Sixth Circuit dismisses class action over personal information release

Jessica M. Karmasek May 2, 2012, 9:40am


CINCINNATI (Legal Newsline) - A federal appeals court this week upheld the dismissal of a proposed class action lawsuit over the distribution of personal information from a state's motor vehicle records.

Plaintiffs Norma Wiles, Thomas Wiles, Theresa Gibson and Wanta Evitt, all Kentucky residents, filed the proposed class action against defendants Ascom Transport System Inc., Downtown Owensboro Inc., Jones and Wenner Insurance, Nationwide Debt Recovery Service Inc., Tennessee Valley Authority and Xerox Corporation in January 2010.

However, Ascom is the only defendant named in the appeal to the U.S. Court of Appeals for the Sixth Circuit.

It was Ascom's motion to dismiss that the U.S. District Court for the Western District of Kentucky decided and, as a result, dismissed the lawsuit in its entirety.

The Kentucky plaintiffs claimed that Ascom violated the federal Driver's Privacy Protection Act, or DPPA, and their common law right to privacy when the company obtained in bulk and then used, resold and disclosed their personal information contained in the state's motor vehicle records without a "permissible purpose" under the act.

The district court ruled in December 2010 that the bulk purchase of such motor vehicle records without a "specific need for every record" does not violate the DPPA, and ultimately granted Ascom's motion to dismiss the plaintiffs' third amended complaint.

At that time, the district court also instructed the parties that it would consider dismissing specific elements of the third amended complaint.

In February 2011, the court then granted Ascom's motion to dismiss and entered judgment in favor of the company and the other named defendants.

The Kentucky plaintiffs appealed.

In a 19-page decision filed Monday, the Sixth Circuit affirmed the lower court's ruling.

Lawrence P. Zatkoff, U.S. district judge for the Eastern District of Michigan, who sat by designation, authored the Sixth Circuit's opinion.

The Sixth Circuit explained that the bulk obtainment of personal information for a permissible purpose does not violate the DPPA.

Also, as Ascom obtained the information under one or more of the permissible purposes set forth in the act, the Kentucky plaintiffs cannot establish a violation of the DPPA if the only alleged wrongdoing the company has committed was obtaining the information in bulk for use or potential use, the court said.

"Plaintiffs have not cited any case law, legislative history or other 'any authority or persuasive argument for concluding that (the DPPA) clearly and unambiguously limits disclosure of personal information to one individual at a time,'" Zatkoff wrote.

"In contrast, as noted in several of the cases discussed above, the legislative history clearly establishes that Congress did not intend to alter the traditional method of bulk disclosures by states, subject to the express limitations set forth in the DPPA."

The plaintiffs, the court noted, also failed to identify any language in the statute that requires "immediate use."

"They cannot do so because there is no such language in the DPPA," Zatkoff wrote.

In addition, the Sixth Circuit held that obtaining personal information solely for the purpose of reselling such information is allowed under the DPPA -- so long as the information will be used only for purposes permitted.

"In this case, Plaintiffs have not alleged that the ultimate 'use' of the information is for an impermissible purpose. Rather, Plaintiffs' allegations pertaining to the resale/disclosure of the
personal information are based on Defendant allegedly obtaining the personal information for the sole purpose of reselling it to third parties, without use of such information by Defendant," Zatkoff wrote.

As for the plaintiffs' claim of common law right to privacy, the Sixth Circuit said it fails as a matter of law.

The plaintiffs had no reasonable expectation of privacy in the personal information. Also, they did not allege that Ascom disclosed, or caused to be disclosed, their personal information to the public at large, the court explained.

In all, the Kentucky plaintiffs failed to establish any violation of a federal right. Therefore, the district court "properly dismissed" their third amended complaint, the Sixth Circuit concluded.

From Legal Newsline: Reach Jessica Karmasek by email at

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