GAREY, et al v. JAMES S. FARRIN, P.C. et al

Filing 284

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 7/23/2002, that Plaintiffs' Motion for Class Certification, (ECF No. 184 ), and Defendants' Motions to Strike Plaintiffs' Declarations in Support of Class Certification, (ECF Nos. 202 ; 204 ), are each DENIED. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES WEAVER GAREY, et al.,
on behalf of themselves and others similarly situated,
Plaintiffs,
v.
JAMES S. FARRIN, P.C., et al.,
Defendants.

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1:16CV542

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Presently before the Court are Plaintiffs’ motion to certify a class pursuant to Federal
Rule of Civil Procedure 23, (ECF Nos. 184; 220 at 7–16), and Defendants’ related motions to
strike certain declarations filed in support of class certification, (ECF Nos. 202; 204). For the
following reasons, all three motions will be denied.
I.

BACKGROUND
In this action, Plaintiffs allege that Defendants violated the Driver’s Privacy Protection

Act (“DPPA”), 18 U.S.C. § 2721 et seq., by obtaining their names and addresses from
automobile accident reports and using that information for marketing purposes.1 (ECF No.
180.) In North Carolina, law enforcement officers are required to investigate automobile

1

The DPPA makes it “unlawful for any person knowingly to obtain or disclose personal information,
from a motor vehicle record,” for any use other than the fourteen “[p]ermissible uses” enumerated in
the statute. See 18 U.S.C. §§ 2721(b); 2722(a). Further, a person “who knowingly obtains, discloses
or uses personal information, from a motor vehicle record, for [an improper purpose] shall be liable
to the individual to whom the information pertains.” Id. § 2724(a).

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accidents that are reported to them. N.C. Gen. Stat. § 20-166.1(e). Within twenty-four hours,
an investigating officer must “make a written report of the accident” to be furnished to the
state’s Division of Motor Vehicles (the “Division”). See id. The Division makes a standard
crash report form—the DMV-349—available to law enforcement agencies for this purpose.
(See ECF No. 220-13 at 9–15.) Among other information, the form has fields for identifying
each driver involved in the accident, including spaces for name, address, date of birth, and
license number. (See id. at 14.) It is also important to note here that, next to the address field,
the form asks “Same Address on Driver’s License?” and provides checkboxes for officers to
indicate “Yes” or “No.” (See id.)
According to their complaint,2 each of the six named Plaintiffs were involved in car
accidents in 2016. (ECF No. 180 ¶¶ 42–47.) Either local police officers or North Carolina
State Highway Patrol troopers investigated each of the accidents and recorded their findings
on a DMV-349. (Id.; see also, e.g., ECF No. 206-8 at 2.) To complete the form’s driveridentification fields, the investigating officers first asked each Plaintiff for his or her driver’s
license, before then either (a) copying all of the needed information onto a paper form by
hand, (b) entering all of the information manually into an electronic version of the form, or
(c) auto-populating the form, either by typing the license number (only) into a computer or by
scanning a barcode on the back of the license. (See ECF No. 180 ¶¶ 50–51.) In each instance,
the investigating officers also asked the Plaintiff whether the information on his or her license
was still correct, and when each Plaintiff answered in the affirmative, the officer checked the

2

The complaint referenced throughout this opinion is the operative Second Amended and
Supplemental Complaint, (ECF No. 180).
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affiliated “Yes” box mentioned above. (Id. ¶ 52.) The DMV-349 forms were then filed with
the Division. (Id. ¶ 53.)
Not long after their accidents, Plaintiffs began receiving unsolicited marketing materials
from various North Carolina attorneys and law firms, including Defendants, who had obtained
their names and addresses from their respective DMV-349s.3 (See, e.g., ECF Nos. 32-1 through
32-32; 180 ¶¶ 54–114.) The central question forming the basis of this lawsuit is whether, as
Plaintiffs allege, Defendants’ conduct in gathering accident reports and using the information
contained therein to market legal services violates the DPPA.
Plaintiffs filed the instant motion for class certification on October 30, 2019.4 (ECF
No. 184.) The class definition proposed in the motion was sweeping in that it included
virtually every driver identified in a DMV-349 completed by local Raleigh, Greensboro, or
Charlotte law enforcement officers, or by State Highway Patrol troopers in Wake County,
between 2012 and 2016. (See id. at 1–9.) However, in light of objections raised by Defendants
in their response to the motion, Plaintiffs opted to refine the proposed class definition in their
reply brief.5 (See ECF No. 220 at 6.) Under the revised definition, the general class is first
restricted to those who meet the following criteria:

3

It appears that some Defendants collected information from Plaintiffs’ DMV-349s themselves,
whereas others employed a third-party data aggregator to perform this task. (Compare, e.g., ECF No.
220-1 at 24–25, with ECF No. 220-7 at 15–16.)
4

“At an early practicable time after a person sues or is sued as a class representative, the court must
determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A).
5

Revising a proposed class definition in a reply brief is “procedurally appropriate, as the Court retains
jurisdiction to modify the class until there is a decision on the merits.” See Jordan v. Commonwealth Fin.
Sys., Inc., 237 F.R.D. 132, 136 n.3 (E.D. Pa. 2006) (citing Fed. R. Civ. P. 23(c)(1)(C)); Gulino v. Bd. of
Educ. of City Sch. Dist. of City of New York, 201 F.R.D. 326, 330 n.3 (S.D.N.Y. 2001) (permitting revision
3 
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1. A natural person[;]
2. Who is identified as a driver on a DMV-349 accident report[;]
3. Who is shown on said DMV-349 as:
a. Holding a North Carolina Driver’s License; and
b. Having the “Yes” box checked in response to “Same Address on
Driver’s License?”; and
4. Who is not among the following excluded persons:
a. All counsel of record;
b. All employees of the Court;
c. All employees of White & Stradley, PLLC;
d. All employees or principals of any Defendant; and
e. All persons who are currently represented by any Defendant as
of the date of certification;
(Id. at 7.) The definition then sorts potential class members into a set of ten subclasses (and
related sub-subclasses), so as to limit the class to only those individuals whose names and
addresses Defendants actually obtained from DMV-349 forms. For example,6 the “Crumley”
subclass is outlined as such:
The Crumley Class Spreadsheets are those spreadsheets obtained by
Defendant Crumley Roberts from Digital Solutions of the Carolinas, a copy of
each of which was in the possession of Defendant Crumley Roberts as of the
date of its Rule 30(b)(6) deposition.
Crumley [Subclass] Definition:
1. Each person meeting the General Restrictions;
2. Whose name appears on one or more of the Crumley Class
Spreadsheets on the same line as an accident date;
3. Whose name can be matched to a DMV-349 for an accident
occurring on the date indicated on the line of the Class
Spreadsheet where said person’s name appears;

to class definition via plaintiffs’ reply brief “in response to some of [the] objections found in
defendants’ opposition briefs”).
6

While the subclasses vary by Defendants, they are substantively similar enough that the Court need
not list them all here. The full revised class definition, which consumes several pages, is available in
its entirety in Plaintiffs’ reply brief. (See ECF No. 220 at 7–16.)
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4. Where said DMV-349 indicates that the accident was
investigated by the Raleigh Police Department; and
5. Whose accident occurred on or after May 27, 2012.
This Crumley Class applies only to Defendants Crumley Roberts and Chris
Roberts.
(Id. at 13.) Having considered the parties’ briefs and the corresponding evidentiary record,7
the Court finds that the certification question is ripe for disposition.
II.

LEGAL STANDARD
Plaintiffs seeking class certification “must affirmatively demonstrate [their]

compliance” with Federal Rule of Civil Procedure 23. Wal–Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011). Rule 23(a) requires that a prospective class satisfy four prerequisites to ensure
that the class claims are fairly encompassed by those of the named plaintiffs. See Fed. R. Civ.
P. 23(a). These prerequisites are often referred to as numerosity, commonality, typicality, and
adequacy. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019). The Fourth
Circuit has also recognized that Rule 23 “contains an implicit threshold requirement” of
“ascertainability”—that the members of a proposed class be “readily identifiable” by way of
reference to objective criteria. See id. at 654–55. If these initial requirements are met, the
plaintiffs must then demonstrate that the proposed class fits within at least one of the three
types of classes outlined in Rule 23(b). Id. at 655.

7

“When deciding a motion for class certification, . . . an evidentiary hearing is typically held on the
certification issue.” See Monroe v. City of Charlottesville, 579 F.3d 380, 384 (4th Cir. 2009). However,
nothing in the Federal Rules requires such a hearing where, as here, Plaintiffs—who bear the burden
of proving that certification is proper—have not requested one. See L.R. 23.1(b); 5 Moore’s Federal
Practice – Civil § 23.82[2]. The Court therefore proceeds based on the declarations, affidavits,
deposition excerpts, and other evidence formally submitted into the record.
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Although it is Plaintiffs’ burden to demonstrate compliance with Rule 23, this Court
“has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the
prerequisites have been satisfied.” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014)
(quoting Dukes, 564 U.S. at 350–51). As Rule 23’s criteria are often “enmeshed in the factual
and legal issues comprising the plaintiff’s cause of action,” this analysis may entail some
consideration of the merits of the underlying claims. See Dukes, 564 U.S. at 351. However,
“[m]erits questions may be considered . . . only to the extent . . . that they are relevant to
determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc.
v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
III.

ANALYSIS
The parties primarily dispute whether Plaintiffs’ claims present questions in common

with, and are typical of, the class; whether Plaintiffs and their counsel can adequately represent
the interests of the proposed class; and whether the class can be properly certified under either
Rule 23(b)(2) or Rule 23(b)(3). The Court will begin with the threshold 23(a) prerequisites.
Two of the prerequisites, numerosity and ascertainability, require little discussion. The
numerosity of the proposed class is beyond dispute, as Defendants have testified that they
acquired names and addresses from hundreds, if not thousands of DMV-349s per week over
the course of several years. (See ECF No. 185 at 23 (consolidating deposition testimony).)
Furthermore, despite their number, the proposed class members are readily ascertainable. The
parameters of the class are based on (a) spreadsheets and client information in Defendants’
possession and (b) DMV-349s likely still on file with the Division. With those datasets in
hand, it would most certainly be “administratively feasible . . . for the court to determine

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whether a particular individual is a [class] member.” See Krakauer, 925 F.3d at 658; Kingery v.
Quicken Loans, Inc., 300 F.R.D. 258, 264 (S.D.W. Va. 2014) (finding class ascertainable even
though “some effort to sift through [defendant’s] data warehouse” would be required). The
remaining prerequisites of commonality, typicality, and adequacy of representation require
greater discussion.
A. Commonality
Certification is only appropriate if “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). Because “any competently crafted class complaint literally
raises common questions”—Were the drivers involved in car accidents? Was a DMV-349
form created by an investigating officer in each instance? Did the Defendants obtain those
accident reports?—what matters most to commonality is “the capacity of a class-wide
proceeding to generate common answers apt to drive the resolution of the litigation.” See Dukes,
564 U.S. at 349–50. Further, although Rule 23(a)(2) speaks of “questions,” plural, “[a] single
common question will suffice,” so long as it is “of such a nature that its determination ‘will
resolve an issue that is central to the validity of each one of the claims in one stroke.’” EQT,
764 F.3d at 360 (citing Dukes, 564 U.S. at 350, 359).
The instant suit raises (at least) three questions which, on their faces, are both central
to any member’s claim—and thus have the potential to unite class members under a “common
contention,” see Dukes, 564 U.S. at 350—but not so inherently sweeping as to necessarily
encompass differences that may impede common adjudication: (1) whether the name and
address information in class members’ DMV-349s was derived from “motor vehicle records”
(as that term is understood in the DPPA context); (2) whether Defendants knowingly obtained

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that information; and, (3) if so, whether they did so for an impermissible purpose. Based on
the materials submitted, the latter two questions appear well-suited to common resolution—
an answer of “yes, they did” or “no, they did not” will apply equally to all class members and
“resolve an issue central to the validity” of each member’s DPPA claim. Thus, the Court finds
that their existence is sufficient to meet Rule 23(a)’s threshold commonality requirement.
The first question, however—whether each class member’s information was obtained
from a “motor vehicle record”—warrants further discussion; if not for commonality (which
has been met), then for the related requirements of typicality (under 23(a)(3)) and
predominance (under 23(b)(3)), as discussed below. See 1 Newberg on Class Actions §§ 3:25–
3:27 (5th Ed. 2020) (hereinafter “Newberg”) (noting overlap among these requirements). The
DPPA only imposes liability for personal information that has been obtained “from a motor
vehicle record.” See 18 U.S.C. § 2722(a). “The origin of the information is thus crucial to the
illegality of [Defendants’ conduct]—the statute is agnostic to the [use] of the very same
information acquired from a lawful source.” Dahlstrom v. Sun–Times Media, LLC, 777 F.3d 937,
949 (7th Cir. 2015). Put another way: the validity of any DPPA claim hinges not just on the
kind of information at issue, but the source of that information as well.
Plaintiffs have failed to persuade the Court that this central merits question—Where
did the information come from?—can ultimately be answered with class-wide proof. The
DPPA defines a “motor vehicle record” as “any record that pertains to a motor vehicle
operator’s permit, motor vehicle title, motor vehicle registration, or identification card issued
by a department of motor vehicles.” 18 U.S.C. § 2725(1). In light of that definition, no party
has argued that accident reports are themselves “motor vehicle records.” Rather, Plaintiffs

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proceed under the theory that, when an accident occurs, the investigating officer gathers name
and address information from either a driver’s license or a database operated by the Division,
and that that information retains a motor-vehicle-record character even as it becomes part of
another document.8 (See, e.g., ECF Nos. 185 at 2; 220 at 25.)
The evidentiary problem with this theory is twofold. First, the record shows that name
and address information included in DMV-349s sometimes comes from sources other than
driver’s licenses or Division databases. For example, “on occasion, a trooper might respond
to an accident and discover that a driver does not have his license.” (ECF No. 185-10 at 5.)
In those cases, the driver might “orally give the trooper the information to input into the
accident report, such as the driver’s name, address, and license number.” (Id.; see also ECF
Nos. 206-2 at 19; 206-4 ¶ 3.) Alternatively, “[a]n officer could also have the driver write her
name and address, or provide a school ID, work ID, credit card, or other government ID.”
(ECF No. 206-4 ¶ 4.) These non-motor-vehicle-record sources can, of course, serve as a
starting point for an officer to auto-populate a DMV-349 with information by using a
Division-run database. However, the record shows that there are instances in which the autopopulation function is unavailable; perhaps due to a poor internet connection, or because the
database itself is down.9 (See ECF Nos. 185-10 ¶ 12; 185-11 ¶ 8.) In short, the names and

8

The parties disagree as to whether a driver’s license—in possession of its owner, but relinquished at
the request of an investigating officer—is, in fact, a “motor vehicle record.” (See ECF Nos. 206 at 8–
10; 220 at 27.) However, because the instant motion for class certification does not depend on
resolution of that question, the Court declines to answer it at this time.
9

It appears that some law enforcement agencies make non-Division databases available for autopopulating accident report forms. (See, e.g., ECF No. 185-9 ¶¶ 4, 7 (“When completing DMV-349
reports, [Greensboro Police Department] officers may seek to verify the identity of the drivers and
vehicles through the Department’s [Records Management System].”).) Whether these databases rely
on or call up Division-based records is unclear.
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addresses found in DMV-349s do not necessarily originate from a driver’s license or Divisionrun database.
That the identifying information in DMV-349s comes from multiple sources—some
“motor vehicle records,” some not—wouldn’t present a serious issue if the source of the
information in each form could be easily known. Were that the case, Plaintiffs could further
refine the proposed class to include only those individuals whose information was derived
from DPPA-protected sources. However, herein lies the second facet of the problem: once a
DMV-349 is completed and submitted, there is no way to tell the source of the information
on the form. (See, e.g., ECF Nos. 185-9 ¶¶ 8–9; 185-10 ¶ 16; 206-2 at 19; 206-4 ¶¶ 3, 5.)
Because a DMV-349 which includes DPPA-protected information appears indistinguishable
from one that doesn’t, the question of whether the information obtained by Defendants came
“from a motor vehicle record” does not lend itself to a common answer.
Plaintiffs argue that, by limiting their proposed class to only those individuals whose
DMV-349s have the “Yes” box checked next to the “Same Address on Driver’s License?”
prompt, the “from a motor vehicle record” element “can be proved on a class-wide basis with
common proof.” (See ECF No. 220 at 20–25.) In essence, their argument is that North
Carolina has a “uniform procedure” for completing DMV-349s, (id. at 21), pursuant to which
investigating officers are trained to mark the “Yes” box “only if the officer has compared the
current address to the license or to a [Division] database,” (id. at 23). Thus, they contend, a
class limited to only those individuals with their “Yes” boxes checked is a class whose DMV349 information “is the same as the information on [their] license[s] or in [their] record[s] in the
[Division] database.” (Id. at 30.)

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In response to this “verification” argument, Defendants first suggest that the policy of
checking the “Yes” box to signal confirmation may not, in fact, be uniformly followed across
all North Carolina law enforcement agencies. (See ECF No. 232 at 5–6.) However, even
assuming that all investigating officers follow the same procedure—only checking “Yes” if
they have actually verified a driver’s information against either her license or a Division
database—Plaintiffs’ theory faces another hurdle. Information flowing from a non-DPPAprotected source does not automatically garner statutory protection whenever it is confirmed
to be “the same as” information in a “motor vehicle record.” As explained above, “[a] plain
reading of the DPPA makes clear that the Act was intended to prohibit only the disclosure or
redisclosure of information originating from [motor vehicle records].” See Siegler v. Best Buy Co.
of Minn., Inc., 519 F. App’x 604, 605 (11th Cir. 2013). The record, here, however, makes clear
that answering “Yes” to the “Same Address on Driver’s License?” question in no way alters
the source of the information on a DMV-349; rather, it merely signals to the Division “whether
its internal records have the driver’s most current address.” (See ECF No. 185-10 ¶ 11); see also
New Richmond News v. City of New Richmond, 881 N.W.2d 339, 356 (Wis. Ct. App. 2016)
(concluding that “information that is obtained from another source and subsequently verified
using DMV records is not subject to the DPPA, as long as, upon verification, the information
is not substantively altered to conform to the DMV records”).
Thus, Plaintiffs have not yet shown that the common and also crucial question of
whether each class member’s information was obtained “from a motor vehicle record” can be
answered “in one stroke.” Rule 23(a) commonality is still satisfied here, as the class members
are united by the two other common questions of law and fact discussed above. However, as

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explained further below, the inability to readily determine the source of any given class
member’s DMV-349 information weighs heavily against certification.
B. Typicality
The next prerequisite is that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality does not
require “that the plaintiff’s claim and the claims of class members be perfectly identical or
perfectly aligned”—some minor variation between a named plaintiff’s individual claim and
those of the class members she aims to represent is to be expected. See Dieter v. Microsoft Corp.,
436 F.3d 461, 467 (4th Cir. 2006). However, courts will readily deny class certification “when
the variation in claims strikes at the heart of the respective causes of actions.” See id. That is
the case here. According to the complaint, the officer investigating each of the named
Plaintiffs’ accidents asked for (and was given) the Plaintiff’s driver’s license, then used that
license to complete a DMV-349. (See ECF No. 180 ¶¶ 50–51.) However, as explained above,
this experience is not necessarily typical.10 Not all DMV-349s are completed using a driver’s
license, and, sometimes, officers may not gather information “from a motor vehicle record”
at all.
In another DPPA case involving accident reports and the marketing of legal services,
the Northern District of Illinois declined to certify a proposed class based, in part, on its
finding that typicality was lacking. See Pavone v. Meyerkord & Meyerkord, LLC, 321 F.R.D. 314,

10

In fact, not even all of the named Plaintiffs appear to have shared this experience. Contradicting
the complaint, Plaintiff Justin Blakeslee testified in his deposition that the officer investigating his
accident did not actually ask him for his driver’s license or registration. (See ECF No. 206-5 at 11.)

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323 (N.D. Ill. 2017). There, as here, the evidence revealed that police officers throughout the
state prepared accident reports “using various sources of information and not necessarily from
a driver’s license,” as had been the case for the named plaintiff. Id. In light of that variability,
the court concluded that the named plaintiff’s DPPA claims “d[id] not have the same essential
characteristics as the class claims” and were therefore not typical.11 See id. This Court reaches
the same conclusion and finds that Plaintiffs have not demonstrated typicality.
Because the prerequisite of typicality is absent here, certification is inappropriate. This
would generally end the Court’s inquiry; however, because of the Court’s obligation to conduct
a “rigorous analysis” of Rule 23’s criteria, and to avoid arguments raised but not addressed
serving as the basis of future litigation, the Court, in the interest of judicial economy, will
discuss the remaining arguments for and against certification.
C. Adequacy of Representation
Representative parties and class counsel must “fairly and adequately protect the
interests of the class.” Fed. R. Civ. P. 23(a)(4), (g)(4); see also Sharp Farms v. Speaks, 917 F.3d
276, 290 & n.7 (4th Cir. 2019). Defendants challenge the adequacy of both Plaintiffs and their
counsel, White & Stradley, PLLC, to represent the proposed class. (See ECF Nos. 201 at 14–
22, 35–39; 206 at 15–18; 232 at 12–16.) In order to properly consider their arguments,

11

In Wilcox v. Swapp, the Eastern District of Washington certified a class whose members had likewise
had their personal information obtained from accident reports by a law firm. See 330 F.R.D. 584, 589,
599 (E.D. Wa. 2019). The distinguishing feature of that case, however, was that the class was limited
to “drivers identified in Police Traffic Collision Reports whose Personal Information, as defined by the
DPPA, was derived from a Department of Licensing record (e.g. license, registration or database)” and
obtained by the defendant firm. Id. at 589–90 (emphasis added). Because every class member’s
information, by definition, was derived “from a motor vehicle record,” the court determined that the
class “[did] not suffer from the same typicality deficiencies that the proposed classes in Pavone . . .
presented.” Id. at 592.

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however, the Court must first address two pending motions, filed by Defendants, to strike
certain declarations which specifically relate to the question of adequacy. (ECF Nos. 202;
204.)
In support of their motion, Plaintiffs submitted a set of twelve affidavits and
declarations. (ECF Nos. 185-1 through 185-12.) Six of those declarations belonged to the
named Plaintiffs—one attributable to each—and, except for some minor differences, were
substantively identical. (See ECF Nos. 185-1 through 185-6.) A seventh, relevant here, came
from Plaintiffs’ attorney, J. David Stradley. (ECF No. 185-12.)
Defendants move to strike the seven described declarations on two main grounds.
First, they contend that Plaintiffs’ declarations are “improper attempt[s] to contradict . . . prior
deposition testimony.” (See, e.g., ECF No. 226 at 14.) During their depositions, Plaintiffs
sometimes displayed a questionable understanding of their responsibilities as potential class
representatives. (See, e.g., ECF Nos. 206-9 at 46; 206-14 at 8; 206-15 at 11.) However, their
declarations—signed just a few days later—state in no uncertain terms that all Plaintiffs are
“prepared to fulfill” the specific duties required of class representatives. (See, e.g., ECF No.
185-1 ¶¶ 7–10.) Based on these differences, Defendants argue that the depositions and
declarations conflict to such a degree that the latter should be stricken entirely. (See, e.g., ECF
No. 205 at 4–8.)
It is true that “a party cannot create a genuine issue of fact . . . simply by contradicting
his or her own previous sworn statement . . . without explaining the contradiction or

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attempting to resolve the disparity.”12 Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806
(1999). However, Plaintiffs assert that the purpose and effect of their declarations is not to
reverse prior statements of fact, but rather to demonstrate that they recall (or have since more
fully learned about about) their fiduciary responsibilities to the proposed class. (See ECF No.
219 at 3.) Having compared the depositions and declarations, the Court finds this explanation
satisfactory.
Defendants’ second argument is that all of the declarations should be stricken because,
in their original form, they did not include language stating that they were true and accurate
under penalty of perjury. (See, e.g., ECF No. 205 at 2–4.) However, Plaintiffs readily
acknowledged this defect, (see ECF No. 219 at 2), and have since filed supplemental
declarations which include the words “I declare under penalty of perjury that the foregoing is
true and correct,” (see, e.g., 220-18 ¶ 18). Defendants do not dispute that this change brings
the declarations into technical compliance with 28 U.S.C. § 1746, the statute governing
unsworn affidavits. Further, although the supplemental declarations were submitted two-anda-half months after the deadline to move for class certification, (see id. at 5; July 6, 2019 Text
Order), it is within this Court’s discretion to consider them, see Monroe, 579 F.3d at 384
(deferring “to the right of a district court to set and enforce . . . filing deadlines” related to
class certification).

12

This “sham-affidavit” rule usually arises in the summary judgment context. See, e.g., Kinser v. United
Methodist Agency for the Retarded–W. N.C., Inc., 613 F. App’x 209, 210 (4th Cir. 2015). However, other
district courts have applied the rule when striking flatly contradictory evidence at the class certification
stage. See, e.g., Alig v. Quicken Loans Inc., No. 5:12-CV-114, 2017 WL 5054287, at *13 (N.D.W. Va. July
11, 2017).
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For these reasons, Defendants’ motions to strike will both be denied, and the Court
will scrutinize the declarations alongside Plaintiffs’ deposition testimony as it conducts its
adequacy analysis.
i.

Plaintiffs’ knowledge and involvement.

The adequacy inquiry entails an investigation into the representatives’ knowledge—
both of the case and of their duties to the proposed class—as well as their credibility and
integrity. See generally id. at 385; Newberg §§ 3:67–3:68. Certification may be inappropriate
where the named plaintiffs demonstrate so little understanding of their case, or take so light a
hand in its direction, as to raise doubts about their ability to protect the interests of the class.
See 1 McLaughlin on Class Actions § 4:29 (16th ed. 2019). “Generally,” however, “the
representative’s understanding of the basic facts underlying the claims, [along with] some
general knowledge of and a willingness and ability to participate in discovery are sufficient to
meet this standard.” See id.; see also Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 430 (4th Cir.
2003) (“It is hornbook law . . that in a complex lawsuit . . . the representative need not have
extensive knowledge of the facts of the case in order to be an adequate representative.”).
Defendants highlight portions of Plaintiffs’ depositions which, they contend, show that
Plaintiffs lack sufficient understanding and control of this case. (See, e.g., ECF No. 206 at 15–
18.) For example, some Plaintiffs testified that they had not read the complaint before it was
filed, (see, e.g., ECF Nos. 206-13 at 6; 206-15 at 9), while others indicated that they had not
attentively followed the case’s progress, (see, e.g., ECF Nos. 206-9 at 45; 206-14 at 7). Some
could not articulate the composition of the proposed class, (see, e.g., ECF Nos. 206-5 at 31;
206-9 at 35), or state with specificity the duties of a class representative, (see, e.g., ECF No. 206-

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15 at 11). However, if the Court looks only slightly beyond these handpicked excerpts, it
becomes clear that Plaintiffs have the requisite knowledge and interest to clear the low bar for
adequacy. With the exception of Plaintiff Steinmetz, who more recently joined this suit, each
has been involved in this case for more than three years. All have prepared for and attended
hours-long depositions, during which they evinced knowledge of and about the DPPA and
Defendants’ alleged misconduct. (See ECF No. 220 at 57–64 (collecting deposition passages
supporting adequacy).) Further, while the timing (swiftly after depositions) and content
(boilerplate) of the declarations discussed above give the Court pause, they ultimately
contribute to, rather than detract from, a sense of adequacy—in each, the Plaintiffs pledge to
“control, guide, and direct [their] attorneys in the prosecution of the lawsuit, in the best
interests of the class members.” (See, e.g., ECF No. 220-20 ¶ 10(c).) In sum, the Court finds
that Plaintiffs have a reasonable understanding of and investment in this suit, which is all that
is required. Compare Clark v. Duke Univ., No. 1:16-CV-1044, 2018 WL 1801946, at *7
(M.D.N.C. Apr. 13, 2018) (concluding, based on declarations and participation in depositions,
that named plaintiffs would adequately represent a class), with Monroe, 579 F.3d at 385
(affirming district court’s decision not to certify class when named plaintiff “had little interest
in or knowledge and understanding of the case” and “offered virtually no evidence refuting
glaring questions as to his adequacy as a class representative”).
ii.

Potential beneficiaries and damages waiver.

Defendants also assert that Plaintiffs cannot adequately represent the proposed class
because some class unnamed members may have actually appreciated receiving Defendants’
marketing letters. (See, e.g., ECF No. 206 at 13.) Generally speaking, a class should not be

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certified when a fundamental conflict of interest exists between named plaintiffs and the class
they seek to represent. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997); Sharp Farms,
917 F.3d at 290, 295. However, the Court does not agree that there is a fundamental conflict
between those who found Defendants’ conduct annoying, harmful, or invasive, and those who
found it helpful. “[I]t will almost always be the case that some member in a large class prefers
the status quo for some reasons.” Newberg § 3:64. And here, it is hard to see what those
class members who ostensibly benefitted from Defendants’ conduct would have to lose if the
class were certified—they, too, could receive $2,500 in liquidated damages if Plaintiffs
prevailed, and, having been made aware of Defendants through past mailings, would remain
free to seek their legal services in the future. See Sharp Farms, 917 F.3d at 295 (explaining that
“[a] conflict is not fundamental when” all members of the proposed class “have the same
interest in establishing the liability of defendants”).
In a related, but somewhat inverse argument, Defendants also fault Plaintiffs for
disclaiming monetary damages in excess of the $2,500 floor provided for in the DPPA.13 (See,
e.g., ECF No. 206 at 19.) The contention here appears to be that, in addition to neglecting the
interests of class members who may have been harmed less, Plaintiffs have also disregarded
the interests of class members who may have been harmed more, so as to more easily facilitate
class certification. Class representatives have a “fiduciary duty not to throw away what could

13

For a DPPA violation, the Court “may award,” among other relief, “actual damages, but not less
than liquidated damages in the amount of $2,500.” See 18 U.S.C. 2724(b). According to the complaint,
Plaintiffs have limited the monetary damages they seek to “liquidated damages . . . in the amount of
$2,500.00 for each instance in which a Defendant knowingly obtained, or caused to be obtained, [a]
Plaintiff’s or Class Member’s personal information” in violation of the DPPA. (See ECF No. 180 at
65.) These damages are sought “in lieu of actual damages.” (Id. ¶ 158.)
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be a major component of the class’s recovery,” see Standard Fire Ins. Co. v. Knowles, 568 U.S.
588, 594 (2013), and while the Court is skeptical that the conduct at issue here would give rise
to actual damages in excess of $2,500, some of the Plaintiffs have at least acknowledged that
possibility, (see ECF Nos. 206-9 at 50; 206-12 at 27). Nevertheless, the proposed damages
limitation does not appear to be so significant that it should preclude a finding of adequacy.
Cf. Krakauer, 925 F.3d at 649–51 (upholding class certification in case alleging violations of the
Telephone Consumer Protection Act, which, like the DPPA, entitles a successful plaintiff “to
receive the greater of either his actual loss or statutory damages”); Stillmock v. Weiss Mkts., Inc.,
385 F. App’x 267, 273 (4th Cir. 2010) (quoting Murray v. GMAC Mortg. Corp., 434 F.3d 948,
953 (7th Cir. 2006) (“Unless a district court finds that personal injuries are large in relation to
statutory damages, a representative plaintiff must be allowed to forego claims for
compensatory damages in order to achieve class certification.”)).
iii.

Adequacy of class counsel.

Certain Defendants separately challenge White & Stradley, PLLC’s adequacy to serve
as class counsel. (See, e.g., ECF No. 201 at 35–39.) Their primary contention, which appears
throughout this litigation, is that White & Stradley cultivated this action with the goal of
“[c]rippling” Defendants, who are “its main business competitors.” (See id. at 1, 36.) They
note that White & Stradley ran radio ads soliciting individuals to participate in this suit, but
fail to explain why that should matter to the adequacy inquiry. (See id. at 35.) They draw
attention to the fact that White & Stradley is “funding the cost” of this action, but the
contingency fee agreements between counsel and Plaintiffs appear to be familiar and otherwise

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unobjectionable.14 (See id. at 14; ECF No. 220-23 at 8.) Finally, they point out that Plaintiffs
have chosen not to sue several other law firms that engaged in similar marketing practices as
Defendants, but do not cite any cases or secondary authority showing that this strategic
decision should impact the adequacy inquiry. (See ECF No. 201 at 38–39.)
The limited strength of these arguments—each weak on its own—is the somewhat
tainted impression they may create together.

Without further support, however, this

impression is not enough to defeat adequacy; as Plaintiffs point out, Defendants have failed
to proffer any actual evidence showing “that White & Stradley, PLLC is a main business
competitor (or even a minor business competitor) of any Defendant,” or that “the goal of the
action is to obtain a competitive business advantage.” (See ECF No. 220 at 71–72.) Thus, the
Court will not find that White & Stradley are inadequate class counsel on those grounds.
Having concluded that Plaintiffs and their counsel would adequately represent the
class, the Court has reached the end of its 23(a) analysis. To summarize: although the
requirements of numerosity, ascertainability, commonality, and adequacy have been met,
typicality is lacking. The Court now turns its attention to whether the proposed class can be
certified under Rules 23(b)(2) or (b)(3).

14

Based on deposition testimony in which some Plaintiffs stated that they did not expect to ever bear
the costs of this suit, (see, e.g., ECF No. 206-9 at 31), Defendants initially argued that Plaintiffs’ fee
agreements violated North Carolina public policy, (see ECF No. 201 at 15 (citing In re Krispy Kreme
Doughnuts Inc. S’Holder Litig, 2018 NCBC 58, 2018 WL 3062205, at *9–11 (N.C. Super. Ct. June 20,
2018)). However, Plaintiffs have since made copies of each of their fee agreements available, refuting
this contention. The agreements provide, in relevant part, that if White & Stradley is unable to recover
costs from Defendants, each Plaintiffs’ “pro rata share of such unreimbursed expenses may be
deducted from [his or her] share of any settlement of judgment.” (See, e.g., ECF No. 220-23 at 8.)
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D. Certification Pursuant to Rule 23(b)(2)
A class may be certified under 23(b)(2) if each of the 23(a) requirements have been met
and “the party opposing the class has acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
Because the threshold requirement of typicality under 23(a) has not been met, (b)(2)
certification is unavailable. In addition, discovery has cast serious doubt on whether Plaintiffs
have standing to pursue injunctive relief at all. (See ECF No. 206 at 21); Curtis v. Propel Prop.
Tax Funding, LLC, 915 F.3d 234, 240 (4th Cir. 2019) (“In a class action case, we look to the
standing of the named plaintiff[s].”) “[C]ertification under Rule 23(b)(2) is appropriate only if
members of the proposed class would benefit from the injunctive relief they request,” Thorn
v. Jefferson–Pilot Life Ins. Co., 445 F.3d 311, 331 (4th Cir. 2006), and it is well established that an
anticipated injury should be “certainly impending” to serve as the basis for standing to seek
an injunction, see Griffin v. Dep’t of Labor Fed. Credit Union, 912 F.3d 649, 655 (4th Cir. 2019).
Since the beginning of this litigation, however, a majority of the named Plaintiffs have testified
to their belief that it is unlikely that they will suffer any future harm from the Defendants, with
or without an injunction. (See ECF Nos. 206-5 at 37; 206-13 at 24–25; 206-14 at 23; 206-15
at 42.) Though Defendants have raised this standing issue, Plaintiffs have made no attempt—
not even a passing reference in their voluminous briefing—to respond.15

15

The question of whether Plaintiffs have standing to pursue injunctive relief is also raised in a pending
motion to dismiss. (See ECF Nos. 188; 189 at 22–26.) There, too, Plaintiffs have fully ignored the
issue. (See ECF Nos. 213 (failing to address whether the Plaintiffs have standing for injunctive relief);
221 at 1–2 (noting that “Plaintiffs’ response brief ignores this . . . argument entirely”)); Modern Auto.
Network, LLC v. E. All. Ins. Co., 416 F. Supp. 3d 529, 546 (M.D.N.C. 2019) (“Typically, ‘a party’s
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Because the threshold requirement of typicality has not been satisfied, and Plaintiffs’
standing to pursue injunctive relief is questionable, the Court finds that (b)(2) certification
would be improper at this time.
E. Certification Pursuant to Rule 23(b)(3)
In the alternative, Plaintiffs seek certification under Rule 23(b)(3). (See ECF No. 220
at 40–45.) Again, assuming the requirements of 23(a) have been met, a plaintiff may obtain
(b)(3) certification if “the court finds that questions of law or fact common to class members
predominate over any questions affecting only individual members,” and “a class action is superior
to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ.
P. 23(b)(3) (emphasis added). While Plaintiffs’ request for (b)(3) certification is likewise
stymied by their failure to satisfy 23(a), the Court will briefly discuss the other aspects of
(b)(3)—predominance and superiority.
The Rule 23(b)(3) predominance inquiry overlaps with the commonality requirement
in 23(a)(2). See Amchem, 521 U.S. at 623–24. However, the former is “more demanding,” as
its focus is “not only on the existence of common questions, but also on how those questions
relate to the controversy at the heart of the litigation.” See EQT, 764 F.3d at 366. As explained
above, there are several questions here that are susceptible to common resolution—most
notably whether Defendants obtained the class members’ names and addresses, and whether
they did so for an improper purpose. However, Plaintiffs have not shown that an equally
important, predicate question—whether that information was derived “from a motor vehicle

failure to address an issue in its opposition brief concedes the issue.’” (quoting Oliver v. Baity, 208 F.
Supp. 3d 681, 690 (M.D.N.C. 2016))).
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record”—can be answered without individualized, fact-intensive investigations into each class
member’s accident. See Amchem, 521 U.S. at 623 (noting that the predominance inquiry “trains
on the legal or factual questions that qualify each class member’s case as a genuine
controversy”). With no swift mechanism for determining the source of the identifying
information contained in each DMV-349, it is easy to imagine trial of this action becoming
unwieldy, and individualized assessments of liability “overwhelm[ing] the common ones.” Cf.
Basic Inc. v. Levinson, 485 U.S. 224, 242 (1988) (noting that, if individualized proof of a crucial
element of a cause of action had been required, it “effectively would have prevented
respondents from proceeding with a class action”). Thus, the Court declines to find that “the
common, aggregation-enabling, issues in [this] case are more prevalent or important than the
non-common, aggregation-defeating, individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 136 S.
Ct. 1036, 1045 (2016); see also Pavone, 321 F.R.D. at 322.
This inability to readily determine whether information came “from a motor vehicle
record” impacts the other (b)(3) inquiry—superiority—as well. In certain ways, representative
litigation would be an appropriate vehicle for adjudicating this controversy. Each individual
member’s claim is small, and despite the availability of attorneys’ fees, there appears to have
been little appetite for pursuing this particular kind of action alone. See Fed. R. Civ. P.
23(b)(3)(A).

Nevertheless, the same evidentiary concerns undermining typicality and

predominance rear their head when the Court considers “the likely difficulties in managing a
class action.” See Fed. R. Civ. P. 23(b)(3)(D). Aside from the “verification” argument
dispensed with above, Plaintiffs have failed to suggest any method for handling the

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innumerable mini-trials that would be needed to uncover the source of each member’s DMV349 information, the sheer volume of which would make a class action unmanageable.16
IV.

CONCLUSION
In conclusion, the Court declines to certify the proposed class. While the prerequisites

of numerosity, commonality, adequacy, and ascertainability are satisfied, a fundamental proof
problem—the inability to determine the source of the information contained in any particular
DMV-349—defeats typicality. Additional concerns related to standing and injunctive relief
further weigh against certification under Rule 23(b)(2). Finally, because the individualized
evidentiary problems pertaining to informational sources are likely to predominate (and, in
turn, make class action an inferior method of adjudication), Rule 23(b)(3) certification is
improper.
For the reasons stated herein, the Court enters the following:
[ORDER TO FOLLOW]

16

Defendants also argue that (b)(3) certification is inappropriate where a class carries the potential for
“annihilating liability” grossly disproportionate to “harms that are virtually nonexistent.” (See ECF
Nos. 201 at 33–34; 206 at 41–46.) Whether a district court should consider the likelihood of ruinous
liability at the certification stage is the subject of some disagreement. Compare, e.g., Stillmock, 385 F.
App’x at 278 (Wilkinson, J., concurring) (urging district courts to consider annihilating liability in the
context of (b)(3) superiority analysis “when a plaintiff class whose members suffered no identity theft
of any sort still threatens to wipe an entire company off the map”), with Murray, 434 F.3d at 953–54
(“While a statute remains on the books, . . . it must be enforced rather than subverted. An award that
would be unconstitutionally excessive may be reduced, . . . but constitutional limits are best applied
after a class has been certified.”). However, because this Court has decided not to certify the proposed
class for a variety of other reasons, it chooses not to wade into that debate here.
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ORDER
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Class Certification, (ECF
No. 184), and Defendants’ Motions to Strike Plaintiffs’ Declarations in Support of Class
Certification, (ECF Nos. 202; 204), are each DENIED.
This, the 23rd day of July 2020.
/s/Loretta C. Biggs
United States District Judge

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