Antitrust Law Daily Wrap Up, PRIVACY—8th Cir.: Telemarketing suit against Mike Huckabee, movie producers revived, (Jun 9, 2015)

By Linda O’Brien, J.D., LL.M.

The U.S. Court of Appeals in St. Louis has reversed a district court order that dismissed a putative class action suit against U.S. presidential candidate Mike Huckabee, movie producers, and telemarketers over millions of prerecorded telephone messages delivered to residential telephone lines and cellphones in order to promote the film “Last Ounce of Courage” (Golan v. Veritas Entertainment, LLC, June 8, 2015, Murphy, D.).

Eastern Gate Films produced a movie, entitled “Last Ounce of Courage,” a story about the son of a fallen U.S. soldier. With investors Veritas Entertainment, Eastern Gate hired AIC Communications to launch a telemarketing campaign to promote the film. Using the voice of Mike Huckabee, a prerecorded script was played to four million residential telephone lines and 30 million cell phones.

Although Ron and Dorit Golan were registered on federal and state “do not call” lists, AIC Communications obtained their telephone number and called the Golans on two occasions in September 2012 as part of the telemarketing campaign. The Golans did not answer the calls, but heard an automated message. Subsequently, the Golans filed suit, alleging that the calls violated the Telephone Consumer Protection Act (TCPA) and Missouri Do Not Call Law. In granting the defendants’ motion to dismiss, the district court determined that the Golans had not suffered an injury in fact, since the messages were not advertisements, telemarketing messages, or telephone solicitations. The Golans appealed.

The appellate court found that the district court erred in determining that the calls were exempt from the TCPA and the plaintiffs failed to allege an injury in fact to confer Article III standing. The defendants’ argument that, although the calls were made for a commercial purpose, the messages did not contain advertisements or qualified as telemarketing was rejected. The court noted that the context of the calls indicated that they were initiated for the purpose of promoting the film. Although the campaign appeared to survey whether call recipients had “traditional American values,” the producers and telemarketers were more concerned with getting viewers to see “Last Ounce of Courage” than gathering information about them. Since the calls were initiated and transmitted to the plaintiffs in order to promote “Last Ounce of Courage,” they qualified as telemarketing even though the messages never referenced the film.

The district court also erred in determining that the Golans were inadequate class representatives, since they suffered a different injury from class members who heard the full script of the prerecorded message. According to the court, the purpose of the calls was the critical issue of the case and the plaintiffs were not subject to the unique defense that class representatives must possess the same interest and suffer the same injury as the class members. The Golans did not suffer a different injury than class members who heard the entire message. The relevant issue for all class members, including the Golans, was that each call was made for the purpose of promoting the film. Thus, the judgment must be reversed and the case remanded for further proceedings, the court concluded.

The case is No. 14-2484.

Attorneys: Ronald J. Eisenberg (Schultz & Associates) for Ron Golan. Molly Theresa Cusson (Venable LLP) for Veritas Entertainment, LLC and Veritas Marketing Group, LLC. Steven Howard Schwartz (Brown & James) for FreeEats.com, Inc., and AIC Communications, LLC.

Companies: Veritas Entertainment, LLC; Veritas Marketing Group, LLC; FreeEats.com, Inc.; AIC Communications, LLC

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