Maracich v. Spears
Annotate this Case
570 US ___ (2013)
SUPREME COURT OF THE UNITED STATES
EDWARD F. MARACICH, et al., PETITIONERS v. MICHAEL EUGENE SPEARS et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[June 17, 2013]
Justice Ginsburg, with whom Justice Scalia, Justice Sotomayor, and Justice Kagan join, 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), 18 U. S. C. §2721(b)(4), and that the Act’s limitation on solicitation, §2721(b)(12), did not override the litigation exception. I would affirm that sound judgment. As the Fourth Circuit explained, respondents “did what any good lawyer would have done.” 675 F. 3d 281, 298 (2012). This Court’s holding, exposing respondents not only to astronomical liquidated damages, §2724(b)(1), but to criminal fines as well, §2723(a), is scarcely what Congress ordered in enacting the DPPA.
Respondent-lawyers obtained and used DMV information for “investigation in anticipation of litigation” and for communications “in connection with” a civil action. I would read that statutory language to permit use of DMV information tied to a specific, concrete proceeding, imminent or ongoing, with identified parties on both sides of the controversy. So read, §2721(b)(4) permitted the lawyers’ conduct. Neither §2721(b)(12) nor any other provision of the DPPA warrants the massive liability this Court’s judgment authorizes.
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 Clerk 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. 18 U. S. C. §2721(a). This prohibition is subject to a number of statutory exceptions, including stated purposes for which the DPPA requires disclosure and 14 purposes for which the DPPA permits disclosure. §2721(b). The 14 permitted uses of DMV data are designed to “strik[e] a critical balance between an individual’s fundamental right to privacy and safety and the legitimate governmental and business needs for th[e] information.” 140 Cong. Rec. 7925 (1994) (remarks of Rep. Moran). State DMVs may release information for any one of these permitted purposes, but they are not required to do so.
This case arises from a state-court lawsuit—the Herron litigation—to enforce the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (MDDA), S. C. Code Ann. §56–15–10 et seq. (2006 and Supp. 2011). Respondent-lawyers were approached by a number of recent car purchasers who complained that they had been charged unlawful fees. On behalf of the car purchasers, the lawyers filed a complaint alleging that the car dealerships had violated state law. The initial complaint identified four purchasers as named plaintiffs and 51 dealers as defendants; the pleading was soon amended to name eight plaintiffs and, as defendants, 324 dealers. 675 F. 3d, at 285. The complaint invoked the MDDA’s representative action provision, which allows an individual to act as a private attorney general bringing suit “for the benefit of the whole.” S. C. Code Ann. §56–15–110(2). Ultimately, the Herron litigation yielded a declaratory judgment that the dealers had indeed violated state law. Subsequent settlements gained monetary relief for over 30,000 overcharged car purchasers. The state court found that the Herron plaintiffs, “as private attorneys general, [had] represented the public interest in attempting to regulate allegedly unfair practices by motor vehicle dealers and therefore represent all those affected by such practices.” App. 253–254.
Respondent-lawyers obtained and used information from the state DMV both shortly before filing suit and during the pendency of the state-court litigation. Before filing suit, they asked the DMV for information about recent car purchases in six South Carolina counties. These requests explained that respondent-lawyers represented a group of “plaintiffs who have complained of certain conduct as a result of their transactions with car dealers,” and that the lawyers were “attempting to determine if this [conduct was] a common practice.” 675 F. 3d, at 284 (internal quotation marks omitted).
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 the standing issue raised in the dealers’ motion to dismiss “when all the discovery is in and it comes to dis- positive motions.” Record in No. 7:09–cv–1651–HMH (D SC), Doc. 78–9, p. 50. [ 1 ] The state court’s initial ruling, in other words, was that the complaint filed by respondent-lawyers was sufficient under state law to mount a concrete dispute between their clients and all the overcharging dealers, and to enable the lawyers to proceed to discovery. But in view of the Herron defendants’ insistence that a dealer could not be sued absent a named plaintiff who purchased from that dealer, [ 2 ] respondent-lawyers understandably sought to identify, and add to the roster of plaintiffs, a purchaser from each named defendant. In that endeavor, as the Fourth Circuit recognized, they “did what any good lawyer would have done.” 675 F. 3d, at 298.
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 participating in the lawsuit. See, e.g., App. 93, 106. These questions served an investigative purpose: to gather information about the fees charged by dealers with whom the Herron plaintiffs claimed to have a concrete dispute. [ 3 ] They also served to identify additional persons who might wish to be named as plaintiffs in the group action, persons whose joinder would defeat or diminish the dealers’ insistence that plaintiffs could sue only dealers from whom they personally purchased cars. See 675 F. 3d, at 285–286; ante, at 5 (faced with that insistence, respondent-lawyers eventually dropped “all claims against dealerships without a corresponding plaintiff-purchaser”).
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).
Respondent-lawyers’ use of the DMV-supplied information falls within the plain language of this provision. The Court’s attempt to read a solicitation-specific limitation into this provision has no mooring in §2721(b)(4)’s text and misperceives the structure of the DPPA.
Congress used expansive language in framing the §2721(b)(4) exception, starting with the words “in connection with” and thrice repeating the word “any.” See Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383 (1992) (“The ordinary meaning of th[e] words [‘relating to’] is a broad one.”); Kasten v. Saint-Gobain Performance Plastics Corp., 563 U. S. 1 , ___ (2011) (slip op., at 7) (“[T]he phrase ‘any complaint’ suggests a broad interpretation.”). Notably, the Court acknowledges that (b)(4) is “susceptible to a broad interpretation,” and, “in literal terms,” could be read “to include the personal information that [respondent-lawyers] obtained here.” Ante, at 9.
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 concrete 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 against each of the defendant car dealers. Of equal importance, because the suit qualified under state law as a representative action, respondent-lawyers represented and were obligated to serve the interests of all car purchasers affected by the charged illegal conduct. Respondent-lawyers’ uses of DMV information in aid of the Herron litigation facilitated the discharge of their professional obligations to the court, their individual clients, and the “whole” group of named and unnamed purchasers that state law required the lawyers to serve. S. C. Code Ann. §56–15–110(2).
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. §2721(b)(4).
Rather than adopt a straightforward interpretation of the statute, the Court labors to justify reading a limitation into (b)(4) that has no basis in the text of that provision. Solicitation, the Court says, is not permissible under (b)(4) even if it targets a specific civil proceeding. The Court offers two primary arguments for this conclusion. First, the Court contends, a bar on solicitation must be read into (b)(4) lest that provision permit all uses “with a remote relation to litigation.” Ante, at 9. Second, the Court asserts, its interpretation is necessary to respect the “structure and purpose of the DPPA” and the “objective” of subsection (b)(12). Ante, at 9, 17. Neither argument is persuasive.
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 any proceeding which may or may not be brought. A rule barring any communication for which solicitation is a predominant purpose bears no logical relationship to the §2721(b)(4) phrase “in connection with.” And the majority’s concentration on solicitation is uninformative on the degree of connection to a civil proceeding needed for uses of DMV information that do not involve solicitation.
The majority’s sojourn away from §2721(b)(4)’s text in search of a limiting principle is unwarranted. A limit to the scope of (b)(4) can be readily identified by attending to the phrasing of the provision and its focus on a “proceeding.” Congress used similar language in the obstruction of justice statute, which criminalizes various attempts to interfere with a “proceeding.” 18 U. S. C. §1512. The Court had no difficulty identifying a limiting principle in this term; it held that the statute applies only to persons who “have in contemplation any particular official proceeding.” Arthur Andersen LLP v. United States, 544 U. S. 696, 708 (2005) . By the same token, (b)(4) is best interpreted to permit only uses tied to a concrete, particular proceeding.
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., Fed. Rule Civ. Proc. 26(b)(3) (“documents and other tangible things that are prepared in anticipation of litigation” are not discoverable); Silvestri v. General Motors Corp., 271 F. 3d 583, 592 (CA4 2001) (plaintiff had “failed to preserve material evidence in anticipation of litigation”). Both now and when the DPPA was enacted, courts have understood this phrase to require a concrete dispute between parties, and to exclude the abstract possibility of a hypothetical lawsuit. See, e.g., National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F. 2d 980, 984 (CA4 1992) (the “general possibility of litigation” is not enough; a document is prepared in anticipation of litigation when there is “an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation”); Gould Inc. v. Mitsui Mining & Smelting Co., 825 F. 2d 676, 680 (CA2 1987) (application of Rule 26(b)(3) “depends upon the existence of a real, rather than speculative, concern”).
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 controversy. The Court’s hypothetical bears not even a remote resemblance to the facts of this case. The state court here denied the defendants’ motion to dismiss the conspiracy claim on standing grounds. Supra, at 4–5. See also ante, at 5 (describing the state court’s ruling that the named plaintiffs had standing to sue the “dealerships from which they had purchased automobiles and any alleged co-conspirators” (emphasis added)).
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 18 U. S. C. §1512, and would be “in anticipation of litigation” as Rule 26(b)(3) employs that term, they fall within the very same language as it appears in §2721(b)(4).
The Court’s second argument is no more convincing. A severe limit must be read into (b)(4), the Court urges, to respect the 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 some—often just one—of the 14 enumerated exceptions and not permitted by others. The DPPA surely does not convey that every time a person obtains DMV information in accord with one exception, that exception comes into conflict with other exceptions under which the information could not be obtained. Indeed, it is the Court’s opinion that creates tension, by taking a use that would be permissible under (b)(4)—and therefore permissible under the DPPA—and importing into it a restriction delineated in an entirely different exception.
If applied generally to §2721(b), the Court’s approach would frustrate the evident congressional purpose to provide a set of separate exceptions, any one of which makes permissible the uses therein. Consider a consulting company hired by a State to conduct research into motor vehicle safety. Depending on the particulars of the research project, the company might seek to obtain DMV information under the uses listed in (b)(1), (2), (5), (12), or (14). [ 6 ] These exceptions entail different requirements, so the project might well fit within one or two of them but not the others. It would be ludicrous to treat the fact that the project did not fit within one exception as establishing that the project should not be allowed under any other exception. Construing the DPPA in that manner would render the statute totally unworkable. The majority does not take that outlandish position with respect to all the exceptions. Ante, at 16. Instead, without any congressional instruction to do so, the Court reads (b)(12)—the 12th on a list of 14 permissible uses—as so central a part of the DPPA that it alone narrows the scope of other exceptions.
Under the most sensible reading of §2721(b)(4), see supra, at 6–7, the uses of DMV information at issue here would be permissible. The dispositive question should be: Is the use tied to a concrete civil action between identified parties that is ongoing or impending? Even if the statute could be viewed as ambiguous, there is ample reason to adopt that straightforward reading. The alternative reading embraced by the Court generates uncertainty regarding the scope of other uses enumerated in §2721(b); creates difficult line-drawing problems; and imposes criminal and draconian civil liability, at odds with the principle of lenity.
First, the Court’s reading clouds other uses the DPPA permits. According to the Court, the exceptions in §2721(b) should be construed so as not to “interfere” with (b)(12), which “implements an important objective of the DPPA.” Ante, at 17–18. [ 7 ] Therefore, (b)(12) is “relevan[t]” in interpreting those “exceptions whose breadth and application are uncertain.” Ante, at 18. Little light is cast on which enumerated exceptions fit that description. Subsection (b)(4) fits, the Court asserts, but (b)(1) apparently does not. See ibid. But what makes (b)(1) clear, while (b)(4) is uncertain? The Court provides no answer, not even a clue. Lower courts will be left to puzzle over when (b)(12) comes to the fore, rendering impermissible uses that otherwise fit within another exception.
The Court sows further confusion by narrowly construing the four exceptions that permit disclosure of information the DPPA ranks as “highly restricted personal information.” §2721(a)(2); see ante, at 14. These exceptions apply to uses by the government, (b)(1); court opera- tions, (b)(4); use by insurance companies, entities perva- sively regulated by the States, (b)(6); and commercial driver’s licenses, which are regulated by the Federal Government and administered by the States, (b)(9). [ 8 ]
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 §2721(b) as according the States ample leeway to use and authorize use of their own DMV information in these areas of traditional state authority.
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 “predominant purpose” test inspires little confidence. See ibid. (the purpose “might be evident from the communication itself,” but “[c]lose cases may arise”). In truth, however, the line between a lawyer’s function as an officer of the court and her notice to, and solicitation of, new clients may be indistinct. See infra, at 17, n. 10.
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 a 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 they paid the unlawful fees. Brief for Petitioner 48; Tr. of Oral Arg. 14–15. Indeed, such an investigation was critical to pursuit and resolution of the Herron litigation. See supra, at 5. But in this case, as in the hypothetical case just posed, investigating the facts involved contacting people who might potentially become parties. And professional rules regarding solicitation may well apply to such communications.
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 as unworkable a “case-by-case inquiry into the purpose of each communication” involving government attorneys in the administration of tribal trusts).
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 factfinder 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. 18 U. S. C. §2723(a). Because this is a civil case, I need not consider what defenses respondent-lawyers might have were they criminally prosecuted. But because we are interpreting a criminal statute, “it is appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of the statute’s coverage,” even in a civil case. Crandon v. United States, 494 U. S. 152, 158 (1990) . See also Leocal v. Ashcroft, 543 U. S. 1, 12, n. 8 (2004) (explaining that, if a statute has criminal applications, “the rule of lenity applies” to the Court’s interpretation of the statute “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”); Scheidler v. National Organization for Women, Inc., 537 U. S. 393 –409 (2003) (applying rule of lenity in civil case asserting claims under Hobbs Act); United States v. Thompson/Center Arms Co., 504 U. S. 505, 518 (1992) (plurality opinion) (applying rule of lenity in tax case); id., at 519 (Scalia, J., joined by Thomas, J., concurring in judgment) (agreeing with plurality’s application of rule of lenity); Acxiom Corp., 612 F. 3d, at 332, n. 5 (recognizing DPPA should be construed in light of rule of lenity).
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.
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- ated in §2721(b)(4), I would affirm the Fourth Circuit’s judgment.