Antitrust Law Daily Wrap Up, PRIVACY—M.D.N.C.: Class certification granted in TCPA suit against Dish Network, (Sep 11, 2015)

By Edward L. Puzzo, J.D.

The federal district court in Greensboro, North Carolina has certified a class bringing claims against Dish Network and its authorized dealer under the Telephone Consumer Protection Act (TCPA) (Krakauer v. Dish Network LLC, September 9, 2015, Eagles, C.).

Plaintiff Dr. Thomas Krakauer’s brought a putative class action against Dish Network and its authorized dealer Satellite Systems Network (SSN) alleging violations of the TCPA. The TCPA prohibits sellers and telemarketers from making phone solicitations without consent or an established business relationship to residential recipients who have registered their phone number on the Federal Trade Commission’s national do-not-call registry (NDNC list). The sellers and telemarketers are further required to maintain their own internal do-not-call list (IDNC list) and refrain from calling recipients on their list, even if the recipient is not on the NDNC list. The TCPA creates a private right of action.

Dr. Krakauer based his TCPA claim on allegations that Dish and SSN repeatedly called his residential phone number, registered on the NDNC list and later on Dish’s IDNC list, in their attempts to persuade him to switch from another satellite television provider. He sought relief on behalf of two classes: (1) an NDNC class, consisting of 20,450 members who received telemarketing calls promoting Dish between May 1, 2010 and August 1, 2011 despite being on the NDNC list; and (2) an IDNC class, consisting of 7,831 members who received telemarketing calls promoting Dish during the same time period despite being on the Dish’s or SSN’s IDNC lists.

Certification as a class requires that the class members are too numerous to allow joinder to be practicable; that there are common questions of law and fact as to the class and that plaintiff has the ability to fairly and adequately protect the interests of the class. The putative class representative must also show that he is a member of the proposed class. Dish does not challenge plaintiff’s membership in the NDNC class, but does challenge his membership in the IDNC class. Dish also alleges that members of the class are not readily identifiable or ascertainable, and questions whether common questions predominate over questions affecting only individual members.

After plaintiff complained to Dish about calls from SSN, Dish continued to call him because they claimed they had not received an “affirmative request” to discontinue calls and did not put him on the IDNC list. But internal emails at Dish and SSN characterized his complains about the calls as a do-not-call (DNC) issue. The court ruled that plaintiff had established by a preponderance of the evidence that he is a member of the proposed IDNC class.

Putative class lists. As to the NDNC class, plaintiff used an expert to analyze SSN call records and other independent data to identify members of both classes. After eliminating non-qualifying calls, the expert found that 20,450 unique numbers had received 57,900 calls and further identified the names and addresses of most persons associated with these numbers during the class period. Using a similar methodology for the IDNC class, the expert identified 7,831 numbers that received 22,607 calls.

Dish argued that its IDNC list was not limited to individuals who asked not to be called, but also included other individuals Dish had decided not to call for other reasons, such as allegations of rude behavior. Therefore, they said, the expert’s IDNC list was over-inclusive and the IDNC class members were not ascertainable. The court did not find this argument persuasive, noting that if certification were to be denied because Dish does not keep an accurate list as the regulations require and Dish itself cannot identify which individuals on the list actually requested not to be called, it would create the perverse incentive for entities to keep poor records and to violate the TCPA’s clear requirement that such a list be kept.

The phrases “DNC” and “Do Not Call” in SSN’s call records are, in context, persuasive circumstantial evidence that persons associated with those numbers had asked to not be called and, for purposes of this motion, suffice to make class members ascertainable, the court stated.

Individual determinations. Dish alleged that several issues concerning both classes will have to be individually determined, that such issues predominate and therefore class certification was precluded.

As to the issue of whether the phone number is associated with a business instead of a residence, DISH challenged the accuracy of the expert’s conclusions in that regard, but the court concluded that based on the record, it did not appear that there were a great many ineligible persons in the putative class list. To the extent resolution of these issues presents individual questions, the court continued, these questions appear few in number, straightforward, and peripheral to the central issues in this litigation.

As to the issue of whether DISH had an established business relationship (EBR), the court opined that Dish had provided no evidence to support its assertion that there were “thousands” of customers on the class list as to whom it would be entitled to an EBR defense; in fact, it had identified only 16 such persons. Resolution of the EBR defense does not involve “considerable individual inquiry,” and individual hearings will not be routinely necessary to determine if a putative class member was a Dish customer at the time of a call, the court stated. Rather, identifying a company’s customers during a time period should be an “objectively verifiable” task.

As to the issue of whether an individual first called SSN to make an inquiry about Dish products, which would allow SSN to contact them for up to 3 months, Dish contended that individualized inquiry would be required, but the court called the frequency of this defense as speculative. Further, to the extent that Dish’s call records were insufficient to allow Dish to identify every possible call to which it can assert this defense, that was not plaintiff’s fault, and does not preclude persons with valid claims from recovering, not does it prevent class certification, the court ruled.

Predominance. Common issues must predominate in order to certify a class, the court explained, but that does not mean that all issues must be common. The two issues here are (1) whether SSN made the calls at issue; and (2) whether Dish is liable for SSN’s calls under agency principles. These issues—the central issues to this litigation which predominate in quality and complexity over any potential individual issues—are questions that can be resolved for each class member in a single hearing, the court stated, and do not turn on consideration of individual class member circumstances. Thus, the court found, common questions of fact and law predominate.

Certification. The court concluded that Dr. Krakauer’s proposed classes satisfy the numerosity, commonality, and adequacy of representation requirements; that he met the threshold requirements for class certification by demonstrating that he was a member of both proposed classes; that the class members were ascertainable; that common questions of law and fact predominated; and that class action was the superior method of adjudication for a TCPA claim. Thus the court granted plaintiff’s motion for class certification.

The case is Civil Action No. 1:14-CV-333.

Attorneys: Anthony I. Paronich (Broderick Law, PC) for Thomas H. Krakauer. Benjamin E. Kern (Benesch, Friedlander, Coplan & Aronoff, LLP) for Dish Network LLC.

Companies: Dish Network LLC

Cases: Privacy ConsumerProtection NorthCarolinaNews