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Pavone v. Law Offices of Anthony Mancini, Ltd.

United States District Court, N.D. Illinois, Eastern Division

March 31, 2017



          MATTHEW F. KENNELLY United States District Judge

         Anthony Pavone has sued the Law Offices of Anthony Mancini, Ltd. (Mancini), alleging that Mancini violated section 2722 of the Driver's Privacy Protection Act (DPPA), 18 U.S.C. § 2722(a). In earlier rulings, the Court dismissed a number of Pavone's claims but declined to enter summary judgment against him on his claim that that Mancini obtained and used his driver's license number in violation of the DPPA. Familiarity with these rulings is assumed. See generally Pavone v. Law Ofcs. of Anthony Mancini, Ltd., No. 15 C 1538, 2016 WL 4678311 (N.D. Ill. Sept. 7, 2016).

         In the summary judgment decision, the Court deferred ruling on the question of Pavone's standing to sue under Article III of the United States Constitution in light of the Supreme Court's recent decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). After considering additional briefs, the Court found that Pavone is, in fact, alleging the type of injury that Congress sought to prevent and redress in the DPPA, specifically, injury arising from invasion of personal privacy. Pavone v. Law Ofcs. of Anthony Mancini, Ltd., No. 15 C 1538, 2016 WL 7451628, at *2 (N.D. Ill.Dec. 28, 2016). The Court also concluded that "a violation of the right to privacy results in the sort of harm that provides an appropriate basis for a lawsuit." Id. The Court further concluded that "an injury suffered by an individual that results from obtaining and using his private information in violation of the DPPA-the type of injury that Pavone claims to have suffered-is sufficiently concrete and particularized to confer Article III standing." Id. The Court also concluded that this is "the type of injury that can be redressed by a favorable judicial decision in Pavone's case, namely by an award of damages." Id. The Court ruled that because Pavone had provided evidence sufficient to permit a finding that Mancini's alleged violation of the DPPA caused him this sort of injury, Mancini was not entitled to summary judgment on the basis of lack of standing. Id.

         This, however, did not dispose of Mancini's challenge to Pavone's standing. Mancini asserted a "factual" challenge to standing (as opposed to a facial challenge), meaning that Pavone must establish standing by a preponderance of the evidence. Id. Pavone's deposition testimony about his injury concerned all of his DPPA claims as a group and did not parse out the single claim-regarding obtaining and using his driver's license number-that the Court determined could survive. The Court concluded that for this reason, an evidentiary hearing would be required. Id.

         The evidence

         The evidentiary hearing was held on February 17, 2017. Two witnesses were called to testify: Pavone and David Macek, an investigator hired by defense counsel.

         Pavone testified that he was in an automobile accident in January 2015. Later that month, he received in the mail advertising material from Mancini. This included a letter from Mancini stating that he had become aware that Pavone "may have been in [sic] an innocent victim of an automobile accident, and . . . may have suffered serious injuries as a result of the accident." Mancini offered to meet with Pavone without charging him a fee to advise him of his legal rights and to negotiate to have his car repaired "at no additional charge." Mancini's letter indicated that further representation beyond that would be on a contingent fee basis. He also included a brochure describing the services offered by the law firm.

         Accompanying Mancini's solicitation was an apparently complete and unredacted copy of a Illinois Traffic Crash Report prepared by a Schaumburg police officer. It included Pavone's full name and home address, telephone number, date of birth, driver's license number, and detailed identifying information about his vehicle. it also included the names, addresses, and dates of birth of the car's other occupants, Pavone's wife and their child. It included the same information (name, address, date of birth, driver's license number, telephone number, and vehicle information) regarding the other driver involved in the accident, along with the fact that this individual had been issued a citation for failure to reduce speed to avoid an accident.

         Pavone testified that when he realized that the Mancini law firm had his driver's license number, "I thought I was a victim of identity theft. I was angry and frustrated because I didn't provide this information to this guy, why is he soliciting me." Pavone further testified that he was "very upset" and did not understand why a stranger would have his driver's license number and the other information in the report, including his family's names and dates of birth. "[I]t was everything out there without my permission. I didn't provide it to this guy." With regard to his driver's license, Pavone stated that he keeps it on his person at all times and does not share it "unless it's for a government agency that requires it or someone I'm doing business with, " such as when the police officer directed him to show his license at the accident scene. Regarding Mancini's possession of his driver's license number, Pavone stated that he was very concerned because he did not know how Mancini might have stored the information and was afraid it could be misused or misplaced.

         On cross-examination, Pavone said that before receiving the materials from Mancini, he had received a copy of the crash report from a different law firm. He said that both instances made him equally upset. He acknowledged that he is not claiming any physical injuries and that he has not seen a psychiatrist for his claimed distress.

         Pavone also acknowledged that he has received traffic citations in the past. He said he was unaware of whether the clerk of court stored his information in public records as a result of those traffic citations. Defense counsel read a driver's license number to Pavone from a printout obtained from the clerk's office of the Circuit Court of Cook County. Pavone said that this was not his correct driver's license number (it turns out that the clerk's record had a digit missing). He said that he was not aware whether his driver's license number-or, perhaps, an inaccurate driver's license number-was available at a public access terminal in the court clerk's office.

         Pavone also acknowledged that in 1991 he had pled guilty to a criminal charge. He said he was not aware of whether the clerk of court included his Social Security number in public records relating to that charge.

         With regard to the accident, Pavone acknowledged that he had called the Schaumburg police and that he had given the police the information on the crash report, including his driver's license number. That, however, was involuntary. Under Illinois statute, a driver is required to display his driver's license when a police officer requests it, and the statute defines "display" as "the manual surrender of his license certificate into the hands of the demanding officer for his inspection thereof." 625 Ill. Comp. Stat. 5/6-112.

         Investigator Macek testified that he had been asked by defense counsel to run a background check on Pavone regarding cases in the Cook County court system. He went to the Richard J. Daley Center in Chicago and checked for criminal, civil, and traffic cases under Pavone's name using a public use terminal. Macek stated that when a traffic case comes up on the terminal, it includes the individual's address, driver's license, and date of birth. Macek said he had looked up criminal case information but did not recall what it showed. On cross examination, he ...

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