SE Texas Record

Tuesday, July 23, 2019

Judge denies dismissal of complaint against Don Herring LTD over marketing mailing

By Karen Kidd | Jan 16, 2018

DALLAS – A class action lawsuit against a Dallas-area auto dealership group accused of ignoring the federal Driver's Privacy Protection Act by trawling through state motor vehicle records to find potential customers is moving ahead following a judge's ruling earlier this month.

Dallas Division of the Northern District of Texas Judge Jane J. Boyle denied defendant Don Herring LTD's motion to dismiss plaintiff Arthur Lopez's amended complaint and also denied a defense motion to strike portions of the complaint Jan. 4.

 "The court will not strike Lopez's pleadings because the pleadings are related to the controversy and do not prejudice Herring," Boyle said in her memorandum opinion and order.

Herring, who began his career in 1971 as a salesman in Fort Worth and bought his auto dealership before he was 30, owns Don Herring Mitsubishi in Oak Cliff, Don Herring Mitsubishi North in Plano and Don Herring Mitsubishi Irving, according to information on his dealership website. The dealership group is one of the Dallas/Fort Worth-area's few family-owned and operated automobile dealerships, according to the website.

Under the Driver's Privacy Protection Act, state motor vehicles departments are barred from disclosing personal information for direct marketing without consent of the person whose information would be disclosed.

Lopez claims that May 2016 he received direct marketing mailing from Don Herring LTD, though he'd never before done business with the dealership group. 

"Lopez was shocked to find that the advertisement contained not only Lopez's full name and address but also the make, model and year of his car," Boyle's memorandum opinion and order said. "Believing the safety of his identity was on the line, Lopez decided to investigate."

Lopez claims he spoke with a Herring senior sales associate, who allegedly told him the dealership group obtained his vehicle information from the Texas Department of Motor Vehicles. A Herring general sales manager later confirmed that information to Lopez's attorney via mail, saying "Yes that is correct. We use a third-party company that supplies the information and it is gathered through vehicle registrations," according to the memorandum opinion and order.

Lopez's class action was filed after that and later amended the complaint name Don Herring LTD as the only defendant and claiming to represent a class that could number in the tens of millions, according to the memorandum opinion and order.

In its motion to dismiss, Don Herring LTD's argued that Lopez failed to plead a plausible claim, according to the memorandum opinion and order. Don Herring LTD maintained that the auto dealership employees' statements about the origin of Lopez's personal information had been incorrect and that their statements could not form a plausible claim.

"The court disagrees," Boyle's memorandum opinion and order said. 

"But the court must take Lopez's factual pleadings as true and construe factual allegations in the plaintiff's favor," Judge Boyle said in her memorandum opinion and order. "Thus, the court must accept as fact who Lopez said made the statements and what they said. And the Court can reasonably infer based that information that Herring knew Lopez's information came from the DMV. Thus, the mere possibility that the sales person and general sales manager were incorrect about the source of Lopez's information does not render Lopez's claim implausible."

Don Herring LTD also argued in its motion to dismiss that even if the general sales manager's statement were "taken as true," it did not make Lopez's claim plausible because the sales manager, having obtained his information from third parties, could only speculate about the information's origin. 

Boyle was also unimpressed with that argument, saying in her memorandum opinion that "the court can still reasonably infer that Herring knew Lopez's information came from the DMV based on what he said and the query to which he was responding."

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Organizations in this Story

Texas Department of Motor Vehicles U.S. District Court for the Northern District of Texas