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Florida Law
Privacy Payday
A $50-million class-action settlement by Fidelity Federal Bank & Trust of West Palm Beach could be just the beginning of big payouts by companies that ran afoul of the federal Driver Privacy Protection Act (DPPA) by buying drivers' license records from the state of Florida.
Congress passed the DPPA in 1991 after the murder of actress Rebecca Schaeffer in California. The man who stalked and killed Schaeffer got her home address through the state Department of Motor Vehicles. The federal law made it illegal for companies to buy driver records from state governments. But Florida's DMV continued to sell motorists' personal information until 2004, when the Legislature amended the state public records law to comply with federal law. (While the federal law said releasing personal data was prohibited unless a motorist opted in, Florida law before 2004 allowed disclosure unless a motorist opted out.)
Between 2000 and 2003, Fidelity Federal bought 565,600 names for a penny a name -- just $5,656 -- in order to mass mail auto-refinance pitches to motorists in Broward, Martin and Palm Beach counties. Fort Lauderdale resident James Kehoe sued under the federal law, which allows for penalties of up to $2,500 per violation. In 2004, U.S. District Judge Daniel T.K. Hurley in West Palm Beach rejected the suit on grounds that the junk mail didn't harm Kehoe. His decision was reversed by the 11th U.S. Circuit Court of Appeals in Atlanta. Fidelity appealed to the U.S. Supreme Court. The court declined to hear the case, but Justices Antonin Scalia and Samuel Alito took the unusual step of stressing the importance of whether "actual damages" would have to be shown, noting "because of other class actions currently pending in Florida, involving the same question, the total amount at stake may reach $40 billion." The justices said the court may be interested in reviewing the case later.
Fidelity executives have maintained they didn't know it was illegal to buy the names. It was the state, they argued, that broke the law -- not the bank. In June, after the case was returned to Hurley's court, where it was up for class-action certification, Fidelity vowed to "vigorously defend" it. But in August, without admitting liability or fault, the bank agreed to settle the lawsuit for $50 million, in order to pave the way for its $1-billion merger with National City Corp.
Miami's Pathman Lewis is one of four firms that will share in the reported $10 million in attorney fees included in the settlement. Pathman's Roger Slade, one of the leading lawyers in the case, says although Fidelity settled, he thinks the appellate court ruling bodes well for Floridians suing other companies in cases with similar facts. ChoicePoint, Experian, Lexis Nexis, First American Corp. and other firms all face potential class-action suits for buying driver records from Florida after the DPPA passed. Slade also is suing another Florida law firm, the George Hartz firm, for buying 284,400 DMV records, also for a penny apiece.
"So cheap," says Slade, "and yet so expensive."
