July 2, 2019

Fourth Circuit affirms $61 million TCPA award

On May 30, 2019, the US Court of Appeals for the Fourth Circuit affirmed a lower court ruling in favor of class action plaintiffs in a Telephone Consumer Protection Act (TCPA) case.  In Krakauer v. Dish Network, L.L.C., No. 18-1518, slip op. (4th Cir. May 30, 2019), plaintiffs alleged that the defendant violated the TCPA when class members received telemarketing calls from the defendant’s agent despite being listed on the federal “Do Not Call” Registry.  The US District Court for the Middle District of North Carolina certified a class of plaintiffs “that closely followed the text of the TCPA” and the case proceeded to trial.  Krakauer, slip op. at 6-7.  The jury returned a verdict in favor of the plaintiffs, and awarded damages of $400 per call; the district court trebled these damages after determining that the defendant’s violations were willful and knowing, appointed an administrator to oversee the distribution and completion of claim forms, and ultimately issued a judgment of over $61 million in favor of the class.

On appeal to the Fourth Circuit, the defendant challenged the plaintiffs’ Article III standing, the particulars of the class certification, and its liability for its agent’s actions.  On the issue of standing, the court applied the U.S. Supreme Court’s decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016), and held that the harm caused by the defendant’s improper telemarketing calls was “both particular to each person and imposes a concrete burden on his privacy,” and hence is “sufficient to confer standing.” Krakauer, slip op. at 14.  In particular, the court criticized the defendant’s argument that Spokeo requires the court to consider “elements of common law torts,” rather than simply “types of harms protected at common law,” as “nothing more than an attempt to dismember the TCPA[.]”  Id.  The court also rejected the defendant’s challenge to class certification pursuant to Fed. R. Civ. P. 23, which “hewed closely to the TCPA’s text,” concluding that the class members satisfied the four requirements of numerosity, commonality, typicality and adequacy.  Id. at 18.  Finally, the court rejected the defendant’s contention that it was not liable, and if liable had not acted willfully and knowingly even though the defendant’s agent, not the defendant itself, had made the illegal calls.