KRAKAUER v. DISH NETWORK L.L.C.
Filing
351
MEMORANDUM OPINION AND ORDER. Signed by JUDGE CATHERINE C. EAGLES on 7/27/2017, that the defendants motion for post-trial procedures, Doc. 329, and the plaintiffs requests for post-trial procedures, Doc. 331, are GRANTED in part and DENIED in part as stated herein. The parties shall confer as directed and file such motions and submissions as are required by this order, as summarized in the Appendix. Unless stated otherwise in this order, the time frame and word limits for briefing are those set forth in the Local Rules. For all matters where joint submissions are required, the joint submission shall specifically state areas of agreement and disagreement and shall include proposed orders, if applicable. If the parties do not reach full agreement, each party may file a brief at the time of the joint submission addressing areas of disagreement. In view of the degree of advance consultation required, the Court expects the parties to address all issues in the initial briefs, which are limited to 6,000 words. The parties may file short response briefs no longer than 2500 words within ten days, if necessary, and no reply briefs are allowed.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THOMAS H. KRAKAUER,
Plaintiff,
v.
DISH NETWORK, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
1:14-CV-333
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
The defendant, Dish Network, LLC, willfully violated the Telephone Consumer
Protection Act when its agent made 51,119 telephone solicitations to 18,066 residential
phone numbers on the National Do Not Call Registry. Each class member is entitled to
damages of $1,200 for each violative solicitation call. Having considered proposals from
the parties, the Court by this order outlines a process for entry of judgment in favor of
those class members who are clearly identified and a general claims administration
process for all other class members. The Court directs the parties to confer and submit
motions, forms, and proposed additional procedures that follow the Court’s outline and
schedule.
I.
Background
This lawsuit was filed in 2014. The plaintiff, Dr. Thomas Krakauer, asserted that
Dish’s agent, Satellite Systems Network, made repeated telephone solicitations to phone
numbers, including his own, that were listed on the National Do Not Call Registry. Doc.
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 1 of 28
1. After discovery, the Court granted the plaintiffs’ motion for class certification, and, as
is relevant here, certified the following class:
All persons throughout the United States whose telephone numbers
were listed on the federal Do Not Call registry for at least 30 days, but
who received telemarketing calls from Satellite Systems Network, to
promote the sale of Dish satellite television subscriptions from May 1,
2010 to August 1, 2011.
Doc. 47 at 1; see Doc. 111 at 4.1
At the time of class certification, all the telephone numbers had been identified
using business records maintained by Five9, the software company that provided the
agent’s dialing software. See Doc. 137 at 19-136; Doc. 137-1; Doc. 137-2 at 1-34. The
Five9 records included names and addresses associated with many of the phone numbers,
but not all. When those records were incomplete, the plaintiffs’ expert located names and
addresses associated with the phone numbers using a LexisNexis commercial database.
See Doc. 103 at 129:24-131:6. After incorporating this data, about 4,000 numbers still
had incomplete name and address information. See Doc. 133-1 at ¶ 8.
The plaintiffs notified class members of the lawsuit by sending postcards to these
names and addresses in February 2016. Doc. 206-1 at ¶ 4; see Doc. 153 at 2. The
plaintiffs successfully delivered postcards to names and addresses associated with about
75 percent of the phone numbers in the class. Doc. 206-1 at ¶¶ 11-12.
1
The Court also certified a second class of people whose numbers were on Dish or its
agent’s internal do-not-call lists. See Doc. 111 at 4 (citing Doc. 47 at 1-2). The parties later
stipulated to dismiss this class from the lawsuit. Doc. 271.
2
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 2 of 28
In the lead-up to trial, the parties stipulated to remove several categories of phone
numbers from the class. See Docs. 264, 266, 271. This left 18,066 class phone numbers;
the plaintiffs had delivered postcards to 13,268 persons associated with these phone
numbers, leaving 4,798 not delivered. Doc. 331-1 at ¶¶ 6-7.
At trial, the plaintiffs presented class-wide evidence that (1) Dr. Krakauer and the
18,066 class members each received at least two telephone solicitations in any 12-month
period, (2) the numbers called were residential numbers, (3) the calls were made on
behalf of Dish, and (4) the calls were made when the telephone numbers were on the
Registry for over thirty days. See Doc. 293 at 4. The jury answered all issues in favor of
the plaintiffs, finding that Dish’s agent “[made] and class members receive[d] at least two
telephone solicitations to a residential number in any 12-month period by or on behalf of
Dish, when their telephone numbers were listed on the National Do Not Call Registry.”
Doc. 292 at ¶ 2. The jury also determined that statutory damages of $400 were
appropriate for each violative call. Id. at ¶ 3. The Court thereafter trebled the damages
because Dish’s violations were willful and knowing, increasing the award to $1,200 per
call. Doc. 338; 47 U.S.C. § 227(c)(5).
After the trial and at the Court’s request, each party proposed procedures for
moving the case to final judgment and responded to each other’s proposals. See Docs.
329 to 331, 334 to 337. The Court heard oral argument on June 7, 2017.
II.
Overview of issues
The plaintiffs contend that liability and aggregate damages were established at
trial, that no more proof is necessary, and that judgment can be entered now against Dish
3
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 3 of 28
in favor of the class. Plaintiffs seek to mail checks to the class members for whom they
successfully delivered a class notice postcard and to have a claims administrator identify
the remaining class members in a non-adversarial, practical process. Dish, on the other
hand, asserts that more proof is required before any individual class members have
established liability. Dish suggests mailing claim forms to the class notice addresses and
then allowing the parties to litigate each recipient’s membership in the class in an
adversarial process with discovery, depositions, and jury trials.
These disputes break down into three basic issues. The first is whether the verdict
established all issues of liability and whether the Court should enter judgment in an
aggregate amount, at $1,200 for each of the 51,119 violations. The second issue, which
depends on the answer to the first issue, is what claims process is appropriate. The third
issue is whether any unclaimed damages revert to Dish.
III.
Liability and judgment
The plaintiffs contend that the jury’s verdict satisfied all elements of the TCPA
claims and ask the Court to enter judgment against Dish and in favor of the class in the
amount of $61,342,800, based on a total liability of $1,200 per call multiplied by 51,119
calls. See Doc. 331 at 9-11.2 Dish contends that it is entitled to individual discovery and
jury trials on the issue of the identity of the subscriber or recipient of each violative
2
The plaintiffs initially requested judgment in the amount of $20,447,600 based on the $400
damages amount per call set by the jury. Doc. 331 at 6. At that time, the Court had not yet
trebled the damages. See Doc. 338. Over the course of the briefing and at oral argument, it is
clear that plaintiffs now want judgment entered based on the $1,200 damages amount, in view of
the Court’s finding on willfulness.
4
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 4 of 28
phone call. Doc. 330 at 14-15. Dish phrases this argument in several different ways, but
it essentially claims that identity is an element of the cause of action and of statutory
standing. The plaintiffs, on the other hand, contend that the jury by its verdict determined
that each class member received the calls, that the plaintiffs’ expert identified most of the
class members as part of the class certification process, and that only a small number of
phone numbers remain unlinked to a particular individual.
A.
Statutory standing
To the extent Dish contends that statutory standing is an element that individual
class members must prove to show liability, Dish is correct. However, the plaintiffs
already proved the statutory standing of each class member at trial.
Statutory standing is “best understood as not even standing at all,” CGM, LLC v.
BellSouth Telecommc’ns, Inc., 664 F.3d 46, 52 (4th Cir. 2011), but as an “element of
proof” for a claim. Sullivan v. DB Invs., Inc., 667 F.3d 273, 307 (3d Cir. 2011) (en banc)
(statutory standing in antitrust context). In considering whether an individual has
statutory standing, courts consider whether the individual “is a member of the class given
authority by a statute to bring suit.” CGM, 664 F.3d at 52 (quotation omitted).
“Normally, where the statutory language provides a clear answer, [the] analysis begins
and ends with that language.” Id. at 53 (quotation omitted).
The class definition, the evidence, the jury instructions, and the jury verdict
establish that this element was proven at trial. The standing provision at issue here, 47
U.S.C. § 227(c)(5), states that “[a] person who has received” calls in violation of the
5
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 5 of 28
§ 227(c) provisions may sue.3 By its plain language, the determinative question for
statutory standing is whether a call to a class member was received. The jury answered
“Yes” to this question for all class members:
Did [Dish’s agent] make and class members receive at least two
telephone solicitations to a residential number in any 12-month period
by or on behalf of Dish, when their telephone numbers were listed on
the National Do Not Call Registry?
[X]
YES as to Dr. Krakauer and all class members
Doc. 292 at ¶ 2 (emphasis added). The jury instructions also repeatedly referred to
receiving calls and stated that “the plaintiff must prove . . . that he and the class members
each received at least two telephone solicitations.” Doc. 293 at 4 (emphasis added); see
also id. at 3, 8, 10-12.4
As the Court told the jury, “a person whose residential number is on the National
Do Not Call Registry and who receives at least two telephone calls within any 12-month
period by or on behalf of [Dish]” is entitled to damages. Id. at 3. The jury found that the
plaintiffs proved all of these elements at trial. See Doc. 292. Dish is not entitled to
undermine the jury’s verdict by second-chance challenges to the fact that the calls were
received.
3
The Court previously addressed statutory standing in its order certifying the class. See Doc.
111 at 12-14. At that time, the Court rejected Dish’s contention that only subscribers had
statutory standing.
4
The evidence at trial established that all of the phone calls were connected and thus
received. See Trial Tr. Jan. 12, Doc. 303 at 177:3-178:5 (testimony of Anya Verkhovskaya).
6
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 6 of 28
Statutory standing is an element of the claim, but the jury determined it in the
plaintiffs’ favor for every class member.5 No additional procedures are required to
satisfy that element.6
B.
Identity of class members
Dish similarly contends that due process entitles it to discovery and a trial on
whether the class member was the “subscriber” to the phone number and whether the
phone number was residential. See Doc. 330 at 4-5, 14. Dish is correct that the jury did
not pair phone numbers with particular names or addresses, nor did the jury determine the
identity of the persons who received the calls.7 But that does not mean that Dish is
entitled to discovery from thousands of individual class members and jury trials on the
identities of thousands of class members when a verdict has already determined that
Dish’s agent made tens of thousands of violative calls, each received by a class member. 8
5
The plaintiffs assert that, in class actions, only the class representative must prove standing.
Doc. 337 at 6-7. Dish correctly points out that this assertion confuses constitutional standing,
which is a jurisdictional requirement, with statutory standing, which functions as an element.
Doc. 340-1 at 10-11.
6
Dish also contends that it has the right to dispute this element under due process, the Rules
Enabling Act, and the Seventh Amendment. Doc. 330 at 9. Dish had the opportunity to dispute
the issue of receipt at trial, so these arguments are without merit.
7
The Court repeatedly told the jurors and parties that the trial would not resolve those issues.
Doc. 242 at 1; Doc. 260 at 79:7-80:2 (“We’re not going to be trying those issues.”); Doc. 293 at
9 (“There is no issue for you to decide in connection with names and addresses or the identities
of class members. That is something that may be decided down the road in other proceedings.”);
Trial Tr. Jan. 17, Doc. 305 at 42:24-43:8 (“[T]here’s no issue in this case about names and
addresses. That’s not something that you all have to decide.”).
8
In support of its due process claim, Dish cites cases from the class certification stage that
appear to be based on ascertainability problems. See Carrera v. Bayer Corp., 727 F.3d 300, 310
(3d Cir. 2013) (vacating class certification order because plaintiffs admitted that proposed claims
7
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 7 of 28
The Court has previously found that the class members were ascertainable, Doc.
111 at 9-14, and that the business records of Dish’s agent—supplemented by the
LexisNexis database—identified most of them by name and address. See id. at 11; Doc.
153 at 2. Likewise, it has been established that Dish violated the TCPA when its agent
made and class members received 51,119 telephone calls to residential numbers on the
Registry, see Doc. 292 at ¶¶ 1-2, that each class member is entitled to $400 in statutory
damages per call, id. at ¶ 3, and that because Dish acted willfully, the damages should be
trebled. Doc. 338.
Thus, Dish violated the TCPA and the class members—those persons whose
telephone numbers were listed on the Registry—are entitled to up to $1,200 for each
violative call. There may be some questions about who is a class member, but that does
not create a right to full-blown discovery and a jury trial on identity for each and every
class member. Rule 23 contemplates that the court will make the decision about who the
class members are. See Fed. R. Civ. P. 23(c)(3)(B) (in a Rule 23(b)(3) class action, the
judgment must “specify or describe those to whom the Rule 23(c)(2) notice was directed,
process would likely pay out some claims based on false affidavits, and defendant had an interest
in ensuring that did not happen); In re Processed Egg Prods. Antitrust Litig., 312 F.R.D. 124,
138-39 (E.D. Pa. 2015) (denying class certification and stating that “affidavits alone, without any
objective records to identify class members . . . will not suffice” to identify class members and
protect defendants’ interests). The Court already decided ascertainability in favor of the class,
see Doc. 111 at 9-14, and these cases give little to no guidance on how class administration
should occur after a jury verdict. Moreover, a third case cited by Dish criticizes the reasoning of
Carrera as misguided. Lilly v. Jamba Juice Co., 308 F.R.D. 231, 239-40 (N.D. Cal. 2014)
(granting class certification and stating that Carrera’s reasoning seems to be a “strange solution”
to a problem that “seems, at best, premature”). The Court has already rejected Dish’s contention
that class members must prove they are “subscribers.” Doc. 111 at 12-14.
8
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 8 of 28
who have not requested exclusion, and whom the court finds to be class members.”
(emphasis added)).
In other class actions fully litigated through post-trial proceedings, courts have not
found that due process or any other principle entitled defendants to a jury trial on
individual class members’ identity. For example, in Six Mexican Workers v. Arizona
Citrus Growers, 641 F. Supp. 259, 261 (D. Ariz. 1986), after trial, the court created a
procedure using claim forms for the parties to identify the unnamed migrant farmworkers
who made up the class. The court did not treat class members’ identities as an element.
Instead, it indicated it would take “reasonable measures” to check that class members’
identities were correct, and it held that verifying class members’ identities “needs to be
tailored to this particular situation.” Id. at 262-63.9
Similarly, in Allapattah Services, Inc. v. Exxon Corp., 157 F. Supp. 2d 1291 (S.D.
Fla. 2001), aff’d, 333 F.3d 1248 (11th Cir. 2003), aff’d, 545 U.S. 546 (2005), the court
used a claims administration process that evaluated claims using a special master and a
summary judgment process. “The goal of the Claims Administration Process [was] to
determine whether a claimant is the proper owner of the interest in the damage award for
the period of ownership asserted on the claimant's respective proof of claim form.”
9
In a similar case, the court held that the process of identifying migrant farmworker class
members was “unlikely to engender dispute or controversy” because “the amount of statutory
damages per class member has been determined, and all that remains is to contact the class
members and have them demonstrate that they are indeed class members entitled to the predetermined amount of damages.” Rodriguez v. Berrybrook Farms, Inc., No. K86-161 CA8, 1990
WL 10520985, at *3 (W.D. Mich. Oct. 29, 1990).
9
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 9 of 28
Exxon, No. 91-0986-CIV, 2006 WL 1132371, at *3 (S.D. Fla. Apr. 7, 2006).10 While the
details of the process are not set forth in the decision, there is nothing to indicate that the
Court authorized discovery pursuant to the Rules of Civil Procedure or contemplated jury
trials, even though the issues to be determined in the claims process were significantly
more complicated than the simple question of class membership left to resolve in this
case. See infra pp. 12-13.
As the trial already established all of the elements necessary to prove a violation—
indeed, 51,119 violations—Dish is not entitled to discovery and trials on the identities of
class members. Whether a claimant is a class member is a question that can be more
appropriately, fairly, and efficiently resolved through a claims administration process as
authorized by Rule 23.
Like Dish, the Court is interested in insuring that only class members receive the
damages awarded by the jury. The Court intends to establish a fair claims administration
process that will weed out any unjustified claims by non-class members. As discussed
infra p. 14, the Court agrees that Dish has some due process rights to a reasonable
opportunity to participate in the claims administration process. In the circumstances of
this case, the Court rejects the plaintiffs’ contention that Dish has no right at all to
participate in the process of identifying class members and accurately distributing class
funds. See Doc. 334 at 10-11. So long as Dish’s participation is helpful to confirm
10
At the time of the April 2006 order, the parties had reached a class settlement, but the order
describes the incomplete, contested class administration process already underway.
10
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 10 of 28
identification of class members, does not delay the proceedings, and is not obstructive,
the Court anticipates allowing Dish to have some input.
C.
Aggregate damages
The plaintiffs ask the Court to enter judgment in the amount of $61,342,800, based
on a total liability of $1,200 per call multiplied by 51,119 calls. See supra note 2. The
plaintiffs make a strong argument. Dish willfully violated the TCPA tens of thousands of
times when its agent willfully made repeated solicitation calls to persons on the Registry;
the jury set the amount of damages for each violative call; and a simple mathematical
calculation leads to the appropriate judgment amount.11 While such a judgment is no
doubt appropriate, the Court concludes in its discretion that the better course in this case
is to take a different approach that takes into account the uncertainties in some of the data
about class membership.
Few contested class actions of this type have reached this stage, so there is little
guidance for the Court. The two most helpful cases are Barfield v. Sho-Me Power
Electric Co-op., 309 F.R.D. 491 (W.D. Mo. 2015), vacated on other grounds, 852 F.3d
795 (8th Cir. 2017), and Exxon, 157 F. Supp. 2d 1291.
In Barfield, the jury awarded a verdict of $79 million on behalf of a class because
of Sho-Me Power’s unauthorized use of property easements to lay commercial fiber optic
cable. See 309 F.R.D. at 492. Like Dish, Sho-Me Power asserted a due process right to
11
See Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir. 1985) (Once there is a final
judgment, “calculating the actual amount owed each class member . . . is not the resolution of a
separate claim but merely the disbursement stage.”).
11
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 11 of 28
participate in the claims process and to contest claims. The court rejected this assertion
and held that, because the jury had created an “aggregate damage fund,” the defendant
“has no interest in how the Plaintiffs apportion and distribute the damage fund among
themselves.” Id. at 499; see also In re Urethane Antitrust Litig., No. 04-1616-JWL, 2013
WL 3879264, at *3 (D. Kan. July 26, 2013) (“[A]lthough Dow has an interest in making
sure that the judgment against it is proper, the Court agrees with plaintiffs that Dow has
no interest in the particular manner in which the total damages found by the jury are
distributed among the class members.”), aff’d, 768 F.3d 1245, 1269 (10th Cir. 2014).12
In Exxon, a court chose not to use a per-violation jury verdict to calculate an
aggregate damages figure. Classes of individual gas station dealers alleged that the way
Exxon accounted for credit card processing fees had violated a good-faith clause in their
gas supply contracts. Exxon, 61 F. Supp. 2d 1308, 1311-13 (S.D. Fla. 1999). The jury
returned a special verdict in favor of the dealers and determined class damages on a
cents-per-gallon basis. Exxon, 157 F. Supp. 2d at 1297. The plaintiffs asked for a final
judgment setting out a total amount of class damages based on Exxon’s internal sales
records, from which class members would be paid. Id. at 1295, 1297. The court found
that calculating total compensatory damages was “straight-forward,” but the individual
payments to class members were complicated by state law statutes-of-limitations issues,
prejudgment interest, and by Exxon’s assertions of set-offs. See id. at 1308-09, 1313,
12
The court adopted a plan similar to the one in Barfield. See In re Urethane Antitrust Litig.,
No. 04-1616-JWL, 2013 WL 3879264, at *2-3 (D. Kan. July 26, 2013), aff’d, 768 F.3d 1245
(10th Cir. 2014).
12
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 12 of 28
1322. Because there were thousands of plaintiffs and because of these individual
adjustments, the court declined to calculate a total, aggregate damages amount. Id. at
1299-301.
This case is not exactly like either Barfield or Exxon. The jury here issued a perviolation damages award, like the cents-per-gallon award in Exxon and unlike the total
damages award in Barfield. Unlike in Exxon, however, there are no complicated
individual issues, such as set-offs or state law questions, that affect application of the
jury’s damage award to individual class members, and the total damages amount is easy
to calculate using simple multiplication.
In addition, neither of those cases dealt with the issue in this case about identifying
who some of the class members are. On one hand, there are many class members fully
identified by the various sources of name and address information used in these
proceedings and for whom there can be no legitimate dispute about their membership in
the class.13 On the other hand, there are a few phone numbers that the plaintiffs have not
yet linked to any particular name or address. In between these two extremes are
situations where the name and address information is either incomplete or inconsistent.
The Court is not inclined to enter judgment against Dish now for damages to be
awarded to persons who are yet unidentified, and this fact alone augurs against an
aggregate damages award. Dish has presented evidence that close to 3,700 of the
13
For example, there are class phone numbers for whom the names and addresses in the
Five9 data match the name and address information from LexisNexis, and for which the
plaintiffs successfully delivered a class notice postcard.
13
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 13 of 28
telephone numbers did not have complete identifying name information or the
information is inconsistent, see Doc. 340-2 at ¶ 5, and the parties appear to agree that the
accuracy of the Five9 data about names and addresses is not guaranteed. See Docs. 335
at 18; see Doc. 337 at 14-15. Dish has had no opportunity to challenge the attribution of
names and addresses to particular individual phone numbers,14 and some persons may
have been incorrectly identified as class members. Dish has repeatedly asserted its
intention to challenge individual class membership, e.g., Doc. 129 at 10-11; Doc. 231 at
43:9-44:5; Doc. 330 at 8, and the Court has indicated that Dish would have some
opportunity to do so. See, e.g., Doc. 204 at 112:21-113:13; Doc. 231 at 75:13-:25; Trial
Tr. Jan. 17, Doc. 305 at 159:25-160:11.
As a matter of fairness and “basic due process,” in a class action not resolved by
settlement, a defendant who will ultimately pay damages to class members has a right to
participate in claims administration and “to object and oppose any unfounded or incorrect
claim.” Exxon, 157 F. Supp. 2d at 1324. Apart from any element of liability, Dish has an
interest in not paying damages to persons who are not proper class members, which
aligns with the Court’s interest in insuring that only class members receive damages
awards.
For these reasons, the Court will not enter an aggregate judgment against Dish in
the amount of $61 million and instead will require a claims administration process that
Dish has also contended that it lacked complete access to the details of how the plaintiffs’
expert identified names and addresses for the phone numbers where Five9 had no name and
address information. See Doc. 335 at 19.
14
14
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 14 of 28
gives Dish the opportunity to reasonably challenge individual claims to class
membership.
IV.
Class administration
Class administration should be simple and straightforward. In class actions,
“courts must use their discretion, and in many cases their ingenuity, to shape decrees or
to develop procedures for ascertaining damages and distributing relief that will be fair to
the parties but will not involve them in an unduly burdensome administration of the
award.” 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1784 (3d ed. 2017). Courts should “shape the remedy to meet
the exigencies of each case and difficulties in administration should not be allowed to
destroy the usefulness of the class-action procedure.” Id. “The goal of any distribution
method is to get as much of the available damages remedy to class members as possible
and in as simple and expedient a manner as possible.” William B. Rubenstein, Newberg
on Class Actions § 12.15 (5th ed. 2017).
If a claim form is necessary, “the claiming process should be as simple,
straightforward, and nonburdensome as possible.” Id. at § 12.21. “Be careful to avoid
claim forms that scare class members away with confusing questions and onerous proof
requirements.” Barbara J. Rothstein & Thomas E. Willging, Managing Class Action
Litigation: A Pocket Guide for Judges 30 (3d ed. 2010).
A.
Overview of process
Upon motion of the parties, the Court will appoint a claims administrator who
shall oversee and manage the claims process. The claims administrator shall mail claim
15
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 15 of 28
forms to all potential class members and shall otherwise publicize the claims process and
make claim forms available. The claims administrator shall receive completed forms,
make copies available to the parties, and undertake other responsibilities as directed by
the Court.
When individual claim forms do not raise a dispute, the parties will submit such
individual claims to the Court for judgment. The Court will establish a reasonable
summary procedure for resolving disputed claims after hearing further from the parties.
Upon motion of the plaintiffs as to any group of class members who are identified
fully and without contradiction in the existing data, the Court will consider entry of
judgment in favor of such class members regardless of whether those individuals
complete claim forms. To the extent the Court enters judgment for class members who
do not submit claim forms, the administrator shall oversee and manage the process of
updating addresses, obtaining any needed information from these class members, and
mailing checks. As to class members not part of a group judgment, individual claim
forms will be required from these class members before the Court will enter judgment.
B.
Claims administrator
The parties shall confer about an appropriate claims administrator, and if they
agree, they shall file a joint motion no later than September 6, 2017. If the parties do not
agree, each side shall file a motion for appointment of a claims administrator on or before
September 8, 2017, where each side shall suggest at least two entities or persons
qualified, willing, and able to serve.
16
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 16 of 28
C.
Distributing claim forms and publicizing the claims process
Once appointed and as soon as the claim form is approved by the Court, the claims
administrator shall send a claim form to all potential class members. As a starting point,
the claims administrator shall use the mailing list generated by the plaintiffs during the
class notice process. See Doc. 153 at 2.15 The claims administrator shall update
addresses as needed and appropriate. For the remaining class members, the administrator
may use additional databases to identify potential class member names and addresses,
potentially including, but not limited to, the TransUnion, Experian, and MicroBilt
resources. The claims administrator shall make information available to the parties
concerning the source of information used to identify these names and addresses.
The administrator shall also make claims information, including blank claim
forms, available using a case-dedicated website and press releases, in the same manner as
in the class notice process. See id. at 2-3. The website shall provide public information
about the lawsuit and its current status.
D.
Claim form and communications to class members
The claim form or cover letter shall summarize the proceedings so far and provide
the internet address for the case-dedicated website. The administrator will customize the
mailed claim form for each claimant to include the phone number on the Registry, the
number of violations, and the potential maximum damages amount associated with that
phone number, subject to appeal, costs, and attorney’s fees. Recipients who are not the
15
Both parties suggested beginning the claims process with this mailing list. Doc. 330 at 11;
Doc. 331 at 4.
17
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 17 of 28
proper claimant shall be encouraged to forward the claim form to the proper class
member, if known to the recipient, or to inform the class administrator of any other
means to contact that class member. The deadline for claim submission shall be
prominently stated.
The claim form shall include a place for the claimant’s name and contact
information, along with any other needed personal identification information. Claimants
shall affirm that the phone number was theirs or their household’s during the class period,
and shall be asked to attach a document, such as a phone bill, showing that they, or their
household, paid for or used the phone number at a time within the class period. If such
documentation is unavailable, the claimant shall identify the provider of his or her phone
service during the class period and will be encouraged to provide other documentation
that supports his or her claim. Such documentation might include, for example, a phone
bill dated outside the class period.
The Court directs the parties to confer about the exact format of the claim form
and any cover letter or other communication giving instructions to class members,
keeping in mind that the claim form should be both fair and as simple as possible.16 The
parties shall also confer about an appropriate deadline for submission of claims. The
Court hopes for and expects a consent proposal, but if the parties cannot reach full
Dish’s proposed claim form, Doc. 329-1 at 2-3, is inordinately complex and includes many
demands for information as to issues which have already been decided. The Court cautions Dish
that if it continues to attempt to re-litigate matters already decided, such as the issue of
residential use, as part of the claims process, the Court will consider limiting Dish’s role in the
claims process.
16
18
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 18 of 28
agreement, the parties shall file a joint submission identifying areas of disagreement
along with dueling proposed orders. The parties shall filed the consent proposal or joint
submission no later than August 28, 2017.
E.
Claims process
1.
Entry of judgment without a claim form
There are likely many persons whose membership in the class—and entitlement to
a damages award—cannot reasonably be disputed. See supra note 13. The plaintiffs may
move for judgment in favor of any such group17 of class members who are identified
fully and consistently in the existing data, for whom there is no contradictory
information, and as to whom the evidence is the same.18 Should the Court grant such a
motion, receipt of a completed claim form will not be necessary for entry of judgment as
to these class members.
If the plaintiffs decide not to file any such motion, they shall advise the Court and
Dish of that decision no later than September 15, 2017. If the plaintiffs decide to file a
group judgment motion, by that same date they shall provide Dish with a full list of any
such class members’ names, addresses, phone numbers, and the source(s) of that
17
The Court uses singular language here, but more than one group may be appropriate. To
the extent the evidence is different, the plaintiffs should group the purported class members—
similar to the “buckets” on the verdict sheet at trial, Doc. 292 at ¶ 2—and put each group in a
separate motion.
18
The plaintiffs suggested something like this approach as an alternative. See Doc. 334 at
11. The Court will not, at a minimum, entertain such a motion for any of the class members that
have truly inconsistent name and address information, see Doc. 335-1 at ¶¶ 13-14, nor the
numbers for which notice postcard delivery was unsuccessful. See Doc. 331-1 at ¶¶ 6-7.
19
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 19 of 28
information, along with a proposed draft judgment. No later than October 2, 2017, Dish
shall communicate in writing any general objections it has about the list, along with any
specific objections to the status of any individual on the list as a class member and any
evidence Dish has indicating that the particular class member should not be included in
the proposed judgment. No later than October 16, 2017, the parties shall meet and confer
in an effort to identify and narrow any disputes so that individual issues are not included
in the plaintiffs’ motion and so that the briefing will be of optimal assistance to the Court.
No later than November 1, 2017, the plaintiffs shall either file a motion for judgment for
this group of class members or notify the Court and Dish that it has decided not to file the
motion.
Dish has objected to any process that does not require some sort of individual
claim by class members, contending that the Court had previously indicated that a claims
process would be “required.” E.g., Doc. 335 at 10. In its previous statements, the Court
made no decisions on post-trial procedures or identity of class members. Doc. 260 at
75:11-:12 (“I’m going to put that off.”).19 Among the statements cited by the defendant,
See Doc. 231 at 75:16-:20 (“[I]f there are individual challenges for particular people under
particular circumstances, you know, we can identify those. If there is a couple of hundred of
them, we’ll figure out how to deal with them, should the plaintiffs win.”), 78:20-:23 (“[T]here
may be individuals or particular phone numbers where you have particular challenges and that
we need to figure out a way for those to be resolved.”). At the final pretrial hearing, the Court
made clear that it was making no final decision about post-trial procedures. While the Court
expressed skepticism about whether Dish should pay damages if no class member can be found
for a particular phone number, the Court was explicit that that decision was “tentative.” Doc.
260 at 75:12-:22.
Dish also mentions other statements by the Court that were tentative and provided no
promises or a rulings about how post-trial proceedings would work. Some statements merely
forecasted future decisions that the Court would need to make. E.g., Doc. 204 at 113:2-:6; Doc.
19
20
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 20 of 28
only once did the Court state that post-trial proceedings were affirmatively necessary.
Trial Tr. Jan. 17, Doc. 305 at 158:23-159:24 (“[W]e’ll have some posttrial proceedings of
some sort so that Defendant can present any individual issues and so we can also figure
out, you know, who gets the money.”). Even that statement indicated that such
proceedings would be held only when Dish raised individual issues, and it made no
specific guarantees about what the process would be.
In any event, the claims administration process outlined herein does not conflict
with those or any other previous statements by the Court during this case. Indeed, the
Court anticipates providing a mechanism for Dish to be heard when it has actual evidence
to indicate that an individual claimant is not a class member.
2.
Individual claims
Beyond those persons identified fully and without contradiction in the existing
data, the Court will follow generally the model set forth in Exxon, which allowed the
defendant to participate in the process of identifying class members. See 2006 WL
1132371, at *3. Given the uncertainties about the identification of some class members
and their addresses and the passage of time, a simple claim form and claims
242 at 1 (class membership “can be resolved post-trial using procedures to be determined later”).
At other times, the Court excluded evidence at trial without determining whether those issues
could arise after trial. See Doc. 231 at 79:25-80:3 (“I’m not interested in being surprised during
the trial with individual—with requests for individual issues on the verdict sheet.”). Other
statements were hypotheticals meant to elucidate a party’s argument. E.g., id. at 64:17-71:18
(discussion that ends with the Court’s statement that “[w]e have got to finalize these things at
some point,” but not ruling on the issue). Dish also cites some of plaintiffs’ counsel’s statements
during these discussions, Doc. 335 at 10, but these statements were an attempt to explore
potential courses of action and did not concede anything or bind the parties to any particular
post-trial procedure. See, e.g., Doc. 231 at 64:3-:6.
21
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 21 of 28
administration process is appropriate for these claimants, to protect both Dish’s rights and
the integrity of the distribution of damages awards. Considering the amounts of the
damage awards, which at a minimum will be $2,400 per class member before costs and
attorney’s fees, it is not unduly burdensome for a claimant to fill out a short claim form
that asks for basic information about their phone line.
As completed claim forms are received, the claims administrator shall make copies
available to the parties. The parties shall confer about the claims. Some completed
forms will clearly establish a claimant’s status as a class member. When that is the case,
the plaintiffs may move for judgment on that class member. Others will no doubt be
facially insufficient, and when the parties so agree, the claims administrator shall deny
the claim.
The Court anticipates that some claims will raise substantial questions about
whether a claimant is a class member, that there may sometimes be two claimants for the
same phone number, and that there may be other individual disputes or problems relevant
to distribution of damages and entry of judgment. For those claims, a summary decision
process will be needed, either by the claims administrator or a special master.20
The Court does not anticipate allowing either party any individual discovery of the
kind contemplated by the Rules of Civil Procedure directed to any claimant. If the
completed claim form is inadequate, it will be denied. If it is adequate, it will be granted.
20
It is possible that there will be some categories of claims involving similar evidence for
large numbers of claimants as to which the Court may need to make the decision, and the parties
should include this possibility in their discussions. Beyond entry of judgment, the Court does
not expect to be involved in ordinary, individual claims resolution.
22
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 22 of 28
That said, the claims administrator should give an individual claimant a second chance to
fill out an incomplete form. Where circumstances raise a question about whether the
claimant is a class member, the claims administrator can seek additional specific
information from a particular claimant by mail, email, phone, text, or other reasonable
means in order to give the claimant a full opportunity to establish class membership. The
Court does not absolutely rule out individual discovery should there be an unusual
circumstance in an individual situation, but in the ordinary case it would be unduly
burdensome and is unnecessary to a fair decision.
After hearing further from the parties, the Court will enter an order establishing
specific procedures for entering judgment and resolving disputes. To that end, the parties
shall confer about the specifics of a process for obtaining entry of judgment for
undisputed claimants. They shall also confer about an appropriate schedule and
mechanism for making and resolving objections to a claimant’s status as a class member
and for obtaining judgment for claimants whose class-member status is resolved. After
conferring generally and no later than October 2, 2017, the parties shall exchange
proposals. They shall meet and confer again in an effort to reduce and narrow areas of
disagreement, continuing to exchange proposals as is productive. The parties shall file a
joint submission no later than November 15, 2017. The joint submission shall identify
the areas of agreement and disagreement.
V.
Unclaimed damage awards
The plaintiffs contend that Dish should have to pay any and all unclaimed damage
awards and that no unclaimed damages should revert to Dish. Doc. 337 at 16-18. To the
23
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 23 of 28
extent this simply restates the argument that the Court should enter judgment now for $61
million, the Court rejects it for reasons previously explained. See supra pp. 13-15.
It is possible that there will be damages awards unclaimed by class members. As
noted, the plaintiffs may file a motion to enter judgment in favor of some class members
whose identities were consistently established by the call records and databases without
contradiction, without requiring claim forms. The Court may grant such a motion. If that
happens, it is likely that some of these folks will have moved or otherwise become “lost,”
and a few may not cash the check. The plaintiffs contend that Dish should not get this
money back through a reversion and that the money should be distributed otherwise by cy
pres or some other means.
No doubt there is something unfair about Dish avoiding payment of damages for
proven, willful violations of the law, a result that is certain to happen to some extent
under the process established by this order. Moreover, Congress designed the TCPA’s
damages provisions, in part, to deter violations. Hannabury v. Hilton Grand Vacations
Co., 174 F. Supp. 3d 768, 776 (W.D.N.Y. 2016). That deterrent effect weakens if Dish is
off the hook for damages owed to injured class members who cannot be found.
However, the actual amount of unclaimed funds is unknown at this point. Given
that the plaintiffs seek an equitable cy pres distribution of those funds determined in the
Court’s discretion, see Doc. 337 at 16-18, the relative amount of those funds may be
relevant to the Court’s decision on what to do with them. To the extent the decision is an
equitable one, Dish’s conduct during the claims administration process may be
appropriate for consideration.
24
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 24 of 28
If and when the plaintiffs move for judgment for certain class members in a
subgroup, if and when the Court grants such a motion, and if and when it becomes clear
that some damages awards cannot be delivered to the class members, the Court will be
open to consideration of this issue.
VI.
Interlocutory appeal
The claims process is likely to take some months and to require resources by the
parties and the Court. While it is going on, it would appear that there is no just reason to
delay final judgment as to all issues the Court has finally decided, and pursuant to Rule
54(b), the Court intends to certify the case for interlocutory appeal. Subject to the
Court’s decision on Dish’s recently filed motion for judgment as a matter of law and
remittitur, Doc. 346, the Court expects to, at a minimum, certify the class certification
issue, the Spokeo issue, the sufficiency of the evidence issue, and the Court’s decision not
to enter judgment against Dish in the amount of $61 million. See Doc. 111; Doc. 218 at
1-4; Doc. 341; supra pp. 13-15. There may be other issues appropriate for certification.
The parties shall confer and the Court will look for a motion, motions, or a joint motion
for a Rule 54(b) judgment on specific issues no later than fourteen days after the Court
rules on Dish’s recent motion filed at Doc. 346, subject to further order of the Court. If
no party files such a motion, the Court directs the parties to file a joint submission
explaining why a Rule 54(b) judgment is not appropriate, limited to 6,000 words and with
no individual briefs or responses allowed.
25
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 25 of 28
VII.
Other matters
The parties shall confer about other matters requiring resolution that may require a
scheduling order, such as motions for attorney’s fees and costs, and shall file a joint
submission no later than August 31, 2017.
VIII. Conclusion
An aggregate judgment in the full amount is inappropriate in this case in light of
the particular circumstances and inability to presently identify all class members. The
plaintiffs may move for judgment for any group of class members who are identified
fully and without contradiction in the existing data. Beyond that, claimants must submit
a completed claim form, Dish will have a reasonable opportunity to raise concerns about
whether a particular individual is a class member, and when appropriate, the Court will
enter individual judgments.
It is ORDERED that:
1. The defendant’s motion for post-trial procedures, Doc. 329, and the plaintiffs’
requests for post-trial procedures, Doc. 331, are GRANTED in part and
DENIED in part as stated herein.
2. The parties shall confer as directed and file such motions and submissions as
are required by this order, as summarized in the Appendix.
3. Unless stated otherwise in this order, the time frame and word limits for
briefing are those set forth in the Local Rules.
4. For all matters where joint submissions are required, the joint submission shall
specifically state areas of agreement and disagreement and shall include
26
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 26 of 28
proposed orders, if applicable. If the parties do not reach full agreement, each
party may file a brief at the time of the joint submission addressing areas of
disagreement. In view of the degree of advance consultation required, the
Court expects the parties to address all issues in the initial briefs, which are
limited to 6,000 words. The parties may file short response briefs no longer
than 2500 words within ten days, if necessary, and no reply briefs are allowed.
This the 27th day of July, 2017.
__________________________________
UNITED STATES DISTRICT JUDGE
27
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 27 of 28
APPENDIX
Date
Event to occur on or before that date
Fourteen days after the
Court rules on Doc. 346
Motions or joint submission on issues for interlocutory appeal
August 28, 2017
Parties confer and submit consent proposal or joint
submission on claim form, claims deadline, and instructions
to class members
August 31, 2017
Joint submission on all remaining matters requiring a
scheduling order
September 6, 2017
Joint motion for appointment of claims administrator, if
parties agree
September 8, 2017
Individual motions for appointment of claims administrator, if
parties do not agree
September 15, 2017
Plaintiffs provide Dish with list of class members in any
group for which the plaintiffs intend to file a group motion for
judgment before claims process; if they will not file such a
motion, plaintiffs advise Dish and the Court
October 2, 2017
Exchange proposals for procedures for adjudicating
individual claims disputes; parties shall confer before and
after this exchange
October 2, 2017
Dish provides plaintiffs with any objections to class members
in proposed group judgment and any evidence for those
objections
October 16, 2017
Parties meet and confer about class members in proposed
group judgment
November 1, 2017
Plaintiffs file group motion(s) for judgment
November 15, 2017
After conferring as needed, joint submission on procedures
for adjudicating individual claims disputes
28
Case 1:14-cv-00333-CCE-JEP Document 351 Filed 07/27/17 Page 28 of 28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?