Junk Fax Lawsuit

law

A few weeks ago I was asked by one of my clients, “If I were to file a lawsuit and file a complaint for defamation as a result of sending a junk fax, would my attorney have to disclose my claim of selective knowledge during discovery?” This is a very good question and I think it is worth exploring.

As you are aware, in July I filed a report of selective awareness in a case I represented where a defamatory email was sent by one of the defendants. In that article, I noted the court’s statement that defendants were not required to disclose that there was a prior settlement with an individual who had received the email; thus, there was selective awareness at a time when it was known to only a limited number of individuals.

Junk Fax Lawsuit

This selective knowledge became the basis for a second lawsuit, which was later filed and is currently pending. In that second lawsuit, the plaintiff was able to determine that the defendants did not forward any faxes that contained any reference to or contained statements of fact that were not true. Moreover, it was found that those statements in the emails were actually extracted from the computer hard drive of the plaintiffs’ server without their consent.

The fact that the defendants knew about these facts and did nothing to prevent them from doing so only goes to show that defendants were aware their emails contained such statements, but failed to take any action to prevent such conduct. As such, the second lawsuit was filed and the case is ongoing.

I’m not sure how relevant my article above is in the proposed class action lawsuit.

However, I do note that the suggestion that junk faxes should be used for tort reform has been brought up before and is often mentioned in discussions of tort reform. The United States Senate is discussing the issue now as well. Given the many issues surrounding tort law, including the problems with the mandatory mediation process discussed above, it’s not a real surprise that many lawyers are talking about junk fax lawsuits these days.

Still, I find it curious that the federal court in the initial case enjoined the defendants from using such emails for tort purposes. One could assume that if the courts are going to enjoin conduct that the courts must also allow for a defendant’s reasonable intent to use the email in question.

In one case cited above, there was no evidence that the sender of unsolicited faxes intended to cause harm.

The plaintiff won its first case in district court and was granted summary judgment. The district court based its reasoning on the Telephone Consumer Protection Act, which protects consumers from unsolicited and unreasonable calls. The plaintiff was also permitted to submit a complaint under the appropriate statute of limitations, which was not before the court because the statute of limitations had expired.

In this second class action lawsuit, there were several plaintiffs who were each a victim of a single electronic message’s sender.

When these victims brought their claims before the court, they were able to prove beyond a reasonable doubt that the sender of the harassing and insulting emails knew that they were doing so without the sender’s knowledge or consent. That is what is known as a “junk fax lawsuit” and, as we’ve seen above, there is ample evidence tying the conduct to the state of California and the requirements of the Telephone Consumer Protection Act.

So what does this all mean for us as Internet subscribers?

As a matter of common sense, it means that you should stay far away from anyone you consider unsolicited faxes when you sign up for email, instant messaging, or instant message services. Period. There is simply no reason to make it easy for someone to harass you. If you receive junk faxes, do NOT ignore them or respond to the sender by leaving any evidence that you ever received such materials. Instead, report this activity to the local authorities so that the sender can be prosecuted for it.

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