Technical Violations (Editorial)

It keeps journalists awake knowing there are great stories buried in courthouses all over the place if only we knew to pull the file.

So it is with the first item in this week’s Whispers column, New Pope County Fax Case Brings $21M Judgment. Last year, as Senior Editor Mark Friedman was reporting on the frustrating case of a New Jersey businessman hit with an eight-figure judgment after sending a single unsolicited fax to a Russellville company, the same company and the same plaintiff’s attorneys were winning an even bigger judgment for the same minor infraction.

The law is the law — as Eugene Kalsky learned when the Arkansas Court of Appeals recently upheld the $12.5 million summary judgment that M.S. Wholesale Plumbing Inc. of Russellville and its class-action attorneys, James Streett of Russellville and Joe P. Leniski Jr. of Nashville, Tennessee, won in 2017. Kalsky is paying dearly for ignoring the litigation, although it’s easy to understand why he considered it frivolous.

Now we have learned that M.S. Wholesale, Streett and Leniski hit gold again: a $21.13 million judgment against a fax distributor that failed to make sure its client’s fax included the exact right wording for recipients who wanted to opt out.

The Telephone Consumer Protection Act, the vehicle for this kind of jackpot justice, was well-intentioned back in 1991, when fax technology was being abused by unscrupulous marketers and scammers. It needs to be revisited, perhaps to focus on the ceaseless robocalls that anyone with a cellphone suffers through daily. Which is worse: a phony call claiming to be from the IRS or a fax that doesn’t include specific opt-out wording? Most faxes today are no more burdensome than one more email.

And while all defendants must take all litigation seriously and businesses should be on notice that exact wording matters, there is no federal law that requires lawyers to pummel defendants who have committed harmless technical violations. They could content themselves with making the world a fairer, more just place.