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From Antitrust Law Daily, August 1, 2017

Dish Network liable for statutory damages for TCPA violations

By Gregory Kane, J.D., M.B.A.

A satellite television provider that was found to have willfully violated the Telephone Consumer Protection Act (TCPA) by the jury in a class action lawsuit may not challenge individual class member’s identity via discovery and jury trials, the federal district court in Greensboro, North Carolina, has decided. An administrative process will be used instead where individual claimants must submit a completed claim form and the defendant will be able to raise concerns (Krakauer v. Dish Network, LLC, July 27, 2017, Eagles, C.).

Background. Dish Network was found at jury trial to have violated the TCPA when its agent made 51,119 telephone solicitations to 18,066 residential phone numbers on the National Do Not Call Registry. Each class member received at least two telephone calls in any 12-month period when their telephone number had been listed on the National Do Not Call Registry for at least 30 days. Statutory damages are $400 per call and the amount was trebled to reflect that defendant’s violations were willful and knowing for a total of $1,200 per call. The plaintiffs were able to identify the owner of roughly 75% of the phone numbers in the class prior to trial and presented class-wide evidence of violations.

After the jury verdict, the court concluded on May 22 that Dish had "willfully or knowingly violated" the Act, thus entitling the class of plaintiffs to treble damages. On June 6, the court denied Dish’s motion for judgment as a matter of law and motion for a new trial.

The plaintiffs sought an aggregate judgment at $1,200 for each of the 51,119 violations. Dish sought to challenge the statutory standing of each individual class claimant at a separate jury trial including use of the discovery process.

Identifying Individuals. While statutory standing is an element that individual class members must prove to show liability, such standing was established class-wide at jury trial and the defendant does not get a second chance to challenge individuals. The trial established that the defendant willfully and knowingly violated the TCPA when it made tens of thousands of sales calls. Those persons whose telephone numbers were on the Registry were entitled to up to $1,200 for each call. While there may be some questions as to who is a class member, a jury trial on identity for each and every class member is not appropriate, but is better settled fairly and efficiently through a claims administration process as authorized by Rule 23. The defendant was entitled to participate in the administrative process so long as that participation is helpful and does not delay the proceedings or obstruct them.

Judgment. While aggregate judgment was appropriate, especially given that defendant willfully violated the TCPA tens of thousands of times, there were uncertainties in some of the data regarding class members. So as to ensure due process, the administrative process will be used and claims calculated as individuals are identified. Membership in the class that cannot be reasonably disputed can be submitted for judgment from the existing data. Individual claimants may be burdened with filling out and returning a claim form given the size of the potential award. The plaintiffs argued that no unclaimed funds be returned to defendants but should be distributed by cy pres. While a return of unclaimed funds would lessen the deterrent effect of the TCPA’s damages provision, the court was not prepared to make a determination until the actual amount of the unclaimed funds was known with defendant’s participation in the claims administration process playing a role in the court’s decision.

The case is No. 1:14-CV-333.

Attorneys: Anthony I. Paronich (Broderick & Paronich, PC) for Thomas H. Krakauer. Allegra A. Noonan (Orrick Herrington & Sutcliffe LLP) and Benjamen E. Kern (Benesch, Friedlander, Coplan & Aronoff, LLP) for Dish Network LLC.

Companies: Dish Network LLC

MainStory: TopStory Privacy ConsumerProtection NorthCarolinaNews

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