At first, Attorney Gregory P. Turza probably thought it was a great business decision when he hired a company to create a promotional newsletter called the “Daily Plan-It” and distribute it to a targeted list, which included numbers from the Illinois CPA Society and his business contacts.
When one of his “Daily Plan It” fax recipients filed a class action lawsuit against the attorney, his marketing strategy turned into a disaster. On behalf of the class of recipients of the faxes, the Plaintiff sought $4,215,000 in statutory damages – $500 for each fax multiplied by the alleged 8,430 times the Daily Plan-It was faxed – against Attorney Turza, who is located in Skokie, Illinois.
On August 3, 2010, the Court granted summary judgment against Attorney Turza. One highlight of its opinion is its response to Attorney Turza’s argument that the class plaintiffs had “many opportunities and methods to contact him and request to be removed from his contact list” yet “failed to mitigate their damages.” Attorney Turza had asked the court to thus bar class members from recovering damages for more than two faxes. The court’s response?
Nonsense. Mitigation of damages is not a defense under the TCPA, and each instance of a violation is independently actionable.
(citations ommited.)
The court concluded that Attorney Turva’s forty-one “Daily Plan-It” faxes were all “advertisements” as defined under the Telephone Consumer Practices Act (TCPA), and that Attorney Turva was liable for all of the faxes received by the target list. However, because there was an issue as to the exact number of transmitted faxes (Plaintiffs said 11,945 total were sent, and Defendant argued a lower figure), the court declined to grant summary judgment on the amount of damages, which will thus have to be decided at trial or, more likely, during pre-trial settlement.
To see the court’s opinion, styled Holtzman v. Turza, on Justia.com, click here.
Attorney Conlin:
I understand that statutory relief can be sought under that respective statute (i.e., the TCPA), however, I beleive that those that seek such damages should have the burden of proving that they did attempt to have themselves removed from such a marketing list had such an option been conspicuously provided to them.
I realize that there is always one guy who abuses an available resource enough to make life more demanding for others. However, this is the case of human insanity where one party did in fact send excessive materials which were deemed to be unsolicited "advertisements" instead of directly or impliedly solicited faxes.
Cases like this are quite easy to prove, but I'm sure that there are others that wouldn't be as easy to prove…
Good one though!
Good luck with the practice 🙂
Cheers!
PL