This guest post was contributed by Natalie M. Reynoso, a second-year Southwestern Law School student who is now taking the Entertainment Law and the Emerging Web course.
Although it’s common in Tinsel Town to toss around gobs of cash and to spare no hijinks to promote a studio blockbuster, a small, patriotic, and religious-themed Christmas film has proven to be a bell-ringer for falling out of legal bounds and getting slapped around by a senior federal judge in St. Louis over how it was telemarketed.
To hype the Last Ounce of Courage, a Vertias Entertainment film with dismal critical reviews and a faint $1.6 million opening weekend box office, Freeeats.com and AIC Communications hired Mike Huckabee, a television commentator, former Arkansas governor, and onetime presidential aspirant, to record a robo call message, in which he said: “I am an enthusiastic supporter of a new movie called Last Ounce of Courage. It is a film about faith, freedom, and taking a stand for American values.”
But after that call in 2012 was blasted out over six days to more than 3 million recipients in the Midwest and elsewhere, one couple receiving the message cried foul. Ron and Dorit Golan, who live in the St. Louis area, said they had listed themselves on the federal no-call registry and they started what became a class action lawsuit, asserting the Courage calls were cold, dead wrong—they claimed they violated the federal Telephone Consumer Protection Act (TCPA).
Their case, initially, was rejected by a federal judge, who found the Golans had not suffered harm because they took the robo call as a phone message and not directly. Further, because of Huckabee’s spiel, it was unclear to the lower court judge that the call was a sales pitch for the film. The U.S. Court of Appeals for the Eighth Circuit disagreed, overturning the judge, finding the TCPA applied in this instance, and remanding the matter to the lower court. (A tip of the hat to the Hollywood Reporter for posting the appellate ruling online.)
How high would damages go?
Ultimately, the key issue in the case became how whopping the damages would be.
That’s because the act allowed the court to award damages $500 for every call in violation, and considering there were 3,242,493 calls. … that worked to a sum of $1.6 billion.
U.S. Senior District Judge E. Richard Webber, however, ruled that in this instance the act’s statutory damages clause was too severe and unreasonable. He, instead, said the plaintiffs should be paid $10 per call or $32.4 million, reasoning this amount “reflects the severity of the offense” while upholding the TCPA’s kick in the pants to those who cause “the invasions of privacy… and the wasted time spent answering unsolicited calls or unwanted voice messages.”
Though they prevailed in the case, the plaintiffs have said they will appeal, arguing the judge lacked the legal discretion to lower damages allowed by statute.
Huckabee, by the way, was dismissed from the case early on, with the courts finding he simply had served as a voice actor and could not be held liable for the robo calls.
Although a $32 million court loss will be tough to take in any circumstance, Hollywood’s also accustomed to unhappy second-guessing at any rate about the big money thrown at movie marketing. By some published 2015 estimates, a major film costs $60 million to produce but then devours $40 million per for global marketing and distribution. Other widely circulated and published guesstimates suggest that, “For every two dollars spent making a film, studios spend another dollar on marketing or $4 billion per year.” The industry long has relied on trailers, posters, print and broadcast ad campaigns to boost box office receipts. Now, of course, films are pushed through social media, games, virtual reality, and who knows? The Golan decision, however, won’t be a ringing endorsement for robo calls.