IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GERARDO ARANDA, GRANT )

BIRCHMEIER, STEPHEN PARKES, and )

REGINA STONE, on behalf of themselves )

and classes of others similarly situated, )

)

Plaintiffs, )

)

vs. ) Case No. 12 C 4069

)

CARIBBEAN CRUISE LINE, INC., )

ECONOMIC STRATEGY GROUP, )

ECONOMIC STRATEGY GROUP, INC., )

ECONOMIC STRATEGY, LLC, THE )

BERKLEY GROUP, INC., and VACATION )

OWNERSHIP MARKETING TOURS, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In 2012, the plaintiffs in this case sued—on behalf of themselves and others 

similarly situated—Economic Strategy Group, Caribbean Cruise Line, Inc., The Berkeley 

Group, Inc., and Vacation Ownership Marketing Tours, Inc., alleging that they violated 

the Telephone Consumer Protection Act by placing millions of automated phone calls to 

individuals without their consent. After the Court certified a plaintiff class, the parties 

settled, and the Court approved the settlement agreement in March 2017. Under the 

agreement, class members could recover $500 per violating call claimed. The 

agreement provided that a claim administrator would make initial award decisions on 

class members' claims, and a special master would review the administrator's awards. 

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Daisy Exum filed a claim for 700 calls, which the claim administrator reduced to 

one call. She contested this award and requested a hearing on her claim before the 

special master, retired U.S. District Judge Wayne Andersen. After the hearing, which 

included testimony by Exum, the special master awarded her 250 calls. The defendants 

have appealed, arguing that Exum failed to prove each of the 250 calls awarded, as 

required for recovery under the settlement agreement.

Background

The Court has detailed the facts and procedural history of this case in previous 

written decisions and assumes familiarity with these. See, e.g., Order on Objections to 

the Special Master's May 2019 Award of Calls, dkt. no. 804, 2019 WL 3457085 (July 31, 

2019); Settlement Approval Decision, dkt. no. 596, 2017 WL 818854 (Mar. 2, 2017);

Order on Defendants' Second Motion for Summary Judgment and Motion for Class 

Decertification, dkt. no. 456, 202 F. Supp. 3d 850 (N.D. Ill. 2016); Order on Defendants' 

Motion for Summary Judgment and Plaintiffs' Motion for Partial Summary Judgment, 

dkt. no. 421, 179 F. Supp. 3d 817 (N.D. Ill. 2016). The Court will therefore recount only 

those facts relevant to its analysis of the defendants' objections to the award of calls to 

Daisy Exum. 

The plaintiff class sued the defendants under the Telephone Consumer 

Protection Act, 47 U.S.C. § 227, alleging that they had made millions of automated calls 

to private individuals without their consent. According to the plaintiffs, these calls were 

facilitated by Economic Strategy Group for the purpose of marketing the vacation 

services of Caribbean Cruise Line, Inc., The Berkley Group, Inc., and Vacation 

Ownership Marketing Tours, Inc.

In March 2017, after the Court had certified a class and denied the defendants' 

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motions for summary judgment and class decertification, the parties resolved the case 

through a settlement agreement, which the Court approved. Settlement Approval 

Decision, 2017 WL 818854, at *6. The agreement defined the settlement class as 

individuals who had received violating calls from the defendants between August 2011 

and August 2012. It provided that settlement class members could recover $500 for 

each violating call they claimed. In the settlement agreement, the parties designated a 

claims administrator, Kurtzman Carson Consultants (KCC), to review class members'

claims and make award determinations. They also designated a special master, retired 

U. S. District Judge Wayne Anderson, to review KCC's work and issue awards of calls.

The settlement agreement set forth two options, with different burdens of proof,

for class members to file claims. Option 1 governed claims for three or fewer calls; 

these claims benefitted from a presumption of three calls that had to be rebutted by the 

defendants. Option 2 governed claims for more than three calls; if an Option 2 claim 

was challenged, the claimant would "have the ultimate burden . . . to demonstrate the 

number of calls, greater than one . . . , that [she] received." Settlement Agr., dkt. no. 

502, ¶ 5.4. To satisfy this burden, the challenged claimant would have to "either submit 

supplemental documentation to prove each call claimed" or request a telephonic 

hearing with the special master to "testify as to the basis for each separate call 

claimed." Id. ¶ 5.5.

In May 2019, the special master issued a decision regarding awards to tens of 

thousands of claimants. Both the plaintiffs and defendants objected to the special 

master's award decision on various grounds. Additionally, the plaintiffs asked the Court 

to permit the special master to hold hearings with roughly one hundred Option 2 

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claimants whose claims were challenged and whose subsequent requests for 

telephonic hearings had been overlooked. In July 2019, the Court issued an order 

overruling most of the objections to the special master's award of calls and allowing the 

special master to hold telephonic hearings with the Option 2 claimants who had 

requested them. 

Daisy Exum submitted a claim for 700 calls, and KCC initially reduced her claim 

to one call. Exum requested a telephonic hearing with the special master to prove her 

claims, and she was among the Option 2 claimants whose hearing requests had been 

overlooked during claim administration. After the Court's July 2019 order allowing

telephonic hearings for those claimants, the special master held a hearing on Exum's 

claims on September 16, 2019. 

At the hearing, Exum was represented by class counsel, and the defendants 

participated through their counsel. Exum testified that she did not have any written 

notes or phone records documenting the calls she claimed. She explained that at some 

point, she had phone bills showing numerous automated calls from the defendants, but 

she had mailed those bills to KCC. Exum testified that she vividly remembered 

receiving roughly two calls a day, most days, between August 2011 and August 2012.

The defendants argued to the special master that KCC had not received any call 

records or phone bills from Exum. Additionally, the defendants contended that KCC's 

investigation of Exum's claim had revealed that during the settlement class period, the 

phone number at which Exum claimed to have received violating calls was registered to 

a different person named Edith Gay. Exum testified that the phone number had been 

hers for at least twenty years, including for the settlement class period from August 

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2011 to August 2012. She acknowledged that she would occasionally receive calls 

asking for Gay, suggesting that it might have been Gay's phone number before it 

became hers. 

In December 2019, the special master issued a decision in which he awarded 

250 calls to Exum. The defendants have objected to the award.

Discussion

The Court reviews de novo objections to a special master's findings of fact, 

unless the parties have stipulated to clear-error review. Fed. R. Civ. P. 53(f)(3). The 

parties did not so stipulate, so the Court will review de novo the defendants' objections 

to the award of 250 calls to Exum. See Judgment Granting Final Approval of 

Settlement, dkt. no. 626, ¶ 15. 

The defendants argue that Exum failed to satisfy her burden to prove each of the 

250 calls she was awarded. Exum is an Option 2 claimant, and she therefore had "the 

ultimate burden . . . to demonstrate the number of calls, greater than one . . . , that [she]

received." Settlement Agr., dkt. no. 502, ¶ 5.4. This required Exum to "either submit 

supplemental documentation to prove each call claimed" or "testify as to the basis for 

each separate call claimed." Id. ¶ 5.5. 

Courts do not require settlement claimants to prove their claims with the same 

quality or quantity of evidence that would be required to establish damages at trial. See 

Manual for Complex Lit. § 21.66 (4th ed. 2019). Specifically, the evidentiary standards 

are more relaxed for settlement claimants, and "secondary forms of proof and estimates 

are generally acceptable." See id. Courts consider the size of a claim when 

determining the level of proof required to verify it. See Mullins v. Direct Digital, LLC, 

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795 F.3d 654, 667 (7th Cir. 2015). "Claims for modest amounts are frequently accepted 

solely on the basis of the verified claim forms." Manual for Complex Lit. § 21.66. Large 

claims may warrant more proof to facilitate an "empirical assessment" of the likelihood 

of fraud or inaccuracy of the claim. See Mullins, 795 F.3d at 667; Manual for Complex 

Lit. § 21.66.

Exum has admitted that she does not currently have any documentation to 

support her claim of 700 calls, and she therefore supports her claim solely with her 

testimony. The settlement agreement allows claimants to prove their calls through their 

testimony alone. See Settlement Agr., dkt. no. 502, ¶ 5.5. The defendants argue, 

however, that Exum's testimony is insufficient to support her claim because she was not 

credible. Exum responds that because the special master allowed her 250 calls, he 

made an implicit determination that her testimony was credible. Exum adds that the 

Court should not reject the special master's implicit credibility determination without 

allowing her to testify in a telephonic hearing before the Court. 

Preliminarily, the Court notes that Exum is correct that the special master 

implicitly credited her testimony. Although his award lacks any express finding 

regarding Exum's credibility, the award of 250 calls indicates that he found Exum at 

least partially credible. Cf. United States v. Fox, 548 F.3d 523, 529 (7th Cir. 2008) 

(noting that credibility determinations can be implied). 

The defendants argue that the Court can reject the special master's credibility 

determination by reviewing the transcripts of Exum's hearing. The Court declines to do 

so. The special master made his credibility determination after direct consideration of

Exum's testimony, which he heard live, albeit over the telephone. Even though the 

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hearing was by telephone, a transcript cannot capture the full flavor of the testimony, 

including factors that factfinders typically consider in assessing credibility. The Court is 

not comfortable making a determination regarding Exum's credibility without first hearing 

her testimony. Cf. Jackson v. United States, 859 F.3d 495, 499 (7th Cir. 2017) (holding 

that although a district court judge reviews de novo a magistrate judge's findings of fact, 

it cannot reject the magistrate judge's credibility determinations without holding its own

hearing). If a recording of Exum's testimony before the special master is available, the 

Court would at least consider relying on that; otherwise, a separate telephone hearing 

will have to be arranged.

Conclusion

For the foregoing reasons, the Court takes under advisement the defendants' 

objections to the special master's award of calls to Exum [dkt. no. 812]. The case is set 

for a status hearing on March 10, 2020 at 9:30 a.m. to set a schedule for further 

proceedings. 

________________________________

MATTHEW F. KENNELLY

 United States District Judge

Date: March 5, 2020

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