U.S. SUPREME COURT

Maracich v. Spears

COMMUNICATIONS AND MEDIA LAW — Public Records

New Jersey Law Journal

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Maracich v. Spears, No. 12-25; U.S. Supreme Court; opinion by Kennedy, J.; dissent by Ginsburg, J.; decided June 17, 2013. On certiorari to the U.S. Court of Appeals for the Fourth Circuit,

Respondent attorneys submitted several state Freedom of Information Act (FOIA) requests to the South Carolina DMV, seeking names and addresses of thousands of individuals in order to solicit clients for a lawsuit they had pending against several South Carolina car dealerships for violation of a state law that protects car purchasers from dealership actions that are "arbitrary, in bad faith, or unconscionable." Using the personal information provided by the DMV, respondents sent more than 34,000 car purchasers letters, which were headed "ADVERTISING MATERIAL," explained the lawsuit, and asked recipients to return an enclosed reply card if they wanted to participate in the case. Petitioners, South Carolina residents, sued respondents for violating the federal Driver's Privacy Protection Act of 1994 (DPPA) by obtaining, disclosing and using petitioners' personal information from motor vehicle records for bulk solicitation without their express consent.

Respondents moved to dismiss, claiming that the information was properly released under a DPPA exception permitting disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." See 18 U.S.C. § 2721(b)(4). The district court held that respondents' letters were not solicitations and that the use of information fell within (b)(4)'s litigation exception. The Fourth Circuit affirmed, concluding that the letters were solicitation, but that the solicitation was intertwined with conduct that satisfied the (b)(4) exception.

Held: An attorney's solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception. Pp. 6-29.

(a) State DMVs generally require someone seeking a driver's license or registering a vehicle to disclose detailed personal information such as name, address, telephone number, Social Security number, and medical information. The DPPA — responding to a threat from stalkers and criminals who could acquire state DMV information, and concerns over the states' common practice of selling such information to direct marketing and solicitation businesses — bans disclosure, absent a driver's consent, of "personal information," e.g., names, addresses or telephone numbers, as well as "highly restricted personal information," e.g., photographs, Social Security numbers, and medical or disability information, § 2725(4), unless 1 of 14 exemptions applies. Subsection (b)(4) permits disclosure of both personal information and highly restricted personal information, while subsection (b)(12) permits disclosure only of personal information. Pp. 6-8.

(b) Respondents' solicitation of prospective clients is neither a use "in connection with" litigation nor "investigation in anticipation of litigation" under (b)(4). Pp. 8-15.

(1) The phrase "in connection with" provides little guidance without a limiting principle consistent with the DPPA's purpose and its other provisions. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656. Such a consistent interpretation is also required because (b)(4) is an exception to both the DPPA's general ban on disclosure of "personal information" and the ban on release of "highly restricted personal information." An exception to a general policy statement is "usually read ... narrowly in order to preserve the [provision's] primary operation." Commissioner v. Clark, 489 U.S. 726, 739. Reading (b)(4) to permit disclosure of personal information when there is any connection between protected information and a potential legal dispute would substantially undermine the DPPA's purpose of protecting a right to privacy in motor vehicle records. Subsection (b)(4)'s "in connection with" language must have a limit, and a logical and necessary conclusion is that an attorney's solicitation of prospective clients falls outside of that limit. Pp. 9-11.

(2) An attorney's solicitation of new clients is distinct from an attorney's conduct on behalf of his client or the court. Solicitation "by a lawyer of remunerative employment is a business transaction," Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 457, and state bars treat solicitation as discrete professional conduct. Excluding solicitation from the meaning of "in connection with" litigation draws support from (b)(4)'s examples of permissible litigation uses — "service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders" — which all involve an attorney's conduct as an officer of the court, not a commercial actor. Similarly, "investigation in anticipation of litigation" is best understood to allow background research to determine if there is a supportable theory for a complaint or a theory sufficient to avoid sanctions for filing a frivolous lawsuit, or to help locate witnesses for deposition or trial. Pp. 11-14.

(3) This reading is also supported by the fact that (b)(4) allows use of the most sensitive personal information. Permitting its use in solicitation is so substantial an intrusion on privacy it must not be assumed, without clear and explicit language, absent here, that Congress intended to exempt attorneys from DPPA liability in this regard. Pp. 14-15.

(c) Limiting (b)(4)'s reach also respects the statutory purpose and design evident in subsection (b)(12), which allows solicitation only of persons who have given express consent to have their names and addresses disclosed for this purpose. Subsection (b)(12) implements an important objective of the DPPA — to restrict disclosure of personal information in motor vehicle records to businesses for the purpose of direct marketing and solicitation. Other exceptions should not be construed to interfere with this objective unless the text commands it. Reading (b)(4)'s "in connection with" phrase to include solicitation would permit an attorney to use personal information from the state DMV to send bulk solicitations to prospective clients without their express consent, thus creating significant tension between the DPPA's litigation and solicitation exceptions. Pp. 15-19.

(d) Such a reading of (b)(4) could also affect the interpretation of the (b)(6) exception, which allows an insurer and certain others to obtain DMV information for use "in connection with ... underwriting," and the (b)(10) exception, which permits disclosure and use of personal information "in connection with" the operation of private toll roads. Pp. 19-20.

(e) Respondents contend that a line can be drawn between mere trolling for clients and their solicitation, which was tied to a specific legal dispute, but that is not a tenable distinction. The DPPA supports drawing the line at solicitation. Solicitation can aid an attorney in bringing a lawsuit or increasing its size, but the question is whether or not lawyers can use personal information protected under the DPPA for this purpose. The mere fact that respondents complied with state bar rules governing solicitations also does not resolve whether they were entitled to access personal information from the state DMV database for that purpose. In determining whether obtaining, using or disclosing personal information is for the prohibited purpose of solicitation, the proper inquiry is whether the defendant's purpose was to solicit, which might be evident from the communication itself or from the defendant's course of conduct. When that is the predominant purpose, (b)(4) does not entitle attorneys to DPPA-protected information even when solicitation is to aggregate a class action. Attorneys also have other alternatives to aggregate a class, including, e.g., soliciting plaintiffs through traditional and permitted advertising. And they may obtain DPPA-protected information for a proper investigative use.

Although the Fourth Circuit held that the letters here were solicitations, it found the communications nonetheless exempt under (b)(4) because they were "inextricably intertwined" with permissible litigation purposes. If, however, the use of DPPA-protected personal information has the predominant purpose of solicitation, it would not be protected by (b)(4). A remand is necessary for the court to apply the proper standard to determine the predominant purpose of respondents' letters. Pp. 20-26.

(f) There is no work for the rule of lenity to do here, because the DPPA's text and structure resolve any ambiguity in (b)(4)'s phrases "in connection with" and "investigation in anticipation of litigation." Pp. 26-27.

(g) On remand, the courts below must determine whether respondents' letters, viewed objectively, had the predominant purpose of solicitation, and may address whether respondents' conduct was permissible under (b)(1)'s governmental-function exception and any other defenses that have been properly preserved. Pp. 27-29.

675 F.3d 281, vacated and remanded.

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