In the past several years, Dish Network, LLC has found itself a target of several class actions for violations of the Telephone Consumer Protection Act. Earlier this year, a jury found Dish Network liable for TCPA violations arising from telemarketing calls. The North Carolina District Court trebled the jury verdict, resulting in a $61 million damages award. Also, earlier this year, Dish Network was found liable for TCPA violations after a jury trial in an Illinois federal court that rendered a $280 million damages award against the direct-broadcast satellite service provider.
In its post-trial motions filed in the North Carolina District Court, Dish Network argued that the $61 million award should be set aside because the Illinois class action had a preclusive effect on North Carolina TCPA claims. The Court rejected this argument, finding that Dish Network waived its right to assert the defense of res judicata because of its “prolonged silence, its representations to the Court and the plaintiffs [that two actions had no preclusive effect on each other], and failure to object to the dual prosecution of this case and the Illinois Action.”
Dish Network also argued that, if not set aside, the $61 million verdict should at least be reduced. The Court disagreed, concluding that the treble damages did not improperly punish Dish Network based on its “past compliance issues” with telemarketing laws. Rather, the Court gave weight to the specific violations at issue while also considering the evidence of “Dish’s historic and general non-compliance with telemarketing laws.” The Court also rejected as “inaccurate and nonsensical” Dish Network’s argument that no deterrence was necessary because the evidence in support of deterrence went back more than a decade. The Court emphasized that the need for deterrence was greater precisely because non-compliance with the TCPA continued over the course of many years.
Simultaneous prosecution in several states of class actions based on the same facts is not a rare occurrence. A global strategy for handling such actions is vital to reducing the risk of excessive and duplicative damages awards.
The Court’s opinion can be found here.