In Golan v. Veritas Entertainment, LLC, 2017 WL 3923162, No. 4:14CV00069 ERW (E.D. Mo. September 7, 2017), Judge Webber found, after a trial on the merits, that the TCPA’s damages provision has constitutional due process limitations and, therefore, reduced the statutory damages to be awarded to $10 per call.
The violations in this case involved the use of automated telephone equipment for which the Telephone Consumer Protection Act (“TCPA”) states a plaintiff may recover either the actual monetary loss from a violation or $500 in damages for each violation, whichever is greater. 47 U.S.C. § 227(b)(3)(B). Evidence in the case proved there were 3,242,493 calls placed in violation of the TCPA. Applying $500 per violation would result in a damages award of $1,621,246,500. Defendants ask the Court to reduce the amount of damages to $324,249, or $0.10 per call, arguing the damages are so excessive, it violates the Constitution. In support, Defendants cite three TCPA cases where damages were reduced. Plaintiffs argue there is no constitutional basis for a reduction of statutory damages, and even if there was, this is not a case where damages should be reduced. . . . Of the three cases which have reduced TCPA damages awards, only Dish Network, LLC, found the damage reduction comported with due process. Id. at 139. The other cases did not reduce damages under the Constitution. However, that does not foreclose the Court’s ability to reduce the damages award to comport with due process. The Court’s review of the applicable case law, supra, indicates the TCPA’s statutory damages clause is constitutional, but a specific damages award may be unconstitutional if it is “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” Capital Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 907 (8th Cir. 2012). With little else to provide guidance, the Court will apply this standard and will determine the amount of damages prescribed by the statute are so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable. There were 3,242,493 calls placed in violation of the TCPA in this case. At $500 per violation, the TCPA would require a damages award of $1,621,246,500. This is obviously unreasonable and wholly disproportionate to the offense. The Court will award $32,424,930. This amounts to $10.00 per call. This reflects the severity of the offense, a six-day telemarketing campaign which placed 3.2 million telephone calls, as well as respecting the purposes 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