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A recent Georgia Court of Appeals decision makes it easier for recipients of junk fax advertisements to form a class and sue the offending business. A three-judge panel reversed a trial court’s decision not to certify as a class 73,500 recipients of unsolicited faxes from a metro Atlanta car wash. In a unanimous decision, the judges said, “The trial court abused its discretion” in finding that the plaintiffs did not meet the requirements of a class certification. Hammond v. Carnett’s, No. A03A2487 (Ct. App. Ga. March 12, 2004). The decision earlier this month clears the way for a case involving potential fines of up to $110 million. The defendant’s attorney, Richard C. Foster of Hicks, Casey & Foster in Marietta, said he will appeal the decision to the Georgia Supreme Court. Former Gov. Roy E. Barnes argued the case before the panel in November. Barnes said the trial court judge had erred in denying class certification because he deviated from the standards set by the appeals court in Hooters of Augusta v. Nicholson, 245 Ga. App. 363 (2000). In Hooters, the appeals court had deemed class certification proper in a case involving 7,825 unsolicited faxes from the restaurant chain. The complaint later resulted in a $12 million verdict. “The Hooters case says very clearly that these cases are classable,” Barnes said in an interview Tuesday. Carnett’s had hired Nevada-based Sunbelt Communications and Marketing to send advertisements to 73,500 facsimile machines in the Atlanta area. One of those faxes went to a fax machine at the home of Michelle Hammond, the name plaintiff. The trial court judge was part-time magistrate Robert W. Mitchum of Mitchum & Mitchum in Lawrenceville, Ga., who was sitting by designation in Gwinnett County State Court. He ruled that sending the fax advertisement to Hammond was a violation of the federal Telephone Consumer Protection Act of 1991, which forbids sending unsolicited faxes. However, Mitchum said the law was intended to allow recipients to sue in small claims court, not form classes to pursue claims. The appeals judges disagreed and, just as Barnes had argued, noted the similarity between the Carnett’s case and the Hooters case. WHY IT SHOULD BE A CLASS In the decision written by Presiding Judge Edward H. Johnson, the panel also discussed several requirements for class certification and outlined the reasons why the Carnett’s case met each one. Johnson was joined on the panel by Judge Frank M. Eldridge and Judge Charles B. Mikell Jr., who was appointed to the court by Barnes in 2000. First, the panel said the trial court had erred in not finding that the proposed class meets the “numerosity” requirement. “The dispositive question with regard to numerosity is simply whether the persons constituting the class are so numerous as to make it impractical to bring them all before the court,” Johnson wrote. “The potential class based on the sheer number of facsimile advertisements allegedly sent is sufficiently numerous that it is impractical to bring all class members before the court.” The trial court had reasoned that in order to determine the size of the proposed class, mini-hearings would be required to see if each potential plaintiff had invited or given permission for Carnett’s advertisement. According to the panel’s decision, the trial court gave the same reasoning in declaring that the potential class might not share a common legal claim. “The trial court, in finding a lack of commonality, again speculated that individual determinations as to whether any of the facsimile recipients expressly invited the facsimile might be necessary,” Johnson wrote. “We note that there is no evidence that Carnett’s ever received permission to send any of the advertisements. More importantly, while the question of whether the advertisements were unsolicited is certainly critical to this case, we disagree with the trial court’s conclusion that it somehow defeats class certification,” Johnson wrote. C. Ronald Ellington, a law professor at the University of Georgia who teaches complex litigation — including class actions — and has worked for the plaintiffs as an informal, unpaid consultant on the Carnett’s case, said he wasn’t surprised that the Court of Appeals reversed the lower court’s decision. “I would have been surprised if they said this is not suitable for class action treatment because it fits the requirements for class action so well and the Court of Appeals had implicitly approved class certification under the same statute, under the same circumstances in the Hooters case several years ago,” he said. DEFENDANT SHIFTS BLAME Foster, Carnett’s attorney, has filed a third-party claim against Sunbelt because he says he doesn’t want his client to get stuck paying fines for the Nevada corporation’s illegal conduct. The car wash owner never knew that sending unsolicited faxes was against the law until the plaintiffs’ attorneys initiated this legal action, Foster said. “What really needs to happen is to put those marketers out of business,” the attorney said. “The law was not designed to put car washes out of business.” The panel’s decision to allow class certification will permit attorneys to prey upon unsuspecting businesses that use Sunbelt’s services, he added. “It does not matter whether that business actually sent the fax or whether that business had any idea that such activities were prohibited under federal law,” Foster said. “I think the Court of Appeals is opening a Pandora’s box of class litigation against unknowing and innocent Georgia businesses.” ARGUMENT FALLS SHORT That argument falls short of convincing the lead counsel for the plaintiffs, Marc B. Hershovitz. Hershovitz, who served as deputy executive counsel in Barnes’ administration, is working on this case as co-counsel with sole practitioner Michael K. Jablonski and Weissman, Nowack, Curry & Wilco’s Ned Blumenthal. Hershovitz noted that businesses can’t claim ignorance of the law as an excuse. “When a business hires an agent, they’re responsible for the conduct of their agent,” he said. “In this instance, the business hired a company for the specific purpose of sending junk faxes, and that is illegal … One cannot hire an agent for the specific purpose of breaking the law and then avoid responsibility by saying, ‘My agent said it was OK.’” For his part, Barnes said the federal law was written in such a way as to prevent businesses from eluding responsibility by passing the blame on to the third-party fax advertiser. It would have been “nearly impossible” to police those mass faxing companies, he said. “Congress knew that the companies that did this were mostly fly-by-night, and that’s why they put the liability and responsibility on the folks who hire them-to make sure they didn’t break the law,” he said. The former governor said he hopes the Court of Appeals ruling will help curb the flow of unsolicited faxes to recipients in Georgia. “With decisions like this, hopefully we won’t be bothered with advertisers using our fax machines and our paper and taking up our time when we could be transacting important business over our fax machines,” he said.

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