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Sending an unsolicited facsimile advertisement to a Georgia lawyer could land the sender in court. Junk fax class actions are becoming increasingly popular with local attorneys frustrated by piles of fax advertisements every day. “It’s eating up toner and ink and it’s against the law,” said W. Gregory Dobson, a Macon attorney who filed the latest case on behalf of another attorney in his firm, Morriss, Lober & Dobson, Bruce F. Morriss of Atlanta. Morriss received an unsolicited fax from a debt collection services firm, according to the suit. Morriss, said Dobson, “just can’t stand getting these faxes” and has saved about 300 over the past few years. While determining who sent the faxes is sometimes difficult, Dobson said he will file two more junk fax suits soon. Attorneys like Dobson and Morriss file their cases under the Telephone Consumer Protection Act, (47 U.S.C. 227). The TCPA is a 1991 law that prohibits advertisers from sending unsolicited faxes. The law defines unsolicited as without prior express invitation or permission. It allows plaintiffs to sue in state court and imposes fines of $500 to $1,500 per violation. Augusta solo practitioner Sam G. Nicholson was the first Georgia lawyer to sue using the act. He filed a $12 million class action against the restaurant chain Hooters after he received an unsolicited lunch coupon for Hooters at his law office in 1995. The case went to the U.S. Supreme Court, which upheld the jury’s finding that Hooters violated the TCPA and the judge’s award of $11.9 million in damages to 1,093 class members. Attorney Marc B. Hershovitz said last year he had settled about six cases for between $500 and $1,500 after receiving one unsolicited fax. He then sued a local legal recruiter, Staff Counsel Inc., after getting 14 faxes from them, according to the suit. Last year, a Fulton judge approved an $87,500 settlement of a class action over junk faxes that involved 1,052 lawyer/law firm class members. Malka & Trainor as class representative sued Capitol Special Risks Inc., a Marietta, Ga., insurance company. The average recovery for class members was $50, while plaintiffs’ counsel received fees of $29,167 and expenses of $7,258.06. The targets of Morriss’ and Dobson’s ire are Debt Collectors International Inc., a Mobile, Ala.-based collections firm, and its subsidiary, Mancini, O’Malley & Cole. The Fulton Superior Court suit says Morriss got a Dec. 12 fax from DCI at his Atlanta office. DCI, the suit says, was cited by the Federal Communications Commission last year for sending junk faxes, but has continued the practice. “Again Defendants have willfully and knowingly violated the TCPA by transmitting unsolicited facsimile advertisements,” the suit says, adding that the repeat violation means the court can increase the $500 statutory award to as much as $1,500 per violation. DCI’s operations manager, William T. Mancini, said the company gets “threats all the time. People are suing us every day.” Plaintiffs who bring the suits, he said, are just using the system to make money. The law, he said, is unconstitutional and DCI will fight it. Mancini points to a federal district court judge’s ruling in Missouri that the federal junk fax prohibition is an unconstitutional infringement on freedom of speech. State of Missouri, ex rel. Nixon, Attorney General v. American Blast Fax, 196 F. Supp. 2d 920 (2002). “The highest court to see this has judged it unconstitutional,” Mancini said. He said DCI told the FCC the law was unconstitutional, but got no response. Hershovitz, however, said that decision is an aberration and added that nine to 12 courts have upheld the constitutionality of the law. But Mancini insisted that DCI “will vigorously fight the lawsuit and turn around and countersue.” Dobson isn’t daunted either. “We’ll be waiting,” he said.

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