United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion for
Class Certification [ECF No. 172] and Supplemental Motion for
Class Certification [ECF No. 207].
Ron Golan and Doris Golan (“Plaintiffs”)
initiated this lawsuit by filing a petition in the Circuit
Court of St. Louis County on October 3, 2012. On December 4,
2013, Plaintiffs filed an amended class action petition
claiming violations of the Missouri No Call List, Missouri
Revised Statute § 407.1095-407.1110, and the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227, et seq., against Defendants Veritas
Entertainment, LLC, Veritas Marketing, LLC, Freeeats.com,
Inc., AIC Communications, LLC, Joseph S. Gabriel, III,
Mission City Management, LLC, Courage 2012, LLC, James R.
Leininger, Sixdi, Inc., Bob Brewer, and Michael Dale
Huckabee. Defendants removed the action to this Court where
Plaintiffs' Amended Class Action Petition was dismissed
for lack of Article III standing. On June 8, 2015, the Eighth
Circuit Court of Appeals reversed this Court's dismissal
and remanded for further proceedings. Subsequent to the
Eighth Circuit's ruling, Plaintiffs filed a Second
Amended Class Action Complaint asserting only TCPA claims.
Defendants Michael Huckabee, Bob Brewer, and SixDi, Inc. have
since been dismissed.
allegations of Plaintiffs' Second Amended Complaint
(“Complaint”) focus on telemarketing of a movie
titled “Last Ounce of Courage.” Plaintiffs allege
Defendants engaged in an advertising campaign for the movie
which included telephone calls to approximately four million
residential telephone numbers throughout the United States.
Plaintiffs allege the telephone calls were prerecorded,
appeared as surveys to recipients about traditional American
values, and told recipients if they believed in freedom and
liberty, they would enjoy the movie. As alleged in the
Complaint, Defendant Michael Huckabee was the voice for the
prerecorded messages. Plaintiffs allege they received two
telephone calls with the prerecorded voice to their
residential telephone number, which was registered on the
federal Do Not Call List. Further, Plaintiffs allege they did
not consent to receive these calls.
assert Defendants violated section 227(b)(1)(B) of the TCPA,
which, with certain exceptions, prohibits persons from
initiating calls to residential telephone lines using a
prerecorded voice to deliver a message without the called
party's prior express consent. Plaintiffs filed the
current Motions for Class Certification seeking to certify a
passed the TCPA in 1991, prompted by “[v]oluminous
consumer complaints about abuses of telephone
technology.” Mims v. Arrow Fin. Servs. LLC,
132 S.Ct. 740, 744 (2012). The TCPA “bans certain
practices invasive of privacy and directs the Federal
Communications Commission . . . to prescribe implementing
regulations.” Id. The TCPA provides expressly
for private lawsuits (see47 U.S.C. 227(b)(3)) over
which state and federal courts have concurrent jurisdiction.
Mims, 132 S.Ct. at 745. It provides that a
“person or entity” may bring an action
“based on a violation of this subsection or the
regulations prescribed under this subsection” to enjoin
such violation, recover damages, or both. 47 U.S.C. §
227(b)(3); see also Nack v. Walburg, 715
F.3d 680, 686-87 (8th Cir. 2013). It also permits state
officials to bring an action on behalf of state residents. 47
U.S.C. § 227(e)(6)(A).
Rule 23(a) of the Federal Rules of Civil Procedure, a party
seeking class certification must demonstrate: (1) the class
is so numerous joinder of all members is impracticable; (2)
there are questions of law or fact common to the class; (3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class. See Wal- Mart Stores,
Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011) (moving party
must “affirmatively demonstrate his compliance with the
Rule”). The party seeking certification also must show
one of the subsections in Rule 23(b) is met.
case, Plaintiffs seek to certify a class under Rule 23(b)(3).
Rule 23(b)(3) actions require a court to find (1) the
questions of law or fact common to class members predominate
over any questions affecting only individual members, and (2)
a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.
See Blades v. Monsanto Co., 400 F.3d 562,
566 (8th Cir. 2005).
seek to certify the following class:
All persons within the United States to whom Defendants (or
some person on Defendants' behalf), 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.
challenge certification of this class on several grounds;
their main argument focuses on Plaintiffs alleged failure to
prove commonality because they cannot prove lack of consent
on a class-wide basis. The ...