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Class Taps Appellate Hot Shot Gupta for Dish Network Appeal

Dec. 18, 2018, 8:01 PM

Deepak Gupta is stepping in at the appellate stage to represent class of consumers who received robocalls from Dish Network LLC.

Dish is challenging a $60 million verdict in favor of the class, arguing the 18,000-member class was so broadly defined that it included uninjured class members.

The defense bar has been trying to get “no-injury” class actions before the U.S. Supreme Court for years.

Bringing in Gupta could signal that the plaintiffs think this case is headed that way. Gupta made an appearance in the case Dec. 17, and filed the class’s response brief the same day.

His firm, plaintiff-side appellate boutique Gupta Wessler PLLC in Washington, has represented consumers in high-profile cases at the appellate and Supreme Court level.

The suit alleges Dish’s agent, Satellite Systems Network, made 51,000 marketing calls to 18,000 numbers on the National Do Not Call Registry.

A jury awarded the class $400 per call for violations of the Telephone Consumer Protection Act. The court tripled the damages, bringing the judgment to over $61 million.

The judgment results in an average payout of more than $3,000 per class member.

Dish argues the class definition isn’t limited to telephone subscribers or people who actually received the calls. Instead the court certified anyone “associated with” a number called by SSN.

“That impermissibly broad class definition encompasses au pairs, former boyfriends, and children who have long since moved away—indeed, potentially anyone ever linked to the phone number,” Dish says.

But the statute covers any person who receives a call, the class argues in its response. Congress recognized receiving unwanted calls as an injury when it passed the TCPA, it says.

Bailey & Glasser LLP also represents the class.

Orrick Herrington & Sutcliffe LLP represents Dish.

The case is Krakauer v. Dish Network LLC, 4th Cir., No. 18-1518, appellee brief 12/17/18.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com