SEATTLE (CN) – Two classes urged the 9th Circuit to revive their lawsuits against several companies including the publishers of The Oregonian newspaper that allegedly violated federal law to obtain personal information about Washington and Oregon residents.
The classes had accused the companies of using bulk requests to obtain and “stockpile” their information for later use, which is not allowed under the Driver’s Privacy Protection Act.
Last year federal judges dismissed the claims against Ampco Parking Systems, Automotive.com and Members Only in the Washington case, and Oregonian Publishing, Criminal Information Services and Western Mercantile Agency in the Oregon case.
Both cases were dismissed for failure to state a claim. In her order dismissing the Washington case, U.S. District Judge Marsha J. Pechman said the plaintiff’s “threadbare complaint” failed to show the information was obtained for an improper purpose. Amended complaints that were filed in both actions were also dismissed.
Arguing for the Oregonian class before the appellate panel on July 12, Dallas-based attorney Thomas Corea had difficulty convincing the judges that the consolidated appeal presented a different issue from Taylor v. Acxiom in which the 5th Circuit approved the legality of bulk obtainment.
Judge Richard Clifton called it “exactly the same case.”
“It seems to me you may be saying that Taylor is wrongly decided or Taylor shouldn’t be applied in the context of your plaintiffs’ claim, but I’m having real trouble figuring out how what happened in Texas is any different than what happened in Oregon or Washington,” Clifton said. “You just don’t like the result in Texas,” he added.
Corea responded that Taylor focused on improper use under the Driver’s Privacy Protection Act, but this case was about improper obtainment. He said that the defendants obtained the bulk files for convenience and “stockpiling,” while misrepresenting that they had a “present purpose” for the information.
Clifton said that the federal courts said this argument was “not a viable legal theory.”
“The courts have decided stockpiling is not illegal,” he said.
Judge Edward Korman said Corea was “just trying to bootstrap an argument that doesn’t fly.”
An attorney for the Oregonian publisher and other defendants said the class had “absolutely no facts” to support their claims that the driver’s license information was improperly obtained. “His only theory of improper purpose is this theory of stockpiling,” Charles Hinkle with Stoel Rives said.
Judge N. R. Smith said that if stockpiling was prohibited, then companies would have to destroy the record after one use. “So it would be an absurd result to suggest that stockpiling is an improper purpose,” he said.