Golan v. Veritas Entm't, LLC

• Decision Date: 08 June 2015
• Docket Number: No. 14–2484.,14–2484.
• Citation: 788 F.3d 814
• Parties: Ron GOLAN; Dorit Golan, individually and on behalf of all others similarly situated, Plaintiffs–Appellants v. VERITAS ENTERTAINMENT, LLC ; Veritas Marketing Group, LLC ; FreeEats.com, Inc., doing business as CC Advertising; AIC Communications, LLC, doing business as CC Advertising; Gabriel S. Joseph, III; Stephen Wayne Griffin; Mission City Management, Inc.; Courage 2012, LLC; James R. Leininger; SixDi, Inc., doing business as SixDi; Bob Brewer; Michael Dale Huckabee, also known as Mike Huckabee, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

788 F.3d 814

Ron GOLAN; Dorit Golan, individually and on behalf of all others similarly situated, Plaintiffs–Appellants

v.VERITAS ENTERTAINMENT, LLC ; Veritas Marketing Group, LLC ; FreeEats.com, Inc., doing business as CC Advertising; AIC Communications, LLC, doing business as CC Advertising; Gabriel S. Joseph, III; Stephen Wayne Griffin; Mission City Management, Inc.; Courage 2012, LLC; James R. Leininger; SixDi, Inc., doing business as SixDi; Bob Brewer; Michael Dale Huckabee, also known as Mike Huckabee, Defendants–Appellees.

No. 14–2484.

United States Court of Appeals, Eighth Circuit.

Submitted: March 11, 2015.

Filed: June 8, 2015.

Robert Schultz, Schultz & Associates LLP, Chesterfield, MO, argued (Ronald J. Eisenberg, on the brief), for appellees.

Ari N. Rothman, Venable LLP, Washington, DC, argued (Ronald M. Jacobs, John F. Cooney, Molly T. Cusson, Venable LLP, Washington, DC, Cicely I. Lubben, Kimberly M. Steuterman, Stinson Leonard Street LLP, St. Louis, MO), for appellees Veritas Entertainment, LLC, Veritas Marketing Group, LLC, Stephen Wayne Griffin, Mission City Management, Inc., Courage 2012, LLC, James R. Leininger, and Michael Dale Huckabee.

Teresa M. Young, Brown & James, P.C., St. Louis, MO, argued (Stephen H. Schwartz, on the brief), for appellees FreeEats.com, Inc., AIC Communications, LLC, and Gabriel S. Joseph III.

Before MURPHY and SHEPHERD, Circuit Judges, and BROOKS,¹ District Judge.

Opinion

MURPHY, Circuit Judge.

In September 2012 Ron and Dorit Golan received two unsolicited, prerecorded messages on their home phone line. Each message stated: “Liberty. This is a public survey call. We may call back later.” The Golans filed a putative class action against Veritas Entertainment, LLC, Veritas Marketing Group, LLC, FreeEats.com, Inc., AIC Communications, LLC, Gabriel Joseph, Stephen Griffin, Mission City Management, Inc., Courage 2012, LLC, James Leininger, SixDi, Inc., Bob Brewer, and Mike Huckabee (collectively, “defendants”), alleging that defendants initiated the phone calls as part of a telemarketing campaign to promote the film Last Ounce of Courage, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the Missouri Do Not Call Law, Mo.Rev.Stat. § 407.1098. The district court dismissed the complaint with prejudice, concluding that the Golans did not have standing and were inadequate class representatives, and they now appeal. We reverse and remand.

Last Ounce of Courage was initially owned by Eastern Gate Films, LLC. During the production of the film, Eastern Gate asked Stephen Griffin, the president and chief executive officer of Veritas Entertainment, LLC and Veritas Management, LLC, to “come alongside and fix the film.” Griffin accepted the offer in exchange for a 49 percent ownership interest in Last Ounce of Courage. Eastern Gate sold its remaining interest in the film to James Leininger, the manager of Mission City Management, Inc. and Courage 2012, LLC, after he invested $10,000,000 in marketing the film. Leininger and Griffin then hired Gabriel Joseph, the owner of AIC Communications, LLC, to launch a telemarketing campaign to promote the film. Using the “celebrity voice” of Mike Huckabee, they agreed to play the following prerecorded script to 4 million residential phone lines and 30 million cell phones:

Hello, this is Governor Mike Huckabee, with a 45–second survey. Do you believe in American freedom and liberty? ... 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. It is a film about faith, freedom, and taking a stand for American values. May I tell you more about why I recommend that you ... see the movie Last Ounce of Courage? (Please note that only “yes” responses go to [the next segment of the script].)

Thank you for your interest. Last Ounce of Courage opens in theaters on Friday, September 14, [2012]. Last Ounce of Courage will inspire you and your loved ones to celebrate our nation and the sacrifices made to protect our liberties. It is a great story about taking a stand for religious freedom. The film is a timely reminder of all that is worth defending in our nation. Experience the Last Ounce of Courage trailer and see audience reactions at www. lastouncethemovie.com, that's last ounce the movie dot com. Would you like to hear this information again? (Please note that only “yes” responses [repeat this segment of the script and] all other responses go to [the next segment of the script].)

Thank you for your answers so far. I have just [one] more question [ ] for demographic purposes. Do you own a smart phone?

If a recipient did not answer the call, the following message would be left on the answering machine: “Liberty. This is a public survey call. We may call back later.”

After Huckabee recorded the script on September 4, 2012, Joseph hired Bob Brewer, an officer of the information technology company SixDi, Inc., to “review the script” and research “the cities and states where the most theaters would be showing the movie.” Brewer charged AIC Communications for the work, but the bills were paid by Griffin on behalf of Veritas Entertainment and Veritas Management. Griffin also paid Joseph and AIC Communications $248,500 for their work on the campaign.

Although the Golans were registered on federal and state “do not call” lists, Joseph and AIC Communications obtained their telephone number from a database they had purchased from Axiom Corporation. AIC Communications called the Golans on September 10, 2012 as part of the campaign. The Golans did not answer the call, so they heard only the automated message: “Liberty. This is a public survey call. We may call back later.” AIC Communications called the Golans again on September 12, 2012 and recorded the same message. Last Ounce of Courage opened nationwide two days later. Approximately 1,400 cinemas played the film that day including the Wehrenberg Chesterfield Galaxy 14 Theater, located near the home of the Golans in Chesterfield, Missouri. In total, AIC Communications called 4 million residential phone lines, and over 1 million live responses were detected, subjecting those recipients to the majority of the prerecorded script. The remaining recipients who did not answer the call, like the Golans, heard only the brief message recording.

The Golans sued Veritas Entertainment and Veritas Marketing in Missouri state court on October 3, 2012, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(B), and 47 C.F.R. § 64.1200(a). After initial discovery, they filed an amended class action complaint, adding Joseph, AIC Communications, Freeeats.com, Inc., Griffin, Mission City, Courage 2012, Leininger, SixDi, Brewer, and Huckabee as defendants to the action. The Golans then moved to certify a class of “persons in the United States to whom [defendants] within four years of October 3, 2012, initiated one or more telephone calls to such persons' residential telephone lines using the recorded voice of Mike Huckabee to deliver a message as part of the above-mentioned campaign regarding the movie Last Ounce of Courage,” in violation of § 227(b)(1)(B) of the Telephone Consumer Protection Act. They also sought to represent a subclass of Missouri residents who were registered on Missouri “do not call” lists and received more than one telephone solicitation by or on behalf of defendants, in violation of the Missouri Do Not Call Law, Mo.Rev.Stat. § 407.1098.

Defendants removed the case to federal district court on January 16, 2014. While Griffin, Veritas Entertainment, Veritas Marketing, Joseph, AIC Communications, and Freeeats.com, Inc., answered the amended class action complaint, Mission City, Courage 2012, Leininger, and Huckabee moved to dismiss it on the ground that they could not be held vicariously liable for the calls. The Golans moved to file a second amended class action complaint and to stay further briefing on class certification. In response to the motions, the district court found “issues of considerable concern that warrant[ed] holding any ruling in abeyance, pending additional briefing by the parties.” On its own accord, the court questioned “whether [the Golans had] suffered any injury sufficient to give them standing to bring this case in federal court and whether they [were] proper class representatives.”

After the parties briefed those issues, the district court concluded that the Golans had not suffered an injury in fact because none of the messages they had received “contained an advertisement, telemarketing message, or telephone solicitation,” in violation of the Telephone Consumer Protection Act (TCPA) or the Missouri Do Not Call Law. The district court also concluded that the Golans were inadequate class representatives because they could not show that their claims were typical of putative class members under Federal Rule of Civil Procedure 23(a). Unlike most putative class members who had heard the full script of the call, the court reasoned that the Golans were subject to a “unique defense” because they had heard only the brief message recording on their answering machine. It thus dismissed the case without addressing whether Mission City, Courage 2012, Leininger, or Huckabee could be held vicariously liable for the calls, and the Golans now appeal.

The Golans first argue that the district court erred in concluding that they lacked standing to pursue their TCPA claims because they had not suffered an injury in fact.² We review the district court's standing determination de novo. Plymouth Cnty., Iowa v. Merscorp, Inc., 774 F.3d 1155, 1158 (8th Cir.2014). Article III standing requires a plaintiff to “demonstrate the now-familiar elements of injury in fact, causation, and redressability.” Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007). Although Congress may not convert a generalized grievance into an “individual right...