Pavone et al v. The Law Offices of Anthony Mancini, Ltd.

Filing 24

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 7/28/2015: For the reasons stated in the accompanying Memorandum Opinion and Oorder, the Court denies defendant's motion to dismiss [dkt. no. 15]. Defendant is directe d to answer the complaint by no later than August 13, 2015. The case is set for a status hearing on August 20, 2015 at 9:00 a.m. in chambers (Room 2188) for the purpose of setting a discovery and pretrial schedule and discussing the possibility of settlement. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAVONE, PAVONE, AND M.P.,

)
)
Plaintiffs,
)
)
vs.
)
)
THE LAW OFFICES OF ANTHONY MANCINI,)
LTD.,
)
)
Defendant.
)

No. 15 C 1538

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiffs filed suit on behalf of a class of similarly-situated individuals against the
Law Offices of Anthony Mancini, Ltd. (Mancini), alleging that the law firm obtained
Illinois traffic crash reports and used the information in those reports to send targeted
solicitations to persons involved in car accidents, in violation of the Driver's Privacy
Protection Act (DPPA). Plaintiffs attached to their complaint documents that Mancini
sent to plaintiff Antonio Pavone, including a solicitation letter and a copy of a crash
report that listed his name, date of birth, address, license plate number, driver's license
number, and his car's make and model. Mancini has moved to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6). The Court denies the motion to dismiss
for the reasons stated below.
Discussion
When considering a motion to dismiss, the Court accepts plaintiffs' allegations as
true and draws reasonable inferences in their favor. Parish v. City of Elkhart, 614 F.3d

677, 679 (7th Cir. 2010). In order to state a viable claim, plaintiffs must provide "enough
facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007).
The DPPA prohibits knowingly obtaining, disclosing, or using "personal
information, from a motor vehicle record, for a purpose not permitted under this
chapter." 18 U.S.C. §§ 2722, 2724. Mancini argues that the DPPA does not apply in
this case because the DPPA excludes accident reports from the definition of protected
"personal information" and because crash reports are not "motor vehicle records."
Mancini also argues that even if the Court finds the DPPA applicable, the law firm's use
of the crash reports falls within one of the permitted-use exceptions. Id. § 2721(b)(14).
A.

Personal information
Mancini argues that the complaint fails to state a claim because crash reports do

not constitute "personal information" under the DPPA. Id. §§ 2721, 2722. The DPPA
defines "personal information" as "information that identifies an individual . . . but does
not include information on vehicular accidents, driving violations, and driver's status."
Id. § 2725(3). One court has concluded that accident reports do not constitute
"personal information," because "the plain language of [the] exception in section 2725[ ]
makes clear that Congress did not intend 'information on vehicular accidents' to be
included within the Act's prohibition of disclosure of 'personal information.'" Mattivi v.
Russell, No. CIV.A. 01-WM-533(BNB), 2002 WL 31949898, at *4 (D. Colo. Aug. 2,
2002). But the statute does not exclude accident reports from the definition of "personal
information"; it only excludes "information on vehicular accidents [and] driving
violations." 18 U.S.C. § 2725(3) (emphasis added). Based on the plain language of the

2

statute, the exclusion refers to information about the accident, not the personal
information that is included in accident reports. The driver's address, license plate
number, and license number do not involve information about the accident, and thus
they do not constitute "information on vehicular accidents." See Whitaker v. Appriss,
Inc., No. 3:13-CV-826-RLM-CAN, 2014 WL 4536559, at *2 (N.D. Ind. Sept. 11, 2014)
("The parties agree[d] that the DPPA considers certain information set forth in the
accident reports, such as driver identification numbers, names, and addresses, to be
personal information.").
Seventh Circuit precedent supports the conclusion that the DPPA protects
personal information listed in accident reports. The Seventh Circuit has interpreted
"personal information" broadly to include information that is not listed in the statutory
definition. See Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 943–44 (7th Cir.
2015). "Personal information" should be interpreted broadly in this instance as well, as
protecting personal information in accident reports serves the two purposes of the
DPPA—"to prevent stalkers and criminals from utilizing motor vehicle records to acquire
information about their victims" and "to protect against the States' common practice of
selling personal information to businesses engaged in direct marketing and solicitation."
Id. (internal quotation marks omitted). In sum, information in crash reports can
constitute personal information.
B.

Motor vehicle records
Mancini also argues that crash reports are not motor vehicle records under the

DPPA. A motor vehicle record is "any record that pertains to a motor vehicle operator's
permit, motor vehicle title, motor vehicle registration, or identification card issued by a

3

department of motor vehicles." 18 U.S.C. § 2725(1). To "pertain to" one of the
documents listed in the statute, the record must be "a part, member, accessory, or
product of" one of the documents. Lake v. Neal, 585 F.3d 1059, 1061 (7th Cir. 2009)
(holding that voter registration forms were not motor vehicle records because they had
"nothing to do with . . . a motor vehicle operator's permit"). An accident report is not a
motor vehicle record, because it is not "a part, member, accessory, or product of" any of
the listed records.
Nevertheless, the DPPA also protects personal information obtained "from a
motor vehicle record." 18 U.S.C. § 2722(a) (emphasis added). Thus, even if a
document is created by the police, the DPPA protects any information in the report that
the police obtained from the motor vehicle record. See Senne v. Vill. of Palatine, 695
F.3d 597, 599 (7th Cir. 2012) (en banc) (holding that parking tickets issued by the
Palatine police that included information obtained from DMV records "constitute a
disclosure regulated by the DPPA"). As one court concluded, "If the original source of
the other government agency's information is the state department of motor vehicles,
the DPPA protects the information throughout its travels." Whitaker, 2014 WL 4536559,
at *4. There, the court denied a motion to dismiss a case in which an attorney used
police accident records to solicit clients, because "it's plausible that the personal
information in the accident reports was obtained from the state department of motor
vehicles" rather than directly from the plaintiffs. Id. at *5. The Court finds this analysis
persuasive and respectfully disagrees with the contrary conclusion of another district
court. See Mattivi, 2002 WL 31949898, at *4.
The key question is whether the Illinois Secretary of State was the original source

4

of the information. As the Seventh Circuit has stated, "The DPPA proscribes only the
publication of personal information that has been obtained from motor vehicle records.
The origin of the information is thus crucial to the illegality of its publication." Dahlstrom,
777 F.3d at 949–50. Plaintiffs have plausibly alleged that the information listed on the
crash reports came from motor vehicle records produced by the Secretary of State.
They allege "[u]pon information and belief" that "Mancini knowingly obtained a copy of
the Report from the Schaumburg Police Department, and/or the Illinois Secretary of
State directly and/or through a private entity supplier of such motor vehicle records as
part of Mancini's regular practice and procedure of obtaining such records for
advertising and solicitation purposes." Am. Compl. ¶ 13. Even if the Secretary of State
does not share this information with private parties, it is also plausible that officers
obtain the information on the crash reports at issue here from a Secretary of State
database. And even if that information is not directly supplied by the Secretary of State,
it is plausible that officers who write the crash reports copy the name, license number,
and address from the driver's license, which is a motor vehicle record. 18 U.S.C.
§ 2725(1). Plaintiffs have thus plausibly alleged that the crash reports contain
information that has been obtained from motor vehicle records.
C.

Permitted use
Despite its general prohibition, the DPPA lists fourteen permitted uses of

personal information obtained from motor vehicle records. Id. § 2721(b). For the first
time in its reply, Mancini argues that even if the DPPA is applicable, one of the
exceptions applies. Under the asserted exception, personal information "may be
disclosed . . . [f]or any other use specifically authorized under the law of the State that

5

holds the record, if such use is related to the operation of a motor vehicle or public
safety." Id. § 2721(b)(14).1 Mancini argues that because the crash reports are created
after an accident, they are related to the operation of a motor vehicle. But Mancini's use
of the report was not related to the operation of a motor vehicle. According to the
complaint, Mancini obtained the crash reports and used their contents to solicit
business. Under the DPPA, the Court must consider the ultimate user's treatment of the
personal information. See Graczyk v. W. Pub. Co., 660 F.3d 275, 279 (7th Cir. 2011)
("What is apparent from considering the DPPA as a whole is that it is concerned with
the ultimate use or uses to which personal information contained in motor vehicle
records is put."). Thus, each person who obtains a motor vehicle record or discloses its
contents must use the information for a permissible purpose. See id. at 280–81; see
also Senne, 695 F.3d at 606 ("[T]he actual information disclosed—i.e., the disclosure as
it existed in fact—must be information that is used for the identified purpose. When a
particular piece of disclosed information is not used to effectuate that purpose in any
way, the exception provides no protection for the disclosing party."). Based on the facts
alleged in the complaint, Mancini's use does not fall within the section 2721(b)(14)
exception.
Conclusion
For the foregoing reasons, the Court denies defendant's motion to dismiss [dkt.
1

Mancini does not assert any of the other statutory exceptions in the motion to dismiss.
The Supreme Court has held that "an attorney's solicitation of clients is not a
permissible purpose covered by the (b)(4) litigation exception," which allows information
to be used "in connection with any civil, criminal, administrative, or arbitral proceeding."
Maracich v. Spears, 133 S. Ct. 2191, 2196 (2013); 18 U.S.C. § 2721(b)(4). Nor does
the exception for solicitations apply, because the state has not "obtained the express
consent of the person to whom such personal information pertains." 18 U.S.C.
§ 2721(b)(12).
6

no. 15]. Defendant is directed to answer the complaint by no later than August 13,
2015. The case is set for a status hearing on August 20, 2015 at 9:00 a.m. in chambers
(Room 2188) for the purpose of setting a discovery and pretrial schedule and discussing
the possibility of settlement.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: July 28, 2015

7