At least I got some writing done.

2003-12-10 23:43

Today was our “settlement hearing” in Seebach v. MCU. That’s the event where the lawyers go head to head in an iron cage, trying to find a number they can both live with.

As you will remember, we already got summary judgment on liability. That means we will get, as a matter of law, $500 per ad, plus attorney’s fees. Even if my lawyer gets stiffed pretty badly, that’s gonna end up being a fair sum; there’s pretty much no way to get it under $10,000.

So, today’s event is a settlement hearing. We all show up, both counsel and parties (that means “the person suing, the people sued, and everyone’s lawyers”), we negotiate, we resolve the case. That’s what’s supposed to happen.

What actually happens? Defense counsel shows up late, wearing ordinary clothes, not, say, a suit. (It’s one thing for me to be wearing regular clothes, but lawyers are supposed to maintain professional appearances when showing up in front of a judge.) Defendant doesn’t show up at all. Lawyers are called back into chambers. In chambers, they discuss things. Defendant would like to settle for $2,000. That’s $2,000, as in, one fifth of the minimum number that’s on the table if we go to trial. It is clarified that, yes indeedy, the $6,500 is not under dispute, and the attorney’s fees (if reasonable) are going to happen.

Defendant goes to call his client. He comes back with a new offer. $4,000. That’s right, it’s still less than the minimum legal award. Much whining ensues; despite their 30,000 customers, and despite their statements showing that they’ve made a profit of close to $30,000 (and probably more) on junk faxing, they are threatening to declare bankruptcy! Luckily, in the cell phone business, they have a long-term revenue stream from the companies whose contracts they’ve sold; if they go belly up, all their bills will get paid out of that money.

During the entire time, of course, I’m sitting in the court room, cooling my heels. I wrote a couple paragraphs for the Cranky User book, which is still being revised and worked on. Mostly, I just waited. Why was the Defendant out doing stuff, while I was sitting in a courtroom being bored? I think this can be summarized simply. MCU’s Richard Luzaich, after being sued for violating this law in March of 2002, continued sending faxes for the rest of the year. By contrast, I don’t even jaywalk. One of these people thinks that a legal system is a basically sound idea; the other thinks it’s a nuisance.

This is the real argument for the treble damages for willful or knowing. It’s willful, it’s knowing, it’s even intentional. This guy doesn’t think the law applies to him. After being told that he will pay the $500/ad the law provides for, he makes not one, but two offers below that number. The first offer was an insult to me; the second was an insult to the judge.

Well, we’ll see what happens in March. I can guess already; we get to make our presentation on the nature of the law, and the nature of willful or knowing violations. In the end, MCU pays money. If there’s any extra damages for willful or knowing violations, it goes straight to a charity; probably Mercy Corps, although the local food shelf has been desperately short for a couple of years.

MCU could pay now. They could pay their dues honestly, and people who are starving would eat.

What’s interesting is that they almost certainly don’t believe that. We’ve told them, but I don’t think it’s occurred to them yet that we might be telling the truth. If we get any W&K damages, I’ll send them a photocopy of the cancelled check to charity. I suspect that this will simply be incomprehensible to them.

Peter Seebach

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