HATCH et al v. DEMAYO et al
Filing
192
MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 6/26/2020. Moving Defendants' Motion to Strike Class Allegations (ECF No. 109 ) is DENIED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JONATHAN HATCH, et al., on behalf of
themselves and others similarly situated,
Plaintiffs,
v.
MICHAEL A. DEMAYO, et al.,
Defendants.
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1:16CV925
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
In this putative class-action lawsuit, Plaintiffs allege that Defendants violated the
Driver’s Privacy Protection Act of 1994, 18 U.S.C. § 2721 et seq. (“DPPA”), by obtaining their
names and addresses from automobile accident reports and using that information for
marketing purposes. (See ECF No. 100.) Before the Court is a motion to strike the operative
complaint’s class allegations, filed by all but two of the named Defendants1 (the “Moving
Defendants”) pursuant to Federal Rule of Civil Procedure 12(f). (ECF No. 109.) As framed
in the briefs, the instant motion presents a single, narrow question: whether the text of the
DPPA “contains a statutory bar prohibiting aggregated or class action litigation.” (ECF No.
110 at 2.) Because the Court concludes that no such bar exists, the motion will be denied.
Federal Rule of Civil Procedure 23 provides that a class action “may be maintained” if
certain preconditions are satisfied. Fed. R. Civ. P. 23(b). As the Supreme Court has explained,
1
Defendants Mark I. Farbman and Mark Farbman, P.A. did not join in the instant motion.
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“[t]he discretion suggested by Rule 23’s ‘may’ is discretion residing in the plaintiff,” who may
choose, in any given case, whether to bring her claims through an individual suit or in the form
a class action. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400
(2010). Congress has the power to carve out exceptions to this general authorization, “either
by directly amending [Rule 23] or by enacting a separate statute overriding it in certain
instances.” Id. However, absent such an exception, Rule 23 empowers federal courts to
“certify a class in each and every case where the Rule’s criteria are met.” Id. at 399–400.
In relevant part, the DPPA provides that “[a] person who knowingly obtains, discloses
or uses personal information, from a motor vehicle record, for a purpose not permitted under
this chapter shall be liable to the individual to whom the information pertains, who may bring a civil
action in a United States district court.” 18 U.S.C. § 2724(a) (emphasis added). According to
the Moving Defendants, this language creates an exclusive “statutory privity,” running only
between a defendant (who improperly obtained, disclosed, or used personal information) and
a plaintiff (“to whom the information pertains”), which precludes any and all representative
actions. (ECF No. 110 at 5.) The Court disagrees.
Congress knows how to create exceptions to Rule 23’s general authorization of class
actions—it did not create one here. As an example, compare the statute at hand, which places
no explicit limitation on class actions, to the clear directive in 8 U.S.C. § 1252 that “no court
may . . . certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for
which judicial review is authorized under a subsequent paragraph of this subsection.” See 8
U.S.C. § 1252(e)(1). Nor does it matter that the DPPA fails to expressly permit class actions,
as Moving Defendants argue. “[L]ike the rest of the Federal Rules of Civil Procedure, Rule
2
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23 automatically applies ‘in all civil actions and proceedings in the United States district courts.’”
See Shady Grove, 559 U.S. at 400 (quoting Fed. R. Civ. P. 1 and noting that Rule 23 authorizes
class actions “across the board”).
If the Court were to accept the Moving Defendants’ reading, class representation would
be unavailable in any suit arising out of a statute that provides for an individualized private
cause of action where such statute does not explicitly authorize a class action. Yet class actions
for violations of such statutes are routinely maintained even though the statute itself does not
explicitly provide for such action. For example, the Telephone Consumer Protection Act of
1991 (“TCPA”) provides that “[a] person or entity may . . . bring . . . an action based on a
violation” of the privacy-protection provisions outlined therein. See 47 U.S.C. § 227(b)(3).
The TCPA says nothing about class actions; however, the Fourth Circuit recently upheld class
certification in a TCPA suit. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 655, 663 (4th
Cir. 2019) (noting that the TCPA’s private right of action “offers many advantages for classwide adjudication”). Likewise, the familiar language of 42 U.S.C. § 1983 provides—in a
formulation strikingly similar to the DPPA’s—that “[e]very person who, under color of [state
law], subjects . . . any . . . person within the jurisdiction [of the United States] to the deprivation
of [federal rights], shall be liable to the party injured in an action at law.” See 42 U.S.C. § 1983
(emphasis added). However, Courts regularly certify classes in § 1983 suits. See, e.g., Kirby v.
Blackledge, 530 F.2d 583, 588 (4th Cir. 1976); Scott v. Clarke, 61 F. Supp. 3d 569, 591 (W.D. Va.
2014).
3
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In short, the Court finds no basis for the Moving Defendants’ contention that the
language of the DPPA precludes class actions, as a general matter.2 That is not to say, of
course, that the classes and subclasses proposed in this suit are certifiable; the Court will make
that determination separately. Thus, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that the Moving Defendants’ Motion to Strike Class
Allegations, (ECF No. 109), is DENIED.
This, the 26th day of June 2020.
/s/ Loretta C. Biggs
United States District Judge
2
In a secondary argument, the Moving Defendants suggest that class actions cannot be permitted for
DPPA violations because “if a DPPA class could be certified for settlement or judgment, the class
members would be informed of the settlement by [unsolicited] letter”—“the same type of purported
harm . . . which Plaintiffs are suing to prevent.” (See ECF No. 110 at 6.) However, the DPPA permits
the use of protected information “in connection with any civil . . . proceeding in any Federal, State, or
local court . . . including the service of process, investigation in anticipation of litigation, and the
execution or enforcement of judgments and orders.” See 18 U.S.C. § 2721(b)(4).
4
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