American Home Services, Inc. v. A Fast Sign Co., 322 Ga. App. 791

Fastsigns sued AHS under the TCPA alleging AHS sent unsolicited fax advertisements via Sunbelt; the case was litigated as a class action and class certification was affirmed on appeal.
At summary judgment the trial court found AHS contracted with Sunbelt to send ~318,000 faxes, removed those with established business relationships from the class, and found willful/knowing violations; attorney fees were reserved.
A bench trial later produced a factual finding that AHS sent 306,000 unsolicited faxes; the court entered a judgment using $1,500 per willful/knowing violation, totaling about $459 million.
This Court initially vacated and remanded for use of the number received rather than number sent; the Georgia Supreme Court reversed, holding TCPA liability attaches to attempted sends as well as completed transmissions, and remanded for consideration of remaining issues.
On remand this Court affirmed that some evidence supports the trial court’s factual findings, found harmless any error from reliance on an alleged admission and spoliation inference, but vacated the judgment because it failed to exclude class-excluded recipients and did not describe the class as required by OCGA § 9-11-23(c)(3).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that AHS sent the faxes	Evidence (contracts, witness testimony, expert opinion, affidavits) supports finding faxes were sent	AHS disputed reliance on an alleged admission and negative inference from spoliation	Some evidence supports the verdict; any error about the admission/spoliation inference was harmless
Whether judgment properly excluded non-class recipients and described the class	Fastsigns assumed judgment followed certified class definition	AHS argued factual problems and class-exclusion issues	Judgment vacated and remanded because it did not exclude known excluded recipients and failed to describe the class per OCGA § 9-11-23(c)(3)
Meaning of “willful or knowing” for treble damages under TCPA	Fastsigns: knowing commission of the act suffices; no need to know the act violates the law	AHS: treble requires knowledge that conduct violated the TCPA	Court held willful/knowing means the defendant knowingly did the act (no requirement of knowledge the act violated the statute)
Burden to prove established business relationship defense	Fastsigns: defendant bears burden to prove any established business relationship	AHS: plaintiff should be required to prove lack of relationships before class certification/judgment	Court applied law of the case: defendant has burden to prove established business-relationship exemptions

American Home Svcs. v. A Fast Sign Co., 310 Ga. App. 315 (Ga. Ct. App.) (appellate opinion vacated and remanded earlier judgment)
A Fast Sign Co. v. American Home Svcs., 291 Ga. 844 (Ga.) (Georgia Supreme Court holding sender liable for attempted as well as completed fax transmissions)
Brandenburg v. All-Fleet Refinishing, 252 Ga. App. 40 (Ga. Ct. App.) (standard of review for bench trial factual findings)
Roscoe v. State, 286 Ga. 325 (Ga.) (circumstantial evidence and reasonable inferences support findings)
In the Interest of S. N. H., 300 Ga. App. 321 (Ga. Ct. App.) (requiring appellant to show harm as well as error)
Jones v. Forest Lake Village Homeowners Assn., 304 Ga. App. 495 (Ga. Ct. App.) (judgment must comply with OCGA § 9-11-23(c) when entering class judgments)
Center for a Sustainable Coast v. Coastal Marshlands Protection Comm., 284 Ga. 736 (Ga.) (deference to administrative agency interpretations)
Cox v. Garvin, 278 Ga. 903 (Ga.) (interpreting "willfully" as intent to do the act, not intent to violate law)
Fed. Trade Comm. v. Morton Salt Co., 334 U.S. 37 (U.S.) (party claiming an exception to a statute bears the burden of proof)