May 22, 2014 10:06am PT by Eriq Gardner
Mike Huckabee Escapes Movie Telemarketing Lawsuit
"Hello, this is Governor Mike Huckabee with a 45-second survey. Do you believe in American freedom and liberty?... Do you agree that traditional American values are under attack in mainstream media and by our government?... Would you, like me, Mike Huckabee, like to see Hollywood respect and promote traditional American values?"
That was part of the voice-message script used by the Fox News host and former presidential candidate Huckabee in 2012 to promote the film Last Ounce of Courage. The $10 million marketing campaign for the movie about a son of a fallen U.S. soldier, produced by Vertitas Entertainment, included approximately 4 million robocalls throughout the country and an additional 30 million text messages.
As a result of the anti-movie movie pitch, Huckabee, Veritas and others were slapped with a putative $5 million class-action lawsuit over an alleged violation of the Telephone Communication Protection Act and Missouri's Do Not Call Law. On Tuesday, a federal judge rejected the claims.
The lead representatives of the class were St. Louis residents Ron Golan and Dorit Golan.
It appears from the ruling (read here) that they might not have been the right pick to spearhead the attempt to win millions. The two didn't actually pick up the phone to hear Huckabee. During depositions, they testified that instead two recorded messages were left on their answering machine that stated, in their entirety: "Liberty. This is a public survey call. We may call back later."
They also testified that they didn't recognize the caller's voice and didn't know the calls concerned Last Ounce of Courage.
Nevertheless, their lawyers argued that Congress enacted the TCPA to address the nuisance and invasion of privacy resulting from telemarketing and that the law was concerned with the initiation of the call and the purpose of the prohibited call rather than the question on whether the recipient actually received the full message.
U.S. District Judge E. Richard Webber isn't buying it.
"Presumably, a plaintiff seeking redress must hear a message to ascertain whether it is made for a commercial purpose and contains an unsolicited advertisement. It is difficult to discern how the Golans’ privacy rights were invaded by a message they did not hear, and of which they had no knowledge."
The judge analyzed whether they could show an injury sufficient to give them standing. The plaintiffs argued that statutory damages was available to them without proof of an injury. The judge ultimately finds the plaintiffs serve as poor class representatives and dismisses the claims.