Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—CDIll: Documents Unsealed in Action Against Dish Network for Alleged Telemarketing Sales Rule Violations, (May 8, 2013)

By Tobias J. Gillett, J.D., LL.M.

The federal district court in Springfield, Illinois, has unsealed certain documents in a state and U.S. Department of Justice action against Dish Network, Inc. for allegedly violating the FTC’s Telemarketing Sales Rule (TSR), the Telephone Consumer Protection Act (TCPA), and state statutes in carrying out certain telemarketing campaigns (U.S. v. Dish Network, L.L.C., May 6, 2013, Myerscough, S.).

The U.S. Department of Justice and the Attorneys General of California, Illinois, North Carolina, and Ohio had filed a lawsuit asserting that Dish had violated the TSR, the TCPA, and state statutes prohibiting certain forms of telephone solicitations. On March 12, 2013, the court advised the parties that it intended to unseal numerous pleadings in the court’s file, but gave the parties leave to file motions identifying documents that should remain sealed.

Dish filed a motion identifying 46 documents it believed should remain sealed, including "(1) 40 documents containing ‘personally identifying information’; (2) five sets of documents reflecting settlement communications between [Dish] and the Federal Trade Commission;" and (3) one document containing the terms of payments Dish made to several retailers. The plaintiffs objected to the motion.

The court first addressed the 40 documents containing "personally identifying information, including names of non-party consumers, telephone numbers, mailing addresses, and email addresses." In their reply objecting to Dish’s motion, the plaintiffs had argued that 31 documents should remain sealed, but with redacted copies made available to the public, six documents should be unsealed because the identifying information was already included in other public documents, and three other documents should remain sealed because redacted versions had already been made public. Dish agreed with this resolution, and the court approved it, finding good cause for redacting the 31 documents.

However, the court found the five documents reflecting settlement negotiations between Dish and the FTC should be unsealed. The court noted that "no generally recognized settlement-negotiation privilege exists," but that "there is a policy interest in facilitating and encouraging settlements" that could be served by "preserving the confidentiality of communications made during settlement negotiations." Here, the court found two of the documents had only broad discussion of call record analysis, not the kind of trade secrets or business information that would warrant sealing them. Other documents had information regarding calls Dish or retailers had made, the number of activations per month, and the percentage of activations by retailer, but the information was nearly five years old, and Dish did not show how its disclosure would put it "at a competitive disadvantage."

Finally, the court concluded that a document listing the "activations" and "dollars" for five retailers for 2005 through 2010 should be unsealed. Dish had submitted a version that redacted the "activation" and "dollars" information, and supported its motion opposing disclosure of the information with a declaration from a Dish vice president that the "sales and marketing information, activation rates, and payment schedules" were information it considered confidential and valuable to Dish’s competitors.

The court found that the document consisted only of "a general accounting of retailer payments," not the "sales and marketing information" or "payment schedules" that the vice president had claimed it contained. Moreover, the same type of information was in the public record in a different case. Dish’s "broad assertion that release of the information would result in competitive disadvantage" was "insufficient" to warrant leaving the document under seal.

The case is No. 09-3073.

Attorneys: Daniel Kadane Crane-Hirsch for U.S. Department of Justice. Edward Ellis Weiman (Kelley Drye & Warren LLP) for Dish Network L.L.C.

Companies: Dish Network, L.L.C.

Cases: ConsumerProtection Privacy IllinoisNews