In Golan v. Veritas Entertainment, LLC, 2017 WL 2861671 (E.D. Mo. 2017), Judge Webber held that there could be due process limitations on the amount of damages recoverable in a TCPA class action.

In their Motion for Partial Summary Judgment on the Issue of Damages [ECF No. 239], Plaintiffs ask the Court to determine the amount of damages to be awarded if Defendants are found liable. Plaintiffs are not asking the Court to find liability in their Motion for Summary Judgment. According to Plaintiffs, the determination of damages is simple: the number of telephone calls multiplied by the minimum amount of damages per call allowed under the TCPA, or $500. Plaintiffs claim there is no factual dispute Defendants made four million telephone calls as part of the campaign. Therefore, Plaintiffs assert the Court can easily determine the amount of damages to be awarded on summary judgment; four million times $500 for each call or $2,000,000,000. . . .The Court will not decide the amount of damages to be awarded on summary judgment, because it would be improper to determine which damages are unconstitutionally excessive before a trial has occurred. Damages under the TCPA, and other statutes which award statutory damages, may be reduced as unconstitutionally excessive. Murray v. GMAC Mortg. Corp., 434 F.3d 948, 954 (7th Cir. 2006) (“An award that would be unconstitutionally excessive may be reduced…”); Maryland v. Univ. Elections, Inc., 862 F. Supp. 2d 457, 466 (D. Md. 2012) (finding statutory damages under the TCPA should be reduced); Centerline Equip. Corp. v. Banner Personnel Service, Inc., 545 F. Supp. 2d 768, 778 (N.D. Ill. 2008) (finding the appropriate remedy to damages so excessive as to be improper, is a reduction of the aggregate damage award). A number of factors would be considered in determining if damages are excessive including Defendants’ conduct and financial situation, which is not currently before the Court. Therefore, the Court will deny Plaintiffs’ Motion for Summary Judgment on the issue of awarding damages before liability has been determined and how, if at all, any constitutional challenge shall apply.

The Court found that the calls were telemarking calls based on the scripts produced in discovery, and that the scope of consent to be called had been exceeded.

“[T]he consent must be considered to relate to the type of transaction that evoked it.” Van Patten, 847 F.3d at 1045. In this matter, Defendants assert they obtained consent to call the numbers about religious freedom or religious liberty. This is not consent to receive telephone calls advertising a movie, even if the movie, in some manner, relates to religious freedom. Consent for a political topic is not consent for an advertisement. Additionally, the Court is not confident prior consent was obtained for telephone calls about religious freedom or liberty, because the only evidence to which Defendants cited was their own testimony they obtained consent. There was no other evidence introduced regarding this alleged consent obtained by ccAdvertising. The FCC’s interpretations and case law on consent under the TCPA are not so broad as to encompass an advertisement for a movie into consent to hear about religious liberty.

The Court rejected application of a comparative fault/”several” liability theory amonst the Defendants as not sanctioned by the TCPA.

Defendants assert when controlling case law is absent, a federal court may look to state law, as well as the Restatement for guidance. However, controlling case law is not absent from this case. Federal cases addressing the TCPA have routinely held defendants to be jointly and severally liable for the damage they caused.  There are a many federal cases where the courts have held multiple defendants to be jointly and severally liable for violating the TCPA. See Texas v. Am. Blast Fax, Inc., 164 F. Supp. 2d 892, 897-99, (W.D. Tex. 2001) (holding multiple defendants jointly and severally liable for sending intrastate fax advertisements); See also Roylance v. ALG Real Estate Servs., No. 5:14-cv-02445-PSG, 2015 U.S. Dist. LEXIS 44930, *31 (N.D. Cal. Mar. 16, 2015) (holding defendants jointly and severally liable for prerecorded message offering cheap loans).  Defendants provided one case where damages under the TCPA were apportioned based on culpability. The case at issue is Maryland v. Universal Elections, Inc., 862 F. Supp. 2d 457, 466, (D. Md. 2012). Plaintiffs argue this case “was wrongly decided, has never been followed, and is an outlier in the law. The Court finds Maryland v. Universal Elections to be an anomaly from the far majority of TCPA federal cases. On this issue, the Court will follow the greater weight of authority of the case law.  Based on federal case law, the Court will apply joint and several liability if Defendants are found to be liable. Therefore, the Court will grant Plaintiffs’ Motion for Summary Judgment on the issue of comparative fault.