1 

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 

MISTY MURRAY AND SHAUN MURRAY, ) 

individually and on behalf of a class of ) 

similarly situated individuals, ) 

) 

Plaintiffs, ) No. 12-cv-04789 

) 

v. ) 

) Hon. Sara L. Ellis 

BILL ME LATER, INC., a Delaware corporation, ) 

 ) 

Defendant. ) 

PLAINTIFFS’ MOTION FOR APPROVAL OF 

ATTORNEYS’ FEES, EXPENSES & INCENTIVE AWARDS 
i 

TABLE OF CONTENTS 

TABLE OF CONTENTS .............................................................................................................. i 

TABLE OF AUTHORITIES ....................................................................................................... ii 

I. INTRODUCTION..............................................................................................................1 

II. THE FACTS AND THE TCPA ........................................................................................2

A. The TCPA. ......................................................................................................................3

B. Bill Me Later’s Phone Calls to Consumers. .................................................................3

III. THE LITIGATION & THE WORK PERFORMED .....................................................4 

IV. THE SETTLEMENT ........................................................................................................6 

V. THE COURT SHOULD APPROVE THE AGREED-UPON ATTORNEYS’ 

FEES AND EXPENSES BECAUSE THEY ARE REASONABLE. ............................7 

A. The Requested Fees Represent 33.33% of the Common Benefit 

Provided to the Class—a Percentage Consistent with the Range 

that has Been Found Reasonable by the Courts. .........................................................11

B. The Requested Fees are Equally Appropriate Under the Lodestar Method. ...............12

VI. THE COURT SHOULD APPROVE THE AGREED-UPON INCENTIVE 

AWARDS. .........................................................................................................................16 

VII. CONCLUSION ................................................................................................................18 

 
ii 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Aspacher v. Rosenthal Collins Grp., 

No. 00 C 7520, 2001 U.S. Dist. LEXIS 19464 (N.D. Ill. Nov. 6, 2001) .................................14 

Boeing Co. v. Van Gemert, 

444 U.S. 472 (1980) ...................................................................................................................7 

In re Continental Ill. Sec. Litig., 

962 F.2d 566 (7th Cir. 1992) .............................................................................................12, 14 

Cook v. Niedert, 

142 F.3d 1004 (7th Cir. 1998) .....................................................................................12, 16, 17 

Denius v. Dunlap, 

330 F.3d 919 (7th Cir. 2003) ...................................................................................................12 

Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 

137 F.R.D. 240 (S.D. Ohio 1991) ............................................................................................17 

Florin v. Nationsbank of Ga., N.A. (“Florin I”), 

34 F.3d 560 (7th Cir. 1994) .............................................................................................8, 9, 12 

Gaskill v. Gordon, 

160 F.3d 361 (7th Cir. 1998) ...................................................................................................11 

Gastineau v. Wright, 

592 F.3d 747 (7th Cir. 2010) ...................................................................................................12 

Halverson v. Convenient Food Mart, Inc., 

458 F.2d 927 (7th Cir. 1972) .....................................................................................................8 

Harman v. Lyphomed, Inc., 

945 F.2d 969 (7th Cir. 1991) ...................................................................................................12 

Hensley v. Eckerhart, 

461 U.S. 424 (1983) .............................................................................................................7, 12 

Jeffboat, LLC v. Director, Office of Workers’ Comp. Programs, 

553 F.3d 487 (7th Cir. 2009) ...................................................................................................12 

Kirchoff v. Flynn, 

786 F.2d 320 (7th Cir. 1986) .....................................................................................................9 
iii 

In re Linerboard Antitrust Litig., 

No. 98-5055, 2004 WL 1221350 (E.D. Pa. Jun. 2, 2004)........................................................13 

Lucken Family Ltd. P’ship, LLLP, v. Ultra Res., Inc., 

09-cv-01543-REB-KMT, 2010 U.S. Dist. LEXIS 144366 (D. Colo. Dec. 22, 

2010) ........................................................................................................................................17 

McKinnie v. JP Morgan Chase Bank, N.A., 

678 F. Supp. 2d 806 (E.D. Wis. 2009) .....................................................................................11 

Meyenburg v. Exxon Mobil Corp., 

No. 05-cv-15 DGW, 2006 WL 2191422 (S.D. Ill. July 31, 2006) ..........................................11 

Miltland Raleigh-Durham v. Myers, 

840 F. Supp. 235 (S.D.N.Y. 1993)...........................................................................................15 

Mims v. Arrow Fin. Servs. LLC, 

132 S. Ct. 740 (2012) .................................................................................................................3 

Missouri v. Jenkins, 

491 U.S. 274 (1989) ...................................................................................................................9 

Montgomery v. Aetna Plywood, Inc., 

231 F.3d 399 (7th Cir. 2000) .....................................................................................................8 

People Who Care v. Rockford Bd. of Educ., 

90 F.3d 1307 (7th Cir. 1996) ...................................................................................................14 

Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 

818 F.2d 278 (2d Cir. 1987).....................................................................................................15 

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

97 C 7694, 2001 WL 1568856 (N.D. Ill. Dec. 10, 2001) ..........................................................9 

Satterfield v. Simon & Schuster, Inc., 

569 F.3d 946 (9th Cir. 2009) .....................................................................................................3 

Schulte v. Fifth Third Bank, 

805 F.Supp. 2d 560 (N.D. Ill. 2011) ........................................................................................16 

Skelton v. Gen. Motors Corp., 

860 F.2d 250 (7th Cir. 1988) .........................................................................................8, 10, 12

Spicer v. Chicago Bd. Options Exch., Inc., 

844 F. Supp. 1226 (N.D. Ill. 1993) ..........................................................................................15

Sutton v. Bernard, 

504 F.3d 688 (7th Cir. 2007) .................................................................................................8, 9 
iv 

In re Synthroid Mktg. Litig., 

264 F.3d 712 (7th Cir. 2001) ...........................................................................................8, 9, 16 

Taubenfeld v. AON Corp., 

415 F.3d 597 (7th Cir. 2005) .....................................................................................................8 

Teamsters Local Union No. 604 v. Inter-Rail Transport, Inc., 

02-cv-1109 DRH, 2004 WL 768658 (S.D. Ill. Mar. 19, 2004) ...............................................11 

In re Trans Union Corp. Privacy Litig., 

MDL 1350, No. 00 C 4279, 2009 WL 4799954 (N.D. Ill. Dec. 9, 2009) order 

modified and remanded, 629 F.3d 741 (7th Cir. 2011) .........................................................8, 9 

Will v. Gen. Dynamics Corp., 

CIV. 06-698-GPM, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) ...........................................11 

Williams v. Gen. Elec. Capital Auto Lease, 

94 C 7410, 1995 WL 765266 (N.D. Ill. 1995) ...........................................................................9 

Statutes 

47 U.S.C. §§ 227(b)(1)(A)(iii), 227(b)(1)(B) ..................................................................................3 

47 U.S.C. § 227(b)(3)(A-B) .............................................................................................................3 

Federal Rule of Civil Procedure ..................................................................................................1, 7 

Other Authorities 

Richard Posner, Economic Analysis of Law § 21.9, at 534-35 (3d ed. 1986) ..................................9 

William B. Rubenstein, Newberg on Class Actions § 14:6 (4th ed.) .............................................10 
1 

I. INTRODUCTION 

Pursuant to Federal Rule of Civil Procedure 23(e) and (h), and this Court’s Order of July 

24, 2014 (Dkt. 71), the Class Representatives and Class Counsel request that the Court approve 

Class Counsel’s Motion for Approval of Attorneys’ Fees, Expenses, and Incentive Awards in 

connection with their Class Action Settlement Agreement1

 with Bill Me Later, Inc. (“Bill Me 

Later” or “Defendant”), and award Class Counsel attorneys’ fees in the amount of one-third of the 

Settlement Fund, plus expenses, as well as Incentive Awards to the Class Representatives. 

Defendant does not object to the relief sought in this Motion. 

The Settlement is an exceptional result for Settlement Class Members and establishes a 

Settlement Fund of $9,900,000.00, which will provide each Settlement Class Member cash relief 

up to the full statutory amount of $500.00. Notice of the Settlement through Publication Notice 

and Direct Notice was completed a month ago, on September 10, 2014. To date, no Settlement 

Class Member has objected to the proposed Settlement, to Class Counsel’s request for fees and 

expenses, or to the incentive awards to the Class Representatives, even though over 27,000 

Settlement Class Members have already filed claims in this case. Likewise, only 15 Settlement 

Class Members have opted out of the Settlement as of today.2

 

Class Counsel’s fee request constitutes 33.33% of the total common financial benefit to the 

Settlement Class, exclusive of any consideration of the non-monetary relief already achieved and 

 

1

 Unless otherwise indicated, capitalized terms have the same meaning as those terms are used in 

the Settlement Agreement. 

2

 The deadline for the filing of objections and for opting out of the Settlement is October 23, 2014. 
2 

realized by the Settlement Class and the public.3

 As set forth below, Class Counsel’s requested 

fee is consistent with the Seventh Circuit’s benchmark of 33-40% for awards from common funds 

in class actions, and is also reasonable when “cross-checked” against the time and costs Class 

Counsel committed to resolving this litigation for the benefit of the Settlement Class Members. 

Both Class Counsel and the Class Representatives devoted tremendous time and effort to 

the prosecution of the Settlement Class Members’ claims, and their efforts paid off. The requested 

attorneys’ fees and incentive awards are consistent with the fees approved in this Circuit and are 

amply justified in light of the investment, risks, and excellent results obtained for the Settlement 

Class. As a result, the Class Representatives and Class Counsel respectfully request that the Court 

approve the agreed-upon attorneys’ fees of $3,300,000.00, expenses of the litigation of $78,728.06, 

and the agreed-upon incentive awards of $30,000 each for the Class Representatives. 

II. THE FACTS AND THE TCPA 

Although this motion focuses on why the Court should approve the attorneys’ fees, a brief 

summary of the underlying facts and law involved in this litigation is helpful to provide context to 

the reasonableness of the fees Class Counsel are seeking. 

 

3

 In addition to the financial benefit to the Settlement Class, and although not a formal term of the 

Settlement, this suit has also resulted in significant non-monetary relief to the Settlement Class 

and the public. Shortly after the filing of the Complaint in this matter, Bill Me Later revised its 

internal policies relating to invalidation of phone numbers. Whereas Bill Me Later previously 

followed what is known as a “three strikes” policy – i.e., it would often continue placing automated 

calls to a phone number until the third time the called party indicated it was calling the wrong 

number – it has changed that policy to a “one-strike” policy – meaning that it discontinues placing 

automated calls, or calls featuring a prerecorded or artificial voice, to a telephone number the first 

time that a called party indicates that Bill Me Later has called the wrong number. Bill Me Later’s 

internal documents produced in discovery demonstrate that the reasons for the change, which has 

already resulted and will continue to result in fewer unauthorized automated calls to non-Bill Me 

Later customers, were the filing of this lawsuit and the prevention of such suits in the future. 
3 

A. The TCPA 

Congress passed the TCPA in response to “voluminous consumer complaints,” and to 

prohibit “intrusive nuisance calls” it determined were invasive of privacy. Mims v. Arrow Fin. 

Servs. LLC, 132 S. Ct. 740, 744 (2012); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 

946, 954 (9th Cir. 2009) (finding that in enacting the TCPA, Congress sought to “protect the 

privacy interests of telephone subscribers.”) The TCPA exists as a means to combat the growing 

threat to privacy being caused by automated telemarketing practices, and makes it unlawful to 

make calls without the prior express consent of the called party using an “automatic telephone 

dialing system” or an “artificial or prerecorded voice.” See 47 U.S.C. §§ 227(b)(1)(A)(iii), 

227(b)(1)(B); Mims, 132 S. Ct. at 744. The TCPA sets statutory damages in the amount of $500 

per violation, and provides for injunctive relief prohibiting the further transmission of such 

messages. See 47 U.S.C. § 227(b)(3)(A-B). 

B. Bill Me Later’s Phone Calls to Consumers 

Bill Me Later is a purveyor of consumer credit for merchandise purchased online and over 

the phone. Bill Me Later allows consumers who want to make purchases online to make such 

purchases without a credit or debit card, instead financing their purchases over several months. As 

part of its application practice, Bill Me Later obtains phone numbers from its customers, the 

predominant purpose of which is to call those customers should their account go into arrears. As 

alleged in this suit, Bill Me Later repeatedly called consumers who were not its customers and 

continued calling many of those non-customers long after they informed Bill Me Later of that fact. 

The Class Representatives, Misty Murray any Shaun Murray, claimed that, beginning on 

March 17, 2012, Bill Me Later started calling them, attempting to collect a debt from an individual 

named Faiza Tahir, a Bill Me Later customer. The Class Representatives tried repeatedly to get 
4 

the calls to stop, but despite their requests, the calls continued unimpeded. Between March 17 and 

May 16, 2012, the Class Representatives allege that Bill Me Later called them 126 times, despite 

the fact that neither Misty Murray nor Shaun Murray have ever been its customers. 

III. THE LITIGATION & THE WORK PERFORMED 

On June 15, 2012, the Class Representatives filed a Class Action Complaint against Bill 

Me Later in this Court. Contemporaneously with the filing of the Complaint, Plaintiffs filed their 

Motion for Class Certification. The Class Representatives alleged that the autodialing technology 

used to call them constituted an “automatic telephone dialing system” and that the calls were made 

using an artificial or prerecorded voice, and that they never provided Bill Me Later with their 

express consent to receive such calls. 

The Parties then engaged in extensive discovery, including numerous depositions, 

document requests, interrogatories, and the production of thousands of documents by Bill Me Later 

and its agents, including third-party CSG International, Inc. (“CSG”). Plaintiffs took the 

depositions of three separate Bill Me Later employees in July 2013, and Bill Me Later took the 

depositions of both Plaintiffs later in the summer of 2013. In addition, Plaintiffs subpoenaed and 

reviewed phone records of several years’ of automated phone calls, covering millions of calls, 

from CSG, Bill Me Later’s agent for the placing of automated debt collection calls. Plaintiffs also 

noticed the 30(b)(6) deposition of CSG but agreed to withdraw the Subpoena pending the outcome 

of the mediation that resulted in the instant Agreement. Class discovery was initially scheduled to 

be completed in June 2013, but, pursuant to agreement of the Parties, the Court permitted discovery 

to continue through October 10, 2013. 

During discovery, Plaintiffs learned that Bill Me Later “invalidated” certain numbers that 

it believed were not accurate or that should not be sent additional automated collections calls. Bill 
5 

Me Later produced a list of all such invalidated numbers, which included approximately one 

million numbers from June 2008 through 2012. This list identified the telephone number that was 

invalidated, the date of invalidation, and whether the number was subsequently re-validated. In 

response to a Subpoena in this case, Bill Me Later’s agent CSG produced call detail records for all 

calls made by CSG on Bill Me Later’s behalf between June 15, 2008 and December 31, 2012. 

These call detail records identified millions of automated calls, including the telephone number 

called, the date and time of the call, the call result, and a call result “code” assigned. Some of 

those codes are explained in a “call flow and scripting” guideline produced in this case and 

explained by CSG during the discovery process. 

During CSG’s automated calls, the recipient of the call can indicate that the Bill Me Later 

customer does not live at that address – i.e., that the call is being made to a wrong number. If the 

call recipient indicates a wrong number and then hangs up the call, CSG’s system will record a 

particular code to indicate that the wrong number was called. An analysis of the call detail records 

produced in this case for all Bill Me Later calls made from June 2008 through 2012 revealed the 

unique phone numbers where the “wrong number” code was entered through CSG’s system. 

Plaintiffs planned to move for class certification of a narrow class consisting of only those 

consumers whose phone numbers appeared on both Bill Me Later’s invalidated number list and 

also on CSG’s records as indicating that a “wrong number” code had been entered by the call 

recipient. Bill Me Later contended that Plaintiff’s proposed class would not be certified for several 

reasons, including its arguments that it invalidated phone numbers for a number of reasons, not 

limited to the phone numbers being incorrect, and that call recipients falsely indicated wrong 

numbers on CSG’s automated system. 
6 

As the deadline to complete class discovery approached, and with Plaintiffs’ class 

certification motion forthcoming, the Parties began to explore settlement. At the close of class 

certification discovery, with discovery disputes still lingering both among the Parties and thirdparties, the Parties agreed to mediate to determine if a settlement could be reached in advance of 

the uncertainties and high risks of the class certification decision. On January 28, 2014, counsel 

for Plaintiffs met with both in-house and outside counsel for Defendant and its corporate parent 

eBay, Inc. in two full-day mediation sessions at JAMS in San Francisco with the Hon. Edward A. 

Infante (ret.), a former Chief Magistrate Judge of the United States District Court for the Northern 

District of California with expertise in TCPA class settlements. The Parties were unable to reach 

an agreement at the mediation. However, upon recommendation of Judge Infante, the Parties 

agreed to meet again for a second full-day mediation session, and did so in San Francisco on March 

13, 2014. At the second mediation session, the Parties reached an agreement in principle to resolve 

the case. In the interim between these formal sessions, and in the months that followed, counsel 

for Plaintiffs and for Defendant, together with assistance and guidance from Judge Infante, 

successfully resolved all elements of the settlement. Eventually, these extended discussions 

culminated in the Settlement Agreement that this Court approved on July 24, 2014. 

IV. THE SETTLEMENT 

The fruit of Class Counsel’s labor is a Settlement that is of tremendous benefit to the 

Settlement Class Members, along with voluntary changes to Bill Me Later’s practices that 

significantly reduce further intrusions on the privacy of consumers and the public generally. The 

Settlement established a $9,900,000.00 cash Settlement Fund. (Settlement Agreement, Dkt. 69-1, 

§ 1.41.) Each Settlement Class Member who submits a valid Claim Form will be entitled to an 
7 

equal share of the Settlement Fund, up to the full $500 statutory amount available under the TCPA, 

after payments are first made for notice and administration costs, Court-approved attorneys’ fees 

and expenses, and Court-approved incentive payments to Plaintiffs. (Id. § 3.2.) 

The total payment to each Settlement Class Member will depend on the number of valid 

Claim Forms submitted. Direct Notice was provided by First-Class Mail to approximately 285,000 

consumers, and notice was provided by email to an additional approximately 27,000 consumers. 

(See Declaration of Evan M. Meyers (“Meyers Decl.”), filed herewith, ¶ 10). As of the date of this 

filing, approximately 27,555 Claim Forms have been received by the Settlement Administrator 

(Id.), which makes it highly likely that the entire Settlement Fund, net of attorneys’ fees, 

administrative expenses and incentive awards, will be distributed to the Settlement Class Members 

directly. 

V. THE COURT SHOULD APPROVE THE AGREED-UPON ATTORNEYS’ FEES 

AND EXPENSES BECAUSE THEY ARE REASONABLE 

Pursuant to the Settlement, Class Counsel is seeking attorneys’ fees in the amount of 

$3,300,000.00. (Dkt. 69-1, § 7.1.). This amounts to 33.33% of the total cash benefit of the 

Settlement Fund. Federal Rule of Civil Procedure 23(h) permits the award of reasonable fees in a 

class action if authorized by law or the agreement of the parties. Fed. R. Civ. P. 23(h). Courts 

strongly encourage negotiated fee awards in class action settlements. See Hensley v. Eckerhart, 

461 U.S. 424, 437 (1983) (“A request for attorneys’ fees should not result in a second major 

litigation. Ideally, of course, litigants will settle the amount of the fee.”) Here, the Court should 

approve the agreed-upon fee of $3,300,000.00, which is supported both by the facts of this case 

and the relevant factors identified by the Seventh Circuit in settlements of this type. 

It is well-settled that attorneys who, by their efforts, create a common fund for the benefit 

of a class are entitled to reasonable compensation for their services. Boeing Co. v. Van Gemert, 
8 

444 U.S. 472, 478 (1980) (“a litigant or a lawyer who recovers a common fund for the benefit of 

persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a

whole”); Florin v. Nationsbank of Ga., N.A. (“Florin I”), 34 F.3d 560, 563 (7th Cir. 1994) (“When 

a case results in the creation of a common fund for the benefit of the plaintiff class, the common 

fund doctrine allows plaintiffs’ attorneys to petition the court to recover its fees out of the fund.”) 

This rule “is based on the equitable notion that those who have benefited from litigation should 

share in its costs.” Sutton, 504 F.3d at 691-92, (citing Skelton v. Gen. Motors Corp., 860 F.2d 250, 

252 (7th Cir. 1988). Courts have recognized that, in addition to providing just compensation, 

substantial counsel fees encourage forceful prosecution of cases. See Halverson v. Convenient 

Food Mart, Inc., 458 F.2d 927, 931 n.5 (7th Cir. 1972). 

In deciding an appropriate fee in common fund cases, the Seventh Circuit has “consistently 

directed district courts to ‘do their best to award counsel the market price for legal services, in light 

of the risk of nonpayment and the normal rate of compensation in the market at the time.’” Sutton 

v. Bernard, 504 F.3d 688, 692 (7th Cir. 2007) (quoting In re Synthroid Mktg. Litig., 264 F.3d 712, 

718 (7th Cir. 2001) (“Synthroid I”)); see also Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 

408 (7th Cir. 2000) (finding that in common fund cases, “the measure of what is reasonable [as an 

attorney fee] is what an attorney would receive from a paying client in a similar case”); In re Trans 

Union Corp. Privacy Litig., MDL 1350, No. 00 C 4279, 2009 WL 4799954, at *9 (N.D. Ill. Dec. 

9, 2009) order modified and remanded, 629 F.3d 741 (7th Cir. 2011) (“The analysis should be 

determined from what an arms-length negotiation between the class and the lawyers at the 

beginning of the case would have likely produced.”); Taubenfeld v. AON Corp., 415 F.3d 597, 599 

(7th Cir. 2005) (“Although is it impossible to know ex post exactly what terms would have resulted 

from arm’s-length bargaining ex ante, courts must do their best to recreate the market by 
9 

considering factors such as actual fee contracts that were privately negotiated for similar litigation 

. . . .”) (citing Synthroid I, 264 F.3d at 719)). 

Accordingly, although awarding fees based on a percentage of the recovery or Class 

Counsel’s lodestar remains within the discretion of the court, In re Trans Union Corp., 2009 WL 

4799954, at *9 (citing Florin I, 34 F.3d at 566), “[t]he approach favored in the Seventh Circuit is 

to compute attorney’s fees as a percentage of the benefit conferred upon the class” especially where 

the percentage accurately reflects the market. Williams v. Gen. Elec. Capital Auto Lease, 94 C 

7410, 1995 WL 765266, *9 (N.D. Ill. 1995); see also Sutton, 504 F.3d at 693 (directing district 

court on remand to consult the market for legal services so as to arrive at a reasonable percentage) 

(citing Missouri v. Jenkins, 491 U.S. 274, 285 (1989) (stating that in determining attorneys’ fees, 

“we have consistently looked to the marketplace as our guide to what is ‘reasonable’”)). 

The contingent nature of the fees here supports an award based on the percentage of 

recovery approach. The fee agreements between Class Counsel and the Class Representatives are 

contingent in nature, and the Plaintiffs agreed ex ante that 33% of any settlement fund plus 

reimbursement of all costs and expenses would represent a fair award of attorneys’ fees from a 

fund recovered for the class. (Meyers Decl. ¶ 15.) It has been stated that in commercial, non-class 

litigation, attorneys regularly negotiate contingent fee arrangements, which result in a fee of 

between 33.3% to 40% of the recovery. Retsky Family Ltd. P’ship v. Price Waterhouse LLP, 97 

C 7694, 2001 WL 1568856, at *4 (N.D. Ill. Dec. 10, 2001) (citing Kirchoff v. Flynn, 786 F.2d 320, 

324 (7th Cir. 1986)); see also Richard Posner, Economic Analysis of Law § 21.9, at 534-35 (3d ed. 

1986) (explaining established practice to reward attorneys for taking the risk of non-payment by 
10 

paying them a premium over their normal hourly rates for winning4

 contingency cases). 

Additionally, Class Counsel assumed a substantial risk of non-payment given the 

complexity of the action and the Defendant’s position that it stood ready at all times to vigorously 

defend the lawsuit. (Meyers Decl. ¶¶ 8, 14.) In light of the significant likelihood that Class 

Counsel (and Settlement Class Members) could have ultimately recovered nothing, Class Counsel 

had every incentive to litigate this matter in the most efficient manner possible. 

The magnitude of the recovery for the Class Members is further suggestive of an award 

based on the percentage of recovery approach. Settlement Class Members who submit valid claims 

are entitled to cash payments of up to $500.00 each – full recovery under the TCPA – or their pro 

rata share of the $9,900,000.00 Settlement Fund in the event the approved claims, along with 

attorneys’ fees and settlement notice and administration costs, exhaust the total amount of the fund. 

As such, the entire $9,900,000.00 fund will be paid out by the Defendant as part of the settlement. 

Finally, the response of the Settlement Class Members supports the reasonableness of the 

request. As of today, approximately 27,555 Settlement Class Members have submitted claims, 

only 15 have opted out of the Settlement Class, and none have voiced any objection to the 

Settlement. (Meyers Decl. ¶ 10.) The percentage of recovery approach is appropriately applied 

to the instant settlement and the inquiry turns to what percentage would be appropriate given the 

market for legal fees. 

“Empirical studies show that, regardless whether the percentage method or the lodestar 

method is used, fee awards in class actions average around one-third of the recovery.” William B. 

 

4

 That this case settled is irrelevant, as courts have made clear that if, by their skill and determined 

efforts, plaintiffs’ counsel ultimately secure a settlement, that fact does not diminish the risk they 

assumed at the case’s inception. See Skelton, 860 F.2d at 258 (7th Cir. 1988) (“The point at which 

plaintiffs settle with defendants . . . is simply not relevant to determining the risks incurred by their 

counsel in agreeing to represent them.”) 
11 

Rubenstein, Newberg on Class Actions § 14:6 (4th ed.). Accordingly, Class Counsel request that 

the court adopt the percentage of the fund approach, and award one-third of the Settlement Fund as 

attorneys’ fees. 

A. The Requested Fees Represent 33.33% of the Common Benefit Provided to the Class—

a Percentage Consistent with the Range that has Been Found Reasonable by the 

Courts. 

The fee request in this case equals 33.33% of the cash common fund created under the 

Settlement, a figure widely recognized as reasonable. See Meyenburg v. Exxon Mobil Corp., No. 

05-cv-15 DGW, 2006 WL 2191422, at *2 (S.D. Ill. July 31, 2006) (“33 1/3% to 40% (plus the cost 

of litigation) is the standard contingent fee percentages in this legal marketplace for comparable 

commercial litigation.”) Using the market percentage method in the courts of the Seventh Circuit 

results in awards of attorney’s fees “equal to approximately one-third or more of the recovery.” 

Teamsters Local Union No. 604 v. Inter-Rail Transport, Inc., 02-cv-1109 DRH, 2004 WL 768658, 

at *1 (S.D. Ill. Mar. 19, 2004) (“In this Circuit, a fee award of thirty-three and one-third (33 1/3%) 

in a class action in [sic] not uncommon”); Gaskill v. Gordon, 160 F.3d 361, 362-363 (7th Cir. 

1998) (noting that typical contingency fees are between 33% and 40% and that “[s]ome courts 

have suggested 25% as a benchmark figure for a contingent-fee award in a class action”); 

McKinnie v. JP Morgan Chase Bank, N.A., 678 F. Supp. 2d 806, 812 (E.D. Wis. 2009) (approving 

a fee request of 30% of the settlement amount as “common among contingency fee arrangements 

and is not facially unreasonable.”) Where the market for legal services in a class action is only for 

contingency fee agreements, and there is a substantial risk of nonpayment for the attorneys, “the 

normal rate of compensation in the market” is “33.33% of the common fund recovered.” Will v. 

Gen. Dynamics Corp., CIV. 06-698-GPM, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010). 

The going rate in the market for class action legal fees clearly suggests that the fee 

requested here is appropriate. Given the constraints imposed by the Settlement Agreement, a fee 
12 

award of 33.33% is consistent with the market rate and facially reasonable. 

B. The Requested Fees are Equally Appropriate Under the Lodestar Method. 

The attorneys’ fees are equally reasonable should the Court apply the lodestar method. To 

determine the reasonableness of attorneys’ fees under the lodestar method, the first step is to 

“multiply[] a reasonable hourly rate by the number of hours reasonably expended.” Gastineau v. 

Wright, 592 F.3d 747, 748 (7th Cir. 2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-37 

(1983)). A reasonable hourly rate should be in line with the prevailing rate in the “community for 

similar services by lawyers of reasonably comparable skill, experience and reputation.” Jeffboat, 

LLC v. Director, Office of Workers’ Comp. Programs, 553 F.3d 487, 489 (7th Cir. 2009); see also 

Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003) (finding the attorney’s actual billing rate for 

comparable work is presumptively appropriate). 

Once the base lodestar is computed, the Court should adjust the lodestar using a risk 

multiplier. “[A] risk multiplier is not merely available in a common fund case but mandated, if 

the court finds that counsel ‘had no sure source of compensation for the services.’” Florin I, 34 

F.3d at 565 (quoting In re Continental Ill. Sec. Litig., 962 F.2d 566, 569 (7th Cir. 1992)) (“the need 

for such an adjustment is particularly acute in class action suits.”) The risk multiplier should take 

into account various factors in the litigation that affect the reasonableness of the requested fees. 

See, e.g., Cook v. Niedert, 142 F.3d 1004, 1015 (7th Cir. 1998); Skelton, 860 F.2d at 255. These 

factors include “the complexity of the legal issues involved, the degree of success obtained, and 

the public interest advanced by the litigation.” Gastineau, 592 F.3d at 748. 

When applying a multiplier to the base lodestar amount, courts should also consider the 

risk plaintiff’s counsel assumes in recovering nothing. Harman v. Lyphomed, Inc., 945 F.2d 969, 

975-76 (7th Cir. 1991) (remanding case for recalculation of attorneys’ fees because the trial court 
13 

failed to award a risk multiplier). Typical multipliers awarded in comparable class action litigation 

average around 4, but are often much higher. In re Linerboard Antitrust Litig., No. 98-5055, 2004 

WL 1221350, at *14 (E.D. Pa. Jun. 2, 2004) (recognizing that from 2001 to 2003, the average 

multiplier approved in common fund cases was 4.35). Here, Class Counsel’s base lodestar is 

reasonable, and the success obtained for the Settlement Class given the risk taken in prosecuting 

this case justifies the moderate multiplier requested here. 

As detailed in the attached declarations, the base lodestar of Class Counsel5

 is 

$1,549,518.00 and is summarized by the following chart: 

LAW FIRM ADJUSTED LODESTAR

McGuire Law, P.C. $872,955.50 

McMorrow Law, P.C. $676,562.50 

TOTAL: $1,549,518.00 

(See Meyers Decl., ¶ 18; see also Declaration of Michael J. McMorrow (“McMorrow Decl.”), filed 

herewith, ¶ 13.) 

The hourly rates utilized by the McGuire Law, P.C. and McMorrow Law, P.C. attorneys 

are comparable to rates charged by attorneys with similar experience, skill and reputation, for 

similar services in the Chicago legal market and comparable markets nationwide. (Meyers Decl., 

¶ 18; McMorrow Decl. ¶ 13.) The hourly rates listed in the chart above are the actual billing rates 

for the respective attorneys that they charge to hourly clients, and, therefore, yield a presumption 

of appropriateness. “The attorney’s actual billing rate for comparable work is ‘presumptively 

 

5

 Prior to submission, Class Counsel reviewed the hours expended by the attorneys and staff on 

this case and reduced any hours deemed duplicative or excessive. (Meyers Decl. ¶ 18.) 
14 

appropriate’ to use as the market rate.” Aspacher v. Rosenthal Collins Grp., No. 00 C 7520, 2001 

U.S. Dist. LEXIS 19464, at *5 (N.D. Ill. Nov. 6, 2001) (quoting People Who Care v. Rockford Bd. 

of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996)). See also In re Cont'l, 962 F.2d at 569 (“lawyers . . 

. are entitled to be compensated at market rates.”) Further, several state and federal courts have 

approved the then-current hourly rates of the attorneys at both firms as reasonable. (Meyers Decl., 

¶ 17; McMorrow Decl. ¶ 14.) 

It is readily apparent that a multiplier to the base lodestar is warranted in this case. Class 

Counsel’s willingness to undertake this litigation was risky, and despite such risk, an excellent 

result was achieved for the Settlement Class. As noted above, the rates employed by Class Counsel 

are their normal billing rates and they would not have brought this action absent the prospect of 

obtaining a percentage of the fund or a multiplier on their actual fees expended to account for the 

risk inherent in this type of class action. (Meyers Decl., ¶ 18; McMorrow Decl. ¶ 8.) Plaintiffs’ 

claims were untested, and Class Counsel agreed to commence this litigation knowing they would 

assuredly face significant opposition from a defendant with the financial resources of Bill Me Later 

and its corporate parents. (Meyers Decl. ¶ 14.) Indeed, throughout the litigation Bill Me Later 

mounted a vigorous opposition, consistently arguing that the Plaintiffs would not be able to certify 

a damages class and contesting whether Defendant would be liable under the TCPA to Plaintiff 

and to many Settlement Class Members. (Meyers Decl. ¶¶ 7-9.) Had this case not settled, 

Defendant undoubtedly would have contested class certification and the underlying factual 

allegations of the case as well. (Meyers Decl. ¶¶ 7-8.) Analysis of novel issues, significant 

investigation and discovery relating to complex computer and telecommunications technology and 

the review and analysis of millions of records, and careful and extended negotiation of the final 

Settlement Agreement were required to ensure a substantial benefit to Class, and that is in fact 
15 

what the Class received. (Meyers Decl., ¶ 9.) The Settlement Fund of $9,900,000.00 was only 

obtained through the diligence, skill and persistence of Class Counsel, and the lack of opposition 

to date indicates that the Settlement Class Members support that conclusion. Furthermore, Class 

Counsel anticipate expending additional time and effort through Final Approval and beyond in 

order to respond to inquiries from Class Members, objectors, and the Settlement Administrator, 

among others. Class Counsel estimate such additional time conservatively at $60,000. (Meyers 

Decl. ¶ 19; McMorrow Decl. ¶ 15.) Accordingly, Class Counsel’s lodestar of $1,609,518.00 

requires a multiplier of less than 2.1, and is reasonable given the results obtained and the relief 

made available for the Settlement Class. 

In addition to this amount, or such other amount awarded by this honorable Court, Class 

Counsel have expended $78,728.06 in reimbursable expenses related to filing, appearances, 

discovery, subpoenas, experts, mediation, travel, copying, case administration, and transcripts, 

with the potential of more expenses yet to come. (Meyers Decl. ¶ 20.) The Defendant has agreed 

not to oppose Class Counsel’s request for expenses up to $100,000.00. Courts regularly award 

reimbursement of the expenses counsel incurred in prosecuting the litigation. See Spicer v. 

Chicago Bd. Options Exch., Inc., 844 F. Supp. 1226, 1256 (N.D. Ill. 1993) (detailing and awarding 

expenses incurred during litigation); Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 

(S.D.N.Y. 1993) (“Attorneys may be compensated for reasonable out-of-pocket expenses incurred 

and customarily charged to their clients, as long as they ‘were incidental and necessary to the 

representation’ of those clients.”) (quoting Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 

818 F.2d 278, 283 (2d Cir. 1987)). Therefore, Class Counsel request the Court approve as 

reasonable the agreed-upon expenses in the amount of $78,728.06. 
16 

Under either the percentage of the fund method or the lodestar method Class Counsel’s fee 

request is reasonable in this case. More importantly, the requested fee award follows Seventh 

Circuit precedent in that it is accurately reflective of and consistent with what the market would 

award. Accordingly, this Court should award the request for attorneys’ fees of $3,300,000, and 

expenses of $78,728.06, for a total fee and expense award to Plaintiffs’ Counsel of $3,378,728.06. 

VI. THE COURT SHOULD APPROVE THE AGREED-UPON INCENTIVE AWARDS

Because a named plaintiff is essential to any class action, “[i]ncentive awards are justified 

when necessary to induce individuals to become named representatives.” Synthroid I, 264 F.3d at 

722-23. Merely agreeing to serve as plaintiffs opened the Class Representatives to scrutiny and 

attention which, in and of itself, has been found worthy of some type of remuneration. See Schulte 

v. Fifth Third Bank, 805 F.Supp. 2d 560, 600-01 (N.D. Ill. 2011). 

In deciding whether an incentive award is warranted, courts look to: (1) “the actions the 

plaintiff has taken to protect the interests of the class”; (2) “the degree to which the class has 

benefitted from those actions”; and (3) “the amount of time and effort the plaintiff expended in 

pursuing the litigation.” Cook, 142 F.3d at 1016. These factors are readily satisfied here because 

the Settlement Class benefitted significantly from the Plaintiffs’ involvement as the Class 

Representatives. Were it not for their efforts and contributions to the litigation by assisting Class 

Counsel with their investigation and filing of this suit, their participation in responding to the 

Defendant’s discovery and agreeing to be deposed, and their monitoring of the case throughout its 

litigation, the substantial benefit to the Class afforded under this Settlement Agreement would not 

have resulted. (Meyers Decl. ¶¶ 22-23.) 

Throughout this litigation there was no pre-agreement or discussion concerning an award 

or the potential for an award in exchange for the Class Representatives’ involvement. (See Meyers 

Decl. ¶ 24.) Nonetheless, both Class Representatives contributed their own time and effort in 
17 

pursuing their individual claims, as well as the action on behalf of the Settlement Class, exhibiting 

a willingness to participate and undertake the responsibilities and risks attendant with bringing a 

representative action. (Meyers Decl. ¶¶ 21-22.) Both Class Representatives responded to written 

discovery, produced personal documents, and sat for deposition, submitting to interrogation under 

oath regarding their business and personal lives and their motives for bringing this suit. (Meyers 

Decl. ¶ 22.) The Class Representatives also consulted with Class Counsel on numerous occasions 

in person, over the phone, and by email, and reviewed documents, including filings and settlement 

agreements. (Id.) 

The incentive awards requested here collectively account for only 0.6% of the total 

Settlement Fund, a very small amount. Reducing each Settlement Class Member’s claims by 0.6% 

to compensate the Class Representatives for the risks and efforts they undertook to benefit the 

Settlement Class as a whole is more than reasonable under the circumstances of this case and 

considering the results obtained. Finally, $30,000 incentive awards are reasonable in light of the 

efforts required and the recovery obtained for the Class. See Cook, 142 F.3d at 1016 (affirming 

incentive award of $25,000 of $13 million Settlement fund); Lucken Family Ltd. P’ship, LLLP, v. 

Ultra Res., Inc., 09-cv-01543-REB-KMT, 2010 U.S. Dist. LEXIS 144366, at *16-*17 (D. Colo. 

Dec. 22, 2010) (noting Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 

240, 251 (S.D. Ohio 1991) (approving incentive awards of $50,000 for each of 6 class 

representatives, for a total of $300,000 out of a settlement fund of $56.6 million, which was 0.56% 

of the common fund)). 

Courts have approved incentive awards in similar class action litigation consistent with and 

greater than the agreed-upon $30,000 award to each of the Class Representatives here; 

furthermore, no objection to these incentive awards has been raised to date. Accordingly, the 
18 

agreed-upon incentive award of $30,000 for each of the two Class Representatives is reasonable 

and should be approved. 

VII. CONCLUSION

For the foregoing reasons, the Class Representatives and Class Counsel respectfully 

request that this honorable Court approve their motion for an award of attorneys’ fees of 

$3,300,000.00, equal to one third of the Settlement Fund, an award of $78,728.06 from the 

Settlement Fund for reimbursement of Class Counsel’s actual costs and expenses incurred in 

connection with their representation of the Settlement Class in this action, and an incentive award in 

the amount of $30,000.00 to each of the Class Representatives in recognition of their significant efforts 

and success on behalf the Settlement Class, and for such other and further relief the Court deems 

reasonable and just. 

Dated: October 6, 2014 Respectfully submitted, 

 By: /s/ Michael J. McMorrow 

One of Plaintiffs’ Attorneys 

Myles McGuire 

mmcguire@mgpc.com 

Evan M. Meyers 

emeyers@mcgpc.com 

McGUIRE LAW, P.C. 

161 N. Clark Street, 47th Floor 

Chicago, IL 60601 

Tel: (312) 216-5179 

Fax: 312-275-7895 

Michael J. McMorrow 

mike@mjmcmorrow.com 

MCMORROW LAW, P.C. 

One North LaSalle St., 44th Floor 

Chicago, IL 60604 

Tel: (312) 265-0708 

Counsel for Misty Murray and Shaun Murray and 

the Settlement Class