303 F.R.D. 390
D. Colo.2014Background
- Plaintiff Mathew Donaea sued Dish under the TCPA for nine unsolicited telemarketing calls he received between 2007–2009, seeking class treatment for larger groups who received Dish-related calls.
- Key legal questions: (1) whether Dish “initiated” calls (and thus is directly liable) and (2) whether Dish can be vicariously liable for calls made by dealers/third‑party telemarketers.
- The FCC issued an interpretive ruling (May 9, 2013) holding that “initiate” means physically placing the call but that sellers can be vicariously liable under federal common‑law agency theories.
- On summary judgment the court found no evidence Dish physically initiated five of the nine calls and granted summary judgment as to those; four prerecorded calls survived summary judgment because evidence could support vicarious liability.
- Donaea’s revised class definition relied on phone numbers/dates tied to several dealers and calling platforms, but the court found serious ascertainability, typicality, predominance, and superiority problems and denied class certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dish "initiated" the calls | Donaea contended calls promoted Dish and sought to hold Dish responsible | Dish argued "initiate" means the party that physically places the call; Dish did not place these calls | Court adopted FCC view: Dish did not "initiate" the calls; summary judgment granted as to five calls |
| Whether Dish can be vicariously liable for calls by dealers/telemarketers | Donaea urged vicarious liability (agency/apparent authority/ratification) for several calls | Dish argued it lacked control/agency and no evidence links Dish to many calls | Court recognized vicarious liability theory under FCC precedent but denied summary judgment for four calls where evidence could support agency |
| Class ascertainability and representative status | Donaea attempted to define classes by CID/ANI, dates, and dealers to include similarly situated recipients | Dish argued class was overbroad and Donaea was not a member of the proposed class(es) | Court held Donaea was not a member of the proposed class(es); classes were not ascertainable and denied certification |
| Predominance (consent affirmative defense) and superiority | Donaea argued common issues predominate and class adjudication is appropriate | Dish showed evidence (e.g., consent forms/lists) that individualized consent issues would predominate and highlighted manageability/superiority concerns | Court found individualized consent issues (and other individual inquiries) defeat predominance and superiority, so Rule 23(b)(3) not satisfied |
| Motion to strike new arguments/exhibits in plaintiff's reply | Dish asked to strike new evidence presented in reply (e.g., LA Activations materials) | Plaintiff relied on that reply evidence to support parts of the proposed class | Court considered the reply materials, found they did not change the outcome, and denied the motion to strike |
Key Cases Cited
- Charvat v. EchoStar Satellite, 630 F.3d 459 (6th Cir. 2010) (addressed TCPA "initiate"/FCC referral issues)
- Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213 (10th Cir. 2013) (plaintiff bears burden on Rule 23 requirements)
- Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013) (Rule 23(b) requirements and standards)
- Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) (ascertainability and administrative feasibility of class membership)
- D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188 (10th Cir. 2010) (typicality standard under Rule 23(a)(3))
- Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008) (consent as an affirmative defense can defeat predominance in TCPA/fax class cases)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (limitations on inferring commonality/predominance at certification)
- Ira Holtzman C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 2013) (noting TCPA cases may often be certified, context‑dependent)