A $61 million judgment in a Telephone Consumer Protection Act (TCPA) class action will stand after a federal court judge denied the defendant’s motion to reduce or set aside the trebled damages award.

Thomas Krakauer filed suit against Dish Network, alleging that he received dozens of calls from Satellite Systems Network (SSN) on behalf of Dish, despite the fact that his number was registered on the National Do Not Call Registry, and even after he complained to Dish about the calls and the company said it had placed him on its internal do-not-call list.

A jury sided with Krakauer in January, finding that SSN acted as Dish’s agent when it made the calls at issue and violated the TCPA, awarding $400 for each of the 51,119 calls at issue for a total of approximately $20.47 million. After the verdict, the parties submitted arguments on willfulness. U.S. District Court Judge Catherine C. Eagles had little trouble finding that Dish willfully violated the statute and trebled the damage award, entering judgment in the amount of $61 million.

Dish filed a motion to set aside the verdict based on res judicata, pointing to a different judgment in Illinois federal court in an action brought by the Federal Trade Commission, the Department of Justice, and four state attorneys general. In that case, the government entities charged Dish with violations of the TCPA, the Telemarketing Sales Rule, and state law for assisting and facilitating telemarketers when it knew (or consciously avoided knowing) that the telemarketers were engaged in violations of the law.

In June, the Illinois federal court entered a record-setting $280 million judgment against Dish that actually reflected a deduction from the statutorily available $2.1 billion award sought by the plaintiffs.

Dish argued that the Krakauer court should apply res judicata to two categories of claims: those based on 10,208 calls that also supported one of the counts in the Illinois action, and another claim based on 12,315 calls that were not in the Illinois action but that Dish said arose from the same course of conduct.

Judge Eagles was not persuaded, taking issue with the fact that Dish was only raising the issue of res judicata after years of litigation and a trial. “Until July 19, 2017, Dish never informed the court that it believed any of the claims in the present action were the same as claims in the Illinois action or inextricably tied to them,” she wrote. “Rather, Dish indicated its view that the Illinois action was a totally different case and that the results would not bind Dish, much less bar the plaintiffs from recovering damages in this case.”

The court listed multiple instances of representations made by Dish throughout the years of litigation, such as that it was not bound by any of the conclusions in the Illinois action, that the plaintiffs in the Krakauer case were not precluded by the government’s action, and that collateral estoppel did not apply to affirmative defenses it raised because the Illinois case “involve[d] a different statue, different issues, and different plaintiffs.”

“In sum, Dish consistently took the position that the issues in the Illinois action were different, never hinted that the Illinois action would support application of res judicata to this case, never conceded that an adverse decision in the Illinois action would estop or preclude Dish from litigating the same issues in this case, and agreed with the plaintiffs’ position that a decision in the Illinois action would not preclude the class from litigating the same issues in this case,” the court wrote.

Further—despite knowing very early in the Krakauer lawsuit that some of the same phone calls were involved in both cases—Dish never moved to stay or dismiss the suit, made no effort to transfer the case in whole or in part to Illinois, and did not seek to exclude the allegedly duplicative claims from the class definition, saying “nothing to the court for over three years to indicate that it objected to the prosecution of dual proceedings [or] that the proceedings involved duplicate claims.”

For all of these reasons, Dish waived any res judicata arguments and acquiesced in the filing of two separate lawsuits, Judge Eagles said, and failed to demonstrate that it was entitled to the benefit of the res judicata doctrine.

In the alternative, Dish asked the court to remit or reduce the treble damages award as excessive and duplicative in violation of due process. Again, the court was unmoved by the defendant’s argument.

“The treble damages here reflect the reprehensibility of a telemarketer’s conduct in repeatedly invading the privacy of thousands of consumers on the Registry when that telemarketer has a long history of ignoring its responsibilities under federal law, repeatedly broke its promise to numerous state attorneys general that it would monitor and enforce compliance with the telemarketing laws, and willfully violated the TCPA thousands of times,” the court wrote. “The treble damages are not ‘grossly excessive,’ but necessary for deterrence in light of Dish’s actions.”

Dish incorrectly characterized the damages award as unlawful punishment for past problems when the true purpose was to deter and give appropriate weight to the specific violations at issue in the Krakauer case, the court added.

“[T]he treble damages awarded in this case remain appropriate and indeed necessary to give due weight to the scope of the violations found in this case,” Judge Eagles wrote. “It is not ‘grossly excessive’ to require Dish to pay treble damages for the more than 50,000 willful violations it committed, given the nature of the privacy interests repeatedly invaded and Dish’s continuing disregard for those interests, the extent of the violations, and the need to advance reasonable governmental interests in deterring future violations.”

As for the damages award being duplicative, the court found “minimal overlap” between the claims in the Illinois action and the Krakauer case. In addition, the damages award in the government’s case was based on liquidated damages, while the trebled damages in the case at hand were intended to be a deterrent to future misconduct.

“It would be a bit much to twice reduce Dish’s obligation to pay TCPA damages because it has been found to have violated many other laws millions of times,” the court concluded.

To read the opinion and order in Krakauer v. Dish Network LLC, click here.

Why it matters: The opinion is only the latest blow for Dish Network, which has had a rough few months between the $280 million verdict in the government’s case and Judge Eagles’ judgment of $61 million in the Krakauer dispute. The lesson for other companies? Ensure TCPA compliance, particularly on the part of your vendors hired to make telemarketing calls, or face significant penalties.