MARACICH ET AL. v. SPEARS ET AL.
No. 12-25
SUPREME COURT OF THE UNITED STATES
June 17, 2013
570 U. S. ____ (2013)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued January 9, 2013—Decided June 17, 2013
NOTE: Whеre it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
Respondent attorneys submitted several state Freedom of Information Act (FOIA) requests to the South Carolina DMV, seeking names and addresses of thousands of individuals in order to solicit clients for a lawsuit they had pending against several South Carolina car dealerships for violation of a state law that protects car purchasers from dealership actions that are “arbitrary, in bad faith, or unconscionable.” Using the personal information provided by the DMV, respondents sent over 34,000 car purchasers letters, which were headed “ADVERTISING MATERIAL,” explained the lawsuit, and asked recipients to return an enclosed reply card if they wanted to participate in the case. Petitioners, South Carolina residents, sued respondents for violating the federal Driver’s Privacy Protection Act of 1994 (DPPA) by obtaining, disclosing, and using petitioners’ personal information from motor vehicle records for bulk solicitation without their express consent. Respondents moved to dismiss, claiming that the information was properly released under a DPPA exception permitting disclosure of personal information “for use in connection with any civil, criminal, administrative, or arbitral proceeding,” including “investigation in anticipation of litigation.”
Held: An attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception. Pp. 6–29.
(a) State DMVs generally require someone seeking a driver’s license or registering a vehicle to disclose detailed personal infor-
(b) Respondents’ solicitation of prospective clients is neither a use “in connection with” litigation nor “investigation in anticipation of litigation” under (b)(4). Pp. 8–15.
(1) The phrase “in connection with” provides little guidance without a limiting principle consistent with the DPPA’s purpose and its other provisions. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 656. Such a consistent interpretation is also required because (b)(4) is an exception to both the DPPA’s general ban on disclosure of “personal information” and the ban on release of “highly restricted personal information.” An exception to a general policy statement is “usually read . . . narrowly in order to preserve the [provision’s] primary operation.” Commissioner v. Clark, 489 U. S. 726, 739. Reading (b)(4) to permit disclosure of personal information when there is any connection between protected information and a potential legal dispute would substantially undermine the DPPA’s purpose of protecting a right to privacy in motor vehicle records. Subsection (b)(4)’s “in connection with” language must have a limit, and a logical and necessary conclusion is that an attorney’s solicitation of prospective clients falls outside of that limit. Pp. 9–11.
(2) An attorney’s solicitation of new clients is distinct from an attorney’s conduct on behalf of his client or the court. Solicitation “by a lawyer of remunerative employment is a business transaction,” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 457, and state bars treat solicitation as discrete professional conduct. Excluding solicitation from the meaning of “in connection with” litigation draws support from (b)(4)’s examples of permissible litigation uses—“service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders“—which all involve an attorney’s conduct as an officer of the court, not a commercial actor. Similarly, “investigation in anticipation of litigation” is best understood to
(3) This reading is also supported by the fact that (b)(4) allows use of the most sensitive personal information. Permitting its use in solicitation is so substantial an intrusion on privacy it must not be assumed, without clear and explicit language, absent here, that Congress intended to exempt attorneys from DPPA liability in this regard. Pp. 14–15.
(c) Limiting (b)(4)’s reach also respects the statutory purpose and design evident in subsection (b)(12), which allows solicitation only of persons who have given express consent to have their names and addresses disclosed for this purpose. Subsection (b)(12) implements an important objective of the DPPA—to restrict disclosure of personal information in motor vehicle records to businesses for the purpose of direct marketing and solicitation. Other exceptions should not be construed to interfere with this objective unless the text commands it. Reading (b)(4)’s “in connection with” phrase to include solicitation would permit an attorney to use personal information from the state DMV to send bulk solicitations to prospective clients without their express consent, thus creating significant tension between the DPPA’s litigation and solicitation exceptions. Pp. 15–19.
(d) Such a reading of (b)(4) could also affect the interpretation of the (b)(6) exception, which allows an insurer and certain others to obtain DMV information for use “in connection with . . . underwriting,” and the (b)(10) exception, which permits disclosure and use of personal information “in connection with” the operation of private toll roads. Pp. 19–20.
(e) Respondents contend that a line can be drawn between mere trolling for clients and their solicitation, which was tied to a specific legal dispute, but that is not a tenable distinction. The DPPA supports drawing the line at solicitation. Solicitation can aid an attorney in bringing a lawsuit or increasing its size, but the question is whether or not lawyers can use personal information protected under the DPPA for this purpose. The mere fact that respondents complied with state bar rules governing solicitations also does not resolve whether they were entitled to access personal information from the state DMV database for that purpose. In determining whether obtaining, using, or disclosing personal information is for the prohibited purpose of solicitation, the proper inquiry is whether the defendant’s purpose was to solicit, which might be evident from the communication itself or from the defendant’s course of conduct. When that is the predominant purpose, (b)(4) does not entitle attorneys to DPPA-
Although the Fourth Circuit held that the letters here were solicitations, it found the communications nonetheless exempt under (b)(4) because they were “inextricably intertwined” with permissible litigation purposes. If however, the use of DPPA-protected personal information has the predominant purpose of solicitation, it would not be protected by (b)(4). A remand is necessary for the court to apply the proper standard to determine the predominant purpose of respondents’ letters. Pp. 20–26.
(f) There is no work for the rule of lenity to do here, because the DPPA’s text and structure resolve any ambiguity in (b)(4)’s phrases “in connection with” and “investigation in anticipation of litigation.” Pp. 26–27.
(g) On remand, the courts below must determine whether respondents’ letters, viewed objectively, had the predominant purpose of solicitation, and may address whether respondents’ conduct was permissible under (b)(1)’s governmental-function exception and any other defenses that have been properly preserved. Pp. 27–29.
675 F. 3d 281, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, BREYER, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which SCALIA, SOTOMAYOR, and KAGAN, JJ., joined.
EDWARD F. MARACICH, ET AL., PETITIONERS v. MICHAEL EUGENE SPEARS ET AL.
No. 12-25
SUPREME COURT OF THE UNITED STATES
June 17, 2013
570 U. S. ____ (2013)
JUSTICE KENNEDY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Opinion of the Court
JUSTICE KENNEDY delivered the opinion of the Court.
Concerned that personal information collected by States in the licensing of motor vehicle drivers was being released—even sold—with resulting loss of privacy for many persons, Congress provided federal statutory protection. It enacted the Driver’s Privacy Protection Act of 1994, referred to here as the DPPA. See
The DPPA regulates the disclosure of personal information contained in the records of state motor vehicle departments (DMVs). Disclosure of personal information is prohibited unless for a purpose permitted by an exception listed in 1 of 14 statutory subsections. See
Respondents are trial lawyers licensed to practice in South Carolina. They obtained names and addresses of thousands of individuals from the South Carolina DMV in order to send letters to find plaintiffs for a lawsuit they had filed against car dealers for violations of South Carolina law. Petitioners, South Carolina residents whose information was obtained and used without their consent, sued respondents for violating the DPPA. Respondents claimed the solicitation letters were permitted under subsection (b)(4). In light of the text, structure, and purpose of the DPPA, the Court now holds that an attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception.
I
A
The State of South Carolina, to protect purchasers of motor vehicles, enacted the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (MDDA). In June 2006, respondent attorneys were approached by car purchasers who complained about administrative fees charged by car dealerships in certain South Carolina counties, allegedly in violation of the MDDA. The state statute prohibits motor vehicle dealers from engaging in “any action which is arbitrary, in bad faith, or unconscionable and which causes damage to any of the parties or to the public.”
On June 23, 2006, one of the respondent attorneys submitted a state Freedom of Information Act (FOIA) request to the South Carolina DMV to determine if charging illegal administrative fees was a common practice so
On August 29, 2006, respondents filed suit in South Carolina state court on behalf of four of the consumers who originally contacted them. The case is referred to here, and by the parties, as the Herron suit. The complaint in the Herron suit named 51 dealers as defendants and invoked the MDDA’s “group action” provision to assert claims “for the benefit of all South Carolina car buyers wh[o] paid administrative fees,” id., at 128, to those dealers during the same time period.
Some of the dealer defendants in the Herron suit filed motions to dismiss for lack of standing because none of the named plaintiffs purchased cars from them. On October 26, 2006, while the motions to dismiss were pending, respondents submitted a new FOIA request to the South Carolina DMV. That request, again citing subsection (b)(4) of the DPPA, sought to locate additional car buyers who could serve as plaintiffs against the dеalers who had moved to dismiss. On October 31, 2006, respondents filed an amended complaint, which added four named plaintiffs
On January 3, 2007, using the personal information they had obtained from the South Carolina DMV, respondents sent a mass mailing to find car buyers to serve as additional plaintiffs in the litigation against the dealers. Later in January, respondents made three more FOIA requests to the South Carolina DMV seeking personal information concerning people who had purchased cars from an additional 31 dealerships, again citing the (b)(4) exception. The South Carolina DMV granted all the requests. On January 23, respondents mailed a second round of letters to car buyers whose personal information had been disclosed by the DMV. Respondents sent additional rounds of letters on March 1, March 5, and May 8. Each of the five separate mailings was sent to different recipients. In total, respondents used the information obtained through their FOIA requests to send letters to over 34,000 car purchasers in South Carolina. This opinion refers to the communications sent by respondents simply as the “letters.”
The letters, all essentially the same, had the heading “ADVERTISING MATERIAL.” The letters explained the lawsuit against the South Carolina dealers and asked recipients to contact the respondent-lawyers if interested in participating in the case. Attached to the letter was a reply card that asked a few questions about the recipient’s contact information and car purchase and ended with the sentence “I am interested in participating” followed by a signature line. The text of the letter and reply are set out in full in the Appendix, infra.
In accordance with South Carolina Rule of Professional Conduct 7.3 (2012), which regulates the sоlicitation of prospective clients, respondents filed a copy of the letter
In June 2007, respondents sought to amend their complaint to add 247 plaintiffs. The court denied leave to amend and held the named plaintiffs had standing to sue only those dealerships from which they had purchased automobiles and any alleged co-conspirators. In September 2007, respondents filed two new lawsuits on behalf of the additional car buyers. Those subsequent cases were consolidated with the Herron suit. All claims against dealerships without a corresponding plaintiff-purchaser were dropped.
B
In the case now before the Court, petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against the car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership’s director of sales and marketing. Petitioners Martha Weeks and John Tanner received letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase.
In 2009, petitioners filed the instant putative class-action lawsuit in the United States District Court for the District of South Carolina. The complaint alleged that respondents had violated the DPPA by obtaining, disclosing, and using personal information from mоtor vehicle
Respondents moved to dismiss. The information, they contended, was subject to disclosure because it falls within two statutory exceptions in the DPPA: (b)(1), pertaining to governmental functions, and (b)(4), pertaining to litigation. On cross-motions for summary judgment, the District Court held as a matter of law that respondents’ letters were not solicitations and that the use of information fell within the (b)(4) litigation exception. App. to Pet. for Cert. 61a. The District Court also found that respondents’ use of personal information was permitted under the (b)(1) governmental-function exception.
The Court of Appeals for the Fourth Circuit affirmed. Unlike the District Court, it found that the letters were “solicitation[s]” within the meaning of the DPPA; but it held further that when “solicitation 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.” 675 F. 3d 281, 284 (2012). This Court granted certiorari to address whether the solicitation of clients is a permissible purpose for obtaining personal information from a state DMV under the DPPA’s (b)(4) exception. 567 U. S. ___ (2012).
II
To obtain a driver’s license or register a vehicle, state DMVs, as a general rule, require an individual to disclose detailed personal information, including name, home address, telephone number, Social Security number, and medical information. See Reno v. Condon, 528 U. S. 141, 143 (2000). The enactment of the DPPA responded to at least two concerns over the personal information contained in state motor vehicle records. The first was a growing threat from stalkers and criminals who could acquire personal information from state DMVs. The se-
The DPPA provides that, unless one of its exceptions applies, a state DMV “shall not knowingly disclose or otherwise make available” “personal information” and “highly restricted personal information.”
The DPPA’s disclosure ban is subject to 14 exceptions set forth in
The (b)(4) litigation exception is one of the four provisions permitting disclosure not only of personal information but also of highly restricted personal information.
“For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.”
The (b)(12) sоlicitation exception provides that certain personal information, not including highly restricted personal information, may be disclosed:
“For bulk distribution for surveys, marketing, or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.”
The solicitation exception was originally enacted as an opt-out provision, allowing state DMVs to disclose personal information for purposes of solicitation only if the DMV gave individuals an opportunity to prohibit such disclosures.
III
Respondents’ liability depends on whether their use of personal information acquired from the South Carolina DMV to solicit clients constitutes a permissible purpose under the DPPA. The District Court held that respondents’ conduct was permissible both under the (b)(1) and (b)(4) exceptions. The Court of Appeals ruled that the conduct here was permissible under (b)(4); but, unlike the District Court, it did not address the alternative argument that the conduct was also permissible under (b)(1). As in the Court of Appeals, only the (b)(4) exception is discussed here.
A
Respondents claim they were entitled to obtain and use petitioners’ personal information based on two of the phrases in (b)(4). First, disclosure of personal information is permitted for use “in connection with any civil, criminal, administrative, or arbitral proceeding.”
1
If considered in isolation, and without reference to the structure and purpose of the DPPA, (b)(4)’s exception allowing disclosure of personal information “for use in connection with any civil, criminal, administrative, or arbitral proceeding,” and for “investigation in anticipation of litigation,” is susceptible to a broad interpretation. That language, in literal terms, could be interpreted to its broadest reach to include the personal information that respondents obtained here. But if no limits are placed on the text of the exception, then all uses of personal information with a remote relation to litigation would be exempt under (b)(4). The phrase “in connection with” is essentially “indeterminat[e]” because connections, like relations, “‘stop nowhere.’” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995). So the phrase “in connection with” provides little guidance without a limiting principle consistent with the structure of the statute and its other provisions. See id., at 656 (“We simply must go beyond the unhelpful text and the frustrating difficulty of defining [‘connection with’], and look instead to the objectives of the ERISA statute“); see also California Div. of Labor Stand-
An interpretation of (b)(4) that is consistent with the statutory framework and design is also required because (b)(4) is an exception to both the DPPA’s general prohibition against disclosure of “personal information” and its ban on release of “highly restricted personal information.”
If (b)(4) were read to permit disclosure of personal information whenever any connection between the protected information and a potential legal dispute could be shown, it would undermine in a substantial way the DPPA’s purpose of protecting an individual’s right to privacy in his or her motor vehicle records. The “in connection with” language in (b)(4) must have a limit. A logical and necessary conclusion is that an attorney’s solicitation of prospective clients falls outside of that limit.
The proposition that solicitation is a distinct form of conduct, separate from the conduct in connection with
2
An attorney’s solicitation of new clients is distinct from other aspects of the legal profession. “It is no less true than trite that lawyеrs must operate in a three-fold capacity, as self-employed businessmen as it were, as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Cohen v. Hurley, 366 U. S. 117, 124 (1961), overruled on other grounds, Spevack v. Klein, 385 U. S. 511 (1967). Unlike an attorney’s conduct performed on behalf of his client or the court, “solicitation by a lawyer of remunerative employment is a business transaction.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 457 (1978); see also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 637 (1985) (attorney solicitation “‘propose[s] a commercial transaction’“). The “pecuniary motivation of the lawyer
The distinction between solicitation and an attorney’s other duties is also recognized and regulated by state bars or their governing bodies, which treat solicitation as discrete professional conduct. See, e.g., Cal. Rule Prof. Conduct 1–400 (2013); N. Y. Rule Prof. Conduct 7.3 (2012–2013); Tex. Disciplinary Rules Prof. Conduct 7.02–7.03 (2013); Va. Rule Prof. Conduct 7.3 (Supp. 2012). That, indeed, was true here. Respondents were required by the South Carolina rules of ethics to include certain language in their solicitation letters and to file copies with the South Carolina Office of Disciplinary Counsel. See S. C. Rule Prof. Conduct 7.3. Given the difference between an attorney’s commercial solicitation of clients and his duties as an officer of the court, the proper reading of (b)(4) is that solicitation falls outside of the litigation exception. And when (b)(4) is interpreted not to give attorneys the privilege of using protected personal information to propose a commercial transaction, the statute is limited by terms and categories that have meaning in the regular course of professional practice.
The exclusion of solicitation from the meaning of “in connection with” litigation draws further support from the examples of permissible litigation uses in (b)(4). The familiar canon of noscitur a sociis, the intеrpretive rule that “words and people are known by their companions,” Gutierrez v. Ada, 528 U. S. 250, 255 (2000), provides instruction in this respect. Under this rule, the phrases “in connection with” and “investigation in anticipation of litigation,” which are “capable of many meanings,” Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961), can be construed in light of their accompanying words in order to avoid giving the statutory exception “unintended breadth,” ibid.; see also United States v. Williams, 553 U. S. 285, 294 (2008) (the canon of noscitur a sociis “counsels that a word is given more precise content by the neighboring words with which it is associated“).
The examples of uses “in connection with” litigation that Congress provided in (b)(4) include “the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.”
The examples in (b)(4) confirm, and are all consistent with, protecting the professional responsibilities that counsel, or the court, must discharge in the proper conduct of litigation. These are quite distinct from the separate subject, the separate professional conduct, of soliciting clients. The examples suggest that the litigation exception has a limited scope to permit the use of highly restricted personal information when it serves an integral purpose in a particular legal proceeding. In light of the types of conduct permitted by the subsection, the “in connection with” language should not be read to include commercial solicitations by an attorney.
Similarly, “investigation in anticipation of litigation” is best understood to allow background research to determine whether there is a supportable theory for a com-
3
An additional reason to hold that (b)(4) does not permit solicitation of clients is because the exception allows use of the most sensitive kind of information, including medical and disability history and Social Security numbers. To permit this highly personal information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard.
Subsection (b)(4) is one of only four exceptions in the statute that permit disclosure of “highly restricted personal information,” including a person’s image, Social Security number, and medical and disability information. See
While the (b)(4) exception allows this sensitive information to be used for investigation in anticipation of litigation and in the litigation itself, there is no indication Congress wanted to provide attorneys with a special concession to obtain medical information and Social Security numbers for the purpose of soliciting new business.
B
Limiting the reach of (b)(4) to foreclose solicitation of clients also respects the statutory design of the DPPA. The use of protected personal information for the purpose of bulk solicitation is addressed explicitly by the text of (b)(12). Congress was aware that personal information from motor vehicle records could be used for solicitation, and it permitted it in circumstances that it defined, with the specific safeguard of consent by the person contacted. So the absence of the term “solicitation” in (b)(4) is telling. Subsection (b)(12) allows solicitation only of those persons who have given express consent to have their names and addresses disclosed for this purpose. If (b)(4) were to be interpreted to allow solicitation without consent, then the structure of the Act, and the purpose of (b)(12), would be compromised to a serious degree.
It is necessary and required that аn interpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning. United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 455 (1993) (“‘[I]n expounding a statute, we must not be
This is not to say, as petitioners contend, that this is a straightforward application of the specific (qualified solicitation permission in (b)(12)) controlling the general (the undefined reach of “in connection with” and “investigation in anticipation of litigation” in (b)(4)). As between the two exceptions at issue here, it is not clear that one is always more specific than the other. For while (b)(12) is more specific with respect to solicitation, (b)(4) is more specific with respect to litigation. The DPPA’s 14 permissible use exceptions, moreover, are not in all contexts mutually exclusive. The better reading is that each exception addresses different conduct which may, on occasion, overlap. For example, certain uses of personal information by a court may be exempt either under (b)(1) or (b)(4). If conduct falls within the explicit or unambiguous scope of one exception, all other potentially applicable exceptions need not be satisfied.
So the question is not which of the two exceptions controls but whether respondents’ conduct falls within the litigation exception at all. As to this question, petitioners are correct that the existence of the separate provision governing solicitation provides necessary context for defining the scope of (b)(4). As discussed above, the text of (b)(4) indicates that the exception is best read not to includе solicitation as a use “in connection with” litigation. But even if there were any doubt on this point, the statutory design of the DPPA as a whole, including the (b)(12) exception governing solicitations, provides additional instruction for construing this provision. For this reason, it is relevant that “‘Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.’” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S.___, ___ (2012) (slip op., at 5).
Subsection (b)(12) implements an important objective of the
Direct marketing and solicitation present a particular concern not only because these activities are of the ordinary commercial sort but also because contacting an individual is an affront to privacy even beyond the fact that a large number of persons have access to the personal information. The
Because (b)(12) represents Congress’ decision to target the problem of bulk solicitation with the requirement of express consent, other exceptions should not be construed to interfere with this statutory mechanism unless the text commands it. This is not to suggest that (b)(12) is an overriding rule that controls all other exceptions. It would not be necessary to consider (b)(12) if another statutory exception applied to the relevant conduct. The relevance of (b)(12), however, is that it can be used as additional evidence of the
Here, the phrase “in connection with” litigation in the (b)(4) exception, as a matter of normal usage and common understanding, does not encompass an attorney’s commercial use of
C
If the phrase “in connection with” in (b)(4) included solicitation by lawyers, then a similar reach for that phrase could apply to other exceptions, resulting in further frustration of the Act’s design. Subsection (b)(6) allows an insurer and certain other parties to obtain DMV information for use “in connection with . . . underwriting.”
The
When Congress did intend the phrase “in connection with” to permit conduct otherwise subject to the express consent requirement in (b)(12), it did so in explicit terms. An illustration can be found in the interplay between (b)(2) and (b)(12) of the
IV
A
Respondents concede that (b)(4) does not permit attorneys to use personal information acquired from a state DMV to find new business in the absence of any connection to a particular transaction, occurrence, or defect. They contend, however, that a line can be drawn between mere trolling for clients (which is not permitted) and solicitation tied to a specific legal dispute (which, respondents argue, is permitted). While some solicitations may have a close relationship with existing proceedings, there is no principled way to classify some solicitations as acceptable and others as unacceptable for the purpose of (b)(4). Even if solicitation were permitted only after a lawyer has a client or filed a lawsuit, attorneys would be able to circumvent this limitation with ease by the simple device of filing a placeholder lawsuit. All an attorney would need is one friend or family member as his client before being able to gain access to
Drawing the line between solicitations related to an existing proceeding and those that are not is not a tenable distinction. The proper solution is to draw the line at solicitation itself. The structure of the
Of course solicitation can aid an attorney in bringing a lawsuit or in increasing its size. The question, however, is whether or not lawyers can use personal information protected under the
The fact that an attorney complies with state bar rules governing solicitations also does not resolve whether he is
A person is liable under the
Close cases may arise. Where a communication seeks to provide class notice or locate a witness, for example, the fact that the attorney provides contact information for a reply likely would not make the communication an improper solicitation. And the fact that a letter follows the state bar rules governing attorney solicitations, although relevant, will not be dispositive. For example, if the predominant purpose of a letter was not to solicit a new client, but rather to ask a witness investigatory questions or to secure her testimony at trial, adherence to state bar solicitation rules would not subject the sender to
Respondents contend that even if solicitation of clients is impermissible as a general rule, solicitation to aggregate a class action suit is permitted under (b)(4). Where the predominant purpose is solicitation, however, (b)(4) does not entitle attorneys to obtain and use
Attorneys are free to solicit plaintiffs through traditional and permitted advertising without obtaining personal information from a state DMV. Here, the attorneys could also have complied with (b)(12) and limited their solicitation to those individuals who had expressly consented, or respondents could have requested consent through the
In light of these and other alternatives, attorneys are not without the necessary means to aggregate a class of plaintiffs. What they may not do, however, is to acquire highly restricted personal information from state DMV records to send bulk solicitations without express consent from the targeted recipients.
This is not to suggest that attorneys may not obtain
B
The Court of Appeals held that the letters here were solicitations, finding that “a reasonable recipient would almost certainly have understood the message to be a solicitation from a lawyer.” Id., at 293. The court noted as relevant that respondents themselves took steps to follow South Carolina bar rules governing attorney solicitations and rejected respondents’ description of the letters as investigatory in nature, given that “[n]o mention was made of an investigation into certain practices other than the implicit suggestion of investigation during a ‘free consultation.’” Ibid. The included reply card did not alter the Court of Appeals’ finding that the communications were solicitations rather than investigation. Only those interested in joining the lawsuit were directed to fill out the card and the only place to sign the card was under the phrase “I am interested in participating.” See Appendix, infra, at 31. The card asked for data regarding vehicle purchases relevant to initiate the representation of the prospective clients.
But although the Court of Appeals found that the letters were solicitations, it held the communications nonetheless exempt under (b)(4) because they were “inextricably intertwined” with permissible litigation purposes. 675 F. 3d, at 284. As explained above, however, if the use of
On remand, the Court of Appeals should determine whether the record shows that the communications sought, or were used, to develop the factual basis of the Herron complaint, locate witnesses, identify additional defendants, or perform any other investigative function related to the litigation. Even if so, the question is whether solicitation was the predominant purpose for sending the letters.
V
This case does not involve the statutory section imposing criminal liability, which is written in different terms than the civil remedies provision. See
In this framework, there is no work for the rule of lenity to do. This Court has held that “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” Barber v. Thomas, 560 U. S. 474, 488 (2010) (citation and internal quotation marks omitted). But here, as discussed, the surrounding text and structure of the
VI
Solicitation of prospective clients is not a permissible use “in connection with” litigation or “investigation in anticipation of litigation” under (b)(4) of the
On remand, the Court of Appeals, or the District Court, must determine whether respondents’ letters, viewed objectively, had the predominant purpose of solicitation. The Court of Appeals’ finding that these letters were solicitations can be the basis for the further conclusion that solicitation was the predominant purpose of their transmission. Because the Court of Appeals applied the wrong standard in finding these solicitations exempt under (b)(4), however, the Court remands for application of the proper standard.
If the use of petitioners’ personal information to send the letters in this case is deemed to be a violation of the Act, then the courts can decide if it remains relevant and necessary, for liability and damages purposes, to determine whether the last four FOIA requests were also in violation of the
Neither this Court nor the Court of Appeals has considered whether respondents’ conduct was permissible under the (b)(1) governmental-function exception. Whether solicitation would be permitted conduct under (b)(1) is not resolved by this case. This case turns on the interpretation of “in connection with” litigation and “investigation in anticipation of litigation,” phrases not included in (b)(1). Where personal information is used for the predominant purpose of solicitation, the fact that the solicitation itself may serve a governmental function is not relevant to the interpretation of (b)(4). It may, however, be relevant to the (b)(1) inquiry. Respondents’ argument that they were authorized under state law to act as private attorneys general on behalf of the State is properly addressed under (b)(1). Arguments related to (b)(1) and other defenses, to the extent they have been preserved and are still proper to
This Court now holds that sending communications for the predominant purpose of solicitation is not a use of personal information exempt from
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
EDWARD F. MARACICH, ET AL., PETITIONERS v. MICHAEL EUGENE SPEARS ET AL.
No. 12–25
SUPREME COURT OF THE UNITED STATES
[June 17, 2013]
570 U. S. ____ (2013)
GINSBURG, J., dissenting
Respondents are lawyers who served as counsel in a representative action against South Carolina car dealers alleged to have charged car buyers unlawful administrative fees. In connection with that litigation, the lawyers obtained from South Carolina’s Department of Motor Vehicles (DMV) information identifying buyers who may have been charged unlawful fees and dealers who may have conspired to exact those fees. The lawyers subsequently sent letters to the identified buyers inquiring whether they had been charged administrative fees, informing them of the litigation, and inviting them to join as plaintiffs. The courts below determined that the lawyers’ requests for the information and their use of it fell squarely within the litigation exception to the Driver’s Privacy Protection Act of 1994 (DPPA),
I
Public concern regarding the ability of criminals and stalkers to obtain information about potential victims prompted Congress, in 1994, to enact the DPPA. A particular spur to action was the 1989 murder of the television actress Rebecca Schaeffer by a fan who had obtained her address from the California DMV. Taylor v. Acxiom Corp., 612 F. 3d 325, 336 (CA5 2010); Electronic Privacy Information Center, The Drivers Privacy Protection Act (DPPA) and the Privacy of Your State Motor Vehicle Record, http://www.epic.org/privacy/drivers/ (as visited June 14, 2013, and available in Clеrk of Court’s case file). See also 139 Cong. Rec. 29470 (1993) (remarks of Sen. Biden). Congress sought to close what it saw as a loophole caused by state laws allowing requesters to gain access to personal information without a legitimate purpose. Addressing that problem, Congress established a “regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent.” Ante, at 7 (internal quotation marks omitted).
The DPPA generally prohibits any state DMV from “knowingly disclos[ing] or otherwise mak[ing] available to any person” personal information about any individual.
This case arises from a state-court lawsuit—the Herron litigation—to enforce the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (MDDA),
Respondent-lawyers obtained and used information from the state DMV both shortly before filing suit and
After the lawsuit was filed, respondent-lawyers obtained the names of persons who had purchased cars from the dealers they had identified as defendants and mailed letters to those purchasers. Ante, at 4. These dispatches are the actions that, in the Court’s view, render respondent-lawyers potentially liable for violating the DPPA. To determine whether the DPPA authorized the respondent-lawyers’ uses of DMV information, I first consider the posture of the Herron litigation at the time of the mailings to car purchasers. The complaint filed by respondent-lawyers on behalf of the car purchasers alleged that the dealers were involved in a conspiracy to charge unlawful fees. App. 138–139. In a competitive market, the lawyers urged, such conduct can succeed only when done in concert with other dealers; otherwise, consumers would take their business elsewhere. Meanwhile, the dealers moved to dismiss the conspiracy claim and argued there was no party with standing to sue those dealers who had not sold a car to a named plaintiff. Id., at 155.
The state court denied the dealers’ motion to dismiss, stating that the complaint alleged sufficient facts “supporting standing of the plaintiffs to proceed” against all defendants, and that there were “sufficient allegations of civil conspiracy” to avoid threshold dismissal of that claim. Id., at 212. At a subsequent hearing, the state court clarified that respondent-lawyers could “go forward with eight people [the named plaintiffs]” and the court would consider
This context illuminates how the letters at issue in this case—which were mailed after the complaint was filed and while the dealers’ motion to dismiss was pending—served to advance the representative character of the suit during a critical time in the Herron litigation. The letters included a card asking recipients to respond by stating the type of car they had purchased, the name of the dealer and date of purchase, whether they had been charged the allegedly unlawful fee and, if so, the amount of the fee, and whether they were interested in partiсipating in the lawsuit. See, e.g., App. 93, 106. These questions served an investigative purpose: to gather information about the fees charged by
II
The DPPA permits disclosure of personal information:
“For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.”
18 U. S. C. §2721(b)(4) .
A
Congress used expansive language in framing the
This case should therefore be easy. One need not strain to see the connection between the respondent-lawyers’ conduct and a specific civil proceeding. No attenuated chain of connection need be established. All the uses of DMV information at issue took place when a conсrete civil action between identified parties was either imminent or pending. Thus, the uses were indisputably “in connection with” a civil proceeding.
The Court apparently recognizes that the initial requests for DMV information—to investigate the vitality of the claims before filing suit—were in connection with the litigation. See ante, at 27-28. But if anything, the later requests and the letters mailed to car purchasers were even more closely tied to the case. The letters were sent after litigation commenced, when the respondent-lawyers, on behalf of their clients, were pursuing conspiracy claims
It would be extraordinary for Congress to pass a law disturbing the processes of a state court in such a case. “[T]he National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States,” and this includes a general “deference to the state adjudicative process.” Levin v. Commerce Energy, Inc., 560 U. S. 413, ___ (2010) (slip op., at 15-16) (quoting Younger v. Harris, 401 U. S. 37, 44 (1971)). We have taken special care to emphasize “the State‘s strong interest in regulating members of the Bar,” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 467 (1978), and have cautioned against undue “Federal interference with a State‘s traditional regulation of [the legal] profession,” Bates v. State Bar of Ariz., 433 U. S. 350, 362 (1977). One would therefore expect Congress to speak clearly if it intended to trench on state control in this domain.
I find no such clear statement in the DPPA. Quite the contrary, the DPPA instructs that “use [of DMV information] in connection with any civil . . . proceeding in any . . . State . . . court” is permissible under federal law.
B
Rather than adopt a straightforward interpretation of
I agree with the Court that the words “in connection with” must be contained within reasonable bounds. But the Court immediately jumps from this premise to the conclusion that “an attorney‘s solicitation of prospective clients falls outside of [any reasonable] limit.” Ante, at 10-11; ante, at 11, 13 (solicitation, a “discrete act” prohibited by the statute, allows no exception for conduct “in connection with litigation“). The leap is startling. In prior decisions, when the Court has sought a limiting principle for similar statutory language, it has done so to prevent the application of a statute to matters with “only a tenuous, remote, or peripheral connection” to the statute‘s core purpose. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 661 (1995) (quoting District of Columbia v. Greater Washington Bd. of Trade, 506 U. S. 125, 130, n. 1 (1992)). The focus, in other words, has been on the degree of connection between the concerns central to the law and the disputed application of the measure.
The majority‘s focus on solicitation, however, tells us almost nothing about the degree of connection between the use of DMV information and a civil proceeding. It matters not to the Court whether a solicitation is of vital importance to an ongoing proceeding or far removed from
The majority‘s sojourn away from
Congress’ use of the phrase “in anticipation of litigation” provides further support for this interpretation. The phrase is hardly unique to (b)(4); it is commonly used to refer to the time at which the work-product privilege attaches to an attorney‘s work for a client and the time at which a party has a duty to preserve material evidence. See, e.g.,
Usage of the same words in other prescriptions indicates that (b)(4) is indeed limited by its text. A hypothetical case without identified adverse parties is not encompassed by (b)(4). To anticipate a particular civil proceeding, a lawyer must have a client whose claim presents a genuine controversy.4 Trolling for prospective clients with no actual or imminent proceeding, involving already identified adverse parties, in sight—apparently, the Court‘s primary concern—would not be a permissible use.5 Affirming the judgment below, the Court fears, would permit lawyers to bring placeholder lawsuits on behalf of “friend[s] or family member[s],” then use DMV data to solicit plaintiffs for “a lawsuit that would otherwise be dismissed for lack of standing.” Ante, at 20-21. This is a canard. No court would hold such a case a genuine con-
This case is squarely within the metes and bounds of (b)(4). The letters advanced the concrete interests of the respondent-lawyers’ clients within a pending adversarial civil proceeding in state court. Just as the letters at issue in this case would be in contemplation of a particular “proceeding” as that term is used in
The Court‘s second argument is no more convincing. A severe limit must be read into (b)(4), the Court urges, to respect thе structure of the statute. Specifically, the Court spotlights that another permissible use, (b)(12), allows “bulk distribution for surveys, marketing or solicitations,” but only to individuals who have consented to allow use of their information for this purpose. Petitioners here devoted much of their briefing to arguing that (b)(12) is somehow more “specific” than (b)(4), see Brief for Petitioners 18-31; Reply Brief 3-12, but the Court rightly rejects that reasoning. Ante, at 16. Neither provision is more specific than the other; the two simply cover different subjects.
Without the specific-governs-the-general canon, the case for using (b)(12) to interpret (b)(4) evaporates. The Court suggests there would be “tension” between the two provisions if a use of DMV information were permitted by (b)(4) but not permitted by (b)(12). Ante, at 21. Every permissible use of DMV information, however, is permitted by
If applied generally to
III
Under the most sensible reading of
First, the Court‘s reading clouds other uses the DPPA permits. According to the Court, the exceptions in
The Court sows further confusion by narrowly construing the four exceptions that permit disclosure of information the DPPA ranks as “highly restricted personal information.”
A common thread unites the four categories: All involve the functioning or oversight of state governments on matters important to the State and persons within the State‘s governance. For uses of this genre, the need for the information can be especially high, and the likelihood of misuse, especially low. Congress therefore took care to authorize broad access to DMV information for uses these exceptions allow. I would read
Second, the Court‘s holding is hard to grasp and will be difficult to apply. The Court first suggests that “[t]he proper solution is to draw the line at solicitation itself,” to “exclud[e] [solicitation] from the activity permitted in (b)(4).” Ante, at 21. Backing away from this clear, if erroneous, solution, the Court settles on an inquiry into “whether obtaining, using, or disclosing the personal information . . . had the predominant purpose to solicit.” Ante, at 22. The Court‘s cryptic discussion of its “predom-
Consider an attorney whose client has been the victim of a hit-and-run. The victim recalls the license plate of another car at the scene, which was also hit by the offending driver. In order to investigate her client‘s case, and to ensure that “there is a supportable theory for a complaint,” ante, at 14, a responsible attorney would contact this second victim, who may be able to provide useful information about the incident. But the second victim is also а potential plaintiff in her own right. A communication might therefore be viewed by the state bar as falling within the rules for solicitation. See S. C. Rule of Professional Conduct 7.3(d) (2012) (solicitation rule applies to communications between an attorney and “a prospective client known to be in need of legal services in a particular matter“).9 Under today‘s decision, the attorney will be in an impossible position. Her duties to her client—and to the court to conduct a reasonable investigation before filing a lawsuit—instruct her to contact the potential witness. To avoid running afoul of the state bar‘s rules, however, she may need to label any communication with the witness as a solicitation. But if she does that, today‘s ruling would expose her to liability under the DPPA.
This example is not so far removed from the facts of this case. Petitioners conceded, both in their briefs and at oral argument, that the DPPA would have permitted respondents to contact the purchasers of cars to ask them whether
Reality thus belies the Court‘s pretense that a bright line separates solicitation from other aspects of a lawyer‘s role as officer of the court. Perhaps aware that, in many cases, the line will be hazy or hard to find, the Court resorts to inapposite comparisons. The Court notes, for example, that it would be impermissible for a lawyer to use information obtained from the DMV to send out advertisements for “a book he wrote.” Ante, at 24. But no one would confuse bookselling with investigation in anticipation of litigation; such a use would be impermissible under any reading of (b)(4).
The Court‘s disposition will require lower courts to parse whether every communication using DMV information in the course of litigation has solicitation as a “predominant purpose.” Ante, at 22. The holding in Maracich‘s case, I fear, will, at a minimum, impede the efficient administration of state-court litigation and may well prove infeasible.10 Cf. United States v. Jicarilla Apache Nation, 564 U. S. ___, ___ (2011) (slip op., at 18) (rejecting
This case illustrates the problem. In truth, the letters served both as an investigative tool and as an invitation to car purchasers to join the Herron suit. How is the fact-finder to determine which purpose was predominant? Toss a coin when the trier finds the answer is: “six of one, half dozen of the other“? As the Court of Appeals recognized, the use here, although qualifying as a solicitation, “was inextricably intertwined with investigation and prosecution of the Herron litigation.” 675 F. 3d, at 300.
Finally, the rule of lenity requires that we resolve any residual ambiguity in respondents’ favor. Petitioners sought $2,500 in statutory damages for every letter mailed—a total of some $200 million—and punitive damages to boot. Brief for Respondents 15. Such damages cannot possibly represent a legislative judgment regarding average actual damage. The Court‘s opinion is wrong to suggest that the rule of lenity does not apply to governmental penalties so long as they are payable to private individuals and labeled “liquidated damages,” rather than “criminal fines.” Moreover, the DPPA, which appears in Title 18 of the United States Code, imposes criminal liability for a knowing violation of its provisions.
The Court recognizes that there may be ambiguity in the (b)(4) phrases “in connection with” and “investigation in anticipation of litigation.” Ante, at 26. But it finds any ambiguity in these phrases resolved by the structure of the DPPA. Ibid. What “structure,” one may ask, other than an enumeration of 14 discrete exceptions, each permitting disclosure? See supra, at 11-12. The DPPA has been in effect for over 15 years, and yet the Court points to no judicial decision interpreting the statute in the way it does today. We should hesitate to adopt a novel interpretation of a federal statute that subjects parties to crushing liability. “[I]t is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U. S. 25, 27 (1931) (opinion for the Court by Holmes, J.). Respondent-lawyers were given no such fair warning.
IV
The Court today exposes lawyers whose conduct meets state ethical requirements to huge civil liability and potential criminal liability. It does so by adding to the DPPA‘s litigation exception a solicitation bar Congress did not place in that exception. Because respondent lawyers’ use of DMV information fits within the exception deline-