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

Filing 313

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 9/28/2020, that the Fox Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint, (ECF No. 188 ), is GRANTED as to the dismissal of Plaintiffs' claim for injunctive relief and DENIED as to whether Plaintiffs have sufficiently alleged Article III standing and the availability of liquidated damages. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM PARKER 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.
Plaintiffs initiated this action alleging that the above-named Defendants violated the
Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721, et seq. (ECF Nos. 1, 32, 180.)
Before the Court is the Fox Defendants’1 Motion to Dismiss Plaintiffs’ Second Amended
Complaint filed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF No. 188.) For the reasons set forth below, this motion is granted in part
and denied in part.

1 “Fox Defendants” refer collectively to James S. Farrin, P.C. d/b/a Law Offices of James Scott Farrin; James
S. Farrin; Marcari, Russotto, Spencer & Balaban, P.C.; Donald W. Marcari; Riddle & Brantley, L.L.P.; Sean A.
Cole; Wallace Pierce Law, PLLC; Jared Pierce; Van Laningham & Associates, PLLC d/b/a Bradley Law Group;
R. Bradley Van Laningham; Lanier Law Group, P.A.; Lisa Lanier; Crumley Roberts, LLP; Chris Roberts;
Hardison & Cochran, PLLC; Benjamin T. Cochran; Hardee & Hardee LLP; Charles Hardee; G. Wayne Hardee;
and Katherine E. Andrews-Lanier.

I.

BACKGROUND
The Court first incorporates by reference the factual background set forth in its July

23, 2020, Memorandum Opinion and Order denying class certification. (See ECF No. 284 at
1–3.) In addition, the Court will set forth a brief summary of the procedural history that has
led to the current posture.
Plaintiffs filed their initial Complaint on May 27, 2016, and later on August 22, 2016,
filed their First Amended Complaint. (ECF Nos. 1, 32.) On September 28 and November
29, 2016, Defendants filed three motions to dismiss Plaintiffs’ First Amended Complaint for
lack of subject matter jurisdiction and failure to state a claim. (ECF Nos. 60, 62, 79.) The
Court denied each motion and held, among other rulings, that Plaintiffs “have plausibly alleged
sufficient facts to establish standing to sue under the DPPA.” (ECF No. 93 at 23.)
On October 24, 2019, Plaintiffs filed a Second Amended Complaint with, as explained
below, relatively minor changes. (ECF No. 180.) Fox Defendants contend that the differences
between the First and Second Complaints are material and now move to dismiss this complaint
pursuant to Rules 12(b)(1) and 12(b)(6), (ECF Nos. 188, 189), arguing that (1) merely obtaining
public information is not sufficient to establish an Article III injury-in-fact; (2) Plaintiffs are
not entitled to recover liquidated damages because they have not suffered “actual damages”;
and (3) injunctive relief is unavailable in this case. (ECF No. 189 at 2.)2 Fox Defendants
additionally seek to take advantage of intervening discovery between the First and Second

Fox Defendants additionally move to dismiss a claim alleging a violation of the Uniform Voidable
Transactions Act (“UVTA”) under N.C. Gen. Stat. §§ 39-23.1 et seq. (ECF No. 189 at 18 n.4.) As Fox
Defendants note in their brief, the resolution of this claim depends only on the Court’s decision on standing.
(See id. (arguing for a dismissal under Rule 12(b)(6) “because it fails to state a claim upon which relief can be
granted”).) Thus, given the Court’s finding below that Plaintiffs continue to plausibly allege sufficient facts to
support standing, this motion must likewise fail as to the UVTA claim.

2

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Amended Complaints to highlight new evidence and mount both facial and factual challenges
to Plaintiffs’ allegations. (Id. at 6–7.)
II.

ARTICLE III STANDING
Fox Defendants first challenge Plaintiffs’ claim to standing and argue that the mere

obtainment of DPPA-protected information is a “bare statutory violation” that does not
satisfy Article III’s injury-in-fact requirement. (ECF No. 189 at 6–8.)
The jurisdiction of a federal court is limited to cases and controversies under Article
III of the United States Constitution. U.S. Const. art. III, § 2. Standing to sue, therefore,
“ensure[s] that federal courts do not exceed their authority.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1547 (2016). To establish constitutional standing at the motion to dismiss stage,
Plaintiffs must plausibly allege that they have: “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Id. Plaintiffs bear the burden of establishing these elements.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “Where, as here, a case is at the pleading
stage, [Plaintiffs] must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, 136 S.
Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
To establish an injury-in-fact, a plaintiff “must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual and imminent,
not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). The Supreme
Court held in Spokeo that “intangible injuries can . . . be concrete” but specifically rejected the
idea that the violation of a statute “automatically satisfies the injury-in-fact requirement” on
its own when merely a “bare procedural violation” has occurred. Id. at 1549. The Court did

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note, however, that “the violation of a procedural right granted by statute can be sufficient in
some circumstances to constitute injury in fact” and, in these instances, a plaintiff “need not
allege any additional harm beyond the one Congress has identified.” Id. To determine whether
a statutory violation is the type of violation that meets this bar, “it is instructive to consider
whether an alleged intangible harm has a close relationship to a harm that has traditionally
been regarded as providing a basis for a lawsuit in English or American courts.” Id.
As stated earlier, Fox Defendants lodge both facial and factual challenges. (ECF No.
189 at 6.) In a facial challenge, the facts alleged in the complaint are generally regarded as true
and the plaintiff is entitled to the same protections available under a Rule 12(b)(6) motion.3
Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017). When a defendant, however, challenges
“the veracity of facts underpinning subject matter jurisdiction,” they make a factual challenge.
Kerns v. U.S., 585 F.3d 187, 193 (4th Cir. 2009). In a factual challenge, a court may go beyond
the complaint’s mere allegations and consider whether facts that have been developed in
evidentiary proceedings are plausible to support the plaintiff’s pleading. Id. In such a case,
“the presumption of truthfulness normally accorded a complaint’s allegations does not apply,”
id. at 192, and “the plaintiff bears the burden of proving the truth of such facts by a
preponderance of the evidence,” U.S. ex rel Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009).
The Court will first consider Fox Defendants’ facial challenge.

A motion to dismiss filed pursuant to Rule 12(b)(6) “challenges the legal sufficiency of a complaint.” Francis
v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
3

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A.

Facial Challenge

As outlined above, this Court earlier addressed—and rejected—a facial challenge to
Plaintiffs’ Article III standing in an order dated September 29, 2017, denying motions to
dismiss Plaintiffs’ First Amended Complaint. (ECF No. 93 at 15.) The Court concluded that
the allegations of injury stemming from Defendants’ alleged obtainment, use, and disclosure
of DPPA-protected information in the First Amended Complaint were sufficiently concrete
to plausibly support Article III standing. (ECF No. 93 at 9.)
On September 30, 2019, Plaintiffs brought a motion for leave to file a Second
Amended Complaint. (ECF No. 176.) In that motion, Plaintiffs argued that the new
complaint would “streamline[] the case” and seek liquidated damages “only for the
Defendants’ obtaining of Plaintiffs’ personal information—a change which sidesteps any First
Amendment defense . . . .” (Id. at 3.) More recently, in their response to the current motion
to dismiss, Plaintiffs asserted that removing the question of whether the Defendants disclosed
or used the information “obviates the need for the parties and the Court to untangle a large
body of First Amendment case law on advertising and commercial speech.”4 (ECF No. 213
at 3.)
Fox Defendants argue, however, that such a modification would be “fatal to Plaintiffs’
tenuous grasp on Article III standing” because it narrows the pleading to such an extent that
the complaint no longer establishes facts essential to this Court’s previous holding that an
injury-in-fact has been plausibly alleged. (ECF No. 189 at 2.)

At this stage, the Court need not resolve the question of whether changes in the Second Amended Complaint
accomplish Plaintiffs’ stated purpose of avoiding First Amendment scrutiny.

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Both parties appear to accept Plaintiffs’ assertion that the Second Amended Complaint
alleges only an obtainment violation of the DPPA, and both press their cases under the
supposition that such a change now defines the contours of the litigation. (See, e.g., id. at 1–2
(Fox Defendants’ stating that “Plaintiffs’ sole legal claim is that Defendants violated the DPPA
merely by obtaining public accident reports that identify them”).) But it is not clear that such a
consequential difference exists between the two relevant complaints.
“[T]he plaintiff is the master of the complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386,
398–99 (1987); 14C Charles Alan Wright, Arthur R. Miller, Joan E. Steinman, Mary Kay Kane
& A. Benjamin Spencer, Federal Practice and Procedure § 3722.1 (Rev. 4th ed. 2020). That said,
while courts have allowed plaintiffs under this doctrine to choose, for instance, which claims
they bring or who they elect to sue, courts “must focus on the facts plead, and the relief
requested, by the plaintiff in the complaint” and not look simply at whether “a cause of action
is couched” in certain terms. Air Prods. & Chems., Inc. v. Reichhold Chems., Inc., 755 F.2d 1559,
1561, 1563 (Fed. Cir. 1985) (considering whether a claim invoked patent law and thus federal
question jurisdiction or was simply a contract dispute). Indeed, “it is the facts and substance
of the claims alleged, not the jurisdictional labels attached, that ultimately determine whether
a court can hear a claim.” DeRoy v. Carnival Corp., 963 F.3d 1302, 1311 (11th Cir. 2020). Thus,
in evaluating Fox Defendants’ arguments, the Court looks not to Plaintiffs’ goals as stated in
their briefs, but rather to the language and allegations of the Second Amended Complaint
itself.
Before looking at the language of the Second Amended Complaint, it is first necessary
to recount the basis for this Court’s previous ruling. The Court concluded that Plaintiffs

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plausibly alleged the existence of concrete harms that were sufficient to meet the injury-in-fact
requirement when they claimed:
(i) that Defendants disclosed their protected personal motor vehicle
information, “at a minimum, to employees of the postal or delivery service that
delivered each mailing, as well as to Defendants’ office staff or contractors who
participate in addressing and sending the mailings”; (ii) that each Plaintiff-Driver
“sustained actual damages in having to retrieve the mailings addressed to them from a delivery
person, from his or her entryway or mail receptacle or by having his or her privacy invaded by
disclosure of his or her name or address in connection with a potential need for
legal services”; and (iii) that “each Plaintiff-Owner sustained actual damages by
having his or her privacy invaded by Defendants’ obtaining his or her name and
address in violation of law and in having his or her information obtained, disclosed and
used for marketing purposes without his or her consent[.]”
(ECF No. 93 at 9 (citations omitted).) With minor variations that simply add to this language,
such as stating that Defendants “knowingly” obtained the information, the Second Amended
Complaint repeats these claims nearly verbatim. (Compare ECF No. 32 ¶¶ 126–28, with, ECF
No. 180 ¶¶ 125–27.) A comparison of the two complaints reveals that Plaintiffs have used
essentially the same words to allege the same harms; if anything, the changes enhance the
original factual allegations.
Given that the Court has already determined such descriptions rise to the level of a
concrete injury, the Court must then consider whether there are other substantive changes to
the Second Amended Complaint that might require an outcome that differs from the Court’s
earlier ruling. The most obvious changes limiting the pleadings to obtainment only occur in
two paragraphs of the First Claim for Relief. First, Plaintiffs originally requested a “permanent
injunction prohibiting Defendants from obtaining or using personal information from motor
vehicle records for marketing purposes.” (ECF No. 32 ¶ 148.) The corresponding paragraph
now requests a permanent injunction from “obtaining” personal information only. (Compare

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ECF No. 32 ¶ 148, with, ECF No. 180 ¶ 156.) Additionally, Plaintiffs have abandoned requests
for an injunction prohibiting the sending of “mailings” and “letters” for the purpose of legal
marketing as well. (Id.)
Two paragraphs later, Plaintiffs request liquidated damages because “Defendants
knowingly obtained Plaintiffs’ personal information” that was DPPA-protected. (ECF No.
180 ¶158.) This departs from language in the previous amended complaint that asked for the
same relief “[b]ecause Defendants obtained and used” such information. (Compare ECF No. 32
¶ 150, with, ECF No. 180 ¶ 158 (emphasis added).)
However, while it is true that these two paragraphs now omit the word “use,” the same
cannot be said for the rest of the complaint. Indeed, Plaintiffs allege that Defendants “used”
DPPA-protected information twenty-four times in the Second Amended Complaint and allege
unlawful “disclosure” an additional twenty times, including in the First Claim for Relief. (See,
e.g., ECF No. 180 ¶ 149 (“Each Defendant knowingly obtained, disclosed, and used one or
more Plaintiff’s protected information, from a motor vehicle record, for the purpose of
marketing that Defendant’s legal services.”).) In addition to incorporating earlier allegations
of use and disclosure in their claim for relief expressly, (id. ¶ 147), Plaintiffs articulate their
claims for actual damages by simply referring to the harms “described above,” (id. ¶ 157).
These two changes—coupled with the Plaintiff’s statement that they intend to seek
recourse for obtainment only—are insufficient to undercut the adequacy of the facts Plaintiffs
have plausibly alleged and thus do not lead to a different outcome in the injury-in-fact analysis.
The Court has already ruled on whether such allegations rise to an injury-in-fact and have

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found them to be sufficient, (ECF No. 93 at 9), and now confirms that Plaintiffs’ Second
Amended Complaint alleges sufficient harms to defeat a facial challenge.5
Even assuming arguendo that Plaintiffs were to allege only an obtainment violation, the
weight of case law supports the argument that they still have established a concrete injury-infact. In determining whether a harm rises above a bare procedural violation, the Fourth Circuit
has adopted the D.C. Circuit’s test that asks whether a statute was violated and, if so, whether
the defendant “suffers, by [the violation of the statute], the type of harm Congress sought to
prevent.” Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345–46 (4th Cir. 2017) (quoting Friends
of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016)) (emphasis supplied by the Fourth
Circuit).
In this case, Plaintiffs are able to demonstrate that the harm that allegedly resulted from
any unlawful obtainment of their information alone was the type of harm Congress intended
to prevent.6 The U.S. Supreme Court has held that one “important objective of the DPPA”
was “to restrict disclosure of personal information contained in motor vehicle records to
businesses for the purpose of direct marketing and solicitation.” Maracich v. Spears, 570 U.S.
48, 66–67 (2013). The Court also found that “Congress chose to protect individual privacy
by requiring a state DMV to obtain the license holder’s express consent before permitting the

Both parties have additionally briefed the Court on whether the harms that Plaintiffs have suffered are fairly
traceable to the actions of the Defendants. Given the Court’s finding that the Plaintiffs continue to allege the
obtainment, use, and disclosure of DPPA-protected information, the Court finds that it need not address these
arguments at any length other than to confirm this the question of traceability is no barrier to finding that
Plaintiffs have sufficiently alleged an injury-in-fact that may confer standing.
5

Fox Defendants do not appear to contest that they obtained accident report information. (See ECF No. 189
at 1–2.)
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disclosure, acquisition, and use of personal information for bulk solicitation.” Id. at 67
(emphasis added).
Additionally, the Fourth Circuit has applied Dreher’s test liberally in the context of
privacy-related violations, holding that when a harm “is both particular to each person and
imposes a concrete burden on his privacy, it is sufficient to confer standing.” Krakauer v. Dish
Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019) (discussing at what point alleged violations
of the Telephone Consumer Protection Act became a cognizable, concrete injury). Otherwise,
the court held, the analysis becomes “nothing more than an attempt to dismember the
[statute], converting a simple remedial scheme into a fact-intensive quarrel over how long a
party was on the line or how irritated it felt when the phone rang.” Id.
At least one court that specifically addressed whether an attorney might lawfully use
motor vehicle records to solicit clients has additionally held that obtainment under the DPPA
is sufficient on its own to amount to an injury-in-fact. Whitaker v. Appriss, Inc., 229 F. Supp.
3d 809, 817 (N.D. Ind. 2017) (holding that “DPPA standing begins at least at the point of
unlawful disclosure or obtainment of the plaintiffs’ personal information”). Whereas Spokeo
noted the harmlessness of an incorrect zip code, the court in Whitaker found an analogous
harmless DPPA violation would be the disclosure of a person’s first name alone which “might
violate the letter of the DPPA, but it presents no actual risk to privacy.” Id. at 814. However,
when records are acquired that combine several personal facts together, a harm has been
realized. In the words of the court, Congress made the judgment that, “once a plaintiff’s

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information is disclosed or obtained for a prohibited purpose, the damage is already done.” 7
Id. at 815.
Thus, the Court finds that Plaintiffs, in their Second Amended Complaint, plausibly
allege sufficient facts to withstand a facial challenge to their standing.
B.

Factual Challenge

Fox Defendants additionally raise a factual challenge to Plaintiffs’ standing. As noted
above, when a defendant makes a factual challenge, a court may go beyond the complaint’s
mere allegations and consider whether facts that have been developed in evidentiary
proceedings plausibly support the plaintiff’s pleading. Kerns, 585 F.3d at 193. In such a case,
“the presumption of truthfulness normally accorded a complaint’s allegations does not apply,”
id. at 192, and “the plaintiff bears the burden of proving the truth of such facts by a
preponderance of the evidence,” U.S. ex rel Vuyyuru, 555 F.3d at 347.
Since the First Amended Complaint was filed, the parties have developed the
evidentiary basis through a series of depositions. Fox Defendants allege that, under the current
record, Plaintiffs have not met their burden of establishing facts that would plausibly allege a
concrete injury and go so far as to argue that individual Plaintiffs have “admitted” in
depositions that “their only claimed injury is the mere violation of the DPPA.” (ECF No. 189

Fox Defendants also point to the Fourth Circuit’s decision in Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017)
to argue that “plaintiffs do not have standing when they merely fear what someone might do with personal
information.” (ECF No. 221 at 8.) But Beck is distinguishable because plaintiffs in that case alleged that an
“enhanced risk of future identity theft” was a concrete injury and thus the court was concerned with whether
this “threatened injury” was “sufficiently imminent.” Beck, 848 F.3d at 274. But, as in Whitaker, the instant
case addresses an alleged harmful activity that has already taken place and does not lean simply on a harm that
might happen in the future.
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at 7.) As evidence of this allegation, Fox Defendants cite to the testimony of Plaintiffs Garey
and Clevenger. (Id. at 7.)
Fox Defendants are correct in noting that Plaintiff Garey, in extensive testimony,
agreed with the statement that “the mere violation of the statute is the injury.” (ECF No. 20112 at 82.) But such a statement must be understood in its full context. Moments earlier, for
instance, Plaintiff Garey also stated that Defendants
obtained and used my information through means that . . . aren’t really
permitted by the DPPA. And so, they’ve exposed my information to people
who really didn’t need to see it. And they’ve also . . . wasted my time somewhat
just because I had to . . . go through their spam mail.
(ECF No. 201-12 at 75.)
In this testimony, Garey points directly to the harms Plaintiffs cite in the Second
Amended Complaint and that this Court has ruled are a sufficient basis for an injury. (See ECF
Nos. 180 ¶¶ 125–27; 93 at 9–15.) Garey additionally specified harms at another point in the
deposition that were the result of obtainment alone by noting that “there were people that
were seeing my information . . . when they were gathering the information to compile the
letters that wouldn’t have been seeing it otherwise.” (ECF No. 201-12 at 75.) Though it is
true that Garey affirmed a deposing lawyer’s statement that “the mere violation of the statute”
is one way to define the injury, (id. at 82), such a statement may only be read fairly in the
context of his earlier specific identification of the harms he has alleged and not as an adoption
of magic words only someone familiar with the law would take to carry a dispositive weight.
To be sure, not all Plaintiffs articulated their injuries in their depositions with the same
clarity, and Fox Defendants are right to point out that the factual record is in some cases
underdeveloped or contradictory. (See, e.g., ECF No. 201-9 at 78–80.) That said, “the presence
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of one party with standing is sufficient to satisfy Article III’s case-or-controversy
requirement.” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quoting Rumsfeld v. F. for
Acad. & Institutional Rts. Inc., 547 U.S. 47, 52 n.2 (2006)). Thus, the Court finds that Garey’s
deposition testimony alleges facts that permit Plaintiffs to withstand a factual challenge to their
standing.
The remaining two elements of the standing analysis are not in dispute, and thus the
Court concludes that Plaintiffs have plausibly alleged and demonstrated sufficient facts to
support standing to sue under the DPPA at this stage in the litigation. Accordingly, Fox
Defendants’ Motion to Dismiss for lack of standing will be denied.
III.

LIQUIDATED DAMAGES
Fox Defendants next argue that Plaintiffs “cannot recover liquidated damages under

the DPPA without first proving that [they have] suffered pecuniary or economic harm.” (ECF
No. 189 at 18.) They base this contention on the text of the statute, (see generally id. at 18–21),
which states that “[t]he court may award—(1) actual damages, but not less than liquidated
damages in the amount of $2,500,” 18 U.S.C. § 2724(b). Fox Defendants urge the Court to
find that this language is “modeled on the Privacy Act of 1974” and to hold that Supreme
Court precedent on the Privacy’s Act “parallel provision” is controlling.8 (ECF No. 189 at
18–20.) This interpretation, however, is unpersuasive.

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The parallel provision in the Privacy Act reads as follows:

(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in
which the court determines that the agency acted in a manner which was intentional or willful,
the United States shall be liable to the individual in an amount equal to the sum of-(A) actual damages sustained by the individual as a result of the refusal or failure, but
in no case shall a person entitled to recovery receive less than the sum of $1,000;
5 U.S.C. § 552a(g)(3)(B)(4).

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It is true that the Supreme Court has held that, under the Privacy Act, “presumed
damages are . . . clearly unavailable” and that a plaintiff is not entitled to the Act’s express
minimum amount of damages on “proof of nothing more than a statutory violation.” Doe v.
Chao, 540 U.S. 614, 620–22 (2004). However, leaving aside for now whether Plaintiffs in this
case have alleged more than a statutory violation, the Court was clear that this interpretation
relied on “the critical limiting phrase ‘entitled to recovery,’” id. at 626, which does not appear
in the text of the DPPA, see 18 U.S.C. § 2724(b)(1).
On the other hand, multiple circuits have concluded that liquidated damages are
available under the DPPA even when plaintiffs have not pleaded an economic loss. For
instance, the Eleventh Circuit was unequivocal in finding that “a plaintiff need not prove actual
damages to recover liquidated damages for a violation of the DPPA.” Kehoe v. Fid. Fed. Bank
& Tr., 421 F.3d 1209, 1210, 1214 (11th Cir. 2005) (noting that dicta in Doe suggested that a
statute with language similar to the DPPA would not require proof of actual damages as a
prerequisite to recovery).

As the court pointed out, “[d]amages for a violation of an

individual’s privacy are a quintessential example of damages that are uncertain and possibly
unmeasurable.” Id. at 1213.
The Third Circuit agreed, finding that “[t]he plain language of the DPPA, Supreme
Court and other precedent, and the common law of privacy all support construing § 2724(b)
so as not to require actual damages to recover liquidated damages.” Pichler v. UNITE, 542
F.3d 380, 400 (3d Cir. 2008). Though Fox Defendants argue that Sterk v. Redbox Automated
Retail, LLC, 672 F.3d 535 (7th Cir. 2012), provides one example of a circuit disagreeing with
this analysis, (ECF No. 221 at 11–12), in that case the court was analyzing a different statute,

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was careful to distinguish Pichler and Kehoe, and made its holding based on additional language
that was not found in the DPPA, Sterk, 672 F.3d at 537, 538–39.
While the Fourth Circuit has not issued a direct ruling on this question, it has weighed
in, albeit in dicta. In Van Alstyne v. Electronic Scriptorium, Ltd., 560 F.3d 199 (4th Cir. 2009), the
court considered whether statutory damages could be permitted with no proof of actual
damages under the Stored Communications Act (“SCA”). Id. at 201-02. Although the court
held that actual damages must be pled in the SCA (and the Privacy Act), it expressly
distinguished those statutes from the DPPA and suggested similar analysis of the DPPA would
end in the opposite result. 9 Id. at 205-06 (citing the DPPA as an example of a “simpler,
unambiguous statute”).
In light of the above, the Court finds that Plaintiffs’ pleadings are sufficient to seek
liquidated damages without the pleading of actual damages. Accordingly, Defendants are not
entitled to judgment as a matter of law on this issue.
IV.

INJUNCTIVE RELIEF
In their Second Amended Complaint, Plaintiffs request “a permanent injunction

prohibiting Defendants from obtaining personal information from motor vehicle records for
marketing purposes.” (ECF No. 180 ¶ 156.) In support of this request, Plaintiffs allege that
Defendants are still using DPPA-protected information in violation of the statute and that
they are likely to continue to do so. (Id. ¶ 155.) They base this claim for relief on the DPPA’s

Fox Defendants also claim that a more recent case, Potocnik v. Carlson, 2016 WL 3919950 (D. Minn. July 15,
2016), reinforces their view that actual harm must be shown. (ECF No. 221 at 12–13.) Potocnik, however, is
not so clear-cut. On the contrary, the court ultimately held that “it would make no sense to limit DPPA
plaintiffs—who rarely suffer economic injuries—to recovering only pecuniary damages.” Id. at *12.

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provision in § 2724(b)(4) that provides for “other preliminary and equitable relief” deemed
appropriate by the Court. (Id. ¶ 156.)
As Fox Defendants point out, the Fourth Circuit has held that the “standing
requirement applies to each claim that a plaintiff seeks to press.” Bostic, 760 F.3d at 370 (citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). This means that a plaintiff must also
“demonstrate standing separately for each form of relief sought.” Overbey v. Mayor of Baltimore,
930 F.3d 215, 230 (4th Cir. 2019) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 185 (2000)). To successfully plead for injunctive relief, a plaintiff “must
establish an ongoing or future injury in fact,” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018)
(citing O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)), and “may not rely on prior harms,”
Abbott v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018). Any party who seeks to establish standing
“must include the necessary factual allegations in the pleading, or else the case must be
dismissed for lack of standing.” Bishop v. Bartlett, 575 F.3d 419, 424 (4th Cir. 2009) (citing
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
When Plaintiffs filed their Second Amended Complaint, they brought the action on
behalf of a proposed class. (ECF. No 180 ¶ 131.) It appears that Plaintiffs relied heavily on
the certification of that class to provide a factual basis for their injunctive claim, noting that
Defendants “either continue[] to so obtain and use names and addresses of persons involved
in accidents or could resume . . . at any time.” (Id. ¶ 145.) One might be able to find in such
a claim a sufficient factual basis for surviving a motion to dismiss if one assumes that there
are members of the class who have not yet had their information obtained, used, or disclosed
and thus are imminently subject to a future harm.

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However, given that class certification has since been denied, (see ECF No. 284),
Plaintiffs may no longer rely on claims of potential class members but only of those proffered
by the six named plaintiffs in the case. There is no showing either in the Second Amended
Complaint or in Plaintiffs’ Response to Fox Defendants’ Motion to Dismiss that these six
plaintiffs are subject to any imminent harm, (see generally ECF Nos. 180, 213), and no dispute
to any material facts. Indeed, as Fox Defendants point out, Plaintiffs do not address this issue
in their brief opposing the motion to dismiss and appear to have conceded this argument.
Thus, the Court finds that Plaintiffs have failed to meet their burden in support of this
allegation and must therefore grant the motion to dismiss Plaintiffs’ claim for injunctive relief.
IV.

CONCLUSION
The Court concludes that Plaintiffs have plausibly alleged sufficient facts to establish

standing to sue under the DPPA to withstand both a facial and factual challenge and may be
entitled to liquidated damages. However, the Court also concludes that the Plaintiffs have
failed to plausibly allege sufficient facts to support standing for injunctive relief. Accordingly,
Fox Defendants’ motion to dismiss Plaintiffs’ First Amended Complaint for lack of standing
under Rules 12(b)(1) and 12(b)(6) will be granted as to the dismissal of Plaintiffs’ claim for
injunctive relief and denied as to whether Plaintiffs have sufficiently alleged Article III standing
and the availability of liquidated damages.
For the reasons stated herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that the Fox Defendants’ Motion to Dismiss
Plaintiffs’ Second Amended Complaint, (ECF No. 188), is GRANTED as to the dismissal of

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Plaintiffs’ claim for injunctive relief and DENIED as to whether Plaintiffs have sufficiently
alleged Article III standing and the availability of liquidated damages.
This, the 28th day of September 2020.
/s/ Loretta C. Biggs
United States District Judge

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