All posts by Amanda Pickens

Dish Network Hopes for a New Trial of Telemarketing Class Action Lawsuit after $20.5 Million Jury Verdict

View Amanda Pickens’ Complete Bio at robinsonbradshaw.comDish Network has asked the Middle District of North Carolina for a new trial in its telemarketing class action lawsuit after a jury found Dish liable for violations of the Telephone Consumer Protection Act. After a five-day trial ending on January 19th, a jury awarded damages to the class of $20.5 million.

The lawsuit was filed in 2014 by lead plaintiff Thomas Krakauer alleging Satellite Systems Network, an authorized Dish dealer, called him multiple times between 2009 and 2011 despite being listed on the Do Not Call registry. In September 2015, Judge Catherine Eagles certified two classes, both consisting of persons on the Do Not Call registry who received telemarketing calls from Dish or Satellite System Network between 2010 and 2011.

After the United States Supreme Court decided Spokeo Inc. v. Robins, Dish filed a motion to dismiss or, in the alternative, to decertify the class. We highlighted the issues before the Spokeo Court in our previous blog post. In Spokeo, the United States Supreme Court vacated and remanded a decision allowing a consumer who suffered no concrete harm to sue Spokeo Inc. for procedural violations of the Fair Credit Reporting Act. But the Supreme Court left the opportunity open for plaintiffs in other cases to rely on procedural violations entailing a risk of “concrete injury” to establish standing. The Supreme Court found that the Ninth Circuit’s standing analysis was incomplete because it failed to consider both requirements of an injury-in-fact, that the injury be both concrete and particularized. The Ninth Circuit’s opinion concerned only the particularization of the injury-in-fact.

In August 2016, in a six-page opinion, Judge Eagles denied Dish’s motion to dismiss and to decertify the class based on Spokeo. Judge Eagles noted that although Spokeo “clarified the meaning of a concrete injury,” it did not fundamentally change the doctrine of standing. She found that now “a concrete injury ‘must exist,’ but it can be intangible.” Judge Eagles held that the telemarketing calls made in violation of the Telephone Consumer Protection Act were more than bare procedural violations; the calls “form[ed] concrete injuries because unwanted telemarketing calls are a disruptive and annoying invasion of privacy.” Dish sought an interlocutory appeal of this decision, which was also denied.

Now, after a five-day trial and a $20.5 million jury verdict, Dish is hoping for a new trial. Dish claims, among other things, that the verdict violates Dish’s due process rights because Judge Eagles allowed the jury to impose aggregate damages, rather than allowing Dish to defend each individual claim of an improper phone call. The jury calculated damages by assigning $400.00 per call to the 51,119 distinct phones calls, totaling approximately $20.5 million. Plaintiffs’ response to Dish’s motion for a new trial is due March 28th. If Dish’s motion for a new trial is denied, Dish will likely appeal these issues to the Fourth Circuit. Stay tuned for further developments.

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Recent Filings – February Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.comNot every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of February’s filings:

Bradley, et al. v. Samsung Electronics, et al., No. 1:17-cv-00171 (M.D.N.C. February 28, 2017) (purported class action brought under various state consumer protection and trade practice laws alleging defendants manufactured home washing machines with a defect that caused explosion during normal use.)

Matthews, et al. v. TCL Communication Inc.,  No. 3:17-cv-00095 (W.D.N.C. February 27, 2017) (putative class action removed from Mecklenburg County state court to federal court brought under state consumer laws alleging defendants removed a key compatibility feature of a specific brand of Smartphone which rendered the phone defective).

Cash-Davis, et al. v. Access Community, et al.; No. 3:17-cv-00466 (D.S.C. February 16, 2017) (putative class action and collective action originally filed in Lexington County state court, removed to federal court and brought under FLSA and state wage and hour laws alleging defendants changed the terms of employees’ pay arrangements and failed to pay compensation due).

Holland, et al v. Fulenwider Enterprises, Inc., et al., No. 1:17-cv-00048 (W.D.N.C. February 15, 2017) (purported collective and class action brought under FLSA alleging defendants misclassified assistant managers working at local KFC, Taco Bell, and Long John Silver franchises and failed to pay overtime wages).

Helen Holland, et al v. Bojangles’ Restaurants, et al., No. 3:17-cv-00050 (W.D.N.C. February 6, 2017) (purported class action and collective action brought under FLSA by employees alleging defendants misclassified them and failed to pay overtime compensation).

King, et al. v. Smooth Sailing, et al., No. 4:17-cv-00309 (D.S.C. February 2, 2017) (collective and class action alleging defendants failed to pay wages owed to employees in violation of FLSA and state wage and hour laws).

E&G, et al. v. Mount Vernon Mills, et al., No. 6:17-cv-00318 (D.S.C. February 2, 2017) (putative class action alleging violations of the Telephone Consumer Protection Act based on unsolicited facsimile transmission advertisements to plaintiffs).

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Recent Filings – January Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.com Not every class action court filing in North and South Carolina becomes a full-length post on our blog. Here is a recap of January’s filings:

Hieber v. The Asset Recovery Group, LLC, et al., No. 3:17-cv-00214 (D.S.C. January 24, 2017) (putative class action brought on behalf of consumers residing in South Carolina alleging violations of the Fair Debt Collection Practices Act).

Hart v. Barbeque Integrated., No. 2:17-cv-00227 (D.S.C. January 24, 2017) (collective and class action alleging defendant restaurant failed to pay tipped employees minimum wage and overtime compensation in violation of FLSA and state wage and hour laws).

Foster, et al. v. Livanova PLC, et al., No. 3:17-cv-00218 (D.S.C. January 24, 2017) (products liability class action lawsuit alleging defendants’ medical device exposed plaintiffs to potentially fatal bacteria during open chest surgery).

Turner, et al. v. Condustrial, Inc., et al., No. 3:17-cv-00205 (D.S.C. January 23, 2017) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendants misclassified employees as independent contractors to avoid paying overtime compensation or providing benefits).

Williams, et al. v. G4S Secure Solutions (USA) Inc., No. 1:17-cv-00051 (M.D.N.C. January 20, 2017) (collective and class action alleging defendant failed to pay straight time and overtime compensation to non-exempt hourly security officers in violation of FLSA and state wage and hour laws).

Jones, et. al. v. Wectec Global Project Services, et al., No. 3:17-cv-31 (W.D.N.C. January 20, 2017) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendants failed to pay current and former hourly employees overtime compensation).

Jones v. Wectec Global Project Servs., et. al., No. 3:17-cv-00031 (W.D.N.C. January 20, 2017) (putative class action and purported collective action alleging defendant’s 9/80 workweek plan violates FLSA and state wage and hour laws).

Levy, et. al. v. Charlotte School of Law, LLC, et. al., No. 3:17-cv-00026 (W.D.N.C. January 19, 2017) (in addition to Barchiesi, this is the second putative class action against Charlotte School of Law for alleged misrepresentation of its ABA accreditation status to prospective and current students).

Strak, et. al. v. Managed Recovery Systems, Inc., et. al., No. 6:17-cv-00159 (D.S.C. January 18, 2017) (purported class action alleging Managed Recovery Systems improperly used mail, telephone and facsimile in its debt collection efforts in violation of the Fair Debt Collection Practices Act).

Cunningham v. ShopperLocal, LLC, No. 1:17-cv-00024 (M.D.N.C. January 10, 2017) (putative class action brought under the Telephone Consumer Protection Act alleging defendant called plaintiffs using an auto-dialer to sell advertising space without plaintiffs’ consent).

English, et. al. v. Café Enterprises, Inc., No. 3:17-cv-00038 (D.S.C. January 5, 2017) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendant restaurant failed to pay tipped employees minimum wage while performing side work at the beginning and end of their shifts).

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U.S. Supreme Court to Decide Circuit Split: Are Class Action Waivers in Employment Arbitration Agreements Enforceable?

View Amanda Pickens’ Complete Bio at robinsonbradshaw.com

On Friday, the United States Supreme Court granted three petitions for certiorari to determine a quickly developing circuit split. The question before the Court is whether the National Labor Relations Board is correct in its interpretation that class action waiver provisions in certain employment arbitration agreements are illegal under federal labor law. Since 2011, when the U.S. Supreme Court permitted such waivers in AT&T Mobility LLC v. Concepcion, employers have relied upon them to require that disputes be resolved through individual arbitration. The NLRB over the past few years has issued numerous decisions invalidating arbitration agreements because they contained class and collection action waivers. The NLRB has stood its ground and routinely stated that such waivers violate employees’ rights under the National Labor Relations Act and are unenforceable.

The U.S. Supreme Court has agreed to hear three cases. Each involves the question whether the NLRA prohibits employers from requiring the non-management employees covered by the NLRA (employees not defined as “supervisors”) to arbitrate their work-related claims individually rather than as a class. The three cases come from the Fifth, Seventh, and Ninth Circuits.

The Fifth Circuit, in Murphy Oil USA, Inc.v. NLRB, overturned the NLRB’s decision that Murphy Oil had unlawfully required employees at its Alabama facility to sign an arbitration agreement waiving their right to pursue class and collective actions. The Fifth Circuit held that the pro-arbitration policy of the Federal Arbitration Act overrides federal labor law interests and requires enforcement of the class waivers. On the other side of the circuit split, the Seventh and Ninth Circuits have held that corporations cannot require employees to give up their rights to pursue work-related claims on a class-wide basis. The U.S. Supreme Court will review Lewis v. Epic Systems Corp., a case in which the Seventh Circuit held that an arbitration agreement precluding collective arbitration or collective actions violates federal labor law and is unenforceable under the Federal Arbitration Act. The Court will also hear Morris v. Ernst & Young, a decision from the Ninth Circuit invalidating Ernst & Young’s mandatory arbitration agreement because it required employees to bring all claims in arbitration and limited such claims to those brought on an individual basis. These decisions put the Seventh and Ninth Circuit squarely at odds with the Second, Fifth, Eighth, and Eleventh Circuit, with more yet to weigh in.

The Fourth Circuit has not addressed this issue yet, although it has held that the availability of class arbitration under the terms of the arbitration agreement is a question for the Court, not the arbitrator, to decide, as we discussed last March. North Carolina courts have not addressed the NLRA waiver issue, nor are they likely to have the opportunity, although the Court of Appeals did follow the U.S. Supreme Court in holding that contractual waivers of class proceedings in arbitration agreements are permitted in North Carolina.

Stay tuned for further developments from the U.S. Supreme Court.

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Recent Filings – December Digest

View Amanda Pickens’ Complete Bio at robinsonbradshaw.com

Barchiesi, et. al. v. Charlotte School of Law, LLC, et. al., No. 3:16-cv-00861 (W.D.N.C. December 22, 2016) (putative class action against Charlotte School of Law for alleged false and misleading representations related to the school’s failure to provide current and prospective students with information about its noncompliance with ABA standards for accreditation).

Whitehead v. Lutheran Homes of South Carolina, Inc., No. 3:16-cv-03937 (D.S.C. December 16, 2016) (putative class action and purported collective action brought under FLSA and state wage and hour laws alleging defendant failed to pay healthcare workers overtime).

RJF Chiropractic Center, Inc., v. BSN Medical, Inc., et. al., No. 3:16-cv-00842 (W.D.N.C. December 14, 2016) (putative class action brought under the Telephone Consumer Protection Act alleging defendant faxed advertisements without plaintiffs’ consent).

Hebert, et. al. v. Santa Fe Natural Tobacco Co., et. al., No. 1:16-cv-01390 (M.D.N.C. December 7, 2016) (putative class action alleging tobacco company deceptively marketed their Natural American Spirit cigarettes as “natural” and “additive-free”).

Triplett v. Rooms To Go North Carolina Corp., No. 5:16-cv-00926 (W.D.N.C. December 1, 2016)  (putative class action alleging breach of contract and UDTPA claims brought by North Carolina customers owning furniture that was not professionally treated with a leather or fabric protectant, despite purchasing an add-on fabric or leather protection plan from Rooms To Go).

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