Maracich v. Spears
2012 U.S. App. LEXIS 6733
4th Cir.2012Background
- DPPA prohibits certain uses of DMV personal information; district court granted summary judgment for Lawyers on DPPA defenses.
- Lawyers obtained DPPA-protected data via SC DMV FOIA requests invoking the DPPA's litigation exception.
- Lawyers sent multiple solicitations to car buyers identified through FOIA, including letters labeled Advertising Material.
- Plaintiffs (Buyers) alleged nonconsensual DPPA use for mass solicitation; sought damages and injunction.
- Herron dealers' group-action litigation in SC provided a framework in which Lawyers claimed a private-attorney-general role and standing to contact buyers.
- District court held the litigation exception applied and that solicitation intertwined with permissible use; Buyers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lawyers' mailings were solicitations under DPPA | Buyers: letters were solicitations; objective look shows solicitation. | Lawyers: no solicitation because tied to permissible litigation use. | Solicitation exists; however, intertwined with litigation use. |
| Whether DPPA permits nonconsensual solicitation when tied to a permissible use | If impermissible use occurs, DPPA liability follows regardless of permissible use. | Permissible use can absorb impermissible conduct when intertwined. | Record supports permissible use under litigation exception; liability fails. |
| Whether the litigation exception applies to the Lawyers' conduct | Litigation exception does not cover soliciting unnamed buyers. | Evidence shows use was for investigation in anticipation of litigation and in connection with litigation. | Litigation exception applies; conduct lawful for DPPA purposes. |
| Whether the state action exception also applies | State action exception should apply due to regime of public action by private attorneys general. | State action exception not triggered; Lawyers not agents of government. | Court did not need to reach state action issue; litigation exception resolves the case. |
Key Cases Cited
- Rine v. Imagitas, Inc., 590 F.3d 1215 (11th Cir. 2009) (litigation exception can absorb nonconsensual solicitation when intertwined with permitted use)
- Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107 (11th Cir. 2008) (expansive view of litigation exception; use for solicitation tied to litigation permissible)
- Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008) ( Third Circuit: unpermitted use cannot be absorbed by a permitted use when not separable)
- Wemhoff v. District of Columbia, 887 A.2d 1004 (D.C. Ct. App. 2005) (distinguishable; not just pre-suit solicitation)
- Reno v. Condon, 528 U.S. 141 (2000) (DPPA constitutional under Commerce Clause)
- Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997) (discussion of consumer-protection advertising limits)
- Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) (solicitation advertising background relevant to DPPA interpretation)
- Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (context for regulating lawyer solicitation)