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If you’re placed on hold at Hooters’ Atlanta headquarters, you’ll hear a boogie-woogie version of the restaurant chain’s theme song asking, “Who’s gettin’ happy? Who’s havin’ fun?” For now, the answer is Augusta, Ga., attorney-turned-plaintiff Sam G. Nicholson and 1,320 class members who stand to share an estimated $4 million to $12 million from a suit Nicholson filed in 1995. That’s because last week, a jury determined that Hooters of Augusta Inc. willfully violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited advertising faxes offering lunch coupons to businesses and individuals in the Augusta and Aiken, S.C., area. A spokesman for Hooters, a restaurant chain known for its curvaceous waitresses in tiny orange shorts, says the company plans to appeal the verdict. This is Georgia’s first class action involving junk faxes, and the suit has wound its way through Georgia’s trial and appellate courts, and federal court, for six years. Nicholson v. Hooters of Augusta, Civil Action File No. 95-RCCV-616 (Richmond Super. dec’d March 21, 2001). The TCPA, under which the suit was filed, is 47 U.S.C. Section 227(b)(1)(C), a 1991 law prohibiting advertisers from sending faxes without prior or express permission from the recipients. It imposes a $500 fine for each violation, subject to trebling for willful and knowing violations. The Nicholson jury found that each plaintiff had received six unsolicited faxes, which means the fine starts at $3,000 per plaintiff and rises to $9,000 per plaintiff if damages are tripled. DAMAGES NOT YET SET The exact amount of damages is yet to be determined by Richmond Superior Court Judge Carl C. Brown Jr. but Nicholson’s attorney, Harry D. Revell of Augusta-based Burnside Wall Daniel Ellison & Revell, says he plans to schedule a hearing on the issue in the next 30 days. Revell says evidentiary issues in the case were straightforward, in part because a witness for Hooters testified that the faxes were sent without the recipients’ consent. The applicable statute, he says, is almost a strict liability standard. Hooters’ defense, that the plaintiffs had not proved they received the faxes, didn’t fly with the jury, he says. Hooters wasn’t the only business advertising in the faxes. Others included La Maison restaurant and radio station WRDW-AM in Augusta. According to Revell, his client didn’t sue these businesses because they were small and local, and as mom-and-pop shops probably didn’t have the same access to information about the law that Hooters had. “Hooters is a national, if not international outfit and they have the ability to educate themselves,” he says. According to Hoover’s Online, a Web site that provides data about businesses, Hooters is a privately held company with 250 restaurants in North America, Asia and Europe, and 1999 sales estimated at $375 million. Hooters’ lead counsel on the case, Mark C. Wilby of Augusta-based Fulcher Hagler Reed Hanks & Harper, did not return a call about the case. Calls to Hooters president, Bob Brooks, and in-house counsel Suzanne Vesper were referred to the company’s vice president for marketing, Mike McNeil. McNeil says holding his company responsible for the faxes “borders on ridiculous.” He says the restaurant manager of the Augusta store used a third-party vendor to send the faxes, and as an advertising professional, that vendor should have told Hooters about any applicable law. But Revell says the law holds the advertiser, rather than third parties, liable. Hooters has cross-claimed against Value-Fax, the faxing company that its Augusta store used. But Value-Fax’s owner, Bambi Clark, did not answer the cross-claim and is in default. According to Revell, Hooters contracted with Clark to send out advertising faxes for four weeks, with a fifth week free. The faxes were to be sent to 2,500 businesses and individuals. But Revell says Clark sent out at least three more sets of Hooters’ faxes after the fifth week. Revell says his client sued because, “Like everybody, he was just tired of getting these things. … They’re a nuisance.” Nicholson could not be reached for comment by press time, but Revell says he and his client knew the suit wouldn’t have much impact with only one plaintiff. So they demanded Clark’s fax database in discovery. They got about half of what they wanted. The database had 3,000 names originally, but about 1,500 were destroyed because, according to Revell, Clark “says they accidentally hit the delete button rather than the print button.” Of all the faxes sent, the plaintiffs showed two in court. But to demonstrate the nuisance level of the unsolicited ads, Revell says he rolled a cart into the courtroom stacked with about 42 reams of copy paper — 21,000 pages — representing the volume of faxes sent. Sole practitioner Marc B. Hershovitz is representing plaintiffs in a similar suit against Susquehanna Radio Corp., owner of Atlanta radio station 99X. His client is suing over unsolicited prerecorded phone advertisements, which also are prohibited by the Telephone Consumer Protection Act. He says the Hooters verdict was the right one, given the facts, and that as far as his case goes, “We’re encouraged by the finding.”

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