Advertising Law Blog

In Golan v. Veritas Entertainment, LLC (decided by the Eighth Circuit Court of Appeals on June 8, 2015), presidential candidate and former Arkansas Governor Mike Huckabee will have to defend himself in a lawsuit filed under the Telephone Consumer Protection Act (TCPA) simply because he read the script that was played during a prerecorded call.

Huckabee recorded a 45-second script that purported to be a survey about American freedom and liberty and, even though he had little else to do with the call, he was named as defendant along with several other people and entities.  The Eighth Circuit’s decision reinstating the previously dismissed complaint demonstrates four important points about TCPA liability: 

1.  If a call has a dual purpose, it will likely be considered a telemarketing call. The defendants sought to escape the lawsuit by arguing that a telephone call was a survey, not a telemarketing call. The Eighth Circuit looked at the script and determined its true motive was to generate interest for a movie entitled “Last Ounce Of Courage.” Among the few questions asked by the “survey” were: may I tell you more about why I recommend the movie? and do you own a smart phone? The Eight Circuit decided that “the context of the calls indicates they were initiated for the purpose of promoting Last Ounce Of Courage. The defendants “were more concerned with getting viewers to see Last Ounce Of Courage than gathering information about them.”       

2.  Be sure to scrub all calling lists against do not call lists.  This lawsuit arose because the plaintiffs, the Golans, received the prerecorded calls even though they were registered on state and federal do not call lists.

3. No actual injury is necessary to maintain a TCPA action.  The district court originally dismissed this lawsuit because the Golans did not pick up the calls, and having a message left on their answering machines did not result in an injury sufficient to maintain a lawsuit.  The Eighth Circuit reversed the district court on this ground, holding that  an injury can be established “solely by the invasion of a legal right that Congress created.” The TCPA allows plaintiffs to recover actual damages or $500 per call, whichever is greater ($1500 per call for intentional violations).

4.  Potential liability extends beyond just the actual caller. Although the Eighth Circuit did not decide whether Huckabee was vicariously liable for the calls, which he unquestionably did not place himself, he will still have to defend the lawsuit on that basis.  The district court never decided the issue because it had dismissed the complaint on other grounds. The Eight Circuit’s opinions said, “We thus decline to pass on this issue and remand to the district court to consider whether those defendants [including Huckabee] can be held vicariously liable for the calls.  The case has now been sent back to the Western District of Arkansas.