UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NO. 1:12-CV-04069

Honorable Matthew F. Kennelly

OBJECTOR FREEDOM HOME CARE, INC.’S RESPONSE TO DEFENDANTS’ 

MOTION TO RECONSIDER AND/OR ALTER FEBRUARY 27, 2017 ORDER

GERARDO ARANDA, GRANT BIRCHEMEIER, 

STEPHEN PARKES, and REGINA STONE, 

individually and on behalf

of all others similarly situated,

Plaintiffs,

v.

CARIBBEAN CRUISE LINE, INC., ECONOMIC 

STRATEGY GROUP, ECONOMIC STRATEGY 

GROUP, INC., ECONOMIC STRATEGY, LLC, 

THE BERKLEY GROUP, INC. and VACATION 

OWNERSHIP MARKETING TOURS, INC., 

 Defendants
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INTRODUCTION

Freedom Home Care agrees with Defendants that an ex post history of settlement 

negotiations is not relevant when “the court must set a fee by approximating the terms of what 

would have been agreed to ex ante, had negotiating occurred.” In re Synthroid Mktg. Litig., 264 

F.3d 712, 719 (7th Cir. 2001). As Freedom Home Care explained in its objection, multiple 

opinions from this District and the Seventh Circuit (as well as empirical data referenced therein),

make clear that a sliding-scale would have been selected.

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To the extent this Court considers the settlement negotiations in awarding fees, Freedom 

Home Care respectfully requests, as a matter of due process, that this Court maintain its ruling

that “[a] copy of the [join status] report [regarding the history of settlement negotiations] . . . be 

provided by overnight delivery to lead counsel for Freedom Home Care, Inc.” (ECF. 593).

Freedom Home Care, therefore, opposes Defendants’ motion to the extent it contemplates 

withholding the joint status report regarding the history of settlement negotiations from Freedom 

Home Care.

 1 In re Capital One Tel. Consumer Prot. Act Lit., 80 F. Supp. 3d 781, 804-05 (N.D. Ill. 2015)

(“ex ante arrangements and judicially overseen “auctions”—reveal that sophisticated parties 

engaged in an pre-filing fee negotiations rarely agree to a single, across-the-board percentage fee 

structure, and rarely pay a percentage of the recovery equal to the benchmark established by past 

award”); see also Silverman v. Motorola Solutions, Inc., 739 F.3d 956, 959 (7th Cir. 2013)

(citing Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee 

Awards, 7 J. Empirical Legal Studies 811 (2010); Theodore Eisenberg & Geoffrey P. Miller, 

Attorney Fees and Expenses in Class Action Settlements: 1993–2008, 7 J. Empirical Legal 

Studies 248 (2010); Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees in Class Action 

Settlements: An Empirical Study, 1 J. Empirical Legal Studies 27 (2004)) (noting that “[a]ll three 

articles find that the percentage of the fund awarded to counsel declines as the size of the fund 

increases” and concluding that “[t]he [empirical data] reinforce the observation in the Synthroid

opinions that negotiated fee agreements regularly provide for a recovery that increases at a 

decreasing rate”).
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I. Defendants’ Motion for Reconsideration Relating to Disclosure to Freedom Home 

Care is Procedurally Defective.

Defendants acknowledge, as they must, that a motion for reconsideration is not an 

invitation to re-litigate arguments already rejected. Wilkins v. Just Energy Grp., Inc., No. 13 C 

5806, 2016 WL 1106855, at *1 (N.D. Ill. Mar. 22, 2016). During the February 27, 2017 hearing, 

this Court heard and discounted argument on Defendants’ position that Freedom Home Care 

should not have access to the material. Their reiteration of this position, supplemented with ad 

hominem attacks on Freedom Home Care’s counsel, does nothing to except their motion from 

this rule.

II. As this Court’s Order Already Contemplates, Objector Freedom Home Care 

Should be Granted Access to the Records.

The Court’s order recognizes the need for Freedom Home Care to access documents

considered by this Court in ruling on class counsels’ fee request. Without it, Freedom Home 

Care’s ability to evaluate fees and maintain its objection is compromised. 

On the subject of class members’ access to records, the Sixth Circuit recently observed,

“[c]lass members cannot participate meaningfully in the process contemplated by Federal Rule 

of Civil Procedure 23(e) unless they can review the bases of the proposed settlement and the 

other documents in the court record.” Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 

825 F.3d 299, 309 (6th Cir. 2016). Consequently, courts should “give putative class members 

sufficient notice and information” so they can make informed decisions. In re Bank One Sec. 

Litig., 222 F.R.D. 582, 584 (N.D. Ill. 2004) (granting motion to unseal records for the benefit of 

class members).

Defendants cite no authority indicating that the Court, in providing Freedom Home Care 

with the opportunity to review these records, abused its discretion. Nor do they provide authority 
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to suggest the confidentiality associated with mediation of the class members’ claims overrides 

Freedom Home Care’s rights as an objecting class member to access documents pertinent to the 

fee request and its objection. And of course, this Court effectively assuaged confidentiality 

concerns by ordering that “lead counsel for Freedom Home Care, Inc. may not disclose this 

report or its contents to any other person without first obtaining permission from the Court.” ECF 

Doc. 593.

III. Defendants’ Ad Hominem Attacks on Counsel are Not a Legitimate Basis for 

Denying Access.

Defendants attempt to undermine this class member’s access to records through a 

character assassination on Mr. Bandas, a tactic borrowed from class counsel.

2 Defendants’ ad 

hominem attack are not legal argument, but instead a substitute for legal analysis. 

Defendants offer no evidence that confidential information produced here will be handled 

in any other way than how the Court ordered. They reference dicta from select cases regarding 

Mr. Bandas’s prior representation of objecting class members.3 In casting a broad net, they fail to 

mention the numerous cases in which Mr. Bandas has succeeded in assisting clients overturn

 2 While Defendants malign Freedom Home Care’s counsel, it should be noted that Defendants 

presented this Court with a dramatically inaccurate sliding-scale calculation that omits attorneys’ 

fees in the gross figure. Defendants’ Response to Plaintiffs’ Motion for Attorney’s Fees, ECF 

Doc. 565, at 17-18. This method was not employed by any of the four sliding-scale TCPA 

opinions in this District, and would provide class counsel several million less than allowed.

Freedom Home Care was the only one to advocate and apply the correct scale that included the 

gross figure. Objection, ECF Doc. 548, at 8-10. And while Freedom Home Care made a 

mathematical error on the fourth tier in its calculation, the difference was a $150,000 

underestimation, hardly consequential relative to class counsels’ request that exceeds the 

permitted amount by $6.1 - $9.7 million. 

3 As Mr. Bandas previously disclosed to this Court, his pro hac vice admission in the District of 

Washington was rescinded after he initially posted an appeal bond in an amount less than what 

the court ordered, where he subsequently posted the entire bond amount, but after the period 

ordered by the court. Motion for Leave to Appear Pro Hac Vice, ECF Doc. 549, at 3; Reply to 

Plaintiffs’ Response to Christopher Bandas’s Motion for Leave to Appear Pro Hac Vice, ECF 

Doc. 561, at 4 (citing Dennings v.Clearwire Corp., No. 10-cv-01859. 
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unfair settlements and excessive fee awards. See, e.g., Cross v. Wells Fargo Bank, 15-01270, 

Doc. Nos. 71, 103 (N.D. Ga. Feb. 2, 2017) (in a case where Mr. Bandas’s client objected to a 

30% fee request from a $33.4 million fee, awarding 28% of the fund, with the remainder 

benefitting the class); Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014) (“The judgment 

[approving the settlement] is reversed and the case remanded for further proceedings”); In re 

Baby Products Antitrust Litig., 708 F.3d 163, 181-82 (3d Cir. 2013) (“We vacate the District 

Court's orders approving settlement and the fund allocation plan[;] “[w]e vacate the Court's order 

awarding attorneys' fees and costs because this award was based on the now-vacated 

settlement”); Dennis v. Kellogg Co., 697 F.3d 858, 868 (9th Cir. 2012) (“we reverse the district 

court's order approving the settlement and dismissing the case, vacate the judgment and award of 

attorneys' fees, and remand for further proceedings”); Litwin v. iRenew Bio Energy Sols., LLC, 

172 Cal. Rptr. 3d 328, 333 (Cal. App. 2d Dist. 2014), as modified (May 29, 2014) (in a case in 

which Mr. Bandas represented the objector in the lower court, the “the order granting final 

approval of the settlement must be reversed”). 

Regardless, Mr. Bandas’ prior representation of objecting class members “has no greater 

bearing on the merits of the objection raised than a plaintiff’s counsel’s experience in filing class 

actions speaks to the merits of claims he brings.” True v. American Honda Motor Co., 749 F. 

Supp. 2d. 1052, 1079 (C.D. Cal. 2010). “Merely characterizing some of the attorneys as 

‘professional objectors’ without specifying what, exactly, they have done that is either in bad 

faith or vexatious, is not enough.” Blessing v. Sirius XM Radio, Inc., 2011 WL 5873383, No. 09 

CV 10035(HB) (S.D.N.Y. Nov. 22, 2011). There is no logical or legal reason for this Court to 

conclude that Freedom Home Care should be denied access to this information based on 
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outcomes in Mr. Bandas’s prior representation of other class members, particularly when those 

outcomes are mixed. 

CONCLUSION

This Court need not consider, ex post, the history of settlement negotiations in analyzing 

the appropriate fee award. To the extent it does, however, Freedom Home Care respectfully 

requests that this Court keep in place its order requiring Defendants to provide a copy of the 

material. To this extent, Freedom Home Care respectfully requests that Defendants’ Motion to 

Reconsider and/or Alter February 27, 2017 Order be denied. 

Dated: March 10, 2017 Respectfully submitted,

/s/ Christopher A. Bandas 

Christopher A. Bandas

BANDAS LAW FIRM, P.C.

500 North Shoreline, Suite 1020

Corpus Christi, TX 78401

(361) 698–5200 (tel)

(361) 698-5222 (fax)

Admitted Pro Hac Vice

Robert W. Clore

BANDAS LAW FIRM, P.C.

500 North Shoreline, Suite 1020

Corpus Christi, TX 78401

(361) 698–5200 (tel)

(361) 698-5222 (fax)

Jonathan P. Novoselsky

JONATHAN NOVOSELSKY, P.C.

 303 W. Madison, 22nd Floor

Chicago, IL 60606

(312) 286-8429 (tel)

(872) 228-8085 (fax) 

Attorneys for Objector Freedom 

Home Care, Inc.
Certificate of Service

The undersigned certifies that today he filed the foregoing response on ECF which will 

send electronic notification to all attorneys registered for ECF-filing. 

DATED: March 10, 2017 /s/ Christopher A. Bandas _ 

 Christopher A. Bandas