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New Petition of Certiorari Granted in Civil Case

February 14, 2012

The Supreme Court of Georgia has granted one new petition for certiorari in a civil case in the last two weeks.

S11G1708. A FAST SIGN COMPANY, INC. d/b/a FASTSIGNS v. AMERICAN HOME SERVICES, INC.

This case involves faxed advertisements sent to businesses. In 2003, Fastsigns sued AHS, a construction company, for violations of the Telephone Consumer Protection Act (TCPA) related to the “junk faxes” that were being sent to its Fastsigns’ fax machine. The trial court certified a class consisting of every person to whom AHS sent the particular faxed advertisement received by Fastsigns. The Court of Appeals affirmed the class certification in 2007.

After remand, the case proceeded to the merits of the TCPA claim. After a trial, the court determined that AHS sent 306,000 unsolicited faxes in violation of the TCPA and further found it had done so in willful violation of the statute. The court then awarded $1,500 per fax, or $459 million, to Fastsigns and AHS appealed.

The Court of Appeals (McFadden, Phipps, Andrews) unanimously vacated the trial court’s ruling, finding that even assuming the evidence showed that AHS sent 306,000 faxes, the trial court improperly based its damage calculation on the numbers of faxes “sent” instead of the number “received.” The panel noted that while some courts do not require receipt to award damages, other courts including the Georgia Supreme Court do. Because the damage award was based on sending instead of receiving, the trial court’s judgment was vacated and remanded.

On February 6, 2012, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals err in finding that recovery under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (b) (1) (C) et seq., depends upon proof that an unsolicited advertisement sent by facsimile was actually received by the plaintiffs?

The case has been placed on the May 2012 oral argument calendar.

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