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September 27, 2017
By Sophie Morris

Law360, New York (September 27, 2017, 7:28 PM EDT) — A proposed class of motorists urged a California federal judge not to trim their claims against toll operators they accuse of unlawfully using drivers’ personal information to collect unpaid tolls, arguing that they are entitled to statutory damages for the alleged privacy violations.

The drivers argued on Monday that they have presented more than enough evidence to show that the Orange County Transportation Authority, the Transportation Corridor Agencies and other operators, including Cofiroute USA LLC, shared their personally identifiable information with third parties and that a jury should determine if such sharing was within the bounds of California law.

“Seeking to avoid the consequences of their actions, defendants incorrectly assert that, were the plain meaning of the statute imposed on them, they would be prevented from collecting tolls and penalties,” the drivers said. “This is a fallacy. Defendants have been entrusted with the sensitive [personally identifiable information] of millions of Californians who drive their toll roads every day, and should be required to adhere to the rules of the system they helped put into place.”

The consolidated action against the Orange County toll road operators was launched as separate suits by several drivers, with the first proposed class action removed from state court last February. They argue that the toll road operators violate the privacy restrictions in California’s Streets & Highways Code Section 314901 — simply known as Section 31490 — when they use license plate numbers to query a Department of Motor Vehicles database for the name and address of the registered vehicle owner.

This personal information was used to collect fines for unpaid tolls, which were alleged to be excessive and exceed the value of the unpaid tolls, the complaint said. Drivers argued that they were also deprived of meaningful opportunities to challenge the fines, calling OCTA’s procedures for the collection of unpaid tolls unconstitutional, according to court filings.

But the toll road operators claimed that their collection procedures are proper and the remedy that the drivers seek would essentially force them out of business. Earlier this month, the TCA defendants told the court that the drivers are not entitled to seek statutory damages for the alleged violations of Section 31490, and in a separate filing, OCTA and Cofiroute reiterated that their practices for the collection and enforcement of tolls are constitutional. OCTA and Cofiroute also agreed with the TCA defendants that the drivers cannot seek statutory damages, arguing that it is up to the court, not a jury, to determine if the sharing of the drivers’ information violated Section 31490.

Now the drivers are reiterating their argument that violations of Section 31490 by both OCTA and the TCA defendants have occurred and that there is a statutory penalty for those violations, which also include the sharing of information such as the time and date when drivers used the toll roads.

They assert that the toll road operators have admitted they shared personally identifiable information with at least 38 third parties, including state transportation authorities, car rental companies and credit reporting companies. Sharing that information puts the drivers at increased risk of identity theft, with the drivers pointing to the recent Equifax data breach to support their arguments. They claim that violations of the law still occurred even if that information was collected and transmitted solely for the purpose of collecting unpaid tolls, as the operators claimed.

Helen Zeldes of Coast Law Group, co-lead counsel for the plaintiffs, told Law360 on Wednesday that the fines leveled by the toll operators are unfair and punitive, with drivers feeling crushed by demands for thousands of dollars or more in payments.

“We’re confident that our oppositions to defendants’ motions show that California drivers’ personally identifying information has been broadly distributed — in violation of the law — without their knowledge or consent to a litany of entities,” Zeldes said in an email. “California Streets and Highways Code section 31490 was enacted precisely for this reason: to protect drivers’ privacy interests and to safeguard their [personally identifiable information]. As the recent, massive Equifax data breach reminds us, protecting personal consumer information is of paramount concern.”

A representative for the TCA defendants declined to comment on Wednesday. Representatives for the plaintiffs and the Orange County Transportation Authority did not immediately respond to requests for comment on Wednesday.

The plaintiffs are represented by Helen Zeldes, Andrew J. Kubik and Ben Travis of Coast Law Group, Aaron M. Olsen of Haeggquist & Eck LLP, Blake J. Lindemann of Lindemann Law Firm, Michael J. Flannery of Cuneo Gilbert & Laduca LLP, Paul L. Hoffman of Schonbrun Seplow Harris & Hoffman LLP, Gail J. Higgins of Higgins Law Firm, Michael McShane and S. Clinton Woods of Audet & Partners LLP, and Aaron Dolgin of Aaron Dolgin Law Offices.

The TCA defendants are represented by Benjamin Z. Rubin, E. George Joseph and Ashley J. Remillard of Nossaman LLP.

The Orange County Transportation Authority defendants are represented by M. Lois Bobak of Woodruff Spradlin & Smart APC. Cofiroute is represented in-house by Ken Speelman.

The case is In Re: Toll Roads Litigation, case number 8:16-cv-00262, in the U.S. District Court for the Central District of California.

–Additional reporting by Linda Chiem and Natalie Olivo. Editing by Stephen Berg.
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