Just Because You’re Paranoid Doesn’t Mean They Aren’t Following You

September 2008, Auto Dealer Today - WebXclusive

by Thomas B. Hudson, Esq. - Also by this author

If you are a dealer, you may take some comfort from the fact that your customers seldom get upset enough to haul you into court. That comfort disappears, though, when you find out that your customers are being encouraged to sue you.

Lawyers aren’t supposed to solicit clients to sue others. It’s called “barratry.”

From Black’s Law Dictionary – Barratry: Vexatious incitement to litigation, esp. by soliciting potential clients. Barratry is a crime in most jurisdictions.

I think a lot of barratry goes on in connection with suits against auto dealers. I have seen reports of instances in which lawyers use various means to identify a dealership’s customers for the purpose of rustling up new clients willing to sue the dealer.

And I’ve seen dealers who fight back. A couple of years ago, a West Virginia car dealer sued a law firm that wrote letters to the dealership’s customers in an attempt to stir up litigation. The dealer’s lawsuit was based on a common law tort theory, and not on a statute.

A recent case illustrates how easy it would be for a law firm to find an army of plaintiffs to sue a particular dealer. Let’s take a look.

The law firm of George, Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A., obtained personal information from motor vehicle registration records of 284,000 Florida residents, including Colin Thomas. Thomas sued the law firm and attorney Charles Hartz, claiming they violated the federal Driver's Privacy Protection Act (DPPA) by knowingly obtaining and using personal information contained in motor vehicle records.

The trial court granted summary judgment to the defendants. Because the defendants obtained the vehicle records in order to identify potential witnesses to testify in unfair and deceptive trade practices lawsuits against car dealerships, the trial court found this use to be permissible under an exception for "investigation in anticipation of litigation" (the DPPA provides 14 "permissible uses," one of which allows for the information to be used in connection with "investigation in anticipation of litigation").

The U.S. Court of Appeals for the Eleventh Circuit affirmed the trial court's grant of summary judgment to the defendants. The appeals court agreed with the lower court that Thomas bore the burden of proving that the defendants' use of the personal information was not permissible under the DPPA and that he did not satisfy this burden.

Now, in the absence of anything suggesting the contrary, I have to assume that this law firm was operating on the up-and-up and gathered this information in good faith for the purposes described in italics above.

But what if some scoundrel lawyers gathered this information by claiming that they were interested in finding witnesses to testify in ongoing unfair and deceptive trade practices cases, but instead were really interested in the possibility that, once contacted, these potential witnesses would decide that they would rather become plaintiffs than be witnesses. Would the fact that some of the witnesses had converted to plaintiffs be enough to convince a court that the law firm’s use of the information was an improper one?

I think that a dealer challenging the scoundrel law firm’s practices would have a hard time of it. As long as the law firm could assert with a straight face that it had gathered the information for the purpose of identifying witnesses, and there weren’t any smoking guns around (like an ex-employee of the firm testifying that the scoundrels were lying through their teeth), I think that the scoundrels would get away with their scheme.

Vol 5, Issue 8

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