Filing data breach class actions under fictitious names

In a growing trend that raises serious procedural and strategic concerns, we have seen a number of cases filed by plaintiffs using fictitious names (e.g., John Doe, Jane Doe, etc.), hiding the name of the actual plaintiff. While this tactic may appear benign—or even routine—it is legally improper in most civil litigation, and especially troubling in the context of putative class actions.

Judicial proceedings are to be conducted in public. To proceed anonymously, a party must demonstrate exceptional circumstances that outweigh both the public policy in favor of identified parties and the prejudice to the opposing party that would result from anonymity. Only in limited circumstances may a litigant use a fictitious name. For example, fictitious names have been allowed in order to protect the privacy of children, rape victims, and particularly vulnerable parties or witnesses. However, class action data breach cases do not fall within any identified or previously allowed exception. Despite this, we are seeing anonymous filings in data breach class actions—often without any meaningful explanation.

This trend is especially problematic for defendants, who are being forced to respond to claims from unnamed individuals, without the ability to:

• Confirm that the plaintiff is a real person
• Verify that the plaintiff was actually affected by the alleged breach
• Assess the plaintiff’s standing to bring suit; or
• Evaluate typicality and adequacy under Rule 23.

We continue to observe and monitor this trend closely and are prepared to oppose plaintiffs who try to take advantage of anonymous participation in these suits.

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