Dish Must Face TCPA Telemarketing Class Action

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By Jimmy H. Koo

Sept. 10 — Dish Network LLC will have to face a class action lawsuit alleging that the company and its authorized dealer violated the Telephone Consumer Protection Act by making phone solicitations to people who listed their phone numbers on the National Do Not Call (NDNC) Registry as well as the companies' internal do-not-call (IDNC) lists, the U.S. District Court for the Middle District of North Carolina held Sept. 9.

Judge Catherine C. Eagles said that plaintiff Thomas Krakauer sufficiently demonstrated that he is a member of both proposed classes—all individuals listed on either the NDNC list or the one of the companies' IDNC lists who received telemarketing calls from Satellite Systems Network to promote Dish between May 1, 2010, and Aug. 1, 2011—and that the class members are ascertainable.

In 2003, the court recounted, Krakauer registered his residential phone number on the NDNC list. However, between May 2009 and September 2011, Satellite called him on this number “numerous times” attempting to sell Dish services, in violation of the TCPA, 47 U.S.C. § 227. The calls continued even after Krakauer called Dish to complain about Satellite's sales tactics and after Dish placed him on its no-call list and told Satellite to do the same.

Contending that Dish is vicariously liable for Satellite's calls, Krakauer filed the class action complaint, seeking injunctive and monetary relief. Dish argued that Krakauer's claims aren't typical and that class members aren't ascertainable, and it challenged whether common questions predominated over questions affecting only individual members.

Common Issues Predominate

“It is undisputed” that Krakauer's proposed classes satisfy the requirements of numerosity, commonality and adequacy of representation, the court said. Specifically, it noted that the NDNC class, as proposed, includes 20,450 members and the IDNC class includes 7,831 members.

The court also said that Krakauer isn't required to prove that “without a doubt, every single person on the class list would be able to recover to satisfy the ascertainability requirement.” Regarding the IDNC class, the court found that the phrases “DNC” and “Do Not Call” in Satellite's call records are persuasive circumstantial evidence that people associated with those numbers had asked to be not called. Therefore, the court said, those class members are ascertainable.

The court said that Dish may raise most of its defenses on a “class-wide basis with minimal, if any, individual inquiry, and that Dish's other arguments are largely speculative.” It concluded that any individual issues that exist are “minor and do not defeat the class action because common issues nevertheless predominate.”

Broderick Law PC, Bailey & Glasser LLP and The Norris Law Firm represented Krakauer. Parker Poe Adams & Bernstein, Benesch, Friedlander, Coplan & Aronoff LLP and Kilpatrick Townsend & Stockton LLP represented Dish.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Don G. Aplin at daplin@bna.com

Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/THOMAS_H_KRAKAUER_Plaintiff_v_DISH_NETWORK_LLC_Defendant_No_114CV.