Pichler v. UNITE

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit

9-9-2008

Pichler v. UNITE
Precedential or Non-Precedential: Precedential

Docket No. 06-4522

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 06-4522
06-4721

ELIZABETH PICHLER; KATHLEEN F. KELLY; RUSSELL
CHRISTIAN; DEBORAH BROWN; SETH NYE; HOLLY
MARSTON; KEVIN QUINN; JOSE L. SABASTRO;
DEBORAH A. SABASTRO; THOMAS RILEY; AMY RILEY;
RUSSELL DAUBERT; CARRIE DAUBERT

v.

UNITE (UNION OF NEEDLETRADES, INDUSTRIAL AND
TEXTILE EMPLOYEES, AFL-CIO), A NEW YORK
UNINCORPORATED ASSOCIATION; BRUCE RAYNOR, A
NEW YORK RESIDENT; INTERNATIONAL
BROTHERHOOD OF TEAMSTERS AFL-CIO, DOES 1-10

UNITE HERE,
Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cv-02841)
District Judge: Hon. Stewart Dalzell

Argued December 6, 2007

Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit
Judges.

(Filed: September 9, 2008)
Paul R. Rosen
David B. Picker (Argued)
Spector Gadon & Rosen, P.C.
1635 Market Street, 7th Floor
Philadelphia, PA 19103
Counsel for Appellant/Cross-Appellee

Lawrence T. Hoyle, Jr. (Argued)
Arlene Fickler
Arleigh P. Helfer III
John R. Timmer
Hoyle, Fickler, Herschel & Mathes LLP
One South Broad Street, Suite 1500
Philadelphia, PA 19107
Counsel for Appellee/Cross-Appellant

OPINION OF THE COURT

CHAGARES, Circuit Judge.

This case presents several issues of first impression in this
court of appeals regarding application of the Driver’s Privacy
Protection Act of 1994 (the DPPA), 18 U.S.C. §§ 2721-2725.
After certifying a class to proceed against the defendant-labor
union, the District Court construed certain provisions of the DPPA
and granted summary judgment to all but three of the named
plaintiffs (plaintiffs). The court found that the union’s labor
organizing activities violated plaintiffs’ privacy rights under the
DPPA and awarded monetary and injunctive relief. However, the
court granted the union summary judgment on plaintiffs’ claims for
punitive damages and dismissed the claims of the three other
plaintiffs. The court deferred judgment as to class-wide relief,
awaiting appellate clarification on the novel issues raised. Both
sides have appealed. We will affirm in part, vacate in part, and
remand for further proceedings.

2
 I.

In the fall of 2002, the Union of Needletrades, Industrial &
Textile Employees AFL-CIO (UNITE)1 decided to launch a union
organizing campaign targeting Cintas Corporation (Cintas). Cintas,
the largest domestic employer in the industrial laundry industry, is
philosophically opposed to unions and union organizing. UNITE
was concerned with what it saw as Cintas’ low wages, poor
benefits, unsafe working conditions, discriminatory practices, and
violations of various labor laws. The International Brotherhood of
Teamsters AFL-CIO (Teamsters) already represented some Cintas
employees, and the two unions therefore agreed to work together
on the campaign.2

From its inception, a major component of the campaign to
organize and unionize Cintas workers was finding potential legal
claims against Cintas. UNITE sought to use litigation as a means
of raising the standards in the industrial laundry industry, and to
demonstrate to Cintas’ employees the effectiveness and usefulness
of labor organizing. UNITE believed that house calls were
essential to the campaign’s success because it thought workers
would be reluctant to talk to union organizers at work for fear of
retaliation by Cintas management. In order to contact employees,
UNITE compiled lists of names and addresses of presumed Cintas
workers from a variety of sources. Among these sources, UNITE
used license plate numbers on cars found in Cintas parking lots to
access information contained in state motor vehicle records relating
to those license plates. This technique is known as “tagging.”

1
In July of 2004, UNITE merged with the Hotel Employees
and Restaurant Employees International Union (HERE), and the
combined entity has become known as “UNITE HERE.” For the
sake of simplicity, we will refer to the entity that is a defendant in
this case as “UNITE.”
2
The Teamsters, however, are no longer a party to this case.
The District Court approved a settlement between the Teamsters
and the plaintiffs and dismissed the Teamsters from the case. See
Pichler v. UNITE, 446 F. Supp. 2d 353, 365 (E.D. Pa. 2006).

3
 Generally, UNITE organizers would enter or observe a
Cintas parking lot and either write down or dictate into a tape
recorder the license plate numbers on cars seen parked in, entering,
or leaving the lot. The organizers would then take their lists of
license plate numbers and access motor vehicle records either by
using a Westlaw database or through private investigators or
“information brokers.” Appendix (App.) 229. The information
brokers would—either directly or through intermediaries—obtain
the information by applying to state motor vehicle bureaus.

Through these methods, UNITE accessed the motor vehicle
records of the plaintiffs and a plaintiff class estimated by the
parties to consist of between 1,758 and 2,005 Cintas employees, or
relatives or friends of Cintas employees. UNITE visited the homes
of many of these class members as well. During one such home
visit on February 7, 2004, two women approached the house of
plaintiff Kevin Quinn and rang his doorbell. When Quinn opened
the door, they asked for him by name. He replied “That’s me.”
App. 238. When the women informed him that “they were
organizing a union campaign against Cintas,” he told them he was
not interested and shut the door. Id. The women returned to their
car and departed.

In addition to Quinn, plaintiffs include other individuals
employed by Cintas at all times relevant to this case—Elizabeth
Pichler, Jose Sabastro, Thomas Riley, Seth Nye, and Russell
Daubert. 3 Plaintiffs also include several non-Cintas
employees—Russell Christian, Deborah Sabastro, Carri Daubert,
Holly Marston, and Amy Riley. Russell Christian is the boyfriend
and housemate of Cintas employee Kathleen Kelly (who the
District Court dismissed for lack of standing).4 Christian owns the

3
The caption contains the name of one additional
plaintiff—Deborah Brown. Brown stipulated to the dismissal of
her claim without prejudice, and so her claim is not now before us.
See Pichler v. UNITE, 228 F.R.D. 230, 240 (E.D. Pa. 2005).
4
Unlike the District Court’s finding that Deborah Sabastro
and Carri Daubert lacked standing, plaintiffs have not appealed the
similar dismissal of Kathleen Kelly. Appellant Br. at 49.

4
car Kelly drives and is the person whose motor vehicle records
UNITE accessed. When a UNITE organizer came to their home,
he asked to speak to Christian. Holly Marston is the mother of
Seth Nye, and the two co-own the car whose records were accessed
(thereby obtaining the identities of both individuals). Amy Riley
is Thomas Riley’s wife, and they co-own the car whose records
were searched as well. Deborah Sabastro and Carri Daubert are the
wives of Jose Sabastro and Russell Daubert, but UNITE accessed
only their husbands’ motor vehicle records as their cars were
registered to their husbands. The court dismissed both wives’
claims for lack of standing.

The original complaint in this case was filed on June 28,
2004. App. 27. Shortly thereafter, plaintiffs filed a one-count
amended class action complaint alleging that the Teamsters,
UNITE, and UNITE’s President, Bruce Raynor, violated the
DPPA.

On May 31, 2005, the court certified a class to proceed
against UNITE, though not against Raynor, and dismissed the
claims of Kathleen Kelly, Carri Daubert, and Deborah Sabastro for
lack of standing. See Pichler v. UNITE, 228 F.R.D. 230 (E.D. Pa.
2005) (Pichler I). On August 30, 2006, the court granted summary
judgment against UNITE and awarded the plaintiffs $2,500 each,
and granted summary judgment in favor of Raynor. See Pichler v.
UNITE, 446 F. Supp. 2d 353 (E.D. Pa. 2006) (Pichler II). Pursuant
to Federal Rule of Civil Procedure 54(b), the court also certified
the case for appellate review, deferring the questions about class-
wide and injunctive relief. Finally, on October 17, 2006, the court
amended its previous judgment and granted UNITE summary
judgment on the issue of punitive damages. See Pichler v. UNITE,
457 F. Supp. 2d 524 (E.D. Pa. 2006) (Pichler III). The court also
granted separate awards to Thomas Riley and Amy Riley, co-
owners of a vehicle whose records UNITE searched,5 and
permanently enjoined UNITE and its employees from using or

5
The court had already granted separate awards to co-
owners Seth Nye and Holly Marston in its August 30, 2006
judgment.

5
disclosing any of the plaintiffs’ personal information obtained by
UNITE in violation of the DPPA. This appeal followed.

II.

The District Court had subject matter jurisdiction over this
federal question action under 28 U.S.C. § 1331. We have
jurisdiction over this appeal from the final decision of the District
Court pursuant to 28 U.S.C. § 1291.6

6
We agree with the parties that the District Court properly
certified this case pursuant to Federal Rule of Civil Procedure
54(b). See 10 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2654 (3d ed. 1998) (explaining Rule
54(b)’s goal of avoiding “the possible injustice of a delay in
entering judgment . . . as to fewer than all of the parties until the
final adjudication of the entire case by making an immediate appeal
available”). There are two basic conditions on the rule’s
applicability: “(1) there has been a final judgment on the merits,
i.e., an ultimate disposition on a cognizable claim for relief; and (2)
there is ‘no just reason for delay.’” Berckeley Inv. Group, Ltd. v.
Colkitt, 455 F.3d 195, 202 (3d Cir. 2006) (quoting Curtiss-Wright
Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8 (1980)).

In this case, both requirements are met. The District Court
granted summary judgment as to UNITE’s liability under the
DPPA and addressed all remedial issues except attorneys’
fees—granting liquidated damages, denying punitive damages, and
granting injunctive relief. See Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 199-203 (1998) (explaining that a decision on
the merits is a final decision as a matter of federal law under 28
U.S.C. § 1291 even when the recoverability or amount of
attorneys’ fees for the litigation remains to be determined). Thus,
all the rights and liabilities of UNITE, vis-a-vis the plaintiffs, have
been fully adjudicated and finally decided. So too, the District
Court found no just reason for delaying an appeal, and explained
its rationale for this finding. See Carter v. City of Philadelphia,
181 F.3d 339, 346 (3d Cir. 1999) (requiring that district courts
explain their reasons for certifying a judgment for appeal under

6
 We review the District Court’s construction of federal
statutes de novo. Chao v. Cmty. Trust Co., 474 F.3d 75, 79 (3d
Cir. 2007). We also review a grant or denial of summary judgment
de novo, applying the same standard as the District Court. Marten
v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007). Summary judgment
is only appropriate if “there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); DL Res., Inc. v. FirstEnergy Solutions Corp.,
506 F.3d 209, 216 (3d Cir. 2007). On cross-motions for summary
judgment, the court construes facts and draws inferences “in favor
of the party against whom the motion under consideration is
made.” Samuelson v. LaPorte Cmty. Sch., 526 F.3d 1046, 1051
(7th Cir. 2008) (quotation marks omitted). The court may not,
however, weigh the evidence or make credibility determinations as
“these tasks are left for the fact-finder.” Pertruzzi’s IGA
Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224,
1230 (3d Cir. 1993).

III.

Plaintiffs contend that the District Court erred in granting
defendants’ summary judgment motion on the issue of punitive
damages and that they were denied their Seventh Amendment right
to a jury trial on that issue.7

Rule 54(b)). We find no error in the District Court’s finding that
there was no just reason for delay. Accordingly, the requirements
of Rule 54(b) are met, and we have appellate jurisdiction over the
final decision of the District Court.
7
The remedial section of the DPPA provides:

(b) Remedies.--The court may award--
(1) actual damages, but not less than liquidated
damages in the amount of $2,500;
(2) punitive damages upon proof of willful or
reckless disregard of the law;
(3) reasonable attorneys’ fees and other litigation
costs reasonably incurred; and
(4) such other preliminary and equitable relief as the

7
 A.

The parties filed cross-motions for summary judgment with
the District Court, and submitted certain jointly stipulated facts for
purposes of disposing of the motions. The court properly granted
summary judgment as to UNITE’s liability (except as noted in
section V, infra) on the grounds that uncontroverted evidence
established that UNITE acted for an impermissible purpose, in
violation of the DPPA. Pichler III, 457 F. Supp. 2d at 531.

Regarding the issue of summary judgment on plaintiffs’
request for punitive damages, however, the District Court seems to
have applied an inappropriate standard. The court assumed that
awarding remedies was simply “in its discretion.” Id. at 527.
Specifically, rather than determining whether there were genuine
issues of material fact as to whether UNITE willfully or recklessly
contravened the DPPA as § 2724(b)(2) requires, the court found
that “[t]he DPPA plainly gives us the discretion to award or to deny
punitive damages, even if UNITE violated the DPPA and did so
willfully and recklessly. We must craft an appropriate award
bearing in mind the purposes of the statute and the relevant
jurisprudence on punitive damages.” Id. at 531 (emphasis in
original). In so doing, the court considered plaintiffs’ arguments
concerning UNITE’s prior knowledge of the DPPA following
UNITE’s involvement in earlier litigation 8 and UNITE’s continued
use of motor vehicle information. The court also considered the

court determines to be appropriate.

18 U.S.C. § 2724(b).
8
I n Tarkington v. Hanson and UNITE, No. 4-00-cv-00525
JMM (E.D. Ark. Aug. 25, 2000), the plaintiffs therein alleged that
UNITE obtained motor vehicle license plate numbers from vehicles
parked in the Dillard’s Distribution Center in Mabelvale, Arkansas,
which UNITE used to obtain personal information. The parties
eventually settled the case. President Bruce Raynor discussed the
terms of the settlement with UNITE’s counsel as it was being
negotiated and Raynor executed the settlement documents on
behalf of UNITE. See Pichler II, 446 F. Supp. 2d at 364.

8
fact that UNITE’s legal department distributed a memorandum
directing its campaigners not to use “license plate numbers to
obtain any information from Department of Motor Vehicles
records, including names and addresses.” Id. (quotation marks
omitted). The court found that “this clear instruction, plus the
certainty that further license plate retrievals will result in costly
damages awards, will effectively deter UNITE from further
violations of the DPPA. Thus, we achieve deterrence without
imposing punitive damages.” Id. at 532 (footnote omitted). The
court refused to award punitive damages, deeming them
“unnecessary” in this case. Id.

The District Court concluded that it had discretion to
fashion an award, but it did not determine whether summary
judgment was appropriate on the issue of punitive damages given
the requirements of § 2724(b)(2). The court did not apply the
standards for summary judgment, nor did it even mention summary
judgment in its analysis. Furthermore, it appears that the court
improperly engaged in weighing of evidence on the summary
judgment record. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Bragen v. Hudson News Co., 278 F.2d 615, 618 (3d Cir.
1960). Accordingly, we will vacate the court’s denial of punitive
damages and remand for the court to address explicitly whether
summary judgment was appropriate on the issue of punitive
damages.

B.

If, on remand, the District Court determines that summary
judgment is appropriate as to plantiffs’ punitive damages claim,
then a trial will be unnecessary. In re TMI Litig., 193 F.3d 613,
725 (3d Cir. 1999); see Tull v. United States, 481 U.S. 412, 419
(1987). However, if the District Court determines that summary
judgment is inappropriate, we agree with plaintiffs that they are
entitled to a jury trial on their punitive damages claim, as we
discuss below.

The Supreme Court has instructed that “[b]efore inquiring
into the applicability of the Seventh Amendment, we must ‘first
ascertain whether a construction of the statute is fairly possible by

9
which the [constitutional] question may be avoided.’” City of
Monterey v. Del Monte Dunes, 526 U.S. 687, 707 (1999) (quoting
Tull, 481 U.S. at 417 n.3). It is clear that the DPPA makes no
mention of a right to a jury trial. As the District Court properly
observed, “[t]he DPPA does not provide for a jury trial on this (or,
for that matter, any) issue.” Pichler III, 457 F. Supp. 2d at 531.9
Accordingly, we must engage in a Seventh Amendment analysis.
See Cox v. Keystone Carbon Co., 861 F.2d 390, 393 (3d Cir.
1988).

The Seventh Amendment provides that “in Suits at common
law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved . . . .” U.S. Const. amend.
VII. Consistent with this textual mandate that the jury right be
preserved, the Supreme Court has recognized:

our interpretation of the Amendment has been
guided by historical analysis comprising two
principal inquiries: “[F]irst, whether we are dealing

9
UNITE argues that the language of the DPPA vests the
court—not a jury—with discretion to award damages and,
therefore, plaintiffs have no right to a jury trial. See 18 U.S.C. §
2724(b) (“The court may award . . . punitive damages . . . .”).
Because “the court” can refer to the judge, the jury, or some
combination of the two, we reject UNITE’s argument that the
language evinces Congress’s clear intention to abrogate the jury
trial right for punitive damages. Along these lines, the fact that the
statute seems to indicate an exercise of discretion does not alter our
conclusion. There is ample “historical evidence that cases
involving discretionary monetary relief were tried before juries.”
Feltner, 523 U.S. at 353. Indeed, in Feltner, where the language of
the statute seemed to demand discretion on the part of the trial
judge (“the copyright owner may elect . . . an award of statutory
damages . . . in a sum of not less than $500 or more than $20,000
as the court considers just . . . .” (emphasis added)), the Court held
that “the Seventh Amendment provides a right to a jury trial on all
issues pertinent to an award of statutory damages . . . including the
amount itself.” Id. at 355.

10
 with a cause of action that either was tried at law at
the time of the founding or is at least analogous to
one that was. If the action in question belongs in the
law category, we then ask whether the particular trial
decision must fall to the jury in order to preserve the
substance of the common-law right as it existed in
1791.”

Del Monte Dunes, 526 U.S. at 708 (quoting Markman v. Westview
Instruments, Inc., 517 U.S. 370, 376 (1996)) (quotation marks and
citation omitted).

1.

Conducting the first inquiry, the Supreme Court has noted
that “[t]he Seventh Amendment [] applies not only to common-law
causes of action, but also to ‘actions brought to enforce statutory
rights that are analogous to common-law causes of action
ordinarily decided in English law courts in the late 18th century, as
opposed to those customarily heard by courts of equity or
admiralty.’” Feltner v. Columbia Pictures Television, Inc., 523
U.S. 340, 348 (1998) (quoting Granfinanciera, S.A. v. Nordberg,
492 U.S. 33, 42 (1989)). To determine whether a statutory cause
of action is more analogous to actions decided in courts of law or
equity “we examine both the nature of the statutory action and the
remedy sought.” Id. It is undisputed that plaintiffs are seeking the
remedy of legal relief under the DPPA. See id. at 352 (“We have
recognized the ‘general rule’ that monetary relief is legal . . . . ”).
We must next determine whether civil suits seeking legal relief
under the DPPA are analogous to common law causes of action
ordinarily decided in courts of law in the late 18th century.

The Supreme Court in Del Monte Dunes considered, inter
alia, whether an action for legal relief under 42 U.S.C. § 1983 “is
an action at law within the meaning of the Seventh Amendment.”
526 U.S. at 709. Recognizing that the right to a jury extends to
statutory claims that did not exist at common law, the Court noted
that the right inures in claims that “can be said to ‘soun[d] basically
in tort,’ and seek legal relief.” Id. (quoting Curtis v. Loether, 415
U.S. 189, 195 (1974)). The Court then looked to the statute at

11
issue and found that “there can be no doubt that claims brought
pursuant to § 1983 sound in tort. Just as common-law tort actions
provide redress for interference with protected personal or property
interests, § 1983 provides relief for invasions of rights protected
under federal law.” Id. The Court concluded that because the §
1983 suit sought legal relief and sounded in tort, it was an action
at law.

Like § 1983, the DPPA sounds in tort. Just as common-law
tort actions provide redress for interference with protected personal
or property interests, so too does the DPPA. The DPPA provides
redress for violation of a person’s protected interest in the privacy
of his or her motor vehicle records and the identifying information
therein. Accordingly, plaintiffs’ claims for legal relief under the
DPPA are analogous to common law causes of action ordinarily
decided in the courts of law in the late 18th century. Cf. Samuel
Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev.
193, 213 n.1 (1890) (noting that “the common law has for a century
and a half protected privacy in certain cases”).

2.

Having established that “the action in question belongs in
the law category, we then ask whether the particular trial decision
must fall to the jury in order to preserve the substance of the
common-law right as it existed in 1791.” Markman, 517 U.S. at
376. The Supreme Court has acknowledged that “[w]e determine
whether issues are proper for the jury, when possible, ‘by using the
historical method’ . . . look[ing] to history to determine whether the
particular issues, or analogous ones, were decided by judge or by
jury in suits at common law at the time the Seventh Amendment
was adopted.” Del Monte Dunes, 526 U.S. at 718 (quoting
Markman, 517 U.S. at 378). Where an examination of history does
not provide a definitive answer as to the particular issues or
analogous issues, “we look to precedent and functional
considerations.” Del Monte Dunes, 526 U.S. at 718.

The Supreme Court has made clear that, historically, the
issue of punitive damages was tried to a jury in cases sounding in
tort. In Day v. Woodworth, 54 U.S. (13 How.) 363 (1851), the

12
Court acknowledged that decisions regarding punitive damages
should be “left to the discretion of the jury” and noted that this
principle was supported by “repeated judicial decisions for more
than a century.” Id. at 371; see id. (recognizing that issue of
punitive damages has “always” been a jury question). In particular,
the Court observed, “[i]t is a well-established priciple of the
common law, that in . . . all actions on the case for torts, a jury may
inflict what are called exemplary, punitive, or vindictive damages
upon a defendant . . . .” Id. Accordingly, we hold that the issue of
punitive damages in cases sounding in tort (such as the DPPA)
“were decided by [a] jury in suits at common law at the time the
Seventh Amendment was adopted.” Del Monte Dunes, 526 U.S.
at 718.

Even if history did not provide a definitive answer to the
question of whether the issue of punitive damages should be tried
by a jury, both precedent and functional considerations support our
holding. First, regarding precedent, we held in Klinger v. State
Farm Mutual Auto Insurance Co., 115 F.3d 230 (3d Cir. 1997), that
because punitive damages constituted traditional legal relief, the
Seventh Amendment demanded that a jury assess whether punitive
damages were appropriate in a statutory bad faith action. Id. at
235-36; see also Tull, 481 U.S. at 422 (“Remedies intended to
punish culpable individuals . . . were issued by courts of law, not
courts of equity.”); Curtis, 415 U.S. at 196 (noting that the remedy
of punitive damages “is the traditional form of relief sought in the
courts of law”). Second, regarding functional considerations, “[i]n
actions at law predominantly factual issues are in most cases
allocated to the jury.” Del Monte Dunes, 526 U.S. at 720. The
relevant issue in this case is whether UNITE willfully or recklessly
disregarded the prohibitions of the DPPA. See 18 U.S.C. §
2724(b)(2). Trial issues of willfulness and recklessness are
common factual issues for juries to determine. See Metzger v.
Osbeck, 841 F.3d 518, 521 (3d Cir. 1988) (“[W]e cannot deprive
plaintiffs of an opportunity to have a jury resolve the issue of
[defendant]’s intent in their favor.”); United States v. House, 524
F.2d 1035, 1045 (3d Cir. 1975) (observing in tax evasion case that
“question of wilfulness is uniquely for the trier of fact” and
concluding that “[t]here was certainly a jury question with respect
to [defendant’s] wilfulness”); see also Fargo v. City of San Juan

13
Bautista, 857 F.2d 638, 641 (9th Cir. 1988) (“When reasonable
persons may disagree as to whether particular conduct constitutes
negligence, gross negligence, or recklessness, the question is one
of fact to be decided by the jury.”).

In sum, where there is a genuine issue of material fact
regarding the willfulness or recklessness of a defendant’s conduct,
we hold that the Seventh Amendment requires a trial by jury on the
issue of punitive damages under the DPPA.10

IV.

Plaintiffs next contend that the District Court erroneously
dismissed the claims of Carri Daubert and Deborah Sabastro for
lack of standing. UNITE searched the motor vehicle records of
their husbands—Russell Daubert and Jose Sabastro—revealing the
couples’ shared addresses. According to the court, as neither Carri
Daubert nor Deborah Sabastro were the registered owners of the
vehicles about which UNITE obtained information, they suffered
no invasion of an interest that the DPPA protects, and they lack
standing to sue. We agree.

Article III of the Constitution limits the “judicial Power” of
the United States to the adjudication of “Cases” or “Controversies.”
U.S. Const. art. III, § 2. Courts enforce the case-or-controversy
requirement through several justiciability doctrines that “‘cluster
about Article III.’” Allen v. Wright, 468 U.S. 737, 750 (1984)
(quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-79 (D.C.
Cir. 1983) (Bork, J., concurring)). They include standing, ripeness,
mootness, the political-question doctrine, and the prohibition on
advisory opinions. See DaimlerChrysler Corp. v. Cuno, 547 U.S.

10
It is true, as UNITE argues, that neither the DPPA nor the
Seventh Amendment limits the trial judge’s traditional authority to
dispose of an issue before sending it to a jury where “the evidence
is uncontradicted and raises only [questions] of law.” See Tull, 481
U.S. at 419. This authority, however, is not so broad as to permit
the judge to find facts or resolve contradictory evidence at
summary judgment. See McCabe v. Ernst & Young, LLP, 494
F.3d 418, 424 (3d Cir. 2007).

14
332, 352 (2006). “[P]erhaps the most important of these doctrines”
is standing. Allen, 468 U.S. at 750.

The “irreducible consitutional minimum” of Article III
standing consists of the following three elements:

First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest
which is (a) concrete and particularized; and (b)
actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between
the injury and the conduct complained of—the injury
has to be fairly traceable to the challenged action of
the defendant, and not the result of some third party
not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(quotation marks, footnote, and citations omitted). The main issue
regarding the standing of Carri Daubert and Deborah Sabastro is
whether they have suffered “an invasion of a legally protected
interest” under the DPPA. Id. at 560; see Warth v. Seldin, 422 U.S.
490, 500 (1975) (“The actual or threatened injury required by Art.
III may exist solely by virtue of ‘statutes creating legal rights, the
invasion of which creates standing. . . .’”) (quoting Linda R. S. v.
Richard D., 410 U.S. 614, 617 n.7 (1973)).

The DPPA provides that a “person who knowingly obtains,
discloses or uses personal information, from a motor vehicle
record, for a purpose not permitted under this chapter shall be
liable to the individual to whom the information pertains, who may
bring a civil action. . . .” 18 U.S.C. § 2724(a). The DPPA thus
confers a cause of action to “the individual” whose personal
information from their motor vehicle records is at issue. It is
undisputed that Russell Daubert and Jose Sabastro had a viable
cause of action under the DPPA because they were, respectively,
“the individual” who was the registered owner of a vehicle about
which UNITE obtained information. In contrast, neither Carri
Daubert nor Deborah Sabastro were registered owners of the

15
vehicles and, in fact, their names did not appear anywhere on the
motor vehicle records. Nonetheless, in arguing that they have
standing to sue under the DPPA, they focus on the fact that they
share personal information—such as their addresses—with their
husbands and, therefore, the personal information “pertains” to
them as well. We believe that this argument reads § 2724(a) too
broadly.

The DPPA protects the privacy interests of “the individual
to whom the [personal] information pertains . . . .” Id. Notably,
Congress chose to employ the singular term “the individual” in this
section. To adopt Carri Daubert’s and Deborah Sabastro’s
argument, we would have to rewrite the statute to replace “the
individual” with the words “any individuals.” Taking their
argument to its logical conclusion, the DPPA would grant a cause
of action to anyone (e.g., spouses, children, parents, friends, other
relatives) who, for instance, resides at an address improperly
obtained from motor vehicle records.11 This would be an
unwarranted extension of § 2724(a).

The consent provisions in 18 U.S.C. §§ 2721(b)(11)-(13)
support our singular reading of the phrase “the individual” in the
DPPA. Section (b)(13), for instance, permits personal information
from motor vehicle records to be disclosed upon the written
consent of “the individual to whom the information pertains.” See
also id. §§ (b)(11), (12) (requiring consent of “the person to whom
such personal information pertains”). If we credit plaintiffs’
argument, then presumably they—or anyone—residing at their
home address could consent to the release of motor vehicle records
that are not their own. Put another way, under plaintiffs’ argument,
an extended family member or other person residing at a house
would be considered any “individual to whom” the address and
telephone number “pertains” and that person could consent to

11
Recognizing the implications of their argument, plaintiffs
propose a limiting principle: a proper DPPA plaintiff must be “a
relative by blood or marriage and member of the same householf
as the record owner.” Appellee Reply Br. at 60. We reject this
limitation as it finds no support in the language or history of the
statute.

16
release the “personal information” of anyone else residing in the
house. Such a result would run contrary to the DPPA’s purpose of
preserving the privacy rights of individuals.

Our view of § 2724(a) is also supported by § 2725(3), which
limits the reach of the term “personal information” to “information
that identifies an individual. . . .” 18 U.S.C. § 2725(3) (emphasis
added). We hold that individuals such as Carri Daubert and
Deborah Sabastro, who are not specifically identified in a motor
vehicle record, have no legally protected privacy interest under the
DPPA. See Pichler I, 228 F.R.D. at 241 (stating that UNITE
“could not have violated [their] own DPPA-protected privacy
interests because the motor vehicle abstracts contain no
information about them”). Because Carri Daubert and Deborah
Sabastro have not suffered “an invasion of a legally protected
interest,” they lack standing to sue, and, accordingly, we will affirm
dismissal of their claims under the DPPA .

V.

Plaintiffs’ final contention on appeal is that they are entitled
to cumulative liquidated damages awards.12 Specifically, they
claim that the DPPA entitles them to a separate liquidated damages
award for each time UNITE “obtain[ed]” or “us[ed]” plaintiffs’
personal information,13 and that the court erred by granting
summary judgment to UNITE on this issue despite issues of fact as
to the propriety of multiple awards. Appellant Br. at 55-56.

While both parties seem to view the statutory interpretation
issue as a binary one (either allowing multiple liquidated damage
awards for every obtaining or use, or not), we see the statutory
12
As plaintiffs have not argued that the District Court erred
by denying them a jury trial on the issue of cumulative liquidated
damages awards, we need not discuss whether plaintiffs have a
right to a jury trial on this issue.
13
“Of the nine named plaintiffs, three claim they suffered
two violations each and seek $5,000 per person, and six claim they
suffered three violations each and seek $7,500 per person.” Pichler
III, 457 F. Supp. 2d at 529.

17
language as presenting a more nuanced damages scheme. There
are two distinct questions: first, whether the DPPA permits a
plaintiff to recover two separate liquidated damage awards because
a defendant obtains and then uses plaintiff’s confidential
information; and second, whether the DPPA permits a plaintiff to
recover multiple liquidated damage awards where a defendant has
used plaintiff’s confidential information on more than one
occasion.

A.

As to this first question, plaintiffs point out that the DPPA
is written in the disjunctive (“a person who knowingly obtains,
discloses or uses”), and so each act of obtaining, disclosing, or
using of confidential information constitutes a separate violation of
the statute. Plaintiffs contend that since the mere obtaining of
personal information is a violation of the DPPA entitling a plaintiff
to damages and other relief “it follows that a further use of that
information is a separate invasion of privacy and a separate
violation . . . that independently entitles the victim to the relief
prescribed by section 2724(b).” Appellant Br. at 56 (emphasis in
original).14

Merely because both obtaining and using motor vehicle
information for an impermissible purpose violate the DPPA (a
premise with which we agree), it does not follow that each
independent violation entitles plaintiffs to a separate liquidated
damages award. The key phrase for purposes of our analysis is the
DPPA’s provision of $2,500 in “liquidated damages.” 18 U.S.C.
§ 2724(b)(1). The damages contemplated by the statute are not
mere generic damages, see, e.g., 5 U.S.C. § 552a(g)(4)(A) (“in no
case shall a person entitled to recovery receive less than the sum of
$1,000”), or even “statutory damages” as such, see, e.g., 15 U.S.C.
§ 1117(d) (providing that instead of actual damages, a plaintiff may

14
Plaintiffs do not argue, however, that mailings in
connection with the Veliz v. Cintas litigation count as separate
uses. Pichler III, 457 F. Supp. 2d at 529. Veliz was one of six
federal cases UNITE brought or assisted in bringing against Cintas
from 2002 through October 13, 2004. App. 232-34.

18
recover “an award of statutory damages in the amount of not less
than $1,000 and not more than $100,000 . . . .”), but rather
liquidated damages. The District Court noted correctly that
“Congress’s decision to use the technical term ‘liquidated
damages’ in the DPPA suggests that it intended to incorporate the
locution’s well-understood meaning.” Pichler I, 228 F.R.D. at 244.
This “well understood meaning” undermines plaintiffs’ position.

Under the common law of contracts, liquidated damages
reflect an ex ante agreement of the parties. See E. Allan
Farnsworth, Contracts § 12.18 (4th ed. 2004) (quoting Banta v.
Stamford Motor Co., 92 A. 665, 667 (Conn. 1914) (“The standard
of measure here is not furnished by the plaintiff’s actual loss or
injury, as the event proved, but by the loss or injury which might
reasonably have been anticipated at the time the contract was made.
. . . It is the look forward and not backward that we are called upon
to take . . . .”)); see also In re Plywood Co., 425 F.2d 151, 154 (3d
Cir. 1970) (describing liquidated damages under New Jersey law
as “the sum a party to a contract agrees to pay if he breaks some
promise, and which, having been arrived at by a good faith effort
to estimate in advance the actual damage that will probably ensue
from the breach, is legally recoverable as agreed damages if the
breach occurs”) (quotation marks and citation omitted).15 To
incorporate the meaning of the term, we construe the DPPA with
an eye toward the “loss or injury which might reasonably have been
anticipated.” Banta, 92 A. at 667.

Congress clearly contemplated that in most cases, a
defendant who obtained motor vehicle information would put it to
some use. See Pichler III, 457 F. Supp. 2d at 530 (“Congress
surely understood that the usual case would involve at least one
instance of ‘obtain[ing]’ and one ‘use[ ],’ and it decided that a
plaintiff who did not or could not show actual damages could
nevertheless receive $2,500.”). Therefore, given Congress’s use of
the term “liquidated damages” and the $2,500 amount provided, we

15
In this case, of course, we have an artifically-constructed
“contractual” arrangement: rather than the parties themselves
agreeing on liquidated damages, Congress has forecast how these
damages would likely be fixed.

19
conclude that this amount encompasses both aspects of a
defendant’s “breach” of the DPPA—one instance of obtaining and
one of use—and that the defendant is limited to one liquidated
damage award in this situation. A contrary holding would
effectively result in a minimum award of $5,000 for every violation
of the DPPA—a result we do not believe Congress intended.

In response, plaintiffs contend that this result would
incentivize a defendant who has already obtained information to
then use it. This argument is unpersuasive. To begin with, the
DPPA provides for criminal liability, which should deter someone
who has obtained confidential information from calling attention
to his or her criminal conduct by using it. See Gen. Instrument
Corp. of Delaware v. Nu-Tek Elecs. & Mfg., Inc., 197 F.3d 83, 95
(3d Cir. 1999). Moreover, plaintiffs are free to elect actual, rather
than liquidated damages, and will certainly do so in appropriate
cases. See id.16 Further still, the DPPA permits the award of
punitive damages if the standard set forth in § 2724(b)(2) is met.

B.

While we understand Congress to have forecast “liquidated
damages” as $2,500 for the most likely violation of the DPPA
(obtaining and using confidential information), there is no reason
to think that such an amount covers all subsequent violations as
well. The plain language of the statute contains no such restriction.
See 18 U.S.C. § 2724(a). Accordingly, defendants can face
additional damages if, after obtaining a plaintiff’s personal
information in violation of the DPPA, they repeatedly use or
disclose that personal information.

The language of the DPPA indicates a certain degree of
discretion granted to the court in awarding damages. See 18 U.S.C.
§ 2724(b) (“The court may award”) (emphasis added); see also
Kehoe v. Fid. Fed. Bank & Trust, 421 F.3d 1209, 1216-17 (11th
Cir. 2005) (“The use of the word ‘may’ suggests that the award of

16
In a case involving stalking, for example, the obtaining of
information might cause very little actual damage, while the use of
such information is where the actual damages would lie.

20
any damages is permissive and discretionary. ‘This common-sense
principle of statutory construction is by no means invariable . . .
[but s]ince there is neither legislative history nor obvious
inferences from the structure that suggests a contrary intent, we
conclude that the use of the word ‘may’ implies a degree of
discretion. Thus, the district court, in its discretion, may fashion
what it deems to be an appropriate award.”) (citations omitted).
Given the discretionary language in the statute and that the statute
contains no limitation on the ability of the district court to grant
cumulative awards, we construe the DPPA to permit a district court
to grant such awards upon multiple uses or disclosures of
confidential information.

In this case, there appears to be evidence of multiple uses of
personal information in the summary judgment record, but the
District Court had a view that differed from ours regarding multiple
uses or disclosures. The court did acknowledge that multiple
awards of damages might be appropriate in cases where, for
instance, a DPPA violator “bombarded” a plaintiff with visits and
mailings. Pichler III, 457 F. Supp. 2d at 530 n.6. However, the
court determined that the record did not suggest such a “gross
disregard” of a plaintiffs’ privacy rights. As a result, the court,
relying upon its “Congressionally-authorized discretion,” awarded
$2,500 to each plaintiff. Id. at 530-31.

While the District Court, when all is said and done, has
discretion under the DPPA to fashion an award it deems
appropriate, it must address the outstanding issue of liability
regarding multiple uses of personal information. The District
Court must determine whether there is sufficient evidence of
multiple uses to proceed beyond summary judgment. Given our
construction of the DPPA and the fact that the District Court did
not appear to have applied the standards for summary judgment, we
will vacate its grant of summary judgment as to this issue and
remand for the District Court to address explicitly whether
summary judgment was appropriate on this issue.

VI.

UNITE’s first contention as cross-appellant addresses the

21
District Court’s finding of liability. UNITE claims that the court
found it to have obtained plaintiffs’ personal information “for a
purpose not permitted” under the DPPA only by erroneously
construing the DPPA’s “permissible uses” of personal information.

The DPPA is structured such that § 2721(a) provides the
general prohibition on the release and use of motor vehicle
information, and § 2721(b) enumerates fourteen specific exceptions
to the general prohibition. UNITE claims there are two exceptions
which make its tagging activities permissible: the “litigation
exception” and the “acting on behalf of the government” exception.
See 18 U.S.C. §§ 2721(b)(1), (4).17 The District Court carefully

17
The statutory text provides:

(b) Permissible uses. -- Personal information
referred to in subsection (a) shall be disclosed
for use in connection with matters of motor
vehicle or driver safety and theft, motor
vehicle emissions, . . . and, subject to
subsection (a)(2), may be disclosed as
follows:

(1) For use by any government agency,
including any court or law enforcement
agency, in carrying out its functions, or any
private person or entity acting on behalf of a
Federal, State, or local agency in carrying out
its functions.
...

(4) For use in connection with any civil,
criminal, administrative, or arbitral
proceeding in any Federal, State, or local
court or agency or before any self-regulatory
body, including the service of process,
investigation in anticipation of litigation, and
the execution or enforcement of judgments
and orders, or pursuant to an order of a
Federal, State, or local court.

22
analyzed the applicability of both exceptions and concluded that
UNITE’s activities did not fall within either. Pichler II, 446 F.
Supp. 2d at 368-71.

We need not address the District Court’s interpretation of
the litigation and the acting on behalf of the government exceptions
as we agree with the District Court that the language of the statute
is clear: “The Act contains no language that would excuse an
impermissible use merely because it was executed in conjunction
with a permissible purpose.” Id. at 367 (“[I]f UNITE had three
purposes for ‘obtain[ing], disclos[ing] or us[ing] [plaintiffs’]
personal information’ and two of those were ‘permissible uses’ but
the third was not, UNITE would still be liable for the third
purpose.”). Because UNITE obtained and used the confidential
information for an impermissible purpose—union organizing—it
does not matter what other permissible purpose UNITE may have
had.

UNITE advances a unique argument. It claims that its
labor-organizing purpose may not be severed from either its
litigation purpose or its acting on behalf of the government
purpose. For instance, UNITE contends that its

emphasis on litigation had a twofold purpose:
raising the standards in the industry for the benefit of
UNITE’s members, whether or not employed by
Cintas, and demonstrating to Cintas’ employees the
effectiveness and usefulness of organization. Thus,
UNITE’s activity in investigating potential litigation
was part and parcel of its unionizing campaign, not
separate and distinct from it.

Appellee Br. at 32.18

18 U.S.C. §§ 2721(b)(1), (4).
18
Our dissenting colleague relies upon a quotation from
Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King &
Stevens, P.A., 525 F.3d 1107 (11th Cir. 2008), that regards the
litigation exception. See Dissent at 3-4 (quoting Thomas, 525 F.3d

23
 The litigation component to UNITE’s campaign should not
obscure what UNITE was trying to accomplish—organizing labor.
The same may be said for its acting on behalf of the goverment
purpose. UNITE candidly admits that it launched the “campaign
to organize and unionize Cintas workers.” App. 226. Moreover,
the organizers themselves, in conducting their home visits,
unambiguously explained that they were “organizing a union
campaign against Cintas.” App. 238. Regardless of UNITE’s
attempts to mask this clear labor-organizing purpose behind the
veil of a litigation purpose or an acting on behalf of the government
purpose, Congress has not permitted UNITE to do so.

The statute clearly prevents obtaining or using personal
information “for a purpose not permitted under this chapter. . . .”
18 U.S.C. § 2724(a). It does not ask whether “litigation has
become an increasingly important organizing tool” because “unions
have found increasing resistance and difficulty using traditional
organizing tactics.” Appellee Br. at 31-32. The DPPA lists
fourteen permissible purposes in § 2721(b) and union organizing
is not one of them. Pichler II, 446 F. Supp. 2d at 367 (“As we have
already held, we will not engraft upon the DPPA a ‘labor
exception’ that would permit unions to acquire and use employees’
personal information, obtained from motor vehicle records, to
contact them during organizing campaigns.”). 19 Like the District

at 1115 n.5). We note that the Thomas court explicitly rejected as
waived the argument to which that quote pertained and, thus, the
quote constitutes dicta.
19
At oral argument, UNITE raised an alternative argument
suggesting that the Court engage in a “primary” versus “secondary”
purpose analysis under the DPPA in an attempt to escape liability.
UNITE failed to raise this argument at all before the District Court
or in any of the briefs before this Court, and only raised the
argument for the first time during oral argument. Despite the
dissent's comments to the contrary, we will consider this argument
waived and will not address it. See Skretvedt v. E.I. DuPont De
Nemours, 372 F.3d 193, 202-03 (3d Cir. 2004) (“We have held on
numerous occasions that ‘[a]n issue is waived unless a party raises
it in its opening brief, and for those purposes a passing reference to
an issue will not suffice to bring that issue before this court.’”)

24
Court, we decline to recognize an exception to the statute for which
Congress has not provided.20

Accordingly, we will affirm the judgment of the District
Court finding that UNITE obtained and used personal information
for a purpose not permitted by the DPPA.

VII.

UNITE’s second argument—that civil liability requires a
defendant knowingly obtain or disclose personal information for a
use the defendant knows is impermissible—is patently without
merit. Citing the similar language of §§ 2722 and 2724 of the
DPPA, UNITE contends that the District Court erred in holding
that the standard of civil liability—unlike the standard for criminal
liability—“does not require proof that a defendant had any
appreciation that its conduct was impermissible.” Appellee Br. at
37-38.

This double-knowledge requirement simply does not fit into
the DPPA’s statutory scheme.21 The provisions of §§ 2722(a) and

(quoting Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d
375, 398 (3d Cir. 1994)).
20
To hold otherwise would be to permit any union, or
indeed any law firm, to access the DMV information of individuals
at nearly any large company. Such companies are often involved
in, or at least susceptible to, litigation of some sort. If this legal
exposure was the only criterion necessary to render an entity’s
activities investigations in anticipation of litigation, the DPPA’s
privacy protections would mean very little.
21
In addition to our anaylsis set forth in the text, we concur
with the District Court’s analysis concerning the location of the
adverb “knowingly” within § 2724(a). Restating its explanation,
§ 2724(a)’s first two clauses describe the act that subjects a
defendant to civil liability (obtaining, disclosing, or using personal
information from a motor vehicle record), while the third clause
limits liability to acts done for “a purpose not permitted under this
chapter.” Pichler I, 228 F.R.D. at 241-42. “If Congress had

25
2724(a) that UNITE claims to be identical can be read consistently.
Section 2722(a) by itself does not create civil or criminal liability.
It merely describes what conduct is wrongful under the DPPA.
Section 2724(a), in turn, provides the standard for civil liability.
Section 2723 provides the standard for criminal fines.

Congress’ structuring of the DPPA—specifically, the
interplay amongst its recitation of unlawful acts, civil penalties, and
criminal penalties—is not unique. For instance, 18 U.S.C. §
842(a), like 18 U.S.C. § 2722, provides that “[i]t shall be unlawful
for any person” to commit certain acts or omissions violative of the
Controlled Substances Act. Section 842(c)(2), like 18 U.S.C. §
2723(a), creates criminal liability for violating those acts or
omissions “knowingly.” Section 842(c)(1), like 18 U.S.C. §
2724(a), creates civil liability for violating those acts or omissions,
but does not premise civil liability on knowing violations. In fact,
as we recognized in United States v. Green Drugs, 905 F.2d 694
(3d Cir. 1990), the strict liability standard is applicable for civil
violations of section 842(a).22 Analyzing the statute, we noted this
disparity in standards, observing that violation of 21 U.S.C. §
842(a) “subjects an offender to civil or penal penalties, depending
on whether the act was committed knowingly.” Id. at 695-96. We
observed further that “Congress, therefore, plainly differentiated
between civil and criminal violations of [§ 842(a)], implementing
different standards of fault.” Id. at 697. Similarly, here, we hold
that Congress differentiated between a knowing acquisition,
disclosure, or use to establish civil liability, and any knowing
violation to establish liability for a criminal fine.

M oreover, UNITE’s reading of the DPPA is
incomprehensible given the statute’s punitive damages provision.
Section 2724, as stated earlier, provides a civil cause of action

intended for ‘knowingly’ to refer not only to the act element but
also to the purpose element—so as to proscribe only those acts
done for a purpose not ‘knowingly’ permitted—it would have been
odd to locate the word ‘knowingly’” so removed from the purpose
element. Id. at 242.
22
In 1998, 21 U.S.C. §§ 842(5) and (10) were amended to
add the word “negligently.”

26
against “a person who knowingly obtains, discloses or uses
personal information . . . for a purpose not permitted” under the
statute. 18 U.S.C. § 2724(a). The DPPA continues that while the
“court may award” actual damages, it may award punitive damages
only “upon proof of willful or reckless disregard of the law.” 18
U.S.C. § 2724(b)(2). According to UNITE, however, there is no
violation of the statute absent evidence “that a defendant
appreciated the illegality of his conduct,” Appellee Br. at 37-38,
thus making every single violation one for which punitive damages
would apply. UNITE tries to save this argument by noting that
“liability for compensatory damages would be proper on proof that
a party appreciated it was engaging in wrongful conduct, but
punitive damages would be reserved for those instances where a
party knew it was violating the law or recklessly disregarded its
obligations under the law.” Appellee Reply Br. at 21. We cannot
conceive of what willful or reckless disregard for the DPPA could
be other than where a “party appreciated it was engaging in
wrongful conduct” under the DPPA.

Accordingly, we will affirm the judgment of the District
Court on this issue.

VIII.

UNITE’s final argument as cross-appellant addresses
plaintiffs’ burden to recover liquidated damages under the DPPA.
According to UNITE, the District Court erroneously construed §
2724(b), permitting plaintiffs to recover liquidated damages
without showing some measure of actual damages. We disagree.

UNITE begins its argument by noting—correctly—that we
must focus upon the plain language of the statute and if the statute
is unambiguous, our inquiry begins and ends with the statutory text.
Appellee Br. at 48 (citing BedRoc Ltd., LLC. v.United States, 541
U.S. 176, 183 (2004)). We agree with UNITE that the language of
§ 2724(b) is unambiguous, but we disagree about its meaning.

As we understand the plain meaning of the provision, the
two phrases therein grant, and then limit, the authority of the court
in awarding damages. Simply put, the first phrase (“The court may

27
award -- actual damages”) is a grant of authority to the court—it
enables the court to award actual damages, however high they
might be. The second phrase (“but not less than liquidated
damages . . .”), then, limits that authority on the low end of the
scale, creating a damage award floor. While the court may award
actual damages, it may not grant an award “less than liquidated
damages in the amount of $2,500.” 18 U.S.C. § 2724(b)(1). But
the first clause does not affect the baseline award of liquidated
damages in the amount of $2,500 for any DPPA violation that the
District Court chooses to compensate. In other words, the second
phrase creates a base amount below which the court may not go,
whether the plaintiff is able to prove actual damages or not.

Indeed, the Court of Appeals for the Eleventh Circuit,
considering the identical issue now before us, arrived at the same
conclusion as we reach here. See Kehoe v. Fidelity Fed. Bank &
Trust, 421 F.3d 1209 (11th Cir. 2005). The court in Kehoe began
its analysis by reviewing the text of § 2724 and determined that
“[t]here is no language in sub-section (b)(1) that confines
liquidated damages to people who suffered actual damages.” Id. at
1213. Instead, the court held that the second phrase of §
2724(b)(1) is not dependent upon proof of actual damages, but
rather that the two clauses are to be read in the disjunctive: a
plaintiff “may receive the greater of his actual damages or
$2,500.00.” Id. The court concluded that “[h]aving considered the
plain text of the DPPA’s remedial provision . . . a plaintiff need not
prove actual damages to recover liquidated damages.” Id. at 1216.

The Supreme Court’s opinion in Doe v. Chao, 540 U.S. 614
(2004), and the common law of privacy support this understanding
of the plain language as well. In Doe, the Supreme Court
considered the issue of whether the Privacy Act requires that
plaintiffs prove actual damages to qualify to receive statutory
damages. The Court ruled in the affirmative, but the difference
between the Privacy Act and the DPPA, as well as the Court’s
broader analysis, actually support our holding to the contrary here.

Unlike the DPPA, the Privacy Act contains language
providing that the defendant is liable for “actual damages sustained
by the individual as a result of [certain agency conduct] . . . , but in

28
no case shall a person entitled to recovery receive less than the sum
of $1,000.” 5 U.S.C. § 552a(g)(4)(A) (emphasis added).
Accordingly, “the simplest reading of that phrase looks back to the
immediately preceding provision for recovering actual damages.”
Doe, 540 U.S. at 620. Only a “person entitled to recovery” of
actual damages can qualify for a statutory damage award. The
DPPA, however, contains no such “critical limiting” language, id.
at 626, suggesting that a person need not prove actual damages to
receive liquidated damages.

Further support for our construction of § 2724(b)(1) comes
from the common law of privacy. As the Court in Doe pointed out,
unlike common law negligence actions, the common law provided
privacy tort victims with a monetary award calculated without
proving actual damages. See Doe, 540 U.S. at 621 n.3 (quoting 4
Restatement of Torts § 867 cmt. d (1939)) (noting that damages are
available for privacy tort victims “in the same way in which general
damages are given for defamation,” without proof of “pecuniary
loss [or] physical harm”); Parks v. Internal Revenue Serv., 618
F.2d 677, 683 (10th Cir. 1980) (observing that the “common law
tort of invasion” seeks to remedy “personal wrongs which result in
injury to plaintiffs’ feelings and are actionable even though the
plaintiff suffered no pecuniary loss nor physical harm”); Nolley v.
County of Erie, 802 F. Supp. 898, 904 (W.D.N.Y. 1992); Bolduc
v. Bailey, 586 F. Supp. 896, 902 (D. Colo. 1984). Courts permit
recovery in privacy cases without proving actual damages because
it is difficult to prove damages in such cases. See Nolley, 802 F.
Supp. at 904 (stating that although violation of the right to privacy
“is virtually certain to cause some injury . . . the type of injury [] is
very difficult to prove”); Fairfield v. Am. Photocopy Equip. Co.,
291 P.2d 194, 198 (Cal. Ct. App. 1955) (“The fact that damages
resulting from an invasion of the right to privacy cannot be
measured by a pecuniary standard is not a bar to recovery.”).23 As

23
While the majority in Doe deviated from the common law
understanding just explained, it did so based on various facts and
circumstances not present in this case. Besides the “critical
limiting” language of the Privacy Act, the “drafting history show[s]
that Congress cut out the very language in the bill that would have
authorized any presumed damages.” Doe, 540 U.S. at 622. In

29
the court in Kehoe correctly concluded:

Damages for a violation of an individual’s privacy
are a quintessential example of damages that are
uncertain and possibly unmeasurable. Since
liquidated damages are an appropriate substitute for
the potentially uncertain and unmeasurable actual
damages of a privacy violation, it follows that proof
of actual damages is not necessary for an award of
liquidated damages.

421 F.3d at 1213.

Finally, as discussed above in a different context, see section
V, supra, the inclusion of the phrase “liquidated damages” supports
the conclusion that the plain language of the DPPA aims to
compensate not just those violations that can be shown to have
caused actual damages. Liquidated damages have long been used
as a substitute for actual damages in situations where “damages are
uncertain in nature or amount or are unmeasurable.” Rex Trailer
Co. v. United States, 350 U.S. 148, 153 (1956). Further, we have
just observed that the damages flowing from privacy violations
have historically been considered “quintessential example[s] of
damages that are uncertain and possibly unmeasurable.” Kehoe,
421 F.3d at 1213. We believe it would make little sense, as a
matter of statutory construction, for Congress to have inserted the
phrase “liquidated damages” into § 2724(b)(1) if the only
compensable violations of the DPPA were those for which the
damages could be calculated precisely. Indeed, such an
interpretation would violate our duty to give effect to each word of
the statute. See Pa. v. United States Dep't of Heath & Human
Servs., 928 F.2d 1378, 1385 (3d Cir. 1991).

addition, as the Privacy Act involved a waiver of sovereign
immunity, its construction followed the principle that “limitations
and conditions upon which the Government consents to be sued
must be strictly observed and exceptions thereto are not to be
implied.” Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (citation
omitted); see United States v. Williams, 514 U.S. 527, 531 (1995).

30
 The plain language of the DPPA, Supreme Court and other
precedent, and the common law of privacy all support construing
§ 2724(b) so as not to require actual damages to recover liquidated
damages. Accordingly, we will affirm the District Court’s
judgment on this issue.

IX.

For the foregoing reasons, we will affirm in part, vacate in
part, and remand for further proceedings consistent with this
opinion.

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 SLOVITER, Circuit Judge, dissenting.

Congress took an important step in protecting the
privacy of drivers when it enacted the Driver’s Privacy Protection
Act (“DPPA” or “Act”) in 1994. That Act prohibits the disclosure
and resale of the personal information, defined as, inter alia, the
name, address, telephone number and social security number, that
a prospective licensee must disclose to the state motor vehicle
department in order to secure a driver’s license unless the
disclosure and/or use falls within one of the fourteen enumerated
statutory exceptions. See 18 U.S.C. §§ 2721-2725.

The impetus for the Act is clear from the legislative
history. A television actress in California who had an unlisted
home number and address “was shot to death by an obsessed fan
who obtained her name and address through the DMV.” See 140
Cong. Rec. 7,924-25 (1994). In Tempe, Arizona, “a woman was
murdered by a man who had obtained her home address from that
State’s DMV.” 139 Cong. Rec. 29,466 (1993). The Senate debate
focused on the need to protect the privacy of persons from stalkers
and potential criminals. See id. at 29,469. At that time, personal
information was easily available from 34 states’ DMVs. Id. at
29,466.

Interestingly, although the debates in the House of
Representatives and Senate were devoted to privacy issues, the
commentary following the passage of the DPPA focused on the
10th and 11th Amendments and what many commentators viewed
as the Act’s clash with principles of federalism. The expressed
concern was that the federal government was mandating certain
actions by the states. See Condon v. Reno, 155 F.3d 453, 456 (4th
Cir. 1998) (holding that “Congress lacked the authority to enact
the DPPA under either the Commerce Clause or Section 5 of the
Fourteenth Amendment”), rev’d 528 U.S. 141 (2000). The
Supreme Court’s unanimous decision in Reno v. Condon, 528 U.S.
141 (2000), which held that in enacting the DPPA Congress did
not run afoul of federalism principles and sustained the DPPA
under Congress’ authority to regulate interstate commerce put an
end to that debate. Because the Court limited its discussion to the
federalism issue, it did not discuss either the scope of the privacy

32
interest to which the DPPA is directed or any of the details of the
Act to which the majority directs its opinion.

The holding of the majority with which I disagree is
confined to its agreement with the District Court that even if
UNITE obtained and used driver information for one of the
purposes expressly permitted by the DPPA, it violated the statute
if it also had a purpose not expressly permitted. As the majority
recognizes, UNITE argued that “a major component of the
campaign to organize and unionize Cintas workers was finding
potential legal claims against Cintas.” Maj. Typescript Op. at 3.
The statute expressly exempts from its prohibitions “use in
connection with any civil criminal, administrative, or arbitral
proceeding in our Federal, State, or local court or agency or before
any self-regulatory body, including the service of process,
investigation in anticipation of litigation, and the execution or
enforcement of judgments and orders, or pursuant to an order of a
Federal, State or local court.” 18 U.S.C. § 2721(b)(4) (emphasis
added). The majority does not suggest that it doubts that UNITE
did in fact have this objective. In its brief, UNITE lists various
legal actions that it and/or Cintas employees filed against Cintas,
including a class action alleging FLSA violations concerning
drivers’ overtime pay, an action in California for violations of
living wage ordinances, a complaint with the EEOC alleging
Cintas discriminated on the basis of race, color, sex, and national
origin and subsequently a class action in federal court in which the
EEOC intervened as a plaintiff. Appellee’s Br. at 13-14. It also
states that “[d]ozens of additional lawsuits and administrative
actions were commenced before the EEOC, OSHA, NLRB, and
other agencies.” Id. at 14.

The District Court held, and the majority agrees, that
because UNITE conceded that it also accessed the motor vehicle
records for the purpose of organizing workers, and union
organizing is not listed a permissible purpose, the use of names
and addresses of Cintas employees for that purpose violated the
DPPA as a matter of law. Pichler v. UNITE, 446 F.Supp.2d 353,
368 (E.D. Pa. 2006). I disagree.

In the first place, there is ample basis in the record to

33
substantiate UNITE’s assertion that it had the purpose of
investigating legal claims against Cintas. Indeed, the District
Court’s opinion notes that UNITE prepared a 132-page “Legal
Training Laundry Campaign” document that its attorneys and
outside counsel used to train the twelve UNITE members who
were the lead organizers for the regions where UNITE would kick
off its campaign. Pichler, 446 F.Supp.2d at 357. The training
covered such topics as the Fair Labor Standards Act, the Family
Medical Leave Act, various types of discrimination, unfair labor
practices, and workers’ compensation. Id.

That such training would be useful can be gleaned
from the statement in the District Court opinion that many
employees working at the 350 Cintas locations are either female,
black, or Hispanic. Id. at 355. Although neither the District Court
nor the majority has so stated, I assume that not many of the
28,000 Cintas employees are well informed about their rights and
UNITE may very well have a basis for instituting legal or
administrative actions on behalf of the Cintas employees at issue
in this case as it has done in other locations.

The District Court’s view of the “investigation in
anticipation of litigation” clause in § 2721(b)(4) was a narrow one.
It asserted that “the Unions must prove that (1) they undertook an
actual investigation; (2) at the time of the investigation, litigation
appeared likely; and (3) the protected information obtained during
the investigation would be of ‘use’ in the litigation,” which
“implies a reasonable likelihood that the decision maker would
find the information useful in the course of the proceeding.”
Pichler v. UNITE, 339 F.Supp.2d 665, 668 (E.D. Pa. 2004). The
Court concluded that UNITE was “finding” claims, rather than
investigating them, and that litigation was not “likely” where only
thirty-one of 1758 to 2005 putative class members’ information
had led or was leading to litigation. Pichler, 446 F.Supp.2d at 369.

A recent decision of the Court of Appeals for the
Eleventh Circuit offers a starkly different interpretation of §
2721(b)(4). Honing in on the clause allowing “investigation in
anticipation of litigation,” that court stated that “even if the
accumulation of potential witnesses related, in part, to certain cases

34
not yet filed, we do not see how pre-suit investigation can be
considered per se inapplicable to the litigation clause.” Thomas v.
George, Hartz, Lundeen, Fulmer, Johnstone, King, and Stevens,
P.A., 525 F.3d 1107, 1115 n.5 (11th Cir. 2008). The court
concluded that a law firm’s retrieval of 284,000 motor vehicle
records, id. at 1109, “used to send one-thousand ‘Custom and
Practice’ letters, which aimed at obtaining evidence showing a
custom or practice of deceptive acts engaged in by [car]
dealerships,” id. at 1114, was a permissible use of the information
in those records. Id. at 1115.

I would adopt the Eleventh Circuit’s interpretation
of § 2721(b)(4). The provision is written broadly. It allows the
use of personal information from motor vehicle records “in
connection with” a wide range of litigation activities, including
“the service of process, investigation in anticipation of litigation,
and the execution or enforcement of judgments and orders . . . .”
18 U.S.C. § 2721(b)(4). UNITE produced evidence that because
it was aware of litigation against Cintas, it sought and obtained
evidence of related legal violations during its home visits, and that
it used that information to bring a considerable number of
allegations before state, federal, and administrative adjudicatory
bodies. See supra at pp. 4-5. In light of this evidence, there can be
little doubt that at least one of UNITE’s purposes for using the
restricted information was in connection with investigation in
anticipation of litigation.

Furthermore, it is important to note that there is
nothing illegal about efforts to organize a union. It is one of the
activities protected by our labor laws. See National Labor
Relations Act § 7, 29 U.S.C. § 157 (“Employees shall have the
right to . . . form, join, or assist labor organizations . . . .”). There
is no indication that the need to obtain names and addresses of
employees for the purpose of unionization was ever brought to
Congress’ attention when it drafted the DPPA. We cannot
speculate whether it would have added this as one of the
enumerated permissible uses had the labor unions expressed their
views. We do know, from the vignette included in the majority
opinion, that the UNITE organizers did not engage in harassing the
employees whose addresses they had obtained. The majority states

35
that when two women rang the doorbell of Kevin Quinn and told
him they were organizing, he told them he was not interested and
they departed. Although they did nothing more offensive than ring
his doorbell, he became a named plaintiff and, under the opinion
of the District Court affirmed by the majority, will be entitled to
$2,500. UNITE also calls to our attention record evidence that all
union representatives who made home visits in connection with the
campaign acted politely and left without conversation when asked
to do so. Appellee’s Br. at 15-16.

The majority cites no legislative history to support its
conclusion that the presence of one unlisted purpose for obtaining
the motor vehicle information overrides or cancels a listed
purpose. When such cases are presented, I would adopt the
approach courts have historically used in situations where there are
multiple purposes and have the fact-finder determine which is the
primary purpose and whether that purpose was permitted under §
2721(b). Cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003)
(noting that Title VII requires plaintiff to prove that “race, color,
religion, sex, or national origin was a motivating factor” for the
challenged employment practice); Comm’r of Internal Revenue v.
Groetzinger, 480 U.S. 23, 35 (1987) (whether income arises from
a business or trade under the Internal Revenue Code requires
determination that “the taxpayer’s primary purpose for engaging
in the activity must be for income or profit”).

I recognize the significance of the majority’s
footnote stating that UNITE waived any argument that we should
analyze whether its purpose was primary or secondary because it
failed to raise the argument in the District Court or in any of the
briefs
filed in this court. I do not minimize the force of that
argument, but note that because our interpretation of this statute
will set the boundaries of civil liability under the DPPA in this
circuit, I would apply our precedent and exercise our discretion to
consider the argument notwithstanding the waiver. See
Loretangeli v. Critelli, 853 F.2d 186, 189 n.5 (3d Cir. 1988) (“This
court may consider a pure question of law even if not raised below
where refusal to reach the issue would result in a miscarriage of
justice or where the issue’s resolution is of public importance.”).

36
 In summary, I would reverse the District Court’s
grant of summary judgment for plaintiffs on liability and would
remand so that a jury could decide whether UNITE’s primary
purpose in obtaining and using the information gleaned from
motor vehicle records was to receive information from Cintas
employees about potential legal violations, an expressly protected
activity.

37