Dish TCPA Class-Action Fight Now Focused on Enhancement of Jury Award

Dish Network and plaintiffs in a Telephone Consumer Protection Act (TCPA) class-action claim are clashing over attempts to enhance a jury award in favor of the plaintiffs. Dish, by not addressing the FCC's standard for willfulness in its closing arguments, effectively is conceding its TCPA violations were willful and thus the court has the discretion to enhance the jury's award, the plaintiffs said in a trial brief (in Pacer) filed Monday in U.S. District Court in Greensboro, North Carolina. Dish also didn't address a 4th U.S. Circuit Court of Appeals precedent that willfulness doesn't require bad purpose or intent and can come from repeated failure to follow the law, the plaintiffs said, saying Dish's argument the company had to have actual knowledge of each element of the claim is unsupported in law. Plaintiffs said Dish's opposition to an enhanced jury award "is based on alternative facts and arguments" the jury rejected, such as that Dish dealer Satellite Systems Network (SSN) was an independent contractor, contrary to the jury's findings. Dish's brief (in Pacer) said the jury verdict against it lacks a legally sufficient evidentiary basis, and it will move for a new trial and file a motion for judgment as a matter of law. Dish said the plaintiffs didn't show that it and SSN agreed to form any agency relationship, that Dish had any authority over SSN's behavior, or that the calls in question were actually TCPA violations. With SSN's five calls to named plaintiff Thomas Krakauer going against Dish's express written instructions to SSN to not call him again, the verdict can't stand, Dish said. The 11th Circuit's 2015 ruling in Lary vs. Trinity Physician made clear the standard for willful or knowing TCPA violations: the plaintiff proving the defendant knew it was doing something that violated the statute, Dish said, saying courts rejected the alternative standard the Krakauer plaintiffs are pushing. A 10-person jury last month awarded class members $400 per TCPA violation and plaintiffs are seeking a court enhancement to increase the award to $1,200 per violation.