Krakauer v. Dish Network, L. L.C.
925 F.3d 643
4th Cir.2019Background
- Dr. Thomas Krakauer, a national Do-Not-Call registry registrant, received multiple telemarketing calls from Satellite Systems Network (SSN) promoting Dish Network; he sued Dish under the Telephone Consumer Protection Act (TCPA) § 227(c)(5).
- The district court certified a nationwide class of persons whose numbers were on the national Do-Not-Call registry for ≥30 days and received ≥2 calls in a 12‑month period (class period May 1, 2010–Aug 1, 2011).
- At trial the jury found Dish liable (SSN acted "on behalf of" Dish/agent) and awarded $400 per call; the district court trebled damages as willful and knowing, yielding an aggregate judgment of $61,243,800.
- Dish appealed, challenging Article III standing for the class, multiple Rule 23 certification points (ascertainability, predominance, class definition), and Dish’s vicarious liability/willfulness findings.
- The Fourth Circuit affirmed: it held the class members had concrete Article III injuries under Spokeo, the TCPA claim and class met Rule 23 requirements, and ample evidence supported jury findings on agency and willful/knowing conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing for the certified class | Krakauer: receiving repeated unwanted calls to a number on the national Do-Not-Call list is a concrete, particularized injury under the TCPA | Dish: many putative class members lack concrete injury; Spokeo requires showing harms akin to common-law injuries | Court: injury is concrete and particularized under Spokeo; TCPA protects privacy interests and Congress may elevate such harms to actionable status; standing satisfied |
| Class definition / who may sue under §227(c)(5) | Plaintiffs: statute authorizes any “person” who “received” violative calls — not limited to bill-paying "subscribers" | Dish: statute should be limited to telephone "subscribers" (those who can register numbers) | Court: plain text, purpose, and history show Congress meant to protect "persons" who receive calls; not limited to subscribers |
| Rule 23: ascertainability & predominance for TCPA class | Plaintiffs: call records, registry data, and defendant’s business records permit identification and common proof of liability and damages | Dish: class is overbroad; individualized inquiries (residential vs. commercial lines, established business relationship, identity matching) defeat predominance/ascertainability | Court: class is ascertainable from call and registry data; common issues (whether calls occurred, agency, statutory damages) predominate; Rule 23(b)(3) certification proper |
| Liability and trebled damages (agency; willful & knowing) | Plaintiffs: SSN acted as Dish’s agent; Dish knew/tolerated violations so trebling appropriate | Dish: contractual disclaimers/existing warnings show no agency or willful misconduct; trebling improper | Court: ample evidence supported jury finding of agency and scope; Dish’s conduct and inaction supported willful/knowing finding; trebling upheld |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (Sup. Ct.) (statutory plaintiffs must allege a concrete and particularized injury for Article III standing)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (Sup. Ct.) (TCPA is enforceable through private suits and federal jurisdiction over such claims)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (Sup. Ct.) (Rule 23 commonality and the need for rigorous analysis at certification)
- Comcast Corp. v. Behrend, 569 U.S. 27 (Sup. Ct.) (plaintiff bears burden to show damages model is consistent with liability theory at class certification)
- Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (Sup. Ct.) (class adjudication can rely on common proof even where some issues tried separately)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (Sup. Ct.) (zone-of-interests test limits who may sue under a statute)
- Meyer v. Holley, 537 U.S. 280 (Sup. Ct.) (statutory liability may be imposed on a principal for acts of its agents under agency principles)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Sup. Ct.) (standing requires injury-in-fact, traceability, and redressability)