RICHMOND, Va. – An opinion by the 4th U.S. Circuit Court of Appeals has left fluid just who can be part of a class action, leaving unanswered the question of how to identify members, a defense attorney says.
The case involves Thomas Krakauer who sued Dish Network under the federal Telephone Consumer Protection Act (TCPA), claiming he received multiple calls from a Satellite Systems Network (SSN) trying to sell him Dish Network services. His lawsuit claimed his phone number was on a do-not-call list.
The U.S. District Court for the Middle District of North Carolina certified the class and denied a Dish Network motion to dismiss on the basis that most members were not injured. The case proceeded to trial and a jury decided SSN was acting as an agent for Dish Network and had made multiple calls. It awarded damages of $400 per call.
Esther Slater McDonald | Seyfarth Shaw
This amount was trebled to a total award of approximately $61 million because Dish Network acted "willfully and knowingly." The satellite company appealed to the 4th Circuit Court of Appeals, arguing that it was not clear who was injured and that Dis Network did not control the actions of SSN.
Esther Slater McDonald, an attorney with Seyfarth Shaw who analyzed the case, said that while the contract between Dish Network and SSN stated that SSN was not an agent, the court found that the satellite company was controlling the actions of the service seller.
"This was fact driven," McDonald told the Cook County Record. For example, evidence indicated Dish Network was involved in settling lawsuits with various state attorneys general over the same alleged practices.
"That is what hurt Dish," McDonald said.
But there are serious issues relating to exactly who has standing in a class action, McDonald said, adding that Dish Network argued that while a subscriber may be included, it was not known who was at the other end of a particular call.
The other issue of concern is the trebling of damages, McDonald said. Both of these questions – who is a class member and the damages – could form the basis of an appeal to the U.S. Supreme Court, she said.