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
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
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.