A federal judge will allow an Illinois couple to continue their lawsuit against online information provider LexisNexis and a subsidiary company, saying the couple had done enough to establish they may be able to prove the companies violated federal law by selling traffic crash reports to personal injury lawyers, who then used the information in the reports to send targeted marketing materials to offer their legal services should those involved in the traffic accidents wish to sue.
On Aug. 23, U.S. District Judge Amy J. St. Eve denied a motion to dismiss the putative class action lawsuit brought by plaintiff Antonio Pavone against the Alpharetta, Ga.-based LexisNexis Risk Solutions and its subsidiary company, iyeTek LLC.
Pavone had initially filed the legal action in Chicago federal court against St. Louis-based personal injury law firm Meyerkord & Meyerkord, alleging the firm had violated the federal Drivers Privacy Protection Act when it used information obtained from a Schaumburg Police traffic crash report to solicit the Pavones’ business.
Pavone said he had received a letter from the Meyerkord firm, as well as marketing pitches from at least one other law firm, shortly after he and his family were involved in a traffic accident in northwest suburban Schaumburg in January 2015. The letter, which asked Pavone to hire Meyerkord to represent him should he sue the other driver or another party in connection with the accident, allegedly included an unredacted copy of the traffic crash report prepared by the investigating Schaumburg police officers. That report included the names and personal information of Pavone and his wife, as well as that of their son.
In August 2015, St. Eve had dismissed Pavone’s lawsuit without prejudice, saying she did not believe the federal law could be used to protect personal information, such as people’s names, addresses, drivers license numbers and other identifying information, from being used for marketing purposes by lawyers, if that information only appeared on official motor vehicle records.
That finding differed with an opinion filed a few days earlier from St. Eve’s colleague on the Chicago federal bench, U.S. District Judge Matthew F. Kennelly, who had ruled in the Pavones’ virtually identical class action against Chicago lawyer Anthony Mancini that the personal information listed on crash reports may be protected under the DPPA.
In the months since, Pavone amended his complaint against Meyerkord, and expanded it to include the LexisNexis-affiliated companies, saying those companies should be held responsible for purportedly selling their traffic crash report, along with many others, in a bundle as part of a longstanding business relationship with the Meyerkord firm, who then used that information to land clients.
According to court documents, police agencies use the iyeTek system to scan and upload traffic crash reports to a database, to make them accessible to other agencies on the LexisNexis system. The Pavones lawsuit doesn’t challenge that vendor relationship between LexisNexis and public agencies. But they argued LexisNexis went too far in then selling to lawyers, like Meyerkord, the information uploaded to their platforms by police, without getting the permission of those whose personal information was included in the sold reports.
LexisNexis responded by asking the judge to dismiss the two counts against its companies, saying all of their activity was exempted under DPPA because the information they received originated with law enforcement agencies who collected the information as part of their regular duties pertaining to traffic accidents.
St. Eve, however, said this argument falls short. Relying this time on Kennelly’s reasoning in his earlier ruling in the Pavones’ case against Mancini, St. Eve said, while the police had legitimate reasons to include drivers’ personal information on the reports, and while some information about the traffic accident is exempted under the DPPA, LexisNexis did not necessarily have a protected reason to sell the otherwise protected personal information in the crash reports to lawyers, like the Meyerkord firm.
The LexisNexis companies “have failed to establish a good reason for the Court to depart from the plain meaning of (the DPPA) that excludes information about an accident from the definition of ‘personal information,’ but not the personal information included in accident reports like a driver’s address,” St. Eve said.
Pavone, she wrote, “sufficiently alleged that iyeTek and LNRS, in keeping with their regular policy and practice, knowingly sold an unredacted copy of his accident report to the law firm Meyerkord and that this accident report contained Plaintiff’s name, driver identification number, home address, telephone number, date of birth, and gender obtained from a motor vehicle record.
“Plaintiff further alleges that iyeTek and LNRS sell such reports in bulk for a fee and without requiring its law firm customers to know the names and addresses of the persons who are the subjects of such reports in advance of ordering them and without requiring them to obtain the prior express consent of those persons.
“Under these facts, Plaintiff has alleged a plausible claim for relief under the federal pleading standards,” St. Eve said.
St. Eve, however, did dismiss an additional count against LexisNexis brought by Pavone, alleging the companies also violated the federal Fair Credit Reporting Act.
While LexisNexis has identified itself in other legal proceedings as a credit reporting agency, the judge said, in this case, Pavone has not yet done enough to demonstrate the crash reports should be considered consumer reports under the FCRA.
The case against Mancini also remains pending in Chicago federal court.
Pavone is represented in the action by attorneys with the Zamparo Law Group, of Hoffman Estates, and the firm of Francis & Mailman, of Philadelphia.
The LexisNexis-affiliated defendants are defended by the firm of Troutman Sanders LLP, of Chicago, San Francisco and Irvine, Calif.
Meyerkord & Meyerkord is represented by the firm of Barnow & Associates, of Chicago.
Mancini is represented by attorney George E. Becker, of Chicago.