Fourth Circuit Holds Drivers Fall Short On Standing In Accident Report Privacy Claims

• Published date: 27 June 2022
• Law Firm: Ellis & Winters
• Author: Mr Christopher Flurry

Traditional plaintiffs' law firms found success as defendants in a recent Fourth Circuit case on the hotly contested issue of Article III standing in privacy litigation. In Garey v. James S. Farrin, P.C., No. 21-1478, 2022 WL 1815109 (4th Cir. 2022), the Fourth Circuit considered standing and more in a previously thwarted class action concerning federal privacy protection for motor vehicle records.

To have standing in federal court, a plaintiff must demonstrate a harm that is concrete and particularized, as well as either actual or imminent. See Spokeo, Inc. v. Robins, 578 U.S. 330 (2016). This Constitutional requirement creates challenges for many would-be privacy litigation plaintiffs, particularly in the context of class-action litigation, because the harm of a data breach or other privacy concern is often nebulous.

Potential classes in privacy litigation often explore statutory violations as a potential avenue to standing. The U.S. Supreme Court recently clarified that plaintiffs asserting standing under a statutory cause of action must "identify a close historical or common-law analogue for their asserted injury," as well as its conventional redressability through litigation. Transunion LLC v. Ramirez, 594 U.S. ___, 141 S.C. 2190, 2204 (2021). In Transunion, a class action, the Supreme Court held that allegations of Fair Credit Reporting Act (the "FCRA") violations alone fell short of the "concrete injury" a plaintiff must demonstrate for Article III standing. The simple reason: For most of the class members, alleged inaccurate credit reports were never disseminated to anyone. There was no harm. (For more on Transunion, see our September 2021 Best in Class post.)

Following Transunion's Path in Federal Privacy Protection Statutes

In Garey v. James S. Farrin, P.C., the Fourth Circuit had the opportunity to consider a different federal privacy protection-the Driver's Privacy Protection Act (the "DPPA"). The case presented the court with the chance to conduct a detailed statutory interpretation analysis of a number of novel issues, including whether drivers' licenses or DMV databases are "motor vehicle records," and thereby information protected by federal privacy law, and whether restrictions on the use of information impinge on the First Amendment. However, the Fourth Circuit held it only needed to interpret a single word, the word "from."

In Garey, drivers who had been involved in car accidents brought suit against several law firms "who wish to...