Pichler v. UNITE

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 , 120 S.Ct. 666 , 145 L.Ed.2d 587 (2000). The Supreme Court’s unanimous decision in Reno v. Condon, 528 U.S. 141 , 120 S.Ct. 666 , 145 L.Ed.2d 587 (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 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. Op. at 383. The statute expressly exempts from its prohibitions “use in connection with any civil *401 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 “[djozens 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 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 al *402 lowing “investigation in anticipation of litigation,” that court stated that “even if the accumulation of potential witnesses related, in part, to certain cases 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. 384-85. 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 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 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (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. Groetzing *403 er, 480 U.S. 23, 35 , 107 S.Ct. 980 , 94 L.Ed.2d 25 (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.”).

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.