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
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
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
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
“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,
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