A Tale of Junk Faxes, Wily Lawyers, and Super Bowl Seasickness

faxThere’s very little common sense to be found in this story.

Dubious Fact No. 1:  When the folks who ran Firefly American Bistro behind Boston’s Copley Place received an unsolicited fax inviting them to a 2007 Super Bowl party on a cruise ship, they did not do what the rest of us would do: deposit it immediately in the circular file, to be picked up with the evening trash.

No, the restaurant’s parent company—quaintly known as Hazel’s Cup and Saucer—called its lawyers, who filed what they hoped would be a class action lawsuit.

Dubious Fact No. 2: The lawyers then engaged in what the Massachusetts Appeals Court described as “difficult and costly procedures” to engage an expert witness and hunt down the sender of the fax: a Florida travel agency using a New York fax broadcasting agency known as “Business to Business Solutions.”

Dubious Fact No. 3: Under the federal Telephone Consumer Protection Act, the 1,640 recipients of the 2,000-plus junk faxes, if certified as a class by the court, would potentially be entitled to anywhere from $1.1 million to more than $3.4 million.  Of which the lawyers would, of course, get their cut.  (Maybe those lawyers knew what they were doing, after all.)

Seized by a moment of startling clarity and good sense, Superior Court Judge Frances McIntyre thought an award of that size would be preposterous, given that “the nature of the harm suffered by individual claimants—the cost of paper, ink, and toner—amounts to pennies.” To allow such claims to proceed as class actions, she said, would result in the TCPA being used by lawyers “as a device for the solicitation of litigation.”

So Judge McIntyre threw the 1,640 junk-fax recipients out of court, and sent them down the street to seek redress in Small Claims Court, where they could each receive automatic damages of $500.

Today, the Massachusetts Appeals Court (here comes Dubious Fact No. 4) reversed Judge McIntyre’s ruling, saying that anyone hiring a lawyer to bring a TCPA claim in small claims court would end up paying more for the lawyer than she or he would ever conceivably gain in a damages award.  (That’s sensible enough – until you ask yourself, “Who hires a lawyer to bring a claim in Small Claims Court?”)

The Appeals Court said the class action can now proceed in Superior Court.  That ruling seems plainly correct under the law–proving that, in the immortal words of Mr. Bumble, “The law is a ass.”

The ruling, while sound, leaves unanswered three pressing questions that confound this commentator.  The first:  “Who will benefit from this lawsuit other than the lawyers?”  The second: “Who sends faxes anymore?”  The third: “Who’d want to go a Super Bowl party on a cruise ship, anyway?”

Have at it in the comments: Can you explain to me what I’m missing?

–Robert A. Bertsche

Robert A. Bertsche

2 thoughts on “A Tale of Junk Faxes, Wily Lawyers, and Super Bowl Seasickness”

  1. Can’t disagree with the substance of your well-written legal analysis. What goes around comes around, so Firefly American Bistro better not leave flyers/menus in the doors & vestibules of their Back Bay neighbors, lest they be exposed to liability for their tortious acts. Like the judge who sued a dry cleaner who didn’t press his pants by the promised date, this is the kind of story that appears on local tv newscasts preceded by the words: “Finally, tonight…” on nights that the station doesn’t have footage of a moose in a swimming pool or a water-skiing squirrel.

  2. Here is who would benefit — everyone. The law (paraphrased) says “no junk faxes”. If that only leads to piecemeal litigation, the cost of failure to comply with the law is low enough that it makes sense to ignore it. Then, we all get inundated with junk faxes. (Yes, I still use a fax machine — in some countries I do business with, it is imperative).

    The notion of a class action is to privatize what might otherwise be a poor use of government resources. I like the decision, and I like the notion of class actions that allow private enterprise to enforce the law, rather than more government intrusion.

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