Author: Kevin Russell

On Wednesday, the Court heard oral argument in Maracich v. Spears, a case involving the interpretation of the Driver’s Privacy Protection Act (DPPA).  As described in our preview, the DPPA generally prohibits the use of data from a department of motor vehicles for solicitation without the driver’s prior consent.  The defendants in Spears nonetheless used driver data without such consent to identify and contact potential clients in a class action law suit.  The question before the Supreme Court is whether that use falls within a “litigation exception” in the statute, which applies to driver information used “in connection with any civil” litigation.

It is not hard to predict the outcome of a case in which both parties, and the United States as an amicus, agree on the answer to the question presented.  Yesterday, the Court made it unanimous by agreeing with everyone else and reversing the Ninth Circuit in  Los Angeles County Flood Control District v. Naturnal Resources Defense Council, Inc., No. 11-460.

Back in 2006, some South Carolina lawyers filed a putative class action lawsuit on behalf of four car purchasers against hundreds of state car dealerships.  They alleged that the dealers had charged unlawful fees in violation of a state consumer protection statute.  In the course of the case, the lawyers obtained from the South Carolina Department of Motor Vehicles the names and contact information of thousands of other state residents who had also paid the challenged fee.  They then wrote to the consumers, offering to talk to them about potentially joining the lawsuit. Perhaps believing that two can play this game, one of the lawyers for the car dealers rounded up some consumer clients of his own and sued the original attorneys for more than $200 million, alleging that the solicitations violated the federal Driver’s Privacy Protection Act (DPPA). On Wednesday, January 9, the Court will hear oral argument in Maracich v. Spears to decide whether that turnabout is fair play or, instead, is barred by the DPPA’s “litigation exception.”  The DPPA plaintiffs will be represented by Phillip N. Elbert, of the Tennessee firm Neal & Harwell PLC.  The defendants are represented by Paul Clement of Bancroft PLLC.

At yesterday’s oral argument in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., the Court spent very little time addressing the question it had granted certiorari to decide: whether the Clean Water Act’s permitting requirements apply when someone channels water from one part of a river to another through a concrete channel or similar flood control mechanism.  The lack of discussion of the question presented is not surprising given that, as I described in the argument preview, everyone in the case agrees that the answer to that question is “No.”  Instead, most of the argument focused on what the Court should do with the case in light of that consensus.  The flood control district, represented by Timothy Coates of Greines, Martin, Stein & Richland LLP, argued that the Court should reverse the Ninth Circuit and make clear that the order ends the case.  The United States, represented by Assistant to the Solicitor General Pratik Shah, urged the Court to simply vacate the decision below and remand the case for the Ninth Circuit to decide whether there is anything left.  And Aaron Colangelo of the Natural Resources Defense Council urged the Court to affirm on an alternative ground (albeit one that the Ninth Circuit itself had rejected).

Sometimes a case doesn’t turn out the way the Supreme Court likely thought it would when it granted certiorari.  Last week, Lyle reported on the unexpected turn of events in Vance v. Ball State University, when the university refused to defend the rule under which it had prevailed in the court of appeals, instead agreeing in large part with the basic standard proposed by the plaintiff and the United States.   Something similar has happened in a case scheduled for argument tomorrow, Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc..  In that case, the Court granted certiorari to decide whether the Clean Water Act’s permitting requirements apply when someone channels water from one part of a river to another through a concrete channel or similar flood control mechanism.  It turns out that all the parties, and the United States as amicus, agree that the answer to that question is “No.”  The only thing the parties dispute is how that answer should affect the outcome in this particular litigation, a question the Court likely would not have granted certiorari to decide standing alone.