Maracich v. Spears

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MARACICH ET AL. v. SPEARS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 12–25. Argued January 9, 2013—Decided June 17, 2013
Respondent attorneys submitted several state Freedom of Information
Act (FOIA) requests to the South Carolina DMV, seeking names and
addresses of thousands of individuals in order to solicit clients for a
lawsuit they had pending against several South Carolina car dealer-
ships for violation of a state law that protects car purchasers from
dealership actions that are “arbitrary, in bad faith, or unconsciona-
ble.” Using the personal information provided by the DMV, respond-
ents sent over 34,000 car purchasers letters, which were headed
“ADVERTISING MATERIAL,” explained the lawsuit, and asked re-
cipients to return an enclosed reply card if they wanted to participate
in the case. Petitioners, South Carolina residents, sued respondents
for violating the federal Driver’s Privacy Protection Act of 1994
(DPPA) by obtaining, disclosing, and using petitioners’ personal in-
formation from motor vehicle records for bulk solicitation without
their express consent. Respondents moved to dismiss, claiming that
the information was properly released under a DPPA exception per-
mitting disclosure of personal information “for use in connection with
any civil, criminal, administrative, or arbitral proceeding,” including
“investigation in anticipation of litigation.” 18 U.S. C. §2721(b)(4).
The District Court held that respondents’ letters were not solicita-
tions and that the use of information fell within (b)(4)’s litigation ex-
ception. The Fourth Circuit affirmed, concluding that the letters
were solicitation, but that the solicitation was intertwined with con-
duct that satisfied the (b)(4) exception.
Held: An attorney’s solicitation of clients is not a permissible purpose
covered by the (b)(4) litigation exception. Pp. 6–29.
(a) State DMVs generally require someone seeking a driver’s li-
cense or registering a vehicle to disclose detailed personal infor-
2 MARACICH v. SPEARS
Syllabus
mation such as name, address, telephone number, Social Security
number, and medical information. The DPPA—responding to a
threat from stalkers and criminals who could acquire state DMV in-
formation, and concerns over the States’ common practice of selling
such information to direct marketing and solicitation businesses—
bans disclosure, absent a driver’s consent, of “personal information,”
e.g., names, addresses, or telephone numbers, as well as “highly re-
stricted personal information,” e.g., photographs, social security
numbers, and medical or disability information, §2725(4), unless 1 of
14 exemptions applies. Subsection (b)(4) permits disclosure of both
personal information and highly restricted personal information,
while subsection (b)(12) permits disclosure only of personal infor-
mation. Pp. 6–8.
(b) Respondents’ solicitation of prospective clients is neither a use
“in connection with” litigation nor “investigation in anticipation of lit-
igation” under (b)(4). Pp. 8–15.
(1) The phrase “in connection with” provides little guidance with-
out a limiting principle consistent with the DPPA’s purpose and its
other provisions. See New York State Conference of Blue Cross &
Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656. Such a
consistent interpretation is also required because (b)(4) is an excep-
tion to both the DPPA’s general ban on disclosure of “personal infor-
mation” and the ban on release of “highly restricted personal infor-
mation.” An exception to a general policy statement is “usually read
. . . narrowly in order to preserve the [provision’s] primary operation.”
Commissioner v. Clark, 489 U.S. 726, 739. Reading (b)(4) to permit
disclosure of personal information when there is any connection be-
tween protected information and a potential legal dispute would sub-
stantially undermine the DPPA’s purpose of protecting a right to pri-
vacy in motor vehicle records. Subsection (b)(4)’s “in connection with”
language must have a limit, and a logical and necessary conclusion is
that an attorney’s solicitation of prospective clients falls outside of
that limit. Pp. 9–11.
(2) An attorney’s solicitation of new clients is distinct from an at-
torney’s conduct 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, and state bars
treat solicitation as discrete professional conduct. Excluding solicita-
tion from the meaning of “in connection with” litigation draws sup-
port from (b)(4)’s examples of permissible litigation uses—“service of
process, investigation in anticipation of litigation, and the execution
or enforcement of judgments and orders”—which all involve an attor-
ney’s conduct as an officer of the court, not a commercial actor. Simi-
larly, “investigation in anticipation of litigation” is best understood to
Cite as: 570 U. S. ____ (2013) 3
Syllabus
allow background research to determine if there is a supportable the-
ory for a complaint or a theory sufficient to avoid sanctions for filing
a frivolous lawsuit, or to help locate witnesses for deposition or trial.
Pp. 11–14.
(3) This reading is also supported by the fact that (b)(4) allows
use of the most sensitive personal information. Permitting its use in
solicitation is so substantial an intrusion on privacy it must not be
assumed, without clear and explicit language, absent here, that Con-
gress intended to exempt attorneys from DPPA liability in this re-
gard. Pp. 14–15.
(c) Limiting (b)(4)’s reach also respects the statutory purpose and
design evident in subsection (b)(12), which allows solicitation only of
persons who have given express consent to have their names and ad-
dresses disclosed for this purpose. Subsection (b)(12) implements an
important objective of the DPPA—to restrict disclosure of personal
information in motor vehicle records to businesses for the purpose of
direct marketing and solicitation. Other exceptions should not be
construed to interfere with this objective unless the text commands
it. Reading (b)(4)’s “in connection with” phrase to include solicitation
would permit an attorney to use personal information from the state
DMV to send bulk solicitations to prospective clients without their
express consent, thus creating significant tension between the
DPPA’s litigation and solicitation exceptions. Pp. 15–19.
(d) Such a reading of (b)(4) could also affect the interpretation of
the (b)(6) exception, which allows an insurer and certain others to ob-
tain DMV information for use “in connection with . . . underwriting,”
and the (b)(10) exception, which permits disclosure and use of per-
sonal information “in connection with” the operation of private toll
roads. Pp. 19–20.
(e) Respondents contend that a line can be drawn between mere
trolling for clients and their solicitation, which was tied to a specific
legal dispute, but that is not a tenable distinction. The DPPA sup-
ports drawing the line at solicitation. Solicitation can aid an attorney
in bringing a lawsuit or increasing its size, but the question is
whether or not lawyers can use personal information protected under
the DPPA for this purpose. The mere fact that respondents complied
with state bar rules governing solicitations also does not resolve
whether they were entitled to access personal information from the
state DMV database for that purpose. In determining whether ob-
taining, using, or disclosing personal information is for the prohibited
purpose of solicitation, the proper inquiry is whether the defendant’s
purpose was to solicit, which might be evident from the communica-
tion itself or from the defendant’s course of conduct. When that is the
predominant purpose, (b)(4) does not entitle attorneys to DPPA-
4 MARACICH v. SPEARS
Syllabus
protected information even when solicitation is to aggregate a class
action. Attorneys also have other alternatives to aggregate a class,
including, e.g. soliciting plaintiffs through traditional and permitted
advertising. And they may obtain DPPA-protected information for a
proper investigative use.
Although the Fourth Circuit held that the letters here were solici-
tations, it found the communications nonetheless exempt under (b)(4)
because they were “inextricably intertwined” with permissible litiga-
tion purposes. If however, the use of DPPA-protected personal in-
formation has the predominant purpose of solicitation, it would not
be protected by (b)(4). A remand is necessary for the court to apply
the proper standard to determine the predominant purpose of re-
spondents’ letters. Pp. 20–26.
(f) There is no work for the rule of lenity to do here, because the
DPPA’s text and structure resolve any ambiguity in (b)(4)’s phrases
“in connection with” and “investigation in anticipation of litigation.”
Pp. 26–27.
(g) On remand, the courts below must determine whether respond-
ents’ letters, viewed objectively, had the predominant purpose of so-
licitation, and may address whether respondents’ conduct was per-
missible under (b)(1)’s governmental-function exception and any
other defenses that have been properly preserved. Pp. 27–29.
675 F.3d 281, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, and ALITO, JJ., joined. GINSBURG, J., filed a
dissenting opinion, in which SCALIA, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
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, Wash-
ington, 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
_________________
No. 12–25
_________________
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 infor-
mation contained in the records of state motor vehicle de-
partments (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 administra-
tive 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).
2 MARACICH v. SPEARS
Opinion of the Court
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 Caro-
lina 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 pur-
pose 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 unconscion-
able 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 numer-
ous 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 charg-
ing illegal administrative fees was a common practice so
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
that a lawsuit could be brought as a representative action
under the MDDA. The attorney’s letter to the DMV re-
quested 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 pur-
chased, 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 re-
quested information. On August 24, 2006, respondents
submitted a second FOIA request to the DMV, also assert-
ing 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 com-
plaint 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 deal-
ers 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
4 MARACICH v. SPEARS
Opinion of the Court
and increased the number of defendant dealers from 51 to
324. As before, defendant dealerships that had not en-
gaged 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, re-
spondents sent a mass mailing to find car buyers to serve
as additional plaintiffs in the litigation against the deal-
ers. Later in January, respondents made three more
FOIA requests to the South Carolina DMV seeking per-
sonal 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 addi-
tional 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 opin-
ion 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
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
and a list of recipients’ names and addresses with the
South Carolina Office of Disciplinary Counsel.
In June 2007, respondents sought to amend their com-
plaint 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 Septem-
ber 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 ob-
tained 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 dealer-
ships. 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 hap-
pened to be the dealership’s director of sales and market-
ing. 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 class-
action lawsuit in the United States District Court for the
District of South Carolina. The complaint alleged that
respondents had violated the DPPA by obtaining, disclos-
ing, and using personal information from motor vehicle
6 MARACICH v. SPEARS
Opinion of the Court
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 litiga-
tion. On cross-motions for summary judgment, the Dis-
trict 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 con-
tained in state motor vehicle records. The first was a
growing threat from stalkers and criminals who could
acquire personal information from state DMVs. The
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
second concern related to the States’ common practice of
selling personal information to businesses engaged in
direct marketing and solicitation. To address these con-
cerns, 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 re-
stricted personal information” is defined as “an individu-
al’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, dis-
closes 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 subsec-
tion (b)(4) and the solicitation exception in (b)(12).
The (b)(4) litigation exception is one of the four provi-
sions permitting disclosure not only of personal infor-
mation but also of highly restricted personal information.
§2721(b)(4); §2725(4). It provides that information may be
disclosed:
8 MARACICH v. SPEARS
Opinion of the Court
“For use in connection with any civil, criminal, ad-
ministrative, 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 exe-
cution or enforcement of judgments and orders, or pur-
suant 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 so-
licitations if the State has obtained the express con-
sent 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 disclo-
sures. §2721(b)(12) (1994 ed.). In 1999, Congress changed
to an opt-in regime, requiring a driver’s affirmative con-
sent 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 respond-
ents’ 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.
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
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 “inves-
tigation in anticipation of litigation.” Ibid. Respondents
contend that the solicitation of prospective clients, espe-
cially in the circumstances of this case, is both a use “in
connection with” litigation and “investigation in anticipa-
tion 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 infor-
mation with a remote relation to litigation would be ex-
empt 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 con-
sistent 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 Stand­
10 MARACICH v. SPEARS
Opinion of the Court
ards Enforcement v. Dillingham Constr., N. A., Inc., 519
U.S. 316, 335 (1997) (“But applying the ‘relate to’ provi-
sion 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 prohibi-
tion 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 infor-
mation 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 in-
formation 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 neces-
sary conclusion is that an attorney’s solicitation of pro-
spective clients falls outside of that limit.
The proposition that solicitation is a distinct form of
conduct, separate from the conduct in connection with
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
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 commer-
cial 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, includ-
ing statutes of the State of South Carolina, treat solicita-
tion as a discrete subject for regulation and governance of
the profession. It would contradict the idea that solicita-
tion 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 capac-
ity, 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 Disci­
plinary 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
12 MARACICH v. SPEARS
Opinion of the Court
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 dis-
crete professional conduct. See, e.g., Cal. Rule Prof. Con-
duct 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 pro-
pose 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 in-
struction 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,
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
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 execu-
tion 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 deter-
mine whether there is a supportable theory for a com-
14 MARACICH v. SPEARS
Opinion of the Court
plaint, 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 ex-
pand 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 enforce-
ment, see §2721(b)(1); use by an insurer in claim investi-
gation 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 re-
stricted personal information in bulk merely to propose a
commercial transaction for their own financial benefit. If
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
(b)(4) permitted access to highly restricted personal infor-
mation for an attorney’s own commercial ends with-
out governmental authorization or without consent of
the holder of the driver’s license, the result would be so sig-
nificant a departure from these other exceptions that
it counsels against adopting this interpretation of the
statute.
While the (b)(4) exception allows this sensitive infor-
mation 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 con-
cession 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 sen-
tence 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
16 MARACICH v. SPEARS
Opinion of the Court
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 solici-
tation 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 ad-
dresses 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 con-
duct 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 con-
trols 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 defin-
ing the scope of (b)(4). As discussed above, the text of
(b)(4) indicates that the exception is best read not to in-
clude solicitation as a use “in connection with” litigation.
But even if there were any doubt on this point, the statu-
tory 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
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
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, manufac-
turers, direct marketers, and others engaged in interstate
commerce to contact drivers with customized solicita-
tions”). Congress chose to protect individual privacy by
requiring a state DMV to obtain the license holder’s ex-
press 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 mecha-
nism 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), 113 Stat. 1025.
Direct marketing and solicitation present a particular
concern not only because these activities are of the ordi-
nary commercial sort but also because contacting an indi-
vidual is an affront to privacy even beyond the fact that a
large number of persons have access to the personal in-
formation. 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 con-
tact individuals.” §2721(b)(5).
18 MARACICH v. SPEARS
Opinion of the Court
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 ex-
ceptions 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 commer-
cial 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 obtain-
ing an individual’s express consent before disclosing and
using personal information contained in state motor vehi-
cle 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 excep-
tions. That inconsistency and the concomitant undermin-
ing of the statutory design are avoided by interpreting
(b)(4) so it does not authorize the use of personal infor-
mation 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 in-
terpreted in a way that renders them compatible, not
contradictory. . . . [T]here can be no justification for need-
Cite as: 570 U. S. ____ (2013) 19
Opinion of the Court
lessly rendering provisions in conflict if they can be inter-
preted 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 fur-
ther 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 oper-
ation 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 solicita-
tion 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 with-
out 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
20 MARACICH v. SPEARS
Opinion of the Court
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 re-
search” 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 attor-
neys to use personal information acquired from a state
DMV to find new business in the absence of any connec-
tion 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, respond-
ents argue, is permitted). While some solicitations may
have a close relationship with existing proceedings, there
is no principled way to classify some solicitations as ac-
ceptable 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 per-
sonal information to solicit persons to fill in as plaintiffs.
Cite as: 570 U. S. ____ (2013) 21
Opinion of the Court
Solicitation of new plaintiffs to keep defendants in a law-
suit 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 under-
mine 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) solicita-
tion exception, which requires express consent, and the
(b)(4) litigation exception, which does not. The two statu-
tory 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 dis-
close their personal information to the state DMV, includ-
ing 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
22 MARACICH v. SPEARS
Opinion of the Court
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 in-
formation is for the prohibited purpose of solicitation, the
proper inquiry is whether the defendant had the predomi-
nant purpose to solicit. Because, in some cases, a commu-
nication 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 im-
proper 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 pre-
dominant purpose of a letter was not to solicit a new cli-
ent, 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
Cite as: 570 U. S. ____ (2013) 23
Opinion of the Court
proper, a later use may be a violation. Where a reason-
able observer could discern that the predominant purpose
of obtaining, using, or disclosing protected personal
information was to initiate or propose a business trans-
action 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 aggre-
gate 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 com-
mercial interest. But respondents here did not obtain or
use the protected personal information to send class no-
tices or comply with a court order. The letters made no
mention of ethical obligations to outstanding group mem-
bers 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 re-
spondents 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 respond-
ents had no court order authorizing their conduct, this
24 MARACICH v. SPEARS
Opinion of the Court
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 solicita-
tion 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 investi-
gatory 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 re-
spondents 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 attor-
Cite as: 570 U. S. ____ (2013) 25
Opinion of the Court
neys to use that same information at a later date for any
other purpose. For example, a lawyer could obtain per-
sonal 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 solici-
tations 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 inter-
twined” 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 stand-
ard because the Court of Appeals could conclude, in light
of the content of the communications, taken with other
26 MARACICH v. SPEARS
Opinion of the Court
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 impos-
ing 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 sensi-
tive 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 quo-
tation marks omitted). But here, as discussed, the sur-
rounding text and structure of the DPPA resolve any
ambiguity in phrases “in connection with” and “investiga-
Cite as: 570 U. S. ____ (2013) 27
Opinion of the Court
tion 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 poli-
cy,” 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 in-
clude 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 solicita-
tion. And since the solicited persons did not give express
consent to the disclosure or use of their personal infor-
mation 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.
28 MARACICH v. SPEARS
Opinion of the Court
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 re-
spondents 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 dis-
closures of that information, nevertheless, may be independ-
ent 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 deter-
mine 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 consid-
ered 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 interpreta-
tion 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
Cite as: 570 U. S. ____ (2013) 29
Opinion of the Court
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.
30 MARACICH v. SPEARS
Opinion of the Court
Appendix to opinion of the Court
Cite as: 570 U. S. ____ (2013) 31
Opinion of the Court
Appendix to opinion of the Court
Cite as: 570 U. S. ____ (2013) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–25
_________________
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 administra-
tive 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 subse-
quently sent letters to the identified buyers inquiring
whether they had been charged administrative fees, in-
forming 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.
2 MARACICH v. SPEARS
GINSBURG, J., dissenting
Respondent-lawyers obtained and used DMV infor-
mation 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, immi-
nent or ongoing, with identified parties on both sides of
the controversy. So read, §2721(b)(4) permitted the law-
yers’ conduct. Neither §2721(b)(12) nor any other provi-
sion 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 partic-
ular 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 Infor-
mation 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 per-
sonal 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 num-
ber of statutory exceptions, including stated purposes for
Cite as: 570 U. S. ____ (2013) 3
GINSBURG, J., dissenting
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 dealer-
ships had violated state law. The initial complaint identi-
fied 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 over-
charged 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
4 MARACICH v. SPEARS
GINSBURG, J., dissenting
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 repre-
sented a group of “plaintiffs who have complained of cer-
tain conduct as a result of their transactions with car
dealers,” and that the lawyers were “attempting to deter-
mine 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 respondent-
lawyers 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 “sup-
porting 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 clari-
fied that respondent-lawyers could “go forward with eight
people [the named plaintiffs]” and the court would consider
Cite as: 570 U. S. ____ (2013) 5
GINSBURG, J., dissenting
the standing issue raised in the dealers’ motion to
dismiss “when all the discovery is in and it comes to dis-
positive 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 under-
standably 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
——————
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 the
dealer-defendants to renew their standing objection on completion of
discovery.
2 The dealers thus were urging that additional plaintiffs were “neces-
sary” to the maintenance of the dealer-conspiracy charge. Cf. ante, at
13 ((b)(4) permits contacting persons “who are necessary parties”).
6 MARACICH v. SPEARS
GINSBURG, J., dissenting
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 di-
minish 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 insist-
ence, 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, admin-
istrative, 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 en-
forcement of judgments and orders, or pursuant to an
order of a Federal, State, or local court.” 18 U.S. C.
——————
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 inves-
tigation 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.
Cite as: 570 U. S. ____ (2013) 7
GINSBURG, J., dissenting
§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 connec-
tion with” and thrice repeating the word “any.” See Mo-
rales 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 interpreta-
tion.”). 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 re-
quests 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
8 MARACICH v. SPEARS
GINSBURG, J., dissenting
against each of the defendant car dealers. Of equal im-
portance, because the suit qualified under state law as a
representative action, respondent-lawyers represented
and were obligated to serve the interests of all car pur-
chasers 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 mem-
bers 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 Con-
gress 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 infor-
mation] 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
Cite as: 570 U. S. ____ (2013) 9
GINSBURG, J., dissenting
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 as-
serts, its interpretation is necessary to respect the “struc-
ture 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” prohib-
ited 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 tenu-
ous, 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 Washing-
ton 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 im-
portance to an ongoing proceeding or far removed from
10 MARACICH v. SPEARS
GINSBURG, J., dissenting
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 majori-
ty’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 “proceed-
ing.” 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 pro-
ceeding.” Arthur Andersen LLP v. United States, 544 U.S.
696, 708 (2005). By the same token, (b)(4) is best inter-
preted 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 Mo-
tors 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 pos-
sibility of a hypothetical lawsuit. See, e.g., National Union
Cite as: 570 U. S. ____ (2013) 11
GINSBURG, J., dissenting
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 litiga-
tion when there is “an actual claim or a potential claim
following an actual event or series of events that reasona-
bly could result in litigation”); Gould Inc. v. Mitsui Mining
& Smelting Co., 825 F.2d 676, 680 (CA2 1987) (applica-
tion 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 identi-
fied adverse parties, in sight—apparently, the Court’s
primary concern—would not be a permissible use.5 Af-
firming 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 con-
——————
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, 707–708, 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 tradi-
tional state authority.
12 MARACICH v. SPEARS
GINSBURG, J., dissenting
troversy. The Court’s hypothetical bears not even a re-
mote resemblance to the facts of this case. The state court
here denied the defendants’ motion to dismiss the conspir-
acy 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 lan-
guage 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 solici-
tations,” 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 Peti-
tioners 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 differ-
ent 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 provi-
sions if a use of DMV information were permitted by (b)(4)
but not permitted by (b)(12). Ante, at 21. Every permissi-
ble use of DMV information, however, is permitted by
Cite as: 570 U. S. ____ (2013) 13
GINSBURG, J., dissenting
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 per-
missible 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 re-
search 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 congres-
sional instruction to do so, the Court reads (b)(12)—the
12th on a list of 14 permissible uses—as so central a part
——————
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.
14 MARACICH v. SPEARS
GINSBURG, J., dissenting
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 crim-
inal 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 appli-
cation are uncertain.” Ante, at 18. Little light is cast on
which enumerated exceptions fit that description. Subsec-
tion (b)(4) fits, the Court asserts, but (b)(1) apparently
——————
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 excep-
tions. 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 govern-
mental 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 Re-
spondents 29. Absent the provision, the DPPA would permit no such
use.
Cite as: 570 U. S. ____ (2013) 15
GINSBURG, J., dissenting
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 infor-
mation.” §2721(a)(2); see ante, at 14. These exceptions
apply to uses by the government, (b)(1); court opera-
tions, (b)(4); use by insurance companies, entities perva-
sively regulated by the States, (b)(6); and commercial
driver’s licenses, which are regulated by the Federal Gov-
ernment 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 mat-
ters important to the State and persons within the State’s
governance. For uses of this genre, the need for the in-
formation 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 “predom-
——————
8 See 49 U.S. C. §31308.
16 MARACICH v. SPEARS
GINSBURG, J., dissenting
inant 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 offend-
ing driver. In order to investigate her client’s case, and to
ensure that “there is a supportable theory for a com-
plaint,” 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 communica-
tion might therefore be viewed by the state bar as falling
within the rules for solicitation. See S. C. Rule of Profes-
sional 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 respond-
ents to contact the purchasers of cars to ask them whether
——————
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.
Cite as: 570 U. S. ____ (2013) 17
GINSBURG, J., dissenting
they paid the unlawful fees. Brief for Petitioner 48; Tr. of
Oral Arg. 14–15. Indeed, such an investigation was criti-
cal 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 profes-
sional 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 adver-
tisements for “a book he wrote.” Ante, at 24. But no one
would confuse bookselling with investigation in anticipa-
tion 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 infor-
mation in the course of litigation has solicitation as a
“predominant purpose.” Ante, at 22. The holding in Mar-
acich’s case, I fear, will, at a minimum, impede the effi-
cient 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
——————
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.
18 MARACICH v. SPEARS
GINSBURG, J., dissenting
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 fact-
finder 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 recog-
nized, 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 dam-
ages 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 govern-
mental 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 liabil-
ity 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 stat-
ute’s coverage,” even in a civil case. Crandon v. United
States, 494 U.S. 152, 158 (1990). See also Leocal v. Ash-
croft, 543 U.S. 1, 12, n. 8 (2004) (explaining that, if a
statute has criminal applications, “the rule of lenity ap-
plies” to the Court’s interpretation of the statute
“[b]ecause we must interpret the statute consistently,
Cite as: 570 U. S. ____ (2013) 19
GINSBURG, J., dissenting
whether we encounter its application in a criminal or
noncriminal context”); Scheidler v. National Organization
for Women, Inc., 537 U.S. 393, 408–409 (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 plu-
rality’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 per-
mitting 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 interpre-
tation 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 po-
tential 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 deline-
20 MARACICH v. SPEARS
GINSBURG, J., dissenting
ated in §2721(b)(4), I would affirm the Fourth Circuit’s
judgment.