Marcy Johnson v. West Publishing Corporation

Filing 3

RESPONSE in opposition to petition for interlocutory appeal, [3825034-2] filed by Attorney Mr. Mitchell L Burgess for Respondent Ms. Marcy A Johnson , w/service 09/08/2011. [3826993] [11-8020] (MLB)

NO. 11-8020
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
MARCY A. JOHNSON,
ON BEHALF HERSELF AND THE CLASS,
Plaintiff – Respondent,
v.
WEST PUBLISHING CORPORATION
Defendant – Petitioner.

BRIEF IN OPPOSITION TO WEST PUBLISHING
CORPORATION’S PETITION FOR AN INTERLOCUTORY
APPEAL PURSUANT TO 28 U.S.C. § 1292(b)
From an Order Denying a Motion for Judgment on the Pleadings,
Certified for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b), By
the United States District Court for the Western District of Missouri
No. 2:10-Cv-04027-NKL
The Honorable Nanette K. Laughrey

Mitchell L. Burgess
Keith C. Lamb
BURGESS & LAMB
1000 Broadway, Suite 400
Kansas City, MO 64105

Don P. Saxton
SAXTON LAW FIRM, LLC
1000 Broadway, Suite 400
Kansas City, MO 64105

Ralph Phalen
Ralph K. Phalen - Attorney at Law
1000 Broadway, Suite 400
Kansas City, MO 64105

ATTORNEYS FOR PLAINTIFF-RESPONDENT

PRELIMINARY STATEMENT
The sole issue on this appeal is whether Plaintiff’s complaint pleads a cause of
action. West’s Petition for an Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)
(“Petition”) is a symbol of its dissatisfaction with the District Court’s ruling denying its
motion for judgment on the pleadings—a preliminary motion filed at the very early
stages of this litigation. Now that West has lost its motion, it asks this Court for a second
bite at the apple on its failed motion.
Until now, West has made every attempt to keep the litigation moving forward.
West has pushed for the completion of discovery in this case and has produced virtually
all of its documents. Contrary to West’s assertions, and depending on the outcome of any
dispositive motions, a trial may be unnecessary. Thus, an appeal now will not likely
avoid expensive and protracted litigation; rather, any appeal is likely to drag this
litigation out longer than the time it would take to bring the litigation to a final judgment.
Because this case is at an advanced stage nearing summary judgment, and possibly trial,
West’s attempt to delay this case should not be allowed and the Court should deny
West’s Petition.
FACTUAL BACKGROUND
This is an action seeking relief for the defendant West Publishing Corporation’s
(“West”) violations of Plaintiff’s and other Class members’ privacy interests protected
and guaranteed by the Driver’s Privacy Protection Act (“DPPA”). 18 U.S.C. §§ 2721, et.
seq. Plaintiff has alleged that West unlawfully obtained her and other Class members’
personal information and/or highly restricted personal information from a third party for
the sole purpose of re-selling said information for a profit. This is not one of the

2

permissible purposes explicitly listed under § 2721(b) of the DPPA, and West does not
obtain said information for any of § 2721(b)’s purposes. And, because West is not an
“authorized recipient” under the DPPA, West is not entitled to obtain such information,
and any resale of such information is unlawful under the DPPA. Plaintiff brought this
action seeking injunctive relief and damages for West’s violations of the DPPA.
On August 3, 2011, the District Court denied West’s Motion for Judgment on the
Pleadings (which is the subject of this Petition) and, on August 9, 2011, the Court
certified the Class.1
I.

Standard of Review for Interlocutory Appeals Under 28 U.S.C. § 1292(b)
Interlocutory appeals are reserved for a limited line of cases where an early

review may bring an arduous and expensive journey to an early end. With this case on
the threshold of summary judgment—and with discovery nearly complete—this action
fails to meet the standards for interlocutory appeal. As the Court has noted, “[i]t has, of
course, long been the policy of the courts to discourage piece-meal appeals because most
often such appeals result in additional burdens on both the court and the litigants.
Permission to allow interlocutory appeals should thus be granted sparingly and with
discrimination.” Control Data Corp. v. Int’l Bus. Machs. Corp., 421 F.2d 323, 325 (8th
Cir. 1970). And, “[i]n accordance with this policy, § 1292(b) ‘should and will be used
only in exceptional cases where a decision on appeal may avoid protracted and expensive
litigation, as in antitrust and similar protracted cases.’” White v. Nix, 43 F.3d 374, 376
(8th Cir. 1994) (quoting S. Rep. No. 2434, 85th Cong., 2d Sess. (1958), reprinted in 1958

1

West has concurrently petitioned the Court, pursuant to Fed. R. Civ. p. 23(f), for leave to appeal
the District Court’s order certifying the Class. See Appeal No. 11-8019.

3

U.S.C.C.A.N. 5255, 5260). West bears a “heavy burden” in meeting this standard, and as
explained below, has failed to do so here. Id.
II.

The District Court’s Order Does not Involve a Controlling Question of Law
As the Eighth Circuit has noted, “[w]hile it might be conceivable that an issue

includes a controlling question of law, and while it might be seemingly apparent that it is
a difficult question as to which there is a substantial ground for difference of opinion, and
while a decision thereon might materially advance the ultimate outcome, the case must be
of sufficient ripeness so that this can be determined from the record.” Paschall v. Kansas
City Star Co., 605 F.2d 403, 406 (8th Cir. 1979).
West’s approach to this litigation—which includes aggressively pushing the
completion of discovery—warrants, at a minimum, the briefing of potentially casedispositive summary judgment motions, which will then provide the appropriate
“ripeness” that is required for review of this case by the Court. A review of the District
Court’s denial of West’s motion for judgment on the pleadings would be premature and
inappropriate at this time. Contrary to purpose, it would foster piecemeal litigation.
West filed a motion for judgment on the pleadings, which is akin to a motion to
dismiss for failure to state a claim.

The denial of this motion is not outcome

determinative and does not involve a controlling question of law—if that were indeed the
standard, the denial of nearly every such motion would warrant an interlocutory appeal,
which is not the case. Rather, the denial of West’s motion simply means that Plaintiff has
stated a claim and her case can proceed. Should West deem it prudent to file a motion for
summary judgment—a far more outcome determinative motion—then it is free to do so.
Resolution of issues involving liability on a motion for summary judgment should

4

proceed, which will provide a richer record for any interlocutory appeal that West may
wish to seek at a later point in time, and which will provide a reviewing court with a
complete factual and legal record upon which to rule.
III.

There is No Substantial Ground for Difference of Opinion Regarding the
Scope of the DPPA or the Issue of Standing
West fails to mention that the majority of cases interpreting the DPPA has dealt

with entities that obtained Motor Vehicle Records directly from the states. This is a
critical distinction from West’s conduct here. Unlike the authorities it cites, West obtains
Motor Vehicle Records from a third party for the sole purpose of reselling said records
for a profit.
The District Court’s denial of West’s motion for judgment on the pleadings is the
most thorough and extensive analysis of the DPPA to date—particularly with respect to
the obtainment of Motor Vehicle Records from a third party for the sole purpose of resale for a profit. The DPPA is clear: it is unlawful to obtain, use, or disclose protected
information unless the obtainer meets one of the permissible purposes under § 2721(b).
West obtained the information at issue from a third party for the sole purpose of reselling
that information for a profit. This purpose is not among the permissible purposes listed in
§ 2721(b); in fact, West does not even claim it meets one of these permissible purposes.
Despite this, West asserts that it is immune from the DPPA’s prohibitions by virtue of the
DPPA’s “reseller” provision—§ Section 2721(c).

As the District Court recognized,

however, this argument distorts the plain language of the DPPA.
On the facts of this case, as set forth above, West has no permissible purpose for
obtaining Plaintiff’s and the Class’ motor vehicle records. Nor is there any rational basis
for claiming Plaintiff lacks standing. As several courts have already held, other plaintiffs

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in the same position as Plaintiff here have standing to pursue their claims. West’s
arguments in support of its Petition are, therefore, without merit.
A.

West’s Conduct of Obtaining Motor Vehicle Records in Bulk from a
Third Party for the Sole Purpose of Re-selling Said Records for a
Profit Violates the DPPA

West’s arguments are founded almost entirely on its interpretation of the term
“authorized recipient” from § 2721(c).2 West argues that it need not comply with the
information protections of the DPPA solely because West intends to resell protected
information. In support of this self-serving point of view, West points to § 2721(c),
which provides, generally, that an “authorized recipient” of protected information may
resell protected information to other entities who also meet an exception to the DPPA.
As West is not an authorized recipient of Plaintiff’s and other Class members’
information, its conduct violates the DPPA.
West devotes much of its Petition to describing why the term “recipient” renders
it immune from the prohibitions of the DPPA. Yet, conspicuously, West barely makes
mention of how the term “authorized” from the statute (as in “authorized recipient”)
impacts its behavior.

2

The plain language of § 2721(c) directly contradicts West’s

18 U.S.C. § 2721(c) provides in full:
(c) Resale or Redisclosure.— An authorized recipient of personal information (except a
recipient under subsection (b)(11) or (12)) may resell or redisclose the information only
for a use permitted under subsection (b) (but not for uses under subsection (b)(11) or
(12)). An authorized recipient under subsection (b)(11) may resell or redisclose personal
information for any purpose. An authorized recipient under subsection (b)(12) may resell
or redisclose personal information pursuant to subsection (b)(12). Any authorized
recipient (except a recipient under subsection (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 permitted 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) (emphasis added).

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position that it need not meet an exception to the DPPA in order to obtain protected
information.
In order to be an “authorized recipient” of protected information, one must be
more than a mere recipient—one must be “authorized.” Thus, the chief concern in
defining what Congress left undefined (“authorized recipient”) is not whether one obtains
information, but rather, whether one is authorized to obtain the information. Fortunately,
§ 2721(c) provides ample guidance as to when a reseller such as West is authorized to
obtain information protected under the DPPA.
Section 2721(c) refers back to the DPPA’s permissible purposes listed in §
2721(b) in describing when a reseller is “authorized” to obtain information. For instance,
§ 2721(c) regulates when an “authorized recipient” of information “under subsection
(b)(11) or (b)(12)” can legally resell information. Similarly, § 2721(c) states that an entity
can only be “authorized” to obtain protected information if it is permitted to do so “under
[a] subsection” from § 2721(b). In other words, § 2721(c) is written with the obvious
implication that to be “authorized” to obtain information, one must fall within one of the
permissible purposes listed in § 2721(b).
It is unreasonable to conclude that Congress would have referred to permissible
purposes in § 2721(c)’s reseller provision without intending that an “authorized
recipient” also have a permissible purpose for obtaining such information before selling
it. West has no answer for this obvious contradiction within its argument. As the District
Court sagely opined, “[g]iven 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 resellers by authorizing them to obtain the entire drivers license database

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simply by identifying themselves as a reseller.” Johnson v. West, Case No. 2:10-cv04027, at 14 (W.D. Mo. Aug. 3, 2011). Otherwise, there is no limit to how many times
and through how many channels Plaintiff’s and the Class’ Motor Vehicle Records could
be sold and re-sold, all under the guise of West’s contorted interpretation of “authorized
recipient.”
A common sense understanding of the privacy protections inherent in the DPPA
defies West’s interpretation of the statue. According to West’s view, it is “authorized” to
obtain massive databases of information for no other reason than its self-serving
declaration that it intends to resell the information in compliance with the DPPA. Such
an interpretation wipes out the privacy protections of the DPPA and the specific
permissible purposes outlined in § 2721(b)—surely an absurd result.
West’s interpretation turns the statute’s information disclosure protections upside
down: the prohibition on obtaining protected information can be avoided as long as any
obtainer plans on disclosing the protected information to those with a permissible purpose
under § 2721(b). West’s argument renders the modifier “authorized” from the statutory
term “authorized recipient” meaningless—effectively writing the term out of the statute,
contrary to established rules of statutory construction—and in the process, similarly
renders the crucial privacy protections of the DPPA meaningless. If all one needs to do in
order to obtain an entire state’s database of information is to claim that it is a reseller,
then the term “authorized” from the statute is surplusage. In short, the only thing in the
DPPA that qualifies one to be a “reseller” is that such a reseller must be “authorized.”
“Authorized” must mean something, and from the plain language of the DPPA, it means

8

that a recipient for the purpose of resale is only qualified to obtain information by
meeting one of § 2721(b)’s explicit permissible purposes.
West points to the current appeal in Cook v. ACS State & Local Solutions, 756 F.
Supp. 2d 1104, 1106 (W.D. Mo. 2010), which is now before the Court. But Cook
involves entities obtaining Motor Vehicle Records directly from the states, and thus deals
with a different issue than that which is set forth before the Court in West’s Petition. And
even if the issue was the same (it is not), it would be counterproductive to initiate another
appeal with the Court before this case has been more fully developed, as explained supra.
Further, it is respectfully suggested that Cook did not seriously consider the legal and
statutory construction issues at hand—the Cook court devoted one sentence to the
authorized recipient/reseller legal issue present in this case: “[r]egarding reselling, the
Court agrees with Taylor that a reseller does not need to have its own permissible use.”
Id. at 1109. Compared to the convincing and comprehensive analysis of the District
Court in the present case on similar issues, the Cook opinion on this subject is neither
authoritative nor persuasive.
Other authorities relied on by West in support of its position are not only
distinguishable in some notable respects, but actually support Plaintiff’s position and
argument that substantial grounds of a difference of opinion do not exist. For instance,
Roth v. Guzman, No. 10-3542, 2011 WL 2306224 (6th Cir. June 13, 2011), involves the
narrow issue of whether the bulk disclosure of Motor Vehicle Records by the state of
Ohio pursuant to an explicit request made under § 2721(b)(3) of the DPPA—for “use in
the normal course of business”—was permissible at the time of the disclosures. 2011 WL

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2306224, at *3–5. 3 In Roth, a company obtained Ohio Motor Vehicle Records in bulk by
expressly requesting said records from the state for “use in the normal course of
business.”

2011 WL 2306224, at *3.

The plaintiffs sued Ohio officials over the

disclosures, alleging that the company falsely represented its true use for the records,
which was bulk resale. 2011 WL 2306224, at *3. Roth held that regardless of the
representation made when obtaining the records, Ohio officials were not liable because
such disclosures under § 2721(b)(3) are permissible and there was no “clearly
established” duty to inquire into the legitimacy of the request at the time of the
disclosures. 2011 WL 2306224, at *7, 11. Roth relied on Taylor v. Acxiom Corp., 612
F.3d 325 (5th Cir. 2010), which also involved bulk disclosures by states directly to third
parties under § 2721(b)(3). 2011 WL 2306224, at *9–11. Judge Clay noted, in dissent,
that the majority’s ruling “renders much of the language of the DPPA completely
superfluous.” 2011 WL 2306224, at *13. Additionally, Roth distinguishes the plaintiff’s
reliance on Locate.Plus.Com, Inc. v. Iowa Dept. of Transp., 650 N.W.2d 609, 616 (Iowa
2002), noting that “reformatting [Motor Vehicle Records] for resale to law enforcement
agencies” was not a permissible purpose. 2011 WL 2306224, at *10 n.9. Thus, Roth
effectively holds that the very conduct of which Plaintiff complains of here—West’s
practice of purchasing Motor Vehicle Records in bulk from a third party and then
reselling the records—is not a permissible purpose under the DPPA.
Howard v. Criminal Information Services, Inc., 2011 WL 3559940 (9th Cir. Aug.
15, 2011), also cited by West, supports Plaintiff’s position.

Howard involved the

defendants’ acquisition of Motor Vehicle Records directly from the states for purposes of
3

Roth involved an appeal of the denial of qualified immunity for Ohio officials, and the court
found that the law was not clearly established and, therefore, the officials were entitled to
immunity.

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each defendant using the records, whereby the plaintiffs admitted that said uses by each
of the defendants are permissible under the DPPA. 2011 WL 3559940, at *1. As the
court points out, “Defendants obtained the information so that they would be able to use
it.” 2011 WL 3559940, at *2 (emphasis added). Here, on the other hand, not only does
Plaintiff allege that West did not obtain Motor Vehicle Records directly from the states,
but West also did not obtain Plaintiff’s Motor Vehicle Record for any of the permissible
purposes in § 2721(b) or for its own proper use. West claims that its conduct of obtaining
Plaintiffs’ Motor Vehicle Records in bulk format from a third party for the sole purpose
of reselling the information for a profit is permissible under § 2721(c). Such conduct is
in fact condemned by the Howard court’s ruling—the DPPA focuses “on the ‘end’
sought by the purchaser . . . . That is what should be considered in determining whether
the acquisition of the information is permitted under the statute.” Id. at 10833. Further,
“[t]he DPPA only requires that Defendants obtained the information for a permitted
purpose.” 2011 WL 3559940, at *3. Thus, under Howard, because West has not obtained
Plaintiff’s Motor Vehicle Record for any permissible purpose, its conduct violates the
DPPA.
The District Court’s ruling is consistent with the plain meaning of the statute, the
statute’s legislative history, and the intent of Congress in enacting the statute. The vast
majority of other courts taking up the DPPA and its reseller provision, on the other hand,
have simply deferred to the court’s reasoning in Taylor v. v. Acxiom Corp., 2010 WL
2765261 (5th Cir. July 14, 2010). The District Court’s denial of West’s motion explains
why Taylor—and the courts following its lead—are wrong, and West’s disagreement
with that interpretation is no grounds for granting its Petition. Nothing in the DPPA

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allows West to obtain Plaintiff and the Class’ Motor Vehicle Records in bulk format from
a third party for the sole purpose of resale for a profit.
B.

The Clear Language of the DPPA, and West’s Violation Thereof,
Provides Plaintiff with the Requisite Standing to Litigate Her Claims

As the Supreme Court held in Lujan v. Defenders of Wildlife:
The irreducible constitutional minimum of standing contains three
elements. First, the plaintiff must have suffered an “injury in fact” -- an
invasion of a legally protected interest which is (a) concrete and
particularized . . . and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical,’” . . . . Second, there must be a causal connection between
the injury and the conduct complained of -- the injury has to be “fairly . . .
trace[able] to the challenged action of the defendant, and not . . . the result
[of] the independent action of some third party not before the court.”
Third, it must be “likely,” as opposed to merely “speculative,” that the
injury will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations omitted).
Plaintiff alleges that West improperly obtained her and other members of the
Class’ protected information. Plaintiff’s legally protected interests, as set forth by the
DPPA, have been compromised by West’s conduct. West’s conduct creates an injury and
a wrong that can be “redressed” pursuant to law and statute.
Additionally, the very case that West clings to in arguing that its Petition should
be granted (Cook) reached the opposite conclusion on standing that West is asking this
Court to find. Indeed, the Cook court found that the plaintiffs had standing and had pled
an injury-in-fact by pleading obtainment and disclosure violations under the DPPA.
Cook, 756 F. Supp. 2d at 1106-07.
1.

Plaintiff Has Suffered Harm Sufficient to Confer Standing

West argues that Plaintiff has no standing to bring this action because she cannot
show actual harm or an “injury in fact.” West argues this point despite the fact that (1) the

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DPPA expressly provides for liquidated damages independent of showing actual
damages, where all damages are subject to the Court’s discretion, and (2) the
overwhelming weight of the case law contradicts West’s argument.
First, by the express terms of the DPPA, there is no need to show actual damages
in order to recover damages. The remedy for a violation of the DPPA is unambiguous
under the plain terms of the statute:
(b) Remedies.--The court may award-(1) actual damages, but not less than liquidated damages in the
amount of $2,500;
(2) punitive damages upon proof of willful 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 court
determines to be appropriate.
18 U.S.C. § 2724(b)(1) (emphasis added). The amount of damages ultimately
awarded is within the province and discretion of the District Court, as the Court noted in
its ruling denying West’s Motion for Judgment on the Pleadings, and explicitly includes
more than simply monetary damages. For example, Plaintiff has standing to seek, and
does seek, injunctive relief. West’s unlawful obtainment of Plaintiff’s and the Class’
Motor Vehicle Records places them at risk of the future unlawful release of these records.
A proper remedy could also include enjoining West from obtaining said records in the
future, and purging those in its possession.
West’s interpretation of the statute ignores the plain language of the statute. The
plain language of the DPPA contradicts West’s assertion that actual damages must be

13

shown in order to achieve relief under the DPPA. Not surprisingly, virtually every case
to address the issue has reached the opposite conclusion sought by West.
The DPPA creates a statutory privacy right designed to protect an individual’s
data footprint from unauthorized disclosure or obtainment by unauthorized entities.
“Congress may enact statutes creating legal rights, the invasion of which creates standing,
even though no injury would exist without the statute.” Linda v. Texas, 410 U.S. 614, 617
n.3 (1973). “The actual or threatened injury required by Art. III may exist solely by virtue
of statutes creating legal rights, the invasion of which creates standing ….” Warth v.
Seldin, 422 U.S. 490, 500 (1975).
Two Circuit Courts of Appeals have addressed the DPPA standing issue raised by
the West and both have rejected West’s position. In Kehoe v. Federal Bank & Trust, the
Eleventh Circuit held, based on the unambiguous language of the DPPA, that actual
damages are not necessary in order to recover under the liquidated damages provision of
the DPPA. 421 F.3d 1209, 1212 (11th Cir. 2005) (citing Doe v. Chao, 540 U.S. 614
(2004)). West has failed to distinguish the Eleventh Circuit’s Kehoe decision, which
directly contradicts its position on this issue. Plaintiff submits that she does not have to
plead or prove actual damages under the express wording of the DPPA in order to
achieve standing.
Similarly, in Pichler v. Unite, the Third Circuit was confronted with the question
of whether two individuals who were not specifically identified in a motor vehicle record
could have standing to sue under the DPPA. 542 F.3d 380, 391 (3d Cir. 2008). In holding
that those individuals did not have standing under the DPPA, the Third Circuit ruled that

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it was “undisputed” that any individual whose information was obtained in violation of
the DPPA had a viable cause of action. Id.
Doe v. Chao, the Supreme Court of the United States decision cited by West in
support of its position on standing, actually supports Plaintiff with respect to standing.
540 U.S. 614 (2004). Doe involved a claim brought under the Privacy Act of 1974 for the
disclosure of the plaintiff’s social security number. The Supreme Court ruled, on the
basis of the language of the Act, that the plaintiff must show some measure of actual
damages prior to receiving the minimum statutory award of $1,000.00 available under the
Act. The Supreme Court’s opinion was based on the specific language of the Privacy Act.
Significantly, however, the Court indicated under what statutory language the Plaintiff
would have been entitled to damages independent of showing actual damages: “Congress
could have accomplished its object simply by providing that [defendant] would be liable
to the individual for actual damages ‘but in no case ... less than the sum of $1,000’”. Id.
at 1210 (emphasis added). That suggested language, approved by the Supreme Court in
Doe, is virtually identical to the language at issue in the DPPA. The District Court’s
ruling on this issue is directly supported by the opinions of two Circuit Courts of Appeals
and the Supreme Court. Accordingly, the District Court’s ruling should not be disturbed
on this request for interlocutory review.
Moreover, even though pleading actual damages is not required under the case
law or express terms of the DPPA, Plaintiff has pled “injury in fact” in order to confer
standing—Plaintiff alleged that her personal information was obtained by West for a
purpose not permitted under the DPPA. This type of conduct is precisely the kind of

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action that leads to the most severe kind of identity theft or other personal security
problems that the DPPA was designed to remedy.
2.

The Legislative History of the DPPA Demonstrates Clear
Congressional Intent to Create a Tangible Privacy Right, the
Violation of Which Is a Tangible Harm Conferring Standing

The legislative history of the DPPA also supports Plaintiff’s position regarding
standing. Consistent and continual statements from sponsors of the DPPA indisputably
demonstrate Congress’ effort to place the individual in control of his or her own Motor
Vehicle Record information.

Indeed, West’s interpretation of the DPPA would

completely eviscerate the function and purpose of the privacy protections afforded under
the DPPA.
Congress enacted the DPPA in order to curb the common practice by many states
of selling information in Motor Vehicle Records to businesses, marketers, and
individuals. See Reno v. Condon, 528 U.S. 141, 143–44 (2000). Congressman Moran,
the sponsor of the original 1994 bill, emphasized that the purpose of the DPPA was to
give individuals “control” over whether their personal information was released or
obtained:
This legislation before the Committee is designed to give individuals
control over the release of their personal information and give them the
opportunity to make choices as to whether this information is released . . .
in bulk.
Hearing before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the
Judiciary, 103d. Cong. (1994) (statement of Rep. James P. Moran, Sponsor), available at
1994 WL 212835.
In fact, when the DPPA was amended in 1999, the changes in the law were
intended to eliminate the practice of selling personal information. Senator Shelby, the

16

principal sponsor, warned against “unrelated secondary uses” of motor vehicle
information without prior approval (i.e., for commercial sale in the open market), when
the records have been obtained only for the purpose of vehicle registration. Senator
Shelby underlined that the purpose of the DPPA was to ensure that individuals must
“grant their consent” before the state or a third party can sell or release highly restricted
personal information “when it is to be used for the purpose of direct marketing,
solicitations, or individual look-up.”4 Hrg. Before the Subcomm. on Transp. of the S.
Comm. on Appropriations, 106th Cong. (2000) (statement of Sen. Shelby, Sponsor),
available at 2000 WL 374404 (emphasis added). He stressed that the need for privacy in
Motor Vehicle Records is akin to the need for “doors” on citizens’ houses.5 Id.
The Congressional record is clear: the core aims of the DPPA are to prevent the
unauthorized obtainment of a citizen’s personal information and the statute creates a
tangible right to have one’s information secure. The violation of that security is a harm
that supports standing. West’s argument to the contrary lacks merit.
IV.

Certification Will Not Materially Advance the Ultimate Termination of the
Litigation
In Roberts v. Source for Pub. Data, 75 Fed. R. Serv. 3d 25 (W.D. Mo. 2009),

which similarly dealt with the unlawful obtainment and dissemination of Motor Vehicle

4

“Individual look-up” is precisely what West turned the Class members’ information into when
they made the information available over the Internet for purchase.
5

“It boils down to this: we have doors on our homes so that outsiders who seek entry must knock
and ask our permission to enter. When we want such people to come in, we invite them. When
we do not want them in, they are not permitted to enter. Doors provide us with the means to
control our interaction with other people. American citizens should have the power to put
‘doors’ on all aspects of their private lives and to expect that anyone who wants to enter
must seek and gain consent.” Hrg. Before the Subcomm. on Transp. of the S. Comm. on
Appropriations, 106th Cong. (2000) (statement of Sen. Shelby, Sponsor), available at 2000 WL
374404 (emphasis added).

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Records under the DPPA, the court granted the plaintiff’s motion for class certification.
The defendants petitioned this Court for leave to appeal under Fed. R. Civ. P. 23(f); the
Court denied that petition. See Roberts v. Source for Public Data, Case No: 09-8018 (8th
Cir. Dec. 12, 2009). The Court saw no need to intervene in Roberts, which involved a
nearly identical legal issue, and there is no need to intervene now. West’s Petition is a
premature and wasteful effort at this point in the litigation, and merely serves as an
attempt to stall this litigation from proceeding.
Finally, there is no protracted and expensive litigation ahead for the parties.
Extensive discovery by the parties has taken place and is nearly completed. Significant
motion practice has taken place, with the matters being fully briefed and decided by the
District Court, all that remains are dispositive motions and, possibly, a short trial. West’s
disappointment with the District Court’s rulings to date should play no part in the orderly
and efficient process of the litigation, and its Petition should be denied.
CONCLUSION
Wherefore, for the reasons set forth above, West’s Petition should be denied.

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Respectfully submitted,
/s/ Mitchell L. Burgess
Mitchell L. Burgess, MO# 47524
Keith C. Lamb, MO#56761
BURGESS & LAMB, PC
1000 Broadway, Suite 400
Kansas City, Missouri 64105
[phone]
[phone] FAX
Don P. Saxton, MO# 56840
SAXTON LAW FIRM, LLC
1000 Broadway, Suite 400
Kansas City, Missouri 64105
[phone]
[phone] FAX
Ralph K. Phalen, MO# 36687
Ralph K. Phalen Atty. at Law
1000 Broadway, Suite 400
Kansas City, Missouri 64105
[phone]
[phone] FAX

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CERTIFICATE OF SERVICE
I hereby certify that on September 8, 2011, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which sent notification of such
filing to the following:
BERKOWITZ OLIVER WILLIAMS
SHAW & EISENBRANDT LLP
Kurt D. Williams
Nick J. Kurt
2600 Grand Boulevard, Suite 1200
Kansas City, Missouri 64108
Telephone: [phone]
Facsimile: 816-561-1888
REED SMITH LLP
Diane Green-Kelly, admitted pro hac vice
David Z. Smith, admitted pro hac vice
10 S. Wacker Dr. - 40th Fl.
Chicago, Illinois 60606
Telephone: [phone]
Facsimile: 312-207-6400
Attorneys for Defendant West Publishing Corp.
/s/ Mitchell L. Burgess
ONE OF THE ATTORNEYS
FOR PLAINTIFF

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