$3000.00 fax

[savemart55]

My former business partner hired a company to send out junk faxes to a mailing list. An attorney got one and sued us for $3000.00. I replied with an answer stating that I didn't send it, and a Texas law talks about taking people off a list if they ask. I never wanted to send these faxes, but I'm now defending this case. The attorney filed a motion for summary judgement. I responded that they had to show that I had no defense and that there was no merit to my answer to their suit, and asked the court to deny their motion. It's kind of fun to find stuff on the internet and play lawyer games but should I just make this guy an offer to get rid of him or make him appear at a'trial'?

 

[JETX]

It may be 'fun' and all, but you have a potentially serious problem on your hands.

You seem to be basing your defense on the claim that the FAX was sent by a 'former partner' thereby relieving you of any responsibility. Sorry, but that won't hold up if the 'act' was done by the partnership and you are a responsible partner. And, if you (as a partnership) sent this FAX out in violation of state or federal laws, your partnership is liable.

Depending on the structure of this 'partnership', you could very well get stuck with a $3,000 judgment.

Also, in researching the Texas Statutes, I can only find a possible violation using TX CIV PRA & REM CODE, Chapter 143 ("HARMFUL ACCESS BY COMPUTER"), but that is contingent on actions that violate TX PENAL CODE, Chapter 33. A review of that chapter shows that it clearly pertains to computers, not FAX machines. So, no relevant Texas statutes:
Source: http://www.capitol.state.tx.us/statutes/statutes.html

So, since you didn't tell us what basis is being claimed for the lawsuit against you, I assume the claim is a violation of 47 USC 227(b), which reads:
"(1) Prohibitions
It shall be unlawful for any person within the United States -
"(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;"

Reading further, you will see that this same Code provides for actions:
"(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State -
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph."
Source: http://www4.law.cornell.edu/uscode/47/227.html

Looks to me like IF your partnership knowingly violated the law, a judgment could be rendered against the partnership. And if you are member of the partnership, depending on its structure, you could be liable.

 

[savemart55]

First I would like to thank you for your detailed reply.
To answer your questions:
1. I wasn't trying to blame my ex-partner,but rather the statement from the marketing company in which we were assured that all of the people on the fax list had agreed to receive promotional faxes and that what they were doing was completely legal. This was a verbal statement to my ex-partner from their salesperson
2. The basis of their lawsuit is the federal statute that you mentioned.
3. My defense is based on Tx House Bill # 2420 which is part of Section #35 of the Business Code. It states that a person who receives an unsolicited fax need only to ask to be removed and the sender must comply with that request. Only if the sender refuses or continues to send faxes do the penalties and fines become applicable. Again thank you for your time.

 

[JETX]

3. My defense is based on Tx House Bill # 2420 which is part of Section #35 of the Business Code. It states that a person who receives an unsolicited fax need only to ask to be removed and the sender must comply with that request. Only if the sender refuses or continues to send faxes do the penalties and fines become applicable. Again thank you for your time.

My response:
1) If you are depending on a House Bill, it can't be used since it isn't a statute and may never become one.
2) You reference House Bill #2420. I wasn't able to find any such 'bill'. House proposals are labeled as 'HR' and Senate proposals are labeled as 'SB'. I looked at 2420 for both in the last legislature and couldn't find any such bill number.
3) You reference Section #35 of the Business Code. I assume you mean the Texas Business and Commerce Code. If so, then you are probably relying on:
"§ 35.47. Certain Electronic Communications Made for Purpose of Sales
(d) A person who makes or causes to be made a transmission to a facsimile recording device for the purpose of a solicitation or sale shall include in the document transmitted or on a cover page to the document a statement, in at least 12-point type, informing the recipient of a toll-free or local exchange accessible telephone number at which the recipient may notify the person not to send any further transmissions to one or more telephone numbers specified by the recipient. On receipt of notification from a recipient under this subsection, the person:
(1) shall within 24 hours send the recipient a written acknowledgment of the recipient's notification; and
(2) may not make or cause to be made a transmission to a number specified by the recipient, except for a single transmission to comply with Subdivision (1) of this subsection.
(e) On complaint of a called person that Subsection (a), (b), (c), or (d) of this section has been violated, the county or district attorney of the county in which the person resides shall investigate the complaint and file charges if appropriate. A telephone company serving the caller or called person is not responsible for investigating a complaint or keeping records relating to this section."

If this is the subsection you are relying on, did you comply with the additional requirements of notice??

 

[savemart55]

Yes. There was a phone # on the fax that the recipient could call to be removed from the list. The plaintiff never asked to be removed or contacted us in any way until the suit. I realize that I am in the wrong here. I,m just trying to figure out the best strategy to minimize my potential losses. Thanks for your time.