The Fourth Circuit yesterday issued a decision in a messy dispute among plaintiffs’ lawyers, car dealers, and car purchasers over the use of South Carolina’s FOIA law to obtain personal information about car purchasers for use in litigation against car dealers. Judge Davis wrote the opinion for the Court in Maracich v. Spears, in which Judge Duncan and Judge Wynn joined.
The court’s summary of its holding:
[W]e hold that the district court erred in ruling that the Lawyers did not engage in solicitation. Yet, the Lawyers indisputably made permissible use of the Buyers’ personal information protected by the DPPA, here, for use “in connection with [litigation],” including “investigation in anticipation of litigation.” 18 U.S.C. §2721(b)(4). Ultimately, the Buyers’ damages claims asserted under the DPPA fail as a matter of law, notwithstanding the fact that the Buyers can identify a distinct prohibited use (mass solicitation without consent) that might be supported by evidence in the record. In short, where, as a matter of settled state law and practice, as here, 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 by persons to whom the personal information pertains.
The opinion notes that its decision in favor of the lawyers largely tracks the approach of the Eleventh Circuit in Rine v. Imagitas, 590 F.3d 1215, 1226 (11th Cir. 2009). The buyers relied on the Third Circuit’s decision in Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008), but the court thought that decision to be “plainly distinguishable.”