UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Pamela Smith, individually and on behalf of all others similarly situated

v. Civil No. 23-cv-294-LM Opinion No.

P Home Depot U.S.A., Inc.

ORDER

Pamela Smith brings this putative class action against Home Depot U.S.A.,

Inc. (“Home Depot”) alleging that Home Depot violated the New Hampshire Driver

Privacy Act (“Driver Privacy Act”), RSA 260:14, by transmitting information from

Smith’s driver’s license to a third-party without her consent. Presently before the

court is Home Depot’s motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). See doc. no. 11. For the following reasons, the court grants

Home Depot’s motion.

STANDARD OF REVIEW

Under Rule 12(b)(6), the court must accept the factual allegations in the

complaint as true, construe reasonable inferences in the plaintiff’s favor, and

“determine whether the factual allegations in the plaintiff’s complaint set forth a

plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A.,

(1st Cir. 2014) (quotation omitted). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). Analyzing plausibility is “a context-

specific task” in which the court relies on its “judicial experience and common

sense.”

.

BACKGROUND

While Smith’s complaint contains limited factual allegations, the court draws

the following facts from her complaint. See doc. no. 5 at 2. Within the last three

years, Smith has made multiple returns to a Home Depot store in Concord, New

Hampshire. Smith did not present a receipt for her items at the time she made

these returns. When customers make non-receipted returns, Home Depot provides

them with store credit via stored value cards, which are similar to gift cards. In

addition to making multiple non-receipted returns within the last three years,

Smith also purchased items using in-store credit.

When making her non-receipted returns or purchasing items using in-store

credit, Home Depot required Smith to present her driver’s license. Home Depot then

transmitted information on Smith’s driver’s license to an entity known as “The

Retail Equation.” According to Smith’s complaint, The Retail Equation provides

software used by retailers to analyze customers’ shopping habits in order to

determine whether a particular transaction may be fraudulent. Smith alleges that

she was not aware that Home Depot would transmit the information on her driver’s

license to a third-party in order to process her transactions.

Smith brought the instant putative class action in New Hampshire Superior

Court on or about April 10, 2023. See id. at 2, 23. Her complaint alleges two claims

2 against Home Depot, both of which arise under the Driver Privacy Act. Home Depot

removed Smith’s action to this court on or about May 25, 2023, pursuant to the

Class Action Fairness Act of 2005,

Stat. 4 (codified in

scattered sections of 28 U.S.C.).

DISCUSSION

Smith’s first claim alleges that Home Depot violated RSA 260:14, IX(a) by

disclosing information on her driver’s license to The Retail Equation. That statute

provides in pertinent part:

A person is guilty of a misdemeanor if such person knowingly discloses information from a department record to a person known by such person to be an unauthorized person . . . . Each such unauthorized disclosure . . . shall be considered a separate offense.

Her second claim alleges that Home Depot violated RSA 260:14, IX(b) by

engaging in this same conduct. That statute provides that a “person is guilty of a

class B felony if, in the course of business, such person knowingly sells, rents, offers,

or exposes for sale motor vehicle records to another person in violation of this

section.” Although both RSA 260:14, IX(a) and (b) speak in terms of criminal

liability, another provision of the statute states that “any person aggrieved by a

violation of this section may bring a civil action.” RSA 260:14, X. A successful

plaintiff may obtain the greater of actual damages or statutory damages of $2,500

“for each violation,” as well as attorney fees and costs.

Home Depot now moves to dismiss both counts. With respect to Count I,

Home Depot argues that Smith fails to state a claim because the clause of RSA

3 260:14, IX(a) upon which Smith relies only prohibits the disclosure of “department

record[s].” RSA 260:14, IX(a). Home Depot contends, inter alia, that Smith’s driver’s

license is not a “department record” within the meaning of RSA 260:14, IX(a). With

respect to Count II, Home Depot argues that Smith fails to state a claim because

RSA 260:14, IX(b) provides that it is unlawful if a person “sells, rents, offers, or

exposes for sale motor vehicle records.” RSA 260:14, IX(b). Home Depot submits

that (1) Smith’s driver’s license is not a “motor vehicle record,” but (2) even if it is,

Smith failed to plausibly allege that Home Depot sold, rented, offered, or exposed

for sale her driver’s license.

Home Depot’s motion requires the court to engage in statutory interpretation.

Federal courts applying state law “look to the pronouncements of a state’s highest

court in order to discern the contours of that state’s law.” Hosp. San Antonio, Inc. v.

Oquendo-Lorenzo,

, 7 (1st Cir. 2022) (quoting González Figueroa v. J.C.

Penney P.R., Inc.,

(1st Cir. 2009)). Here, the New Hampshire

Supreme Court has not ruled on the precise issues presented. Therefore, the court

“must anticipate how the [New Hampshire Supreme Court] would rule if it were

deciding the questions presented.”

This inquiry requires the court to “look to the

‘pertinent statutory language and analogous decisions of the [New Hampshire]

Supreme Court.’”

(quoting González Figueroa,

).

When interpreting statutes, the New Hampshire Supreme Court begins with

the statutory language, and construes “that language according to its plain and

ordinary meaning.” Brady v. Sumski, --- N.H. ---,

, at *2 (2023).

The Court will “interpret the statute as written and will not consider what the

4 legislature might have said or add language that the legislature did not see fit to

include.”

As the Court examines the statute, it will not “merely look at isolated

words or phrases,” but will instead “consider the statute as a whole.” DeVere v.

Att’y Gen.,

(2001). This enables the Court to “better . . . discern

the legislature’s intent, and therefore better . . . understand the statutory language

‘in light of the policy sought to be advanced by the entire statutory scheme.’”

(quoting Appeal of Mascoma Valley Reg. Sch. Dist.,

(1996)).

Here, the court will begin its analysis by conducting an overview of the

Driver Privacy Act as a whole, which will enable it to better understand the

meaning of subparagraphs IX(a) and (b). Then, the court will consider whether

Smith states a claim for violation of subparagraph IX(a), before analyzing whether

she states a claim under subparagraph IX(b).

I. Overview of RSA 260:14

The New Hampshire legislature enacted the Driver Privacy Act in 1996 in

order to comply with the federal Driver’s Privacy Protection Act (“DPPA”). See

DeVere,

. “In enacting the federal legislation, Congress was

concerned that many States were selling information contained in motor vehicle

records to individuals and businesses producing ‘significant revenue for the States.’”

at 764 (quoting Reno v. Condon,

(2000)). DPPA, enacted in

1994, “regulates the authority of state motor vehicle departments to disclose

information contained in their records.”

Subject to certain exceptions, DPPA

generally prohibits state motor vehicle departments from disseminating

5 information regarding a particular individual without that individual’s consent. See

Reno,

. It subjects “both private parties and state agencies that

violate the statute to substantial fines.” DeVere,

(citing

(b)).

The Driver Privacy Act “purports to conform with the DPPA by setting forth

a general rule that motor vehicle ‘records shall not be public records or open to the

inspection of any person.’”

(quoting RSA 260:14, II(a)). Although the Act provides

that “motor vehicle records shall be kept by the department [of safety]1 at its office,”

and are generally nonpublic records, RSA 260:14, II(a), it does permit the

department to disclose motor vehicle records in certain instances. For example,

paragraph II-a permits the release of motor vehicle records created to document an

accident or collision involving government-owned vehicles pursuant to New

Hampshire’s “Right to Know” Law, RSA chapter 91-A. See RSA 260:14, II-a.

Paragraph III-a deals with the circumstances under which motor vehicle records

may be released for the limited purpose of toll collection to the New Hampshire

department of transportation (or its contractors). See RSA 260:14, III-a; see also

RSA 260:14, III-c (regarding the release of motor vehicle records to other states for

the purpose of toll collection).

By way of further example, paragraph IV(a) permits the department to

disclose motor vehicle records to motor vehicle manufacturers for certain “strictly

1 The Driver Privacy Act’s implementing regulations define “department” as

“the New Hampshire department of safety.” N.H. Code Admin. R. Saf-C 5601.04; see RSA 260:14, XII (authorizing the commissioner of safety to adopt implementing regulations).

6 limited” uses enumerated in that section, such as "in connection with matters of

motor vehicle or driver safety and theft.” RSA 260:14, IV(a)(1); see also RSA 260:14,

IV(a)(2). The department may disclose the records only where the person requesting

them represents “on a form satisfactory to the department” that the records will be

strictly limited to an approved use. RSA 260:14, IV(a)

Paragraph V(a) of the statute provides that “motor vehicle records may be

made available” in ten specific scenarios (such as providing notice to the owners of

towed vehicles), but, as with paragraph IV(a), only if “the person requesting the

records” makes a “representation . . . on a form satisfactory to the department.”

RSA 260:14, V(a). For a disclosure under paragraph V(a), the representation must

satisfy the department “that the use of the record will be strictly limited to” one of

the authorized uses set forth in paragraph V(a).

Except in limited circumstances,

a person who receives personal information contained in motor vehicle records

“under the provisions of subparagraph V(a) may not sell, rent, transfer, or make the

information available to another person for the same or any other use.” RSA 260:14,

VI(a).

The statute also provides that individuals can access their own motor vehicle

records “upon proof of identity.” RSA 260:14, VII. If someone other than the subject

of the records seeks them, the department may disclose them only “upon proof, in

such form and manner as the department prescribes, that the notarized, written

consent of the person who is the subject of the record has been obtained.”

7 The Driver Privacy Act permits persons to opt-out of disclosure and to bar the

department from disclosing motor vehicle records regarding that person in many

circumstances where disclosure would be otherwise authorized by paragraph V(a).

See RSA 260:14, V(b)(1). “A person who so elects shall inform the department in

writing, and the department shall not thereafter make the personal information

available, nor shall the department make available a list of the persons who have so

elected.”

In addition, “[t]he commissioner may limit the information contained in

motor vehicle records released to any person under this section if it is determined by

the commissioner that the release of certain personal information is unnecessary,”

RSA 260:14, XVI, but “[n]othing in this section shall prohibit the department in its

discretion from releasing to the public any person’s name, age or motor vehicle

offenses only,” RSA 260:14, VIII.

Against this backdrop, the court considers whether Home Depot’s disclosure

of information on Smith’s driver’s license to The Retail Equation violates the Driver

Privacy Act.

II. Smith Fails to State a Claim Under RSA 260:14, IX(a)

As noted, Smith’s first claim is brought pursuant to RSA 260:14, IX(a). That

paragraph, in conjunction with paragraph X, provides a private right of action when

a “person knowingly discloses information from a department record to a person

known by such person to be an unauthorized person.” Home Depot argues that

Smith’s driver’s license is not a “department record” as that term is used in RSA

260:14, IX(a). The court agrees.

8 While “department record” is not defined in the Driver Privacy Act, the term

“department” is defined in its implementing regulations as “the New Hampshire

department of safety.” N.H. Code Admin. R. Saf-C 5601.4. And, although “record” is

not separately defined in the statute or its regulations, the plain meaning of

“record” in this context is “an authentic official copy of a document entered in a book

or deposited in the keeping of some officer designated by law.” Webster’s Third New

Int’l Dictionary 1898 (Philip Babcock Gove et al. eds., 1993). Taken together,

“department record” as that phrase is used in RSA 260:14, IX(a) means authentic

copies of documents deposited and kept with of the New Hampshire department of

safety.2

By providing information within Smith’s drivers’ license to The Retail

Equation, Home Depot did not violate RSA 260:14, IX(a). The information Home

Depot disclosed was not within a document obtained from the department of safety.

2 While the Driver Privacy Act did not incorporate the definition of “record”

applicable to DPPA, the court notes that its construction is in harmony with the federal definition. See Andrews v. Sirius XM Radio Inc.,

(9th Cir. 2019) (“Congress intended the DPPA to reflect the Privacy Act of 1974, which defines a ‘record’ as ‘information about an individual that is maintained by an agency.’” (citation and emphasis omitted) (quoting 5 U.S.C. § 552a(a)(4))). Although Smith objects to this court considering federal courts’ interpretations of DPPA in construing the Driver Privacy Act, the New Hampshire Supreme Court has often stated that, in construing New Hampshire statutes, it is appropriate to “look to the decisions of other jurisdictions interpreting similar acts for guidance, including federal interpretations of” federal laws. E.g., Clay v. City of Dover,

(2017). “Such similar laws, because they are in pari materia, are interpretively helpful . . . .”

(quoting N.H. Right to Life v. Dir., N.H. Charitable Tr. Unit,

(2016)). It is all the more appropriate to consider federal interpretations of DPPA in this case given that New Hampshire passed the Driver Privacy Act in order to comply with DPPA. See DeVere,

.

9 Rather, Smith freely provided her driver’s license to Home Depot in order to

complete non-receipted returns and to make purchases using in-store credit, and

Home Depot transmitted information within Smith’s freely-provided license to The

Retail Equation. “A driver’s license, though issued by the DMV, becomes the

possession of an individual, not the DMV that issued it.” Andrews v. Sirius XM

Radio Inc.,

(9th Cir. 2019) (emphasis omitted) (construing

DPPA). Because Smith’s personal driver’s license, which she kept in her own

possession, is not a “department record,” she fails to state a claim for a violation of

RSA 260:14, IX(a).

Smith’s arguments to the contrary are not persuasive. She contends that

“department record” should be read to “include any ‘information’ collected by the

New Hampshire Department of Safety.” Doc. no. 15 at 9 (emphasis omitted). Under

Smith’s expansive reading, however, RSA 260:14, IX(a) would prohibit the

disclosure of information that happens to be contained within a document kept by

the department, even when that information is obtained from a document that is

not—and never was—in the department’s possession. Given that RSA 260:14

viewed as a whole is primarily concerned with circumstances in which it is

permissible to disclose information in the department’s possession or obtained from

the department, Smith’s broad reading is not in keeping with the overall purpose of

the statutory scheme. The court therefore rejects Smith’s interpretation. State v.

Stowe,

(2011) (stating that the New Hampshire Supreme Court

10 will “apply statutes in light of the legislature’s intent in enacting them and the

policy sought to be advanced by the entire statutory scheme”).3

For these reasons, the court concludes that Smith fails to state a claim under

RSA 260:14, IX(a).4 Count I of her complaint is therefore dismissed.

III. Smith Fails to State a Claim Under RSA 260:14, IX(b)

Smith’s second claim is brought under RSA 260:14, IX(b). A private right of

action exists under that paragraph, in conjunction with paragraph X, when a

person, “in the course of business, . . . knowingly sells, rents, offers, or exposes for

sale motor vehicle records to another person in violation of this section.” Home

Depot contends that Smith’s license is not a “motor vehicle record.” In the

alternative, Home Depot argues that Smith fails to plausibly allege that Home

Depot sold, rented, offered, or exposed her license for sale.

In her objection, Smith observes that the Driver Privacy Act defines “motor

vehicle records” in part to include “licenses issued or revoked by the department

relative to motor vehicles and the information, including personal information,

3 Smith alternatively argues that the term “department record” includes everything that is a “motor vehicle record” under the statute, and that, since a driver’s license is a “motor vehicle record” regardless of whose possession it is in, it is also a “department record” regardless of whose possession it is in. Because the court concludes below that a driver’s license in the possession of the person to whom it pertains is not a “motor vehicle record” under the Driver Privacy Act, see Part III, infra, the court rejects Smith’s alternative argument.

4 Given the court’s conclusion that Smith failed to plausibly allege Home Depot

disclosed information from a “department record” in violation of RSA 260:14, IX(a), it need not consider Home Depot’s alternative arguments that The Retail Equation is not an “unauthorized person” under paragraph IX(a) or that Home Depot did not act knowingly.

11 contained in them.” RSA 260:14, I(a). Despite Smith’s observation, however, the

court is dubious of the proposition that a driver’s license in the possession of the

person to whom it pertains is a “motor vehicle record” within the meaning of the

Driver Privacy Act. Other provisions of the Act provide that “[p]roper motor vehicle

records shall be kept by the department at its office.” RSA 260:14, II(a); see also

N.H. Code Admin. R. Saf-C 5602.01(a) (“Motor vehicle records are maintained at the

Department of Safety, Division of Motor Vehicles, 23 Hazen Drive, Concord, NH.”);

5602.02 (“Any authorized person requesting motor vehicle record information shall

submit the appropriate form and payment prior to the department’s release of

information.”). Further provisions require a representation “satisfactory to the

department” that requested motor vehicle records will be used only for a statutorily-

authorized purpose before such records may be disclosed. E.g., RSA 260:14, V(a).

While the Driver Privacy Act generally prohibits the redisclosure of information

within a record originally obtained from the department, see, e.g., RSA 260:14,

VI(a), construing the statute as a whole, the more plausible reading is that the

statutory phrase “motor vehicle records” includes only those “licenses” “kept by the

department at its office.” RSA 260:14, I(a), II(a).5 The court does not agree with

Smith that her own driver’s license, kept in her possession, is a “motor vehicle

record” as that phrase is used in RSA 260:14.

5 This reading is all the more plausible when one considers that RSA 263:12, X

already prohibits scanning, recording, retaining, or storing “personal information, as defined in RSA 260:14, obtained from any license,” irrespective of whether the license was obtained from the department or an individual.

12 While this in and of itself is fatal to Smith’s claim under paragraph IX(b), her

claim fails for the additional reason that she does not plausibly allege that Home

Depot sold, rented, offered, or exposed for sale her driver’s license. As alluded to

supra, the factual allegations in Smith’s complaint are minimal. She alleges that

she made non-receipted returns and purchased items using store credit at a Home

Depot store in Concord, New Hampshire, over the last three years. While she also

alleges that Home Depot “knowingly sold, rented, offered, or exposed for sale” the

information contained within her license to The Retail Equation when she made

these transactions, this mere parroting of RSA 260:14, IX(b) is not to be credited in

a 12(b)(6) analysis. See Iqbal,

(“A pleading that offers . . . ‘a

formulaic recitation of the elements of a cause of action will not do.’” (quoting Bell

Atlantic Corp. v. Twombly,

(2007)).

Even when reasonably construing the complaint’s allegations in Smith’s

favor, the most that can be gleaned from her complaint is an allegation that Home

Depot provided Smith’s driver’s license, or information from her driver’s license, to

The Retail Equation so that The Retail Equation could cross-reference her

identification information against her prior shopping habits to determine the

likelihood that a given transaction was fraudulent. It cannot be seriously contended

from Smith’s factual allegations that Home Depot’s alleged disclosures amounted to

a sale, a rental, or an exposure for sale of Smith’s personal information. To Smith’s

credit, she does not advance such contentions in her objection to Home Depot’s

motion.

13 Smith does argue, however, that she plausibly alleged Home Depot “offered”

her driver’s license information to The Retail Equation. According to Smith, the

Driver Privacy Act “prohibits a person from offering a motor vehicle record to

another even if not in exchange for monetary gain.” Doc. no. 15 at 14 (emphasis and

quotation omitted). In support of her contention, she cites a definition of “offer”

contained within Black’s Law Dictionary, which provides that an offer is “[t]he act

or an instance of presenting something for acceptance; specif., a statement that one

is willing to do something for another person or to give that person something.”

Offer, Black’s Law Dictionary (11th ed. 2019). Smith argues that Home Depot

“offered” the personal information contained within her driver’s license to The

Retail Equation by retaining The Retail Equation’s services and “then followed

through on that offer by sending the information to” The Retail Equation. Doc. no.

15 at 14.

Smith misconstrues the statute. The flaw in Smith’s argument is that it

ignores the familiar principle of statutory interpretation under which a broader

statutory term “takes on the more specialized character of its neighbors.” Home Gas

Corp. v. Strafford Fuels, Inc.,

(1987) (explaining that this principle

of statutory construction is also known as “noscitur a sociis”); accord 2A Shambie

Singer, Sutherland Statutes and Statutory Construction § 47:16 (7th ed.)

(“[O]rdinarily, the coupling of words denotes an intention that they should be

understood in the same general sense.”). While the term “offer” may have the

meaning ascribed to it by Smith in other statutes, in RSA 260:14, IX(b) it appears in

sequence with the statutory terms “sells, rents, . . . or exposes for sale.” These terms

14 are indicative of a monetary transaction, not simply an exchange irrespective of

financial gain. Construing the term “offers” by reference to the “more specialized

character” of the words adjacent to it, the court concludes that RSA 260:14, IX(b)

does not prohibit the mere disclosure or offer to disclose motor vehicle records.

Home Gas Corp.,

.

Because Smith’s complaint alleges no more than mere disclosure of the

information within her driver’s license, she fails to state a claim under RSA 260:14,

IX(b). Therefore, the court dismisses Count II of her complaint.

CONCLUSION

Home Depot’s motion to dismiss (doc. no. 11) is granted. The clerk of court is

directed to enter judgment and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

December 19, 2023

cc: Counsel of Record

15