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Is $2 Billion an Excessive Penalty for Telemarketing a Movie?


In a class action alleging Mike Huckabee anti-Hollywood robocalling, a judge wants a trial before deciding what damages are appropriate.

Mike Huckabee has some hot ideas for movies. On Wednesday, the former presidential candidate turned media pundit tweeted that CNN was remaking the Arnold Schwarzenegger film, True Lies. Presumably, he was joking, but what’s not a lie is that one of Huckabee’s old forays into the film world is turning into a $2 billion trial. Around the same time that he was tweeting about the “Corleone News Network,” a federal judge in Missouri was handing down a decision defining the contours of a trial set for Aug. 7 featuring a Huckabee robocall about a movie. The trial could culminate in a verdict on whether $2 billion amounts to an excessive penalty for telemarketing.

Back in 2012, Huckabee was tapped by the producers of the film, Last Ounce of Courage, to do a bit of promotion. The film from Vertitas Entertainment was about a son of a fallen U.S. soldier and was pitched to consumers as anti-Hollywood.

“Do you agree that traditional American values are under attack in mainstream media and by our government?” asked Huckabee in a recorded call. “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…”

The robocall spurred a class action lawsuit from recipients who assert violations of the Telephone Communication Protection Act. In 2015, the 8th Circuit Court of Appeals gave the case a green light.

Huckabee has since been dismissed from the lawsuit upon U.S. District Court judge E. Richard Webber’s March 2016 opinion that his service as a “celebrity voice” and additions to the script, without more, are “insufficient to impute liability to him.”

But the judge is definitely moving this case towards trial by providing plaintiffs with significant victories in a summary judgment opinion on Wednesday.

Webber, for instance, examined evidence related to the purpose of the telephone calls and heard arguments from the remaining defendants in the case that the questions that Huckabee posed at the beginning of the call amounted to a political survey. Under FCC guidance, market surveys, political polling and similar activity are exempted from the TCPA.

The judge isn’t buying it.

“[T]here is no way to interpret this script as anything other than an attempt to convince consumers to go see the Movie,” he writes. “This is telemarketing; the telephone calls are for the purpose of encouraging the purchase of a product, here, a movie.”

Plaintiffs are granted a summary judgment motion on the issue. The judge also agrees with the suing class that defendants can’t assert defenses of consent, due care, prior established business relationship and comparative fault.

As for the issue of damages, the plaintiffs told the judge that determination of damages is simple: the number of telephone calls multiplied by $500, which is the minimum amount of damages per call allowed under the TCPA. In this case, plaintiffs do the calculations on four million calls and demand $2 billion.

“Defendants, of course, disagree,” writes Weber. “Defendants contend a damages calculation cannot precede the presentation and evaluation of the evidence for liability, because Defendants may decide to challenge the damages award as unconstitutionally excessive. According to Defendants, the Court cannot determine if a damages award is excessive until a trial with all of the facts and evidence.”

There also appears to be some dispute about the number of calls initiated and which ones violate the TCPA.

“The Court will not decide the amount of damages to be awarded on summary judgment, because it would be improper to determine which damages are unconstitutionally excessive before a trial has occurred,” concludes the judge. “A number of factors would be considered in determining if damages are excessive including Defendants’ conduct and financial situation, which is not currently before the Court. Therefore, the Court will deny Plaintiffs’ Motion for Summary Judgment on the issue of awarding damages before liability has been determined and how, if at all, any constitutional challenge shall apply.”

Here’s the full opinion lest anyone accuse us of fake news.





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