Maracich v. Spears
Annotate this Case
570 US ___ (2013)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
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 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 18 U. S. C. §§2721–2725.
The DPPA regulates the disclosure of personal information contained in the records of state motor vehicle de- partments (DMVs). Disclosure of personal information is prohibited unless for a purpose permitted by an ex-ception listed in 1 of 14 statutory subsections. See §§2721(b)(1)–(14). This case involves the interpretation of one of those exceptions, subsection (b)(4). The exception in (b)(4) permits obtaining personal information from a state DMV for use “in connection with” judicial and administrative proceedings, including “investigation in anticipation of litigation.” §2721(b)(4). The question presented is whether an attorney’s solicitation of clients for a lawsuit falls within the scope of (b)(4).
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.
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.” S. C. Code Ann. §56–15–40(1) (2006). The MDDA provides that “one or more may sue for the benefit of the whole” where an action is “one of common or general interest to many persons or when the parties are numerous and it is impracticable to bring them all before the court.” §56–15–110(2).
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 that a lawsuit could be brought as a representative action under the MDDA. The attorney’s letter to the DMV requested information regarding “[p]rivate purchases of new or used automobiles in Spartanburg County during the week of May 1–7, 2006, including the name, address, and telephone number of the buyer, dealership where purchased, type of vehicle purchased, and date of purchase.” App. 57. The letter explained that the request was made “in anticipation of litigation . . . pursuant to the exception in 18 USC §2721(b)(4) of the Driver’s Privacy Protection Act.” Ibid. The South Carolina DMV provided the requested information. On August 24, 2006, respondents submitted a second FOIA request to the DMV, also asserting that it was made “in anticipation of litigation . . . pursuant to the exception in 18 USC §2721(b)(4),” for car purchasers in five additional counties during the same week. Id., at 67.
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 dealers who had moved to dismiss. On October 31, 2006, respondents filed an amended complaint, which added four named plaintiffs and increased the number of defendant dealers from 51 to 324. As before, defendant dealerships that had not engaged in transactions with any of the now eight named plaintiffs filed motions to dismiss for lack of standing.
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 solicitation of prospective clients, respondents filed a copy of the letter and a list of recipients’ names and addresses with the South Carolina Office of Disciplinary Counsel.
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.
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 motor vehicle records for bulk solicitation without the express consent of petitioners and the other class members.
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).
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 second concern related to the States’ common practice of selling personal information to businesses engaged in direct marketing and solicitation. To address these concerns, the DPPA “establishes a regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent.” Id., at 144.
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.” §§2721(a)(1)–(2). “[P]ersonal information” is “information that identifies an individual, including [a] . . . driver identification number, name, address . . . , [or] telephone number, . . . but does not include information on vehicular accidents, driving violations, and driver’s status.” §2725(3). “[H]ighly restricted personal information” is defined as “an individual’s photograph or image, social security number, [and] medical or disability information.” §2725(4). The DPPA makes it unlawful “for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title.” §2722(a). A person “who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains.” §2724(a).
The DPPA’s disclosure ban is subject to 14 exceptions set forth in §2721(b), for which personal information “may be disclosed.” The two exceptions most relevant for the purpose of this case are the litigation exception in subsection (b)(4) and the solicitation exception in (b)(12).
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. §2721(b)(4); §2725(4). It provides that information may be disclosed:
“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 exe- cution or enforcement of judgments and orders, or pur- suant to an order of a Federal, State, or local court.”
The (b)(12) solicitation 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. §2721(b)(12) (1994 ed.). In 1999, Congress changed to an opt-in regime, requiring a driver’s affirmative consent before solicitations could be sent. See Condon, supra, at 144–145.
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.
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.” §2721(b)(4). Second, a use in connection with litigation includes “investigation in anticipation of litigation.” Ibid. Respondents contend that the solicitation of prospective clients, especially in the circumstances of this case, is both a use “in connection with” litigation and “investigation in anticipation of litigation.”
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 Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 335 (1997) (“But applying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else”).
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.” §§2721(a)(1)–(2). An exception to a “general statement of policy” is “usually read . . . narrowly in order to preserve the primary operation of the provision.” Commissioner v. Clark, 489 U. S. 726, 739 (1989) . It is true that the DPPA’s 14 exceptions permit disclosure of personal information in a range of circumstances. Unless commanded by the text, however, these exceptions ought not operate to the farthest reach of their linguistic possibilities if that result would contravene the statutory design. Cf. Cowan v. Ernest Codelia, P. C., 149 F. Supp. 2d 67 (SDNY 2001) (rejecting an argument by defense counsel that obtaining from the DMV the home address of the assistant district attorney to send her a harassing letter was a permissible use “in connection with” the ongoing criminal proceeding under (b)(4)).
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 litigation permitted under (b)(4) is demonstrated: by the words of the statute itself; by formal rules issued by bar organizations and governing boards; and by state statutes and regulations that govern and direct attorneys with reference to their duties in litigation, to their clients, and to the public. As this opinion explains in more detail, the statute itself, in (b)(12), treats bulk solicitation absent consent as a discrete act that the statute prohibits. And the limited examples of permissible litigation purposes provided in (b)(4) are distinct from the ordinary commercial purpose of solicitation. Canons of ethics used by bar associations treat solicitation as a discrete act, an act subject to specific regulation. And state statutes, including statutes of the State of South Carolina, treat solicitation as a discrete subject for regulation and governance of the profession. It would contradict the idea that solicitation is defined conduct apart from litigation to treat it as simply another aspect of the litigation duties set out in (b)(4).
An attorney’s solicitation of new clients is distinct from other aspects of the legal profession. “It is no less true than trite that lawyers 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 who solicits a particular representation” may even “create special problems of conflict of interest.” Ohralik, supra, at 461, n. 19.
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 interpretive 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.” §2721(b)(4). These uses involve an attorney’s conduct when acting in the capacity as an officer of the court, not as a commercial actor. The listed examples are steps that ensure the integrity and efficiency of an existing or imminent legal proceeding. This may include contacting persons who are already involved in the litigation or who are necessary parties or witnesses. These steps are different from the ordinary business purpose of solicitation. Here, as will be the case for most solicitations, the attorneys acted without court authorization or supervision and cast a wide net, sending letters to over 30,000 car purchasers to let them know the attorneys’ names and the attorneys’ interest in performing legal services for them.
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 complaint, a theory sufficient to avoid sanctions for filing a frivolous lawsuit, or to locate witnesses for deposition or trial testimony. An interpretation of “investigation” to include commercial solicitation of new clients would expand the language in a way inconsistent with the limited uses given as examples in the statutory text. It must be noted also that the phrase “in anticipation of litigation” is not a standalone phrase. It modifies, and necessarily narrows, the word “investigation.” To use the phrase “in anticipation of litigation” without that qualification is to extend the meaning of the statute far beyond its text.
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 §2721(a)(2); §2725(4). The other three exceptions that permit access to highly restricted personal information include: use by the government, including law enforcement, see §2721(b)(1); use by an insurer in claim investigation and antifraud activities, see §2721(b)(6); and use by an employer to obtain or verify information as required by law, see §2721(b)(9). None of these exceptions are written to authorize private individuals to acquire the most restricted personal information in bulk merely to propose a commercial transaction for their own financial benefit. If (b)(4) permitted access to highly restricted personal information for an attorney’s own commercial ends with- out governmental authorization or without consent of the holder of the driver’s license, the result would be so sig- nificant a departure from these other exceptions that it counsels against adopting this interpretation of the statute.
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.
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 an 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 guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy’ ” (quoting United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849))). The “in connection with” language of (b)(4) therefore must be construed within the context of the DPPA as a whole, including its other exceptions.
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 include 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 DPPA—to restrict disclosure of personal information contained in motor vehicle records to businesses for the purpose of direct marketing and solicitation. The DPPA was enacted in part to respond to the States’ common practice of selling personal information to businesses that used it for marketing and solicitations. See Condon, 528 U. S., at 143 (“Congress found that many States . . . sell this personal information to individuals and businesses”); id., at 148 (“The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations”). Congress chose to protect individual privacy by requiring a state DMV to obtain the license holder’s express consent before permitting the disclosure, acquisition, and use of personal information for bulk solicitation. The importance of the consent requirement is highlighted by Congress’ decision in 1999 to change the statutory mechanism that allowed individuals protected by the Act to opt out to one requiring them to opt in. See id., at 144–145; see also §§350(c)–(e), 113Stat. 1025.
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 DPPA’s (b)(5) exception illustrates this concern by permitting disclosure of personal information for use in research activities “so long as the personal information is not published, redisclosed, or used to contact individuals.” §2721(b)(5).
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 DPPA’s statutory design to interpret exceptions whose breadth and application are uncertain.
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 DPPA-protected personal information to solicit new clients. This and the other reasons given above lead to the conclusion that it would be incorrect to interpret the text of this exception to include an attorney’s commercial solicitation as a use “in connection with” litigation. And, unlike (b)(12), the (b)(4) exception does not require obtaining an individual’s express consent before disclosing and using personal information contained in state motor vehicle records. If the “in connection with” language of (b)(4) were read broadly to include solicitation, an attorney could acquire personal information from the state DMV to send bulk solicitations to prospective clients without their express consent. This would create significant tension in the DPPA between the litigation and solicitation exceptions. That inconsistency and the concomitant undermining of the statutory design are avoided by interpreting (b)(4) so it does not authorize the use of personal information for the purpose of soliciting clients. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory. . . . [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”).
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.” §2721(b)(6). If that phrase extended to solicitation, then personal information protected by the DPPA could be used to solicit new customers for underwriting without their consent. It is most doubtful that Congress intended to exempt insurers from the consent requirement for bulk solicitations.
The DPPA, in subsection (b)(10), permits disclosure and use of personal information “in connection with” the operation of private toll roads. If the phrase were interpreted to extend to all solicitations without consent, then the owner of a private toll road could send targeted mass advertisings or direct marketing letters by using the protected personal information obtained from state motor vehicle records. This, too, would take away much of the force and effect of the (b)(12) restriction on bulk solicitation without the express consent of the person contacted.
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 DPPA. As has been noted, (b)(12) prohibits disclosure of protected personal information for the purpose of sending bulk distribution of surveys without the express consent of the recipients. Subsection (b)(2), however, permits disclosure of personal information “[f]or use in connection with matters of . . . motor vehicle market research activities, including survey research.” §2721(b)(2). So what the DPPA prohibits in (b)(12) it explicitly allows in (b)(2), but it does so by repeating the same word, “survey,” in the text of both provisions. If the “in connection with” language alone were sufficient to include “surveys” within (b)(2), the phrase “survey research” would be mere surplusage. Instead, the explicit reference to “survey” in (b)(2) was necessary to make clear that Congress had created an exception to the (b)(12)’s consent requirement for one particular type of survey. When it comes to the prohibition on “solicitations” in (b)(12), however, that word is not repeated in the text of (b)(4). This leads to the inference that Congress did not intend (b)(4) to include “solicitations” and thus to override the express consent requirement of (b)(12).
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 DPPA-protected personal information to solicit persons to fill in as plaintiffs. Solicitation of new plaintiffs to keep defendants in a lawsuit that would otherwise be dismissed for lack of standing is no different in substance from solicitation to initiate a lawsuit. Here, at any rate, the state court found that plaintiffs had standing to sue the dealerships from which they had purchased automobiles and any alleged co-conspirators. See 675 F. 3d, at 287, n. 3. This can undermine the argument that solicitation of additional plaintiffs was somehow necessary for the lawsuit to continue.
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 DPPA supports this distinction. If solicitation were deemed a permissible purpose under (b)(4), even when limited to a particular lawsuit, tension would remain between the (b)(12) solicitation exception, which requires express consent, and the (b)(4) litigation exception, which does not. The two statutory provisions are consistent if solicitation is excluded from the activity permitted in (b)(4).
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 DPPA for this purpose. Petitioners and other state residents have no real choice but to disclose their personal information to the state DMV, including highly restricted personal information. The use of that information by private actors to send direct commercial solicitations without the license holder’s consent is a substantial intrusion on the individual privacy the Act protects. For the reasons already discussed, a proper interpretation of a use “in connection with” litigation under (b)(4) in light of the DPPA’s text and structure does not include solicitation.
The fact that an attorney complies with state bar rules governing solicitations also does not resolve whether he is entitled to access the state DMV database for that purpose under the DPPA. There is no provision of South Carolina law that either permits or requires attorneys to use DPPA-protected information to solicit potential clients. Even if such a provision existed, under the Supremacy Clause, it would not protect respondents from DPPA liability unless their conduct fell within one of the Act’s exceptions.
A person is liable under the DPPA if he “knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted” by one of the statutory exceptions. §2724(a). In determining whether obtaining, using, or disclosing the personal information is for the prohibited purpose of solicitation, the proper inquiry is whether the defendant had the predominant purpose to solicit. Because, in some cases, a communication sent with DPPA-protected information may serve more than one objective, a court must discern whether solicitation is its predominant purpose. That purpose might be evident from the communication itself. In other instances the defendant’s whole course of conduct will be relevant in determining whether solicitation was the predominant purpose of the act alleged to be wrongful.
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 DPPA liability. Subsequent conduct, in some cases, may show that solicitation in fact was the predominant purpose of an earlier act; and, of course, even if an initial request was proper, a later use may be a violation. Where a reason- able observer could discern that the predominant purpose of obtaining, using, or disclosing protected personal information was to initiate or propose a business trans- action with a prospective client, (b)(4) does not exempt the solicitation.
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 DPPA-protected information. To the extent the solicitation of plaintiffs can help attorneys bring a larger class action, there are alternatives that do not sacrifice an individual’s privacy in his or her motor vehicle records. An attorney, pursuant to a court order, could send class notice. Class notice may prompt a class member to join the lawsuit, but it also serves the important purpose of protecting the rights of absent class members and ensures that any decision will be binding on the class. Class notice sent on the instruction of the court also does not raise the same concerns that attorneys are acting only in their own commercial interest. But respondents here did not obtain or use the protected personal information to send class no- tices or comply with a court order. The letters made no mention of ethical obligations to outstanding group members or the consequences of not joining the suit. As the Court of Appeals noted, respondents “failed to indicate to recipients that they may already be de facto clients of the Lawyers, that is, persons whose interests were already protected by the senders.” 675 F. 3d, at 293. Had respondents received a court order, they might have been able to rely on the explicit language in (b)(4) permitting uses of information “pursuant to an order of a Federal, State, or local court.” §2721(b)(4). But because respondents had no court order authorizing their conduct, this opinion need not address whether it would be proper for a court to order attorneys to obtain DPPA-protected personal information to solicit plaintiffs.
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 DPPA’s waiver procedure. See §2721(d).
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 DPPA-protected personal information for a proper investigatory purpose. Where respondents obtained petitioners’ personal information to discern the extent of the alleged misconduct or identify particular defendants, those FOIA requests appear permissible under (b)(4) as “investigation in anticipation of litigation.” Solicitation of new business, however, is not “investigation” within the meaning of (b)(4). And acquiring petitioners’ personal information for a legitimate investigatory purpose does not entitle respondents to then use that same information to send direct solicitations. Each distinct disclosure or use of personal information acquired from a state DMV must be permitted by the DPPA. See §2724(a) (“A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains”); see also §2721(c). If the statute were to operate otherwise, obtaining personal information for one permissible use would entitle attorneys to use that same information at a later date for any other purpose. For example, a lawyer could obtain personal information to locate witnesses for a lawsuit and then use those same names and addresses later to send direct marketing letters about a book he wrote.
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 DPPA-protected personal information has the predominant purpose of solicitation, that use is not protected by (b)(4). A remand is necessary for application of the proper standard because the Court of Appeals could conclude, in light of the content of the communications, taken with other evidence in the record, that respondents’ letters had the predominant purpose to solicit clients.
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.
This case does not involve the statutory section imposing criminal liability, which is written in different terms than the civil remedies provision. See §2723(a) (“A person who knowingly violates this chapter shall be fined under this title”). As to civil liability, the amount of damages sought in the complaint is based on the number of persons, over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case.
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. ___, ___ (2010) (slip op., at 13) (citation and internal quotation marks omitted). But here, as discussed, the surrounding text and structure of the DPPA resolve any ambiguity in phrases “in connection with” and “investigation in anticipation of litigation” in (b)(4). Only where “the language or history of [the statute] is uncertain” after looking to “the particular statutory language, . . . the design of the statute as a whole and to its object and policy,” does the rule of lenity serve to give further guidance. Crandon v. United States, 494 U. S. 152, 158 (1990) . “The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” See Callanan v. United States, 364 U. S. 587, 596 (1961) . There is no room for the rule of lenity where the text and structure of the DPPA require an interpretation of (b)(4) that does not reach out to include an attorney’s solicitation of clients.
Solicitation of prospective clients is not a permissible use “in connection with” litigation or “investigation in anticipation of litigation” under (b)(4) of the DPPA. As a result, the Court of Appeals erred in granting respondents summary judgment without first determining whether the communications had the predominant purpose of solicitation. And since the solicited persons did not give express consent to the disclosure or use of their personal information for this purpose, the (b)(12) exception does not apply.
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.
Further proceedings also may be required to determine whether the initial act of obtaining petitioners’ personal information was permitted under the DPPA. The Court of Appeals and the District Court seem to have agreed that the first two FOIA requests were made in order for respondents to decide whether to file the MDDA lawsuit as a group action and to identify the highest volume dealers. App. 39a. If, in light of this opinion, the courts on remand adhere to the determination that the first two FOIA requests were exempt under (b)(4), the later uses and dis- closures of that information, nevertheless, may be independ- ent violations of the DPPA.
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 DPPA. Assuming violations of the DPPA are established, questions regarding the calculation and assessment of damages then can be considered.
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 consider, must be for further proceedings on remand.
This Court now holds that sending communications for the predominant purpose of solicitation is not a use of personal information exempt from DPPA liability under (b)(4).
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.