United States District Court, M.D. North Carolina
THOMAS H. KRAKAUER, on behalf of a class of persons. Plaintiff,
DISH NETWORK, L.L.C., Defendant.
MEMORANDUM OPINION AND ORDER
CATHERINE C. EAGLES, DISTRICT JUDGE.
jury trial, the Court entered final judgment of $61, 342, 800
against defendant Dish Network, LLC in favor of the class,
based on 51, 119 telephone solicitations to 18.066
residential phone numbers on the Do Not Call list, in willful
violation of the Telephone Consumer Protection Act. The Court
awarded attorney's fees of one-third of the judgment to
Class Counsel, as well as repayment of costs.
the judgment was upheld by the United States Court of Appeals
for the Fourth Circuit, Dish questioned how the
attorney's fee and costs would be allocated among
identified class members who receive part of the judgment
funds and unidentified class members who never receive part
of the judgment. The Court requested briefing from the
parties in order to enter appropriate orders disbursing the
judgment. See Minute Entry 07/26/2019; Docs. 522,
526, 529. Because the Court's judgment is a common fund
and attorney's fees are properly assessed against the
entire fund, each class member is appropriately responsible
for a share of the attorney's fees and costs, whether he
or she claims a share of the judgment or not.
OF THE ISSUE
been discussed in more detail in many previous orders and as
is relevant here infra, Dish's agent made 51,
119 violative phone calls to 18, 066 phone numbers. Thus,
there are 18, 066 class members, many of whom received more
than one violative call. Approximately 11, 000 class members
were identified fully and without contradiction in the
existing data. The remaining 7000 were subject to a claims
process, and 1958 valid claims were submitted by class
members. Doc. 536 at 1. This leaves approximately 5000 class
members who were not identified fully in the existing data
and who have not submitted claims; they will not receive any
part of the judgment. The question newly posed by Dish is
whether attorney's fees and costs should be paid only out
of the judgment amounts paid to the class members who have
been fully identified plus those who submitted valid claims,
or whether those fees and costs should be paid by all class
members, regardless of whether they have filed a claim or
cashed their check.
Court has already approved payment from the $61, 342, 800
judgment of attorney's fees of $20, 447, 600 and costs of
$481, 317.73, for a total of $20, 928, 917.73. The plaintiff
contends that this amount should be paid from the judgment,
and the remaining $40, 413, 882.27 should be divided between
all the class members, pro rata per phone call, so that each
class member receives approximately $790 (out of the trebled
amount of $1200) for each violative call. Beyond its
opposition to the plaintiffs method, Dish's specific
mechanism for allocating payment of fees and costs is not
entirely clear. But it is clear that any of the possibilities
would result in a much smaller per-call recovery for
successful claimants, a substantially larger amount of
unclaimed funds (which Dish has previously contended, in an
issue not before the Court, should revert to Dish), or both.
April 2014, Dr. Thomas Krakauer, the plaintiff and class
representative, sued Dish under the Telephone Consumer
Protection Act, 47 U.S.C. § 227(c), alleging that he and
others on the "Do Not Call Registry" received more
than one telephone call within a 12-month period, in
violation of the TCP A, and that the calls were made on
behalf of Dish. Doc. 1 at 10. In September 2015, the Court
certified the class, Doc. 111 at 4, 34. Doc. 439 at ¶ 1.
After a six-day trial in January 2017, the jury returned a
verdict finding that Dish had made over 51, 000 telephone
solicitations to a class of some 18, 066 persons on the
Registry in violation of the TCPA. See Doc. 341 at
1. The jury awarded $400 per call, Doc. 292 at 2, and the
Court-finding the violations were willful-trebled the damages
to $1200 per call, so as to deter Dish from future violations
and to give appropriate weight to the scope of the
violations. See Doc. 338 at 30-31.
post-trial motions were resolved, Doc. 341, the Court began
the process of considering entry of judgment and determining
who would receive the judgment proceeds. Initially, the Court
noted that judgment against Dish in a lump sum amount was
appropriate, but it decided against such a judgment for the
time being. Doc. 351 at 11-15. The Court contemplated entry
of judgment in favor of those class members who had already
been "identified fully and without contradiction in the
existing data," Doc. 351 at 16, 21, 26, with a claims
process for remaining class members. Doc. 351.
failed to provide meaningful suggestions to address questions
of class member identity,  continued to delay the proceedings, and
inserted unreasonable obstacles to this process by, inter
alia, persistently returning to decided issues. See,
e.g., Doc. 495 at 2-3. Over time, the Court entered
orders to deal with these problems, eventually entering final
judgment in favor of the class and establishing a claims
the Court entered judgment for the plaintiff class against
Dish in the amount of $61, 342, 800. Doc. 439. The judgment
[E]ach member of the class shall recover from the Defendant,
DISH Network, LLC, the amount of $ 1, 200 per call made in
violation of the Telephone Consumer Protection Act, for an
aggregate award in favor of the class of $61, 342, 800.00.
Id. at 1. As explained in a separate order, the
Court calculated the amount of the judgment based on the
damages found by the jury and trebled by the court, per
violative call: 51, 119 violations x $1200. Doc. 438 at 1-2.
"The phone numbers are known, the number of calls are
known, the jury established the amount of damages due for
each violation, and the Court trebled those damages upon a
finding of willfulness, as authorized by statute."
Id. at 2.
the Court held there was no reasonable dispute as to the
identities of approximately 11, 000 named class members who
were named in the records establishing the TCPA violations
and as to whom there was no contradictory identification.
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. Doc. 454; see Docs.
475, 475-1 (final list in two subgroups, totaling 11, 239
the Court established a claims procedure to resolve claims
distribution issues related to the remaining 7000 class
members whose identities and addresses were not as certain.
Doc. 407 at 1, 11-12. The Court held that those class members
could only receive a share of judgment if they filed a valid
claim, which the Court defined. The Court directed the Claims
Administrator to make the initial decision as to whether a
submitted claim was valid, Doc. 441 at ¶
6(a)-(e); and appointed a Special Master to ...