Argument recap: Looking for a line south of trolling for clients
on Jan 11, 2013 at 2:44 pm
On Wednesday, the Court heard oral argument in Maracich v. Spears, a case involving the interpretation of the Driver’s Privacy Protection Act (DPPA). As described in our preview, the DPPA generally prohibits the use of data from a department of motor vehicles for solicitation without the driver’s prior consent. The defendants in Spears nonetheless used driver data without such consent to identify and contact potential clients in a class action law suit. The question before the Supreme Court is whether that use falls within a “litigation exception” in the statute, which applies to driver information used “in connection with any civil” litigation.
Joeseph R. Guerra, of Sidley Austin, argued on behalf of the DPPA plaintiffs. He began by asserting that the litigation exception had no relevance because another provision directly addresses solicitations and requires prior consent. If Congress had intended to exempt attorney solicitations from that requirement, it would have said so explicitly.
Justice Kagan was skeptical. The statute is a “mess,” she observed, suggesting that Congress was not acting with that kind of precision. Didn’t it make more sense to read the list of exception as providing a number of potentially overlapping defenses, any one of which is sufficient? And in that case, isn’t the question simply whether the attorney solicitation falls within the terms of the litigation exception?
Justice Ginsburg further questioned whether there was any sensible way to distinguish lawyer solicitation from other kinds of permissible conduct that would fall within the litigation exception. If a lawyer can use the data to investigate the facts of the case – including by sending letters to drivers in the DMV database to see if they had experienced similar allegedly unlawful conduct at the hands of the car dealerships that were the defendants in the underlying lawsuit – why would Congress then want to make it unlawful for the lawyer to offer to represent the person if it turned out that his rights had been violated? Justice Kagan asked similar questions as well.
Justice Kennedy suggested, however, that the litigation exception could not cover solicitations because it contemplates only activity that takes place after the lawsuit has already been filed. Although the exception includes “investigation in anticipation of litigation,” Justice Kennedy proposed that this meant only the part of the investigation that occurs after the suit has been filed and served on the defendant.
Guerra added that the other examples in the litigation exception provision – service of process, execution of a judgment, or enforcement of other judicial orders – all involve lawyers active as “officers of the court,” not in a commercial capacity of trying to drum up business.
Paul Clement, of Bancroft PLLC, argued on behalf of the DPPA defendants. He began by stressing that the DPPA is an unusual statute, in that it regulates states’ use of their own databases. The exceptions to the Act should be read broadly to minimize the federalism costs of the statute.
But the Chief Justice noted that the Court had previously said that the litigation exception for any conduct “in connection with” civil litigation cannot possibly be as broad as the language could literally be construed.
True, Clement replied, but it is nonetheless very broad. He noted that the exception was broadened at several points during the legislative drafting process (a point he made “for those who look at legislative history”).
Justice Breyer said, quite candidly, that he wanted a rule that would prohibit lawyers from using driver data to “troll for clients.” He asked whether there was a line “south of that” under which Clement’s clients would still prevail. (“What is South?” Justice Scalia asked. “I don’t have a compass here.”)
“If you want to draw the line south of the trolling line,” Clement answered, then the Court should hold that the exception applies when a lawyer already has some clients and is using the information to find more members of a class injured by the same basic conduct or conspiracy.
Justice Scalia suggested that the case boils down to whether solicitation is a form of “investigation in anticipation of litigation” within the meaning of the statute. And reading “investigation” to exclude solicitation, as the plaintiffs argued, seems a sensible way to reconcile the litigation exception with the solicitation provision.
Clement insisted, however, that there is nothing to reconcile. The fourteen exceptions have lots of overlap, and it is unreasonable to think that Congress intended the courts to work out ways to eliminate it.
Justice Alito and, later, Justice Breyer were troubled by the prospect that the litigation exception allows disclosure and use of the most sensitive information, for example, Social Security numbers. It seemed unlikely to Justice Alito that Congress intended to treat lawyers as a “privileged class” and allow them to use that information for solicitation, but no one else.
Clement responded that just because the DPPA does not criminalize that disclosure to lawyers does not mean that a state must allow it. And in fact, the state in this case does not allow disclosure of Social Security numbers without a court order.
During Guerra’s rebuttal, Justice Breyer continued to search about for a line south of trolling, but seemingly one that would permit class counsel to solicit clients in particular cases to fill a representational void. But Guerra remained firm that all solicitation is prohibited without prior consent. He noted that there “are loads of ways to find class representatives without going to DMVs,” and that most class actions having nothing to do with cars are nonetheless litigated without this kind of special access to government databases.
I have no clear sense of where the Court is likely to land in this case. It seems likely that a majority of the Court will reject petitioners’ principal argument that the litigation exception has no application at all. At the same time, there did not appear to be a large constituency for respondents’ opposite assertion that the litigation exception permits nearly all forms of attorney solicitation of clients. But rejecting the two extremes would require the Court to find some line – quite possibly Justice Breyer’s elusive line just south of trolling – that will capture what the Court believes Congress meant to allow yet be administrable by the courts and discernible to lawyers who must adhere to it or face significant financial (and even criminal) penalties. If the Court cannot solve that puzzle, it may end up adopting one of the parties’ more categorical positions.