In Maracich, SCOTUS Says Don't Use DMV Info for Solicitation

Seeking to add plaintiffs to a class-action lawsuit against a South Carolina car dealership, the now-defendant class-action attorneys tapped into the DMV records via a Freedom of Information Act (FOIA) request in order to locate potential clients. Each was sent a letter with “ADVERTISING MATERIAL” emblazoned across the top.

Unfortunately, one of the recipients also worked at the dealership.

The attorneys defending the dealership filed a class-action lawsuit against the original class-action plaintiffs’ attorneys on behalf of the 34,000 people who received a letter from the firm. The question for the Supreme Court was whether these letters, which arguably fit into the overbroad language of the statute’s “investigation in anticipation of a lawsuit” exception, violate the Driver’s Privacy Protection Act.

The majority held that this was, indeed, a violation of the law's intent, though the language of the exception was admittedly vague. The statute protects sensitive information, including social security numbers, with few exceptions. Considering that SSNs are only available for three of the statute's fourteen exceptions, including the litigation exception, the majority felt that a narrow reading was warranted. Further justification for the holding can be found in another exception, which addresses permissible use of the data for advertising and solicitation purposes.

The line, per the majority, seems to be at the duties of an advocate or officer of the court versus solicitation of new business. If the information is pulled from DMV records for, say, investigating a possible witness or fleshing out the merits of a case, that would be permissible. But pulling massive amounts of records for the purposes of sending spam letters, even if those recipients may serve the dual purpose of witness/client, is impermissible.

If the predominant purpose is solicitation, usage is forbidden.

The dissent, penned by Ginsburg, joined by Scalia(!), Sotomayor, and Kagan, argued in favor of the plain language of the statute, which arguably allows this sort of activity. As for the separate exception for advertising and solicitation, Ginsburg points out that many of the statute's fourteen exceptions overlap significantly.

Furthermore, she has concerns about real-world application of the "predominant purpose" test. For example, if an attorney contacts a witness that may also have an independent claim against the defendant, that lawyer now has to walk the even-finer line between solicitation and investigation (all while complying with state solicitation rules as well, we might add).

Though it is certainly unusual for Scalia to team up with Ginsburg against the court's conservative wing, the textual argument fits with his beliefs perfectly. There is clear language in the poorly-drafted statute. Legislative intent has no place in Scalia's jurisprudence.

The practical takeaway for trial attorneys is this: don't use the DMV data for anything but investigation. If there is an alternate source for the data (in this case, what about discovery of the dealership's sales records?), that has to be your primary target.

Otherwise, due to statutory damages, you might end up facing a $200 million (plus punitive damages) lawsuit.

Related Resources:

• Maracich v. Spears (U.S. Supreme Court)
• Maracich v. Spears: The Privacy Case Where Every Justice Switched Sides (Cato Institute)
• Can Attorneys Solicit Clients by Text Message? (FindLaw's Strategist Blog)