slope, Suite 4320 Atlanta, Georgia Tel.: (404) Fax: (205) jmcdonough@hgdlawfirm.com Plaintiffs Interim Co-Lead Counsel Douglas P. Dowd (29240MO) William T. Dowd (39648MO) Alex R. Lumaghi (56569MO) DOWD & DOWD, P.C. 211 North Broadway, Suite 4050 St. Louis, Missouri Tel.: (314) Fax: (314) doug@dowdlaw.net 8

9 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 9 of 18 PageID #: 1288 bill@dowdlaw.net alex@dowdlaw.net Plaintiffs Interim Liaison Counsel John Arthur Eaves, Jr. JOHN ARTHUR EAVES ATTORNEYS AT LAW 101 North State Street Jackson, Mississippi Tel.: (601) Fax: (601) johnjr@eaveslaw.com Gary F. Lynch Jamisen A. Etzel CARLSON LYNCH SWEET & KILPELA, LLP 1133 Penn Ave., 5th floor Pittsburgh, Pennsylvania Tel.: (412) Fax: (724) glynch@carlsonlynch.com jetzel@carlsonlynch.com Thomas A. Zimmerman, Jr. Jordan Mitchell Rudnick ZIMMERMAN LAW OFFICES, P.C. 77 West Washington Street, Suite 1220 Chicago, Illinois (312) tom@attorneyzim.com jordan@attorneyzim.com Julian A. Hammond Ari Cherniak Polina Pecherskaya HAMMONDLAW, P.C S. Beverly Drive, Suite 610 Los Angeles, CA (310) (310) (Fax) jhammond@hammondlawpc.com acherniak@hammondlawpc.com ppecherskaya@hammondlawpc.com 9

10 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 10 of 18 PageID #: 1289 Katrina Carroll Kyle Alan Shamberg LITE DEPALMA GREENBERG 211 W. Wacker Drive, Ste. 500 Chicago, IL Fax: Plaintiffs Interim Executive Committee CERTIFICATE OF SERVICE I hereby certify that on February 15, 2016, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court s electronic filing system upon all parties. In addition, copies were served via upon the following attorneys of record: John T. Kirtley, III FERRER AND POIROT 2603 Oak Lawn, Suite 300 Dallas, TX Fax: jkirtley@lawyerworks.com Byron T. Ball THE BALL LAW FIRM LLP 644 S Figueroa Street Los Angeles, CA Fax: btb@balllawllp.com E. B. Chiles, IV QUATTLEBAUM, GROOMS & TULL PLLC 111 Center Street, Suite 1900 Little Rock, AR

11 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 11 of 18 PageID #: Helen Claire Looney BRYAN CAVE LLP One Metropolitan Square 211 N. Broadway, Suite 3600 St. Louis, MO Fax: Richard P. Cassetta BRYAN CAVE LLP One Metropolitan Square, 211 North Broadway, Suite 3600 St. Louis, MO Fax: James C. Barton, Jr. BUTLER SNOW LLP ONE FEDERAL PLACE th Avenue North, Suite 1000 Birmingham, AL Fax: Joseph J. Siprut SIPRUT, P.C. 17 North State Street, Ste Chicago, IL Fax: John S. Marrese SIPRUT, P.C. 17 North State Street, Ste

12 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 12 of 18 PageID #: 1291 Chicago, IL Fax: Michael Loren Silverman SIPRUT, P.C. 17 North State Street, Suite 1600 Chicago, IL Richard R. Gordon GORDON LAW OFFICES, LTD. 211 W. Wacker Drive, Ste. 500 Chicago, IL Fax: Gary E. Mason WHITFIELD BRYSON & MASON, LLP 1625 Massachusetts Ave. NW Ste. 605 Washington, DC Fax: Charles D. Davidson DAVIDSON LAW FIRM, LTD. Post Office Box 1300 Little Rock, AR Fax: David Louis Gershner DAVIDSON LAW FIRM, LTD. Post Office Box

13 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 13 of 18 PageID #: 1292 Little Rock, AR Stephanie A. Linam DAVIDSON LAW FIRM, LTD. Post Office Box 1300 Little Rock, AR Fax: Christopher D. Jennings JOHNSON & VINES, PLLC 2226 Cottondale, Suite 210 Little Rock, AR Fax: Jennifer L. Duffy LAW OFFICES OF JENNIFER DUFFY, APC S. Western Ave. #6571 San Pedro, CA Fax: Jonathan Shub KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA Fax: Ashley R. Rifkin ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA

14 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 14 of 18 PageID #: Fax: Brian J. Robbins ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA Fax: brobbins@robbinsarroyo.com Conrad B. Stephens STEPHENS AND STEPHENS LLP 505 South McClelland Street Santa Maria, CA Fax: conrad@stephensfirm.com Kevin A. Seely ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA Fax: kseely@robbinsarroyo.com Leonid Kandinov ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA Fax: lkandinov@robbinsarroyo.com Rebecca Anne Peterson LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN

15 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 15 of 18 PageID #: Fax: Robert K. Shelquist LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue South, Suite 2200 Minneapolis, MN Fax: Carlton F. Bennett BENNETT & ZYDRON PC 120 S Lynnhaven Rd, Suite 100 Virginia Beach, VA Fax: cbennett@bandzlaw.com Joseph Henry Bates, III CARNEY BATES AND PULLIAM PLLC 2800 Cantrell Road Suite 510 Little Rock, AR Fax: hbates@cbplaw.com Scott Theodore Ferrill Attorney at Law th Street, Suite 400 Clarendon Hills, IL Fax: chicagolaw@gmail.com Michael J. Flannery CUNEO GILBERT & LADUCA, LLP 7733 Forsyth Boulevard, Suite 1675 St. Louis, MO

16 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 16 of 18 PageID #: 1295 Phone: Fax: Anthony C. Lake GILLEN WITHERS & LAKE, LLC 3490 Piedmont Rd., Suite 1050 Atlanta, GA Fax: Thomas A. Withers GILLEN WITHERS & LAKE, LLC P.O. Box Savannah, GA Fax: William G. Bell, III WILLIAM G. BELL, III, PC 420 W. Broughton St. Savannah, GA Fax: Dale C. Doerhoff COOK VETTER DOERHOFF & LANDWEHR PC 231 Madison Street Jefferson City, MO Fax: Heidi D. Vollet COOK VETTER DOERHOFF & LANDWEHR PC 231 Madison Street Jefferson City, MO

17 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 17 of 18 PageID #: Fax: Timothy W. Van Ronzelen COOK VETTER DOERHOFF & LANDWEHR PC 231 Madison Street Jefferson City, MO Fax: Robert A. Atkins PAUL AND WEISS 1285 Avenue of the Americas New York, NY Fax: Daniel J. Kramer PAUL AND WEISS 1285 Avenue of the Americas New York, NY Fax: Lorin L. Reisner PAUL AND WEISS 1285 Avenue of the Americas New York, NY Fax: Christopher S. Hinton THE ROSEN LAW FIRM P.A. 275 Madison Avenue, 34th Floor New York, New York Tel.: (212)

18 Case: 4:15-md JAR Doc. #: 92 Filed: 02/15/16 Page: 18 of 18 PageID #: 1297 Fax: (212) J. Parker Yates BADDLEY & MAURO LLC 850 Shades Creek Parkway Suite 310 Birmingham, AL Tel.: (205) Fax: (205) William B. Federman FEDERMAN & SHERWOOD North Pennsylvania Avenue Oklahoma City, Oklahoma Tel.: (405) Fax: (405) M Scott Harwell THE HARWELL LAW FIRM 1063 Narrows Way, Suite A Birmingham, AL Fax: legalnotices@harwelllaw.com /s/ Christopher J. Quinn 18