In Golan v. FreeEats.com, Inc., No. 17-3156, 2019 U.S. App. LEXIS 21015 (8th Cir. July 16, 2019), the Court of Appeals for the Eighth Circuit reduced an aggregate TCPA verdict on due process grounds.
The jury returned a verdict in favor of Dr. Leininger and the other defendants. The district court entered judgment against ccAdvertising based on its prior grant of the Golans’ motion for judgment as a matter of law. The court entered judgment in favor of the remaining defendants. ccAdvertising filed a post-trial motion for reduction of damages, arguing the statutory damages of $500 per call for 3,242,493 calls — totaling $1,621,246,500 — was so excessive it violated the Due Process Clause of the Fifth Amendment. The district court concluded that the $1.6 billion award was “obviously unreasonable [*9] and wholly disproportionate to the offense” and reduced the damages to $10 per call for a total of $32,424,930. . . We agree with the district court that the statutory damages here of $1.6 billion violate the Due Process Clause. To state the obvious, $1.6 billion is a shockingly large amount. Compare that to the conduct of ccAdvertising. It [*20] plausibly believed it was not violating the TCPA.13 It had prior consent to call the recipients about religious liberty, and a predominant theme of Last Ounce of Courage is religious liberty. Moreover, only the recipients who voluntarily opted in during the call heard the message about the film. The call campaign was conducted for only about a week. And the harm to the recipients was not severe — only about 7% of the calls made it to the third question, the one about the film. Under these facts, $1.6 billion is “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” Williams, 251 U.S. at 67. The Golans argue that we may not consider the aggregate award here, but only the amount per violation. But this argument is plainly foreclosed by our precedents. See Capitol Records, 692 F.3d at 910 (HN16 “The absolute amount of the award, not just the amount per violation, is relevant to whether the award is ‘so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.'” (quoting Williams, 251 U.S. at 67)); see also Warner Bros. Entm’t v. X One X Prods., 840 F.3d 971, 977 (8th Cir. 2016) (same). We are unpersuaded by the Golans’ attempt to distinguish Capitol Records on the basis that there was only one plaintiff there, whereas there are multiple plaintiffs in the class [*21] here. The aggregate award is still relevant. The district court did not err in concluding the statutory damages would violate the Due Process Clause and reducing the award.