IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GARY HANLEY on behalf of himself and others

similarly situated,

         Plaintiff,  

                      v.

FIFTH THIRD BANK,

         Defendant.   

)

)

)

)

)

)

)

)

1:12‐cv‐1612

Judge Castillo

Magistrate Judge Valdez

JURY DEMANDED

PLAINTIFF’S MOTION AND INCORPORATED MEMORANDUM IN SUPPORT OF UNOPPOSED

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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TABLE OF CONTENTS

Page No.

I. INTRODUCTION................................................................................................................. 1

II. NATURE OF THE CASE ....................................................................................................... 2

III. THE PROPOSED SETTLEMENT ........................................................................................... 3

A. The Settlement Class............................................................................................. 3

B. The Settlement Fund ............................................................................................ 4

C. Notice and Settlement Administration................................................................. 4

D. Opt‐Out and Objection Procedures...................................................................... 5

E. Release.................................................................................................................. 6

IV. ARGUMENT ....................................................................................................................... 7

A. The Settlement Is Well Within the Range of Possible Approval  

and Therefore Warrants Preliminarily Approval .................................................. 7

    1. All Factors Favor Preliminary Approval..................................................... 9

    a. The settlement provides significant benefits to  

the Settlement Class, particularly in light of the  

uncertainty of prevailing in the litigation ..................................... 9

    b. This litigation has already involved briefing of  

critical legal issues and expansive and complex  

discovery ..................................................................................... 10

    c. The settlement resulted from extensive arms‐length  

negotiations and is not the product of collusion........................ 11

    2. Plaintiff’s Requested Fees Are Reasonable............................................. 11

    3. The Requested Enhancement Award Is Reasonable .............................. 12

    4. The Proposed Class Notice Is Adequate ................................................. 13

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B. The Court Should Grant Class Certification for Settlement Purposes................ 16

    1. The Rule 23(a) factors are met ............................................................... 17

    a. The class is sufficiently numerous and joinder is  

impracticable .............................................................................. 17

    b. The Settlement Class shares many common issues of  

law and fact................................................................................. 18

    c. The Plaintiff’s claims are typical of the Settlement Class........... 19

    d. The Plaintiff and his counsel are adequate  

representatives........................................................................... 19

    2. The Rule 23(b)(3) factors are met........................................................... 20

C. Scheduling Final Approval Hearing Is Appropriate ............................................. 22

V. CONCLUSION................................................................................................................... 23

   

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TABLE OF AUTHORITIES

Page No.

FEDERAL CASES

Amchem Prods. v. Windsor,  

521 U.S. 591 (1997)................................................................................................... 20, 21

Am. Int’l Grp., Inc. et al., v. ACE INA Holdings, et al.,  

Nos. 07‐cv‐2898, 09 C 2026, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012)............. 1, 2, 7, 21

Armstrong v. Bd. of Sch. Dirs. of the City of Milwaukee,  

616 F.2d 305 (7th Cir. 1980) ......................................................................................... 7, 9

Bellows v. NCO Fin. Sys., Inc.,  

No. 07‐CV‐1413 W(AJB), 2009 WL 35468 (S.D. Cal. Jan 5, 2009) ................................... 12

Burns v. First Am. Bank,  

No. 04 C. 7682, 2006 U.S. Dist. LEXIS 92159 (N.D. Ill. Dec. 19, 2006)............................. 14

City of Greenville, et al. v. Syngenta Crop Prot., Inc., et al.,  

No. 3:10‐cv‐188‐JPG‐PMF, 2012 WL 1948153 (S.D. Ill. May 30, 2012) ............................ 8

Cook v. Niedert,  

132 F.3d 1004 (7th Cir. 1998) ......................................................................................... 13

F.C.V., Inc. v. Sterling Nat’l. Bank,  

652 F. Supp. 2d 928 (N.D. Ill. 2009) ................................................................................ 15

Gammon v. GC Servs. Ltd. P’ship.,  

162 F.R.D. 313 (N.D. Ill. 1995)......................................................................................... 20

Golon v. Ohio Savs. Bank,  

98 C 7430, 1999 WL 965593 (N.D. Ill. Oct. 15, 1999) ..................................................... 22

Haynes v. Logan Furniture,  

503 F.2d 1161 (7th Cir. 1974) ......................................................................................... 21

Henry v. Cash Today, Inc.,  

199 F.R.D. 566 (S.D. Tex. 2000)....................................................................................... 21

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In re Ky. Grilled Chicken Coupon Mktg. & Sales Practices Litig.,  

280 F.R.D. 364 (N.D. Ill. 2011)............................................................................... 8, 13, 21

In re Northfield Labs., Inc. Sec. Litig.,  

No. 06 C 1493, 2012 WL 366852 (N.D. Ill. Jan. 31, 2012) ............................................. 8, 9

   

In re Synthroid Mktg. Litig.,  

264 F.3d 712 (7th Cir. 2001) ........................................................................................... 12

In re Vivendi Universal, S.A.,  

242 F.R.D. 76 (S.D.N.Y. 2007).......................................................................................... 15

Isby v. Bayh,  

75 F.3d 1191 (7th Cir. 1996) ............................................................................................. 9

Kinder v. Nw. Bank,  

No. 1:10‐cv‐405, 2012 U.S. Dist. LEXIS 97496 (W.D. Mich. June 5, 2012)...................... 14

Mangone v. First USA Bank,  

206 F.R.D. 222 (S.D. Ill. 2001).......................................................................................... 15

Mars Steel Corp. v. Cont’l Ill. Nat’l. Bank & Trust Co. of Chicago,  

834 F. 2d 677 (7th Cir. 1987) .......................................................................................... 11

McCabe v. Crawford & Co.,  

210 F.R.D. 631 (N.D. Ill. 2002)......................................................................................... 17

Medina v. Mfrs. & Traders Trust Co.,  

No. 04 C 2175, 2004 WL 3119019 (N.D. Ill. Dec. 14, 2004) ............................................ 14

Mullane v. Cent. Hanover Bank & Trust Co.,  

339 U.S. 306, 70 S.Ct. 652 (1950).................................................................................... 15

Murray v. GMAC Mortg. Corp.,  

434 F.3d 948 (7th Cir. 2006) ........................................................................................... 21

Parker v. Risk Mgmt. Alts., Inc.,  

206 F.R.D. 211 (N.D. Ill. 2002)......................................................................................... 19

Phillips Petroleum Co. v. Shutts,  

472 U.S. 797 (1985)......................................................................................................... 21

Rahim v. Sheahan,  

No. 99 C 0395, 2001 WL 1263493 (N.D. Ill. Oct. 19, 2001)............................................. 20

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Randolph v. Crown Asset Mgmt., LLC,  

254 F.R.D. 513 (N.D. Ill. 2008)......................................................................................... 18

Reliable Money Order, Inc., v McKnight Sales Co., Inc.,  

218 F.R.D. 327 (E.D. Wis. 2012) ...................................................................................... 18

Schulte v. Fifth Third Bank,  

805 F. Supp.2d 560 (N.D. Ill. 2011) ................................................................................... 9

Shurland v. Bacci Cafe & Pizzeria on Ogden, Inc.,  

271 F.R.D. 139 (N.D. Ill. 2010)................................................................................... 14, 15

Simer v. Rios,  

661 F.2d 655 (7th Cir. 1981) ........................................................................................... 15

Sledge v. Sands,  

182 F.R.D. 255 (N.D. Ill. 1998)......................................................................................... 20

Synfuel Techs., Inc. v. DHL Express (USA), Inc.,  

463 F.3d 646 (7th Cir. 2006) ............................................................................................. 9

FEDERAL STATUTES

47 U.S.C. §227(b)(1)(A)(iii) ............................................................................................................ 2

FEDERAL RULES

Fed. R. Civ. P. 23(a)(4)................................................................................................................. 19

Fed. R. Civ. P. 23(c)(2)(B)....................................................................................................... 14, 16

Fed. R. Civ. P. 23(d)(2)................................................................................................................. 13

OTHER AUTHORITIES

H. Newberg & A. Conte, Newberg on Class Actions § 3:13 (4th ed. 2002) ................................ 19

H. Newberg & A. Conte, Newberg on Class Actions § 11:22 (4th ed. 2002) .............................. 17

H. Newberg & A. Conte, Newberg on Class Actions § 11:41 (4th ed. 2002) ................................ 7

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H. Newberg & A. Conte, Newberg on Class Actions § 11:42 (4th ed. 2002) .............................. 11

In re Rules and Regulations Implementing the Telephone Consumer Protection  

Act of 1991, 23 FCC Rcd 559, 566 (Jan. 4, 2008)............................................................... 2

Manual for Complex Litig. § 21.31 (4th ed. 2004)...................................................................... 13

Manual for Complex Litig. § 21.62 (4th ed. 2004)...................................................................... 13

Manual for Complex Litig. § 21.633 (4th ed. 2004)...................................................................... 8

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I.  INTRODUCTION

After more than a year of hard‐fought litigation, three formal mediation sessions, and

additional informal negotiations over a span of several months, the parties in this Telephone

Consumer Protection Act, 47 U.S.C. §227(b) (“TCPA”)  case have reached a proposed class

action settlement.  (See Settlement Agreement, Ex. A, Pls.’ Mot. Prelim. App.)  The settlement

establishes a $4.5 million fund that Plaintiff expects will pay class members an estimated

$200‐$300 per claim.  The settlement calls for direct notice by United States Mail to the

approximately 200,000 persons that Fifth Third determined might be members of the

Settlement Class and for whom Fifth Third has names and addresses in its records, and

publication and targeted Internet advertising notice calculated to reach any class members

who, for whatever reason, may not receive mailed notice.  

If approved, the settlement would bring a sure end to what otherwise has been, and

likely would continue to be, contentious and costly litigation centered on the unsettled legal

question of Fifth Third Bank’s liability for the allegedly unlawful collection calls challenged in

this action.   

In this motion, Plaintiff seeks preliminary certification of a settlement class, approval of

claims procedures, and approval of the proposed form and method of class notice.  This

memorandum describes in detail the reasons why preliminary approval is in the best interests

of the class, and is consistent with Rule 23.

In evaluating the fairness of a proposed class action settlement, the most important

consideration is the strength of the plaintiff’s case on the merits balanced against the amount

offered in the settlement.  Am. Int’l Grp., Inc. et al., v. ACE INA Holdings, et al., Nos. 07‐cv‐2898,

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09 C 2026, 2012 WL 651727, at *2 (N.D. Ill. Feb. 28, 2012).  While the Plaintiff believes he would

secure class certification and prevail on the merits at trial, success is not assured.  At every turn,

Fifth Third has vigorously defended this case.  The relief provided here—cash payments from

the settlement fund—meets and exceeds the applicable standards of fairness.  Accordingly, the

Court should preliminarily approve the settlement so that class members can receive notice of

their rights.

II.  NATURE OF THE CASE

The TCPA prohibits the placement of telephone calls to cell phones using any “automatic

telephone dialing system,” unless the caller has the “prior express consent” of the called party

to make such calls.  47 U.S.C. §227(b)(1)(A)(iii).  Between 2008 and 2012, Plaintiff Gary Hanley

received hundreds of calls from Fifth Third Bank, which was attempting to collect two separate

auto loans.  Plaintiff alleges that Fifth Third also made calls to other Fifth Third customers who

were allegedly in default during the class period.  Plaintiff alleges that Fifth Third made the calls

using an “automatic telephone dialing system” as that term is used in the TCPA.1

The Federal Communications Commission has determined that providing one’s

telephone number to a creditor constitutes “prior express consent” to be called at that number,

as to that account.  In re Rules and Regulations Implementing the Telephone Consumer

Protection Act of 1991, 23 FCC Rcd 559, 566 (Jan. 4, 2008).  Plaintiff provided his cellular

telephone number to Fifth Third on the loan application for one of the loans about which Fifth

Third was calling, but later requested that the calls cease.  Plaintiff did not provide his cellular

telephone number to Fifth Third in the application itself for the second loan about which Fifth

 

1 For purposes of this case only, the parties stipulated to the fact that the calls were made using

equipment that is regulated by the TCPA. [Docket Item 35]

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Third was calling.  Plaintiff contends that all calls regarding the loan where the telephone

number was not on the loan application violated the TCPA, and that all calls regarding the

second loan that were made after his requests that they stop constituted TCPA violations.  

Fifth Third disagrees with Plaintiff, and contends that it had the express consent of

Plaintiff for all calls it made to Plaintiff’s cell phone.  Further, Fifth Third contends that it

similarly had consent to call each and every class member and that neither Plaintiff nor the

class members have the ability to revoke that consent under the TCPA.  

For settlement purposes, however, Fifth Third searched its records to determine which

of its customers may be in a similar situation as Plaintiff.  After conducting this investigation,

Fifth Third estimates that there are approximately 200,000 cell phone numbers that it (or some

entity on its behalf) called using an autodialer between January 2007 and November 2012, who

did not provide their phone number to Fifth Third at the time of loan origination.

III.  THE PROPOSED SETTLEMENT

A.    The Settlement Class  

The proposed settlement would establish a “Settlement Class” defined as follows:

All persons to whom, on or after March 6, 2008 through the date of Preliminary

Approval, Fifth Third or any of its affiliates or subsidiaries, or any entity acting on its

behalf, placed a non‐emergency telephone call to a cellular telephone through the use

of an automatic telephone dialing system and/or an artificial or prerecorded voice,

without the consent of such person.  

  

Excluded from the Settlement Class are the Judge to whom the Action is assigned and any

member of the Judge’s staff and immediate family, as well as all persons who validly request

exclusion from the Settlement Class.  (Ex. A § II.A.28–29)

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B.    The Settlement Fund  

The proposed settlement would establish a $4.5 million fund that will be used to pay

notice and administration costs (estimated at around $300,000), Court‐approved attorneys’

fees (up to 33 1/3 percent of the $4.5 million fund), reimbursement of costs and expenses,

Court‐approved service payments to Plaintiff (up to $25,000), and payments to Settlement

Class members (“Settlement Fund”).  (Ex. A § III.C)  Authorized claimants are entitled to equal

shares of the remainder of the Settlement Fund after payments for notice, administration,

attorneys’ fees and costs, and Plaintiff’s service payments with a maximum cap of $10,000 per

claimant.  (Ex. A § III.F)

Plaintiff anticipates a payout in the range of $200‐$300 per Settlement Class member

claim.  Because of the size of the cap to the amount Settlement Class members may recover, cy

pres is expected to be minimal, and arise only from uncashed checks or similar leftover

funds.  The parties plan to jointly suggest that the Court approve Coordinated Advice and

Referral Program for Legal Services (CARPLS), a non‐profit organization that provides pro bono

legal services, as the recipient of such funds.  (Ex. A § III.F.3)  

C.    Notice and Settlement Administration

As noted above, the Settlement Class members are consumers who received autodialed

or prerecorded calls to their cell phones between March 6, 2008 and the date of Preliminary

Approval.  Because the class is comprised primarily of Fifth Third customers, the parties have

determined that notice should be sent via United States Mail to the best known address for the

persons that Fifth Third’s reasonably available computerized account records show were called,

and did not consent to the call(s).  To that end, Fifth Third has investigated its records and

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created a list comprised of the names and contact information for such persons (the “Class

List”).  

Despite Fifth Third’s efforts to investigate and compile the Class List, the parties

understand that the Class List may be imperfect.   For example, class members may have moved

or changed their phone numbers.  Therefore, the parties have agreed to do a comprehensive

publication notice regime, targeted to reach persons within the area codes and geographical

areas where Fifth Third does business.  (Ex. A, § III.E)2  

This publication notice will include print publication in several regional newspapers, as

well as targeted internet advertisements/impressions.  (Ex. A, § III.E.2)  The parties have also

agreed to establish an Internet website, which class members may visit to learn about the

settlement, and obtain documents such as the settlement agreement, notice and claim form.  

(Ex. A, § III.E.3)  The parties have agreed upon, and propose that the Court approve, nationally‐

recognized class action administration firm Rust Consulting to implement and administer notice

and administration of the settlement.  (Ex. A, §§ II.A.6 & III.D)

D.    Opt‐Out and Objection Procedures

Settlement Class members will have an opportunity to exclude themselves from the

settlement or object to its approval.  (See Ex. A, §§ III.J & III.K) The procedures and deadlines for

filing opt‐out requests and objections will be conspicuously listed in the notices and on the

settlement website.  With regard to objections, the notices inform settlement class members

that they will have an opportunity to appear and have their objections heard by this Court at a

 

2 These areas include: Cincinnati, OH; Columbus, OH; Cleveland, OH; Toledo, OH; Pittsburgh, PA; Grand

Rapids, MI; Southfield, MI; Chicago, IL; Indianapolis, IN; Evansville, IN; St. Louis, MO; Louisville, KY;

Naples, FL; Tampa, FL; Orlando, FL; Jacksonville, FL; Nashville, TN; Charlotte, NC; and Atlanta, GA.  

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Final Approval Hearing.  (Ex. A, Exs. C, E, F) The notices also inform settlement class members

that they will be bound by the release unless they timely exercise their opt‐out right.  Id.

E.    Release

The release is appropriately tailored to the claims raised in the case.  In exchange for

settlement benefits, Plaintiff and Settlement Class members will release Fifth Third, its

executives, employees and related entities as well as third parties that engaged in use of

autodialers on its behalf, from liability for all causes of action alleging improper use of an

“automatic telephone dialing system” and/or an “artificial or prerecorded voice” to make

telephone calls to a cellular telephone.  (Ex. A § III.M).  The precise release, as agreed by the

parties, is as follows:

Plaintiff and each and all Settlement Class Members, on behalf of themselves

and their respective heirs, executors, administrators, representatives, agents,

attorneys, partners, successors, and predecessors‐in‐interest, will be deemed to

have fully released and forever discharged Fifth Third Bank and its respective

predecessors, successors, parents, subsidiaries, divisions, assigns and affiliates,

and each of their respective past or present officers, directors, employees,

attorneys, shareholders, managers, members, principals, agents, accountants,

auditors, advisors, consultants, insurers, vendors, contractors and any other

person or entity acting on their behalf  (together, the “Released Parties”) from

any and all claims, actions, causes of action or liabilities as of the date of the

Final Approval Order that claim improper use of an “automatic telephone dialing

system” and/or an “artificial or prerecorded voice” to make telephone calls to a

cellular telephone by or on behalf of the Released Parties in connection with

efforts to contact or attempt to contact Settlement Class Members by or on

behalf of Fifth Third which give rise to claims under or for violations of the

Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.

(Ex. A § III.M).   

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IV.  ARGUMENT

A. The Settlement Is Well Within the Range of Possible Approval and Therefore Warrants

Preliminarily Approval  

   The settlement represents a fair and reasonable resolution of this dispute and is worthy

of notice to, and consideration by, the Settlement Class members.  It will provide financial relief

to participating Settlement Class members and will relieve the parties of the burden,

uncertainty and risk of continued litigation.

Under Rule 23(e)(2), a court may approve a class action settlement if it is “fair,

reasonable, and adequate.”  A proposed class settlement is presumptively fair where it “is the

product of arm's length negotiations, sufficient discovery has been taken to allow the parties

and the court to act intelligently, and counsel involved are competent and experienced.”  

H. Newberg & A. Conte, Newberg on Class Actions (“Newberg”) § 11:41 (4th ed. 2002);

Goldsmith v. Tech Solutions Co., No. 92 C 4374, 1995 WL 17009594, at *3 (N.D. Ill. Oct. 10,

1995).   

As the Seventh Circuit recognizes, courts generally favor settlements of class actions:

It is axiomatic that the federal courts look with great favor upon the voluntary

resolution of litigation through settlement.    In the class action context in

particular, ‘there is an overriding public interest in favor of settlement.’

Settlement of the complex disputes often involved in class actions minimizes the

litigation expenses of both parties and also reduces the strain such litigation

imposes upon already scarce judicial resources.

Armstrong v. Bd. of Sch. Dirs. of the City of Milwaukee, 616 F.2d 305, 312‐13 (7th Cir. 1980)

(citations and quotations omitted), overruled on other grounds by Felzen v. Andreas, 134

F.3d 873 (7th Cir. 1998); Am. Int’l Grp., 2012 WL 651727, at *1 (“Federal courts naturally favor

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the settlement of class action litigation.”) (quoting Isby v. Bayh, 75 F.3d 1191, 1196 (7th

Cir. 1996)).

District court review of a class action settlement is a two‐step process.  In re Northfield

Labs., Inc. Sec. Litig., No. 06 C 1493, 2012 WL 366852, at *5 (N.D. Ill. Jan. 31, 2012) (citing In re

AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 346 (N.D. Ill. 2010)).  At the

preliminary approval stage, the question for this Court is whether the settlement falls well

within the “range of possible approval,” and is sufficiently fair, reasonable, and adequate to

warrant dissemination of notice apprising class members of the proposed settlement and to

establish procedures for a final settlement hearing under Rule 23(e).  Id.; City of Greenville, et

al. v. Syngenta Crop Prot., Inc., et al., No. 3:10‐cv‐188‐JPG‐PMF, 2012 WL 1948153, at *3 (S.D.

Ill. May 30, 2012); Newburg, supra, § 11.41.  If the district court preliminarily approves a class

action settlement, it then proceeds to the second step in the review process, the fairness

hearing.  In re Northfield Labs, 2012 WL 366852, at *5; Manual for Complex Litig. § 21.633 (4th

ed. 2004).

In assessing the fairness, reasonableness and adequacy of a settlement, courts view the

facts in the light most favorable to the settlement.  In re Ky. Grilled Chicken Coupon Mktg. &

Sales Practices Litig., 280 F.R.D. 364, 375 (N.D. Ill. 2011) (citing Isby, 75 F.3d at 1199). “[T]he

Court must not substitute its own judgment as to the optimal settlement terms for the

judgment of the litigants and their counsel.”  Id. (citing Armstrong, 616 F.2d at 315).  To

evaluate fairness at the preliminary approval stage, courts consider the following factors: (1)

the strength of the case for plaintiffs on the merits, balanced against the amount offered in

settlement; (2) the complexity, length and expense of the litigation; (3) the presence of

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collusion in reaching a settlement; and (4) the stage of the proceedings and the amount of

discovery completed.  Id. (citing Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653

(7th Cir. 2006)); see also Armstrong, 616 F.2d at 314; Isby, 75 F.3d at 1199.  Of these

considerations, the first is most important. Synfuel Techs., Inc., 463 F.3d at 653.

1. All Factors Favor Preliminary Approval

a.    The settlement provides significant benefits to the Settlement Class,

particularly in light of the uncertainty of prevailing in the litigation

Although the precise amount of each Settlement Class member’s award cannot be

determined, Plaintiff estimates a payout in the range of $200‐$300 per Settlement Class

member, which is substantial in a TCPA class action settlement.  The amount of the settlement

and the payments to Settlement Class members are particularly significant in light of the risks of

ongoing litigation.  Fifth Third has strenuously denied that class certification is appropriate in

this case.  Courts are split and have either granted or denied class certification in TCPA cases

depending upon the facts of the case.  Compare Bridgeview Heath Care Ctr. Ltd. v. Clark, No.

09 C 5601, 2011 WL 4628744, at *5 (N.D. Ill. Sept. 30, 2011) (granting class certification) with

Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162, 1169 (S.D. Ind. 1997) (denying class

certification).  If Fifth Third were able to present convincing facts to support its position, the

Court could have refused to certify the class, leaving only the named Plaintiff to pursue his

individual claims.” “Settlement allows the class to avoid the inherent risk, complexity, time, and

cost associated with continued litigation.” See Schulte v. Fifth Third Bank, 805 F. Supp.2d 560,

586 (N.D. Ill. 2011) (citation omitted).  “If the Court approves the [settlement], the present

lawsuit will come to an end and [Settlement Class members] will realize both immediate and

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future benefits as a result.”  Id.  Plaintiff and Settlement Class members will receive their

payments now, instead of years from now—or perhaps never.  See id. at 582.

b. This litigation has already involved briefing of critical legal issues and

expansive and complex discovery

The case has required the parties to brief certain legal issues, including in particular, the

critical and unsettled issue of what might constitute “prior express consent” to receive

autodialed calls on one’s cellular telephone, an issue challenged by Fifth Third when Plaintiff

requested leave to file an amended complaint.  See Dkt. No. 39.  Fifth Third argued that

Plaintiff’s proposed amendments would be futile.  See id.  After extensive briefing, the Court

granted Plaintiff’s motion for leave to amend, without commenting on the substantive merits of

“prior express consent,” leaving the issue open for later determination.  See Dkt. No. 48.  The

risks and uncertainties of that determination for both parties is one of the primary reasons for

this settlement.  

The parties have also engaged in discovery regarding Fifth Third’s calling practices and

policies, and call data relating to the class.  Ex. B, Declaration of Alexander H. Burke.  Indeed,

Fifth Third conducted an extensive investigation of its records and has estimated that

approximately 200,000 cell phone numbers belonging to individuals who did not provide their

phone number to Fifth Third at the time of loan origination were called using an autodialer

between January 2007 and November 2012.

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c.    The settlement resulted from extensive arms‐length negotiations and is

not the product of collusion

The requirement that a settlement be fair is designed to protect against collusion

among the parties.  Mars Steel Corp. v. Cont’l Ill. Nat’l. Bank & Trust Co. of Chicago, 834 F. 2d

677, 684 (7th Cir. 1987) (approving settlement upon a finding of no “hanky‐panky” in

negotiations).  There is an initial presumption that a proposed settlement is fair and reasonable

when it was the result of arms‐length negotiations.  Newberg, supra, § 11:42.  Here, the

proposed settlement was negotiated after a year of hard‐fought litigation, followed by several

months of highly contested settlement negotiations.  Counsel for the parties are particularly

experienced in the litigation, certification, trial, and settlement of nationwide class action cases.  

In negotiating this settlement, Plaintiff’s counsel had the benefit of years of experience with

class actions in general and a familiarity with the facts of this case. Ex. B, Declaration of

Alexander H. Burke, Ex. C, Declaration of Beth E. Terrell.  Three experienced mediators, Judge

Valdez, Judge Neville (Ret.) at JAMS, and Judge Castillo participated actively throughout the

negotiation process. Ex. B. The fact that Plaintiff achieved an excellent result for the Settlement

Class despite facing significant procedural and substantive hurdles is a testament to the non‐

collusive nature of the proposed settlement.  

2. Plaintiff’s Requested Fees Are Reasonable

Pursuant to the Settlement Agreement, Plaintiff’s counsel seek an award of $1,500,000,

to compensate them for reasonable fees associated with this action.  Plaintiffs’ counsel also

seek reimbursement for reasonable costs incurred prosecuting this action.  Plaintiff’s fee and

costs request, which was negotiated only after the substantive terms of the Settlement

Agreement were agreed upon, amounts to 33.33% of the total $4,500,000 Settlement fund.   

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The requested fee is reasonable under the circumstances of this case.  In the Seventh

Circuit, “courts must do their best to award counsel the market price for legal services, in light

of the risk of nonpayment and the normal rate of compensation in the market at the time.”  In

re Synthroid Mktg. Litig., 264 F.3d 712, 718 (7th Cir. 2001) (citing cases).  Plaintiff’s counsel have

achieved an excellent result for the Class in a relatively short period of time.  The settlement

creates a non‐reversionary Settlement Fund of $4,500,000.  The majority of the Fund will be

distributed as monetary awards to Settlement Class members.  Further, although Plaintiff’s

counsel were confident in their ability to succeed at class certification and at trial, success was

by no means guaranteed, especially considering First Third’s substantial opposition and the

complexity of the issues involved.  Because Plaintiff’s counsel agreed to prosecute this case on

contingency with no guarantee of ever being paid, they faced substantial risk should they

proceed to trial.  Finally, the fee is also in line with those approved in other TCPA cases.  See,

e.g., Bellows v. NCO Fin. Sys., Inc., No. 07‐CV‐1413 W(AJB), 2009 WL 35468, at *8 (S.D. Cal. Jan

5, 2009) (awarding fees and costs equal to 31.6 of the settlement fund).   

Prior to final approval, Plaintiff’s counsel will file a separate motion for award of

attorneys’ fees and costs, addressing in greater detail the facts and law supporting their fee

request in light of all of the relevant facts.

3. The Requested Enhancement Award Is Reasonable

Enhancement awards for class representatives like the one requested here are

appropriate.  Such awards, which serve as premiums in addition to any claims‐based recovery

from the settlement, promote the public policy of encouraging individuals to undertake the

responsibility of representative lawsuits.  See Cook v. Niedert, 132 F.3d 1004 (7th Cir. 1998)

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(approving incentive award of $25,000 to named plaintiff); In re Ky. Grilled Chicken Coupon

Mktg. & Sales Practices Litig., 280 F.R.D.at 382–83 (approving incentive award to named

plaintiffs because their efforts significantly benefitted the class); see also Manual for Compl. Lit.

§ 21.62 n. 971 (incentive awards may be “merited for time spent meeting with class members,

monitoring cases, or responding to discovery”).  Such awards are generally proportional to the

representatives’ losses or claims, and can range from several hundred dollars to many

thousands of dollars.   

Here, Plaintiff’s requested enhancement award is appropriate.  Unlike unnamed

Settlement Class members, who will enjoy the benefits of the representatives’ efforts without

taking any personal action, Plaintiff Hanley exposed himself to Fifth Third’s investigation,

committed himself to all the rigors of litigation in the event the case did not settle, and

subjected himself to all the obligations of named parties.   

4. The Proposed Class Notice Is Adequate

Under Rule 23(c)(2), class members are entitled to notice of any proposed settlement

and an opportunity to object or opt out before it is finally approved by the Court.  Manual for

Complex Litig. § 21.31 (4th ed. 2004).  The advisory committee note to Rule 23 states that the

“mandatory notice pursuant to subdivision (c)(2) . . . is designed to fulfill requirements of due

process to which the class action procedure is of course subject.”  Fed. R. Civ. P. 23(d)(2)

advisory committee’s note.   

The Seventh Circuit has explained, “in recognition of the potential divergence of

interests within the class, each class member in actions for money damages is entitled as a

matter of due process to personal notice and an opportunity to opt out of the class action . . . .

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Accordingly, Rule 23(c)(2) guarantees those rights for each member of a class certified under

Rule 23(b)(3).”  Shurland v. Bacci Cafe & Pizzeria on Ogden, Inc., 271 F.R.D. 139, 144 (N.D. Ill.

2010) (quoting Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, AFL–CIO, 216 F.3d 577,

580 (7th Cir. 2000)).  Rule 23(c)(2)(B) states for class actions such as this one, “the court must

direct to class members the best notice that is practicable under the circumstances, including

individual notice to all members who can be identified through reasonable effort,” and explain

the details of the action to those members, including the opportunity to opt out.  Fed. R. Civ. P.

23(c)(2)(B) (emphasis added).

The requirement of “personal notice” does not mean that each individual who is

potentially a member of the class must receive actual notice of the class action.  Medina v.

Mfrs. & Traders Trust Co., No. 04 C 2175, 2004 WL 3119019, at *3 (N.D. Ill. Dec. 14, 2004) (Rule

23(b)(3) class) (“This [best notice practicable] standard can be satisfied even though a particular

class member never receives actual notice.”); Kinder v. Nw. Bank, No. 1:10‐cv‐405, 2012 U.S.

Dist. LEXIS 97496, at *6 (W.D. Mich. June 5, 2012) (“Neither Rule 23 nor due process, however,

requires actual notice to each party intended to be bound by the adjudication of a class

action.”) (citing Fidel v. Farley, 534 F.3d 508, 514 (6th Cir. 2008)).  There is an abundance of case

law that supports notice by publication alone in class actions where individual class members

cannot be easily identified.  See, e.g., Burns v. First Am. Bank, No. 04 C. 7682, 2006 U.S. Dist.

LEXIS 92159, at *33‐38 (N.D. Ill. Dec. 19, 2006) (rejecting argument that class is unmanageable

due to “serious obstacles . . . in the process of trying to identify class members and provide

notice to them,” because “general public notice” will suffice where individual notice is not

reasonable).  The Court must simply make certain that class members receive “the best

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practicable notice that is: ‘reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present

their objections.’”  F.C.V., Inc. v. Sterling Nat’l. Bank, 652 F. Supp. 2d 928, 944 (N.D. Ill. 2009)

(Rule 23(b)(3) class) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808 (1985)).   

As the Supreme Court explained: “This Court has not hesitated to approve of resort to

publication as a customary substitute in [a] class of cases where it is not reasonably possible or

practicable to give more adequate warning.  Thus it has been recognized that, in the case of

persons missing or unknown, employment of an indirect and even a probably futile means of

notification is all that the situation permits and creates no constitutional bar to a final decree

foreclosing their rights.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 316, 70 S.Ct.

652 (1950) (discussing “best notice practicable” in the context of a common trust fund

settlement). Courts have “broad discretion in fashioning the notice program in each particular

case,” Mangone v. First USA Bank, 206 F.R.D. 222, 232 (S.D. Ill. 2001) (Rule 23(b)(3) class),

“subject only to the broad ‘reasonableness' standards imposed by due process.”  Simer v. Rios,

661 F.2d 655, 686 (7th Cir. 1981) (Swygert, J., dissenting) (Rule 23(b)(3) class) (quoting Grunin v.

Int’l House of Pancakes, 513 F.2d 114, 121 (8th Cir. 1975)).

In cases where the names and addresses of class members are not readily ascertainable,

notice by publication alone is sufficient.  See Shurland, 271 F.R.D. at 146 (“[T]he court is

satisfied that notice by publication may be sufficient when individual class members cannot be

identified.”); In re Vivendi Universal, S.A., 242 F.R.D. 76, 107 (S.D.N.Y. 2007) (Rule 23(b)(3) class)

(“While individual notice, where reasonably possible, is required, when class members’ names

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and addresses may not be ascertained by reasonable effort, publication notice has been

deemed adequate to satisfy due process.”).  

Here, the parties are providing direct mailed notice to the approximately 200,000

persons who could reasonably be determined as most likely making up the class, and for whom

names and addresses are reasonably available through Fifth Third’s records.  Any persons who

do not receive mailed notice, for whatever reason, will receive publication notice, as their

identities cannot be determined “through reasonable effort.”  Fed. R. Civ. P. 23(c)(2)(B).   

The proposed notice plan is consistent with the due process requirements incorporated

in Rule 23(c)(2)(B).  The notice itself is clear and straightforward, and provides Settlement Class

members with enough information to evaluate whether to participate in the settlement.  (Ex. A

§ E & attached Exs. C, E–F) The notice contains all of the information required by Rule

23(c)(2)(B)(i)‐(vii): the nature of the action; the class definition; the summary of the class claims

and defenses; the ability to enter an appearance; the exclusion rights; the objection rights; and

the binding effect of a class judgment on members under Rule 23(c)(3).

This notice plan provides the best notice practicable under the circumstances to all

potential class members, and conforms to the guidelines for notice as applied within this Circuit

and as mandated by Supreme Court precedent.

B.    The Court Should Grant Class Certification for Settlement Purposes

For settlement purposes only, the parties have agreed that the Court may make

preliminary findings and enter an order granting provisional certification of the Settlement

Class and appoint Plaintiff and his counsel to represent the class.  “The validity of use of a

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temporary settlement class is not usually questioned.”  Newberg, supra, § 11:22.  The Manual

for Complex Litigation, § 21.612, explains the benefits of settlement classes:

Settlement classes—cases certified as class actions solely for settlement— can

provide significant benefits to class members and enable the defendants to

achieve final resolution of multiple suits.    Settlement classes also permit

defendants to settle while preserving the right to contest the propriety and

scope of the class allegations if the settlement is not approved and, in Rule

23(b)(3) actions, to withdraw from the settlement if too many class members opt

out. An early settlement produces certainty for the plaintiffs and defendants and

greatly reduces litigation expenses.

For settlement purposes only, the Settlement Class is submitted for certification under Rules

23(a) and (b)(3) of the Federal Rules of Civil Procedure.  The Settlement Class is defined in the

Settlement Agreement.  (Ex. A § II.28)  As detailed below, the Settlement Class meets all of the

applicable certification requirements.

1. The Rule 23(a) factors are met

a. The class is sufficiently numerous and joinder is impracticable

The Settlement Class as defined meets Rule 23(a)’s numerosity requirement.  Based on

Fifth Third’s investigation, there are approximately 200,000 Settlement Class members who are

identifiable and will be sent direct notice.  And although the parties are not aware of any

persons who would not receive mailed notice, Settlement Class Members for whom Fifth Third

does not have contact information, such as persons accidentally called on the “wrong number,”

will receive notice through publication notice targeted to the area codes and metropolitan

areas where they are most likely to be reached.  This class clearly is sufficiently numerous. See,

e.g., McCabe v. Crawford & Co., 210 F.R.D. 631, 643 (N.D. Ill. 2002) (a class of forty or more is

generally sufficient to establish numerosity).  The number of individuals in the Settlement Class,

coupled with the fact that it is a national class that is geographically disbursed throughout the

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country, renders joinder impracticable. See, e.g., Randolph v. Crown Asset Mgmt., LLC, 254

F.R.D. 513, 517 (N.D. Ill. 2008) (finding that joinder of hundreds of lawsuits is impractical).

b. The Settlement Class shares many common issues of law and fact

The Settlement Class satisfies Rule 23(a)(2)’s commonality requirement because all

members are alleged to have received a telephone call from an automatic telephone dialing

system, without express consent.  These common issues of fact and identical legal claims under

the TCPA are sufficient to show commonality here.  Moreover, Plaintiff and the Settlement

Class members all allegedly suffered the same injury—they received telephone calls allegedly in

violation of the TCPA.  In Reliable Money Order, Inc., v McKnight Sales Co., Inc., 218 F.R.D. 327,

332‐33 (E.D. Wis. 2012), the court certified a TCPA class in the litigation context, finding:

The class in this action asserts the same injury:  faxes sent to the potential class

members in violation of the TCPA. The events surrounding the transmission of

each of the faxes are identical. Additionally, determining whether the defendant

violated the TCPA in relation to one plaintiff will likely answer whether the

defendant violated the TCPA with regard to the remaining 3,313 members of the

class. There is a possibility of individual defenses, such as a prior existing

business relationship or prior express permission. But generally, the answer to

the common question will resolve the class claims. Thus, the court finds that the

plaintiff has established commonality.

Likewise, in Bridgeview Heath Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2011 WL 4628744, at *5

(N.D. Ill. Sept. 30, 2011) a district court in this District certified a TCPA class, explaining that the

same evidence concerning the defendant’s advertising campaign applied to the plaintiff’s claim

as well as the claims of the class members.  

Particularly in the settlement context, this case involves common issues of fact and law,

including:

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 Whether the Fifth Third obtained valid prior express consent from consumers before

calling their cellular telephones;

 Whether Fifth Third may be held liable for calls that were made on its behalf;  

 Damages, including whether the alleged violations were willful or knowing.  

As the Settlement Class members here all suffered the same injury and are generally subject to

the same defenses, commonality is satisfied.  

c. The Plaintiff’s claims are typical of the Settlement Class

Typicality exists where the claim involves the same “event, practice or course of conduct

that gives rise to the claim of the other class members, and if the claims are based on the same

legal theory.” Parker v. Risk Mgmt. Alts., Inc., 206 F.R.D. 211, 213 (N.D. Ill. 2002); see also Fed.

R. Civ. P. 23(a)(3).  “Typicality is established when there is a ‘sufficient relationship . . . between

the injury to the named plaintiff and the conduct affecting the class,’ and the claims of the

named plaintiff and those of the class ‘are based on the same legal theory.’”  Newberg, supra,

§ 3:13 (citation omitted).

For virtually the same reasons discussed in the preceding section, this element also is

met.  The Plaintiff’s claims are typical of, if not identical to, those of Settlement Class members.  

All claims arise out collection calls made by or on behalf of Fifth Third in alleged violation of the

TCPA.  The Plaintiff and Settlement Class members were all affected in the same way by this

conduct.  

d.    The Plaintiff and his counsel are adequate representatives

Adequacy requires the representative of a class to provide fair and adequate

representation of the class.  Fed. R. Civ. P. 23(a)(4).  Courts in this District have broken this

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requirement down into three elements:  (1) the representative cannot have interests

antagonistic to the class; (2) the representative must have a sufficient interest in the outcome

of the litigation; and (3) counsel for the representative must have appropriate experience,

qualifications, and competency.  Sledge v. Sands, 182 F.R.D. 255, 259 (N.D. Ill. 1998); Gammon

v. GC Servs. Ltd. P’ship., 162 F.R.D. 313, 317 (N.D. Ill. 1995).

Here, the Plaintiff has no interests that are antagonistic to or in conflict with the

Settlement Class members he seeks to represent and his alleged injuries are identical to those

suffered by Settlement Class members.  See Amchem Prods. v. Windsor, 521 U.S. 591, 625–26

(1997) (courts look simply at whether the representatives’ interests are in any way antagonistic

to or in conflict with those of the class members).  In addition, it is undisputed that Plaintiff’s

counsel are active practitioners with substantial experience in consumer law and class action

litigation. (See Exs. B–C, Class Counsel Declarations.)  The requirements of Rule 23(a) therefore

are satisfied.   

1. The Rule 23(b)(3) factors are met

Rule 23(b)(3) requires that common questions predominate over individual questions,

and that the class action device must be the superior method for adjudicating the controversy.  

The Court must consider these requirement in the context of:  (1) the interest of the individual

class members in controlling the litigation; (2) the extent and nature of any pending litigation

involving the same matters; (3) the desirability of concentrating the litigation of all the

members' claims in the forum in which the class action was commenced; and (4) the

management difficulties that may be encountered in a class action.  Rahim v. Sheahan, No. 99 C

0395, 2001 WL 1263493, at *16 (N.D. Ill. Oct. 19, 2001).   

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As an initial matter, the difficulties of managing a class action are vitiated by this

settlement.  When “confronted with a request for settlement only class certification, a district

court need not inquire whether the case, if tried, would present intractable management

problems . . . for the proposal is that there be no trial.” Amchem, 521 U.S. at 620, quoted in In

re Ky. Grilled Chicken Coupon Mktg. & Sales Practices Litig., 280 F.R.D.at 385; see also Am. Int’l

Grp, Inc., 2012 WL 651727, at *4, (quoting Amchem, 521 U.S. at 622 (“settlement is a factor in

the calculus” in determining whether certification is proper)).  A class action is the superior

method of resolving large scale claims if it will “achieve economies of time, effort, and expense,

and promote . . . uniformity of decision as to persons similarly situated, without sacrificing

procedural fairness or bringing about other undesirable results.”  Amchem, 521 U.S. at 615.

In this case the individual claims of the class are comprised of calculable statutory

damages in amounts that make it uneconomic for individuals to pursue these claims on their

own.  Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) (a class action is the superior

method of proceeding when it allows the plaintiffs to pool claims that would be uneconomical

to litigate individually); Murray v. GMAC Mortg. Corp., 434 F.3d 948, 943 (7th Cir. 2006).  

Further, the TCPA is not fee‐shifting. It is thus unlikely that individuals would invest the time

and expense necessary to seek relief through litigation.

In determining the best available method for resolving a dispute, the Court may

consider the “improbability that large numbers of class members would possess the initiative to

litigate individually.”  Haynes v. Logan Furniture, 503 F.2d 1161, 1164‐65 (7th Cir. 1974).  In fact,

in this case many class members may be unaware of their claims or may not understand their

legal rights.  See Henry v. Cash Today, Inc., 199 F.R.D. 566, 574 (S.D. Tex. 2000).  Many others

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may not have access to competent counsel willing to invest the time and resources necessary

to prosecute the claims.

Predominance is satisfied “when there exists generalized evidence that proves or

disproves an element on a simultaneous, class‐wide basis, . . . [since s]uch proof obviates the

need to examine each class member's individual position.”  Golon v. Ohio Savs. Bank, 98 C 7430,

1999 WL 965593, at *4 (N.D. Ill. Oct. 15, 1999).  The predominance element has clearly been

met here because the claims of the class members, the circumstances under which these claims

arise, and the method of proving damages are identical.  Indeed, the claims of this case arise

from Fifth Third’s alleged common practice of using an automated dialing system to contact

consumers without their consent.

C. Scheduling Final Approval Hearing Is Appropriate

The last step in the settlement approval process is a Final Approval Hearing at which the

Court may hear all evidence and argument necessary to make its settlement evaluation.

Proponents of the settlement may explain the terms and conditions of the Settlement

Agreement, and offer argument in support of final approval.  The Court will determine after the

Final Approval Hearing whether the Settlement should be approved, and whether to enter a

final order and judgment under Rule 23(e).  Plaintiff requests that the Court set a date for a

hearing on final approval at the Court’s convenience, but no earlier than September 18, 2013

and schedule further settlement proceedings pursuant to the schedule set forth below:

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DATE ACTION

June 6, 2013 Preliminary Approval Brief submitted

At the Court’s Discretion Preliminary Approval Order Entered

Within 30 days of Preliminary Approval Order Notice Deadline

After 30 days of Preliminary Approval Order but

within 65 days of Preliminary Approval Order

Final Approval and Fee Motion Submitted

75 days after Preliminary Approval Order Exclusion/Objection Deadline

85 days after Preliminary Approval Order Deadline for Responses to Objections

95 days after Preliminary Approval Order Final Reply Briefs Due

105 days after Preliminary Approval Order Final Approval Hearing / Noting Date

At the Court’s Discretion Final Approval Order Entered

V.  CONCLUSION

The proposed class action settlement is fair, reasonable, and adequate.  For the

foregoing reasons, the proposed settlement is well within “the range of possible approval,” and

should be approved in all respects.   

RESPECTFULLY SUBMITTED AND DATED this 6th day of June, 2013.

TERRELL MARSHALL DAUDT & WILLIE PLLC

    By:     /s/ Beth E. Terrell, Admitted Pro Hac Vice

Beth E. Terrell, Admitted Pro Hac Vice

Email: bterrell@tmdwlaw.com  

Kimberlee L. Gunning, Admitted Pro Hac Vice

Email:  kgunning@tmdwlaw.com

936 North 34th Street, Suite 400

Seattle, Washington  98103‐8869

Telephone:  (206) 816‐6603

Facsimile:  (206) 350‐3528

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Alexander H. Burke

Email:  aburke@burkelawllc.com  

BURKE LAW OFFICES, LLC

155 North Michigan Avenue, Suite 9020

Chicago, Illinois  60601

Telephone:  (312) 729‐5288

Facsimile:  (312) 729‐5289

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I, Beth E. Terrell, hereby certify that on June 6, 2013, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the following:   

Gary S. Caplan, #6198263

Email:  gcaplan@ReedSmith.com

Henry Pietrkowski, #6230048

Email:  hpietrkowski@ReedSmith.com

Timothy R. Carraher, #6299248

Email:  tcarraher@ReedSmith.com

REED SMITH LLP

10 South Wacker Drive, 40th Floor

Chicago, Illinois  60606

Telephone:  (312) 207‐1000

Attorneys for Defendant

DATED this 6th day of June, 2013.

TERRELL MARSHALL DAUDT & WILLIE PLLC

    By:     /s/ Beth E. Terrell, Admitted Pro Hac Vice

Beth E. Terrell, Admitted Pro Hac Vice

Email:  bterrell@tmdwlaw.com

936 North 34th Street, Suite 400

Seattle, Washington  98103‐8869

Telephone:  (206) 816‐6603

Facsimile:  (206) 350‐3528

Attorneys for Plaintiff

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