United States v. Dish Network, LLC

80 F.Supp.3d 917

United States of America, and the States of California, Illinois, North Carolina, and Ohio, Plaintiffs

v.Dish Network, LLC, Defendant

No. 09–3073

United States District Court, C.D. Illinois, Springfield Division .

Enter: February 13, 2015

E-FILED February 17, 2015

Albert N. Shelden, California Attorney General's Office, San Diego, CA, Daniel Kadane Crane–Hirsch, Lisa K. Hsiao, Patrick R. Runkle, Sang H. Lee, U.S. Dept. of Justice, Washington, DC, Elizabeth A. Blackston, Illinois Attorney General, Gregory M. Gilmore, U.S. Atty., Springfield, IL, Erin B. Leahy, Michael S. Ziegler, Ohio Attorney General's Office, Columbus, OH, Kevin Anderson, North Carolina Department of Justice, Raleigh, NC, for Plaintiffs.

Catherine Emily James, Henry T. Kelly, Kelley Drye & Warren LLP, Chicago, IL, Damon William Suden, Kelley Drye & Warren, New York, NY, Edward Ellis Weiman, Kelley Drye & Warren LLP, Los Angeles, CA, Geoffrey W. Castello, III, Lauri A. Mazzuchetti, Joseph A. Boyle, Kelley Drye & Warren LLP, Parsippany, NJ, for Defendant.

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

This matter comes before the Court on Defendant Dish Network L.L.C.'s (Dish) Limited Motion for Reconsideration of Opinion 445 (d/e 446) (Dish Motion to Reconsider). This Court entered its Opinion on December 11, 2014 (d/e 445) (Opinion 445), resolving the parties cross-motions for summary judgment. Dish asks the Court to reconsider two findings in Opinion 445: (1) Dish is liable under Count I of the Second Amended Complaint (d/e 257) for 2,386,386 telemarketing calls made to numbers on the National Do–Not–Call Registry and one or more of the internal do-not-call lists of Dish, its Telemarketing Vendors eCreek Service Group (eCreek) and EPLDT–Ventus (EPLDT), or Dish's authorized retailers (Retailers) that engaged in telemarketing; and (2) Issues of fact exist regarding whether Dish is liable under Count VI of the Second Amended Complaint for pre-recorded telemarketing calls made by Dish or its Telemarketing Vendors. See Opinion 445, at 231–32.

Motions for reconsideration, “serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir.1996). For the reasons set forth below, the Court finds that Opinion 445 contains a manifest error. Therefore, the Dish Motion to Reconsider is ALLOWED in part and DENIED in part. Partial summary judgment should not have been granted to establish liability in Count I on the 2,386,386 calls. The determination that issues of fact exist with respect to Dish's liability for the prerecorded calls in Count VI, however, was correct.

I. The 2,386,386 Calls in Count I

The United States alleged in Count I that Dish initiated or caused others to initiate outbound telemarketing calls to persons whose telephone numbers were on the National Do–Not–Call Registry (Registry), in violation of the Telephone Sales Rule (TSR). 16 C.F.R. § 310.4(b)(1)(iii)(B) ; Second Amended Complaint, ¶ 66; See Opinion 445, at 158–77. The United States sought partial summary judgment, in part, based on Dish calling records from September 1, 2007 to March 12, 2010 (2007–2010 calling records). See Opinion 445, at 120–21. Dish's expert Dr. Erez Yoeli, Ph.D., opined that the 2007–2010 call records showed that Dish had initiated over 7,000,000 telemarketing calls to numbers on the Registry. Opinion 445, at 121–22. Dish's expert John Taylor, examined the calls identified by Yoeli and opined that most of the calls did not violate the TSR for various reasons. Taylor concluded that the records showed that Dish initiated 501,650 calls to numbers on the Registry for which Taylor could not find a reason to exclude them from violating the TSR. Opinion 445, at 124.

This Court found that no issue of fact existed regarding the 501,650 calls that Yoeli identified as violations and Taylor opined that he could not identify a reason to exclude those calls from liability. Opinion 445, at 167. The Court also rejected some of Taylor's other reasons for excluding additional calls from liability. The Court concluded that the United States was entitled to partial summary judgment establishing that Dish was liable for 1,707,713 calls from the 2007–2010 call records based on Yoeli's opinions and Taylor's analysis of those opinions. Opinion 445, at 167–69, 232. The Court also granted partial summary judgment in Count I for calls made by Dish Retailers JSR Enterprises and Satellite Systems Network. Opinion 445, at 176, 232. The Court also granted partial summary judgment on an additional 2,386,386 calls based on Yoeli's opinions which the Court stated that Dish did not dispute with any evidence. Opinion 445, at 232. The Dish Motion to Reconsider only concerns the grant of partial summary judgment for the additional 2,386,386 calls.

The 2,386,386 calls at issue in the Dish Motion to Reconsider concerns the relationship with the Registry and a separate prohibition in the TSR. The TSR prohibits initiating a call to a person who has stated that he or she does not wish to receive calls by or on behalf of the seller (a do-not-call request) regardless of whether the person placed his or her number on the Registry. 16 C.F.R. 310.4(b)(iii)(A) ; Opinion 445, at 177. The United States alleged a separate claim against Dish in Count II of the Second Amended Complaint for initiating or causing others to initiate telemarketing calls to persons who previously made a do-not-call request. Second Amended Complaint, Count II ¶¶ 67.

Dish is responsible for honoring a person's do-not-call request if the person made the request to a Dish employee or to an agent of Dish. Opinion 445, at 182–83. Dish agreed that its Telemarketing Vendors eCreek and EPLDT were its agents, but Dish disputed whether it had an agency relationship with its Retailers. The Court found that issues of fact existed regarding whether Dish had an agency relationship with the Retailers. As such, issues of fact existed regarding whether Dish was obligated to honor do-not-call requests made to Retailers. Opinion 445, at 185.

Dish, its Telemarketing Vendors, and its Retailers each kept lists of persons who made do-not-call requests. The parties refer to these lists as “entity-specific do-not-call lists” or “internal do-not-call lists.” See Opinion 445, at 12. Taylor identified 903,246 telemarketing calls in the 2007–2010 call records that Dish made to numbers on the internal do-not-call lists of Dish and its Telemarketing Vendors. The Court entered partial summary judgment finding liability for these calls in Count II. Opinion 445, at 178. Dish does not challenge this holding in the Motion to Reconsider.

Taylor identified 7,321,163 calls in the 2007–2010 call records that Dish made to numbers on Retailer internal do-not-call lists. Plaintiffs' Initial Summary Judgments Exhibits (d/e 342), Exhibit 28, Expert Rebuttal Report of John Taylor dated November 6, 2013, at 11, Table 3c. The Court denied partial summary judgment in Count II on these calls because issues of fact remained regarding whether the Retailers were agents of Dish. If Dish did not have an agency relationship with a Retailer, then Dish was not obligated to honor a person's do-not-call request made to the Retailer. Opinion 445, at 186–91.

The Plaintiffs' expert Yoeli identified the additional 2,386,386 calls at issue in the Dish Motion to Reconsider by combining and comparing Taylor's analysis of Dish calls to numbers on the Registry and Taylor's analysis of Dish calls to numbers on all of the internal do-not-call lists. Plaintiffs Initial Summary Judgment Exhibits (d/e 342), Exhibit 38, Declaration of Dr. Erez Yoeli dated December 18, 2013, ¶ 29(b). Yoeli added the 903,246 calls to numbers on the internal do-not-call lists of Dish and the Telemarketing Vendors with the 7,321,163 calls to numbers on the Retailer internal do-not-call lists to come up with a total of 8,224,409 telemarketing calls in the 2007–2010 call records that were made to numbers on some internal do-not-call list.

Yoeli compared the 8,224,409 calls with Taylor's analysis of calls to numbers on the Registry. Yoeli found that 2,397,390 of the 8,224,409 calls were made to numbers that were on the Registry. Taylor had included 11,004 of the 2,397,390 calls in the 501,650 calls which he could not exclude as violations of the TSR as calls to numbers on the Registry. Yoeli opined that the remaining 2,386,386 calls were additional calls to numbers on the Registry in which the call recipients had made do-not-call requests. Plaintiffs Initial Summary Judgment Exhibits (d/e 342), Exhibit 38, Declaration of Dr. Erez Yoeli dated December 18, 2013, ¶ 29(b).

The United States asked for partial summary judgment for the 2,386,386 calls in Count I because the calls were to numbers that were both on the Registry and on one of the internal do-not-call lists. The United States argued that these calls violated the TSR regardless of Taylor's reasons for excluding them from violating the rule against calls to numbers on the Registry. Taylor's exclusions applied to calls to numbers that were on the Registry. These 2,386,386 calls to numbers on the Registry were independently illegal because the calls violated the TSR's prohibition against calling people who previously made a do-not-call request. Motion for Summary Judgment (d/e 341), at 90–91,113, Table I.

This Court erred in Opinion 445 in accepting Yoeli's analysis and the United States' argument regarding the 2,386,386 calls.¹ Yoeli assumed that Dish was obligated to honor all do-not-call requests made to all of its Retailers. Based on this assumption, Yoeli analyzed the 8,224,409 calls on all the internal do-not-call lists to come up with the 2,386,386 additional illegal calls to numbers on the Registry.

Issues of fact exist regarding whether Dish was obligated to honor do-not-call requests made to Retailers. If at trial the Court finds that...