Who doesn’t want to be told of a cheap vacation package to Cancun? Or a great health insurance plan at a ridiculously low cost?
While everyone is talking about the gun control law before the Supreme Court, I’m looking at a new opinion from the Illinois Appellate Court. Congress passed the Federal Telephone Consumer Protection Act (TCPA) in 1991 to address the problem of unsolicited automated sales calls and junk faxes that cross state lines (and therefore can’t be regulated by one individual state). The penalty is $500 per fax or actual damages. As for enforcement, it allows a state attorney general to file a lawsuit in federal court. But that’s not always so helpful, because if you go to the trouble of filing a complaint with the Attorney General’s office they will likely respond “hey, good on you, you can write!” and then say they won’t do anything about it.
But the Act also says a person can bring suit “if otherwise allowed by the laws of the state.” And this phrase is what most of this case is about, with an opinion that takes up 47 pages.
In 2003, in a class action complaint, Eclipse Manufacturing Company sued Sun Tours d/b/a Hobbit Travel, a travel agency, alleging that, in July and August 2002, Hobbit Travel sent Eclipse four unsolicited one-page faxes advertising discounted travel
offers. Eclipse further alleged that Hobbit Travel’s actions violated the TCPA.
The travel agency argued no no no no no silly, you can’t sue us because the Act says “if allowed by the laws of the state,” and the Illinois legislature hasn’t passed a law allowing it. Not a bad point, said the Court in an opinion released yesterday, and went through a long discussion of legal history and tradition in Illinois and other states on enforcing federal law in state courts.
The Court noted that whether you take the approach that states can “opt-out” of this law explicitly, or by doing nothing implicitly acknowledge the right to file a private case, it’s more correct than saying states need to affirmatively enact a law that lets you do what the Act said you could. So “otherwise allowed” means not prohibited, when you take into account the tradition and common sense that Congress wouldn’t have given people that right to sue if it wanted to wait for each state to give special permission.
Many times federal laws, as well as state or city laws, don’t give private citizens a right to sue to enforce the law–instead leaving it only to government enforcers like state attorneys general or the city. But as we know they don’t always have time or capacity to do so, so it is a good thing to allow individuals to accomplish the goal of the law. And to do that the law also allows for reasonable attorney fees against the offender–otherwise few people would hire a lawyer for that.
So next time your office gets a junk fax about a new drug too good to pass up, and a co-worker crumples it up in disgust, why not tell him: hey why don’t you call that guy, you know, your friend the lawyer…
If you want to read all 47 pages go here.