Dish Can’t Exclude Thousands of Class Members From $61M Judgement

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In a Dish Network telemarketing class action lawsuit, a federal judge has entered judgment allowing thousands of Class Members to benefit from a $61 million damage award.

U.S. District Judge Catherine C. Eagles largely granted plaintiff Thomas Krakauer’s motion to enter judgment as to 11,471 reliably discernible Class Members.

The judge withheld judgment as to persons who could be identified by only their first or last names, and as to a single Class Member whose correct last name couldn’t be ascertained.

Judge Eagles approved the method used by plaintiff’s expert Anya Verkhovskaya to reliably determine Class Members and their addresses. The determination was based on the records of Dish Network’s telemarketing agent SSN and those of Five9, the computerized dialing service SSN used to make the calls at issue.

Verkhovskaya identified 191 individuals who she recommended should be removed from the judgment list, in response to objections by Dish.

Dish Network’s opposition to the motion for entry of judgment fell flat with Judge Eagles, who characterized the company’s arguments as a poorly supported effort to shrink the settlement class.

Dish Network’s expert witness claims that over 96 percent of the Class Members subject to Krakauer’s motion have a name inconsistency, leaving only 221 Class Members whose entitlement to judgment are undisputed.

Judge Eagles noted that Dish Network was apparently relying on new datasets that are not in the evidentiary record and that fall outside the scope of the court’s July 2017 order saying judgment would be entered based on “existing data.” The judge noted that Dish Network’s thousands of pages of exhibits made it difficult to determine which data was existing data and which was new.

The judge noted disapprovingly Dish Network’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.”

Evidence at trial showed that from 2010 to 2011, Dish Network committed thousands of violations of the Telephone Consumer Protection Act. Among other restrictions, the TCPA forbids telemarketers from calling persons whose numbers are listed on the National Do Not Call Registry.

Companies that violate the TCPA can face substantial penalties. The TCPA allows persons who received the noncompliant phone call to bring a civil TCPA lawsuit seeking as much as $1,500 in statutory damages for each knowing or willful violation.

The jury found that through its telemarketing contractor, Dish Network ordered the placement of more than 51,000 telemarketing calls to numbers that were listed on the National Do Not Call Registry, affecting around 18,000 Class Members.

Following trial, a jury issued a judgment last January putting Dish Network on the hook for a $20.5 million damage award. Judge Eagles later trebled that award to $61 million on a finding that Dish Network’s TCPA violations were made willfully.

The consumers are represented by John W. Barrett and Brian A. Glasser 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 Dish Network Do Not Call Registry Class Action Lawsuit is Krakauer v. Dish Network LLC, Case No. 1:14-cv-00333, in the U.S. District Court for the Middle District of North Carolina.

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