California status report
FTCR v. Fax.com
IN A TRIAL HELD ON Jan. 28, 2002 in FTCR's case against
FAXertise, operated as a dba by an individual who offers blast fax services for
businesses in the L.A. Area, the judge ordered the case stayed pending the
outcome of the appeal in Kaufman v. ACS.
FAXertise has claimed that it complies with the former
CA junk fax law and is hoping that the federal law will ultimately be found
unconstitutional in some of the cases on appeal. Oral arguments were heard in
those cases on May 21, 2003 and a decision is expected within 90 days.
FTCR is currently researching other potential cases to bring on behalf of the
public because of the myriad of complaints it continues to receive from
consumers besieged by junk faxes.
For more information about FTCR's work to fight junk
faxing and other privacy abuses, visit its website at
Specialist at The
Foundation for Taxpayer and Consumer Rights.
(310) 392-0522 x307
* Unsolicited Advertisements/Fax Machines - AB 2944 (Kehoe, D-San Diego)
- AB 2944 reinforces a federal law banning unwanted ads over fax machines.
This measure protects consumers from the unwanted expense and inconvenience
of receiving unsolicited advertisements over their fax machines.
AB2944 Deleted existing state law regarding sending unsolicated
faxes under certain conditions.
California Attorney General
AB 839 (Assemblymember Alan Lowenthal)
Seeks to remove the California fax wording. A great bill. AB 839 (Lowenthal)
attempts to create a new junk fax ban in California law, which is modeled on the
federal law. The bill creates a new private right of action and penalties on top
of the remedies available under the federal ban. The measure passed the Assembly
and was heard twice in the Senate Business & Professions Committee before
the committee voted to put hostile amendments in the bill. According to the
analysis dated August 21, 2001, the bill was opposed by Fax.com, who argued that
the federal law was unconstitutional and that the federal law did not preempt
state law. The opposition also argued that the Legislature should not act since
the federal law is being challenged in court [State
of Missouri v. Fax.com, Inc. and a Los Angeles Superior Court case]
The Senate Business & Professions Committee put hostile amendments into the
bill to gut it and propose a statewide "do not fax" list. AB 839 may
be taken up again before the Legislature adjourns on August 31, 2002. I have a
call into the head of that Committee about this.
See AB 839 (Lowenthal) Senate analysis
Senator Bowen will likely introduce a bill to repeal California's opt-out
junk fax law in order to allow the federal ban on junk faxes -- and the remedies
it provides -- to be effective in California. Last year the Legislature
considered but did not pass AB 839 (Lowenthal) which attempted to repeal CA junk
fax law AND ALSO create a new junk fax ban in California law similar to the
Kevin Fong, General Partner, Mayfield Fund
Bill McKiernan, Chairman and CEO, Cybersource
Sign me up. I spent a week in hell because these clowns were calling my home
voice line multiple times after midnight trying to fax me junk!
Peter Hero, CEO, Community Foundation of Silicon Valley
Tony Ridder, CEO, Knight Ridder
Gary Lauder, General Partner, Lauder Partners
H. Dubose Montgomery, General Partner, Menlo Ventures
Dave Marquardt, General Partner, August Capital
Rod Diridon, Executive Director, Mineta Transportation Institute
You bet! What a pain in the ... elbow! Go get em. Let's save a forest!
Harry Motro, General Partner, Motro Ventures
Kim Polese, Chairman, Marimba Inc.
Steve Perlman, CEO, Moxi Digital
Ray Abuzayyad, General Partner, Ignite
May carry fax.com DNC bill
Assemblyman Joe Nation
AB 1856 extends fax provisions in existing law to US mail, but doesn't fix the
existing wording to be in compliance with federal law.
Kaufman vs. ACS (Southern Calif)
Scott Zimmerman filed earlier junk fax case. Got consolidated/joined to fax.com
amkraudt case which made things harder since fax.com brought in better
attorney's and it slowed the case down. Case was stalled based on California's
"opt out" law in Superior Court. Now on appeal. Scott is an A+ lawyer.
310 282 8997
Amkraut v. Pacific Coast Office Products (Southern Calif)
Case that was recently ruled on in the LA Superior Court. The court
found that while federal law is constitutional and pre-empts the
state's opt-out law, because CA has an opt-out junk fax law, we've
"opted out" of the remedies (including private right of
action) under the federal ban. The case is being joined with
Zimmerman's case and appealed.
Jamie R. Schloss (attorney representing Amkraut)
Class action in Los Angeles (not sure of case name)
Kevin is getting all the fax.com "permission slips" documented and
frozen so that they can't manufacture new evidence.
Kevin M. Tripi
1920 Main St. Suite 1000
Irvine, CA 92614
+1 (949) 833-9112
Fax: (949) 756-0596
Class action in Northern California
Lieff Cabraser is the top consumer class action law firm in California. They
are taking this case against the major blasters and major clients of the
blasters on a contingency basis representing me personally, as well
as several other prominent plaintiffs (universities). Seeking billions for the
remedy. SJ is studying, john shupe deanza is waiting for lawyer.Sfpublaw@aol.com
Heimann & Bernstein
275 Battery St #3000
San Francisco, CA 94111
Phone: (415)956-1000 x268
Small class actions in Northern California
Timothy Walton and Andrew
Pierce, Pierce& Shearer LLP
Walton recently won a unanimous California
state Appeals Court ruling that California can require Internet "spammers"
to identify their e-mails as advertisements. They are filing class actions
against companies that send unsolicited faxes to my work.
The opposition also argued
> that the Legislature should not act since the federal law is being
> challenged in court [State of Missouri v. Fax.com, Inc. and a Los Angeles
> Superior Court case].
I'm writing off-list to the people that replied to this strand only because
I don't want to reveal too much to any moles on the list...
In the LA Superior court cases (Kaufman v ACS, Inc. et al. and Amkraut v.
Pacific Coast Office Products), BC222588, BC240573 and related actions,
Judge Ann Kough ruled that the TCPA is constitutional under the 1st A., due
process clause and 8th A., but then went on to rule that there is no private
right of action under the TCPA in CA because "the TCPA requires states to
affirmatively take steps to authorize a private right of action under the
TCPA" and that "California, rather than taking such steps, has enacted
separate and distinct statutory scheme to regulate unsolicited faxes. As
such, there is no private right of action under the TCPA in California, B&P
17538.4 is not preempted by the TCPA, and § 17538.4 is controlling law on
unsolicited fax advertising in the State of California." (Amended Statement
of Decision Re: Motions for Summary Judgment/Adjudication and Demurrers,
Dec. 12, 2001.)
Judge Kough noted that the courts have decided the issue of whether a state
must enact "enabling legislation" both ways, but then only cites two
cases--Autoflex (for her position) and Schulman v. Chase Manhattan Bank
(against her position). She then incorrectly interpreted Murphey v. Lanier
as holding that "while holding that private rights of action can be brought
only in state courts," that the court there also "noted that a person
receives an unsolicited fax advertisement in CA probably has no private
right of action under the TCPA because of the existence of B&P
These cases are of course being appealed, but defendants in another LA
Superior court case (mine) are using this decision to argue that the TCPA
does not prohibit junk faxing if the state law allows it. Trial is
I've used the preemption argument, cited all the authority that says no
opt-in required, used Mathmaesthetics and Texas v. ABF quotes, etc. in my
trial brief. There is even an Enrolled Bill Report from the Dept. of
Consumer Affairs to the Governor, saying that the original intent of the CA
law was to give Californians some protection until the FCC implemented its
final regs to enforce the TCPA. (which was still in process at the time the
CA law was passed in 1992) The defendants have stipulated to all the facts,
so it is going to come down to this issue--any other suggestions?
Unsolicited fax class action- Home page