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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–25
_________________
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.
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.” 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.
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 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).
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 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.
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.” §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.”
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 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).
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 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.
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 §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.
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 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”).
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.” §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).
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
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.
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 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.
V
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.
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 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.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–25
_________________
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.
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 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”).
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).
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.
A
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).
B
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.
III
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.
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- ated in §2721(b)(4), I would affirm the Fourth
Circuit’s judgment.