- 1 - 

PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL 

OF CLASS ACTION SETTLEMENT 

 Plaintiffs, Mary T. Janetos and Erik King, individually and on behalf of a class 

(“Plaintiffs”), request pursuant to Fed. R. Civ. P. 23(b)(3) that the Court enter an order: (1) 

conditionally certifying the settlement class and subclass defined infra; (2) preliminarily 

approving a class action settlement as set forth in the Class Settlement Agreement attached 

hereto as Appendix 1; (3) directing notice to the conditionally certified class and subclass; and 

(4) setting dates for exclusions, objections, and a Fairness Hearing. 

In support of their motion, Plaintiffs state as follows: 

(a) Background 

 1. Plaintiffs Janetos and King brought this action against FFG and Asset individually 

and on behalf of a class, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. 

§1692 et seq. (“FDCPA”). Plaintiffs Fujioka and Bernave brought claims for individual relief 

under the FDCPA in the same case. Plaintiffs alleged that FFG and Asset violated Section 

1692g(a)(2) of the FDCPA because letters sent by FFG failed to disclose the name of the creditor 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

MARY T. JANETOS and ERIK KING, 

individually and on behalf of a class, PAMELA 

M. FUJIOKA, and IGNACIO T. BERNAVE, 

individually, 

Plaintiffs, 

vs. 

FULTON FRIEDMAN & GULLACE, LLP and 

ASSET ACCEPTANCE, LLC, 

Defendants. 

 

Case No.: 12-1473 

Hon: Thomas M. Durkin 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 1 of 9 PageID #:2022
- 2 - 

to whom the debt identified in the Letter was owed. On July 21, 2014, this Court issued an 

Opinion and Order granting the motion of Janetos and King for Class Certification. (ECF No. 

138). On April 13, 2015, this Court granted FFG’s and Asset’s Motion for Summary Judgment 

and denied Plaintiffs’ Motion for Summary Judgment and dismissed the case. (ECF No. 153). 

On April 7, 2016, the United States Court of Appeals for the Seventh Circuit issued an Opinion 

reversing this Court’s Order, holding that the letters at issue violated Section 1692g(a)(2) of the 

FDCPA, and remanding the case for further proceedings. Janetos v. Fulton, Friedman & 

Gullace, LLP, 825 F.3d 317 (7th Cir. 2016). This Court subsequently denied FFG’s Rule 12(b)(1)

motion to dismiss (ECF No. 194) and granted Plaintiffs’ motion for summary judgment on the 

measure of class damages, holding that Asset’s net worth may be considered when apportioning 

damages to the class. (ECF No. 208). On May 11, 2017, the parties participated in a settlement 

conference mediated by Judge Philip P. Simon and reached a settlement of all claims. 

 2. Defendants deny that Plaintiffs or the certified class are entitled to damages. 

Nonetheless, Defendants and Plaintiffs consider it desirable that this action and Plaintiffs’ claims 

be settled. 

 3. The parties desire to settle the action based upon the terms and conditions set 

forth in the Class Settlement Agreement (the “Agreement”) executed by the parties, attached 

hereto as Appendix 1. 

(b) The Settlement Class

4. For settlement purposes, the parties have stipulated to the certification of one 

class and one subclass (“the Class”) defined as follows: 

A. All individuals in Illinois, based on Defendants’ business records, to 

whom FFG sent a letter on or after March 1, 2011 and on or before March 21, 

2012, in the form represented by Exhibit E to the Second Amended Complaint. 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 2 of 9 PageID #:2023
- 3 - 

B. A subclass of all individuals in Illinois to whom FFG sent a letter in care 

of their respective attorneys on or after March 1, 2011 and on or before March 21, 

2012, in the form represented by Exhibit C to the Second Amended Complaint. 

 Excluded from the Class are persons who have filed a petition pursuant to Chapter 7 of the 

United States Bankruptcy Code (persons who have filed under Chapter 13 of the United States 

Bankruptcy Code are entitled to share in the settlement fund upon submission of a timely Claim 

Form). According to Asset’s business records, 963 out of the original 15,059 class members 

have filed Chapter 7 bankruptcies, leaving approximately 14,094 in the Class.1

 

 5. The Class as defined meets all the requirements of Rule 23. Specifically: 

 (a) Class members are ascertainable and so numerous that joinder of all 

members is impracticable; 

 (b) There are questions of law or fact common to the Class, and there is a 

well-defined community of interest among Class members with respect to the subject matter of 

the lawsuit; 

 (c) The claims of Plaintiffs are typical of the claims of Class members; 

 (d) Plaintiffs have fairly and adequately protected the interests of the Class 

members; 

 (e) A class action is superior to other available methods for an efficient 

adjudication of this controversy; and 

 (f) The law firm of Edelman, Combs, Latturner & Goodwin, LLC is qualified 

to serve as counsel for the Class. 

 6. Subject to the terms of the Agreement, Defendants have agreed to provide the 

following relief to Plaintiffs and the Class: 

 (c) The Settlement Fund 

 

1

 In additional two class members opted out of the original class. 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 3 of 9 PageID #:2024
- 4 - 

 Defendants will pay the total cash sum of $530,000 into a Settlement Fund in full and 

complete settlement of all claims of the Plaintiffs and the Class. The Settlement Fund will be 

used to furnish all payments to Plaintiffs, Pamela Fujioka and Ignacio Bernave, the Class, Class 

Counsel, and $27,600 to the Settlement Administrator. No portion of the Fund will be returned to 

Defendants and any money left in the Settlement Fund will be distributed in equal amounts to the 

Legal Assistance Foundation of Metropolitan Chicago, the Land of Lincoln Legal Assistance 

Foundation, and Prairie State Legal Services on a cy pres basis. 

 (d) Payments to the Plaintiff and Class Members 

 Plaintiffs Mary Janetos and Erik King will each receive $5,000.00 from the Settlement 

Fund for their statutory damages and in recognition of their services to the Class, for a total of 

$10,000. Additional plaintiffs, Pamela Fujioka and Ignacio Bernave, will each receive $1,000 for 

their actual and statutory damages, for a total of $2,000. 

 Each Class member who timely returns a valid claim form will be entitled to receive a pro 

rata share of $240,400.00. The FDCPA allows class members to recover up to 1% of a debt 

collector’s net worth (maximum of $500,000). 15 U.S.C. § 1692k. One percent of Asset’s net 

worth exceeds $500,000; one percent of FFG’s net worth is $0. Depending upon the number of 

claims submitted, counsel estimates that each claimant will receive between approximately $16 

and $160. And, to protect against the unlikely possibility of a lower than expected claim 

submission, the parties agreed that they would request further instruction from the Court if fewer 

than 1,000 claim forms are submitted. Appendix 1, ¶ 18. 

 (e) Plaintiff’s Attorneys’ Fees and Costs 

 Within thirty (30) days of the entry of the Preliminary Approval Order, Plaintiffs will 

move the Court for an award of attorneys’ fees and costs to be paid from the Settlement Fund to 

Class Counsel in an amount of $250,000. Cf. Pierce v. Visteon Corp., Case No. 14-2542, 2015 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 4 of 9 PageID #:2025
- 5 - 

WL 3985985, *4 (7th Cir. July 1, 2015) (in cases brought pursuant to fee-shifting statutes, class 

counsel should not be paid from “common fund” meant to compensate class members). 

Defendants have agreed not to object to an award up to this amount. Appendix 1, p. 5. 

 (f) Class Notice Plan & Class Members’ Objection Rights 

 Within thirty (30) days of the entry of the Preliminary Approval Order, the Settlement 

Administrator will cause the Class Notice (in a form substantially similar to that attached hereto 

as Exhibit A to Appendix 1), to be sent via first class U.S. mail, postage prepaid to each Class 

member identified on the class list prepared by Asset. Before sending the Class Notice, the 

Settlement Administrator will obtain updated addresses through the National Change of Address 

Database. The Settlement Administrator will also perform a skip trace on any Class members 

whose notices are returned by the Postal Service without a forwarding address and re-mail the 

Class Notice if a current address is found. All Class Notice and other administration costs will be 

paid from the Settlement Fund. Class members will have 90 days from the date of the 

Preliminary Approval order (approximately 60 days from the mailing of the notice) to submit 

claim forms or file an objection to the settlement. Class members will not have the right to optout of the Class as they were previously given that opportunity when Class Counsel sent a 

“Notice of Pendency” to the class members after the Court granted Plaintiffs’ Motion for Class 

Certification. 

(g) Reasons to Approve the Settlement 

 7. The Court should give preliminary approval to the settlement because it is a fair 

and reasonable compromise of disputed claims that have been litigated since 2011. The amount 

being recovered by Class members, assuming a ten percent response rate, which is common in 

cases of this sort, is approximately $170. That is an excellent recovery for the nature of the 

violation alleged. The settlement, moreover, avoids the potential pitfalls identified by the 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 5 of 9 PageID #:2026
- 6 - 

Seventh Circuit in Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014), Redman v. RadioShack 

Corp., 768 F.3d 622 (7th Cir. 2014), and Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014) 

respectively. 

 8. Unlike Pella, 753 F.3d at 722, 723-724, there is no conflict of interest here 

between the named Plaintiffs and the Class because Plaintiffs share no familial relationship with 

any Class counsel. And unlike Pella, 753 F.3d at 724, there is no conflict of interest between 

Plaintiffs’ counsel and the Class. The settlement agreement does not provide for the payment of 

attorney’s fees to Plaintiff’s counsel before the notice being sent to the class. Id. 

 9. Nor is the settlement “stacked against the class.” Id. Here, the notice is simple and 

direct. The claim form does not require a claimant “to submit a slew of arcane data”, id. at 725, 

or provide “needlessly elaborate documentation”, NBTY, 772 F.3d at 784. Instead, the claim form 

simply requires a signature (assuring that the recipient of the notice is the actual class member 

and will cash a check). 

 10. Unlike RadioShack, the instant settlement does not involve coupons, which by 

their nature make it difficult to value a settlement. RadioShack, 768 F.3d at 635-637. Here, there 

is no difficulty valuing the settlement. The settlement contemplates the creation of a $530,000 

Settlement Fund. Out of the fund, $5,000 will be paid to Plaintiffs Janetos and King each for 

their statutory damages and their services to the Class, plaintiffs Fujioka and Bernave will each 

receive $1,000 for their statutory damages, $27,600 will be paid to the Settlement Administrator 

for administration of the Settlement, Class Counsel will be paid up to $250,000, and the 

$240,400 balance will be paid to the 14,094 Class members who timely submit claim forms. 

Assuming a 10% response rate, each of 1,409 Class members will receive approximately $170, 

an excellent recovery for Class members with claims for statutory damages only under the 

FDCPA relating to the sending of a letter. 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 6 of 9 PageID #:2027
- 7 - 

 11. As in RadioShack, the instant settlement contains a “clear-sailing” provision. But 

the features of the RadioShack settlement that gave rise to the Seventh Circuit’s concerns are not 

found here. RadioShack admonished courts to scrutinize clear-sailing clauses in cases “involving 

a non-cash settlement award to the class”, id. at 637, because the value of such settlements to a 

class is unclear. A settlement with a difficult-to-determine value “complicates the difficulty 

faced by the district court in determining an appropriate attorneys’ fee, and a clear sailing clause 

exacerbates the difficulty further by elimination objections to an excessive fee by the defendant.” 

Id. The instant settlement, an unambiguous cash settlement, provides precisely $280,000 for the 

Class, Plaintiffs, and the Settlement Administrator. As such, the Court does not need the benefit 

of a contested fee petition to compare the settlement’s value to the proposed award of $250,000 

for attorney’s fees and costs. 

 12. In NBTY, the court also expressed concern about the settlement’s cy pres

distribution. The Settlement here does not raise the same concerns. In NBTY, the maximum any 

class member could receive was $3; when very few people claimed, more than half of the money 

allocated to the class was donated to cy pres. NBTY stated that money should go to cy pres “only 

if it's infeasible” to give the money to the class members themselves. NBTY, 772 F.3d at 784. 

Here, in contrast, it is unlikely that it will unfeasible to distribute most or all of the money in the 

fund to the Class. There is no cap on a class member’s recovery. Consequently, unlike NBTY, 

there is much greater incentive for a class member (a) to submit a claim, and (b) to cash the 

settlement check once received. 

 13. Finally, in all three cases, Pella, RadioShack, and NBTY, the Seventh Circuit 

expressed concern that class counsel would be awarded too much under the settlement, relative 

to the amount being paid to the class. The Seventh Circuit articulated a “presumption” for 

assessing the fairness of the fee award: “attorneys’ fees awarded to class counsel should not 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 7 of 9 PageID #:2028
- 8 - 

exceed a third or at most a half of the total amount of money going to class members and their 

counsel.” NBTY, 772 F.3d at 782; see also RadioShack, 768 F.3d at 630. As the Seventh Circuit 

recently noted, however, the presumption is not irrebuttable. In re Sears, Roebuck & Co. FrontLoading Washer Prod. Liab. Litig., No. 16-3554, 2017 WL 3470400, at *2 (7th Cir. Aug. 14, 

2017) (approving attorney fees of $2.7 million where class was likely to receive no more than 

$900,000). 

 Here, the settlement contemplates payment of $250,000 to class counsel, representing 

less than half of the $530,000 being paid to class counsel, the Class, the Plaintiffs, and the 

Settlement Administrator combined. Under NBTY, RadioShack, and Sears, therefore, Plaintiffs’ 

counsel’s fees are reasonable. Plaintiff’s counsel’s fees are reasonable even without reference to 

NBTY and RadioShack because the $250,000 is less than Plaintiffs’ counsel’s actual lodestar. 

 14. Finally, the Seventh Circuit’s presumption cannot reasonably be applied to an 

FDCPA class case. Unlike the Fair and Accurate Credit Transactions Act at issue in RadioShack

and the various state consumer protection laws in NBTY, the FDCPA limits a class’s recovery to 

the lesser of 1% of a defendant’s net worth or $500,000. 15 U.S.C. §1692k(a)(B). Because of 

that cap, in an FDCPA case, a plaintiff’s attorney’s fees may often exceed the class’s recovery if 

the net worth of the defendant is relatively modest or defendant’s counsel forces plaintiff’s 

counsel’s attorney’s fees to skyrocket due to needlessly aggressive litigation tactics. Nothing in 

NBTY or Radio Shack remotely suggests that the Seventh Circuit intended its presumption to be 

applied in an FDCPA case. 

 16. The settlement in the instant case, which was reached in the course of a settlement 

conference with Judge Simon, is fair and reasonable and deserves preliminary approval because 

it is “within the range of possible approval.” Zolkos v. Scriptfleet, Inc., 12-8230, 2014 WL 

7011819, *2 (N.D. Ill. Dec. 12. 2014). The preliminary approval hearing “is not a fairness 

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 8 of 9 PageID #:2029
- 9 - 

hearing; its purpose, rather, is to ascertain whether there is any reason to notify the class 

members of the proposed settlement and to proceed with a fairness hearing.” Id. Am. Int'l Grp., 

Inc. v. ACE INA Holdings, Inc., No. 07 C 2898, 2011 WL 3290302, at *6 (N.D. Ill. July 26, 

2011) (same). 

 17. Plaintiffs’ counsel has conferred with counsel for the defendants, who have stated 

that they do not oppose the relief sought in this motion. 

 WHEREFORE, Plaintiffs request pursuant to Fed. R. Civ. P. 23(b)(3) that the Court enter 

an order: (1) conditionally certifying the settlement classes defined supra; (2) preliminarily 

approving a class action settlement as set forth in the Class Settlement Agreement attached 

hereto as Appendix 1; (3) directing notice to the conditionally certified classes; and (4) setting 

dates for exclusions, objections, and a Fairness Hearing. 

Respectfully submitted this 27th day of September, 2017. 

 

s/ Francis R. Greene

 Daniel A. Edelman, Esq. 

Cathleen M. Combs, Esq. 

James O. Latturner, Esq. 

Francis R. Greene, Esq. 

EDELMAN, COMBS, LATTURNER 

& GOODWIN LLC 

20 South Clark Street, Suite 1500 

Chicago, IL 60603 

Telephone: (312) 917-4500 

Facsimile: (312) 419-0379 

E-Mail: dedelman@edcombs.com 

E-Mail: ccombs@edcombs.com 

E-Mail: jlatturner@edcombs.com 

E-Mail: fgreene@edcombs.com 

Attorneys for Plaintiffs

Case: 1:12-cv-01473 Document #: 221 Filed: 09/27/17 Page 9 of 9 PageID #:2030