When going to the bond market last month, Mobile County let potential investors know that it could still have a “substantial liability” in a pending lawsuit filed against Revenue Commissioner Kim Hastie—a case that could result in “enormous” financial judgement.
As Lagniappe has reported, Hastie was sued in 2015 by motorists whose private email addresses were pulled 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 incumbent Sam Jones.
In the press, Hastie initially denied any involvement in the email blast.
Hastie was convicted of violating the Driver’s Privacy Protection Act (DPPA) in 2015 for the same conduct, and the Alabama Ethics Commission has since found the decision to disseminate the email addresses over the objections of her staff violated state ethics law.
After an unsuccessful appeal, Hastie’s criminal charge is resolved, but the civil lawsuit she faces has continued and could soon be certified as a class action case with thousands of plaintiffs.
U.S. District Judge Judge William E. Cassidy will soon decide whether the case is best suited to move forward as a class action or as separate, individual lawsuits. In a class action, Hastie and any other defendant could be liable for damages of up to $2,500 for each violation of the DPPA.
If that fee were applied to all 30,000 email addresses Hastie is believed to have disseminated back in 2013, those damages could theoretically add up to a judgement as high as $75 million.
In court, Hastie’s attorney Buzz Jordan has argued against class certification for a number of reasons, including that such a broad action could expose her to “enormous” and potentially “annihilating” damages in violation of her due process rights.
The only named plaintiff, Arnitra Diamond, is being represented by the Beasley Allen firm out Montgomery and Braswell Murphy LLC locally. They’ve maintained that the case against Hastie is “tailor made” for a class action suit because it involves thousands of potential plaintiffs who were all impacted by the exact same conduct.
Even though a class action could leave Hastie shouldering a multi-million dollar judgement on her own, the plaintiffs argue it would be based on statutory damages the DPPA “unambiguously” states can be assessed against someone who knowingly violates it.
“Federal courts in the Eleventh Circuit and around the country have consistently certified class actions despite the possibility of an extremely large damages award,” attorneys for Diamond wrote in a brief last week. “This is especially true when all other factors weigh strongly in favor of class certification. In particular, [the court has found] ‘where the defendant’s alleged behavior is deliberate or intentional, we have no problem allowing class actions to proceed.’”
It’s worth noting that, other than Diamond and another named defendant who has since withdrawn, “no other civil actions alleging DPPA violations have been filed against Hastie.” Diamond’s attorneys did not respond to emails about how a class action might proceed.
In her criminal trial, Hastie’s defense didn’t deny her involvement in the disclosure of motorists’ email addresses, but instead argued email addresses wouldn’t be considered “personal information” as defined under the DPPA. That argument has since been rejected.
Cassidy’s decision on class certification could come down any time over the next few months, and a bench trial has already been tentatively set for later this year.
While Mobile County isn’t directly involved at the moment, there’s at least some concern it could be drug back into the litigation because it was originally filed against Hastie in her official capacity as license commissioner. When she became revenue commissioner, Hastie’s successor, Nick Matranga, became a defendant in the case.
Matranga was eventually dismissed from the lawsuit because, among other reasons, the conduct in question wasn’t part of Hastie’s official duties as the license commissioner. It was also never entirely clear what damages, if any, the county would have been on the hook for if Matranga had remained a defendant.
That said, Hastie’s civil case is still something Mobile County’s legal staff has been keeping an eye on because the decision to dismiss Matranga could still be appealed. It’s also anticipated the plaintiffs will pursue an appeal if their case against Hastie is successful.
The Mobile County License Commission (MCLC) recently disclosed the case in a report to potential investors when it went to the bond market seeking funding for a number of capital projects. It was the only pending litigation the county identified that could potentially impact its ability to repay future debts.
“Mobile County is not and has never been named as a defendant, and there remains uncertainty as to the liability of the Mobile County Commission if the plaintiff’s appeal is successful and an adverse judgement is ultimately rendered against the office of license commissioner,” the county’s official statement reads. “If, however, the county or the office of the MCLC were to be held responsible for payment of a judgement, the total liability could be substantial—as much as $80 million, with only a fraction of that amount, if any, covered by insurance.”
Speaking with Lagniappe, Mobile County Attorney Jay Ross said the county is required to disclose all pending litigation that could result in a financial obligation. He also noted that disclosures about the Hastie case had been included in previous audits and bond initiatives.
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