[To protect the privacy of innocent parties, some information has been redacted] 1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA 2 3 4 STEVEN BURKE, et al., . Docket No. CIV-00-649-M . 5 . Plaintiffs, . Oklahoma City, Oklahoma 6 . v. . 7 . ROBERT BRAVER, et al., . 8 . . 9 Defendants. . . . . . . . . . . . . . . . . . 10 11 TRANSCRIPT OF HEARING ON MOTION FOR PRELIMINARY INJUNCTION 12 TUESDAY, MAY 2, 2000 BEFORE THE HONORABLE VICKI MILES-LaGRANGE 13 UNITED STATES DISTRICT JUDGE 14 APPEARANCES: 15 For the Plaintiffs: MR. SCOTT G. ROBELEN Attorney at Law 16 10444 Greenbriar Place Oklahoma City, OK 73159 17 18 For the Defendant Braver: MR. NELSON J. CHRISTIANSEN Attorney at Law 19 421 East Comanche Suite A 20 Norman, OK 73069 21 For the Defendant XXXXXXXXXXXXXX: STEPHEN G. SOLOMON GEORGE W. VELOTTA, II 22 Attorneys at Law 4800 North Lincoln Blvd. 23 Oklahoma City, OK 73105 24 25 2 1 TABLE OF CONTENTS 2 EVIDENCE ON BEHALF OF THE PLAINTIFFS 3 WITNESSES: ROBERT BRAVER, 4 Direct Examination -------------------------6 Cross-Examination, 5 By Mr. Christiansen -------------------39 By Mr. Solomon ------------------------44 6 Redirect Examination -----------------------48 7 STEVEN BURKE, Direct Examination -------------------------51 8 Cross-Examination, By Mr. Christiansen -------------------64 9 By Mr. Solomon ------------------------66 10 ARCANGELO COPPOZZOLLA, Direct Examination -------------------------69 11 CLOSING ARGUMENT 12 BY MR. ROBELEN: Page 74 13 BY MR. CHRISTIANSEN: Page 77 14 15 16 17 18 19 20 21 22 23 24 25 3 1 THE COURT: Good afternoon, ladies and gentlemen. 2 CIV-00-649, Steven Burke, d/b/a Network Marketing 3 News versus Robert Braver, individually, and XXXXXXXXXXXXXX, 4 Inc. 5 Would counsel please make your appearances for the 6 record? 7 MR. ROBELEN: Scott Robelen, I am counsel for the 8 Plaintiff in this matter. 9 MR. CHRISTIANSEN: Nelson Christiansen, counsel for 10 Mr. Braver. 11 MR. SOLOMON: Stephen Solomon, counsel for XXXXX 12 XXXXXXXXX. With me, Bill Velotta from our firm, also counsel 13 for XXXXXXXXXXXXXX. 14 THE COURT: Very well. We are here this afternoon 15 for a hearing on the Plaintiffs' motion for a preliminary 16 injunction in this case. 17 Before we commence that hearing, let me ask, 18 Mr. Robelen, just before I walked in I was presented with an 19 Application to File a Supplemental Brief in Support of the 20 Preliminary Injunction, which is the subject of this hearing. 21 Can you tell me, what is this about? 22 MR. ROBELEN: That supplemental brief is setting 23 forth the standards for preliminary injunction; how the Court 24 will look at the evidence and apply those standards and what I 25 expect the evidence to be in this matter. 4 1 THE COURT: If the Court allows you to file this 2 supplemental brief, it is only appropriate that the Defendants 3 be able to file, if they so desire, a similar brief. 4 Let me ask you, have you all received it, 5 Mr. Christiansen and Mr. Solomon? 6 MR. CHRISTIANSEN: No, Your Honor, I had not received 7 it prior to arriving here today. 8 MR. SOLOMON: Your Honor, we received it in the mail 9 this morning. 10 THE COURT: Okay. Would you, on behalf of XXXXX 11 XXXXXXXXXXX, is it your pleasure to file some kind of supplemental 12 brief? 13 MR. SOLOMON: No, Your Honor. I don't think -- we 14 are not certain that we are actually a target of this 15 injunction. 16 THE COURT: I understand. 17 MR. SOLOMON: No, we would waive our right to respond 18 to that brief. 19 THE COURT: What about you, counsel? 20 MR. CHRISTIANSEN: I'm not sure it would be necessary 21 for us to respond, either, Your Honor. 22 THE COURT: Very well. 23 Well, the Court will receive this supplemental brief 24 of the Plaintiffs in this instance. 25 Ms. Coulter, if you would file this. 5 1 Mr. Robelen, I would recognize you to proceed with 2 the presentation of any evidence that you have in this cause. 3 MR. ROBELEN: Would Your Honor care for a brief 4 opening statement? 5 THE COURT: Very, very brief. 6 MR. ROBELEN: May I inquire of the Court whether we 7 have a time limit for this hearing? 8 THE COURT: Well, how much time do you need? 9 MR. ROBELEN: I would anticipate 30 to 45 minutes. 10 THE COURT: Very well. 11 MR. ROBELEN: Thank you. 12 OPENING STATEMENT 13 BY MR. ROBELEN: 14 Your Honor, may it please the Court, we are here 15 today to seek a preliminary injunction against Mr. Braver 16 basically asking the Court to prohibit him from contacting the 17 Plaintiff in this case, Steven Burke, Network Marketing News, 18 any further and particularly for the purpose of including his 19 fax numbers, of which he has many, on the Network Marketing 20 News fax system. 21 We will show that we have a strong likelihood of 22 prevailing on the merits of the claim; we will show without a 23 doubt that if the injunction is not issued, Mr. Burke has a 24 strong possibility of suffering irreparable harm. We will show 25 you that the interest of the Plaintiff in this case in 6 1 receiving the injunction far, far outweighs the burden upon the 2 Defendant if the injunction is issued. We will also tend to 3 show that if the injunction is issued, the public good will not 4 only be unaffected, but will probably be served. 5 With that, Your Honor, I would call Mr. Robert Braver 6 to the stand. 7 (Whereupon, Witness is sworn.) 8 DIRECT EXAMINATION 9 BY MR. ROBELEN: 10 Q. State your name. 11 A. Robert Herman Braver. 12 Q. Is it fair to say that you are on a crusade to stop what 13 you consider to be junk faxes? 14 A. I would not categorize it that way, no. 15 Q. How would you categorize it? 16 A. It is an unusual hobby. 17 Q. So it is, in fact, your hobby? 18 A. You could say that, yes. 19 Q. In fact, sir, you have made it your hobby to go after 20 Mr. Burke's customers; isn't that a fair statement? 21 A. That is part of what I have been doing. 22 Q. From this hobby you have earned a pretty good living? 23 A. Ah, no, I would not say that. 24 Q. You have earned more than $40,000 in settlements from 25 clients like Mr. Burke, correct? 7 1 A. That is incorrect. 2 Q. How much money have you earned? 3 A. Net of expenses, I don't know if I have earned anything as 4 of yet. 5 Q. Let's talk about gross of expenses, how much have you 6 grossed? 7 A. I believe in settlements and judgments, approximately 8 $30,000 -- 9 Q. Can you describe for the Court -- 10 A. -- and that's in the past two-year period. 11 Q. 30,000 in settlements? 12 A. And judgments. 13 Q. Have you collected any of your judgments? 14 A. Yes, I have collected. 15 Q. Of the judgments you have collected, how many have been by 16 default? 17 A. One. 18 Q. Describe for the Court, please, what you do when you 19 perceive that you received a junk fax? 20 A. Most of the time, nothing. I receive so many that I can 21 only act on a relatively small number of them. 22 Q. When you do act on them, tell the Court how you go about 23 acting on them? 24 A. I notify the -- I contact the sender, try to find out who 25 they are. 8 1 It really depends upon the circumstances. 2 Q. How do you contact the sender? 3 A. Again, it depends. Specifically in the case of the people 4 that seem to use Mr. Burke's service, they do not identify 5 themselves. There is usually nothing on the fax that 6 identifies who they are. So sometimes I have to go through 7 several steps in order to find out who they are. 8 Q. Sir, are you talking about specifically Exhibit A to your 9 response to the request for the injunction? 10 A. I don't have that in front of me. 11 MR. ROBELEN: May I approach the witness, Your Honor? 12 THE COURT: You may. 13 A. Yes. This particular fax is the one that started the 14 whole thing. I had never heard of Mr. Burke or I did not 15 receive a large number of pyramid scheme-type faxes until I 16 received this fax, which was -- according to the information at 17 the bottom -- was sent by a company which I also have a pending 18 action against. 19 Q. That's I-Net, right? 20 A. Yes, I-Net Marketing, right. 21 Q. In this particular case, Mr. Braver, what did you do when 22 you received that fax? 23 A. I called the telephone number to retrieve the fax -- to 24 retrieve the -- I didn't even -- well, I called the number to 25 retrieve the fax-on-demand document that I hoped to use to 9 1 identify who the sender was. I actually had to do it twice. 2 The first time I did it, I called from my regular telephone 3 and, you know, I'm in the computer industry and fax pack 4 systems are very popular. That's how -- prior to the web, 5 that's how a lot of companies disseminated information. 6 Q. This is called a fax-on-demand system, correct? 7 A. Evidently so, yes. 8 Q. Explain to the Court what a fax-on-demand system is and 9 how it works? 10 A. As I believe I stated in my brief, a fax-on-demand system, 11 you call into the system and traditionally the reason why I was 12 leading up to this was that traditionally you call into the 13 system, you request the document number that you want, you tell 14 it what your fax number is and the system faxes it back to 15 you. 16 When I called this telephone number, that is what seemed 17 to be the case. However, instead of the system telling me, 18 "Thank you, we are going to send you your fax," the system told 19 me to press the start button on my fax machine. 20 Q. So you entered your fax number in response to that? 21 A. I had already entered my fax number to retrieve this 22 document for this particular, whoever was sending out this fax. 23 Q. Let me stop you there. When you responded to this 24 particular fax, you contacted the fax-on-demand system of 25 Mr. Burke? 10 1 A. I have no idea whose fax-on-demand system it was. 2 Q. You knew you were putting in your fax number, though, 3 correct? 4 A. Yes. 5 Q. You knew that in anticipation of receiving additional 6 faxes? 7 A. I -- I -- I put that in in anticipation of receiving fax 8 document 114108, which would be for this person. 9 Q. Is it your testimony, Mr. Braver, that you did so only 10 because that's the only way you could find out who sent that 11 fax? 12 A. That is correct. 13 Q. Look on the bottom of that, sir, and tell the Court what 14 company it was that faxed that particular document? 15 A. I know what the company is, it is I-Net Marketing. 16 Q. Why didn't you call I-Net Marketing and ask them whose fax 17 it was? 18 A. In light of the fact that there is litigation pending with 19 that company, they are not -- I don't -- my experience has been 20 when I am dealing with people that are knowingly breaking the 21 law, they are generally not forthcoming with information. 22 Q. Did you try to call I-Net to find out who sent that fax to 23 you? 24 A. No, I did not. 25 Q. In fact, are you telling the Court now that you didn't 11 1 call them because they wouldn't respond to Robert Braver, in 2 your opinion? 3 A. I don't understand your question. 4 Q. My question is, sir, is the reason you didn't call I-Net 5 because you didn't think that they would respond to Robert 6 Braver, who has already sued them? 7 A. It did not even occur to me to try to contact I-Net 8 Marketing. I am trying to contact the person who is sending 9 this fax. 10 In many cases, people that are -- some of the people who 11 have sent out unsolicited faxed advertisements were sold a bill 12 of goods by a fax marketing company and did not know that it 13 was illegal and in many, many cases nothing further happens 14 after I advise the individual that this is actually not legal, 15 point them to some various resources, and that's the end of the 16 matter. 17 Q. This particular fax went to a fax machine where, sir? 18 A. In my home. 19 Q. How many fax machines do you have in your home? 20 A. I now have two. 21 Q. When did you start using two fax machines in your home? 22 A. I got the second one about six months ago, but it was not 23 used until about -- well, about the time that I did this. 24 If I may finish, to answer your question, when I first 25 called I was not calling from my fax machine, I had punched in 12 1 the number for my main fax machine that I have had for a couple 2 of years and it tells me to press the start button. I don't 3 have a start button, I'm not calling from my fax machine, so 4 when I realized that this was the type of system where you 5 actually had to call from the fax machine, in other words, it 6 did not call you back with a fax that actually transmitted the 7 fax back to you on your phone call that you, yourself, have 8 initiated. 9 So at that time I hung up and then I put -- I dialed -- I 10 picked up the handset on the little $99 fax machine that I had 11 purchased several months prior but had not put to use of any 12 substance -- 13 Q. What was the fax number on that machine? 14 A. 292-1333. 15 Q. Okay. Continue, please? 16 A. And that's when I retrieved the document, which I included 17 as Exhibit B in my brief. 18 Q. Now, when you received that document that you have marked 19 as Exhibit A to your brief, did you consider that to be an 20 unsolicited fax? 21 A. Yes. 22 Q. At that point did you realize that your fax number in your 23 home was on somebody's fax system? 24 A. Yes. 25 Q. So of course you called the number on the bottom and had 13 1 your number immediately removed? 2 A. No, I did not. 3 Q. Why not? 4 A. Because that's -- the law regarding unsolicited fax 5 advertising is not opt-out, it is opt-in. And by going along 6 with this, by going along with fax -- junk faxers, if you will, 7 who want you to call and remove your number, that is letting 8 them operate under a standard that is not what the law says. 9 Q. In your legal opinion? 10 A. Well, that's what the FCC says, as well. 11 Q. Isn't it true that if you had called that number, more 12 than likely your number would have been removed from that 13 company's fax list? 14 A. It has been my experience, in talking with a lot of people 15 from all over the country, that calling to remove your fax 16 number is generally ineffective in reducing unsolicited fax 17 advertisements. As a matter of principle, I won't do it. 18 Q. Let me ask the question a little differently. By not 19 taking steps to remove your number from whatever company sent 20 you that fax, you knew that you may get faxes in the future, 21 correct? 22 A. That is correct. 23 Q. If you got those faxes in the future, you would sue those 24 people that sent the fax to you? 25 A. It is a possibility. But, again, as I have stated before, 14 1 I receive so many unsolicited faxes, I don't have time to even 2 look at all of them, much less take action on them. 3 Q. Sir, how many fax numbers do you own? 4 A. I now have -- I have the two fax numbers in my home. 5 Q. What are those? 6 A. XXX-XXX-XXXX and XXX-XXX-XXXX. 7 Q. Okay. 8 A. I also subscribe to a service called EFax. 9 Q. How many numbers does EFax provide you with, fax numbers? 10 A. I now have -- I now have three fax numbers with EFax. 11 Q. What are those numbers? 12 A. I only know one of them, XXX-XXX-XXXX. 13 Q. What about XXX-XXX-XXXX? 14 A. I don't know. 15 Q. Any other fax numbers that you have? 16 A. Those are the only ones that I personally have. 17 Q. You personally have five fax numbers? 18 A. At this time I do, yes. 19 Q. What is the fax number for XXXXXXXXXXXXXX? 20 A. There are several. 21 Q. What are those numbers? 22 A. XXX-XXX-XXXX; XXX-XXXX-XXXX and XXX-XXX-XXXX. 23 Q. What about XXXX? 24 A. Doesn't ring a bell. 25 Q. You are the principal shareholder in XXXXXXXXXXXXXX? 15 1 A. I own 50 percent of the stock. 2 Q. Is it your testimony that each of these fax numbers has 3 been placed into Mr. Burke's system? 4 A. Not that I'm aware of, no. I have never received any of 5 the faxes that I have identified as coming from Mr. Burke 6 anywhere other than my two fax numbers at home and at least 7 two, or possibly all of my EFax numbers. 8 Q. You received a fax from a gentleman named David Reed; is 9 that right? 10 A. I don't recall. 11 MR. ROBELEN: May I approach the witness? 12 THE COURT: You may. 13 Q. Mr. Braver, I'm handing you Exhibit 13. I would ask you 14 to identify that for the Court, please? 15 A. This is a letter that I sent to David Reed in Santa Cruz, 16 California. 17 Q. What was the purpose of this letter? 18 A. It was to -- this is a demand letter advising him of the 19 violation of the TCPA that I have alleged and telling him that 20 I'm willing to discuss the possibility of arriving at a 21 mutually-acceptable settlement and that if he is interested in 22 attempting to reach a settlement, please contact me. 23 Q. Tell the Court what led up to your writing this letter? 24 A. I assume I received a fax that one way or another I 25 tracked down to Mr. Reed and then I contacted him. 16 1 Q. What was the first contact you had with him? 2 A. I don't recall. 3 Q. Is this letter a fairly standard letter that you send to 4 somebody when you receive an unsolicited fax? 5 A. Yes. 6 Q. You basically tell them that they have violated the law, 7 in your opinion? 8 A. Yes. 9 Q. You tell them that you are going to take them to court and 10 sue them? 11 A. I -- I tell them that I will -- if I do not hear from them 12 within, whatever period of time, I will vigorously pursue all 13 available remedies in a court of law. 14 Q. You tell them in your opinion how much money you would be 15 entitled to? 16 A. I outline the statute that I believe they violated in my 17 letter and I then outline what I believe the minimum statutory 18 damages are, which would be exclusive of the trebble damages 19 that I would be entitled to, or up to trebble damages for 20 willful and knowing violations. 21 Q. You tell them, "But if you don't want to go to court, you 22 can pay me money, settlement"? 23 A. I don't say that. I discuss arriving at a settlement. I 24 have settled cases without exchanging money. I have settled 25 cases on a promise that they are not going to send junk faxes 17 1 anymore. 2 Q. When you do so, you know that the people you are talking 3 to would have to hire a lawyer in Oklahoma to come down and 4 defend the case; is that right? 5 A. That's true, yes. 6 Q. You have five different fax numbers that you use? 7 A. I do now, yes. 8 Q. Five different personal fax numbers? 9 A. That is correct. 10 Q. Can you explain for the Court what EFax.com is? 11 A. EFax is a service that provides, in its simplest form, a 12 free fax number. You sign up for it and it randomly assigns 13 you a fax number located in any one of a number of locations 14 around the country. 15 The first one I signed up with was the 801 number, which 16 is in the Salt Lake City, Utah area. When a fax is sent to 17 that number, it is then transmitted by e-mail. 18 Q. So it is the company, EFax, that receives the fax, 19 correct? 20 A. EFax is a service. 21 Q. They are the ones that receive the facsimile transmission, 22 is that correct or not? 23 A. I would not characterize it that way. I receive the 24 facsimile transmission. It is a number that is assigned to me 25 for my use. It is just like if I were to call Southwestern 18 1 Bell and have them put a line in, that would also be, even 2 though it is Southwestern Bell's line, it is still I would be 3 the one receiving the fax. 4 Q. The fax is transmitted to you by electronic mail? 5 A. That's correct. 6 Q. By EFax? 7 A. That's correct, that's the way the system works. 8 Q. You have three of those numbers? 9 A. Yes, I do. 10 Q. Are there any other companies that do this similar service 11 that you have numbers with? 12 A. Actually, yes, there is. When I signed up for my cable 13 modem, Road Runner, they also offer a fax service. It is 14 completely free and so I went ahead and signed up for that, as 15 well. 16 Q. So you have six fax numbers? 17 A. That is correct. 18 Q. Six personal fax numbers? 19 A. That is correct. 20 Q. Mr. Braver, have you ever had a situation where you have 21 called one of these people that you believe sent you an 22 unsolicited fax and they asked you your fax number? 23 A. Yes. 24 Q. What do you tell them? 25 A. I give them one of my fax numbers. 19 1 Q. Have you ever refused to give your fax number? 2 A. I have refused giving out the number, yes. 3 The primary reason why I got the EFax account was so that 4 I could provide a fax number to people or send correspondence 5 with the quote-unquote junk faxers without divulging the actual 6 fax number that I had received their faxed advertisement on. 7 Q. Why would you not want to divulge the fax number? 8 A. Because if the junk faxers simply remove the fax numbers 9 of the people such as myself, and there are other people that 10 do this who are civic-minded individuals that are taking 11 advantage of or are using the law as it was intended to put a 12 stop to this practice, and they just simply avoid the squeaky 13 wheels, then they will continue their illegal activity 14 unambitious. 15 The FCC, which was charged with rule making, specifically 16 said that I do not have to give out my fax number. Therefore, 17 I am not. The obligation is not on me to ask to have my fax 18 number removed everytime I get one of these nuisance faxes; the 19 obligation is on the sender of the fax to not send an 20 advertisement to me unless they have my prior, express 21 invitation or permission. That's what the law says. 22 Q. As I understand you, you don't provide your fax number 23 because you don't want it removed from the system, correct? 24 A. I do not want to play into -- 25 Q. Just answer my question, please, yes or no. The reason 20 1 you don't give your fax number is because you don't want your 2 fax number removed from the system; is that correct? 3 A. I will not characterize it that way. I do not want them 4 to send unsolicited fax advertisements in violation of the 5 law. I am not going to enable them to continue their practice 6 by giving out the fax number to be removed when the law says 7 that that's not the way it works. 8 That is the way it works for live operator telemarketing 9 calls. They can call you until you tell them to stop. That's 10 not the way it is for faxed advertisements. You can't send it 11 in the first place unless you have the recipient's prior 12 express permission or invitation. 13 Various junk faxers have petitioned the FCC and have asked 14 for reconsideration, have asked that the standards be lowered 15 or that -- in fact, the exact language that the FCC used was, I 16 believe, refusal to contact an 800 number to ask for removal 17 constitutes permission. The FCC was very clear in saying, no, 18 that is not the case; there is no such obligation. 19 Q. Sir -- 20 A. So it is specifically addressed. 21 Q. I appreciate your legal opinions in this case, -- 22 A. You are welcome. 23 Q. -- but my question is factual. It is a yes or no 24 question. Is the reason that you do not put the fax numbers 25 down or give these people the fax numbers is because you don't 21 1 want your number removed from the system? 2 A. I can't answer that with a yes or no answer. 3 Q. Well, if you don't give them the fax number and your 4 various fax numbers are not removed, you can expect to receive 5 more faxes, correct? 6 A. If they are acting illegally, in an unlawful manner, yes. 7 I'm not going to ask the car thief not to steal my car and the 8 car thief is not free to steal my car unless and until I demand 9 that he not and then just to have him go on to the next car. 10 The car thief needs to be stopped. 11 Q. But you are not going to put your keys in the ignition and 12 tell the car thief to go steal the car, are you? 13 A. I'm not exactly doing that. 14 Q. Isn't it true, sir, that every one of Steven Burke's 15 clients have asked for your fax number and you refused to give 16 it to them? 17 A. I wouldn't say every one. I'm sure a few have. But 18 generally in this case, since they are not the ones that are 19 arranging it, is all generally done through Mr. Burke, they 20 don't even know who they are faxing. They simply pay Mr. Burke 21 to send their advertisement to a given number of recipients. 22 Q. Do you know how Mr. Burke's system works? 23 A. I do now, yes. I did not know at the time that I ended up 24 on his system and started getting all of these faxes. 25 Q. Why don't you tell the Court what your knowledge of 22 1 Mr. Burke's system is? 2 A. As -- again, as I stated in my brief, it is my belief that 3 when someone, such as what I did in this case where I received 4 a faxed advertisement and the only method of responding to that 5 person was through a fax-on-demand system, I called, I put in 6 my fax number, I couldn't retrieve the fax, I had to hang up 7 because it didn't send it to me, so I had to call from the 8 handset of my other fax machine to actually reretrieve the 9 document. Within several days of having done that, within a 10 day or two of having done that, I started receiving an obscene 11 number of unsolicited faxed advertisements for what appeared to 12 me to be illegal pyramid schemes. 13 Q. You called the fax-on-demand number -- 14 A. Yes. 15 Q. -- with your machine. 16 A. Yes, I did. 17 Q. You placed your fax number into the system? 18 A. Yes. 19 Q. That is a number that is reserved for people who actually 20 want information of this type, isn't it? 21 A. I don't understand your question. 22 Q. Sir, the people that want information of the type 23 advertised in that flyer are instructed to call the FOD, give 24 it the fax number, so they can get faxed information? 25 A. I think I know where you are leading. 23 1 Q. I'm not leading anywhere, sir, just please answer my 2 question. 3 A. If -- let me answer it in this way. If there was a 4 document that says -- that came that said or if I responded to 5 something in a publication or something that says, "Here, key 6 in your fax number and you will receive 20 to 30 offers per day 7 if you are interested in these kinds of things," if I had 8 responded to an advertisement like that, I could understand 9 your point, but that's not what the situation is. 10 There was absolutely no indication whatsoever that I was 11 going -- that my fax number that I used to retrieve this 12 document was going to be then used to send me literally 13 hundreds of other offers, was going to be sold to other fax 14 broadcasters so I would start receiving fax broadcasts from 15 other companies, sold to other people that are just buying 16 lists. There is absolutely no indication whatsoever that the 17 fax number was going to be used for that purpose. 18 I have used fax-on-demand systems for years and years and 19 years and I have never had a problem with fax numbers being 20 given for one purpose and then being used and sold for the 21 purpose of disseminating advertisements. 22 Q. Isn't it true that you called that fax-on-demand number so 23 you could find out the name and address of the company that 24 sent that fax? 25 A. The person on whose behalf this fax was sent; the 24 1 advertiser is who I tried to find, yes. 2 Q. You did that for the purpose of telling them they violated 3 the law? 4 A. Yes. 5 Q. That you were going to sue them, but you would settle with 6 them? 7 A. Not necessarily. It really -- I take it on a case-by-case 8 basis. In this case, I never did -- I don't believe I ever did 9 contact the recipient of this. It seemed to me to be a pure 10 and simple pyramid scheme. I simply took the information and I 11 drafted a complaint. The sender was in Florida. I sent it to 12 the Florida Attorney General and they, in turn, forwarded it to 13 the FTC. 14 MR. ROBELEN: May I approach again? 15 THE COURT: You may. 16 MR. ROBELEN: May I question briefly from here? 17 THE COURT: Yes, briefly. 18 Q. The bottom of this fax, you called that number with your 19 fax machine and input your fax number? 20 A. That is correct. 21 Q. Above that it says, "For additional information 22 fax-on-demand"? 23 A. That is correct. 24 Q. You knew when you were putting your number in there that 25 you are going to receive faxes regarding this company? 25 1 A. I knew that I was going to retrieve document number 2 114108, which does not constitute permission to send -- for 3 anyone and their cousin to start sending me dozens or hundreds 4 of faxes. 5 Q. You have told the Court again that that -- by putting your 6 fax number into this system, that that was the only possible 7 way you could find out who sent the fax? 8 A. That was the only practical way to find out, yes. 9 Q. That's not what you said in your testimony. You said it 10 was the only possible way. Is that still your testimony? 11 A. I suppose it would have been possible for me to send a 12 subpoena to this company, but that would not be very 13 practical. I mean, when you say, "possible," there is -- for 14 all intents and purposes, yes, that was the only possible way. 15 They did not say who they were; they did not say, "Hi, this is 16 so-and-so company; this is our address; this is our phone 17 number; this is the person you should ask for." There is no 18 information on here whatsoever identifying the sender of the 19 fax other than the fax-on-demand number. 20 Q. Just to clarify, that fax wasn't sent by Mr. Burke, was 21 it? 22 A. No, it was not. 23 Prior to receiving this -- 24 MR. ROBELEN: Your Honor, please instruct the 25 witness just to answer my questions. 26 1 THE COURT: Yes, I would. 2 THE WITNESS: Sorry. 3 Q. That fax-on-demand number in that particular document is 4 the one that people would use to get additional information if 5 they are interested in the product that is being advertised? 6 A. Presumably. Or in my case, to contact the company for any 7 other reason, which can be because not that I'm not interested 8 in the product, but I want to contact the company because I'm 9 not happy about receiving an unsolicited faxed advertisement. 10 Q. You have been experienced in this area and you knew when 11 you put your fax number in there that your fax number was going 12 to become a part of that system, didn't you? 13 A. I had no idea; this has never happened to me before. 14 Q. You have told the Court that Mr. Burke took your fax 15 number and disseminated it? 16 A. Evidently so, yes. 17 Q. Sir, what proof do you have of that? 18 A. Well, first of all, within -- as I mentioned before, I had 19 put in two different fax numbers, because when I first put in 20 the fax number, I then realized, after the fact, that I had to 21 be calling from an actual fax machine. 22 In all my years, I have never encountered such a system. 23 As a general rule, you punch in your fax number so that the 24 system can call you back. So I had my one fax machine and then 25 the second fax machine that I was able to actually retrieve the 27 1 document, because I could call from the handset. My first fax 2 machine doesn't have a handset. 3 Within a day or two after retrieving this document, I 4 started to receive approximately 20 faxes per day on both of 5 these machines. 6 Q. From the same sender? 7 A. Right, I would receive the same fax on both machines. 8 They would be -- it would be roughly a duplicate. I think 9 there was a couple of discrepancies where I only received one 10 fax on one machine, but I started receiving a large number of 11 faxes on each of my two machines. 12 Q. Is it not true that you have used all six of your fax 13 numbers, your personal fax numbers, to key into these various 14 fax-on-demand systems? 15 A. No, not all of them. Once I found that Mr. Burke was 16 starting to warn his clients that I might be calling to try to 17 identify them, that is, in fact, the reason why I obtained an 18 additional Efax number. And then another Efax number was so 19 that when I called and retrieved a fax-on-demand document, 20 Mr. Burke wouldn't see my fax number as retrieving the document 21 and then call and tip-off the client to let him know that I may 22 be calling to try -- that I'm trying to track them down. 23 Q. How many of your personal fax numbers have you placed into 24 the system by using the fax-on-demand system? 25 A. It is hard to say; four, perhaps five. 28 1 Q. Out of the six? 2 A. Including the first two, right. 3 Q. In doing so, you know that that fax number is going to 4 become part of that database, that system? 5 A. Yes. Initially, I had no idea. The first two -- the 6 first time where I put in the two fax numbers, I had no idea. 7 Afterwards, once I learned what Mr. Burke was doing and how his 8 system worked, yes, I did know that there was a likelihood that 9 I would start receiving junk faxes on these other fax numbers 10 once I keyed them in. Yes, I was aware of that. However, that 11 was not the reason for putting those fax numbers in. The 12 reason for doing that -- 13 Q. That wasn't my question. My question is when you -- 14 A. Sorry. 15 Q. -- when you keyed in your four to five personal fax 16 numbers into an FOD system, you knew that there was a 17 substantial likelihood that you were going to get faxes? 18 A. Yes, I did. 19 Q. You invited those faxes? 20 A. I did not invite them, no. 21 Q. Mr. Braver, if the Court prohibits you from placing any of 22 your various fax numbers into Mr. Burke's system, how is that 23 going to hurt you personally? 24 A. Well, I have a right, a substantial right conferred by 25 Congress to pursue and seek damages from those that send 29 1 unsolicited faxed advertisements to me. 2 In the course of investigating and determining the origin 3 of the faxes, in some cases -- and I might add, a very, very 4 small number of cases; I doubt that I have called more than a 5 dozen times out of the hundreds of faxes that I have received, 6 to have to do this -- but should I receive faxes like this 7 where there is no identification of the sender -- which, by the 8 way, is yet another violation of the Telephone Consumer 9 Protection Act. 10 Q. But not Mr. Burke's? 11 A. Pardon me? 12 Q. That's not Mr. Burke's violation. We have already 13 established that. 14 A. In my opinion, actually, yes, it is under the TCPA. 15 Q. Mr. Burke didn't fax that document to you? 16 A. No, not this particular one. I'm referring to the ones, 17 the continuing faxes that I have received that may -- this 18 seems to be an anomaly. This was sent by a company in 19 Maryland. This fax broadcaster is a company in Gaithersburg, 20 Maryland, but they are using Mr. Burke's fax-on-demand 21 service. This seems to be the anomaly and this is how this all 22 got started. As a general rule, most of the faxes that are 23 sent by Mr. Burke on behalf of his clients, if those faxes have 24 a fax-on-demand, they tend to be also Mr. Burke's fax-on-demand 25 service. So most of the faxes are not only sent by Mr. Burke, 30 1 but if they use a fax-on-demand, they are also Mr. Burke's 2 fax-on-demand. 3 Q. Back to my question. If the Court enjoins you from giving 4 your various fax numbers or putting your various fax numbers 5 into Mr. Burke's system until this case is concluded, how is 6 that going to harm you? What burden is that going to place on 7 you personally? 8 A. It restricts my ability to retrieve a document when that 9 is the only way I have of identifying the sender of a fax. 10 Q. We have already established that that's not the only way 11 you have; isn't that true? 12 A. At this stage of the game I would tend to agree, because 13 in fact I have not put -- I have not retrieved a fax-on-demand 14 system document in quite sometime. 15 I have now commenced a civil action against Mr. Burke in 16 Cleveland County District Court. I will -- and now that I have 17 done that, I do believe that I will be able to use other tools 18 to find out the identity of the senders that will be much less 19 burdensome on me. 20 Q. So with that in mind, then let me ask the question once 21 again. 22 If the Court enjoins you from placing your various 23 personal fax numbers into Mr. Burke's system, how is that going 24 to be a burden on you? 25 A. At this time, in and of itself, that would not be a 31 1 substantial burden, because I do not have much of a need of 2 doing that and haven't for sometime. 3 Q. You have received faxes that you deemed unsolicited, 4 right? 5 A. Yes. 6 Q. On many of those occasions you have called the person 7 faxing it? 8 A. On a number of occasions. 9 Q. You have sent letters? 10 A. On a number of occasions. 11 Q. In your telephone calls, your letters, you are telling the 12 person they have violated the law, at least on occasion? 13 A. Yes, I tell them that I believe that they violated the 14 law, yes. 15 Q. You told them that you are entitled to monetary damages? 16 A. I believe so, yes, words to that effect. 17 Q. Now, if it turned out that the way that Mr. Burke's system 18 works is in compliance with the law and you have told 19 Mr. Burke's customers that, that would be a misrepresentation, 20 wouldn't it? 21 A. Well, the law says that -- 22 Q. Just -- please just answer my question. 23 Yes or no? 24 A. I don't believe I misrepresented the law. 25 Q. My question was if it turns out that Mr. Burke's operation 32 1 is in full compliance with the law and you have told his 2 customers that their faxes violated the law and that you are 3 entitled to damages, that would be a misrepresentation, 4 wouldn't it, assuming those facts? 5 A. Right. Assuming those facts, no, it would not, because it 6 still would not -- whether Mr. Burke's system or not was -- is 7 in compliance with the law or not is not relevant to the person 8 on whose behalf the fax was sent sending me a faxed 9 advertisement without having my prior express permission or 10 invitation. 11 Q. Could you identify Exhibit 12, please? 12 A. This is a letter that I sent to Joseph Hatton in Deland, 13 Florida. 14 Q. Number eight, please? 15 A. Evidently a letter I sent to Karen Suller and Karen Quail 16 in Dearborn, Michigan. 17 Q. Number 9, please? 18 A. This is a letter I sent to Tony D'Amato in Miami Beach, 19 Florida. 20 Q. Number ten, please? 21 A. This seems to be a duplicate of -- wait -- number ten is a 22 duplicate of your exhibit eight. 23 Q. Eleven, please. 24 A. Oh, yes, a letter I sent to Ricky Jepsen in California. 25 Q. All of these people are Mr. Burke's clients, correct? 33 1 A. Ah, that I don't know. I would have to -- I would have to 2 look into that. 3 MR. ROBELEN: At this time I would move for the 4 admission of Exhibits 13, 8, 9, 11 and 12. 5 THE COURT: Is there any objection? 6 MR. SOLOMON: We would like to have a copy of it, 7 please. 8 MR. ROBELEN: Sure. 9 MR. SOLOMON: No objection. 10 MR. CHRISTIANSEN: No objection. 11 THE COURT: Those exhibits are admitted. 12 Q. (By Mr. Robelen) Mr. Braver, assuming with me for the 13 moment that the faxes sent through Mr. Burke by each of these 14 individuals listed in these letters were deemed not to be 15 unsolicited, wouldn't your statements that the faxes are 16 illegal and that you are entitled to damages be a 17 misrepresentation? 18 A. Are you asking are these letters misrepresentations? 19 Q. No, sir, I'm asking you -- well, you have made 20 representations in these letters that their faxes are illegal 21 and that you are entitled to damages. 22 A. As it says, that it is my position that these faxes are in 23 violation. 24 Q. Let's look at Exhibit 13, shall we? 25 A. Okay. 34 1 Q. I direct you to the second to the last paragraph. 2 A. Yes. 3 Q. In that paragraph you are telling Mr. Reed he has 4 committed three separate and distinct violations of the law and 5 that you are entitled to minimum statutory damages of $3,000, 6 correct? 7 A. As well as be entitled to seek an injunction, yes, that is 8 correct. 9 Q. My question is if it turns out that the facsimile sent to 10 you through Mr. Burke by Mr. Reed was not, quote, "unsolicited" 11 end quote, by the terms of the law, these statements made in 12 your letter would be misrepresentations, wouldn't they? 13 A. No, they would be good faith mistakes. 14 Q. You have gone on a personal crusade against Mr. Burke, 15 haven't you? 16 A. No, I have not. 17 MR. ROBELEN: May I approach again, Your Honor? 18 THE COURT: Yes. 19 Q. Would you please identify Exhibit No. 2 for the Court? 20 A. This is a copy of a page on my web site that discusses 21 Steven Burke Network Marketing News. 22 Q. How many pages is this? 23 A. How many pages is it? Well -- 24 Q. How many printed pages? 25 A. Printed pages, three pages. 35 1 Q. This is available on your web site, correct? 2 A. Yes, it is. 3 Q. It is entitled, "What you should know about Steven Burke 4 and Network Marketing News Fax Broadcast Service"? 5 A. That's correct. 6 Q. It is directed towards people who are thinking about using 7 Mr. Burke's services, wouldn't that be a fair statement? 8 A. It would be a fair statement to say that it would be 9 directed to people who have already used Mr. Burke's service. 10 I did this after talking to numerous clients of Mr. Burke who 11 were not made aware of the legal ramifications of sending 12 unsolicited faxes. I address not only the issue of unsolicited 13 faxes, the very first thing I address is the issue of 14 multi-level marketing or pyramid schemes and providing links to 15 additional information, other web sites that are tailored to 16 helping people make educated decisions about whether or not 17 they want to be involved in pyramid schemes. 18 Q. You have Mr. Burke's picture on this document, don't you? 19 A. I got -- the picture is actually from Mr. Burke's web 20 site. 21 Q. You have gone into Mr. Burke's web site and taken his 22 picture from his web site and put it on our web site? 23 A. No, I have not. 24 Q. How did it come into your web site? 25 A. If you look at the code for that, I simply have a 36 1 reference to the picture on Mr. Burke's web site. When you go 2 to my page and you pull this down with your web browser, the 3 picture is actually retrieved from Mr. Burke's web site, not 4 mine. 5 Q. So I don't actually see the picture on the web site when I 6 go to your web site? 7 A. You do see the picture, but just to make the distinction, 8 I did not copy the picture to my web site, I simply have a link 9 to the picture as it sits on Mr. Burke's web site. If 10 Mr. Burke were to remove the picture or change the name of the 11 picture, then it would no longer show up on my web site. 12 Q. Mr. Braver, let me ask the question just as simply as I 13 possibly can. You took some affirmative step in designing your 14 web site to be sure that Steven Burke's picture was there? 15 A. Yes, I did. 16 Q. To do that -- 17 MR. SOLOMON: I object to this as not being 18 relevant. It is not testimony related to the issues before the 19 Court today. 20 THE COURT: What do you say? 21 MR. ROBELEN: It goes to Mr. Braver's motives against 22 Mr. Burke in this particular case. If I could have just a 23 little bit of leeway, I will show that the purpose of this web 24 site is to clearly destroy Mr. Burke's business. 25 MR. CHRISTIANSEN: I object, also. We have already 37 1 been going for 45 minutes and we haven't had any testimony 2 about enterprise or association or any elements required for a 3 RICO cause of action. We have all learned a lot about 4 marketing, but really this is irrelevant. 5 THE COURT: I am going to sustain the objection. 6 Q. (By Mr. Robelen) Is it your testimony before the Court 7 today that you have never used any XXXXXXXXXXXXXX, Inc. assets 8 to further your enterprise? 9 A. That is correct. 10 MR. ROBELEN: May I approach? 11 THE COURT: You may. 12 Q. Let me hand you Exhibit No. 7, Mr. Burke (sic) -- 13 A. Mr. Braver. 14 Q. -- Mr. Braver. Tell the Court what that is, please? 15 A. (No response). 16 Q. What is Exhibit 7, Mr. Braver? 17 A. This is evidently a copy of a fax that I sent. 18 Q. That was sent from XXXXXXXXXXXXXX's fax number, wasn't it? 19 A. Evidently it was, yes. I remember sending this. 20 Q. It was sent to somebody who had sent you what you believed 21 to be an unsolicited fax? 22 A. Right. 23 Q. You were asking for this information for the purpose of 24 finding out who it was that sent the fax so you could send them 25 a demand letter? 38 1 A. That is correct. 2 Q. Mr. Braver, what harm or detriment would can come to you 3 personally if the Court were to ask you to remove information 4 from your web site regarding Steven Burke until the pendency of 5 this case is over? 6 A. My First Amendment rights would be abridged. 7 Q. Any other harm? 8 A. No. 9 The purpose of this is simply to disseminate information 10 to try to help people and keep other people from being harmed; 11 namely, the people who I consider to be Mr. Burke's victims. 12 MR. ROBELEN: Pass the witness. 13 THE COURT: Cross-examination. 14 MR. CHRISTIANSEN: Briefly, as a preliminary matter, 15 earlier when I had no objection to the supplemental brief that 16 was filed today, I took it as an assumption -- maybe I should 17 have clarified then -- that I would be given an opportunity to 18 make a brief legal argument at the conclusion of the hearing. 19 If I can do that, I think in a few minutes I can state the 20 pertinent legal authorities that I would like to call to the 21 Court's attention and not require a further brief. 22 THE COURT: You may. 23 MR. CHRISTIANSEN: May I approach the witness? 24 THE COURT: You may. 25 39 1 CROSS-EXAMINATION 2 BY MR. CHRISTIANSEN: 3 Q. Mr. Braver, can you identify that? I request that that be 4 marked as Defendant's Exhibit 1? 5 A. Yes, this is a copy of a web site that I was -- or a page 6 on Mr. Burke's web site that I was made aware of last week. 7 Q. Did you copy that yourself? 8 A. Yes, I copied it and printed it this morning. 9 Q. Turn to the last page of that, please. 10 A. Yes. 11 Q. Tell me the name that appears below? 12 A. Who signed the article? 13 Q. Yes. 14 A. Steven Burke. 15 Q. What does that final paragraph say? If you would, please 16 read that to the Court? 17 A. I think what you are referring to is, "If you plan to use 18 a third-party fax broadcasting service bureau like ours to do 19 your broadcast for you, I say go for it two thumbs 20 enthusiastically up from here. If, on the other hand, you plan 21 to do your own broadcasting, or use a service that will not 22 take responsibility for sending out the fax, I recommend that 23 you do the following to insulate yourself from lawsuits against 24 which you would have no defense: Do not publish your address, 25 phone or fax number; and, route all responses through a voice 40 1 mail or live operator answering service. In plain English, 2 make sure that you are untraceable." 3 Q. Isn't it that type of conduct, the untraceabiltiy, that 4 you are attempting to circumvent when you called back the 5 fax-on-demand systems to trace the sender of those faxes? 6 A. That's precisely correct. 7 MR. CHRISTIANSEN: May I approach? 8 THE COURT: You may. 9 Q. I hand you what has been previously marked as Plaintiffs' 10 Exhibits 12, 11, 10, 9 and 8. 11 THE COURT: Mr. Christiansen, have those exhibits 12 been previously marked? 13 MR. CHRISTIANSEN: My copies have been marked, Your 14 Honor. 15 THE COURT: Very well. 16 Q. I direct your attention to the second paragraph of that 17 letter. I would ask if you could read that for us? 18 A. "It is my position that these facsimile transmissions are 19 in violation of the Telephone Consumer Protection Act of 1991." 20 Q. Is that a statement of opinion, in your view, or a 21 statement of legal fact? 22 A. It is a statement of opinion. 23 Q. Mr. Braver, have you ever been previously contacted by 24 Mr. Burke or his company or any of their agents or employees, 25 to your knowledge, to ask if they could send junk faxes to you? 41 1 A. No. 2 Q. No one ever contacted you to ask you for your express 3 invitation or permission; isn't that right? 4 A. That is correct. 5 Q. To your knowledge, have you ever taken any action to 6 voluntarily give your permission or invite these junk faxes 7 that you object to? 8 A. I have not. 9 Q. Would it be possible for you to initiate an action -- I 10 think most of the cases you have brought have been in Cleveland 11 County, so let's just use that for our example -- would it be 12 possible for you to initiate a case in Cleveland County with an 13 unnamed defendant, Robert Braver versus the unknown defendant? 14 A. I have, only as far as I needed to obtain a subpoena to 15 get phone company records, but that's a very difficult process. 16 Q. Ultimately, however, though, in your experience in the 17 legal process you have to put a name with your defendant, don't 18 you? 19 A. That is correct. 20 Q. That's all you were trying to do when you contacted 21 Mr. Burke's company? 22 A. That is correct. 23 I'm sorry, let me back up a little bit. I did not -- I 24 did not know I was contacting Mr. Burke's company. It is just 25 a fax number or a number to call for fax-on-demand. I had no 42 1 clue who operated it, whether it was operated by a third party, 2 whether it was actually owned by the sender of the fax. I had 3 no idea who it was; I was just following the instructions on 4 the fax. 5 Q. Right, and I misspoke my question and I apologize. Thank 6 you for bringing that to my attention. 7 Have you ever litigated the issue in any of your cases in 8 state court and perhaps raised as a defense in some of these 9 cases regarding whether you have a duty to call the faxer to 10 seek to have your name removed? 11 MR. ROBELEN: Your Honor, I object based upon 12 relevancy. 13 MR. CHRISTIANSEN: Well, it is made relevant by the 14 direct examination of the witness, Your Honor. 15 THE COURT: Overruled. 16 A. Could you repeat the question? 17 Q. Have any of the defendants in your state court actions 18 ever raised, perhaps as a defense to liability, that you should 19 you have asked them to take your name off their list? 20 A. Yes. 21 Q. What has been the result of those? 22 A. The Court rejected that argument. 23 Q. Has that happened on more than one occasion? 24 A. On this exact issue, I only believe that happened on one 25 occasion that I can recall. 43 1 Q. This is not the first time, is it, that someone has 2 criticized you for acting as a private plaintiff in these 3 Telephone Consumer Protection Act cases, is it? 4 A. Oh, no. 5 Q. What is your reaction to being criticized for that? 6 A. I -- it tends to strengthen my resolve and tells me that 7 I'm doing something right when I start perceiving criticism, 8 attacks, various other forms of harassment. That lets me know 9 that I'm hitting my mark and making a difference. 10 Q. I want to clarify one thing, too, earlier in the direct 11 examination I think one of the questions directed to you used 12 the term "enterprise." I didn't know if you had picked up on 13 that or not. 14 Were you aware that the question asked by Mr. Robelen used 15 the term "enterprise" probably as a term of art as that's 16 intended in a RICO action when you answered his question? 17 A. No. 18 MR. CHRISTIANSEN: I think that's all of the 19 questions that I have now, Your Honor. 20 THE COURT: Mr. Solomon, any cross-examination? 21 MR. ROBELEN: XXXXXXXXXXXXXX, there is no direct 22 action here involving XXXXXXXXXXXXXX. We are not seeking an 23 injunction against XXXXXXXXXXXXXX and I don't believe XXXXX 24 XXXXXXXX's counsel at this time has standing to participate in 25 these proceedings. I would object on that basis. 44 1 THE COURT: What do you say? 2 MR. SOLOMON: Well, Your Honor, my concern is that 3 that counsel -- of course we have a pending motion on file, 4 Motion for Summary Judgment, which in effect includes, by 5 inference, a motion that there is no jurisdiction in this Court 6 to even have XXXXXXXXXXXXXX, or this Defendant, there is no 7 jurisdiction under RICO based upon the invalidity of the 8 complaint. 9 We have been assured by this counsel that he seeks no 10 injunction against us. Our concern, however, is that he has 11 asked this witness a question and has indicated -- I assume he 12 is trying to prove that there is a connection between XXXXX 13 XXXXXXXX and Mr. Braver's actions. 14 My questions are really going to be limited to only 15 cross-examining him about the relationship that he has with 16 XXXXXXXXXXXXXX. 17 THE COURT: I'll allow that. 18 CROSS-EXAMINATION 19 BY MR. SOLOMON: 20 Q. Mr. Braver, when did we first meet? 21 A. An hour ago, hour-and-a-half ago. 22 Q. Out in the hall? 23 A. Yes. 24 Q. As I understand it, you are a 50 percent shareholder in 25 XXXXXXXXXXXXXX? 45 1 A. That is correct. 2 Q. The way that corporation operates, does that give you 3 control over the corporation? 4 A. No, it does not. 5 Q. Tell the Court how you and your other shareholders operate 6 the company? 7 A. I own 50 percent and the other three shareholders 8 collectively own the other 50 percent, roughly divided equally. 9 They -- we determined some years ago that they, the three of 10 them collectively would out-vote me so we would not have -- we 11 would never have a situation in a vote that would be a tie. 12 Q. Mr. Braver, did you present this proposal -- did you 13 present a proposal to XXXXXXXXXXXXXX to pursue the activity 14 that you are now pursuing? 15 A. Yes, I did. 16 Q. What was the result of your proposal to the company? 17 A. It was decided that the company would rather not be 18 involved in pursuing TCPA actions. 19 Q. At any time since that proposal was made has the company 20 been involved in any material way in your pursuit of relief 21 under this federal act? 22 A. No. 23 Q. You testified earlier that you sent a fax on a company 24 machine? 25 A. I don't recall testifying to that, but if you are 46 1 referring to Plaintiffs' Exhibit 7. 2 Q. Yes. 3 A. Yes, evidently -- yes, yes, evidently I did. That is, by 4 far, the exception and not the rule. I -- now that I have seen 5 this, I remember the specific incident or occasion in which I 6 sent this. I was rather rushed and sent it through a company 7 fax machine, but by and large I don't do that. I have had my 8 own and I use those. 9 Q. Have you just as often sent, on some occasions, some 10 personal fax on the company machine? 11 A. I have on other occasions sent personal faxes on the 12 company machine and it is permissible for employees to make 13 reasonable use of company -- you know, telephone, paper clips, 14 et cetera, for their personal use. 15 Q. That's other than for your use in this action that you 16 have taken against Mr. Burke and others? 17 A. Yes. 18 Q. Does the company XXXXXXXXXXXXXX participate with you in 19 any way in your pursuit of relief under this federal law? 20 A. No. 21 Q. Other than this fax that you testified to, have you used 22 any of the company assets in pursuit of the relief that you 23 have sought in Cleveland County District Court? 24 A. Not in any substantial way. I have used the office copier 25 on occasion, but again no more so than any employee. We let 47 1 employees use the postage meter; we let employees -- they have 2 to write the postage that they have used and they are billed 3 for it quarterly. We let employees make phone calls and do 4 other things within reasonable limits, but I specifically -- 5 for example, on occasion when I receive a phone call, a return 6 phone call, which many of them are going to be during the 7 business day, those phone calls are directed to my personal 8 cell phone which I pay for, versus my office phone, because I 9 make an effort to not connect my personal business with XXXXX 10 XXXXXXXX. 11 MR. SOLOMON: Thank you, Your Honor. 12 At this time we move to dismiss this case for lack of 13 jurisdiction and because it fails to state a cause of action 14 which would give the Court jurisdiction under RICO, because 15 primarily the legal arguments we made in our Motion for Summary 16 Judgment, but I think it is clear that this Plaintiff, after 17 being sued in Cleveland County, has come up here and filed a 18 RICO action in pursuit of perhaps a claim that he could bring 19 in Cleveland County, but it is not appropriate to be brought as 20 a RICO action in this court. 21 THE COURT: The Court will just take that under 22 advisement. 23 I would also note that the motion, your summary 24 judgment motion, I am going to wait until I get responses. The 25 time hasn't run on those yet. 48 1 MR. SOLOMON: Thank you. 2 For the record, I don't believe that the Defendants' 3 Exhibit 1 was admitted. I guess that's outside of what I said 4 I was going to ask, but for the record I would like to ask the 5 Court at this time that that Defendants' Exhibit 1 be admitted. 6 THE COURT: Is there an objection, Mr. Robelen? 7 MR. ROBELEN: No objection, Your Honor. 8 THE COURT: It is admitted. 9 Any redirect? 10 MR. ROBELEN: Just briefly, Your Honor. 11 THE COURT: Let me just say at this juncture, I'm 12 sure you have other witnesses, I haven't heard much evidence on 13 why we are here, on the matters such as whether or not it has 14 been shown that the Movant will suffer irreparable injury. 15 MR. ROBELEN: We will certainly get there. 16 THE COURT: That, and the other elements required for 17 preliminary injunctive relief. 18 MR. ROBELEN: If I may, Your Honor, may I have time 19 at the close of the evidence to make a brief closing statement, 20 which I think will tie the evidence to the elements? 21 THE COURT: Very well. 22 MR. ROBELEN: Thank you, Your Honor. 23 REDIRECT EXAMINATION 24 BY MR. ROBELEN: 25 Q. Mr. Braver, you have 40-plus cases pending in Cleveland 49 1 County? 2 A. I believe the number is 45 currently, approximately. 3 Q. You have settled a number out of court? 4 A. Yes. 5 Q. How many injunction hearings have you had? 6 A. None. 7 Q. But you are doing this to do the right thing, not for 8 money? 9 A. I don't understand your question. 10 Q. You told the Court earlier that you were on this crusade 11 just to do the right thing? 12 A. I have never said anything about a crusade. 13 Q. You are going after these companies because you think you 14 are doing the right thing? 15 A. Yes. 16 Q. XXXXXXXXXXXXXX has received junk faxes, correct? 17 A. Yes. 18 Q. Have you handled any of those junk faxes on behalf of 19 XXXXXXXXXXXXXX? 20 A. No. 21 Q. Isn't it true that you sued a company called Success 22 Center out of Maryland because XXXXXXXXXXXXXX received a junk 23 fax? 24 A. Ah, only -- of the 16 Success Center junk faxes that I 25 received -- I happen to be very familiar with this, because I'm 50 1 working on this case right now -- only one was received at 2 XXXXXXXXXXXXXX. The one that was received at XXXXXXXXXXXXXX 3 was not even received at XXXXXXXXXXXXXX until after my action 4 had been filed. And, furthermore, the fax, the Success Center 5 fax that was sent to XXXXXXXXXXXXXX had my name on it. The 6 Court has already ruled that I am a proper party, that I may 7 make a claim on my own personal behalf on such a fax, even if 8 it was received at XXXXXXXXXXXXXX. 9 Q. Isn't it true, Mr. Braver, that you filed the action 10 against Mr. Burke in Norman after this case was filed? 11 A. That is correct. 12 Q. So the statement of counsel was incorrect? 13 A. Evidently he was mistaken, yes. 14 Q. Thank you. 15 A. I have filed cases against -- 16 MR. ROBELEN: You have answered the question. Thank 17 you. 18 At this time I would call Steven Burke, unless there 19 is recross. 20 THE COURT: You may step down. 21 MR. ROBELEN: I would like to move for the admission 22 of Exhibit No. 7, which I don't believe I have offered yet. 23 THE COURT: Is there any objection? 24 MR. CHRISTIANSEN: No objection. 25 MR. SOLOMON: No objection. 51 1 (Whereupon, Witness is sworn.) 2 DIRECT EXAMINATION 3 BY MR. ROBELEN: 4 Q. State your name. 5 A. Steven Peter Burke. 6 Q. What do you do for a living? 7 A. I assist people in home-based businesses; provide 8 services, advertising services, fax-on-demand services, mailing 9 lists, fax broadcasting, other services. 10 Q. What is fax broadcasting? 11 A. Fax broadcasting is when you send an advertisement to a 12 number of different recipients at the same time. 13 Q. Where do the numbers for that advertisement come from, the 14 fax numbers? 15 A. We use fax numbers of people that -- the only fax numbers 16 we use are people that have access to our own fax-on-demand to 17 pull information from our computer about home-based business 18 opportunities. 19 Q. How would somebody access your fax-on-demand system? 20 A. They would have to call in from the handset of their own 21 fax machine. 22 Q. Is there any other way to get into your system? 23 A. No, there isn't any other way, except for it is a 24 possibility that an individual could key input an incorrect 25 digit when they were inputting their own fax number. 52 1 Q. If one or more of Mr. Braver's personal six fax numbers 2 became a part of your system, what is the mechanism that is in 3 place -- poor question. 4 If one of Mr. Braver's fax numbers is in your system, how 5 are the possible ways it could get there? 6 A. He would have to key input the fax number himself when he 7 was calling in and accessing documents. In other words, he 8 would have to give us the fax number. 9 Q. What is the purpose of the number given for the 10 fax-on-demand system? 11 A. The -- 12 Q. The telephone number, what is the purpose of the telephone 13 number for a fax-on-demand system? 14 A. To advertise business opportunities and provide 15 information. 16 Q. How does the fax-on-demand system work as far as the 17 advertising goes? 18 A. When somebody wants to get information about a business 19 opportunity or a home-based business opportunity, they call in 20 from the handset of their own fax machine. They are asked to 21 key input the document number that they are interested in. 22 Then they are asked to key input the fax number that they are 23 calling from. Then they are asked to press the center start 24 button at the tone after they have done the first two steps. 25 Q. What happens after somebody has contacted the 53 1 fax-on-demand and requested additional information about the 2 advertisement generally? 3 A. They receive the fax, I'm sorry. 4 Q. What happens to their number that they faxed in? 5 A. Yeah, we have a record of all of the people that have 6 accessed documents, including the document number, the date and 7 the time that they call into the system. 8 Q. Why do you maintain that record? 9 A. Because -- well, a number of reasons, we help our clients 10 know how their advertising systems are working. Also, because 11 we know the individuals who are calling in and have requested 12 information from us about a home-based business opportunity. 13 In other words, they are a current opportunity seeker. 14 Q. Describe for the Court, please, how you come to have your 15 clients? How do your clients come to you? 16 A. Through referrals, a great deal of people come through 17 referrals, although we do do some direct marketing, as well. 18 Q. What are referrals, describe that for the Court, please? 19 A. Yes. We would have an individual who is marketing a 20 home-based business opportunity who has a number of associates 21 that are working with him or her and they would refer those 22 associates to come to us for services. 23 Q. From a current customer, do you have an estimate of how 24 many future referrals, on an average, you get from a customer? 25 A. We find that we get about eight times as many customers 54 1 from referral as we do from our own direct marketing. 2 Q. What does that exactly mean? 3 A. It means that my clients are really important to me. They 4 are successful through our services and they refer other people 5 to use the same services. 6 Q. So from every client you have, on the average you may get 7 eight referrals in the future for potential clients? 8 A. That's correct. 9 Q. What percentage of your business would you say is referral 10 business? 11 A. More than 80 percent, 80 percent, roughly. 12 Q. If your company lost the potential for referral business, 13 how would you calculate the amount of dollars that you have 14 lost in the future? 15 A. There would be no way to calculate that whatsoever, 16 because some of the individuals that would be referred to us 17 would in turn refer other people and I wouldn't know how to 18 calculate that. 19 Q. Now you maintain a database, correct? 20 A. Yes. 21 Q. Is that database a database of facsimile numbers for 22 people who have shown an interest or requested information 23 about home-based businesses? 24 A. That's correct. 25 Q. Can you tell, for folks like Mr. Reed, what services do 55 1 you provide specifically? 2 A. We do fax broadcasting services. 3 Q. Tell the Court what exactly you do for that? 4 A. We would get Mr. Reed's flyer and send it out to the 5 number of fax numbers that he would like to advertise to. 6 Q. The number on your list? 7 A. Yeah, depending upon how many he would order, yeah. They 8 would all be numbers from our own list, that's correct. 9 Q. What type of business is Mr. Reed's? 10 A. Mr. Reed is involved in a home-based network marketing 11 business. 12 Q. Out of all of the numbers in your database, all the fax 13 numbers in your database, how many of those people have 14 expressed an interest in or requested information about the 15 home-based business opportunities that they have seen? 16 A. All of them. 17 Q. What are the ways that they become aware of the 18 availability of this information? 19 A. Through a number of different types of advertisement. It 20 could be through a fax; it could be through direct mail; it 21 could be a trade publication ad. 22 Q. When did you first become aware of Mr. Braver? 23 A. In February of this year. 24 Q. Tell the Court how that came about, please? 25 A. Yes. One of my clients, I can't recall which one, called 56 1 me and told me that Mr. Braver had contacted him or her and 2 explained, you know, that he had asked for -- you know, had 3 told them that what they had done was illegal and had asked for 4 damages. 5 Q. What was your client's reaction to that? 6 A. They were very surprised and very concerned. You know, it 7 really upset them greatly. 8 Q. Have you lost any clients because of Mr. Braver's contact 9 with them? 10 A. Yes, we have. 11 We have lost at least two clients that I'm aware of that 12 have actually stated that they weren't going to do business 13 with us. In addition to that, we have suffered decreasing 14 volumes in sales as a result. 15 Q. From that one client that you lost, how many referrals 16 would you have expected in the future from that client? 17 A. (No response). 18 Q. On the average? 19 A. It could be a client that would refer a great deal of 20 people to us or it could be a client that wouldn't, but the 21 average would be -- it would be eight. 22 Q. You don't know for certain, correct? 23 A. True. 24 Q. You couldn't come at the end of this case and say, "I lost 25 "X" number of dollars because of Mr. Braver's threats"? 57 1 A. That is absolutely correct. 2 Q. What would happen to your business if, because of 3 Mr. Braver's threats, you received no more referrals? 4 A. To be quite frank with you, my business would -- I mean, 5 it would maybe completely put me out of business. 6 Q. Is this your livelihood? 7 A. It is indeed my complete livelihood. 8 Q. How many employees do you have? 9 A. We have seven employees. 10 Q. Do you operate in Canada? 11 A. We do, yes. 12 Q. Do you have any direct communication with Mr. Braver? 13 A. I have spoken to Mr. Braver I believe three times. 14 Q. Can you just describe for the Court briefly what the gist 15 of those conversations has been? 16 A. Yeah. I know it would be three times prior to today. 17 The first call that I made to Mr. Braver was after hearing 18 from two or three of my clients, I called Mr. Braver on the 19 phone and asked him whether he was a lawyer. 20 The reason why I did this is I had some documentation that 21 he had sent one of my clients, a demand letter which seems to 22 be a standard demand letter that he sends out. After he said 23 he was not an attorney or a lawyer, and that he acted on, I 24 think it was pro se, or on his own behalf, we discussed briefly 25 that he was trying to stop people from sending 58 1 unsolicited fax broadcasts. I asked him clearly whether or not 2 he had used the removal phone number that we have at the base 3 of each of our broadcasts and he said no. 4 I can't remember the whole conversation clearly, because 5 it was three months ago, or so. 6 Q. Okay. 7 A. But somehow we got around to me asking why not. It seemed 8 to me that Mr. Braver was not wanting to get off the list 9 because he did, in fact, wish to receive faxes. 10 Q. Any further conversations with Mr. Braver? 11 A. Yes. I called Mr. Braver back a second time and asked him 12 politely for his fax numbers to remove from the list. He said 13 to me that time that he wasn't going to give me his fax numbers 14 and asked me not to call him any longer. 15 Q. Any other conversations with Mr. Braver? 16 A. Yes, there was another conversation. A client of mine -- 17 actually more than one client had called and told me that there 18 was a fellow by the name of Max Wilkins that was calling, 19 telling my clients that they were, you know, sending 20 unsolicited fax broadcasts. 21 It sounded very similar to what I had heard about Robert 22 Braver's behavior, so I got the number and I phoned the 23 number. As a result of phoning the number, I recognized 24 Robert's voice. I asked him if he was Max Wilkins and he said 25 that he was. I said, "Isn't this Robert Braver?" He said, 59 1 "That's correct." 2 Q. Mr. Braver was using an alias? 3 A. That's correct. 4 Q. And a different telephone number? 5 A. Yes, he was. 6 Q. Did he tell you why he was doing that? 7 A. I didn't ask him any further questions, I just hung the 8 phone up at that time. 9 Q. How many of your clients do you know of that Mr. Braver 10 has contacted and threatened? 11 A. Fifteen that I'm aware of. 12 Q. How many have been sued? 13 A. Two so far. 14 Q. What would be the effect in your system if Mr. Braver were 15 no longer permitted to add his fax numbers to your system? 16 A. Could you repeat that? 17 Q. What would be the effect to your business, in your 18 business if the Court were to enjoin Mr. Braver from putting 19 his fax numbers in your system any further? 20 A. It would stop Mr. Braver from bothering anymore of my 21 clients. 22 Q. Would anymore faxes come from your system if Mr. Braver 23 were enjoined from giving his fax number to you? 24 A. Absolutely not. 25 Q. How do you know that? 60 1 A. We maintain a database of remove requests, as per the FCC 2 web site regulations. We update that database on a daily 3 basis. 4 Q. Mr. Braver can go around that database and simply get a 5 new fax number and put it in your system; is that correct? 6 A. That is absolutely correct. 7 Q. What happens if he gets a new fax number and dials into 8 the FOD system? 9 A. He would get back on our list and get back into our 10 system. 11 Q. So how is the only way that Mr. Braver can be certain not 12 to receive anymore faxes from your system? 13 A. If he doesn't call into it. 14 Q. If Mr. Braver does not place his fax number into your 15 system, are you absolutely certain that he will not receive any 16 further faxes from you? 17 A. Yes, I am. 18 Q. Can you describe, please, for the Court what the 19 difference is between the way you operate your business and the 20 way some of the other larger fax broadcasters operate their 21 business? 22 A. There is a couple of different ways of operating a 23 broadcast business. One would be to buy a commercial fax 24 list. Companies -- 25 Q. Do you do that? 61 1 A. No, we do not. 2 Q. Why not? 3 A. Because those individuals have not shown any interest 4 whatsoever in the information which we are sending. 5 Q. Okay, continue, please. 6 A. Uhm, the other way is a numeric sequential broadcasting, 7 where you would have some kind of software that would allow 8 your system -- would tell your system when it found a fax tone 9 and then add that number to the list so that they knew what fax 10 machine existed at that number. 11 Q. Is that called war dialing? 12 A. Some people have called it that. 13 Q. Do you use that system? 14 A. No, we have never used such a system. 15 Q. Why not? 16 A. Again, the individuals who are receiving the fax would not 17 have inquired and would not be interested. We wouldn't know 18 that they would be interested in receiving that kind of 19 information. 20 Q. Continue, please. 21 A. You asked me the difference. We don't do war dialing and 22 we only send faxes to people who have requested information 23 from our fax-on-demand system. Those are the basic 24 differences. 25 Q. The people that have requested information from your 62 1 system have done so following up on an advertisement; is that 2 right? 3 A. In every single case, unless they were referred by someone 4 else to go to the fax in the mail. 5 Q. Is there any possible way, Mr. Burke, that Mr. Braver's 6 fax numbers could have gotten into your system unless he made 7 an affirmative step to place the fax number into your system? 8 A. Well, I would say that the only possibility that anyone 9 could get into our system is if -- mistakenly -- is if another 10 individual pressed the wrong touch tone button on their fax 11 machine when they were key inputting their own fax number. 12 But in Mr. Braver's case, because he has several fax 13 numbers in our system, it just wouldn't be possible for that to 14 be the answer. He would have to have taken affirmative action. 15 Q. Have you ever told Mr. Braver that you would remove those 16 numbers for him? 17 A. Yes. 18 Q. What was his response? 19 A. He refused to give me his fax number. 20 Q. On the bottom of the faxes that come from your system, for 21 the most part there is a statement that says, "If you receive 22 this in error, we apologize. Call this number and we'll take 23 you off the system"? 24 A. That is correct. 25 Q. Why would you even have to have that on there? 63 1 A. Because there is a slight possibility that an individual 2 who does in fact want to receive information from us and key 3 inputs their fax number would touch the wrong button on their 4 touch tone pad on their fax machine and input another number, 5 which, you know, may be a fax machine. So we might be sending 6 a fax to a fax number and even though they wanted to input 7 their own fax number, they inputted another one by mistake. 8 Q. To your knowledge, Mr. Burke, how many of Mr. Braver's 9 personal fax numbers has he put into your system? 10 A. That I'm aware of, three. 11 Q. Again, each one would have to be an intentional act by 12 Mr. Burke to -- by Mr. Braver to place that number into your 13 system, correct? 14 A. That's correct. 15 Q. What are the chances of three of Mr. Braver's fax numbers 16 getting into your system by accident? 17 A. I don't know, it would seem almost impossible. 18 Q. If your business is shut down because of the lack of 19 referrals or a discontinuation in referrals, what would be your 20 mechanism at the end of this case to remedy that? 21 That may be a poor question. If you understand it, 22 great. If not, I will try to ask it a different way. 23 A. I am not sure that I know what you are asking me. I mean, 24 I would have to start all over again. I have spent four years 25 building this business up and I would have to start from 64 1 scratch. 2 Q. You have spent four years building a client base? 3 A. That's right. 4 Q. Building a database with one particular area? 5 A. Yeah, that's correct. 6 We have 9,000 clients and it has been a lot of hard work 7 getting to this point. 8 Q. The harm that would be caused by the discontinuation of 9 referrals would most likely be harm that couldn't be redressed; 10 is that a fair statement? 11 A. Yes, it is. 12 MR. ROBELEN: Thank you. 13 THE COURT: Cross-examination. 14 CROSS-EXAMINATION 15 BY MR. CHRISTIANSEN: 16 Q. Mr. Burke, isn't it true that you know that what you do 17 with your business is illegal under United States law? 18 A. That is not true. 19 Q. Did you not make the statement that Mr. Braver read 20 earlier in Defendants' Exhibit 1 about being untraceable to 21 avoid being caught? 22 A. I believe that that post on my web site was not what I 23 intended to say exactly, but I don't have it in front of me, so 24 -- 25 Q. Of course if it was not what you had intended to say, you 65 1 could have corrected it; isn't that right? 2 A. In fact I'm planning to. 3 Q. I'm sure you are. 4 A. Yes. 5 Q. You live in Canada, don't you? 6 A. That's correct. 7 Q. That's probably pretty convenient, as well, isn't it, for 8 avoiding United States law? 9 A. I have never knowingly tried to avoid United States law. 10 Q. Let me ask you just hypothetically if a business is 11 operating illegally, that would not be a bad thing, would it, 12 to shut down that business? 13 A. Ah -- 14 Q. We don't want to have illegal businesses operating, do we? 15 A. Hypothetically I would agree with you. 16 Q. So if it was determined that what you do is illegal, it 17 wouldn't be a bad thing to shut you down, would it? 18 A. I suppose not. 19 MR. CHRISTIANSEN: That's all I have. 20 THE COURT: Mr. Solomon. 21 MR. ROBELEN: May I interpose the same objection 22 that I made earlier, that XXXXXXXXXXXXXX is not necessarily 23 involved in this particular proceeding. I think it is 24 inappropriate for Mr. Solomon to ask questions of this witness. 25 THE COURT: It is noted. But for the same reasons, 66 1 I will allow Mr. Solomon to ask questions. 2 CROSS-EXAMINATION 3 BY MR. SOLOMON: 4 Q. Mr. Burke, what investigation did you do to establish the 5 relationship between my client, XXXXXXXXXXXXXX, and Mr. Braver 6 before you authorized the filing of this lawsuit? 7 MR. ROBELEN: I object to that. That is clearly 8 beyond the scope of my direct examination. 9 THE COURT: What do you say, counsel? 10 MR. SOLOMON: Well, Your Honor, he is here in court. 11 I just -- I am interested in knowing if he has any facts that 12 would cause the Court to consider this jurisdiction question. 13 THE COURT: That's not why we are here, though, 14 today. I will sustain the objection. 15 Q. Mr. Burke, you said that you would -- under certain 16 circumstances, that you would lose your business. You said 17 that a few minutes ago? 18 A. At least a substantial part of it, yes. 19 Q. You would be able to calculate your lost profits from the 20 loss of your business; isn't that correct? 21 A. Could you repeat? 22 Q. If you lost your business, you would be able to prove the 23 lost profits from the loss of that business; isn't that 24 correct? 25 A. Based upon my current sales, that is correct. What I 67 1 wouldn't be able to calculate would be the number of referrals 2 that I may have gotten from clients. 3 Q. As I understand it, you sent out 2.8 million faxes in 4 1998? 5 A. I have no idea. 6 Q. You don't know? 7 A. No, I don't. 8 Q. Take a look at Defendants' Exhibit 1 before you. That is 9 your web site. 10 A. I have got it. 11 Q. That is a copy of information printed from your web site, 12 correct? 13 A. Yes, it is. 14 Q. In that information that you publish in your web site you 15 tell people that you sent 2.8 million faxes in a one-year 16 period of time; is that correct? 17 A. That's what I am reading, yes. 18 Q. Did you make that statement? 19 A. Yes, I must have key input this into my forum. 20 MR. ROBELEN: Counsel, what are you looking at here? 21 MR. SOLOMON: I don't have the copy, so -- if I can 22 point it out for you. 23 Page 2, "2.8 million faxes in 1998." 24 Q. I'm sorry, 2.18 million, Page 2 on that document in front 25 of you, Exhibit 1? 68 1 A. Yes. 2 Q. It is your testimony here today that each and every one of 3 the recipients of those 2.18 million faxes contacted your 4 company and asked you to send the fax? 5 MR. ROBELEN: I object based upon relevancy. The 6 issue is Mr. Braver, not whatever the company may have done two 7 years ago or three years ago. 8 THE COURT: I believe that was inquired into on 9 direct. There has been a whole lot in this hearing that has 10 been irrelevant to what this Court has to decide. 11 Overruled. 12 A. Can you repeat the question, please? 13 Q. Yes, sir. 14 Mr. Burke, is it your testimony today that each one of the 15 recipients of the 2.18 million faxes that you sent out in 1998 16 contacted you and asked you to send that fax? 17 A. That's correct, they did. 18 MR. SOLOMON: Thank you. 19 THE COURT: Further cross-examination, 20 Mr. Christiansen? 21 MR. CHRISTIANSEN: No, Your Honor. 22 THE COURT: Any redirect, Mr. Robelen? 23 MR. ROBELEN: I don't believe so, Your Honor. 24 THE COURT: You may step down. 25 THE WITNESS: Thank you. 69 1 THE COURT: Call your next witness. 2 MR. ROBELEN: Arcangelo Coppozzolla. 3 (Whereupon, Witness is sworn.) 4 DIRECT EXAMINATION 5 BY MR. ROBELEN: 6 Q. Would you state your full name for the record, please? 7 A. Arcangelo Coppozzolla. 8 MR. CHRISTIANSEN: Could I ask that the Court invoke 9 the rule at this time if there are other witnesses in the 10 gallery that we don't know about? 11 THE COURT: Yes, the Court will invoke the rule. 12 Do you have any witnesses in the courtroom? 13 MR. ROBELEN: No, Mr. Coppozzolla will be my last 14 witness. 15 Q. What is your occupation? 16 A. I am a stock trader. 17 Q. How do you operate your business? 18 A. We offer services to people around the world to give them 19 advice on how to pick stocks, what to look for in the market, 20 and so on. 21 Q. Why would you say you offer your services to people 22 interested in home-based business activities? 23 A. The reason why that I did send the faxes out was for the 24 reason of looking for people to promote my services throughout 25 the United States and abroad, yes. 70 1 Q. Have you ever had any discussions with Mr. Robert Braver? 2 A. I did. 3 Q. Would you please describe for the Court please the 4 discussion that you had with Mr. Braver? 5 A. I don't remember the exact date, but it is listed on the 6 day before the e-mail that was sent to me that Mr. Braver had 7 responded to my fax that was sent to him, had left a message on 8 my voice mail requesting me to call him back, which was a toll 9 free number that he did call to leave his name and number. I 10 returned the telephone call, which I, in turn, got a voice mail 11 from him, leaving him my direct office telephone number and my 12 name, company name, as well as a reference to the fax that he 13 was responding to. 14 Q. Did you speak to Mr. Braver? 15 A. Then Mr. Braver did call me back responding to that. He 16 told me -- when I got him on the phone, he said to me, "Could 17 you please tell me a little bit about" -- 18 MR. CHRISTIANSEN: I object as hearsay as to what 19 Mr. Braver actually said to this gentleman in the conversation. 20 MR. ROBELEN: It would be statements against 21 interest. It certainly wouldn't go to the truth of the matter 22 asserted. 23 THE COURT: So for what purpose? 24 MR. ROBELEN: To show Mr. Braver's state of mind in 25 this particular conversation with one of Mr. Burke's clients. 71 1 THE COURT: What do you say? 2 MR. CHRISTIANSEN: State of mind is irrelevant and 3 not an issue before the Court. This gentleman's testimony so 4 far has been completely irrelevant, like most of the testimony 5 we have sat through so far. We are not addressing the issue 6 before the Court. 7 THE COURT: Sustained. 8 Q. Mr. Coppozzolla, let me direct your attention to 9 Plaintiffs' Exhibit No. 2, it should be before you. Have you 10 had an opportunity to read Exhibit 2? 11 A. I did. 12 Q. Have you seen that before? 13 A. No. 14 Q. You have used Mr. Burke's services? 15 A. I have. 16 Q. In what way? 17 A. I have utilized -- I have purchased his list of fax 18 numbers. 19 Q. What was your understanding about the way that list was 20 compiled? 21 A. That people responded to a fax-on-demand and wanted 22 information sent back to them via that fax-on-demand regarding 23 business opportunities. 24 Q. Had you seen Exhibit 2 before deciding to do business with 25 Mr. Burke, what would be your reaction? 72 1 A. I probably wouldn't do business with him. 2 Q. Why not? 3 A. Because the way it is stated here on this web site, my 4 opinion is that Mr. Burke would probably not be a good person 5 to do business with and I would have fear of basically being 6 sued for doing business with Mr. Burke. 7 Q. Now, Mr. Braver has threatened you, correct? 8 A. Yes. 9 Q. He has actually sued you? 10 A. Yes, he has. 11 Q. Has that affected your business relationship with 12 Mr. Burke? 13 A. Yes. 14 Q. How so? 15 MR. CHRISTIANSEN: I'm sorry, but I raise the 16 relevancy objection again. I really don't think we are to the 17 issues the Court needs to hear. 18 MR. ROBELEN: If we show that these faxes are legal 19 and that Mr. Braver has made these threats against my client's 20 customers and affected that relationship, I think we have put 21 enough evidence forward to at least get the injunction that we 22 are requesting at this point. 23 The issue is going to be at the end of the case 24 whether or not these faxes were legal. If they were, 25 Mr. Braver has used the United States mail and the United 73 1 States wires to commit a fraud. And in doing so, he has harmed 2 my client's business. This is the one witness who can testify 3 as a customer how it has affected his relationship with my 4 client. That's the only point I'm trying to make with this 5 witness. 6 THE COURT: Mr. Christiansen? 7 MR. CHRISTIANSEN: The relationship between this 8 witness and Mr. Burke is irrelevant. What we are here to 9 decide is if the critical four elements of RICO exists in this 10 case. What goes on between Mr. Burke and his clients doesn't 11 have anything to do with that. It doesn't even involve 12 Mr. Braver. 13 THE COURT: I will sustain the objection. I would 14 remind counsel this is not the trial on the merits here. 15 MR. ROBELEN: I understand, Your Honor. 16 No further questions with Mr. Coppozzolla. 17 THE COURT: Any cross-examination, Mr. Solomon? 18 MR. SOLOMON: No, Your Honor. 19 THE COURT: Mr. Christiansen? 20 MR. CHRISTIANSEN: No. 21 MR. ROBELEN: No further witnesses. 22 THE COURT: Is there any further evidence to be 23 presented? 24 MR. CHRISTIANSEN: I don't have anything further 25 except for a brief closing argument. 74 1 THE COURT: Mr. Robelen, do you have a brief 2 statement that you want to make to the Court? 3 MR. ROBELEN: Yes, Your Honor. 4 CLOSING ARGUMENT 5 BY MR. ROBELEN: 6 The four items addressed in this hearing are whether 7 there is a strong possibility of a substantial likelihood on 8 the merits on this case, one; whether there is a possibility of 9 irreparable harm to my client; the relative interest of giving 10 the injunction versus not giving the injunction and the effect 11 upon the public good. 12 If in this case, based upon the law and the evidence 13 at the end of this case, it turns out that the facsimiles sent 14 to Mr. Braver were legal facsimiles, then he has committed a 15 fraud. He has committed a fraud by the use of the U.S. mails 16 and he has committed a fraud by the use of the U.S. wire. 17 Not only that, he has engaged in extortionist 18 behavior by attempting to elicit these settlement agreements 19 from these folks. Under each one of these violations, two or 20 more occasions by Mr. Braver would constitute a RICO 21 violation. So, if at the end of the day, these facsimiles are 22 deemed to be legal, then the RICO violations have been 23 established as a matter of law. 24 We have a substantial likelihood of proving our case 25 on the merits because Mr. Braver has admitted that he is 75 1 intentionally putting his numbers into these systems, knowing 2 he is going to receive the fax from them, with the intent to 3 receive the facsimiles from them, with the intent to then 4 contact the faxer, demand a settlement, and take settlement 5 money or sue them. 6 Mr. Braver cannot say that these faxes are 7 unsolicited. He does it knowing and intentionally to just to 8 receive these faxes. That's the only reason for these six 9 personal fax numbers he has. 10 So when we have proven our case at the end of trial 11 to show that these faxes were legal, all of these extortionate 12 settlement attempts by Mr. Braver are violations of the RICO 13 statutes and have cost my client damages. 14 The irreparable harm comes in because Mr. Burke has 15 testified his business is based upon referrals. He can't come 16 in here and tell the Court in the trial of this matter, "I have 17 lost so much business, so much future profit because of 18 Mr. Braver's activity." That number is incalculable. The 19 irreparable harm here is the lost future revenues he would 20 receive from referrals until his business came to an end. 21 That is irreparable harm. The standard here is possible 22 irreparable harm, not absolute irreparable harm. 23 The relative interest in this case is really the key 24 issue. What interest does Mr. Braver have personally in not 25 receiving this injunction? What interest does he have if he is 76 1 stopped from placing his six fax numbers into the system? What 2 interest does he have if he is enjoined from putting this 3 information in his web site until this matter is concluded? No 4 personal interest; he is on a crusade here. 5 On the other hand, the interest of Mr. Burke is his 6 business. If this man is not enjoined from putting his fax 7 number into our system, if he is not enjoined from making 8 defamatory statements on the web site, Mr. Burke stands to lose 9 his business. He is going to lose customers and he is going to 10 lose referrals. 11 So there is a strong, strong interest at this table, 12 Your Honor, and there is no interest at this table for 13 enjoining this man for a period of 90 or 120 days until it 14 takes to get this case resolved. 15 Finally, the public good. The public good is 16 basically unaffected, except that if the Court enjoins 17 Mr. Braver from suing anymore of Mr. Burke's clients until this 18 matter is concluded and these issues are decided by the Court 19 and the jury, then the Courts of Cleveland County will not be 20 clogged with Mr. Braver's litigation, because it will have been 21 deemed that the litigation is frivolous, as these faxes are, in 22 fact, legal under the TCPA. 23 So at the end of the day, when we are able to prove 24 before the Court and the jury that in Mr. Braver's situation, 25 regardless of anybody else, in Mr. Braver's situation, these 77 1 faxes were not unsolicited; therefore, they were legal, and any 2 attempts that Mr. Braver made to solicit money through the use 3 of the mail and the United States telephone lines violated RICO 4 and caused damages to Mr. Burke. 5 For these reasons, Your Honor, we ask the Court to 6 enjoin the Defendant, only Mr. Braver, just for a period of 7 time until this case can be concluded on its merits and we can 8 show that the faxes are, in fact, to Mr. Braver legal. 9 THE COURT: Thank you. 10 Mr. Solomon? 11 MR. SOLOMON: Nothing further to say, thank you. 12 THE COURT: Mr. Christiansen? 13 CLOSING ARGUMENT 14 BY MR. CHRISTIANSEN: 15 I would like to also move the Court to dismiss the 16 complaint alleged against Mr. Braver. Mr. Braver's answer 17 deadline I believe is coming up on Friday. At that time we'll 18 probably submit a written motion, as well, in support of that. 19 For the purpose of this hearing, I want to get that on the 20 record. 21 THE COURT: Very well. It will be just denied at 22 this time. I will consider it when I receive your response to 23 the motion filed by XXXXXXXXXXXXXX. 24 MR. CHRISTIANSEN: We'll file a response to that and 25 as well probably a separate motion on behalf of Mr. Braver. 78 1 Your Honor, to sum up this interesting testimony we 2 have heard today about marketing, I would say I don't think 3 there is anything wrong with shutting down an illegal 4 operation. What Mr. Burke does and what the other people do 5 that Mr. Braver has sued is against the law. It is just that 6 simple. In fact, I first met Mr. Braver when I was working on 7 the other side of the fence trying to defend one of these 8 people. His cases are generally airtight. If you send the fax 9 and it hasn't been requested, there is a violation. He is 10 entitled to bring the action and he has not done anything wrong 11 in doing that. If this Court entertains enjoining that kind of 12 activity, it raises some serious questions. For example, with 13 the Anti-injunction Act, with the United States Constitution 14 and the freedom of access to courts. 15 Another preliminary issue I think that has to be 16 addressed as a question of law is whether an injunction is even 17 available in a private civil RICO action. There are a number 18 of cases out there that hold that remedy is not available 19 unless the Plaintiff is the state or the attorney general. The 20 Ninth Circuit so held in Technology Center v. Wallersheim. 21 District Courts in New Jersey, Connecticut, Arkansas, Illinois 22 have also held that an injunction is not even available in a 23 civil RICO action. 24 Moving on to the first element for consideration of 25 the injunction, which is likelihood of success on the merits, I 79 1 think there has been a total failure in this hearing today to 2 present any evidence that is relevant to establishing the 3 allegations that are made in the RICO Complaint. 4 The Complaint noteably fails to make any substantive 5 allegations regarding XXXXXXXXXXXXXX. I think XXXXXXXXXXXXXX 6 may only be mentioned one or two times and that's at the end of 7 the Complaint. 8 There has been no evidence here today providing any 9 type of association or organization between XXXXXXXXXXXXXX and 10 Mr. Braver for RICO purposes. 11 The Complaint does state, without any explanation or 12 detail in paragraph 13 that, quote, "Braver individually and as 13 an officer, director or employee of Defendant XXXXXXXXX