Man fights back in court against bulk faxes

By The Associated Press

10.20.02

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WORCESTER, Mass. — Saying consumers need to fight back against unwanted advertising faxes, a former Shrewsbury man has filed a lawsuit against a mortgage company claiming it violated a 1991 federal law against such intrusions.

Thomas Mulhern is seeking class-action status for his suit, filed on Oct. 16 in Worcester Superior Court. Mulhern, who operated a software business out of his home, claims ABC Mortgage Co. sent him at least 14 unwanted faxes after he sent the company a certified letter asking it to stop.

"The average person might think, 'Big deal, what are they really doing to you, sending a couple of faxes?"' Mulhern, 35, who now lives in Los Angeles, told the Telegram & Gazette in Worcester.

"When you get several businesses doing it to you every day and you start to run out of paper and toner and you're trying to run a small business it gets pretty disruptive," he said. "And it's illegal."

John Macleod Jr., president of ABC Mortgage Co., did not return a telephone message to his Braintree office on Oct. 17. Tom Keville, manager of the company's Brookfield office, said Macleod was the only company official who could comment.

Lawyers for Mulhern said they believed the case was the first to be brought in Massachusetts under the federal law. The statute, which requires individuals to bring suit in state courts and state attorneys general to sue in federal court, has had mixed results.

It has been used in Texas and other states to win hefty class-action judgments against bulk faxers. However, a federal judge in Missouri ruled, in a case now under appeal, that unsolicited fax ads amount to constitutionally protected free speech.

"Sometimes these things are dormant for a while and then people catch on to what they can do," Edward Broderick, a Brookline lawyer for Mulhern, said on Oct. 17. "You have to be really fed up to sue."

Matthew McCue of Worcester, who also represents Mulhern, called the issue a classic one for class-action consumer litigation.

"These companies fight back very aggressively and force litigation that incurs costs," McCue said. "For an individual that is difficult, but when you can aggregate a number of small claims into one mass, consumers can obtain more leverage."

A Massachusetts law, which takes effect in January, will provide additional protections for consumers by allowing them to place their names and numbers on a "Do Not Call" list that telemarketers will be required to buy. However, he said, unsolicited faxes "are already illegal."

A problem with such faxes is the recipients have to pay in ink, time and paper, he said.

"It's similar to the postman showing up at your door with a pile of junk mail and saying, '$2.50 please,' " McCue said. "And why do we tolerate it?"