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)

Reed Smith LLP
Reed Smith Centre
225 Fifth Avenue
Pittsburgh, PA 15222-2716
[phone]
Fax [phone]
reedsmith.com

Kim M. Watterson
Direct Phone: [phone]
Email: [e-mail]

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

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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