Gordon v. Softech International, Inc.
828 F. Supp. 2d 665
S.D.N.Y.2011Background
- Gordon filed an amended complaint against Softech, Softech’s COO Rodriguez, Arcanum, Arcanum’s president Cohn, and Leifer under the DPPA, plus state-law claims against Leifer.
- Leifer allegedly obtained Gordon’s DMV data via Arcanum/Softech and made threatening calls to Gordon and his family in October 2009.
- Arcanum and Softech had a Vendor Agreement; Arcanum supplied Leifer’s DMV request through Softech, with indemnification provisions between them.
- DMV disclosed Gordon’s personal information to Softech, which disclosed to Arcanum, which disclosed to Leifer.
- Dispute over whether an October 10, 2009 car incident occurred; this underpins the asserted permissible DPPA uses.
- Gordon and Leifer dispute the scope of DPPA permissible uses and whether Leifer’s use was for an impermissible end.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DPPA liability of Leifer for use of DMV data | Leifer had no permissible purpose; accident contested. | Leifer’s use was a permissible purpose (insurance/investigation) per DPPA. | Issue fact-bound; trial needed; no summary judgment for Leifer. |
| Reseller Defendants’ DPPA liability for Leifer’s use | Resellers are strictly liable for end-user misuse regardless of certification. | Resellers relied on Leifer’s certification; not strictly liable for end-user misuses. | Reseller Defendants granted summary judgment; not liable. |
| Prima facie tort against Leifer | Leifer intended to cause emotional harm via threatening calls. | No proof of disinterested malevolence; insufficient damages specificity. | Gordon’s prima facie tort claim survives at summary-judgment stage. |
| Intentional infliction of emotional distress against Leifer | Gordon suffered severe distress from Leifer’s conduct. | No medical support; distress not proven as severe. | Leifer awarded summary judgment; IEDI claim dismissed. |
| Cross-claims between Leifer and Reseller Defendants | Indemnification and contribution claims are warranted. | No viable breach or duties shown. | Cross-claims dismissed as moot or inadequately pled. |
Key Cases Cited
- Roth v. Guzman, 650 F.3d 603 (6th Cir.2011) (not strictly liable for undisclosed end-user impermissible use)
- Pichler v. UNITE, 542 F.3d 380 (3d Cir.2008) (DPPA not strictly liable where end user misuses information)
- Conboy v. AT&T Corp., 241 F.3d 242 (2d Cir.2001) (elements of intentional infliction of emotional distress)
- Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566 (2d Cir.1990) (disinterested malevolence standard for prima facie tort)