Unsolicited Faxes Have a Real Cost to Small Business Owners

By Attorney Gregg Herman
July 10, 2012

There is a case from the Wisconsin Court of Appeals today which does not directly deal with any issue of major interest to me.  But, the underlying issue is one which has been an irritant to me (and, my guess, with a lot of other small business owners as well).

The direct issue is the responsibility of an insurance company to cover a company being sued for advertising.  It is the underlying lawsuit which is near and dear to my heart.

According the case, Isaac Sawyer, d.b.a. A-1 Security Locksmiths sued Atlas Heating and Sheet Metal Works, Inc. for sending an unsolicited “junk” fax advertisement.  The advertisement was printed by A-1 Security’s fax machine, using its paper and its toner.  Sawyer had not given Atlas express invitation or permission to fax advertisements, nor did Sawyer have a business relationship with Atlas. The case continues:

“…Sawyer initiated a class action against Atlas, alleging that Atlas violated the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227,[2] by sending the ‘junk’ fax to his place of business as well as to thousands of others.  Specifically, Sawyer claimed that Atlas was responsible for damages to his physical property because the junk fax consumed paper, toner, and caused general wear and tear to the fax machine.  Sawyer also alleged that Atlas was responsible for damages for personal and advertising injury because the receipt of the unsolicited junk fax violated his right to privacy.

This lawsuit was stayed pending resolution of the insurance coverage issue, which the court of appeals resolved today in favor of Sawyer.

As a small business owner, I say GO SAWYER!  How do I join this lawsuit!  While the costs are so small to me, it is a nuisance to have to use my paper and toner for junk faxes which we throw out.  It is worse than spam email as there is no cost at all, where as for junk faxes there is an incremental cost.  A class action is the perfect way for small costs to coalesce into enough to be worth a lawsuit.

Without professing any expertise into the insurance coverage issue, since the result favors the plaintiff, thank you Court of Appeals!  And good luck Mr. Sawyer on your lawsuit on behalf of small business owners (and maybe large ones too) everywhere!

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.