MARACICH v. SPEARS
Michael Eugene Spears and three other lawyers instituted several “group action” lawsuits against several South Carolina car dealerships for allegedly collecting unlawful fees from car buyers. The lawyers obtained the personal information of thousands of car buyers from the South Carolina Department of Motor Vehicles through a Freedom of Information Act request. The lawyers used this data to identify potential plaintiffs for the group action, and sent mailings to each of those plaintiffs notifying them of the litigation.
Edward F. Maracich and two other car buyers who received mailings, individually and on behalf of all similarly situated individuals, sued the lawyers. The buyers alleged that the lawyers violated the Driver’s Privacy Protection Act (DPPA) by obtaining their personal information for purposes of mass solicitation. The lawyers argued that they acted properly under the litigation exception to the DPPA. The DPPA allows disclosure of private information in connection with any state or federal litigation. The district court granted summary judgment in favor of the lawyers, holding that they did not engage in prohibited solicitation. The U.S. Court of Appeals for the Fourth Circuit affirmed, holding that the lawyers did engage in solicitation, but their actions were within the litigation exception to the DPPA.
1. Did the Fourth Circuit err in holding that lawyers who obtain, disclose, or use personal information to find potential plaintiff for a group action are protected by the litigation exception of the DPPA?
2. Did the Fourth Circuit err in reaching the conclusion that a lawyer who files an group action before finding plaintiffs may use DPPA-protected personal information to find plaintiffs for that action through a direct mail advertising campaign?
Legal provision: Driver’s Privacy Protection Act
No, no. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Supreme Court held that the exceptions to the DPPA’s protections do not encompass the use of personal information for solicitation of legal clients. If the exceptions could be interpreted so broadly, the purpose of DPPA—protecting personal information—would be defeated. The Court also held that solicitation was a distinct act separate from litigation and therefore not subject to the litigation exception to the DPPA. Similarly, the DPPA does not allow access to personal information after a lawsuit has been filed. The Court held that a lawyer would only need to file a placeholder lawsuit to gain access to the personal information database, which would prevent the DPPA from providing sufficient protection.
Justice Ruth Bader Ginsburg wrote a dissent in which she argued that the DPPA allows the use of DMV-supplied personal information when connected with a specific, concrete legal proceeding. In such cases, the information adds directly to the development of a case. She also argued that the majority’s opinion creates a limitation that has no basis in the text of the DPPA. The majority’s reading also confuses the interpretation and implementation of the DPPA as a whole. Justice Antonin Scalia, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
EDWARD F. MARACICH, et al., PETITIONERS v. MICHAEL EUGENE SPEARS et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[June 17, 2013]
Justice Kennedy delivered the opinion of the Court.
Concerned that personal information collected by States in the licensing of motor vehicle drivers was being released—even sold—with resulting loss of privacy for many persons, Congress provided federal statutory protection. It enacted the Driver’s Privacy Protection Act of 1994, referred to here as the DPPA. See 18 U. S. C. §§2721–2725.
The DPPA regulates the disclosure of personal information contained in the records of state motor vehicle departments (DMVs). Disclosure of personal information is prohibited unless for a purpose permitted by an ex-ception listed in 1 of 14 statutory subsections. See §§2721(b)(1)–(14). This case involves the interpretation of one of those exceptions, subsection (b)(4). The exception in (b)(4) permits obtaining personal information from a state DMV for use “in connection with” judicial and administrative proceedings, including “investigation in anticipation of litigation.” §2721(b)(4). The question presented is whether an attorney’s solicitation of clients for a lawsuit falls within the scope of (b)(4).
Respondents are trial lawyers licensed to practice in South Carolina. They obtained names and addresses of thousands of individuals from the South Carolina DMV in order to send letters to find plaintiffs for a lawsuit they had filed against car dealers for violations of South Carolina law. Petitioners, South Carolina residents whose information was obtained and used without their consent, sued respondents for violating the DPPA. Respondents claimed the solicitation letters were permitted under subsection (b)(4). In light of the text, structure, and purpose of the DPPA, the Court now holds that an attorney’s solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception.I A
The State of South Carolina, to protect purchasers of motor vehicles, enacted the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (MDDA). In June 2006, respondent attorneys were approached by car purchasers who complained about administrative fees charged by car dealerships in certain South Carolina counties, allegedly in violation of the MDDA. The state statute prohibits motor vehicle dealers from engaging in “any action which is arbitrary, in bad faith, or unconscionable and which causes damage to any of the parties or to the public.” S. C. Code Ann. §56–15–40(1) (2006). The MDDA provides that “one or more may sue for the benefit of the whole” where an action is “one of common or general interest to many persons or when the parties are numerous and it is impracticable to bring them all before the court.” §56–15–110(2).
On June 23, 2006, one of the respondent attorneys submitted a state Freedom of Information Act (FOIA) request to the South Carolina DMV to determine if charging illegal administrative fees was a common practice so that a lawsuit could be brought as a representative action under the MDDA. The attorney’s letter to the DMV requested information regarding “[p]rivate purchases of new or used automobiles in Spartanburg County during the week of May 1–7, 2006, including the name, address, and telephone number of the buyer, dealership where purchased, type of vehicle purchased, and date of purchase.” App. 57. The letter explained that the request was made “in anticipation of litigation . . . pursuant to the exception in 18 USC §2721(b)(4) of the Driver’s Privacy Protection Act.” Ibid. The South Carolina DMV provided the requested information. On August 24, 2006, respondents submitted a second FOIA request to the DMV, also asserting that it was made “in anticipation of litigation . . . pursuant to the exception in 18 USC §2721(b)(4),” for car purchasers in five additional counties during the same week. Id., at 67.
On August 29, 2006, respondents filed suit in South Carolina state court on behalf of four of the consumers who originally contacted them. The case is referred to here, and by the parties, as the Herron suit. The complaint in the Herron suit named 51 dealers as defendants and invoked the MDDA’s “group action” provision to assert claims “for the benefit of all South Carolina car buyers wh[o] paid administrative fees,” id., at 128, to those dealers during the same time period.
Some of the dealer defendants in the Herron suit filed motions to dismiss for lack of standing because none of the named plaintiffs purchased cars from them. On October 26, 2006, while the motions to dismiss were pending, respondents submitted a new FOIA request to the South Carolina DMV. That request, again citing subsection (b)(4) of the DPPA, sought to locate additional car buyers who could serve as plaintiffs against the dealers who had moved to dismiss. On October 31, 2006, respondents filed an amended complaint, which added four named plaintiffs and increased the number of defendant dealers from 51 to 324. As before, defendant dealerships that had not engaged in transactions with any of the now eight named plaintiffs filed motions to dismiss for lack of standing.
On January 3, 2007, using the personal information they had obtained from the South Carolina DMV, respondents sent a mass mailing to find car buyers to serve as additional plaintiffs in the litigation against the dealers. Later in January, respondents made three more FOIA requests to the South Carolina DMV seeking personal information concerning people who had purchased cars from an additional 31 dealerships, again citing the (b)(4) exception. The South Carolina DMV granted all the requests. On January 23, respondents mailed a second round of letters to car buyers whose personal information had been disclosed by the DMV. Respondents sent additional rounds of letters on March 1, March 5, and May 8. Each of the five separate mailings was sent to different recipients. In total, respondents used the information obtained through their FOIA requests to send letters to over 34,000 car purchasers in South Carolina. This opinion refers to the communications sent by respondents simply as the “letters.”
The letters, all essentially the same, had the heading “ADVERTISING MATERIAL.” The letters explained the lawsuit against the South Carolina dealers and asked recipients to contact the respondent-lawyers if interested in participating in the case. Attached to the letter was a reply card that asked a few questions about the recipient’s contact information and car purchase and ended with the sentence “I am interested in participating” followed by a signature line. The text of the letter and reply are set out in full in the Appendix, infra.
In accordance with South Carolina Rule of Professional Conduct 7.3 (2012), which regulates the solicitation of prospective clients, respondents filed a copy of the letter and a list of recipients’ names and addresses with the South Carolina Office of Disciplinary Counsel.
In June 2007, respondents sought to amend their complaint to add 247 plaintiffs. The court denied leave to amend and held the named plaintiffs had standing to sue only those dealerships from which they had purchased automobiles and any alleged co-conspirators. In September 2007, respondents filed two new lawsuits on behalf of the additional car buyers. Those subsequent cases were consolidated with the Herron suit. All claims against dealerships without a corresponding plaintiff-purchaser were dropped.B
In the case now before the Court, petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against the car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership’s director of sales and marketing. Petitioners Martha Weeks and John Tanner received letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase.
In 2009, petitioners filed the instant putative classaction lawsuit in the United States District Court for the District of South Carolina. The complaint alleged that respondents had violated the DPPA by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without the express consent of petitioners and the other class members.
Respondents moved to dismiss. The information, they contended, was subject to disclosure because it falls within two statutory exceptions in the DPPA: (b)(1), pertaining to governmental functions, and (b)(4), pertaining to litigation. On cross-motions for summary judgment, the District Court held as a matter of law that respondents’ letters were not solicitations and that the use of information fell within the (b)(4) litigation exception. App. to Pet. for Cert. 61a. The District Court also found that respondents’ use of personal information was permitted under the (b)(1) governmental-function exception.
The Court of Appeals for the Fourth Circuit affirmed. Unlike the District Court, it found that the letters were “solicitation[s]” within the meaning of the DPPA; but it held further that when “solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable.” 675 F. 3d 281, 284 (2012). This Court granted certiorari to address whether the solicitation of clients is a permissible purpose for obtaining personal information from a state DMV under the DPPA’s (b)(4) exception. 567 U. S. ___ (2012).II
To obtain a driver’s license or register a vehicle, state DMVs, as a general rule, require an individual to disclose detailed personal information, including name, home address, telephone number, Social Security number, and medical information. See Reno v. Condon, 528 U. S. 141, 143 (2000) . The enactment of the DPPA responded to at least two concerns over the personal information contained in state motor vehicle records. The first was a growing threat from stalkers and criminals who could acquire personal information from state DMVs. The second concern related to the States’ common practice of selling personal information to businesses engaged in direct marketing and solicitation. To address these concerns, the DPPA “establishes a regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent.” Id., at 144.
The DPPA provides that, unless one of its exceptions applies, a state DMV “shall not knowingly disclose or otherwise make available” “personal information” and “highly restricted personal information.” §§2721(a)(1)–(2). “[P]ersonal information” is “information that identifies an individual, including [a] . . . driver identification number, name, address . . . , [or] telephone number, . . . but does not include information on vehicular accidents, driving violations, and driver’s status.” §2725(3). “[H]ighly restricted personal information” is defined as “an individual’s photograph or image, social security number, [and] medical or disability information.” §2725(4). The DPPA makes it unlawful “for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title.” §2722(a). 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.” §2724(a).
The DPPA’s disclosure ban is subject to 14 exceptions set forth in §2721(b), for which personal information “may be disclosed.” The two exceptions most relevant for the purpose of this case are the litigation exception in subsection (b)(4) and the solicitation exception in (b)(12).
The (b)(4) litigation exception is one of the four provisions permitting disclosure not only of personal information but also of highly restricted personal information. §2721(b)(4); §2725(4). It provides that information may be disclosed:
“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.”
The (b)(12) solicitation exception provides that certain personal information, not including highly restricted personal information, may be disclosed:
“For bulk distribution for surveys, marketing, or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.”
The solicitation exception was originally enacted as an opt-out provision, allowing state DMVs to disclose personal information for purposes of solicitation only if the DMV gave individuals an opportunity to prohibit such disclosures. §2721(b)(12) (1994 ed.). In 1999, Congress changed to an opt-in regime, requiring a driver’s affirmative consent before solicitations could be sent. See Condon, supra, at 144–145.III
Respondents’ liability depends on whether their use of personal information acquired from the South Carolina DMV to solicit clients constitutes a permissible purpose under the DPPA. The District Court held that respondents’ conduct was permissible both under the (b)(1) and (b)(4) exceptions. The Court of Appeals ruled that the conduct here was permissible under (b)(4); but, unlike the District Court, it did not address the alternative argument that the conduct was also permissible under (b)(1). As in the Court of Appeals, only the (b)(4) exception is discussed here.A
Respondents claim they were entitled to obtain and use petitioners’ personal information based on two of the phrases in (b)(4). First, disclosure of personal information is permitted for use “in connection with any civil, criminal, administrative, or arbitral proceeding.” §2721(b)(4). Second, a use in connection with litigation includes “investigation in anticipation of litigation.” Ibid. Respondents contend that the solicitation of prospective clients, especially in the circumstances of this case, is both a use “in connection with” litigation and “investigation in anticipation of litigation.”1
If considered in isolation, and without reference to the structure and purpose of the DPPA, (b)(4)’s exception allowing disclosure of personal information “for use in connection with any civil, criminal, administrative, or arbitral proceeding,” and for “investigation in anticipation of litigation,” is susceptible to a broad interpretation. That language, in literal terms, could be interpreted to its broadest reach to include the personal information that respondents obtained here. But if no limits are placed on the text of the exception, then all uses of personal information with a remote relation to litigation would be exempt under (b)(4). The phrase “in connection with” is essentially “indeterminat[e]” because connections, like relations, “ ‘stop nowhere.’ ” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) . So the phrase “in connection with” provides little guidance without a limiting principle consistent with the structure of the statute and its other provisions. See id., at 656 (“We simply must go beyond the unhelpful text and the frustrating difficulty of defining [‘connection with’], and look instead to the objectives of the ERISA statute”); see also California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 335 (1997) (“But applying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else”).
An interpretation of (b)(4) that is consistent with the statutory framework and design is also required because (b)(4) is an exception to both the DPPA’s general prohibition against disclosure of “personal information” and its ban on release of “highly restricted personal information.” §§2721(a)(1)–(2). An exception to a “general statement of policy” is “usually read . . . narrowly in order to preserve the primary operation of the provision.” Commissioner v. Clark, 489 U. S. 726, 739 (1989) . It is true that the DPPA’s 14 exceptions permit disclosure of personal information in a range of circumstances. Unless commanded by the text, however, these exceptions ought not operate to the farthest reach of their linguistic possibilities if that result would contravene the statutory design. Cf. Cowan v. Ernest Codelia, P. C., 149 F. Supp. 2d 67 (SDNY 2001) (rejecting an argument by defense counsel that obtaining from the DMV the home address of the assistant district attorney to send her a harassing letter was a permissible use “in connection with” the ongoing criminal proceeding under (b)(4)).
If (b)(4) were read to permit disclosure of personal information whenever any connection between the protected information and a potential legal dispute could be shown, it would undermine in a substantial way the DPPA’s purpose of protecting an individual’s right to privacy in his or her motor vehicle records. The “in connection with” language in (b)(4) must have a limit. A logical and necessary conclusion is that an attorney’s solicitation of prospective clients falls outside of that limit.
The proposition that solicitation is a distinct form of conduct, separate from the conduct in connection with litigation permitted under (b)(4) is demonstrated: by the words of the statute itself; by formal rules issued by bar organizations and governing boards; and by state statutes and regulations that govern and direct attorneys with reference to their duties in litigation, to their clients, and to the public. As this opinion explains in more detail, the statute itself, in (b)(12), treats bulk solicitation absent consent as a discrete act that the statute prohibits. And the limited examples of permissible litigation purposes provided in (b)(4) are distinct from the ordinary commercial purpose of solicitation. Canons of ethics used by bar associations treat solicitation as a discrete act, an act subject to specific regulation. And state statutes, including statutes of the State of South Carolina, treat solicitation as a discrete subject for regulation and governance of the profession. It would contradict the idea that solicitation is defined conduct apart from litigation to treat it as simply another aspect of the litigation duties set out in (b)(4).2
An attorney’s solicitation of new clients is distinct from other aspects of the legal profession. “It is no less true than trite that lawyers must operate in a three-fold capacity, as self-employed businessmen as it were, as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Cohen v. Hurley, 366 U. S. 117, 124 (1961) , overruled on other grounds, Spevack v. Klein, 385 U. S. 511 (1967) . Unlike an attorney’s conduct performed on behalf of his client or the court, “solicitation by a lawyer of remunerative employment is a business transaction.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 457 (1978) ; see also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 637 (1985) (attorney solicitation “ ‘propose[s] a commercial transaction’ ”). The “pecuniary motivation of the lawyer who solicits a particular representation” may even “create special problems of conflict of interest.” Ohralik, supra, at 461, n. 19.
The distinction between solicitation and an attorney’s other duties is also recognized and regulated by state bars or their governing bodies, which treat solicitation as discrete professional conduct. See, e.g., Cal. Rule Prof. Conduct 1–400 (2013); N. Y. Rule Prof. Conduct 7.3 (2012–2013); Tex. Disciplinary Rules Prof. Conduct 7.02–7.03 (2013); Va. Rule Prof. Conduct 7.3 (Supp. 2012). That, indeed, was true here. Respondents were required by the South Carolina rules of ethics to include certain language in their solicitation letters and to file copies with the South Carolina Office of Disciplinary Counsel. See S. C. Rule Prof. Conduct 7.3. Given the difference between an attorney’s commercial solicitation of clients and his duties as an officer of the court, the proper reading of (b)(4) is that solicitation falls outside of the litigation exception. And when (b)(4) is interpreted not to give attorneys the privilege of using protected personal information to propose a commercial transaction, the statute is limited by terms and categories that have meaning in the regular course of professional practice.
The exclusion of solicitation from the meaning of “in connection with” litigation draws further support from the examples of permissible litigation uses in (b)(4). The familiar canon of noscitur a sociis, the interpretive rule that “words and people are known by their companions,” Gutierrez v. Ada, 528 U. S. 250, 255 (2000) , provides instruction in this respect. Under this rule, the phrases “in connection with” and “investigation in anticipation of litigation,” which are “capable of many meanings,” Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961) , can be construed in light of their accompanying words in order to avoid giving the statutory exception “unintended breadth,” ibid.; see also United States v. Williams, 553 U. S. 285, 294 (2008) (the canon of noscitur a sociis “counsels that a word is given more precise content by the neighboring words with which it is associated”).
The examples of uses “in connection with” litigation that Congress provided in (b)(4) include “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.” §2721(b)(4). These uses involve an attorney’s conduct when acting in the capacity as an officer of the court, not as a commercial actor. The listed examples are steps that ensure the integrity and efficiency of an existing or imminent legal proceeding. This may include contacting persons who are already involved in the litigation or who are necessary parties or witnesses. These steps are different from the ordinary business purpose of solicitation. Here, as will be the case for most solicitations, the attorneys acted without court authorization or supervision and cast a wide net, sending letters to over 30,000 car purchasers to let them know the attorneys’ names and the attorneys’ interest in performing legal services for them.
The examples in (b)(4) confirm, and are all consistent with, protecting the professional responsibilities that counsel, or the court, must discharge in the proper conduct of litigation. These are quite distinct from the separate subject, the separate professional conduct, of soliciting clients. The examples suggest that the litigation exception has a limited scope to permit the use of highly restricted personal information when it serves an integral purpose in a particular legal proceeding. In light of the types of conduct permitted by the subsection, the “in connection with” language should not be read to include commercial solicitations by an attorney.
Similarly, “investigation in anticipation of litigation” is best understood to allow background research to determine whether there is a supportable theory for a complaint, a theory sufficient to avoid sanctions for filing a frivolous lawsuit, or to locate witnesses for deposition or trial testimony. An interpretation of “investigation” to include commercial solicitation of new clients would expand the language in a way inconsistent with the limited uses given as examples in the statutory text. It must be noted also that the phrase “in anticipation of litigation” is not a standalone phrase. It modifies, and necessarily narrows, the word “investigation.” To use the phrase “in anticipation of litigation” without that qualification is to extend the meaning of the statute far beyond its text.3
An additional reason to hold that (b)(4) does not permit solicitation of clients is because the exception allows use of the most sensitive kind of information, including medical and disability history and Social Security numbers. To permit this highly personal information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard.
Subsection (b)(4) is one of only four exceptions in the statute that permit disclosure of “highly restricted personal information,” including a person’s image, Social Security number, and medical and disability information. See §2721(a)(2); §2725(4). The other three exceptions that permit access to highly restricted personal information include: use by the government, including law enforcement, see §2721(b)(1); use by an insurer in claim investigation and antifraud activities, see §2721(b)(6); and use by an employer to obtain or verify information as required by law, see §2721(b)(9). None of these exceptions are written to authorize private individuals to acquire the most restricted personal information in bulk merely to propose a commercial transaction for their own financial benefit. If (b)(4) permitted access to highly restricted personal information for an attorney’s own commercial ends without governmental authorization or without consent of the holder of the driver’s license, the result would be so significant a departure from these other exceptions that it counsels against adopting this interpretation of the statute.
While the (b)(4) exception allows this sensitive information to be used for investigation in anticipation of litigation and in the litigation itself, there is no indication Congress wanted to provide attorneys with a special concession to obtain medical information and Social Security numbers for the purpose of soliciting new business.B
Limiting the reach of (b)(4) to foreclose solicitation of clients also respects the statutory design of the DPPA. The use of protected personal information for the purpose of bulk solicitation is addressed explicitly by the text of (b)(12). Congress was aware that personal information from motor vehicle records could be used for solicitation, and it permitted it in circumstances that it defined, with the specific safeguard of consent by the person contacted. So the absence of the term “solicitation” in (b)(4) is telling. Subsection (b)(12) allows solicitation only of those persons who have given express consent to have their names and addresses disclosed for this purpose. If (b)(4) were to be interpreted to allow solicitation without consent, then the structure of the Act, and the purpose of (b)(12), would be compromised to a serious degree.
It is necessary and required that an interpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning. United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 455 (1993) (“ ‘[I]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy’ ” (quoting United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849))). The “in connection with” language of (b)(4) therefore must be construed within the context of the DPPA as a whole, including its other exceptions.
This is not to say, as petitioners contend, that this is a straightforward application of the specific (qualified solicitation permission in (b)(12)) controlling the general (the undefined reach of “in connection with” and “investigation in anticipation of litigation” in (b)(4)). As between the two exceptions at issue here, it is not clear that one is always more specific than the other. For while (b)(12) is more specific with respect to solicitation, (b)(4) is more specific with respect to litigation. The DPPA’s 14 permissible use exceptions, moreover, are not in all contexts mutually exclusive. The better reading is that each exception addresses different conduct which may, on occasion, overlap. For example, certain uses of personal information by a court may be exempt either under (b)(1) or (b)(4). If conduct falls within the explicit or unambiguous scope of one exception, all other potentially applicable exceptions need not be satisfied.
So the question is not which of the two exceptions controls but whether respondents’ conduct falls within the litigation exception at all. As to this question, petitioners are correct that the existence of the separate provision governing solicitation provides necessary context for defining the scope of (b)(4). As discussed above, the text of (b)(4) indicates that the exception is best read not to include solicitation as a use “in connection with” litigation. But even if there were any doubt on this point, the statutory design of the DPPA as a whole, including the (b)(12) exception governing solicitations, provides additional instruction for construing this provision. For this reason, it is relevant that “ ‘Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.’ ” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S.___, ___ (2012) (slip op., at 5).
Subsection (b)(12) implements an important objective of the DPPA—to restrict disclosure of personal information contained in motor vehicle records to businesses for the purpose of direct marketing and solicitation. The DPPA was enacted in part to respond to the States’ common practice of selling personal information to businesses that used it for marketing and solicitations. See Condon, 528 U. S., at 143 (“Congress found that many States . . . sell this personal information to individuals and businesses”); id., at 148 (“The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations”). Congress chose to protect individual privacy by requiring a state DMV to obtain the license holder’s express consent before permitting the disclosure, acquisition, and use of personal information for bulk solicitation. The importance of the consent requirement is highlighted by Congress’ decision in 1999 to change the statutory mechanism that allowed individuals protected by the Act to opt out to one requiring them to opt in. See id., at 144–145; see also §§350(c)–(e), 113Stat. 1025.
Direct marketing and solicitation present a particular concern not only because these activities are of the ordinary commercial sort but also because contacting an individual is an affront to privacy even beyond the fact that a large number of persons have access to the personal information. The DPPA’s (b)(5) exception illustrates this concern by permitting disclosure of personal information for use in research activities “so long as the personal information is not published, redisclosed, or used to contact individuals.” §2721(b)(5).
Because (b)(12) represents Congress’ decision to target the problem of bulk solicitation with the requirement of express consent, other exceptions should not be construed to interfere with this statutory mechanism unless the text commands it. This is not to suggest that (b)(12) is an overriding rule that controls all other exceptions. It would not be necessary to consider (b)(12) if another statutory exception applied to the relevant conduct. The relevance of (b)(12), however, is that it can be used as additional evidence of the DPPA’s statutory design to interpret exceptions whose breadth and application are uncertain.
Here, the phrase “in connection with” litigation in the (b)(4) exception, as a matter of normal usage and common understanding, does not encompass an attorney’s commercial use of DPPA-protected personal information to solicit new clients. This and the other reasons given above lead to the conclusion that it would be incorrect to interpret the text of this exception to include an attorney’s commercial solicitation as a use “in connection with” litigation. And, unlike (b)(12), the (b)(4) exception does not require obtaining an individual’s express consent before disclosing and using personal information contained in state motor vehicle records. If the “in connection with” language of (b)(4) were read broadly to include solicitation, an attorney could acquire personal information from the state DMV to send bulk solicitations to prospective clients without their express consent. This would create significant tension in the DPPA between the litigation and solicitation exceptions. That inconsistency and the concomitant undermining of the statutory design are avoided by interpreting (b)(4) so it does not authorize the use of personal information for the purpose of soliciting clients. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory. . . . [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”).C
If the phrase “in connection with” in (b)(4) included solicitation by lawyers, then a similar reach for that phrase could apply to other exceptions, resulting in further frustration of the Act’s design. Subsection (b)(6) allows an insurer and certain other parties to obtain DMV information for use “in connection with . . . underwriting.” §2721(b)(6). If that phrase extended to solicitation, then personal information protected by the DPPA could be used to solicit new customers for underwriting without their consent. It is most doubtful that Congress intended to exempt insurers from the consent requirement for bulk solicitations.
The DPPA, in subsection (b)(10), permits disclosure and use of personal information “in connection with” the operation of private toll roads. If the phrase were interpreted to extend to all solicitations without consent, then the owner of a private toll road could send targeted mass advertisings or direct marketing letters by using the protected personal information obtained from state motor vehicle records. This, too, would take away much of the force and effect of the (b)(12) restriction on bulk solicitation without the express consent of the person contacted.
When Congress did intend the phrase “in connection with” to permit conduct otherwise subject to the express consent requirement in (b)(12), it did so in explicit terms. An illustration can be found in the interplay between (b)(2) and (b)(12) of the DPPA. As has been noted, (b)(12) prohibits disclosure of protected personal information for the purpose of sending bulk distribution of surveys without the express consent of the recipients. Subsection (b)(2), however, permits disclosure of personal information “[f]or use in connection with matters of . . . motor vehicle market research activities, including survey research.” §2721(b)(2). So what the DPPA prohibits in (b)(12) it explicitly allows in (b)(2), but it does so by repeating the same word, “survey,” in the text of both provisions. If the “in connection with” language alone were sufficient to include “surveys” within (b)(2), the phrase “survey research” would be mere surplusage. Instead, the explicit reference to “survey” in (b)(2) was necessary to make clear that Congress had created an exception to the (b)(12)’s consent requirement for one particular type of survey. When it comes to the prohibition on “solicitations” in (b)(12), however, that word is not repeated in the text of (b)(4). This leads to the inference that Congress did not intend (b)(4) to include “solicitations” and thus to override the express consent requirement of (b)(12).IV A
Respondents concede that (b)(4) does not permit attorneys to use personal information acquired from a state DMV to find new business in the absence of any connection to a particular transaction, occurrence, or defect. They contend, however, that a line can be drawn between mere trolling for clients (which is not permitted) and solicitation tied to a specific legal dispute (which, respondents argue, is permitted). While some solicitations may have a close relationship with existing proceedings, there is no principled way to classify some solicitations as acceptable and others as unacceptable for the purpose of (b)(4). Even if solicitation were permitted only after a lawyer has a client or filed a lawsuit, attorneys would be able to circumvent this limitation with ease by the simple device of filing a placeholder lawsuit. All an attorney would need is one friend or family member as his client before being able to gain access to DPPA-protected personal information to solicit persons to fill in as plaintiffs. Solicitation of new plaintiffs to keep defendants in a lawsuit that would otherwise be dismissed for lack of standing is no different in substance from solicitation to initiate a lawsuit. Here, at any rate, the state court found that plaintiffs had standing to sue the dealerships from which they had purchased automobiles and any alleged co-conspirators. See 675 F. 3d, at 287, n. 3. This can undermine the argument that solicitation of additional plaintiffs was somehow necessary for the lawsuit to continue.
Drawing the line between solicitations related to an existing proceeding and those that are not is not a tenable distinction. The proper solution is to draw the line at solicitation itself. The structure of the DPPA supports this distinction. If solicitation were deemed a permissible purpose under (b)(4), even when limited to a particular lawsuit, tension would remain between the (b)(12) solicitation exception, which requires express consent, and the (b)(4) litigation exception, which does not. The two statutory provisions are consistent if solicitation is excluded from the activity permitted in (b)(4).
Of course solicitation can aid an attorney in bringing a lawsuit or in increasing its size. The question, however, is whether or not lawyers can use personal information protected under the DPPA for this purpose. Petitioners and other state residents have no real choice but to disclose their personal information to the state DMV, including highly restricted personal information. The use of that information by private actors to send direct commercial solicitations without the license holder’s consent is a substantial intrusion on the individual privacy the Act protects. For the reasons already discussed, a proper interpretation of a use “in connection with” litigation under (b)(4) in light of the DPPA’s text and structure does not include solicitation.
The fact that an attorney complies with state bar rules governing solicitations also does not resolve whether he is entitled to access the state DMV database for that purpose under the DPPA. There is no provision of South Carolina law that either permits or requires attorneys to use DPPA-protected information to solicit potential clients. Even if such a provision existed, under the Supremacy Clause, it would not protect respondents from DPPA liability unless their conduct fell within one of the Act’s exceptions.
A person is liable under the DPPA if he “knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted” by one of the statutory exceptions. §2724(a). In determining whether obtaining, using, or disclosing the personal information is for the prohibited purpose of solicitation, the proper inquiry is whether the defendant had the predominant purpose to solicit. Because, in some cases, a communication sent with DPPA-protected information may serve more than one objective, a court must discern whether solicitation is its predominant purpose. That purpose might be evident from the communication itself. In other instances the defendant’s whole course of conduct will be relevant in determining whether solicitation was the predominant purpose of the act alleged to be wrongful.
Close cases may arise. Where a communication seeks to provide class notice or locate a witness, for example, the fact that the attorney provides contact information for a reply likely would not make the communication an improper solicitation. And the fact that a letter follows the state bar rules governing attorney solicitations, although relevant, will not be dispositive. For example, if the predominant purpose of a letter was not to solicit a new client, but rather to ask a witness investigatory questions or to secure her testimony at trial, adherence to state bar solicitation rules would not subject the sender to DPPA liability. Subsequent conduct, in some cases, may show that solicitation in fact was the predominant purpose of an earlier act; and, of course, even if an initial request was proper, a later use may be a violation. Where a reasonable observer could discern that the predominant purpose of obtaining, using, or disclosing protected personal information was to initiate or propose a business transaction with a prospective client, (b)(4) does not exempt the solicitation.
Respondents contend that even if solicitation of clients is impermissible as a general rule, solicitation to aggregate a class action suit is permitted under (b)(4). Where the predominant purpose is solicitation, however, (b)(4) does not entitle attorneys to obtain and use DPPA-protected information. To the extent the solicitation of plaintiffs can help attorneys bring a larger class action, there are alternatives that do not sacrifice an individual’s privacy in his or her motor vehicle records. An attorney, pursuant to a court order, could send class notice. Class notice may prompt a class member to join the lawsuit, but it also serves the important purpose of protecting the rights of absent class members and ensures that any decision will be binding on the class. Class notice sent on the instruction of the court also does not raise the same concerns that attorneys are acting only in their own commercial interest. But respondents here did not obtain or use the protected personal information to send class notices or comply with a court order. The letters made no mention of ethical obligations to outstanding group members or the consequences of not joining the suit. As the Court of Appeals noted, respondents “failed to indicate to recipients that they may already be de facto clients of the Lawyers, that is, persons whose interests were already protected by the senders.” 675 F. 3d, at 293. Had respondents received a court order, they might have been able to rely on the explicit language in (b)(4) permitting uses of information “pursuant to an order of a Federal, State, or local court.” §2721(b)(4). But because respondents had no court order authorizing their conduct, this opinion need not address whether it would be proper for a court to order attorneys to obtain DPPA-protected personal information to solicit plaintiffs.
Attorneys are free to solicit plaintiffs through traditional and permitted advertising without obtaining personal information from a state DMV. Here, the attorneys could also have complied with (b)(12) and limited their solicitation to those individuals who had expressly consented, or respondents could have requested consent through the DPPA’s waiver procedure. See §2721(d).
In light of these and other alternatives, attorneys are not without the necessary means to aggregate a class of plaintiffs. What they may not do, however, is to acquire highly restricted personal information from state DMV records to send bulk solicitations without express consent from the targeted recipients.
This is not to suggest that attorneys may not obtain DPPA-protected personal information for a proper investigatory purpose. Where respondents obtained petitioners’ personal information to discern the extent of the alleged misconduct or identify particular defendants, those FOIA requests appear permissible under (b)(4) as “investigation in anticipation of litigation.” Solicitation of new business, however, is not “investigation” within the meaning of (b)(4). And acquiring petitioners’ personal information for a legitimate investigatory purpose does not entitle respondents to then use that same information to send direct solicitations. Each distinct disclosure or use of personal information acquired from a state DMV must be permitted by the DPPA. See §2724(a) (“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”); see also §2721(c). If the statute were to operate otherwise, obtaining personal information for one permissible use would entitle attorneys to use that same information at a later date for any other purpose. For example, a lawyer could obtain personal information to locate witnesses for a lawsuit and then use those same names and addresses later to send direct marketing letters about a book he wrote.B
The Court of Appeals held that the letters here were solicitations, finding that “a reasonable recipient would almost certainly have understood the message to be a solicitation from a lawyer.” Id., at 293. The court noted as relevant that respondents themselves took steps to follow South Carolina bar rules governing attorney solicitations and rejected respondents’ description of the letters as investigatory in nature, given that “[n]o mention was made of an investigation into certain practices other than the implicit suggestion of investigation during a ‘free consultation.’ ” Ibid. The included reply card did not alter the Court of Appeals’ finding that the communications were solicitations rather than investigation. Only those interested in joining the lawsuit were directed to fill out the card and the only place to sign the card was under the phrase “I am interested in participating.” See Appendix, infra, at 31. The card asked for data regarding vehicle purchases relevant to initiate the representation of the prospective clients.
But although the Court of Appeals found that the letters were solicitations, it held the communications nonetheless exempt under (b)(4) because they were “inextricably intertwined” with permissible litigation purposes. 675 F. 3d, at 284. As explained above, however, if the use of DPPA-protected personal information has the predominant purpose of solicitation, that use is not protected by (b)(4). A remand is necessary for application of the proper standard because the Court of Appeals could conclude, in light of the content of the communications, taken with other evidence in the record, that respondents’ letters had the predominant purpose to solicit clients.
On remand, the Court of Appeals should determine whether the record shows that the communications sought, or were used, to develop the factual basis of the Herron complaint, locate witnesses, identify additional defendants, or perform any other investigative function related to the litigation. Even if so, the question is whether solicitation was the predominant purpose for sending the letters.V
This case does not involve the statutory section imposing criminal liability, which is written in different terms than the civil remedies provision. See §2723(a) (“A person who knowingly violates this chapter shall be fined under this title”). As to civil liability, the amount of damages sought in the complaint is based on the number of persons, over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case.
In this framework, there is no work for the rule of lenity to do. This Court has held that “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” Barber v. Thomas, 560 U. S. ___, ___ (2010) (slip op., at 13) (citation and internal quotation marks omitted). But here, as discussed, the surrounding text and structure of the DPPA resolve any ambiguity in phrases “in connection with” and “investigation in anticipation of litigation” in (b)(4). Only where “the language or history of [the statute] is uncertain” after looking to “the particular statutory language, . . . the design of the statute as a whole and to its object and policy,” does the rule of lenity serve to give further guidance. Crandon v. United States, 494 U. S. 152, 158 (1990) . “The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” See Callanan v. United States, 364 U. S. 587, 596 (1961) . There is no room for the rule of lenity where the text and structure of the DPPA require an interpretation of (b)(4) that does not reach out to include an attorney’s solicitation of clients.VI
Solicitation of prospective clients is not a permissible use “in connection with” litigation or “investigation in anticipation of litigation” under (b)(4) of the DPPA. As a result, the Court of Appeals erred in granting respondents summary judgment without first determining whether the communications had the predominant purpose of solicitation. And since the solicited persons did not give express consent to the disclosure or use of their personal information for this purpose, the (b)(12) exception does not apply.
On remand, the Court of Appeals, or the District Court, must determine whether respondents’ letters, viewed objectively, had the predominant purpose of solicitation. The Court of Appeals’ finding that these letters were solicitations can be the basis for the further conclusion that solicitation was the predominant purpose of their transmission. Because the Court of Appeals applied the wrong standard in finding these solicitations exempt under (b)(4), however, the Court remands for application of the proper standard.
Further proceedings also may be required to determine whether the initial act of obtaining petitioners’ personal information was permitted under the DPPA. The Court of Appeals and the District Court seem to have agreed that the first two FOIA requests were made in order for respondents to decide whether to file the MDDA lawsuit as a group action and to identify the highest volume dealers. App. 39a. If, in light of this opinion, the courts on remand adhere to the determination that the first two FOIA requests were exempt under (b)(4), the later uses and disclosures of that information, nevertheless, may be independent violations of the DPPA.
If the use of petitioners’ personal information to send the letters in this case is deemed to be a violation of the Act, then the courts can decide if it remains relevant and necessary, for liability and damages purposes, to determine whether the last four FOIA requests were also in violation of the DPPA. Assuming violations of the DPPA are established, questions regarding the calculation and assessment of damages then can be considered.
Neither this Court nor the Court of Appeals has considered whether respondents’ conduct was permissible under the (b)(1) governmental-function exception. Whether solicitation would be permitted conduct under (b)(1) is not resolved by this case. This case turns on the interpretation of “in connection with” litigation and “investigation in anticipation of litigation,” phrases not included in (b)(1). Where personal information is used for the predominant purpose of solicitation, the fact that the solicitation itself may serve a governmental function is not relevant to the interpretation of (b)(4). It may, however, be relevant to the (b)(1) inquiry. Respondents’ argument that they were authorized under state law to act as private attorneys general on behalf of the State is properly addressed under (b)(1). Arguments related to (b)(1) and other defenses, to the extent they have been preserved and are still proper to consider, must be for further proceedings on remand.
This Court now holds that sending communications for the predominant purpose of solicitation is not a use of personal information exempt from DPPA liability under (b)(4).
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
EDWARD F. MARACICH, et al., PETITIONERS v. MICHAEL EUGENE SPEARS et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[June 17, 2013]
Justice Ginsburg, with whom Justice Scalia, Justice Sotomayor, and Justice Kagan join, dissenting.
Respondents are lawyers who served as counsel in a representative action against South Carolina car dealers alleged to have charged car buyers unlawful administrative fees. In connection with that litigation, the lawyers obtained from South Carolina’s Department of Motor Vehicles (DMV) information identifying buyers who may have been charged unlawful fees and dealers who may have conspired to exact those fees. The lawyers subsequently sent letters to the identified buyers inquiring whether they had been charged administrative fees, informing them of the litigation, and inviting them to join as plaintiffs. The courts below determined that the lawyers’ requests for the information and their use of it fell squarely within the litigation exception to the Driver’s Privacy Protection Act of 1994 (DPPA), 18 U. S. C. §2721(b)(4), and that the Act’s limitation on solicitation, §2721(b)(12), did not override the litigation exception. I would affirm that sound judgment. As the Fourth Circuit explained, respondents “did what any good lawyer would have done.” 675 F. 3d 281, 298 (2012). This Court’s holding, exposing respondents not only to astronomical liquidated damages, §2724(b)(1), but to criminal fines as well, §2723(a), is scarcely what Congress ordered in enacting the DPPA.
Respondent-lawyers obtained and used DMV information for “investigation in anticipation of litigation” and for communications “in connection with” a civil action. I would read that statutory language to permit use of DMV information tied to a specific, concrete proceeding, imminent or ongoing, with identified parties on both sides of the controversy. So read, §2721(b)(4) permitted the lawyers’ conduct. Neither §2721(b)(12) nor any other provision of the DPPA warrants the massive liability this Court’s judgment authorizes.I
Public concern regarding the ability of criminals and stalkers to obtain information about potential victims prompted Congress, in 1994, to enact the DPPA. A particular spur to action was the 1989 murder of the television actress Rebecca Schaeffer by a fan who had obtained her address from the California DMV. Taylor v. Acxiom Corp., 612 F. 3d 325, 336 (CA5 2010); Electronic Privacy Information Center, The Drivers Privacy Protection Act (DPPA) and the Privacy of Your State Motor Vehicle Record, http://www.epic.org/privacy/drivers/ (as visited June 14, 2013, and available in Clerk of Court’s case file). See also 139 Cong. Rec. 29470 (1993) (remarks of Sen. Biden). Congress sought to close what it saw as a loophole caused by state laws allowing requesters to gain access to personal information without a legitimate purpose. Addressing that problem, Congress established a “regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent.” Ante, at 7 (internal quotation marks omitted).
The DPPA generally prohibits any state DMV from “knowingly disclos[ing] or otherwise mak[ing] available to any person” personal information about any individual. 18 U. S. C. §2721(a). This prohibition is subject to a number of statutory exceptions, including stated purposes for which the DPPA requires disclosure and 14 purposes for which the DPPA permits disclosure. §2721(b). The 14 permitted uses of DMV data are designed to “strik[e] a critical balance between an individual’s fundamental right to privacy and safety and the legitimate governmental and business needs for th[e] information.” 140 Cong. Rec. 7925 (1994) (remarks of Rep. Moran). State DMVs may release information for any one of these permitted purposes, but they are not required to do so.
This case arises from a state-court lawsuit—the Herron litigation—to enforce the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (MDDA), S. C. Code Ann. §56–15–10 et seq. (2006 and Supp. 2011). Respondent-lawyers were approached by a number of recent car purchasers who complained that they had been charged unlawful fees. On behalf of the car purchasers, the lawyers filed a complaint alleging that the car dealerships had violated state law. The initial complaint identified four purchasers as named plaintiffs and 51 dealers as defendants; the pleading was soon amended to name eight plaintiffs and, as defendants, 324 dealers. 675 F. 3d, at 285. The complaint invoked the MDDA’s representative action provision, which allows an individual to act as a private attorney general bringing suit “for the benefit of the whole.” S. C. Code Ann. §56–15–110(2). Ultimately, the Herron litigation yielded a declaratory judgment that the dealers had indeed violated state law. Subsequent settlements gained monetary relief for over 30,000 overcharged car purchasers. The state court found that the Herron plaintiffs, “as private attorneys general, [had] represented the public interest in attempting to regulate allegedly unfair practices by motor vehicle dealers and therefore represent all those affected by such practices.” App. 253–254.
Respondent-lawyers obtained and used information from the state DMV both shortly before filing suit and during the pendency of the state-court litigation. Before filing suit, they asked the DMV for information about recent car purchases in six South Carolina counties. These requests explained that respondent-lawyers represented a group of “plaintiffs who have complained of certain conduct as a result of their transactions with car dealers,” and that the lawyers were “attempting to determine if this [conduct was] a common practice.” 675 F. 3d, at 284 (internal quotation marks omitted).
After the lawsuit was filed, respondent-lawyers obtained the names of persons who had purchased cars from the dealers they had identified as defendants and mailed letters to those purchasers. Ante, at 4. These dispatches are the actions that, in the Court’s view, render respondentlawyers potentially liable for violating the DPPA. To determine whether the DPPA authorized the respondent-lawyers’ uses of DMV information, I first consider the posture of the Herron litigation at the time of the mailings to car purchasers. The complaint filed by respondent-lawyers on behalf of the car purchasers alleged that the dealers were involved in a conspiracy to charge unlawful fees. App. 138–139. In a competitive market, the lawyers urged, such conduct can succeed only when done in concert with other dealers; otherwise, consumers would take their business elsewhere. Meanwhile, the dealers moved to dismiss the conspiracy claim and argued there was no party with standing to sue those dealers who had not sold a car to a named plaintiff. Id., at 155.
The state court denied the dealers’ motion to dismiss, stating that the complaint alleged sufficient facts “supporting standing of the plaintiffs to proceed” against all defendants, and that there were “sufficient allegations of civil conspiracy” to avoid threshold dismissal of that claim. Id., at 212. At a subsequent hearing, the state court clarified that respondent-lawyers could “go forward with eight people [the named plaintiffs]” and the court would consider the standing issue raised in the dealers’ motion to dismiss “when all the discovery is in and it comes to dispositive motions.” Record in No. 7:09–cv–1651–HMH (D SC), Doc. 78–9, p. 50. 1 The state court’s initial ruling, in other words, was that the complaint filed by respondent-lawyers was sufficient under state law to mount a concrete dispute between their clients and all the overcharging dealers, and to enable the lawyers to proceed to discovery. But in view of the Herron defendants’ insistence that a dealer could not be sued absent a named plaintiff who purchased from that dealer, 2 respondent-lawyers understandably sought to identify, and add to the roster of plaintiffs, a purchaser from each named defendant. In that endeavor, as the Fourth Circuit recognized, they “did what any good lawyer would have done.” 675 F. 3d, at 298.
This context illuminates how the letters at issue in this case—which were mailed after the complaint was filed and while the dealers’ motion to dismiss was pending—served to advance the representative character of the suit during a critical time in the Herron litigation. The letters included a card asking recipients to respond by stating the type of car they had purchased, the name of the dealer and date of purchase, whether they had been charged the allegedly unlawful fee and, if so, the amount of the fee, and whether they were interested in participating in the lawsuit. See, e.g., App. 93, 106. These questions served an investigative purpose: to gather information about the fees charged by dealers with whom the Herron plaintiffs claimed to have a concrete dispute. 3 They also served to identify additional persons who might wish to be named as plaintiffs in the group action, persons whose joinder would defeat or diminish the dealers’ insistence that plaintiffs could sue only dealers from whom they personally purchased cars. See 675 F. 3d, at 285–286; ante, at 5 (faced with that insistence, respondent-lawyers eventually dropped “all claims against dealerships without a corresponding plaintiff-purchaser”).II
The DPPA permits disclosure of personal information:
“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.” 18 U. S. C. §2721(b)(4).
Respondent-lawyers’ use of the DMV-supplied information falls within the plain language of this provision. The Court’s attempt to read a solicitation-specific limitation into this provision has no mooring in §2721(b)(4)’s text and misperceives the structure of the DPPA.A
Congress used expansive language in framing the §2721(b)(4) exception, starting with the words “in connection with” and thrice repeating the word “any.” See Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383 (1992) (“The ordinary meaning of th[e] words [‘relating to’] is a broad one.”); Kasten v. Saint-Gobain Performance Plastics Corp., 563 U. S. 1 , ___ (2011) (slip op., at 7) (“[T]he phrase ‘any complaint’ suggests a broad interpretation.”). Notably, the Court acknowledges that (b)(4) is “susceptible to a broad interpretation,” and, “in literal terms,” could be read “to include the personal information that [respondent-lawyers] obtained here.” Ante, at 9.
This case should therefore be easy. One need not strain to see the connection between the respondent-lawyers’ conduct and a specific civil proceeding. No attenuated chain of connection need be established. All the uses of DMV information at issue took place when a concrete civil action between identified parties was either imminent or pending. Thus, the uses were indisputably “in connection with” a civil proceeding.
The Court apparently recognizes that the initial requests for DMV information—to investigate the vitality of the claims before filing suit—were in connection with the litigation. See ante, at 27–28. But if anything, the later requests and the letters mailed to car purchasers were even more closely tied to the case. The letters were sent after litigation commenced, when the respondent-lawyers, on behalf of their clients, were pursuing conspiracy claims against each of the defendant car dealers. Of equal importance, because the suit qualified under state law as a representative action, respondent-lawyers represented and were obligated to serve the interests of all car purchasers affected by the charged illegal conduct. Respondent-lawyers’ uses of DMV information in aid of the Herron litigation facilitated the discharge of their professional obligations to the court, their individual clients, and the “whole” group of named and unnamed purchasers that state law required the lawyers to serve. S. C. Code Ann. §56–15–110(2).
It would be extraordinary for Congress to pass a law disturbing the processes of a state court in such a case. “[T]he National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States,” and this includes a general “deference to the state adjudicative process.” Levin v. Commerce Energy, Inc., 560 U. S. 413 , ___ (2010) (slip op., at 15–16) (quoting Younger v. Harris, 401 U. S. 37, 44 (1971) ). We have taken special care to emphasize “the State’s strong interest in regulating members of the Bar,” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 467 (1978) , and have cautioned against undue “Federal interference with a State’s traditional regulation of [the legal] profession,” Bates v. State Bar of Ariz., 433 U. S. 350, 362 (1977) . One would therefore expect Congress to speak clearly if it intended to trench on state control in this domain.
I find no such clear statement in the DPPA. Quite the contrary, the DPPA instructs that “use [of DMV information] in connection with any civil . . . proceeding in any . . . State . . . court” is permissible under federal law. §2721(b)(4).B
Rather than adopt a straightforward interpretation of the statute, the Court labors to justify reading a limitation into (b)(4) that has no basis in the text of that provision. Solicitation, the Court says, is not permissible under (b)(4) even if it targets a specific civil proceeding. The Court offers two primary arguments for this conclusion. First, the Court contends, a bar on solicitation must be read into (b)(4) lest that provision permit all uses “with a remote relation to litigation.” Ante, at 9. Second, the Court asserts, its interpretation is necessary to respect the “structure and purpose of the DPPA” and the “objective” of subsection (b)(12). Ante, at 9, 17. Neither argument is persuasive.
I agree with the Court that the words “in connection with” must be contained within reasonable bounds. But the Court immediately jumps from this premise to the conclusion that “an attorney’s solicitation of prospective clients falls outside of [any reasonable] limit.” Ante, at 10–11; ante, at 11, 13 (solicitation, a “discrete act” prohibited by the statute, allows no exception for conduct “in connection with litigation”). The leap is startling. In prior decisions, when the Court has sought a limiting principle for similar statutory language, it has done so to prevent the application of a statute to matters with “only a tenuous, remote, or peripheral connection” to the statute’s core purpose. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 661 (1995) (quoting District of Columbia v. Greater Washington Bd. of Trade, 506 U. S. 125, 130, n. 1 (1992) ). The focus, in other words, has been on the degree of connection between the concerns central to the law and the disputed application of the measure.
The majority’s focus on solicitation, however, tells us almost nothing about the degree of connection between the use of DMV information and a civil proceeding. It matters not to the Court whether a solicitation is of vital importance to an ongoing proceeding or far removed from any proceeding which may or may not be brought. A rule barring any communication for which solicitation is a predominant purpose bears no logical relationship to the §2721(b)(4) phrase “in connection with.” And the majority’s concentration on solicitation is uninformative on the degree of connection to a civil proceeding needed for uses of DMV information that do not involve solicitation.
The majority’s sojourn away from §2721(b)(4)’s text in search of a limiting principle is unwarranted. A limit to the scope of (b)(4) can be readily identified by attending to the phrasing of the provision and its focus on a “proceeding.” Congress used similar language in the obstruction of justice statute, which criminalizes various attempts to interfere with a “proceeding.” 18 U. S. C. §1512. The Court had no difficulty identifying a limiting principle in this term; it held that the statute applies only to persons who “have in contemplation any particular official proceeding.” Arthur Andersen LLP v. United States, 544 U. S. 696, 708 (2005) . By the same token, (b)(4) is best interpreted to permit only uses tied to a concrete, particular proceeding.
Congress’ use of the phrase “in anticipation of litigation” provides further support for this interpretation. The phrase is hardly unique to (b)(4); it is commonly used to refer to the time at which the work-product privilege attaches to an attorney’s work for a client and the time at which a party has a duty to preserve material evidence. See, e.g., Fed. Rule Civ. Proc. 26(b)(3) (“documents and other tangible things that are prepared in anticipation of litigation” are not discoverable); Silvestri v. General Motors Corp., 271 F. 3d 583, 592 (CA4 2001) (plaintiff had “failed to preserve material evidence in anticipation of litigation”). Both now and when the DPPA was enacted, courts have understood this phrase to require a concrete dispute between parties, and to exclude the abstract possibility of a hypothetical lawsuit. See, e.g., National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F. 2d 980, 984 (CA4 1992) (the “general possibility of litigation” is not enough; a document is prepared in anticipation of litigation when there is “an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation”); Gould Inc. v. Mitsui Mining & Smelting Co., 825 F. 2d 676, 680 (CA2 1987) (application of Rule 26(b)(3) “depends upon the existence of a real, rather than speculative, concern”).
Usage of the same words in other prescriptions indicates that (b)(4) is indeed limited by its text. A hypothetical case without identified adverse parties is not encompassed by (b)(4). To anticipate a particular civil proceeding, a lawyer must have a client whose claim presents a genuine controversy. 4 Trolling for prospective clients with no actual or imminent proceeding, involving already identified adverse parties, in sight—apparently, the Court’s primary concern—would not be a permissible use. 5 Affirming the judgment below, the Court fears, would permit lawyers to bring placeholder lawsuits on behalf of “friend[s] or family member[s],” then use DMV data to solicit plaintiffs for “a lawsuit that would otherwise be dismissed for lack of standing.” Ante, at 20–21. This is a canard. No court would hold such a case a genuine controversy. The Court’s hypothetical bears not even a remote resemblance to the facts of this case. The state court here denied the defendants’ motion to dismiss the conspiracy claim on standing grounds. Supra, at 4–5. See also ante, at 5 (describing the state court’s ruling that the named plaintiffs had standing to sue the “dealerships from which they had purchased automobiles and any alleged co-conspirators” (emphasis added)).
This case is squarely within the metes and bounds of (b)(4). The letters advanced the concrete interests of the respondent-lawyers’ clients within a pending adversarial civil proceeding in state court. Just as the letters at issue in this case would be in contemplation of a particular “proceeding” as that term is used in 18 U. S. C. §1512, and would be “in anticipation of litigation” as Rule 26(b)(3) employs that term, they fall within the very same language as it appears in §2721(b)(4).
The Court’s second argument is no more convincing. A severe limit must be read into (b)(4), the Court urges, to respect the structure of the statute. Specifically, the Court spotlights that another permissible use, (b)(12), allows “bulk distribution for surveys, marketing or solicitations,” but only to individuals who have consented to allow use of their information for this purpose. Petitioners here devoted much of their briefing to arguing that (b)(12) is somehow more “specific” than (b)(4), see Brief for Petitioners 18–31; Reply Brief 3–12, but the Court rightly rejects that reasoning. Ante, at 16. Neither provision is more specific than the other; the two simply cover different subjects.
Without the specific-governs-the-general canon, the case for using (b)(12) to interpret (b)(4) evaporates. The Court suggests there would be “tension” between the two provisions if a use of DMV information were permitted by (b)(4) but not permitted by (b)(12). Ante, at 21. Every permissible use of DMV information, however, is permitted by some—often just one—of the 14 enumerated exceptions and not permitted by others. The DPPA surely does not convey that every time a person obtains DMV information in accord with one exception, that exception comes into conflict with other exceptions under which the information could not be obtained. Indeed, it is the Court’s opinion that creates tension, by taking a use that would be permissible under (b)(4)—and therefore permissible under the DPPA—and importing into it a restriction delineated in an entirely different exception.
If applied generally to §2721(b), the Court’s approach would frustrate the evident congressional purpose to provide a set of separate exceptions, any one of which makes permissible the uses therein. Consider a consulting company hired by a State to conduct research into motor vehicle safety. Depending on the particulars of the research project, the company might seek to obtain DMV information under the uses listed in (b)(1), (2), (5), (12), or (14). 6 These exceptions entail different requirements, so the project might well fit within one or two of them but not the others. It would be ludicrous to treat the fact that the project did not fit within one exception as establishing that the project should not be allowed under any other exception. Construing the DPPA in that manner would render the statute totally unworkable. The majority does not take that outlandish position with respect to all the exceptions. Ante, at 16. Instead, without any congressional instruction to do so, the Court reads (b)(12)—the 12th on a list of 14 permissible uses—as so central a part of the DPPA that it alone narrows the scope of other exceptions.III
Under the most sensible reading of §2721(b)(4), see supra, at 6–7, the uses of DMV information at issue here would be permissible. The dispositive question should be: Is the use tied to a concrete civil action between identified parties that is ongoing or impending? Even if the statute could be viewed as ambiguous, there is ample reason to adopt that straightforward reading. The alternative reading embraced by the Court generates uncertainty regarding the scope of other uses enumerated in §2721(b); creates difficult line-drawing problems; and imposes criminal and draconian civil liability, at odds with the principle of lenity.
First, the Court’s reading clouds other uses the DPPA permits. According to the Court, the exceptions in §2721(b) should be construed so as not to “interfere” with (b)(12), which “implements an important objective of the DPPA.” Ante, at 17–18. 7 Therefore, (b)(12) is “relevan[t]” in interpreting those “exceptions whose breadth and application are uncertain.” Ante, at 18. Little light is cast on which enumerated exceptions fit that description. Subsection (b)(4) fits, the Court asserts, but (b)(1) apparently does not. See ibid. But what makes (b)(1) clear, while (b)(4) is uncertain? The Court provides no answer, not even a clue. Lower courts will be left to puzzle over when (b)(12) comes to the fore, rendering impermissible uses that otherwise fit within another exception.
The Court sows further confusion by narrowly construing the four exceptions that permit disclosure of information the DPPA ranks as “highly restricted personal information.” §2721(a)(2); see ante, at 14. These exceptions apply to uses by the government, (b)(1); court operations, (b)(4); use by insurance companies, entities pervasively regulated by the States, (b)(6); and commercial driver’s licenses, which are regulated by the Federal Government and administered by the States, (b)(9). 8
A common thread unites the four categories: All involve the functioning or oversight of state governments on matters important to the State and persons within the State’s governance. For uses of this genre, the need for the information can be especially high, and the likelihood of misuse, especially low. Congress therefore took care to authorize broad access to DMV information for uses these exceptions allow. I would read §2721(b) as according the States ample leeway to use and authorize use of their own DMV information in these areas of traditional state authority.
Second, the Court’s holding is hard to grasp and will be difficult to apply. The Court first suggests that “[t]he proper solution is to draw the line at solicitation itself,” to “exclud[e] [solicitation] from the activity permitted in (b)(4).” Ante, at 21. Backing away from this clear, if erroneous, solution, the Court settles on an inquiry into “whether obtaining, using, or disclosing the personal information . . . had the predominant purpose to solicit.” Ante, at 22. The Court’s cryptic discussion of its “predominant purpose” test inspires little confidence. See ibid. (the purpose “might be evident from the communication itself,” but “[c]lose cases may arise”). In truth, however, the line between a lawyer’s function as an officer of the court and her notice to, and solicitation of, new clients may be indistinct. See infra, at 17, n. 10.
Consider an attorney whose client has been the victim of a hit-and-run. The victim recalls the license plate of another car at the scene, which was also hit by the offending driver. In order to investigate her client’s case, and to ensure that “there is a supportable theory for a complaint,” ante, at 14, a responsible attorney would contact this second victim, who may be able to provide useful information about the incident. But the second victim is also a potential plaintiff in her own right. A communication might therefore be viewed by the state bar as falling within the rules for solicitation. See S. C. Rule of Professional Conduct 7.3(d) (2012) (solicitation rule applies to communications between an attorney and “a prospective client known to be in need of legal services in a particular matter”). 9 Under today’s decision, the attorney will be in an impossible position. Her duties to her client—and to the court to conduct a reasonable investigation before filing a lawsuit—instruct her to contact the potential witness. To avoid running afoul of the state bar’s rules, however, she may need to label any communication with the witness as a solicitation. But if she does that, today’s ruling would expose her to liability under the DPPA.
This example is not so far removed from the facts of this case. Petitioners conceded, both in their briefs and at oral argument, that the DPPA would have permitted respondents to contact the purchasers of cars to ask them whether they paid the unlawful fees. Brief for Petitioner 48; Tr. of Oral Arg. 14–15. Indeed, such an investigation was critical to pursuit and resolution of the Herron litigation. See supra, at 5. But in this case, as in the hypothetical case just posed, investigating the facts involved contacting people who might potentially become parties. And professional rules regarding solicitation may well apply to such communications.
Reality thus belies the Court’s pretense that a bright line separates solicitation from other aspects of a lawyer’s role as officer of the court. Perhaps aware that, in many cases, the line will be hazy or hard to find, the Court resorts to inapposite comparisons. The Court notes, for example, that it would be impermissible for a lawyer to use information obtained from the DMV to send out advertisements for “a book he wrote.” Ante, at 24. But no one would confuse bookselling with investigation in anticipation of litigation; such a use would be impermissible under any reading of (b)(4).
The Court’s disposition will require lower courts to parse whether every communication using DMV information in the course of litigation has solicitation as a “predominant purpose.” Ante, at 22. The holding in Maracich’s case, I fear, will, at a minimum, impede the efficient administration of state-court litigation and may well prove infeasible. 10 Cf. United States v. Jicarilla Apache Nation, 564 U. S. ___, ___ (2011) (slip op., at 18) (rejecting as unworkable a “case-by-case inquiry into the purpose of each communication” involving government attorneys in the administration of tribal trusts).
This case illustrates the problem. In truth, the letters served both as an investigative tool and as an invitation to car purchasers to join the Herron suit. How is the factfinder to determine which purpose was predominant? Toss a coin when the trier finds the answer is: “six of one, half dozen of the other”? As the Court of Appeals recognized, the use here, although qualifying as a solicitation, “was inextricably intertwined with investigation and prosecution of the Herron litigation.” 675 F. 3d, at 300.
Finally, the rule of lenity requires that we resolve any residual ambiguity in respondents’ favor. Petitioners sought $2,500 in statutory damages for every letter mailed—a total of some $200 million—and punitive damages to boot. Brief for Respondents 15. Such damages cannot possibly represent a legislative judgment regarding average actual damage. The Court’s opinion is wrong to suggest that the rule of lenity does not apply to governmental penalties so long as they are payable to private individuals and labeled “liquidated damages,” rather than “criminal fines.” Moreover, the DPPA, which appears in Title 18 of the United States Code, imposes criminal liability for a knowing violation of its provisions. 18 U. S. C. §2723(a). Because this is a civil case, I need not consider what defenses respondent-lawyers might have were they criminally prosecuted. But because we are interpreting a criminal statute, “it is appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of the statute’s coverage,” even in a civil case. Crandon v. United States, 494 U. S. 152, 158 (1990) . See also Leocal v. Ashcroft, 543 U. S. 1, 12, n. 8 (2004) (explaining that, if a statute has criminal applications, “the rule of lenity applies” to the Court’s interpretation of the statute “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”); Scheidler v. National Organization for Women, Inc., 537 U. S. 393 –409 (2003) (applying rule of lenity in civil case asserting claims under Hobbs Act); United States v. Thompson/Center Arms Co., 504 U. S. 505, 518 (1992) (plurality opinion) (applying rule of lenity in tax case); id., at 519 (Scalia, J., joined by Thomas, J., concurring in judgment) (agreeing with plurality’s application of rule of lenity); Acxiom Corp., 612 F. 3d, at 332, n. 5 (recognizing DPPA should be construed in light of rule of lenity).
The Court recognizes that there may be ambiguity in the (b)(4) phrases “in connection with” and “investigation in anticipation of litigation.” Ante, at 26. But it finds any ambiguity in these phrases resolved by the structure of the DPPA. Ibid. What “structure,” one may ask, other than an enumeration of 14 discrete exceptions, each permitting disclosure? See supra, at 11–12. The DPPA has been in effect for over 15 years, and yet the Court points to no judicial decision interpreting the statute in the way it does today. We should hesitate to adopt a novel interpretation of a federal statute that subjects parties to crushing liability. “[I]t is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U. S. 25, 27 (1931) (opinion for the Court by Holmes, J.). Respondent-lawyers were given no such fair warning.IV
The Court today exposes lawyers whose conduct meets state ethical requirements to huge civil liability and potential criminal liability. It does so by adding to the DPPA’s litigation exception a solicitation bar Congress did not place in that exception. Because respondent lawyers’ use of DMV information fits within the exception delineated in §2721(b)(4), I would affirm the Fourth Circuit’s judgment.
1 The Court is thus incorrect to suggest that, early on in the state court litigation, plaintiffs’ standing to sue all dealers was definitively settled. See ante, at 21. In fact, the state court left room for thedealer-defendants to renew their standing objection on completion of discovery.
2 The dealers thus were urging that additional plaintiffs were “necessary” to the maintenance of the dealer-conspiracy charge. Cf. ante, at 13 ((b)(4) permits contacting persons “who are necessary parties”).
3 The Herron litigation targeted a conspiracy to overcharge. Inquiries geared to discovering the victims of the conspiracy cannot plausibly be written off as entirely noninvestigative in character. The Fourth Circuit so comprehended: “[T]he [l]awyers were looking to build and bolster a case against the dealerships if their initial information from consumers proved the existence of plausibly systemic violations of the Dealers Act.” 675 F. 3d 281, 299 (2012). The Court asserts that the Court of Appeals “rejected respondents’ description of the letters as investigatory in nature.” Ante, at 25. That tells half the story. True, the Fourth Circuit disagreed with the District Court’s determination that “the [l]awyers were not engaged in [any] solicitation.” 675 F. 3d, at 293. But the appeals court twice clarified that, in developing the suit against the car dealers, the respondent-lawyers engaged in both investigation and solicitation; indeed, the Fourth Circuit described the two as “inextricably intertwined.” Id., at 294, 300. No place did the Court of Appeals find that the communications were solicitations only, not at all “investigative.” In asserting otherwise, ante, at 25, the Court indulges in wishful thinking.
4 Respondent-lawyers propose a broader reading of (b)(4), arguing that any use tied to an identified “transaction, occurrence, [or] defect” should be permissible. Tr. of Oral Arg. 58. Their reading, however, fails to account for all the words in (b)(4), most notably the provision’s focus on a “proceeding.” See Arthur Andersen LLP v. United States, 544 U. S. 696 –708, and n. 10 (2005) (destroying evidence of suspicious transactions could not give rise to liability under 18 U. S. C. §1512 unless done in contemplation of a particular proceeding).
5 Furthermore, a use consistent with federal law may nevertheless be impermissible. The State makes the ultimate choice whether to release DMV information for any purpose under (b)(4). See Tr. of Oral Arg. 42. States are well suited to policing attorney conduct, a sphere of traditional state authority.
6 The exception in (b)(1) covers uses by a State or entity acting on behalf of a State; (b)(2) covers uses for matters of motor vehicle or driver safety; (b)(5) covers uses in research activities; (b)(12) covers uses for surveys; and (b)(14) covers uses related to the operation of a motor vehicle or public safety, if authorized by state law. The degree of overlap among these provisions undermines the Court’s suggestion that the list should be read to avoid surplusage. Ante, at 20.
7 The placement of (b)(12) toward the end of a list of 14 hardly signals its special importance. The Court cites Reno v. Condon, 528 U. S. 141, 143, 148 (2000) , but the cited passages do not so much as suggest that (b)(12) is more central to the congressional purpose than other exceptions. From the text and history of the DPPA, it would be fair to say that the driving purpose of the Act was to prevent access to information by criminals and stalkers, while allowing access for legitimate governmental and business purposes. See supra, at 2–3. Giving primacy to (b)(12) is all the more questionable, for that exception was included not to proscribe, but to allow, some direct marketing. See Brief for Respondents 29. Absent the provision, the DPPA would permit no such use.
8 See 49 U. S. C. §31308.
9 Beyond debate, the solicitation here was permissible under South Carolina’s ethics rules. Petitioners do not argue otherwise. The Court considers this a “relevant,” but not “dispositive” factor. Ibid.
10 Suppose the state court had ordered respondents, as a condition of retaining certain defendant-dealers in the suit, to bring in purchasers from those dealers. Cf. supra, at 4–5. Under today’s decision, the lawyers’ compliance with the court’s order would place them at risk of liability under the DPPA. See ante, at 23 (recognizing that (b)(4) would permit an attorney to send class notice “pursuant to a court order,” but expressing uncertainty whether even a court order would permit the mailings here at issue). Congress could hardly have intended to create such a conflict.
ORAL ARGUMENT OF JOSEPH R. GUERRA ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We will hear argument next in Case 12-25, Maracich v. Spears.
Joseph R. Guerra: Mr. Chief Justice, and may it please the Court:
DPPA requires express consent when personal information in the DMV databases is used for bulk solicitation.
The express consent requirement is Congress's considered response to one of the core problems that the DPPA targets, and the litigation exception creates no exception for lawyers.
In fact, when Congress intended to create an explicit exception--
Justice Sonia Sotomayor: Does it create an exception for research?
Let's assume that a university wanted to do a research project and it needs subjects.
I get solicited for it all the time.
Does this exception apply to them, too?
Joseph R. Guerra: --Our view, Your Honor, as we indicated in our reply brief, is it would not because we believe (b)(12)'s consent requirement governs commercial bulk use of DMV information, which is clear from the fact that it's focusing on marketing and solicitation, and also from the history behind the statute, which is very much aimed at use of DMV information--
Justice Sonia Sotomayor: It says surveys, not just marketing or solicitations.
Joseph R. Guerra: --Yes it does, Justice Sotomayor.
Justice Sonia Sotomayor: I mean, there is a commercial component, but there appears to be a noncommercial component as well.
Joseph R. Guerra: We think, Justice Sotomayor, that this statute is sensibly construed to, under the noscitur a sociis principle that we are relying on elsewhere in our argument with respect to (b)(4).
But that same principle applies to the three things that the bulk solicitation -- the bulk use provision governs, and particularly when you look at the history underlying the statute which was very much aimed at use of the information for direct marketing.
And so, as I was saying, Congress made clear--
Justice Sonia Sotomayor: Does that apply to the States, too, when they want to market against drunk driving, they want to market against -- for their health insurance processes, versus private processes for State drug provided--
Joseph R. Guerra: --Justice Sotomayor, I believe what your first question -- your first example sounded like it was a noncommercial use.
I think that in the case where the State is acting as a commercial entity, the same rules we would -- we would apply with respect to lawyer solicitation would apply there.
And the reason I say that and the reason I think it's so clear that Congress intended that really lies in the language of subsection (b)(2), because there Congress made clear that it understood that these provisions are not wholly independent permissions and in fact that the consent requirement governs all commercial bulk use absent an explicit exception.
If you take a look, it's in the second page of the addendum to our opening brief, and it says that
"Personal information may be used in connection with matters of motor vehicle market research activity, including survey research. "
Congress included the survey research clause because a commercial bulk survey using personal information would otherwise be governed by (b)(12)'s consent requirement and so Congress had to make clear that it was creating an exception for one industry to engage in this one particular type of bulk use.
And the reason we know that the survey research clause means that is because under Respondent's interpretation it has no affect whatsoever.
If, as they say, each of these clauses is wholly independent and sufficient to authorize whatever it covers, a phrase covering
"in connection with matters of motor vehicle market research activities. "
would in and of itself cover the subset of motor vehicle market research survey research.
So to give that clause any effect you must understand that it's overriding the express consent requirement of (b)(12) and -- such that you now have to, when you look at the other provisions that might authorize bulk commercial use, find a comparably explicit authorization.
And you can't find that in (b)(4).
(B)(4) says nothing about solicitation, much less bulk solicitation.
Justice Ruth Bader Ginsburg: It says anticipation of litigation in connection--
Joseph R. Guerra: Yes.
Justice Ruth Bader Ginsburg: --Not only ongoing litigation, but it can be used in connection with anticipation of litigation.
Joseph R. Guerra: Yes, Justice Ginsburg.
But my point is that in (b)(2) you find an explicit authorization for survey research, which is one of the very three topics covered in (b)(12) itself.
When you look at (b)(4), you don't see anything about solicitation, which is the kind of explicit override that (b)(2) indicates Congress wanted or is necessary in order to conclude that another subsection overrides (b)(12)'s express consent requirement.
Justice Elena Kagan: Mr. Guerra, I have to admit that given what a mess this statute is, those three words don't quite do it for me.
So, the argument against you, right, as using (b)(12) to define (b)(4), is that, look, this is just a list of exceptions to a general prohibition and no one is more general or specific than any other, and all you have to do is fit within one of them.
And it doesn't matter whether you don't fit within two of them if you don't fit within one of them.
So then the question would be are you covered by (b)(4) or not?
If not, are you covered by (b)(12) or not?
Joseph R. Guerra: Well, Justice Kagan, with respect, number one, I don't think you can so readily dismiss the interpretive import of those three words, because they don't have any function other than to override the express consent requirement in (b)(12).
And if there is no need -- if (b)(12) doesn't apply to any other subsection, there is no need to be overriding it in (b)(2).
But we don't rely solely on the force of those three words.
It's also the case that (b)(2) -- excuse me, (b)(12) is one of the core provisions of the statute in the sense that it's aimed at one of the fundamental problems that prompted passage of the Act in the first place, which was DMV's collecting information, then making it available to direct marketers.
And so you are in a situation where you've got a core restriction aimed at a core problem this Act is designed to resolve, but whereas (b)(4) is one of the few subsections that authorize access to the most sensitive information that Congress -- excuse me, that DMV were collecting.
Chief Justice John G. Roberts: It's kind of hard to argue, when you have (b)'s (1) through (14), that (b)(12) is the core provision.
Usually it's 1 of 14 items in a list.
Joseph R. Guerra: Mr. Chief Justice, what I mean by that is that we know it's core in the sense that it's aimed at one of the core problems that Congress was addressing.
And (b)(4), by contrast, is one of the few provisions in which Congress authorized access to the most sensitive information DMVs collect, such as medical and disability status and Social Security numbers.
And we submit it's simply implausible to think that a Congress concerned with undue public/private access to DMV information would in the same statute grant lawyers the right, a unique right, to use that highly sensitive information in order to engage in bulk solicitation.
And in fact, the legislative record here is devoid of any evidence that Congress was aware that lawyers ever made use of DMV information for solicitation, much less -- or that they contemplated it, much less that Congress made a conscious decision to allow them to--
Justice Ruth Bader Ginsburg: You recognize that you could use (b)(4) to identify class members?
Joseph R. Guerra: --We do, Your Honor.
And that is because that is not a solicitation.
The last notice is advising people who are not aware that there is pending litigation that could affect their rights.
Justice Ruth Bader Ginsburg: So if it's a solicitation, suppose this information was a recent automobile purchaser was asks: Did you buy a car recently?
Were you charged this additional fee?
That would be okay?
Joseph R. Guerra: Your Honor, yes, it would be okay -- well, let me just say--
Justice Ruth Bader Ginsburg: That would come under (b)(4).
Joseph R. Guerra: --Justice Ginsburg, if I may just qualify my answer, yes, if you were investigating claims on behalf of a potential client.
I don't think -- I don't think people can just go down to the DMV and answer questions of personal interests to themselves, or lawyers for that matter.
But that is an instance in which you are simply engaging in investigation, assuming that you are investigating a possible lawsuit, and not a circumstance in which you are engaging in solicitation, and that is the fundamental difference.
Justice Anthony Kennedy: Well, aren't we going to be told the whole essence of the class action is you have to see if there is an injury that goes beyond some particular clients that you know.
And isn't this -- isn't this investigation in anticipation?
Joseph R. Guerra: Your Honor, Justice Kennedy, if they had limited their activities to conducting an investigation to determine the scope of a potential claim, we would have no quarrel with that.
Justice Anthony Kennedy: Well, the anticipation is, are you willing to join the class?
Isn't that critical?
Joseph R. Guerra: No, Justice Kennedy, I don't think so.
And I think the point of (b)(4) is it's focused on proceedings, not on lawyers, and it's asking -- its basic goal is to ensure that tribunals can do their job.
Justice Anthony Kennedy: Well, I do think you are helped somewhat by the chronological progression here, including the service of process, which means the case has already started, and then investigation in anticipation of the litigation that follows the service of process.
So it is true that there is a chronological aspect.
In order, it seems to me, for the Respondents to prevail they have to say that investigation in anticipation of litigation also precedes service of process.
Joseph R. Guerra: They would, and I think they do make that argument, Justice Kennedy.
My point is that the focus of (b)(4) is on the tribunals in ensuring they can have the information that they can do their job, which is to make and enforce judgments.
Lawyers get information under (b)(4) when they act as officers of these tribunals, not for their own commercial benefit.
Justice Elena Kagan: Mr. Guerra, where do you get that from in (b)(4), this focus on tribunals rather than lawyers?
Because the investigation is done by lawyers, right?
And that's a critical part of (b)(4), so where does that come from in the statute?
Joseph R. Guerra: It comes from the phrase
"for use in connection with any civil, criminal, administrative or arbitral proceeding in any Federal, State or local court or agency. "
Justice Elena Kagan: But then it includes things that are clearly done by lawyers.
Joseph R. Guerra: Right.
My point is that lawyers get access when they act as officers of those tribunals, not for their own commercial self-interests.
And an investigation in anticipation of litigation is an obligation that all lawyers have to ensure they have a well-founded factual basis for bringing a lawsuit in the first instance.
Justice Anthony Kennedy: Well, are -- are you saying that the study must be either a solicitation or an investigation, it can't be both?
Why can't it be both?
Joseph R. Guerra: Because, Justice Kennedy, the DM -- the DPPA is designed to -- it was aiming at a fundamental problem of private individuals obtaining the DMV information for commercial solicitation purposes.
And Congress, we know, wanted to stop that within the absence of consent.
So -- by the same token, they wanted to make sure that they weren't intruding on the information that courts and other tribunals need to do their jobs.
And so the distinction is, you can engage in an investigation because that's acting as an officer of the court in order to help the court ultimately render its judgment.
Justice Ruth Bader Ginsburg: I want to make sure I understood your prior answer.
You said, I thought, that it would have been okay to get the information from the bureau and then ask, did you buy a car recently?
Did you have this additional charge?
Now, suppose -- you said that was all right.
Joseph R. Guerra: Justice Ginsburg, I apologize if I am not making myself clear enough.
The vital distinction is between investigative activity to ensure that you have a well-founded basis to file a lawsuit, versus solicitation--
Justice Ruth Bader Ginsburg: Well, isn't that -- wasn't that crystal-clear here, because the dealers were saying, you can't go forward unless you have a plaintiff to match every dealer.
You're trying to bring a representative action, but your list of plaintiffs, none of them bought from Dealer Z.
So, we are investigating to see if we can have a representative action with a line-up of plaintiffs, each of whom has purchased from a list of defendants.
Joseph R. Guerra: --Justice Ginsburg, determining that there are -- there are enough plaintiffs to justify a class or group action is the investigative activity, but when you go on to invite them -- and the Fourth Circuit ruled that these letters were solicitations, and that ruling is not before this Court--
Justice Ruth Bader Ginsburg: Suppose we had -- it was limited to -- to class notice -- somebody who--
Joseph R. Guerra: --Justice Ginsburg -- I'm sorry, to interrupt, but something distracted my -- I couldn't hear the beginning of your question.
Justice Ruth Bader Ginsburg: --We have just those questions, no -- are you interested in joining a lawsuit, please call us.
But somebody who receives this notice, it just asks, did you buy a car, do you pay the charge, then calls the lawyer's office and says, tell me something about this letter that you told me -- that you -- you sent to me.
And how does the lawyer answer?
Joseph R. Guerra: If the lawyer answers by asking investigative questions, when did you buy the car, were you charged these fees, were you advised, were they prominently displayed, all of which is in gathering information for the lawsuit.
And the lawyer is engaging in permissible investigative prefiling activity--
Justice Sonia Sotomayor: --If the lawyer had said more -- did you buy a car, did you get charged the fee, we're investigating this to determine whether this is -- violates the law.
Is that okay?
Joseph R. Guerra: --It still is, Your Honor.
The critical line--
Justice Sonia Sotomayor: So the only -- the only thing that's bad is to say, come call us for a consultation?
Joseph R. Guerra: --If you were interested in participating as -- in this proceeding.
Justice Sonia Sotomayor: So what's the difference between that and how you answered Justice Ginsburg when she said class notice would be okay?
Joseph R. Guerra: --Because class notice is not a proposal of a relation -- a commercial transaction.
It is noticed--
Justice Sonia Sotomayor: Wait a minute.
It's joining the class or opting out.
Joseph R. Guerra: --Correct.
Justice Sonia Sotomayor: And when you join the class, you have a commercial relationship with the lawyer no different than being a named plaintiff.
Joseph R. Guerra: But the function of class notice is not to enable class lawyers to solicit clients.
It is to enable courts to render binding judgments and to satisfy due process requirements so that people unaware of a litigation do not have their rights forfeited.
That is fundamentally different than soliciting clients.
And I realize that--
Justice Elena Kagan: Well, that distinction -- I understand that you are deriving some of it from (b)(12), but if I -- just assume with me that (b)(12) has nothing to do with anything, and you were just limited to (b)(4), can you find that distinction in (b)(4)?
Joseph R. Guerra: --Your Honor, I think the point here is that if you look at the conduct that is specified in the three examples, it is all activity that lawyers would be engaging in as officers of a court, and this Court has repeatedly recognized that there is a fundamental difference between lawyers acting in their own commercial capacities as opposed to officers of a court.
Chief Justice John G. Roberts: How -- how is somebody conducting an investigation in anticipation of litigation -- hasn't started yet -- acting as an officer of the court?
Joseph R. Guerra: --Because they're discharging their responsibility to ensure that they bring well-founded claims and don't file suits -- I mean, under Rule 11, you have to have a well-founded factual basis for the allegations in the complaint.
So you need to--
Chief Justice John G. Roberts: Well, that just seems to me to be saying that lawyers are always acting as an officer of the court--
Joseph R. Guerra: --Mr. Chief Justice, with respect--
Chief Justice John G. Roberts: --when you're preparing a discovery request, when you're -- anything -- anything that the officer functions--
Joseph R. Guerra: --I think most times when you are in -- engaging in litigation or pre-filing an investigation, that would be true, and that would be all protected under (b)(4).
The difference is -- there is a -- there is a distinction.
This Court has recognized that lawyers have multiple capacities.
They wear three hats.
They are -- they represent clients, they're officers of courts, and they're commercial actors--
Justice Elena Kagan: Mr. Guerra, don't you think -- I mean, I understand the distinction.
The lawyer as commercial actor versus lawyer as officer of the court.
But, boy, it's hard to get that from the words here.
I mean, that seems like the kind of old-time legislative interpretation, where we just figured out the statute that we hoped Congress would have written as opposed to the statute that it did.
I mean, tell me where that distinction is in this provision.
Joseph R. Guerra: --Well, Justice Kagan, for one thing, I think that even if you decide that (b)(12) is not governing (b)(4), it's still part of the statute, and it still demonstrates that Congress was concerned about people using DMV information in order to engage in commercial activity.
So the question then is here's (b)(4), which says, we're authorizing use of information for use in tribunals.
There's no mention of lawyers here.
And so the question is -- and this provision authorizes use of the most sensitive information that DMVs collect.
So the question you have to ask yourself is, in light of (b)(12) and the fact that we know Congress was trying to stop use of DMV information for non-consensual solicitations, is it reasonable to think that this clause authorizes lawyers to use disability status and medical information in order to go find and solicit clients.
And I submit it is not, particularly if you take the same broad reading that Respondents argue for, the in connection with language, and you apply that to (b)(6) and (b)(10), then you have these truly incongruous results, where this Court in Condon recognized that insurers were one of the purchasers of the information that DMVs were selling and using it to direct market, and yet in connection with underwriting, we've demonstrated that would mean that that is an activity in connection with the business of insurance.
Justice Anthony Kennedy: Well, I understand your argument about (12), but I do think that you ought to assume we might interpret this statute so that each of these is independent, and you have to concentrate on (4).
You keep going back to (12) when we're talking about (4).
If you talk about (4) for a minute, it seems to me that you might give away too much, because a statute says including service of process, which means the suit has to begin, and then investigation in anticipation of the litigation that will follow after the suit is filed.
But you seem to give that away.
You seem to think that investigation in anticipation of litigation can be before the suit is filed.
You -- you seem to concede that.
Joseph R. Guerra: Justice Kennedy--
Justice Anthony Kennedy: I don't know why you concede that.
Joseph R. Guerra: --I guess I've never understood that -- after service of process, it's still in anticipation of litigation.
It's been my understanding that service of process--
Justice Ruth Bader Ginsburg: It doesn't necessarily follow, that they are describing only what goes on in the court.
If you just took the phrase investigation in anticipation of litigation, in anticipation of sounds like before litigation begins.
Joseph R. Guerra: --I am not disputing that, Justice Ginsburg.
My point is, though, even the (b)(6) and (b)(10) examples I just gave, Justice Kennedy, don't -- it's not a reliance on (b)(12) anymore, it's just demonstrating why it's implausible to think that the phrase in connection with should be read so literally that it authorizes anything that can be shown to have a connection with the subject matter.
Justice Sonia Sotomayor: You -- you said earlier, and it set me to thinking, that why would in anticipation of litigation permit access to all of this very personal information?
And I don't know that, yes, it does permit access, but only in anticipation of litigation.
So you have to prove before you get things like Social Security Number, driver -- anything else -- all they asked for was names and addresses, I understand.
Joseph R. Guerra: Justice Sotomayor, that's true in this case, but if you read before, the way Respondents are asking you to read it, there's no limitation in the statute that says--
Justice Sonia Sotomayor: Well, yes, there is.
There is a limitation that you're actually going to use it in relationship to the litigation, number one.
And the States are obligated to ensure that what they release is actually covered by one of these exceptions.
Joseph R. Guerra: --If you interpret (b)(4) to authorize access to lawyers in connection -- based on the theory that it's in connection with some litigation, they will have access--
Justice Sonia Sotomayor: You have to explain why.
Joseph R. Guerra: --The request in this case simply said pursuant to (b)(4) of the statute.
Justice Sonia Sotomayor: No, no, no.
As I read, the first one is: We want to see if there is a pattern of overcharging; give us the names and addresses of people who have recently bought a car.
That seems to me pretty specific as to what they want and why they need it.
And I think it's pretty easy for the State to say -- to--
Joseph R. Guerra: Justice Sotomayor, two points.
The request that followed after the first two said nothing of the sort, and the State gave me information.
It just said pursuant to the subsection that we're talking about right now.
In addition, there is no reason why lawyers couldn't go in and say: I would like to identify -- I am investigating whether people have claims for a disability claims or based on their medical status, and I would like information of that ilk from the DMV.
(B)(4) authorizes the provision of that information.
And it doesn't say that there has to be some heightened showing by -- by the lawyers in order to obtain it.
Justice Elena Kagan: Mr. Guerra, suppose I am a lawyer and I want to bring a toxic tort case, and I am really -- I am looking for witnesses who have the same kind of symptoms as my client had.
And so I put out a letter saying, you know, have you have been exposed and -- and tell me about it so that I can find out if you are a good witness.
And, you know, if you have, I would also like to represent you.
Would -- would that count?
Joseph R. Guerra: Two points, Justice Kagan.
The first is that you have highlighted why this is such a unique loophole for one very discreet class of lawyers.
Most -- toxic tort lawyers cannot go to a DMV and say: I need the names and address of people.
Justice Elena Kagan: Well, I guess what I was suggesting was that if I was just asking for witnesses, you would have to say that that was included by (b)(4).
Is that right?
Joseph R. Guerra: I do.
I do acknowledge that.
Justice Elena Kagan: Now, the court -- the lawyer is saying in addition to your help as a witness, if you have the same symptoms, you know, you can join the suit.
Joseph R. Guerra: And I think that that's an improper use.
The Congress did not create this authorization to go down to get the most sensitive information in order to enable lawyers to find clients more easily than they might otherwise find them.
And so investigation in anticipation of litigation is one use that Congress authorized and, as I have suggested, it's a use that helps a lawyer discharge his or her responsibility to a court.
Justice Ruth Bader Ginsburg: I don't know why this case doesn't fit that description, because the position that the dealers were taking was, you can't -- you ought to maintain a representative action.
The State has such an animal, not quite a class action, representative action.
To qualify, the group must be numerous.
So how am I going to find out if it's numerous without asking these questions?
Joseph R. Guerra: --You can ask every question up to, would you like to be a plaintiff in the lawsuit, and that would be fine.
That's the dividing line.
Justice Ruth Bader Ginsburg: Might that get the lawyer into some difficulty with the bar association?
They'll look at this and say: Look, we told you if you are -- if you are seeking clients, then you have to put advertising material.
And a letter like that would tip the recipient off to: Something is going on, I should find out about it and maybe I should join it.
Joseph R. Guerra: Justice Ginsburg, I think that the fact that that might trigger an obligation to make a disclosure is not dispositive of whether it's a solicitation.
It would still be an objective factual inquiry.
And if there were no indications in the letter that someone is being invited to join a lawsuit, then it would be permissible investigation.
I would like to point out, though, in terms of why they needed this information.
These lawyers filed suits initially against dozens and later against hundreds of defendants where they had no client with any claim against that defendant.
Then they went to the DMV and they found over 30,000 names and addresses and sent out what the Fourth Circuit determined were solicitations in order to get clients in the claims they already improperly asserted.
They did not need that information to indicate the interest of the named plaintiffs they already had.
Those people had standing to sue--
Justice Ruth Bader Ginsburg: But then there is a whole string of defendants who were doing the same thing, the same allegedly unlawful practice, they couldn't reach without getting additional--
Joseph R. Guerra: --But their -- their clients have no interest or need to reach those other dealerships.
They have a claim against the dealers with whom they dealt--
Justice Ruth Bader Ginsburg: --But their client as a group, this is not an individual act--
Joseph R. Guerra: --That's true, Justice Ginsburg.
Justice Ruth Bader Ginsburg: --The statute says for the benefit of the whole.
Joseph R. Guerra: And the South Carolina State court said that each named individual could sue for the benefit of everyone who dealt with the same dealer that that plaintiff dealt with.
So there is no inconsistency.
And, of course, even if they want to try to affect the conduct of the dealerships with whom their clients never dealt with, they could still get declaratory relief.
I would like to reserve the balance of my time.
Chief Justice John G. Roberts: --Thank you, counsel.
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENTS
Paul D. Clement: Mr. Chief Justice, and may it please the Court:
The DPPA is an unusual statute.
It directly regulates the State's use of their own databases and imposes massive civil liability and criminal penalties for violations.
It regulates it in a relatively distinct way, which is it makes disclosures presumptively unlawful, but then has 14 permissible use provisions for which the State may, not must, but may disclose the information.
The scope of those 14 permissible use provisions then becomes quite important for determining whether or not a statute that was originally designed primarily to regulate the commercial sale of DMV information becomes intrusive into matters of traditional State regulation or imposes massive liability without the requisite clarity.
Now, I would have thought that it was fairly clear that, but for a resort to the specific controls the general canon, that all of the activity at issue here comes comfortably within the language of (b)(4), because if you look at that language, it is remarkably broad.
Congress uses the word any three times.
It uses in connection with, which I think we all know is a term of breadth.
And then it uses including and uses illustrative examples.
And I think the only thing that really brings these examples together is Congress seems to be covering the litigation process from cradle to grave.
Chief Justice John G. Roberts: One thing we also know about the in connection with language is we have said, it can't really mean in connection with as broadly as that -- the Morales case, I guess, it has to have a more narrow meaning.
Otherwise everything would be covered.
Paul D. Clement: Mr. Chief Justice, that's exactly right.
But the whole reason you have to have some limit is because it's presumptively quite broad.
And if -- I mean, for those who look at legislative history, the evolution of this provision, it was changed twice in the legislative process.
And it started out that Congress was going to have a permissible use just for use in litigation involving motor vehicles.
Then they dropped motor vehicles and just said use in litigation.
And then in the final iteration, they said use in connection with litigation.
So clearly they were trying to broaden it.
Now, I would be the first to admit that there has to be some limit, and we certainly wouldn't say, for example, that if lawyers, you know, decide in this case, well, you know, we got this DMV information for perfectly legitimate purposes involved in a litigation, but now we are sitting on a gold mine, so we should try to sell these same people floor mats or wiper blades or something.
I mean, of course they can't do that.
So there are limits.
But I think--
Justice Stephen G. Breyer: Can they do this: Can Lawyer Smith say, you know, there are some products in this State that I really suspect are not being properly made and I have probably a tort suit; and the damages are awfully small; I would like to get 10 or 20,000 plaintiffs.
I wonder if there is anybody interested.
And then what he does, I have to write them a letter and I know where I can get the names and addresses, from the DMV.
So he goes to the DMV and says: I would like the names of everybody who -- I'd like all your names and addresses, and I intend to write them all and send them a letter and say: I suspect there is some fishy business going on here in the dress manufacturers; would you like to tell me about what happens?
Is that possible?
Can they do that.
Paul D. Clement: --It may or may not depending on where you draw the line.
But can I say something before we talk about that?
You know, if they are really trying to go after the dress manufacturers--
Justice Stephen G. Breyer: Yeah.
Paul D. Clement: --they can go to the phone book, they can go to the title records office, there is lots of places they can go if what they want is just general information about people.
And the only State database that Congress has seen fit to regulate is DMV databases.
Justice Stephen G. Breyer: Maybe they -- maybe this is all passe.
Maybe -- perhaps they could get this information elsewhere, but I guess we have to deal with this statute--
Paul D. Clement: But, Justice Breyer, that's part of the reason I'm pointing--
Justice Stephen G. Breyer: --So maybe what they want is they want the names of all the people who've ever had a car, you know, because they think there's something special about a car, and they think that's going to be connected.
But you see what I'm driving at.
Paul D. Clement: --I--
Justice Stephen G. Breyer: You have no lawsuit, but you are going to get one if you can, and you have grounds for thinking that there is some suspicious defendants and what you are looking for is plaintiffs.
Paul D. Clement: --Sure.
Justice Stephen G. Breyer: All you are looking for is plaintiffs.
Now, can you under this statute go and get the information where all you are looking for is plaintiffs for your lawsuit?
So far, you know how many plaintiffs you have?
Paul D. Clement: --I think actually the best answer at the end of the day is it depends on whether you are focused on a specific transaction, occurrence, defect.
So I think you might ultimately--
Justice Stephen G. Breyer: Is your answer what I have in my mind -- I'm just repeating the same question.
I will do that, I have some reason for thinking there are a whole bunch of defendants here who have done something wrong.
All I am lacking is a plaintiff and what I want to do is get the names of potential plaintiffs.
It's the same question.
I have asked that three times.
Either you can, in your view, get it under this lawsuit or you cannot.
Paul D. Clement: --I would say the best answer is that you can.
If you don't like that answer and you want to draw the line in a different place--
Justice Stephen G. Breyer: No, no, I'm not liking or disliking--
Paul D. Clement: --Well, here's the thing.
I think there is a couple of places you could draw the line, and I think there is a line drawing question any time you have language like in connection with.
The first would be, okay, I'm lawyers and I want to get clients for litigation.
You could say, well, that's enough of an in connection requirement so you can use that.
I would say that that's probably on the other side of the line.
But you could just say that's close enough.
The other place you could draw the line is when you have a specific transaction, occurrence, defect, so that there be would be a difference.
If I get this information and send people letters and say, I see you bought a new car in the last two years.
You know, there is a lemon law in this state--
Justice Stephen G. Breyer: --Now, that's your -- now, that's the line.
As to some of these defendants what he's saying is these lawyers had no client that my defendant hurt.
And as to some of these but not all the requests, all they were doing was they were looking for somebody who bought a car from me, and the reason they want that is to ask them what the practice was so they can get a plaintiff to do what the complaint is about.
So it's at least one or two of the requests are like that.
Paul D. Clement: --No, they are not in the following sense, Justice Breyer.
Just to understand kind of the chronology here.
No request -- FOIA request is made at all here until my clients have been approached by individuals who are complaining, okay?
No letter goes out until the litigation is actually filed.
Now, they want to say--
Justice Stephen G. Breyer: Now, repeat to me -- I've got your point, you have don't have to prove it to me.
What I'm trying to get at is the statement that I could write in an opinion that will draw the boundary of this provision south of, well, the lawyer can go out when he has reason to believe that a defendant has done something wrong, and to use a pejorative, troll for clients.
Paul D. Clement: --Right.
Justice Stephen G. Breyer: I want it south of that, and now you will tell me the words I can use that will both help your client because they will cover this case, but will also be south of that.
Justice Antonin Scalia: What is south?
I don't have a compass here.
Justice Stephen G. Breyer: South means -- south means it does not -- you can't just go and troll for clients simply because you think a defendant has done something wrong, and you have no client.
Paul D. Clement: If you want to draw the line south of the trolling line, then I think what you would say is this is an easy case because no communication took place until my clients had a client.
And they want to say, wait a second, your clients didn't have a beef with the other dealers.
At all times in this suit they had a conspiracy claim against those other dealers.
So even as to the individuals they already represented, they had a beef with those dealers.
Justice Anthony Kennedy: I want to interrupt for just one moment.
I may have misheard or you may have misspoke.
I thought you said that no requests were sent until the suit was filed but the request was -- the first FOIA request was June 23rd, 2005; the second FOIA request was August 24, 2006; and this Herron suit was filed August 29, 2006.
So letters were sent before the suit was filed.
Paul D. Clement: A FOIA request was made before the suit was filed.
No letter to a potential witness/client was sent until after it was filed.
Justice Anthony Kennedy: Yes, but the FOIA suit was made before the suit was filed.
Paul D. Clement: Sure.
And the FOIA -- the two FOIA requests that were made beforehand were specifically noted that they were in anticipation of litigation and they were investigating, as Justice Ginsburg suggested, as they needed to under State law, whether this was a widespread practice.
Justice Ruth Bader Ginsburg: Suppose you -- you said that you had a few people came and complained to the lawyers and then the lawyers wanted to see how widespread this was.
Suppose the lawyer herself bought a car recently and she got this administrative fee, and now she has no clients who have approached her but she would like to find out how many similarly situated people there are so she can get one of these representative actions going.
Could -- on that basis would it be permissible to use -- would that come under the litigation exception?
Paul D. Clement: I think it would, Justice Ginsburg, because I think that when you are trying to figure out where to draw the line you look to the words in the statute which you know that investigation in anticipation of litigation is covered.
And I would think that would fit comfortably within investigation of anticipation of litigation.
Chief Justice John G. Roberts: It would be -- it would be a very poor lawyer who couldn't figure out how to write the letter he's going to send out in a way that it could not be said to be investigation as opposed to solicitation.
If you have a problem with the windshield wipers, you just send a letter saying, there is this big problem with windshield wipers.
I am a lawyer, I'm representing, or I hope to represent or I will represent a group of people who have this problem and I think we will recover some damages.
Would you like to be a witness in this case?
That is in anticipation of litigation, but it's also quite plainly an effort to solicit clients, not just witnesses.
Paul D. Clement: I couldn't agree more, Mr. Chief Justice, which is why the line can't really be between investigation in anticipation of litigation and solicitation in anticipation of litigation.
Because that is too thin a line to make a $200 million difference.
Chief Justice John G. Roberts: Where is the line?
Paul D. Clement: The line is whether or not it is in anticipation of litigation or in connection with litigation--
Chief Justice John G. Roberts: No, that's the words of the statute.
I'm trying to figure out what they mean.
If you think there is some type of solicitation that the statute was meant to prohibit, how do you draw a line that prohibits that but allows the sort of thing that you want to do?
Paul D. Clement: --I think the way you do is you would basically say that when they are saying in anticipation of litigation they mean in anticipation of a particular litigation, particular problem, and so it's different--
Chief Justice John G. Roberts: That doesn't have to be filed in court, that may just be--
Paul D. Clement: --Oh, absolutely not.
Chief Justice John G. Roberts: --residing in the brain of any lawyer who's looking for work.
Paul D. Clement: --They are concerned about a particular thing, and I think the in anticipation of litigation language, I mean, that's not the only time you have ever seen it before--
Justice Antonin Scalia: It's not just that language.
It's investigation in anticipation of litigation.
If I understand you correctly, you are saying investigation includes solicitation.
Paul D. Clement: --It--
Justice Antonin Scalia: Isn't that your position?
Paul D. Clement: --I think it is, though I guess my point would be even if you can identify some solicitation that is not investigation, as long as it's in connection with litigation it's in (b)(4), and then I think--
Justice Stephen G. Breyer: So you are saying that really this is a -- the way the statute works is it says nobody can solicit but for lawyers, and that's not -- that makes more sense than you might think, because this was not a statute that was meant to interfere with solicitation rules, it was meant to interfere with commercial selling.
And that's what this is about, and there is a requirement, the requirement as to the lawyer, in good faith, has to believe that if he finds a client there's a case.
Paul D. Clement: --I agree with everything except the first thing you said which is that this is a prohibition on solicitation.
If you look at the structure of the statute, it says presumptively you can't use this for anything, and then there are 14 permissions.
And some of the permissions, like (b)(4), are unconditional.
If you come within (b)(4), you get to use it.
Now, when you get to the end of the statute, which I respectfully suggest is not where you put the core provisions, it's where you put the less favored provisions, then you have in (b)(12) a conditional permission that you can use it but only if you get consent.
Now, the thrust of their position is if you are in one of the unconditional permissions, but you also are presumptively in one of the conditional permissions, somehow that condition from (b)(12) hops over to (b)(12) -- (b)(4) and says--
Justice Antonin Scalia: I don't think that is fair.
I think their position is to harmonize (b)(4) and (b)(12), you have to interpret investigation not to include solicitation.
Because otherwise you have a conflict, that (b)(12) prohibits solicitation unless you have the consent, whereas, (b)(4), which says investigation, does not require consent.
Now, the two exist in perfect harmony if investigation does not include solicitation, but there is a discrepancy between the two if it does include solicitation.
And you have to say, well, this is an exception from (b)(12).
Paul D. Clement: --No, you don't.
There is no discrepancy.
A conditional -- like you get a green light for use in litigation.
You get a yellow light for solicitation.
If you have solicitation in connection with litigation, you're covered by both, you take the green light, there is no conflict.
And the premise for your discussion was we have to harmonize.
I would take issue with that.
If you look at these 14 exceptions, there is tons of overlap in them.
Congress is not telling you that each of these 14 exceptions is an exclusive area and you have to find out which field is preempted by (1), (2), (3), (4), (5), (6), (7).
If you look at (b)(1) and (b)(4), there is complete overlap.
One of the things I would take issue with is my brother said that well, (b)(4) is about the tribunal.
No, it's not.
(B)(1) is principally about the tribunal.
(B)(1) is the provision that talks about government actors and their functions, and it specifically talks about torts.
Justice Samuel Alito: (B)(4) is about -- (b)(4) is about very sensitive information.
You're talking about people's Social Security numbers.
You're talking about whether the person has a disability that they may not want to disclose to the general public, a person has Parkinson's or epilepsy or is diabetic.
So you're saying lawyers, they get all that stuff.
Nobody else can, but lawyers are a privileged class and they get it.
Paul D. Clement: Justice Alito, it is important to recognize lawyers presumptively get it under Federal law, but Federal law is only a floor.
And so let's take Social Security numbers, please, because, sure, as to (b)(4) and (b)(1) and two other provisions Congress says presumptively, you can get Social Security numbers.
You know what the State of North Carolina says?
You never get Social Security numbers unless you have a court order.
They put that right in their State FOIA law.
So that is just another example of how -- this is a Federal floor.
States can release this information.
They don't have to.
And to Justice Breyer's point, it makes sense that you would distinguish between an attorney who is subject to the bar discipline, is subject to oversight and solicitation process, and treat that solicitation differently from a solicitation by a direct marketer, which is what (b)(12) is clearly aimed at, not the practice of law.
Justice Stephen G. Breyer: The difficulty that Justice Alito brings out is -- I see your interpretation, and I hope the other side will give me some line, because they have the same problem in reverse.
What is the line?
But your way, it doesn't become that much of a privacy statute.
It's sort of a misnomer.
It's a statute that is designed to prevent the commercial use of your -- of this personal information.
It's not really a privacy statute.
Paul D. Clement: It's certainly not an all-purpose privacy statute.
I do think that's fair.
The principal thing they were concerned about, of course, is that you could look at somebody's license plate and indiscriminately go down, pay a fee, and get their home address.
Now, the one thing we know from (b)(4) is, if a lawyer wants to do that exact thing to serve process, the lawyer gets to do it.
You can get somebody's license plate, go to the DMV, get an address and serve process.
They specifically preserve that.
So we know as to the core of the statute they treated lawyers differently.
They were also concerned with direct marketers taking this information and using it to market people.
But I don't think you'd lump lawyer solicitation in anticipation of litigation, which may put some limit on it, together with that.
Justice Anthony Kennedy: But in anticipation of litigation does come after service of process, and an additional way to harmonize this statute with (12) is to say that after the suit has been filed, then in anticipation of the litigation that that suit will engender, then you may get the information.
But you didn't do that.
Paul D. Clement: There's two problems with that way of looking at the statute, I think I would respectfully suggest, Justice Kennedy.
One is, we are talking about items on an inclusive list, so even if you took your premise that the anticipation of litigation in that list somehow is anticipation post service of process, which I want to come back to, even if you took that position, they are just things on an inclusive list, and so it wouldn't stop you from saying that the ultimate test here is whether it's in connection with litigation.
But I guess I would go back to that and say I've never once thought that investigation in anticipation of litigation was something that would take place after service of process.
I thought -- I mean--
Justice Anthony Kennedy: That's the way the statute's written.
Paul D. Clement: --Yes, but I don't think that that was an intentional thing on the Court's part, that we're going to name these and we're going to name them in chronological order.
If they tried to do it, I think they got it wrong.
Justice Sonia Sotomayor: Mr. Clement, I'm not sure I'm satisfied with the answer you gave to Justice Scalia.
He said: Look, we've got to harmonize; instead of general-specific, solicitation of clients is different than investigation, and we just say they're mutually exclusive.
It is a little bit of a general and specific.
And that's proven by (b)(2), because when (b)(2) wants to permit solicitation it expressly says it and they didn't expressly say solicitation in (4).
That's I think your adversary's main argument.
And I'm still not sure I'm comfortable with the answer you're giving.
You're saying they're independent, but why are they necessarily conflicting?
Paul D. Clement: Last word conflicting?
Justice Sonia Sotomayor: Conflicting, exactly, or conflicting or overlapping.
I guess why are they necessarily overlapping?
Paul D. Clement: I think they are necessarily overlapping.
And I guess I would point to several things.
First of all, the language in (b)(2) I don't think helps them nearly as much as they do.
I think that language in there about survey research, like much language in many statutes, maybe avoids the marketers or -- the motor vehicle marketers from having to be here in a lawsuit, because it removes all doubt about it.
But I think they would be covered even without those words.
But the point is, you may say, well, that's horrible, that's superfluous.
But no; if you look at the way the statute operates generally, there's lots of overlap.
So this isn't a context where you want to make sure that there is no overlap and everyone operates independently.
I pointed to (b)(1) and (b)(4).
They both cover courts and litigation.
If this Court uses DMV information in its opinion, it's covered by (b)(1), it's covered by (b)(4).
Or look at (b)(3).
(B)(3) is a provision that says generally companies can use DMV information to verify somebody's identity.
And then it specifically says: And if somebody lies to you about their identity, you can pursue legal remedies.
Okay, when you're pursuing that legal remedy pursuant to (b)(3), you're also doing things in connection with litigation pursuant to--
Chief Justice John G. Roberts: Well, that's right.
I understand your point, that this is -- they're not separate categories and there's no overlap.
But the word is harmonizing, and the problem is we have to give some limiting construction to in connection with, and it seems to me that if you are involved in that endeavor, it does make sense to see how what you're going to cover under the in connection with relates to what's exempt under the other provisions.
Paul D. Clement: --But as we've discussed, Mr. Chief Justice, if you are saying you are not going to apply the specific controls the general, but you may be using a junior varsity version of it to harmonize the statute--
Chief Justice John G. Roberts: Exactly.
Paul D. Clement: --as we suggested in our colloquy, I think the line between solicitation in anticipation of investigation and investigation in anticipation of litigation is far too thin a line to make a $200 million difference.
And if I could direct the Court to page 93 of the Joint Appendix, because that will show you just an example of the postcard that is attached to these letters.
And the postcard does ask specifically, as Justice Ginsburg was suggesting -- again, this is at 93 of the Joint Appendix -- it asks people to fill out their name, address, the dealership they bought the car from, the type of car, and then the administrative fee or processing fee that was charged.
Now, I think it's common ground between the parties that we get to ask about that administrative or processing fee because that is investigation in anticipation of the litigation.
As I understand where my clients arguably made a $200 million mistake is by adding the line I'm interested -- I am interested in participating signature.
That crosses the line into solicitation.
Justice Stephen G. Breyer: Well, the reason -- the reason that would be so -- I agree with you that it's very hard to figure out what the line is here between the investigation and solicitation.
But that's where the solicitation thing comes into play, because what it -- the words that go the other way, in my mind, that cut against you is that this card could have asked for Social Security numbers, I guess.
Paul D. Clement: Not under South Carolina law.
It absolutely couldn't.
Justice Stephen G. Breyer: Not under South Carolina law, but then under another State under this statute, they could.
Now, that's helpful, that answer.
But -- when I think of asking for Social Security numbers, the words -- exaggerated, but they go through my mind -- are identity theft run wild.
And if that is a concern, if that is a concern, then by reading this as a solicitation, you know the pure case, and throwing the other exception to cover it, you force the State to focus on it.
And the State then has to decide whether they are going to permit or not permit the solicitor, who, you see, might include the lawyer here, to ask for the Social Security number.
And better to have them focus on that decision.
That's the connection that I see between the two.
Paul D. Clement: But, Justice Breyer, let me try to help you this way, which, is first of all, every State in the country is focused on identity theft.
And the only circumstances in which I could ever imagine a State giving Social Security numbers to a lawyer is if there case was, you know, these car dealers are putting the Social Security numbers on the forms and--
Justice Stephen G. Breyer: By the way, that is helpful, because do we know under how many States' law the DMV would be forbidden to give Social Security numbers?
Paul D. Clement: --I don't know that offhand.
I can get that to you in a supplemental letter.
I just know South Carolina says right in their FOIA statute you can't get that information.
And like I said, the only situation--
Justice Sonia Sotomayor: Is there a Federal law to that effect?
Paul D. Clement: --What's that?
Justice Sonia Sotomayor: There may be a Federal law to that effect.
Paul D. Clement: Right.
And it may be -- it may be lawyers -- it may be the lawyers want to enforce that Federal law against the dealers, and in enforcing that Federal law against the dealers they might ask for the information.
It's the same kind of thing.
The only circumstances in which I could imagine a State would ever give a lawyer disability information is if they were bringing an ADA suit.
If they were bringing an ADA suit against a dealer, you might--
Chief Justice John G. Roberts: If they were thinking they might bring an ADA suit--
Paul D. Clement: --Fair point.
Chief Justice John G. Roberts: --Their position does create -- the point your friend makes -- it does create a special exemption from a solicitation bar for lawyers.
Lawyers can solicitate; you know, Acme Products can't.
Paul D. Clement: Well, sure.
But they can solicit for their legal services in connection with litigation.
And that I think is different--
Chief Justice John G. Roberts: In connection with something they hope might someday become litigation, depending upon the answers they get.
Paul D. Clement: --Well, again, if you're going to draw a line -- there's two things here.
There's an impulse to draw a line with in connection with, and at some point you will have to.
But I don't think solicitation provides the line.
Justice Elena Kagan: Can I ask about your line, Mr. Clement?
Paul D. Clement: Sure.
Justice Elena Kagan: Let me just see if I understand it and I'll give you two things--
Paul D. Clement: Sure.
Justice Elena Kagan: --and I think one falls on one side of your line--
Paul D. Clement: Yeah.
Justice Elena Kagan: --and the other falls on the other, but this is just to clarify where your line is.
One is, you know, I'm a lawyer, have you ever been in a car accident lately?
If you have, contact me and I would love to represent you.
That -- the other is, I'm a lawyer, I think that there's a -- a real -- I'm -- I'm bringing a lawsuit about these red light cameras and saying that they're unlawful and would you like to join me in that litigation.
Am I right to think that the first falls on one side of the line, it's not enough, there's no litigation there and the seconds falls on the other side, according to you?
Paul D. Clement: I think that's right, Justice Kagan.
And I just want to emphasize that my -- my clients fall on the other side of even yet another line, which is they already had clients before they asked DMV anything.
Justice Elena Kagan: But your line--
Justice Antonin Scalia: They're north of that line, right?
Justice Elena Kagan: --is a contemplated litigation.
Paul D. Clement: Yes.
Justice Elena Kagan: A specific contemplated litigation.
Paul D. Clement: Exactly.
Or to put -- to give just another sort of example, this seems to be what clearly surely should be covered is, okay, I understand there's a defect with the particular make and model of a car.
I've used the DMV records consistent with State law to get access to the fact that you've bought one of these cars, do you want to join the suit?
I don't think there's anything nefarious with that.
There's certainly nothing--
Chief Justice John G. Roberts: Would you want to start the suit.
It doesn't matter in your position.
Paul D. Clement: --Yeah, that's -- that's not my case, because these people came to us before we did anything.
But I don't think there's anything wrong with that, Your Honor.
And yes, you might say it's solicitation, but I don't think if you look at these provisions, that you would interpret them that way when they're all permissive uses.
Justice Samuel Alito: Well, if Congress wanted to draw the line between possible, you know, some unknown lawsuit and an actual lawsuit that's in the mind of the lawyer, why did it use the term litigation when it had already used earlier in the same subsection proceeding, civil, criminal, administrative, or arbitral proceeding?
Paul D. Clement: Well, Justice Alito, I think when it uses in anticipation of litigation, it actually wants to cover activity that takes place before there's an actual proceeding.
And what I was going to say is, you know, that language doesn't come out of ether.
I mean, that's the language you use in attorney work product.
And as I understand it, I've looked into this a little bit, the basic rule there is you distinguish between litigation in the abstract and the point at which you've identified a particular transaction, occurrence, defect and at that point, if you're doing something, it's in -- it's in anticipation of litigation.
The one other point I haven't yet made, which is to the extent you're going to resort to the specific controls of the general, I think it is worth noting that this would be the first time that I'm aware of that the Court would ever have applied that canon to impose this kind of massive civil liability and even potentially criminal liability.
Justice Antonin Scalia: I don't know which is specific and which is general.
I mean, that's the problem I have with that.
Paul D. Clement: I agree.
And I think that's the best reason why the canon doesn't work.
These are equally specific, and in the case of an overlap between the two that you have here and you have in (b)(1) and (b)(4) and (b)(3) and (b)(4), you just say, okay, Congress thought it was okay and you just call it a day.
Justice Elena Kagan: But which do you say, Mr. Clement, that you and your varsity version of the -- which is stronger than the other one is--
Paul D. Clement: Paradoxically.
Justice Elena Kagan: --is something like if (b)(4) is hard, we have to draw a line someplace, we can look to (b)(12) as expressing some kind of concern that we can use to draw that line.
Paul D. Clement: Yeah.
And the reason I think that--
Justice Elena Kagan: It's not a conflict, we don't have to -- you know, it's not inconsistent, it's just this is an expression of what was Congress was thinking about, we're going to use it as a clue.
Paul D. Clement: --Right.
But the line-drawing problem is really drawing the line about in connection with.
The line-drawing problem -- drawing the line between solicitation in anticipation of litigation and investigation in -- in anticipation of litigation just doesn't work, they're two sides of the same coin.
As Justice Ginsburg pointed out, if my clients had sent a letter that nobody objects to that says, we're bringing a lawsuit, we think you may have been charged the same kind of fee, I think what the State bar would have said, the natural next question for anybody getting that letter is, will you represent me and precisely because of that, we want you -- we want to treat this like it's solicitation and we want to add these additional bells and whistles.
And part of the irony here is I think the things that make our letter look most like it's advertisement or solicitation are the things that are required by the State Bar.
And keep in mind, that's another reason why treating attorney solicitation differently from general solicitation makes perfect sense, because they're subject to--
Justice Antonin Scalia: I don't understand what you're saying.
You're saying the State Bar requirements would have required you to say, are you interested in joining the lawsuit?
Paul D. Clement: --Well, and -- they would -- it's so natural that somebody will say, can I join your lawsuit--
Justice Antonin Scalia: Yes.
Paul D. Clement: --that they would require all the language that says, you have alternatives, other people can -- can -- can hire you.
Justice Anthony Kennedy: Well, that's because -- that's because the State is allowing solicitation and it puts certain conditions on what your solicitation--
Paul D. Clement: Exactly.
Justice Anthony Kennedy: --You point to page 94, you say, oh, it's just the last line, the whole thrust of the letter was solicitation, you have to be fair about that.
Paul D. Clement: Exactly.
Justice Anthony Kennedy: You have to be fair about that.
Paul D. Clement: And Justice Scalia, the last thing you can infer from the statute that Congress wanted, for the first time ever, get in the business of managing attorney solicitation, a subject they'd always left to the States.
Justice Sonia Sotomayor: Counsel, I just want to, before you leave, because in response to Justice Kagan, I think you've changed positions a little bit.
You started by saying there were three ways to draw a line.
Getting clients is okay, getting clients is okay if you get a specific treatment, occurrence or defect, and you didn't mention what the third was.
So, what's your preferred reading?
Paul D. Clement: --My -- my preferred reading is that transaction, occurrence, defect, which I took her red light camera to be an example of a particular identified defect.
But I do want to emphasize before I sit down, it's the last thing I'll emphasize, that my case is a little bit better, because we had a client and a specific defect before anything happened.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Guerra, you have four minutes remaining.
REBUTTAL ARGUMENT OF JOSEPH R. GUERRA ON BEHALF OF THE PETITIONERS
Joseph R. Guerra: Thank you.
First of all, I'd just like to point out that the consequence of Respondent's argument is that -- is they gave the example of going to get the license plate and then getting the name and address to serve process.
But on their theory, you can also go down and -- you can witness an accident on the side of the road, you can go down to DMV, get the name and license -- use the license plate to get the name and address and send a solicitation letter.
And that is trolling.
And I think everybody -- as I understand it, the line seems to be everybody wants it somewhere south of trolling and yet--
Justice Stephen G. Breyer: Why don't you give us the line that's north.
North of trolling.
Joseph R. Guerra: --My line -- my line--
Justice Stephen G. Breyer: No, not north of trolling, but you understand the point.
What's your line?
Joseph R. Guerra: --Our line is solicitation, Justice Breyer, and there are two ways to get that.
There is the -- we -- I submit is the strong textual evidence in (b)(2), that Congress did in fact understand that the consent requirement governs all bulk solicitation or surveys or marketing and it had to give an explicit override in (b)(2), because otherwise (b)(12) would have restricted the ability to do nonconsent--
Justice Stephen G. Breyer: In the middle of the -- in the middle of the class action, several of the clients, the only ones who brought -- who bought the cars, which there is loads of evidence they're defective from Dealer Smith, died, and they want to see if they can find three others so they don't have to dismiss them from the class, they're almost certain and has loads of evidence there is the -- you know, the harm caused by the defendant.
They are missing a client.
And so can they get it then?
Joseph R. Guerra: --I'm not sure I understand the question.
Justice Stephen G. Breyer: Can they go to the board and say, look, Dealer Smith here, we're in the middle of the case, we're finished with discovery.
We're just -- he just died and--
Joseph R. Guerra: Are you talking about--
Justice Stephen G. Breyer: --we want to find three others and I'm sure there's loads of evidence here that there were a hundred thousand others who bought this defective thing from this defendant, we want to find out the names and addresses.
Can they get it or not?
Joseph R. Guerra: --For purposes of soliciting new class representatives, I think not.
Justice Stephen G. Breyer: Not.
Joseph R. Guerra: And I think -- and there are loads of ways to find class representatives without going to DMVs.
And, in fact, that's what most class action lawyers have to do is advertise in one fashion or another.
So that's not, to my mind, in Congress's conclusion.
But I would just point out that according to Respondents, the phrase survey research is surplusage, and this Court says that's -- you're not supposed to reach that conclusion if you can avoid it and you can avoid it by understanding it to be the meaning -- the meaning -- its effect is to override the consent requirement so that you can do commercial bulk surveys in (b)(2), which would otherwise require consent as a consequence of (b)(12).
And then there is the so-called junior varsity harmonization basis for reaching solicitation.
And I would point out that Respondents are saying, it can't be that some -- certain statements in a letter means you crossed the line into solicitation.
Now, that has all kinds of massive civil liability consequences.
Congress used the word l solicitation in this statute.
Congress meant to draw some kind of line around solicitation.
Now, admittedly, we're saying that the harmonization means that that's the same line you would draw in (b)(4).
But it's not inconceivable to think that Congress was -- was drawing a line at solicitation and that liability would flow depending upon whether somebody crossed it or not.
Justice Elena Kagan: But, Mr. Guerra, it didn't draw the line at solicitation in (b)(4) and the advantage of Mr. Clement's argument is that the line that he sets up actually has a textual basis in (b)(4).
Because it focuses on words like what is a litigation and what is a proceeding and are we there yet.
And that seems to be what the language of (b)(4) indicates.
Joseph R. Guerra: Your Honor, our point is, sort of if you step back, and this is the question for the harmonization purpose.
(B)(4) covers solicitation only because of the indeterminacy of the phrase in connection with.
Without that language, there's no basis for saying (b)(4) is authorizing lawyers' solicitations.
So it is, I would submit, at the periphery of the authorization that (b)(4) provides.
(B)(12) solicitation is at the core of what that provision is about and that -- the -- the mass marketing of using DMV information is one of the fundamental problems Congress was addressing.
And I just think it's implausible to conclude that the -- that the periphery concept in (b)(4) should take precedence over the core function of (b)(12).
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Kennedy has our opinion this morning in case 12-25, Maracich versus Spears.
Justice Anthony Kennedy: To obtain a driver's license or to register a vehicle, State Department of Motor Vehicles has a general rule, requiring an individual to disclose detailed personal information.
This includes an individual's name, home address, and telephone number and in many states, including the state in this case, it includes the individual's Social Security number and medical information.
Now, a federal statute has been enacted to protect the privacy of drivers who furnish this information to the State DMVs and the federal law, as the Diver's Privacy Protect Act or the DPPA.
Disclosure of personal information from the state DMV databases is prohibited under this federal Act unless that disclosure falls within one of the Act's exceptions.
The respondents here are South Carolina trial lawyers.
They obtained names and addresses of over 34,000 individuals from the South Carolina DMV.
They did this to send letters seeking plaintiffs for a lawsuit that they had filed against a group of South Carolina auto dealerships for violations of state law.
The petitioners here, who are the plaintiffs below, are South Carolina residents whose information was obtained and used without their consent.
They sued the respondents, the state trial lawyers, for violating the federal act, the DPPA.
Now, there are 14 subsections in the federal Act that contained exceptions to the general Non-disclosure rule and this case, requires the Court to interpret the exception that's contained in Subsection b (4).
And it simplifies a bit for this summary, but the b (4) exception allows personal information to be disclosed for use in connection with any civil, administrative or arbitral proceeding and the statute specifies that this includes investigation in anticipation of litigation.
And the respondents, the trial attorneys, argue here that both of these phrases or either of them, cover their use of DMV information.
In light of the text and structure of the DPPA, the Court today holds that an attorney's solicitation of clients is not permissible under either of the phrases just noted.
Solicitation is a distinct form of conduct, separate from the limited permissible purposes provided under b (4).
It is separate from an attorney's duties as an officer of the court or as an agent of the client.
The distinction between solicitation and other litigation activities is recognized by state bars, and state statutes, that treat solicitation as a discrete subject for regulation and governess of the legal profession.
Interpreting b (4), not to include solicitation, is further supported by the fact that b (4) is one of only four of the 14 statutory exceptions that permits the use of the most sensitive kind of information, including medical and disability history and Social Security numbers, to permit this highly personal information, to be used in bulk solicitation would be so substantial and intrusion on privacy that it must not be assumed without a clear indication that Congress intended to provide attorneys with a special concession to gain access to this information for this purpose.
Excluding solicitation from the reach of b (4) also respects the statutory design of the federal act.
The use of protected personal information for the purpose of bulk solicitation is addressed explicitly by the exception in b (12), and it has the specific safeguard requiring the express consent of the person contacted.
If the in connection with language of b (4) were read broadly to include solicitation and attorney could use protected information to send bulk solicitations, to perspective clients without their express consent, and this would create tension or significant tension in the DPPA between the litigation and the solicitation exceptions.
Now, the respondents contend that even if b (4) does not permit attorneys to solicit as a general matter, it should be allowed here when tied to a particular proceeding.
While some solicitations may have a close relationship to the existing proceeding, there is no principled way to classify some solicitations as acceptable and others as unacceptable for purposes of b (4).
In determining whether obtaining, using or disclosing the personal information is for the prohibited purpose of solicitation, the proper inquiry is whether the defendant had the predominant purpose to solicit.
That purpose might be evident from the communication itself.
In other instances, the defendant's whole course of conduct will be relevant in determining whether solicitation was the predominant purpose of the Act.
There is a concern here about the amount of damages sought in the complaint.
Recall that over, 34,000 individuals received communications from the respondents, under one view of the federal act's damages provision this would amount to $2500 per violation or sum in the neighborhood of $170 million.
Whether the civil damages provision in the act, Section 2724, whether that section, the damages section after a careful and proper interpretation would permit an award in this amount, and if so, whether principles of due process and other doctrines that protect against excessive awards would come into play is not an issue argued or presented here.
In summary, solicitation of perspective clients is not a permissible use in connection with litigation or investigation and anticipation of litigation under b (4) of the act.
As a result, the Court of Appeals erred in granting respondents summary judgment without first determining whether the communications had the predominant purpose of solicitation.
On remand, the Court of Appeals or the District Court must determine whether the letters sent by the trial attorneys, the respondents, viewed objectively had the predominant purpose of solicitation.
And in these further proceedings, other questions under the statute can be addressed including the argument that respondents conduct was permissible under the b (1) governmental function exception which neither this Court nor the Court of Appeals addressed.
Justice Ginsburg has filed a dissenting opinion in which Justices Scalia, Sotomayor, and Kagan join.