Ron Golan; Dorit Golan, individually and on behalf of all others similarly situated Appellants
FreeEats.com, Inc., doing business as ccAdvertising; AIC Communications, LLC, doing business as ccAdvertising; James R. Leininger Defendants - Appellees
Submitted: December 12, 2018
from United States District Court for the Eastern District of
Missouri - Eastern Division
SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
James R. Leininger, through his business that invests in
family-friendly entertainment, helped finance Last Ounce
of Courage, a film with religious and political themes.
The firm responsible for marketing the film hired
ccAdvertising to conduct a telephone marketing campaign. In
conducting the campaign, ccAdvertising made around 3.2
million phone calls in the course of a week. The named
plaintiffs in this class action (the Appellants here), who
received two answering machine messages, sued numerous
parties involved with the film and marketing campaign for
violating the Telephone Consumer Protection Act (TCPA). At
issue in this appeal is whether the Appellants have standing
based on the receipt of these two messages, whether the
district court abused its discretion by refusing to give
one of the Appellants' requested jury instructions on Dr.
Leininger's personal liability, and whether the district
court erred by finding the statutory damages against
ccAdvertising to be unconstitutional and reducing them from
$500 per call ($1.6 billion total) to $10 per call ($32
million total). We conclude the Appellants have standing and
affirm the district court.
film Last Ounce of Courage involved the themes of
"faith, freedom, and taking a stand for American
values." Courage 2012, LLC, was formed to manage the
ownership of the rights to the film. Enthuse Entertainment,
an entity owned by Dr. Leininger that invests in
family-friendly entertainment businesses, invested around $10
million to become a 2/3 owner of Courage 2012.
2012 hired Veritas Marketing Group to market and distribute
Last Ounce of Courage, which in turn hired
ccAdvertising,  a telemarketer in the political arena, to
conduct a telephone campaign to promote the film. The owner
of ccAdvertising, Gabriel S. Joseph, III, wrote a script for
the telephone campaign and sent it to former Arkansas
Governor Mike Huckabee, who agreed to record it.
early September 2012, ccAdvertising conducted the telephone
campaign using Governor Huckabee's recorded message. The
phone calls were formatted as a poll, with questions on such
topics as "American freedom and liberty" and
"religious freedom." After hearing two polling
questions, the call recipients were then asked if they would
like to hear more about Last Ounce of Courage, which
they could opt into with a "yes" response. Those
who opted in heard the following message:
Thank you for your interest. Last Ounce of Courage
opens in theaters on Friday, September 14th. 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 lastouncethemovie.com.
phone calls were sent to phone numbers ccAdvertising already
possessed. ccAdvertising apparently believed the calls did
not violate the TCPA because it had prior consent from these
recipients to be contacted about topics such as religious
liberty. During the week-long course of the campaign, 3, 242,
493 phone calls were made.
the recipients were Ron and Dorit Golan, who received two
phone calls, but did not answer either one. They received two
answering machine messages, saying: "Liberty. This was a
public survey call. We may call back later."
October 2012, the Golans filed a class action in Missouri
state court. As later amended, the complaint asserted a cause
of action under the TCPA and named numerous parties involved
with the film and its marketing as defendants, including
ccAdvertising, Joseph, and Dr. Leininger.
2014, the district court dismissed the case, concluding that
the Golans lacked standing because the messages they received
did not violate the TCPA. A panel of this court reversed,
concluding that even the brief messages qualified as
"telemarketing" in violation of the TCPA because
their underlying purpose was to promote a product or service.
See Golan v. Veritas Entm't, LLC, 788 F.3d 814,
818-21 (8th Cir. 2015).
case eventually proceeded to trial in August 2017. The
Golans' pre-trial proposed jury instructions did not seek
to hold Dr. Leininger directly liable but sought liability
under an agency theory. Similarly, in the Golans'
pre-trial brief, they stated that they had enough evidence to
hold ccAdvertising and Joseph directly liable and that
"[t]he liability of the remaining defendants rests on
principals [sic] of agency and
ratification." But midway through trial, the Appellees
accused the Golans of shifting their theory of liability to
also pursue a direct liability theory against Dr. Leininger.
close of evidence, the district court granted the Golans'
motion for judgment as a matter of law against ccAdvertising.
next day, the district court held a jury instruction
conference to discuss the court's proposed jury
instructions, which it explained would "not necessarily
be the final instruction package." They included
instructions regarding Dr. Leininger under both direct and
agency liability theories. The court's proposed direct
liability instruction required the Golans to prove both that
ccAdvertising was acting as the agent of Courage 2012 and
that Dr. Leininger, as an officer of Courage 2012, "had
direct, personal participation in or personally authorized
the conduct of ccAdvertising found to have violated the
beginning of the conference, the Golans moved to voluntarily
dismiss their claims against Courage 2012 and two other
defendants. They explained that this dismissal was based on
not getting the instruction they wanted with regard to Dr.
Leininger: "In terms of the instructions that Your Honor
has prepared in terms of the direct participation, not the
agency but the direct participation, based on how the Court
is having us submit those claims, we made a decision based on
that to dismiss those parties." The court asked:
"Do you understand these are not necessarily, as I
mentioned, the final instructions? Would your actions be
different if the proffered instructions were modified?"
to which the Golans answered "I don't know at this
point, Your Honor." The Golans also abandoned the direct
liability theory against Dr. Leininger, instead "only
submitting an agency theory, [with] Dr. Leininger as the
principal, ccAdvertising as the agent." The district
court granted the motion to voluntarily dismiss certain
defendants. The district court also agreed to put the
Golans' proposed instruction on direct liability in the
record, which stated in relevant part:
In addition to agency, an individual may be held personally
or individually liable for violations of the TCPA if the
(1) had direct, personal participation in the conduct found
to have ...