Virginia Lawyers Weekly VA Lawyers Weekly
Where personal injury attorneys who solicited clients based on information collected by law enforcement after motor vehicle accidents in North Carolina were sued for allegedly violating the Driver’s Privacy Protection Act or DPPA, the attorneys prevailed.
While the lawyers obtained the personal information from accident reports, the plaintiffs failed to preserve the argument that those reports are a “motor vehicle record,” as required to state a claim.
Background
The defendants here, a number of personal injury lawyers, obtained car accident reports from North Carolina law enforcement agencies and private data brokers. The reports included the names and addresses of the drivers involved in those accidents. The defendants used that personal information to mail unsolicited attorney advertising materials to some of the drivers.
Two groups of the drivers who received these materials, the plaintiffs here, filed suit, asserting that the defendants violated the DPPA. That statute provides a private cause of action against “[a] person who knowingly obtains, discloses or uses personal information, from a motor vehicle record,” for an impermissible purpose. The district court held that the plaintiffs had standing to bring suit for damages, but rejected the plaintiffs’ claims on the merits, granting summary judgment to the defendants in both cases.
Standing
The Supreme Court recently explained that plaintiffs proceeding under a statutory cause of action can establish a cognizable injury by “identif[ying] a close historical or common-law analogue for their asserted injury” for which courts have “traditionally” provided a remedy.
The district court found standing because “[p]laintiffs’ alleged harms are closely related to the invasion of privacy, which has long provided a basis for recovery at common law.” This court agrees. Indeed, the court recently rebuffed a nearly identical standing challenge in a case arising under the Telephone Consumer Protection Act, another consumer privacy statute that, like the DPPA, provides a private right of action against offenders.
The plaintiffs seek injunctive relief in addition to damages. The district court rejected the Garey plaintiffs’ request for injunctive relief on standing grounds because “[t]here is no showing either in the Second Amended Complaint or in Plaintiffs’ Response to [the] Motion to Dismiss that [the named] plaintiffs are subject to any imminent harm.” The Garey plaintiffs protest that at the time they commenced this action, the defendants “were unlawfully using DPPA-protected information in connection with their mail solicitation efforts.” But they amended their complaint to jettison a “use” theory of DPPA liability and bring only an “obtaining” claim. As such, they cannot now seek standing based on the “use” of their personal information.
Having narrowed their case to “obtaining,” the Garey plaintiffs must allege that the defendants are currently obtaining their personal information or will do so imminently, unless they receive injunctive relief. A future “obtaining” violation would only occur if a plaintiff is involved in a future car accident in North Carolina, if law enforcement generates another crash report, and if the defendants obtain that hypothetical report. But that mere possibility is hardly the kind of non-speculative, imminent danger that can support injunctive relief.
While the Hatch operative complaint did not disavow a “use” theory of liability, they would have to allege that at the time of the operative complaint, the defendants were using their personal information or were about to do so. But the operative complaint alleges only that the defendants “used” — past tense — the plaintiffs’ information to send them unsolicited mailings. Thus, because the Hatch plaintiffs have not alleged an ongoing or imminent “obtaining” or “use” violation vis-à-vis their own personal information, the district court properly dismissed their request for injunctive relief.
Merits
The parties seek to present several complex questions of first impression in this circuit, including whether a driver’s license is a “motor vehicle record,” whether the DPPA applies to records outside the possession of a state DMV and whether the DPPA’s restrictions on the obtaining, use and dissemination of records impinge on the First Amendment. But those questions must be answered another day, for the district court’s decision is affirmed on the following, much narrower ground.
To be civilly liable under the DPPA, a defendant must have obtained a plaintiff’s personal information “from a motor vehicle record.” But the plaintiffs do not allege that the defendants obtained any of the plaintiffs’ personal information “from” any of the sources that they argue constitute “motor vehicle record[s].” The defendants obtained the plaintiffs’ personal information from accident reports — but the plaintiffs failed to preserve the argument that those accident reports are “motor vehicle record[s].” Thus, even assuming for the sake of argument that everything the plaintiffs consider to be a “motor vehicle record” is, in fact, a “motor vehicle record,” the plaintiffs cannot prevail.
Affirmed.
Garey v. James S. Farrin PC, Case Nos. 21-1478, 21-1480, June 3, 2022. 4th Cir. (Motz), from MDNC at Greensboro (Biggs). J. David Stradley for Appellants. Matthew Nis Leerberg for Appellees. Amanda Mundell for Intervenor. VLW 022-2-135. 23 pp.
