A state appeals court held Wednesday that a lawyer who recovered statutory damages in three suits over junk fax ads to his office isn't entitled to fees for his pro se work.
In all three cases, the Appellate Division denied fees to Joseph Oettinger Jr. of Westwood under the New Jersey Junk Fax Act because he represented himself.
Oettinger asserted claims under federal and state junk fax statutes that outlaw similar conduct and set minimum statutory damages of $500 for each illegal fax. Only the state law, however, provides for recovery of legal fees.
The suits were filed in Bergen County Special Civil Part.
In only one of them, Oettinger v. J&G Pizza, A-6355-11, did the defendant hire a lawyer at the trial level.
On June 18, 2012, the day set for trial, the pizzeria's lawyer offered $1,000 to settle, the amount Oettinger was seeking for two unsolicited faxes he received.
Superior Court Judge Joseph Rosa Jr. entered judgment for that amount, plus $22 in costs.
There was no mention of legal fees and when Oettinger tried to get them added to the judgment, Rosa denied the request.
A second case, Oettinger v. Make Cents of It, A-6084-11, entailed a single fax touting QB Training Solutions in Rochelle Park.
The company defaulted and, at a proof hearing on the same day set for trial against the pizzeria, Rosa awarded $500, plus $22 in costs but denied a subsequent request for fees.
In the third case, Oettinger was denied not only fees but any recovery for two faxes he received from Stevens Roofing in Caldwell, even though the company defaulted.
Superior Court Judge Keith Bachmann in Oettinger v. Stevens Commercial Roofing, A-5027-11, denied recovery because the New Jersey law created a private right of action for someone "aggrieved" by a violation.
Bachmann did not think Oettinger met that test, based on the definition of "aggrieved" in Webster's Dictionary as involving "demonstrable distress, suffering or injury."
He stood by his ruling even after Oettinger presented him with a broader definition of the word in a different edition of Webster's.
In Bachmann's view, being aggrieved required something like being woken in the middle of the night by a junk fax or missing an important transmission because the paper was used up.
Like Rosa, he did not think self-represented lawyers could recover fees.
Appeals in all three cases were argued on July 2 before Judges Paulette Sapp-Peterson and Jack Sabatino.
They upheld the denial of fees, citing Segal v. Lynch, 211 N.J. 230 (2012), for the proposition that fee awards to self-represented attorneys should be disallowed.
They said the policy reasons in Segal applied to the junk fax cases.
Allowing "pro se attorney litigants to secure an award of attorney's fees would create an unwanted disincentive for attorneys to hire counsel," they said.
In addition, it would be problematic to pay fees to a self-represented lawyer when a nonlawyer who was pro se would not get them.
Sapp-Peterson and Sabatino rejecting Oettinger's argument that use of the word "shall" in the state law made it mandatory to award fees to a prevailing plaintiff.
Oettinger's interpretation "would give self-represented lawyers who receive unwanted faxes a significant monetary advantage over pro se non-attorneys, who likewise seek relief under the statute and who devote their own time and attention — uncompensated — to their lawsuits."
They also overturned Bachmann on liability.
Noting that plaintiffs suing under the federal statute only have to show they received a fax in violation of the law, Sapp-Peterson and Sabatino said nothing in the legislative history, structure and purposes of the New Jersey law would lead them to conclude the Legislature meant to add a requirement of "tangible harm."
Oettinger says he is not likely to appeal.
Nor is he likely to file more junk fax cases because he no longer has a dedicated phone line for his fax machine. "It was too much of a nuisance," he says.
He had a title insurance agency with papers frequently being faxed, necessitating that the machine always be on. Now semiretired, he only hooks up the machine when he knows something is coming.
He says he filed six or seven junk fax suits in 2007 under the federal law and settled or won judgments but never got the treble damages allowed for willful or knowing violations under that statute.
The faxes died down for a while but when they increased again, he filed the three newer suits in 2012, thinking he would "test the waters" under the state law enacted in 2005 and for which he found no reported cases.
He says the $500 statutory damages for an attorney to go to court "doesn't seem like a whole lot of compensation for the time you have to put into this."
Casa Maselli lawyer Melvin Solomon, of Parsekian & Solomon in Hackensack, says his client was hit with a suit even though it stopped faxing Oettinger once it got his cease-and-desist letter.
It asserted a third-party claim against Your Local Lunch Specials Inc., which sent the faxes and should have known the law, but the company disappeared so the claim could not be pursued, says Solomon.
Michele Smith, of Hartmann Doherty Rosa Berman & Bulbulia in River Edge, who represented QB Training on appeal, did not return a call.