June 17, 2013

Supreme Court Decides Maracich v. Spears

On June 17, 2013, the Supreme Court of the United States decided Maracich v. Spears, No. 12-25, holding that an attorney's solicitation of clients is not a permissible purpose for obtaining, disclosing, and using petitioners' personal information under the litigation exception to the Driver's Privacy Protection Act of 1994 (DPPA).

Trial lawyers submitted several state freedom-of-information requests to the South Carolina Department of Motor Vehicles, seeking names and addresses of thousands of individuals. The attorneys used this information to solicit more than 34,000 car purchasers as potential clients for a lawsuit they had brought against several car dealerships. The letters were headed "ADVERTISING MATERIAL," explained the lawsuit, and asked recipients to return an enclosed card if they wanted to participate in the case.

Hundreds of recipients sued the trial lawyers for violating the DPPA (18 U. S. C. § 2721), which bars disclosure, absent a driver's consent, of "personal information" from drivers license records unless one of fourteen separate exemptions applies or the driver consents to the disclosure. The attorneys moved to dismiss, claiming the information was properly released under a DPPA exemption permitting disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." 18 U. S. C. §2721(b)(4). The district court held that the use of the information fell within the exception, and the Fourth Circuit affirmed.

The Supreme Court vacated and remanded, holding that the solicitation of prospective clients is neither a use "in connection with" litigation nor "investigation in anticipation of litigation" under subsection (b)(4). Although even the four dissenters agreed that "[t]rolling for prospective clients with no actual or imminent proceeding, involving already identified adverse parties, in sight … would not be a permissible use," of personal information under the DPPA, the Court split sharply over the scope of the litigation-exemption in connection with a pending lawsuit.

The Court held that the "in connection with" language must have a limit and that an attorney's solicitation of a prospective client—which is distinct from any attorney's conduct on behalf of an existing client—falls outside of that limit because such conduct is that of a commercial actor, and not that of an officer of the court. The Court also held that the "investigation in anticipation of litigation" language is best understood to allow background research to determine, for example, if there is a supportable theory for a complaint or to help locate witnesses for deposition or trial.

In support of its decision, the Court noted that exemption (b)(4) permits a substantial intrusion on privacy in permitting use of highly sensitive information (such as social security numbers) and that congressional intent to exempt attorneys from DPPA liability would not be assumed without clear and explicit language. The Court also relied on other exemptions of the DPPA in explaining why the attorneys' position was untenable. For example, it noted that exemption (b)(12) permits only the information of those who have expressly consented to be used for solicitation purposes.

The Court rejected the trial lawyers' contention that a line can be drawn between mere trolling for clients and their specific solicitation, which was tied to a specific legal dispute. The Court also rejected the lawyers' defense that they complied with state bar rules in sending the solicitation, holding that such compliance did not resolve whether they were entitled to access personal information from the state DMV database.  The Court instructed the Fourth Circuit on remand to apply the proper standard to determine the predominant purpose of the lawyers' letters, and noted that if solicitation was the predominant purpose, (b)(4) would not apply.

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Breyer, and Alito joined.  Justice Ginsburg filed a dissenting opinion, in which Justices Scalia, Sotomayor, and Kagan joined.

Download Opinion of the Court

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