• U.S. Supreme Court Narrowly Interprets Drivers’ Privacy Protection Act’s “Litigation Exception” Rendering a Blow to Plaintiff’s Bar
  • July 19, 2013 | Author: Corinne C. Heggie
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • In Maracich v. Spears --- S. Ct. ----, 2013 WL 2922120 (Jun. 17, 2013), lawyers sued South Carolina car dealers on behalf of four people who had bought cars, alleging that the car dealers violated the state’s consumer protection law. To form a class action, the lawyers sought out additional plaintiffs by using contact information from the South Carolina Department of Motor Vehicles (DMV). The car dealers’ lawyers then sued on behalf of other South Carolinians who had then recently bought cars, alleging that using the information from the DMV violated the Drivers’ Privacy Protection Act (DPPA). That act prevents the use of a driver’s information from a state DMV without the driver’s prior permission.

    The Supreme Court addressed the question of whether the DPPA’s provision that creates a “litigation exception” to its general ban on the use of driver data allowed the original lawsuit against the car dealers. The DPPA’s “litigation exception” allows the use of driver data “in connection with any civil . . . proceeding in any Federal, State, or local court . . . including investigation in anticipation of litigation.”

    In a five-Justice majority opinion authored by Justice Anthony Kennedy, the Court held that the DPPA’s litigation exception does not apply to attorney solicitations of potential clients using DMV data. The DPPA generally protects highly sensitive information and, according to the Court, any exception should be read narrowly. The reference to “investigation in anticipation” extends only to activities to decide whether a potential claim has sufficient merit to warrant a lawsuit, or to locate witnesses, but not activities designed to sign up clients for a lawsuit. The case was remanded to the lower court for it to decide whether, viewed objectively, the predominant purpose of the lawyer’s use of the DMV information was for client solicitation (in which case it was illegal) or for some other permissible litigation-related purpose (in which case it was legal).

    Maracich, et al. v. Spears, --- S. Ct. ----, 2013 WL 2922120 (June 17, 2013)