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Golan v. FreeEats.com, Inc.

United States Court of Appeals, Eighth Circuit

July 16, 2019

Ron Golan; Dorit Golan, individually and on behalf of all others similarly situated Appellants
v.
FreeEats.com, Inc., doing business as ccAdvertising; AIC Communications, LLC, doing business as ccAdvertising; James R. Leininger Defendants - Appellees

          Submitted: December 12, 2018

          Appeal from United States District Court for the Eastern District of Missouri - Eastern Division

          Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         Dr. 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[1] 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.

         I. Background

         The 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.

         Courage 2012 hired Veritas Marketing Group to market and distribute Last Ounce of Courage, which in turn hired ccAdvertising, [2] 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.

         In 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.

         The 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.

         Among 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."

         In 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.

         In May 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).

         The 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."[3] 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.

         At the close of evidence, the district court granted the Golans' motion for judgment as a matter of law against ccAdvertising.

         The 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 TCPA."

         At 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 individual:
(1) had direct, personal participation in the conduct found to have ...

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