The foregoing federal laws evolved to govern and protect customer financial privacy through legal requirements and standards, aided by technological and other procedural protocols. Notably, other federal and state laws may obligate dealerships to prohibit disclosure of certain information or redact information pursuant to a subpoena or other disclosure. When the dealership receives a subpoena, it should confer with its legal counsel to determine if a governmental authority issued the subpoena. Governmental authority for purposes of the laws discussed above, however, does not include state or local government. If a governmental authority issued the subpoena, then the RFPA applies, and the burden is on the government authority that issued the subpoena to provide notice to the dealership’s customer and produce a certificate of compliance with the RFPA to the dealership to allow the dealership to comply with the subpoena. By contrast, if the subpoena is issued by a state or local government authority, then the GLBA applies. As a matter of cautious due diligence, the dealership should consider first asking the state or local governmental authority for permission to contact the dealership’s customer and give the customer a reasonable opportunity to object to the subpoena through seeking to have it quashed, before providing the customer’s information. Finally, if a dealership receives a private or third-party subpoena issued by a court, the GLBA applies. Whether notice to the customer is first required under the GLBA is unclear. The subpoena may fall within the “judicial process” exception. The dealership should again consult with legal counsel and may consider requesting from the subpoena issuer the right to notify the customer and provide a reasonable opportunity to quash before producing the customer information. When complying with subpoenas, be mindful of your legal obligations to protect and preserve the privacy of customer information, as this will enable the dealership’s compliance with the subpoena without exposing the dealership to liability to the customer for improper or unauthorized disclosure. i See Dealership Compliance with Updated Federal Safeguards Rule by Dec. 9, 2022 – Don’t Wait, by Julie A. Cardosi, Esq., July 22, 2022, IADA News Magazine, Pub. 12 2022, Issue 2. Julie A. Cardosi is Principal of the private firm, Law Office of Julie A. Cardosi, P.C., of Springfield, Illinois. She has practiced law for over 35 years and represents the business interests of franchised motor vehicle dealers throughout Illinois. Formerly in-house staff legal counsel for the Illinois Automobile Dealers Association, she concentrates her private practice in the areas of dealership compliance matters, transfers of ownership, mergers and acquisitions, franchise law, commercial real estate transfers, and other areas impacting day-to-day dealership operations. She has also served as former Illinois Assistant Attorney General and Deputy Chief of the Consumer Fraud Bureau of the Attorney General’s Office. The material discussed in this article is for general information only and is not intended as legal advice and should not be acted upon as such. Dealers should consult their own private legal counsel for application to their specific circumstances. For more information, Julie can be reached at jcardosi@autocounsel.com, or at 217-787-9782, ext. 1. 11
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