Opinion handed down June 8, 2015
Ron and Dorit Golan, of Chesterfield, Missouri, received two recorded messages on their home voicemail in September of 2012.[1] The messages were identical, stating: “Liberty. This is a public survey call. We may call back later.”[2] The Golans considered these messages to constitute a telemarketing scheme promoting a film called “Last Ounce of Courage.”[3] Such a campaign was alleged to stand in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, as well as the Missouri Do Not Call Law, Missouri Revised Statutes Section 407.1098.[4] The Golans filed a putative class action in the U.S. District Court for the Eastern District of Missouri.[5] The district court dismissed the suit with prejudice, stating that the Golans lacked standing and, further, were inadequate class representatives.[6] The Golans appealed, which is the subject discussed herein.[7]
I. Facts and Holding
Owners of the film “Last Ounce of Courage” launched a telemarketing campaign to promote the film in 2012.[8] This included playing a prerecorded script to 4 million residential phone lines and 30 million cell phones.[9] Ron and Dorit Golan received two recorded messages on their home voicemail in September of 2012.[10] The messages were identical, stating: “Liberty. This is a public survey call. We may call back later.”[11] The Golans considered these messages to constitute a telemarketing scheme.[12] Such a campaign was alleged to violate the TCPA, as well as the Missouri Do Not Call Law.[13] The Golans filed a putative class action in the U.S. District Court for the Eastern District of Missouri.[14] The district court dismissed with prejudice, stating that the Golans lacked standing, and further, were inadequate class representatives.[15] The Golans appealed, and the U.S. Court of Appeals for the Eighth Circuit reversed and remanded.[16]
II. Legal Background
Congress enacted the TCPA to protect consumers from a stream of unwanted and intrusive telemarketing calls and messages flooding their homes.[17] At the time of its enactment, most states had legislated their own telemarketing restrictions, but “members of Congress believed that federal law was necessary because telemarketers could evade state law through interstate operations.”[18] For this reason, the TCPA “prohibits ‘any person within the United States, or any person outside the United States if the recipient is within the United States,’ from using prerecorded messages to call residential phone lines without prior consent, ‘unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph 2(B).’”[19]
In terms of the Golans’ state-law claim, the Missouri No-Call List, created pursuant to Missouri Revised Statutes Section 407.1098, “allows Missourians to reduce unwanted telemarketing calls made to their homes or cell phones by signing up for the No-Call List, which is managed by the Attorney General’s Office.”[20] It is free to get on the list, and “there are currently over 4.3 million Missouri phone lines registered on the No-Call list.”[21]
III. Instant Decision
The U.S. Court of Appeals for the Eighth Circuit reversed and remanded this case to the district court after making several findings: (1) that the district court had “erred in concluding that the calls were exempt from regulation and that the Golans had filed to allege an injury in fact sufficient to confer Article III standing”;[22] (2) that the district court “erred as a matter of law in concluding that the Golans were inadequate class representatives”;[23] and (3) that the Court of Appeals was not to “pass on th[e] issue and [was required to] remand to the district court to consider whether [the later-named] defendants can be held vicariously liable for the calls.”[24]
First, the Eighth Circuit concluded that while the district court had looked to the “content” of the message in determining whether it was permitted under statute, it had not examined the message’s “purpose.”[25] The Eighth Circuit held that the message’s purpose was to promote a film as part of a nationwide telemarketing scheme, finding that the Golans had indeed suffered an injury under the TCPA because: “the calls were initiated and transmitted to the Golans in order to promote Last Ounce of Courage.”[26] For this reason, “they qualified as ‘telemarketing” even though the messages never referenced the film.’”[27] Second, the Eighth Circuit found that, by considering the purpose of the messages, the Golans were adequate class representatives.[28] Just because they had not heard the full message, like other members of the class had, did not mean that they had suffered a different injury once “purpose” was considered.[29] Third, the Eighth Circuit declined to decide the issue of vicarious liability because the district court had not adjudicate the question below.[30]
IV. Comment
It is well established under our nation’s laws that the home is meant to be a place of solitude and respite. Receiving intrusive, sometimes incessant, phone calls from automated messaging systems or individuals whose job it is to call number after number is disruptive and contrary to the notion that the home should be peaceful. Further, advertising a film can be done many different ways, but creating a telemarketing scheme to garner attention and viewers (e.g., money), for such film seems contrary to helpful – a majority of consumers do not appreciate such calls, and so making one on behalf of this film seems like it would only turn people off of it. Last Ounce of Courage raked in a grand total of 3.3 million dollars at the box office.[31] Consider this, along with the fact that over $10 million was shelled out in an effort to effectively market the film.[32] Ironic? Perhaps. The bottom line here, though, is that telemarketing is not where marketing funds ought to be spent.
- - Blair Bopp
[1] Golan v. Veritas Entm’t, LLC, 788 F.3d 814 (8th Cir. 2015).
[3] Id. “Last Ounce of Courage” was released on September 14, 2012, and stars Marshall Teague as a grieving father whose son died in battle. The fallen soldier’s son, years later, then attempts to reconnect with his still-grieving grandfather. Last Ounce of Courage, IMDb (last visited Jan. 24, 2016), http://www.imdb.com/title/tt2359137/.
Golan at 789.
[20] No-Call, Mo. Attorney General (last visited Jan. 24, 2016), https://ago.mo.gov/divisions/consumer/no-call.
[21] No-Call, Missouri Attorney General (last visited Jan. 24, 2016), https://ago.mo.gov/divisions/consumer/no-call.
[22] Golan, 788 F.3d at 797.
[25] Id. at 820.
