IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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`THOMAS H. KRAKAUER, on behalf
`of a class of persons,
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`Plaintiff,
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`v.
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`DISH NETWORK, LLC,
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`Defendant.
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`1:14-CV-333
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`MEMORANDUM OPINION AND ORDER
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`Catherine C. Eagles, District Judge.
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`At trial in this class action, the jury found that Dish Network, LLC, made
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`thousands of repeat telephone solicitations to thousands of residential phone numbers on
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`the Do-Not-Call list, in violation of the Telephone Consumer Protection Act. The jury
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`awarded damages of $400 per call, which the Court trebled after it found the violations
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`were willful. Final judgment was entered against Dish and in favor of the plaintiff class
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`in the amount of $61,342,800. The judgment was affirmed on appeal, Dish has satisfied
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`the judgment, and the claims process has concluded.
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`Because not all of the judgment funds will be claimed by class members, the Court
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`must decide what to do with these unclaimed funds. Reversion to Dish and escheat to the
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`states are inappropriate. The Court will appoint a special master to help it evaluate
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`potential cy pres recipients so that the Court can make an appropriate decision between
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`federal escheat and cy pres.
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`BACKGROUND
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`Through its agent, Dish made 51,119 telephone solicitations to 18,066 residential
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`phone numbers on the Do-Not-Call list in willful violation of the Telephone Consumer
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`Protection Act. Doc. 538 at 1. There are 18,066 class members, many of whom received
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`more than one violative call. At trial, the jury awarded $400 per violative call, and the
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`Court trebled this amount for willfulness to arrive at a total judgment in favor of the class
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`of $61,342,800. Doc. 439. The Fourth Circuit affirmed the final judgment, see Krakauer
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`v. Dish Network, LLC, 925 F.3d 643 (4th Cir. 2019), and the Supreme Court denied
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`certiorari. Doc. 537.
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`The Court then approved attorney’s fees and costs, Doc. 495, and determined that
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`the attorney’s fees and costs would be paid from the judgment as a whole. Doc. 538 at 1–
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`2. The Court entered a final disbursement order to 13,000 class members, Doc. 560 ¶ 4,
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`directing that fees and costs would be deducted from the $1,200 awarded per violative
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`call, so that each class member will receive $812.99 for each such call. Doc. 560 at 2–3.1
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`Approximately 11,000 class members were identified fully and without
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`contradiction in the existing data. See Doc. 560-1 (listing these class members). The
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`remaining 7,000 were subject to a claims process, and 1,958 valid claims were submitted
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`by class members. See Doc. 536 at 1; Docs. 560-2, 560-3 (listing successful claimants).
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`1 These orders are presently on appeal, see Docs. 545, 562, but whatever the result of that
`appeal, there are certain to be unclaimed judgment funds in some amount. The disbursement
`order has been stayed for the time being. Doc. 568.
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`2
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`Thus, there are approximately 5,000 class members who have not claimed and will not
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`receive their part of the judgment. Doc. 538 at 2; see Doc. 560 at 3–4 (listing groups of
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`class members who are entitled to payment). Their share of the judgment funds available
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`for distribution is approximately $11 million. See Doc. 578 at 2; Doc. 581 at 2. It is also
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`likely that some class members may not cash their checks, adding to the unclaimed funds.
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`The Court must now determine what will happen to the undisbursed judgment funds.
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`APPLICABLE LAW
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`“Most class actions result in some unclaimed funds.” Six (6) Mexican Workers v.
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`Ariz. Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 1990). There are four common ways
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`of distributing unclaimed funds: reversion to the defendant, pro rata redistribution to
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`class members who did file claims, escheating funds to the state or federal government,
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`or cy pres. Id.; accord 4 William B. Rubenstein, Newberg on Class Actions § 12:28 (5th
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`ed. June 2020 Update). No one has advocated for pro rata redistribution to class
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`members who did file claims, and this possibility will not be discussed further.2
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`When money has been paid into the federal court to satisfy a judgment, those
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`funds cannot be used for another purpose except by order of the court. See 28 U.S.C. §
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`2041. While the case law discussing distribution of unclaimed funds after a class action
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`verdict and judgment is, unsurprisingly, thin, there is consensus that the decision of how
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`2See In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21, 35 (1st Cir. 2012) (noting in
`the context of class action settlements that redistribution of unclaimed funds to already-
`compensated plaintiffs can result in an undeserved windfall and create incentives for suits where
`large numbers of absent class members were unlikely to make claims); Van Gemert v. Boeing
`Co., 553 F.2d 812, 815–16 (2d Cir. 1977) (same).
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`
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`3
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`to distribute unclaimed funds falls within the general equitable powers of the court and
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`that the court has broad discretion in distributing these funds. See Six Mexican Workers,
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`904 F.2d at 1307; Van Gemert v. Boeing Co., 739 F.2d 730, 737 (2d Cir. 1984) (noting
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`that distribution of unclaimed class action funds is equitable, requiring the exercise of
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`discretion in light of “the circumstances of the particular case”). “The district court’s
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`choice among distribution options should be guided by the objectives of the underlying
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`statute and the interests of the silent class members.” Six Mexican Workers, 904 F.2d at
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`1307; see also see also Ira Holtzman, CPA, & Assocs. v. Turza, 728 F.3d 682, 689–90
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`(7th Cir. 2013) (collecting authorities and noting that “[m]oney not claimed by class
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`members should be used for the class’s benefit to the extent that is feasible.”).
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`1. Reversion
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`Reversion would return unclaimed judgment funds to Dish. “[R]eversion to the
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`defendant may be appropriate when deterrence is not a goal of the statute or is not
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`required by the circumstances.” Six Mexican Workers, 904 F.2d at 1308. Conversely,
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`reversion is not appropriate when deterrence is a statutory goal, unless otherwise required
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`by the circumstances. See Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 2011 WL
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`1627973, at *12 (N.D. Cal. Apr. 29, 2011) (discussing fairness of class action settlement
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`requiring reversion of unclaimed funds when statute violated had a deterrence purpose).
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`For example, in Van Gemert v. Boeing Co., the Second Circuit affirmed a decision
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`to revert unclaimed funds back to the defendant in a securities action when “during each
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`step of the process Boeing had acted without malice, without bad faith and relied on the
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`advice of others before taking each step,” including the advice of outside law firms. 739
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`4
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`F.2d at 737. Because “[the defendant] complied with the letter of the then existing law
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`and could not have anticipated” its liability, reversion was appropriate. Id.
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`Reversion is not appropriate in every case where distribution to the class is not
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`possible. It can “undermine the deterrence function of class actions . . . by rewarding the
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`alleged wrongdoer simply because distribution to the class [is not] viable.” In re Lupron
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`Mktg. & Sales Practices Litig., 677 F.3d 21, 32–33 (1st Cir. 2012) (quoting Am. Law
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`Inst., Principles of the Law of Aggregate Litigation § 3.07 cmt. b. (Apr. 1, 2009)
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`(proposed final draft)); accord Six Mexican Workers, 904 F.2d at 1309 (remanding for
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`decision between cy pres and escheat after claims period expires, noting that “[i]n light of
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`the deterrence objective of FLCRA and the nature of the violations, we find that
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`reversion of the funds to the defendants is not an available option.”).
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`2. Cy pres distribution
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`With cy pres distribution, an organization that suitably represents the interests of
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`or benefits the class members receives the unclaimed funds. Cy pres and variations of cy
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`pres have often been used as a remedy when class actions are settled. This happens most
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`typically as part of the settlement terms, see, e.g., In re Toyota Motor Corp. Unintended
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`Acceleration Mktg., Sales Practices, & Products Liab. Litig., No. 8:10ML 02151 JVS,
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`2013 WL 3224585, at *13 (C.D. Cal. June 17, 2013) (approving a charitable contribution
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`as part of a settlement and distinguishing it from cy pres); Perry v. FleetBoston Fin.
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`Corp., 229 F.R.D. 105, 117-18 (E.D. Pa. 2005) (approving cy pres donation to “an
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`appropriate non-profit, legal, charitable or educational organization or entity” as part of
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`class settlement), or, in some cases, when “it is not feasible to make further distributions
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`5
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`to class members.” 4 Rubenstein, supra, § 12:32.3 But cy pres has also been used when
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`a verdict and judgment has been entered. See Nelson v. Greater Gadsden Hous. Auth.,
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`802 F.2d 405, 409 (11th Cir. 1986) (affirming post-verdict order directing the defendant
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`to use any unclaimed funds to improve the utility system that was the subject of the
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`lawsuit). Other courts have indicated in dicta that a cy pres distribution can be
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`appropriate for unclaimed funds after verdict. See Six Mexican Workers, 904 F.2d at
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`1307–08;4 Holtzman v. Turza, 828 F.3d 606, 609 (7th Cir. 2016) (noting in dicta that the
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`“absence of a settlement” does not make a cy pres remedy impossible and that “the
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`inability to track down the current address of a victim who has moved should not
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`automatically benefit the wrongdoer.”).5
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`Such distribution to a charity or nonprofit should address the objectives of the
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`underlying statutes, target the plaintiff class, and provide reasonable certainty that class
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`members will benefit. See Nachshin v. AOL, LLC, 663 F.3d 1034, 1040 (9th Cir. 2011)
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`(reversing order authorizing cy pres distribution as part of settlement where distribution
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`3 At least one court has held in the settlement context that if cy pres is not part of the
`settlement agreement, it should be used “only when it is not feasible to make further distributions
`to class members.” Klier v. Elf Atochem N. Am, Inc., 658 F.3d 468, 475 (5th Cir. 2011).
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` 4
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` In dicta in Six Mexican Workers, the Ninth Circuit confusingly referred to cy pres as a fluid
`recovery. 904 F.2d at 1307. Fluid recovery is not authorized in the Fourth Circuit. See
`Windham v. Am. Brands, Inc., 565 F.2d 59, 72 (4th Cir. 1977). The Ninth Circuit’s discussion of
`cy pres did not turn on whether the damages recovered were “fluid,” as that term is used in
`Windham, or proven individually, as was the case here. See discussion infra. Despite this, its
`evaluation of the availability of cy pres is still helpful.
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`5 Like this case, Holtzman has a complicated history, and for reasons previously discussed in
`other orders, some of its other holdings are either not persuasive or inapplicable to the different
`facts and procedural situation here. See Krakauer, 2019 WL 7066834 at *6–7 & n.5.
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`
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`6
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`failed to accomplish these three objectives); Six Mexican Workers, 904 F.2d at 1307 (cy
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`pres must be consistent with “the objectives of the underlying statute,” and in “the
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`interests of the silent class members,” by providing the “next best” option for them); see
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`also Holtzman, 728 F.3d at 689 (“Money not claimed by class members should be used
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`for the class’s benefit to the extent that is feasible.”). Contrasted with escheat, cy pres
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`funds are “targeted more specifically to the class’s interests than when they simply go
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`into the general treasury.” 4 Rubenstein, supra, § 12:32.
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`3. Escheat
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`Unlike the equitable remedies of reversion and cy pres, escheat has a statutory
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`basis. When funds paid into court to satisfy a judgment have been unclaimed for five
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`years, the court shall “cause such money to be deposited in the Treasury in the name and
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`to the credit of the United States.” 28 U.S.C. § 2042. Escheat is appropriate when the
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`court cannot develop an appropriate cy pres distribution or otherwise finds cy pres to be
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`inappropriate. Six Mexican Workers, 904 F.2d at 1308.
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`The federal escheat statute allows “[a]ny claimant entitled to any such money” to
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`petition the court to receive appropriate payment, even after the escheat. 28 U.S.C. §
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`2042; see Leider v. United States, 301 F.3d 1290, 1293 (Fed. Cir. 2002). Ordinarily,
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`“[b]ecause section § 2042 permits recovery even after the funds revert to the United
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`States, the interests of the silent class members are fully protected.” Six Mexican
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`Workers, 904 F.2d at 1308. Federal escheat may be particularly appropriate when the
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`judgment was based on violation of federal laws. See In re Folding Carton Antitrust
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`Litig., 744 F.2d 1252, 1255 (7th Cir. 1984).
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`7
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`In general, funds that escheat to a state government are directed to the state
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`treasury at the end of litigation. See 4 Rubenstein, supra, § 12:31. Typically, the funds
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`are not “earmarked for any specific purpose” and are thus used to fund “the basic public
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`activities of the government,” but escheat funds may be directed towards a particular
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`government agency aligned with the goals of the statute. Id. As with federal escheat,
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`state escheat laws typically establish procedures for claimants whose funds have
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`escheated to seek recovery of those funds from the state. See, e.g., In re Toyota Motor
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`Corp., 2013 WL 3224585 at *3 & n.12 (approving class action settlement agreement for
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`state and federal claims providing that undistributed funds “will be escheated pursuant to
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`applicable State law,” which “would allow a class member to claim payments for a
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`number of years.”).
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`In contrast to reversion, where the defendant is only deterred to the extent that the
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`class claimed the damages, “escheat ensures full disgorgement from the defendant” and is
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`more likely to achieve deterrence. 4 Rubenstein, supra, § 12:31. In the absence of a cy
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`pres recipient whose interests reasonably approximate those of the class, allowing
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`undistributed funds to escheat to the state or federal government is a “viable alternative;”
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`it “will help serve the deterrence and enforcement goals” of the statutes violated, and if
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`the class members live in the same jurisdiction that would receive the funds, they would
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`benefit from the proposed distribution. In re Motor Fuel Temperature Sales Practices
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`Litig., No. 07-MD-1840-KHV, 2012 WL 5876558, at *6 (D. Kan. Nov. 20, 2012)
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`(approving settlement where undistributed funds would escheat to the several states
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`where class members purchased gas); see also Nachshin, 663 F.3d at 1041 (framing
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`
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`8
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`escheat as an option courts should consider for unclaimed settlement funds “[i]f a suitable
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`cy pres beneficiary cannot be located”); Six Mexican Workers, 904 F.2d at 1309
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`(remanding for decision between cy pres and escheat after claims period expires, noting
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`that “[i]n light of the deterrence objective of FLCRA and the nature of the violations, we
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`find that reversion of the funds to the defendants is not an available option.”).
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`POSITIONS OF THE PARTIES
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`The parties identify three options: 1) donation to a cy pres recipient, a charity or
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`nonprofit organization whose work is substantively related to TCPA violations; 2)
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`escheat to the government; or 3) reversion, where Dish would receive any undisbursed
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`funds. Dish unsurprisingly advocates for reversion, Doc. 581 at 2, and the plaintiff
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`maintains that most of the money should go to state unclaimed property funds—much of
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`which would ultimately escheat to the state—and the remainder to an as-yet unidentified
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`cy pres recipient. Doc. 578 at 7–8.
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`Specifically, the plaintiff asks that funds for the class members who did not submit
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`claims but who are identified by name and address should escheat to those members’
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`state unclaimed property funds. Id. at 7. They further request that all other unclaimed
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`funds, whether those for successful claimants who do not timely deposit their checks,
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`those who do not provide a tax identification number to the claims administrator and thus
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`receive a lower payment, those who did not submit claims and are not identified by
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`contact information in the administrator’s database, or those whose claims were denied,
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`should be distributed by cy pres to an entity to be determined in the future, id. at 8–9,
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`after evaluation of potential recipients by a special master. See Doc. 589 at 2.
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`9
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`DISCUSSION
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`“Congress enacted the Telephone Consumer Protection Act to prevent abusive
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`telephone marketing practices” by prohibiting calls to numbers on the national Do-Not-
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`Call registry and by allowing a private right of action against violators. Krakauer, 925
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`F.3d at 648. “Congress sought to deter an activity that, while pernicious and disruptive,
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`does not trigger extensive liability in any single case.” Id. at 656.
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`1. Reversion to Dish and State Escheat are Not Appropriate.
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`Here, the judgment funds represent 51,119 discrete and proven violations of the
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`statute. Even if the specific person who received Dish’s call was not successfully
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`contacted, or someone who was identified did not timely file a claim, Dish still made the
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`violative call to a member of the class and, thus, to a party: the class was defined in the
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`first instance as the persons whose phone numbers received such calls, not by the names
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`and addresses of the people involved.
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`The TCPA is a deterrence statute, and reversion does not support the statutory
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`goal. That is particularly true here, where the Court found Dish willfully violated the
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`statute. Moreover, Dish’s obstructive conduct after judgment in connection with
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`establishing a claims process resulted in substantial delays, see, e.g., Doc. 495 at 2–3,
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`which no doubt will increase the amount of unclaimed funds as people moved from
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`addresses in the record and the possibility of contacting them about claiming their share
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`of the judgment was reduced. Reversion to Dish is inappropriate.
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`Both a cy pres distribution and escheat support and further the aims of the TCPA.
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`Each supports the deterrence purpose of the statute by ensuring that Dish does not escape
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`10
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`responsibility for the damages imposed as a result of its 51,000-plus violations, and each
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`would support the punishment aspects of the treble damages provisions of the TCPA.
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`But escheat to the states is too costly to be feasible. It is likely to involve both
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`significant administrative costs in dividing up the unclaimed funds between the states and
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`significant resources from the court, class counsel, and the administrator in ensuring that
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`orders appropriate under the laws of the many states are clearly crafted and entered.
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`Escheat to the federal government does not have these problems, as it would be
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`relatively straightforward. It is appropriate, since violation of a federal statute was the
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`basis for the judgment. And cy pres, assuming an appropriate recipient exists, is still
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`potentially the best option.
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`Dish’s contentions that reversion is preferable and that cy pres and escheat are
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`either illegal or inappropriate are without merit. It makes numerous related arguments
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`based on its view that it should not pay damages for calls “when no individual has
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`demonstrated that he or she received them.” Doc. 581 at 10.
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`First, this is an incomplete description of the remaining funds, as some will no
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`doubt be due to people identified as class members who do not timely cash their checks
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`or do not complete the requisite tax forms. Second, this is an old argument that has been
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`repeatedly rejected by this Court and the Fourth Circuit. See, e.g., Krakauer, 925 F.3d at
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`657–59, 658; Krakauer v. Dish Network, LLC, 1:14-CV-333, 2019 WL 7066834, at *5
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`(M.D.N.C. Dec. 23, 2019). The evidence at trial established that all these phone calls
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`were received—that is, they were all answered phone calls. And, as noted supra, all class
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`members whose phone numbers received violative calls are parties, even if some of these
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`11
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`people were not successfully contacted to receive the judgment proceeds that they are
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`due. The jury verdict established that the violative calls were received, and the damages
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`were imposed on a per-call basis; the fact that the claims process was imperfect does not
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`erase the fact that Dish violated the TCPA when its agent made thousands of unwanted
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`sales calls to numbers on the Do-Not-Call registry.
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`Dish contends the deterrence interest in this case has already been served because
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`Dish and its retailers are subject to a permanent injunction in United States v. Dish
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`Network LLC, No. 3:09-cv-03073, 2017 WL 3437784 (C.D. Ill. Aug. 10, 2017) that will
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`regulate its conduct going forward, and it has also been “punished” in that case for many
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`of the same phone calls at issue in this case. Doc. 581 at 13. But Dish’s continued denial
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`of responsibility for the violations found by the jury in proceedings before this Court—
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`including in this very pending motion—belies the deterrent effect of the Illinois order.
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`The evidence at trial established that Dish ignored consent judgments with states, and
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`there no reason to think Dish will treat the Illinois injunction with more respect. The best
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`deterrence, and one that is necessary here where the motivation for the violations was to
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`sell more product and make more money, is the knowledge that future violations can
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`result in a real and significant threat to the bottom line.
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`Dish further contends that cy pres distribution is prohibited because it would
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`constitute a fluid recovery barred by the Fourth Circuit in Windham v. Am. Brands, Inc.,
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`565 F.2d 59, 72 (4th Cir. 1977). As this Court has repeatedly explained when Dish has
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`made this argument before, this case does not involve fluid recovery. See, e.g.,
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`Krakauer, 925 F.3d at 650–51, 658; Krakauer, 2019 WL 7066834, at *2, *5. To repeat:
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`12
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`The Fourth Circuit reversed the Windham district court because its method of calculating
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`and distributing damages for the Windham class circumvented the need to prove
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`individualized damages, see Windham v. Am. Brands, Inc., 68 F.R.D. 641, 657 (D.S.C.
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`1975), which was “illegal, inadmissible as a solution of the manageability problems of
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`class actions and wholly improper.” Windham, 565 F.2d at 72. In contrast, the Windham
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`court approved the type of award at issue in this case, where “the fact of injury and
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`damage breaks down in what may be characterized as virtually a mechanical task,
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`capable of mathematical or formula calculation.” Id. at 68 (internal quotations omitted).6
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`The objections to fluid recovery do not exist where, as here, the plaintiff proved damages
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`individually through class-wide proof. See Six Mexican Workers, 904 F.2d at 1307;
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`Nelson, 802 F.2d at 409. Cy pres distribution in this case is not prohibited by the fluid
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`recovery rule.
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`Dish also contends a cy pres distribution is prohibited because any cy pres
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`recipient would not have standing, essentially arguing that a cy pres distribution would be
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`unconstitutional. It cites no case or other authority to support this argument, Doc. 581 at
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`16, and any cy pres recipient would not be a party to this litigation. Moreover, standing
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`is a case-or-controversy issue that typically arises in the context of determining federal
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`6 Courts interpreting Windham have not read it to require reversion or to preclude cy pres
`distributions. See, e.g., In re Microsoft Corp. Antitrust Litig., 185 F. Supp. 2d 519, 522–23 (D.
`Md. 2002) (rejecting contention that Windham “forecloses a cy pres recovery here,” noting that
`the court in Windham held a fluid recovery theory “cannot be used as a mechanism for certifying
`a litigation class,” which is “an entirely different question” than how to distribute a class
`settlement fund); Haywood v. Barnes, 109 F.R.D. 568, 583–84 (E.D.N.C. 1986) (noting
`Windham did not apply since Haywood plaintiffs each sought damages in an amount determined
`by statute).
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`
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`13
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`jurisdiction, which this Court obviously has. Indeed, if there is a question about standing
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`in a non-jurisdictional sense, it is whether Dish has any “standing” to be heard on how
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`the Court deals with unclaimed funds. See Boeing Co. v. Van Gemert, 444 U.S. 472, 481
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`(1980) (noting that after paying a final class action judgment, the defendant had “no
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`interest in any part of the fund.”).
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`Dish next argues that escheat would result in a windfall to the states, relying on
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`Boeing. Doc. 581 at 21. In affirming the trial court decision ordering reversion, the
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`Second Circuit did note the special master’s conclusion that “the fact that certain private
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`plaintiffs had failed to come forward to collect on their judgment should not entitle the
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`states to a windfall.” Van Gemert, 739 F.2d at 737. This factor does weigh against
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`escheat to the states, but it does not preclude it, as no equitable remedy for unclaimed
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`funds is perfect.
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`2. Deciding between Cy Pres and escheat to the federal government.
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`As previously noted, both cy pres and escheat to the federal government are
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`consistent with the deterrence purposes of the TCPA and are feasible, cost-efficient
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`options, as would be some combination of the two. But in order to appropriately exercise
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`its discretion, the Court needs to know whether there are in fact appropriate cy pres
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`recipients and to make a concrete comparison to federal escheat. This is not a decision
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`that can be made hypothetically.
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`When courts decide that cy pres is appropriate, it appears to always be in the
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`context of an identified cy pres recipient. This is consistent with the case law, which
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`requires cy pres recipients to promote the objectives of the TCPA and benefit the interests
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`of the class members. See Nachshin, 663 F.3d at 1040 (noting that cy pres distribution
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`should address the objectives of the underlying statutes, target the plaintiff class, and
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`provide reasonable certainty that class members will benefit); see also supra at pp. 6-7.
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`If there are organizations that benefit the class by their work on behalf of consumers
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`injured by willful violators of the TCPA, like Dish, by, for example, providing direct
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`services, support, research, or advocacy for such consumers individually or in the
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`aggregate, a cy pres distribution might be appropriate. Such a distribution would likely
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`further the interests of those who, for a variety of reasons, did not claim the funds they
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`were due. But if there is not an appropriate cy pres recipient, then cy pres distribution
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`would not be a good option and escheat would be the logical choice.7
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`To that end, the Court has considered and will adopt class counsel’s proposed
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`procedure to appoint a special master who can identify and evaluate appropriate cy pres
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`recipients and make a recommendation to the Court. See Doc. 589. It makes sense to
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`have a special master receive proposals; this will not clog up the docket, will allow for
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`faster elimination of obviously specious or inappropriate recipients, and will provide a
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`careful evaluative recommendation for an appropriate recipient, if there is one. It would
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`be particularly time-consuming for the court to undertake this task on its own in the
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`middle of a pandemic, which is causing disruptions and delays throughout the court
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`system and which is requiring a significant amount of time and attention from judges and
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`7 The Court has not ruled out federal escheat, in whole or in part, even if there is a good
`candidate for a cy pres recipient. That evaluation is better made in context and in comparison to
`a specific candidate or candidates.
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`court personnel. Under these exceptional circumstances, and in aid of a timely decision,
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`the Court finds and concludes that appointment of a special master is appropriate under
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`both Federal Rule of Civil Procedure 53(a)(1)(B)(i) and Rule 53(a)(1)(C).
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`Specifically, pursuant to Rule 53, the Court gives notice of its intent to appoint a
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`special master to identify, evaluate, and recommend an appropriate cy pres recipient or
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`recipients, in light of the purposes of the TCPA and the interests of and benefits to the
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`class members who do not claim their share of the judgment. Class counsel has already
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`suggested candidates for the special master. Doc. 589 at 3–4. The Court is familiar with
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`all the suggested special masters from its years on the state and federal bench and is
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`comfortable appointing a special master from that list. If any party wishes to be heard
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`further as to the propriety of the appointment or as to a suggested appointment, see Rule
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`53(b)(1), the party may file an appropriate brief or suggestion within seven business days.
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`The Court previously approved an hourly compensation rate of $350 for a different
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`special master appointed to handle the claims process. See Doc. 448 at 4. If that rate is
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`not appropriate or acceptable to any of the plaintiff’s four suggested special masters, it
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`would be helpful if the plaintiff could so advise the Court. For any other suggestions, an
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`acceptable hourly rate should be included.
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`It is ORDERED that:
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`1. The defendant’s motion regarding disposition of unclaimed funds, Doc. 580,
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`asking that all unclaimed funds revert to Dish is DENIED.
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`2. The plaintiff’s motion for entry of an order governing disposition of
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`undisbursed class funds, Doc. 577, is DENIED in part, to the extent it suggests
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`escheat to state governments, and otherwise is held open for the Court to
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`decide between cy pres and federal escheat.
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`3. Notice is given pursuant to Federal Rule of Civil Procedure 53(b)(1) of the
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`intent to appoint a special master and the matter is held open for seven business
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`days in case any party wishes to be heard or heard further as to that
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`appointment.
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`This the 27th day of October, 2020.
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`__________________________________
` UNITED STATES DISTRICT JUDGE
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