Taylor et al v. Acxiom Corporation et al

Filing 91

REPLY to Response to Motion re 72 MOTION to Dismiss on Common Issues and Response to Plaintiffs' Statement of Violations filed by ACS State & Local Solutions, Inc., Gila Corporation, American Electric Power Service Corporation, Southwestern Bell Telephone, LP, Texas Farm Bureau Mutual Insurance Company, Insurance Technologies Corporation, JI Specialty Services, Inc., Globe Life and Accident Insurance Company, Hawkeye Insurance Services, Inc.,, ISO Claims Services, Inc., United Teacher Associates Insurance Company, Spartan Insurance Company, Safeway, Inc.,, HEB Grocery Company, LP, The Hearst Corporation, Safety-USA Institute, LLC, U.S. Interactive, Inc., The Talbot Group, Inc., Background Information Systems, Inc., Academy, LTD, CarFax, Inc, ABC Data, American Student List Co., Inc., Aristotle International, Inc.,, Continueded.com, LLC, Driver Training Associates, Inc., Federated Retail Holdings, Inc., Household Drivers Report, Inc., Paradise Development, Inc., RealPage, Inc., Biometric Access Company, Emaginenet Technologies, Inc., LML Payment Systems Corp, Telecheck Services, Inc., Acxiom Corporation, Zebec Data Systems, Inc., Allied Resident/Employee Screening Service, Inc., ADP Screening and Selection Services, Inc., American Driving Records, Inc., FEDCHEX. LLC., Jon Latorella, Marshall Systems Technology, Inc., Source Data, Inc., URAPI, PropertyInfo Corporation, Tenant Tracker, Inc., Defensivedriving.com, Cross-Sell, Inc., InfoNations, Inc., Realty Computer Solutions, Inc., Urapi, Inc., National Statistical Service Corporation, Reliant Energy, Inc., Dallas Computer Associates, AMERICAN MUNICIPAL SERVICES CORPORATION, Acxiom Risk Mitigation, Inc.. (Attachments: # 1 Exhibit Motion for Intervention# 2 Exhibit Motion for Leave to File Amicus Curie Brief)(John, Philip)

Taylor et al v. Acxiom Corporation et al

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
SHARON TAYLOR, ET AL.
v.

CIVIL ACTION NO. 2:07cvOOI JUDGE DONALD E. WALTER

ACXIOM CORPORATION, ET AL. SHARON TAYLOR, ET AL.
v.

CIVIL ACTION NO. 2:07cv00I3
JUDGE DONALD E. W ALTER

ACS STATE & LOCAL SOLUTIONS, INC., ET AL. SHARON TAYLOR, ET AL.
v.

CIVIL ACTION NO. 2:07cvOOI4 JUDGE DONALD E. W ALTER

TEXAS FARM BUREAU MUTUAL INSURANCE
COMPANY, ET AL. SHARON TAYLOR, ET AL.
v.

CIVIL ACTION NO. 2:07cvOOI 7 JUDGE DONALD E. WALTER

SAFEWAY, INC., ET AL. SHARON TAYLOR, ET AL.
v.

CIVIL ACTION NO. 2:07cv0018 JUDGE DONALD E. WALTER CIVIL ACTION NO. 2:07cv04IO JUDGE DONALD E. WALTER

BIOMETRIC ACCESS COMPANY, ET AL. SHARON TAYLOR, ET AL.
v.

FREEMAN PUBLISHING COMPANY, ET AL.

CONSOLIDA TED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT OF VIOLATIONS FILED ON BEHALF OF

AMERICAN DRIVING RECORDS D/B/A FIRST ADVANTAGE ADR A/KIA AGENCY RECORDS INC.,
SOUTHWESTERN BELL TELEPHONE, L.P. D/B/A SOUTHWESTERN BELL TELEPHONE COMPANY, A TEXAS LIMITED PARTNERSHIP, SAFEWAY INC., ACADEMY, LTD., BACKGROUND INFORMATION SYSTEMS, INC.,

HEB GROCERY COMPANY, LP, REALPAGE, INC., FEDCHEX, LLC., LML PAYMENT SYSTEMS, CORP., D.B. STRINGFELLOW, URAPI, THE HEARST CORPORATION D/B/A HOUSTON CHRONICLE, TEXAS MOTOR TRANSPORTATION ASSOCIATION, EMAGINENET TECHNOLOGIES, INC., TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, HOUSEHOLD DRIVERS REPORT, INC. D/B/A HDR, INC., SPARTAN INSURANCE

COMPANY, ACS STATE & LOCAL SOLUTIONS, INC., INSURANCE TECHNOLOGIES CORPORATION,
AMERICAN STUDENT LIST, LLC, GILA CORPORATION D/B/A MUNICIPAL SERVICES BUREAU, HAWKEYE INSURANCE SERVICES, RELIANT ENERGY, INC., SOURCE DATA, INC., DRIVER TRAINING ASSOCIATES, INC. D/B/A TICKETSCHOOL.COM, JON LATORELLA, D/B/A LOCATEPLUS HOLDINGS CORPORATION,

AMERICAN ELECTRIC POWER SERVICE CORPORATION, TENANT TRACKER, INC., JI SPECIALTY SERVICES, INC., LEE FARISH COMPUTER SERVICES, INC., NATIONAL STATISTICAL SERVICES CORPORATION, AMERICAN MUNICIPAL SERVICES, LTD., GLOBE LIFE AND ACCIDENT INSURANCE COMPANY, ADP SCREENING AND SELECTION SERVICES, INC., TALBOT GROUP, INC., PARADISE
DEVELOPMENT, INC. D/B/A DRIVESAFE DEFENSIVE DRIVING, SAFETY-USA INSTITUTE, LLC, ARISTOTLE INTERNATIONAL, INC., DEFENSIVE DRIVER ONLINE, LTD., GLOBAL 360 BGS, INC., ABC DATA, Inc. d/b/a

UNICARD SYSTEMS, INC., BIOMETRIC ACCESS COMPANY, CONTINUEDED.COM LLC, D/B/A
IDRIVESAFELY.COM, ZEBEC DATA SYSTEMS, INC., INFONATION, INC., ALLIED RESIDENTIEMPLOYEE SCREENING SERVICE, INC., UNITED TEACHER ASSOCIATES INSURANCE COMPANY, FEDERATED RETAIL HOLDINGS, INC. FIKA THE MAY DEPARTMENT STORES COMPANY D/B/A FOLEY'S, CROSS-SELL, INC., PROPERTY INFO CORPORATION, MARSHALL SYSTEMS TECHNOLOGY, INC., U.S. INTERACTIVE, INC., DALLAS COMPUTER INFORMATION SYSTEMS, REALTY COMPUTER SOLUTIONS, INC. d/b/a REAL-COMP, ACXIOM RISK MITIGATION, INC., ACXIOM CORPORATION, TELECHECK SERVICES, INC., ISO CLAIMS SERVICE, INC. D/B/A INSURANCE INFORMATION EXCHANGE, AND CARFAX, INC.

HOU02: I 1390 I 8.8

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TABLE OF CONTENTS
i. INTRODUCTION....................................................................................................................... 1

II. ARGUMENT ............................................................................................................................. 2

1. Plaintiffs fail to state a claim under the DPP A. ............................................................. 2
A. Plaintiffs fail to state a claim under the DPP A against the Non-Resellers. ............... 2

(i) The DPPA's plain language shows that Plaintiffs fail to state a claim............. 2
(ii) The DPP A and case law require Plaintiffs to plead (and eventually prove) an impermissible purpose for obtaining data......................................................... 3
(iii) Authority interpreting the DPP A confirms that there is no immediate-use element. ............................................................................................................. 6

(iv) Congress intended to allow entities to purchase data for permissible business purposes. .................................... ....................................................................... 8
(v) The DPP A does not prohibit bulk sale.............................................................. 9 B. Plaintiffs fail to state a claim under the DPPA against the Resellers. ....................... 9

(i) The DPP A expressly permits resale of data...................................................... 9
(ii) The Russell Court addressed this issue and ruled against the Plaintiffs' position............................................................................................................ 10
(iii) The State of

Texas authorizes resale of data................................................... 11

2. Plaintiffs lack standing to bring a claim under the DPP A. ................................. 12

A. Plaintiffs do not plead any actual harm from the alleged obtainment or resale....... 12
B. Kehoe does not permit a DPPA plaintiff

to prevail without showing injury. .......... 13

III. CONCLUSION....................................................................................................................... 13

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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TABLE OF AUTHORITIES
CASES
Am. Pet. Inst. v. United States EP A,
198 P .3d 275 (D. C. Cir. 2000)...........................................................................................1 0

Atchison v. Collns, 288 P.3d 177 (5th Cir. 2002) ...............................................................................................3
Bell v. Acxiom Corp.,

No. 4:06CY00485-WVW, 2006 WL 2850042 (E.D. Ark. Oct. 3, 2006)....................12,13

Carpenters Dist. Council v. Dilard Dep't Stores, 15 P.3d 1275 (5th Cir. 1994) ...............................................................................................7
Custom Rail Employer Welfare Trust Fund v. Geeslin, 491 P.3d 233 (5th Cir. 2007) ...............................................................................................7

Howard v. Hooters, Cause No. 4:07-CY-03399 (S.D. Tex. Apr. 5,2008) ..................................................12, 13

Kehoe v. Fidelity Fed Bank & Trust,
421 P.3d at 1211 (11th Cir. 2005)......................................................................................13

Lewis v. Knutson, 699 P.2d 230 (5th Cir. 1983) ....................................................................................... 12, 13
Parus v. Cator, No. 05-C-0063-C, 2005 WL 2240955 (W.D. Wis. Sept. 14,2005) ................................5,6

Pichler v. Unite,

339 P. Supp. 2d 665 (E.D. Pa. 2004) .......................................................................... .........6
Russell v. ChoicePoint Servs., Inc., 300 P. Supp. 2d 450 (E.D. La. 2004)...................................................................5, 8,10, 11
Russell v. Choicepoint Servs., Inc., 302 P. Supp. 2d 654 (E.D. La. 2004)...........................................................5,10, 11, 12, 13

Thomas v. George, Hartz, Lundeen, Folmer, Johnstone, King, and Stevens, P.A.,
-- P.3d. -- 2008 WL 1821238 (l1th Cir. Apr. 24, 2008)..............................................4,5,6

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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United States v. Aucoin,

964 P.2d 1492 (5th Cir. 1992) .............................................................................................3
United States v. Harvard, 103 P.3d 412 (5th Cir. 1997) ...............................................................................................3
United States v. Meeks, 69 P .3d 7 42 (5th Cir. 1995) ................................... ............. .................................................7

United States v. Valencia, 394 P.3d 352 (5th Cir. 2004) ...............................................................................................7
United States v. Yermia, 468 U. S. 63 (1984)...............................................................................................................3

STATUTES
140 Congo Rec. H2518-0 1, H2526 (l994).......................................................................................8
Transcript of

House Subcommittee Hearing on H.R. 3365.............................................................8

1 U .S.C. § 1..................................................................................................................................... .6
18 U.S. C. § 2721 (b) .............................................................................................................. .2, 9, 10

Tex. Admin. Code § 15.143........................................................................................................... 12

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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DEFENDANTS' CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT OF VIOLATIONS
These Defendants1 file this Consolidated Reply to Plaintiffs' Response (Dkt. No. 83) to

Defendants' Motion to Dismiss on Common Issues under Pederal Rules of Civil Procedure
12(b)(6) and 12(b)(I) and Response to Plaintiffs' Statement ofYiolations (Dkt. No. 62).

I. INTRODUCTION

The Drivers Privacy Protection Act ("DPP A") was enacted to prevent people from

misusing data in motor-vehicle databases, particularly misuse of data for stalking or other
criminal activity. Plaintiffs do not plead that any Defendant used their data to stalk them or for

any other criminal activity. Indeed, they do not plead any misuse of their data or any resulting

harm whatsoever. Instead, Plaintiffs base their $2 trilion claim on the assertions that (a) even
though certain Defendants (the "Non-Reseller Defendants") obtained data for use for a purpose
permitted under the DPPA, they violated the DPPA by not immediately using all of

the data,2 and

(b) other Defendants (the "Reseller Defendants") violated the DPP A by obtaining their data in
order to resell to third parties for use for a purpose permitted under the DPP A,3

The DPPA's plain language defeats Plaintiffs' position. The statute does not contain the
words or requirements upon which Plaintiffs base their claims. Plaintiffs describe the DPP A as
For purposes of

this Reply, "these Defendants" shall refer to the Defendants listed on the cover page.

(See Plaintiffs' Statement of Violations of the Drivers' Privacy Protection Act ("the Statement") at 2 ("Based on the lack of any relationship, business or otherwise, between the above-referenced Plaintiffs and this
Defendant, the above-referenced Plaintiffs assert that this Defendant had no permissible purpose for obtaining their personal information. . . . Anv ourpose this Defendant had for obtaining the above-referenced Plaintif i 'personal information' other than an immediately contemolated use of the information for one of the DP PA's authorized uses
constitutes a violation of the DPPA." (emphasis supplied)); see also Plaintiffs' Response to Defendants'

2

Consolidated Motion to Dismiss ("Plaintiffs' Response") at 2, 3, and 10 ("Defendants appear to assert a proper purpose for obtaining some individuals' 'motor vehicle records"'; the DPPA "does not allow entities to purchase
information for which they do not have a corresponding use;" non-resellers "obtained more individual 'motor

vehicle records' than they needed for their asserted purpose.").
3 (See Plaintiffs' Statement at 11 ("Resale of data is not a proper purpose for obtaining plaintiffs' personal

information and obtainment of this data merely to resell violates the express terms of the DPPA"); see also PIs.'
Resp. at 1 ("(I)ntended resale is not a proper purpose under the DPP A to obtain 'motor vehicle records. "').)
CONSOLIDA TED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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they would like it to be. Defendants' motions to dismiss are based on the DPP A as it actually is
written.

Defendants' Consolidated Motion to Dismiss and Plaintiffs' Response therefore present
three issues for this Court to determine:

1. Did the Non-Reseller Defendants violate the DPP A by allegedly obtaining the DPS database from the State of Texas for permissible purposes without
immediately using every record received?
2. Did the Reseller Defendants violate the DPP A by allegedly obtaining the DPS

database solely to resell data to third parties who used it for permissible purposes?

3. Do Plaintiffs have standing to bring their DPPA claims when they do not plead that they were actually injured in some way by Defendants' alleged DPPA
violations?

The DPP A's plain language, as well as the relevant case law (including a new Eleventh
Circuit opinion, the Russell opinions from this circuit, and a Department of Justice opinion letter)
all indicate that the answer to these three questions is a resounding "No.,,4

II. ARGUMENT
1. Plaintiffs fail to state a claim under the DPP A.

A. Plaintiffs fail to state a claim under the DPP A against the Non-Resellers.
(i) The DPP A's plain language shows that Plaintiffs fail to state a claim.
The DPP A expressly permits entities to obtain data for use for enumerated permissible
puroses. See 18 U.S.C. § 2721(b); see also Defs.' ConsoL. Mot. to Dismiss at 8-10 (listing

permissible uses). Plaintiffs argue that Defendants' obtainment of the data in bulk for use for
enumerated permissible purposes is impermissible because Defendants did not use the data

immediately. Nothing in the DPPA's plain language requires immediate use, and nothing in its
To deflect attention from their defective complaint, Plaintiffs reference the settlement of claims under the

DPPA in Florida. But, Plaintiffs' counsel in this case fied briefing in the Florida case that said "(t)he Texas
Litigation involves significantly different claims than the Florida litigation." See Sharon Taylor's Motion for Limited Intervention at 3, attached as Ex. A.
CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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legislative history suggests that Congress intended to include such a requirement. See United
States v. Yermia, 468 U.S. 63, 63-64 (l984) (refusing to read requirement into the statute where
statute's plain language and legislative history did not include that requirement); United States v.

Aucoin, 964 P.2d 1492, 1496 (5th Cir. 1992) (refusing to add requirement to statute where
legislative history did not support party's request to do so); United States v. Harvard, 103 P.3d

412, 419 (5th Cir. 1997) (rejecting party's request to add language to statute because "(h)ad
Congress intended to (add a materiality requirement to the statute) it could easily have done so").
This Cour, therefore, should not rewrite the DPP A to include an immediate-use requirement.

Nor should the Court interpret the DPP A in a maner that would produce absurd results.

Atchison v. Collns, 288 P.3d 177, 181 & n.13 (5th Cir. 2002) ("(T)he common mandate of
statutory construction (is) to avoid absurd results."). As shown by the towing example in the
Consolidated Motion, absurd results would flow from Plaintiffs' position that the DPP A allows
the State to disclose personal information only on a person-by-person basis as immediately

needed. (See Defs.' Consol. Mot. at 12.) These results would be contrary to Congressional

intent as evidenced by the "permissible uses" that permit ongoing business concerns - like these

Defendants - to obtain personal information for future permissible uses. Allowing Plaintiffs to

recover two trilion dollars simply because Defendants did not immediately use every piece of
information that they obtained for permissible purposes, likewise would be absurd.

(ii) The DPP A and case law require Plaintiffs to plead (and eventually prove) an impermissible purpose for obtaining data.
Plaintiffs assert that Defendants' Consolidated Motion to Dismiss stated that Plaintiffs
must allege an impermissible use to prevail on an improper-obtainment claim. Plaintiffs tip their
hand that they are concerned about the strict standard of the Russell opinions and show that they

misunderstand Defendants' Consolidated Motion to Dismiss and the DPP A. These Defendants
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reiterate that, although the DPP A allows causes of action for obtainment, disclosure, and use, the
DPP A requires that the plaintiff show that the obtainment, disclosure, or use was for a purpose
not permitted under the statute. (See Defs.' Consol. Mot. at 10-15.) Under the plain language

of

the DPPA's requirements, Plaintiffs do not plead a proper cause of

action.

In its April 24, 2008 opinion, the Eleventh Circuit became the first circuit court to
address the issue of claims for improper obtainment. Thomas v. George, Hartz, Lundeen,
Folmer, Johnstone, King, and Stevens, P.A., -- P.3d. ---, 2008 WL 1821238 (11th Cir. Apr. 24,
2008). The Court concluded that a DPP A plaintiff must plead (and eventually prove) that a
defendant obtained data for a purpose not permitted under the DPP A.

In Thomas, the plaintiff made DPP A claims based on the defendants' purchase of
information in bulk and subsequent litigation mailings - a permissible purpose - to some of

those individuals, possibly including the named plaintiff. Id. at * 1. Upholding the take-nothing

summary judgment, the Eleventh Circuit examined the DPPA's language. The Court explained

that "(i)n a straightforward fashion, section 2724(a) (of the DPP A) sets forth three elements
giving rise to liability, i. e., that a defendant (l) knowingly obtained, disclosed or used personal
information, (2) from a motor vehicle record, (3) for a purpose not permitted." Id. at *3

(emphasis supplied). Purther, the court stated that "(t)he plain meaning of the third factor is that

it is only satisfied if shown that obtainment, disclosure, or use was not for a purpose
enumerated under § 2721(b)." Id. (emphasis supplied). Because Plaintiffs did not plead facts
suffcient to allege the three essential elements found in the DPP A, they fail to state a claim.

The Eleventh Circuit also rejected the plaintiffs argument that the defendant bears the
burden to prove a permissible purpose. Id. at *4. The court explained that the DPP A "is silent

on which pary carries the burden of proof and, as such, the burden is properly upon the
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plaintiff," in par because the elements of liability include "whether the subject act was 'for a
purpose not permitted.'" Id.
The Russell decisions also support the plain-language reading urged by these Defendants.

Plaintiffs argue to the contrary, stating that "(t)he only serious allegation involved in Russell (II)
was the claim that the defendants had obtained drivers license records for the impermissible

purpose of resale." (PIs.' Resp. at 7 (citing Russell II, 302 P. Supp. 2d at 657.) (emphasis
supplied). Despite Plaintiffs' claim that the "only serious allegation" in the Russell cases was

resale, the plaintiffs in both Russell I and Russell II brought claims for improper obtainment,
which were dismissed. See Russell v. ChoicePoint Servs., Inc., 300 P. Supp. 2d 450, 455 (E.D.

La. 2004) ("Russell f') (dismissing improper obtainment claim because plaintiff did not allege
impermissible use); Russell v. Choicepoint Servs., Inc., 302 P. Supp. 2d 654, 664 (E.D. La. 2004)

("Russell If') (dismissing improper obtainment claim).
Without a persuasive argument against Russell I and II, Plaintiffs fall back on Par

us v.

Cator, a factually distinguishable case in which the plaintiff alleged that the defendant obtained

plaintiffs data to determine whether the plaintiff was a "local guy," an arguably impermissible
purpose. Par

us v. Cator, No. 05-C-0063-C, 2005 WL 2240955, at *5 (W.D. Wis. Sept. 14,

2005) (denying summary judgment for defendant where fact issue existed as to whether
confirming that plaintiff was a "local guy" was a law enforcement purpose). Par

us clearly is

distinguishable from the case at hand because Plaintiffs here did not allege any impermissible
purpose for which Defendants obtained the data. Parus, however, does confirm that the DPP A

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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states that "(s)ection 2724(a) makes a person liable when he knowingly obtains personal
information from a motor vehicle record for a purpose not permitted under the Act." Id. at *4.5

Pinally, Plaintiffs concede, as they must, that the Non-Reseller Defendants "appear to
assert a proper purpose for obtaining some individuals' 'motor vehicle records.'" (PIs.' Resp. at

2.) Plaintiffs claim that, despite this concession, the DPP A's use of the singular form of nouns

and verbs supports liability. (PIs.' Resp. at 3-6.) This contention is defeated by the very first
section of the first chapter of the United States Code. Chapter 1 sets forth rules of statutory
construction, the first of which is that, unless the context indicates otherwise, the singular

includes the plural and vice versa. 1 U.S.C. § 1. And even under Plaintiffs' faulty construction,

Plaintiffs do not allege that any Defendant obtained or used any individual motor vehicle record

for an impermissible purpose. Nor do Plaintiffs ever plead that any Defendant ever used an
individual record of any of the named Plaintiffs for a purpose other than one enumerated in the
DPP A. Even under Plaintiffs' proposed interpretation, they fail to state a claim.
(ii) Authority interpreting the DPP A confirms that there is no immediate-use element.

Plaintiffs again assert that the DPP A requires that an entity immediately use the data it
obtains. (See PIs.' Resp. at 11.)6 But the DPP A contains no such requirement. Without an

immediate-use requirement, Plaintiffs' claims fail as a matter of law.

Parus also confirms that a Plaintiff must allege an impermissible purpose for which Defendants obtained the data. In all of the cases that Plaintiffs cite, the plaintiffs allege a specific impermissible purpose for which the defendant obtained the data. ¡d. at *4 (alleging that defendant obtained data to determine if plaintiff was a "local guy"); Pichler v. Unite, 339 F. Supp. 2d 665, 667-668 (E.D. Pa. 2004) (alleging that union obtained information to contact employees at home to encourage union membership). Plaintiffs cannot meet their pleading burden by speculating that Defendants could not have had a permissible purpose for obtaining their records.
6 Plaintiffs cite Pichler v. Unite to tr to support this argument. Pichler, however, never says that the DPPA

requires that an entity use data immediately. ¡d. Although the court held that a fact issue existed, it also noted that the "the Unions may be able to prove that the litigation exception permitted them to access the plaintiffs' personal information." ¡d. at 668. Among other reasons why the Pichler decision is not authoritative, it incorrectly places the burden of proof on the defendant. Cf Thomas, 2008 WL 1821238, at *5-6 (placing burden of proof for impermissible purpose on plaintiff).
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In making their "immediate-use" argument, Plaintiffs attempt to minimize the rationale
for permitting bulk obtainment by arguing it is solely to save "time and/or money." Putting aside

for a moment that the underlying rationale is irrelevant where, as here, the statute's language
clearly does not prohibit bulk obtainment,1 Plaintiffs' argument simply is not true. Rather, as the
National Center for Missing and Exploited Children ("the Center") stated in its Motion for Leave

to File Amicus Curie Brief in litigation in Florida, if entities are not allowed to obtain data in

bulk, the Center "could be precluded from obtaining products and services from certain
defendants that (it) utilizes in (its) efforts to recover missing children, apprehend their abductors,

and otherwise to prevent exploitation of children in the State of Florida and elsewhere." (Mot.
for Leave at 2, attached as Ex. B.) Additionally, bulk obtainment allows commerce to run

smoothly and provides a convenience to many members of the putative class. For example,

putative class members are able to use checks at retail points of sale because retailers
immediately can verify their identities without a cumbersome and lengthy delay.

"Convenience" is not the use to which Defendants put the data, as Plaintiffs mistakenly

argue. Rather, Defendants' actual uses are for the enumerated permissible purposes. Any
convenience inures as much to the benefit of the putative-class-member consumers as to the

Defendants. Furher, "convenience" is not the reason why Defendants obtained data. True,

A court's interpretation of a statute must begin with the plain meaning of the statutory words. See Custom Rail Employer Welfare Trust Fund v. Geeslin, 491 F.3d 233, 236 (5th Cir. 2007) (holding that "in all cases involving

7

statutory constrction, our starting point must be the language employed by Congress, ... and we assume that the legislative purpose is expressed by the ordinary meaning of the words used"). Where the Congressional language is clear and unambiguous, the Court's inquiry ends. See United States v. Meeks, 69 F.3d 742, 744 (5th Cir. 1995) ("(W)hen the language of a statute is clear and unambiguous, judicial inquiry into its meaning is unnecessary."); Carpenters Dist. Council v. Dillard Dep't Stores, 15 F.3d 1275, 1282-83 (5th Cir. i 994) ("Ifthe (statutory) language
is clear and unambiguous, then the court may end its inquiry.

"). The Court is required to give Congress' chosen

words their plain meaning. See United States v. Valencia, 394 F.3d 352, 355 (5th Cir. 2004) ("In constring the
United States Code our task must begin with the words provided by Congress and the plain meaning of

those words.

. . . In so doing, we give effect to the intent of Congress. . . . ") (internal citations omitted).
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purchasing records in bulk may be easier than purchasing multiple records individually, but the

convenience of purchasing records in bulk does not explain why a purchaser wanted the
information in the first place. Again, the DPPA's language requires Plaintiffs to allege the
alleged impermissible purpose for which Defendants obtained the data. By merely identifying
the method by which Defendants obtained the data, Plaintiffs fail to allege an impermissible

purpose.

(iv) Congress intended to allow entities to purchase data for permissible business purposes.
Finally, Plaintiffs' position that Congress intended for the DPP A to prevent use of data
for permissible business purposes is belied by the lengthy laundry list of permissible uses, many
of which concern activities that occur in regularly conducted business. (See Defs.' ConsoL. Mot.
at 17-19.) Indeed, the primary goal of Congress in regulating disclosure of information from

motor vehicle records was to allay "mounting public safety concerns over stalkers' and other
criminals' access to the personal information maintained in state DMV records." See Russell I,

300 F. Supp. 2d at 452; (see also PIs.' CompL. in 2:07-cv-00013 at 15). In crafting the DPPA,
"( c )areful consideration was given to the common uses now made of this information and great
efforts were made to ensure that those uses were allowed under this bil." See Transcript of

House Subcommittee Hearing on H.R. 3365 held February 3, 1994; see also 140 Congo Rec.
H2518-01, H2526 (l994) (statement of

Rep. Goss (Congress intended the statute to prohibit the

release of personal information to a "narrow group of people that lack legitmate business

(purposes)" (emphasis supplied)). Nothing in the Congressional record suggests that Congress
was concerned about or sought to prevent the sort of legitimate business activities about which
Plaintiffs complain.

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(v) The DPP A does not prohibit bulk sale.
Plaintiffs cite section 2721(b)(l2) to support their position that the State generally may
not disclose personal information in bulk. Plaintiffs are wrong. Section 2721(b)(12) allows the
State to disclose personal information "(fJor bulk distribution for surveys, marketing or

solicitations. . .." By the statute's plain language, the term "bulk" does not describe the manner

in which the State is disclosing the personal information, but rather the ultimate purpose for
which the information is being obtained (i. e., distribution for surveys, marketing or solicitations).

Thus, section 2721(b)(l2) does not speak to whether the State is entitled to disclose more than
one individual's personal information at a time.

Finally, Plaintiffs make a very serious and baseless allegation against the State of Texas.
(PIs.' Resp. at 13 ("Just because the State of

Texas is apparently wiling to look the other way as

long as it is indemnified should not carr much weight in interpreting the DPP A. Of course the

State of Texas wants to keep sellng this information in bulk.").) But Plaintiffs put forth no
evidence that the State of Texas is wilfully violating Federal

law. This careless allegation is the

best Plaintiffs can do to limit the powerful fact that the State of Texas allows the very conduct
these Plaintiffs claim violates Federal and State law.

B. Plaintiffs fail to state a claim under the DPP A against the Resellers.
(i) The DPP A expressly permits resale of data.
Plaintiffs ignore that the clear and unambiguous language of the DPP A permits the resale
of the information:

An authorized recipient of personal information (except a
recipient under subsection (b)(ll) or (12)) may resell or

redisclose the information only for a use permitted under
subsection (b) (but not for uses under subsection (b)(ll) or

(12)). An authorized recipient under subsection (b)(ll) may resell or redisclose personal information for any purpose. An
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authorized recipient under subsection (b )(12) may resell or redisclose personal information pursuant to subsection (b )(12).
18 U.S.C. § 2721(c).

It is clear from the statute's plain language that Congress intended to allow entities to
obtain data solely to resell it. The language of 18 U.S.C. § 2721(c) permits resale and

redisclosure by "authorized recipients." Id. Because Congress chose to use "authorized
recipients," rather than "authorized users," it is clear that Congress intended to allow entities to

obtain drivers' personal information from DMVs strictly to redistribute it to persons with
permissible uses.8 See Russell II, 302 F. Supp. 2d at 665 ("Congress could have limited resale
and redisclosure to 'permissible users' . . . but instead Congress employed the term 'authorized

recipient' in § 2721(c). This deliberate word choice reveals congressional intent to allow states

and their DMVs to authorize persons and entities to receive drivers' information for resale.").
Plaintiffs are unable to dispute this unambiguous construction of

the DPP A.

(ii) The Russell Court addressed this issue and ruled against the Plaintiffs' position.
Plaintiffs' only chance to prevail on their claim against the resellers is to convince this

Court that its sister court, which thoroughly analyzed the DPP A and the DPP A's legislative
history, incorrectly held that the DPP A allows obtainment of data for the sole purpose of
reselling it for a permissible purpose. (See PIs.' Resp. at 14 ("The Russell court incorrectly

interpreted the DPPA as to resellers.").) In the Russell cases, the court held that under the plain

language of the DPP A, a company could obtain data "strictly to redistribute it to persons with
permissible uses." Russell I, 300 F. Supp. 2d at 456; Russell II, 302 F. Supp. 2d at 664 (same);
see also Defs.' Consol. Mot. at 16-17.

"In the normal case Congress is assumed to be conscious of what it has done, especially when it chooses between two available terms that might have been included in the provision in question." Am. Pet. Inst. v. United
States EP A, 198 F.3d 275, 279 (D.C. Cir. 2000).
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Furthermore, the Russell Cour expressly considered and rejected the flawed reasoning of
the Iowa court's Locate.Plus opinion. See Russell I, 300 F. Supp. 2d at 459 ("Plaintiffs' reliance
on (Locate.

Plus. Com) is misplaced. .. That decision is both factually and procedurally

distinguishable from the case at hand.9 Furthermore, Locate.Plus.Com neglects to provide a

meaningful analysis of the DPP A's statutory language and corresponding congressional
intent, especially as they relate to the common definitions of key DPP A terms and to other
federal privacy acts.") (emphasis supplied); Russell II, 302 F. Supp. 2d at 667 (same).

Rather than citing a case on point, Plaintiffs admittedly reach for dicta from the Supreme

Court in a case where the Court dealt only with the DPPA's constitutionality, which is not at
issue here. (PIs.' Resp. at 16-17.) It is clear that Justice Rehnquist was not attempting to

consider or decide the issue before this Court, but instead was making a broad statement about
the DPPA.

Finally, Plaintiffs choose to ignore authority contrary to their position regarding resale of
the data. (See PIs.' Resp. at 19 (stating that the United States Department of Justice letter

"should be given little, if any, weight.").) The best Plaintiffs can do is acknowledge that the
Department of Justice, the federal agency charged with enforcing the DPP A, issued an opinion
squarely against them, and then - like the Russell opinions - urge this Court to ignore that

compelling authority. (See Defs.' ConsoL. Mot. at 19 (discussing content of Department of
Justice opinion).)
(ii) The State of Texas authorizes resale of data.
Plaintiffs assert that "(t)he State of

Texas has no process to 'authorize' entities to obtain
Texas does include in its

drivers license data solely for resale." (PIs.' Resp. at 22.) The State of

9

(See Defs.' Consol. Mot. at 16-17 for further discussion of the factual and procedural distinctions between

the cases.)

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contract the following language: 'It is expressly understood that the Purchaser may sell or
furnish personal information obtained under this agreement to third parties, subject to the

limitations herein, but may not sell or furnish personal information for any purpose or use that is

not permitted by federal or state law." (See PIs.' Resp. Ex. 2 at 3.) The State also requires any

entity that purchases data in bulk to comply with "all current provisions of the federal Driver

Privacy Protection Act of 1994, as amended by PL 106-69 (18 US.C. § 2721 et seq.)."
Furthermore, the Texas Administrative Code includes a provision regulating the redisclosure of
data to third paries. See 37 TEX. ADMIN. CODE § 15.143.
2. Plaintiffs lack standing to bring a claim under the DPP A.

A. Plaintiffs do not plead any actual harm from the alleged obtainment or resale.
Plaintiffs attempt to prosecute an alleged violation of the DPP A that did not actually

injure them. By arguing that they need not prove actual injury to have standing, Plaintiffs
implicitly concede they do not plead such an injury. In failing to do so, Plaintiffs ignore caselaw,

including Russell I and II, requiring Plaintiffs to plead facts detailing an actual injury caused Qy
these Defendants' alleged DPP A violations. Instead, they assert, contrary to the case

law, that a

statutory violation is suffcient to confer standing.

It is well settled, however, that to satisfy standing, a plaintiff must allege facts showing
an injury. See Lewis v. Knutson, 699 F.2d 230,237 (5th Cir. 1983) (dismissing plaintiffs claims

and holding that the constitutional limitations of Article III arise when plaintiff fails to allege a

personal injury); see also Russell II, 302 F. Supp. 2d at 670 (holding that plaintiffs failed to
satisfy their standing burden to show 'injury in fact'; Howard v. Hooters, Cause No. 4:07-CV03399, slip op. at 1 (S.D. Tex. Apr. 5,2008) (dismissing case where plaintiff alleged violation of

privacy act without allegation of injury or claim that anyone used their data); Bell v. Acxiom
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Corp., No. 4:06CV00485-WVW, 2006 WL 2850042, at *2 (E.D. Ark. Oct. 3,2006) (dismissing

case where plaintiffs data was disclosed in security breach, but plaintiff did not allege injury,
e.g., receipt of unsolicited mailngs or identity theft); Defs.' Consol. Mot. at 19-22 (discussing
relevant caselaw).
B. Kehoe does not permit a DPPA plaintiff

to prevail without showing injury.

Plaintiffs quote Kehoe, which simply states that "plaintiff need not establish actual
monetary damages to be entitled to liquidated damages under the DPP A." (See PIs.' Resp. at 25

(quoting Kehoe v. Fidelity Fed. Bank & Trust, 421 F.3d 1209 (11th Cir. 2005)).) Kehoe
addresses pleading and proving a specific amount of damages and a computation method. But,

even under Kehoe, Plaintiffs must plead and prove actual injury as required under the
Constitution and the caselaw. io See Lewis, 699 F.2d at 236-7; see also Russell II, 302 F. Supp.

2d at 670; Howard, Cause No. 4:07-CV-03399, slip op. at *1; Bell, 2006 WL 2850042, at *1-2.

III. CONCLUSION

Plaintiffs fail to state a claim against the Non-resellers or the Resellers. Furher,
Plaintiffs do not plead facts showing any injury and, therefore, lack standing. For the foregoing

reasons, these Defendants respectfully request that this Court enter an order dismissing this
action.

10

In Kehoe, unlike this case, the plaintiffs made aIIegations that they were harmed because the defendants

sent plaintiffs unwanted solicitations. 42 i F.3d at 12 11.

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Respectfully submitted,

BAKER BOTTS L.L.P.

By Isl Philip 1. John
Philp J. John
State Bar No.1 0672000 E-mail: philip.john(gbakerbotts.com One Shell Plaza 910 Louisiana
Houston, Texas 77002

[phone] [phone] (Facsimile)

Chad M. Pinson State Bar No. 24007849 E-mail: chad.pinson(gbakerbotts.com 2001 Ross Avenue Dallas, Texas 75201-2980 [phone]
[phone] (Facsimile)

Elizabeth E. Baker State Bar No. 24045437 E-mail: elizabeth.baker(gbakerbotts.com One Shell Plaza 910 Louisiana
Houston, Texas 77002

[phone] [phone] (Facsimile)

JASON R. SEARCY & ASSOCIATES, P.C.

Jason R. Searcy State Bar No. 17953500 Amy Bates Ames State Bar No. 24025243
Joshua P. Searcy

State Bar No. 24053468 P. O. Box 3929 Longview, Texas 75606
Telephone: [phone]
Facsimile: [phone]

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ATTORNEYS FOR AMERICAN DRIVING RECORDS, INC., DIBI A FIRST ADV ANT AGE ADR, AIK! A AGENCY RECORDS, INC., SOUTHWESTERN BELL TELEPHONE, L.P. D/BI A SOUTHWESTERN BELL TELEPHONE COMPANY, A TEXAS LIMITED PARTNERSHIP, SAFEW A Y INC., ACADEMY , LTD., BACKGROUND INFORMA nON SYSTEMS, INC., HEB GROCERY COMPANY, LP AND REALPAGE, INC.

MARTIN, DISIERE, JEFFERSON &WISDOM,
L.L.P.

By Isl Stephen D. Henninger
Mark J. Dyer State Bar No. 06317500 Attorney in Charge Stephen D. Henninger State Bar No. 00784256
900 Jackson Street, Suite 710

Dallas, TX 75202 [phone] (offce)
[phone] (telecopier)
ATTORNEYS FOR DEFENDANT FEDCHEX, L.L.c.

WALTERS BAUDO & CRAIN, L.L.P.

By Isl Jerry L. Ewing, Jr.
Jerry L. Ewing, Jr. Texas State Bar No. 06755470 Federal ID No. 9359 jerr .ewingêwbclawfirm.com Gregory R. Ave Texas State Bar No. 01448900

greg.aveêwbclawfrm.com
900 Jackson Street, Suite 600

Dallas, Texas 75202 [phone]
[phone] - Facsimile
ATTORNEYS FOR DEFENDANT SPARTAN INSURANCE COMPANY

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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WALTERS, BAUDO & CRAIN, L.L.P.

By Isl Carlos A. Balido
Carlos A. Balido Texas State BarNo. 01631230 carlos. balido(£wbclawfrm.com Gregory R. Ave Texas State Bar No. 01448900 greg.ave(£wbclawfrm. com
900 Jackson Street, Suite 600

Dallas, Texas 75202 [phone] (telephone) [phone] (facsimile)
ATTORNEYS FOR DEFENDANT HOUSEHOLD DRIVERS REpORT, INC., D/BI A HDR, INC.

ANDREWS KURTH LLP

By Isl Charles L. Perry
Charles L. Perry State Bar No. 15799900 1717 Main Street, Suite 3700 Dallas, Texas 75201 [phone] [phone] (facsimile)
ATTORNEYS FOR DEFENDANT INSURANCE TECHNOLOGIES CORPORATION

MCGINNIS, LOCHRIDGE & KILGORE, L.L.P.

By Isl Larry F. York
Larry F . York State Bar No. 22164000 600 Congress Ave., Suite 2100

Austin, Texas 78701 Tel: [phone] Fax: [phone]
ATTORNEYS FOR DEFENDANT ACS STATE & LOCAL SOLUTIONS, INC.

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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SMITH, ROBERTSON, ELLIOTT, GLEN, KLEIN & BELL, L.L.P.

By /s/ Wallace M. Smith
Wallace M. Smith Attomey-in-Charge State Bar No. 18698200 221 West Sixth Street, Suite 1100 Austin, Texas 78701
Telephone: [phone]

Telecopier: [phone] wsmith~smith-robertson.com
ATTORNEYS FOR DEFENDANT GILA CORPORATION D/B/A MUNICIPAL SERVICES BUREAU

CHAMBLEE & RYAN, P.C.

By /s/ Oralia Guzman
Jeffery M. Kershaw State Bar No. 11355020 Oralia Guzman State Bar No. 24041029
2777 Stemmons Freeway, Suite 1157

Dallas, Texas 75207 [phone] [phone] (Facsimile)
ATTORNEYS FOR DEFENDANT HA WKEYE INSURANCE SERVICES

CONSOLIDA TED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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THE HEARST CORPORATION

By Isl Ravi Y. Sitwala
Eva M. Saketkoo
Ravi Y. Sitwala

Office of General Counsel
300 West 57 Street, 40th FIr.

New York, NY 10019 Tel: [phone]
OGDEN, GIBSON, BROOCKS & LONGORIA, L.L.P.
William W. Ogden State Bar No. 15228500 1900 Pennzoil South Tower 711 Louisiana Houston, Texas 77002
Telephone: [phone]

Facsimile: 713- 844-3030
ATTORNEYS FOR THE HEARST CORPORATION D/BI A HOUSTON CHRONICLE

YETTER

& WARDEN, L.L.P.

By Isl Eric P. Chenoweth
Eric P. Chenoweth State Bar No. 24006989 909 Fannin, Suite 3600 Houston, TX 77010 [phone]
[phone] (fax)

echenoweth~yetterwarden.com
ATTORNEYS FOR DEFENDANT RELIANT ENERGY, INC.

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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HUNTON & WILLIAMS LLP

By Isl Stephen S. Maris
Stephen S. Maris Texas Bar No. 12986400

E-mail: smaris~hunton.com
Melissa 1. Swindle

Texas BarNo. 24013600 E-mail: mswindle~hunton.com 1445 Ross Avenue, Suite 3700 Dallas, Texas 75202-2799
Telephone: [phone]

Facsimile: [phone]
ATTORNEYS FOR DEFENDANT AMERICAN STUDENT

LIST, LLC

RAMEY, CHANDLER, McKINLEY & ZITO, P.c.

By Isl Robert L. Ramey
Robert L. Ramey - Attorney in Charge Texas Bar No. 16498200
Jil D. Schein

Texas Bar No. 00787476 750 Bering Drive, Suite 600 Houston, Texas 77057 Telephone No.: [phone] Facsimile No.: [phone]
ATTORNEYS FOR DEFENDANT SOURCE DATA, INC.

CONSOLIDA TED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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BURLESON COOKE, LLP

By Isl Randy Burton
Randy Burton Texas State Bar No. 03479050
711 Louisiana, Suite 1701

Houston, Texas 77002 [phone] (Telephone)
[phone] (Facsimile)
ATTORNEYS FOR DRIVER TRAINING ASSOCIATES, INC. D/BI A TICKETSCHOOL.COM

ANDREWS & UPDEGRAPH, P.C.

By Isl Robert M. Strasnick
Robert M. Strasnick - B.B.O. #637598 70 Washington Street; Suite 212 Salem, MA 01970 [phone]
A TTORNEYS FOR JON LA TORELLA, D/BI A

LOCA TEPLUS HOLDING CORPORATION

COGHLAN CROWSON, LLP.

By Isl Stayton L. Worthington
Stayton L. Worthington Lead Attorney State Bar No. 22010200 David P. Henry State Bar No. 24027015 Suite 211, The Energy Centre
1127 Judson Road

P.O. Box 2665 Longview, Texas 75606-2665 903/758-5543 Telephone [phone] Facsimile

bworthington(fccfw.com
ATTORNEYS FOR AMERICAN ELECTRIC POWER
SERVICE CORPORATION

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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ABERNATHY ROEDER BOYD & JOPLIN, P.C.

By Isl Richard M. Abernathy
Richard M. Abernathy State Bar No. 00809500 1700 Redbud Blvd., Suite 300 McKinney, Texas 75069 [phone] Telephone [phone] Facsimile
ATTORNEYS FOR DEFENDANT TENANT TRACKER,
INC.

TAYLOR DUNHAM AND BURGESS LLP

By Isl Steven D. Urban
Donald R. Taylor State Bar No. 19688800 dtaylorêtaylordunham.com Steven D. Urban State Bar No. 24028179 surbanêtaylordunham.com
301 Congress Avenue, Suite 1050

Austin, Texas 78701 [phone] [phone] facsimile
ATTORNEYS FOR DEFENDANT UNITED TEACHER
ASSOCIATES INSURANCE COMPANY

BROWN MCCARROLL, L.L.P.

By Isl Joel E. Geary
Joel E. Geary

State Bar No. 24002129 2001 Ross Avenue, Suite 2000 Dallas, Texas 75201-2995 [phone] [phone] - facsimile
COUNSEL FOR DEFENDANT JI SPECIALTY SERVICES, INC.
CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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JOHNSON, Y AUGHN, & HEISKELL

By Isl Michael P. Heiskell
Michael P. Heiskell State Bar No. 09383700 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 [phone] [phone] facsimile
ATTORNEY FOR NATIONAL STATISTICAL SERVICES CORPORATION

HANSHAW KENNEDY, LLP

By Isl Hastings L. Hanshaw
Hastings L. Hanshaw
Texas State Bar No. 24012781

hlh(fhanshawkennedy.com Attorney in Charge Collin D. Kennedy Texas State Bar No. 24012952 cdk(fhanshawkennedy.com 1125 Legacy Drive, Suite 250
Frisco, Texas 75034 Telephone: [phone]

Facsimile: [phone]
ATTORNEYS FOR AMERICAN MUNICIPAL SERVICES,

LTD.

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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LOCKE LORD BISSELL & LIDDELL LLP

By Isl Michael H. Collns
Michael H. Collns Texas Bar No. 04614300 (mcollins(flockelord.com) Thomas G. Yoxall State Bar No. 00785304
(tyoxall (flockelord. com)

Kirsten M. Castañeda State Bar No. 00792401 (kcastaneda(flockelord.com) Arthur E. Anthony State Bar No. 24001661 (aanthony(flockelord.com) 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201
Telephone: [phone] Facsimile: [phone]

ATTORNEYS FOR GLOBE LIFE AND ACCIDENT INSURANCE COMPANY

CAMPBELL HARRISON & DAGLEY L.L.P.

By Isl Robin L. Harison
Robin L. Harison State Bar No. 09120700 4000 Two Houston Center 909 Fannin, Suite 4000 Houston, Texas 77010 [phone] Telephone [phone] Facsimile
ATTORNEYS FOR DEFENDANT ADP SCREENING AND SELECTION SERVICES, INC. AIKIA AVERT, INC.

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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DOUGLAS E. KOGER

By Isl Douglas E. Koger
Douglas E. Koger State Bar No. 11654950 14090 Southwest Freeway, Ste. 300
Sugar Land, Texas 77478

Telephone [phone] Facsimile [phone] Email: dekoger(qkogerlaw.com
ATTORNEY FOR EMAGINENET TECHNOLOGIES, INC.

GODWIN P APP AS RONQUILLO LLP

By Isl David J. White
State BarNo. 21294500 Attorney-in-Charge 1201 Elm Street, Suite 1700 Dallas, Texas 75270
Telephone: [phone]

Facsimile: 214.527.3206
ATTORNEYS FOR TALBOT GROUP, INC.

1. RICHARD TUBB, PLLC

By Isl 1. Richard Tubb
1. Richard Tubb State Bar No. 20260400 Preston Commons West
8117 Preston Road, Suite 300

Dallas, Texas 75225
214-706-9234: Telephone

214-706-9236: Facsimile
ATTORNEYS FOR DEFENDANTS PARADISE

DEVELOPMENT, INC. D/BI A DRIVESAFE DEFENSIVE DRIVING AND SAFETY-USA INSTITUTE, LLC

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
HOU02: 1 139018.8

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GUY N. HARRISON

By Isl Guy N. Harrison
Guy N. Harrison Attorney at Law State Bar No. 00000077 217 N. Center Street P.O. Box 2845 Longview, Texas 75606
Tel: [phone]

Fax: [phone] guy(ßgnhlaw.com
ATTORNEY FOR DEFENDANT ARISTOTLE INTERNATIONAL, INC.

LOCKE LORD BISSELL & LIDDELL LLP

By Isl J. Michael Dorman
J. Michael Dorman Texas Bar No. 06004300 (mdorman(ßlockelord.com) Christopher Verducci Texas BarNo. 24051470
( cverducci(ßlockelord.com)

600 Travis Street, Suite 3400 Houston, Texas 77002
Telephone: [phone]

Facsimile: [phone]
ATTORNEYS FOR DEFENDANT DEFENSIVE DRIVER ONLINE, LTD.

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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THE LAW OFFICES OF S. GEORGE ALFONSO

By Isl George Alfonso
S. George Alfonso State Bar No. 00785658 5340 Alpha Road Dallas, TX. 75244 Phone: [phone]
Fax: [phone]

ATTORNEY FOR DEFENDANT ABC DATA, INC. D/B/A

UNICARD SYSTEMS, INC.

HALTOM & DOAN

By Isl Jennifer Haltom Doan
Jennifer Haltom Doan Texas Bar No. 08809050
Joshua R. Thane

Texas Bar No. 24060713 Crown Executive Center, Suite 100 6500 Summerhil Road Texarkana, TX 75503
Telephone: [phone]

Facsimile: [phone] Email: jdoan(fhaltomdoan.com
ARNOLD & PORTER LLP
Randall K. Miler (V A Bar #70672)

1600 Tysons Boulevard, Suite 900 McLean, VA 22102
Telephone: [phone]
Facsimile: [phone]

Email: Randall.Miler(faporter.com

COUNSEL FOR BIOMETRIC ACCESS COMPANY

CONSOLIDA TED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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GRAU KOEN, P.C.

By Isl James W. Grau
James W. Grau Attorney in Charge State Bar No: 08306350 Scott A. Whisler State Bar No. 21272900 2711 N. Haskell Avenue Suite 2000 Dallas, Texas 75204 [phone] [phone]-Fax
j grau(igraukoen. com

LA W OFFICES OF HAL BROWNE

By Isl Hal M. Browne
Hal M. Browne State Bar No. 03213500 6008 Fieldstone Drive Dallas, Texas 75252 [phone] [phone]-Fax halbrowne(ihotmail.com
ATTORNEYS FOR DEFENDANT CONTINUEDED. COM LLC, DIBIA IDRIVESAFELY.COM

EBANKS, SMITH & CARLSON, L.L.P.

By Isl Marvin C. Moos
Marvin C. Moos State Bar No.: 14413900 Ebanks, Smith & Carlson, L.L.P. 1301 McKinney, Suite 2700
Houston, Texas 77010-3079

TELEPHONE: [phone] FACSIMILE: 713/333-4600
ATTORNEY-IN-CHARGE FOR DEFENDANT ZEBEC
DATA SYSTEMS, INC. AND DEFENDANT INFONATlON,
CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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INC.

WIMER & lOBE

By Isl Brian C. lobe
Brian C. lobe

Texas Bar No. 10668200 Two Galleria Tower 13455 Noel Road, Suite 1000 Dallas, TX 75240 Phone: [phone] Fax: [phone]
ALLIED RESIDENTIEMPLOYEE SCREENING SERVICE, INC.

SPENCER CRAIN CUBBAGE HEALY & MCNAMARA PLLC

By Isl Gayla C. Crain
Gayla C. Crain

Texas State Bar No. 04991700 Fred Gaona III Texas State Bar No, 24029562 1201 Elm St., Suite 4100 Dallas, TX 75270
Main No.: 214.290,0000

Fax: [phone] Direct: 214.290.0002
E-mail: gcrain(fspencercrain.com

FEDERATED RETAIL HOLDINGS, INC.
Catherine Sison

Missouri State Bar No. 49793 611 Olive Street, Suite 1750 St. Louis, MO 63101 [phone] [phone] FAX
E-mail: catherine.sison(fmacys.com

ATTORNEYS FOR DEFENDANT FEDERA TED RETAIL

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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HOLDINGS, INC" FIK! A THE MAY DEPARTMENT
STORES COMPANY D/BI A FOLEY'S

GESS MATTINGLY & ATCHISON, P,S,C,

By Isl Wiliam W. Allen
Wiliam W, Allen 201 West Short Street Lexington, KY 40507
Telephone: [phone]

Facsimile: 859-233-4269 Email: wallen(qgmalaw.com
COUNSEL FOR DEFENDANT CROSS-SELL, INC.

PORTER & HEDGES, L.L.P.

By: Is/Jeffrey R. Elkin
Jeffrey R. Elkin State Bar No. 06522180 1000 Main Street, 36th Floor Houston, Texas 77002 [phone] - Telephone [phone] - Facsimile
Email: jelkin(qporterhedges.com
ATTORNEYS FOR DEFENDANT PROPER TYINFO CORPORA TION, SUCCESSOR BY MERGER TO REI

DATA,INC,

THOMPSON, COE, COUSINS & IRONS, L.L.P,

By Isl Roger D. Higgins
Roger D. Higgins State Bar No. 09601500 Daniel P. Buechler State Bar No. 24047756 700 N, Pearl Street, Twenty-Fifth Floor Dallas, Texas 75201-2832
Telephone: [phone]

Telecopy: [phone]

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY
ATTORNEYS FOR DEFENDANT

THOMPSON & KNIGHT, LLP

By Isl Craig A. Haynes
Craig A. Haynes State Bar No. 09284020 E-Mail: Craig.Haynes(?tklaw.com Jason L. Cagle State Bar No, 24027540 E-Mail: Jason.Cagle(?tklaw.com Thompson & Knight, LLP 1700 Pacific, Suite 3300 Dallas, Texas 75201 Phone: [phone] Fax: [phone]
ATTORNEYS FOR DEFENDANT LML PAYMENT SYSTEMS CORP,

T. BELEW ELLIS

By Isl T. Belew Ellis
T. Belew Ells State Bar No, 24007156
P,O, Box 802 Marshall, Texas 75671-0802 [phone]
[phone] (Fax)
ATTORNEY FOR DEFENDANT MARSHALL SYSTEMS TECHNOLOGY, INC

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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SIEBMAN REYNOLDS BURG PHILLIPS & SMITH LLP

By Isl Michael C. Smith
Michael C, Smith State Bar No. 18650410
713 South Washington Avenue

Marshall, TX 75670 Telephone: [phone] Facsimile: [phone] E-Mail: michaelsmith~siebman.com
LEAD ATTORNEY FOR DEFENDANT U,S, INTERACTIVE, INC.

OF COUNSEL:

SEYFARTH SHAW LLP

Walter J. Cicack State Bar No, 04250535 Karl E, Neudorfer State Bar No. 24053388 Seyfarth Shaw LLP 700 Louisiana Street, Suite 3700 Houston, Texas 77002
Telephone: [phone]

Facsimile: [phone] E-Mail: wcicack~seyfarth.com

FARRR & BALL
Michael A. Hawash State Bar No. 00792061 1010 Lamar, Suite 1600 Houston, TX 77002
Telephone: [phone]
E-Mail: michael~fbtrial.com

ATTORNEYS FOR DEFENDANT U.S. INTERACTIVE, INC.

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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THE HUNICUTT LAW FIRM

By Isl J. Stephen Hunnicutt
J. Stephen Hunicutt
State Bar No, 10279510 Two Hilcrest Green 12720 Hilcrest, Suite 750 Dallas, Texas 75230 214.361.6740
214,691.5099 (fax) steve~hunnicutt1aw .com
COUNSEL FOR DALLAS COMPUTER INFORMATION SYSTEMS

BOYD & BROWN, P,C.

By Isl Paul M, Boyd
Paul M, Boyd State Bar No. 02775700 Lead Attorney 1215 Pruitt Place Tyler, Texas 75703 903/526-9000 903/526-9001 (FAX)

boydpc~tyler.net
ATTORNEYS FOR DEFENDANT, REALTY COMPUTER SOLUTIONS, INC, DIBI A REAL-COMP

BURLESON, PATE & GIBSON

By Isl John E. Collins
John E. Collins TX SBN: 04613000 2414 N. Akard, Ste. 700 Dallas, Texas 75201 214-871-4900 Telephone Facsimile: 214-871-7543
ATTORNEY FOR URAPI, INC. AND D.B. STRINGFELLOW

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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IRELAND, CARROLL & KELLEY, P.C.

By Isl Patrick Kelley
Patrick Kelley State Bar No. 11202500 6701 S. Broadway, Suite 500 Tyler, Texas 75703 Telephone: [phone]
Facsimile: [phone]

Email: patkelley(ficklaw.com

HUNTON & WILLIAMS LLP
Barry R. Davidson 1111 Brickell Ave" Suite 2500 Miami, Florida 33131 Telephone: [phone] Facsimile: (305) 810.240
Email: bdavidson(fhunton.com
ATTORNEYS FOR DEFENDANT ACXIOM CORPORATION AND ACXIOM RISK MITIGATION, INC,

PARKER HUDSON RAINER & DOBBS, LLP

By Isl Jodi Emmert Zysek
David G, Russell Georgia Bar No, 620350
Jodi Emmert Zysek

Georgia Bar No. 247407 1500 Marquis Two Tower 285 Peachtree Center Avenue, N.E. Atlanta, Georgia 30303
Phone: [phone]

Facsimile: [phone]
E-mail: drussell(fphrd.com

E-mail: jzysek(fphrd.com

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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OF COUNSEL:

CAPSHA W DERIEUX, LLP

Calvin Capshaw State Bar No, 03783900 Elizabeth L. DeRieux State Bar No, 05770585 Energy Centre 1127 Judson Road, Suite 220 p, O. Box 3999 (75606-3999) Longview, Texas 75601-5157 Direct Dial: [phone]
Telephone: [phone]

Facsimile: [phone] ederieux(icapshawlaw.com
ccapshaw(icapshawlaw. com
ATTORNEYS FOR DEFENDANT TELECHECKSERVICES, INC.

GARDERE WYNE SEWELL LLP

By Isl Mark W, Bayer
Mark W. Bayer Texas State Bar No, 01939925 1601 Elm Street, Suite 3000
Dallas, Texas 75201-4761

214/999-3000
Fax: [phone]

ATTORNEYS FOR ISO CLAIMS SERVICE, INC, DBA INSURANCE INFORMATION EXCHANGE

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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CROUCH & RAMEY, L.L,P.

By Isl Kirk T. Florence
Kirk T. Florence State Bar No, 07160900 1445 Ross Avenue, Suite 3600 Dallas, Texas 75202
Telephone: [phone]

Telecopier: [phone]
Email: kf1orence~crouchfirm.com

OF COUNSEL:

NIXON PEABODY LLP
Christopher M. Mason
437 Madison Avenue

New York, New York 10022
Telephone: [phone]

Telecopier: [phone] Email: cmason~nixonpeabody.com
COUNSEL FOR DEFENDANT CARFAX, INC.

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been fied pursuant to the electronic fiing
requirements of the United States District Court for the Eastern District of

Texas on this, the 14th

day of May, 2008, which provides for service on counsel of record in accordance with the
electronic fiing protocols in place,
Isl Elizabeth E. Baker Elizabeth E. Baker

CONSOLIDATED REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS ON COMMON ISSUES AND RESPONSE TO PLAINTIFFS' STATEMENT
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