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.
nationwide class action brought pursuant to the Telephone
Consumer Protection Act, a jury found that the defendant,
Dish Network, LLC, was liable to the named plaintiff, Dr.
Thomas Krakauer, and several thousand class members for more
than 50, 000 telemarketing calls made on behalf of Dish to
phone numbers on the National Do Not Call Registry. The Court
determined that Dish willfully and knowingly violated the
TCPA and trebled the damages.
now seeks to set aside the verdict and dismiss this action
because, Dish contends, the judgment of the United States
District Court for the Central District of Illinois in
United States v. DISH Network, LLC, No. 3:09-3073
(C.D. Ill.), constitutes res judicata. The Court will deny
the motion for judgment as a matter of law because Dish
waived its right to assert res judicata in this case and has
failed to establish that it applies.
also renews its request for remittitur, asserting that the
treble damages awarded are excessive and duplicative under
the Due Process Clause in light of the Illinois Action.
Because the treble damages awarded are neither excessive nor
duplicative in any meaningful way, Dish is not entitled to
enacted the TCPA to curb abusive telemarketing practices that
threatened consumer privacy. See 47 U.S.C. §
227 (2012); Mims v. Arrow Fin. Servs., LLC, 565 U.S.
368, 372 (2012). Among other things, the TCPA prohibits
telemarketers from repeatedly calling people who list their
phone numbers on the National Do Not Call Registry. See
Hannabury v. Hilton Grand Vacations Co., LLC, 174
F.Supp.3d 768, 771 (W.D.N.Y. 2016). The TCPA creates a
private right of action for injunctive and monetary relief
for any “person who has received more than one
telephone call within any 12-month period by or on behalf of
the same entity in violation of the [TCPA]
regulations.” 47 U.S.C. § 227(c)(5); see
Hannabury, 174 F.Supp.3d at 771-72. The TCPA also
authorizes state Attorneys General to bring actions against
persons “engaging in a pattern or practice of”
TCPA violations. § 227(g). Section 227(g) also
authorizes injunctive relief and damages. Under both §
227(c) and § 227(g), the court may treble damages if the
defendant willfully or knowingly violated the TCPA. §
The Illinois Action
March 2009, the United States of America, together with the
States of Ohio, North Carolina, Illinois, and California,
filed a lawsuit against Dish in the United States District
Court for the Central District of Illinois. Doc. 347-3. Count
V of the complaint, as amended, alleged that Dish violated
the TCPA by engaging in a pattern or practice of initiating
telephone solicitations to residential subscribers who reside
in the plaintiff States and whose telephone numbers were on
the Registry. Doc. 347-1 at 358. Pursuant to § 227(g),
the plaintiff States sought injunctive relief, monetary
relief, statutory penalties, and attorney's fees. Doc.
347-3 at ¶¶ 66-69, at pp. 24-25. There was one
other TCPA count, Doc. 347-1 at 3-4, 367, along with ten
other counts brought pursuant to the Federal Trade Commission
Act, the Telemarketing Act, and analogous state
December 2014, the Illinois Court entered partial summary
judgment. United States v. Dish Network, LLC, 75
F.Supp.3d 942 (C.D. Ill. 2014), vacated in part on other
grounds on reconsideration, 80 F.Supp.3d 917 (C.D. Ill.
2015). That decision did not fully resolve any claims.
Id. The Illinois Court heard the remaining issues in
a bench trial held in February, October, and November of
2016. See Doc. 347-1 at 1-2.
5, 2017, the Illinois Court entered judgment in favor of the
plaintiffs and against Dish on eleven counts, including the
TCPA claim in Count V. Doc. 347-1 at 5-6. The Illinois Court
entered a permanent injunction against Dish to protect
against future illegal calls. Id. It also awarded
civil penalties and statutory damages in favor of the
plaintiffs and against Dish in the total sum of $280, 000,
000. Id. Of that sum, $84, 000, 000 was awarded for
the two TCPA violations. Id. at 452.
Count V, the Illinois Court found that Dish engaged in a
pattern or practice of initiating telephone solicitations to
residential subscribers who reside in North Carolina,
Illinois, Ohio and California and whose telephone numbers
were on the Registry. Specifically, Dish was found liable to
the plaintiff States for 2, 651, 957 calls made in violation
of the TCPA. Doc. 347-1 at 367.
Illinois Court awarded damages significantly lower than the
calculated statutory damages of $500 per call. Calculated
damages for the two TCPA claims were more than $8.1 billion.
Doc. 347-1 at 444-45. The Illinois Court reduced the
statutory damages after considering damages awarded for other
counts and also because standing alone $8.1 billion
“would be excessive and in violation of due
process.” Doc. 347-1 at 375-76. The Illinois Court also
decided not to determine whether the TCPA violations were
knowing and willful so as to warrant treble damages, because
the calculated damages were substantial. Id. at
The Present Action
2014, Dr. Krakauer, the plaintiff and class representative,
sued Dish pursuant to § 227(c) alleging that he and
others on the Registry received more than one telephone call
within a 12-month period in violation of the TCPA and that
the calls were made on behalf of Dish. Doc. 1 at 10. Dr.
Krakauer sought injunctive and monetary relief on behalf of
himself and the class. On September 9, 2015, the Court
certified the following class:
(a) all persons whose telephone numbers were on the
[Registry] for at least 30 days, but who received
telemarketing calls from [Satellite Service Network
(“SSN”)] to promote DISH between May 1, 2010, and
August 1, 2011 … .
Doc. 111 at 4, 34.
judgment was denied in substantial part, Docs. 113, 118 and
169, and the matter was tried to the jury in January 2017.
See Minute Entry 01/10/2017. The Court heard the
evidence about willfulness at the same time. See
Doc. 222 at 6. After a six-day trial, the jury returned a
verdict finding that through its agent, SSN, Dish made over
51, 000 telephone solicitations to a class of plaintiffs on
the Registry, in violation of the TCPA. The jury awarded
$400.00 per call. Doc. 292 at 2. The Court, after finding the
violations were willful, trebled the damages to deter Dish
from future violations and to give appropriate weight to the
scope of the violations. See Doc. 338 at 28.
Judgment has not been entered, pending a claims process. Doc.
351 at 26-28; Doc. 360; Doc. 361.
the doctrine of res judicata, or claim preclusion, a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could
have been raised in that action.” Pueschel v.
United States, 369 F.3d 345, 354 (4th Cir.
2004). Dish asks the Court to apply res judicata
to two categories of claims in this case: (1) claims based on
10, 208 calls that also supported the Count V TCPA claim in
the Illinois Action, and (2) claims based on 12, 315 calls
that were not in the Illinois Action, but that Dish alleges
“aris[e] from the same course of conduct.” Doc.
347 at 7-8. Dr. Krakauer contends that Dish waived its right
to assert res judicata and that in any event the requirements
for res judicata are not met.
The Parties' Prior Positions on the Illinois
Krakauer and Dish discussed the Illinois Action with the
Court throughout the course of this litigation. 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. See,
e.g., Doc. 204 at 37-38, 105-08, 115; Doc. 231 at 123,
127-30. Dish never moved to dismiss, asked for a stay, sought
a transfer, or otherwise informed the Court that the Illinois
Action was duplicative of or identical to the class
members' claims. 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. See, e.g.,
Doc. 82 at 6; Doc. 172 at 33-35; Doc. 231 at 129-30; Doc. 343
at 4-5. These representations include the following:
â¢ In May 2015, Dr. Krakauer asserted in summary judgment
briefing that Dish should be collaterally estopped from
asserting various affirmative defenses based on the Illinois
Court's December 2014 summary judgment decision. Doc. 72
at 5. Dish took the position that collateral estoppel did not
apply because, among other things, the Illinois Action
“involve[d] a different statute, different issues, and
different plaintiffs.” Doc. 82 at 6.
â¢ At a later pretrial conference, the Court and Dr.
Krakauer's counsel mentioned in passing that the Illinois
Action could not bind Dr. Krakauer and the class members
because they were not parties to it, see Doc. 172 at
14-15; Dish's counsel was present, had an opportunity to
address the issue, and did not contradict these views.
Id. Rather, counsel for Dish essentially agreed that
the plaintiffs would not be precluded: after indicating that
there had been discussions with the plaintiffs' counsel
about a stay while the Illinois Action was decided,
Dish's counsel commented that “it always strikes me
as a bit unfair that they get multiple bites at the apple and
Dish is potentially bound by what's happened.” Doc.
172 at 33-34.
â¢ At that same conference, Dish contended that it had
affirmative defenses in this case, that it had not raised
those defenses in the Illinois Action, and that issue
preclusion did not apply to prevent those defenses. Doc. 172
â¢ In another pretrial conference, the Court again asked the
parties how the Illinois Action might affect this case and
whether the parties were “willing to be bound by some
of the conclusions in those proceedings.” See
Doc. 231 at 127-28. In response, Dish refused to commit to
being bound by the Illinois Action. Id. at 129-30
(“To your question about the impact of what may or may
not happen [in the Illinois Action] … I suspect it
will be informative and helpful to this case, but it is hard
to commit to, without knowing what the judge is going to
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 in
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.
“principal purpose of … res judicata is to
protect the defendant from the burden of relitigating the
same claim in different suits.” Pueschel, 369
F.3d at 356. “The failure of the defendant to object to
the prosecution of dual proceedings while both proceedings
are pending … constitutes waiver.” Clements
v. Airport Auth. of Washoe Cty., 69 F.3d 321, 328
(9th Cir. 1995); see also Beazer East, Inc. v.
U.S. Navy, 1997 WL 173225, *3 (4th Cir. Apr. 11, 1997)
(noting that “acquiescence to the filing of two
separate lawsuits has … been determined to constitute
consent.”); accord, Pueschel, 369 F.3d at 356
(holding that a defendant waives his right to assert res
judicata if he consents, “in express words or
otherwise, to the splitting of the claim.”) (relying on
Restatement (Second) of Judgments § 26(1)(a), cmt. a)
and Keith v. Aldridge, 900 F.2d 736, 740 (4th Cir.
1990)). Calderon Rosado v. Gen. Elec. Circuit Breakers,
Inc., 805 F.2d 1085, 1087 (1st Cir. 1986) (same).
there are “no precise rules” that govern how a
court responds when claims arising from the same transaction
or occurrence are pending before two separate courts, courts
seek to ensure “wise judicial administration, giving
regard to conservation of judicial resources and
comprehensive disposition of litigation.” Colo.
River Water Conservation Dist. v. United States, 424
U.S. 800, 817-18 (1976). To this end, a court has discretion
to “weigh competing interests and maintain an even
balance.” Landis v. N. Am. Co., 299 U.S. 248,
254-55 (1936) (discussing the court's inherent power to
stay one federal lawsuit while another proceeds to
resolution). Courts necessarily rely on the parties to learn
of related litigation. See Young-Henderson v. Spartanburg
Area Mental Health Ctr.,945 F.2d ...