Pichler v. UNITE

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

9-9-2008

Pichler v. UNITE

Precedential or Non-Precedential: Precedential

Docket No. 06-4522

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 06-4522

06-4721

ELIZABETH PICHLER; KATHLEEN F. KELLY; RUSSELL

CHRISTIAN; DEBORAH BROWN; SETH NYE; HOLLY

MARSTON; KEVIN QUINN; JOSE L. SABASTRO;

DEBORAH A. SABASTRO; THOMAS RILEY; AMY RILEY;

RUSSELL DAUBERT; CARRIE DAUBERT

v.

UNITE (UNION OF NEEDLETRADES, INDUSTRIAL AND

TEXTILE EMPLOYEES, AFL-CIO), A NEW YORK

UNINCORPORATED ASSOCIATION; BRUCE RAYNOR, A

NEW YORK RESIDENT; INTERNATIONAL

BROTHERHOOD OF TEAMSTERS AFL-CIO, DOES 1-10

UNITE HERE,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 04-cv-02841)

District Judge: Hon. Stewart Dalzell

Argued December 6, 2007

Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit

Judges.

(Filed: September 9, 2008)

Paul R. Rosen

David B. Picker (Argued)

Spector Gadon & Rosen, P.C.

1635 Market Street, 7th Floor

Philadelphia, PA 19103

Counsel for Appellant/Cross-Appellee

Lawrence T. Hoyle, Jr. (Argued)

Arlene Fickler

Arleigh P. Helfer III

John R. Timmer

Hoyle, Fickler, Herschel & Mathes LLP

One South Broad Street, Suite 1500

Philadelphia, PA 19107

Counsel for Appellee/Cross-Appellant

OPINION OF THE COURT

CHAGARES, Circuit Judge.

This case presents several issues of first impression in this

court of appeals regarding application of the Driver’s Privacy

Protection Act of 1994 (the DPPA), 18 U.S.C. §§ 2721-2725.

After certifying a class to proceed against the defendant-labor

union, the District Court construed certain provisions of the DPPA

and granted summary judgment to all but three of the named

plaintiffs (plaintiffs). The court found that the union’s labor

organizing activities violated plaintiffs’ privacy rights under the

DPPA and awarded monetary and injunctive relief. However, the

court granted the union summary judgment on plaintiffs’ claims for

punitive damages and dismissed the claims of the three other

plaintiffs. The court deferred judgment as to class-wide relief,

awaiting appellate clarification on the novel issues raised. Both

sides have appealed. We will affirm in part, vacate in part, and

remand for further proceedings.

2

I.

In the fall of 2002, the Union of Needletrades, Industrial &

Textile Employees AFL-CIO (UNITE)1 decided to launch a union

organizing campaign targeting Cintas Corporation (Cintas). Cintas,

the largest domestic employer in the industrial laundry industry, is

philosophically opposed to unions and union organizing. UNITE

was concerned with what it saw as Cintas’ low wages, poor

benefits, unsafe working conditions, discriminatory practices, and

violations of various labor laws. The International Brotherhood of

Teamsters AFL-CIO (Teamsters) already represented some Cintas

employees, and the two unions therefore agreed to work together

on the campaign.2

From its inception, a major component of the campaign to

organize and unionize Cintas workers was finding potential legal

claims against Cintas. UNITE sought to use litigation as a means

of raising the standards in the industrial laundry industry, and to

demonstrate to Cintas’ employees the effectiveness and usefulness

of labor organizing. UNITE believed that house calls were

essential to the campaign’s success because it thought workers

would be reluctant to talk to union organizers at work for fear of

retaliation by Cintas management. In order to contact employees,

UNITE compiled lists of names and addresses of presumed Cintas

workers from a variety of sources. Among these sources, UNITE

used license plate numbers on cars found in Cintas parking lots to

access information contained in state motor vehicle records relating

to those license plates. This technique is known as “tagging.”

1

In July of 2004, UNITE merged with the Hotel Employees

and Restaurant Employees International Union (HERE), and the

combined entity has become known as “UNITE HERE.” For the

sake of simplicity, we will refer to the entity that is a defendant in

this case as “UNITE.”

2

The Teamsters, however, are no longer a party to this case.

The District Court approved a settlement between the Teamsters

and the plaintiffs and dismissed the Teamsters from the case. See

Pichler v. UNITE, 446 F. Supp. 2d 353, 365 (E.D. Pa. 2006).

3

Generally, UNITE organizers would enter or observe a

Cintas parking lot and either write down or dictate into a tape

recorder the license plate numbers on cars seen parked in, entering,

or leaving the lot. The organizers would then take their lists of

license plate numbers and access motor vehicle records either by

using a Westlaw database or through private investigators or

“information brokers.” Appendix (App.) 229. The information

brokers would—either directly or through intermediaries—obtain

the information by applying to state motor vehicle bureaus.

Through these methods, UNITE accessed the motor vehicle

records of the plaintiffs and a plaintiff class estimated by the

parties to consist of between 1,758 and 2,005 Cintas employees, or

relatives or friends of Cintas employees. UNITE visited the homes

of many of these class members as well. During one such home

visit on February 7, 2004, two women approached the house of

plaintiff Kevin Quinn and rang his doorbell. When Quinn opened

the door, they asked for him by name. He replied “That’s me.”

App. 238. When the women informed him that “they were

organizing a union campaign against Cintas,” he told them he was

not interested and shut the door. Id. The women returned to their

car and departed.

In addition to Quinn, plaintiffs include other individuals

employed by Cintas at all times relevant to this case—Elizabeth

Pichler, Jose Sabastro, Thomas Riley, Seth Nye, and Russell

Daubert. 3 Plaintiffs also include several non-Cintas

employees—Russell Christian, Deborah Sabastro, Carri Daubert,

Holly Marston, and Amy Riley. Russell Christian is the boyfriend

and housemate of Cintas employee Kathleen Kelly (who the

District Court dismissed for lack of standing).4 Christian owns the

3

The caption contains the name of one additional

plaintiff—Deborah Brown. Brown stipulated to the dismissal of

her claim without prejudice, and so her claim is not now before us.

See Pichler v. UNITE, 228 F.R.D. 230, 240 (E.D. Pa. 2005).

4

Unlike the District Court’s finding that Deborah Sabastro

and Carri Daubert lacked standing, plaintiffs have not appealed the

similar dismissal of Kathleen Kelly. Appellant Br. at 49.

4

car Kelly drives and is the person whose motor vehicle records

UNITE accessed. When a UNITE organizer came to their home,

he asked to speak to Christian. Holly Marston is the mother of

Seth Nye, and the two co-own the car whose records were accessed

(thereby obtaining the identities of both individuals). Amy Riley

is Thomas Riley’s wife, and they co-own the car whose records

were searched as well. Deborah Sabastro and Carri Daubert are the

wives of Jose Sabastro and Russell Daubert, but UNITE accessed

only their husbands’ motor vehicle records as their cars were

registered to their husbands. The court dismissed both wives’

claims for lack of standing.

The original complaint in this case was filed on June 28,

2004. App. 27. Shortly thereafter, plaintiffs filed a one-count

amended class action complaint alleging that the Teamsters,

UNITE, and UNITE’s President, Bruce Raynor, violated the

DPPA.

On May 31, 2005, the court certified a class to proceed

against UNITE, though not against Raynor, and dismissed the

claims of Kathleen Kelly, Carri Daubert, and Deborah Sabastro for

lack of standing. See Pichler v. UNITE, 228 F.R.D. 230 (E.D. Pa.

2005) (Pichler I). On August 30, 2006, the court granted summary

judgment against UNITE and awarded the plaintiffs $2,500 each,

and granted summary judgment in favor of Raynor. See Pichler v.

UNITE, 446 F. Supp. 2d 353 (E.D. Pa. 2006) (Pichler II). Pursuant

to Federal Rule of Civil Procedure 54(b), the court also certified

the case for appellate review, deferring the questions about class-

wide and injunctive relief. Finally, on October 17, 2006, the court

amended its previous judgment and granted UNITE summary

judgment on the issue of punitive damages. See Pichler v. UNITE,

457 F. Supp. 2d 524 (E.D. Pa. 2006) (Pichler III). The court also

granted separate awards to Thomas Riley and Amy Riley, co-

owners of a vehicle whose records UNITE searched,5 and

permanently enjoined UNITE and its employees from using or

5

The court had already granted separate awards to co-

owners Seth Nye and Holly Marston in its August 30, 2006

judgment.

5

disclosing any of the plaintiffs’ personal information obtained by

UNITE in violation of the DPPA. This appeal followed.

II.

The District Court had subject matter jurisdiction over this

federal question action under 28 U.S.C. § 1331. We have

jurisdiction over this appeal from the final decision of the District

Court pursuant to 28 U.S.C. § 1291.6

6

We agree with the parties that the District Court properly

certified this case pursuant to Federal Rule of Civil Procedure

54(b). See 10 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2654 (3d ed. 1998) (explaining Rule

54(b)’s goal of avoiding “the possible injustice of a delay in

entering judgment . . . as to fewer than all of the parties until the

final adjudication of the entire case by making an immediate appeal

available”). There are two basic conditions on the rule’s

applicability: “(1) there has been a final judgment on the merits,

i.e., an ultimate disposition on a cognizable claim for relief; and (2)

there is ‘no just reason for delay.’” Berckeley Inv. Group, Ltd. v.

Colkitt, 455 F.3d 195, 202 (3d Cir. 2006) (quoting Curtiss-Wright

Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8 (1980)).

In this case, both requirements are met. The District Court

granted summary judgment as to UNITE’s liability under the

DPPA and addressed all remedial issues except attorneys’

fees—granting liquidated damages, denying punitive damages, and

granting injunctive relief. See Budinich v. Becton Dickinson &

Co., 486 U.S. 196, 199-203 (1998) (explaining that a decision on

the merits is a final decision as a matter of federal law under 28

U.S.C. § 1291 even when the recoverability or amount of

attorneys’ fees for the litigation remains to be determined). Thus,

all the rights and liabilities of UNITE, vis-a-vis the plaintiffs, have

been fully adjudicated and finally decided. So too, the District

Court found no just reason for delaying an appeal, and explained

its rationale for this finding. See Carter v. City of Philadelphia,

181 F.3d 339, 346 (3d Cir. 1999) (requiring that district courts

explain their reasons for certifying a judgment for appeal under

6

We review the District Court’s construction of federal

statutes de novo. Chao v. Cmty. Trust Co., 474 F.3d 75, 79 (3d

Cir. 2007). We also review a grant or denial of summary judgment

de novo, applying the same standard as the District Court. Marten

v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007). Summary judgment

is only appropriate if “there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c); DL Res., Inc. v. FirstEnergy Solutions Corp.,

506 F.3d 209, 216 (3d Cir. 2007). On cross-motions for summary

judgment, the court construes facts and draws inferences “in favor

of the party against whom the motion under consideration is

made.” Samuelson v. LaPorte Cmty. Sch., 526 F.3d 1046, 1051

(7th Cir. 2008) (quotation marks omitted). The court may not,

however, weigh the evidence or make credibility determinations as

“these tasks are left for the fact-finder.” Pertruzzi’s IGA

Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224,

1230 (3d Cir. 1993).

III.

Plaintiffs contend that the District Court erred in granting

defendants’ summary judgment motion on the issue of punitive

damages and that they were denied their Seventh Amendment right

to a jury trial on that issue.7

Rule 54(b)). We find no error in the District Court’s finding that

there was no just reason for delay. Accordingly, the requirements

of Rule 54(b) are met, and we have appellate jurisdiction over the

final decision of the District Court.

7

The remedial section of the DPPA provides:

(b) Remedies.--The court may award--

(1) actual damages, but not less than liquidated

damages in the amount of $2,500;

(2) punitive damages upon proof of willful or

reckless disregard of the law;

(3) reasonable attorneys’ fees and other litigation

costs reasonably incurred; and

(4) such other preliminary and equitable relief as the

7

A.

The parties filed cross-motions for summary judgment with

the District Court, and submitted certain jointly stipulated facts for

purposes of disposing of the motions. The court properly granted

summary judgment as to UNITE’s liability (except as noted in

section V, infra) on the grounds that uncontroverted evidence

established that UNITE acted for an impermissible purpose, in

violation of the DPPA. Pichler III, 457 F. Supp. 2d at 531.

Regarding the issue of summary judgment on plaintiffs’

request for punitive damages, however, the District Court seems to

have applied an inappropriate standard. The court assumed that

awarding remedies was simply “in its discretion.” Id. at 527.

Specifically, rather than determining whether there were genuine

issues of material fact as to whether UNITE willfully or recklessly

contravened the DPPA as § 2724(b)(2) requires, the court found

that “[t]he DPPA plainly gives us the discretion to award or to deny

punitive damages, even if UNITE violated the DPPA and did so

willfully and recklessly. We must craft an appropriate award

bearing in mind the purposes of the statute and the relevant

jurisprudence on punitive damages.” Id. at 531 (emphasis in

original). In so doing, the court considered plaintiffs’ arguments

concerning UNITE’s prior knowledge of the DPPA following

UNITE’s involvement in earlier litigation 8 and UNITE’s continued

use of motor vehicle information. The court also considered the

court determines to be appropriate.

18 U.S.C. § 2724(b).

8

I n Tarkington v. Hanson and UNITE, No. 4-00-cv-00525

JMM (E.D. Ark. Aug. 25, 2000), the plaintiffs therein alleged that

UNITE obtained motor vehicle license plate numbers from vehicles

parked in the Dillard’s Distribution Center in Mabelvale, Arkansas,

which UNITE used to obtain personal information. The parties

eventually settled the case. President Bruce Raynor discussed the

terms of the settlement with UNITE’s counsel as it was being

negotiated and Raynor executed the settlement documents on

behalf of UNITE. See Pichler II, 446 F. Supp. 2d at 364.

8

fact that UNITE’s legal department distributed a memorandum

directing its campaigners not to use “license plate numbers to

obtain any information from Department of Motor Vehicles

records, including names and addresses.” Id. (quotation marks

omitted). The court found that “this clear instruction, plus the

certainty that further license plate retrievals will result in costly

damages awards, will effectively deter UNITE from further

violations of the DPPA. Thus, we achieve deterrence without

imposing punitive damages.” Id. at 532 (footnote omitted). The

court refused to award punitive damages, deeming them

“unnecessary” in this case. Id.

The District Court concluded that it had discretion to

fashion an award, but it did not determine whether summary

judgment was appropriate on the issue of punitive damages given

the requirements of § 2724(b)(2). The court did not apply the

standards for summary judgment, nor did it even mention summary

judgment in its analysis. Furthermore, it appears that the court

improperly engaged in weighing of evidence on the summary

judgment record. See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Bragen v. Hudson News Co., 278 F.2d 615, 618 (3d Cir.

1960). Accordingly, we will vacate the court’s denial of punitive

damages and remand for the court to address explicitly whether

summary judgment was appropriate on the issue of punitive

damages.

B.

If, on remand, the District Court determines that summary

judgment is appropriate as to plantiffs’ punitive damages claim,

then a trial will be unnecessary. In re TMI Litig., 193 F.3d 613,

725 (3d Cir. 1999); see Tull v. United States, 481 U.S. 412, 419

(1987). However, if the District Court determines that summary

judgment is inappropriate, we agree with plaintiffs that they are

entitled to a jury trial on their punitive damages claim, as we

discuss below.

The Supreme Court has instructed that “[b]efore inquiring

into the applicability of the Seventh Amendment, we must ‘first

ascertain whether a construction of the statute is fairly possible by

9

which the [constitutional] question may be avoided.’” City of

Monterey v. Del Monte Dunes, 526 U.S. 687, 707 (1999) (quoting

Tull, 481 U.S. at 417 n.3). It is clear that the DPPA makes no

mention of a right to a jury trial. As the District Court properly

observed, “[t]he DPPA does not provide for a jury trial on this (or,

for that matter, any) issue.” Pichler III, 457 F. Supp. 2d at 531.9

Accordingly, we must engage in a Seventh Amendment analysis.

See Cox v. Keystone Carbon Co., 861 F.2d 390, 393 (3d Cir.

1988).

The Seventh Amendment provides that “in Suits at common

law, where the value in controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved . . . .” U.S. Const. amend.

VII. Consistent with this textual mandate that the jury right be

preserved, the Supreme Court has recognized:

our interpretation of the Amendment has been

guided by historical analysis comprising two

principal inquiries: “[F]irst, whether we are dealing

9

UNITE argues that the language of the DPPA vests the

court—not a jury—with discretion to award damages and,

therefore, plaintiffs have no right to a jury trial. See 18 U.S.C. §

2724(b) (“The court may award . . . punitive damages . . . .”).

Because “the court” can refer to the judge, the jury, or some

combination of the two, we reject UNITE’s argument that the

language evinces Congress’s clear intention to abrogate the jury

trial right for punitive damages. Along these lines, the fact that the

statute seems to indicate an exercise of discretion does not alter our

conclusion. There is ample “historical evidence that cases

involving discretionary monetary relief were tried before juries.”

Feltner, 523 U.S. at 353. Indeed, in Feltner, where the language of

the statute seemed to demand discretion on the part of the trial

judge (“the copyright owner may elect . . . an award of statutory

damages . . . in a sum of not less than $500 or more than $20,000

as the court considers just . . . .” (emphasis added)), the Court held

that “the Seventh Amendment provides a right to a jury trial on all

issues pertinent to an award of statutory damages . . . including the

amount itself.” Id. at 355.

10

with a cause of action that either was tried at law at

the time of the founding or is at least analogous to

one that was. If the action in question belongs in the

law category, we then ask whether the particular trial

decision must fall to the jury in order to preserve the

substance of the common-law right as it existed in

1791.”

Del Monte Dunes, 526 U.S. at 708 (quoting Markman v. Westview

Instruments, Inc., 517 U.S. 370, 376 (1996)) (quotation marks and

citation omitted).

1.

Conducting the first inquiry, the Supreme Court has noted

that “[t]he Seventh Amendment [] applies not only to common-law

causes of action, but also to ‘actions brought to enforce statutory

rights that are analogous to common-law causes of action

ordinarily decided in English law courts in the late 18th century, as

opposed to those customarily heard by courts of equity or

admiralty.’” Feltner v. Columbia Pictures Television, Inc., 523

U.S. 340, 348 (1998) (quoting Granfinanciera, S.A. v. Nordberg,

492 U.S. 33, 42 (1989)). To determine whether a statutory cause

of action is more analogous to actions decided in courts of law or

equity “we examine both the nature of the statutory action and the

remedy sought.” Id. It is undisputed that plaintiffs are seeking the

remedy of legal relief under the DPPA. See id. at 352 (“We have

recognized the ‘general rule’ that monetary relief is legal . . . . ”).

We must next determine whether civil suits seeking legal relief

under the DPPA are analogous to common law causes of action

ordinarily decided in courts of law in the late 18th century.

The Supreme Court in Del Monte Dunes considered, inter

alia, whether an action for legal relief under 42 U.S.C. § 1983 “is

an action at law within the meaning of the Seventh Amendment.”

526 U.S. at 709. Recognizing that the right to a jury extends to

statutory claims that did not exist at common law, the Court noted

that the right inures in claims that “can be said to ‘soun[d] basically

in tort,’ and seek legal relief.” Id. (quoting Curtis v. Loether, 415

U.S. 189, 195 (1974)). The Court then looked to the statute at

11

issue and found that “there can be no doubt that claims brought

pursuant to § 1983 sound in tort. Just as common-law tort actions

provide redress for interference with protected personal or property

interests, § 1983 provides relief for invasions of rights protected

under federal law.” Id. The Court concluded that because the §

1983 suit sought legal relief and sounded in tort, it was an action

at law.

Like § 1983, the DPPA sounds in tort. Just as common-law

tort actions provide redress for interference with protected personal

or property interests, so too does the DPPA. The DPPA provides

redress for violation of a person’s protected interest in the privacy

of his or her motor vehicle records and the identifying information

therein. Accordingly, plaintiffs’ claims for legal relief under the

DPPA are analogous to common law causes of action ordinarily

decided in the courts of law in the late 18th century. Cf. Samuel

Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev.

193, 213 n.1 (1890) (noting that “the common law has for a century

and a half protected privacy in certain cases”).

2.

Having established that “the action in question belongs in

the law category, we then ask whether the particular trial decision

must fall to the jury in order to preserve the substance of the

common-law right as it existed in 1791.” Markman, 517 U.S. at

376. The Supreme Court has acknowledged that “[w]e determine

whether issues are proper for the jury, when possible, ‘by using the

historical method’ . . . look[ing] to history to determine whether the

particular issues, or analogous ones, were decided by judge or by

jury in suits at common law at the time the Seventh Amendment

was adopted.” Del Monte Dunes, 526 U.S. at 718 (quoting

Markman, 517 U.S. at 378). Where an examination of history does

not provide a definitive answer as to the particular issues or

analogous issues, “we look to precedent and functional

considerations.” Del Monte Dunes, 526 U.S. at 718.

The Supreme Court has made clear that, historically, the

issue of punitive damages was tried to a jury in cases sounding in

tort. In Day v. Woodworth, 54 U.S. (13 How.) 363 (1851), the

12

Court acknowledged that decisions regarding punitive damages

should be “left to the discretion of the jury” and noted that this

principle was supported by “repeated judicial decisions for more

than a century.” Id. at 371; see id. (recognizing that issue of

punitive damages has “always” been a jury question). In particular,

the Court observed, “[i]t is a well-established priciple of the

common law, that in . . . all actions on the case for torts, a jury may

inflict what are called exemplary, punitive, or vindictive damages

upon a defendant . . . .” Id. Accordingly, we hold that the issue of

punitive damages in cases sounding in tort (such as the DPPA)

“were decided by [a] jury in suits at common law at the time the

Seventh Amendment was adopted.” Del Monte Dunes, 526 U.S.

at 718.

Even if history did not provide a definitive answer to the

question of whether the issue of punitive damages should be tried

by a jury, both precedent and functional considerations support our

holding. First, regarding precedent, we held in Klinger v. State

Farm Mutual Auto Insurance Co., 115 F.3d 230 (3d Cir. 1997), that

because punitive damages constituted traditional legal relief, the

Seventh Amendment demanded that a jury assess whether punitive

damages were appropriate in a statutory bad faith action. Id. at

235-36; see also Tull, 481 U.S. at 422 (“Remedies intended to

punish culpable individuals . . . were issued by courts of law, not

courts of equity.”); Curtis, 415 U.S. at 196 (noting that the remedy

of punitive damages “is the traditional form of relief sought in the

courts of law”). Second, regarding functional considerations, “[i]n

actions at law predominantly factual issues are in most cases

allocated to the jury.” Del Monte Dunes, 526 U.S. at 720. The

relevant issue in this case is whether UNITE willfully or recklessly

disregarded the prohibitions of the DPPA. See 18 U.S.C. §

2724(b)(2). Trial issues of willfulness and recklessness are

common factual issues for juries to determine. See Metzger v.

Osbeck, 841 F.3d 518, 521 (3d Cir. 1988) (“[W]e cannot deprive

plaintiffs of an opportunity to have a jury resolve the issue of

[defendant]’s intent in their favor.”); United States v. House, 524

F.2d 1035, 1045 (3d Cir. 1975) (observing in tax evasion case that

“question of wilfulness is uniquely for the trier of fact” and

concluding that “[t]here was certainly a jury question with respect

to [defendant’s] wilfulness”); see also Fargo v. City of San Juan

13

Bautista, 857 F.2d 638, 641 (9th Cir. 1988) (“When reasonable

persons may disagree as to whether particular conduct constitutes

negligence, gross negligence, or recklessness, the question is one

of fact to be decided by the jury.”).

In sum, where there is a genuine issue of material fact

regarding the willfulness or recklessness of a defendant’s conduct,

we hold that the Seventh Amendment requires a trial by jury on the

issue of punitive damages under the DPPA.10

IV.

Plaintiffs next contend that the District Court erroneously

dismissed the claims of Carri Daubert and Deborah Sabastro for

lack of standing. UNITE searched the motor vehicle records of

their husbands—Russell Daubert and Jose Sabastro—revealing the

couples’ shared addresses. According to the court, as neither Carri

Daubert nor Deborah Sabastro were the registered owners of the

vehicles about which UNITE obtained information, they suffered

no invasion of an interest that the DPPA protects, and they lack

standing to sue. We agree.

Article III of the Constitution limits the “judicial Power” of

the United States to the adjudication of “Cases” or “Controversies.”

U.S. Const. art. III, § 2. Courts enforce the case-or-controversy

requirement through several justiciability doctrines that “‘cluster

about Article III.’” Allen v. Wright, 468 U.S. 737, 750 (1984)

(quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-79 (D.C.

Cir. 1983) (Bork, J., concurring)). They include standing, ripeness,

mootness, the political-question doctrine, and the prohibition on

advisory opinions. See DaimlerChrysler Corp. v. Cuno, 547 U.S.

10

It is true, as UNITE argues, that neither the DPPA nor the

Seventh Amendment limits the trial judge’s traditional authority to

dispose of an issue before sending it to a jury where “the evidence

is uncontradicted and raises only [questions] of law.” See Tull, 481

U.S. at 419. This authority, however, is not so broad as to permit

the judge to find facts or resolve contradictory evidence at

summary judgment. See McCabe v. Ernst & Young, LLP, 494

F.3d 418, 424 (3d Cir. 2007).

14

332, 352 (2006). “[P]erhaps the most important of these doctrines”

is standing. Allen, 468 U.S. at 750.

The “irreducible consitutional minimum” of Article III

standing consists of the following three elements:

First, the plaintiff must have suffered an injury in

fact—an invasion of a legally protected interest

which is (a) concrete and particularized; and (b)

actual or imminent, not conjectural or hypothetical.

Second, there must be a causal connection between

the injury and the conduct complained of—the injury

has to be fairly traceable to the challenged action of

the defendant, and not the result of some third party

not before the court. Third, it must be likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(quotation marks, footnote, and citations omitted). The main issue

regarding the standing of Carri Daubert and Deborah Sabastro is

whether they have suffered “an invasion of a legally protected

interest” under the DPPA. Id. at 560; see Warth v. Seldin, 422 U.S.

490, 500 (1975) (“The actual or threatened injury required by Art.

III may exist solely by virtue of ‘statutes creating legal rights, the

invasion of which creates standing. . . .’”) (quoting Linda R. S. v.

Richard D., 410 U.S. 614, 617 n.7 (1973)).

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. . . .” 18 U.S.C. § 2724(a). The DPPA thus

confers a cause of action to “the individual” whose personal

information from their motor vehicle records is at issue. It is

undisputed that Russell Daubert and Jose Sabastro had a viable

cause of action under the DPPA because they were, respectively,

“the individual” who was the registered owner of a vehicle about

which UNITE obtained information. In contrast, neither Carri

Daubert nor Deborah Sabastro were registered owners of the

15

vehicles and, in fact, their names did not appear anywhere on the

motor vehicle records. Nonetheless, in arguing that they have

standing to sue under the DPPA, they focus on the fact that they

share personal information—such as their addresses—with their

husbands and, therefore, the personal information “pertains” to

them as well. We believe that this argument reads § 2724(a) too

broadly.

The DPPA protects the privacy interests of “the individual

to whom the [personal] information pertains . . . .” Id. Notably,

Congress chose to employ the singular term “the individual” in this

section. To adopt Carri Daubert’s and Deborah Sabastro’s

argument, we would have to rewrite the statute to replace “the

individual” with the words “any individuals.” Taking their

argument to its logical conclusion, the DPPA would grant a cause

of action to anyone (e.g., spouses, children, parents, friends, other

relatives) who, for instance, resides at an address improperly

obtained from motor vehicle records.11 This would be an

unwarranted extension of § 2724(a).

The consent provisions in 18 U.S.C. §§ 2721(b)(11)-(13)

support our singular reading of the phrase “the individual” in the

DPPA. Section (b)(13), for instance, permits personal information

from motor vehicle records to be disclosed upon the written

consent of “the individual to whom the information pertains.” See

also id. §§ (b)(11), (12) (requiring consent of “the person to whom

such personal information pertains”). If we credit plaintiffs’

argument, then presumably they—or anyone—residing at their

home address could consent to the release of motor vehicle records

that are not their own. Put another way, under plaintiffs’ argument,

an extended family member or other person residing at a house

would be considered any “individual to whom” the address and

telephone number “pertains” and that person could consent to

11

Recognizing the implications of their argument, plaintiffs

propose a limiting principle: a proper DPPA plaintiff must be “a

relative by blood or marriage and member of the same householf

as the record owner.” Appellee Reply Br. at 60. We reject this

limitation as it finds no support in the language or history of the

statute.

16

release the “personal information” of anyone else residing in the

house. Such a result would run contrary to the DPPA’s purpose of

preserving the privacy rights of individuals.

Our view of § 2724(a) is also supported by § 2725(3), which

limits the reach of the term “personal information” to “information

that identifies an individual. . . .” 18 U.S.C. § 2725(3) (emphasis

added). We hold that individuals such as Carri Daubert and

Deborah Sabastro, who are not specifically identified in a motor

vehicle record, have no legally protected privacy interest under the

DPPA. See Pichler I, 228 F.R.D. at 241 (stating that UNITE

“could not have violated [their] own DPPA-protected privacy

interests because the motor vehicle abstracts contain no

information about them”). Because Carri Daubert and Deborah

Sabastro have not suffered “an invasion of a legally protected

interest,” they lack standing to sue, and, accordingly, we will affirm

dismissal of their claims under the DPPA .

V.

Plaintiffs’ final contention on appeal is that they are entitled

to cumulative liquidated damages awards.12 Specifically, they

claim that the DPPA entitles them to a separate liquidated damages

award for each time UNITE “obtain[ed]” or “us[ed]” plaintiffs’

personal information,13 and that the court erred by granting

summary judgment to UNITE on this issue despite issues of fact as

to the propriety of multiple awards. Appellant Br. at 55-56.

While both parties seem to view the statutory interpretation

issue as a binary one (either allowing multiple liquidated damage

awards for every obtaining or use, or not), we see the statutory

12

As plaintiffs have not argued that the District Court erred

by denying them a jury trial on the issue of cumulative liquidated

damages awards, we need not discuss whether plaintiffs have a

right to a jury trial on this issue.

13

“Of the nine named plaintiffs, three claim they suffered

two violations each and seek $5,000 per person, and six claim they

suffered three violations each and seek $7,500 per person.” Pichler

III, 457 F. Supp. 2d at 529.

17

language as presenting a more nuanced damages scheme. There

are two distinct questions: first, whether the DPPA permits a

plaintiff to recover two separate liquidated damage awards because

a defendant obtains and then uses plaintiff’s confidential

information; and second, whether the DPPA permits a plaintiff to

recover multiple liquidated damage awards where a defendant has

used plaintiff’s confidential information on more than one

occasion.

A.

As to this first question, plaintiffs point out that the DPPA

is written in the disjunctive (“a person who knowingly obtains,

discloses or uses”), and so each act of obtaining, disclosing, or

using of confidential information constitutes a separate violation of

the statute. Plaintiffs contend that since the mere obtaining of

personal information is a violation of the DPPA entitling a plaintiff

to damages and other relief “it follows that a further use of that

information is a separate invasion of privacy and a separate

violation . . . that independently entitles the victim to the relief

prescribed by section 2724(b).” Appellant Br. at 56 (emphasis in

original).14

Merely because both obtaining and using motor vehicle

information for an impermissible purpose violate the DPPA (a

premise with which we agree), it does not follow that each

independent violation entitles plaintiffs to a separate liquidated

damages award. The key phrase for purposes of our analysis is the

DPPA’s provision of $2,500 in “liquidated damages.” 18 U.S.C.

§ 2724(b)(1). The damages contemplated by the statute are not

mere generic damages, see, e.g., 5 U.S.C. § 552a(g)(4)(A) (“in no

case shall a person entitled to recovery receive less than the sum of

$1,000”), or even “statutory damages” as such, see, e.g., 15 U.S.C.

§ 1117(d) (providing that instead of actual damages, a plaintiff may

14

Plaintiffs do not argue, however, that mailings in

connection with the Veliz v. Cintas litigation count as separate

uses. Pichler III, 457 F. Supp. 2d at 529. Veliz was one of six

federal cases UNITE brought or assisted in bringing against Cintas

from 2002 through October 13, 2004. App. 232-34.

18

recover “an award of statutory damages in the amount of not less

than $1,000 and not more than $100,000 . . . .”), but rather

liquidated damages. The District Court noted correctly that

“Congress’s decision to use the technical term ‘liquidated

damages’ in the DPPA suggests that it intended to incorporate the

locution’s well-understood meaning.” Pichler I, 228 F.R.D. at 244.

This “well understood meaning” undermines plaintiffs’ position.

Under the common law of contracts, liquidated damages

reflect an ex ante agreement of the parties. See E. Allan

Farnsworth, Contracts § 12.18 (4th ed. 2004) (quoting Banta v.

Stamford Motor Co., 92 A. 665, 667 (Conn. 1914) (“The standard

of measure here is not furnished by the plaintiff’s actual loss or

injury, as the event proved, but by the loss or injury which might

reasonably have been anticipated at the time the contract was made.

. . . It is the look forward and not backward that we are called upon

to take . . . .”)); see also In re Plywood Co., 425 F.2d 151, 154 (3d

Cir. 1970) (describing liquidated damages under New Jersey law

as “the sum a party to a contract agrees to pay if he breaks some

promise, and which, having been arrived at by a good faith effort

to estimate in advance the actual damage that will probably ensue

from the breach, is legally recoverable as agreed damages if the

breach occurs”) (quotation marks and citation omitted).15 To

incorporate the meaning of the term, we construe the DPPA with

an eye toward the “loss or injury which might reasonably have been

anticipated.” Banta, 92 A. at 667.

Congress clearly contemplated that in most cases, a

defendant who obtained motor vehicle information would put it to

some use. See Pichler III, 457 F. Supp. 2d at 530 (“Congress

surely understood that the usual case would involve at least one

instance of ‘obtain[ing]’ and one ‘use[ ],’ and it decided that a

plaintiff who did not or could not show actual damages could

nevertheless receive $2,500.”). Therefore, given Congress’s use of

the term “liquidated damages” and the $2,500 amount provided, we

15

In this case, of course, we have an artifically-constructed

“contractual” arrangement: rather than the parties themselves

agreeing on liquidated damages, Congress has forecast how these

damages would likely be fixed.

19

conclude that this amount encompasses both aspects of a

defendant’s “breach” of the DPPA—one instance of obtaining and

one of use—and that the defendant is limited to one liquidated

damage award in this situation. A contrary holding would

effectively result in a minimum award of $5,000 for every violation

of the DPPA—a result we do not believe Congress intended.

In response, plaintiffs contend that this result would

incentivize a defendant who has already obtained information to

then use it. This argument is unpersuasive. To begin with, the

DPPA provides for criminal liability, which should deter someone

who has obtained confidential information from calling attention

to his or her criminal conduct by using it. See Gen. Instrument

Corp. of Delaware v. Nu-Tek Elecs. & Mfg., Inc., 197 F.3d 83, 95

(3d Cir. 1999). Moreover, plaintiffs are free to elect actual, rather

than liquidated damages, and will certainly do so in appropriate

cases. See id.16 Further still, the DPPA permits the award of

punitive damages if the standard set forth in § 2724(b)(2) is met.

B.

While we understand Congress to have forecast “liquidated

damages” as $2,500 for the most likely violation of the DPPA

(obtaining and using confidential information), there is no reason

to think that such an amount covers all subsequent violations as

well. The plain language of the statute contains no such restriction.

See 18 U.S.C. § 2724(a). Accordingly, defendants can face

additional damages if, after obtaining a plaintiff’s personal

information in violation of the DPPA, they repeatedly use or

disclose that personal information.

The language of the DPPA indicates a certain degree of

discretion granted to the court in awarding damages. See 18 U.S.C.

§ 2724(b) (“The court may award”) (emphasis added); see also

Kehoe v. Fid. Fed. Bank & Trust, 421 F.3d 1209, 1216-17 (11th

Cir. 2005) (“The use of the word ‘may’ suggests that the award of

16

In a case involving stalking, for example, the obtaining of

information might cause very little actual damage, while the use of

such information is where the actual damages would lie.

20

any damages is permissive and discretionary. ‘This common-sense

principle of statutory construction is by no means invariable . . .

[but s]ince there is neither legislative history nor obvious

inferences from the structure that suggests a contrary intent, we

conclude that the use of the word ‘may’ implies a degree of

discretion. Thus, the district court, in its discretion, may fashion

what it deems to be an appropriate award.”) (citations omitted).

Given the discretionary language in the statute and that the statute

contains no limitation on the ability of the district court to grant

cumulative awards, we construe the DPPA to permit a district court

to grant such awards upon multiple uses or disclosures of

confidential information.

In this case, there appears to be evidence of multiple uses of

personal information in the summary judgment record, but the

District Court had a view that differed from ours regarding multiple

uses or disclosures. The court did acknowledge that multiple

awards of damages might be appropriate in cases where, for

instance, a DPPA violator “bombarded” a plaintiff with visits and

mailings. Pichler III, 457 F. Supp. 2d at 530 n.6. However, the

court determined that the record did not suggest such a “gross

disregard” of a plaintiffs’ privacy rights. As a result, the court,

relying upon its “Congressionally-authorized discretion,” awarded

$2,500 to each plaintiff. Id. at 530-31.

While the District Court, when all is said and done, has

discretion under the DPPA to fashion an award it deems

appropriate, it must address the outstanding issue of liability

regarding multiple uses of personal information. The District

Court must determine whether there is sufficient evidence of

multiple uses to proceed beyond summary judgment. Given our

construction of the DPPA and the fact that the District Court did

not appear to have applied the standards for summary judgment, we

will vacate its grant of summary judgment as to this issue and

remand for the District Court to address explicitly whether

summary judgment was appropriate on this issue.

VI.

UNITE’s first contention as cross-appellant addresses the

21

District Court’s finding of liability. UNITE claims that the court

found it to have obtained plaintiffs’ personal information “for a

purpose not permitted” under the DPPA only by erroneously

construing the DPPA’s “permissible uses” of personal information.

The DPPA is structured such that § 2721(a) provides the

general prohibition on the release and use of motor vehicle

information, and § 2721(b) enumerates fourteen specific exceptions

to the general prohibition. UNITE claims there are two exceptions

which make its tagging activities permissible: the “litigation

exception” and the “acting on behalf of the government” exception.

See 18 U.S.C. §§ 2721(b)(1), (4).17 The District Court carefully

17

The statutory text provides:

(b) Permissible uses. -- Personal information

referred to in subsection (a) shall be disclosed

for use in connection with matters of motor

vehicle or driver safety and theft, motor

vehicle emissions, . . . and, subject to

subsection (a)(2), may be disclosed as

follows:

(1) For use by any government agency,

including any court or law enforcement

agency, in carrying out its functions, or any

private person or entity acting on behalf of a

Federal, State, or local agency in carrying out

its functions.

...

(4) For use in connection with any civil,

criminal, administrative, or arbitral

proceeding in any Federal, State, or local

court or agency or before any self-regulatory

body, including the service of process,

investigation in anticipation of litigation, and

the execution or enforcement of judgments

and orders, or pursuant to an order of a

Federal, State, or local court.

22

analyzed the applicability of both exceptions and concluded that

UNITE’s activities did not fall within either. Pichler II, 446 F.

Supp. 2d at 368-71.

We need not address the District Court’s interpretation of

the litigation and the acting on behalf of the government exceptions

as we agree with the District Court that the language of the statute

is clear: “The Act contains no language that would excuse an

impermissible use merely because it was executed in conjunction

with a permissible purpose.” Id. at 367 (“[I]f UNITE had three

purposes for ‘obtain[ing], disclos[ing] or us[ing] [plaintiffs’]

personal information’ and two of those were ‘permissible uses’ but

the third was not, UNITE would still be liable for the third

purpose.”). Because UNITE obtained and used the confidential

information for an impermissible purpose—union organizing—it

does not matter what other permissible purpose UNITE may have

had.

UNITE advances a unique argument. It claims that its

labor-organizing purpose may not be severed from either its

litigation purpose or its acting on behalf of the government

purpose. For instance, UNITE contends that its

emphasis on litigation had a twofold purpose:

raising the standards in the industry for the benefit of

UNITE’s members, whether or not employed by

Cintas, and demonstrating to Cintas’ employees the

effectiveness and usefulness of organization. Thus,

UNITE’s activity in investigating potential litigation

was part and parcel of its unionizing campaign, not

separate and distinct from it.

Appellee Br. at 32.18

18 U.S.C. §§ 2721(b)(1), (4).

18

Our dissenting colleague relies upon a quotation from

Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King &

Stevens, P.A., 525 F.3d 1107 (11th Cir. 2008), that regards the

litigation exception. See Dissent at 3-4 (quoting Thomas, 525 F.3d

23

The litigation component to UNITE’s campaign should not

obscure what UNITE was trying to accomplish—organizing labor.

The same may be said for its acting on behalf of the goverment

purpose. UNITE candidly admits that it launched the “campaign

to organize and unionize Cintas workers.” App. 226. Moreover,

the organizers themselves, in conducting their home visits,

unambiguously explained that they were “organizing a union

campaign against Cintas.” App. 238. Regardless of UNITE’s

attempts to mask this clear labor-organizing purpose behind the

veil of a litigation purpose or an acting on behalf of the government

purpose, Congress has not permitted UNITE to do so.

The statute clearly prevents obtaining or using personal

information “for a purpose not permitted under this chapter. . . .”

18 U.S.C. § 2724(a). It does not ask whether “litigation has

become an increasingly important organizing tool” because “unions

have found increasing resistance and difficulty using traditional

organizing tactics.” Appellee Br. at 31-32. The DPPA lists

fourteen permissible purposes in § 2721(b) and union organizing

is not one of them. Pichler II, 446 F. Supp. 2d at 367 (“As we have

already held, we will not engraft upon the DPPA a ‘labor

exception’ that would permit unions to acquire and use employees’

personal information, obtained from motor vehicle records, to

contact them during organizing campaigns.”). 19 Like the District

at 1115 n.5). We note that the Thomas court explicitly rejected as

waived the argument to which that quote pertained and, thus, the

quote constitutes dicta.

19

At oral argument, UNITE raised an alternative argument

suggesting that the Court engage in a “primary” versus “secondary”

purpose analysis under the DPPA in an attempt to escape liability.

UNITE failed to raise this argument at all before the District Court

or in any of the briefs before this Court, and only raised the

argument for the first time during oral argument. Despite the

dissent's comments to the contrary, we will consider this argument

waived and will not address it. See Skretvedt v. E.I. DuPont De

Nemours, 372 F.3d 193, 202-03 (3d Cir. 2004) (“We have held on

numerous occasions that ‘[a]n issue is waived unless a party raises

it in its opening brief, and for those purposes a passing reference to

an issue will not suffice to bring that issue before this court.’”)

24

Court, we decline to recognize an exception to the statute for which

Congress has not provided.20

Accordingly, we will affirm the judgment of the District

Court finding that UNITE obtained and used personal information

for a purpose not permitted by the DPPA.

VII.

UNITE’s second argument—that civil liability requires a

defendant knowingly obtain or disclose personal information for a

use the defendant knows is impermissible—is patently without

merit. Citing the similar language of §§ 2722 and 2724 of the

DPPA, UNITE contends that the District Court erred in holding

that the standard of civil liability—unlike the standard for criminal

liability—“does not require proof that a defendant had any

appreciation that its conduct was impermissible.” Appellee Br. at

37-38.

This double-knowledge requirement simply does not fit into

the DPPA’s statutory scheme.21 The provisions of §§ 2722(a) and

(quoting Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d

375, 398 (3d Cir. 1994)).

20

To hold otherwise would be to permit any union, or

indeed any law firm, to access the DMV information of individuals

at nearly any large company. Such companies are often involved

in, or at least susceptible to, litigation of some sort. If this legal

exposure was the only criterion necessary to render an entity’s

activities investigations in anticipation of litigation, the DPPA’s

privacy protections would mean very little.

21

In addition to our anaylsis set forth in the text, we concur

with the District Court’s analysis concerning the location of the

adverb “knowingly” within § 2724(a). Restating its explanation,

§ 2724(a)’s first two clauses describe the act that subjects a

defendant to civil liability (obtaining, disclosing, or using personal

information from a motor vehicle record), while the third clause

limits liability to acts done for “a purpose not permitted under this

chapter.” Pichler I, 228 F.R.D. at 241-42. “If Congress had

25

2724(a) that UNITE claims to be identical can be read consistently.

Section 2722(a) by itself does not create civil or criminal liability.

It merely describes what conduct is wrongful under the DPPA.

Section 2724(a), in turn, provides the standard for civil liability.

Section 2723 provides the standard for criminal fines.

Congress’ structuring of the DPPA—specifically, the

interplay amongst its recitation of unlawful acts, civil penalties, and

criminal penalties—is not unique. For instance, 18 U.S.C. §

842(a), like 18 U.S.C. § 2722, provides that “[i]t shall be unlawful

for any person” to commit certain acts or omissions violative of the

Controlled Substances Act. Section 842(c)(2), like 18 U.S.C. §

2723(a), creates criminal liability for violating those acts or

omissions “knowingly.” Section 842(c)(1), like 18 U.S.C. §

2724(a), creates civil liability for violating those acts or omissions,

but does not premise civil liability on knowing violations. In fact,

as we recognized in United States v. Green Drugs, 905 F.2d 694

(3d Cir. 1990), the strict liability standard is applicable for civil

violations of section 842(a).22 Analyzing the statute, we noted this

disparity in standards, observing that violation of 21 U.S.C. §

842(a) “subjects an offender to civil or penal penalties, depending

on whether the act was committed knowingly.” Id. at 695-96. We

observed further that “Congress, therefore, plainly differentiated

between civil and criminal violations of [§ 842(a)], implementing

different standards of fault.” Id. at 697. Similarly, here, we hold

that Congress differentiated between a knowing acquisition,

disclosure, or use to establish civil liability, and any knowing

violation to establish liability for a criminal fine.

M oreover, UNITE’s reading of the DPPA is

incomprehensible given the statute’s punitive damages provision.

Section 2724, as stated earlier, provides a civil cause of action

intended for ‘knowingly’ to refer not only to the act element but

also to the purpose element—so as to proscribe only those acts

done for a purpose not ‘knowingly’ permitted—it would have been

odd to locate the word ‘knowingly’” so removed from the purpose

element. Id. at 242.

22

In 1998, 21 U.S.C. §§ 842(5) and (10) were amended to

add the word “negligently.”

26

against “a person who knowingly obtains, discloses or uses

personal information . . . for a purpose not permitted” under the

statute. 18 U.S.C. § 2724(a). The DPPA continues that while the

“court may award” actual damages, it may award punitive damages

only “upon proof of willful or reckless disregard of the law.” 18

U.S.C. § 2724(b)(2). According to UNITE, however, there is no

violation of the statute absent evidence “that a defendant

appreciated the illegality of his conduct,” Appellee Br. at 37-38,

thus making every single violation one for which punitive damages

would apply. UNITE tries to save this argument by noting that

“liability for compensatory damages would be proper on proof that

a party appreciated it was engaging in wrongful conduct, but

punitive damages would be reserved for those instances where a

party knew it was violating the law or recklessly disregarded its

obligations under the law.” Appellee Reply Br. at 21. We cannot

conceive of what willful or reckless disregard for the DPPA could

be other than where a “party appreciated it was engaging in

wrongful conduct” under the DPPA.

Accordingly, we will affirm the judgment of the District

Court on this issue.

VIII.

UNITE’s final argument as cross-appellant addresses

plaintiffs’ burden to recover liquidated damages under the DPPA.

According to UNITE, the District Court erroneously construed §

2724(b), permitting plaintiffs to recover liquidated damages

without showing some measure of actual damages. We disagree.

UNITE begins its argument by noting—correctly—that we

must focus upon the plain language of the statute and if the statute

is unambiguous, our inquiry begins and ends with the statutory text.

Appellee Br. at 48 (citing BedRoc Ltd., LLC. v.United States, 541

U.S. 176, 183 (2004)). We agree with UNITE that the language of

§ 2724(b) is unambiguous, but we disagree about its meaning.

As we understand the plain meaning of the provision, the

two phrases therein grant, and then limit, the authority of the court

in awarding damages. Simply put, the first phrase (“The court may

27

award -- actual damages”) is a grant of authority to the court—it

enables the court to award actual damages, however high they

might be. The second phrase (“but not less than liquidated

damages . . .”), then, limits that authority on the low end of the

scale, creating a damage award floor. While the court may award

actual damages, it may not grant an award “less than liquidated

damages in the amount of $2,500.” 18 U.S.C. § 2724(b)(1). But

the first clause does not affect the baseline award of liquidated

damages in the amount of $2,500 for any DPPA violation that the

District Court chooses to compensate. In other words, the second

phrase creates a base amount below which the court may not go,

whether the plaintiff is able to prove actual damages or not.

Indeed, the Court of Appeals for the Eleventh Circuit,

considering the identical issue now before us, arrived at the same

conclusion as we reach here. See Kehoe v. Fidelity Fed. Bank &

Trust, 421 F.3d 1209 (11th Cir. 2005). The court in Kehoe began

its analysis by reviewing the text of § 2724 and determined that

“[t]here is no language in sub-section (b)(1) that confines

liquidated damages to people who suffered actual damages.” Id. at

1213. Instead, the court held that the second phrase of §

2724(b)(1) is not dependent upon proof of actual damages, but

rather that the two clauses are to be read in the disjunctive: a

plaintiff “may receive the greater of his actual damages or

$2,500.00.” Id. The court concluded that “[h]aving considered the

plain text of the DPPA’s remedial provision . . . a plaintiff need not

prove actual damages to recover liquidated damages.” Id. at 1216.

The Supreme Court’s opinion in Doe v. Chao, 540 U.S. 614

(2004), and the common law of privacy support this understanding

of the plain language as well. In Doe, the Supreme Court

considered the issue of whether the Privacy Act requires that

plaintiffs prove actual damages to qualify to receive statutory

damages. The Court ruled in the affirmative, but the difference

between the Privacy Act and the DPPA, as well as the Court’s

broader analysis, actually support our holding to the contrary here.

Unlike the DPPA, the Privacy Act contains language

providing that the defendant is liable for “actual damages sustained

by the individual as a result of [certain agency conduct] . . . , but in

28

no case shall a person entitled to recovery receive less than the sum

of $1,000.” 5 U.S.C. § 552a(g)(4)(A) (emphasis added).

Accordingly, “the simplest reading of that phrase looks back to the

immediately preceding provision for recovering actual damages.”

Doe, 540 U.S. at 620. Only a “person entitled to recovery” of

actual damages can qualify for a statutory damage award. The

DPPA, however, contains no such “critical limiting” language, id.

at 626, suggesting that a person need not prove actual damages to

receive liquidated damages.

Further support for our construction of § 2724(b)(1) comes

from the common law of privacy. As the Court in Doe pointed out,

unlike common law negligence actions, the common law provided

privacy tort victims with a monetary award calculated without

proving actual damages. See Doe, 540 U.S. at 621 n.3 (quoting 4

Restatement of Torts § 867 cmt. d (1939)) (noting that damages are

available for privacy tort victims “in the same way in which general

damages are given for defamation,” without proof of “pecuniary

loss [or] physical harm”); Parks v. Internal Revenue Serv., 618

F.2d 677, 683 (10th Cir. 1980) (observing that the “common law

tort of invasion” seeks to remedy “personal wrongs which result in

injury to plaintiffs’ feelings and are actionable even though the

plaintiff suffered no pecuniary loss nor physical harm”); Nolley v.

County of Erie, 802 F. Supp. 898, 904 (W.D.N.Y. 1992); Bolduc

v. Bailey, 586 F. Supp. 896, 902 (D. Colo. 1984). Courts permit

recovery in privacy cases without proving actual damages because

it is difficult to prove damages in such cases. See Nolley, 802 F.

Supp. at 904 (stating that although violation of the right to privacy

“is virtually certain to cause some injury . . . the type of injury [] is

very difficult to prove”); Fairfield v. Am. Photocopy Equip. Co.,

291 P.2d 194, 198 (Cal. Ct. App. 1955) (“The fact that damages

resulting from an invasion of the right to privacy cannot be

measured by a pecuniary standard is not a bar to recovery.”).23 As

23

While the majority in Doe deviated from the common law

understanding just explained, it did so based on various facts and

circumstances not present in this case. Besides the “critical

limiting” language of the Privacy Act, the “drafting history show[s]

that Congress cut out the very language in the bill that would have

authorized any presumed damages.” Doe, 540 U.S. at 622. In

29

the court in Kehoe correctly concluded:

Damages for a violation of an individual’s privacy

are a quintessential example of damages that are

uncertain and possibly unmeasurable. Since

liquidated damages are an appropriate substitute for

the potentially uncertain and unmeasurable actual

damages of a privacy violation, it follows that proof

of actual damages is not necessary for an award of

liquidated damages.

421 F.3d at 1213.

Finally, as discussed above in a different context, see section

V, supra, the inclusion of the phrase “liquidated damages” supports

the conclusion that the plain language of the DPPA aims to

compensate not just those violations that can be shown to have

caused actual damages. Liquidated damages have long been used

as a substitute for actual damages in situations where “damages are

uncertain in nature or amount or are unmeasurable.” Rex Trailer

Co. v. United States, 350 U.S. 148, 153 (1956). Further, we have

just observed that the damages flowing from privacy violations

have historically been considered “quintessential example[s] of

damages that are uncertain and possibly unmeasurable.” Kehoe,

421 F.3d at 1213. We believe it would make little sense, as a

matter of statutory construction, for Congress to have inserted the

phrase “liquidated damages” into § 2724(b)(1) if the only

compensable violations of the DPPA were those for which the

damages could be calculated precisely. Indeed, such an

interpretation would violate our duty to give effect to each word of

the statute. See Pa. v. United States Dep't of Heath & Human

Servs., 928 F.2d 1378, 1385 (3d Cir. 1991).

addition, as the Privacy Act involved a waiver of sovereign

immunity, its construction followed the principle that “limitations

and conditions upon which the Government consents to be sued

must be strictly observed and exceptions thereto are not to be

implied.” Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (citation

omitted); see United States v. Williams, 514 U.S. 527, 531 (1995).

30

The 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. Accordingly, we will affirm the District Court’s

judgment on this issue.

IX.

For the foregoing reasons, we will affirm in part, vacate in

part, and remand for further proceedings consistent with this

opinion.

31

SLOVITER, Circuit Judge, dissenting.

Congress took an important step in protecting the

privacy of drivers when it enacted the Driver’s Privacy Protection

Act (“DPPA” or “Act”) in 1994. That Act prohibits the disclosure

and resale of the personal information, defined as, inter alia, the

name, address, telephone number and social security number, that

a prospective licensee must disclose to the state motor vehicle

department in order to secure a driver’s license unless the

disclosure and/or use falls within one of the fourteen enumerated

statutory exceptions. See 18 U.S.C. §§ 2721-2725.

The impetus for the Act is clear from the legislative

history. A television actress in California who had an unlisted

home number and address “was shot to death by an obsessed fan

who obtained her name and address through the DMV.” See 140

Cong. Rec. 7,924-25 (1994). In Tempe, Arizona, “a woman was

murdered by a man who had obtained her home address from that

State’s DMV.” 139 Cong. Rec. 29,466 (1993). The Senate debate

focused on the need to protect the privacy of persons from stalkers

and potential criminals. See id. at 29,469. At that time, personal

information was easily available from 34 states’ DMVs. Id. at

29,466.

Interestingly, although the debates in the House of

Representatives and Senate were devoted to privacy issues, the

commentary following the passage of the DPPA focused on the

10th and 11th Amendments and what many commentators viewed

as the Act’s clash with principles of federalism. The expressed

concern was that the federal government was mandating certain

actions by the states. See Condon v. Reno, 155 F.3d 453, 456 (4th

Cir. 1998) (holding that “Congress lacked the authority to enact

the DPPA under either the Commerce Clause or Section 5 of the

Fourteenth Amendment”), rev’d 528 U.S. 141 (2000). The

Supreme Court’s unanimous decision in Reno v. Condon, 528 U.S.

141 (2000), which held that in enacting the DPPA Congress did

not run afoul of federalism principles and sustained the DPPA

under Congress’ authority to regulate interstate commerce put an

end to that debate. Because the Court limited its discussion to the

federalism issue, it did not discuss either the scope of the privacy

32

interest to which the DPPA is directed or any of the details of the

Act to which the majority directs its opinion.

The holding of the majority with which I disagree is

confined to its agreement with the District Court that even if

UNITE obtained and used driver information for one of the

purposes expressly permitted by the DPPA, it violated the statute

if it also had a purpose not expressly permitted. As the majority

recognizes, UNITE argued that “a major component of the

campaign to organize and unionize Cintas workers was finding

potential legal claims against Cintas.” Maj. Typescript Op. at 3.

The statute expressly exempts from its prohibitions “use in

connection with any civil criminal, administrative, or arbitral

proceeding in our Federal, State, or local court or agency or before

any self-regulatory body, including the service of process,

investigation in anticipation of litigation, and the execution or

enforcement of judgments and orders, or pursuant to an order of a

Federal, State or local court.” 18 U.S.C. § 2721(b)(4) (emphasis

added). The majority does not suggest that it doubts that UNITE

did in fact have this objective. In its brief, UNITE lists various

legal actions that it and/or Cintas employees filed against Cintas,

including a class action alleging FLSA violations concerning

drivers’ overtime pay, an action in California for violations of

living wage ordinances, a complaint with the EEOC alleging

Cintas discriminated on the basis of race, color, sex, and national

origin and subsequently a class action in federal court in which the

EEOC intervened as a plaintiff. Appellee’s Br. at 13-14. It also

states that “[d]ozens of additional lawsuits and administrative

actions were commenced before the EEOC, OSHA, NLRB, and

other agencies.” Id. at 14.

The District Court held, and the majority agrees, that

because UNITE conceded that it also accessed the motor vehicle

records for the purpose of organizing workers, and union

organizing is not listed a permissible purpose, the use of names

and addresses of Cintas employees for that purpose violated the

DPPA as a matter of law. Pichler v. UNITE, 446 F.Supp.2d 353,

368 (E.D. Pa. 2006). I disagree.

In the first place, there is ample basis in the record to

33

substantiate UNITE’s assertion that it had the purpose of

investigating legal claims against Cintas. Indeed, the District

Court’s opinion notes that UNITE prepared a 132-page “Legal

Training Laundry Campaign” document that its attorneys and

outside counsel used to train the twelve UNITE members who

were the lead organizers for the regions where UNITE would kick

off its campaign. Pichler, 446 F.Supp.2d at 357. The training

covered such topics as the Fair Labor Standards Act, the Family

Medical Leave Act, various types of discrimination, unfair labor

practices, and workers’ compensation. Id.

That such training would be useful can be gleaned

from the statement in the District Court opinion that many

employees working at the 350 Cintas locations are either female,

black, or Hispanic. Id. at 355. Although neither the District Court

nor the majority has so stated, I assume that not many of the

28,000 Cintas employees are well informed about their rights and

UNITE may very well have a basis for instituting legal or

administrative actions on behalf of the Cintas employees at issue

in this case as it has done in other locations.

The District Court’s view of the “investigation in

anticipation of litigation” clause in § 2721(b)(4) was a narrow one.

It asserted that “the Unions must prove that (1) they undertook an

actual investigation; (2) at the time of the investigation, litigation

appeared likely; and (3) the protected information obtained during

the investigation would be of ‘use’ in the litigation,” which

“implies a reasonable likelihood that the decision maker would

find the information useful in the course of the proceeding.”

Pichler v. UNITE, 339 F.Supp.2d 665, 668 (E.D. Pa. 2004). The

Court concluded that UNITE was “finding” claims, rather than

investigating them, and that litigation was not “likely” where only

thirty-one of 1758 to 2005 putative class members’ information

had led or was leading to litigation. Pichler, 446 F.Supp.2d at 369.

A recent decision of the Court of Appeals for the

Eleventh Circuit offers a starkly different interpretation of §

2721(b)(4). Honing in on the clause allowing “investigation in

anticipation of litigation,” that court stated that “even if the

accumulation of potential witnesses related, in part, to certain cases

34

not yet filed, we do not see how pre-suit investigation can be

considered per se inapplicable to the litigation clause.” Thomas v.

George, Hartz, Lundeen, Fulmer, Johnstone, King, and Stevens,

P.A., 525 F.3d 1107, 1115 n.5 (11th Cir. 2008). The court

concluded that a law firm’s retrieval of 284,000 motor vehicle

records, id. at 1109, “used to send one-thousand ‘Custom and

Practice’ letters, which aimed at obtaining evidence showing a

custom or practice of deceptive acts engaged in by [car]

dealerships,” id. at 1114, was a permissible use of the information

in those records. Id. at 1115.

I would adopt the Eleventh Circuit’s interpretation

of § 2721(b)(4). The provision is written broadly. It allows the

use of personal information from motor vehicle records “in

connection with” a wide range of litigation activities, including

“the service of process, investigation in anticipation of litigation,

and the execution or enforcement of judgments and orders . . . .”

18 U.S.C. § 2721(b)(4). UNITE produced evidence that because

it was aware of litigation against Cintas, it sought and obtained

evidence of related legal violations during its home visits, and that

it used that information to bring a considerable number of

allegations before state, federal, and administrative adjudicatory

bodies. See supra at pp. 4-5. In light of this evidence, there can be

little doubt that at least one of UNITE’s purposes for using the

restricted information was in connection with investigation in

anticipation of litigation.

Furthermore, it is important to note that there is

nothing illegal about efforts to organize a union. It is one of the

activities protected by our labor laws. See National Labor

Relations Act § 7, 29 U.S.C. § 157 (“Employees shall have the

right to . . . form, join, or assist labor organizations . . . .”). There

is no indication that the need to obtain names and addresses of

employees for the purpose of unionization was ever brought to

Congress’ attention when it drafted the DPPA. We cannot

speculate whether it would have added this as one of the

enumerated permissible uses had the labor unions expressed their

views. We do know, from the vignette included in the majority

opinion, that the UNITE organizers did not engage in harassing the

employees whose addresses they had obtained. The majority states

35

that when two women rang the doorbell of Kevin Quinn and told

him they were organizing, he told them he was not interested and

they departed. Although they did nothing more offensive than ring

his doorbell, he became a named plaintiff and, under the opinion

of the District Court affirmed by the majority, will be entitled to

$2,500. UNITE also calls to our attention record evidence that all

union representatives who made home visits in connection with the

campaign acted politely and left without conversation when asked

to do so. Appellee’s Br. at 15-16.

The majority cites no legislative history to support its

conclusion that the presence of one unlisted purpose for obtaining

the motor vehicle information overrides or cancels a listed

purpose. When such cases are presented, I would adopt the

approach courts have historically used in situations where there are

multiple purposes and have the fact-finder determine which is the

primary purpose and whether that purpose was permitted under §

2721(b). Cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003)

(noting that Title VII requires plaintiff to prove that “race, color,

religion, sex, or national origin was a motivating factor” for the

challenged employment practice); Comm’r of Internal Revenue v.

Groetzinger, 480 U.S. 23, 35 (1987) (whether income arises from

a business or trade under the Internal Revenue Code requires

determination that “the taxpayer’s primary purpose for engaging

in the activity must be for income or profit”).

I recognize the significance of the majority’s

footnote stating that UNITE waived any argument that we should

analyze whether its purpose was primary or secondary because it

failed to raise the argument in the District Court or in any of the

briefs

filed in this court. I do not minimize the force of that

argument, but note that because our interpretation of this statute

will set the boundaries of civil liability under the DPPA in this

circuit, I would apply our precedent and exercise our discretion to

consider the argument notwithstanding the waiver. See

Loretangeli v. Critelli, 853 F.2d 186, 189 n.5 (3d Cir. 1988) (“This

court may consider a pure question of law even if not raised below

where refusal to reach the issue would result in a miscarriage of

justice or where the issue’s resolution is of public importance.”).

36

In summary, I would reverse the District Court’s

grant of summary judgment for plaintiffs on liability and would

remand so that a jury could decide whether UNITE’s primary

purpose in obtaining and using the information gleaned from

motor vehicle records was to receive information from Cintas

employees about potential legal violations, an expressly protected

activity.

37