I sometimes regret things that only happened in my head, too.

2004-02-10 21:59

We got a letter from the Defendant’s counsel – or rather, Defendant’s insurance company’s counsel. It looked like a pro forma attack on me, probably done to make the client happy. Someone needs to know that the lawyers aren’t afraid to call me names.

I am somewhat surprised and confused by your client’s posture during settlement negotiations, especially since there are no actual damages per his deposition and the transmissions ceased immediately upon your client’s request and before this lawsuit was ever filed. My suspicions that he never was interested in resolving this case on an equitable basis are heigtened [sic] when given his initial demand was $35,000 and I told you that that was a non-starter, and then when we spoke again today he nearly doubled the demand to $60,500 and then minutes later reduced it back down to $30,000 along with my client’s consent to a permanent injunction. As I explained to you in our conversation this afternoon, given the faxes ceased immediately upon your client’s request and before this lawsuit was ever filed, that issue was moot and there is no legal basis for injunctive relief concerning possible future conduct.

I regret your client never had an honest desire to resolve this matter on an equitable basis and on the facts of the case.

Well, Mr. Quinlivan, I generally reserve my regrets for the way the world is, not the way it isn’t. I have had “an honest desire to resolve this matter on an equitable basis and on the facts of the case” since long before I ever talked to anyone at CaDan, and I still have such a desire.

What I don’t have is a desire to help a dishonest company wash its lists of a few people capable of sticking up for their rights, and continue engaging in unlawful junk faxing of other users, despite their clear awareness of the prohibition on this behavior.

The fact is, I was always willing to consider a settlement for as little as half of the statutory damages. What has changed is my understanding of what the statutory damages are; when I initiated this case, I accepted the conventional wisdom which said that the TCPA imposed penalties of $500 per fax; in fact, it turns out to impose penalties of $500 per advertisement. Since your client sent me 121 advertisements via facsimile, without permission from me, that’s 121 unsolicited advertisements via facsimile, 121 violations of the law, and thus statutory damages of a minimum of $60,500. Given CaDan’s clear demonstration of awareness of the unsolicited nature of their faxes, equitable relief in this case would be $181,500 – the treble damages the law provides for willful and knowing violations. Given their violations of Minnesota law, the relief would also include attorney’s fees. As specified in the statute, it should also involve an injunction.

You seem to have misunderstood the history of the settlement offers. The $35,000 offer stood for many months, before I learned about my misunderstanding of the law. Today, when we discussed settlement, we made the revised offer – the full statutory damages. In the interest of trying to achieve a settlement, I figured I could walk away from half of the statutory damages, to say nothing of attorney’s fees, if it would make your client stop faxing now, rather than in the distant future when we have a final ruling on this case.

What you seem not to understand is that the goal here is to make CaDan stop sending junk faxes. Not just to me; to anyone. As someone who is representing an insurance company, you probably have no idea what it would mean for a case not to be about the money, but this case isn’t about the money; the only relevance of the money is that CaDan is unlikely to stop faxing unless it costs them money. As Jay Nixon, the Attorney General of Missouri, says: “Until the remedies exceed the profits, my sense is they will keep pushing.”

Indeed.

CaDan continues to send unsolicited faxes to people who have not asked for them, as testified by their claim that they continue to regularly send “confirmation request” pages relevant only if some users have not given permission. This flagrant and willful flouting of the law is not “equitable”.

You want it to be about the money? It can be about the money for you, and it can be about the money for Dan Rogers, and as long as it’s about the money for you, then the only way to make the flagrant lawbreaking stop is to collect the whole statutory amount.

For me, it’s not about the money, and never was. Whatever money I get in this case, I’m giving away. I don’t want your client’s dirty money.

I regret your decision to make insulting and false claims about me in your letter. I have always wanted to reach an equitable settlement based on the facts of the case, but I do not believe one to be possible at this time. The attitude expressed in your letter, while unwelcome, clarifies things. It only testifies that the real problem here is that there is no meeting of the minds. I want unlawful behavior stopped; you want to treat this enforcement action as a nuisance lawsuit. I guess we have an understanding. See you in court in the morning!

Peter Seebach

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