Coblentz Patch Duffy & Bass LLP persuaded a Colorado federal district judge to reject a request to certify a class of individuals allegedly “robocalled” by DISH Network LLC, the premier satellite TV and internet provider. The complaint was filed in July 26, 2012. Plaintiff Seth Warnick alleged that DISH called his cell phone without his consent, using an automatic dialing system in violation of the Telephone Consumer Protection Act (“TCPA”). He sought injunctive relief and statutory damages of $500 for each call made, plus an additional $1500 per violation in punitive damages on behalf of himself and all class members.
The Honorable Wiley Y. Daniel of the United States District Court of Colorado found that Warnick’s proposed class was overbroad, was not ascertainable, and that attempting to identify the members would render the case unmanageable. DISH had made a handful of non-solicitation calls to Warnick’s phone by mistake when it was trying to contact one of its customers.
DISH argued that the class was a fail-safe class, and it was overbroad and that it was not ascertainable because the only way to find the calls made by mistake was to make individualized, case-by-case investigations. Coblentz partners Richard Patch and Zuzana Ikels represented DISH at a two day evidentiary hearing in March 2014. At the hearing, the Court indicated it would provisionally certify a smaller, sub-class and invited Plaintiff to propose a more narrow class definition. Several rounds of briefing then followed over the next few months. Plaintiff submitted a proposed definition that continued to require the review and production of records from millions of customers who were not in the class.
The June 26, 2014 order found that “the proposed class is not administratively feasible because identifying the class members is not a manageable process and would require extensive individual factual inquiry. See Carrera, 727 F.3d at 307-08. The inquiry into factual records to determine class members is so daunting as to make the class definition insufficient. Agne, 286 F.R.D. at 566.”
This is one of the first decisions to address the propriety of certifying a TCPA class in the context of non-solicitation calls made to cellular telephones. In light of the rising tide of TCPA class actions filed around the country, it should be useful for companies facing claims that calls made to a wrong number, when trying reach their own customers, could subject them to TCPA liability.