Posted on 08/20/2015 4:21:01 PM PDT by 2ndDivisionVet
The AshleyMadison.com hack, which unleashed onto the Internet yesterday nearly 40 million names and email addresses of possible users who sought extramarital affairs, isn’t sexy enough for many plaintiffs lawyers.
Reason No. 1: It’s a matter of taste. “Every one of your clients is from day one on record being a liar and a cheat,” said Thomas Loeser of Hagens Berman Sobol Shapiro. “I can’t think of a less desirable client.”
After most online data hacks, class action suits materialize within days from plaintiffs firms that carry the cause. That hasn’t happened in the Ashley Madison hack. To some prominent plaintiffs lawyers, like Loeser, the subject matter just isn’t attractive. A potential victim of the hack approached the firm seeking to sue, but Loeser and managing partner Steve Berman said they wouldn’t represent the person.
Loeser was quick to round out other reasons why: AshleyMadison.com’s parent company, Avid Life Media Inc., is based in Toronto, meaning it could be more difficult to sue in the United States.
Another issue: It could be hard to calculate damages. Money lost in divorces or child custody battles could swing wildly among the plaintiffs, so class certification would be a challenge, he said.
And then there’s finding the affair-site customers.
“Who is going to volunteer to be identified as part of this class?” asked Kirk Nahra, a privacy and information security lawyer at Wiley Rein. He doubted many class action plaintiffs would materialize because they may have to admit they signed up with AshleyMadison.com with an apparent interest in cheating.
Personal identifiable information
Additionally, the hackers may not have accessed legally protected data. A name and an email address, especially if they could be faked, aren’t regulated to the same extent as full credit card numbers or health records, the types of things that have caused suits following hacks at retailer Target Brands Inc. or health care provider Anthem Inc. It’s still unclear the depth of information the hackers of the Ashley Madison website reached.
“It’s the credit card details that get these merchants into hot water,” said Heather Egan Sussman, a data privacy corporate defense attorney at Ropes & Gray in Boston. Some reports Wednesday said only the last four digits of credit cards had been released, meaning the data didn’t necessarily meet the criteria of personal identifiable information, or PII, she added.
At this point, though, a plaintiffs lawyer may only need reason to believe protected personal identifiable data was hacked and a good hunch of what damages could be. Those details then could be worked out during the legal process, in discovery and by using expert testimony, according to one plaintiffs firm.
The Driscoll Law Firm predicts more than $5 million in damages already. An unnamed plaintiff represented by the St. Louis firm sued Avid Life Media last month in federal court in Missouri after she gave her information to the company and paid for deletion of it. The suit alleges a breach of contract and also the mishandling of sensitive data.
“I think yesterday further supports our theory,” John Driscoll, the plaintiffs attorney, said Thursday. “We have probable cause to believe there was a data breach. We’ll find out, won’t we?”
Avid Life Media has not yet replied in court, and its general counsel Avi Weisman didn’t respond to messages from the NLJ seeking comment on Thursday.
Consumer protection
Cases regarding the breach of contract issue in the Missouri suit still may bloom at other plaintiffs firm. These could be consumer lawsuits, rather than allegations of a violation of data privacy laws. The firms soliciting victims of the hack say they are particularly interested if a user paid extra for the company to delete their personal information, a feature offered on the site. The deletions apparently didn’t occur. Schmidt & Clark, one of the plaintiffs firms, called it a scam.
Other plaintiffs’ firms interested in attracting victims were Abington Cole & Ellery of Tulsa and The Schmidt Firm of Dallas. Abington Cole & Ellery’s website invites Ashley Madison users to send the firm their names—or pseudonyms.
The Schmidt firm said it would be flattered even to receive case referrals from other lawyers. “There is no excuse for the extortion of private information—and there is no going back once your privacy is stolen and leaked online—but you may be able to seek justice by joining an Ashley Madison class action lawsuit,” the site says.
The Ottawa Sun reported that a Canadian law firm also sought plaintiffs for a class action suit north of the border. But as of Wednesday, there were no takers.
Love and marriage
Of course, there’s one other area of unhappiness that could move into the court system: in marital law. The data dump may not be a boon to divorce lawyers nor impact separations already in progress. Revelations of adultery have little direct impact on initiating divorce proceedings since all states have no-fault divorce laws.
But Sorrell Trope, founding partner of Trope & Trope in Los Angeles who has represented celebrities such as Britney Spears and Hugh Grant in divorce and custody matters, said finding out about the affair could lead to discovery about how much the cheating spouse had spent on his or her lover.
“You can’t have a dispute about whether they’re having an affair,” he said. “The dispute is whether or not the person having an affair was spending money—and we’re not talking about somebody going to lunch with another woman. Let’s say buying another woman a car, jewelry or things of that sort.”
The spouse who was cheated on could seek reimbursement for that money, he said.
The hacked information also could be useful for private investigators and even in business disputes, particularly if one of the parties is spending the company’s money on a mistress, said Mark Geragos of Geragos & Geragos in Los Angeles. Some contracts also have morals clauses, which are common with athletes and actors.
“It’s already had impact on people who are in the public eye,” he said, noting that former reality TV star Josh Duggar had an Ashley Madison account. “Once you’re in a legal battle, especially scorched-earth legal battles, in the discovery process most stuff is fair game. It’s just another avenue to lead you down and induce pain on the other side.”
Ashley Madison’s response
AshleyMadison.com’s parent company has already sprung into legal action.
Avid Life Media’s general counsel told The American Lawyer on Wednesday that DLA Piper and Barnes & Thornburg in the U.S. and Canadian firm Stikeman Elliott would represent it. DLA Piper’s focus would be on cybersecurity, data protection and privacy issues. Barnes & Thornburg would specialize in technology, IP and corporate counseling. Stikeman would focus on communications and privacy law, including cross-border legal matters.
The evidence of the legal response was evident Thursday morning. Of three known websites offering a quick lookup of the data, one reported to visitors that it had received a copyright law takedown request from lawyers representing AshleyMadison.com.
Two other look-up sites, here and here, still are able to match email addresses to the hacked database.
I wonder how many Islamic honor killings will happen because of this?
Wont stop a sh1tload of lawyers from billing people to take their cases.
Better call saul!
Indeed
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