A North Carolina federal judge on Monday said Dish Network LLC “repeatedly looked the other way” when one of its marketers was making illegal telemarketing calls, trebling the $20.5 million damages awarded by a jury in the Telephone Consumer Protection Act class action trial.
In a 30-page memorandum opinion and order, U.S. District Judge Catherine C. Eagles held that Dish Network had willfully violated the TCPA through its non-existent oversight of marketer Satellite Systems Network, and tripled the statutory damages awarded to named plaintiff Thomas Krakauer and the class of call recipients.
The North Carolina jury in January had awarded damages of $400 for each of the 51,119 calls identified during the class period — a total of roughly $20.47 million — which Judge Eagles tripled to $1,200 per call, or roughly $61.3 million.
Judge Eagles wrote that Dish knew SSN had a history of TCPA violations and was making telemarketing calls without checking if the recipients were on the National Do-Not-Call Registry, and still allowed the company to make calls on its behalf.
“Dish did nothing to monitor, much less enforce, SSN’s compliance with telemarketing laws,” Judge Eagles wrote. “When it learned of SSN’s noncompliance, Dish repeatedly looked the other way.”
Judge Eagles noted that Dish’s contract with SSN gave it “virtually unlimited rights” to supervise the latter’s telemarketing, and “on paper” was committed to monitoring its marketer’s compliance with telemarketing laws.
In reality, however, Dish ignored numerous complaints it received about SSN between 2004 and 2010 and was aware of three lawsuits against the telemarketer that had resulted in monetary damages, but made no effort to determine if SSN was complying with the law, according to the judge’s opinion.
The judge also found that SSN, by repeatedly calling Krakauer even though he was on the Do-Not-Call registry and a Dish-run do-not-call list, had willfully and knowingly violated the TCPA — and that its liability could be placed on Dish, as SSN was acting as Dish’s agent when it made the calls.
“Here, the jury explicitly found that SSN was acting within the scope of its authority from Dish when it made the calls at issue,” Judge Eagles wrote. “The court agrees with that factual finding. … Applying the traditional rule, Dish is responsible for any willful or knowing violation of the telemarketing laws by SSN.”
Brian Glasser of Bailey & Glasser, representing Krakauer and the class, told Law360 on Monday that he is pleased the class members will be getting larger awards, and noted the detail of the opinion, saying it presents the “evidence of willfulness with powerful specificity.”
“Cases like this take years of work, thousands and thousands of attorney hours, and a deep financial commitment from plaintiffs’ counsel, so it is always a gratifying moment when you prove your case to both the jury and the court.”
Dish released a statement on Monday saying the company respectfully disagrees with the opinion and is weighing its legal options.
“Regardless, Dish has long taken its compliance with telemarketing laws seriously, [and] has and will continue to maintain rigorous telemarketing compliance policies and procedures,” the statement added.
Krakauer filed the suit in 2014, alleging he was called repeatedly by authorized Dish dealer Satellite Systems Network between 2009 and 2011, despite his name’s presence on the Do-Not-Call registry. Judge Eagles certified two largely similar classes that both consisted of persons on the DNC registry who received telemarketing calls from Dish or SSN between 2010 and 2011.
The case went to trial in January and ran for five days, after which the jury returned with a verdict for the plaintiff class on Jan. 19.
Last week, Judge Eagles rejected Dish’s motion for a new trial.
Krakauer is represented by Brian Glasser, Matthew McCue, Matthew Norris, Ryan Donovan, John Roddy and John Barrett of Bailey & Glasser LLP and Edward A. Broderick and Anthony Paronich of Broderick & Paronich.
Dish is represented Elyse Echtman, John Ewald and Peter Bicks of Orrick Herrington & Sutcliffe LLP, Eric Zalud of Benesch Friedlander Coplan & Aronoff, and Richard Keshian of Kilpatrick Townsend & Stockton LLP.
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.
First appeared in Law360.