WASHINGTON, D.C. - (Mealey's) Soliciting clients for a
class action lawsuit is not a permissible attorney action covered by the
Driver's Privacy Protection Act's litigation exception, a split U.S. Supreme
Court ruled June 17 (Edward F. Maracich, et al. v. Michael Eugene Spears, et
al., No. 12-25, U.S. Sup.) (lexis.com subscribers may access Supreme Court briefs and the opinion for this case).
"Attorneys are free to solicit plaintiffs through
traditional and permitted advertising without obtaining personal information
from a state DMV [Department of Motor Vehicles]. . . . In light of
these and other alternatives, attorneys are not without the necessary means to
aggregate a class of plaintiffs. What they may not do, however, is to
acquire highly restricted personal information from state DMV records to send bulk
solicitations without express consent from the targeted recipients," Justice
Anthony M. Kennedy wrote for the majority.
Chief Justice John G. Roberts Jr. and Justices Clarence
Thomas, Stephen G. Breyer and Samuel Anthony Alito Jr. joined in the majority
Freedom Of Information Request
On June 23, 2006, a South Carolina attorney submitted a state
Freedom of Information Act request to the South Carolina DMV. The
attorney was seeking to determine if charging illegal administrative fees was a
common practice so that a lawsuit could be brought as a representative action
under the South Carolina Regulation of Manufacturers, Distributors and Dealers
The attorney's letter requested information regarding
"[p]rivate purchases of new or used automobiles in Spartanburg County during
the week of May 1-7, 2006, including the name, address, and telephone number of
the buyer, dealership where purchased, type of vehicle purchased, and the date
of purchase." The South Carolina DMV provided the requested information.
On Aug. 24, 2006, the attorney and several others
submitted a second FOIA request to the DMV seeking the information for car
purchasers in five additional counties during the same week. The
attorneys asserted that, like the first request, it was being made "in
anticipation of litigation . . . pursuant to the exception in 18 USC
On Aug. 29, 2006, the attorneys filed a suit in South Carolina state
court on behalf of four consumers who originally contacted them about the
administrative fees. The case is referred to as the Herron
suit. The Herron complaint named 51 dealers as defendants and
invoked the MDDA's "group action" provision to assert claims "for the benefit
of all South Carolina
car buyers wh[o] paid administrative fees."
Some of the dealers moved to dismiss for lack of standing
because none of the named plaintiffs purchased cars from them. On Oct.
26, 2006, while the motions to dismiss were pending, the attorneys submitted a
new FOIA request to the South Carolina DMV. That request sought to locate
additional car buyers who could serve as plaintiffs against the dealers who had
moved to dismiss. On Oct. 31, 2006, the attorneys filed an amended
complaint that added four named plaintiffs and increased the number of
defendant dealers from 51 to 324. Once again, the defendant dealerships
that had not engaged in any transactions with any of the eight named plaintiffs
moved to dismiss for lack of standing.
On Jan. 3, 2007, using the information from the DMV, the
attorneys sent a mass mailing to find car buyers to serve as additional
plaintiffs in the litigation against the dealers.
Later in January, the attorneys filed three more FOIA
requests with the DMV seeking personal information concerning people who had
purchased cars from an additional 31 dealerships. The DMV granted all the
The attorneys mailed additional rounds of letters to car
buyers whose information had been disclosed by the DMV on Jan. 23, March 1,
March 5 and May 8. In total, the attorneys sent letters to more than
34,000 car buyers in South Carolina.
In June 2007, the attorneys sought to amend their
complaint to add 247 plaintiffs. The court denied leave to amend and held
that the named plaintiffs had standing to sue only those dealerships from which
they had purchased automobiles and any alleged co-conspirators.
In September 2007, the attorneys filed two new lawsuits
on behalf of additional car buyers. Those cases were consolidated with
the Herron suit. All claims against dealerships without a
corresponding plaintiff-purchaser were dropped.
Three of the recipients of the attorneys' letter - Edward
Maracich, Martha Weeks and John Tanner - filed a class complaint against the
attorneys in 2009 in the U.S. District Court for the District of South
Carolina. The plaintiffs alleged that the attorneys violated the Driver's
Privacy Protection Act (DPPA) by obtaining, disclosing and using personal
information from motor vehicle records for bulk solicitation without the
express consent of petitioners and the other class members.
The attorneys moved to dismiss. The District Court
held that the attorneys' use of the personal information was permitted under
the DPPA's (b)(1) governmental-function exception. The Fourth Circuit
U.S. Court of Appeals affirmed. However, the appellate panel held that
the letters were "solicitations" within the meaning of the DPPA but that
"solicitation is an accepted and expected element of, and is inextricably intertwined
with, conduct satisfying the litigation exception under the DPPA, such
solicitation is not actionable."
The letter recipients then petitioned the U.S. Supreme
Disagreeing with the high court majority, Justice Ruth Bader
Ginsburg opined that the lower courts were correct. "As the Fourth
Circuit explained, respondents 'did what any good lawyer would have
done.' 675 F. 3d 281, 298 (2012) [an enhanced version of this opinion is available to lexis.com
subscribers]. This Court's holding, exposing respondents not
only to astronomical liquidated damages, § 2724(b)(1), but to criminal fines as
well, § 2723(a), is scarcely what Congress ordered in enacting the DPPA.
Respondent-lawyers obtained and used DMV information for
'investigation in anticipation of litigation' and for communications 'in connection
with' a civil action. I would read that statutory language to permit use
of DMV information tied to a specific, concrete proceeding, imminent or
ongoing, with identified parties on both sides of the controversy. So
read, § 2721(b)(4) permitted the lawyers' conduct. Neither § 2721(b)(12)
nor any other provision of the DPPA warrants the massive liability this Court's
judgment authorizes," she wrote.
Justices Antonin Scalia, Sonia Sotomayor and Elena Kagan
joined in the dissenting opinion.
Philip N. Elbert of Neal & Harwell in Nashville, Tenn.,
represents the petitioners. Paul D. Clement of Bancroft in Washington and M. Dawes Cooke Jr. of Charleston, S.C.,
represent the attorneys.
Arlene Fickler of Philadelphia
filed an amicus curiae brief on behalf of the Electronic Frontier
Foundation. Marc Rotenberg of the Electronic
Center in Washington
filed an amicus brief on behalf of the Electronic Privacy
and 27 technical experts and legal scholars.
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