Sometimes I see comments asking why a judge makes a decision you don't agree with, or why he or she can't see through some obvious gaming. Webster found us a ruling by a magistrate judge in Small Claims Court in Washington, DC, Judge Ronald Goodbread. It's his swan song, as you can see in the very funny last footnote, where he tells the plaintiffs pretty much what he thinks of their chances of appeal. And his second to last footnote is funny too. The entire ruling tells us pretty much what he thinks of this plaintiff and this style of litigation, and his purpose is to let other judges and defendants in the future know what the situation is. And I think he's also letting the Congress know that a law that was well-intentioned and designed to curb abuses is playing out oddly in real life, particularly when the law is gamed, and might need tweaking. Nevertheless, he finds for plaintiff, despite clearly wishing he didn't have to, because the law gives him no choice.
Litigation trolls rely upon the rule of law, of course, but judges have to uphold it anyway. Why? Because guns at dawn is worse.
It's a case about unsolicited faxes. Unlike unsolicited phone calls, where the first call is not illegal, but the next are if you ask not to be called, faxes are illegal from fax 1. So there is no room for a mistake, and there are fines. It's what the judge calls first fax liability. That is what he is questioning. He is looking at how an anti-fax campaign is being handled, and he's asking if this is an ideal use of judicial resources.
The judge has had to live this case out in detail, so he carefully details not only the particulars of this case but all the others he has found brought by the same crew, and that is where you'll see what he's talking about. It's only because he's retiring that he feels this free, I expect, to be so clear. What you'll discover is that judges are thinking a lot more than you thought they were, if you were going simply by what you read in the decision itself. Had he just written, "Judgment for plaintiff in the amount of so and so", you'd never know he was having these internal musings and feelings. And you would write comments about how the judge was fooled. He wasn't.
Judge Goodbread is a learned and witty judge, and no matter whether you agree with him about faxes, you'll surely enjoy reading what he wrote.
I can't take the time to finish perfecting the html. After doing the 52 footnotes, I gave up hope of beautification on a document that isn't core to our historical purpose, but if someone would like to italicize all the cases, for example, I'll gladly copy and paste it in.
Update: Webster sends me another ruling, and it's very well worth reading too. Here it is as PDF. Also as .odt. It's a dispute about a tree, some branches of which were overhanging the yard next door. The new owners of the house next door, rather than introducing themselves and having a neighborly chat to ask that the branches be cut back, decided to self help, which the law in Massachusetts allows, only instead of trimming the branches, they just chopped it down instead to a four-foot stump. The owner of the tree came home from work one day and found his beautiful tree like that. Poof. Howdy, neighbor.
The courts then were appealed to, and to the surprise of the new owner and perpetrator of the tree-cutting, it turns out there is another law: they were not yet owners of the property, as it turned out, under the law, and that made it a trespass and they ended up having to pay $5,000 in damages (of course, called "deciduous damages" in the order -- I love this judge) that they weren't expecting to have to pay for having done it. Not only that but it turned out that the previous owner had asked for the shade, because he liked it. The point is: a little common sense, a little modesty, and a bit of balance can keep you out of a heap of trouble. Those of you who thought the judge should draw and quarter faxers or shoot them at dawn might enjoy reading this one, to really discern his message. Here's how the decision begins, with a little poem by the judge:
I think that I shall never see
A Small Claims case worth a single tree.
Yet, a tree whose branches once entwine
And cross the neighbor’s boundary line
May, with its great trunk extended
Out of bounds, have its life ended.
For that is the rule in the case of Sterling
For overhanging branches curling.
While courtesy and common sense
Could have avoided this charged offense,
The right to self-help still continues
In this and similarly governed venues.
Although only God can make a tree,
A mere judge is bound by prior decree.
Thus, a growth onto land abutted
Allows the neighbor to simply cut it.
Yet, unlike the tree, which at least had standing,
The Defendants can’t have what they’re demanding.
For, by cutting a tree before they own it,
They trespassed without having known it.
So that sans shade they could plant new grass,
They must now pay for their trespass.
Although they would at these rights scoff,
They went out on a limb – and sawed it off.
- With apologies to
Alfred Joyce Kilmer
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Small Claims and Conciliation Branch
WILLIAM ADLER, ET AL.,
IMAK WIRELESS, INC.
Small Claims Magistrate
In 1991, with a conspicuous lack of foresight for the impact that it would ultimately have on courts – particularly courts of limited jurisdiction like our Small Claims Branch – Congress passed the Telephone Consumer Protection Act (TCPA). 47 U.S.C. § 227 et seq. The law created a “private right of action” for telephone customers who receive unwanted telephone and fax solicitations. Among other things it prohibits the sending of “unsolicited advertisements” via fax. It allows for either actual damages caused or $500 per violation, whichever sum is larger; in egregious cases, it permits the award of treble damages at the discretion of the court. Id. § 227(b)(3)(B).
A. Procedural History
Sometimes a proponent’s case can be reduced to a single paradigm, the words contained in one statement alone which amply demonstrating the falsity of its entire theory. In this case, such a statement is contained in the parties’ joint stipulation of January 6, 2003, framing the Plaintiff’s whole case as follows: “Defendants [each] caused to be sent one unsolicited advertisement to the telephone facsimile machine of [the Plaintiff] ....” This case, therefore, is basically about one sheet of paper sent by each defendant to one recipient.
Since then, each lone fax page has undergone a kind of “litigatory mitosis” and each has multiplied itself into enough pages to fill two court jackets and two supplemental binders which, when stacked, measure nearly six inches in height. The jackets contain a total of 47 line entries and hold 36 pages of court forms, notices, subpoenas, and praecipes, a staggering 315 pages of motions and attached exhibits, 133 pages of submitted case law, 15 pages of discovery, and 85 pages of exhibits. Combined, they have generated 27 pages of correspondence between the lawyers and to the Court over the course of this case – for a grand total of 611 pages of filings (not counting the two supplemental volumes which contain duplicates of most of the foregoing).
Moreover, the procedural mechanism of Plaintiff’s case has also undergone a tortuous convolution as it has proceeded apace. It began on August 31, 2001, with Mr. Adler’s filing, through Counsel, a claim against two Defendants, Mr. Joseph P. Fonczek and IMAK Wireless, Inc. (both of Orlando, Florida) concerning a single fax sent to Adler on April 26, 2001, for which the Plaintiff sought statutory treble damages of $1,500. This claim was followed on September 7, 2001 (one day before the scheduled initial hearing in the matter) with a subpoena for the appearance of Kurt A. Schroeder (whose relationship to the case was not stated). On the initial hearing date both parties and their counsel appeared and conducted required mediation, which bore not fruit. The case was continued to October 29, 2001. On that date, however, Plaintiff again pressed the schedule by filing a Motion for Discovery at the last minute and the matter was continued for another month. On November 29, 2001, the Court granted, with limitations, the Plaintiff’s Motion for Discovery, together with his Motion to Amend the Complaint. The amended claim was not filed until January 8, 2002; it dropped Mr. Fonczek as a Defendant and added the entity Fax.com. It was accompanied by a subpoena to the entity Quest Communications of the District of Columbia for “[a]ll phone records, invoices, call detail reports, or other documents for any/all calls made to or from any phone line or number or trunk line used by Fax.com, Inc., of Aliso Viejo, California, made to or from” four specified D.C. phone numbers. Ten days later an Amended Subpoena issued on the same entity, this time requesting additional information for phone records involving Fax.com for 66 specified dates between September 5, 2000 and January 4, 2002. Predictably, this resulted in a Motion to Compel Discovery and a response thereto, necessitating another hearing. Pre-trial briefs (consisting of 56 pages for the Plaintiff and 65 pages for the Defendants), together with several supplements each, were filed during January-March of 2003. The case was heard on its merits on March 19, 2003, and thereupon taken under advisement by the undersigned. This Memorandum Opinion, at long last, now issues.
Few cases, if any, justify such an innundation of a Small Claims Court – and certainly this one does not – taxing the resources of what is essentially a one-judge court and siphoning its resources away from those whose minor disputes within our community are meant to be resolved here. Instead, a massive amount of effort has been expended by all concerned (Plaintiff’s Counsel, Defendants, their Counsel, the Court, the Clerk’s Office and staff, and others) over approximately a dime’s worth of fax pages emanating from California. The Plaintiff and his Counsel appear never to have heard of the ancient legal maxim de minimis non curat lex (“The law does not concern itself with trifles.”).
B. Contextual History Involving These Plaintiffs
Yet, this can hardly be a surprise to either the lead Plaintiff or to his Counsel because this case comes before this Court with a related history where they are concerned – a history that should have left them with some stern lessons. If the hapless Mr. Adler is to be believed, despite his apparent aversion to receiving such “opportunities,” he remains on numerous “fax lists” and, as a result, has brought this basic claim in more than a dozen other TCPA cases in the D.C. Superior Court – to say nothing yet of three other cases filed in U.S. District Court here.
1. Adler TCPA Cases in Superior Court
a. Small Claims Cases
Not counting the instant case, Mr. Adler has filed a total of ten TCPA-based cases in this Branch of the Court. They show a pattern of opportunistic “settlements” and abandonment, depending on the response, vel non, of the named defendant(s). A summary of these filings appears in the following table:
Adler TCPA Cases Filed D.C. Superior Court Small Claims Branch
Wm. Adler v.||
Verne Taylor & Gerald Carson|
of Brunswick, OH & Lincoln, NB
Settled for $250|
of Redondo Beach, CA
John Hunter, DDS|
of Forest Hills, MD
Settled for $1,000|
Copiers Direct & Direct|
Order Copiers, Inc. of
Santa Clarita, CA
Settled for $2,000|
of Houston, TX
DWP on 09/04/01|
Aspen Creek Seminars|
& Lisa Hendry of
No action |
Advanced Wireless Cell. Comms.|
of Lakeville, MN
Judgment for $1,500|
Imak Wireless and Fax.com, Inc.|
of Orlando, FL
Richard Spradling & |
Market News Alert of
Unlimited Success Consultants|
& John Rose of
Stanley Senders dba |
Copier Store & Accessory
Store of DC
Settled for $600|
*Note sequential groupings of 2-3 cases filed at the same time throughout 2001.
** RAG - Ronald A. Goodbread SDP - Stephanie Duncan-Peters
Note that In Adler v. Advanced Wireless Cellular Comm., Inc., No SC-12944-01 (D.C. Super. Ct. July 6, 2005)(Duncan-Peters, J.), the Court rejected constitutional and jurisdictional challenges to the TCPA and awarded Mr. Adler $1,500 for three unsolicited faxes sent him. This was, in fact, the only actual judgment that Adler has ever received in such cases in this Court. Otherwise, these ten Small Claims cases account for a total of 27 faxes, averaging about three pages.
A close examination of these cases reveals a pattern. The legaléminence grise at the tiller of this flotilla of law suits was Counsel of Record in the instant case, Michael C. Worsham, Esq. Not counting the instant case in terms of outcomes, Mr. Worsham filed 10 Small Claims cases on behalf of Mr. Adler during 2001 alone. In 7 of the 10 cases, the Defendants were west of the Mississippi River, greatly reducing the likelihood of actual collection in the event of a judgment in Adler’s favor. Of those 7 cases, 4 were “stillborn” in that nothing was done after they were filed and one was dismissed for want of prosecution. Thus, fully half of these Small Claims filings were a complete waste of time and court resources. This approach indicates a “shot in the dark” (mis)use of the process of the Court by filing blanket, boilerplate TCPA suits with the apparent hope that someone will respond and a “settlement” can be reached, but leaving cases lying fallow on the court’s docket when no response is forthcoming. In this manner, four of the remaining five cases – involving a total of eight faxes -- were settled for varying amounts, totaling $3,850. This comes to “only” $481.25 per fax, a sum significantly less than the minimum TCPA statutory amount of $500 per fax. Only one case out of the 10 resulted in a judgment in favor of Mr. Worsham’s client, which added 3 more faxes and $1,500 to the respective totals. This lone judgment increased the aggregated recovery in 10 law suits to $5,350 (slightly over the maximum statutory recovery for just a single Small Claims case), all over a total of 11 faxes, or still only $486.36 per fax. Although this lone judgment increased the “per fax” recovery by a munificent $5.00, it still remained below even the minimum statutory recovery per fax. Thus the rate of return on these massive efforts is conspicuously unimpressive for a spate of law suits that took up the entire year 2001.
b. General Civil Division Cases
As noted above the Adler-Worsham counter-assault on faxes was not confined to the Small Claims Branch of this Court. They also filed four actions in the General Civil Division here. Each was a molehill pregnant with a mountain.
(i) Adler v. National Communications, et al., CA-1108-03
The “sue and default” approach paid off handsomely for Mr. Adler and his two adjuncts (Ms. Kopff and Ms. Morris) in this case against three Defendants, two of whom went into bankruptcy and one of whom sustained a default judgment.
The complaint alleged that Adler had received 10 unsolicited faxes, Kopff nine, and Morris four 4, all in October 2001 (each a single page advertising digital phones). When Fisher alone failed to respond or file a Suggestion of Bankruptcy, the Court had no option but to find him in default and, upon ex parte proof, award damages, which it set as $5,000 for Adler, $8,500 for Kopff, and $2,000 for Morris, for a total of $15,500. There is no indication that any consideration was given to treble or exemplary damages in this matter, nor is there any evidence of any attempt at collection since September 2003.
(ii) Adler v. Katz, et al., CA-8109-03
The Adler-Worsham performance in this case, however, was epically different. Rising like a grotesque monadnock from the plain of “ordinary litigation,” their litigation approach was so wretchedly excessive as to defy the imagination, standing as an example of the kind of abusive process that has come to characterize their approach to TCPA cases.
In this case, Adler sued 11 defendants because he had received 35 unsolicited faxes demanding statutory damages of $105,000.
The filings in this case consist of 1,211 pages and take up four separate court jackets which, when stacked together, measure nearly a foot high. The new CourtView system now servicing the Superior Court prints out 17 docket pages for this single case, with a total of 281 separate entries. The case was filed on October 2, 2003, and was terminated on January 23, 2004, taking up space on the Court’s docket for a total of three years, three months, and 22 days.
Time and space considerations here permit only a surface view of the topography of this litigatory terrain in a case that was ultimately settled. The original complaint, consisting of 12 pages containing 72 paragraphs of allegations with a jury demand, proceeded on a dual theory of Invasion of Privacy and TCPA violations. It was followed eight days later by an Amended Complaint.
The Plaintiff and his Counsel conducted a war of attrition in this matter, characterized by filing after filing over the most basic issues. Most conspicuous were the Plaintiff’s relentless and grossly overbroad discovery demands propounded by Mr. Worsham. In addition to the full panoply of discovery devices, including depositions, the Plaintiff issued numerous subpoenae duces tecum, a typical example of which included 20 paragraphs with 54 subparts. This overly-aggressive approach to obtaining information about 35 pages of faxes resulted in 11 requests from the Defendants for protective orders between March 2004 and April 2006. Not to be outdone, 12 Plaintiff’s Motions for Sanctions followed between December 2003 and April 2006.
In the course of the pre-trial litigation, five Defendants filed Motions to Dismiss between November 2003 and June 2006. The Plaintiff vigorously opposed all of them. For example, a single Defendant’s Motion to Dismiss in November 2003, prompted a Plaintiff’s response, a Defendant’s reply to the response, and a Plaintiff’s sur-reply to the reply to the response.
The Plaintiff also engaged in such retaliatory “flanking actions” as filing a Motion to Disqualify one of the Defendants’ lawyers (Mr. Staples) in December 2003, a motion that prompted an opposition and a movant’s reply to the opposition (motion denied). It remained on the Court’s docket for nearly 800 days before being denied on February 6, 2006. It was followed by Plaintiff’s Motion for Contempt against Mr. Staples in August 2004, a reply, a response, and a sur-reply; this motion was also denied.
The simple matter of setting a scheduling conference/status hearing resulted in 13 postponements between January 16, 2004 and June 30, 2006, almost all of which delays were occasioned by the Plaintiff. An additional six efforts were required to schedule a mediation/ADR conference between September 2004 and April 2006.
In the course of the case, five Motions for Summary Judgment were filed by the Defendants and one by the Plaintiff (all of which were denied). Throughout this morass of a case, two Judges were required to issue a total of 46 court orders. As the case neared the pre-trial conference stage, the Plaintiff filed a witness list consisting of 97 names (the Defendant listed only six). In the end, the case was settled “with the last active party” on July 6, 2006 – after 1,008 days of litigation.
Unfortunately, however, this ultimate result did little to mollify the three Defendants who were eventually released from the case. Defendants Charles Martin, Darrell Smiley and Jeff Payne were not dismissed until on or about April 13, 2006, after the Plaintiff had foiled every effort they had made to terminate this litigation during the previous two and one-half years. Throughout that period they had also been the targets of the Plaintiff’s relentless discovery requests. Martin and Smiley’s Motions to Quash Service filed Smiley in October 2003, had been denied in the face of the Plaintiff’s opposition, as were their separate Motions to Dismiss for Lack of Personal Jurisdiction in February 2004. Moreover, the Plaintiff hotly opposed their Motion to Strike certain paragraphs of the Amended Complaint against them in March of that year. Payne, in turn, had filed a Motion to Dismiss in November 2003, which the Plaintiff had also opposed, as he did with Payne’s Motion for Summary Judgment in May of 2004.
The Plaintiff’s obstreperous conduct was not confined simply to opposing the Defendants’ Motions prior to dismissal; it also include affirmative action to make this litigation even more burdensome, complex, expensive, and disagreeable. The Plaintiff filed Motions for Sanctions against Martin and Smiley in December 2003, as well as January, April, May and June of 2004, and opposed their Motions for Protective Orders in June and their Motions for Summary Judgment in May and July of that year. Moreover, in December 2003, the Plaintiff had moved to disqualify Mr. Staples as Counsel for Martin and Payne and to find him in contempt in August 2004.
All three of these Defendants were required to file Pretrial Statements in September 2005, only to be Dismissed with Prejudice via praecipe on April 12, 2006. The net result: more than 2 ½ years of brutal litigation against 11 Defendants yielded a judgment against only one.
A more obtuse and remorseless attitude in disregard of Civil Rules 1 and 11 could hardly be imagined than that exhibited by the Plaintiff and his Counsel of Record in this single TCPA case.
(iii) Adler v. Fax.com, et al., CA-5820-04
In this matter the same three “usual suspects” filed suit against three Defendants, claiming that they had received unsolicited faxes via the “services” of Fax.com, of Cosa Mesa, California, one of the major targets of TCPA litigation in the country. One fax each for Adler and Kopff, and four for Morris, all in September 2003, were sufficient to prompt them to file jointly an eight-page, 42-paragraph complaint (later amended to 51 paragraphs), replete with a request for injunctive relief and a jury demand, all under the aegis of Mr. Worsham.
Despite the propounding of the written discovery devices and a Motion for Contempt, only one of the Defendants responded. On October 18, 2005, the sole responding Defendant was sanctioned with a $200 penalty for ignoring discovery, but strangely, the entire case has lain fallow since. The net result is that yet another needless case has burdened the Court’s docket for nearly two full years now.
(iv) Adler v. Ed Faust, CA-716-06
In February 2003, Ed L. Faust of Oakton Virginia, whose business is painting and wallpapering, made the mistake of sending out faxes advertising his services, some of which were received by the “Three Furies of TCPA Litigation.” Apparently, Mr. Adler who received one fax (that was enough for a lawsuit, to be sure), Ms. Morris received three faxes, and Ms. Kopff, four. Notably, just before the statute of limitations expired, the usual complex complaint was filed in January 2006, only to be dismissed on May 15th of that year for failure to serve process. CourtView shows that nothing has been done in this matter since, making it another complete waste of time and effort in this campaign.
A general overview of these four Civil Division cases appears in Table 2 as follows:
Adler-Related Cases in the Civil Division of Superior Court
& 2 Others
Default judgment for a total of $15,500,|
though no collections
& 10 Others
Judgment against only one Defendant after|
2,059 pages of filings
& 2 Others
Default but judgment against |
only one Defendant
Dismissed for failure of service|
*NEK - Neal E. Kravitz JAC - John A. Campbell
REM - Robert E. Morin PAB - Patricia A. Broderick
This table shows a total of 72 pages of faxes between 2003 and 2006, an average of 18 faxes per case, or one fax every 53 days. For all this litigation, however, the record indicates that where Civil Division cases are concerned, although judgments were obtained in three of the four cases, other than the settlement in the Katz case, the Plaintiffs have never collected a dime for their efforts in the others.
The philosophy guiding the “Adler Litigation” comes into better focus when it is discovered that Mr. Adler is something of a force majeur in his own field – book publishing – and is himself the author of over a dozen books. The “genre” of most of his work is grounded in “outwitting” various entities (presumably along the lines of “Sanskrit for Dummies”). His most recent offering is revealingly entitled How to Negotiate Like a Child: Unleash the Little Monster Within to Get Everything You Want (2005).
2. Related TCPA Cases in U.S. District Court
Mr. Worsham has also been the Plaintiffs’ Counsel in at least three additional TCPA suits in U.S. District Court here on behalf of Adler and other clients. They ended up in various incarnations before three D.C. Federal Judges who were required to generate a total of five Memorandum Opinions on them. In each case Mr. Worsham adopted “shotgun approach” as to allegations, naming defendants, and stating causes of action, the net result of which has also been underwhelming, only rarely scoring a “hit.”
In the first case, although he probably lived to regret it, Judge Paul Friedman held which the defendants had removed from Superior Court pursuant to 28 U.S.C. § 1441(a), that “nothing in the TCPA precluded federal courts from hearing private TCPA claims where diversity of citizenship existed.” Kopff v. World Research Group, LLC, 298 F.Supp.2d 50, 55 (D.D.C. 2003)(the case involved 26 unsolicited fax advertisements). Nevertheless, Judge Friedman dismissed five of the six defendants because, even after a second amended complaint had been allowed, the Plaintiffs failed to “allege that a[ny] particular ... defendant sent any individual fax to plaintiffs on a specified date,” a simple enough contention for even the most basic of complaints under Fed. R. Civ. P. 8(a)(“A pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief ....”). Kopff v. World Research Group, 2006 U.S. Dist. LEXIS 77018 at *12-*14. Notably, only one Defendant “survived.”
Having inadvertently opened the door to a new forum in which to bring these cases, Mr. Worsham lunged through it. He filed a second federal TCPA complaint here the next year on behalf of Mr. Adler against a Miami Beach, Florida telecommunications firm and five other Defendants. This time Judge Ellen Huvelle dismissed three of the five counts with prejudice, allowing only one count to go to trial. Adler v. Vision Lab Telecommunications, Inc., 393 F.Supp.2d 35, 42 (D.D.C. 2005).
A year later, Mr. Worsham filed a third federal law suit on behalf of his regular client, Ms. Kopff, against 16 defendants (including one in Canada). In various incarnations, this matter stuck to Judge Robert Bates like fly paper, requiring him to issue three separate opinions before he finally got it off his hands. In the first he released ten of the Defendants on their motion to dismiss for want of prosecution or lack of personal jurisdiction and dismissed three more defendants on other grounds; later, two others were dismissed without opposition, again leaving only one. Kopff v. Battaglia, 425 F.Supp.2d at 76. The final chapter of Mrs. Kopff’s litigation war against nefarious faxers was written recently by Judge Bates in the same case sub nom. Kopff v. Roth, 2007 U.S. Dist. LEXIS 43702 (June 15, 2007). Sifting through the ruins of the original Battaglia litigation he dutifully granted judgment against the sole remaining defendant at the statutory $500 each for the 120 unsolicited faxes ($60,000). Significantly, however, the Court explicitly eschewed awarding either treble damages, pre-judgment interest, or attorney’s fees. Kopff v. Roth, 2007 U.S. Dist. LEXIS 43702 at *5 n.3 & *6 (“Although the violations are willful, no additional award against Roth is warranted to serve the purpose of the TCPA.”).
These following table summarizes these federally-based TCPA results:
Related TCPA Cases in U.S. District Court - D.C.
in Fin. J.
Kopff v. World Res. Grp.||
Still open after|
4 yrs. of litigation
Adler v. Vision Lab||
Dismissed with Prejudice|
Kopff v. Battaglia/Roth||
One default j. w/ no |
With regard to these federal cases, the “scoreboard” statistics show that of 27 named defendants or specified counts, 23 were dismissed for various reasons; put another way, as specimens of pleadings they represent in excess of 85% “overkill,” wherein only four counts or defendants “survived” to face final judgment. These dismissals, of course, came only after the excused parties had been required to respond via counsel from distant locales (such as Canada, California, Colorado, Texas, Florida, and Minnesota) and, presumably, at some significant expense to them – for nothing gained. In addition, these federal judges had to devote attention to comparatively marginal issues in these TCPA cases, rather than the more complex cases (both civil and criminal) that typically characterize U.S. District courts. Finally, despite three federal lawsuits spanning more than four years, no Plaintiff has collected so much as a dollar yet.
There is also a remarkable similarity of Plaintiffs in these matters. A brief review of this litigation further shows that Mr. Worsham had the same clients in virtually all the D.C. litigation. Mr. Adler appears in every Superior Court case and Ms. Kopff appears in all the federal cases. Another Worsham client, the GHRC appears in one of the federal cases (the Battaglia/Roth case) and in the instant case, and the trifecta is completed with Ms. Morris, who appears in one of the federal cases (vs. Vision Lab) and in this one.
The following table illustrates the “joint participation” of this troika of Worsham clients:
Interlocking Plaintiffs in TCPA Cases in Superior Court and District Court
In Superior Court - In District Court
As shown, Adler and Morris were plaintiffs in 5 of the 7 cases in both courts, while Kopff was a plaintiff in all of them. Of 21 possible “placements” among these same three persons involved in seven cases in two courts, these plaintiffs, in one grouping or another, appear in 17 of them – or 81% of the time.
Thus endeth the predicate “contextual history” of this Plaintiff and related parties to the instant case. This morass of litigation has grotesquely morphed from the “quick and simple” type of pro se small claims matter that the authors of the TCPA originally envisioned. The average number of faxes per law suit in all these cases was 13 (about one fax per month), which is hardly an overwhelming number or an insurmountable inconvenience. From this Court’s perspective, the “trade-off” under the TCPA is hardly an efficient one because, in order to protect people like Mr. Adler and Ms. Kopff from the shattering experience of receiving an average of one fax a month. In order to save them the overweening expense of having to endure such intrusions, untold thousands of dollars and hundreds of person-hours are expended by courts in parsing out these claims, dealing with a scattergun approach to naming and dismissing defendants, and coping with the massive overreaching discovery devices. These efforts consume time and resources that should be devoted to the more serious litigation problems in the community at large. These cases are generally distractive flotsam in federal courts and, by comparison, congestive spoors in the Small Claims courts. TCPA cases filed in any court should be reserved for serious and repeated violations (e.g., the Covington & Burling case, ante (over 1,600 faxes in a single week).
Finally, the instant case has proceeded in a troubling manner, to say the least. This Court is frank to say that it is skeptical as to the probabilities that three plaintiffs in 18 different suits in two different courts filed by the same lawyer have come about by happenstance. These Plaintiffs are either extremely unlucky with their fax machines or have been caught up in some kind of parallel matrix that churns out opportunistic litigation with each happenstance incoming sheet of fax paper. This Court is of the view that this case has been “overlawyered,” to put it charitably. The Court, however, does not go so far as to suggest champerty, maintenance, or barratry and, because no Defendant herein has raised such an issue, it will proceed to a ruling on the merits. Suffice it to say that this “commonality of interest” has now been set forth on the public record, for potential future reference.
C. Subject Matter Jurisdiction
Among many others, the Defendants have filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction. At least four Associate Judges of the Superior Court have had occasion to address the issue of whether the Court has subject matter jurisdiction to hear cases under the TCPA. Three of the four have held that it does. See Covington & Burling v. International Marketing & Research, Inc., 131 D.W.L.R. 1553 (Aug. 12, 2003)(Blackburne-Rigsby, J.); City Lights School, Inc. v. T-Mobile USA, Inc., No. 03-CA-2780 (Nov. 18 2003)(Duncan-Peters, J.); and Djana Pearson Morris v. Fax.com, Inc., No. 03-CA-1109 (Dec. 19, 2003)(Kravitz, J.); but see Portugese-American Leadership Council of the U.S., Inc. v. Investors’ Alert, Inc., No. 01-CA-3479 (July 22, 2003)(Long, J.)(no jurisdiction found). It would be a call to high adventure to ask the undersigned to disagree with any of these judicial luminaries, all of whom have amply demonstrated their superiority over him. Still, a ruling is necessary here and, although it runs counter to the undersigned’s personal instincts and logic (which are similar to those of Judge Long on this issue), this Court qua court feels that it must rule on the side of the majority here, holding that it does, in fact, have jurisdiction to decide these issues under the TCPA. The Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction must therefore be denied.
D. First Fax Liability
The TCPA seems to set forth a “strict liability” policy for sending an unsolicited fax – even by mistake. In a modern world rife with land lines, cell phones, digital phones, satellite phones, Blackberries, iPhones, and fax transmittal machines of all types, it hardly needs documentation to prove that it is possible to mis-dial, obtain the wrong number to begin with, experience a “crossed wire,” or otherwise unintentionally ring a number other than the one intended. Logically, it is just as possible to send a fax solicitation by such an error as it would be to make an oral call of the same nature. The rule for oral calls is similar that for dogs – the “first bite” doesn’t count. The TCPA section covering oral calls provides a private cause of action to any “person who has received more than one telephone call within any 12 month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection ....” 47 U.S.C. § 227(c)(emphasis added). In contrast, no such language appears in the subsection governing unsolicited faxes. Rather, that subsection merely states that such a private cause obtains to any “person or entity ... [that has experienced] a violation of this subsection or the regulations ... to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater....” Id. § 227(b)(3)(A) & (B)(emphasis added). The clear import of the “fax section” is to impose a minimum $500 penalty for any violation, not just one or more sequential violations. Thus, under the hoary principle of expressio unius est exclusio alterius (“the mention of one thing implies the exclusion of another”) – particularly within the same statute -- the Court is left with no legal alternative but to find liability for each and every fax admittedly sent to the Plaintiff herein.
E. Computation of Damages
Not only is it undisputed, but the parties themselves have actually agreed to the maximum damages that Plaintiffs may recover in this matter via their Consent Order of January 6, 2003, stipulating, inter alia, that in violation of the TCPA and related regulations, the two Defendants acted as follows:
6. Defendants Fax.com, Inc. and Imak Wireless Networks, Inc. stipulate to the following facts, specifically that:
a. Defendants [sic] [presumably Imak] caused to be sent one unsolicited advertisement to the telephone facsimile machine of Plaintiff William Adler on April 26, 2001, and Defendant Fax.com sent an additional 52 unsolicited advertisements to William Adler on other dates;
b. Defendants [sic] caused to be sent one unsolicited advertisements to the telephone facsimile machine of Plaintiff GHRC on April 25, 2001, and Defendant Fax.com sent an additional 3 unsolicited advertisements to the GHRC on other dates ....
The capstone of this stipulation provides that “Plaintiffs William Adler and GHRC are each limited to a maximum possible recovery in this suit of $2,500 each.”
Ironically, absent this stipulation, the “pure math” of the situation would have allowed Adler a minimum recovery of $500 for one unsolicited fax from Imak and $26,000 for 52 such faxes from Fax.com, for a total possible minimum recovery of $26,500 against that entity. In the same manner, GHRC could have recovered at least $500 for one fax from Imak and another $1,500 for three faxes from Fax.com, for a total of $2,000. Adler, however, cannot recover more than $5,000 against any named defendant in a Small Claims Court case. Under this approach, Adler’s recovery against Fax.com for the $2,000, within the jurisdiction of the Small Claims Branch, is thus preserved. While the Court welcomes the reasonable agreements and stipulations of the parties, it turns out that, technically speaking, it was not necessary for Adler to “halve” his claim against the single Defendant Imak. This Court has ruled that closely-allied claims against similar defendants arising out of essentially the same common nucleus of operative fact may each be fully recompensed at the maximum statutory recovery of $5,000. See Wanrin v. J.C., Inc., 135 D.W.L.R. 925 (Apr. 12, 2007)(group of seven nursing students filing the same complaint against an unaccredited nursing school were each allowed to recover the full statutory maximum for this Branch of the Court).
Consequently, the maximum recovery for Adler against Imak is $500 and against Fax.com is $2,500, for a total of $3,000. In turn, the maximum recovery for GHRC against Imak is $500 and against Fax.com is $1,500, for a total of $2,000. Both are also entitled to court costs and interest at the judgment rate until paid in full.
Finally, the Court takes this opportunity to inform the Plaintiffs and their Counsel that it would be completely unavailing to file any request for treble damages, attorney’s fees, pre-judgment interest, or any further relief. This Court is of the same view as Judge Bates in Kopff v. Roth, ante, that “Although the violations are willful, no additional award against Roth is warranted to serve the purpose of the TCPA.” To paraphrase Ovid, “Ad praesens ova cras pullis (o faxi) sunt meliora.”
Based on the preceding Findings of Fact and Conclusions of Law, it is by the Court this ______ day of October 2007,
ORDERED, ADJUDGED AND DECREED that Judgement is awarded in favor of:
1. The Plaintiff William Adler against
a. The Defendant Imak Wireless, Inc., in the total amount of $500; and
b. The Defendant Fax.com, Inc. in the stipulated amount of $2,500;
c. Plus allowable court costs and judgment interest at the legal rate until paid in full; and
2. The Plaintiff Guatemala Human Rights Commission against
a. The Defendant Imak Wireless, Inc., in the total amount of $500;
b. Defendant Fax.com, Inc., in the total amount of $1,500;
c. Plus allowable court costs and judgment inerest at the legal rate until paid in full.
AND THIS JUDGMENT IS FINAL.
RONALD A. GOODBREAD
(Signed in Chambers)
Michael C. Worsham, Esq.
Edwin H. Staples, II, Esq.
COUNCIL, BARDEL, KOSMERL & NOLAN, P.A.
1The legislative intent behind this law was to curb the proliferation of unsolicited fax advertising that started in the 1990's, on the grounds that this practice (1) shifts some of the costs of advertising from the sender to the recipient by impermissibly using up the latter’s paper, ink and toner, plus wear and tear on the receiving machine itself and (2) needlessly ties up the recipient’s fax machine, making it sporadically unavailable for legitimate business and personal services by pre-empting other incoming and outgoing faxes. See R. A. Ponte v. Investors’ Alert, Inc., 815 A.2d 816, 819 (Md. App. 2003) (citing H.R. Rep. No. 102-317 at 10 (1991) and Missouri v. American Blast Fax, Inc., 323 F.3d 649, 652 & 655 (8th Cir. 2003).
2 Heedless of the influx of “one-fax” cases that continue to burden already overcrowded local court dockets, Congress originally limited these cases to state-level courts but made no effort whatsoever to provide additional resources to courts of limited jurisdiction to handle the increased case load that TCPA cases have generated. This legislative remedy has had the effect of substituting one abuse (randomly sent faxes to privately-owned machines) for another (nuisance cases filed in state courts that are actually little more than “discovery devices” designed to seek out additional clients for future TCPA claims). As pointed out below, this case is an excellent example – a claim involving two faxes that has now generated over 600 pages of court submissions. Ironically, one of the Act’s senatorial sponsors stated that “it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court ....” Quoted in Int’l Science & Tech. Inst., Inc. v. Inacom Comm., Inc., 106 F.3d 1146,1152 (4th Cir. 1997)(Paul Niemeyer, J.)(quoting 137 Cong. Rec. S16205-06 (daily ed. Nov. 7, 1991)(Statement of Sen. Earnest Hollings (D-SC)). Judge Niemeyer also went on to point out that, with an estimated 6.57 billion telemarketing transmissions ongoing in the United States even at that time, the Act did no favors for state courts. Id. at 1157.
The statute defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person [via telephone facsimile] without that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(4). Note that the statute does not ban all unsolicited faxes, only fax-advertisements in the aforementioned categories. Excluded (and therefore allowed) are faxes containing political promotions, charitable solicitations, jokes, and job opportunities. As one U.S. District Court Judge pointed out, “Therefore recipients can still bear the costs of printing others’ messages, even if they strongly opposed the messages’ content.” Missouri v. American Blast Fax, Inc., 196 F.Supp.2d 920, 931-32 (E.D. Mo. 2002)(Limbaugh, Sr. J.)(citing Lutz Appellate Servs, Inc. v. Curry, 859 F.Supp. 180 (E.D. Pa. 1994)(as to job opportunities)). Finally, a broad exception to the rule also allows for even unsolicited advertisements to be sent to contacts with whom the sender already has “an established business relationship.” Id. at 57 (citing a 1992 F.C.C. ruling under the TCPA to that effect); see also Kaufman v. ACS Systems, Inc., 2 Cal. Rptr. 3d 296, 317 (Cal. App. 2003)(same).
4The statute also prohibits the sending of faxes without “proper identification,” i.e., a return phone number and name of the entity on behalf of which the fax had been sent. 47 U.S.C. § 227(d). That is not the cause of action here and that aspect of the TCPA will not be addressed.
5See, e.g., G. W. Bush, State of the Union Address (Jan. 28, 2003)(“The ... government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”).
6This admission was forthcoming only after 521 days into the litigation.
7 Consent Order of Jan. 6, 2003, ¶¶ 6(a) & (b)(emphasis added). It goes on to assert that one Defendant had sent 52 such faxes to another Plaintiff.
8Although the D.C. Superior Court, like many other institutions, continues to pursue the illusory dream of becoming a “paperless” concern (which is somewhat like sailing on a waterless sea), it nevertheless still lurches forward on a turgid stream of paper. Daily, boxes of paper flow in and out of its chambers and offices for use on copying machines and word processing printers. A quick check shows that a single ream (500 sheets) of recycled 8 ½” x 11" copying paper of 20 lb.-thickness sells retail for as low as $30.00 for a box of 10 reams or $3.00 per ream. This comes to .16 (sixteen hundreds) of a cent per sheet (1.6 mils), meaning that one would have to use 7 sheets in order to expend a single penny’s worth of paper. Fifty-two such sheets would cost 8.3 cents, well less than a dime (not counting the corresponding cost of any ink or toner involved in the printing of a page and the cost of the incoming call on the recipient’s phone bill). In fairness, though, it must be noted that expert witnesses in the American Blast Fax case, ante, estimated that, depending on the type of fax machine involved, it might cost a recipient anywhere from between 2-3 cents and 6-17 cents (retail) to receive a one-page fax. The U.S. District Court Judge in that case, however, repeatedly emphasized that the plaintiffs had presented “no evidence as to the actual cost to a particular business over a month or a year” but, rather, relied “only [on] many long hypothetical examples of how much it could cost a business.” See 196 F.Supp.2d at 923-24, 926 (italics in original)(“The legislative history [of the TCPA] is full of studies and statistics related to unsolicited phone calls, however, the reports are glaringly devoid of any statistical data in reference to unsolicited fax advertisements.”).
9 A total of 593 days elapsed between the filing of this suit and the date on which the Court took it under advisement.
10On this occasion Edwin H. Staples, II of the firm of Council, Baradel, Kosmerl & Nolan, P.A., entered an appearance for the Defendants.
11On this occasion both Counsel signed the consent form to have all aspects of the case decided by a Magistrate Judge.
12See copy of subpoena dated January 8, 2002.
13Somewhere along the line something called the “Guatemala Human Rights Commission” (GHRC) was added without objection as a Plaintiff. See Consent Order of Jan. 6, 2003. The TCPA also provides for a “private cause of action” by “a[ny] person or entity” wronged thereunder.” See 47 U.S.C. § 227(b)(3).
14In the meantime, all outstanding discovery motions and disputes have been settled between the parties, as embodied in the Consent Order of Jan. 6, 2003.
15This case is also a deplorable example of the disproportionate disparity between the amount of paper generated by litigation in comparison with the amount of paper generated by a few unwanted faxes. In this case, which involved only three faxes, the parties filed a total of 213 pages comprising a 2-inch-thick court jacket. Demanding that the case be heard before an Associate Judge, the parties took up four trial days, introduced 23 Plaintiff’s exhibits and four Defendant’s exhibits (all totaling 86 pages). Mr. Worsham was particularly aggressive in his filings on behalf of Mr. Adler, making eight post-trial submissions totaling 127 more pages (about 45 of which were printed on both sides). Judge Duncan-Peters produced an extensively detailed 58-page Memorandum Opinion ruling in favor of the Plaintiff – but which, significantly, awarded damages in the lowest amount that the law allows. All tolled, the three faxes complained of produced a total of 300 pages in the court jacket – a tenfold increase in the order of magnitude.
16 But counting this case in terms of total filings (making 11), it means that Worsham filed a TCPA case on Adler’s behalf in the Small Claims Branch alone on average of once every 33 days during the year 2001 (a figure that does not take into consideration in additional TCPA filings in this Court’s general Civil Division or his federal filings (a total of seven more cases), discussed for fulling below.
17 Indeed, Mr. Worsham himself was a principal in one of the leading local TCPA cases – albeit not one involving faxes. Worsham v. Nationwide Ins. Co., 722 A.2d 868 (Md. App. 2001) involved a claim stemming from a second oral telephone call solicitation which came after Mr. Worsham had asked to be placed on the insurance company’s “do not call” list. Not interested in saving 15% on his insurance, and true to form, Mr. Worsham hastened to the Circuit Court of Harford County, MD, and filed a TCPA suit in which he demanded both $500 compensatory damages for the first fax and treble damages ($1,500) for the second intrusive fax. Although a plain reading of § 227(c) makes it clear that there is no “first call” liability for oral solicitations (as compared to unsolicited faxes), Worsham pressed to expand the law to include a “per call” rather than a “per violation” basis for damages. See discussion, post, in Section C herein. The Maryland Court of Special Appeals disagreed and limited his recovery to the $500 required penalty for the second call only. Id. at 876-77. The distinction between the Worsham case involving oral calls and others involving faxes was later addressed by that Court in R. A. Ponte v. Investors’ Alert, Inc., 815 A.2d at 825-26.). Once again, however, the inverse relationship between a single fax and the eruption of litigation produced by it is astonishing.
18. Staples, Counsel for the Defendant in the instant case, also appeared for one of the Defendants in that case, along with three other lawyers for the other Defendants.
19 The lead Defendant, Mr. Katz, it should be noted, is the president of Fax.com, Inc. See Covington & Burling v. Int’l Marketing and Research, Inc., 131 D.W.L.R. 1553 (Aug. 12, 2003)(Blackburne-Rigsby, J.).
20 In addition to the original and amended complaints, in April 2004, the Plaintiff filed an Emergency Motion for Injunctive Relief (which was denied in June 2004).
21 A typical deposition of one of the Defendants consisted of 138 single-spaced pages. (See Dep. of Charles Martin of Jan. 13, 2004, included as Exh. A of his Motion for Summary Judgment filed on Sept. 27, 2004).
22 See the subpoena duces tecum to Defendant Robert Battaglia issued on Feb. 13, 2004.
23 See docket entry of that date. Thus, the “adversarial” duration of this case lasted almost as long or longer than the entire Administrations of any of at least five Presidents, including Zachary Taylor (492 days); Millard Fillmore (969 days); Warren G. Harding (881 days); John F. Kennedy (1,036 days); and Gerald R. Ford (895 days). Joseph Nathan Kane, et al., FACTS ABOUT THE PRESIDENTS: A COMPILATION OF HISTORICAL DATA (7th ed.) (NY: The H.W. Wilson Co., 2001) for these Chief Executives (only two of whom – Fillmore and Ford – were lawyers).
24 Messrs. Smiley and Payne were represented by Mr. Staples, presumably not on a pro bono publico basis.
25 The Prime Rule of Civil Procedure requires that litigation be conduced to ensure “the just, speedy, and inexpensive resolution of every case.”
26This well-known rule, designed to ensure only “good faith pleadings,” expressly adjures that “[b]y presenting to the court ... a pleadings, written motion, or other paper, an attorney ... is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, [that] ... it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation ....” Super.Ct.R.Civ. P. 11(b)(1). The Rules also provides for various sanctions for its violation.
27His is actually William Adler, Jr. (b. 1957). He holds a B.A. degree from Wesleyan University an M.A. from Columbia University’s School of International Affairs, according to his publicity on the Internet and his answers to discovery in this matter. With his wife, he operates “Adler & Robin Books, Inc.,” a book publishing firm on Connecticut Ave. NW, here in the District. “Who’s Who at Adler & Robin Books, Inc.”
28 Some of his titles include “Outwitting Squirrels.” Other “suspect classes” in his “outwitting” series include fish, critters, deer, toddlers and neighbors. Curiously, though, for all his litigation experience, he has yet to write “Outwitting Telefaxers.”
29And, with regard to his seemingly ever-present concern over his fax machine one finds additional insight into this line of litigation in his most recent offering, Boys and Their Toys: Understanding Men by Understanding Their Relationship with Their Gadgets (2007).
30 Judges Paul L. Friedman, Ellen S. Huvelle, and John D. Bates.
31 Cf. Murphy v. Lanier, 204 F.3d 911 (9th Cir. 2000)(TCPA filing in federal court held properly dismissed absent an independent federal jurisdictional basis). Interestingly, in the World Research Group case, Mr. Worsham opposed the defendants’ removal to federal court, unsuccessfully arguing on behalf of the plaintiffs that the TCPA spoke only in terms of state court actions. 298 F.Supp.2d at 55. He then attempted to amend the complaint in order to defeat federal “diversity jurisdiction” but, ironically, one of the reasons that he failed to carry the day on this tactic was because he had sent a copy of his amended complaint via fax [!], rather than delivering it appropriately according to Fed.R.Civ.P. 5(b)(2)(D). Id. at 58. It might be noted that Judge Friedman’s ruling is not at odds with the seminal ruling of Judge Niemeyer in the classic TCPA International Science case in 1997. That ruling went off expressly on the holding that the “jurisdiction of the United States district courts over private TCPA actions may not be premised on the general federal question jurisdiction conferred by 28 U.S.C. § 1331.” 106 F.3d at 1158 (emphasis added). No intimation was made that an Article III court could not decide a TCPA on “diversity jurisdiction.”
32After literally “making a federal case of it,” for good measure Mr. Worsham included additional pendent counts sounding in negligence, invasion of privacy, and violation of the D.C. Consumer Protection Act. The Court dismissed the counts for improperly identified faxes, the D.C. CPA claim, and the negligence claim, but allowed Adler & Co. to proceed on the unsolicited faxes and the invasion of privacy claims. Notably, the D.C. CPA claim was dismissed on the grounds that the local Consumer Protection Act applies only to businesses and consumers both of which are located within the District of Columbia, Adler v. Vision Lab Telecom., Inc., 393 F.Supp.2 at 42, although the TCPA itself is applicable to both intrastate and interstate fax transmission. See Texas v. American Blast Fax, Inc., 121 F.Supp.2d 1085, 1088 (2000) and Hooters of Augusta, Ga. v. Nicholson, 537 S.E.2d 468, 471-72 (Ga. App. 2000). See generally, Sasse Knoth, Trying to Make a Federal Case Out of It: Private Actions Under the Telephone Consumer Protection Act of 1991, 49 Fed. Law 22 (June 2002) and Note, Federal Courts Have Diversity Jurisdiction Over Private TCPA Claims, 23 Computer Internet Law 28 (Apr. 2006).
33Notably, one of Kopff’s co-plaintiffs in 05-798 was the mysterious Guatemala Human Rights Commission.
34Thomas Roth, it may be noted, was the Vice-President of Fax.com as of 2004. See nn. 35 & 40, post.
35 The foregoing record suggests strongly that, despite these Plaintiffs’ public bewailing of “unwanted faxes,” they actually prefer litigation based on them over taking even the most rudimentary steps to avoid receiving them in the first place. What is at issue here is not so much their unfairly being forced to sustain part of the cost of others’ advertising contra the TCPA (see nn.1-3, ante) as it is their using the Act as a mechanism for retribution and potential recovery from “litigation futures.” True enough, taking any such prophylactic step would require them to incur an expense that they otherwise would not have sustained. But in one form or another, Trial Judges spend much of their careers explaining to litigants that the courts are not oracles that can bring perfect justice and total restitution. People who find themselves in such situations must take some responsibility and initiative to deal with circumstances that are often unexpectedly thrust upon them, rather than immediately leaping to file multiple lawsuits – to say nothing of then taking repeated steps to make such cases as unpleasant, complex, and troublesome as possible. For example, available in the current technological market are various attachable devices, fax machines, and printers that have “built-in” components that will automatically block unwanted faxes. As just one illustration, the Hewlett-Packard Officejet JS780 Printer/Copier/Scanner Fax machine features a “junk fax” blocker at no additional cost. It sells for a comparatively modest $135. This sum is far less than Mr. Adler’s filing fees alone in the 19 TCPA cases discussed herein. Rather than take this simple step, if he is so exorcized over this overstated pestilence, he has chosen instead to visit his own bête noire upon his perceived tormentors – and upon everyone whom he has encountered along the way, including over half a dozen judicial officers. This is needless litigiousness at its worst.
36The principal defendant in the instant case, Fax.com, is located in Miami Beach, Florida. Presumably, the Plaintiff herein would have to travel to Dade County, domesticate this judgment in a court of competent jurisdiction there, and then pursue the usual collections remedies in that venue.
37Harkening back to the high hopes that one of the statute’s original sponsors had for it in 1991, he ironically peradventured at that time that “small claims court or a similar court would allow the consumer to appear before the court without an attorney .... However it would defeat the purposes of the bill if the attorney’s costs to consumers of bringing an action were greater than the potential damages.” Quoted in Int’l Science & Tech. Inst., Inc. v. Inacom Comm., Inc., 106 F.3d at1153 (emphasis added); see n.2, ante.
38 The Court makes these observations based entirely on what it sees on the record herein and from sources from which it may properly take legitimate “judicial notice.” It must be noted that Mr. Worsham presents himself with excellent credentials, including membership in the Bars of DC and MD and advanced degrees in science and engineering – a rarity among lawyers. He has, at all appearances before this Court, comported himself with deference and respect to the Court and its process. His written submissions have also been highly professional, extremely literate, and well-presented (and the same, it should be added, is to be said of his adversary, Mr. Staples). Some, though, might view all this as a misapplication of talent to so unappreciable a calling – one that the statute’s principal author had designed for individual plaintiffs appearing in Small Claims Court without lawyers.
39In a simultaneously broad gesture, the Defendants also contend that the TCPA is unconstitutional. This Court need not address that issue inasmuch as several courts have already found that the statute passes constitutional muster under the seminal “commercial speech” tests set forth in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980). See, e.g., Destination Ventures v. FCC, 46 F.3d 54 (9th Cir. 1995)(Act is a reasonable means of preventing shifting of advertising costs to consumers and does not violate First Amend.); Int’l Science & Tech. Inst. v. Inacom Communs., 106 F.2d 1146 (4th Cir. 2004)(Act upheld as not violative of either the equal protection or due process clauses or of the Tenth Amend.); Missouri v. American Blast Fax, Inc., 323 F.3d at 652 & 655 (Act does not violate commercial speech aspect of First Amend. and passes “strict scrutiny” standard); and Accounting Outsourcing, LLC v. Verizon Wireless Pers. Communs., LP, 329 F.Supp.2d 789 (M.D. La. 2004)(Act passes First Amend. muster because it narrowly regulates commercial speech in fulfilling governmental interest in protecting consumers). Similarly, in our own Court, Judge Anna Blackburn-Rigsby (now of the D.C. Court of Appeals) and Judge Stephanie Duncan-Peters (currently Deputy Presiding Judge of the Civil Division), have also upheld the constitutionality of the TCPA. See, respectively, Covington & Burling v. Int’l Marketing & Research, Inc., 131 D.W.L.R. at 1536 (“The Court fails to find any of these terms to be impermissibly vague.”) and Adler v. Advanced Wireless Communications, SC-1294401, ante, at 15-18 (“[T]he Court agrees with the decisions [cited above] that the TCPA’s ban on unsolicited facsimile advertisements is constitutional.”). These findings by at least four federal circuit courts of appeals and two Associate Judges of this Court do not oblige any input from the undersigned. Accordingly, the Court will deny the Defendant’s motion on these grounds. See the classic case of Ashwander v. TVA, 297 U.S. 288, 324 (1936)(courts will not make rulings on constitutional issues unless it is vital to the case).
40 These were Judges Cheryl Long, Stephanie Duncan-Peters, Anna Blackburne-Rigsby, and Neal Kravitz.
41 Not only that, but this Court’s research of 368 reported TCPA cases in state and federal courts has revealed that Judge Blackburne-Rigsby’s award of $2.3 million dollars is the largest judgment ever awarded under the statute and, insofar as this Court’s research has been able to find, the only local case in which treble (punitive) damages were awarded. Alas, however, according to one source, the Plaintiff has yet to collect anything on the judgment from this elusive and truculent judgment debtor, despite its failing to post a required $2.75 million appeal bond. See Ryan Singel, “Fax.com Still Dodging Legal Slaps,” on the Internet cite Wired.
42 Both Counsel of Record in the instant case represented the respective parties in this case as well.
43The central issue in these cases was whether, pursuant to Section 227(b)(3) of the TCPA, a State was affirmatively required to “opt in” to place itself under the coverage of the statute, or whether it could “opt out” simply by inaction. (Under the Act, the District of Columbia is classified as a “State” for these purposes. See 47 U.S.C. § 153(40)). In 2005, Judge Huvelle, of the U.S. District Court here, held that this provision of the TCPA does not require that a State “opt in.” Rather, she held, the TCPA reflects a public policy that “‘simply acknowledges the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules to accommodate TCPA claims’ or that a private right of actions exists as long as a state has not ‘opted out’ of the federal scheme ....” Judge Huvelle also pointed out that the competing “opt-in” view, as set forth by Judge Long of our Court in the Portugese-American case, supra, ran counter to the stated policy established by the courts in at least nine states and that no federal court had adopted that position. Adler v. Vision Lab Telecommunications, Inc., 393 F.Supp.2d at 37-38 (quoting Schulman v. Chase Manhattan Bank, 710 N.Y.S.2d 368, 372 (N.Y. App. Div. 2000)); see also Adler v. Advanced Wireless Communications, SC-1294401, ante, at 15-18 (“[T]he Court concludes that, despite the District of Columbia legislature’s silence on the matter, the Plaintiff’s right of action in the ... Superior Court has fully vested, and the Court may properly render judgment on the Plaintiff’s claim under the TCPA.”) and Mulhern v. MacLeod, 808 N.E.2d 778 (Mass. 2004)(State Superior Court held competent to hear TCPA claim on the grounds that the statute did not require the State to pass enabling legislation before private claims could be brought in state courts); and Reynolds v. Diamond Food & Poultry, Inc., 2002 Mo. LEXIS 86 *9 (July 23, 2002)(State Supreme Court “holds that the TCPA does not condition the right to bring a private cause of action under it on a state’s adoption of specific legislation permitting such suits”); but see R.A. Ponte Architects v. Investors’ Alert, Inc., 857 A.2d 1 (Md. App. 2004)(no jurisdiction because Md. Legislature had not affirmatively acted to allow such suits in that State’s courts); also in accordance with Judge Long’s “opt-in” rationale, see Hooters of Augusta, Inc. v. Nicholson, 537 S.E.2d at 368 (Andrews, J. dissenting). In a similarly expansive vein, see ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 50 P.3d 844, 850-51 (Ariz. App. 2002)(class actions also not prohibited under the TCPA). See generally, S. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: Must States Opt-In? Can States Opt-Out? 33 Conn. L. Rev. 407 (Winter 2001).
44It was Judge Long, in the Portugese-American case who forewarned of “a potential for this court to be overwhelmed with TCPA actions, but stranded without resources to handle those actions.” Id. at 10; cf. n.1, ante.
45 State case law on this subsection is clear. See, e.g., Reichenbach v. Chung Holdings, LLC, 823 N.E.2d 29, 84 (Ohio App. 2004)(discussing the parameters of § 227(c) as to unsolicited oral calls)(originally a Municipal Court case) and Charvat v. ATW Inc., 712 N.E.2d 805, 806-07 (Ohio App. 1998)(holding that the intent of this statute is not to permit liability to attach with the first oral telephone call)(originally a Small Claims Court case).
46 One theoretical justification for such a distinction is that when an unwanted oral phone call is answered the recipient has the option of simply hanging up (thus interdicting any further expense of time or billing), whereas a fax comes through even if one answers and then hangs up (thus requiring the recipient to bear such costs anyway). Another consideration is that, apparently, many of these “blast faxes” are sent late at night in order to maximize the possibility of an open line. Such a practice needlessly disturbs sleepers, from infants to the elderly. See, e.g., Jonathan Krim, “Critics Say Bill Could Trigger Flood of Faxes,” The Washington Post (Sept. 22, 2004), Financial Section, p. 1 (“Bill Adler, a Washington author whose elderly parents are frequently awakened by faxes coming in the middle of the night, said that he worries many fax marketers will stretch the definition of existing business relationship and won’t honor requests to opt out of future faxes.”).
47The jurisdictional statute for this Branch of the Court limits recovery on an original claim against any defendant to $5,000. D.C. Code § 11-1321. It is a measure of the seriousness with which Adler and his Counsel take these cases that they were so easily willing to “bargain away” $21,000 – more than 87% of their documented TCPA claim – not by mere compromise and settlement, but by having filed the case under the limitation of the Small Claims Branch in the first place. They could just as easily have preserved the entirety of the claim by filing an action in the general Civil Division.
48 It must be pointed out, however, that this ruling did not issue until nearly four years after the instant case had been submitted for judgment and that Plaintiff’s Counsel could not have known of such a practice at that time. That ruling is currently under review by an Associate Judge of the Superior Court. Whatever the ultimate outcome of the review in that case, the stipulation in this one remains.
49Notably, this is exactly the same result that the Plaintiffs could have obtained had his lawyer filed a simple one-page Statement of Claim in a Small Claims jacket. Even more striking, however, at the end of the day, despite the avalanche of paper, time, and effort expended by everyone in this case, including the Court, it turns out that the Plaintiffs still fall $500 short of even recovering the statutory maximum for a simple Small Claims case.
50Notably, in her scholarly treatment of Adler’s TCPA claims in the Advanced Wireless Communications case, ante, Judge Duncan-Peters also declined to impose treble damages. Id. at 24 (“an increase beyond $500 per violation is not appropriate”). In fact, in none of his known 16 cases in the District of Columbia courts has a judge ever awarded Adler anything beyond the minimum that the TCPA requires.
51 And, to add the perspective of one of the great original thinkers of our own time, “You could look it up.” (Berra, Y.).
52The parties should be informed that no Motion to Reconsider directed to the undersigned will be practicable because he has retired from active service on the Bench as of March 22, 2007, and will cease all remaining judicial duties upon swearing-in of a successor, this being the last Memorandum Order of his judicial career. It is cases and claims like this that he will not miss. The parties are therefore advised that each has ten (10) days from the formal docketing of this judgment order within which to seek review of this judgment before an Associate Judge the Superior Court (which must be accomplished before any formal appeal is taken to the D.C. Court of Appeals) by filing a Petition for Review in the Clerk’s Office of the Small Claims Branch within that time. See D.C. Code § 11-1732(k) & (j); Super. Ct. R. Civ. P. 117(c), all as more fully in American Service Center v. Helton, 131 D.W.L.R. 677& 689, 687-88 (April 8-9, 2003)(Goodbread, M.J.), which provides a more formal statement of review and appeal rights.