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Krakauer v. Dish Network, L.L.C.

United States District Court, M.D. North Carolina

December 23, 2019

THOMAS H. KRAKAUER, on behalf of a class of persons. Plaintiff,
DISH NETWORK, L.L.C., Defendant.



         After a 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.

         After 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.


         As has 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.

         The 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.


         In 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.

         After 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.

         Dish failed to provide meaningful suggestions to address questions of class member identity, [1] 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 process.

         First, the Court entered judgment for the plaintiff class against Dish in the amount of $61, 342, 800. Doc. 439. The judgment stated:

[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.

         Second, 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 individuals).

         Third, 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 ...

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