DOJ, FTC Dueling With Infinity Over Declaration in Dish TCPA Suit

Telemarketer Infinity Sales Group and DOJ and FTC are at odds over whether an Infinity executive's declaration can be part of the record in a Telephone Consumer Protection Act lawsuit against Dish Network. In an opposition (in Pacer) filed Friday in U.S. District Court in Springfield, Illinois, the government said Infinity can't and shouldn't be allowed to file documents in a case in which it's not a party. The agencies said Infinity Senior Vice President-Sales Josh Slater was subpoenaed by Dish in October and an Infinity attorney on Thursday filed a notice of appearance that included a Slater declaration in which he gave information he didn't offer during trial testimony. Since Infinity isn't a party and hasn't intervened, its lawyers "cannot simply appear in the case and start making filings," DOJ and FTC said. Even if Infinity had moved to intervene, the agencies said, that would have been untimely because it knew for years that its conduct as a sales agent could be at issue during the Dish trial, but "did nothing about it until more than a month after the actual parties to the case rested after a five-week trial." In its motion (in Pacer), Infinity said that during Slater's cross-examination, the government ignored his testimony that the government-sought injunction would put Infinity out of business and focused on "a surprise smear campaign against Infinity's reputation" about the company's prior relationship with a person who was subject of unrelated, non-TCPA criminal actions. The government used documents never produced to Infinity or Dish, leaving Infinity unable to respond, it said, seeking leave to file Slater's declaration.