Judge Tosses ‘Frivolous’ Dish Network False Advertising Class Action

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A Fifth Circuit judge dismissed a proposed consumer class action lawsuit filed against Dish Network Service, finding that the plaintiffs’ claims were “frivolous,” lacked merit and were not supported by any evidence.

Larry Polsky, a licensed attorney and lead plaintiff, brought forth the proposed class action complaint against Dish, asserting that the internet and cable provider’s Hopper feature, which would allow him to skip commercials under certain circumstances and view recorded television content in multiple locations, does not cover every channel or program.

Polsky’s initial case filed in Texas state court in March 2014 was dismissed and Polsky proceeded with the appeals process to the Fifth Circuit.

However, the judge upheld the lower court’s decision that the advertisements for the Hopper service included information about ad-skipping limitations and restrictions. Polsky himself admitted that he failed to ask about any possible feature controls and could not provide any indication of deceptive advertising made by Dish.

Still, Polsky claimed that Dish’s advertisements promoting the Hopper ad-skipping services were misleading and he was duped into thinking that all channels were included in the feature. Although at first Polsky conceded that he received the service for which he paid, he argued that Dish somehow harmed him by failing to inform that it did not actually monitor off-peak usage – a fact he learned during discovery.

Polsky further alleged that had he known Dish did not monitor off-peak usage, he would have opted for a lower tier service and used the feature and internet more during off-peak times, saving himself money.

Additionally, Polsky claimed that he was led to believe that he could use the Hopper feature to skip commercials in a wide variety of television shows when in fact the feature was limited to certain shows from only a handful of TV networks and that the ad-skipping feature was only available the day after the program originally aired.

U.S. District Judge Andrew S. Hanen rejected Polsky’s appeal claims and dismissed the proposed class action lawsuit stating that, “the record unequivocally shows that Dish plainly disclosed the Hopper’s limitations, and Polsky has presented no competent summary judgment evidence of any intent to deceive consumers.”

“Polsky’s claims are contrary to common sense and good faith, are not supported by record evidence and are frivolous,” Judge Hanen continued.

“This is perhaps the most unusual facet of this case (and perhaps any other case that this court has encountered). … Polsky sues because Dish did not tell him he could buy a lesser package (both in terms of GBs and costs) and just use or bootleg the off-prime usage because Dish does not monitor it,” the Judge concluded.

Polsky is representing himself in the case.

The Dish Network False Advertising Class Action Lawsuit is Larry Mark Polsky, et al. v. Dish Network Service LLC, Case No. 15-41101, in the U.S. Court of Appeals for the Fifth Circuit.