Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

By Eric Goldman

Holtzman v. Turza, 08 C 2014 (N.D. Ill. Aug. 3, 2010)

This case is a unremarkable straight-down-the-middle analysis of when editorial content becomes a regulated ad, which in turn makes it a remarkable case. Most editorial-content-as-ad cases have quirky hooks that undercut their broader applicability.

The defendant is an Illinois lawyer. The court says:

In August 2006, he hired Top of Mind Solutions, LLC (“Top of Mind”) to create and distribute by fax and email one-page documents titled the “Daily Plan-It” to a list of persons supplied by defendant. Defendant’s target list included a combination of contact information he purchased from the Illinois CPA Society and numbers he obtained from business contacts and students.

Top of Mind issued 41 versions of the Daily Plan-It on defendant’s behalf, every two weeks, from August 2006 to March 2008. All 41 versions include a masthead with the words “The `Daily Plan-It'” in italicized, bolded, and underlined text. “Gregory P. Turza, JD” appears just below the masthead along with the date, volume and issue number of the document. Beneath this title, the page is divided into two columns that contain an editorial article offering advice about various topics. Each article runs the length of the left column of the page and concludes in the middle of the right column….

The content of each Daily Plan-It was created entirely by Steven Patrick Riley (“Riley”), Top of Mind’s owner. Defendant did not contribute to the editorial content. At the end of each article, in the lower right corner, defendant’s name is listed (in a font larger than any other type on the page, with the exception of “The `Daily Plan-It'”). He is identified as an attorney and counselor at law, and the words “estate planning,” “post mortem administration,” and “business succession planning” appear before his name. Each fax also includes two or three graphic images: defendant’s business logo, a photo of the building in which defendant has his office, or a head shot of defendant. Also included are his business address, telephone and fax numbers, e-mail address, and website address. At the bottom of the fax the document repeats defendant’s name and phone number. This “identifying information” occupies approximately 20 to 25 percent of total area of the fax.

Three things stand out from this recitation of facts:

* it was bad form to buy a list of fax numbers and start blasting fax messages every 2 weeks. I’ve repeatedly noted that I think the days of buying email lists are long dead. Buying fax lists strikes me as an even worse idea.

* it’s interesting to think that a lawyer would rely upon a vendor to generate editorial copy that goes out under the lawyer’s name. The facts don’t indicate if Turza reviewed and approved the content before it went out. I don’t use ghostwritten material; I usually even extensively rewrite co-authored material.

* while the content’s marketing intent is clear and unmistakable, the newsletter’s substance is also unambiguously editorial content however broadly or narrowly we conceive of it. The law doesn’t handle editorial-content-as-marketing overlaps very well, unfortunately.

The court applies the FCC’s interpretation that faxed editorial newsletters aren’t regulated advertising so long as any advertising content in the newsletter is “incidental,” which in turn depends on whether the ad is a “bona fide informational communication.” As you can see, the quest for synonyms doesn’t really advance the analysis; it just shows that if you don’t know how to parse between ads and editorial content, synonym proliferation tries to mask that fact (unsuccessfully, I might add).

The court concludes that the newsletter is regulated advertising. The court appears to focus on the sender’s intent: “the record is replete with evidence demonstrating that the primary purpose of defendant’s agreement with Top of Mind was to generate awareness of defendant’s services and build his client base.” The court continues: “defendant has provided no facts to show that his genuine, primary motivation in paying Top of Mind to distribute the Daily Plan-It was to educate CPAs and his business contacts on various industry-related topics rather than to build brand recognition and solicit business referrals for his law practice.”

To me, this suggests the case would have been much harder if the editorial content hadn’t been ghostwritten because the newsletter’s educative intent would be clearer. Nevertheless, the court’s sender-payoff-oriented standard–“to generate awareness of defendant’s services and build his client base”–is unworkable because those payoffs are exactly what most professional service providers seek every time they publish editorial content.

UPDATE: Carolyn Elefant has more to say about this case.