Stating the obvious, Judge Eagles made up procedures on how to administer a post-judgment TCPA class: “Few contested class actions of this type have reached this stage, so there is little guidance for the Court.”
In Krakauer v. Dish Network, LLC, No. 1:14-CV-333, 2017 WL 3206324 (M.D. N.C. July 27, 2017), Judge Eagles decided not to enter a final judgment in the Krakauer matter following a jury verdict since the claims administration process had not been completed. Since the jury verdict form had required the jury to decide whether “every member of the class” — a virtual impossibility since the balance of the opinion related to trying to figure who those classmemebers were — had suffered damages, the District Court held that no further evidence was required as to proof of whether each class member suffered damages and therefore had Article III standing.
The jury instructions also repeatedly referred to receiving calls and stated that “the plaintiff must prove … that he and the class members each received at least two telephone solicitations.” Doc. 293 at 4 (emphasis added); see also id. at 3, 8, 10-12. As the Court told the jury, “a person whose residential number is on the National Do Not Call Registry and who receives at least two telephone calls within any 12-month period by or on behalf of [Dish]” is entitled to damages. Id. at 3. The jury found that the plaintiffs proved all of these elements at trial. See Doc. 292. Dish is not entitled to undermine the jury’s verdict by second-chance challenges to the fact that the calls were received. Statutory standing is an element of the claim, but the jury determined it in the plaintiffs’ favor for every class member. No additional procedures are required to satisfy that element.
The District Court held that Dish had “some” right to due process, and was entitled to participate in the claims process so long as it didn’t get in the way.
Like Dish, the Court is interested in insuring that only class members receive the damages awarded by the jury. The Court intends to establish a fair claims administration process that will weed out any unjustified claims by non-class members. As discussed infra p. 14, the Court agrees that Dish has some due process rights to a reasonable opportunity to participate in the claims administration process. In the circumstances of this case, the Court rejects the plaintiffs’ contention that Dish has no right at all to participate in the process of identifying class members and accurately distributing class funds. See Doc. 334 at 10-11. So long as Dish’s participation is helpful to confirm identification of class members, does not delay the proceedings, and is not obstructive, the Court anticipates allowing Dish to have some input.
The Court is not inclined to enter judgment against Dish now for damages to be awarded to persons who are yet unidentified, and this fact alone augurs against an aggregate damages award. Dish has presented evidence that close to 3,700 of the telephone numbers did not have complete identifying name information or the information is inconsistent, see Doc. 340-2 at ¶ 5, and the parties appear to agree that the accuracy of the Five9 data about names and addresses is not guaranteed. See Docs. 335 at 18; see Doc. 337 at 14-15. Dish has had no opportunity to challenge the attribution of names and addresses to particular individual phone numbers, and some persons may have been incorrectly identified as class members. Dish has repeatedly asserted its intention to challenge individual class membership, e.g., Doc. 129 at 10-11; Doc. 231 at 43:9-44:5; Doc. 330 at 8, and the Court has indicated that Dish would have some opportunity to do so. See, e.g., Doc. 204 at 112:21-113:13; Doc. 231 at 75:13-: 25; Trial Tr. Jan. 17, Doc. 305 at 159:25-160:11. As a matter of fairness and “basic due process,” in a class action not resolved by settlement, a defendant who will ultimately pay damages to class members has a right to participate in claims administration and “to object and oppose any unfounded or incorrect claim.”  Apart from any element of liability, Dish has an interest in not paying damages to persons who are not proper class members, which aligns with the Court’s interest in insuring that only class members receive damages awards. For these reasons, the Court will not enter an aggregate judgment against Dish in the amount of $61 million and instead will require a claims administration process that gives Dish the opportunity to reasonably challenge individual claims to class membership.
No doubt there is something unfair about Dish avoiding payment of damages for proven, willful violations of the law, a result that is certain to happen to some extent under the process established by this order. Moreover, Congress designed the TCPA’s damages provisions, in part, to deter violations.  That deterrent effect weakens if Dish is off the hook for damages owed to injured class members who cannot be found. However, the actual amount of unclaimed funds is unknown at this point. Given that the plaintiffs seek an equitable cy pres distribution of those funds determined in the Court’s discretion, see Doc. 337 at 16-18, the relative amount of those funds may be relevant to the Court’s decision on what to do with them. To the extent the decision is an equitable one, Dish’s conduct during the claims administration process may be appropriate for consideration. If and when the plaintiffs move for judgment for certain class members in a subgroup, if and when the Court grants such a motion, and if and when it becomes clear that some damages awards cannot be delivered to the class members, the Court will be open to consideration of this issue.