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Two of the “greatest irritants in modern life,” said former Georgia Gov. Roy E. Barnes, “are the unwanted telephone call at dinner and the junk fax.” So began Barnes’ arguments Wednesday before Georgia’s Court of Appeals as he advocated that recipients of 73,500 unwanted faxes from a metro Atlanta car wash should be certified for a class action. The appeals court will have to decide whether a trial judge’s decision not to certify a class in this instance properly applied standards the court set in Hooters of Augusta v. Nicholson, 245 Ct. App. Ga. 363. The appeals judges had determined that class certification was proper in that case, which involved 7,825 unsolicited faxes and resulted in a $12 million verdict against the restaurant chain. The stakes are even higher in this case. If Barnes prevails, the car wash, Carnett’s Inc., with seven Atlanta locations, could be fined up to $110 million. Otherwise, liability could be limited to claims brought individually, with fines ranging from $500 to $1,500 per claim. Hammond v. Carnett’s, No. A03A2487. In the case on appeal, the trial judge had ruled that sending the fax advertisement to the name plaintiff was a violation of a federal statute that forbids sending unsolicited faxes, the Telephone Consumer Protection Act of 1991. However, that statute was intended to allow recipients to sue in small claims court, not to form classes to pursue claims, the judge said. Barnes and opposing counsel Richard C. Foster of Hicks, Casey & Barber in Marietta, disagreed on almost everything during oral arguments. From case precedent on certifying junk fax cases to how busy the trial court judge was when he signed the order denying certification, Barnes’ and Foster’s interpretations of the consumer act and case law varied widely. Barnes represents Michelle Hammond, who received an unwanted fax from Carnett’s and has appealed the trial judge’s ruling denying class certification. Barnes’ involvement on the case continues his post-gubernatorial work on issues affecting consumers, which he began by volunteering with Atlanta Legal Aid for six months earlier this year. But this case also seemed to touch closer to home. As he mentioned in his opening remarks, there’s nothing Barnes finds more annoying than dinnertime phone calls from telemarketers, a feeling that was seconded by Presiding Judge Edward H. Johnson. Judges Frank M. Eldridge and Charles B. Mikell Jr., whom Barnes appointed to the court in 2002, also sat on the panel. Barnes didn’t originally file this suit, however. He was brought in for the appeal by his former law clerk, Marc B. Hershovitz, who coincidentally had researched the consumer act for Barnes in the summer of 1993. Since then, Hershovitz and his co-counsel, sole practitioner Michael K. Jablonski and Weissman, Nowack, Curry & Wilco’s Ned Blumenthal, have appeared numerous times before the Federal Communications Commission and have taken dozens of Telephone Consumer Protection Act cases. Barnes’ two associates from the Barnes Law Firm, his daughter, Allison Barnes Salter, and son-in-law, John F. Salter Jr., also were in the courtroom. John Salter assisted Barnes with five large exhibits during the arguments. One of Barnes’ exhibits included a cartoon depicting a long line of junk faxes arriving, with the caption, “It’s a junk fax offering 30 percent off of fax paper.” While Barnes’ humor, booming voice and animated gestures livened up the somber chamber, there’s a lot riding on the result of this case. On the defendant’s side, office supply giant Staples filed an amicus brief supporting denial of class certification. Staples has a junk fax case pending in Richmond County Superior Court. Barnes, who spoke first and said he doesn’t “ever disparage a judge,” aimed much of his criticism at the judge who denied class certification. Part-time Magistrate Robert W. Mitchum, of Mitchum & Mitchum in Lawrenceville, who was sitting by designation in Gwinnett County State Court, didn’t understand the case, didn’t read the record fully, signed the defendant’s order without making any changes and misapplied the law, Barnes argued. “The trial court, with all due respect, was unfamiliar with the TCPA,” said Barnes, calling the judge “confused.” The judge applied the wrong legal standard and abused his discretion in his ruling, Barnes said. Mitchum is a “part-time judge who was busy,” Barnes said, adding that the magistrate “had his own docket, then was loaded up with another docket. We all know how busy trial judges are. All three of you have been trial judges. He didn’t have time to properly review this case, and he misapplied several areas of law that are clear.” Mitchum erred especially in saying the “numerosity” standard wasn’t met, Barnes said. That standard means there must be a sufficient number of plaintiffs to justify a class action. “Now there’s 73,500 cases here,” Barnes said, and denying certification is “contrary to this court’s decision in Hooters.” That decision granted certification to a much smaller group. The class should be certified, argued Barnes, because the class members received the “same fax and the same ad which violated the same act. The damages are all identical because it’s a statutory penalty. “Almost all the courts have said that these cases not only can be classed but are perfect for class certification,” Barnes emphasized. “We can only find four cases in which certification has been denied.” He said he hoped Congress would pass a similar law for the spam and pop-up ads that appear on his computer. Barnes also said that the owner of Carnett’s knew he didn’t have express permission to send the faxes and already has paid some of the claims individually. Before defense attorney Foster even had a chance to speak, the appeals judges seized upon Barnes’ reasoning that the magistrate was too busy. They peppered Foster with questions as he stood to present his side. Eldridge started, “Out of curiosity,” he said, “Gov. Barnes said that the judge was too busy to consider the case.” He then asked Foster if he thought Mitchum was too busy and if Mitchum had signed the defense’s order and made any changes to it. Foster replied, “I don’t know whether judges are too busy or not. He did consider all the briefs.” Mitchum signed the order Foster wrote and made only one change to it, Foster added. Foster then argued the plaintiffs’ lawyers didn’t do any discovery to determine whom the class members were and didn’t sue the right party. “They sued the local carwash with a big insurance policy; they didn’t sue Sunbelt,” who sent the faxes, Foster said, referring to Sunbelt Communications, the company that Carnett’s paid $3,200 to send the 73,500 faxes. According to Carnett’s brief, Sunbelt had sent an unsolicited fax to Carnett’s offering this service. “[The plaintiffs' lawyers are] acting like the court denied discovery. That’s not true,” said Foster. “They didn’t lift a finger” to do discovery on whom the proposed members of the class would be, he said. “Gov. Barnes just said they have ways to get it [the list of fax recipients]. Why don’t they?” There’s no evidence in the case of whom the fax recipients are, only that Carnett’s purchased the ads, said Foster. The trial court did follow Hooters in denying class certification because there was no discovery to determine the identities of class members, Foster said. He meant that the plaintiffs hadn’t met the standards set in Hooters for certifying a class. TRIAL COURTS VS. HIGHER COURTS Foster also chided the plaintiffs’ lawyers for presenting case law on class certification from trial courts, not higher courts. “Those trial courts are not persuasive authorities,” he said, providing his own list of cases in which class certification was denied. Foster added that not all recipients of the faxes were equally situated, as some may have been previous customers of Carnett’s, and therefore would be exempt from the consumer act claim. “Hammond is entitled to her $500. But just because she is [entitled] isn’t typical of everyone else. You can’t show that in this case,” Foster said. Foster also argued the Telephone Consumer Protection Act was not designed to have every consumer filing for class action relief. The intention of that act was for consumers to file in small claims court, he said. Foster read from the Congressional Record to establish the intent of the federal law. He emphasized that while not specifically worded this way in the bill, the intention, according to one senator, was for states to enable citizens to pursue violators in small claims courts, without an attorney. If the claims are made into class actions, plaintiffs won’t get their full $500 after attorneys are paid, said Foster. “There is no easier statute to prosecute. As Barnes said, it is a strict statute,” said Foster. Foster also seemed to think the court’s history was on his side. He said the Court of Appeals never has reversed a denial of class certification, and the Supreme Court did it only once, in 1974. In his rebuttal, Barnes jumped up to defend the rights of consumers to form a class and sue in cases of mass faxing, as opposed to suing in small claims court. Barnes complained that Carnett’s countersued Hammond in federal court, claiming the statute was unconstitutional. Barnes used that example to bolster his claim that class actions protect consumers. He also said that Congress treated faxes and telephone calls differently, and that a “previous business relationship” exemption doesn’t apply to faxes, as it does to phone calls, the court recently ruled in a case involving a 99X radio station listener. Schneider v. Susquehanna Radio Corp., No. A02A1654, A02A1655. “A fax uses our own machine, paper, toner and electricity,” Barnes said, pounding the podium. “The truth is the trial court applied the wrong law.”

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