THOMAS H. KRAKAUER, on behalf of a class of persons, Plaintiff - Appellee,
DISH NETWORK, L.L.C., Defendant-Appellant. DRI-THE VOICE OF THE DEFENSE BAR; PRODUCT LIABILITY ADVISORY COUNCIL, INCORPORATED, Amici Supporting Appellants.
Argued: May 9, 2019
from the United States District Court for the Middle District
of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cv-00333-CCE-JEP)
Joshua Rosenkranz, ORRICK, HERRINGTON & SUTCLIFFE, LLP,
New York, New York, for Appellant.
William Barrett, BAILEY & GLASSER LLP, Charleston, West
Virginia, for Appellee.
A. Bicks, Elyse D. Echtman, John L. Ewald, Christopher J.
Cariello, New York, New York, Eric A. Shumsky, Kelsi Brown
Corkran, Jeremy R. Peterman, Washington, D.C., Paul David
Meyer, ORRICK, HERRINGTON & SUTCLIFFE LLP, San Francisco,
California, for Appellant.
A. Glasser, BAILEY & GLASSER LLP, Charleston, West
Virginia; Deepak Gupta, Jonathan E. Taylor, GUPTA WESSLER
PLLC, Washington, D.C., for Appellee.
Richard D. Kelley, BEAN KINNEY & KORMAN, Arlington,
Virginia; Deirdre A. Fox, Stephanie Scharf, SCHARF BANKS
MARMOR LLC, Chicago, Illinois, for Amicus Product Liability
M. Axelrad, Felix Shafir, HORVITZ & LEVY LLP, Burbank,
California; John F. Kuppens, President, DRI-THE VOICE OF THE
DEFENSE BAR, Chicago, Illinois, for Amicus DRI-The Voice of
the Defense Bar.
WILKINSON and KING, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of
West Virginia, sitting by designation.
WILKINSON, CIRCUIT JUDGE
enacted the Telephone Consumer Protection Act (TCPA) to
prevent abusive telephone marketing practices. As part of
this effort, the TCPA prohibits calls to numbers on the
national Do-Not-Call registry. Dr. Thomas Krakauer brought
suit against Dish Network, alleging that its sales
representative, Satellite Systems Network (SSN), routinely
flouted this prohibition. He sought to pursue his claim on
behalf of all persons who, like him, had received calls on
numbers listed in the Do-Not-Call registry. The district
court certified the class and the case went to trial, where
Dish ultimately lost. Dish now appeals, raising several
objections to the proceeding below. Because we hold that the
district court properly applied the law and prudently
exercised its discretion, we affirm.
is big business, especially for television providers. Calls
made on behalf of cable and satellite television companies
have become ubiquitous. Many Americans are now accustomed to
the standard sales pitch, asking them to make an upgrade or
take advantage of a limited time offer. These calls are
obviously effective, as consumers spend billions of dollars
each year on television services marketed over the phone.
calls are also intrusive. A great many people object to these
calls, which interfere with their lives, tie up their phone
lines, and cause confusion and disruption on phone records.
Faced with growing public criticism of abusive telephone
marketing practices, Congress enacted the Telephone Consumer
Protection Act of 1991. Pub. L. No. 102-243, 105 Stat. 2394
(1991) (codified at 47 U.S.C. § 227 (2012)). As Congress
explained, the law was a response to Americans "outraged
over the proliferation of intrusive, nuisance calls to their
homes from telemarketers," id. § 2(6), and
sought to strike a balance between "[i]ndividuals'
privacy rights, public safety interests, and commercial
freedoms," id. § 2(9). To meet these ends,
the TCPA first imposed a number of restrictions on the use of
automated telephone equipment, such as "robocalls."
47 U.S.C. § 227(b); see Mims v. Arrow Fin. Servs.,
LLC, 565 U.S. 368, 373 (2012). For in-person
telemarketing calls, on the other hand, the law opted for a
consumer-driven process that would allow objecting
individuals to prevent unwanted calls to their homes.
result of the telemarketing regulations was the national
Do-Not-Call registry. See 47 C.F.R. §
64.1200(c)(2). Within the federal government's web of
indecipherable acronyms and byzantine programs, the
Do-Not-Call registry stands out as a model of clarity. It
means what it says. If a person wishes to no longer receive
telephone solicitations, he can add his number to the list.
The TCPA then restricts the telephone solicitations that can
be made to that number. See id.; 16 C.F.R. §
310.4(b)(iii)(B) ("It is an abusive telemarketing act or
practice and a violation of this Rule for a telemarketer to .
. . initiat[e] any outbound telephone call to a person when .
. . [t]hat person's telephone number is on the
"do-not-call" registry, maintained by the
Commission."). There are limited exceptions. For
instance, a call does not count as a "telephone
solicitation" if the caller and the recipient have an
established business relationship, see 16 C.F.R.
§ 310.2(q), or if the recipient invited the call,
see 47 U.S.C. § 227(a)(4). Barring an
exception, however, telemarketers are expected to check the
list and avoid bothering those who have asked to be left
alone. In addition to the national registry, companies are
also expected to keep individual Do-Not-Call lists,
reflecting persons who have directly told the company that
they do not wish to receive further solicitations.
See 47 C.F.R. § 64.1200(d).
TCPA can be enforced by federal agencies, state attorneys
general, and private citizens. Mims, 565 U.S. at
370. Relevant to this appeal, the law allows a private right
of action for violations of the Do-Not-Call registry
regulations. Specifically, claims can be brought by "[a]
person who has received more than one telephone call within
any 12-month period by or on behalf of the same entity in
violation of the regulations prescribed under this subsection
. . . ." 47 U.S.C. § 227(c)(5). These private suits
can seek either monetary or injunctive relief. Id.
If damages are sought, the plaintiff is entitled to receive
the greater of either his actual loss or statutory damages up
to $500. Id. If the defendant's violation of the
law was willful and knowing, those damages can be trebled,
within the district court's discretion. Id.
"[T]he court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the
amount available under subparagraph (B) of this
private cause of action is a straightforward provision
designed to achieve a straightforward result. Congress
enacted the law to protect against invasions of privacy that
were harming people. The law empowers each person to protect
his own personal rights. Violations of the law are clear, as
is the remedy. Put simply, the TCPA affords relief to those
persons who, despite efforts to avoid it, have suffered an
intrusion upon their domestic peace.
Thomas Krakauer is just such a person. In May of 2009, he
started getting telemarketing calls, asking him to buy
services from Dish Network. These calls were placed by a firm
called Satellite Systems Network (SSN), whose entire business
model was to make calls like these on behalf of television
service providers. During the time that SSN was calling
Krakauer, the company only marketed Dish. J.A. 172. Krakauer
called Dish to complain about the calls, and he was placed on
the company's individual Do-Not-Call list. Fortunately
for Krakauer, he had registered his phone number on the
national Do-Not-Call registry in 2003. SSN's calls to him
were therefore not only annoying, they were illegal. In 2015,
Krakauer sued Dish Network for the improper calls under the
TCPA, seeking redress for the calls made on its behalf by
years since, this litigation has wound its way through an
array of pre-trial motions, a full jury trial, and a detailed
post-trial claims process. In September of 2015, the court
certified a class that closely followed the text of the TCPA,
allowing Krakauer to bring his claim on behalf all persons
(1) whose numbers were on the national Do-Not-Call registry
or the individual Do-Not-Call lists of either Dish or SSN for
at least 30 days and (2) received two calls in a single year.
J.A. 202-03. The court concluded that this definition
satisfied the requirements for class certification. A few of
the court's findings on this point are particularly
relevant for this appeal. First, the court held that the
class-wide issues raised by the plaintiffs were susceptible
to common proof. Id. at 191, 195-96. As the court
saw it, "[t]he essential elements of the class
members' claim can be proven at trial with common, as
opposed to individualized, evidence." J.A. 200. Looking
to our court's precedents, the district court also
concluded that the members of Krakauer's proposed class
could be easily identified. Id. at 178 (citing
EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir.
a year after the initial certification, Dish moved to dismiss
the entire case on the grounds that the class lacked Article
III standing. The court rejected this argument, holding that
"Dr. Krakauer's allegations show a concrete injury
to him and to each class member," J.A. 246, and allowed
the case to move forward. Prior to trial, the court granted a
motion to further narrow the class in response to new
class-wide data provided by the parties. Id. at
279-80. When the trial arrived, the court instructed the jury
to resolve three factual disputes. First, the jury had to
determine whether SSN was acting as Dish's agent at the
time that it made the improper calls. Second, it had to
determine whether SSN made, and the class members received,
multiple calls to numbers on the national Do-Not-Call
registry within a given period. Third, if it found that such
calls were in fact made, the jury was also asked to assign a
damages award for each improper call. Id. at 510-28.
the jury returned a verdict in favor of Krakauer and the
class plaintiffs. After finding that the telemarketing
practices violated the TCPA and that Dish was liable for the
calls placed by SSN, the jury awarded damages of $400 per
call. Id. at 508. Once the trial was complete, the
district court examined whether Dish's violations were
willful and knowing, as provided for in the statute. The
court found that they were, and trebled the damages award.
Id. at 549-50. Dish responded with a motion for a
new trial and renewed motion for judgment as a matter of law,
raising many of the arguments that had been rejected at the
class certification stage and in its earlier motions. All of
these arguments were rejected, and the court began to process
the class members' claims.
developing a process to ensure that the money went to the
right people, the parties presented wildly divergent
proposals to the court. Dish asked the court to require a
claims form for every single class member, even those for
whom the class-wide evidence clearly established a valid
claim. The plaintiffs on the other hand, asked for judgment
to be entered immediately and for checks to be mailed to
class members who had already responded to the class
solicitation, without the need for adversarial process. J.A.
court opted for a middle position, declining to enter an
immediate judgment and instead allowing Dish to participate
in the process and contest some individual claims.
Id. at 626. Under this process, the court would
appoint an administrator to oversee the distribution and
completion of individual claims forms. The court left open
the possibility that the plaintiffs could point to
"class members who are identified fully and without
contradiction in the data," for whom judgment without a
claims form would be appropriate. Id. at 628.
Applying this method, the district court granted judgment for
approximately 11, 000 plaintiffs without a claims form,
finding that their entitlement to damages was clear. J.A.
months later, and more than a year after the jury trial had
concluded, the district court entered a final judgment in the
case. In entering the order, the district court
noted that Dish had not participated in the claims process in
good faith, instead choosing to "bombard the court with
irrelevant and voluminous materials," "repeat
arguments the court has rejected many times," and
"seek a second bite at the apple when it loses on
grounds it could have raised the first time the apple was
presented." J.A. 685. Given the futility of continuing a
process that was only initiated to give Dish a seat at the
table, the court "conclude[d] ...