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Golan v. Veritas Entertainment, LLC

United States District Court, E.D. Missouri, Eastern Division

January 18, 2017

RON GOLAN, et al., Plaintiff,
v.
VERITAS ENTERTAINMENT, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motion for Class Certification [ECF No. 172] and Supplemental Motion for Class Certification [ECF No. 207].

         I. BACKGROUND

         Plaintiffs 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.

         The 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.

         Plaintiffs 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 class.

         II. STANDARD

         Congress 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).

         Under 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.

         In this 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).

         III. DISCUSSION

         Plaintiffs 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.

         Defendants 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 ...


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