Lieff Cabraser's gambit: Contacting 9,100 potential clients despite protective order

6 minute read

Large satellite dishes at the Los Angeles Broadcast Center of U.S. satellite TV operator DirecTV, May 18, 2014. REUTERS/Jonathan Alcorn

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(Reuters) - Somewhere in America, there are more than 9,100 DirecTV customers who may have valuable claims against the company for violating their privacy rights.

DirecTV knows who those 9,100 customers are. It provided their confidential information to an expert witness in a separate, since-failed Telephone Consumer Protection Act class action.

Plaintiffs' lawyers from the TCPA case, led by Lieff Cabraser Heimann & Bernstein, also know the identity of the 9,100 customers whose confidential information was disclosed. DirecTV produced the list of affected subscribers to Lieff and the other firms under a protective order in the TCPA class action.

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But the subscribers themselves – or, at least, the overwhelming majority of them – have no idea that DirecTV revealed their personal information to its expert witness in what may be a breach of the Satellite Television Extension and Localism Act. DirecTV maintains that it did nothing wrong because its customer agreements required subscribers to consent to disclosure of their data under relevant circumstances. An arbitrator overseeing one customer's case sided with company last May. In June, on the other hand, a different arbitrator awarded more than $165,000 in actual and punitive damages, plus nearly $60,000 in attorney’s fees, to a second DirecTV subscriber.

Those two are apparently the only DirecTV customers who have brought arbitration cases over the alleged privacy violation.

Lieff Cabraser has been trying since 2020 to persuade U.S. District Judge Mark Cohen of Atlanta to amend the protective order in the underlying case to allow the firm to notify all of the other subscribers of their potential privacy claims against DirecTV.

It’s been a futile effort. In September 2020, the judge said he wouldn’t modify the protective order to allow Lieff Cabraser to notify potential clients of privacy claims that hadn’t been tested and could turn out to be meritless. Last June, after winning that $165,000 arbitration award for onetime class action name plaintiff Rene Romero, Lieff Cabraser asked Cohen again to amend the protective, this time arguing that it would not serve justice to keep thousands of DirecTV customers in the dark after the validation of Romero’s claim.

Cohen denied Lieff Cabraser’s latest request on Friday, ruling that it would be unprecedented to modify a protective order to permit plaintiffs' lawyers to contact prospective clients. Lieff Cabraser, he said, couldn’t point to a single case establishing that the 9,100 customers whose information was disclosed actually have a right to be informed of their potential claim.

The judge was more blunt in the video hearing that preceded Friday’s ruling. “Honestly, folks, if I subscribe to what you want me to do, what do you think the odds are that that order is going to get affirmed on appeal? I would say slim and none,” Cohen told Lieff Cabraser. “There is no authority to do this. That's the problem.”

Lieff Cabraser’s response was audacious indeed. On Wednesday, Lieff partner Jonathan Selbin sent Cohen a letter notifying the judge that the plaintiffs firm intends to contact all of the 9,100 DirecTV customers – but not about their right to bring a claim against DirecTV for privacy violations. Selbin said Lieff wants to appeal the Jan. 7 ruling, so it plans to notify the 9,100 DirecTV customers affected by the decision that they must intervene in the case to have standing to appeal.

Lieff Cabraser, in other words, intends to contact 9,100 DirecTV customers to urge them to appeal a ruling that says the firm is not entitled to contact the exact same 9,100 DirecTV customers.

Selbin’s letter said Lieff Cabraser believes its intended outreach does not, in fact, violate the protective order, which includes language allowing for the use of confidential information in connection with the underlying litigation, including appeals. That language, Selbin said, encompasses notifying affected customers that their appellate rights are at stake. The Lieff lawyer also cited federal rules of civil procedure that safeguard a right to intervene for anyone with a “direct, substantial and legally protectable” right in a case.

“We do not wish to be perceived by the court as not complying with the January 7 order,” Selbin said in Wednesday’s letter. “While we believe our intended communication complies with this court’s January 7 order and the protective order, and have consulted with ethics experts who agree, we thought it appropriate to inform the court in advance so any concerns can be addressed.”

One intriguing twist – as if this case needed more of them – is that Lieff Cabraser did, in fact, previously use information produced under the protective order to reach out to prospective plaintiffs, and DirecTV raised no objection at the time. Back in 2017, after it first learned of the disclosure of customer information to DirecTV’s TCPA expert, Lieff sought to add privacy claims to the TCPA class action. It contacted “a handful” of potential class representatives, according to Selbin, but ended the outreach when Romero agreed to be lead plaintiff. (The 11th U.S. Circuit Court of Appeals later ruled that customers were required to arbitrate claims individually.)

I emailed DirecTV’s lead counsel, Hans Germann of Mayer Brown, who referred my query to parent company AT&T Inc. An AT&T spokesperson did not provide a statement.

Selbin told me by email that Lieff Cabraser is simply trying “to make sure these consumers know what happened and that they can seek to hold DirecTV accountable.” The Lieff lawyer told me, as he has repeatedly told Cohen, that even DirecTV customers who may be aware that private information was disclosed to the company's TCPA expert have no way to find out whether their particular data was turned over.

“There is literally no amount of due diligence on their part that would tell them they were on the list unless someone tells them,” Selbin said. “DirecTV is using the protective order to keep it secret.”

As of midafternoon on Thursday, neither DirecTV nor Cohen had docketed a response to Selbin’s letter. We will see how long their silence lasts.

Read more:

Judge won't let plaintiffs' lawyers contact DirecTV customers for mass arbitration – yet

Latest mass arbitration wrinkle: Plaintiffs' lawyers want court permission to contact DirecTV customers

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.