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Court Reduces Aggregate Award of Statutory Damages Deemed “Obviously Unreasonable and Wholly Disproportionate”

After awarding a judgment as a matter of law at the close of plaintiffs’ case, Judge E. Richard Webber of the Eastern District of Missouri reduced the award because statutory damages of $500 per call would have been “obviously unreasonable and wholly disproportionate to the offense,” making it unconstitutional as applied to the facts of the case. Golan v. Veritas Entm’t, LLC, No. 14-0069, 2017 WL 3923162, at *4 (E.D. Mo. Sept. 7, 2017).

The plaintiffs’ claims concerned a marketing campaign for the 2012 film Last Ounce of Courage, which included making 3,242,493 phone calls. If a recipient answered the call, a pre-recorded speech by Governor Mike Huckabee asked if the recipient believed in freedom and liberty, wanted Hollywood to promote “traditional American values,” and wanted to learn more about the film that Governor Huckabee was endorsing. If the recipient responded yes, Governor Huckabee’s pre-recorded summary would be played. If a recipient did not answer the call, a message would be left stating “Liberty. This is a public survey call. We may call back later.” Golan v. Veritas Entm’t, LLC, 788 F.3d 814, 817 (8th Cir. 2015).

After the Eighth Circuit reversed an earlier dismissal for lack of Article III standing, the case proceeded to trial in August 2017. At the close of plaintiffs’ case, the court entered judgment as a matter of law in favor of the plaintiffs. The defendants then filed a motion for reduction of excessive damages, as a statutory penalty of $500 per phone call would result in an aggregate award of $1,621,246,500. The court granted that motion, holding that such an award would be “obviously unreasonable and wholly disproportionate to the offense” and therefore unconstitutional. Golan, 2017 WL 3923162, at *4. Instead, the court reduced the award to $32,424,930, which amounts to $10 per call. The court reasoned:

This reflects the severity of the offense, a six-day telemarketing campaign which placed 3.2 million telephone calls, as well as respecting the purpose of the TCPA to have a deterrent effect and to account for unquantifiable losses including the invasions of privacy, unwanted interruptions and disruptions at home, and the wasted time spent answering unwanted solicitation calls or unwanted voice messages. This amount also takes into account the significant time and expense needed to notify the class and distribute the damages to the class.


The decision will be helpful to defendants seeking to reduce the draconian awards for which they may be deemed liable. But even after a roughly 98% reduction the award is still significant—especially considering that it is nearly ten times greater than the $3.3 million that the film reportedly made at the box office.

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About this Author

Andrew Van Houter, Commercial litigation lawyer, Drinker Biddle

Andrew L. Van Houter focuses his practice on complex commercial litigation, representing Fortune 100 companies, hedge funds and smaller businesses. Andrew also assists clients in responding to governmental inquiries and investigations. Andrew is a member of the Class Action group, defending companies in privacy litigation.

Andrew is a contributor to the firm's SEC Law Perspectives Blog, which provides reports, discussions, and analyses on noteworthy trends...

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight about the Telephone Consumer Protection Act; and a senior member of the firm's Class Actions Team and interdisciplinary Retail Industry Team.

Committed to civil rights and civic engagement, Michael has spearheaded public interest matters meant to prevent racial discrimination, protect the rights of the disabled and incarcerated, prohibit the use of unverifiable voting systems, and preclude the misuse of our laws and abuse of our civil justice system. One of his most recent public interest matters resulted in a landmark settlement that put an end to decades of discrimination by administrative agencies that had refused to make important information about public benefits programs available in alternative formats that were accessible to the blind and visually impaired. As a result of the settlement, thousands of class members have already requested and received documents in accessible alternative formats.