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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAF-T-GARD INTERNATIONAL, INC., )

)

Plaintiff, )

)

-vs- ) Case No.: 12-cv-3671

)

VANGUARD ENERGY SERVICES, L.L.C., )

VANGUARD ENERGY, L.L.C., AND )

SEMINOLE ENERGY SERVICES, L.L.C., ) Honorable Joan B. Gottschall

)

Defendants. )

PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF

CLASS ACTION SETTLEMENT 

Plaintiff Saf-T-Gard International, Inc. (“Saf-T-Gard” or “Plaintiff”) and its 

counsel Keogh Law, Ltd., respectfully request that the Court grant this Motion for Preliminary 

Approval of Class Action Settlement with Vanguard Energy Services, L.L.C., Vanguard Energy, 

L.L.C., and Seminole Energy Services, L.L.C. (collectively, “Defendants”), who do not oppose 

this motion. In support of this motion, Plaintiff states as follows: 

NATURE OF THE CASE

1. Saf-T-Gard filed a Class Action Complaint against Defendants on May 14, 2012

and a First Amended Class Action Complaint against Defendants on July 18, 2012, both alleging 

that Defendants violated the Telephone Consumer Protection Act, 47 U.S.C. §227, (“TCPA”), 

the Illinois Consumer Fraud Act, 815 ILCS 505/2, and Illinois common law (conversion) by 

sending Plaintiff and the class members unsolicited facsimile advertisements of their services. 

2. The TCPA and implementing Federal Communications Commission regulations 

generally make it unlawful for any person or entity to “use a telephone facsimile machine, 

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computer, or other device to send an unsolicited advertisement to a telephone facsimile 

machine...” 47 U.S.C. § 227(b)(1)(C); 47 CFR § 64.1200(a)(4).

3. On December 6, 2012, the Court granted Saf-T-Gard’s motion for class 

certification and certified the following class: 

(a) all persons or entities (b) who, on or after May 14, 2008 and on or before June

4, 2012 (c) were sent unsolicited faxes by or on behalf of defendants promoting

their goods or services for sale (d) and who were not provided an “opt out” notice

as described in 47 U.S.C. § 227. Doc. 38. 

4. On February 15, 2012, the Court denied Plaintiff’s motion to compel discovery 

regarding faxes sent by defendant Seminole Energy Services, L.L.C. (“Seminole”) and ruled that 

“the class definition is [] properly understood to encompass persons who received unsolicited 

faxes sent by VES, on behalf of VES, Vanguard and/or Seminole.”

5. With that understanding, Plaintiff diligently pursued the discovery necessary to 

identify the class members and prosecute the class claims. Discovery has shown that defendant 

Vanguard Energy Services (“VES”) sent a total of 119 potentially unsolicited facsimile 

advertisements to a total of 82 persons/entities during the relevant time period. Discovery has 

not shown that any such faxes were sent by Seminole or Vanguard Energy, L.L.C. (“Vanguard”) 

on behalf of VES during the relevant time period.

6. Although the Parties disagree about whether certain of the facsimiles were 

unsolicited, the Parties have agreed to a class wide settlement on behalf of all 82 persons to 

whom those facsimiles were sent and, for purposes of settlement, assert that there are 82 Class 

Members. 

7. The Parties reached the agreement, which is attached hereto as Appendix 1, after 

extensive arm’s length negotiations and in good faith. 

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8. Counsel for Plaintiff has reviewed and analyzed the legal and factual issues 

presented in this action, the information provided by Defendants and third parties in discovery, 

the risks and expense involved in pursuing the litigation to conclusion, the likelihood of 

recovering damages in excess of those obtained through this settlement, the protracted nature of 

the litigation and the likelihood, and the costs and possible outcome of one or more procedural 

and substantive appeals. Based on that review and analysis, Counsel for Plaintiff believes that 

the terms of the Settlement are fair, reasonable, and adequate. 

TERMS OF THE SETTLEMENT

9. Pursuant to the Settlement Agreement, and subject to court approval, Defendants 

have agreed to establish a common fund in the amount of $59,500.00 to make a payment of 

$500.00 for each facsimile sent to the class members. Assuming the Court awards the total 

requested attorney’s fees and costs of $19,635.00, each class member would receive $335.00 per 

facsimile without any requirement to submit a claim form. 

10. Separate and apart from the above relief, Defendants will pay Settlement 

Administration Costs and a class representative incentive award to Plaintiff in an amount to be 

determined by the Court, but not to exceed $5,000. 

11. Plaintiff and counsel for Plaintiff and the class believe that the settlement of this 

action on the terms and conditions set forth in the Settlement Agreement is fair, reasonable and 

adequate, and would be in the best interests of the putative class members. 

THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT

12. Under Fed. R. Civ. P. 23(e)(1)(C), a court may approve a class action settlement 

if it is “fair, adequate, and reasonable, and not a product of collusion.” There is usually an initial 

presumption of fairness when a proposed class settlement "is the product of arm's length 

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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 §11.41 (4th ed. 2002); Goldsmith v. Technology Solutions Co., No. 92 

C 4374, 1995 WL 17009594, at *3 (N.D. Ill. Oct. 10, 1995); Boggess v. Hogan, 410 F. Supp. 

433, 438 (N.D. Ill. 1975). 

13. 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 expense of both parties and also reduces

the strain such litigation imposes upon already scarce judicial resources.

Armstrong v. Board of School Directors 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).

14. District court review of a class action settlement proposal is a two-step process. 

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

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). Newburg, supra, at §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. Manual for Complex Litigation (Fourth) 

§21.633 (2004).

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15. In assessing the fairness, reasonableness and adequacy of a settlement, 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 defendants’ ability to pay; (3) the complexity, 

length and expense of trial; (4) the presence of collusion in reaching a settlement and (5) the 

stage of the proceedings and the amount of discovery completed. Armstrong, 616 F.2d at 314, 

(citations omitted); Synfuel Techs., Inc., 463 F.3d at 653; In re General Motors Corp. Engine 

Interchange Litig., 594 F.2d 1106, 1132 (7th Cir.1979) (citations omitted); Isby v. Bayh, 75 F.3d 

1191, 1199 (7th Cir.1996). Of these considerations, the first is most important. Synfuel Techs., 

Inc., 463 F.3d at 653.

All Of The Factors Weigh In Favor Of Preliminary Approval

a. The Settlement Provides Significant Benefits To The Class.

16. In a TCPA case, each class member would be entitled to $500 per fax and up to 

$1,500 if they can prove a willful violation of the Act. 

17. While Plaintiff submits that it has a strong claim, Plaintiff recognizes that it may

not be able to prove that Defendants violations were willful. As such, Plaintiff believes that the 

common fund, which amounts to $500 per facsimile, provides adequate relief to the class. 

Assuming the Court awards the requested attorneys fees and costs, each class members will 

receive $335.00 per fax without any requirement to submit a claim form.

b. The Settlement Resulted From Extensive Arm’s Length Negotiations 

And Is Not The Product Of Collusion

18. As a leading treatise on class action jurisprudence explains, “...decisions indicate 

that the courts respect the integrity of counsel and presume the absence of fraud or collusion in 

negotiating the settlement, unless evidence to the contrary is offered.” Newberg, §11.51. See 

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also, Section IV(1)(A), supra (there is an initial presumption of fairness when a settlement has 

been negotiated in arm’s length by experienced counsel). The requirement that a settlement be 

fair is designed to protect against collusion among the parties. Mars Steel Corp. v. Continental 

Illinois Nat. Bank and Trust Co. of Chicago, 834 F. 2d 677, 684, 9 Fed. R. Serv. 3d (LCP) 909 

(7th Cir. 1987) (approved settlement upon finding of no “hanky-panky” in negotiations). There 

usually is an initial presumption that a proposed settlement is fair and reasonable when it was the 

result of arm’s length negotiations. Newberg, §11.42.

19. Settlement was reached after the class was certified and discovery necessary to 

identify the class and prosecute the class claims was complete, which consisted of contested 

discovery motions, several sets of written discovery requests, and subpoenas to a third party.

20. The significant economic benefit to the Settlement Class demonstrates that the 

settlement is fair, reasonable and adequate. 

c. The Proposed Notice To Class Members Is Adequate

21. Under Federal Rule of Civil Procedure 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. (Fourth) § 21.31 (2004). Notice is adequate 

if it 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.” Eisen v. 

Carlisle & Jacquelin, 417 U.S. 156, 174 (1974), quoting, Mullane v. Central Hanover Bank & 

Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

22. The Notice the Plaintiff proposes here is clear and straightforward, providing

putative class members with enough information to evaluate whether to participate in the 

Settlement, as well as directions on how to seek further information. The Notice contains all of 

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the information required by Rule 23, such as the nature of the action; the class definition; 

summary of the class claims and defenses; the amount paid for a claim; the potential class 

representative fee and attorneys’ fees and costs; ability to enter an appearance; exclusion rights; 

objection rights and binding effect of a class judgment on members under Rule 23. 

23. Notice will be provided by first class mail to each class member within thirty 

(30) days after the entry of the Preliminary Approval Order

24. Defendants, through a Claims Administrator will perform various tasks relating 

to implementation of the settlement, including, without limitation: (1) mailing Class Notice as 

set forth in this Settlement Agreement (2) forwarding any inquiries from members of the 

Settlement Class to Class Counsel for response; (3) mailing payments to the class 

memberspursuant to the Settlement Agreement and; (4) providing the Court and the parties proof 

of the above. 

25. The notice scheme the Plaintiff proposes is consistent with the due process

requirements incorporated in Rule 23(c)(2)(B). Rule 23’s advisory committee note 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. (citing, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 

70 S.Ct. 652, 94 L.Ed. 865 (1950) (additional citations omitted). 

26. Accordingly, Plaintiff respectfully submits, the Settlement Agreement and the 

settlement are sufficient to warrant notice thereof, as set forth below, and a full hearing on the 

settlement. 

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27. The Parties have agreed to the form of the draft preliminary approval order 

attached to the Settlement Agreement as Exhibit A and again hereto as Appendix 2, which 

provides:

1) setting a date for a final approval hearing (“Court Approval Hearing”); 

2) approving sending the proposed Class Notice in the form that is attached to the 

Settlement Agreement as Exhibit C; 

3) setting deadlines for mailing of the Class Notice, the filing of objections, the 

submission of requests for exclusion from the Settlement Class, and the filing of papers in 

connection with the Court Approval Hearing; 

WHEREFORE, Plaintiff respectfully requests that this Court enter an order in the form of 

Appendix 2, which contains the previously set deadlines.

Respectfully submitted;

/s/ Timothy J. Sostrin

Keith J. Keogh

Timothy Sostrin

KEOGH LAW, LTD.

55 W. Monroe, Suite 3390

Chicago, IL 60603

(312) 726-1092/(312) 726-1093 (fax)

TSostrin@Keoghlaw.com

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