New York State Court of Appeals Case Summaries: June 19, 2009

Daily Record (Rochester, NY), Jun 19, 2009

New York State Court of Appeals

Consumer Law

Advertising

Stern v. Bluestone

No. 87

Appealed from the Appellate Division

Background: Plaintiff Peter Marc Stern, a solo practitioner, received 14 unasked-for facsimile messages from defendant Andrew Lavoott Bluestone, a solo practitioner who specializes in bringing attorney malpractice actions. Each fax was entitled "Attorney Malpractice Report," and included Bluestone's contact information, web site addresses and short informational essays. Stern commenced this lawsuit against Bluestone pursuant to the Telephone Consumer Protection Act of 1991 for sending unsolicited advertisements by fax. In opposition to the motion, Bluestone contended that the faxes were not advertisements, or at the very least that there was a factual question as to whether they were. Supreme court granted Stern summary judgment as to liability. The Appellate Division affirmed.

Ruling: The court concludes that Bluestone's "Attorney Malpractice Report" fits the FCC's framework for an "informational message," and thus the 14 faxes are not unsolicited advertisements within the meaning of the TCPA. In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue and the reports did not promote commercial products. The Appellate Division's ruling is reversed.

Scott H. Greenfield for the appellant and Brian L. Bromberg for the respondent