Class Cert. Denied in Personal Injury Attorney Mass-Mailings Suit

Middle District of North Carolina Judge Loretta C. Biggs denied certification to a putative class of drivers involved in automobile accidents, who claimed that defendants, a handful of attorneys and law firms, illegally used their personal information for marketing purposes in violation of the federal Driver’s Privacy Protection Act (DPPA). The DPPA, set forth by 18 U.S.C. § 2721 et seq., prohibits the use of personal information from “motor vehicle records” for anything other than fourteen usages enumerated by the law.

In this 2016 action, the six named plaintiffs alleged that after their involvement in roadway incidents they received unsolicited personal injury legal services advertisements. The defendants, they argued, gathered their names and addresses either manually or using third-party aggregation services from DMV-349 accident report forms filled out by attending law enforcement officers and filed with the North Carolina Division of Motor Vehicles.

Thus, the case turned on whether the defendants violated the DPPA by “gathering accident reports and using the information contained therein to market legal services.” Before reaching the merits, the district court denied class certification on July 23, citing “a fundamental proof problem[,] the inability to determine the source of the information contained in any particular DMV-349.”

The plaintiffs first proposed a “sweeping” class, then revised it in their reply brief, due to the defendants’ objections. Ultimately, they sought to certify a class of people whose information was taken from DMV-349 forms filed by Raleigh, Greensboro, or Charlotte police officers or State Highway Patrol troopers in Wake County between 2012 and 2016, with certain other limitations and class subdivisions.

However, under its Rule 23(a) analysis, the court found that there was no way to conclude that every plaintiffs’ personal information originated from a motor vehicle record, as required by the underlying law, the DPPA. For example, the court cited the possibility that a plaintiff themselves may have given an officer at the scene their personal information by reciting it orally, rather than the officer having copied it from their driver’s license (a motor vehicle record). Because the information source did not conclusively and necessarily create liability class-wide, the court found typicality lacking.

The court also considered and rejected several motions to strike plaintiffs’ declarations related to the question of adequacy. The defendants contended that the named plaintiffs were not sufficiently knowledgeable about the case and that several declarations improperly attempted to correct or contradict deposition testimony.

The defendants also argued that plaintiffs’ counsel only brought the case with the intention of “‘[c]rippling Defendants, who are ‘its main business competitors,’” pointing to the facts that plaintiffs’ counsel footed the bill for fees and costs and elected not to sue certain firms engaged in the same conduct at issue. The court found “the somewhat tainted impression” created by these arguments unavailing because the defendants failed to cite persuasive authority backing them up.

Certification under Rule 23(b)(2) and (3) also failed because the threshold typicality requirement did. With regard to 23(b)(3) predominance, the judge wrote that absent a “swift mechanism for determining the source of the identifying information contained in each DMV-349, it is easy to imagine trial of this action becoming unwieldy, and individualized assessments of liability ‘overwhelm[ing] the common ones.’”

The plaintiffs are represented by White & Stradley, and the defendants by Fox Rothschild, Stevens Martin Vaughn & Tadych, and Caudle & Spears.