October 22, 2019

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Dish Network Seeks New Trial After $20 Million TCPA Jury Verdict

Dish Network LLC (“Dish”) recently filed a motion for a new trial after a jury found Dish liable for more than 51,000 calls to 18,000 class members, resulting in an award of $20.5 million.

In Krakauer v. Dish Network LLC, No. 14-0333 (M.D.N.C.), the plaintiff alleged that he had received telemarketing sales calls from an authorized dealer of Dish despite registering his number on the National Do Not Call Registry. He further alleged that these calls continued even after his telephone number was placed on both Dish’s and its authorized dealer’s internal Do Not Call Lists. Before trial, the court certified two classes: the first consisting of persons who received telemarketing calls despite having their telephone numbers on the National Do No Call Registry, and the second consisting of persons who received telemarketing calls despite having their telephone numbers on the internal Do Not Call Lists of Dish or its authorized dealer.

After a week-long trial, the jury was instructed on three issues that are relevant here. First, whether the authorized dealer was acting as Dish’s agent. Second, whether class members received at least two telemarketing calls in any 12-month period by or on behalf of Dish while their telephone numbers were listed on the National Do Not Call Registry. And third, what amount, up to $500, the jury would award for each call made in violation of the TCPA. On those issues the jury found that (1) the authorized dealer acted as Dish Network’s agent; (2) the plaintiff and all class members received at least two telemarketing calls from the authorized dealer on behalf of Dish; and (3) damages for each TCPA call should be $400. With over 51,000 calls at issue, the jury award amounted to over $20 million.

Dish moved for a new trial on five grounds: (1) the court made erroneous and prejudicial evidentiary rulings; (2) the court erred in refusing to include a scope of authority question on the verdict sheet; (3) the court made erroneous and prejudicial rulings on the admission of expert testimony; (4) plaintiff’s counsel made prejudicial references to documents not in evidence at closing arguments; and (5) the excessive damages award violated Dish’s due process rights.

First, Dish argued that the court erred in admitting prejudicial evidence of the authorized dealer’s prior bad acts and precluding certain evidence of compliance efforts and the day-to-day relationship between Dish and the authorized dealer. Additionally, Dish argued that plaintiff’s counsel improperly used evidence of government enforcement actions, actions against retailers outside of the authorized dealer in the present case, and a credit check performed on the plaintiff without his knowledge.

Second, Dish argued that the court “misled and confused the jury on the scope of authority issue” by omitting from the verdict sheet the question of whether the authorized dealer’s actions exceeded the scope of its authority. Dish argued that this question “is not subsumed within the threshold question of whether an agency relationship exists; it is an entirely separate inquiry that becomes relevant only after a threshold agency determination is made.”

Third, Dish argued that the court erred in allowing the plaintiff’s expert to offer previously undisclosed opinions, to offer previously undisclosed bases for opinions, and to correct purportedly mistaken deposition testimony for the first time at trial. In addition, Dish argued that the court erred in barring Dish’s expert from opining on the difficulty of ascertaining whether a cellphone is used for residential or business purposes[,]” which was an essential element of the plaintiff’s claim.

Fourth, Dish argued that it should be granted a new trial because plaintiff’s counsel improperly influenced the jury by reading from a declaration that was hearsay and had not been admitted into evidence. The declaration stated that, for a period of time, all calls made through a certain platform were made for the purpose of marketing Dish products and the authorized dealer only made telemarketing calls for Dish’s products.

Fifth, Dish argued that it should be granted a new trial on the issue of damages because the court erred in permitting the plaintiff “to aggregate the claims for 51,119 distinct telephone calls and apply a uniform per-call damages award to that number,” which deprived it of its right to present individual defenses to each of the claims against it. In addition, Dish argued that the damages award was excessive as the evidence presented was insufficient to support an award of $400 per violation.

Plaintiff’s response to Dish’s motion for a new trial is due on March 28th. We will continue to monitor the case. Regardless of the outcome, however, Krakauer v. Dish Network LLC is an important reminder about the need to ensure that vendors placing calls or text messages develop and implement compliance policies.

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About this Author

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney
Partner

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...

215-988-2604
John Yi, Drinker Biddle Law Firm, Philadelphia, Communications and Securities Law Attorney
Associate

John S. Yi represents clients in civil and criminal litigations in federal court, as well as investigations and enforcement actions by the United States Department of Justice, the Securities and Exchange Commission, the Federal Trade Commission and other regulatory bodies. John has assisted clients with internal investigations and compliance strategies. John also defends a number of class action cases with a wide variety of claims including issues arising under the Telephone Consumer Protection Act (TCPA) and Fair Credit Reporting Act (FCRA). John is a consistent contributor to the firm’s TCPA blog.

John also is a contributor to the firm's SEC Law Perspectives Blog, which provides reports, discussions, and analyses on noteworthy trends in enforcement and regulatory activity of the U.S. Securities and Exchange Commission (SEC) and other agencies, such as the U.S. Commodity Futures Trading Commission (CFTC).

John maintains an active pro bono practice and has served as an advocate for students with special needs in Philadelphia in collaboration with the Education Law Center. While in law school, John was a judicial intern for the United States District Court for the District of New Jersey, Camden.

215-988-2553