Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—C.D. Ill.: Dish Network entitled to limits on use of call data analysis, (Aug 6, 2015)

By Michael Menzhuber, J.D., LL.M.

In an action against Dish Network, LLC (Dish) over its telemarketing activities, a motion to bar information at trial offered by the states of California, Illinois, North Carolina, and Ohio was granted in part and denied in part by a federal district court in Illinois (U.S. v. Dish Network, LLC, August 4, 2015, Myerscough, S.).

Background. On December 11, 2014, Dish was found liable for making over 50 million calls in violation of the Telemarketing Sales Rule (TSR), Telemarketing Act, and the FTC Act. However, issues of fact remained regarding the number of violations. In particular, one issue of fact existed concerning whether telephone area codes were sufficient to prove the residency of the call recipients.

On April 16, 2015, plaintiff states’ counsel sent a letter to Dish’s defense counsel disclosing a new analysis of call record data (April 2015 Analysis) by the plaintiffs’ expert, Dr. Erez Yoeli. The letter also summarized the information collected from the databases of PossibleNOW, Inc., which was used as basis for the April 2015 Analysis.

The plaintiff states moved to allow the use of the April 2015 Analysis at trial as a supplement to Dr. Yoeli’s previous expert opinions and also to allow the use of the underlying factual information. The court held that the April 2015 Analysis was a new, untimely expert opinion that might be appropriate for rebuttal, depending upon the evidence presented by Dish, but could not be used in the plaintiffs’ case-in-chief. However, the court determined that the existence of the factual data in the PossibleNOW databases was adequately disclosed in discovery and would not be barred.

Dish was given additional time to conduct limited discovery on the April 2015 Analysis. Richard Stauffer, a PossibleNOW employee, testified at his deposition that PossibleNOW made a mistake in collecting the data supplied to Dr. Yoeli. On June 14, 2015, plaintiffs’ counsel sent Dish’s defense counsel a revised data compilation and, on June 15, 2015, Dr. Yoeli provided a revised analysis (June 2015 Analysis) based on the revised data.

June 2015 analysis. The court concluded that that the June 2015 Analysis was untimely for the same reasons as the April 2015 Analysis but determined that the plaintiffs might be justified in presenting it in rebuttal, depending upon what Dish presented in its case-in-chief regarding area codes and residency.

The court concluded that revised data collected in the PossibleNOW databases would not be barred under the discovery rules, again for the same reasons as the data underlying the 2015 Analysis. The court determined that the factual information in the PossibleNOW data bases was adequately disclosed and, therefore, was not barred by the discovery rules. The court also determined that any prejudice to Dish from the delay in the disclosure of the June 2015 Analysis had been alleviated because: (1) the court limited its use, if at all, to rebuttal; and (2) Dish was given additional time to prepare any response.

Dish argued that the revised data was not factual evidence but untimely expert testimony. The court disagreed. It concluded that the information collected by PossibleNOW, the existence of a telephone number on a national telephone directory on a given date and the existence of an address for that telephone number, was information generally understood by the lay public and was not expert testimony.

Bad faith. Dish raised, for the first time in its reply, a claim that the plaintiffs acted in bad faith. The court did not see any bad faith in making revisions to correct an error in data collection and, therefore, did not consider Dish’s improperly raised claim.

The case is Civil Action No. 09-3073.

Attorneys: Albert N. Shelden, California Attorney General's Office, and Daniel Kadane Crane-Hirsch, United States Department of Justice, for United States of America. Catherine Emily James (Kelley Drye & Warren LLP) for Dish Network LLC.

Companies: Dish Network LLC

Cases: ConsumerProtection Privacy IllinoisNews