Judge nixes lawyer's 1st Amend defense vs crash reports privacy suit; will allow Spokeo argument

By Dan Churney | Sep 12, 2016

A Chicago federal judge has refused to dismiss a suit against a Chicago personal injury lawyer, which alleges he violated a federal drivers privacy law by buying traffic crash reports. Nonetheless, the judge said he wants the lawyer to further explain why the plaintiffs may lack standing under the law to pursue the case at all. 

The Sept. 7 ruling was issued by Judge Matthew Kennelly in the U.S. District Court for Northern Illinois involving an action brought by plaintiffs Antonio and Karen Pavone against Chicago lawyer Anthony Mancini. The Pavone couple filed for a class action suit in February 2015 against Mancini, claiming Mancini violated the federal Drivers Privacy Protection Act. 

According to the Pavone couple, they and their minor son were in a traffic accident in January 2015 in suburban Schaumburg. For official purposes and as a matter of routine, police entered their report of the crash – containing personal information about the Pavones – into an online database maintained by iyeTek LLC, a subsidiary of LexisNexis, an online information provider. LexisNexis makes such reports available for sale to lawyers looking for lawsuits. One such lawyer was Mancini, according to the suit. 

With the report allegedly in hand, Mancini sent a letter to the Pavones about one week after the accident. Mancini told the couple he wanted to represent them in any litigation or claims arising from the accident. The letter included a copy of the police crash report that contained the Pavones’ personal information, according to the Pavones’ suit. 

The Pavones said Mancini’s letter left them “shocked and dismayed, very concerned their personal information and that of their child had been transmitted to someone they did not know and used to solicit them for legal representation.” 

The Pavones said they believe “hundreds if not thousands” of people have received similar solicitation letters. They want at least $2,500 per member of the class action, as well as punitive damages. 

Mancini countered with a motion to dismiss the suit in May 2015. He argued he did not breach the Drivers Privacy Protection Act, because crash reports do not constitute “personal information” and are not considered “motor vehicle records” as outlined by the Drivers Privacy Protection Act. The motion was rejected by Judge Kennelly in July 2015.

Mancini came back with a motion for summary judgment in November, beefing up the arguments he used in the previous motion, but again Kennelly shut them down. Mancini put forth a fresh argument that the Privacy Protection Act could conflict with the U.S. Constitution’s right to free speech, as spelled out in the First Amendment. Kennelly was not persuaded, saying there was no evidence Mancini disseminated Pavone’s private data to anyone other than Pavone, so the First Amendment did not apply. 

However, Kennelly left the door open for Mancini on the question of standing. Mancini argued the Pavones had no standing to sue under Article III of the U.S. Constitution, in light of the U.S. Supreme Court’s recent ruling in Spokeo, Inc. v. Robins. 

In the Spokeo case, Thomas Robins sued Spokeo, a consumer reporting agency, alleging Spokeo provided inaccurate information about him to a third party, violating the U.S. Fair Credit Reporting Act. The Supreme Court ruled Robins needed to show he suffered a “concrete” injury, not simply to allege a statutory violation. 

“Because this area of the law is still in development, the Court believes that further briefing is required,” Kennelly said. 

As a consequence, Kennelly gave the Pavones until Sept. 21 to submit a supplementary memorandum on the issue of standing, with Mancini to reply to the memorandum by Sept. 28. 

The Pavone couple are represented by Zamparo Law Group, of suburban Hoffman Estates, and Francis & Mailman, of Philadelphia. Mancini is defended by Chicago lawyer George E. Becker. 

Antonio Pavone also has a putative class action pending against the Georgia-based LexisNexis and iyeTek, as well as Meyerkord & Meyerkord, a St. Louis-based personal injury firm. The Pavones allege iyeTek also sold the crash information to the Meyerkord firm, which then also contacted them about filing a lawsuit in connection with the crash.

The judge in that case recently rejected an attempt by LexisNexis to dismiss the action, saying Pavone should have the opportunity to sue the company for allegedly illegally selling his crash report and those of others.

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Organizations in this Story

Francis & Mailman George Becker & Associates LexisNexis Mancini Law Group Zamparo Law Group

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