Eleventh Circuit Throws Out Privacy Suit Seeking Billions

On December 21, 2009, the Eleventh Circuit Court of Appeals affirmed a summary judgment decision in favor of Imagitas, Inc.  Imagitas had been hired by Florida's Department of Highway Safety and Motor Vehicles to solicit advertising, and then place that advertising inside official mailings that remind motor vehicle owners to renew their vehicle registrations.  Plaintiffs alleged that the federal Drivers' Privacy Protection Act precludes sending advertising to addresses collected by state departments of motor vehicles absent express consent from the vehicle owners.  Plaintiffs further sought billions of dollars in damages, as the DPPA authorizes courts to award $2500 per individual in damages. 

The Florida lawsuit is one of many similar lawsuits filed against Imagitas across the United States.  In 2007, the Judicial Panel on Multidistrict Litigation granted Imagitas's motion to have all of the cases coordinated before a single court.  That court, in the Middle District of Florida, then agreed to treat the Florida action as a test case.  Following expedited discovery, the district court granted Imagitas's motion for summary judgment.  The district court agreed with Imagitas that Congress did not prohibit states from advertising, and therefore the inclusion of advertising in state mailings fell within the governmental function exception to the DPPA. 

On appeal, plaintiffs primarily urged that the advertising should be considered apart from the registration reminder.   The Eleventh Circuit rejected this dichotomy because even "funding public programs through commercial advertising is a legitimate agency function."

Plaintiffs have since requested the Eleventh Circuit to reconsider this decision en banc.  Following a decision by the Circuit, the district court will address the impact of the decision on the remaining cases pending against Imagitas.   Imagitas is represented by Robins, Kaplan, Miller & Ciresi L.L.P. attorney Stephen Safranski.