Telemarketing of Movie Leads to $32 Million Punishment in Class Action

Mike Huckabee - GETTY - H 2017
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More than a quarter century after Congress passed the Telephone Consumer Protection Act with the intention of cracking down on unsolicited telephone solicitations, one movie's promotional campaign has proven quite costly. On Thursday, a Missouri federal judge awarded $32.4 million over calls made for Last Ounce of Courage.

Producers of Last Ounce of Courage, featuring a man's stand for religious freedom in the face of government attack, hired AIC Communications to telemarket the film. In turn, former Arkansas Governor Mike Huckabee became the movie's pitchman in a pre-recorded robocall. Huckabee delivered an anti-Hollywood message to get audiences to see it.

"Do you agree that traditional American values are under attack in mainstream media and by our government?" asked Huckabee in the call that went out in 2012. "Would you, like me, Mike Huckabee, like to see Hollywood respect and promote traditional American values?

"I am an enthusiastic supporter of a new movie called Last Ounce of Courage," Huckabee continued. "It is a film about faith, freedom and taking a stand for American values..."

That spurred a class action lawsuit from recipients. In 2015, the 8th Circuit Court of Appeals gave the case a green light, although some of the co-defendants like Huckabee were later dismissed from the case.

In August, a jury trial was held, and after more than a week of testimony, U.S. District Court Judge E. Richard Webber granted plaintiffs' motion for judgment as a matter of law.

The real question centered on damages. The defendants in the case argued that statutory damages were unconstitutionally excessive.

In his decision, Webber rules that the TCPA's statutory damages clause is constitutional, but nevertheless disproportionate to the offense and unreasonable.

"There were 3,242,493 calls placed in violation of the TCPA in this case," he writes in the order (read here). "At $500 per violation, the TCPA would require a damages award of $1,621,246,500. This is obviously unreasonable and wholly disproportionate to the offense. The Court will award $32,424,930. This amounts to $10.00 per call. This reflects the severity of the offense, a six-day telemarketing campaign which placed 3.2 million telephone calls, as well as respecting the purposes of the TCPA to have a deterrent effect and to account for unquantifiable losses including the invasions of privacy, unwanted interruptions and disruptions at home, and the wasted time spent answering unwanted solicitation calls or unwanted voice messages."

An attorney for the plaintiffs told the St. Louis Post-Dispatch he was "pleased" with the result, but would nevertheless appeal on the basis that the judge didn't have discretion to reduct the full amount.

For those who think that major Hollywood studios would never get caught up in such a fight, guess again. For instance, Universal Pictures and Legendary Pictures are currently involved in a pending case in Florida alleging unsolicited text messages were sent in violation of the TCPA to promote the 2016 film, Warcraft.