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Pichler v. UNITE

August 11, 2009

ELIZABETH PICHLER, ET AL.
v.
UNITE (UNION OF NEEDLETRADES, INDUSTRIAL & TEXTILE EMPLOYEES: AFL-CIO) ET AL.



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

Defendant UNITE has moved for summary judgment on the issues of punitive damages and multiple statutory damages under the Driver's Privacy Protection Act ("DPPA" or "the Act"), 18 U.S.C. §§ 2721-2725, as well as for reconsideration of our June 5, 2009 Order. The class plaintiffs state that they do not seek multiple statutory damages, and we shall grant UNITE's motion for summary judgment on that issue. We now resolve the remaining two motions.

I. Factual Background

We have previously published comprehensive recitations of the facts related to this case, see, e.g., Pichler v. UNITE, 446 F. Supp. 2d 353, 354-365 (E.D. Pa. 2006), and will only summarize that history here as needed. We granted summary judgment on the question of liability under the DPPA. Id. at 373. Our Court of Appeals last year affirmed our determination of liability and remanded the case specifically to consider whether summary judgment was warranted on the question of punitive damages. Pichler v. UNITE, 542 F.3d 380, 387, 396-97 (3d Cir. 2008).

UNITE violated the DPPA by "tagging" Cintas employees and their friends and family. "Tagging" is a union organizing tactic that involves finding out one's license plate number and then running that number through a state driver's license and registration database to learn the owner's address. Union organizers then approach those who live at the address to find out if they wish to be involved in organizing their workplace. "Tagging" permits the union to quickly determine the addresses of most of the employees without tipping the employer off to the union's activities.

The class plaintiffs complain that UNITE tagged them, and those similarly situated, during the run-up to the union's Cintas organizing campaign and shortly thereafter. Joint Stip. ¶¶ 38-41. Between 2002 and until this lawsuit was filed in mid-2004, UNITE members would tag the cars parked at Cintas's facilities. Id. ¶ 39. Some of the people whose license plates UNITE tagged filed suit complaining that their federally protected privacy had been violated.

In 2000, before the Cintas campaign began, employees of Dillard's and the department store itself chain sued UNITE during the preparation of an organizing campaign in Arkansas for violating the DPPA and Arkansas state law. Id. ¶ 59. UNITE President Bruce Raynor ultimately executed settlement agreements on behalf of UNITE with both the Tarkington plaintiffs and Dillard's. Id. ¶ 60, Ex. O, P. These agreements resolved all of the claims the Tarkington plaintiffs brought against UNITE without any admission of liability from UNITE, and obliged UNITE to expunge any information it acquired through its tagging efforts related to the Dillard's campaign. Id. UNITE complied with the terms of the settlement agreements. See Pls.' Mem. Ex. 1 [Bennett Dep.] at 225:7-14, 228:17-229:21; Ex. 23 [Garren Dep.] 60:9-18.

Jennifer Jason testified that during the 2001 Brylane campaign in Indiana, Jason Coulter, UNITE's Assistant National Organizing Director, and other UNITE members told her that because of the Tarkington lawsuit UNITE "could no longer run license plates." Id. Ex. 31 [Jason Dep.] at 50:4-15. But then because of the slow pace of UNITE's efforts, Coulter got "special dispensation" to tag the cars in Brylane's parking lots. Id. at 83:18.

Jason testified that Coulter had her and several other UNITE members rotate through the local libraries, access the state Web site, and conduct the address retrievals using the username and password of an insurance company that Coulter had set up in Wisconsin. Id. at 85:12-86:19. Jason stated that UNITE undertook these efforts because "it was explained to me that UNITE didn't have a legal reason for running license plates." Id. at 90:4-6. Jason stated that she "knew we were doing things that were, if not completely illegal, that if it ever came out to a worker, it would seem completely suspicious and shady. And I knew that we needed to be discreet." Id. at 80:16-21.

Coulter testified that he and Ernest Bennett, UNITE's International Vice-President and Director of Organizing, discussed Tarkington and "decided to continue to use tags because it was still on occasion a valuable tool for the union to use in organizing workers." Pls.' Mem. Ex. 13 [Coulter Dep.] 64:7-18. According to Bennett, "[t]he context of the discussion was that we needed to be discreet about using the license plate retrieval although we should continue to, but we needed to be discreet because of Dillard's use in a campaign that undermined our effort." Bennett Dep. at 132:23-133:4.

By "discreet," Bennett meant "let's don't run it high profile and blast it out and be careful using it, because we did not want it to be used as a tactic as Dillard used it in the organizing campaign." Id. at 133:11-16. Coulter also told organizers to exercise discretion. In light of Tarkington, during the Brylane campaign, Coulter testified that he told organizers "to be discreet" because they did not want the company to find out what they were doing. Id. Ex. 13, Coulter Dep. 85:2-8. While some people at that campaign knew about the Dillard's campaign, Coulter said they "didn't discuss the Dillard's case, but we discussed that people needed to be thoughtful and careful and discreet." Id. at 86:14-16. They wanted to avoid having the company learn that they were preparing an organizing campaign. Id. at 85:24-86:5.

During the run-up to the Cintas campaign, Coulter opened a Westlaw account under the name Coulter Consulting to use for address retrievals. Coulter Dep. at 185:4. Coulter paid for these Westlaw charges with his credit card, and was reimbursed by Bennett with a personal check for over $8,000. Bennett Dep. at 262:9-265:7; Pls.' Mem. Ex. 32. Before the public announcement of the Cintas campaign, UNITE destroyed anything "used during the prep of the campaign." Jason Dep. at 128:10-11. Jason testified that UNITE did so because (presciently, as it turned out) "we understood that Cintas was a very litigious company. And that we expected them to file lawsuits against us." Id. at 127:1-3.

II. Analysis*fn1

UNITE argues that it is entitled to summary judgment because State Farm v. Campbell, 538 U.S. 408 (2003), prevents the class plaintiffs from recovering punitive damages in this case. UNITE also argues that it cannot, as a matter of law, be liable for punitive damages because it maintained throughout this litigation that its compilation and use of driver's license information fell under a DPPA exception, and therefore it cannot have acted in willful or reckless disregard of the law. We consider each of these arguments before turning to UNITE's motion for reconsideration of our June 5, 2009 Order.

A. State Farm v. Campbell

UNITE contends that the Supreme Court in Campbell created a multi-factor test for assessing whether punitive damages are appropriate, and that applying that test here ...


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