Marcy Johnson v. West Publishing Corporation

Filing 5

LETTER from Petitioner West Publishing Corporation regarding West Publishing Corporation's Letter in further support of petition pursuant to Section 1292(b). w/service 10/19/2011 [3840739] [11-8020] (KMW)

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Reed Smith LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222-2716 +1 412 288 3131 Fax +1 412 288 3063 Kim M. Watterson Direct Phone: +1 412 288 7996 Email: October 19, 2011 Mr. Michael E. Gans, Clerk of Court United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis, Missouri 63102 Re: Marcy A. Johnson v. West Publishing Corporation Case No. 11-8020 Dear Mr. Gans: On August 30, 2011, West Publishing Corporation filed a petition pursuant to Section 1292(b) seeking interlocutory review of the district court’s order denying West’s motion for judgment on the pleadings in an action involving claims under the Drivers’ Privacy Protection Act, 18 U.S.C. §2721, et seq. (“DPPA”). Earlier, on April 15, 2011, this Court granted West leave to participate as amicus curiae in an appeal from a district court order dismissing a complaint asserting DPPA claims in Janice Cook, et al v. ACS State & Local Solutions, et al (Case No. 10-3818), and West’s amicus brief was filed on that date. Counsel for West attended the September 22, 2011 oral argument in Cook, but did not participate in the argument. During that argument, the district court’s opinion in Johnson that is the subject of West’s petition was addressed and, indeed, the Johnson case was central to the oral argument in Cook. The Cook panel also posed a hypothetical question that assumed certain facts about West’s business practices and the public accessibility of DMV records on West’s databases—namely, that anyone can visit a NEW YORK  LONDON  HONG KONG  CHICAGO  WASHINGTON, D.C.  BEIJING  PARIS  LOS ANGELES  SAN FRANCISCO  PHILADELPHIA  PITTSBURGH OAKLAND  MUNICH  ABU DHABI  PRINCETON  NORTHERN VIRGINIA  WILMINGTON  SILICON VALLEY  DUBAI  CENTURY CITY  RICHMOND  GREECE Mr. Michael E. Gans October 19, 2011 Page 2 public library that has a public access terminal and a Westlaw subscription and get all the information in motor vehicle records, subject only to selecting a purpose from a dropdown menu. West has written to the Court in connection with the Cook appeal to state that the hypothetical’s factual assumptions, which are not part of the record, are incorrect and do not describe West’s actual business practices. Access to West’s databases containing DMV records is not available to the general public in public libraries or elsewhere. Consequently, the oral argument in Cook provides additional reasons why West’s petition should be granted. As the panel’s questions and parties’ argument reflected, the issues in Johnson and Cook overlap and the district court’s decision in Johnson, which diverged from the district court’s decision in Cook, appeared to be of interest to the Cook panel. Addressing Johnson, one of two conflicting lower court decisions in this Circuit, will be necessary to resolution of the issues presented in the Cook appeal. West suggests, therefore, that the core statutory construction question at issue in Cook should be addressed in the context of briefing that addresses the district court’s decision in Johnson and the reasoning used to reach it. Granting West’s petition would accomplish that. Further, granting West’s petition would enable West to fully respond to the Cook panel’s hypothetical. Only briefing in the context of an appeal in Johnson would avoid misunderstandings about West’s business practices (which properly were not addressed in West’s amicus brief in Cook) and the Johnson record. In short, the Cook argument provides additional reasons why West should he heard and the Johnson opinion should be briefed. Very truly yours, /s/ Kim M. Watterson Kim M. Watterson KMW/hh Enclosures cc: All counsel of record

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