Dish Allowed To Pursue Mistake-of-Law Defense in FTC Robocalls Suit

Dish Network, as part of its defense against robocall claims, can pursue a mistake-of-law argument, but it can't use any information not also previously provided to plaintiffs, a federal judge in Illinois ruled in an opinion filed Thursday. U.S. District Judge Sue Myerscough of Springfield partially granted and partially denied motions brought by the FTC and California, Illinois, North Carolina and Ohio in their 2009 lawsuit, in which they allege violations of the telemarketing sales rule as Dish helped dealers use robocalls to deliver prerecorded messages (see 0903260144). In her opinion, Myerscough said Dish didn't initially bring up a mistake-of-law defense in its answer to the complaint, but the company's argument at summary judgment that when the calls were being made, the FTC allowed prerecorded calls to people with established business relationships to the company, "provided ... some notice of Dish's mistake-of-law defense." However, Dish can't use any evidence not provided to the plaintiffs in discovery unless it can show that failure "was substantially justified or harmless," Myerscough said.