Leninger and the other defendants

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The case proceeded to trial in August 2017. At the close of the evidence, the district court granted the Golans’ motion for judgment as a matter of law against ccAdvertising. The district court did not, however, offer their proposed jury instruction with regard to Dr. Leninger. As a result, the Golans abandoned a direct liability theory against Dr. Leninger and only submitted an agency theory to the jury, naming Dr. Leninger as the principal and ccAdvertising as his agent.

The jury returned a verdict in favor of Dr. . At the close of trial, ccAdvertising band data moved the District Court for a reduction of damages, arguing that the statutory damages of $500 per call for 3,242,493 calls – a total of over $1.6 billion – was so excessive that it violated the due process clause of the Fifth Amendment. The district court agreed, reducing the damages award to $10 per call and entering judgment in the amount of $32,424,930.

The Appeal

On appeal, ccAdvertising asked the Eighth Circuit to revisit its standing decision in light of the Supreme Court’s ruling in Spokeo, Inc. v. Robins, which was decided after the appellate court’s initial review of the case. The Court concluded that the harm at issue – the receipt of two telemarketing messages without prior consent – bore “a close relationship to the types of harms traditionally remedied by tort law, particularly the law of nuisance.” No. 17-3168, slip op. at 9. It did not matter that the harm “was minimal;” for purposes of standing the Court determined that the existence of harm was sufficient, regardless of its nature or type. Id.

The plaintiffs appealed the District Court’s jury instruction on direct liability against Dr. Leninger, but the Eighth Circuit rejected any argument that the District Court erred. The Court determined that the Golans’ proposed jury instruction “articulated too loose a standard for direct liability and blurred the line between direct and agency liability.” Id. at 11. The proposed instruction, which suggested that a defendant could be held liable directly if he or she “had direct, personal participation in the conduct found to have violated the TCPA” or “personally authorized the conduct found to have violated the TCPA,” did not comport with the statute. Id. at 5, 13. The Eighth Circuit found that the instruction would improperly “allow direct liability even where the defendant did not ‘initiate’ the calls.” Id. at 14. Absent any evidence that Dr. Leninger actually placed the calls, the proffered jury instruction was improper. Id.

Finally, the Court rejected the plaintiffs’ argument that the District Court erred in reducing the award of statutory damages, calling the original statutory damage award “a shockingly large amount.” Id. at 16. “Compare that to the conduct of ccAdvertising. It plausibly believed it was not violating the TCPA.” Id. at 16-17. The Court further noted that ccAdvertising had prior consent to contact call recipients about religious liberty, which was “a predominant theme of Last Ounce of Courage.” Id. at 17. And while the Eighth Circuit found that the harm at issue was enough to confer standing, it was nonetheless “not severe” in the eyes of the Court. Id.