I wrote this page to collect advice I received from various people and I use it for my own reference and to jog my memory as to what to do. It is posted here for my convenience, but you may find some of the information here useful as well. You should always consult an attorney before taking any legal action.
The simplest thing is not to sue yourself, but join an existing litigation. This minimizes your time and trouble:
If you still want to sue yourself, keep reading.
Simplified step-by-step instructions for what I did to sue people who sent me illegal faxes can be found here:
Otherwise, here is some useful background information
- You must first find out who is faxing you. See How to identify who is sending you junk faxes .
- Decide who to sue: the advertiser or the fax broadcaster, or both. Decide whether you want to sue the people individually or just the company or both. Generally, suing in small claims means you are confined to people who live in (or are physically present in) your state and companies that have a presence or do substantial business in your state. Sue parties that you think you can collect from at the end of the day. Suing a sleezy advertiser might be a waste of time. I'd suggest you name as many people and companies in your state as you can. See the fax.com profile for people at fax.com you can sue. I typically ask for $2,500 per fax (unsolicit + ID violation limited to the Calif small claims $2,500 limit). So you can end up with a $25,000 judgment for a few hours worth of effort which is a reasonable return on your time investment. The nice part is you're helping to make the world a better place by reducing the number of junk faxers. See for example, this case against Robert Battaglia .
- Call the junk faxer. Tell them about this website. Tell them about your other victories in small claims or district court (if you have any, this always helps). Offer to settle for $400 per fax if they save you the trouble of taking them to court and suing for a minimum of $500 and a maximum of $1,500. But if the headers are not compliant, then you can, and should ask for more. Please see the Q&A for details on how to get $6,000 per page.
- The greater the number of victories you have in court, the higher the likelihood that a defendant will settle over the phone. Most will not believe you are serious and the more evidence you have that it's cheaper to pay now than pay later, the more likely you will be to get a settlement early.
- In order to sue in small claims court, you must first send them a demand letter. Here is the demand letter Propel uses and the settlement agreement Propel uses and a sample Settlement Agreement that I use personally which you'll want to customize to your situation, e.g. by talking about how you've filed against other junk faxers and collected. If you have a particularly good demand letter, send it to us and we'll post it here.
- I can tell you the demand letter works sometimes. We've settled several cases on the basis of a demand letter (one as high as $10,000) because they know we are serious because we are serious. We have a demonstrated track record of taking people to court who don't settle. We file class actions against these companies so their downside is very high if they don't settle.
- The flakey companies will ignore you because they plan on disappearing before your lawsuit comes to trial. Therefore, it's best to focus your time on those companies that have "staying power."
- Honest companies will settle. Unfortunately, I've found that the vast majority of junk faxers will ignore your letter. so you have to take it to the next step, which is to begin small claims process if applicable (i.e. the blaster or the advertiser is within the same state as you are). Otherwise, skip to to "If you aren't eligible for small claims."
- If you are diligent, you will win. The law is on your side. You may win in small claims if you get a good judge as Robert Fenerty did and as Lawrence Markey got. or you may have to appeal. But if you are persistent, you will win.
- If the sender of the fax (the company that originated the content) is located in your state, you can sue them in small claims. If the fax broadcaster is located in your state, you can sue them in small claims. If you can "catch" them in your state and serve them, you can sue them in small claims.
- You can always sue in small claims. They can't force you to consolidate your claims and force you out of small claims. Conversely, you can't split a claim to get into small claims but that doesn't apply here.
- You can sue them either in your state or their home state (or in federal court if you are in different states and you have >50 faxes).
- If the fax is from out of state, you may still be able to use small claims if you can get the judge to sign the form allowing you to serve your secretary of state (details below). Otherwise, you'll need to file in Superior Court. That means you'll need a lawyer and it can get expensive. Don't do this unless you have at least 10 faxes from the same advertiser and that advertiser has staying power (i.e. you're likely to collect because it is a legitimate business). Otherwise, you'll lose money. Here's a list of attorneys who handle junk fax cases .
Small claims court overview
See California Courts Self-Help Small Claims Small Claims Court Basics for more info or the small claims website for your state. We've also prepared a short document that describes the process: How to Sue in Small Claims Court
In general, here are the steps:
- First, find out whether small claims cases in your state have been successful. They work in California, New Jersey, Maryland, etc.
- Save the original fax. Mark the date it was received if there is no date on the fax already. You can sue for four year from when the fax was received (the TCPA is a federal law and the 4 year federal statute of limitations applies).
- Send a demand letter by certified mail. What's really cool is you can now send a certified letter online without having to go to the post office. Here's the demand letter I use. Here's another junk fax demand letter. And here's another Junk Fax Demand Letter. Keep a copy. You'll need to hand the demand letter and the original fax to the judge when you appear in front of the judge. I sent mine electronically via USPS - NetPost Certified Mail. but you don't have to send it this way. I find out their email address and send it to them. Here's an aggressive junk fax Demand Letter and Settlement agreement .
- In your demand letter, always include a deadline (such as 10 days from receipt) and I'd strongly suggest including a "ready to file" copy of the complaint with the demand letter. You'll be amazed at how much more effective that is. Here is a draft complaint you can modify .
- If you don't get a response within 30 days, file the paperwork with the court. You'll be assigned a court date. In CA, if you're including a count under the state statute (which is not the case for junk faxes), you're required to notify the Defendant via cert mail, return receipt requested a minimum of 30 days prior to filing suit.
- Pay a process server to serve the Defendant the suit you filed. Be sure to allow enough time before your court date; for example, if the Defendant is outside your county, you must allow additional time before the court date
- Show up in court, explain the facts of the case (that you got a fax without your consent), hand the judge the original fax and a copy of the demand letter. Also hand the judge any correspondence between you and the Defendant. It also helps to hand the judge a copy of the "one pager" summary of the law appropriately modified for your case. See also the list below for what to bring to court.
- If the other party doesn't show up, and you get a good judge, you'll get a judgment for $500 or $1,500 on the spot (double that if the headers are not compliant). If the other party shows up, the judge will take the case under submission and mail you his decision within 48 hours.
- The Defendant then has 30 days to pay you. If they don't, you can give it to a collection agency (often this is the same agency you used to serve the Defendant).
- When they pay you, immediately return the judgment form to the court, or you can be fined.
How to get up to $6,000 per page ($2,500/pg in Calif small claims)
- Most junk faxes have two violations: sent unsolicited, and violating the header regulations (see the Q&A for details).
- The law says if the Defendant willfully or knowingly violated the TCPA, the judge may award $1,500 per violation. The "or" is important.
- "knowingly" meant that the act was done voluntarily and intentionally and not because of mistake or accident.
- "willfully" does not require a criminal or other bad motive on the part of the responsible person, but simply a voluntary, conscious and intentional act.
- So the fact that the advertiser entered into an agreement to send faxes which probably had an indemnification clause demonstrates both knowingly and willfully.
- Here are some actual fax.com advertiser contracts and case law on willful and knowingly. In Jobe, the Court of Appeals defined what constitutes 'knowingly'; where in Newsome, the Court of Appeals defined 'willfully'. Both of these cases are from the Fifth Circuit, so they may not specifically apply to the Ninth Circuit. As you can see from the contracts, item 11 places the 'buyer' on notice of the possible legal repercussions of fax broadcasting by the seller, and by implication said notice can be inferred to the 'seller.' The contracts were between different 'buyers' than the indemnity agreement buyer.
Serving your claim
You can use substituted service without due diligence if you are using small claims court.
Here are some notes about substituted service if you can't serve them directly. Note that due diligence is NOT required in small claims. You can sub serve them on your first attempt!
The statute to start with is Cal Code Civ Pro 415.20. The case to start with is Ellard v. Conway (2001) 94 Cal.App.4th 540, 545-547, 114 Cal.Rptr.2d 399, 402-403.
In Ellard, substitute service was proper where a process server first attempted to personally serve defendants at their last known residential address, and, upon learning they no longer lived there, obtained a forwarding address from the U. S. Postal Service.
This amounted to reasonable diligence in attempting personal service thus making substitute service available.
Substitute service at a private/commercial post office box was proper, because that was the forwarding address provided to the Postal Service, thus making it defendants' "usual mailing address,"
Also, the manager of the facility knew the defendants and told the process server they received mail there.
Under the circumstances, it was more likely than not the manager would deliver the summons and complaint, and no facts suggested personal or substituted service was available at any other address or on any other individual.
Thus, CCP § 415.20(b) authorized substitute service on defendants at their private post office box.
Many cases have followed Ellard, most are unpublished California cases. There is a good federal case that followed Ellard. I say good because Ellard itself actually distinguished a federal case that went the other way. The case is Smilde v. Melchner, No. C-00-2687 JCS (N.D. Cal. Feb. 15, 2002). 2002 U.S. Dist. LEXIS 3809, and it discusses the matter at some length.
If I can't get him in three attempts of personal service, Calif law allows me to subserve with a responsible adult and drop a 2nd copy of the suit in U.S. Mail.
Since fax.com people tend to dodge service, it doesn't matter if you get within earshot and throw the papers at them. Here's the scoop:
The well settled rule, supported by a plethora of authority, was succinctly stated by a California intermediate appellate court: "A person may not deny personal service of process on the grounds of lack of delivery where the delivery was deliberately prevented by the action of the person to be served." Hankla v. Governing Board, 46 Cal. App. 3d 644, 655 (1975). In other words, a person may not intentionally "refuse" service of process. Such a person is deemed to have been served.
A great case on this is In re Ball, 2 Cal. App. 2d 578, 38 P.2d 411 (1934). A process server attempted to serve papers on a businessman. The same process server had previously served other papers on this same businessman. The server approached the man, coming within 12 feet of him, and said, "I have here another one of those things for you." The man replied, "You have nothing for me," and began to walk away. "While [the businessman] was moving away in a sidewise manner and looking at the server, the server handed or tossed the process toward [the businessman], it falling a few feet from him, at the same time saying, `Now you are served.' [The businessman] did not pick it up but continued to walk away from the premises." Id. 2 Cal. App. 2d at 579.
The issue before the California appellate court was whether the service of the process was valid. The court held that it was. "We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand." Id.
Your case involves the resident agent of a corporation who allegedly "refuse[d] to accept service of process." A corporate agent's refusal of service was the issue in Khourie, Crew & Jaeger v. Sabek, Inc. 220 Cal. App. 3d 1009 (1990). A California statute permitted service on a corporation by "leaving" the process with the person who is "apparently in charge" of the office, and then by mailing the process to the office. Id. at 1013, citing Cal. Code Civ. Proc. sec. 416.10.
The process server in the case went to the defendant's place of business, but was faced with a locked door. The server rang the bell, and spoke with a woman who refused to give her name and refused to unlock the door. The server "explained his purpose and she stated that she was `not accepting the papers.'" Id. at 1012. The server then told the woman that he was leaving the papers outside of the locked door. He subsequently mailed copies of the papers to the office.
A default judgment was later entered against the defendant, and the issue before the appellate court was whether the corporation had been properly served. The court answered in the affirmative. See id. at 1012-1014. "It is established that a defendant will not be permitted to defeat service by rendering physical service impossible." Id. at 1013, citing In re Ball, supra.
For other California cases on the issue, see Crescendo Corp. v. Shelted, Inc. 267 Cal. App. 2d 209 (1968), and
Sternbeck v. Buck, 148 Cal. App. 2d 829, 835 (1957).
Courts in other jurisdictions have followed this rule in various factual contexts. As the Tenth Circuit stated, "a defendant cannot refuse or avoid service on a technical ground, and then exclaim he has not been correctly served." Nikwei v. Ross School v. Aviation, Inc. 822 F.2d 939, 946 (10th Cir. 1987). In Thomas Organ Co. v. Universal Music Co. 261 So.2d 323 (La. Ct. App. 1972), the court considered a case involving Louisiana's long-arm service statute, which allowed service on an out-of-state defendant by registered or certified mail, or by personal delivery by a commercial courier. The court said that "to allow a defendant to defeat service of process by refusing to accept a registered letter. would make a mockery of R.S. 13:3204 and render it completely ineffective." Id. at 327.
For other cases involving "refusals" to accept service of process, see Reliance Insurance Co. v. Mast Construction Co. 150 F.3d 1278 (10th Cir. 1998); European American Bank v. Abramoff, 608 N.Y.S.2d 233 (N.Y. App. Div. 1994); Patel v. Southern Brokers, Ltd. 289 S.E.2d 642 (S.C. 1982); Cortez Development Co. v. New York Capital Group, Inc. 401 So.2d 1163 (Fla. Dist. Ct. App. 1981); Ahlers v. Ahlers, 384 So.2d 474 (La. Ct. App. 1980); McIntee v. Minnesota Dep't of Public Safety, 279 N.W.2d 817 (Minn. 1979); Howard Avenue Realty Corp. v. McIntosh, 352 So.2d 348 (La. Ct. App. 1977); Merriott v. Whitsell, 476 S.W.2d 230 (Ark. 1972).
Therefore, being "cute" can end up getting someone "burned." Defendants who refuse service of process may find themselves on the receiving ends of default judgments. See Huffer v. Cicero, 667 N.E.2d 1031 (Ohio Ct. App. 1995).
Important tips: it's all about collectability
- Make sure that you only name Defendants that are "collectible", i.e. do some research and make sure the have assets and are not likely to be a flight risk (to another country or just "disappear" or declare bankruptcy)
- Always name at least two Defendants. There are usually many people responsible: the advertiser company, the blaster company, the officers of both companies, the companies and officers of any "middlemen" that have been notified of the violation
- Always name the principals personally. It's a mistake just to name the companies. Companies come and go, but people rarely do. Having the ability to collect against both increases your chance of collectabilility.
- Always file for the maximum $ amount. Due to high filing fees, you should get the max return on investment. For California, the maximum is $2.500 so I always file for 2 faxes on each claim form. I give up $500 potential remedy in doing so, but it means half the paperwork for everyone and maximize the return on investment in your time and minimizes your filing fees in the event it is not collectible.
- Small claims subpoenas can be very powerful in what you can ask people to supply. As long as it is relevant to your case, you can ask for it. If the judge admits it as evidence, you can then give it legally to others to use in their cases. I've asked for phone records, contracts, removal numbers for each advertisement, list of all advertisements, etc. Very powerful.
Preparation for court
To bring with you to court
- Trial brief: Here's a short trial brief you can modify
- TCPA information. Hand this to the judge and/or include it in your filing so he can read it ahead of time. This is the single most important thing you can do. Judges have a lot of cases and the simpler you can make it for the judge the better. This document summaries on a couple of pages the whole story. Keep the facts as short as possible as this document shows.
- The second thing is to bring a judgment from a similar court in your area, if you can find one. For example, for California, you can use this and either file it or bring it to court: Fenerty decision.
- In California, I always bring a copy of the Enrolled Bill Report for §17538.4 makes it quite clear that the original California law was enacted to be a stopgap protection until federal law takes effect (see page 2 of the report). I also bring a copy of Kaufman v. ACS Systems (July 22, 2003, B155804) _Cal.App.4th which confirms that California courts have determined that opt into the TCPA is not required and junk fax suits are legal in California. A copy of AB 2944 may also be helpful which shows the repeal of the California law in September 2002 paving the way for the federal law to apply.
Small claims process
- First of all, people have won in small claims court. But you have to be serious about pursuing what you're entitled to. Here's the small claims court judgment from Robert Fenerty's case. The defendants appealed the decision to higher court, but they settled with him out of court, right before the case was going to go to trial. Lawrence Markey won his small claims case against IDC Solutions (a fax.com advertiser), and Markey also won on appeal .
- In California, you must send a demand letter (doesn't have to be return receipt), and you must give the Defendant a "reasonable time" to respond, e.g. 10 days is more than reasonable before you file your claim.
- You must file in the proper courthouse (the nearest to where you live). So even if there are 2 courthouses in Santa Clara County, you have to go to the right one.
- There are typically at least 2 judges who do small claims and there might be a judge on call if you don't want your case heard by the judge pro tem.
- If you can't serve all the Defendants in time on a given claim, you can drop the D's you couldn't serve when you appear in court.
- Check the rules for your state. In California for example, the defendant must be served in California (see the next paragraph). Otherwise, you'll have to sue in Superior Court. Secondly, in California, you're limited to the number of suits you can file per year over $2,500. So if you keep your claims under this and you can file as often as you like against the same defendant. sue them one or two faxes per complaint (and ask for $2,500 if you have two faxes). You can file up to 2 claims per year up to $5,000. The filing fee is only $20 (rises to $35 if you file a lot per year). See California Courts Self-Help Small Claims Small Claims Court Basics for more info.
- Even if the company is located out of state, if they do business in the state (which you can verify by calling them and asking them if they'll take your money), you can sue the company using a special form that you need to get your local judge to sign to serve your own secretary of state who then will serve the defendant. Here's the form used by Orange County to serve out of state defendants. To get the form in Santa Clara County, I had to call the Los Gatos small claims advisor (it isn't on the web!) to fax it to me. The whole trick here is getting the judge to sign it. The law covering this is CA Codes Corp 2111
- Be sure to serve the Defendant at least 20 days before the hearing (15 if in the same county).
- If you lived in San Diego, you were probably out of luck in small claims court. All the judges have decided that they will throw out any junk fax cases by reasoning the California law (CA Business & Professional Code 17538.4 ) "opts out" of the TCPA. Of course, this isn't true. I spoke with the author of that law (Richard Katz) and he had no clue there was a TCPA. He never intended to make it easier for people to junk fax in California. So much for judges interpreting the letter and/or intent of the law. So you have to sue in Superior Court and appeal it to find a judge who knows how to interpret the law. However, now that we have the appellate court decision, everything is clear
- All proceedings are informal, including the appeal. Rules of evidence apply: it must be admissible (no hearsay, nothing stolen, etc) and it must be relevant to be admitted into the proceeding. Evidence that is accepted by a judge, and not put under seal, is part of the court record and thus publicly available for use in other cases. Actually, the exhibits are returned to the parties, so the evidence is not kept by the court and there is no transcript unless a court reporter is there, which is usually not the case. You normally get a copy of this when you walk out of the courtroom since both sides are required to give copies of the evidence to the other side.
- However, even though you are free to use the information that was admitted, be careful HOW you use it. For example, if you have a debtor's exam and get a list of someone's assets and bank account information, and you then post that information to a website (or cause it to be posted), then you can be liable for invasion of their privacy. If you post someone's home address and phone and then tell all your friends "this is where you can find the guy whose been faxing you," then you can be liable. If you send an email saying "go after this guy", you can be liable. But you can tell people you know of your success. You can post information that tells people how to sue junk faxers. But you can't tell people "you should go sue this particular person and here's how."
- Be sure to focus first on establishing the facts, then talking about the law. In a bench trial, such as small claims, the judges decides on facts and law. If you went to Superior Court and had a jury trial, it is separated out: juries decide on the facts, the judge decides on the law.
- One disadvantage to starting in small claims is that if you lose in small claims court, you may not appeal. But the defendant loses, he can appeal. Also, the judgments can be simple one liners like "the defendant doesn't owe you any money" or it can be an multi-page, well written decision as with Robert Fenerty's case .
- If you reach a settlement outside the courtroom, come back in and tell the judge. They'll record it in case the other party doesn't pay.
- See How to Use a Federal Law to Make Junk Faxers Pay You. Make no mistake. If you choose to pursue junk fax cases, they will definitely consume some of your time. And the settlements and judgments you get will only recompense you for your time (although you can add on your collection costs). This is not a money-making venture. Those who do it, do it for principle, somewhat like the Minutemen, who shed their blood so others could be free. See also Small Claims Court Enforcement of Federal Unsolicited Fax Law .
- Follow the process for your state. If you live in California, here are three really useful links:
For more details see the contributed article "How To Sue in Small Claims Court ". In general the process will be something like:
- Download small claims complaint form
- Fill out and file at courthouse
- Serve the defendant and make sure proof of service is sent to the court before your hearing
- You are notified of court date.
- Come to see what happens before your date to familiarize yourself with what to expect
- Appear on court date. Use the script provided below (bring the fax and any backup documents such as the Q&A if needed)
- When you win, see How to Collect On a Claim
- If the defendant appeals, you'll get a date in superior court. It's just like small claims. You don't need a lawyer. Chances are good the judge will re-affirm the original judgment, but you'll have to argue your case all over from scratch.
An innovative way to always get paid
The judge is unlikely to give you treble remedy if you are suing a "poor advertiser" for the first time (even though he could). So suggest to the judge to award you the minimum $500 per violation x 2 violations (header and unsolicited)=$1,000 if the Defendant pays in 30 days; otherwise, the judgment is for $3,000.
Advice on filling out forms
For your claims, you fill them out, file with the clerk, and you get back a service copy and your copy; the court keeps the original. When you serve it, you send in the original proof of service.
For subpoenas, it's different! You need to bring in 3 copies to the clerk. They stamp one as the original, the other 2 are stamped as copies; one for you, one for the subpoenaed party. They give you all three copies back! You serve one of the copies. Then you return the proof of service with the original subpoena back to the court.
For filing for changes, make sure you use one form per case number. File the signed originals with the court.
You are required to show the other side anything you'll give to the judge. But you are not required to give them a copy of the evidence you submit to the judge. So don't. Keep a copy for yourself, and a copy for the judge.
With subpoenas, you can legally get only stuff that is admissible, and not overly broad or burdensome. This applies both ways (since the D may use a subpoena against you).
To be admissible, evidence must be relevant, Fed. R. Evid. 402, with relevance defined as "the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401.
If you subpoena a witness, you'll have to pay a fee. I just subpoena documents and don't require them to appear. My subpoenas are pretty broad and I've gotten them signed off by the clerk. You should only ask for stuff that is relevant. Don't go overly broad or burdensome or they can legitimately object.
The big advantage of a subpoena is that as long as the judge allows it as evidence, that information can then be used for other cases legally since it is admitted into evidence.
At the hearing, be sure to ask for a copy (or the "copy" brought by the Defendant), or that the court hold the evidence in the court file so you can go back and get a copy. They will charge you 50 cents to $1/pg. You're entitled to get a copy of any public record (anything in a court/case file). You can ask to see the contents then ask that you be given copies of specific pages you request. Here's the scoop:
Actually, the Federal Freedom of Information Act will NOT be helpful. And, to boot, even the California Public Records Act (http://snipurl.com/5wt1 ), by which otherwise one would gain access to California agency records, WILL NOT be helpful either (for the courts in California are not "agencies" covered by that act either).
Public policy requires public records and documents to be available for public inspection to prevent secrecy in public affairs. Craemer v. Superior Court (1968) 265 Cal. App. 2d 216, 222, 71 Cal. Rptr. 193. "[W]here there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed." (Ibid.)