IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GARCIA, et al., )

) Case No. 12-CV-03687

Plaintiffs, ) 

) 

v. ) Judge: Hon. Joan B. Gottschall

) 

J.C. PENNEY CORPORATION, INC., )

et al., ) 

) 

Defendant. )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NAMED 

PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION 

SETTLEMENT, SERVICE AWARDS, AND ATTORNEYS’ FEES AND COSTS

James C. Kostas

Huffman & Kostas

1441 State Street

San Diego, CA 92101-3421

(619)544-0880

James Sheldon A. Ostrof

Law Offices of Sheldon A. Ostroff

1441 State Street

San Diego, CA 92101-3421

(619) 544-0881

Douglas M. Werman

Werman Salas P.C.

77 W. Washington St., Suite 1402

Chicago, IL 60602

(312) 419-1008

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TABLE OF CONTENTS

I. BACKGROUND........................................................................................................................ 1

 A. Summary of the Litigation .................................................................................................... 1 

 B. Material Terms of the Settlement.......................................................................................... 3

1. Class Period and Definition ............................................................................. 3

2. Settlement Amount and Allocation.................................................................. 3

3. Di Minimis Payment ........................................................................................ 4

4. Direct Pay Without a Reversion ...................................................................... 4

5. Scope of Release .............................................................................................. 4

6. Administration of Settlement........................................................................... 4

II. STANDARD FOR APPROVAL OF A CLASS ACTION SETTLEMENT............................ 5

III. FINAL APPROVAL OF THE SETTLEMENT IS APPROPRIATE...................................... 6

A. The CAFA Notice Requirement was Satisfied ................................................................. 6

B. A Class of Former PTNMAs May Be Certified for Settlement ........................................ 7

C. Rule 23(c)(2) Notice Requirements are Satisfied.............................................................. 7

D. The Settlement Satisfies Rule 23(e); It is Fair, Reasonable and

 Adequate............................................................................................................................ 8

1. The Strength of Named Plaintiffs’ Claims........................................................ 9

2. Amount of Settlement.................................................................................... 10

3. Extent of Discovery/Absence of Collusion...................................................... 11

4. Counsels’ Opinion ........................................................................................... 11

5. Maintaining Class Action Status Through Trial is not Certain........................ 12

6. The Risk, Expense, and Duration of Further Litigation................................... 13

7. Requests for Exclusion and Objections ....................................................................... 13

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IV. THE REQUESTED ATTORNEYS’ FEES SHOULD BE AWARDED............................. 14

A. The “Market Method” is used to Calculate Attorney’s Fees in

 Common Fund Cases in the Seventh Circuit ....................................................... 14

1. The Requested Fee Award is Supported By the Market

 Rate and Awards in Other Common Fund Cases .......................................... 15

2. The Requested Fee Award Satisfies the “Redman Ratio” .............................. 16

3. The Maximum Settlement Fund Is An Excellent Recovery ...........................18

4. Quality of Representation .............................................................................. 19

5. Risk of Nonpayment ...................................................................................... 20

 

6. There is No Opposition to the Requested Fee Award.................................... 20

V. CLASS COUNSELS’ COSTS AND ADMINISTRATION COSTS ARE

 REASONABLE AND WERE NECESSARY..................................................................... 20

VI. SERVICE AWARDS IN THE AMOUNT OF $5,000 EACH ARE 

 APPOPRIATE ..................................................................................................................... 21

VII. CONCLUSION .................................................................................................................... 22

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TABLE OF AUTHORITIES

CASES

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

 616 F.2d 305 (7th Cir. 1980) ........................................................................................... 5, 8, 12

Arrez v. Kelly Services, Inc.,

 522 F.Supp.2d 997 (N.D. Ill. 2007)........................................................................................... 9

Bluetooth Headset Prods. Liabl. Litig, 

 654 F.3d 935 (9th Cir. 2011) ................................................................................................... 17

Boeing Co. v. Van Gemert,

 444 U.S. 472 (1980)................................................................................................................. 14

Cook v. Niedert,

 142 F.3d 1004 (7th Cir. 1998) .................................................................................................. 21

Dillworth v. Case Forms Processing, Inc., 

5:08-CV-1694, 2010 WL 776933 (N.D. Ohio Mar. 8, 2010)................................................. 19

Donovan v. Estate of Fitzsimmons, 

 778 F.2d 298 (7th Cir. 1985) ................................................................................................ 5, 13

E.E.O.C. v. Hiram Walker & Sons, Inc.,

 768 F.2d 884 (7th Cir. 1985) ................................................................................................. 8, 9

Eisen v. Carlisle & Jacquelin,

 417 U.S. 156 (1974)................................................................................................................... 7

Felzen v. Andreas, 

 134 F.3d 873 (7th Cir. 1998) ..................................................................................................... 5

Florin v. Nationsbank of Georgia, N.A.,

 34 F.3d 560 (7th Cir. 1994)....................................................................................................... 14

Gaskill v. Gordon,

 160 F3d 361 (7th Cir. 1998)................................................................................................ 14, 17

Golden Bear Family Rest., Inc. v. Murray,

 144 Ill. App. 3d 616 (1986)........................................................................................................ 9

Hanlon v. Chrysler Corp., 

 150 F.3d 1011 (9th Cir. 1998) ................................................................................................... 6

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iv

Hardaway v. Employbridge of Dallas, inc., et al., 

 Case No. 11 C 3200, ECF No. 72 (N.D. Ill.).............................................................................16

Harris v. Vector Mktg.,

 2011 WL 4831157 (N.D. Cal.)..................................................................................................17

Harris v. Vector Mktg.,

 2012 WL 381202 (N.D. Cal. 2012)............................................................................................ 7

Hispanics United of DuPage Cnty. v. Vill. of Addison, Illinois,

 988 F.Supp. 1130 (N.D. Ill. 1997) 13........................................................................................13

In re Apollo Group, Inc. Securities Litig.,

 2012 WL 1378677 (D. Ariz. 2012) ........................................................................................... 7

In re Cont’l Ill. Sec. Litig.,

 962 F.2d 566 (7th Cir. 1992)..................................................................................................... 17

In re Dairy Farmers,

 2015 WL 753946...................................................................................................................... 17

In re Domestic Air Tranp. Antitrust Litig., 

 148 F.R.D. 297 (N.D.Ga.1993)................................................................................................ 10

In re Mexico Money Transfer Litig., 

 164 F. Supp. 2d (N.D. Ill. 2000).................................................................................... 5, 12, 13

In re Newbridge Networks Sec. Litig., 

 1998 WL 765724 (D.D.C. Oct. 23, 1998) ............................................................................... 10

In re Online DVD-Rental Antitrust Litig., 

 779 F3d 934 (9th Cir. 2015) .................................................................................................... 10

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,

 148 F.3d 283 (3d Cir. 1998)..................................................................................................... 15

In re Ravisent Techs., Inc. Sec. Litig., 

 2005 WL 906361 (E.D. Pa. Apr. 18, 2005)............................................................................. 10

In re Synthroid Mktg Litig,

 325 F.3d 974 (7th Cir. 2003) .................................................................................................... 14 

In re Synthroid Mktg. Litig.,

 264 F.3d 712 (7th Cir. 2001) ................................................................................................... 14

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Isby v. Bayh, 

 75 F.3d 1191 (7th Cir. 1996) ...................................................................................... 5, 9, 12, 13

Kirchoff v. Flynn,

 786 F.2d 320 (7th Cir. 1986)................................................................................................15, 17 

Kirkorian v. Borelli, 

 695 F. Supp. 446 (N.D. Cal. 1988)...........................................................................................12 

Lazy Oil Co. v. Witco, 

 95 F.Supp.2d 290 (W.D. Pa.1997)........................................................................................... 10

Lewis v. Epic Systems Corp.,

 823 F3d 1147 (7th Cir. 2016) ................................................................................................... 10

M. Berenson Co., Inc. v. Fanueil Hall Marketplace, Inc.,

 671 F.Supp. 819 (D. Mass. 1987)............................................................................................ 11

Mangone v. First USA Bank,

 206 F.R.D. 222 (S.D. Ill. 2001) ...............................................................................................13

Mars Steel Corp. v. Continental Ill. Nat’l Bank & Trust Co., 

 834 F.2d 677 (7th Cir. 1987) .................................................................................................... 10

Matter of Cont’l Ill. Sec. Litig., 

 962 F.2d 566 (7th Cir. 1992) ....................................................................................................20

Montgomery v. Aetna Plywood, Inc.,

 231 F.3d 712 (7th Cir. 2000) ...................................................................................................14

Morris v. Ernst & Young, LLP,

 834 F.3d 975 (9th Cir. 2016) .................................................................................................... 10

Mueller Co. v. Dep’t of Labor,

 543 N.E.2d 518 (Ill. App. Ct. 1989) .......................................................................................... 9

Nat’l Rural Telecomms. Coop. v. DIRECTTV, Inc., 

 221 F.R.D. 523 (C.D. Cal. 2004) .............................................................................................12

Ortiz v. Manpower, Inc., No. 11-2009,

 2012 U.S. Dist. LEXIS 59528 (C.D. Ill. April 10, 2012) .......................................................... 9

Patterson v. Stovall,

 528 F.2d 108 (7th Cir. 1976) ...................................................................................................... 9

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Pearson v. NBTY, Inc., 

 772 F.3d 778 (7th Cir. 2014) .............................................................................................. 16, 17

People ex rel. Wilcox v. Equity Funding Life Ins. Co.,

 61 Ill.2d 303 (Ill. 1975).............................................................................................................. 8

Peraza v. Dominick’s Finer Foods, LLC,

 Case No. 11 C 8390, ECF No. 52 (N.D. Ill.)........................................................................... 16

Redman v. RadioShack Corp.,

 768 F.3d 622 (7th Cir. 2014) ..............................................................................................16, 17

Reed v. Gen. Motors Corp., 

 703 F.2d 170 (5th Cir. 1983) ...................................................................................................12

Restsky Family Ltd. P’ship v. Price Waterhouse LLP,

 No. 97-7694, 2001 WL 1568856 ............................................................................................. 17

Reynolds v. Beneficial Nat’l Bank,

 288 F.3d 277 (7th Cir. 2002) .................................................................................................... 13

Romo v. Manpower, Inc., 

 Case No. 09 C 3429, ECF No. 249 ..........................................................................................16

Rosales v. The Placers, Ltd., d/b/a Randstand, 

No. 09-1706, 2011 U.S. Dist. LEXIS 22036 (N.D. Ill. March 4, 2011)............................. 9, 16

Rotuna v. W. Customer Mgmt. Grp., LLC,

4:09CV1608, 2010 WL 2490989 (N.D. Ohio June 15, 2010) ................................................19

Rusin v. Chicago Tribune Co., 

 No. 12 C 1134, ECF No. 41 (N.D. Ill.) ....................................................................................16

Schmidt v. Smith & Wollensky LLC,

 Case No. 09-2752, ECF No. 78 (N.D. Ill.) ..............................................................................16

Schulte v. Fifth Third Bank, 

 No. 09 C 6655, 2011 U.S. Dist. LEXIS 83423 (N.D. Ill. July 29, 2011) ................................17

Seiden v. Nicholson,

 72 F.R.D. 201 (N.D. Ill. 1976) .................................................................................................13

Silverman v. Motorola,

 2012 WL 1597388 (N.D. Ill. May 7, 2012) .............................................................................15

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Skelton v. Gen. Motors Corp.,

 860 F.2d 250 (7th Cir. 1988) 14 ................................................................................................14

Sutton v. Bernard,

 504 F.3d 688 (7th Cir. 2007) .................................................................................................... 20

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

 463 F.3d 646 (7th Cir. 2006) ................................................................................................. 5, 8

Taubenfeld v. AON Corp.,

 415 F.3d 597 (7th Cir. 2005) .................................................................................................... 20

Wal-Mart Stores, Inc. v. Visa USA, Inc.,

 396 F.3d 96 (2d Cir. 2005)....................................................................................................... 14

Weinberger v. Kendrick, 

 698 F.2d 61 (2nd Cir. 1982)..................................................................................................... 12 

Williams v. Volt Mgmt. Corp.,

 Case No. 10 C 3927, ECF No. 52 (N.D. Ill.)........................................................................... 16

Winston v. Speybroeck, No. 3:94-CV-150AS,

 1996 U.S. Dist. LEXIS 12138 (N.D. Ind. Aug. 2, 1996)......................................................... 11

Wong v. Accretive Health, Inc.,

 773 F.3d 859 (7th Cir. 2014) .................................................................................................... 10

STATUTES AND RULES

Illinois Equal Justice Act, 30 Ill. Comp. Stat. 765/1, et seq. ...........................................................4

Illinois Wage Payment and Collection Act, 820 ILCS 115/5 .....................................................1, 9

56 Ill. Admin. Code §300.520(a), (e), (f)(1), (f)(3) .....................................................................1,9

Federal Rule of Civil Procedure 23 ...................................................................................... passim

Federal Rule of Civil Procedure 23(a) and (b) ................................................................................7

Federal Rule of Civil Procedure 23(c)(1)(C) ................................................................................12

Federal Rule of Civil Procedure 23(c)(2) .......................................................................................7

Federal Rule of Civil Procedure 23(c)(2)(B).............................................................................. 6,7

Federal Rule of Civil Procedure 23(d).......................................................................................... 12

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Federal Rule of Civil Procedure 23(e)(2) ....................................................................................... 6 

Federal Rule of Civil Procedure 23(h).......................................................................................... 14

28 U.S.C. §1715............................................................................................................................ 6

MISCELLANEOUS AUTHORITIES

William B. Rubenstein, Alba Conte & Herbert B. Newberg, 

 Newberg on Class Actions, Sections §§13:13 and

 13:15 (5th ed. 2014)................................................................................................................. 8

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I. BACKGROUND

A. Summary of the Litigation

J.C. Penney Corporation, Inc.’s (“JCPenney” or “Defendant”) “My Time Off” vacation 

policy (“Vacation Policy”) in effect during the Class Period contained vesting conditions. Laura 

Progo, formerly Laura Garcia (“Progo”, “Named Plaintiff” or “Class Representative”) and Lore 

Rednour (“Rednour”, “Named Plaintiff” or “Class Representative”) (collectively “Named 

Plaintiffs”) contended these vesting conditions violated 820 ILCS 115/5 and 56 Ill. Admin. Code 

§300.520(a), (e), (f)(1) and (f)(3) because the Vacation Policy is a length of service look back 

policy. As a result, Named Plaintiffs, on behalf of themselves, and other Management Associates 

and Part-Time Non-Management Associates (“PTNMA”), alleged in the original, first amended, 

and second amended complaints, that they were entitled to recover vacation pay for the vacation 

time they did not accrue because of these vesting conditions, as well as, interest, penalties, 

attorneys’ fees and costs. ECF, Nos. 1, 22 and 45. The third amended complaint is the operative 

complaint and sought relief on the same theory of liability but only on behalf of former PTNMAs. 

ECF, No. 159.

The Parties engaged in substantial procedural law and motion practice during the first year 

after this case was filed. ECF, Nos. 1, 8, 11, 13, 25, 26, 29, 40, and 50-54. Thereafter, the Parties 

simultaneously conducted substantial certification and merits discovery. ECF, Nos. 208-1, p. 7, ¶¶ 

13 and 15; 208-2, pp. 4-6, ¶¶8-10. After resolving the discovery disputes, JCPenney produced 

voluminous policy documents and employee data. ECF, Nos. 87-96 and 107. 

After completing their preliminary investigation, extensive formal and informal discovery, 

creating a damage model for more than 35,000 employees with the assistance of James R. Lackritz, 

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Ph.D.1, and conducting many pre-settlement discussions, the Parties participated in a mediation on 

April 9, 2014, before the Honorable Edward A. Infante, Magistrate Judge (Ret.). The Parties did 

not reach a settlement at this mediation. ECF, No. 208-1, p. 8, ¶18.

On August 14, 2014, Named Plaintiffs filed their motion for class certification and briefing 

was completed on January 5, 2015. ECF, Nos. 125-156. Named Plaintiffs’ motion for class 

certification was denied without prejudice on March 31, 2015. ECF, No. 157. On July 2, 2015, 

Named Plaintiffs filed a second motion for class certification. ECF, Nos. 173-182. The Court 

granted Named Plaintiffs’ July 2, 2015 motion for class certification on March 8, 2016, certifying 

a class of “all former [Part-Time Non-Management Associates] employed by JCPenney in Illinois 

and terminated between January 1, 2004 and [March 8, 2016]”. ECF, Nos. 183-184.

 At a status conference on April 6, 2016, Named Plaintiffs advised the Court that they were 

prepared to immediately file a motion for summary judgment. Over JCPenney’s objection, the 

Court set a briefing schedule. ECF, No. 190. 

Shortly thereafter, the Parties agreed to a stay and vacated the filing date for Named 

Plaintiffs’ summary judgment motion pending the completion of a second mediation. ECF, No. 

193. The Parties participated in a second mediation on July 29, 2016 before David Rotman, Esq., 

a prominent labor lawyer and mediator. The Parties did not reach a settlement. Several days later, 

however, Mr. Rotman tendered a mediator’s proposal. The mediator’s proposal was accepted by 

both Parties on September 1, 2016. ECF, No. 208-1, p. 8, ¶19.

 

1

James R. Lackritz, Ph.D., was retained to assist Class Counsel to value the Settlement Class 

Members’ total vacation pay claims, to calculate the amount of vacation pay owed to each 

Settlement Class Member based on Named Plaintiffs’ theory of the case, and to calculate estimated 

Settlement Payments. 

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The Parties diligently worked to finalize the terms of the Settlement Agreement. After 

seven (7) months of negotiations, and many drafts, the Settlement Agreement was signed the first 

week of March 20172. ECF, Nos. 194-202 and 208-1, p. 8, ¶20. After almost six (6) years of 

litigation, Named Plaintiffs obtained an all in settlement that requires JCPenney to pay $5,000,000,

without a reversion or the necessity of filing a claim, to resolve the claims of the 38,465 Settlement 

Class Members Named Plaintiffs valued at $6,434,075. ECF, No. 208-1, pp. 8-9, ¶21. 

Named Plaintiffs’ unopposed motion for preliminary approval was granted on March 29, 

2017, as modified nunc pro tunc on April 3, 2017. ECF, Nos. 210 and 212. The settlement was 

administered pursuant to the terms of the Preliminary Approval Order (Ex. 2, Pirrung Decl., ¶ 2), 

and it is now before the Court for final approval.

B. Material Terms of the Settlement

1. Class Period and Definition

The Settlement Class includes all former Part-Time Non-Management Associates (i) 

employed by JCPenney in Illinois in that capacity between January 1, 2004 and October 20, 2016, 

and (ii) whose employment with JCPenney terminated between January 1, 2004 and October 20, 

2016. Exhibit “B”, §2.37 and §2.38.

2. Settlement Amount and Allocation

The Maximum Settlement Fund, the most JCPenney is required to pay, is $5,000,000, 

which includes: 1) all payments to Participating Settlement Class Members; 2) attorneys’ fees not 

to exceed 35% ($1,750,000) of the Maximum Settlement Fund; 3) costs not to exceed $75,000; 4) 

a $5,000 Service Award to each Named Plaintiff for a total of $10,000; and 5) $84,968.00 for costs 

 

2 The Settlement Agreement is attached to Exhibit 1, the declaration of James C. Kostas (“Ex. 1, 

Kostas Decl.”), as Exhibit “B” and is hereinafter cited as Exhibit ‟B”. Unless otherwise noted, all 

capitalized terms are defined in the Settlement Agreement and have the same meaning herein.

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of administration. The remainder of the $5,000,000, the Net Settlement Fund, is estimated to be

$3,080,032.00, and it will be distributed to the Participating Settlement Class Members pursuant 

to the Plan of Allocation. Exhibit ‟B”, §2.14, §2.17 and §4. 

3. Di Minimis Payment

Any Settlement Class Member whose Settlement Payment is calculated to be $10 or less 

will be paid the Minimum Settlement Class Award, $10. Exhibit “B”, §2.15 and §4.2.2.

4. Direct Pay Without a Reversion Class Members are not required to 

file a claim to receive a Settlement Payment. JCPenney will not retain any part of the Maximum 

Settlement Fund. Exhibit “B”, §2.14, §2.17, and §4.2.1. The amount represented by any 

Settlement Payments that are not cashed within 180 days will be paid to the cy pres designee, the 

Legal Assistance Foundation, (http://www.lafchicago.org/), a non-profit organization that has a 

principal purpose of promoting or providing services that would be eligible for funding under the

Illinois Equal Justice Act, 30 Ill. Comp. Stat. 765/1 et seq.; Exhibit “B”, §7.4.5.

5. Scope of Release

Upon final approval of the Settlement Agreement, Class Members who have not opted out 

of the settlement will be barred from bringing any cause of action or asserting any claim for unpaid 

vacation pay during the Class Period. Named Plaintiffs have consented to a general release of any 

and all claims arising during the Class Period. Exhibit “B”, §2.24, §2.25, §8.2 and §8.3.

6. Administration of Settlement

The Settlement Administrator, American Legal Claim Services, LLC (ALCS), was 

responsible for preparing and mailing the Class and CAFA notices. Exhibit ‟B”, §2.1, §2.32, and 

§6; Ex. 2, Pirrung Decl., ¶¶2-6. Class Counsel, with the assistance of their expert, calculated each 

Settlement Class Member’s estimated Settlement Payment and provided it to ALCS. ECF, No. 

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208-1, p.10, ¶¶23-24. JCPenney provided ALCS with the last known address for each Settlement 

Class Member. Ex 2, Pirrung Decl., ¶4. The Settlement Administrator used various processes and 

search engine databases to update these addresses "to enhance opportunities for delivery through 

the use of an intelligent barcode. Ex 2, Pirrung Decl., ¶5.

On March 29, 2017, 51 CAFA notices were mailed. Ex 2, Pirrung Decl., ¶3. On April 5, 

2017, 38,465 Class Notices were mailed. Ex 2, Pirrung Decl., ¶6.

Three thousand two hundred and eighty-four (3,284) Class Notices were returned to ALCS 

as undeliverable. Ex 2, Pirrung Decl., ¶8. ALCS performed address traces and mailed out new 

notices; ultimately, 953 Class Notices were undeliverable. Ex 2, Pirrung Decl., ¶¶8-9.

ALCS has not received any objections or requests for inclusion, and only 11 valid requests 

for exclusion. Ex 2, Pirrung Decl., ¶¶10,11 and 14.

II. STANDARD FOR APPROVAL OF A CLASS ACTION SETTLEMENT

Approval of a class action settlement is committed to the sound discretion of the trial judge. 

Armstrong v. Bd. of Sch. Dir. of the City of Milwaukee, 616 F.2d 305, 313-14 (7th Cir. 1980), 

overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998). A strong judicial 

policy favors settlement of class actions. Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996). In 

analyzing a class settlement, the district court must consider the facts in the light most favorable 

to the settlement. In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1014 (N.D. Ill. 2000) 

(citing Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 308 (7th Cir. 1985)). However, a court 

has a fiduciary duty to examine the settlement as a whole for overall fairness. Synfuel Techs., Inc. 

v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006). Neither district courts nor appellate 

courts have the power to delete, modify, or substitute terms in the proposed settlement agreement. 

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‟The settlement must stand or fall in its entirety.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026

(9th Cir. 1998).

When evaluating this settlement, the Court should conduct a three step inquiry. First, it 

will determine whether JCPenney satisfied the CAFA notice requirements. Next, it will determine 

whether the notice requirements of Federal Rule of Civil Procedure 23(c)(2)(B) have been 

satisfied. Finally, the Court must determine if this settlement is fair, reasonable, and adequate 

under Rule 23(e)(2).

III. FINAL APPROVAL OF THE SETTLEMENT IS APPROPRIATE

A. The CAFA Notice Requirement was Satisfied

This action was removed pursuant to CAFA. ECF, No. 1. The Settlement Agreement 

required JCPenney to comply with the CAFA notice requirements. Exhibit B, §2.1. CAFA 

requires JCPenney to serve notice of the proposed settlement ‟upon the appropriate State official 

of each State in which a class member resides and the appropriate Federal official” . . . ‟[n]ot later 

than 10 days after [the] proposed settlement . . .” is filed in court. 28 U.S.C. §1715(a) and (d). 

The Court may not grant final approval of the Settlement Agreement ‟. . . earlier than 90 days after 

the later of the dates on which the appropriate Federal official and the appropriate State official 

are served . . .” with the required notice. 28 U.S.C. §1715(d).

On March 22, 2017, the proposed settlement was filed with the Court. ECF, No. 208-1. 

After reviewing the class list prepared by JCPenney, it was determined that the 38,465 Settlement 

Class Members resided in 48 different states, the District of Columbia, and the U.S. Virgin Islands. 

Ex 2, Pirrung Decl., ¶3. On March 29, 2017, JCPenney, through ACLS, sent notice of the 

settlement to the U.S. Attorney General, 48 state Attorney Generals, and the Attorney Generals for 

the District of Columbia and the U.S. Virgin Islands. Ex 2, Pirrung Decl., ¶3.

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The final approval hearing is scheduled for July 12, 2017, more than 90 days after the 

CAFA notices were served. 

B. A Class of Former PTNMAs May Be Certified for Settlement

This Court previously certified a class of former PTNMAs. ECF, No. 184. The proposed 

class definition for settlement purposes is: 

[a]ll former Part-Time Non-Management Associates (i) employed in Illinois by 

JCPenney in that capacity between January 1, 2004 and October 20, 2016, and (ii) 

whose employment terminated between January 1, 2004 and October 20, 2016. 

Exhibit ‟B”, §2.37.

The settlement class definition is substantively identical to the definition approved by the 

Court. Thus, the Court need not find anew that the settlement class definition meets the 

certification requirements of Rules 23(a) and (b). Harris v. Vector Mktg., 2012 WL 381202 at *3 

(N.D. Cal. 2012); In re Apollo Group Inc. Securities Litig., 2012 WL 1378677 at*4 (D. Ariz. 

2012). The Court may reconfirm its order certifying this class.

C. Rule 23(c)(2) Notice Requirements are Satisfied

“[I]ndividual notice should be [given] to all members who can be identified through

reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 

(1974). As the Supreme Court has held, notice by mail provides such “individual notice to all 

members” in accordance with Rule 23(c)(2). Id. Where the names and addresses of class members 

are easily ascertainable, individual notice through the mail is “clearly the ‘best notice practicable.’” 

Id. at 175. The Preliminary Approval Order approved the form, content, and proposed distribution 

of the Notice Packet, finding that it satisfied due process, and was the best notice practicable under 

the circumstances. 

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The Class Notice previously approved by the Court was mailed to all Settlement Class 

Members on April 5, 2017 to their last known address. Ex 2, Pirrung Decl., ¶¶4-6. As required 

by the Settlement Agreement, ALCS tried to identify new addresses for all returned mail. Ex 2,

Pirrung Decl., ¶¶7-8. When a new address was identified, the returned mail was promptly remailed. 

Ex 2, Pirrung Decl., ¶6. Ultimately, there were 953 undeliverable Class Notices. Ex 2, Pirrung 

Decl., ¶¶8-9. 

Settlement Class Members were also advised that they could seek assistance at a website 

established by the Settlement Administrator, by telephone with prompts to answer frequently asked 

questions, or directly by contacting Class Counsel or the Settlement Administrator. Ex 2, Pirrung

Decl., ¶¶12-13. 

D. The Settlement Satisfies Rule 23(e); It is Fair, Reasonable and Adequate

A class action settlement must be “fair and reasonable and in the best interests of all those 

who are affected by it.” People ex rel. Wilcox v. Equity Funding Life Ins. Co., 61 Ill.2d 303, 316 

(Ill. 1975). “Among the factors that a district court should consider when it makes this ‛fairness’

determination are: a comparison of the strengths of plaintiffs’ case versus the amount of the 

settlement offer; the likely complexity, length, and expense of the litigation; the amount of 

opposition to the settlement among affected parties; the opinion of competent counsel; and, the 

stage of the proceedings and the amount of discovery already undertaken at the time of the 

settlement. ” E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985) (citing 

Armstrong v. Bd. of Sch. Dir. of the City of Milwaukee, 616 F.2d 305 (7th Cir. 1980) among others;

Synfuel Techs., Inc. v. DHL Express (USA), Inc., supra, 463 F.3d at 653; Newberg, §§13:14 and 

15 at 319-327. 

All of these factors support the entry of an order granting final approval.

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1. The Strength of Named Plaintiffs’ Claims 

Although the evaluation of the strength of plaintiffs’ case on the merits is balanced against 

the terms of proposed settlement, courts refrain from reaching conclusions on issues which have 

not been fully litigated. Patterson v. Stoval, 528 F.2d 108, 114 (7th Cir. 1976) (collecting cases). 

Because “[t]he essence of settlement is compromise,” courts should not reject a settlement “solely 

because it does not provide a complete victory to the plaintiffs.” E.E.O.C., supra, 768 F.2d at 889; 

Isby v. Bayh, supra, 75 F.3d at 1200. 

Named Plaintiffs alleged that the Vacation Policy violates 820 ILCS 115/5 and 56 Ill. 

Admin. Code §300.520(a), (e), (f)(1) and (f)(3). Named Plaintiffs contended JCPenney’s Vacation 

Policy is a length of service look back policy that contains unlawful vesting conditions. Ortiz v. 

Manpower, Inc., No. 11-2009, 2012 U.S. Dist. LEXIS 59528 (C.D. Ill. April 10, 2012); Rosales 

v. The Placers, Ltd., d/b/a Randstad, No. 09-1706, 2011 U.S. Dist. LEXIS 22036 (N.D. Ill. March 

4, 2011); Arrez v. Kelly Services, Inc., 522 F. Supp. 2d 997 (N.D. Ill. 2007); Golden Bear Family 

Rest., Inc. v. Murray, 144 Ill. App. 3d 616 (1986); and Mueller Co. v. Dep’t of Labor, 543 N.E.2d 

5I8 (III. App. Ct. 1989). 

Conversely, JCPenney maintained that its Vacation Policy pays benefits in advance as an 

inducement for, among other things, continued employment, and that the conditions, if any, in its 

Vacation Policy, may be lawfully imposed in a forward looking policy. JCPenney also contended

that a substantial number of the Settlement Class Members signed an arbitration agreement that 

prohibits participation in any type of representative or collective action. 

Named Plaintiffs believe that based on controlling authority and the evidence obtained 

through discovery they are more likely than not to prevail on the question of liability. However, 

they are less certain about the outcome of the issues raised by JCPenney as to the enforcement of 

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its arbitration agreement3. The 77.7% recovery, as explained in subsection 2 below, more than 

reflects the likelihood of success on the merits in this case. Ex. 1, Kostas Decl., ¶¶12-13, Ex. 3, 

Werman Decl., ¶18.

2. Amount of Settlement

Named Plaintiffs estimated, based on the Data, the value of the settled claims at 

$6,434,075, increasing to $6,553,084 after adjusting for the $10 di minimis payment. The 

$5,000,000 Maximum Settlement Fund represents a recovery of approximately 77.7%

($5,000,000/$6,434,075). This is a substantial recovery and much more than is routinely approved. 

Mars Steel Corp. v. Cont’l Ill. Nat’l Bank & Trust, 834 F.2d 677, 682 (7th Cir.1987) (finding 

adequate a settlement of 10% of the total sought due to risks and costs of trial).4 The quality of this 

result speaks for itself, and no further analysis, or speculation about net expected value, is required. 

Wong v. Accretive Health, Inc., 773 F.3d 859, 863-864 (7th Cir. 2014). 

 

3 Lewis v. Epic Systems Corp., 823 F3d. 1147 (7th Cir. 2016) and Morris v. Ernst & Young, LLP, 

834 F3d. 975 (9th Cir. 2016) both held that employee participation in class or collective actions 

could not be waived in an arbitration agreement. However, certiorari was granted on January 13, 

2017 in both cases. (137 S.Ct. 809). 

4

 See also In re Online DVD-Rental Antitrust Litig., 779 F3d 934, 950-951 (9th Cir. 2015) ($12.00 

gift card sufficient); Lazy Oil Co. v. Witco, 95 F.Supp.2d 290, 339 (W.D. Pa.1997) (approving 

35% recovery for the entire class period, and 25.5% of damages within the limitations period); In 

re Domestic Air Tranp. Antitrust Litig., 148 F.R.D. 297, 325 (N.D.Ga.1993) (12.7% to 15.3%); In 

re Newbridge Networks Sec. Litig., 1998 WL 765724, at *2 (D.D.C. Oct. 23, 1998) (approving 

settlement and concluding that while “[c]ourts have not identified a precise numerical range within 

which a settlement must fall in order to be deemed reasonable; [ ] an agreement that secures 

roughly six to twelve percent of a potential trial recovery, while preventing further expenditures 

and delays and eliminating the risk that no recovery at all will be won, seems to be within the 

targeted range of reasonableness”); In re Ravisent Techs., Inc. Sec. Litig., 2005 WL 906361, at *9 

(E.D. Pa. Apr. 18, 2005) (approving settlement, which amounted to 12.2% of damages, and citing 

a study by Columbia University Law School, which determined that “since 1995, class action 

settlements have typically recovered between 5.5% and 6.2% of the class members’ estimated 

losses.”) (internal citations omitted).

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3. Extent of Discovery/Absence of Collusion

Nothing remains to be discovered in this case; discovery is complete. ECF, No. 112. The 

documents relating to JCPenney’s Vacation Policy were obtained and examined, employment data 

was obtained and examined, and the Named Plaintiffs, as well as the persons most knowledgeable 

about the issues raised in this litigation, were deposed. ECF, No. 208-1, p. 7, ¶¶13-17; ECF, No. 

208-2, ¶¶8-10. The nature and extent of the discovery conducted in this case is confirmed by the 

content of the pleadings filed during the last six (6) years and the discovery disputes that were 

submitted to this Court for resolution. ECF, No., 87-101 and 109-111. In addition, this resolution 

was only reached after two (2) mediations with different mediators more than 2 years apart. ECF,

No. 208-1, pp.7-8, ¶¶13-19.

Such arm’s length negotiations conducted by competent counsel constitute prima facie

evidence of a fair settlement. “[W]here . . . a proposed class settlement has been reached after 

meaningful discovery, after arm’s-length negotiation by capable counsel, it is presumptively fair.”

M. Berenson Co., Inc., v. Fanueil Hall Marketplace, Inc., 671 F. Supp. 819, 822 (D. Mass. 1987). 

In the absence of any evidence of collusion (and there is none here), final approval of the settlement

is appropriate. Winston v. Speybroeck, No. 3:94-CV-150AS, 1996 U.S. Dist. LEXIS 12131, at 

*15-16 (N.D. Ind. Aug. 2, 1996). 

4. Counsels’ Opinion

Class Counsel have collectively served as lead counsel or co-counsel in more than 100 

wage and hour class action cases. Ex. 1, Kostas Decl., ¶7; Ex. 4, Ostroff Decl., ¶6; Ex. 3, Werman 

Decl., ¶14. Based on this extensive experience, they have collectively and without reservation 

concluded that this settlement is fair, reasonable and adequate. Ex. 1, Kostas Decl., ¶¶12 and 15; 

Ex. 4, Ostroff Decl., ¶¶6, 12, and 16; Ex. 3, Werman Decl., ¶18. 

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‟Great weight is accorded to the recommendation of counsel, who are most closely 

acquainted with the facts of the underlying litigation.” Nat’l Rural Telecomms. Coop. v. DIRECTV, 

Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004) (internal citations and quotations omitted); Kirkorian v. 

Borelli, 695 F. Supp. 446, 451 (N.D. Cal. 1988); Armstrong v. Bd. of Sch. Dir. of the City of 

Milwaukee, supra, 616 F.2d at 325; Reed v. General Motors Corp., 703 F.2d 170, 175 (5th Cir. 

1983); Weinberger v. Kendrick, 698 F.2d 61, 74 (2nd Cir. 1982); In re Mexico Money Transfer 

Litig., supra, 164 F. Supp. 2d at 1020. This is because parties represented by competent counsel 

are in a better position to produce a settlement that fairly reflects each party’s expected outcome 

in the litigation. Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996). Therefore, reliance on Class Counsels’

declarations outlining their experience, and the Court’s own observations, is appropriate to 

conclude that this settlement is fair, reasonable and adequate is appropriate. Id. 

5. Maintaining Class Action Status Through Trial is not Certain

‟An order that grants or denies class certification may be altered or amended before final 

judgment”. Rule 23(c)(1)(C). “[T]he court may issue orders that...(D) require that the pleadings 

be amended to eliminate therefrom allegations as to representation of absent persons, and that the 

action proceed accordingly.” Rule 23(d). 

In opposition to Named Plaintiffs’ second motion for class certification, JCPenney argued 

that the nature and scope of the certified class was inappropriate, and as to some of these 

arguments, the Court indicated that they could be revisited at a later date. ECF, Nos. 183 and 184. 

Given JCPenney’s prior arguments and the Courts comments, it is almost certain that if this case 

was not settled, a motion to decertify would be filed. Ex. 1, Kostas Decl., ¶12. 

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6. The Risk, Expense, and Duration of Further Litigation

Continued litigation involves the consideration of the time value of money, for “[t]o most 

people, a dollar today is worth a great deal more than a dollar ten years from now.” Reynolds v. 

Beneficial Nat’l Bank, 288 F.3d 277, 284 (7th Cir. 2002). “If this case had been litigated to 

conclusion, all that is certain is that plaintiffs would have spent a large amount of time, money and 

effort.” Donovan v. Estate of Fitzsimmons, supra, 778 F.2d at 309 n.3; Seiden v. Nicholson, 72 

F.R.D. 201, 208 (N.D. Ill. 1976). The proposed settlement, on the other hand, provides immediate 

benefits.

By reaching a favorable settlement prior to a motion to decertify, dispositive motions or 

trial, Named Plaintiffs avoid significant expense and delay, and instead ensure a significant and 

early recovery for the Settlement Class Members. “[A]n integral part of the strength of a case on 

the merits is a consideration of the various risks and costs that accompany continuation of the 

litigation.” Donovan v. Estate of Fitzsimmons, supra, 778 F.2d at 309. Although Named Plaintiffs

believe their case is strong, it is subject to considerable delay, risks and costs if the case is not 

settled. The years of additional litigation would unnecessarily increase both the expense of the 

litigation and the risk for Class Members. Isby v. Bayh, supra, 75 F.3d at 1199; In re Mexico 

Money Transfer Litig., 164 F. Supp. 2d 1002, 1019 (N.D. Ill. 2000). 

7. Requests for Exclusion and Objections

An absence of objections by class members is a significant factor in determining whether 

the proposed class settlement is reasonable to the class as a whole. See Hispanics United of 

DuPage Cnty. v. Vill. of Addison, Illinois, 988 F. Supp. 1130, 1169 (N.D. Ill. 1997) (finding the 

settlement fair where a small number of class members objected); Mangone v. First USA Bank, 

206 F.R.D. 222, 226-27 (S.D. Ill. 2001) (same). “If only a small number of objections are received, 

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that fact can be viewed as indicative of the adequacy of the settlement.” Wal-Mart Stores, Inc. v. 

Visa USA, Inc., 396 F.3d 96, 118 (2d Cir. 2005).

The Settlement Administrator only received 11 requests for exclusion and no objections. 

Ex 2, Pirrung Decl., ¶¶10 and 14.

IV. THE REQUESTED ATTORNEYS’ FEES SHOULD BE AWARDED

The Supreme Court has “recognized consistently that a litigant or a lawyer who recovers a 

common fund for the benefit of a person other than himself or his client is entitled to a reasonable 

attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); 

Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560, 563 (7th Cir. 1994). The common fund 

doctrine is based on the notion that all “those who have benefitted from litigation should share its 

costs.” Skelton v. General Motors Corp., 860 F.2d 250, 252 (7th Cir. 1988); In re Synthroid Mktg. 

Litig., 325 F.3d 974, 977 (7th Cir. 2003) (Synthoid II) (each class member “must bear their portion 

of the legal expense.”). 

A. The ‟Market Method” is used to Calculate Attorney’s Fees in Common 

Fund Cases in the Seventh Circuit

‟When deciding on appropriate fee levels in common fund cases, courts must do their best 

to award counsel market price for legal services, in light of the risk of nonpayment and the normal 

rate of payment at the time.” In re Synthroid Mktg. Litig., 264 F.3d 712, 718 (7th Cir. 2001)

(Synthoid I). To that end, the court uses the ‟market place” for legal services to determine a 

‟percentage of the fund” that fully compensates counsel with a reasonable fee as required by Rule 

23(h). Id.; Montgomery v. Aetna Plywood, Inc., 231 F.3d 712, 718 (7th Cir. 2000); Gaskill v. 

Gordon, 160 F3d 361, 363 (7th Cir. 1998). The Seventh Circuit recognizes the advantages of the 

percentage of the fund method, including its objectivity and ease of application. Florin v. 

Nationsbank of Georgia, N.A., 34 F.3d 560, 566 (7th Cir. 1994). Indeed, the use of a multifactor 

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test such as “a lodestar cross-check in a common fund case is unnecessary, arbitrary, and 

potentially counterproductive.” Silverman v. Motorola, 2012 WL 1597388, at *4 (N.D. Ill. May 7, 

2012) (citing Will v. General DynamicsCorp., 2010 WL 4818174, at *3 (S.D. Ill. Nov. 22, 2010). 

Class Counsel request attorneys’ fees in the amount of $1,750,000 ─ 35% of the $5,000,000 

Maximum Settlement Fund. The requested fee is authorized by the Settlement Agreement, 

supported by the ‟market place”, the result obtained, and is reasonable. Ex. 1, Kostas Decl., ¶¶16-

21; Ex. 4, Ostroff Decl., ¶18; and Ex. 3, Werman Decl., ¶¶14-16.

1. The Requested Fee Award is Supported By the Market 

 Rate and Awards in Other Common Fund Cases 

The percentage method is consistent with, and is intended to mirror, the private 

marketplace for negotiated contingent fee arrangements. Kirchoff v. Flynn, 786 F. 2d 320, 324 (7th 

Cir. 1986) (“[w]hen the ‘prevailing’ method of compensating lawyers for ‘similar services’ is the 

contingent fee, then the contingent fee is the ‘market rate.’”) (emphasis in original). In the 

marketplace, the “contingent fee uses private incentives rather than careful monitoring to align the 

interests of lawyer and client. The lawyer gains only to the extent his client gains.” Kirchoff, 786 

F. 2d at 325; see also In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F. 3d 

283, 333 (3d Cir. 1998).

The fees requested approximate the attorney’s fees awarded in other employment class 

actions. Ex 3, Werman Decl., ¶16; Sanchez v. Roka Akor Chicago LLC, 2017 WL 1425837, at *6 

(N.D. Ill. Apr. 20, 2017) (in IMWL class action, awarding fees equivalent to 39.5% of the common 

fund and stating such an award is “consistent with the market in the Northern District of Illinois.”); 

Furman v. At Home Stores LLC, 2017 WL 1730995, at *4 (N.D. Ill. May 1, 2017) (in FLSA 

collective action, awarding one-third of common fund and stating that “is the standard contingent 

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percentage that employment lawyers in the Northern District of Illinois charge individual 

clients.”)5

2. The Requested Fee Award Satisfies the ‟Redman Ratio”

The Seventh Circuit instructs district courts to examine the ratio of the fee requested to the 

fee plus what class members received to assess the reasonableness of the requested fee award and 

to deter collusive results when a “clear sailing” agreement is present. See Redman v. RadioShack 

Corp., 768 F.3d 622, 630 (7th Cir. 2014); accord Pearson v. NBTY, Inc., 772 F.3d 778, 781 (7th

Cir. 2014).

6

 

 

5 See also, Briggs v. PNC Financial Services, Inc., 2016 WL 7018566, at *4 (N.D. Ill. Nov. 29, 

2016) (awarding one-third of maximum $6,000,000 common fund in FLSA collective action for 

owed overtime pay); McDonnell v. Groupon, Inc., Case No. 14-9028, ECF No. 100 (N.D. Ill. 

Nov. 11, 2016) (awarding one-third of $2,500,000 common fund in FLSA and IMWL collective 

and class action for owed overtime pay); Romo v. Manpower, Inc., Case No. 09 C 3429, ECF 

No. 249 (N.D. Ill.) (awarding one-third of $8,000,000 common fund in IWPCA vacation pay 

forfeiture class action); Ortiz v. Manpower, Case No. 12 C 5248, ECF No. 63 (N.D. Ill.) 

(awarding requested 30% of $11,000,000 common fund); O’Toole v. Sears Roebuck, and Co., 

Case No. 11 C 4611, ECF 274 (awarding one-third of $5,000,000 common fund); Beatty v. 

Capital One Financial Corporation, Case No. 12-cv-434, ECF No. 75 (N.D. Ill.) (awarding 

one-third of $3,200,000 in FLSA collective action); Williams v. Volt Mgmt. Corp, Case No. 10 C 

3927, ECF No. 52 (N.D. Ill.) (awarding one-third of $2,500,000 common fund in IWPCA 

vacation pay forfeiture class action); Hardaway v. Employbridge of Dallas, Inc., et al., Case No. 

11 C 3200, ECF No. 73 (N.D. Ill.) (awarding one-third of $1,500,000.00 common fund in 

IWPCA, IDTLSA, and IMWL unpaid wage class action); Peraza v. Dominick's Finer Foods, 

LLC, Case No. 11 C 8390, ECF No. 52 (N.D. Ill.) (awarding one-third of $1,450,000 common 

fund in IMWL overtime pay class action); Rosales v. The Placers, Ltd., Case No. 09 C 1706, 

ECF No. 162 (N. D. Ill.) (awarding one-third of $1,650,000 common fund in IWPCA vacation 

pay forfeiture class action); Schmidt v. Smith & Wollensky LLC, Case No. 09-2752, ECF No. 78 

(N.D. Ill) (awarding one-third of common fund in IMWL minimum wage and overtime pay 

case); Rosales v. The Placers, Ltd., Case No. 09 C 1706, ECF No. 162 (N. D. Ill.) (awarding 

one-third of $1,650,000 common fund in IWPCA vacation pay forfeiture class action); Rusin v. 

Chicago Tribune Company, No. 12 C 1135, ECF No. 41 (N.D. Ill.) (awarding one-third of 

common fund in IMWL class action).

6 These cases also confirm that the reasonableness of an attorneys’ fee award must be evaluated in 

the context of “what it buys,” and not how “hard and efficiently [] [Class Counsel] say they 

worked.” Redman, supra, 768 F.3d at 633. “[I]n determining the reasonableness of the attorneys’ 

fee agreed to in a proposed settlement, the central consideration is what class counsel achieved for 

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Under Redman, the “ratio that is relevant” in determining reasonable attorney’s fees “... is 

the ratio of (1) the fee to (2) the fee plus what the class members received” and the “attorney’s fees 

awarded to class counsel should not exceed a third or at most a half of the total amount of money 

going to class members.” Redman, 768 F.3d at 630; Pearson, supra, 772 F.3d at 781-82; see also, 

In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992) (the “usual range for contingent fees 

is between 33 and 50 percent.”); In re Dairy Farmers, 2015 WL 753946 at *3 (in class actions, 

“usual range for contingent fees is between 33 and 50 percent”); Restsky Family Ltd. P’ship v. 

Price Waterhouse LLP, No. 97-7694, 2001 WL 1568856 at * 4 (N.D. Ill. Dec. 10, 2001) (a 

“customary contingency fee would range from 33 1/3% to 40% of the amount recovered”); Gaskill 

v. Gordon, 160 F.3d 361, 362 (7th Cir. 1998) (“the typical contingent fee contract is between 33 

and 40 percent ...”); Kirchoff, supra, 786 F. 2d at 323 (“40% is the customary fee in tort litigation” 

and noting, with approval, contract providing for one-third contingent fee if litigation settled prior 

to trial).

The concern about ‟clear sailing” agreements expressed by the Redman Court has been 

addressed by other courts with similar approaches to ensure that such provisions are not the result 

of a collusive agreement. Specifically, the court may assess 1) whether class counsel is receiving

a disproportionate distribution of the settlement, and 2) whether fees not awarded revert to 

defendants. Bluetooth Headset Prods. Liabl. Litig, 654 F.3d 935, 947 (9th Cir. 2011)($800,000 

for attorneys’ fees and no monetary award for the class); Harris v. Vector Mktg. Corp., 2011 WL 

 

the members of the class rather than how much effort class counsel invested in the litigation.” Id. 

Schulte v. Fifth Third Bank, No. 09 C 6655, 2011 U.S. Dist. LEXIS 83423, at *103, n. 27 (N.D. 

Ill. July 29, 2011) (“use of a lodestar cross-check in a common fund case is unnecessary, arbitrary, 

and potentially counterproductive.”) 

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4831157 (N.D. Cal.)(rejecting $4,000,000 in attorneys’ fees and $1,000,000 to the class).

Here, Class Counsel’s proposed attorney’s fee equals the low end of the Redman ratio: i.e., 

35% of the Maximum Settlement Fund, all of which will be distributed, with no requirement that 

Settlement Class Members submit claim forms to receive their pro rata share of the Net 

Settlement Fund. Sanchez, supra, 2017 WL 1425837 at *6. In addition, Settlement Class 

Members are receiving substantially more than Class Counsel ($3,082,032 v. $1,750,000), and

no money reverts to JCPenney. Any money that remains as a result of Settlement Payments that 

are not cashed within 180 days will be paid to the cy pres designee, the Legal Assistance 

Foundation. Exhibit ‟B”, §7.4.5.

3. The Maximum Settlement Fund Is An Excellent Recovery

Class Counsel recovered approximately 77% on the maximum vacation forfeiture sustained 

by the Settlement Class Members. Ex. 1, Kostas Decl., ¶13. The distribution of the Net Settlement 

Fund was initially estimated to be: 

Settlement No. of Settlement Percent Dollar Value

Payment Class Members

$ 10.00 17,955 46.77% $ 179,550

$ 10.00 - $ 20.00 4,129 10.7% $ 60,547

$ 20.01 - $ 50.00 5,887 15.3% $ 190,355

$ 50.01 - $ 100.00 3,874 10.1% $ 278,790

$ 101.00 - $ 200.00 3,260 8.5% $ 459,898

$ 201.00 - $ 500.00 2,400 6.2% $ 723,461

$ 501.00 - $1,000.00 584 1.5% $ 391,754

 >$1,000.00 376 1.0% $ 795,676

Totals 38,465 100% $3,080,0327

 

7 After the Court approved attorneys’ fees, costs and Service Awards are known, a final calculation 

of Settlement Payments will, if necessary, be performed based on the Net Settlement Fund if it has 

changed. 

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The revised distribution by the Settlement Administrator after the value of the Settlement 

Awards ($53,570.56) for the 953 Class Members who could not be located and the 11 requests for 

exclusion ($771.51) is reallocated to the remaining 37,501 Class Members is: 

Settlement No. of Settlement Class Members

$ 0 $ 10.00 17,339

$ 10.01 - $ 100.00 13,546

$ 100.01 - $ 250.00 4,062

$ 250.01 - $ 1,000.00 2,173

$1,000.00 - $16,050.00 381

 Total 37,501 (38,465-964)

Ex 2, Pirrung Decl., ¶¶15-16.

 

This recovery is above the range of reasonable recoveries in most settled class actions. See, 

Rotuna v. W. Customer Mgmt. Grp., LLC, 4:09CV1608, 2010 WL 2490989, at *8 (N.D. Ohio June 

15, 2010) (awarding one-third of common fund and describing recovery of 25% to 75% of claimed 

wages as “exceptional.”); Dillworth v. Case Farms Processing, Inc., 5:08-CV-1694, 2010 WL 

776933, *8 (N.D. Ohio Mar. 8, 2010) (awarding one-third of common fund as fee in wage case 

and describing recovery of one-third of claimed wages as “exceptional”). This settlement provides 

a significant recovery. After deducting all costs, more than 4,000 Settlement Class Members will 

receive more than $100, and more than 6,000 Settlement class Members will receive more than 

$500, with 381 receiving more than $1,000.

4. Quality of Representation

As outlined in section I above, this case was vigorously litigated over a six (6) year period. 

Class Counsel faced two well-staffed, capable firms with significant expertise in wage and hour 

class actions. This case was defended by multiple partners and associates, as well as in house 

counsel. Virtually every issue was litigated and relitigated. Ex. 1, Kostas Decl., ¶¶9-10, 12-13, 

15, and 21.

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5. Risk of Nonpayment

Class Counsel should be compensated for litigating difficult cases with tenacity, and not 

for settling simple cases for small amounts. In accepting difficult cases where the defendant is 

represented by well-staffed and competent counsel, there is a substantial risk of nonpayment. The 

opportunity cost of nonpayment, or inadequate payment, is compounded when attorneys, as Class 

Counsel, have small firms and only work on a handful of cases at any one time. Ex.1, Kostas Decl., 

¶7; Ex 4, Ostroff Decl., ¶5; Ex 3, Werman Decl., ¶15. As a result, Class Counsel took “on a 

significant degree of risk of nonpayment” in agreeing to represent Named Plaintiffs. Taubenfeld v. 

AON Corp., 415 F.3d 597 at 600 (7th Cir. 2005) (approving of district court’s reliance on this factor 

in evaluating attorneys’ fees); Sutton v. Bernard, 504 F.3d 688, 693-94 (7th Cir. 2007) (“We 

recognized [in an earlier case] that there is generally some degree of risk that attorneys will receive 

no fee (or at least not the fee that reflects their efforts) when representing a class because their fee is 

linked to the success of the suit.”). As the Seventh Circuit has noted, plaintiffs’ counsel “could have 

lost everything” they invested. Matter of Cont’l Ill. Sec. Litig., 962 F.2d 566, 570 (7th Cir. 1992) 

(Posner, J.). These facts support Class Counsel’s fee request. 

6. There is No Opposition to the Requested Fee Award

The attorney’s fees request was disclosed in the Class Notice, and not one Settlement Class 

Member objected. Ex. 1, Kostas Decl., ¶14; Ex. 4, Ostroff Decl., ¶12; Ex. 2, Pirrung Decl., ¶14. 

For the reasons explained above, the requested award is appropriate in this case.

V. CLASS COUNSELS’ COSTS AND ADMINISTRATION COSTS ARE 

REASONABLE AND WERE NECESSARY

Class Counsel may recover reasonable costs incurred, not to exceed $75,000. Exhibit ‟B”, 

§3.3. The itemized costs of $38,541.80 are reasonable and were necessary. Ex.1, Kostas Decl., 

¶21, Ex. 3, Werman Decl., ¶17. The proposed award of costs is disclosed in the Class Notice, and 

not one Settlement Class Member objected. Exhibit ‟B-1”; Ex. 1, Kostas Decl., ¶22; Ex. 2, Pirrung

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Decl., ¶14. Therefore, Class Counsel requests that the Court award $38,541.80 for the reasonable 

costs they incurred prosecuting this case.

Class Counsel obtained several bids for the administration of this case. Ex. 1, Kostas Decl., 

¶24. Class Counsel proceeded to negotiate with the interested parties and ultimately accepted a 

fixed price bid from ACLS for $84,968, the lowest price for the services required by the Settlement 

Agreement. Id. Therefore, $84,968 should be awarded to ACLS for the reasonable and necessary 

costs it incurred in administering this case.

VI. SERVICE AWARDS IN THE AMOUNT OF $5,000 EACH ARE APPROPRIATE

The Settlement Agreement provides a Service Award of $5,000 payable to each Named 

Plaintiff, for a total sum of $10,000. Exhibit ‟B”, §3.5. The proposed Service Awards represent 

.002, or approximately less than one quarter of one percent of the $5,000,000 Maximum Settlement 

Fund. The proposed Service Awards are disclosed in the Class Notice, and not one Settlement 

Class Member objected. Exhibit ‟B-1”; Ex.1, Kostas Decl., ¶23; Ex. 2, Pirrung Decl., ¶14.

“Because a named plaintiff is an essential ingredient of any class action, an incentive award 

is appropriate if it is necessary to induce an individual to participate in the suit.” Cook v. Niedert, 

142 F.3d 1004, 1016 (7th Cir. 1998). “In deciding whether such an award is warranted, relevant 

factors include the actions the plaintiff has taken to protect the interests of the class, the degree to 

which the class has benefited from those actions, and the amount of time and effort the plaintiff 

expended in pursuing the litigation.” Id. All of the factors support payment of the proposed 

Service Awards.

This case was commenced on April 5, 2011. The Settlement Agreement was signed in 

March 2017. During this time Named Plaintiffs spent a significant amount of time on this case. 

They travelled for their depositions, reviewed transcripts, consulted with Class Counsel as 

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necessary, assisted in the preparation of and responses to discovery, made themselves available 

when the two (2) mediations were conducted, and reviewed and approved the Settlement 

Agreement. Garcia and Rednour estimated that they spent approximately 64, and 61 hours,

respectively, on this case. Ex. 5, Garcia Decl., ¶6; Ex. 6, Rednour Decl., ¶6.

VII. CONCLUSION

Named Plaintiffs respectfully request that the Court grant their unopposed Motion for Final 

Approval, attorneys’ fees and costs ($1,750.000 and $38,541.80), Service Awards ($10,000), 

administration costs ($84,968), and enter the Proposed Order.

Dated: June 30, 2017 Respectfully submitted,

s/ Douglas M. Werman

One of Named Plaintiffs’ Attorneys 

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