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A bowling business that sent out as many as 352,000 unsolicited faxes will settle a class action for up to $1 million cash and $1.5 million in coupons. However, it’s not clear how much of the money will be paid out. The settlement came under criticism from a lawyer with his own fax case against the bowling company, AMF Bowling Centers, who said the company was getting off too easily. But plaintiffs attorney Lance P. McMillian said the settlement was “within the high range” for such cases. McMillian handled the case with Stephen A. Camp. Both lawyers are with McMillian & Camp in Newnan, Ga. The two lawyers will get a total of $250,000, while the lead plaintiff, James Michael Moore of Satellite Specialists in Jonesboro, will get $15,000. Under the terms of the settlement, which must be approved by Fulton County Superior Court Judge Stephanie B. Manis, AMF will pay up to $1 million to class members who kept a copy of the fax from November 2002. Each of those members is eligible to receive $500 per fax. Those who cannot produce an actual fax but are willing to swear in an affidavit that the Richmond, Va.-based company sent them one will receive $250 in bowling coupons. Any money not collected after eight months will go back to AMF, minus $100,000 to be split between the Atlanta Legal Aid Society and the Georgia Legal Services Program. The leftover coupons will be given to a local children’s charity. McMillian said AMF contracted to send out 352,000 faxes. He said it was not possible “at this time” to determine how many of the fax ads were sent. AMF said in a brief that it worked with the plaintiffs counsel and the two parties identified 392 potential class members by sifting through AMF business records. To find the remaining members of the class, the bowling company published legal notices in several newspapers. If no one else comes forward, AMF will pay the class members a total of $195,500 in addition to the money owed to the lead plaintiff. The plaintiffs in the case sued under the Telephone Consumer Protection Act of 1991 (47 U.S.C. 227), a law that entitles each recipient of unsolicited, faxed advertisements $500 per fax. Judges may use their discretion to raise those fines to a maximum of $1,500 per fax. According to the statute, AMF could have been liable for fines ranging from $176 million to $528 million if it was proved that the company sent 352,000 unsolicited faxes. The company and its lawyers didn’t comment on the case for this story. One of the local attorneys who represented AMF, Jefferson M. Allen of McGuireWoods, referred calls to a partner at the firm’s Richmond office. That partner, Robert M. Tyler, did not return a phone message. SETTLEMENT CALLED ‘GARBAGE’ Robert R. Biggerstaff, a retired engineer who is not an attorney but has written articles on the Telephone Consumer Protection Act for the Connecticut Law Review and the Federal Communications Law Journal, called the AMF settlement a “piece of garbage.” He said, “The attorneys who prosecuted that case should be ashamed of themselves.” Biggerstaff, who tracks similar junk fax cases from around the country and maintains the Web site www.tcpalaw.com, said he was “astounded” that the plaintiffs attorneys did not attempt to define the class more precisely. He said he has worked on several other cases where attorneys routinely obtained logs of telephone transmissions that list the numbers dialed and the time of day for each call. “It’s standard procedure, and it’s not magical,” he said. “I’m astounded that the attorneys in this case have not done this.” Marc B. Hershovitz, an Atlanta attorney who settled with AMF for four clients covering a total of 141 junk faxes, said the class action settlement is not good for consumers. “AMF has the ability to answer and pay for its illegal activity but instead is giving away coupons for bowling,” he said. “Sending similar coupons through junk-faxing is the conduct that got AMF in trouble. This is a settlement that enriches AMF and doesn’t provide a meaningful benefit to the consumer.” JUNK FAXES IN GEORGIA The first Georgia lawyer to sue using the Telephone Consumer Protection Act was an Augusta sole practitioner who received an unsolicited lunch coupon for Hooters over his office fax machine. Sam G. Nicholson filed a $12 million class action against the restaurant chain. The case went to the Georgia Court of Appeals, which upheld the class certification. Hooters of Augusta v. Nicholson, 245 Ct. App. Ga. 363 (2000). The case later resulted in an $11.9 million verdict for the recipients of 7,825 unsolicited faxes. Nicholson v. Hooters of Augusta, No. 95RCCV616 (Richmond Super. March 21, 2001). For his part, Hershovitz is awaiting a decision from the state Court of Appeals on a junk fax case that involves 73,500 faxes sent by a car wash company and possible fines between $36 million and $110 million. Hammond v. Carnette’s, No. 02CV77622 (Gwinn. St. filed Sept. 20, 2002). In November, former Georgia Gov. Roy E. Barnes argued that case on behalf of the plaintiffs and told the justices that the trial judge’s decision not to certify a class was contrary to the standard set in the Hooters case. In a 2002 junk fax case, a Fulton judge approved an $87,500 settlement of a class action that involved 1,052 lawyer/law firm class members. Malka & Trainor, the class representative, sued Capitol Special Risks Inc., a Marietta insurance company. The average recovery for class members was $50, while plaintiffs’ counsel received fees of $29,167 and expenses of $7,258. Malka & Trainor v. Capitol Special Risks, No. 2001CV37309 (Fult. Super. April 27, 2001). NO OBJECTIONS FILED McMillian said nobody has filed an objection to the proposed settlement and no one came to complain at the final settlement hearing conducted Feb. 23 in Manis’ courtroom. The parties in the AMF case reached a settlement quickly, McMillian said, and while he could have continued the fight and possibly obtained more money, nothing is guaranteed. “I think the settlement is good for the class,” he said. “Junk faxes are a nuisance, and this settlement is good to deter such faxes and to compensate people who received faxes in this case.” Hershovitz said he is still discussing the possibility of filing an objection to the settlement with his one remaining client who is a member of the proposed AMF class. The attorney said he thought McMillian and Camp could have won a better settlement had they done more thorough discovery. “Based upon my experience with TCPA litigation and specifically having litigated cases involving the third party advertiser hired by AMF for its junk-faxing campaign, discovery almost certainly would have revealed an identifiable class and should have thoroughly explored the defendant’s ability to pay a substantial judgment,” he said.

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