What’s The Verdict: Were Mike Huckabee’s anti-Hollywood phone calls more like a survey or telemarketing? Will he be held liable?
Just earlier today, the 8th Circuit Court of Appeals has revived a lawsuit that accuses U.S. presidential candidate Mike Huckabee along with others of violating telemarketing laws. The lower court rejected the case, but after today’s decision, Huckabee and others will again face a class action lawsuit over millions of prerecorded phone message delivered on behalf of the film Last Ounce of Courage back in 2012.
So, what actually happened that led to the lawsuit?
Huckabee was tapped by the film’s producers including Veritas Entertainment in an attempt to get people to a see a movie about a son of fallen U.S. soldier. The film was Last Ounce of Courage. To be more precise, there were about 34 million calls to residential phone lines and cells phone. Based on the script, Huckabee was promoting the film by pitching it as ‘anti-Hollywood.’ For example, Huckabee would call residents and ask the following:
“Do you agree that traditional American values are under attack in mainstream media and by our government?” As well as, “Would you, like me, Mike Huckabee, like to see Hollywood respect and promote traditional American values?”
Two St. Louis residents, Ron Golan and Dorit Golan, filed a $5 million class action suit on behalf of themselves as well as other claiming that the calls were a violation of the Telephone Communication Protection Act and Missouri’s Do Not Call Law. Turns out that the Golans weren’t actually in their home to hear the message but were left with voicemails on their answering machine.
In May 2014, a federal judge rejected the lawsuit because the plaintiffs were unable to demonstrate an injury sufficient enough to give them standing for a law intended to crack down on robocalls. However, the 8th Circuit judge Diana Murphy has decided to read the law more broadly than the district judge who rejected. Judge Murphy says that the lower court judge erred in dismissing the claims.
The defendants are arguing that the calls do not fall under the category of telemarketing or advertising, but were more for information gathering with survey questions. It is now the role of the appeals court to examine and determine the context of the calls to see if the purpose was to promote goods. Judge Murphy states in her opinion that the messages appeared to be survey-like by asking if recipients had traditional American values, but clearly acknowledges that the producers were most concerned with getting viewers of the film rather than gathering information.
Overall, Judge Murphy recognizes that the Golans are not subject to a unique defense nor did the suffer a unique injury, but what matters for all class members (including Golans) is that the phone calls placed by Huckabee were initiated for the purposes of promoting Last Ounce of Courage. Additionally, she does not rule on whether or not Huckabee could be “vicariously liable” and is leaving that to the lower district court.
Judge Murphy has reversed the lower court judge’s opinion, meaning the case has been revived and remanded. The final decision will be left to a lower district court judge.
The case is Golan et al v. Veritas Entertainment LLC et al, 8th U.S. Circuit Court of Appeals, No. 14-2484.
What do you think the lower court judge will do this time around? Stay tuned for more updates on What’s The Verdict!