Thursday, June 11, 2009

Attorney Newsletters and Liability for Unwanted Faxes

The Telephone Consumer Protection Act (TCPA)(47 U.S.C. § 227) prohibits the use of "any telephone facsimile unsolicited advertisement." The statute also creates a private right of action by the recipient of an "unsolicited advertisement."

The New York Court of Appeals ruled today that a newsletter or "informational message" from an attorney is not an unsolicited advertisement under TCPA. The fact that the attorney may be using the informational message to impress others with his legal expertise to gain referrals, does not turn this "incidental advertisement" into an unsolicited advertisement under the statute. Stern v. Bluestone.

Over a 16-month period, attorney Bluestone sent to attorney Stern 14 faxes entitled "Attorney Malpractice Report." Each fax consisted of a short essay on topics related to attorney malpractice, such as fee disputes with clients, common causes of attorney malpractice litigation, and the legal elements of attorney malpractice. Each fax contained contact information for Bluestone.

Taking guidance from a Federal Communications Commission explanation of what is an "unsolicited advertisement" under TCPA, the Court of Appeals concluded that Bluestone's faxes are not unsolicited advertisements because their purpose was informational: the faxes provided information about attorney malpractice, the substantive content varied from fax to fax, and the faxes did not promote a commercial product. The fact that Bluestone was implicitly promoting his expertise to other lawyers, did not convert the entire fax into an advertisement for which Bluestone could be liable under TCPA.

1 comment:

  1. Norman, what I find particularly remarkable is that the plaintiff bothered to sue Bluestone.

    An unwritten part of the case is that this plaintiff-attorney must have had a long-standing problem or rivalry with Bluestone. Otherwise, why proceed with this case?

    Bluestone's faxes were a minor annoyance. I used to receive them along with other unsolicited faxes, such as cheap health insurance, stock tips, etc.

    On a practical note, Bluestone has probably paid the equivalent of the damages which were awarded (and reversed) through attorneys' fees, appellate printing costs, lost time, and agita.