Follow Up – Class Counsel Granted $20.4 Million Attorneys’ Fee Award in Dish Network Telemarketing Case

In a December order, Judge Eagles awarded $20.4 million in attorneys’ fees to Class Counsel in Krakauer v. Dish Network. The motion for fees was unchallenged by Dish Network, and all but a handful of the 18,000 class members approved of the amount.

The facts of Krakauer are familiar to longtime readers of Class Actions Brief. Plaintiffs sued Dish Network under the Telephone Consumer Protection Act (“TCPA”) for allowing their agent to repeatedly call plaintiffs despite their listing on the Do Not Call Registry. As we previously reported, after a trial in January 2017, a jury returned a $20.5 million verdict for the plaintiffs. And in March, Judge Eagles denied Dish Network’s motion for a new trial and instead trebled the plaintiffs’ damages—bringing the total award to $61 million. Class Counsel’s $20.4 million fee represents one-third of the trebled damages award.

The attorneys’ fee award is large by any metric. At 33.3%, the award falls just outside of the standard range for fees in the Fourth Circuit, which the court recognized is “between twenty-five (25) and thirty (30) percent of the fund.” Similarly, the award’s 4.39 lodestar multiplier perches at the upper end of the Fourth Circuit’s established range of “2.26 to 4.5.”  (A lodestar multiplier compares a percentage fee award to a “lodestar” i.e., what counsel would have received under a traditional payment method.)

Despite being over four times the Class Counsel’s lodestar fees, Judge Eagles found the award to be fully justified. The court praised the attorneys’ “zealous advocacy.” And, citing the magnitude of the judgment, the complexities of the TCPA, and the inherent difficulty of managing “an 18,000-plus member class action,” it deemed Class Counsel to be “particularly experienced and skilled in TCPA litigation.” Class Counsel undoubtedly deserves some of the praise. Achieving an average payout of more than $3,000 per class member is, as the court noted, “an excellent result on behalf of the class.”

After losing at trial, Dish filed several motions challenging the verdict or calling for a new trial. Among other arguments, it claimed insufficient evidence supported the verdict, that its due process rights had been violated, and that an ancillary Illinois action barred the plaintiffs’ claims under res judicata. The court denied all but one of Dish’s motions: Judge Eagles agreed with Dish that not all the class members could be reasonably identified. Accordingly, she delayed entering judgment until the issue could be resolved.

According to the order, Dish squandered the delay. Dish failed to develop an efficient claims processing system. Rather, it offered only “cumbersome and inefficient methods” of resolving class-member identity issues and instead spent its time rehashing previous arguments. The court did not approve of these arguments, characterizing them as “obstructive efforts to avoid or delay the consequences of the jury verdict.”

Prominent among Judge Eagles’ justifications for Class Counsel’s large award was their persistence in the face of Dish’s “repetition of long-rejected arguments, and its attempt to obfuscate the issues, confuse the record, and shift arguments and facts.” Yet Dish, too, has proven persistent: It has filed a notice of appeal in the Fourth Circuit. And so the Krakauer saga continues. Stay tuned for updates.