(Reuters) - A U.S. appeals court revived a lawsuit accusing Republican presidential candidate Mike Huckabee and others of violating telemarketing laws by sending millions of prerecorded phone messages to advertise the 2012 movie “Last Ounce of Courage.”
In a 3-0 decision on Monday, the 8th U.S. Circuit Court of Appeals in St. Louis said a lower court judge erred in dismissing claims by Ron and Dorit Golan under the federal Telephone Consumer Protection Act and Missouri’s “do not call” law, in their proposed $5 million class action lawsuit.
Huckabee and the movie’s producers and marketers were sued over a campaign in which Huckabee, who was then a host on the Fox News Channel, pitched “Last Ounce of Courage,” about the son of a fallen soldier, in calls to 34 million residential phone lines and cell phones. People who like the Golans did not answer their phones received the message: “Liberty. This is a public survey call. We may call back later.”
Writing for the appeals court, Circuit Judge Diana Murphy rejected defense arguments that the message did not violate the Telephone Consumer Protection Aact because it was neither an advertisement nor telemarketing.
“Although the campaign appeared to survey whether recipients had ‘traditional American values,'” Murphy wrote, “each call was initiated for the purpose of promoting ‘Last Ounce of Courage,'” and “qualified as ‘telemarketing’ even though the messages never referenced the film.”
The appeals court declined to rule on whether Huckabee could be “vicariously liable” for the calls. It returned the case to U.S. District Judge E. Richard Webber in St. Louis, who in May 2014 found that the Golans lacked standing to sue.
Huckabee’s campaign, defense lawyers and the Golans’ lawyers did not immediately respond to requests for comment.
The case is Golan et al v. Veritas Entertainment LLC et al, 8th U.S. Circuit Court of Appeals, No. 14-2484.
Reporting by Jonathan Stempel in New York; Editing by Leslie Adler