As we previously reported, last year the United States District Court for the Middle District of North Carolina trebled a jury verdict against DISH Network L.L.C., resulting in a $61 million damages award.  Following the jury verdict, the Court asked class counsel to devise a means for identifying class members.

DISH’s records, referred to as the “Five9/SSN records,” were used as a means of identifying the approximately 180,000 class members whose phone numbers were on the National Do Not Call Registry.  In November 2017, plaintiff Thomas Krakauer moved for entry of judgment as to 11,471 persons, “contending their class membership cannot reasonably be disputed based on the existing data.”  DISH argued in opposition that only 221 class members existed for which there were no evidentiary conflicts as to their identity or entitlement to judgment.

On January 25, the Court granted Krakauer’s motion, with two small exceptions, and held that the identities of the class members are not reasonably subject to dispute: “Dish has been found liable for willfully violating the TCPA 51,000 times, and the Five9/SSN records identify in overwhelming numbers the persons Dish’s agent attempted to solicit on Dish’s behalf.”

Throughout its opinion, the Court repeatedly admonished DISH for its alleged “lack of respect” to the Court and “its continuing repetition of long-rejected arguments, and its attempt to obfuscate the issues, confuse the record, and shift arguments and facts.”  The Court concluded that “[r]esolving uncertainties as to the remaining 7000 or so class members need not consume an irrational amount of resources by the Court, the parties, and the Claims Administrator in order to make reasonable decisions.”

We will continue to monitor the case.