A missing thumb drive and the potential for disproportionately ruinous damages prompted a federal judge to stop a class action lawsuit filed against Revenue Commissioner Kim Hastie over her improper use of motorists’ personal information from moving forward as a class action.
The ruling, entered earlier this month by Presiding United States District Judge Kristi DuBose, would be hard to frame as anything but welcome news for Hastie. However, her attorney, Buzz Jordan, declined to comment on the ruling because it could — and most likely will — be appealed.
As Lagniappe has reported, Hastie was sued in 2015 by two Mobile County residents who say she ordered an employee to obtain their private email addresses from a database of local motorists’ personal information while she was serving as Mobile County license commissioner.
Hastie turned those emails over to a company involved in the 2013 campaign of Mobile Mayor Sandy Stimpson, which then sent out an email blast to all of the addresses featuring a message from Hastie endorsing Stimpson over the incumbent, now State Rep. Sam Jones, D-Mobile.
The only plaintiff remaining in the civil lawsuit against Hastie is Arnitra Diamond, who court records indicate was associated with Jones’ 2013 mayoral campaign and was previously involved with Mobile Community Action — an organization Jones formerly led. However, DuBose found that Diamond’s connections to Jones were “irrelevant.”
After an expansive FBI probe, Hastie bested a litany of federal charges in court but was convicted of violating the Driver’s Privacy Protection Act of 1994 (DPPA) in 2015 for her role in disseminating those emails addresses — an estimated 30,000, according to the FBI.
Because DPPA has built-in statutory damages of $2,500 per violation, a class action lawsuit could have resulted in a staggering $75 million of potential liabilities for Hastie. There has also been a concern for some time that Mobile County could be implicated as well.
The $75 million of potential liabilities is a substantial figure that most agree Hastie would have never been able to pay. However, the plaintiffs have noted that Hastie maintains a $1,452,500 liability bond paid for by Mobile County that could cover a portion of any damages awarded.
Though it wasn’t her only reason for denying the request for class certification, DuBose noted in her order that the penalties Hastie could face in a class action wouldn’t be proportionate to the offense, even if she did intentionally violate DPPA — something her attorneys still deny.
She also wrote that Hastie’s behavior wasn’t the kind of thing DPPA was created to prevent because it didn’t involve mass marketers and no personal information was ever sold.
“The potential liability here, assuming 30,000 plaintiffs, is at least $75 million. Such would be completely disproportionate to any harm suffered by Diamond (or other plaintiffs),” DuBose wrote. “The principal purpose of the DPPA is to stop mass marketers from selling private data/information. Hastie’s DPPA violation was an isolated occurrence, which was prosecuted in federal court, resulted in a conviction and entailed public reprimand, such that it is not likely to be seen and/or repeated again in the Mobile County License Commissioner’s office.”
DuBose also found that Hastie’s case wouldn’t be appropriate for a class-action lawsuit because each plaintiff would likely have to rely on circumstantial evidence in order to prove their privacy had actually been violated by producing the unsolicited email they received from Hastie.
That’s because there is no concrete source of the original list of email addresses that were improperly accessed. According to evidence presented at Hastie’s criminal trial, those addresses were downloaded from a license commission database onto a flash drive at Hastie’s request.
However, that flash drive has never been recovered.
The only mass list of email addresses that exists was one a license commission employee recreated during the FBI’s investigation. The FBI won’t produce the list unless compelled by the court, and DuBose has said it would be unusual for her to do so in the context of a civil trial.
“The thumb drive is missing, and the FBI’s re-created list is likely not available for use in a civil case. While the plaintiffs might be able to re-create the email list from 2013 again, the Court is without any information that this could be done even if allowed,” DuBose wrote. “Ironically, in order to vindicate the violation of the victim’s right to privacy, the victim’s right to privacy would have to be invaded again.”
Attorneys representing the plaintiff have already requested that DuBose reconsider her decision, but those attempts were unsuccessful. While no one has confirmed so on the record, it is expected that Diamond’s attorneys will appeal DuBose’s decision on class certification.
It’s a big decision in the case because even though it doesn’t actually address the merits of the claims against Hastie, the case would almost certainly be financially unviable for most plaintiffs — and certainly for most attorneys — if it isn’t handled as a class action. It’s the difference between one case with a $75 million ceiling and 30,000 cases that might result in $2,500.
The alternative would be each of the motorists who received the email from Hastie in 2013 filing their own individual lawsuits against Hastie. However, in her order, DuBose noted that Hastie’s civil case has been pending and well-publicized for five years, and there is still only one plaintiff.
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