Small Claims Judge Dismissed $500 Lawsuit Against a Junk Faxer Without Explanation
Email received Aug. 22, 2002
Hi people at junkfax.org,
I don't know if my story can help other folks suing junk faxers in Los Angeles but here it is:
I'm a French journalist living in Los Angeles. After I wrote a story about anti-spam activists suing electronic spammers in the state of Washington (namely, Bennett Haselton from peacefire.org) , I realized that I could act upon the jerks who wake me up in the middle of the night and send me unsollicted faxes at any time. I'm freelance and have only one phone line for voice and fax.
Since most of these junk faxers don't send you more than one fax, I decided to pick one I could serve in California. I picked up Kik Technology, an alleged Oceanside, CA-based company, who had hired Richard Spradling (he's the famous junkfaxer behind Market News Alert, loathed by junkfax.org) to send a pump and dump newsletter by fax to people like me.
In April of 2002, I send a letter to Kik telling them they had broken the law, offering to settle for $500. Their lawyer (interestingly, Ligon & Associates where Richard Spradling's attorney works) said they would take me off their list, but didn't comment on the settlement. So I sued in small claims court, the Los Angeles superior court, in Downtown L.A.
I worked well over 40 hours on this case, asking lawyers friends for a little help, asking very kind people at junkfax.org and the Foundation for Taxpayer and Consumer Rights for advice. I arrived in court by a big folder. A representative from Kik showed up, his hands empty. He asked to see Kik's lawyer's letter to me because "he had never seen it before". He asked to look at the junk fax, because "he had no idea of what was going on."
The junk fax guy was ready to settle but changed his mind in the last minute so we had to go in front of the judge. As I started presenting the case, the judge said he knew all about TCPA and junkfaxes, which was a relief for me.
I told him right away that it was a case for the principle, that it was not for the money. I said:
"There is a federal law protecting residents like me, called the Telephone Consumer Protection Act. But it's rarely used because of public ignorance and the inability to get attorney's fees. Our only recourse available is to take the extraordinary step to take junk faxers to small claims court.
"My primary interest is to keep my phone from ringing at any time of the day or night. Ultimately, I would like to change the law. I've contacted Senator Bowen in Sacramento who supports a tougher law. For now, I want to show companies like the defendant, Kik technology, that their victims can stand up."
I explained my case, showing the judge everything he needed (the fax, my original letter, their lawyer's answer, acknowledging that the junk fax was unsolicited, the TCPA law etc.)
The guy objected that I should have sued the fax broadcaster, not him. That's when I pulled out my junkfax.org folder, quoting your great Q and A to the judge: "The FCC has ruled we can go after both of you to collect the $500 to $1,500 damages. When the law was originally written, fax broadcasters did not exist. So the 'sender' refers to the business on whose behalf the fax was sent. The Hooters and Dallas Cowboys cases show that you can go after both parties."
The guy protested that he didn't know anything about Ligon and Associates, the lawyers who had gotten back to me. The judge didn't buy it and pointed at the beginning of the letter showing that Kik had retained the law firm.
It looked good for me, except that I was disturbed by the fact that the judge gave me back all my documentation. In less than 10 minutes of hearing, he couldn't have read every fax, letter and document. Two days later, the one-sentenced ruling arrived in the mail: "The defendent doesn't owe you any money."
I didn't care about the money. I knew the guy would escape and try to avoid paying. But I was angry, because during the hearing, it appeared that the judge agreed the junkfaxer had broken the law. I wanted the ruling to acknowledge this. Obviously, this is not what small claims court is about.
I don't know what I should have done differently and on which ground the judge decided against me. He never brought up the opt-in/opt-out question, never even questioned the legitimacy of suing junk faxers. He seemed to get it from the start and even enjoy it, after several cases of disputes over car accidents and loans between relatives.
Anyway, here's what happened to me. I want to thank you again very much for your help and wish you the best.
California correspondent for French media, Los Angeles http://www.emmanuellerichard.com