Exclaim Marketing, LLC v. DirecTV, LLC
134 F. Supp. 3d 1011
E.D.N.C.2015Background
- Plaintiff, a marketing company, sues defendant DirecTV for UDPA and common-law torts over defendant's investigation-driven calls to listings,” including 175 calls over six years, sometimes under false names.
- Court previously granted partial summary judgment: defamation barred by statute; six UDPA-statable statements found potentially actionable; calls to plaintiff’s center were actionable regardless of conversation.
- Trial occurred November 2014; jury found 175 calls and proximate injury, but found six statements not actionable due to lack of third-party disclosure or privilege; defendant won on its counterclaim for trademark use.
- Defendant later moved for judgment as a matter of law under Rule 50(b) after trial arguing UDPA claim was not in or affecting commerce and actions were not unfair or deceptive; alternatively requested a new damages trial if liability existed.
- Court held: (i) calls did not occur in or affect commerce; (ii) conduct was not unfair or deceptive; (iii) damages vacated; (iv) first Rule 50(a) moot; (v) attorney’s fees and prejudgment interest denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the UDPA claim was in or affecting commerce | Plaintiff asserts calls had commerce impact via business effects | Defendant argues no in/affecting-commerce connection | Not in/affecting commerce |
| Whether defendant’s conduct was unfair or deceptive | UDPA violation due to unfair/deceptive calls | Conduct not unfair or deceptive under UDPA | Not unfair or deceptive |
| Whether the trial record supports damages or requires remittitur/new trial | Damages supported by jury verdict | Damages excessive; should be new trial or vacate | Damages vacated; new trial denied on damages |
| Whether the six statements were actionable | Six statements actionable if to third parties | Six statements not actionable due to privilege/third-party requirement | Six statements not actionable; UDPA fails on merits |
| Preservation and post-trial standard of review | Standard follows Rule 50(b) post-trial review | Proper preservation; legal issue review after trial allowed | Post-trial Rule 50(b) review proper; judgment granted on UDPA claim |
Key Cases Cited
- S.A.L.T. South ATL Ltd. P’Ship of Tenn. v. Riese, 284 F.3d 518 (4th Cir.2002) (legal standard for review of fair/unfair acts under UDPA)
- Gray v. N.C. Ins. Underwriting Ass’n, 352 N.C. 61 (1999) (whether conduct is unfair or deceptive; scope of UDPA review)
- ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir.1983) (anti-competitive conduct under UDPA implied by market effects)
- Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir.1999) (commerce/consumer impact standard for UDPA claims)
- HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C.578 (1991) (definition of commerce and business activities under UDPA)