IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Philip Charvat on behalf of himself and others )

similarly situated, )

Plaintiff, ) Case No. 1:12-cv-5746

)

v. ) Judge Wood

) Mag. Judge Rowland

Elizabeth Valente, Resort Marketing Group, Inc., )

Carnival Corporation & PLC, Royal Caribbean ) 

Cruises, Ltd., NCL (Bahamas) Ltd. )

Defendants. )

JOINT STATUS REPORT TO COURT AND MOTION TO 

AMEND PUBLICATION NOTICE PLAN AND TO APPROVE 

SUPPLEMENTAL E-MAIL NOTICE TO CLASS AS TO 

ANTICIPATED PRO RATA DISTRIBUTION

The plaintiff, Philip Charvat (“Plaintiff”) and the defendants Resort Marketing Group, Inc.

and its principal, Elizabeth Valente (collectively, “RMG”), and Carnival Corporation & PLC

(“Carnival”), Royal Caribbean Cruises, Ltd. (“Royal”), and NCL (Bahamas) Ltd. (“Norwegian”)

(collectively referred to as the “Cruise Defendants”) jointly provide the Court with this status 

report1 and request for appropriate relief. 

 1 As an update to the Court, on August 25, 2017 (DE #589), the Court convened a hearing after 

numerous consumers sent claim forms directly to the Court, instead of to the Settlement 

Administrator. At the hearing, the Court expressed concern that consumers were doing so 

perhaps because the address of the Settlement Administrator was not on the claim form. At the 

hearing, counsel represented to the Court that it would examine the claim form and, if necessary, 

make appropriate corrections. Following the hearing, both counsel and the Settlement 

Administrator reviewed the claim form and confirmed that the return address of the Settlement 

Administrator was, in fact, included on the top left hand corner of the claim form. A sample of a 

claim form sent by a consumer to the Court is attached at Exhibit 1. Going forward, plaintiff’s 

counsel will continue to send a messenger to retrieve any additional claim forms mistakenly sent 

by consumers directly to the Court.

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Factual Background Relating to This Motion

On July 6, 2017, this Court granted preliminary approval in this case of the Settlement2

between the Plaintiff, RMG, and the Cruise Defendants. (DE# 576). The Settlement established a 

non-reversionary Settlement Fund of between $7,000,000 and $12,500,000, from which Settlement

Class Members could make a claim for a cash payment. (DE #569-1). The ultimate amount of the 

Settlement Fund depended on the number of claims, as did the ultimate amount that would be paid for 

each claim. The maximum value of each call was set at $300 (a reduction from the statutory maximum 

of $500 per call). In addition, a consumer could recover for up to three l calls per telephone line for a 

maximum amount of $900. If the combined amount of valid claims submitted exceeded the $12.5 

million Settlement Fund, then recovery per class member would be reduced pro rata. 

The class was comprised of consumers whose phone numbers appeared in the Call Records

contained within the Dialer Database produced by RMG in discovery. In total, the Dialer 

Database evidenced approximately sixty million telemarketing calls. However, not all calls in the 

Dialer Database promoted the goods and services of the Cruise Defendants. Rather, RMG presented 

evidence that shows many of the calls it made did not promote the Cruise Defendants, but rather 

promoted other travel products and services. RMG’s call records did not specify whether a particular 

call promoted the Cruise Defendants or some other travel product. Thus, based upon extensive expert 

analysis of the dialer database, RMG and the Cruise Defendants argued that the Dialer Database simply 

did not include any information with which to determine which of these Settlement Class Members 

received calls that referenced the Cruise Defendants, and which did not, including corroboration of that 

fact from the manufacturer. The phone numbers of approximately four hundred thousand Settlement 

 2 Capitalized terms used throughout are defined terms contained in the Settlement Agreement 

(DE #569-1)

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Class Members, however, were found in the same telemarketing campaigns as Mr. Charvat, who 

recorded his calls and confirmed their reference to the Cruise Defendants. These class members were 

sent direct mail notice. To ensure that other class members whose numbers were found in the Call 

Records could participate in the Settlement, if appropriate, Class Counsel proposed, and this Court 

approved, of the establishment of a web-based portal that consumers could access to see if their phone 

number was a match to the Call Records. If their number matched, these class members could also 

then file a claim if they attested under the pains and penalties of perjury to receiving pre-recorded 

telemarketing calls promoting the Cruise Defendants during the Class Period. Against this factual 

backdrop, the Parties obtained preliminary approval of the Settlement from this Court. (DE #576). 

Kurtzman Carson Consultants (“KCC”) was retained as the Class Administrator which proceeded to 

give notice to the class as set forth in both the Settlement Agreement and in the Preliminary Approval 

Order, which called for dissemination of a press release, physical notice to be mailed to certain Class 

Members, and publication notice to be made to all other Class Members via various means, including 

press-release, internet advertising and Facebook. (DE #569-1 at Section 7.0). The notice plan, and 

consumer response thereto, was overwhelmingly successful. For example, just the press release alone 

that was issued by KCC was distributed to 216 media sources and reached an estimated audience of 

88,196,338. A copy of the press release is attached at Exhibit 2. A copy of a Visibility Report as to the 

press release is attached at Exhibit 3. Stories in television and print media then ran in media outlets 

from coast to coast broadly publicizing the Settlement and directing consumers to the settlement web 

site to file a claim. In fact, the Settlement was prominently featured on ABC News with David Muir. 

See http://abcnews.go.com/WNT/video/class-action-lawsuit-targets-lawsuits-49260456.

3 This 

 3 A sampling of other media accounts of the Settlement can be found at 

http://abc7ny.com/finance/heads-up-you-may-be-due-money-in-cruise-robocall-case/2314364/; 

http://insider.foxnews.com/2017/08/16/free-cruise-robocalls-class-action-settlement-paymentsannounced; http://6abc.com/finance/free-cruise-robocall-class-action-lawsuit-settled-claimsCase: 1:12-cv-05746 Document #: 592 Filed: 09/25/17 Page 3 of 8 PageID #:22721
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extensive media coverage was in addition to KCC’s promotion of the Settlement as set forth in the 

Settlement Agreement and approved by the Court.

Obviously, the goal of informing class members of their rights under the Settlement and 

offering them an opportunity to participate has been achieved. Unfortunately, some media coverage, 

over which the Parties had no control, informed consumers that they “might be owed $900” without 

providing any context for this statement or explaining that an individual consumer’s recovery was 

completely dependent upon the number of claims filed, and could ultimately be a pro rata share of the

Settlement Fund. The fact that per consumer recovery could be a pro rata share of the Settlement Fund

was prominently featured in the court-approved notice provided to Class Members by KCC. See DE 

#569-1, Settlement Agreement at page 84, Long Form Notice at #9, available to consumers on 

www.rmgtcpasettlement.com; DE #569-1 at page 90, Post Card Notice at “Settlement Terms). 

Accordingly, due to the massive media attention given to this Settlement, and perhaps inflated 

consumer expectations concerning the amount of each individual’s recovery, the number of claims 

filed by consumers in this case has been far beyond the Parties’ expectations. To date, over two million 

consumers have filed claims in this case. Although these claims have yet to be vetted by KCC, it is 

expected that the ultimate amount paid to the Settlement Fund by the Cruise Defendants will reach the 

maximum payout of $12.5 million.4 Thus, the ultimate recovery to each consumer will be a pro rata

share of the Settlement Fund rather than the maximum possible recovery of $300 per call for up to 

three telephone calls., and will likely be in the amount of approximately several dollars per class 

 

available/2317637/; http://www.miamiherald.com/news/nationworld/national/article167363227.html; http://boston.cbslocal.com/2017/08/16/free-cruiserobocall-settlement-claim/; http://www.nydailynews.com/life-style/victim-free-cruise-robocallowed-900-article-1.3423646. 4 Class members have until November 1, 2017 to file claims. In addition to an e-mail notice, the Parties 

intend to amend the web site to include a notice informing Class Members that their recovery will be pro 

rata given the robust response of Class Members to the Settlement. 

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member.

The Parties Jointly Request Permission to Amend The Notice Plan and to Issue 

Supplemental E-Mail Notice to Class Members Who Have Filed Claims

The above factual circumstances are unique. To respond to these circumstances in a manner 

that is fair and transparent to Class Members, the Parties jointly propose the following:

1. Amend The Notice Plan To Save Costs of Additional Internet Notice

KCC estimates that it has yet to spend $150,000 in costs associated with final Internet notice of 

the Class Settlement. The Parties believe it to be prudent to suspend additional expenditures at this 

time so that they may utilize all available funds to ensure that each Class Member will receive as much 

money as possible for their pro rata share. The Settlement Agreement, at Section 7.3, incorporated 

KCC’s recommendation for a Publication Notice plan. (DE #569-1). Section 7.8 of the Settlement 

Agreement required KCC to declare and attest that it carried out the notice requirements in accord with 

the Settlement Agreement. Given these provisions, and out of an abundance of caution, the Parties 

jointly seek this Court’s permission to amend KCC’s original publication notice plan and to cease 

publicizing this Settlement in order to reduce costs and to maximize individual consumer payouts. If 

the Court so approves the Parties’suggestion in this regard, then KCC will be able to declare without 

caveat that it has carried out the Notice plan in accord with the Court’s Order. 

2. Provide E-Mail Notice to Consumers Who Have Filed Claims 

Consumer reaction to this Settlement has obviously been very positive. However, and 

although consumers were clearly informed that the ultimate amount of their recovery was unknown 

and would depend on the number of claims filed, the Parties believe it is in the best interests of Class 

Members that the Class Administrator provide supplemental notice to all Class Members who have 

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filed claims, which informs these individuals that due to a robust consumer response, their ultimate 

recovery will be a pro rata share of the Settlement Fund, which will be substantially less than $300 

maximum per call, and likely in an amount of several dollars per class member. The Parties are 

concerned that due to exaggerated media coverage of the Settlement, some Class Members may 

believe that they will receive $900 from this Settlement when they will not. This supplemental e-mail 

notice will provide Class Members with the opportunity to exercise their right to opt out of this 

Settlement by the deadline of November 1, 2017 if they so choose. KCC estimates that the costs of a 

supplemental e-mail campaign to Class Members who have filed claims will cost $27,500.00. The 

Parties request the Court’s approval of this expenditure and approval of the proposed supplemental email notice campaign to Class Members who have filed claims.5

3. Place a Banner on the Settlement Website Updating Potential Class Members

For the same reasons set forth in Section 2, above, the Parties recommend that the Class 

Administrator place a banner on the Settlement Website, which will apprise all future potential Class 

Members that due to a robust consumer response, their ultimate recovery will be a pro rata share of 

the Settlement Fund, which will be substantially less than $300 maximum per call, and likely in an 

amount of several dollars per class member. 

Prayer for Relief

For the reasons stated above, counsel for all Parties jointly request that this Court enter 

an order permitting KCC to cease incurring any additional costs publicizing the Settlement 

 5 Each Class Member who filed a claim had to provide an e-mail address as part of the claims 

submission process. Accordingly, supplemental email notice can be provided to every consumer 

who filed a claim. 

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given the extensive notice and media coverage of the Settlement to date, to grant the Parties’ 

request to proceed with delivery of supplemental notice, via e-mail, to Class Members who 

have filed claims informing them of the number of claims filed to date, that their recovery of the 

Settlement Fund will be pro rata, and estimating for Class Members the anticipated individual 

recovery, and to grant the Parties’ request to place a banner on the Settlement Website similarly 

advising Class Members of the expected individual pay out in this case per Class Member, A 

Proposed Order is attached at Exhibit 4.

RESPECTFULLY SUBMITTED,

Counsel for Plaintiff

For the Plaintiff, Philip Charvat,

/s/ Matthew P. McCue

Matthew P. McCue (pro hac vice)

The Law Office of Matthew P. McCue 1 South Ave., Third Floor

Natick, MA 01760

Telephone: (508) 655-1415

Facsimile: (508) 319-3077

mmccue@massattorneys.net

Alexander H. Burke Daniel J. Marovitch Burke Law Offices, LLC

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

Telephone: (312) 729-5288

Facsimile: (312) 729-5289

aburke@burkelawllc.com

dmarovitch@burkelawllc.com

Edward A. Broderick (pro hac vice)

Broderick Law, P.C.

125 Summer St., Suite 1030

Boston, MA 02110

Telephone: (617) 738-7080

Facsimile: (617) 314-7783

ted@broderick-law.com

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For the Defendant, Carnival Corporation & PLC’s,

/s/ Jeffrey Becker

Jeffrey S. Becker, Esq.

SWANSON, MARTIN & BELL, LLP

330 N. Wabash, Suite 3300

Chicago, Illinois 60611

For the Defendants, Royal Caribbean Cruises Ltd.’s and

NCL (Bahamas) Ltd.,

/s/ Catherine MacIvor

Catherine J. MacIvor, Esq.

FOREMAN FRIEDMAN, PA

2 South Biscayne Blvd., Suite 2300

Miami, FL 33131

CERTIFICATE OF SERVICE

I, hereby certify that on September 25, 2017, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing to 

counsel of record.

/s/ Matthew P. McCue

Matthew P. McCue

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