How to get it to stop
How to get them to stop and/or get even
If you just want to stop the junk fax calls, see How to stop junk faxes for the two secret phone numbers to call to stop your junk faxes.
Or if you want to invest a lot more time and do some work on your own to determine who is sending you the junk so you can tell them to stop, please see: How to identify the fax sender and get them to stop
We recommend that you always save your junk faxes that you do receive. You can analyze them later to determine the sender and then call to stop those calls as well.
If you want to take action against the senders, your decision on whether to take action yourself or not depends on these factors:
- Can you find out who your faxes are from? You can sue both the advertiser and the fax broadcaster.
- How easy will it be to win? This depends on how much of fight your defendant puts up as well as how good the judges are in your area.
- When you win, how easy will it be to collect? This will depend on whether the businesses are honest or dishonest; must companies who send junk faxes are in the latter category since honest companies don't break the law. And if they break the law on this, they are going to break the law in your collection attempts too.
- How much time do you want to spend on this? It's going to be more than you think if you do it yourself.
Of course, if you are not looking for money, but just want to prevent them from sending you or anyone else faxes, it's much simpler. Look at Step #0 and Step #10.
Here's a checklist of things you can do:
Save all your junk faxes. The more faxes you have, the more "leverage" you'll have in anything you might do in the future where it is to sue directly or join a lawsuit. NEVER throw away your junk faxes. NEVER. For example, if you join a suit that goes after a fax broadcaster or common carrier, you may find hundreds of faxes worth $2,500 each. At a minimum, the more faxes you have from a given defendant, the more leverage you will have in having your lawyer contacting them threatening to sue.
Sort the faxes by the "response" number. Find the biggest pile. If you have more than 10 faxes from the same response number, call the response number to find out who the company really is and where they are located. You'll have to make them believe you are a real customer before they'll tell you where they are located. Then, contact one of the Junk fax attorneys who are located in the state where your sender is located. The reason for that is because that way, you can use the same attorney for collections (which is most easily handled in the state of the sender) as for the case itself (which can be brought either where you got the fax or where the sender is located).
See The two secret phone numbers to call to stop most of your junk faxes. If you enter your contact information on this page, we'll 1) tell you the two phone numbers you can call to stop 80% of your junk faxes and 2) keep you updated so that if we discover new numbers that you can call to stop even more junk faxes, we'll let you know via email.
Find out who is sending you this by visiting: How to identify the fax broadcaster. It's usually more time effective to go after the fax broadcaster since you can recover more $ per time invested than going after each fax individually.
If you want to help put them out of business, and don't mind getting about 1 email a month notifying you of "opportunities to help", then please join one of these groups:
These are "moderator announcement only" groups so there is no spam and only about 1 message a month. Be sure to set notification options to Individual Emails (otherwise, you'll never get anything).
The announcements will be opportunities for you to help out "I'm suing XXX. If you have faxes that look like the ones on this webpage, you can assign your claim to me and I will use that to help shut them down."
If you are really "into it" and want to exchange stories with other people, you can:
- Join the Yahoo group: junkfaxDiscussion.
Note that unlike the groups in Step #2, this is an "open forum" for swapping information about the perpetrators. It is not moderated, so you'd want to set your notification preferences as you see fit.
If you want to take matters into your own hands and don't mind spending a bunch of hours to do that, you can sue in small claims court. I can tell you that small claims works. For example, I got 16 faxes from First Chartered Investments and after a 15 minute hearing, walked out with 16 judgments for $2,500 each, a total of over $40,000 (see FirstChartered.pdf). Here's how to do it:
- How to get $2,500 per junk fax (California only)
- How to sue people (general legal tips)
- How to sue in small claims court
- Lawsuit tips and tidbits
- Collection tips and tidbits
If you don't want to spend the time to learn all that stuff, then you can join an existing lawsuit by registering here: Junkfax registration for lawsuit participation. There are suits right now being drafted against all 3 major broadcasters.
If you got a pump and dump fax, report it: Report a pump and dump junk fax
If you want to know how to handle certain situations, please see the Junk Fax Q&A. The Q&A covers the most frequently asked questions like:
- I get calls at night. How do I stop them?
- I get fax calls on my cell phone. How do I stop them?
You can hire an attorney. Many will work on a contingency basis (i.e., it doesn't cost you anything). see Junk fax attorneys
If you are an attorney (or are VERY serious about pursuing junk faxes), you should join the Junk fax plaintiff's litigation support forum [Junkfax-l] at http://www.oklahoma-isp.net/mailman/listinfo/junkfax-l.
When I first started out, I used to sue for $1,500 and settle for $500. For example, see the $500 check I got from LoanNow Financial (Fairon & Associates. Today, I sue for $2,500 per page and settle for $1,500 if I don't have go to court. That's a good deal for the Defendant because they can check my court record: in 50 cases, I've never lost a case and I never give up on my collection efforts; they'll pay sooner or later (some dishonest people are good at making themselves hard to collect).
In fact, it's now unusual for people to only get the statutory minimum of $500 per fax. See 2005-ohio-97 where the Ohio Court of Appeals told a trial court that $500 per fax was not enough!
Step #10 Putting a permanent stop to the junk faxes with an injunction
I've been doing this for 3 years and the only way I know about to put these guys permanently out of the illegal junk faxing game is by getting a nationwide injunction prohibiting them from sending any more junk faxes. If they violate the injunction, they can get slapped with 5 days in jail for each contempt, i.e., for EVERY illegal fax sent after the order issues. You can see why this is so effective!
Another approach is to bring a class action against the phone carrier that is carrying their traffic. You can do that 30 days after notifying them they are carrying illegal traffic if the phone company doesn't stop. You can sue for $100M or more.
It's not that hard to do and it might only take 30 days from when you first file in court.
You can file in state court or, if you meet diversity and amount of controversy for each plaintiff, federal court. State court is easiest and fastest.
Note it doesn't cost a lot of money because you don't have to spend thousands of dollars on legal expenses trying to get the "perfect brief." You just present your case and if the judge is smart enough, you'll win. If you don't win, you can try again with different faxes and a different judge. Eventually, they will lose and you will win. That's how it is supposed to work: justice is supposed to prevail.
Here's how you do it.
- Hire an attorney to do the steps below. You can do it yourself, but attorneys have greater "credibility factor" making it more likely you'll get the preliminary injunction that is critical to putting an end to the illegal faxes. Even better, you can find excellent attorneys who work for free; it's called contingency and they essentially trade their services for about 35% of the final judgment. If you can't find a contingency attorney, I've found others willing to work for as little as $100/hr on these cases (since they are quasi "charitable" in nature) even if very pricey areas like San Francisco. Try starting here: Junk fax attorneys
- Identify the junk faxer or broadcaster that is ticking you off (see step 1.5 above)
- Find a case where your junk faxer has already lost. Your attorney can do that by asking on the junkfax list (see step #9), searching court cases, or looking on TCPA law (www.tcpalaw.com). If you can't find such a case, don't worry because you can still do the process below; it's just easier if you do since it makes it more obvious an injunction is justified.
- File a case in your nearest state court in any court that will issue injunctions. Normally, this is not small claims, but is limited jurisdiction or higher. Have your attorney draft your complaint to seek both injunctive relief and monetary (statutory) damages under the TCPA.
- Make sure you keep the monetary demand in the case to less than $75,000. Otherwise, you can get removed to federal court and then potentially be transferred back to state court. By keeping it to less than $75,000, you avoid this commonly used delaying tactic and save time. If state court doesn't work, then try federal court (if you have enough faxes to qualify)
- Be sure to name both the company and its officers. Because the company is an tortfeasor, the officers may be personally liable if they authorized the illegal activity (just as happened in the fax.com cases).
- The TCPA specifically allows you to get an injunction so it is authorized by statute. Also, it has been done before where a state court orders a defendant (which can be in state or out of state) to stop sending junk faxes to ANYWHERE in the US (see the cases below). Therefore, after you file and serve your case, immediately go in with a noticed motion for a preliminary injunction naming the the company and its officers and anyone else who has notice of the order. Note that the coverage of the injunction will be much broader than just the named Defendants (see real life cases below, e.g., the fax.com injunction). You should be able to get this if you have a good judge.
- Each state will have a different standard. For California, see TRG: Civil Proc. Before Trial [9:519 ff].
- The federal standard is that a preliminary injunction may be granted if the moving party demonstrates either:
- a likelihood of success on the merits and the possibility of irreparable injury
- That serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.
- These are not different tests, but rather represent "two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success on the merits decreases." In addition, if a public interest is involved, the Court should also consider if the grant of a preliminary injunction favors the public interest (see Memorandum of Points & Authority for citations).
- This has been done before so you are on solid ground. Also, since there is no oral testimony (other than affidavits and declarations), it is very inexpensive to do. Here are some arguments you can use:
- Likelihood of success: If you found a case they lost, then you've nailed "likelihood of success on the merits" since a court of competent jurisdiction has evaluated both the law and facts and found in your favor. Otherwise, you'll have to bring affidavits, e.g., of their customers who attest that they did things that violate the law. But my favorite argument is this.... You honor, I see they are opposing this motion. Why would they bother to oppose the motion if all their faxes are legal?
- Balance of hardships: Since you are only asking that they not violate the law, it is pretty hard to argue that they can be harmed in any way since they aren't supposed to be doing anything illegal. That gives you balance of hardships. They could still argue that the law is illegal but with no cases to stand on (every case has determined the opposite), that argument won't fly.
- Legal remedy must be inadequate: Since the law provides for injunctions, you are on solid ground.
- Irreparable harm: Since the statute allows for an injunction this shouldn't be a problem. If you are suing a broadcaster, you could note that pump and dump faxes cause people to lose their life savings. That money is gone forever since the scam artists disappear or hide the money offshore. Other faxes wake people up. Sometimes, so many faxes come in that the fax machine will not receive any more faxes resulting in an unknown amount of lost business.
- Don't try to get a TRO immediately because 1) it's harder to get 2) it's only a few extra days to go for a preliminary injunction, 3) you have to get the Preliminary Injunction anyway so the TRO just adds to your costs. Then when you win, you seek a permanent injunction.
- Here's are real life cases to prove it can be done:
- Once you have an injunction, they are dead meat and you continue to try to get $ damages for your faxes.
- There is one big catch....For preliminary injunction, the judge will require you to post a bond to compensate the other party in the event things don't go your way and you lose. That $ amount might be substantial. If it is, then you make the injunction part of the case and when you win, you have a permanent injunction with no bond requirement. However, the bond shouldn't be large at all because you're only enjoining illegal behavior. For example, the Defendant will have to show which customers are adversely affected by the injunction. This means the Defendant will be admitting to the judge they ARE sending unsolicited faxes. So the preliminary injunction, even if unsuccessful, causes the defendant to WANT to admit to you they KNOW they are sending unsolicited faxes. So even if you lose, you can use that evidence later on in your trial, e.g., for a broadcaster, it shows that they had actual notice and failed to stop the transmissions.
- If they violate the injunction (which you can show because others are getting faxes traced back to them; have your attorney contact us for secret techniques they can use to determine this), then they are really hosed. Each junk fax they send out after the injunction means 5 days in jail for each of the people who run the company. So if they send out just 30 junk faxes after the order (we're talking 30 faxes here, not 30 days of faxes), they can get 6 months in jail in one hearing and without the right to a jury trial. If the judge is willing to go through a jury trial, then they can spend a virtually unlimited amount of time in jail on thousands of counts of contempt (each fax constitutes one contempt which is punishable by up to 5 days in jail).
- Note that in California, contempt is up to 5 days in jail per contempt; your state law may be different. See In federal court, contempt sentences per contempt are unlimited.
- The fact that the junk faxer is out of state is immaterial. Some of these jokers think they are safe from an out of state court but they aren't if YOU are smart enough. You do an ex parte OSC re: contempt and personally serve it on the contemnors (the court can order substituted service for OSCs). If they appear, they can be sentenced to jail right on the spot. If they don't appear, you simply convince the judge to issue a bench warrant for their arrest and you MUST ensure that the warrant is marked as "extraditable" and have it entered into NCIC (the "National Crime Information Center" which a computerized index of criminal justice information). Make sure the judge talks to the DA about this. This is critical. Without the "extraditable" and NCIC, the bench warrant is worthless.
- Once the warrant is in NCIC and extraditable, any peace officer can arrest the officers and have them transported back to your state to face their sentence of 6 months (or more) in jail for contempt.
- Because out of state civil bench warrants for FTA (failure to appear) have the lowest priority for the cops and sheriff, they may never be arrested. Therefore, you can speed things up by hiring a professional bounty hunter. This isn't that expensive. It's basically $150 plus expenses. As long as your pals are in NCIC and extraditable, they can go into any state and find your guy and then transport him to a county within that state that will honor out of state extradition to your state. Call Robert at 808-368-2455 (U.S. Pacific Recovery Services).
- If they are in your state and you just have a civil bench warrant that is not extraditable, you can still use a bounty hunter to bring them to court faster than just waiting around. Most bounty hunters do not know how to handle these cases since they normally work for bail bonds companies and just go after people who skip bail. Call Robert at 808-368-2455; they will handle civil bench warrant cases.
The bottom line is that if you get a good lawyer and a good judge, they either stop or they are thrown in jail. Use the contact link if you have trouble with any of the steps, and we can help.
If you get a bad judge (or bad lawyer), you simply repeat the process again and the most you've wasted in your case is one motion. You'll get a different judge and you can re-use your paperwork. You get as many chances to have these guys put out of the junk faxing business as the # of faxes you have. Eventually, you'll get a judge with a good spine and justice will be served.
Therefore, sooner or later, they are out of business due to your efforts...guaranteed. There is no escape; which is why I'm not afraid of publishing the strategy here. This is how fax.com, formerly the world's largest junk faxer, was put out of business, through the injunction process and the threat of contempt. They chose to quit rather than sit in jail.
Another excellent strategy is to file in state court for $74,000 on your own faxes and get assigned faxes for over that amount. If they remove to federal court, they'll have to argue the assignment is valid (and the federal court will too)! That would be a huge win. Instead, they'll attack the assignment which keeps you in state court. If you lose, no big deal; you've lost no upside because you just amend your complaint to add them as separate plaintiffs. If you win, it creates a really powerful way to get BIG judgments in the future.
Here are some injunctions against junk faxers (or TCPA violators):
- fdc_CaAGinjunction10-5-04.pdf: fax.com. This injunction from a federal court, was nationwide.
- brown_v_satex.pdf: Sound Media Group. This injunction issued by a California state court prevents Sound Media Group, which is based in California, from causing junk faxes to be sent from anywhere in the US to anywhere in the US.