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Krakauer v. Dish Network L.L.C.

United States District Court, M.D. North Carolina

July 10, 2019

THOMAS H. KRAKAUER, Plaintiff,
v.
DISH NETWORK LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          Catherine C. Eagles, District Judge.

         From 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 full.

         I. Background

         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).

         The 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.

         The 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.

         Doc. 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).

         The 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 ¶ 6(1)-(n).

         Consistent 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.

         The 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 member).

         II. Plaintiffs' Objections

         The 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.

         The 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.

         III. Dish's Objections

         Dish 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.

         For the reasons set forth below, the Court on de novo review agrees with the Special Master's validity determinations ...


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