Dish Can’t Trim Class Members Owed $61M In Robocall Row

Law360, New York (January 26, 2018, 3:50 PM EST) — A North Carolina federal judge on Thursday blasted Dish Network LLC for trying to trim the number of consumers it owes a total of $61 million to for placing illegal calls through an authorized dealer, saying she has taken note of the company’s “lack of respect” and attempts to recycle discredited arguments.

U.S. District Judge Catherine C. Eagles largely denied the satellite TV provider’s bid to exclude thousands of class members owed a portion of the judgment, a sum she trebled from $20.5 million in May after a jury held the company liable under the Telephone Consumer Protection Act for the placement of some 51,000 unsolicited calls.

Dish argued in December that most of the 11,400-odd class members discerned by experts from call records were in fact unidentifiable as they had different names, misspellings or contradictory addresses. The company urged the court to reject efforts to force it to disburse the award to all but a few hundred or so people, arguing that it didn’t want to send checks to the wrong people.

But Judge Eagles said she struggled, pouring over the thousands of new pages that the company and its call records expert had submitted, to tell when the company was using the approved data set to support its conclusions and when it was using three new data sets compiled years after discovery closed. Judge Eagles said that there were no significant issues identifying members using the same records that established the TCPA violations, names without contradiction and corroborated by other evidence.

“The court takes seriously the need to correctly and efficiently identify class members not fully identified in the … [call] records and to locate class members who may have moved,” Judge Eagles wrote. “To that end, the court has carefully reviewed [the] evidence, sifted through Dish’s haystacks and found a couple of needles.”

Specifically, Judge Eagles ordered class counsel’s call expert to remove 191 people both parties now agree should come off the list of class members, remove anyone who can only be identified by first or last name and to remove one other name.

But as for Dish’s claim that there are “widespread” problems with the list, Judge Eagles said she could not determine when the company’s expert’s opinions are based on existing data or new records that tally thousands of pages. The company has not compiled a “comprehensive and clear breakdown” citing specific instances in which it was challenging the existing data — a requirement set forth in a July order — and Judge Eagles said she is “not required to do the work that Dish elected not to do.”

“In making future decisions about an efficient and fair claims administration process, the court will take into account Dish’s lack of respect for the terms of the court’s July 2017 order, its continuing repetition of long-rejected arguments and its attempt to obfuscate the issues, confuse the record and shift arguments and facts,” the judge said.

“Resolving uncertainties as to the remaining 7,000 or so class members need not consume an irrational amount of resources by the court, the parties and the claims administrator in order to make reasonable decisions,” she said.

In January, a jury found that Dish’s authorized dealer, Satellite Systems Network, made 51,119 illegal telemarketing calls to consumers, many on the National Do Not Call Registry, between 2010 and 2011.

Consumers were awarded approximately $20.5 million, a figure later increased after Judge Eagles found that Dish turned a willful blind eye to the violations.

Dish fought the judgment, arguing that its due process rights were violated and that trebling damages was unwarranted and excessive. The company argued that the claims should have been precluded by a similar case brought by the federal government and several states, which resulted in a $280 million judgment in June. However, in October, the court rejected those arguments, finding that Dish repeatedly asserted that the claims in that case were different, thus waiving the right to argue that the claims were duplicative.

Following the jury verdict, the court asked class counsel to devise a means for identifying class members, a process the company is now challenging.

In December, Dish argued that the differences weren’t trivial, as consumers receiving the wrong person’s check, or a check made with a different spelling, may not be able to cash it.

The company argued that the judgment list includes 9,592 telephone numbers — amounting to $33.1 million of the award — for which the data sources list people with different first names by the same last name “presumed by plaintiff to be members of the same household.”

The company said that the same data sources also list entirely different names for 8,274 telephone numbers, amounting to some $28.3 million. An additional 991 telephone numbers belonging to women — an award of $3,418,800 — and list the same first name but a different last name, although there was no evidence of a marriage or divorce.

Counsel for the parties did not immediately return requests for comment on Friday.

The consumers are represented by Brian A. Glasser and John W. Barrett of Bailey & Glasser LLP, J. Matthew Norris of Norris Law Firm PLLC, Matthew P. McCue of The Law Office of Matthew P. McCue, and Edward A. Broderick and Anthony Paronich of Broderick & Paronich PC.

Dish is represented by Peter A. Bicks, Elyse D. Echtman and John L. Ewald of Orrick Herrington & Sutcliffe LLP, and Richard J. Keshian of Kilpatrick Townsend & Stockton LLP.

The case is Krakauer v. Dish Network LLC, case number 1:14-cv-00333, in the U.S. District Court for the Middle District of North Carolina.

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