California status report

FTCR v. Fax.com 

IN A TRIAL HELD ON Jan. 28, 2002 in FTCR's case against FAXertise, operated as a dba by an individual who offers blast fax services for businesses in the L.A. Area, the judge ordered the case stayed pending the outcome of the appeal in Kaufman v. ACS.

FAXertise has claimed that it complies with the former CA junk fax law and is hoping that the federal law will ultimately be found unconstitutional in some of the cases on appeal.   Oral arguments were heard in those cases on May 21, 2003 and a decision is expected within 90 days.

FTCR is currently researching other potential cases to bring on behalf of the public because of the myriad of complaints it continues to receive from consumers besieged by junk faxes.

For more information about FTCR's work to fight junk faxing and other privacy abuses, visit its website at www.consumerwatchdog.org

Contact: 
Pam Pressley 
Specialist at The Foundation for Taxpayer and Consumer Rights. 

pam@consumerwatchdog.org   
(310) 392-0522 x307 

* Unsolicited Advertisements/Fax Machines - AB 2944 (Kehoe, D-San Diego) - AB 2944 reinforces a federal law banning unwanted ads over fax machines. This measure protects consumers from the unwanted expense and inconvenience of receiving unsolicited advertisements over their fax machines. AB2944 Deleted existing state law regarding sending unsolicated faxes under certain conditions.

California Attorney General
Pursuing fax.com.

Contact:
elsa.ortiz@doj.ca.gov
(510) 622-4182

AB 839 (Assemblymember Alan Lowenthal)
Seeks to remove the California fax wording. A great bill. AB 839 (Lowenthal) attempts to create a new junk fax ban in California law, which is modeled on the federal law. The bill creates a new private right of action and penalties on top of the remedies available under the federal ban. The measure passed the Assembly and was heard twice in the Senate Business & Professions Committee before the committee voted to put hostile amendments in the bill. According to the analysis dated August 21, 2001, the bill was opposed by Fax.com, who argued that the federal law was unconstitutional and that the federal law did not preempt state law. The opposition also argued that the Legislature should not act since the federal law is being challenged in court [State of Missouri v. Fax.com, Inc. and a Los Angeles Superior Court case] 

Status: The Senate Business & Professions Committee put hostile amendments into the bill to gut it and propose a statewide "do not fax" list. AB 839 may be taken up again before the Legislature adjourns on August 31, 2002. I have a call into the head of that Committee about this.

See AB 839 (Lowenthal) Senate analysis

Bowen bill
Senator Bowen will likely introduce a bill to repeal California's opt-out junk fax law in order to allow the federal ban on junk faxes -- and the remedies it provides -- to be effective in California. Last year the Legislature considered but did not pass AB 839 (Lowenthal) which attempted to repeal CA junk fax law AND ALSO create a new junk fax ban in California law similar to the federal ban. 

Contact: 
Jennie.Bretschneider@sen.ca.gov
(916) 445-5953

Endorsers:

Kevin Fong, General Partner, Mayfield Fund

Bill McKiernan, Chairman and CEO, Cybersource
Sign me up. I spent a week in hell because these clowns were calling my home voice line multiple times after midnight trying to fax me junk! 

Peter Hero, CEO, Community Foundation of Silicon Valley

Tony Ridder, CEO, Knight Ridder

Gary Lauder, General Partner, Lauder Partners

H. Dubose Montgomery, General Partner, Menlo Ventures

Dave Marquardt, General Partner, August Capital

Rod Diridon, Executive Director, Mineta Transportation Institute
You bet! What a pain in the ... elbow! Go get em. Let's save a forest!

Harry Motro, General Partner, Motro Ventures

Kim Polese, Chairman, Marimba Inc.

Steve Perlman, CEO, Moxi Digital

Ray Abuzayyad, General Partner, Ignite Group

Polanco
May carry fax.com DNC bill

Assemblyman Joe Nation
AB 1856 extends fax provisions in existing law to US mail, but doesn't fix the existing wording to be in compliance with federal law.

Kaufman vs. ACS (Southern Calif)
Scott Zimmerman filed earlier junk fax case. Got consolidated/joined to fax.com amkraudt case which made things harder since fax.com brought in better attorney's and it slowed the case down. Case was stalled based on California's "opt out" law in Superior Court. Now on appeal. Scott is an A+ lawyer.

Contact:
Scott Zimmerman
310 282 8997  

Amkraut v. Pacific Coast  Office Products (Southern Calif)
Case  that was recently ruled on in the LA Superior Court. The  court found that  while federal law is constitutional and pre-empts the state's  opt-out law,  because CA has an opt-out junk fax law, we've "opted out" of  the remedies  (including private right of action) under the federal ban.  The case is  being joined with Zimmerman's case and appealed. 

Contact:
Jamie  R. Schloss  (attorney representing Amkraut)
310-477-5455 x145
jrschloss@earthlink.net

Class action in Los Angeles (not sure of case name)
Kevin is getting all the fax.com "permission slips" documented and frozen so that they can't manufacture new evidence.

Kevin M. Tripi 
1920 Main St. Suite 1000
Irvine, CA 92614
+1 (949) 833-9112
Fax: (949) 756-0596

Class action in Northern California 
Lieff Cabraser is the top consumer class action law firm in California. They are taking this case against the major blasters and major clients of the blasters on a contingency basis representing me personally, as well as several other prominent plaintiffs (universities). Seeking billions for the remedy. SJ is studying, john shupe deanza is waiting for lawyer.Sfpublaw@aol.com

Contact:
Barry Himmelstein 
Lieff Cabraser Heimann & Bernstein 
275 Battery St #3000 
San Francisco, CA 94111 
Phone: (415)956-1000 x268
bhimmelstein@lchb.com

Small class actions in Northern California

Timothy Walton and Andrew Pierce, Pierce& Shearer LLP 
Walton recently won a unanimous California state Appeals Court ruling that California can require Internet "spammers" to identify their e-mails as advertisements. They are filing class actions against companies that send unsolicited faxes to my work.

Contact:
Andrew Pierce
(650) 798-2407 
andrew@pierceshearer.com 

>
The opposition also argued
> that the Legislature should not act since the federal law is being
> challenged in court [State of Missouri v. Fax.com, Inc. and a Los Angeles
> Superior Court case].
>

I'm writing off-list to the people that replied to this strand only because
I don't want to reveal too much to any moles on the list...

In the LA Superior court cases (Kaufman v ACS, Inc. et al. and Amkraut v.
Pacific Coast Office Products), BC222588, BC240573 and related actions,
Judge Ann Kough ruled that the TCPA is constitutional under the 1st A., due
process clause and 8th A., but then went on to rule that there is no private
right of action under the TCPA in CA because "the TCPA requires states to
affirmatively take steps to authorize a private right of action under the
TCPA" and that "California, rather than taking such steps, has enacted a
separate and distinct statutory scheme to regulate unsolicited faxes. As
such, there is no private right of action under the TCPA in California, B&P
17538.4 is not preempted by the TCPA, and § 17538.4 is controlling law on
unsolicited fax advertising in the State of California." (Amended Statement
of Decision Re: Motions for Summary Judgment/Adjudication and Demurrers,
Dec. 12, 2001.)

Judge Kough noted that the courts have decided the issue of whether a state
must enact "enabling legislation" both ways, but then only cites two
cases--Autoflex (for her position) and Schulman v. Chase Manhattan Bank
(against her position). She then incorrectly interpreted Murphey v. Lanier
as holding that "while holding that private rights of action can be brought
only in state courts," that the court there also "noted that a person who
receives an unsolicited fax advertisement in CA probably has no private
right of action under the TCPA because of the existence of B&P §17538.4."
(?????!!!!!!)

These cases are of course being appealed, but defendants in another LA
Superior court case (mine) are using this decision to argue that the TCPA
does not prohibit junk faxing if the state law allows it. Trial is
tomorrow.

I've used the preemption argument, cited all the authority that says no
opt-in required, used Mathmaesthetics and Texas v. ABF quotes, etc. in my
trial brief. There is even an Enrolled Bill Report from the Dept. of
Consumer Affairs to the Governor, saying that the original intent of the CA
law was to give Californians some protection until the FCC implemented its
final regs to enforce the TCPA. (which was still in process at the time the
CA law was passed in 1992) The defendants have stipulated to all the facts,
so it is going to come down to this issue--any other suggestions?

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