Krakauer v. Dish Network L.L.C.
311 F.R.D. 384
M.D.N.C.2015Background
- Plaintiff Thomas Krakauer registered his residential number on the national Do-Not-Call (NDNC) list and alleges calls from Satellite Systems Network (SSN), an authorized dealer for Dish Network, promoting Dish between May 2010 and August 2011.
- Krakauer alleges Dish is vicariously liable under agency theories (actual authority, apparent authority, ratification) because SSN made telemarketing calls on Dish’s behalf and continued after Krakauer complained and was added to Dish’s internal do-not-call (IDNC) list.
- He sought class certification for two classes: (1) NDNC class — numbers on the NDNC list for ≥30 days that received SSN telemarketing calls in the class period; (2) IDNC class — numbers on Dish’s or SSN’s IDNC lists that received SSN telemarketing calls in the class period.
- Plaintiff’s expert (A.B. Data) created class lists from SSN call logs, vendor NDNC-registration data, and LexisNexis residence/business indicators, identifying ~20,450 NDNC numbers and ~7,831 IDNC numbers.
- Dish challenged membership in the IDNC class, ascertainability of both classes, and predominance under Rule 23(b)(3) (arguing many individualized defenses: business numbers, established business relationship (EBR), prior contact/consent).
- The court found Krakauer is a member of both classes, the proposed classes are ascertainable, common issues predominate, and class adjudication is superior — certifying both classes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Membership in IDNC class (did Krakauer make a request not to be called?) | Krakauer: his calls to Dish asking them to stop calls and internal Dish/SSN emails show he made a request; no magic words required. | Dish: Krakauer did not make an affirmative request not to receive future calls; his statements were ambiguous. | Held: Krakauer proved by preponderance he requested not to be called; he is a member of the IDNC class. |
| Ascertainability of classes (can class members be identified objectively?) | Krakauer: A.B. Data’s methodology using SSN logs, Nexxa NDNC data, Dish/SSN IDNC records, and LexisNexis yields a reliable, administratively feasible list. | Dish: Data inaccuracies (NDNC registration dates, subscribers vs. users), over-inclusive IDNC lists, and missing SSN records impair ascertainability. | Held: Classes are ascertainable; vendor data and call-log indicators provide objective, manageable criteria despite imperfections. |
| Predominance (are common issues dominant?) | Krakauer: Two central common issues predominate — whether SSN made the calls and whether Dish is liable on agency theories; peripheral individual issues are few/manageable. | Dish: Individualized issues (business vs. residential numbers, EBR, prior contact/consent) will overwhelm common questions and defeat predominance. | Held: Common questions (SSN calls; Dish vicarious liability, esp. actual authority) predominate; individual issues are limited and manageable. |
| Superiority (is class adjudication superior?) | Krakauer: Statutory damages are small; class provides efficient, uniform relief and better deterrence of unlawful telemarketing. | Dish: Individual actions preferable for many putative members with varied defenses. | Held: Class action is superior given small claims, efficiency, and manageability of individual issues. |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (U.S. 2012) (TCPA federal jurisdiction and purposes)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S. 2011) (plaintiff must affirmatively demonstrate Rule 23 requirements)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (U.S. 2013) (Rule 23(b)(3) predominance inquiry)
- EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014) (ascertainability requirement)
- Brown v. Nucor Corp., 785 F.3d 895 (4th Cir. 2015) (burden of proof for class certification findings)
- Gunnells v. Healthplan Servs., Inc., 348 F.3d 417 (4th Cir. 2003) (predominance focuses on quality of common issues)
- Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) (rigorous Rule 23 analysis; factors for predominance/superiority)
- Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (standing under TCPA provisions)
- Moore v. Dish Network L.L.C., 57 F. Supp. 3d 639 (N.D.W. Va. 2014) (statutory standing under TCPA not strictly limited to subscribers)