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The $1,500 fax

Sending unsolicited ads to fax machines is illegal. But few businesses thought to sue until Clearwater lawyer James Thomas turned junk faxes into a niche practice. Potential payoff: a sweet $1,500 per fax.

By Scott Barancik
Published October 29, 2006

ADVERTISEMENT [Times photo: Ted McLaren] Clearwater lawyer James M. Thomas grows righteous when discussing junk faxes. Illegal-fax cases account for about one-third of Thomas' total practice.

Greg Isenberger was sick of watching advertisements hijack his fax machine.

Why should he have to supply the paper, toner and electricity necessary to print each and every shady ad that oozed across his phone line?

Now the Clearwater mortgage broker is getting even. This year, Isenberger has sued 30 businesses he claims violated a federal law barring unsolicited faxes. His company, The Loan Pros, could reap tens of thousands of dollars in settlements and court-awarded damages.

“Greg has been bludgeoned so long that he just put his foot down and said, 'No more,’ ” said his lawyer, James M. Thomas.

More than a few local executives are stomping around like flamenco dancers these days thanks to Thomas.

Growing numbers of local businesses have engaged the Clearwater lawyer’s help to take control of their fax machines and, in some cases, start a modest income stream. Victorious plaintiffs are entitled to as much as $1,500 per fax under the law, minus the attorney’s contingency fee and expenses.

But the real entrepreneur here is Thomas, a 46-year-old sole practitioner and 2002 law school graduate who has turned a little-used law into an assembly-line revenue generator responsible for about one-third of his practice. Not that he’s given up on other practice areas — Thomas is happy to handle your divorce or auto-accident claim. Like many self-employed lawyers in a competitive era of super-sized law firms, he casts his net wide and narrow.

Still, Thomas grows righteous when discussing junk faxes, which he said are “eroding the competitive basis for capitalism.”

“My clients enforce the law,” he added. “I’m just a mechanism to get it done.”

How he does it

Getting junk faxers to pay for their sins isn’t always easy.

When Tampa defense lawyer W.F. “Casey” Ebsary Jr. decided to fight back recently, he couldn’t even figure out who to sue. One wily tormentor hid behind an array of corporate identities that included a parent company called 701063390562 Ontario Ltd.

Ebsary found salvation in Thomas, whom he discovered through a Web site called junkfax.org.  Since then, Ebsary has filed at least five lawsuits, and the flow of junk ads to his office’s fax machine has nearly stopped. “Money was never the objective to me,” he said.

Thomas has a methodical approach to fax cases. Clients send him a stack of unsolicited faxes at a time. He determines the documents’ likely authors and sends each one a boilerplate letter demanding reparations of as much as $1,500 per fax, or else face a lawsuit.

Some targets settle right away. Others claim they are not liable, because they allegedly had permission to fax the ads or because of an “existing business relationship” that entitled them to an exemption under the statute.

Such defenses aren’t foolproof. When Isenberger, the Clearwater mortgage broker, sued Impac Funding Group last year for sending him dozens of faxes, the California company produced a sweepstakes entry form — actually, a cleverly disguised consent form — bearing his signature and business card. Isenberger, who declined to be interviewed for this report, claimed the signature was forged. The parties eventually settled out of court. “It’s silly to go to trial,” Thomas said.

Resisting a Thomas lawsuit is costly, if not futile. When the John Marshall Law School alum sued Mercantile Mortgage Co. last year over a single fax, he filed a 29-page list of interrogatories demanding, among other things, a list of every person or company the defendant had sent a fax to in the prior three years, and the names of any recipients who subsequently complained. Mercantile settled out of court in April.

Not everyone’s hero

Some defendants are crying foul.

Michael Patterson, whose St. Petersburg home-inspection company was sued in January for faxing several ads to Isenberger, acknowledged being the author but said it was an honest mistake.

Patterson said he contacted selected members of the Pinellas Realtor Organization last year for permission to fax them occasional updates about his company. Among those saying yes, he said, was Fisher Realty owner Pat Fisher.  Patterson said he proceeded to fax ads to Fisher and the one other person listed in the membership directory under Fisher Realty: Isenberger, a former Fisher employee. Isenberger sued; Fisher said in an interview that she can’t recall whether Patterson’s employee called to seek her permission. The case is ongoing.

Elliot  Brown’s criticism is harsher. In March, a Thomas client in Hernando County sued Brown’s Las Vegas company, the Lake Shore Group, over faxes Brown says weren’t his. A fax marked “Exhibit A,” for example, described a company other than Brown’s, a return phone number for an answering service Brown stopped using years earlier, and a product — mortgages — that Brown claimed he hasn’t touched since 1998.

Mistaken identity? More like sloppy research, Brown said in an e-mail. He accused Thomas of letting the lawsuit drag on for nearly a month despite knowing its target was innocent, causing Brown great stress and expense. “Clearly,” Brown said, “he thought I’d offer some sort of settlement to make him go away.”

Sarasota businessman Sean Stringer took his complaint to the Florida Bar. According to the August filing, Thomas allegedly confronted Stringer after a court hearing and pressured him to settle their fax lawsuit, including threatening to scour Stringer’s business and personal records for signs of criminal activity. The bar dismissed the complaint for lack of evidence.

Thomas has had legal problems in the past. His background includes a 1979 arrest for burglary in Hillsborough County, and multiple arrests in the early 1990s for drunken driving and domestic violence or other battery, according to public records. Thomas did not reply to repeated requests for comment after participating in an initial interview.

- Times researcher Caryn Baird contributed to this report. Scott Barancik can be reached at barancik@sptimes.com or(727) 893-8751.

[Last modified October 29, 2006, 07:51:07]