8th Circuit Revives Dismissed TCPA Action

Class Actions

On June 8, 2015, the 8th Circuit rPhoneeversed the Eastern District of Missouri and revived class claims in Golan et al. v. Veritas Entertainment, LLC et al.  In Golan, the plaintiff alleged that the defendants—producers of the movie, “Last Ounce of Courage”—robo-called consumers to promote the film in violation of the Telephone Consumer Protection Act (TCPA).  See Appeal No. 14-2484, June 8, 2015, Order (Order).  The messages, which were recorded by Governor Mike Huckabee, differed depending on whether the call went to voicemail, or whether someone picked up the phone.  If the former, the recorded message stated simply “Liberty.  This is a public survey call.  We may call back later.”  If the latter, the message stated that it was accompanied by a “45-second survey,” recommend that the listener see “Last Ounce of Courage”, and posed two questions.  The named plaintiffs received only the former, shorter, message, which was twice left as a recording on their voicemail.  Id. at 5.

The Eastern District of Missouri concluded that the named plaintiffs did not receive a message containing “an advertisement, telemarketing message, or telephone solicitation,”—i.e. the longer message promoting “Last Ounce of Courage”—and therefore that they:  (1) did not have standing to bring a TCPA claim because they did not suffer any injury, in that they did not receive a call that constituted “advertising” or “telemarketing;” and (2) were not proper class representatives.  See Memorandum and Order at 23-25, 14-cv-00069-ERW, Dkt. No. 58.

The 8th Circuit disagreed, concluding from the context of both calls that the purpose of both messages was to “promot[e] ‘Last Ounce of Courage’,” even if the shorter message did not explicitly mention the film.  See Order at 8-9.  In relevant part, the TCPA prohibits “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior consent of the called party,” and allows the aggrieved party to recover the greater of his or her actual damages or $500.  See id. at 6 (citing 47 U.S.C. § 227(b)(1)(B), (3)(B)).  However, the TCPA’s implementing regulations exempt calls that “do not introduce an advertisement or constitute telemarketing” from the statute’s scope.  See id. at 6-7 (citing 47 C.F.R. § 64.1200(a)(3)(iii)).  The 8th Circuit concluded that the calls fit the TCPA’s definition of “telemarketing,” which is defined as “initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”  See id. at 8 (emphasis added) (citing 47 C.F.R. § 64.1200(f)(12)).  The Court found that both versions of the automated calls were part of a telemarketing campaign—the overall purpose of which was to promote Last Ounce of Courage—and that either call was therefore actionable under the TCPA as part of the campaign.  See id. at 8-9.  Accordingly, the named plaintiffs both had standing to sue and were adequate class representatives, because they had received a call that was actionable under the TCPA.  See id. at 8-10.

Courts are willing to look beyond the actual contents of an automated call to determine whether the call was part of a “telemarketing” campaign within the meaning of the TCPA.  Even if the call itself is innocuous and does not itself “encourage[e] the purchase or rental of, or investment in, property, goods, or services,” it may be actionable under the TCPA if the call was part of a broader telemarketing scheme.  Lender Law watch will continue to monitor legal developments under the TCPA and bring them to you as they arise.

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