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Golan v. Veritas Entertainment, LLC

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

July 5, 2017

RON GOLAN, et al., Plaintiffs,
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' First Motion for Partial Summary Judgment on the Issue of Damages [ECF No. 239], Plaintiffs' Second Motion for Partial Summary Judgment on Defendants' Newly Pleaded Affirmative Defense of Consent [ECF No. 243], Plaintiffs' Third Motion for Partial Summary Judgment on the Issue of Telemarketing [ECF No. 246], Plaintiffs' Fourth Motion for Partial Summary Judgment on Defendants' Newly Pled Defenses of Due Care, Prior Established Business Relationship, and Comparative Fault [ECF No. 249], Defendant Dr. James R. Leininger's Motion for Summary Judgment [ECF No. 265], and Defendant Courage 2012, LLC's Motion for Summary Judgment [ECF No. 267].

         I. BACKGROUND

         This lawsuit originated in the Circuit Court of St. Louis County, Missouri when Plaintiffs Ron and Dorit Golan (“Plaintiffs”) filed a petition against Defendants Veritas Entertainment, LLC; Veritas Marketing Group, LLC; Freeeats.com doing business as ccAdvertising; AIC Communications, LLC, doing business as ccAdvertising;[1] Gabriel S. Joseph, III; Stephen Wayne Griffin; Mission City Management, Incorporated; Courage 2012, LLC; Dr. James R. Leininger; SixDi, Incorporated; Bob Brewer; and Michael Huckabee (“Defendants”) alleging Defendants violated the TCPA, by making unsolicited pre-recorded calls to residential telephone lines. [ECF No. 1]. On January 15, 2014, Mission City Management Incorporated (“Mission City”) removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1446, and 1453. [ECF NO. 1]. Defendants Michael Huckabee (“Huckabee”), Bob Brewer (“Brewer”), SixDi, Incorporated (“SixDi”), and Mission City were dismissed from the case. The remaining Defendants and Plaintiffs filed six motions for summary judgment which the Court now addresses. The undisputed facts are as follows.

         A. Uncontroverted Facts

         Dr. James R. Leininger is a medical doctor and is engaged in several medical businesses. [ECF No. 272 ¶ 2-3]; [ECF No. 288 ¶ 2-3]. He has also engaged in several movies promoting traditional American values. [ECF No. 272 ¶ 5]; [ECF No. 288 ¶ 5]. Mission City is a Texas corporation that provides advisory services to various companies, and Dr. Leininger is the sole shareholder of Mission City. [ECF No. 272 ¶ 7-9]; [ECF No. 288 ¶ 7-9]. Enthuse Entertainment is a Texas corporation that invests in entertainment related businesses. [ECF No. 272 ¶ 21]; [ECF No. 288 ¶ 21]. Dr. Leininger is the sole owner of Enthuse Entertainment. [ECF No. 272 ¶ 22]; [ECF No. 288 ¶ 22].

         On January 24, 2012, Dr. Leininger watched the movie Last Ounce of Courage (“the Movie”). [ECF No. 272 ¶ 23]; [EFC No. 288 ¶ 23]. Following the screening, he considered investing in the movie through Enthuse Entertainment. [ECF No. 288 ¶ 23].[2] Enthuse Entertainment invested approximately $10 million in the Movie through Courage 2012, LLC (“Courage 2012”) in order to take an equity stake in the movie. [ECF No. 288 ¶ 30].[3]

         Veritas Marketing Group, LLC (“Veritas Marketing”), a Tennessee limited liability company, was created to manage, market, and promote media, including the Movie. [ECF No. 272 ¶ 25-26]; [ECF No. 288 ¶ 25-26]. Steve Wayne Griffin (“Griffin”) has been president of Veritas Marketing Group since 2012. [ECF No. 272 ¶ 27]; [ECF No. 288 ¶ 27]. Courage 2012, a Texas limited liability company formed on May 23, 2012, owns the Movie. [ECF No. 272 ¶ 31-33]; [ECF No. 288 ¶ 31-33]. Courage 2012 is owned by three entities; Veritas Entertainment, LLC (“Veritas Entertainment”) and Eastern Gate, [4] together, own 33 1/3% of Courage 2012, and Enthuse Entertainment owns the remaining 66 2/3%. [ECF No. 272 ¶ 34]; [ECF No. 288 ¶ 34].

         On May 24, 2012, Courage 2012 entered a marketing agreement with Veritas Marketing to market and distribute the Movie. [ECF No. 288-12].[5] Veritas Marketing had the exclusive right to negotiate and select all third parties necessary to assist in the marketing of the Movie. [ECF No. 288-12, at section 1].[6] Dr. Leininger did not sign or negotiate the marketing agreement. [ECF No. 272 ¶ 40]; [ECF No. 288 ¶ 40].

         On July 9, 2012, Gabriel S. Joseph, III (“Joseph”)[7] emailed Griffin a document describing ccAdvertising's Opt-in Channel program and on July 12, 2012, Joseph and Griffin met. [ECF No. 272 ¶ 50-51]; [ECF No. 288 ¶ 50-51]. At the meeting, Joseph made a pitch to promote the Movie. [ECF No. 272 ¶ 52]; [ECF No. 288 ¶ 52]. Dr. Leininger did not attend. [ECF No. 272 ¶ 53]; [ECF No. 288 ¶ 53]. At this meeting, Joseph showed Griffin a PowerPoint presentation including a slide demonstrating how ccAdvertising allegedly complied with the TCPA. [ECF No. 274-46].[8] On August 2, 2012, Joseph shared his PowerPoint presentation with others involved in the telephone campaign. [ECF No. 272 ¶ 55]; [ECF No. 288 ¶ 55]. The recipients included Brewer of SixDi who was hired by Veritas Marketing Group to assist with ccAdvertising's marketing campaign efforts for the Movie. [ECF No. 272 ¶ 56]; [ECF No. 288 ¶ 56]. Dr. Leininger was not sent the PowerPoint presentation and never saw it. [ECF No. 272 ¶ 59]; [ECF No. 288 ¶ 59].

         On or around August 7, 2012, acting on behalf of Veritas Marketing Group, Griffin engaged Joseph and his company, ccAdvertising, to conduct the telephone campaign at issue. [ECF No. 288 ¶ 60].[9] On August 24, 2012, Brewer provided Joseph with zip codes of theater locations where the Movie was playing. [ECF No. 272 ¶ 75]; [ECF No. 288 ¶ 75].

         On April 10 or 11, 2012, Dr. Leininger and Griffin went to Huckabee's home in Florida where Huckabee screened the Movie. [EFC No. 272 ¶ 42]; [EFC No. 288 ¶ 42]. At the end of August 2012, Joseph sent the script to Huckabee to record. [ECF No. 275-67].[10] On August 29, 2012, Joseph emailed the draft script to Griffin for the first time. Dr. Leininger was carbon copied on the email sent to Griffin. [ECF No. 272 ¶ 96]; [ECF No. 288 ¶ 96]. Griffin responded saying he was pleased with the script. [EFC No. 272 ¶ 100]; [EFC No. 288 ¶ 100]. Dr. Leininger did not respond to the email on which he was copied. [ECF No. 288 ¶ 100, 102].

         On September 4, 2012, Joseph emailed the script to Brewer and Griffin, stating Huckabee was going to record the script and to “Please review the script and get me any comments ASAP.” [ECF No. 272 ¶ 105]; [ECF No. 288 ¶ 105]. Neither of them provided him with any comments or input on the script. [ECF No. 272 ¶ 106]; [ECF No. 288 ¶ 106]. On September 5, 2012, Brewer and Griffin were designated to receive test calls of Huckabee's recording. [ECF No. 272 ¶ 108]; [ECF No. 288 ¶ 108]. Although Griffin did not listen to the test call, he told Brewer he approved of the call and Brewer then relayed this message to Joseph. [ECF No. 272 ¶ 113]; [ECF No. 288 ¶ 113]. On September 6, 2012, ccAdvertising invoiced Veritas Entertainment $248, 500 as the total balance owed for the call campaign. [ECF No. 272 ¶ 80]; [ECF No. 288 ¶ 80]. By October 6, 2012, Joseph confirmed to Griffin Veritas Marketing had completed final payment for the call campaign. [ECF No. 272 ¶ 81]; [ECF No. 288 ¶ 81].

         On September 6, 2012, Joseph called Dr. Leininger and asked him to listen to a sample of Huckabee's recording of the script. [ECF No. 288 ¶ 114, 116].[11] Joseph asked Dr. Leininger for his opinion of the call, and Dr. Leininger said he “thought its way too long” and boring, and people would hang up and not listen. [ECF No. 288 ¶ 117].[12]

         On September 6, 2012, Joseph emailed Brewer and Griffin, stating he had spoken with Dr. Leininger about the telephone campaign. Joseph said in his email Dr. Leininger “asked if we could go from Segment 2 to Segment 5.” [ECF No. 272 ¶ 122]; [ECF No. 288 ¶ 122].[13] Dr. Leininger never received the final version of the script, and was never offered the opportunity to listen to the final version of the telephone campaign call. [ECF No. 288 ¶ 127].[14] In addition to Dr. Leininger, Griffin and Brewer did not listen to Joseph's version of the script edited after September 6, 2012. [ECF No. 288 ¶ 128].[15]

         Advertising conducted the telephone campaign from September 9-15, 2012. [ECF No. 275-78].[16] ccAdvertising called 2, 870, 334 parties who did not participate in the campaign, and called 372, 159 parties who did participate in the campaign survey. [ECF No. 209-3].[17]Homeowners who did not answer the phone or answer at least two questions of the survey did not hear any mention of the Movie. [ECF No. 349 ¶ 8]. A total of 234, 208 call recipients[18]triggered the third question of the survey, which invited a recipient to answer “yes” to hear more information about the Movie. [ECF No. 349 ¶ 9]. People who did not answer the phone or answer at least three questions of the survey did not hear any information relating to when the Movie opened in theaters, the Movie's website address, or the plot of the Movie. [ECF No. 349 ¶ 10]. The voicemails Plaintiffs received do not identify or otherwise reference the Movie. [ECF No. 288 ¶ 133].[19] No version of the script or voicemails identified Dr. Leininger, Courage 2012, or Mission City to call recipients. [ECF No. 272 ¶ 132]; [ECF No. 288 ¶ 132].

         Joseph and ccAdvertising determined who would receive the calls and how many times a call recipient would be called. [ECF No. 272 ¶ 143-44]; [ECF No. 288 ¶ 143-44]. ccAdvertising possessed the phone numbers to use for the campaign and did not obtain them from any other Defendant. [ECF No. 272 ¶ 145]; [ECF No. 288 ¶ 145]. Homeowners did not provide their numbers to Defendants. [ECF No. 248 ¶ 4]; [ECF No. 315 ¶ 4]. ccAdvertising purchased a licensing agreement whereby ccAdvertising paid $50, 000 per year to Axiom in exchange for a right to access phone records. [ECF No. 209-3]. On September 10 and September 12, 2012, ccAdvertising called Plaintiffs' residential number. On both dates, a voicemail was left on Plaintiffs' answering machine. [ECF No. 272 ¶ 149]; [ECF No. 288 ¶ 149].

         Advertising sent the telephone campaign results and progress of calls to Brewer and Griffin. [ECF No. 272 ¶ 151]; [ECF No. 288 ¶ 151]. Griffin never reviewed this data. [ECF No. 272 ¶ 152]; [ECF No. 288 ¶ 152]. As of October 20, 2016, Ron and Dorit Golan did not know Dr. Leininger. [ECF No. 272 ¶ 156-58]; [ECF No. 288 ¶ 156-58].

         B. Controverted Facts

         The following facts were asserted by Plaintiffs or Defendants and were controverted by the opposing party. The Court finds these facts to be material and in dispute.

         Dr. Leininger did not hire Joseph or his company ccAdvertising, and Courage 2012 did not hire Joseph or his company ccAdvertising. [EFC No. 272 ¶ 61-62]; [EFC No. 288 ¶ 61-62]. It was Joseph's suggestion alone to use Huckabee to record the script. [EFC No. 272 ¶ 85]; [EFC No. 288 ¶ 85]. Dr. Leininger did not recommend Joseph use Huckabee nor did he ask Huckabee to be the voice of the telephone campaign. [EFC No. 272 ¶ 86]; [EFC No. 288 ¶ 86].[20] Huckabee did not contact Dr. Leininger to advise him he had agreed to be the voice of the telephone campaign. [EFC No. 272 ¶ 88]; [EFC No. 288 ¶ 88].[21] Joseph made the decision to skip segments after hearing Dr. Leininger's opinion about the call. [EFC No. 272 ¶ 124]; [EFC No. 288 ¶ 124]. Dr. Leininger did not suggest skipping from Segment 2 to Segment 5. [EFC No. 272 ¶ 123]; [EFC No. 288 ¶ 123].[22]

         II. STANDARD

         A court shall grant a motion for summary judgment only if the moving party shows “there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). By definition, material facts “might affect the outcome of the suit under the governing law, ” and a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to that party's case, . . . there can be ‘no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.

         The moving party bears the initial burden of proof in establishing “the non-existence of any genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the moving party meets this initial burden, the non-moving party must then set forth affirmative evidence and specific facts demonstrating a genuine dispute on the specific issue. Anderson, 477 U.S. at 250. When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts showing a genuine dispute of material fact exists. Fed.R.Civ.P. 56(c)(1); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). The non-moving party must demonstrate sufficient favorable evidence that could enable a jury to return a verdict for it. Anderson, 477 U.S. at 249. “If the non-moving party fails to produce such evidence, summary judgment is proper.” Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).

         In ruling on a motion for summary judgment, the Court may not “weigh the evidence in the summary judgment record, decide credibility questions, or determine the truth of any factual issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court instead “perform[s] only a gatekeeper function of determining whether there is evidence in the summary judgment record generating a genuine issue of material fact for trial on each essential element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009).

         III. DISCUSSION

         Plaintiffs and Defendants FreeEats.com, AIC Communications, Joseph, Griffin, Veritas Marketing, Courage 2012, and Dr. Leininger (hereinafter “Defendants”) filed six motions for summary judgment which raise issues concerning damages, consent to the telephone calls, whether the calls are telemarketing, joint and several liability, and the ...


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