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.
2010 to 2011, Dish Network LLC willfully violated the
Telephone Consumer Protection Act by repeatedly calling over
18, 000 class members on the Do-Not-Call registry. After a
jury found Dish liable and awarded damages to individuals
harmed by these telephone solicitation calls and after the
Court trebled those damages for willfulness, the Court
appointed a Special Master to resolve or narrow issues
related to distributing the judgment funds to class members.
The Court has reviewed the Special Master's final report
and the objections by each party. Upon de novo
review, the Court overrules all objections to the Special
Master's determinations and adopts his recommendations in
January 2017, a jury found that Dish violated the TCPA when
its agent made 51, 119 telephone solicitations to 18, 066
residential phone numbers on the Do Not Call Registry. Doc.
292; Doc. 351 at 1. The Court found these violations were
willful, tripled the jury's assessment of $400 per
violative call, Doc. 338, and entered judgment against Dish
and in favor of the plaintiff class for approximately $61
million. Doc. 439. The Fourth Circuit affirmed. Krakauer
v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019).
Court held that there was no reasonable dispute as to the
identities of approximately 11, 000 class members who were
named in the records establishing the TCPA violations and as
to whom there was no contradictory identification data. Doc.
407. Accordingly, the Court did not require a claims
procedure or claims forms for these 11, 000 claims,
see Doc. 441 at 1, and the parties eventually
resolved the few technical issues related to a very small
number of these class members. See Doc. 454. At the
appropriate time, the Court will enter a disbursement order
authorizing the Claims Administrator to take all reasonable
steps to disburse judgment funds to these class members.
identities and addresses of the remaining 7, 000 class
members were not as certain since either relevant records did
not fully identify them or there were conflicts in the
information available. Doc. 407 at 1, 11-12. As to these
class members, the Court established a claims procedure to
resolve claims distribution issues and to ensure the judgment
is paid only to those individuals entitled to relief, i.e.,
those with valid claims.
441. In the Order setting forth this procedure, the Court
defined a “valid claim” as
one that the Administrator determines, using all available
information, was submitted by the person who had the number
during the class period or who resided in the household that
had the number (or that person's representative).
Id. at ¶ 6(e)(i).
Order on Claims Procedures required individuals to timely
submit completed claims forms and appointed a Claims
Administrator to make the initial decision as to whether the
submitted claim was valid, using available data and records.
Id. at ¶ 6(a)-(e). The Order allowed the
parties to object to the Administrator's validity
determinations, which would then be considered by the Special
Master. Id. at ¶ 6(f)-(j). After the Special
Master filed his recommended findings on the public docket,
id. at ¶ 6(k), the Order permitted the parties
to object to any specific decisions by the Special Master,
which the Court would then review. Id. at ¶
with the Order on Claims Procedures, the Administrator made
validity determinations on all claims submitted. See
Doc. 494-2. The plaintiff and the defendant each objected to
some of the Administrator's determinations. See
Doc. 494 at 2. The Special Master reviewed the objections and
issued a report recommending that the Court deny Class
Counsel's objections and grant in part and deny in part
Dish's objections. See Docs. 494, 494-3, 494-4.
Both parties filed objections to parts of the Special
Master's report. See Docs. 498-508.
parties agree that the Court should consider de novo
all objections to the Special Master's findings of fact
or conclusions of law, see Fed. R. Civ. P.
53(f)(3)-(4), and that the Court must determine claim
validity, i.e., whether the claimant is a class member
entitled to relief, by a preponderance of the evidence.
See Doc. 502 at 10-11; Doc. 507 at 1; see also
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d
214, 225- 26 (4th Cir. 2002) (noting that courts may presume
the preponderance-of-the-evidence standard applies unless
particularly important individual interests or rights are at
stake); Krakauer v. Dish Network, LLC, No.
1:14-CV-333, 2017 WL 3206324, at *4 (M.D. N.C. July 27, 2017)
(holding that the court should determine who is a class
plaintiffs object to the Special Master's recommendation
that claims are invalid if postmarked or submitted after the
June 18, 2018, deadline set by the Court. Doc. 498. Class
Counsel acknowledge that the Court's Order on Claims
Procedures set a claims submission deadline, but they contend
that the late filings do not prejudice any party and thus
allowing 26 claims filed after this deadline would be
“appropriate under the circumstances.”
Id. at 1-2.
Court finds upon a de novo review that claims
submitted after the deadline are invalid. See Doc.
494-3 (list of 26 invalid claims). The Court extended the
claims deadline and allowed approximately seven months for
claim submissions. See Doc. 361 at ¶ 2
(providing an initial claims period of 120 days from the date
of mailing of class notice); Text Order 03/21/2018 (extending
claims period for three months until June 18, 2018). Class
Counsel have not identified any problems with this length of
time or with the notice procedure to class members that
impeded the timely submission of claims. See William
B. Rubenstein, 4 Newberg on Class Actions § 12:23 (5th
ed. June 2019 update) (noting that whether delay was within
the claimant's control is “typically [the] most
important” factor in deciding whether to accept late
claims); Doc. 499-10 at ¶¶ 5-6 (detailing notice
efforts by the Administrator). Nor have they shown that any
delay was due to excusable neglect such that the Court should
exercise its equitable powers to accept late claims.
See William B. Rubenstein, 4 Newberg on Class
Actions § 12:23 (5th ed. June 2019 update) (discussing
the relevant factors when considering late claims). Class
Counsel's objection is overruled.
objects to certain of the Special Master's validity
determinations for relatively small groups of claims. Doc.
502. These objections fall into three categories. As to 135
claims, Dish contends the evidence is insufficient and not
persuasive enough to prove the claim is valid. Id.
at 12. As to nine claims, Dish contends that the Special
Master's validity determinations were inconsistent with
thirty-seven other “similarly situated” claims he
found invalid. Id. at 3, 17. Finally, as to fourteen
claims, Dish contends that TCPA claims abate upon the death
of class members, and that even if they do not, the
individuals who filed the claims have not shown a legal right
to recover on behalf of a claimant's estate. Id.
at 19. Dish also asserts, without referencing any specific
claims, that the Administrator did not comply with the
Court's Order on Claims Procedures when making the
initial validity determinations. Id. at 5-7.
reasons set forth below, the Court on de novo review
agrees with the Special Master's validity determinations