United States District Court, M.D. North Carolina
THOMAS H. KRAKAUER, Plaintiff,
DISH NETWORK, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
defendant, Dish Network, LLC, willfully violated the
Telephone Consumer Protection Act when its agent made 51, 119
telephone solicitations to 18, 066 residential phone numbers
on the National Do Not Call Registry. Each class member is
entitled to damages of $1, 200 for each violative
solicitation call. Having considered proposals from the
parties, the Court by this order outlines a process for entry
of judgment in favor of those class members who are clearly
identified and a general claims administration process for
all other class members. The Court directs the parties to
confer and submit motions, forms, and proposed additional
procedures that follow the Court's outline and schedule.
lawsuit was filed in 2014. The plaintiff, Dr. Thomas
Krakauer, asserted that Dish's agent, Satellite Systems
Network, made repeated telephone solicitations to phone
numbers, including his own, that were listed on the National
Do Not Call Registry. Doc.
After discovery, the Court granted the plaintiffs' motion
for class certification, and, as is relevant here, certified
the following class:
All persons throughout the United States whose telephone
numbers were listed on the federal Do Not Call registry for
at least 30 days, but who received telemarketing calls from
Satellite Systems Network, to promote the sale of Dish
satellite television subscriptions from May 1, 2010 to August
Doc. 47 at 1; see Doc. 111 at 4.
time of class certification, all the telephone numbers had
been identified using business records maintained by Five9,
the software company that provided the agent's dialing
software. See Doc. 137 at 19-136; Doc. 137-1; Doc.
137-2 at 1-34. The Five9 records included names and addresses
associated with many of the phone numbers, but not all. When
those records were incomplete, the plaintiffs' expert
located names and addresses associated with the phone numbers
using a LexisNexis commercial database. See Doc. 103
at 129:24-131:6. After incorporating this data, about 4, 000
numbers still had incomplete name and address information.
See Doc. 133-1 at ¶ 8.
plaintiffs notified class members of the lawsuit by sending
postcards to these names and addresses in February 2016. Doc.
206-1 at ¶ 4; see Doc. 153 at 2. The plaintiffs
successfully delivered postcards to names and addresses
associated with about 75 percent of the phone numbers in the
class. Doc. 206-1 at ¶¶ 11-12.
lead-up to trial, the parties stipulated to remove several
categories of phone numbers from the class. See
Docs. 264, 266, 271. This left 18, 066 class phone numbers;
the plaintiffs had delivered postcards to 13, 268 persons
associated with these phone numbers, leaving 4, 798 not
delivered. Doc. 331-1 at ¶¶ 6-7.
trial, the plaintiffs presented class-wide evidence that (1)
Dr. Krakauer and the 18, 066 class members each received at
least two telephone solicitations in any 12-month period, (2)
the numbers called were residential numbers, (3) the calls
were made on behalf of Dish, and (4) the calls were made when
the telephone numbers were on the Registry for over thirty
days. See Doc. 293 at 4. The jury answered all
issues in favor of the plaintiffs, finding that Dish's
agent “[made] and class members receive[d] at least two
telephone solicitations to a residential number in any
12-month period by or on behalf of Dish, when their telephone
numbers were listed on the National Do Not Call
Registry.” Doc. 292 at ¶ 2. The jury also
determined that statutory damages of $400 were appropriate
for each violative call. Id. at ¶ 3. The Court
thereafter trebled the damages because Dish's violations
were willful and knowing, increasing the award to $1, 200 per
call. Doc. 338; 47 U.S.C. § 227(c)(5).
the trial and at the Court's request, each party proposed
procedures for moving the case to final judgment and
responded to each other's proposals. See Docs.
329 to 331, 334 to 337. The Court heard oral argument on June
Overview of issues
plaintiffs contend that liability and aggregate damages were
established at trial, that no more proof is necessary, and
that judgment can be entered now against Dish in favor of the
class. Plaintiffs seek to mail checks to the class members
for whom they successfully delivered a class notice postcard
and to have a claims administrator identify the remaining
class members in a non-adversarial, practical process. Dish,
on the other hand, asserts that more proof is required before
any individual class members have established liability. Dish
suggests mailing claim forms to the class notice addresses
and then allowing the parties to litigate each
recipient's membership in the class in an adversarial
process with discovery, depositions, and jury trials.
disputes break down into three basic issues. The first is
whether the verdict established all issues of liability and
whether the Court should enter judgment in an aggregate
amount, at $1, 200 for each of the 51, 119 violations. The
second issue, which depends on the answer to the first issue,
is what claims process is appropriate. The third issue is
whether any unclaimed damages revert to Dish.
Liability and judgment
plaintiffs contend that the jury's verdict satisfied all
elements of the TCPA claims and ask the Court to enter
judgment against Dish and in favor of the class in the amount
of $61, 342, 800, based on a total liability of $1, 200 per
call multiplied by 51, 119 calls. See Doc. 331 at
contends that it is entitled to individual discovery and jury
trials on the issue of the identity of the subscriber or
recipient of each violative phone call. Doc. 330 at 14-15.
Dish phrases this argument in several different ways, but it
essentially claims that identity is an element of the cause
of action and of statutory standing. The plaintiffs, on the
other hand, contend that the jury by its verdict determined
that each class member received the calls, that the
plaintiffs' expert identified most of the class members
as part of the class certification process, and that only a
small number of phone numbers remain unlinked to a particular
extent Dish contends that statutory standing is an element
that individual class members must prove to show liability,
Dish is correct. However, the plaintiffs already proved the
statutory standing of each class member at trial.
standing is “best understood as not even standing at
all, ” CGM, LLC v. BellSouth Telecommc'ns,
Inc., 664 F.3d 46, 52 (4th Cir. 2011), but as an
“element of proof” for a claim. Sullivan v.
DB Invs., Inc., 667 F.3d 273, 307 (3d Cir. 2011) (en
banc) (statutory standing in antitrust context). In
considering whether an individual has statutory standing,
courts consider whether the individual “is a member of
the class given authority by a statute to bring suit.”
CGM, 664 F.3d at 52 (quotation omitted).
“Normally, where the statutory language provides a
clear answer, [the] analysis begins and ends with that
language.” Id. at 53 (quotation omitted).
class definition, the evidence, the jury instructions, and
the jury verdict establish that this element was proven at
trial. The standing provision at issue here, 47 U.S.C. §
227(c)(5), states that “[a] person who has
received” calls in violation of the § 227(c)
provisions may sue. By its plain language, the determinative
question for statutory standing is whether a call to a class
member was received. The jury answered
“Yes” to this question for all class members:
Did [Dish's agent] make and class members
receive at least two telephone solicitations to a
residential number in any 12-month period by or on behalf of
Dish, when their telephone numbers were listed on the
National Do Not Call Registry?
[ X ] YES as to Dr. Krakauer and all class members
Doc. 292 at ¶ 2 (emphasis added). The jury instructions
also repeatedly referred to receiving calls and stated that
“the plaintiff must prove . . . that he and the
class members each received at least two telephone
solicitations.” Doc. 293 at 4 (emphasis added); see
also Id. at 3, 8, 10-12.
Court told the jury, “a person whose residential number
is on the National Do Not Call Registry and who receives at
least two telephone calls within any 12-month period by or on
behalf of [Dish]” is entitled to damages. Id.
at 3. The jury found that the plaintiffs proved all of these
elements at trial. See Doc. 292. Dish is not
entitled to undermine the jury's verdict by second-chance
challenges to the fact that the calls were received.
standing is an element of the claim, but the jury determined
it in the plaintiffs' favor for every class
additional procedures are required to satisfy that
Identity of class members
similarly contends that due process entitles it to discovery
and a trial on whether the class member was the
“subscriber” to the phone number and whether the
phone number was residential. See Doc. 330 at 4-5,
14. Dish is correct that the jury did not pair phone numbers
with particular names or addresses, nor did the jury
determine the identity of the persons who received the
that does not mean that Dish is entitled to discovery from
thousands of individual class members and jury trials on the
identities of thousands of class members when a verdict has
already determined that Dish's agent made tens of
thousands of violative calls, each received by a class
Court has previously found that the class members were
ascertainable, Doc. 111 at 9-14, and that the business
records of Dish's agent-supplemented by the LexisNexis
database-identified most of them by name and address. See
Id. at 11; Doc. 153 at 2. Likewise, it has been
established that Dish violated the TCPA when its agent made
and class members received 51, 119 telephone calls to
residential numbers on the Registry, see Doc. 292 at
¶¶ 1-2, that each class member is entitled to $400
in statutory damages per call, id. at ¶ 3, and
that because Dish acted willfully, the damages should be
trebled. Doc. 338.
Dish violated the TCPA and the class members-those persons
whose telephone numbers were listed on the Registry-are
entitled to up to $1, 200 for each violative call. There may
be some questions about who is a class member, but that does
not create a right to full-blown discovery and a jury trial
on identity for each and every class member. Rule 23
contemplates that the court will make the decision about who
the class members are. See Fed. R. Civ. P.
23(c)(3)(B) (in a Rule 23(b)(3) class action, the judgment
must “specify or describe those to whom the Rule
23(c)(2) notice was directed, who have not requested
exclusion, and whom the court finds to be class
members.” (emphasis added)).
other class actions fully litigated through post-trial
proceedings, courts have not found that due process or any
other principle entitled defendants to a jury trial on
individual class members' identity. For example, in
Six Mexican Workers v. Arizona Citrus Growers, 641
F.Supp. 259, 261 (D. Ariz. 1986), after trial, the court
created a procedure using claim forms for the parties to
identify the unnamed migrant farmworkers who made up the
class. The court did not treat class members' identities
as an element. Instead, it indicated it would take
“reasonable measures” to check that class
members' identities were correct, and it held that
verifying class members' identities “needs to be
tailored to this particular situation.” Id. at
in Allapattah Services, Inc. v. Exxon Corp., 157
F.Supp.2d 1291 (S.D. Fla. 2001), aff'd, 333 F.3d
1248 (11th Cir. 2003), aff'd, 545 U.S. 546
(2005), the court used a claims administration process that
evaluated claims using a special master and a summary
judgment process. “The goal of the Claims
Administration Process [was] to determine whether a claimant
is the proper owner of the interest in the damage award for
the period of ownership asserted on the claimant's
respective proof of claim form.” Exxon, No.
91-0986-CIV, 2006 WL 1132371, at *3 (S.D. Fla. Apr. 7,
While the details of the process are not set forth in the
decision, there is nothing to indicate that the Court
authorized discovery pursuant to the Rules of Civil Procedure
or contemplated jury trials, even though the issues to be
determined in the claims process were significantly more
complicated than the simple question of class membership left
to resolve in this case. See infra pp. 12-13.
trial already established all of the elements necessary to
prove a violation- indeed, 51, 119 violations-Dish is not
entitled to discovery and trials on the identities of class
members. Whether a claimant is a class member is a question
that can be more appropriately, fairly, and efficiently
resolved through a claims administration process as
authorized by Rule 23.
Dish, the Court is interested in insuring that only class
members receive the damages awarded by the jury. The Court
intends to establish a fair claims administration process
that will weed out any unjustified claims by non-class
members. As discussed infra p. 14, the Court agrees
that Dish has some due process rights to a reasonable
opportunity to participate in the claims administration
process. In the circumstances of this case, the Court rejects
the plaintiffs' contention that Dish has no right at all
to participate in the process of identifying class members
and accurately distributing class funds. See Doc.
334 at 10-11. So long as Dish's ...