9:44am PT by Eriq Gardner
Mike Huckabee Movie Telemarketing Lawsuit Revived By Appeals Court
U.S. presidential candidate Mike Huckabee must again face a class action lawsuit over millions of prerecorded phone messages that were delivered in 2012 on behalf of the film Last Ounce of Courage. On Monday, the Eighth Circuit Court of Appeals decided to revive the case.
Huckabee was tapped by the film's producers, including Vertitas Entertainment, to get people to see a movie about a son of a fallen U.S. soldier. The script had him promoting the film by pitching it as anti-Hollywood. "Do you agree that traditional American values are under attack in mainstream media and by our government?" asked Huckabee. "Would you, like me, Mike Huckabee, like to see Hollywood respect and promote traditional American values?"
After the calls happened, St. Louis residents Ron Golan and Dorit Golan filed a proposed $5 million class action on behalf of themselves and others similarly situated alleging the calls violated the Telephone Communication Protection Act and Missouri's Do Not Call Law.
It turned out that the Golans weren't home to actually hear the Huckabee message. Instead, two recorded messages were left on their answering machine that stated, "Liberty. This is a public survey call. We may call back later."
In May 2014, a federal judge rejected the lawsuit because the plaintiffs couldn't demonstrate injury sufficient to give them standing for a law intended to crack down on robocalls.
In today's decision, Eighth Circuit judge Diana Murphy decides to read the law a bit broader than the district judge who threw out the suit.
The defendants argued that the Huckabee calls weren't "telemarketing," and so the appeals court examines the context of the calls to see if they were initiated and transmitted for the purpose of promoting goods.
"Although the campaign appeared to survey whether recipients had 'traditional American values,'" states her opinion, the producers were "more concerned with getting viewers to see Last Ounce of Courage than gathering information about them."
The appeals court also addresses the fact that the Golans didn't hear the full script of the prerecorded message and whether they could be adequate class representatives.
"Because the purpose of the calls is the critical issue in this case, the Golans were not subject to a unique defense," writes Murphy. "Nor did they suffer a different injury than class members who heard the entire message. What matters for all class members, including the Golans, is that each call was initiated for the purpose of promoting Last Ounce of Courage."
The appeals court decided not to rule whether Huckabee could be vicariously liable for the calls. Now that the case has been revived and remanded, that decision will be left to a lower district court judge.