The Arkansas Court of Appeals has ruled against the New Jersey businessman behind the fax that led to a $12.5 million class-action judgment.
The three-judge panel on Feb. 20 affirmed the judgment from Pope County Circuit Court against Eugene Kalsky and his company, Gen-Kal Pipe & Steel Corp. of Mount Laurel, New Jersey.
“Gen-Kal and Kalsky failed to meet proof with proof,” Court of Appeals Judge David Glover said in an 11-page order that Judges Robert Gladwin and Larry Vaught agreed with.
If you recall, the case began in 2015 when Kalsky faxed an advertisement for his firm to M.S. Wholesale Plumbing Inc. of Russellville. (He later said in a podcast about the case that he had sent out 2,240 faxes to companies in Arkansas in 2015.) M.S. Wholesale Plumbing filed a lawsuit accusing Gen-Kal of failing to include a specific opt-out notice on fax advertisements in violation of the federal Telephone Consumer Protection Act. James Streett of the Streett Law Firm in Russellville and Joe P. Leniski Jr. of Branstetter Stranch & Jennings of Nashville, Tennessee, represented M.S. Wholesale.
Kalsky sent a letter to the Circuit Court at the end of 2015, denying the allegations. But he didn’t file any more responses or hire an attorney, resulting in the case sailing through the system.
Gen-Kal and Kalsky also failed to respond to M.S. Wholesale’s questions asking them to admit that a minimum of 25,000 faxes that didn’t comply with the TCPA had been sent since Oct. 15, 2011.
Since Kalsky didn’t respond, it was assumed to be true. The fine for sending a fax that doesn’t meet TCPA guidelines is $500 per fax sent. That figure multiplied by 25,000 totals $12.5 million.
The Court of Appeals “found in all respects that the trial court got it absolutely right,” Leniski told Whispers. “We’re very happy with this outcome and don’t believe the [state] Supreme Court would venture to review it at this point.”
He said that if the judgment isn’t appealed, the next step will be to enforce the judgment.
Pope County Circuit Court still has to approve a plan to distribute to class members any assets collected.
Kalsky didn’t return a call for comment.