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Barker v. International Union of Operating Engineers

July 9, 2009

TAMMY BARKER, TIMOTHY ROBERT BARKER, AND MELISA MERRYMAN, ON BEHALF OF THEMSELVES AND ON BEHALF OF THOSE SIMILARLY SITUATED, PLAINTIFFS,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, AFL-CIO, DEFENDANT.



The opinion of the court was delivered by: Frederick J. Kapala District Judge

MEMORANDUM OPINION AND ORDER

FREDERICK J. KAPALA, District Judge

Plaintiffs, Tammy Barker, Timothy Barker, and Melisa Merryman, on behalf of an uncertified class, have sued defendant, International Union of Operating Engineers, Local 150, AFL-CIO ("Local 150"), alleging, among other things, that Local 150 violated the Driver's Privacy Protection Act of 1994 (DPPA), 18 U.S.C. §§ 2721-25, by knowingly obtaining, disclosing, or using their personal information, from a motor vehicle record for purposes not permitted by the DPPA. Plaintiffs have moved for a preliminary injunction and to certify the class.

I. BACKGROUND

Plaintiffs have submitted various affidavits in support of their motions.*fn1 In their affidavits, Tammy and Timothy Barker state that they have been the owners of motor vehicles registered in Illinois and the holders of Illinois driver's licenses since 1985 and 1983, respectively. Neither Tammy nor Timothy have ever provided their home address to Local 150 or to any of its agents. Certain Local 150 agents have been present outside Tammy and Timothy's home and it is their belief and recollection that such agents first appeared outside their home without having followed them from another location. Tammy and Timothy have never provided Local 150 with consent to obtain, possess, use, or disclose any information about them, including information contained in motor vehicle records. Tammy and Timothy have never provided the State of Illinois, including the Illinois Secretary of State, with consent to disclose any information about them to Local 150, including information contained in motor vehicle records.

In her affidavit, Melisa Merryman states that she has been the owner of a motor vehicle registered in Illinois since 1990 and the holder of an Illinois driver's license since 1985. Melisa never provided her home address to Local 150 or to any of its agents. Certain Local 150 agents were outside Melisa's home in August 2006. Melisa has never provided Local 150 with consent to obtain, possess, use, or disclose any information about her contained in motor vehicle records. Melisa has never provided the State of Illinois, including the Illinois Secretary of State, with consent to disclose any information about her to Local 150, including information contained in motor vehicle records.

In her affidavit, Linda Soria states that she was employed by Local 150 from May 3, 1993, to September 30, 2006. During her employment she received microfiche and compact discs (CDs) containing software and Illinois motor vehicle records on an annual or bi-annual basis. Soria specifically states that in October 2004 and in 2005, Local 150 purchased searchable computer CDs containing motor vehicle records from the Illinois Secretary of State. The CDs and microfiche contained the following information: plate number, expiration date, reference number, type of vehicle, vehicle identification number, and the owner's name, address, and driver's license number. During her employment, Soria provided personal identifying information associated with various plate numbers to the Local 150 business agents at the direction of Local 150 President William E. Dugan. According to Soria, even though the information was supposed to be used to monitor construction jobs, the business agents used the personal information to locate the homes of employers, names and addresses of employees, and identify employees' spouses and friends. Soria states further that 2005 was the last year in which Local 150 obtained motor vehicle records from the Illinois Secretary of State. In 2006, the Secretary of State's office would not provide any further motor vehicle records.

In his affidavit, Thomas Merryman states that Local 150 Treasurer Joseph Ward delivered two CDs to him on or about October 10, 2006. The first CD was labeled "Vehicle Services / Secretary of State / Passenger / Fall Listing 04-05 / ISSUED OCT 04." The second CD was labeled "Vehicle Services / Secretary of State / Calendar and Fiscal / Fall Listing 04-05 / ISSUED OCT 04." According to Merryman, Ward told him that Local 150 obtained both CDs from the Illinois Secretary of State in October 2004 and similar CDs thereafter. Merryman stated that at no time did he ever use the CDs or install the CDs on any computer, and has no personal knowledge of the data contained on the two CDs.

Plaintiffs also have submitted the affidavit of Dan Jerger, Vice President of Information Technology at Quest Consultants, Inc., in which he states that the first CD in question has 8,332,432 records and the second CD in question has 3,293,989 records. Jerger attached copies of various "screen captures" showing his computer monitor's display of the results of various searches of the data on the CDs in question. For example, exhibit G to Jerger's affidavit depicts the results of searches for license plate numbers "4479401," "D566769," and "MRYMAN," respectively, as follows:*fn2

PLATE# EXP REF# VEH YR BS V.I.N. NAME, ADDRESS, AND ZIP 4479401 DEC04 4479401 DODGE 03 VN 1D4GP25B23B110804 BARKER TIMOTHY R. 572 W. Main Cary 60013 D566769 MAY05 D566769 DODGE 02 LL 1B4HS48NK2F2203270 BARKER TIMOTHY R. 572 W. Main Cary 60013 MRYMAN MAY05 6894496 MERCEDES 03 4D WBDSK75FX3F054186 MERRYMAN MELISA R. TMBERLINE TR WOODSTOCK 60098

In order to view the data on the CDs, the user must insert the CD into the computer's CD drive, start the application software,*fn3 and advance through a series of screens until a screen is reached where the user may input a license plate number. A valid license plate number will yield a motor vehicle record containing the data fields set out above. It is apparent from the other screen captures attached to Jerger's affidavit that the above information can be retrieved from the CDs in question with reference to any Illinois license plate registered at that time.

Plaintiffs also have submitted copies of agreements dated March 3, 2002, and June 4, 2003, respectively, between the Illinois Secretary of State and Local 150 under which Local 150 purchased "vehicle registration microfiche plate number sequences" for $500 and copies of the corresponding $500 checks of the same dates drawn on a Local 150 account. In these agreements, Local 150 represented that its purpose for purchasing the information was "to check plates on construction sites only."

II. PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

In their motion for preliminary injunction, plaintiffs seek the following relief: (1) enjoin Local 150 from possessing, using, or disclosing any personal information of plaintiffs and the class contained in motor vehicle records that Local 150 has obtained in violation of the DPPA; (2) enjoin Local 150 from obtaining any further personal information contained in motor vehicle records for any purpose not permitted by the DPPA; (3) order Local 150 to tender to the clerk of this court all of the motor vehicle records it has ...


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