Dozens of companies facing privacy suits under Daniel’s Law say in a motion to dismiss that the measure is unconstitutional under the First Amendment and the New Jersey Free Speech Clause.
Daniel’s Law was enacted to safeguard the privacy of judges and other public officials, but the statute is excessively broad, making it susceptible to abuse, according to the motion to dismiss filed in U.S. District Court in Camden, New Jersey.
The motion was filed in suits by a company called Atlas Data Privacy Corp. against about 60 defendants.
The suits claim the defendants violated Daniel’s Law by disclosing telephone numbers and addresses of persons covered by the law. Those individuals have assigned their claims under Daniel’s Law to Atlas, which was incorporated in 2021, shortly after an early version of Daniel’s Law was passed, the motion states.
Daniel’s Law was enacted in memory of Daniel Anderl, the son of U.S. District Judge Esther Salas and attorney Mark Anderl. Daniel Anderl was killed by a disgruntled lawyer who found the family’s address online.
Daniel’s Law imposes content-based restrictions on protected speech, making it subject to strict scrutiny, according to the motion to dismiss, which was prepared by Latham & Watkins. That firm’s attorneys declined to comment on the motion.
But the statute allegedly cannot survive strict scrutiny because it is not narrowly tailored to the state interest it is supposed to serve, the defendants said.
And even if it is analyzed under an intermediate-scrutiny standard, Daniel’s Law would allegedly fail, because it is not reasonably tailored to the state’s interest, according to the motion to dismiss.
In addition, Daniel’s Law is unconstitutionally vague and invites arbitrary enforcement, the defendants claimed. Therefore, the statute should be invalidated, and the dozens of suits filed by Atlas should be dismissed, according to the defendants.
According to the defendants’ motion, Daniel’s Law provides that, on notice from any person covered under the statute, any person or business shall not “disclose” or “otherwise make available” the covered person’s home address or phone number.
“But the statute’s sweeping definition of ‘disclose’ encompasses any transfer of this information of any kind, including transfers between businesses, or even within the same business; and the catchall phrase ‘otherwise make available’ makes the statute even more open-ended and hopelessly vague. On top of this, the statute imposes ‘liquidated damages’ triggered by a short and arbitrary compliance deadline, without any consideration of fault or extenuating circumstances,” the motion to dismiss claims.
At the same time, the statute provides exemptions for disclosures by public agencies, undermining the statute’s entire purpose, the motion claimed.
The motion to dismiss also cites the role of attorneys from PEM Law of West Orange, a law firm representing Atlas, in the state Legislature’s 2023 amendment to Daniel’s Law. That change included the adoption of language making those who violate Daniel’s Law “liable to the covered person or the covered person’s assignee.”
Lawyers at PEM Law “reported they were lobbyists for Atlas in New Jersey in April 2023, four months before the assignment provision was entered,” the motion to dismiss claimed. The motion cites a lobbying report for Genova Burns, which lists among its registered lobbyists Rajiv Parikh and Avi Kelin. Both are now lawyers at PEM Law.
Atlas previously described Parikh’s role in speaking to lawmakers about the revision of Daniel’s Law as “a few brief discussions regarding government process and procedures.”
According to the defense motion to dismiss, Atlas allegedly solicited parties who would assign their rights under Daniel’s Law to it for months over the course of 2023.
Once the company had 19,000 assignors, it allegedly began sending nondisclosure notices during the December 2023 holiday season, in blasts of thousands of emails at one time, targeting more than 100 companies, the motion claimed.
Beginning this February, Atlas began filing suits against 143 companies who received emails from it in Superior Court of New Jersey. Later, 73 of those suits were removed to federal court.
The suits allege violations of Daniel’s Law for failure to take down the personal information of thousands of covered persons within 10 days of receiving the notification, the motion said. The suits seek liquidated damages and punitive damages.
The defendants facing suits from Atlas include, among other entities, real estate businesses, direct mail and marketing companies, data brokers, businesses that provide fundraising assistance to charities and nonprofits, credit reporting agencies, and companies that provide voter information to political campaigns, the defense motion said.
“The panoply of businesses targeted in the complaints only underscores the breadth of conduct that an abusive plaintiff like Atlas could argue falls within the expansive terms of Daniel’s Law,” the defendants said.
A question to Parikh about the motion brought a statement from Mark Adkisson, the president of Atlas, who said, “The constitutional challenge to Daniel’s Law reveals the true character and intent of these data brokers: to avoid compliance by any means necessary in order to continue profiting from the sale of the protected information of New Jersey’s public servants and their families.
“At a time when threats against judges, prosecutors, and law enforcement officers are skyrocketing, the message from these multi-billion-dollar companies is clear: Daniel’s Law is too great a threat to their business models and must be overturned no matter the human cost,” Adkisson said. “We will continue to fight to preserve and defend Daniel’s Law to ensure that these basic protections remain available to the individuals and families who need them the most, to prevent another tragedy like the murder of Daniel Anderl from happening again.”
