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In the state Supreme Court’s first visit to the University of Georgia School of Law in six years, lawyers arguing a junk fax case deftly played off a gallery packed with law students Friday, eliciting laughter as they spiced their arguments with references to the college community. The Athens venue was a homecoming of sorts for several of the justices who graduated from UGA — Justices George H. Carley and Robert Benham and Chief Justice Norman S. Fletcher. The others, joked Fletcher, were “wannabes.” The case that drew the most attention revolved around Carnett’s carwash, an Atlanta chain that paid a company to send 73,500 unsolicited coupons to local fax machines. One of the recipients, Michelle Hammond, sued Carnett’s, arguing it violated the federal Telephone Communication Protection Act of 1991, which forbids sending unsolicited faxes. The case reached the Supreme Court because her lawyers are seeking to certify a class of fax recipients, which could lead to a judgment of up to $110 million. Carnett’s Inc. v. Hammond , No. S04C1241. Robert W. Mitchum, then a part-time magistrate sitting by designation in Gwinnett County State Court, ruled in 2000 that the plaintiffs’ attorneys didn’t prove the fax recipients met the conditions of a class, but the Georgia Court of Appeals overturned the decision, ruling that the “trial court abused its discretion.” The appeals court judges said the trial judge had erred in not ruling that the proposed class met the “numerosity” standard, and they disagreed with the trial judge’s ruling that the recipients did not share a common legal claim. ARGUING OVER CERTIFICATION Arguing for the plaintiffs Friday, former Gov. Roy E. Barnes said the suit met the classification requirements of numerosity, commonality and typicality and that certification is the only effective way defendants can claim the penalties under the TCPA rule. He said the carwash chain’s agent, Sunbelt Communications and Marketing, dialed thousands of phone numbers in the 404 and 770 area codes to garner a list of targets, instead of simply accessing Carnett’s database of its customers. The carwash’s lawyer, Frank M. Lowrey IV, of Bondurant, Mixson & Elmore, contended that Federal Communication Commission regulations permit the faxes to be sent if “an established business relationship” — such as a prior transaction or communication — exists between the sender and recipient. According to Lowrey, it’s up to fax recipients to prove individually that they did not give permission to receive a fax. Lowrey said the anticipated class in this case has not provided such proof. He argued that the appeals court overstepped its bounds — and is out of line with other court rulings in Colorado and Texas — by allowing a class certification for a TCPA claim. APPEALING TO THE CROWD In a return to his alma mater, Barnes struck almost a conversational tone with the justices, prompting Lowrey to follow suit. Receiving junk faxes, he said, was like a resident returning home to find a postal worker camping on the front porch, demanding $2.25 for unsolicited mail. “An unwanted ad uses our fax machines, our toner, our paper,” he said to the justices, waving his hands sharply. Rebutting Barnes’ argument, Lowrey stepped away from the podium he had confined himself to only moments earlier. Countering Barnes’ assertion that the carwash should have sent the coupons to a customer list instead of to seemingly random phone numbers, Lowrey localized his argument. “It’s like (naming) everyone in the Athens area who has gone to the Golden Pantry,” he said of the nearby convenience store. Lowrey also argued that the potential multimillion-dollar judgment would bankrupt Carnett’s “one hundred times over,” and he questioned why the suit was not brought against Sunbelt, the Nevada-based ad agency hired to send the faxes. When the proceedings turned to a case involving Hooters restaurants, Fletcher seemed to embrace the tone of the argument. In the case, Hooters of Augusta v. Nicholso, 245 Ga. App. 363 (2000), the appeals court deemed class certification proper in a case involving 7,825 unsolicited faxes. Prefacing his argument, Barnes deadpanned: “I’ve never been to Hooters.” To raucous laughter, Fletcher then reminded the former governor that he was under oath. SERIOUS IMPLICATIONS Despite the lighter moments, the justices explained to the students that the case had serious implications for the carwash chain as well as the future of similar cases. If the defendant prevails, liability for such junk fax cases could be limited to claims brought individually, with fines ranging from $500 to $1,500 per claim. The familiarity the lawyers and justices had with one another made the argument seem less formal, said Michael B. Terry, also of Bondurant, Mixson & Elmore, who represented the carwash chain. At one point, Barnes poked fun at the defendants’ “eel-skinned briefcase” — which was actually, in Terry’s words, a “redwell (folder) with a rubber band around it.” “It does add an element that must have been fascinating for the students,” said Terry, who lunched with Barnes, Lowrey and a handful of law students after the arguments. “If those personal relationships did not exist, Roy’s argument would have been different.”

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