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					Kirsch v. Katz et al.                                                               Page 1



Cause of action
This is a complaint for civil penalties for knowing and willful violations of the TCPA.

In each of the cases presented here today, Plaintiff claims Defendant sent Plaintiff one
fax [1] in violation of:
     47 U.S.C. § 227(b)(1)(C): unsolicited advertisement faxed w/o explicit consent
     47 C.F.R. § 68.318(d): fax lacks identification of fax broadcaster (Impact
        Marketing aka fax.com)

47 U.S.C. § 227(b)(3) entitles Plaintiff to a minimum statutory remedy of $500 per page
times the number of violations per page. Since there are 2 violations per page, there is
$1,000 per page minimum remedy required by the statute. However, since Defendants
actions are both knowing and willful, but the statute only requires one (either knowingly
or willfully), Plaintiff is eligible for treble remedy, i.e., $3,000 per page.

Treble remedy should be awarded in this case since Defendants, since first notification by
the FCC in 2000, has continued to ignore federal law, ignore orders by the FCC to cease,
not pay government ordered fines, lie in court, and disobey court orders.

Significance of this case
The significance of this case cannot be overemphasized. This court, if GCC is found
guilty, will set an important precedent (not binding on other courts, but important
nonetheless) in enforcing FCC rulings that common carriers who had knowledge of junk
faxing and failed to prevent the transmissions or displayed a high level of involvement
are liable. This will make it possible to sue GCC for millions of dollars and thus
discourage them from continuing to violate federal law.

Therefore, if GCC is found guilty, this court has an opportunity to enforce the TCPA and
shut down fax.com. This is consistent with the intent of Congress and the FCC and is
something the FCC and the California Attorney General have been trying,
unsuccessfully, to do for years.

Summary of the facts
For more than 2 years, Defendants have sent unsolicited advertisement to Plaintiff on a
regular basis to fax machines associated with Plaintiff’s home phone lines (both voice
and fax lines).

Plaintiff has received hundreds of unsolicited faxes from Defendants, including one that
just came in as this sentence is being written.

This is not surprising when you consider that Defendants pay over $500,000 per month in
phone charges [4 24:6].
Kirsch v. Katz et al.                                                                  Page 2


Today, then send between 3M and 4M illegal faxes each day, which is over 1 billion
faxes a year. If these faxes were stacked on top of each other in one stack of paper, the
size of the stack would be over 60 miles high of illegal junk faxes.

Since their database is over 8 million fax numbers [20 16:25] and now approximately 65
million numbers, that means the average fax machine that is in their database receives
over 15 faxes per year. Based on personal experience of the Plaintiff, the actual numbers
might be 10 times that amount for some people (different areas get different amount of
faxes depending on the customers and their target market area). They are, by a wide
margin, the largest fax spammer in the world.

Nothing seems to be able to deter Defendants from violating the TCPA:
    Letters of violations from the FCC since December 26, 2000 have been ignored
      [7]
    A $5.379M fine by the FCC has been ignored [6]
    Discovery requests by the California Attorney General have been ignored [8]
    Orders to appear at depositions have been ignored [5]
    Court orders to cease have been ignored (Heller v. SOHO Marketing, LLC, case
      03-227-CZ, State of Michigan, Circuit Court for Washtenaw County) [19]
    Demand letters [2,3] on the current lawsuit sent to all Defendants have been
      ignored

In addition, Plaintiff filed the largest class action lawsuit in history against Defendant
Katz [9].

Despite all this, the faxes still keep coming and coming and have increased in frequency.
Kirsch v. Katz et al.                                                                    Page 3



The parties
Plaintiff
Steven Kirsch is an individual who is the CEO of Propel Software and the founder of
several high tech firms including Infoseek, and Frame Technology.

Kirsch has been working on anti-spam technologies at Propel for several years.

After being bombarded with junk fax calls from fax.com on his voice and fax lines at
home since 2000, he did some research and started www.junkfax.org, one of the most
popular junk fax information sites on the Internet in order to help others combat this
illegal practice.

Plaintiff has been trying to stop fax.com for more than 3 years and has filed the largest
class action in history on August 22, 2002 against fax.com, Katz, and certain advertisers
and former suppliers [9]. That has not deterred fax.com from faxing Plaintiff at ever
increasing rates. Plaintiff is filing in small claims court because fax.com has successfully
tied up his litigation in Superior Court for more than 2 years through various delaying
tactics. That case is still waiting for trial. The current litigation is complementary to the
case on file (see below).

Covington & Burling’s case [15] took 2 years and over $500,000 in attorney fees before
it was final!

It is Plaintiff’s right to sue in small claims. In fact, that is the very intent of the TCPA.


Defendants
Kevin Katz is President of fax.com, an officer, and the majority owner [4:15 17,
6,7,10,11].

Eric Matthew Wilson is founder Chief Technology Officer [4,6,11] (now President of
Tech Access Systems, which is just a name change [12] to confuse the courts) and an
officer [10 47:21] and 33% owner [4 15:17].

Charles Rodrick Martin is VP of Compliance (now works for Data Research Systems
[12]) and an officer and 1.7% owner [4 15:17, 11]. He recently had his Private
Investigator license revoked by a judge [22]. The press release [22] from the California
State Department of Consumer Affairs includes statements such as:
     “...for lying and manufacturing evidence in several court cases”
     “In his April 23, 2004 decision, Judge Rosenman found that Martin lied under
        oath or manufactured evidence in a dozen cases brought against Fax.com by other
        businesses.”
Kirsch v. Katz et al.                                                                 Page 4


      Mr. Martin’s actions in defending fax.com, the Judge wrote, “are substantially
       related to the qualifications, functions and duties of a private investigator and his
       performance of those acts included dishonesty, fraud and deceit.”

Jeffrey Dupree is VP Sales and Marketing (now works for Impact Marketing [12]) and an
officer and 3% owner [4 76:21, 4 15:17, 6].

Thomas Robert Roth is VP Finance, and an officer and 5% owner [4 15:15,6,11].

Frank Frappier is a top sales representative for fax.com (now Impact Marketing [12]) [4
77:7].

Impact Marketing Solutions LLC is the new name for fax.com’s sales operation [12].
They are cited, along with other entities, as being “fax.com” in the FCC Order of
Forfeiture [6].


Lighthouse Marketing LLC. Lighthouse is an alter ego for Impact. They share the same
address [29] and are interchangeable. Eric Brenner who is the principal for Lighthouse
answered the complaint for Impact [31 May 7, 2004]. In addition they are cited as being
“fax.com” in the FCC Order of Forfeiture [6].

Tech Access Systems is fax.com’s name for the group headed by Eric Wilson that sends
out the faxes [12]. They are cited as being “fax.com” in the FCC Order of Forfeiture [6].

Data Research System is fax.com’s name for the group headed by Charles Martin that
handles compliance issues [12]. They are cited as being “fax.com” in the FCC Order of
Forfeiture [6].

Global Communications Consulting Corporation (GCCC), a Delaware corporation
headquartered at 25 Kilmer Drive Suite 104, Morganville, NJ 07751, purchases phone
lines from Global Crossing and, since March 2002, has provided the data centers and
telecommunications lines for sending out the faxes [4 24:11, 10 93:6, 13]. Katz lied under
oath when he said he never heard of GCCC [10 93:5] since Plaintiff has seen a GCC
contract with Katz’s signature on it. They have known since the beginning they were
sending out illegal faxes. They also have a high degree of involvement in the faxing
operation.

TO ASK THE DEFENDANTS
Please clarify for the court whether they are successor of fax.com or are completely
independent companies. This is relevant since it has bearing on whether the Class Action
might cover the current action.
Kirsch v. Katz et al.                                                               Page 5



Legal arguments
There are 11 things we need to show to justify our pleas for relief:
    Plaintiff sent a demand letter
    Plaintiff received the faxes and has standing to sue
    Defendants sent the faxes
    Faxes were sent without Plaintiff’s express consent
    the Defendants are jointly and severally liable for these faxes
    each fax contains at least two violations of federal law
    there is no viable defense that hasn’t been tried over and over again
    Defendant’s arguments are without merit
    the subpoenas issued were not overly broad or burdensome and non-compliance is
       grounds for contempt
    Defendants lie under oath and their testimony should be viewed with great
       skepticism
    treble damages are warranted


Plaintiff sent a demand letter
Demand letters sent by Plaintiff are shown in [2]. The main demand letter (March 18,
2004) was mailed to the list of people shown in this exhibit. Most people also received an
e-mail copy of the letter. Attorneys for Defendant have both cited these demand letters to
justify their pleadings [30].

Plaintiff received the faxes and has standing to sue
Plaintiff includes a recent SBC phone bill showing Plaintiff owns all 4 lines where faxes
are received and pays the bills for those lines [24]. Plaintiff also owns the fax machine
which sits in Plaintiff’s home office where the faxes were received. Therefore, there is no
doubt whatsoever that Plaintiff is the receiver of the faxes and has standing to bring this
action.

Defendants sent the faxes
There are more than 30 different ways to determine whether Defendants sent the faxes
[14] including comparison with subpoenaed information [26] and information obtained
by the FCC [27]. Combined, these reasons establish well beyond any reasonable doubt
that Defendants sent the fax in question.

The simplest way to prove that fax.com sent the faxes is to combine multiple pieces of
evidence, e.g., (1) these headers match fax.com, (2) the recordings match fax.com, (3) I
only see 4 different header styles on junk faxes and one of them is fax.com (4) the “type”
of ad matches the types of advertisers fax.com goes after, (5) call trap shows Global
Crossing which is the carrier principally used by fax.com [3], (6) fonts similar, (7)
graphic layout similar, (8) wording similar, (9) the phone number it came in on (voice),
and (10) the sheer volume of ads received (only fax.com has such a large customer base
to be able to afford all the faxing). Most of these can be shown visaully.
Kirsch v. Katz et al.                                                                  Page 6



Therefore, Plaintiff has established well over preponderance that the fax came from
fax.com. The burden is now on the Defendant to prove to the court that it is more likely
than not that some other company sent the faxes, e.g., explain how all of the above could
be true and yet the fax not come from fax.com or produce evidence it came from a
broadcaster not associated in any way with fax.com, e.g., as an agent.


The faxes were sent without Plaintiff’s express consent

Plaintiff has never requested faxes from fax.com. In fact, Plaintiff has gone through
considerable trouble and expense to demonstrate that through the creation of the
junkfax.org website and through filing the largest class action in history. Yet the faxes
from fax.com still keep coming.

The burden is on the Defendants to prove, using means other than forged calls slips [22],
that they had express consent and to explain why they continued to send Plaintiff faxes
after Plaintiff filed the class action 2 years ago.


Defendants are jointly and severally liable for these faxes
Personal liability is extremely well established in TCPA cases. The statute ascribes
liability to the “person” where “person” is broadly defined (see The Law below). Any
officer who either (a) has explicit knowledge of the activity or (b) who is an officer of a
company whose primary purpose is to send out illegal faxes is liable for sending the fax
under the TCPA. In addition, any person(s) involved in sending the fax are also liable.

All Defendants except for Frappier and GCCC have been determined to be personally
liable for sending the faxes by the FCC [6], by the California Attorney General [11],
and/or by the court’s decision in the Covington & Burling case against Katz, Wilson, and
fax.com [15].

In addition, when a corporation incurs debt, one of two things happens:

       1) Bankruptcy
       If a company is upside down like Fax.com (i.e. failed to retain enough
       assets to pay contingent liabilities like the FCC forfeiture), the fiduciary
       responsibility goes to the creditors, not stockholders, and you can pretty
       easily show fraudulent transfers.

       According to the bulk transfer aspects of debt law, when a company is upside
       down -- liabilities exceed assets -- it triggers a host of things, including a fudiciary
       duty to creditors over stockholders. Contingent liabilities, like judgments and
       FCC fines, as well as pending lawsuits count in that equation.

       Fax.com has been upside down for a long time. You can rollback a lot of
Kirsch v. Katz et al.                                                                   Page 7


        things.Once the company is upside down, they can't take out retained profits,
        earnings. distributions, etc. If they do, they become PERSONALLY liable for
        such transfers.

        2) No bankruptcy
        If there is no bankruptcy, and the company simply ceases operations or is
        dissolved, the debts of the company become debts of the stockholders.

We therefore need to know a little bit about the company that sent the fax to determine
who is liable since we may want to amend our complaint (impact, fax.com, lighthouse,
DRS, etc):
    Is Fax.com still an operating corporation or is it bankrupt?
    When did it cease operations?
    How many companies did fax.com “split” into?
    Are Impact, Lighthouse, DRS, TAS, successors and assigns or independent
       entities?
    Consumer Source? Linkpoint Marketing? The Promotions Center, Inc.? QB Easy?
       Inbound America Consumer Services, Inc.? SOHO Marketing? Twingem Inc?
       Martec Consulting Service?
    What are the AKAs for Charles Martin?
    Eddie Rass, Richard Charles?
    Are any of them related? Do they share any employees?
    Who are the current officers of each of these entities?
    who is Richard Charles Lamarre, President of Data Research Systems? Have any
       of you seen him?
    How many people work at each entity today?
    What are their names?
    Who are the current customers of each entity?
    How can we verify that?
    Who would know?
    What is the monthly revenue of fax.com?
    What are the debts of fax.com?
    Who are the shareholders?
    How many of the Defendants in these cases are paid a salary by the specific entity
       fax.com?
    How do you explain the master list [12]?

If they are not bankrupt, then the stockholders are liable. Per Tom Roth’s deposition [4],
Roth owns 5%; Charles Martin 1.7%; Jeff Dupree 3%; Eric Wilson 33%; Kevin Katz: the
rest.

Additionally, liability is also directly established of the officers of the broadcaster if those
officers had direct personal participation in or authorization of the violations. This is true
for all Defendants.
Kirsch v. Katz et al.                                                                    Page 8


Liability is joint and several as has been extremely well established (see State of Texas v.
Am. Blast Fax, Inc, 164 F. Supp. 2d 892, 2001 TCPA Rep. 1198 (W.D.Tex. Aug 17,
2001) (trial judgment and order)).

Frappier is liable for faxes where he was the sales rep on the account. This was
established by Tom Roth’s deposition where he described the process by which a fax was
sent out [4 28:5, 28:21,29:11]. Basically, it starts with the sales rep and goes to the
graphics department before being sent out and the executives rarely get involved in the
details on a particular fax (they just set up the overall systems and run the operation). So
the person within fax.com that causes the fax to be sent is the sales rep. A computer
actually does the faxing. This same information was also verified in the depositions of
Katz [21 22:19, 70:19, 86:16, 126:23] and Wilson [20 44:17].

GCCC has admitted it is a common carrier [31 Letter from Keith Johnson, May 20,
2004], but the exact same liability provisions apply as with fax broadcasters [28]. In order
for them to be liable, we must show that that they violated the provisions of 47 CFR
64.1200(a)(3)(ii) which also applies to common carriers (see below), i.e., we must show
“a high degree of involvement in, or actual notice of, the unlawful activity and fails to
take steps to prevent such facsimile transmissions.”

Although only one count is required to establish liability (EITHER involvement OR
notice), GCCC qualifies on both counts. They had a high degree of involvement in setting
up the illegal faxing operation and knew from the beginning what it was for. The map
[12] shows where they fit in. As problems cropped up due to overloading of phone
circuits, they had a high degree of involvement in working with fax.com to address the
problems. Fax.com let them know many times that they were sending out faxes. The
equipment that GCCC provided for fax.com’s use (as described in the contract with
fax.com [13]) could only be provided if GCCC knew what fax.com was doing.

GCCC’s argument that “common carriers are exempt” is flawed. Common carriers
are NOT exempt from this provision. The FCC ruled that 12 years ago [28], and recently
re-stated the exact same ruling for Cox Communications when they asked for
clarification. This was already brought to GCC’s attention [31 March 26, 2004 email].

The FCC clarification was published in the Federal Register on July 25, 2003 (Volume
68, Number 143), Page 44143-44179 [28]:

       139. Some commenters ask the Commission to clarify the extent of common carriers’
       liability for the transmission of unsolicited faxes. Cox specifically urges the Commission
       to distinguish the obligations of fax broadcasters from ‘‘traditional common carriers.’’
       As noted above, the Commission has stated that ‘‘[i]n the absence of ‘a high degree of
       involvement or actual notice of an illegal use and failure to take steps to prevent such
       transmissions,’ common carriers will not be held liable for the transmission of a
       prohibited facsimile message.’’ 1992 TCPA Order, 7 FCC Rcd at 8780, para. 54
       (quoting Use of Common Carriers, 2 FCC Rcd 2819, 2820 (1987)). We reiterate here
       that if a common carrier is merely providing the network over which a subscriber (a
       fax broadcaster or other individual, business, or entity) sends an unsolicited facsimile
       message, that common carrier will not be liable for the facsimile.
Kirsch v. Katz et al.                                                             Page 9



GCCC is liable since they actually transmit the majority of faxes for fax.com as Roth
admitted in his deposition [4 24:11]. That GCCC is liable is confirmed by many other
ways, all of which are consistent with Roth’s admission.

GCCC has never claimed it didn’t do business with fax.com. Why not? We would like
them to answer now, under oath, the following questions:
    When did you first do business with fax.com (using the broad definition of
       “fax.com” in the second subpoena)?
    When did you first become aware that fax.com was sending faxes using
       telecommunications equipment and services provided by your company?
    When did you first become aware that fax.com was in the business of sending
       unsolicited advertisements (as defined in the TCPA) via fax?
    When did you first become aware that fax.com might be sending illegal
       unsolicited faxes using telecommunications equipment and services provided by
       your company? Where did that happen?
    When did you first become aware that this was illegal and that fax.com had lost
       cases in court?
    What steps did you take to stop the transmissions when you first found out it was
       illegal?
    What steps did you take to verify that illegal transmissions were taking place after
       you were notified by the Plaintiff?
    What steps did you take to stop the transmissions after you were notified by the
       Plaintiff?
    Are you still doing business with fax.com today?
    Do you think what you are doing is illegal? In light of the specific language from
       the FCC presented to you by the Plaintiff, that if you have a high level of
       involvement or actual notice and failed to take action, how would you respond to
       that?
    Why are you doing all the name changes you are doing now?

In order for them to be not liable, they would also have to explain to the court’s
satisfaction all of the items below:
     Why all the transfers on the map [12] from phony company to phony company to
        send a fax?
     Why all the subterfuge: companies that don’t exist (Everglades), companies that
        were set up to conceal (US Mail)? Why was US Mail set up in Florida rather than
        in Maryland where AMI was located? Why aren’t there any officers of US Mail?
        What was its purpose? Are there any meetings or minutes? This alone makes it
        clear that they knew on day 1 that what they were doing was illegal because
        they took steps to hide their identities and addresses by setting up all these
        entities to mask their trail. And GCCC absolutely knew the entities were
        fraudulent because they required Garson as well as fax.com as a guarantor.
     Why doesn’t US Voice Mail and Fax Corporation indicate where they are really
        located and who is involved? [29]
Kirsch v. Katz et al.                                                             Page 10


      Why doesn’t Everglade Enterprises exist in Pennsylvania? Compare the Hosting
       Service Agreement contract stating it’s a Pennsylvania Corporation with a
       Pennsylvania address of fax.com’s attorney [13] with the corporate records search
       showing no such corporation exists [29].
      Why did Garry Anzaroot deny knowing Katz, Garson, and GCCC when directly
       questioned by the Plaintiff in a phone conversation in March 2004? If he didn’t
       know what he was doing was illegal, why did he lie?
      If GCCC wasn’t liable, then why did Katz lie under oath about knowing them?
       [10 93:5].
      GCCC recently threatened all their employees with immediate termination if they
       talked to me. That is an extraordinary step for any company to take. It is doubly
       extraordinary since the claims asserted against them are for less than
       $50,000.Why would they do that if they thought what they are doing is
       perfectly legal?
      GCCC did not just supply telecommunication services. They run the data centers
       where the faxing took place from!
      GCCC ratified the illegal actions by refusing to take any actions to stop the
       transmissions when Plaintiff notified them [2]. Ratification is the affirmance by a
       person of a prior act which did not bind him but which was done, or professedly
       done on his account, whereby the act, as to some or all persons, is given effect as
       if originally done by him. Ratification may be express or implied, and affirmance
       may be inferred from the failure to repudiate an unauthorized act, from inaction.
       "An affirmance of an unauthorized transaction can be inferred from a failure to
       repudiate it."
      GCCC’s lawyer threatened in a letter to sue Plaintiff for tortuous interference [17]
       when Plaintiff confronted them with the illegal faxing [2]. They can’t do that if
       they aren’t knowingly illegally faxing for fax.com since there would be no
       grounds since Plaintiff only asked them to stop the illegal faxing by fax.com.
      Plaintiff has testimony from two witnesses with direct knowledge that GCCC
       has been KNOWINGLY sending virtually all of fax.com’s faxes since March
       2002. However, both witnesses will not come forward publicly for different
       reasons at this time.
      Katz, in a deposition under oath with a court reporter present, couldn’t remember
       where he worked or who the officers of fax.com are, but did remember that knew
       and did business with Michael Franklin, CEO of GCCC!
      I have a copy of the contracts prepared by Garry Anzaroot between Garson and
       US Mail and between US Mail and GCCC [13]
      Anzaroot denies knowing Katz and fax.com despite their names being on a
       contract he produced and despite being named on the removal phone numbers of
       fax.com. If he had nothing to hide, why would he lie?
      The GCCC contract describes equipment that is consistent with a large scale
       faxing operation
      An expert affirmed to Plaintiff that you can’t do this stuff (1M faxes a day)
       without a high degree of involvement by the company supplying the phone lines
      GCCC has the locations needed for fax.com (multi-state)
      GCCC has the expertise
Kirsch v. Katz et al.                                                            Page 11


      GCCC has the relationships with the carriers
      GCCC never denied they were faxing for fax.com in either phone or email
       conversations with me. Why would they not do that since to not deny it could set
       them up for a lawsuit.
      GCCC never denied the business relationship with fax.com, US mail verbally or
       in the letter
      GCCC never denied the contracts I had existed.
      GCCC would never enter into a $500K/mo deal with a company with no assets.
       They knew in the beginning that US Mail was a sham. That’s why they had the
       Guarantor clause directly with fax.com.
      No honest company would see a guarantee for a $500K/mo debt from a company
       that doesn’t exist (Everglades). How do they explain that?
      “fax.com” was explicitly listed on the contract GCCC signed so they couldn’t not
       know who they were dealing with.
      GCCC never threatened to sue me for libel or defamation, even though I cc’ed the
       FCC enforcement bureau and others on the emails. They can’t sue me for things
       that are true.
      There are documents from an “inside source” that are available to the court under
       seal that affirm all of this.

GCCC transmits the bulk of the faxes for fax.com. Fax.com doesn’t track which phone
numbers they sent the faxes to [20 47:17, 20 48:5, 21 73:23, 21 80:11], they can’t tell
which system the fax was sent (remote or centralized) [20 64:7, 21 119:21], there is no
way that they can tell whether a fax was sent to a particular number [20 65:25].

Finally, we have one affidavit submitted UNDER SEAL that supports the following
claims:
     By Feb 2003, fax.com was doing over $400K/month with GCC (p. 5)
     In 2003, GCC sent 3M to 5M faxes/mo for fax.com (p.8)
     On or about October 2002, in a meeting at fax.com’s headquarters, GCC received
        actual notice of the junk faxes. Kevin Katz made it crystal clear to certain GCC
        officers (including Michael Franklin) that fax.com was sending out junk faxes (p.
        4).
     GCC who made no efforts at all to halt the illegal transmissions. Instead they
        focused on ways of helping fax.com send out illegal faxes. (p. 5)
     GCC displayed a high level of involvement in helping fax.com send out illegal
        faxes (p. 9)

These claims are critical because they prove:
    GCC is liable because they had a high level of involvement
    GCC is liable because they had actual notice and failed to stop the transmissions
    Defendant most likely received his faxes from GCC since most of the faxes from
       fax.com are sent using GCCC via telecommunications lines from Global Crossing
       since per Roth’s deposition in January 2003 fax.com paid $500K in phone
       charges and GCC was over $400K of that. Furthermore, the 5M/mo figure is close
Kirsch v. Katz et al.                                                               Page 12


       to the 8M/mo that fax.com is reportedly doing today. Therefore, if Plaintiff got a
       fax, the chances are >80% it came from GCC. Therefore, the burden is now on
       GCC to produce evidence that the fax did not come from GCC which they cannot
       do since they do not have the phone records on that day and because Eric Wilson,
       fax.com’s co-founder and CTO testified under oath in March 5, 2002 [20] that he
       cannot tell where a fax was sent from:
           o they don’t track which phone numbers they sent the faxes to [47:17, 48:5]
           o they can’t tell which system the fax was sent (remote or centralized)
               [64:7],
           o there is no way that they can tell whether a fax was sent to a particular
               number [65:25].

In California, Court records may be sealed only by statute or by a court order setting forth
findings that (1) there exists an overriding interest supporting sealing; (2) there is a
substantial probability the interest will be prejudiced absent sealing; (3) the proposed
sealing order is narrowly tailored; and (4) there is no less restrictive means of achieving
the overriding interest. (CRC 243.1, 243.2, NBC Subsidiary, Inc. v. Superior Court, 20
Cal.4th 1178 (1999); Copley Press v. Superior Court, 63 Cal.App.4th 367 (1998)). The
order must specify the documents and pages, or portions of pages, that are to be sealed.
Sealed records may be reviewed only upon an order of the court.

Justification for submitting this UNDER SEAL includes:
     The source is afraid of bodily harm as a result of multiple death threats issued by
        certain Defendants in this case to those who are trying to stop the Defendants.
        This is confirmed by a letter received by Plaintiff from a fax.com “insider” [31
        undated]
     The source provides information to the FCC, California Attorney General, US
        Attorney FBI, SEC, California Franchise Tax Board, and other government
        agencies. Because fax.com continues to operate in violation of the law, it is
        important for the public interest to be served for this source to remain confidential
        so that on-going investigations by these regulatory agencies are not jeopardized.
        Because Defendants, through their choosing, do not comply with federal laws,
        federal regulatory agencies [6], and state law enforcement [8], having an “inside”
        source is absolutely critical to ensuring that the public interest is protected.
     Disclosing the name of the source may compromise the source’s ability to earn a
        living (for example, under a document that GCC is required to produce, it will
        show that GCC will fire anyone who discloses information to Plaintiff, even
        under court order).

Additional arguments in support of the evidence being placed UNDER SEAL include:
    We have explicitly described the specific assertions made in what is being
       submitted, so Defendant can defend against the assertions
    Like fax.com, GCC has indicated an unwillingness to cooperate with discovery,
       e.g., filing a motion to quash every single document request of Plaintiff
    GCC has stated in a letter that they will only provide information under court
       order [31 March 30, 2004 letter]
Kirsch v. Katz et al.                                                               Page 13


      Defendants lie under oath (e.g., Katz and Martin); this is a fair quid pro quo.

Furthermore, Plaintiff put a call trap on his fax machine. The results of the trap [3] were
that the fax.com calls were coming from Global Crossing, the carrier used by GCC,
futher confirming GCC’s liability for actually sending the fax in question.

Conclusion:
    It is not necessary to determine whether of not GCCC is a fax broadcaster since
       the FCC regulation makes it crystal clear that common carriers (which GCC
       admits to being [31 May 20, 2004]) are subject to the exact same liability
       provisions as a fax broadcasters [28].
    Defendants have admitted in deposition testimony that they cannot disprove or
       cast any doubt upon the obvious fact (by their own admission per Eric Wilson
       deposition [20 65:25]) that GCCC sent that the fax since GCCC was their
       supplier.
    There is no doubt from all the evidence that GCCC displayed a high level of
       involvement, including ratification of the illegal faxing.
    The FCC regulation [28] makes GCCC liable for EITHER a high level of
       involvement or notice. Clearly, there is enough evidence here to satisfy both
       conditions although only one is required.


Each fax contains at least two violations of federal law
Schraut v. Rocky Mountain Reclamation [18] and other cases make it clear that a fax can
contain more than one violation. The judge in that case is one of the most experienced
TCPA judges in the country.

The reasoning is simple: if there were only one actionable violation per fax, then there
would be absolutely no incentive whatsoever for a junk faxer to comply with any of the
header/identification regulations. That would make tracking the source of the fax nearly
impossible for most people and allow junk faxers to fax with impunity. That was clearly
not the intent of Congress.

The faxes sent by Defendants all contain a minimum of two violations:
    47 U.S.C. § 227(b)(1)(C): unsolicited advertisement faxed w/o explicit consent
    47 C.F.R. § 68.318(d): fax lacks identification of the fax broadcaster (i.e.,
       fax.com/Impact Marketing) used to send the fax

In addition, many faxes also violate other provisions of 47 C.F.R. § 68.318(d) such as
failing to identify the business on whose behalf the fax was sent.

Some faxes do contain the fax.com removal number at the top of the fax. However, the
removal numbers NEVER identify the business.
Kirsch v. Katz et al.                                                                 Page 14


The whole point of the FCC rule was to provide identification to the recipient of the
company sending the fax so that the recipient could sue the sender to enforce the law.
That’s why 47 C.F.R. § 68.318(d) explicitly calls this out:
       that broadcaster’s name, under which it is registered to conduct business with the
       State Corporation Commission (or comparable regulatory authority), must be
       identified on the facsimile, along with the sender’s name

There is no viable defense that hasn’t been tried over and over again
Fax.com has spent the last 4 years coming up with innovative defenses. They have all
failed [15, 25, 30].

www.tcpalaw.com contains hundreds of junk fax cases. All the arguments used by junk
faxers (the law is unconstitutional, individual actions are not permitted, etc. etc.) have all
eventually been overturned by higher courts. There is no viable defense left.

Access to www.tcpalaw.com is free for judges.


Defendant’s arguments are without merit
Defendants have made two arguments to Plaintiff via mail:
    an argument that Plaintiff didn’t cooperate with Defendant’s requests for
      information
    an argument to dismiss

Defendant Impact requested a copy of the faxes in advance of the trial [31 April 28,
2004]. Plaintiff is under no obligation to comply with that request since there was no
subpoena and even if there was, the information would not be provided in advance. The
faxes were also not supplied in advance in light of Defendants track record in fabricating
evidence [22]. However, Plaintiff responded to Defendant’s requests with a counteroffer
[31 April 29, 2004]. None of Plaintiff’s emails were answered by Defendant’s counsel, or
even acknowledged in Defendant’s affidavit.

Defendants may argue that the case against Katz should not be dismissed due to exclusive
concurrent jurisdiction:
    Defendant’s attorney doesn’t really believe his argument. The letter from
       Defendant’s attorney would not have asked for a copy of the faxes if he really
       believed the case should be dismissed
    Defendants don’t believe their argument either. They wouldn’t have gone to great
       lengths to dodge service if their attorney had instructed them that the case would
       be dismissed.
    The doctrine of exclusive concurrent jurisdiction according to the court “is meant
       to avoid the spectacle of the same parties litigating the same issues in two
       different courts at the same time.” This is not true here. In the class action, the
       issue is whether Kevin Katz sent over 100 million faxes to 30 million people over
       the past 4 years. In the individual action, the issues are “Did Frank Frappier send
       this particular fax to Steve Kirsch on a particular date without his consent?” The
Kirsch v. Katz et al.                                                                Page 15


        parties are not the same (the only common Defendant is Kevin Katz) and the
        issues involved are vastly different (nationwide unsolicited faxing of millions of
        faxes to millions of people vs. sending one specific fax to one person). Also, the
        relief sought ($2.2 trillion vs. $2,500) is vastly different.
       Furthermore, a proper action is, if the court determines exclusive concurrent
        jurisdiction, is for the court to stay against Katz, and not dismiss without
        prejudice. The rule of exclusive concurrent jurisdiction may constitute ground for
        abatement of subsequent action. It is not required that a stay against Katz be
        granted.
       Abatement is not appropriate where first action cannot afford relief sought
        in second. The relief sought in the class action is a statutory penalty against one
        particular individual (Katz) who is unrelated to the individuals in the second
        action (except for Katz in the second action).
       In determining whether causes of action are the same for purposes of pleas in
        abatement, rule is that such plea may be maintained only where judgment in
        the first action would be complete bar to the second action. West's
        Ann.Cal.C.C.P. § 430.10(c). If we won or lost the class action, it has no bearing
        on whether we would win or lose the second action (except for Katz). More
        importantly, it would not preclude it since there is joint and several liability on
        this statute. This means that cases are complementary, they are not mutually
        exclusive. Also, it’s not clearly the case that judgment in the class action would
        bar Plaintiff’s recovery in the current action since Plaintiff can “opt-out” of the
        class action at any time.

But that’s the traditional analysis.

The more fundamental question is whether this court’s duty is to protect the public
interest or to protect fax.com’s illegal operation.

There are several issues here that make abatement less than clear:

       The whole point of small claims is to get immediate remedy for small amounts.
        Its purpose shouldn’t be subverted. Abatement would violate the primary tenant
        of small claims court:
                CCP 116.510. The hearing and disposition of the small claims action
                shall be informal, the object being to dispense justice promptly, fairly, and
                inexpensively.
       The class action is a complementary suit meant to pursue those faxes that haven’t
        been privately pursued by class members; it only applies to faxes which have
        not already been settled by the time the class is certified (which hasn’t yet
        happened). Therefore, it is not possible to have a judgment in this case that is
        “duplicated” by litigation in the other case and there is no overlap at all in the
        faxes. In short, in the class action, when the class is certified, any faxes already
        settled would be excluded.
       Class actions do not prevent class members from pursuing their own cases
        separately until they are asked whether they want to join the class and accept the
Kirsch v. Katz et al.                                                                Page 16


       class settlement or opt out. In this case, Plaintiff is not a certified class rep, nor
       has a class been certified.
      Small claims v. Superior court. These are different courts. It actually saves
       everyone time just to hear the case in small claims and make a decision rather
       than weigh all the evidence on abatement. In short, since this is small claims,
       the whole logic is now reversed; it actually saves the court time just to decide
       the matter now.
      Defendants have abused the legal system. They shouldn’t be given the benefit of
       the doubt on this decision if the arguments on both sides are good.
      The other action is a class action. The Plaintiff is the class, not a person. If
       abatement were appropriate in such cases, it would mean that the filing a class
       action would preclude action by individuals. That is never the case.
      The class action has not been certified. So there is no real “plaintiff” with a case
       that “exists” yet.
      Defendant argues that Plaintiff has breeched his fiduciary duty to the class and is
       thus unsuitable as a class representative. Based on Defendant’s own argument
       then, there is no concurrent jurisdiction!
      There is no class certification at this time so there is not really a cause of action
       that has been brought before a court until that class is certified.


Conclusion: Abatement, not dismissal, could be justifiable for Katz, but absolutely not
for any of the other Defendants. The current cases in this action merely establish liability
for additional Defendants that were not named in the class action. That liability exists,
even if the class action reached a final judgment.

Even if the class action succeeds, the only thing that would preclude Plaintiff’s being able
to sue the Defendants would be if (a) Plaintiff did not opt out of the class and (b) the
Defendants in the class action paid the $2.2 trillion in damages requested. At that point,
Defendants in this case would not be liable since they would have “paid off” each fax
they sent. That is not only unlikely, it is impossible. Therefore, the request for abatement
is merely a delaying tactic that is unjustified, unnecessary, goes against the spirit of the
small claims court, and violates Congress’s intent in passing the junk fax law which was
to impose economic hardship on those companies who chose to violate the law.

The whole point of exclusive concurrent jurisdiction is to limit a plaintiff to one case at a
time which would allow a plaintiff to put an extraneous burden on the courts and on the
Defendants. However, this situation is different than the normal case due to the multiple
coordinated cases already against Katz. Even if Plaintiff’s class action were dropped,
Katz would still have to defend the exact same coordinated cases against him. Unlike
the typical situation, Plaintiff isn’t causing multiple actions since the other action was
caused by others that Plaintiff’s claims were joined into. So serves no purpose
whatsoever to abate the case against Katz. The only purpose it would serve would be to
encourage Katz to keep on faxing!
Kirsch v. Katz et al.                                                                  Page 17


Furthermore, due to Katz’s contempt of court, disregard for the FCC, and lying under
oath, it is more than appropriate that this court be true to the intent of the law which is to
protect the public interest now and allow the action against Katz to proceed. How could
the public interest be served

Defendant will also argue that Plaintiff refused to supply Defendant the faxes prior to the
hearing. This is true. Plaintiff is under no legal obligation to do so. However, Plaintiff
offered to supply the requested information if Defendant would supply requested
information from Plaintiff. Defendant never responded to any of the emails Plaintiff sent.

Defendant’s motion to quash the subpoena were brought without
justification
       CCP 2017(c) The court shall impose a monetary sanction under Section 2023
       against any party, person, or attorney who unsuccessfully makes or
       opposes a motion for a protective order, unless it finds that the one
       subject to the sanction acted with substantial justification or that
       other circumstances make the imposition of the sanction unjust.

It is already established that their motion was denied.

Now we only have to show that GCCC lacked substantial justification for opposing the
subpoena. This is established because:
    In an email on March 26, 2004 to both GCC and their counsel [31], Plaintiff
      pointed out exactly the FCC liability finding for common carriers under the
      TCPA. This established sufficient grounds for the request.
    Furthermore, Defendant GCCC alleged that the subpoena to GCCC is overly
      broad and burdensome, but provided no specifics. It was not clear they even
      bothered to read the requests being made, many of which are neither overly broad
      or burdensome. For example, request #1 was for the contracts between fax.com
      and GCCC.

The subpoenas were written to obtain relevant information so that Plaintiff can meet the
burden of preponderance, both for the sending of the faxes, as well as justification for
treble damages.

In order to present the strongest possible case, the original cases were filed without
specific dates. However, the clerk of the court improperly required that a date be put on
each claim before he would accept the claim.

CCP 116.320 and CCP 116.130 makes no such requirement. Plaintiff supplied a date
based on the best available evidence as to liability of all parties at the time of filing only
in order for the claim to be accepted by the court clerk.

However, Plaintiff upon review of the subpoenaed information, Plaintiff may ask the
court to amend the date of the faxes to those dates where subpoenaed information from
Kirsch v. Katz et al.                                                               Page 18


Defendants indicates that Plaintiff’s claims are the strongest. That is why there is a broad
range of dates in the subpoenas.

Therefore, the requests are not overly broad because it covers only a small part of the
range of dates that Defendants have been sending Plaintiff unsolicited faxes, rather than
the entire 4 year period which is relevant to the cases filed.

Nor are any of the requests overly burdensome since the records being requested is
something that the Defendants would either normally keep in the course of business or
records that do not exist. In total, each subpoena was designed to elicit documents that
would not take more than a couple of hours to retrieve.

It is instructive to note that Defendant GCCC did not specifically call out any document
request. Instead, the entire subpoena was dismissed by Defendant GCCC as being overly
broad and burdensome [31, May 20, 2004]. That shows contempt of this court and
contempt of the legal process. Defendant must make a good faith effort to evaluate each
individual request. It is simply not credible that every single request was both overly
broad and burdensome. Some requests could be accomplished in minutes (requests 1-7),
other requests were extremely specific covering only a few documents (requests
1,2,3,6,7), and other requests asked for information well known to GCCC: a few account
numbers (request 6). It stretches Defendant’s already limited credibility that Defendant
cannot comply.

Furthermore, in light of the fact that Defendants have abused the legal system with a
proven track record of not complying with legal discovery [8] and whose top legal officer
has been found guilty in court of fabricating evidence [22] and lying under oath [22],
Plaintiffs demands for document production should be given the widest possible latitude.

Defendant GCCC also made clear that it would only supply information to Plaintiff under
legal process [31 March 30, 2004 and 17]. Now when Plaintiff invokes the very legal
process that Defendant requested, Defendant cites reasons for why it may not choose to
comply with any request no matter how narrow [31, May 20, 2004]. Defendant simply
cannot have it both ways.

In response to GCCC’s letter of May 20, 2004, Plaintiff issued a letter [31 June 1, 2004]
and a second subpoena to GCCC [3].

Defendants lie under oath and their testimony should be viewed with
great skepticism
Defendants are professional thieves and go to great lengths to hide their identity. Most
junk faxes are sent without any identification of the advertiser and broadcaster [1], even
when calling [26]. The registration of the phone numbers is also done using phony names
[26]. All of these things are done deliberately to make it hard to identify the Defendants.

Lying in open court
Kirsch v. Katz et al.                                                                Page 19


Eric Wilson testified in small claims court that he is just a shareholder of fax.com (Santa
Rosa, CA in the case brought by David Besa). This of course is not true and contradicts
his deposition and affidavit [20]

Charles Martin has a long track record of lying in court and fabricating evidence [22]

Lying to this court
The letter from Eric Brenner [31 May 7, 2004] uses a letterhead for Impact Marketing
Solutions LLC with the name of their old Agent for Service, Joseph Mudd, who has long
since resigned and no longer accepts service for them [31 June 10, 2004].

It is also not clear that Brenner has standing to send such a letter since we can find no
information that leads us to believe he is personally an officer of Impact Marketing
Solutions LLC. Brenner may in fact be lying to the court.

Lying in an affidavit
Eric Wilson’s recent affidavit [20] says they don’t use 877 removal numbers and once
you are removed, you are removed. He knows both are false since it contradicts the FCC
[27 Table 3] and contradicts the uncontested facts in the Covington and Burling case
[15].

Lying in a deposition
Katz’s deposition is a work of art [10]. He can’t seem to remember anything including
where he works, what his title is, and who he does business with.

Lying to the FCC
Here’s what the FCC wrote [6] about fax.com’s responses to the FCC’s investigation:

       Moreover, the Commission found that Fax.com appears to have engaged in a
       pattern of deception to conceal its involvement in sending the prohibited faxes,
       and that the company has not been forthcoming in its dealings with the agency.

       In view of the ``pervasive and egregious pattern of deception'' underlying the
       apparent violations and the gravity of Fax.com's conduct, the Commission
       concluded that Fax.com is apparently liable for the maximum fine of $11,000 for
       each of the 489 fax violations, for a total proposed fine of $5,379,000.

Lying to other companies and potentially the State of California
Knowx lists the corporate officers of Impact Marketing Solutions LLC as Joseph E.
Mudd (Reg Agent), Martec Consulting Service Inc (Senior VP), and Twingem Inc
(Senior VP). The latter two are Nevada companies set up by Eric Brenner. A company
cannot be an officer; that’s illegal.

In addition, they use people and companies that do not seem to exist:

Richard Lamarre
Kirsch v. Katz et al.                                                            Page 20


      Contact for 800 numbers subscribed by Data Research Systems (XO subpoena in
       [26].
      President of Data Research Systems (per Nevada filing [29])
      Agent for Service of Process for SOHO Marketing (per State of California records
       [29])
      Signs checks:

              From: "Michael C. Worsham, Esq." <michael@worshamlaw.com>
              Date: Wed, 4 Feb 2004 00:51:31 –0500

              Thank you. I have a copy of Data Research Systems check signed by a
              Richard Lamarre that was used to pay a $1,000 small claim that Terri
              Breer the woman attorney settled with someone in Texas for a Nutri Pro
              junk fax. The check is dated 11/1/03 and on it DRS has printed the
              address 26895 Aliso Viejo Creek Rd, Suite B-691 that you have below. I
              am puzzled, because I thought DRS was at 92 Argonuat, Suite 225, in
              Aliso Viejo, CA. In fact I have a piece of mail that I sent to Kevin Katz
              that was forwarded to Charles Martin at 92 Argonaut.

              [Note: the address on the check is just a maildrop location]

The Awards Center
    Fictitious name for fax.com incoming call center

Consumer Source
    Fictitious name for fax.com incoming call center [26]

Linkpoint Marketing
    Name used, in conjunction with a Mail Boxes Etc. address, as the subscriber for
      phone lines requested by Data Research Systems from Vcom Solutions [26]

Richard Charles
    alias for Charles Martin. Used for registering 800 number account for Data
       Research Systems at CallSource so that a lookup by name won’t find anything
       [26]

Eddie Rass
    alias for Erwin Dass. Contact info used for registering 800 number account for
       Data Research Systems at CallSource so that a lookup by name won’t find
       anything [26]

Treble damages are warranted
Defendants are professional thieves. Their whole business is illegal and they’ve known it
was illegal since 2000.
Kirsch v. Katz et al.                                                               Page 21


They are the largest fax spammer in the world. They send over 100 million illegal faxes a
year to over 8M fax machines in the US alone; that’s over 10 unsolicited faxes per
machine per year, with some machines receiving over 10 times as many.

They have been faxing Plaintiff for more than 3.5 years despite Plaintiff’s complaints,
including a $2.2 trillion dollar class action [9], as well as complaints by various Attorney
Generals [11], and Forfeiture Notice from the FCC [6], and million dollar loses in heavily
litigated cases [15], they continue to avoid paying judgments and continue faxing
Plaintiff today at an increased rate!

Plaintiff’s efforts to help GCC understand the law and their liability and identify the
illegal transmissions (for example as documented in the email on March 27, 2004 [31]
were greeted with a letter (March 30, 2004) threatening litigation for tortious interference
and a statement that GCC would not tell Plaintiff anything without a court order [31].

In addition:

      I hear stories all the time of people victimized by fax.com. Thousands of people
       have registered on the junkfax.org website and posted their story. Some are in this
       courtroom today.
      Numerous citations from the FCC since December 26, 2000 have been completely
       ignored [7]. They keep violating the law, not paying any judgments, and write off
       their legal fees as a cost of doing business.
      Katz stated in his deposition fax.com would cease operations if the Supreme
       Court denied cert [10 129:21, 132:14].. They did, settling the constitutionality
       issue for good, but Katz didn’t keep his word. On the contrary, he ramped up
       operations.
      They go to great extremes to duck service
      They never pay any judgments including the FCC and Covington and Burling
       case [15] and various small judgments
      They do not comply with legal process including court orders [5, 19] and
       document requests from the California Attorney General [8]
      Their CEO lies under oath in his deposition; he can’t seem to recall much of
       anything [10]
      Their officer responsible for compliance with the law has a long track record of
       providing false testimony [22]
      A $5.379M fine by the FCC has been ignored [6]
      Demand letters [2,3] on the current lawsuit sent to all Defendants have been
       ignored
      Offers that they send out by fax are sometimes from fraudulent businesses [23] or
       are illegal pump and dump faxes [4] where they can make $1.2M or more from a
       single illegal pump and dump fax campaign.
      They use deceptive trade practices such as not identifying themselves and
       changing the font and wording and phone numbers to make it appear that the
       faxes come from different companies [11] and even register with their suppliers
       using non-existing names [26]
Kirsch v. Katz et al.                                                               Page 22


      Covington & Burling case [15] shows that even after threats of litigation from a
       top law firm, they ignore it and keep faxing. After 2 years of litigation, the judge
       awarded treble damages against fax.com.
      Their chief compliance officer is a liar. He’s lies in court and fabricates evidence.
       Because of that, he just had his Private Investigator license revoked [22]
           o “In his April 23, 2004 decision, Judge Rosenman found that Martin lied
               under oath or manufactured evidence in a dozen cases brought against
               Fax.com by other businesses.” The Judge wrote, “...his performance of
               those acts included dishonesty, fraud and deceit.”
      They submit fraudulent information when establishing phone service [26] or
       answering the phone so that they can’t be traced, using names such as Richard
       Charles, Eddie Rass, Linkpoint Marketing, Consumer Source, none of which
       actually exist.
      They call people at all hours of the day and night
      They thumb their nose at the Supreme Court ruling against them. It didn’t even
       slow them down a bit.

The TCPA provides for minimum statutory damages of $500 per violation, and treble
damages ($1,500) if the fax advertisement was sent "willfully" or “knowingly” 47 U.S.C.
§ 227(b)(3). The definition of the term "willfully" is merely that the defendant acted
voluntarily, and under its own free will, and regardless whether the defendant knew that it
was acting in violation of the statute. See, e.g., 47 U.S.C. § 312(f)(1); Smith v. Wade, 461
U.S. 30, 41, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). See [25] for more information on
willful.

D absolutely knew what they were doing was totally illegal since day one and they set up
the entire multi-level structure of fictitious businesses to elude investigators. Huge
commitments were made to the common carriers using multiple levels of phony company
names such as “US Mail” and “Everglades Enterprises” with no assets or officers or
location with a guarantor corporation that doesn’t exist.

Plaintiff explicitly notified Defendant GCCC of the violations in detail including the
account and the relevant sections of the law. D didn’t justify his actions nor thank P for
bringing the matter to D’s attention. In fact, not only didn’t D stop, but D threatened P
with a lawsuit for interfering with the illegal activity!

Defendants are not some clueless advertisers. Defendants are professional thieves who
steal from the public daily. They make millions of dollars at the expense of consumers
who are helpless to do anything to stop them. They have no respect for the law; they
ignore citations, ignore court orders, refuse to pay any judgments, and have ignored the
FCC Order of Forfeiture. They also steal from the US government by illegally arranging
for all this to happen over tax free phone lines and by directing sales income into personal
offshore trust accounts to avoid payment of taxes.

Other courts have awarded treble remedy in other cases against fax.com [15]. Surely,
there is no group of individuals on the planet that is more deserving of treble damages.
Kirsch v. Katz et al.                                                              Page 23



We urge this court to protect the public interest. Without a triple remedy, this is a joke.
Fax.com will write this off as a minor expense of doing “business” and Congress’s intent
and the public interest will not be served.
Kirsch v. Katz et al.                                                                      Page 24



The Law
47 USC 153 (32)
The term ''person'' includes an individual, partnership, association, joint-stock
company, trust, or corporation.

47 U.S.C. § 227(a)(2)
The term ''telephone facsimile machine'' means equipment which has the capacity
(A) to transcribe text or images, or both, from paper into an electronic signal and to
transmit that signal over a regular telephone line, or

(B) to transcribe text or images (or both) from an electronic signal received over a
regular telephone line onto paper.

47 U.S.C. § 227(a)(4)
The term ''unsolicited advertisement'' means any material advertising the commercial
availability or quality of any property, goods, or services which is transmitted to any
person without that person's prior express invitation or permission.

47 U.S.C. § 227(b)(1)(C)
It shall be unlawful for any person within the United States to use any telephone
facsimile machine, computer, or other device to send an unsolicited advertisement to
a telephone facsimile machine;

47 U.S.C. § 227(b)(3)
A person or entity may, if otherwise permitted by the laws or rules of court of a State,
bring in an appropriate court of that State -
(A) an action based on a violation of this subsection or the regulations prescribed
under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive
$500 in damages for each such violation, whichever is greater, or
(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this subsection or
the regulations prescribed under this subsection, the court may, in its discretion,
increase the amount of the award to an amount equal to not more than 3 times the
amount available under subparagraph (B) of this paragraph.

The regulations prescribed under 47 U.S.C. § 227(b) which were referred to in 47 U.S.C. §
227(b)(3) include:

        47 C.F.R. § 68.318(d)
        Telephone facsimile machines; Identification of the sender of the message. It
        shall be unlawful for any person within the United States to use a computer or
        other electronic device to send any message via a telephone facsimile machine
        unless such person clearly marks, in a margin at the top or bottom of each
        transmitted page of the message or on the first page of the transmission, the
        date and time it is sent and an identification of the business, other entity, or
        individual sending the message and the telephone number of the sending
        machine or of such business, other entity, or individual. If a facsimile
        broadcaster demonstrates a high degree of involvement in the sender’s
        facsimile messages, such as supplying the numbers to which a message is
        sent, that broadcaster’s name, under which it is registered to conduct business
        with the State Corporation Commission (or comparable regulatory authority),
        must be identified on the facsimile, along with the sender’s name. Telephone
Kirsch v. Katz et al.                                                                     Page 25

       facsimile machines manufactured on and after December 20, 1992, must
       clearly mark such identifying information on each transmitted page.

       47 CFR 64.1200(a)(3)(ii)
       A facsimile broadcaster will be liable for violations of paragraph (a)(3) of this section if
       it demonstrates a high degree of involvement in, or actual notice of, the unlawful
       activity and fails to take steps to prevent such facsimile transmissions.

       47 CFR 64.1200(f)(4)
       The term facsimile broadcaster means a person or entity that transmits messages to
       telephone facsimile machines on behalf of another person or entity for a fee.


Prayer for relief
We ask the court to award Plaintiff $2,500 plus costs (filing fees and service fees; see
table below) for each fax sent by Defendants who are jointly and severally liable.

This is calculated as follows:
    $500 for violation of 47 U.S.C. § 227(b)(1)(C): unsolicited advertisement faxed
        w/o explicit consent
    $500 for violation of 47 C.F.R. § 68.318(d): fax lacks identification of the fax
        broadcaster or advertiser
    $1,500 in treble damages (i.e., $500 less than allowed under the statute). Although
        the law allows for the basic $1,000 minimum remedy to be tripled to up to $3,000
        per fax, due to small claims limitations, the Plaintiff can only ask the court for an
        award of $2,500 plus costs.

Also, note that all cases were filed for $2,499.00 because the clerk erroneously rejected
the original $2,500 claims. Plaintiff has since spoken with the head clerk and now
$2,500.00 claims are being accepted. Plaintiff should not be penalized due to a clerical
error.

In addition, Plaintiff requests that the court:
     Amend the names to the full legal names
     Add four Defendants as listed on the Request to Amend. They were left off at
        the time of filing because Plaintiff didn’t believe they were collectible. In
        discussions with collection firms, Plaintiff now believes that they are. They are
        represented here in court today. Their officers have already been served with the
        claims. For example, Lighthouse is an alter ego for Impact. They share the same
        address [29] and are interchangeable. Eric Brenner who is the principal for
        Lighthouse answered the complaint for Impact [31 May 7, 2004].
     Order Defendants to post a bond equal to the amount of the judgment before an
        appeal will be accepted and to release these funds to Plaintiff if Plaintiff
        prevails on appeal. There is nothing in the law that prohibits you from doing
        this in small claims; it is typically done in Superior Court appeals. Defendants can
        easily afford to post a bond since they make over $20 million of dollars a year in
        illegal revenue [4 14:24]. This extraordinary measure is appropriate in light of
        Defendants extraordinary past record of contempt of court including non-
        compliance with court orders (injunction [19], discovery [8], order to appear [5]),
Kirsch v. Katz et al.                                                             Page 26


       lying under oath (Katz [10] and Martin [22]), repeated violation of federal law [6,
       15], and non-payment of judgments to the US government (FCC) and others. In
       addition, the FCC pointed out in the Order of Forfeiture [6 FCC 03-336 p. 9] that
       “the very nature of its business is in flagrant violation of the TCPA.”
      Either order Defendants turn over to Plaintiff all evidence submitted by Defendant
       to the court or hold the evidence submitted by the Defendants in the court file
       so that Plaintiff can request a copy from the clerk (and instruct the clerk to
       allow this including CD-ROM copying to disk). This evidence is a matter of
       public record, it is not proprietary or trade secret, and it will facilitate future
       litigation, saving work of the court, the Defendants and the Plaintiff in having to
       painfully extract it again and again. The Defendants already have the originals.
       What they brought to court is a copy.
      Clarify whether it is necessary to serve each of the various sub-entities of
       fax.com, or whether a Writ of Execution against the one of the entities may be
       enforced against the other three fax.com entities using an Affidavit of Identity and
       the FCC Order of Forfeiture, the four entities being Data Research Systems,
       Impact Marketing Solutions, Lighthouse Marketing, and Tech Access Systems.
       Otherwise, Plaintiff must serve each entity, resulting in four times as much work
       for the court for no real benefit to anyone. Does the court trust the FCC’s
       determination?
      Add on costs of reasonable attorney fees since GCC admits [31 May 20, 2004]
       that they are a common carrier as defined in 47 USC 153(10) of The 1934
       Communications Act as amended, and the rules promulgated by the FCC under
       that Act. Therefore, under 47 USC 206, Plaintiff is entitled to add on attorney
       fees:
                47 USC 153 (10) Common carrier
                The term ''common carrier'' or ''carrier'' means any person engaged as a
                common carrier for hire, in interstate or foreign communication by wire or
                radio or interstate or foreign radio transmission of energy, except where
                reference is made to common carriers not subject to this chapter; but a
                person engaged in radio broadcasting shall not, insofar as such person is
                so engaged, be deemed a common carrier.

              47 USC 206. - Carriers' liability for damages
              In case any common carrier shall do, or cause or permit to be done, any
              act, matter, or thing in this chapter prohibited or declared to be unlawful,
              or shall omit to do any act, matter, or thing in this chapter required to be
              done, such common carrier shall be liable to the person or persons injured
              thereby for the full amount of damages sustained in consequence of any
              such violation of the provisions of this chapter, together with a reasonable
              counsel or attorney's fee, to be fixed by the court in every case of
              recovery, which attorney's fee shall be taxed and collected as part of the
              costs in the case
Kirsch v. Katz et al.                                                           Page 27


      Because they opposed the subpoena and clearly didn’t even read it since there
       were several items that weren’t burdensome or broad: impose monetary sanctions
       against GCC per

       CCP 2017(c) The court shall impose a monetary sanction under Section 2023
       against any party, person, or attorney who unsuccessfully makes or
       opposes a motion for a protective order, unless it finds that the one
       subject to the sanction acted with substantial justification or that other
       circumstances make the imposition of the sanction unjust

      Because the Defendants dodge service and lie to the process server, allow me to
       bring a camera into the court in order to take photographs of the Defendants.
Kirsch v. Katz et al.                                                           Page 28


       The monetary amounts for the 15 cases are set forth in the following table:
Case          Defendants Claim              Filing Fees Service Fees Total
Number
992 – 1002    Katz et al    $2,500          $22              $210             $2,732
1005          Frappier,     $2,500          $22              $280             $2,802
              Impact,                                        (includes 2
              Roth,                                          subpoenas)
              Martin,
              Dupree,
              GCCC
1035          GCCC          $2,500          $66              $70 (claim + $3,318
                                                             subpoena)
                                                             and $682 in
                                                             attorney fees
1040-1041     Katz et al.   $2,500          $66              $210             $2,776

				
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Description: Junk Franchise Opportunity document sample