The ABA Journal recently reported in Holtzman vs Turza, that Illinois CPA Ira Holtzman brought a class action suit against Illinois attorney Gregory P Turza for violating the Federal Telephone Consumer Protection Act (FTCPA) almost a decade ago. 8,430 unsolicited faxes were sent to accountants without an ‘opt-out’ provision. The US District Court awarded statutory damages of $500 per fax that contained a ‘Superman’ references and were headed with the title ‘Daily Plan-it’. At $500 per fax this amounted to an award of over $4.2 million to be paid $333 for per each fax sent to an accountant and $167 to class action plaintiff attorneys.
The faxes were prepared by a marketing firm and dispatched to accountants deemed potential clients by Turza. According to District Court Judge Easterbrook “The faxes bear the masthead The ‘Daily Plan-It,’ but they were not produced by Perry White’s editorial staff and came every other week rather than daily.” The dispatches “produced more business—but not for Turza,”
On the 1st appeal, Turza contended that the faxes were not advertisements since only about 25 percent of the content alerted clients to the availability of his services, and it was incidental to the business advice. The 7th Circuit disagreed.
But the 7th Circuit did disagree with the District Judge trying to give any residue monies to the Legal Assistance Foundation. Because of this the court vacated the remedial order.
But on the 2nd and 3rd appeal the 7th Circuit affirmed the lower court’s decisions. By the 3rd appeal the 7th Circuit basically stated ‘get on with it’ or ‘get er done’.