Johnson v. W. Publ'g Corp.
| Decision Date | 09 April 2013 |
| Docket Number | No. 12-1176,No. 12-1172,12-1172,12-1176 |
| Parties | Marcy A Johnson, individually and on behalf of others similarly situated Plaintiff - Appellee v. West Publishing Corporation Defendant - Appellant Marcy A Johnson, individually and on behalf of others similarly situated Plaintiff - Appellee v. West Publishing Corporation Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeals from United States District Court
for the Western District of Missouri - Jefferson City[Unpublished]
Before SMITH, BEAM, and GRUENDER, Circuit Judges.
Marcy Johnson brought this putative class action against West Publishing Corporation ("West"), alleging that it "improper[ly] and unlawful[ly] . . . obtained, acquired, disclosed, sold and/or disseminated [Johnson's] and putative Class members' personal information or highly restricted personal information for commercial purposes and profit, as prohibited by [the Driver's Privacy Protection Act (DPPA), 18 U.S.C. §§ 2721-2725]." West moved pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, which the district court denied. The district court concluded that the DPPA does not permit a reseller of personal information, such as West, to obtain driver's license information from a state or third party when the reseller's only purpose is to resell the information to other third parties. Johnson v. West Publ'g Corp., 801 F. Supp. 2d 862, 864 (W.D. Mo. 2011). The district court also found that the DPPA does not permit a reseller to "disclose the entire database to a business or individual having only a potential future use for some of the information sold, so long as there is no evidence of specific misuse, such as identity theft or stalking." Id. at 864-65. On appeal, West argues that the district court's interpretation of the DPPA is contrary to this court's interpretation of the DPPA in Cook v. ACS State & Local Solutions, Inc., 663 F.3d 989 (8th Cir. 2011). Because we find that Cook is controlling, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
Johnson filed suit "on behalf of herself and all others similarly situated" against West, alleging that West "obtained, acquired, disclosed, sold, and/or disseminated [Johnson's] and putative Class members' personal information or highly restricted personal information for commercial purposes and profit, as prohibited by law." According to the complaint, West "specializ[es] in legal publishing, online information delivery, and various other legal information products." The complaint alleges that West "has obtained and continues to obtain a large database(s) of motor vehicle records, and the corresponding personal information or highly restricted personal information for each such record . . . directly from" 29 states and the District of Columbia, "or from entities who acquired it from the States, in violation of the DPPA."
The complaint maintains that West collected the information from the states "under the pretense that the information would be used only for the legitimate purposes outlined in 18 U.S.C. § 2725(3)." According to the complaint, the information databases that West obtained from the states "contained 'personal information' and/or 'highly restricted personal information' (as defined by the DPPA, 18 U.S.C. §§ 2721, et seq), belonging to millions of licensed drivers." The complaint alleges that West "then made the unlawfully obtained information belonging to [Johnson] and the putative Class members available for search and sale on the Internet via websites controlled and operated by [West]." West's acquisition and dissemination of "personal information or highly restricted personal information" was allegedly "for purposes not permitted under the DPPA." Johnson and the putative class assert that they "suffered damages as a result of [West's] conduct."
The complaint contains three counts. Count I asserts that West "knowingly obtained, disclosed, and/or sold [Johnson's] and the putative Class members' personal information or highly restricted personal information, as defined by the DPPA, for a use or uses not permitted under the statute." It provides that West "made falserepresentations to the States to obtain [Johnson's] and the putative Class members' personal information or highly restricted personal information, and at other times obtained [Johnson's] and the putative Class members' personal information or highly restricted personal information from third parties." Count I prays for "actual damages, but not less than liquidated damages in the amount of $2,500 each." Count II asserts a claim for unjust enrichment and "seek[s] disgorgement and restitution of the benefits obtained by [West] through its unlawful conduct." Finally, Count III asserts an injunctive-relief claim based on DPPA violations.
West moved to dismiss Count II of Johnson's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The district court granted the motion, which "had been based primarily on [c]ourt's reasoning in another DPPA case, Wiles v. Southwestern Bell Tel. Co., No. 09-4236-CV-C-NKL, 2010 WL 1463025 (W.D. Mo. Apr. 13, 2010)." Johnson, 801 F. Supp. 2d at 867. West then moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
In denying West's motion, the district court rejected the majority view that the DPPA "permit[s] wholesale resellers to obtain in bulk every driver's personal information so long as there is no evidence of specific misuse." Id. at 866 (citing Taylor v. Acxiom Corp., 612 F.3d 325 (5th Cir. 2010)). Specifically, the court rejected the conclusion that "a reseller is not limited to obtaining personal information only for a specific customer qualified to use it by the DPPA" and that "the reseller itself [does not need] a right to the information under one of the fourteen exceptions to the DPPA's rule of nondisclosure." Id. Additionally, the court disagreed with the notion that "the information can be sold in bulk to purchasers, even though the purchaser is only authorized under the DPPA to receive one piece of information." Id. The court found "that Congress did not intend the DPPA to authorize this widespread dissemination of private information untethered from the very uses that Congress listed in the DPPA." Id. at 867.
Following its denial of West's motion for judgment on the pleadings, the court certified the class. Johnson v. West Publ'g Corp., No. 2:10-CV-04027-NKL, 2011 WL 3490187 (W.D. Mo. Aug. 9, 2011).1
After the district court entered its order denying West's motion for judgment on the pleadings, it certified under 28 U.S.C. § 1292(b) that "the case involves [']a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation.'" (Second alteration in original.) (Quoting 28 U.S.C. § 1292(b).) West subsequently petitioned this court for permission to appeal.
West also petitioned this court for permission to appeal the class certification order under Federal Rule of Civil Procedure 23(f).
We granted both the § 1292(b) and Rule 23(f) applications and consolidated the appeals.
On appeal, West asserts that the district court erroneously held that Johnson stated cognizable DPPA claims and that class adjudication was appropriate. Specifically, West contends that the district court erred in concluding that the DPPA fails to authorize the bulk acquisition of motor vehicle record information for resale for DPPA-permitted uses. In support of its argument, West relies on Cook. According to West, "Cook addresses the same statutory construction question at issue here—whether the DPPA permits the obtainment in bulk of state motor vehicle record information for resale for DPPA-permitted uses." West states that this court "joined several of its sister federal circuits and concluded that it does." West requests that this court reverse the district court's order denying its motion for judgment on the pleadings and direct the district court to enter judgment in its favor and dismiss as moot Johnson's motion for class certification.
Johnson makes two arguments in support of affirmance. First, she "respectfully suggest[s] that the issues and facts presented in this appeal were not sufficiently fleshed out or addressed by the parties in the Cook matter, and that this appeal provides a more complete picture and background of the DPPA." According to Johnson, Cook's "reading of the DPPA does not comport with the statute's full legislative history and the intentions of Congress." She argues that Cook failed to define the phrase "authorized recipient" and "goes beyond the text of the statute and creates a 'data repository' Permissible Purpose for West that is unsupported by either the plain text of the DPPA or its legislative history." She maintains that the DPPA's purpose "in providing control over the disclosure of individuals' Personal Information appears weakened under Cook's interpretation of the DPPA" because Cook "imposes no limitation on the release of Personal Information to anyone who merely promises to resell such information to those with an alleged Permissible Purpose under§ 2721(b)." Johnson urges this court to adopt the district court's definition of "authorized recipient" and conclude that West is not one under that definition.
Second, Johnson attempts to distinguish Cook, asserting that in that case this court "held that bulk obtainment of Personal Information directly from the State is permitted regardless of whether the person obtaining the information has a Permissible Purpose for the information." (Emphasis added.) Johnson contends that "West does not obtain Plaintiff's Personal Information from Motor Vehicle Records...
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