That was unsettling.

2003-08-11 18:50

So, our settlement with Mobile Cellular Unlimited fell through, which is to say, they changed their minds about the compromise agreement we had reached on confidentiality. The agreement was that the existance of a monetary settlement was not confidential, but the amount was. They decided they couldn’t have that, but that means “no settlement”.

Since there’s no longer any agreement, I can now cheerfully point out that $1,500 on seven faxes was a sweetheart deal, and they should have stuck with it – especially because, as we told them before they started fighting it, we since found six more of their faxes, possibly seven, bringing us to at least thirteen faxes from these wonderful folks. Looks like we’re going to trial early next year.

My guess is that the defendant’s lawyer underestimated the importance of confidentiality to his client. Looking at their faxes, it’s pretty clear that it’s a big deal to them; after all, they removed all trace of identifying information from their later faxes, presumably to hide from the complaints. The knowledge that, yes, these people are willing to pay some money is dangerous to them… And now it’s public anyway.

The new faxes are interesting; they’re landscape-formatted faxes saying “DUMP CABLE NOW!”, and if you don’t have the whole set, it’s not immediately obvious who’s being advertised, because the name and address required by Minnesota law are strangely absent. But, if you have earlier ones, it’s pretty easy to see the pattern; a few faxes with full contact info, one with a phone number (but no company name), and then a couple with only an answering service number. Sneaky, sneaky, sneaky. We should have guessed that these people sent faxes without ID on them; in an affadavit, Richard Luzaich testified that:

Any facsimilies sent out with MCU’s name on it satisfied Minnesota law as MCU’s name, address, and telephone number were included on such facsimiles with a statement that any recipient could call to delete their facscimile number.

What he doesn’t say is that they sent a few faxes – we have three, at least – which do not have MCU’s name on them, but which are identifiably MCU faxes. Sneaky! Such faxes aren’t even close to adhering to the Minnesota law, to say nothing of the federal law.

The hearing was interesting. A personal favorite of mine was when the Defendant’s lawyer claimed that his client was a small company which couldn’t afford to pay damages in such a case. According to the deposition of Richard Luzaich, they have 30,000 current customers, and probably have had 100,000 different customers. They spend between $2,000 and $5,000 on each fax run – and we know there were at least 13 such runs. They said that, to be profitable to them, a fax run had to bring them fewer than fifty new customers (as in, the number they needed was not as high as fifty). Well, let’s do the math; that’s no less than $50 in profit per new customer, if it’s making the fax run profitable. And there’s 30,000 current customers out there. It’s pretty hard to imagine that they’re not rolling in money. Indeed, if they weren’t lying in the deposition, it’s pretty clear that, were I awarded the maximum damages allowed by law ($19,500) and reasonable attourney’s fees, the company would still be paying us substantially less than they spent on the junk faxes, and would probably still show a profit on their decision to continue breaking the law long after they were first sued over it.

But hey, let’s all feel really sorry for Mobile Cellular Unlimited, who get to go to trial. The judge is not some conciliation court judge they can bamboozle; it’s a real State Court judge, who will read the law. The world’s smallest violin plays; people who willfully broke a law because they were too greedy to stop may end up with a small profit instead of a big one.

Peter Seebach

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Comments

  1. We have sent out a stipulation to amend the complaint in this case to allege MCU has violated the law with six additional faxes we found in the big ol' box where seebs' huge collection of faxes resides when not in litigation. Under the rules of civil procedure, you either need to have the written consent of the other side or the permission of the judge to change (amend) your complaint.

    Somehow, I think we will be back in front of Judge Leung to ask permission to amend.

    — seebs_lawyer · 2003-08-16 19:57 · #

 
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