Dish Again Loses Bid To Trim TCPA Class Owed $61M

Law360 (March 15, 2018, 7:53 PM EDT) — Dish Network cannot get reconsideration of its bid to trim a class of thousands of consumers in a Telephone Consumer Protection Act class who are due a $61 million judgment, with a North Carolina federal judge saying Wednesday the challenge to the class members came too late.

U.S. District Judge Catherine C. Eagles said Dish Network LLC had not shown that existing data of class members contained inaccuracies that justified the removal of 3,309 consumers from the list of roughly 11,000 class members. Any challenge to the existing data should have been presented at an earlier stage in the litigation, and by only presenting it now, the company appeared to be attempting to get a “second bite at the apple,” the court said.

“Here, Dish has not provided any good reason why the court should reconsider its decision,” the order said. “In its motion for reconsideration and supporting brief, Dish says it is submitting ‘the same evidence that it previously submitted,’ but it does not direct the court’s attention to any place in the record where the court could confirm that assertion.”

In January, Judge Eagles largely denied the satellite TV provider’s bid to exclude most of the 11,400 class members owed a portion of the $61 million 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.

Judge Eagles was critical of Dish in that order, calling out the company for a “lack of respect” of previous court orders. It was a struggle to sift through the supporting documents provided by Dish, Eagles said, as she could not determine when the company’s expert’s opinions were based on existing data or new records that tallied thousands of pages.

But Dish was undeterred, moving for reconsideration in February. The company asserted that the existing data shows that there are now 3,309 consumer names on the judgment list that should be put through a claims process. Dish claimed there are contradictions in first and last names, in the data sets and the plaintiff claims submissions, and because at least nine dead individuals are listed as class members, according to its motion.

On Thursday, Judge Eagles was not sympathetic to Dish’s renewed arguments, calling out the company for what she described as continued efforts to “shift tactics after losing” in an attempt to “string out the litigation.” She was critical of the company’s choice to only challenge the composition of the judgment list at this late stage, and also said the company should have made more of an effort to highlight the evidence that supported its claims.

Counsel for the consumers, Brian Glasser, told Law360 via email Thursday that he and his team are pleased with the order, and want to see an end to the litigation.

“We are disappointed that Dish appears to have no interest in efficiently moving this case to closure and wants to fight, and refight, about the smallest details,” he said. “We obviously want to get money to the class members as soon as we can and are working diligently toward that end.”

Dish’s challenge to the identities of the class members follows the January 2017 verdict in which 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 the company’s 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 2017. In October, however, 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.

A representative for Dish declined to comment.

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 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.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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