Marcy Johnson v. West Publishing Corporation

Filing 2

PETITION for Permission to Appeal pursuant to 28 U.S.C. Section 1292(b). filed by Petitioner West Publishing Corporation w/service 08/29/2011 [3825034] [11-8020] (JMH)

TlbA·

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

MARCY A. JOHNSON,
individually and on behalf of others
similarly situated,

)
)
)
)
)
)

Plaintiff,

v.

Case No. 2:10-CV-04027-NKL

)

)
)
)
)

WEST PUBLISHING CORP.,
Defendant.

ORDER
This case concerns the sale by various states of their driver's license databases to
Defendant West Publishing Corp. ("West"), which then disseminates the personal
infonnation to third parties. The first question presented is whether the Driver's Privacy
Protection Act ("DPPA") pennits a reseller to obtain driver's license infonnation from a state
when its sole purpose is to resell the information to third parties. The second question
presented is whether a reseller can disclose the entire database to a business or individual
having only a potential future use for some of the infonnation sold, so long as there is no

evidence ofspecific misuse, such as identity theft or stalking. The majority ofcourts which
have decided these questions have concluded that the DPPA permits the practices. The Court
disagrees.
I.

The Driver's Privacy Protection Act

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In 1994, Congress enacted the DPPA to protect the privacy of drivers. The DPPA
makes it generally "unlawful for any person knowingly to obtain or disclose personal
infonnation, from a motor vehicle record, for any use not pennitted under section 2721 (b)
ofthis title." 18 U.S.C. § 2722(a). Section 272 I (b) is the first oftwo sections central to this
case. It lists the fourteen permissible uses that are exceptions to the general rule prohibiting
obtainment and disclosure of drivers' personal information. Those uses are:
For use by any government agency, including any comt or law enforcement
agency, in carrying out its functions, or any private person or entity acting on behalf
of a Federal, State, or local agency in carrying out its functions.
(1)

For use in connection with matters ofmotor vehicle or driver safety and theft;
motor vehicle emissions; motor vehicle product alterations, recalls, or advisories;
performance monitoring of motor vehicles, motor vehicle parts and dealers; motor
vehicle market research activities. including survey research; and removal of nonowner records from the original owner records ofmotor vehicle manufacturers.
(2)

For use in the normal course ofbusiness by a legitimate business or its
agents, employees, or contractors, but only-

(3)

(A) to verifY the accuracy of personal information submitted by the
individual to the business or its agents, employees, or contractors; and

ifsuch information as so submitted is not correct or is no longer
correct, to obtain the correct information, but only for the purposes of
preventing fraud by, pmsuing legal remedies against, or recovering on
a debt or security interest against, the individual.
(B)

For use in cormection with any civil, criminal, administrative, or arbitral
proceeding in any Federal, State, or local court or agency or before any selfregulatory body, including the service of process, investigation in anticipation of
litigation, and the execution or enforcement ofjudgments and orders, or PUISuant to
an order of a Federal, State, or local court.
(4)

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(5)
For use in research activities, and for use in producing statistical
reports, so long as the personal information is not published, redisclosed, or
used to contact individuals.
For use by any insurer or insurance support organization, or by a self-insured
entity, or its agents, employees, or contractors, in connection with claims investigation
activities, antifraud activities, rating or lUlderwriting.
(6)

(7)

For use in providing notice to the owners oftowed or impoWlded vehicles.

For use by any licensed private investigative agency or licensed security
service for any purpose permitted under this subsection.

(8)

(9) For use by an employer or its agent or insurer to obtain or verify information
relating to a holder ofa commercial driver's license that is required Wlder chapter 313
oftitle 49.
(10)

Foruse in connection with the operation ofprivate toll transportation facilities.

(11) For any other use in response to requests for individual motor vebic:::le records
if the State has obtained the express consent of the person to whom such personal
information pertains.
(12) For bulk distribution for surveys, marketing or solicitations if the State has
obtained the express consent of the person to whom such personal infonnation

pertains.
(13) For use by any requester, if the requester demonstrates it has obtained
the written consent of the individual to whom the information pertains.

(14) For any other use specifically authorized under the law ofthe State that holds
the record, if such use is related to the operation of a motor vehicle or public safety.
18 U.S.C. § 2721(b).'

I Section 2721 (a)(2) creates an even higher level of protection for "highly restricted
personal information" - defined as ""an individual's photograph or image, social security number,
medical or disability information" - which may be obtained or disclosed only with the consent of
the, individual or pursuant to the limited "uses permitted in subsections (b)(l), (b)(4), (b)(6), and

(b)(9)." 18 U.S.C. §§ 272 1(a)(2), 2725(4).

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Page 3 of 38

The second section in dispute provides that an "authorized recipient" may resell
driver's license information under certain limited circumstances:
(c) Resale or redisclosme. - An authorized recipient of personal
infonnation (except a recipient under subsection (b)(ll) or (12» may resell
or redisclose the information only for a use permitted undet subsection (b)
(but not for uses under subsection (b)(ll) or (12». An authorized recipient
under subsection (b)(11) may resell or redisclose personal information for
any purpose. An authorized recipient under (b)(12) may resell or redisclose
personal information pursuant to subsection (b)(12). Any authorized
recipient (except a recipient under (b)(11» that resells or rediscloses
personal information covered by this chapter must keep for a period of 5
years records identifying each person or entity that receives information and
the pennitted purpose for which the information will be used and must
make such records available to the motor vehicle department upon request.
18 U.S.C. § 272 I (c).

The majority of courts reading these sections have concluded that they permit
wholesale resellers to obtain in bulk every driver's personal infonnation so long as there
is no evidence of specific misuse. See, e.g., Taylor v. Acxiom Corp., 612 F.3d 325 (5th
Cir. 2010). In other words, a reseUer is not limited to obtaining personal infonnatioD only
for a specific customer qualified to use it by the DPPA, nor need the reseUer itself have a
right to the information under one ofthe fourteen exceptions to the OPPA'5 rule of

nondisclosure. In addition, the information can be sold in bulk to purchasers, even
though the purchaser is only authorized under the DPPA to receive one piece of
information. For example, according to the reasoning of Taylor and the majority of
courts, since the DPPA pennits driver's license information to be disclosed "for use in
providing notice to the owners of towed or impounded vehicles," 18 U.S.C. § 2721 (b)(7),

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a Cabool, Missouri tow truck operator may obtain the entire license database, including
highly restricted personal information such as social security numbers, because one day
the tow truck operator might need a single piece of information from the database. The
majority of courts reason that so long as the private information is not actually used in a
"prohibited" manner there is no violation of the DPPA. Yet the DPPA never explicitly
lists any prohibited uses; rather, it generally prohibits all but the fourteen permissible uses
enwnerated in section 2721 (b).
Having reviewed the language of the DPPA anel its legislative history, the Court
concludes that Congress did not intend the DPPA to authorize this widespread
dissemination of private infonnation Wltethered from the very uses that Congress listed in
the DPPA.

ll.

Background

On February 19,2010, Plaintiff Marcy Johnson filed her Complaint [Doc. # 1],
which made the following allegations. Defendant West is a corporation specializing in
legal publishing, online infonnation delivery, and various other legal information
products. West has obtained, and continues to obtain, large databases of motor vehicle
records containing personal information from each of the following states: Alabama,
Alaska, Colorado, Connecticut, Florida, Idaho, illinois, Iowa, Kentucky, Louisiana,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Mexico, New York, North Dakota, Ohio, Tennessee, Texas.
Utah, Wisconsin. Wyoming, and the District of Columbia (the "States~·).
5

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The infonnation databases 09tained by Defendant West from the States contained
"personal infonnation~' and "highly restricted personal information" - as defmed by the
Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 2721, et seq. - belonging to
millions oflicensed drivers, including Johnson and the putative class members.
Defendant made the information available for search and sale on the Internet via websites
that it controlled and operated. The personal information or highly restricted personal
information of Plaintiff and the putative class members was obtained and disseminated by
Defendant for purposes not permitted under the DPPA. Plaintiff has suffered damages as
a result ofDefendant's conduct.

Plaintiff Johnson's Complaint proposes the following class definition:
All individuals with a motor vehicle registration on flle in the States of
Alabama, Alaska, Colorado, Connecticut, Florida, Idaho, Dlinois, Iowa,
Kentucky, Louisiana, Main[e], Maryland, Massachusetts. Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Mexico, New York., North Dakota, Ohio, Tennessee, Texas, Utah,
Wisconsin, Wyoming and the District of Colwnbia, whose personal
information or highly restricted personal information, as defined by 18
U.S.C.§§ 2725(3) and (4), was obtained, disclosed, or sold by Defendant,
or any agent, officer, employee, or contractor of Defendant (the "Class").
The Class excludes Defendant's directors, officers, parent corporations,
subsidiaries, and affiliates.
[Doc. # 1 at' 15.]

The Complaint sets forth three Counts. Count I asserts a violation of the DPPA:
"Defendant knowingly obtained, disclosed, and/or sold Plaintiff's and the putative Class
members' personal information or highly restricted personal information, as defmed by
the DPPA, for a use or uses not permitted under the statute." [d. at" 29. COWlt I prays
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for damages.

CoWlt

n asserts a claim for unjust enrichment and seeks disgorgement

Finally, Count ill asserts a claim for injunctive relief, based on DPPA violations.
On May 11, 2010, the Comt granted Defendant West's Motion to Dismiss Count n

ofPlaintiff's Complaint. [Doc. # 22.] West's motion had been based primarily on this
Court's reasoning in another DPPA case, Wiles v. Southwestern Bell Tel. Co., No.
09-4236-CV~C~NKL

(W.D. Mo. Apr. 13,2010). [Doc. # 19, Ex.!.]

Defendant West now moves for a judgment on the pleadings.

m.

Judgment on the Pleadings Standard
When considering a motion for a judgment on the pleadings, the Court accepts as

true all facts pleaded by the nonmoving party and grants all reasonable inferences from
the pleadings in favor of the nonmovant. Poehl v. Countrywide Home Loans, Inc., 528
F.3d 1093, 1096 (8th Cir. 2008) (citing Syverson v. FirePond, Inc., 383 F.3d 745, 749
(8th Cir. 2004». A judgment on the pleadings is appropriate "where no material issue of

fact remains to be resolved and the movant is entitled to judgment as a matter of law." ld
(quoting Faibisch v. Univ. o/Minn., 304 F.3d 797,803 (8th Cir. 2002». The standard of
review for a Rule 12(c) motion is essentially the same as for Rule 12(b)(6). See Westcott

v. City ofOmaha, 901 F.2d 1486,1488 (8th Cir. 1990); Clemons v. Crawford, 585 F.3d
1119, 1124 (8th Cir. 2009). A complaint must plead "enough facts to state a claim to
reliefthat is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"[O]nce a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint." Id. at 563 (citation omitted).
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IV.

Statutory Construction Standard
Plaintiff Johnson argues that the DPPA must be liberally construed consistent with

its overriding purpose to protect drivers' privacy. Even though some comts have referred

to the DPPA as remedial, "[t]be mere fact that a statute is characterized as 'remedial' ...
is ofHnIe value in statutory construction unless the term 'remedial' has for this purpose a

more discriminate meaning» than simply providing legal remedies. 3 Norman J. Singer &

J.D. Shambie Singer, Statutes and Statutory Construction § 60:2, at 267 (7th ed. 2008)
[hereinafter Sutherland Statutory Construction]. For pwposes of statutory construction,
"[u]sually 'remedial' is used in connection with legislation which is not penal or criminal

in nature ...." [d. at 268. Within the DPPA, section 2723(a) provides for the possibility
ofa "Criminal fine." 18 U.S.C. § 2723(a).
On the other hand, the mere fact that one of the DPPA's possible enforcement

mechanisms is a criminal fine does not trigger a lenient interpretation. Even for statutes
that are entirely penal in nature:
In most respects, the interpretation of penal laws does not differ from the
construction of other statutes. The standard of decision is either the intent

of the legislature or what the statute means to others, and the determination
of such relies on other canons of statutory construction. A court' s p~
objective is to ensure that the purpose ofthe legislature is accomplished.

Sutherland Statutory Construction, supra, § 59:8, at 226. As the Eighth Circuit has
explained: "[T]he rule that a penal statute is to be strictly construed in favor of persons
accused, is not violated by allowing the language ofthe statute to have its full meaning,
where that construction supports the policy and purposes of the enactment." Wilson v.
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United States, 77 F.2d 236 (8th Cir. 1935) (citations omitted); see also United States v.

R.L.C, 915 F.2d 320,325 (8th Cir. 1990) ("The role oflenity states that a court cannot
interpret a federal criminal statute so as to increase the penalty that it places on an
individual when such an interpretation can be based on no more than a guess as to what
Congress intended." (internal quotation and citation omitted)).
Because neither the remedial statute rule of liberal construction nor the criminal
law role of lenity apply to these circumstances, the Court declines to give either a liberal

construction or a lenient construction to the statute. Instead, the Court interprets the
DPPA in accordance with its plain language and legislative purpose. This "plain
meaning" or "plain language" rule of statutory interpretation ''requires examining the text

of the statute as a whole by considering its context, 'object, and policy. m Harmon Indus.,

Inc. v. Browner, 191 F.3d 894,899 (8th Cir. 1999)(quotingPeloftky v. Wallace, 102 F.3d
350,353 (8th Cir. 1996)). Resort to legislative history is appropriate when a statute is

ambiguous or to show that the plain reading of the text would be "demonstrably at odds
with the intentions of its drafters, and those intentions must be controlling." Owner-

Operator Indep. Drivers Ass 'n v. United Van Lines, LLC, 556 F.3d 690, 695 (8th eir.
2009) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,571 (1982).

V.

Plaintiff's Claim and West's Defenses
Plaintiff Johnson brings this class action under section 2724(a) of the DPPA: "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
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individual to whom the information pertains, who may bring a civil action in a United
States district court." 18 U.S.C. § 2724(a). Defendant West argues that (1) "obtainment
for the purpose of reselling infonnation for permissible uses does not violate the Act"
[Doc. # 31 at 11]; and (2) "[a]bsent an allegation of misuse by West or its customers," the
DPPA violation alleged in Plaintiff's Complaint is implausible because bulk sale of
personal information is permissible tmder the statute. [Doc. # 40 at 9.]
VI.

Is the Mere Purpose of "Reselling Information for Permissible Uses"
Sufficient to Authorize the Receipt of Personal Information under the DPPA?

Defendant's Motion for Judgment on the Pleadings is based primarily on West's
contention that this Court's reasoning in Roberts 1I. Source/or Public Data, 2008 WL
5234675 *1 (W.D. Mo. Dec. 12,2(08), should be reevaluated in light of the Fifth
Circuit's decision in Taylor v. Acxiom Corp., 612 F.3d 325 (5th eir. 2010). A<::cording to
West. in Roberts
this Court interpreted the DPPA as limiting those who may resell motor
vehicle information to only those who :first used the information themselves
for one ofthe fourteen pennitted uses. In other words, this Court construed
the phrase "authorized recipient" to mean "authorized user."
[Doc. # 31 at 2.]
The Comt cannot accept the premise ofDefendant's motion. In Roberts, this
Court did not intend to suggest that no personal information could be resold before it is
used. As Plaintiff Johnson notes, Roberts concluded that "it is clear from the context in

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section 2721(c) that an authorized recipient is one who has received the infonnation
pursuant to one of the 2721 (b) exceptions." Roberts, 2008 WL 5234675 at *3.
On this Motion for Judgment on the Pleadings, Defendant West does not argue that
it obtained states' driver's license database because it qualified under one of the fourteen
exceptions to the DPPA's default rule of nondisclosure. Instead, as a reseller, West relies
on section 2721(c) for its authority to obtain states' databases of personal infonnation.
1bat section states:
(c) Resale or redisc1osure. - An authorized recipient of personal
information (except a recipient under subsection (b)(11) or (12» may resell
or redisclose the infonnation only for a use permitted Wlder subsection (b)
(but not for uses under subsection (b)(11) or (12». An authorized recipient
under subsection (b)(11) may resell or redi:sclose personal infonnation for
any purpose. An authorized recipient under (b)(12) may resell or redisclose
personal information pursuant to subsection (bX12). Any authorized
recipient (except a recipient under (b)(11» that resells or recUscloses
personal infonnation covered by this chapter must keep for a period of 5
years records identifying each person or ,entity that receives information and
the pennitted purpose for which the information will be used and must
make such records available to the motor vehicle department upon request.
18 U.S.C. § 2721(c).
A.

The Plain Meaning of the Text

Based on the language of the DPPA, the Court concludes that Congress used the
term "authorized recipient" in section 2721 (c) to refer to those persons or entities that
obtained the information pursuant to one or more of the fourteen exceptions immediately
preceding the reference to "authorized recipient." Rather than writing "an individual or
entity obtaining personal infonnation for uses authorized by the preceding section,"
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Congress wrote "authorized recipienf' - not a particularly surprising shorthand in the
annals of statutory construction. This conclusion is grounded in the express language of

the DPPA as well as its legislative history.
First, sections 2721(a) and 2722(a) make nondisclosure of personal information
the default rule. See 18 U.S.C. § 2721 (a) ("In general" prohibiting discloswe of personal
infonnation "except as provided in subsection (b)"); 18 U.S.C. § 2722(a) ("It shall be
unlawful for any person knowingly to obtain or disclose personal infonnation ... for any
use not pennitted under section 2721 (b) of this title."). Section 2721(b) then lists
fourteen discrete exceptions to nondislo~. One would expect that if Congress had
intended to make a fifteenth exception to the nondisclosure rule, it would have mentioned
it while listing the exceptions to the rule of nondisclosme.

Second, the language of section 2721 (c) supports the CoW1' s conclusion.
According to that section, "[aJn authorized recipient ofpersonal infonnation (except a

recipient under subsection (b)(11) or (12» may resell or redisclose the information only
for a use pennitted tmder subsection (b-) (but not for uses under subsection (b)(ll) or
(12». An authorized recipient under (b)(ll) may resell or redisclose personal
infonnation for any purpose. An authorized recipient under section (b)(12) may resell or
rediscJose personal information pursuant to subsection (b)(12)." 18 U.S.C. § 2121(c).
In each sentence of section 2721 (c) Congress linked the term "authorized recipient" to the
specific section of 2721 (b), that had authorized the release ofthe infonnation to the
recipient. The only explanation for this is that Congress intended authorized recipients to
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be individuals OT entities, OT their agents, qualified to receive the infonnation by the tenDs
of section 2721 (b). To read section 2721 (c) otherwise wouM lead to the absurd result that
resellers could obtain all ofthe personal information in the database simply by calling
themselves reseUers, while everyone else - including law enforcement - would have to
justify their receipt ofpersonal information lIDder the 2721 (b) exception applicable to
them.
Similarly, as discussed further below, Defendant West's interpretation produces
the absurd result of reseUers having far greater latitude to obtain and disclose information
than do persons who obtain infonnation under section 2721 (b)(12) for bulk distribution of

commercial surveys and solicitations. Section 2721(b)(12) is the only DPPA exception
which makes reference to ''bulk. distribution," and it requires that individuals opt in by
providing their express consent to such bulk release for marketing and solicitation.
Because the release is dependent on the person's consent, section 2721(c) does not permit
the resale ofthis inf.onnation for any purpose except marketing and solicitation. See 18
U.S.C. § 272I(c) ("An authorized recipient under section (b)(12) may resell or redisclose
personal information [only] pursuant to subsection (b)(12)."). Thus, according to the
plain language ofsection 2721 (c), a law enforcement agency cannot obtain personal
infonnation which was obtained in bulk based on the owner's express consent under
(b)(12), even though law enforcement agencies are authorized recipients under section
2721 (b)(l). This is because Congress was being careful to limit resale to the exact
purpose that the Missouri citizen had consented to. But under West's interpretation, a
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reseUer need not qualify under anyone of section 2721(b)'s exceptions and thus is not
limited by any of these 2721(c) restrictions. It makes no sense to give such latitude to
resellers and simultaneously restrict 2721 (b)(l2) recipients.
Given the strict linkage between the method of obtainment and the restrictions on
resale, Congress could not have intended to create a gaping hole in the statute for reseUers
by authorizing them to obtain the entire driver's license database simply by identifying
themselves as a reseller. At a minimum, if Congress sought to create a separate exception
for reseUers, it would have at least mentioned "resellers" and added a qualifying adjective
such as "legitimate," as it did with respect to business use ofpersonal information. 18
U.S.C. § 272 I(bX3) (personal information may be disclosed "[f]or use in the normal
course of business by a legitimate business" (emphasis added). In fact, given that
wholesale resellers are businesses which sell information, Congress could easily have
added a subsection (C) to 18 U.S.C. § 272 1(b)(3) to pennit such businesses to obtain
DMV records for resale. It did not. Instead, all ofthe language ofthe statute, as well as
the absence of any reference to wholesale resellers, shows that Congress did not intend
for those reseUers to have uniquely lmfettered access to DMV records.

B.

The Legislative History

Even assuming that the text leaves any ambiguity regarding the limitations placed
on "authorized recipients," the DPPA's legislative history also supports the Court's
conclusion. According to the statement made by Congressman James P. Moran, the
DPPA's sponsor in the House of Representatives:
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Careful consideration was given to the common uses now made ofthis
infonnation and great efforts were made to ensure that those uses were
allowed under this bill. Among those who will continue to have unfettered
access are federal and state governments and their contractors, for use in
auto recalls, by businesses (such as an insurance company) to verifY the
accuracy ofpersonal information submitted by a licensee, for use in any
civil or criminal proceeding, in research activities, and in marketing
activities as long as the individual has been given the opportunity to opt
oue

Protecting Driver Privacy: Hearings On H.R. 3365 Before the Subcomm. on Civil and
Constitutional Rights ofthe House Comm. on the Judiciary, 103d Cong., 2d Sess., 1994

WI.. 212698 (Feb. 3, 1994) [hereinafter Statement ofRep. Moran]. There is no mention
here of the need for reseUers to obtain drivers' personal information. Instead, the
Congressman referred exclusively to the permissible uses listed in section 2721 (b).
In the same statement, Congressman Moran focused primarily on 'ihe need for

individuals to have some control over how personal information about them is used." ld.
He explained that the DPPA "prohibit[sJ" the disclosure ofpersonal information "about a
licensee unless there is a specific, approved reason for doing so." Id (emphasis added).
Congressman Moran concluded his statement by asserting that "privacy is ... a basic
human right to which every person is entitled." Id. As this peroration suggests, while the
DPPA strikes a balance with legitimate business and govenunental concerns through the

Z As Tay/or explains. "[t]be 'opt out' provisions of the original legislation with respect
to bulk distribution" under subsection (b)(12) "were changed to the 'opt in' provisions now in §
2721(b)(1l) and (12) by the October 1999 amendments to the DPPA." 612 F.3d at 337 n.tO
(citing Pub. L. No. 106-69, 113 Stat 986 (Oct. 9, 1999». This amendment was clearly intended
to provide even greater protection for drivers' privacy.

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exceptions enumerated in section 2721 (b), the overriding pmpo.se of the statute is plain by
its title: The Driver's Privacy Protection Act. It would be inconsistent with this purpose
to pennit wholesale resellers to obtain all of the personal information that Congress
sought to shield simply because they planned to resell it in the open market.

C.

Counterarguments in Taylor and ChoicePoint

Critics of the Court's interpretation have asked ''why Congress would .require
reseUers to actually use the records before reselling the records." Taylor, 612 F.3d at
338. But that question is of no relevance here. Congress did not require that the

information had to be used before it was resold - nor did this Court intend to suggest that
no information could be resold before it was used. See Roberts, 2008 WL 5234675 at *3
(rejecting the "conten[tion] that section 2721(c) of the DPPA allows for re-sale or redisclosure of personal information by a business entity, no matter the purpose for which
that entity obtained the infonnation"). Indeed, the Court's interpretation in Roberts never
precluded a true agent from obtaining information for the purpose offacilimting its
customer's permissible use and never held that an authorized recipient must use the
information before reselling it.
The more relevant question is why Congress would limit resale to persons or
entities that had obtained the information pursuant to one of the fourteen specific
pennissible uses. The answer is not surprising. Congress, like its constituents, feared that
private infonnation widely circulated in vast databases would be intentionally or

inadvertently leaked, and there would be no practical way to identify the source of the
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leak. Nor would there be a viable way to know whether WlScrupulous individuals within
recipient organizations were secretly trolling through drivers' personal information to
learn about a neighbor or ex-girlfriend. Indeed, the DPPA's House sponsor recognized
that the advent of computer technology made it increasingly difficult to control
information: "Computers have enabled individuals with a click of a button to pull up a

DMV record ... [which) makes it more important that safeguards are in place to protect
personal infonnation." Statement ofRep. Moran, supra. By limiting the release of
infonnation to persons or entities with specific pennissible purposes, the DPPA also
limits the numbers ofpersons with access to personal information and maintains the
balance between privacy and the societal needs expressed in the fourteen exceptions.
lbis reasoning does not read the provision on resale out of existence, but it does prevent
wholesale retailers' access to DMV databases containing every driver's private
information, a result that is consistent with the language and structure of the legislation as
well as its legislative history.
With respect to its interpretation of"authorized recipient," Taylor relied on Russell
v. ChoicePotnt Services, Inc., 300 F. Supp. 2d 450 (E.D. La. 2004). See Taylor, 612 F.3d
at 338 (noting ChoicePoint's "careful analysis of 'authorized recipient"'). The

ChoicePoint opinion concluded that "authorized recipient" in section 2721(c) of the
DPPA refers to anyone authorized by a state DMV to purchase personal information from

it. Choice Point, 300 F. Supp. 2d at 457. The judge reasoned that dictionaries commonly

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define the tenn "authorize" as a grant of authority - e.g., by a state or municipal agency and
[i]t is doubtful that Congress employed the term "authorized" to refer to the
DPPA directly sanctioning a recipient because the Act otherwise speaks in
terms of "use" rather than"user" and provides no process or guidelines for
authorization. More likely, Congress intended to leave the recipieru
authorization process to the states.

Id. at 456 (emphasis added).
ChoicePoint also relies on legislative history to support its conclusion. By its
logic, because Congress was aware that states sold driver's license information to
resellers and wanted to "strike 'a critical balance between legitimate govenunental and
business needs for this information and the fundamental right of our people to privacy and
safety'," Congress must have intended to permit states to decide which recipients should

obtain the information. Id. at 456 (citing 139 Congo Rec. § 15, 763 (1993». Hence, all
those selected by the state to purchase personal information from it automatically become
"authorized recipients" under section 2721 (c) of the DPPA.
There are several problems with the analysis and conclusions in the ChoicePoint
opinion First, while stating that it relies on the plain language ofthe DPPA, ChoicePoint
does not discuss the language of section 2721 (c) that categorizes authorized recipients
based on the subsection of 2721 (b) "under" which the information is obtained. Section
2721(c)'s multiple references to section 272 I(b) cannot be ignored. As previously
explained. section 2721(c)'s careful treatment of(bXll) and (b)(12) is inconsistent with
the notion that Congress intended to give more latitude to wholesale resellers than to
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entities obtaining information under an enwnerated permissible use in section 2721(b).
Moreover, ChoicePoint's statement that the DPPA provides "no process or guidelines for
authorization," id. at 456, is contrary to the express language in section 2721(b) listing
fourteen exceptions to the general rule that drivers' personal information may not be
sold.
It strains credulity even further to suggest that, in enacting federal legislation to
limit the states' sales of their drivers' personal information, Congress delegated to the
states the power to authorize any business to purchase from them and resell entire DMV
databases (provided the reseUers' customers check a box promising to comply with the
DPPA). After all, the DPPA begins with the general prohibition: "A State department of
motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly
disclose or otherwise make available to any person or entity ... personal information ...
except as provided in subsection (b) ofthis section." 18 U.S.C. § 2721(a). The Supreme
Court's Reno v. Condon decision has become part of the Constitutional Law canon,
teaching law students that the Tenth Amendment is no bar to federal regulation of states'

sales of drivers' personal infonnation. Reno v. Condon, 528 U.S. 141, 143 (2000)
("hold[ing] that in enacting this statute Congress did not run afoul of the federalism
principles"). Yet ChoicePoint now suggests that Congress intended to delegate such
regulation o/the states to the states - the very sellers of drivers' personal information that
Congress saw fit to restrict. ChoicePoint, 300 F. Supp. 2d at 456 ("Congress intended to
leave the recipient authorization process to the states.").
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Finally, the ChoicePoint opinion observes that in other consumer protection
statutes Congress limited the distribution of information to specific persons (such as "a
law enforcement agency" or "consumer" or "any person") and Congress did not do so in
the DPPA. Therefore, in the DPPA Congress must not have been concerned with who

gets the information; Congress was only concerned with misuse of the information.
In fact, in the DPPA Congress did authorize specific types of persons to receive

the information just as it did in the consumer statutes relied on by ChoicePoint. See,

e.g.,18 U.S.C. § 2721(b)(6) (insurance companies), (b)(l) (government agencies or law
enforcement), (b)(3) (legitimate businesses), (b)(8) (private investigation agencies). But,
because the DPPA is quite detailed and many types of entities or persons could qualify
under some of the exceptions, it was not practical to list them all. See, e.g., 18 U.S.C. §§
272 1(b)(7) (for use in providing notice to owners oftowed vehicles); 2721(b)(4) (for use

in connection with any civil or criminal proceeding). It does not follow from this
linguistic strocn.rre that Congress intended that anyone could obtain every driver's
personal information so long as they did not misuse it Otherwise. Congress could have
written a shorter statute prohibiting only the use of personal information (except for the
fourteen permissible uses), and there would have been no need to prohibit obtaimnent and
disclosure as well. See 18 U.S.C. § 2724(a) ("A person who knowingly obtains, disckJses
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."
(emphasis added». Under such an alternative DPPA. when someone used a driver's
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personal information to stalk and kill them, the killer would face a penalty under the
DPPA - no doubt an ineffective deterrent. In reality, rather than just attempting to deter
stalkers by providing for their civil and criminal liability after the fact, Congress restricted
the free flow ofprivate information to prevent it from leaking out in the first place.

In summarY, the Court interprets "authorized recipient" as any individual or entity,
or their agent, that obtains personal infonnation from DMV records for one of the
pennissible uses under section 2721 (b). This reading of section 2721(c) is supported by
dicta in ReM Y. Condon. After listing section 2721(b)'s fomteen pennissible purposes,
Chief Justice Rehnquist equated aUthorized recipients under section 2721 (c) with "private
persons who have obtained drivers' personal information for one of the aforementioned
permissible PUIposes to further disclose that information for anyone ofthose purposes."

Reno Y. Condon, 528 U.S. at 146 (citing 18 U.S.C. § 2721(c»). This is also the most
logical conclusion based on the language of the DPPA, the pmpose of the statute, the
legislative history, and common sense. The DPPA does not delegate to the states the
decision ofwho is an "authorized recipient" as that term is used in the DPPA.
The Taylor court - apparently recognizing the problems with the reasoning in

ChoicePoint - cites it approvingly without delving into the details of its analysis, adding
only: "An authorized recipient would be under 'subsection (b)(12).' for example, if the

state gives him the data for the purpose ofreselling it to a person who uses it for
marketing in conformity with (b)(12)." Taylor, 612 F.3d at 339 (emphasis added).

Taylor seems to reason that because the state could disclose personal information
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pursuant to one of the DPPA exceptions, Congress cross-referalCed 272 1(b) in every
sentence of 2721 (c) merely to suggest to the states that they might consider 2721 (b) in
deciding whether to designate under which 2721 (b) exception the information was being
given. The Cowt sees no other way to reconcile Tay/or's reliance on ChoicePoint with
the ambiguous explanation quoted above. However, this opaque construction of section
2721(c) means that Congress was only making suggestions to the states about how to
disclose the infonnatjon, an interpretation that is at odds with normal congressional
behavior and the purpose of th DPPA. Regardless, it is simply illogical that Congress
intended to delegate to the states the right to decide who could pW"chase the DMV
records, since the DPPA was passed specificallY to restrict the states' sales of those DMV

records.
For the reasons stated above, Defendant West's:first argument fails. West is not an
authorized recipient as a matter oflaw based on its mere purported "purpose ofreselling
information for permissible uses." [Doc. # 31 at 11.]

VII. Are Bulk Sales Generally Permissible under the DPPA?
Even if Defendant West qualified as an authorized recipient, "[a]n authorized
recipient ofpersonal information ... may resell or redisclose the information onlyfor a

use permitted under subsection (b)" of the DPPA. 18 U.S.C. § 2721{c) (emphasis added).
Yet Defendant argues that l'[a]bsent an allegation of misuse by West or its customers,"
the DPPA violation alleged in Plaintiffs Complaint is implausible because bulk sale of

personal information is generally pennissible under the statute. [Doc. # 40 at 9.] West

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w

maintains: "That Congress did not intend to stop the practice of data aggregation and
resale for permitted uses is confirmed by the fact that a number of the permissible uses
expressly identified in the DPPA contemplate bulk obtainment." [Doc. # 31 at 12 n.8,
citing 18 U.S.C. § 2721(b) (2),. (5); Taylor, 612 F.3d at 335-36.] An analysis of the text,
structure, and legislative history of the DPPA again refutes Wesfs argument.
A.

Textual Analysis of Section 2721(b)

Although acknowledging the ambiguity of section 2721(b), Taylor ultimately
concludes that "Congress intended bulk distribution." Taylor, 612 F.3d at 336; see also
Laura S. Underkuffler, Judicial Takings: A Medley ofMisoonceptions, 61 Syracuse L.

Rev. 203,209-10 (2010) ("A state's bulk sale of individuals' driver's license data to third
parties, and the resale of that data to other parties, was upheld by an appellate court
despite what appeared to be clear statutory law to the contrary." (citing Taylor, 612 F.3d
at 340). According to Taylor, bulk sales ofpersonal infonnation are permitted by the

DPPA as long as the recipient "does not actually use, or intend to use, any of the
information in a manner prohibited by section 2721(b) ....n Taylor, 612 F.3d at 337.
DMV records can always be sold in bulk even if the reseUer's customer has no existing
permissible use under section 2721 (b). Again, the Comt must disagree.

Taylor correctly notes that only subsection (b)(l I) explicitly refers to "individual
motor vehicle records" and only (b)(12) explicitly refers to "bulk distribution"; for "the
remaining twelve permissible uses, the statute seems to have more than one reasonable
interpretation: individual release, bulk release, or both." Id. at 335. Taylor reasons that it
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would "not make sense that Congress would expressly limit states to individual
distribution with one pennissible use if Congress intended to limit all of the permissible
uses to individual distribution," and therefore concludes that Congress intended bulk

distribution. ld at 336.
In reaching this conclusion, Taylor fIrst misapplied the maxim of expressio unius
est exclusio alterius. Taylor applied its version ofthe rule: "Where Congress includes

particular language in one section of a statute but omits it in another section ofthe same
Act, it is generaUy preswned that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.'· Id (quotingArifv. Mukasey, 509 F.3d 677,681 (5th

Cir. 2007)). However, the expressio unius maxim - "the expression of one thing is the
exclusion of another" does not apply to every statutory listing or grouping. It has force only when
the items expressed are members of an associated group or series, justifYing
the inference that the items not mentioned were excluded by deliberate
choice.... [For example, a] statute which provides that a thing shall be
done in a certain way carries with it an implied prohibition against doing
that thing in any other way.
2A Sutherland Statutory Construction, supra, § 47:23, at 405-413. Moreover, "there

should be some evidence the legislature intended its (expressio unius) application lest it
prevail as a rule of construction despite the reason for and the spirit of the enactment"
Id. § 47:25, at 437 (internal quotation omitted).

The fact that only subsection (b)(ll) explicitly refers to "individual motor vehicle
records," only (b)(12) explicitly refers to "bulk distribution," and the twelve remaining

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subsections are silent on the manner of distribution does not justify Taylor's inference
that Congress could not have intended to generally limit the permissible uses to individual

distribution. One could more plausibly infer that Congress would not expressly pennit
states to distribute personal information in bulk for just one permissible use if Congress
intended to permit bulk distribution for all ofthe permissible uses. Such an interpretation
is far more consistent with the DPPA's primary purpose - to protect drivers' privacy.
Indeed, "[tJhe enumeration of exclusions from the operation of a statute indicates
that the statute should apply to all cases not specifically excluded." Id § 47:23, at 418.

As previously explained, the specific uses permitted under section 2721(b} are
emunerated exceptions to a general role banning the sale of drivers' personal information.

See 18 U.S.C. § 2721(a) ("In general" prohibiting disclosure of personal information
"except as provided in subsection (b)"). That general rule of nondiscloSl:U'e must be
applied to all uses not specifically excluded by section 2721 (b), and bulk distribution is
only specifically excluded in subsection (b)(12).
Even assuming that Congress did not intend to limit all of the permissible uses to
individual distribution, it does not follow that bulk distribution is always permissible
under the statute so long as the recipient "does not actually use, or intend to use, any of
the information in a manner prohibited by section 2721(b) ...." Taylor, 612 F.3d at 337.
Again, there is no listing of

"prohibited~' uses

under section 2721(b), which is entitled

"Permissible uses" and lists only exceptions to the general rule against disclosure. 18

U.S.C. § 2721(b). In fact, nowhere does the DPPA enumerate any "prohibited purposes"
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or "prohibited uses." Rather, the statute generally prohibits an but the fourteen
permissible uses enumerated in section 272 1(b). The title of the entire section 2721 is
"Prohibition on release and use of certain personal information from State motor vehicle
records" - again illustrating that prohibition is the general rule, not the exception as

Taylor would have it 18 U.S.C. § 2721.
The DPPA is not a model of statutory drafting, but if it means anything at all it is
this: A potential stalker cannot walk into a Missouri DMV to obtain every Missouri
driver's name, address, height, weight, eye color, driver's license number, and social
security number without a specific pennissible use under the DPPA. See Taylor, 612

F.3d at 336 (explaining that the immediate impetus for the DPPA was '~the murder of
actress Rebecca Schaeffer at the hands of a stalker"). It is not enough for him to smile,
nod, and promise to comply with the DPPA in the future. Rather, he must at least be able
to articulate a specific permissible use from among the closed universe ofpennissible
uses under section 2721(b), beyond which all uses are impennissible. If the same
standard is not applied to reseUers, then the DPPA does not prevent them from selling
everyone's personal infonnation on websites such as www.publicdata.com. so long as the
purchaser promises not to misuse it.
The DPPA creates a private right of action for "the individual" whose personal
information was knowingly obtained, disclosed, or used "for a purpose not permitted"
under section 2721(b). 18 U.S.c. § 2724(a). "It shall be unlawful for any person
knowingly to obtain or disclose personal infonnation ... for any use not permitted under

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section 2721(b) of this title." 18 U.S.C. § 2722(a) (emphasis added). And an "authorized
recipient ... may resell or redisclose the information only for a use permitted under
subsection (b) ...." 18 U.S.C. § 2721(c). Therefore, the sale of any individual's
personal infonnation - the quantum of data used throughout the statute - violates the
DPPA whenever it is not matched with an identifiable permitted use that is relevant to

''the individual to whom the information pertains." 18 U.S.C. § 2724(a).
B.

The Structure of Section 2721(b)

To inteIJll'et the DPPA, it is necessary to view each permissible use under section
2721 (b) in the context of all fourteen of those exceptions to the general role prohibiting

the obtainment, use, and disclosure of drivers' personal infonnation. As previously
discussed., those fourteen exceptions are:
(1) For use by any govenunent agency, including any court or law
enforcement agency, in carrying out its functions, or any private person or
entity acting on behalfof a Federal. State, or local agency in carrying out its
functions.

(2) For use in connection with matters of motor vehicle or driver safety and
theft; motor vehicle emissions; m.()tor vehicle product alterations, recalls, or
advisories; perfonnance monitoring ofmotor vehicles, motor vehicle parts and
dealers; motor vehicle market research activities, including survey research;
and removal of non-owner records from the original owner records ofmotor
vehicle manufacturers.
(3) For use in the normal course of business by a legitimate business or its
agents, employees, or contractors, but only-

(A) to verify the accuracy of personal information submitted by the

individual to the business or 'its agents, employees, or contractors; and
(B) if such infonnation as so submitted is not correct or is no longer
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correct, to obtain the correct informatioIlt but only for the purposes of
preventing fraud by, pursuing legal remedies against, or recovering on a
debt or security interest against, the individual.

(4) For use in connection with any civil, criminal, administrative, or arbitral
proceeding in any Federal, State, or local court or agency or before any selfregulatory body, including the service ofprocess, 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.
(5) For use in research activities, and for use in producing statistical reports,
so long as the personal iDformatieD is not published, redisclosed, or used to
contact individuals.

(6) For use by any insurer or insurance support organization, or by a selfinsured entity, or its agents, employees, or contractors, in connection with
claims investigation activities, antifraud activities, rating or underwriting.
(7) For use in providing notice to the owners oftowed or impounded vehicles.
(8) For use by any licensed private investigative agency or licensed security

service for any purpose pennitted under this subsection.
(9) For use by an employer or its agent or insurer to obtain or verify
information relating to a holder of a commercial driver's license that is
required under chapter 313 oftitle 49.
(10) For use in comeetion with the operation ofpnvate toll transportation

facilities.
(11) For any other use in response to requests for individual motor vehicle
records jf the State has obtained the express consent of the person to whom
such personal information pertains.
(12) 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.
(13) For use by any requester, if the requester demonstrates it has obtained the
written consent ofthe individual to whom the information pertains.

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(14) For any other use specifically authorized under the law ofthe State that
holds the record, if such use is related to the operation ofa motor vehicle or
public safety.

18 U.S.C. § 2721(b) (emphasis added).
The structure of section 2721(b) is relatively straightforward. SubseCtions (b)(1)
through (10) identify specific uses of personal informatiQn that are permissible under the
DPPA - e.g., 4'1:0 verify the accmacy ofpersonal information submitted by the individual
to the business ... and ... if such information as so submitted is not correct or is no
longer correct, to obtain the correct information ...." 18 U.S.C. § 2721(b)(3).
Subsections (b}(ll) through (14), however, provide for potentially less-restrictive
exceptions, therefore adding heightened requirements. Subsection (b)(ll) directly
follows the ten specific uses ofindividuals' DMV records, providing a catch-all exception
"[£]or any other use in response to requests for individual motor vehicle records," but
only with the individual's express consent. 18 U.S.C. § 2721(b)(l I}. Subsection (b)(13)
allows any "requester" to walk into a DMV to obtain an individual's personal
information, but only with the individual's written consent 18 U.S.C. § 2721(b)(13).
Subsection (b)(14) provides a catch-all exception "[£]or any other use specifically
authorized under the law ofthe State" and relating to motor vehicles or public safety. 18
U.S.C. § 2721(b)(14). The other potentially less-restrictive exception, subsection (b}(12),
allows bulk distribution for commercial purposes, but only with the individual's express
consent - indicative of the atypicality ofcommercial bulk distribution among the
pennissible puIpOses. 18 U.S.C. § 2721(b)(12).

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In fact, as previously discussed, two of these more open-ended exceptions with
heightened requirements, subsections (b)(ll) and (12), are singled out for special
treatment in section 2721(c). Most tellingly, "[a]n authorized recipient under (b)(12)"i.e., a recipient of the information of individuals who have expressly consented to bulk
distribution for surveys, marketing, or solicitations - "may resell or redisclose personal
information pursuant [only] to subsection (b)(12)." 18 U.S.C. § 2721 (c); see 2A

Sutherland Statutory Construetion l supra, § 47:23, at 398-404 ("As the [expressio unius]
maxim is applied to statutory interpretation, where a form of conduct, the manner of its
performance and operation, and persons and things to which it refers are designated, there
is an inference that all omissions should be understood as exclusions."). Unlike every
other permitted use of personal information, the information pertaining to an individual
who has expressly consented to bulk distribution may not be diverted for any other
permissible use, even those uses that would never have required the individual's express
consent. The only reason for such a provision is that Congress intended to limit
commercial bulk distribution, absent consent. The Supreme Cowt bas expressed a
"preference for avoiding surplusage constructions," Lamie v. United States Trustee, 540
U.S. 526,536 (2004), yet Taylor's interpretation of the DPPA would render mere
surplusage section 2721(c)'s cautious treatment of bulk distribution under (b)(12).
It should be noted that subsection (b)(5) may also envision bulk distribution, but
only for research purposes, and only "so long as the personal infonnation is not
published, redisclosed, or used to contact individuals." 18 U.S.C. § 2721(b)(5). Certain
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govenunent ftmctions or motor-vehic1e-related activities could also conceivably entail
bulk transfers. See 18 U.S.C. § 2721(b). However. in such cases, by defmition, all
drivers would fit within the identifiable permissible use at the moment of obtaimnent and
disclosure. Commercial bulk distribution would still be prohibited when based on the
mere possibility that an individual could fit within some pennissible use at some point in
the future.

C.

The Legislative History

To the extent that the DPPA text is ambiguous with respect to the bulk sales issue,
and in case the statute's title is not clear enough. the legislative history reveals the
overriding purpose of the DPPA: to protect drivers' privacy. Given such a purpose, the
interpretation most consistent with Congressional intent requires that disclosure of
personal information be narrowly tailored to a specific permissible purpose.
It is true, as Tay/or notes, that Congressman Moran stated:
Among those who will continue to have unfettered access are federal and
state governments and their contractors, for use in auto recalls, by
businesses (such as an insurance company) to verify the accuracy of
personal inf-onnation submitted by a licensee, for use in any civil or
criminal proceeding, in research activities, and in marketing activities as
long as the individual has been given the opportmri.ty to opt out. The bill
would allow DMVs to continue to sell DMV information in bulk as long as
every driver in that state had been given the opportunity to restrict the sale
oftheir name for marketingpwposes.

Statement ofRep. Moran, supra (emphasis added). Congressman Moran simply referred,
in order, to subsections (b)(l) (government agencies). (b)(2) (auto recalls), (b)(3)

(legitimate businesses to verify the accuracy of information submitted to it), (b){4) (civil
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or criminal proceedings), (b)(5) (tesearch activities), and (b)(l2) (bulk distribution for
marketing activities). See 18 U.S.C. § 2721(b).
In the same statement, Congressman Moran explained that the DPPA was "designed

to give individuals control over the release of their personal infoIDlation and give them
the opportunity to make choices as to whether this information is released, not just for
individual look-ups, but also for release in bulk." Statement ofRep. Moran, supra. He
even went so fax as to spell out the core values behind the DPPA:
The basic concept behind this legislation is the philosophy first coined by
Congressman Ed Markey: knowledge, notice, and no. Knowledge:
individuals should have knowledge of how personal information about them
will be used. Notice: they should have notice when personal infonnation
about them is sold/resold. No: they should have the right to object to those
uses/reuses.
Id
Taylor's interpretation of the DPPA turns the requirement ofa "specific, approved

reason" on its head, depriving individuals of"knowledge, notice, and no." Id First,
individuals would have little knowledge of how their personal information is used, as it
moves in bulk from the DMV toward internet clearinghouses such as
www.publicdata.com. Second, individuals would have no "notice when personal
infonnation about them is sold/resold." Id. And third, it is important to note that
individuals originally had to object to bulk sale oftheir personal information for
commercial pmposes under section 2721(b)(12). "The 'opt out' provisions ofthe original
legis-lation with respect to bulk distribution" was "changed to the 'opt in' provisions now

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in § 2721(b)(11) and (12) by the October 1999 amendments to the DPPA." Taylor, 612
F.3d at 337 n.1O (citing Pub. 1. No. 106-69, 113 Stat. 986 (Oct. 9, 1999)). In other
words, the DPPA originally put the burden on individuals to avail themselves of"[t]he
'opt out' provisions ... with respect to bulk distribution," but Congress later shifted that
burden to provide even greater privacy to drivers. Id. Drivers must now "opt in" to
(b)(12), which is the only reference to bulk distribution in the DPPA and is treated with

great care by section 2721 (c). Since Congress intended to allow individuals to object to
bulk distribution of their personal information by opting out (and it subsequently
strengthened privacy protection by allowing for commercial bulk distribution only when
individuals opt in), it is illogical to now claim that Congress always intended bulk
distribution for all exceptions listed in 2721 (b).
It is hard to imagine an interpretation ofthe DPPA less in keeping with

Congressional intent than one which allows bulk sales ofpersonal infonnation as the
default rule. In practice, Tayl-or's interpretation means that the vast majority of the

personal information sold is not put to an authorized use. It strikes no balance at all to
allow reseUers to disseminate in mass millions of drivers' personal information. Instead,
by focusing on "specific, approved reasons," Congress accommodated particular

commercial needs while preventing wholesale distribution ofpersonal information for
which there is only a hypothetical use. Statement. ofRep. Moran. supra.
Furthermore, while Congressman Moran in 1994 referred to the DPPA's exceptions
for legitimate "common uses now made of this infonnation," id., Taylor condones novel
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uses of personal information that could be facilitated by bulk distribution without the
individual's consent. While Congressman Moran warned that advances in computer
technology "make[ ) it more important that safeguards are in place to protect personal
information," id., Taylor argues:
At a checkout line at a grocery store or similar establishment, when a
customer wishes to pay by (or cash) a check, and presents a driver's license
as identification, it is obviously wholly impractical to require the merchant
for each such customer to submit a separate individual request to the state
motor vehicle department to verify the accuracy ofthe personal infonnation
submitted by 'the customer, under section 2721 (b)(3).

612 F.3d at 337. Thus, Taylor assumes that a business has the right to possess an
individual's personal information even iftbat individual never walks into its store; it also
apparently assumes that any employee working a cash register could access the personal
information of every driver in the state. In reality, when an individual pays by check or
credit card at the grocery store, the cashier rarely asks for identification. When they do,
the employee merely confirms that the names on the cards match and that the individual
resembles the photograph on the driver's license. For other transactions - e.g., purchasing
an automobile or applying for a credit card - a business would have time to avail itself of

subsection 2721(b)(3) to verify the identity of an individual.
Such a process of matching individuals to specific permissible uses should not
"'flood the state department with more requests than it could possibly handle." ld. at 337.

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1bis empirical claim - offered as evidence of Congressional intent - simply has not been
proven. Discovery may shed some light on various states' policies with respect to the

manner ofdisclosure of personal information.
Taylor also warned: "Ninety thousand [credit card] applications are processed
daily. That alone may be 90,000 requests that a state would have to individually verify
every day." Taylor, 612 F.3d at 338 n.12. Aside from its failure to divide by fifty,

Taylor's suggestion that the states must be at the beck and call of credit card companies is
misleading. It may be the case that technology exists which would allow authorized
recipients to download specific individuals' personal information from a secure site to sell
to customers having a specific permissible use. Even ifthe cost of protecting drivers'

privacy is that a credit card company is momentarily delayed before issuing some of the
thousands of cards approved daily, such a balance is consistent with Congressional intent.
Furthermore, there are many other ways to gather consumer data. Understandably, it is
more convenient to obtain every driver's personal information in one reliable place. But
Congress recognized that consumers have an interest in maintaining the privacy of their

coerced personal infonnation until there is a reason to release it.
The final specter raised by Taylor is "vast potential liquidated damages." Taylor,
612 F.3d at 330. According to section 2724(b):
The court may award (I) actual damages, but not less than liquidated damages in the amount
ofS2,500;

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Case 2:10-cv-04027-NKl Document 79 Fited 08/03/11 Page 35 of 38

(2) pWlitive damages upon proof ofwillfuI or reckless disregard of the
law;
(3) reasonable attorneys' fees and other litigation costs reasonably
incurred; and
(4) such other preliminary and equitable relief as the cowt determines
to be appropriate.

18 U.S.C. § 2724(b). As the Eleventh Circuit has explained:
Section 2724(b) begins, "[t]he Court may award:' The use ofthe word
"may" suggests that the award of any damages is permissive and
discretionary.... [W]e conclude that the use ofthe word "may" implies a
degree of discretion. Thus, the district court, in its discretion, may fashion
what it deems to be an appropriate award.

Kehoe v. Fid Fed BanJc& Trust, 421 F.3d 1209, 1217-18 (11th Cir. 2005) (citations
omitted). As the Eleventh Circuit suggests, the DFPA grants the Court discretion in
fashioning an appropriate remedy sufficient to deter future violations. There is no reason
to expect that if courts enforce the DPPA as written that they will make large (or any)
damage awards. The goal is .compliance with the law, not windfall rewards. Further, just
because damages are authorized by a statute does not mean the language of the statute
and the intent of Congress can be ignored. If Congress makes a mistake, it is the
responsibility of Congress to fix it It is not the role of the courts to rewrite the
legislation.
For the reasons stated above, Defendant's second argument - that absent an
allegation of misuse by West or its customers, the DPPA violation alleged in Plaintiffs
Complaint is implausible because bulk sale ofpersonal information is generally

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Case 2:10-cv-04027-NKL Document 79 Filed 08/03/11 Page 36 of 38

permissible - also fails. Accepting as true all facts plead by Plaintiff Jolmson, the Court
cannot say that West is entitled to judgment as a matter oflaw.
VITI.

Standing

Defendant West also argues that Plaintiff Johnson and the putative class members
do not have standing to sue because they have suffered no injury-in-fact. Article ill

smnding requires a plaintiffto have suffered an injury-in-fact that has a causal connection
with the complained-ofconduct that is likely to be redressed by a favorable decision.

Pucket v. Hot Springs Sch. Dist., 526 F.3d 1151, 1157 (8th eir. 2008) (citing Steger v.
Franco, Inc., 228 F.3d 889,892 (8th CiT. 2000»; see also Lujan v. Defenders o/Wildlife,
504 U.S. 555, 560-61 (1992). "At the pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice, for on a motion to dismiss we
preswne that general allegations embrace those specific facts that are necessary to support
the claim." Lujan, 504 U.S. at 561; see also R.L. v. Matheson, 450 U.S. 398, 414 (1981)
("Standing depends initially on what the complaint alleges ... as courts have the power

only to redress or otherwise to protect against injury to the complaining party" (citations
omitted».
The Complaint alleges that "[t]he personal information or highly restricted
personal information ofPlaintiffand the putative Class members was obtained and
disseminated by Defendant for purposes not permitted under the DPPA. >l [Doc. # 1 at"
13 (emphasis added).] Plaintiff has clearly alleged that she and fellow class members
suffered an injury-in-faet caused by Defendant's violations ofthe DPPA.
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Case 2:10-cv-04027-NKL Document 79 Filed 08/03/11 Page 37 of 38

The DPPA is designed to protect personal information. Parus v. Calor, No.

05~C-

0063-C, 2005 WL 2240955 (w.n. Wis. Sept. 14,2005) (citing 139 Congo Rec. S15765
(1993). It protects drivers' privacy by placing restrictions on the purposes for which
personal information may be obtained, used, and disclosed. In fashioning the DPPA,
Congress created a right to privacy, the invasion of which creates an injury sufficient to
create standing. See generally Pichler v. UNITE, 542 F.3d 380, 388 (3d Cir. 2008)
(recognizing that the DPPA protects the privacy rights of individuals); Parus, 2005 WL
2240955 at '" 5 (finding that improperly obtaining personal information was an injury fOT
purposes ofa DPPA claim). In alleging a violation of that right, Plaintiffhas adequately
alleged a basis for standing.

IX.

Conclusion
Accordingly, it is hereby ORDERED that Defendant West's Motion for Judgment

on the Pleadings [Doc. # 30] is DENIED.

s/ Nanette K. Laughrey
NANETIE K LAUGHREY
United States District Judge
Dated: Au~ 3. 2011
Jefferson City, MissolD"i

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Case 2:1O--cv-04027-NKL Document 79 Filed 08/03/11 Page 38 of 38

Tab I

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

MARCY A. JOHNSON

Plaintiff,
v.
WEST PUBLISIDNG CORPORATION,
Defendant.

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Case No. 1O-04027-CV-C-NKL

August 24, 2011

MINUTE SHEET

HONORABLE Nanette K. Laughrey presiding at Jefferson City, Missouri.
Nature of Proceeding: Teleconference
Time: 11 :00 a.m. - 11 :06 a.m.
Plaintiff by: Blake Strautins and Ralph Phalen
Defendant by: Diane Green-Kelly and Nick Kurt
Comments:
Teleconference held regarding Defendant's Motion to Amend Court's Order to Include the
Certification Required for West to Seek Permission to Appeal that Order on an Interlocutory
Basis [Doc. 81]. Plaintiff stated that defendant has filed a petition for leave to appeal with the
Eighth Circuit Court of Appeals. Plaintiff objects to the Court certifying the case for appeal.
The Court granted the motion and found the case involves a controlling question of law as to
which there is substantial ground for difference of opinion and ... an immediate appeal from the
order may materially advance the ultimate termination of the litigation." See 29 U.S.C. §1292(b).
This case is stayed in the District Court pending the parties' interlocutory appeal to the Eighth
Circuit Court of Appeals.
Court Reporter: None

By: Renea Kanies, Courtroom Deputy

Case 2:10-cv-04027-NKL Document 85 Filed 08/24/11 Page 1 of 1