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Ashley Madison (the d/b/a of Avid Life Media and Avid Dating Life, Inc. , “AM”) has been sued by an unhappy member, David Poyet, on behalf of a yet-to-be formed class of other similarly-frustrated members. The complaint alleges that AM committed fraud, engaged in acts of unfair competition and committed a variety of other wrongs by misrepresenting the number of real women AM members, and for deploying robot female impersonators (“fembots”) to contact, attract to join as members and to chat with. to get them hooked and run up their bills.
Poyet claims class action jurisdiction is warranted because the value exceeds $5 million and the number of plaintiffs, residing in different states, exceeds 100.
Poyet has won a case in the past repped by the same counsel leading this action. Lead counsel in this latest Ashley Madison suit are experienced class action litigators in major, complex cases. Co-counsel, too, have racked up an impressive list of complex class action cases. Contrary to early media reports, this case should not be dismissed as frivolous. These lawyers do not appear to be ambulance chasers.
The infidelity aspect of this Ashley Madison case seems to make some think that Ashley Madison members deserve to be defrauded. Poyet doesn’t think so, and neither does his team of heavily-experienced, complex class action litigators, who have repped plaintiffs in high profile cases such as the Target consumer data breach litigation and the National Hockey League concussion litigation.
Attorney James Ward, of Bilzin Sumberg Baena Price & Axelrod LLP, who has commented on the consumer/unfair trade aspects of this case before, noted that this case is unique in its naming of the plaintiff rather than anonymizing him as a "John Doe," indicating to Ward that, among other things, the plaintiff may be sufficiently sympathetic that he will be difficult to demonize.
Ashley Madison members may finally get their day in court. It is still unclear why the Federal Trade Commission has not looked into the entire Ashley Madison matter. The complaint in this new class action certainly lays plausible grounds for actions based on unfair trade practices. Ward indicated that the case does not really change the FTC's considerations.
The complaint
Poyet, on behalf of other members “similarly situated,” asserts that AM was engaging in unfair and fraudulent business practices by claiming, among other allegedly fraudulent acts, that AM membership had a “70/30 gender split—with a 1:1 male/female ratio," when in fact only 15% of the members were women.
As has been widely reported, including here, Ashley Madison is a site that markets itself to members of the public seeing to have an extramarital affair. In July of this year Ashley Madison was hacked, and massive amounts of member data was exfiltrated, dumped on the Dark Web, and broadly disseminated on the open web until many such open web sites were shut down in class action proceedings.
Ward thinks this case is on sufficiently sound footing, not the least of which reason "because the complaint alleges sufficient facts that would be hard to refute on a motion to dismiss." The biggest problem he foresees for the plaintiff's is a possible defense that they agreed to the terms and conditions, which, if like the current terms, would have provided that the member knew that other member profiles "may be exaggerated or based on fantasy," and expressly absolve AM from responsibility.
Fembots tricked members
The data dump was long ago alleged to contain information that conflicted Ashley Madison’s claims about percentage of female memberships. According to those allegations, the Ashley Madison member base comprised only a small fraction of members were women--“only 12,000 of the profiles out of millions belonged to actual, real women who were active members of Ashley Madison.”
Possibly worse, fraudulently-messaging fembots comprised a large share of the membership. Information contained in the data dump, Poyet contends, contained “code from fake female robot [“fembot”] profiles intended to interact with male customers. “
And interact they (allegedly) did--over 20 million times. "20 million men out of 31 million received bot mail, and about 11 million of them were chatted up by an automated 'engager.' The code was said to further reveal that, for many members, these robo-encounters could come roughly every few minutes."
Poyet contends that he and other members were paying for these robo-convos--that members were defrauded and that AM should pay.
Poyet’s counsel have repped him and won before
In 201 1, Poyet sued the Consumer Affairs Processing Center under the Fair Labor Standards Act for overtime pay and won a default judgment of $144,014 plus lawyer fees and costs. Co-plaintiff was also awarded overtime pay; both plaintiffs were represented by Brian J. Robbins of Robbins Arroyo LLP, lead counsel in the Ashley Madison class action.
Experienced class action litigators
Robbins Arroyo is no stranger to complex class action litigation, with Westlaw Federal Dockets database reporting 38 class action cases in which that firm is plaintiffs’ counsel or co-counsel, including participation on the notable, recent Target customer data security breach case, In re Target Corp. Customer Data Sec. Breach Litigation, settled this past spring for $10 million.
Robbins Arroyo declined to comment for this article, somewhat uncharacteristic of a firm with an evident propensity for self-promotion in outlets such as Business Wire/MarketWatch. Individual self-promo of Brian Robbins can be found at LawDragon, a content, marketing and branding services for lawyers.
Co-counsel
Plaintiffs’ co-counsel, Lockridge Grindal Nauen P.L.L.P. also has extensive complex class action litigation experience, including as co-counsel on the Target Data Security Breach litigation. Lockridge Grindal also notably served as co-counsel on the National Hockey League Players' Concussion Injury Litigation and on the Billy Jack Haynes v. WWE class action litigation.
Additional co-counsel Cuneo Gilbert & LaDuca LLP also has substantial complex class action chops, with 22 cases in Westlaw docket with its name on it, including as plaintiffs’ co-counsel with Lockridge Grindal Nauen P.L.L.P among many others in pending litigation against 23andMe.
Case should not be dismissed out-of-hand
There have been proclamations that the suit is likely to be stillborn due to lack of funds of the defendants. That would seem relatively unlikely; firms with the experience these firms have would expend contingency time on a judgment-proof defendant. Given the John Doe potential for anonymity in this suit, there would seem to be little impediment to plaintiffs joining the suit.
Admittedly there are considerable proof burdens in this case, complex tech burdens that will require a savvy judge to sort through. Further, there could and will likely be assumption of risk defenses credibly asserted, as well as the above-discussed possible contract defense. Nonetheless, on first review, there is nothing in this case to suggest it should be dismissed out-of-hand.
The author wishes to thank Matthew Keys, Managing Editor of Grasswire for retrieving and sending a copy of the complaint in this case.
