Maracich v. Spears, No. 10-2021
Decided April 4, 2012
The Fourth Circuit held that where, as a matter of settled state law and practice, solicitation under the Driver’s Privacy Protection Act is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable by persons to whom the personal information pertains.
This appeal arose from the dismissal of all claims alleged in a putative class action complaint filed pursuant to the Driver’s Privacy Protection Act, which regulates the disclosure of personal information contained in the records of state motor vehicle departments. Appellees (Lawyers) were South Carolina attorneys who in 2006 and 2007 instituted several “group action” lawsuits in South Carolina state court against numerous car dealerships under the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (Dealers Act). Appellants (Buyers) were car buyers who received mailings from Lawyers regarding the Dealers Act litigation. Buyers sued Lawyers in this action alleging that Lawyers violated the DPPA when they obtained and used Buyers’ personal information without their consent to send out solicitations to identify plaintiffs in connection with the Dealers Act litigation.
The District Court dismissed the suit on the grounds that the Lawyers did not engage in solicitation and thus the Buyers’ case must fail as a matter of law. The Fourth Circuit affirmed the grant of summary judgment on different grounds, finding that the district court erred in its determination that the conduct of Lawyers did not constitute solicitation within the contemplation of the applicable DPPA prohibition. Nevertheless, the district court correctly ruled that Lawyers’ conduct in respect to Buyers’ personal information was undertaken “in connection with [litigation],” including “investigation in anticipation of litigation,” a use permitted by the DPPA at 18 U.S.C. §2721(b)(4).