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,

v.

Elizabeth Valente, Resort Marketing Group, 

Inc., Carnival Corporation & PLC, Royal 

Caribbean Cruises, Ltd., NCL (Bahamas) 

Ltd.,

Defendants.

)

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)

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)

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Case No. 1:12-cv-05746

Hon. Judge Andrea R. Wood

Hon. Mag. Judge Mary Rowland

MOTION FOR ATTORNEYS’ FEES AND COSTS

AND INCORPORATED MEMORANDUM IN SUPPORT

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TABLE OF CONTENTS

Page

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

II. BACKGROUND AND SETTLEMENT.............................................................................2

A. Background..............................................................................................................2

B. Settlement ................................................................................................................5

III. LEGAL STANDARD FOR ATTORNEYS’ FEE DECISIONS.........................................7

IV. ARGUMENT.......................................................................................................................7

A. The Court Should Calculate Fees as a “Percentage of the Fund.”...........................7

B. Counsel’s Request Is Within the “Market Rate.” ....................................................9

1. The Fee Comports with the Contract between Plaintiff and Counsel........11

2. The Requested Fee Reflects the Fees Awarded in Other Settlements.......12

a. Pre-Pearson Percentage of the Fund Settlements..........................12

b. Post-Pearson: The Pearson Presumption Did Not Alter the Market 

Rate for Fees. .................................................................................14

3. Other Factors Support the Requested Fee..................................................15

a. Risk of Nonpayment ......................................................................15

b. Quality of Performance and Work Invested ..................................21

c. Stakes of the Case ..........................................................................22

V. CONCLUSION..................................................................................................................23

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TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Lockheed Martin Corp., 

No. 06-701, 2015 WL 4398475 (N.D. Ill. July 17, 2015) ........................................................ 14

Allen v. JPMorgan Chase Bank, NA, 

No. 13-8285 (N.D. Ill. Oct. 21, 2015) (Dkt. No. 93)................................................................ 14

Americana Art China, Co. v. Foxfire Printing & Packaging, Inc., 

743 F.3d 243 (7th Cir. 2014) ...................................................................................................... 7

Aranda v. Caribbean Cruise Line, Inc., 

No. 12-4069, 2017 WL 1369741 (N.D. Ill. Apr. 10, 2017)........................................................ 8

Balschmiter v. TD Auto Fin. LLC, 

303 F.R.D. 508 (E.D. Wis. 2014) ............................................................................................. 18

Beech Cinema, Inc. v. Twentieth Century Fox Film Corp., 

480 F. Supp. 1195 (S.D.N.Y. 1979).......................................................................................... 13

Bickel v. Sheriff of Whitley Cnty, 

No. 08-102, 2015 WL 1402018 (N.D. Ind. March 26, 2015)................................................... 15

Birchmeier v. Caribbean Cruise Line, Inc., 

302 F.R.D. 240 (N.D. Ill. 2014)................................................................................................ 18

Boeing Co. v. Van Gemert, 

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

Brey Corp. v. LQ Mgmt. LLC, 

No. 11-718, 2014 WL 943445 (D. Md. Jan. 30, 2014)............................................................. 19

Campbell-Ewald Co. v. Gomez, 

136 S. Ct. 663 (2016)................................................................................................................ 18

CE Design Ltd. v. CV’s Crab House North, Inc., 

No. 07-5456 (N.D. Ill. Oct. 27, 2011) (Dkt. No. 424).............................................................. 12

CE Design, Ltd. v. Exterior Sys., Inc., 

No. 07-66 (N.D. Ill. Dec. 6, 2007) (Dkt. No. 39) ..................................................................... 13

Charvat v. EchoStar Satellite, LLC, 

630 F.3d 459 (6th Cir. 2010) .................................................................................................... 17

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iii

City of Greenville v. Syngenta Corp Prot., Inc., 

904 F. Supp. 2d 902 (S.D. Ill. 2012)......................................................................................... 13

Craftwood Lumber Co. v. Interline Brands, Inc., 

No. 11-4462, 2015 WL 1399367 (N.D. Ill. Mar. 23, 2015) ................................................. 7, 14

Cummings v. Sallie Mae, 

No. 12-9984 (N.D. Ill. May 30, 2014) (Dkt. No. 91) ............................................................... 12

Desai v. ADT Sec. Servs., Inc., 

No. 11-1925 (N.D. Ill. June 21, 2013) (Dkt. No. 243) ............................................................. 12

Donaca v. Dish Network, LLC., 

303 F.R.D. 390 (D. Colo. 2014) ............................................................................................... 19

Fitzhenry v. ADT Corp.,

No. 14-80180, 2014 WL 6663379 (S.D. Fla. Nov. 3, 2014) .................................................... 19

Florin v. Nationsbank of Ga., N.A., 

34 F.3d 560 (7th Cir. 1994) .................................................................................................. 9, 16

G.M. Sign, Inc. v. Finish Thompson, Inc., 

No. 07-5953 (N.D. Ill. Nov. 1, 2010) (Dkt. No. 146)............................................................... 12

Gaskill v. Gordon,

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

Gaskill v. Gordon, 

942 F. Supp. 382 (N.D. Ill. 1996)............................................................................................... 9

Green v. DirecTV, Inc., 

No. 10-117, 2010 WL 4628734 (N.D. Ill. Nov. 8, 2010) ................................................... 19, 20

Greene v. Emersons Ltd., 

No. 76-2178, 1987 WL 11558 (S.D.N.Y. May 20, 1987) ........................................................ 13

Gusman v. Comcast Corp., 

298 F.R.D. 592 (S.D. Cal. 2014) .............................................................................................. 20

Hanley v. Fifth Third Bank, 

No. 12-1612 (N.D. Ill.) (Dkt. No. 87)....................................................................................... 12

Hinman v. M&M Rentals, Inc., 

No. 06-1156 (N.D. Ill. Oct. 6, 2009) (Dkt. No. 225)................................................................ 12

Holtzman v. CCH, 

No. 07-7033 (N.D. Ill. Sept. 30, 2009) (Dkt. No. 33)............................................................... 13

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iv

In re Ampicillin Antitrust Litig., 

526 F. Supp. 494 (D.D.C. 1981)............................................................................................... 13

In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 

792 F. Supp. 2d 1028 (N.D. Ill. 2011)................................................................................ 19, 20

In re Bankcorp. Litig., 

291 F.3d 1035 (8th Cir. 2002) .................................................................................................. 13

In re Capital One Tel. Consumer Prot. Act Litig., 

80 F. Supp. 3d 781 (N.D. Ill. 2015).......................................................................... 8, 14, 21, 22

In re Combustion, Inc., 

968 F. Supp. 1116 (W.D. La. 1997).......................................................................................... 13

In re Cont’l Ill. Sec. Litig., 

962 F.2d 566 (7th Cir. 1992) ...................................................................................................... 9

In re Dairy Farmers of Am., Inc., 

MDL No. 2031, 2015 WL 753946 (N.D. Ill. Feb. 20, 2015).................................................... 15

In re Ky. Grilled Chicken Coupon Mktg. & Sales Practices Litig., 

280 F.R.D. 364 (N.D. Ill. 2011)............................................................................................ 7, 13

In re Marsh ERISA Litig., 

265 F.R.D. 128 (S.D.N.Y. 2010) .............................................................................................. 22

In re Mego Fin. Corp. Sec. Litig., 

213 F.3d 454 (9th Cir. 2000) .................................................................................................... 13

In re Synthroid Mkt. Litig., 

264 F.3d 712 (7th Cir. 2001) .................................................................................... 7, 10, 11, 16

In re Synthroid Mktg. Litig., 

325 F.3d 974 (7th Cir. 2003) ...................................................................................................... 9

In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig., 

724 F. Supp. 160 (S.D.N.Y. 1989) ............................................................................................. 9

Jamison v. First Credit Servs., 

290 F.R.D. 92 (N.D. Ill. 2013)...................................................................................... 18, 19, 20

Kirchoff v. Flynn, 

786 F.2d 320 (7th Cir. 1986) .............................................................................................. 11, 16

Kolinek v. Walgreen Co., 

311 F.R.D. 483 (N.D. Ill. 2015)......................................................................................... passim

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v

Mais v. Gulf Coast Collection Bureau, Inc., 

944 F. Supp. 2d 1226 (S.D. Fla. 2013) ..................................................................................... 17

Mangone v. First USA Bank, 

206 F.R.D. 222 (S.D. Ill. 2001) ................................................................................................ 11

Martin v. Dun & Bradstreet, Inc., 

No. 12-215 (N.D. Ill. Jan. 16, 2014) (Dkt. No. 63) .................................................................. 12

McCue v. MB Fin., Inc., 

No. 15-988, 2015 WL 4522564 (N.D. Ill. July 23, 2015) ........................................................ 14

Paldo Sign & Display Co. v. Topsail Sportswear, Inc., 

No. 08-5959 (N.D. Ill. Dec. 21, 2011) (Dkt. No. 116) ............................................................. 12

Pearson v. NBTY, Inc., 

772 F.3d 778 (7th Cir. 2014) ................................................................................................ 9, 10

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

No. 97-7694, 2001 WL 1568856 (N.D. Ill. Dec. 10, 2001)...................................................... 11

Rose v. Bank of Am. Corp., 

No. 11-2390, 2014 WL 4273358 (N.D. Cal. Aug. 29, 2014) ................................................... 22

Saf-T-Gard Int’l v. Vanguard Energy Servs., 

No. 12-3671, 2012 WL 6106714 (N.D. Ill. Dec. 6, 2012)........................................................ 18

Saf-T-Gard Int’l, Inc. v. Seiko Corp. of Am., 

No. 09-776 (N.D. Ill. Jan. 14, 2011) (Dkt. No. 100) ................................................................ 12

Silverman v. Motorola Solutions, Inc., 

739 F.3d 956 (7th Cir. 2013) .................................................................................................... 16

Spano v. The Boeing Co., 

No. 06-743, 2016 WL 3791123 (S.D. Ill. March 31, 2016) ..................................................... 14

Spokeo, Inc. v. Robins, 

136 S. Ct. 1540 (2016).............................................................................................................. 18

Sutton v. Bernard, 

504 F.3d 688 (7th Cir. 2007) .................................................................................... 7, 15, 16, 21

Taubenfeld v. AON Corp., 

415 F.3d 597 (7th Cir. 2005) .............................................................................................. 11, 13

Van Gemert v. Boeing Co., 

516 F. Supp. 412 (S.D.N.Y. 1981) ........................................................................................... 13

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vi

Will v. Gen. Dynamics Corp., 

No. 06-698, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010)........................................................ 13

Worsham v. Nationwide Ins. Co., 

772 A.2d 868 (Md. App. Ct. 2001)........................................................................................... 17

Wright v. Nationstar Mortg. LLC, 

No. 14-1045, 2016 WL 4505169 (N.D. Ill. Aug. 26, 2016) ....................................................... 8

Zolkos v. Scriptfleet, Inc., 

No. 12-8230, 2015 WL 4275540 (N.D. Ill. July 13, 2015) ...................................................... 14

Statutes

47 U.S.C. § 227........................................................................................................................... 1, 2

47 U.S.C. § 227(b)(1) ..................................................................................................................... 2

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I. INTRODUCTION

On July 6, 2017, this Court preliminarily approved a proposed class action settlement 

between Plaintiff Philip Charvat and 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, the 

“Cruise Defendants”). Dkt. 576. The Settlement requires Defendants to pay between $7,000,000 

and $12,500,000 into a common fund for the benefit of millions of consumers to whom RMG

made prerecorded telemarketing calls referencing the Cruise Defendants, in alleged violation of 

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

Class Counsel have zealously prosecuted Plaintiff’s claims for over five years, achieving 

the Settlement only after extensive first and third-party discovery and heavily-contested motion 

practice, including motions to dismiss, motions to compel, tens of thousands of pages of 

discovery, and thousands of pages of class certification briefing. The Settlement was reached 

only after an in-person mediation with Bruce Friedman of JAMS, followed by months of further 

negotiations between counsel for the parties.

As compensation for the substantial benefit conferred upon the Settlement Class and five 

years of grueling work, Class Counsel respectfully move the Court for an award of attorneys’ 

fees equal to one-third of the Settlement Fund. While the amount of the Settlement Fund will 

depend upon how many class members submit claim forms, Counsel seeks one-third of the fund 

paid out; an amount that is well within the range of reasonableness. Additionally, Class Counsel 

also seek reimbursement of their out-of-pocket costs incurred in prosecuting the case, currently 

amounting to $211,193.05. This request should be approved because (1) it represents the market 

rate for this type of settlement and is in line with the Seventh Circuit’s directive in In re 

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Synthroid, particularly as it is not a “mega-fund” case which yield lower percentages of 

settlement funds to attorneys, and (2) represents a reasonable and appropriate amount in light of 

the substantial risks presented in prosecuting this action, the quality and extent of work 

conducted, and the stakes of the case. 

II. BACKGROUND AND SETTLEMENT

A. Background

This case concerns alleged violations of the Telephone Consumer Protection Act 

(“TCPA”), 47 U.S.C. § 227, which prohibits, inter alia, initiating telemarketing calls using an 

artificial or prerecorded voice without prior express consent. 47 U.S.C. § 227(b)(1).

Specifically, beginning in February 11, 2011, Defendant RMG (a/k/a “Travel Services”) 

repeatedly called Plaintiff’s phone with a prerecorded message informing Mr. Charvat that he 

had been “selected” to receive a cruise with the Cruise Defendants. Dkt. 463, 3d Am. Compl. ¶ 

98, 104, 109, 116, Ex. 7. Mr. Charvat had not consented to receive these pre-recorded message 

calls from the Defendants. Id. ¶ 123. Rather, these were unsolicited telemarketing calls 

promoting Cruise Defendant cruises, made as part of a widespread robocalling campaign to 

consumer phone numbers purchased through third parties. Id. ¶ 84; Dkt. 492 at 14. 

Plaintiff Charvat filed this action on July 23, 2012, and hard-fought litigation proceeded

for years to follow. After Plaintiff amended his complaint on September 25, 2012, the Cruise 

Defendants moved to dismiss and to stay discovery. Dkt. 23, 26, 30, 32, 37. Class Counsel

responded to the motions to dismiss and moved for leave to file a second amended complaint, 

which Defendants opposed. Dkt. 46, 47, 52. After Judge Zagel—to whom this case was 

originally assigned—granted leave to amend, Defendants again filed motions to dismiss, 

requiring Class Counsel to engage in further briefing. Dkt. 61, 66, 78, 92, 96, 104, 108, 112. On 

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April 11, 2013, Judge Zagel stayed the case as to the Cruise Defendants pending the FCC’s 

anticipated declaratory ruling regarding vicarious liability issues in In re Joint Pet. by DISH 

Network, LLC et al for Declaratory Ruling Concerning the TCPA Rules, CG Docket No. 11-50 

(FCC), and Class Counsel ultimately succeeded in defending against Defendants’ dispositive 

motions after the FCC ruled in consumers’ favor in May 2013. Dkt. 117, 141, 143. It is worth 

noting that Plaintiff Philip Charvat was the consumer who prosecuted the Dish action in the FCC 

on behalf of consumers, that Mr. Charvat was represented by Class Counsel team member 

Matthew McCue through a substantial portion of the Dish proceedings, that these efforts had a 

significant impact on this litigation (being the reason Defendants’ motion to dismiss was denied), 

and was a real win for Americans who hate robocalls, generally. 

On May 3, 2013, Defendants RMG and Valente filed answers to Plaintiff’s complaint, 

along with a counterclaim by RMG against Plaintiff Charvat, personally, based on allegations 

that Mr. Charvat had violated Illinois law by recording the prerecorded-message call RMG had 

placed to his phone. Dkt. 123. Class Counsel successfully defended against this counterclaim, 

and RMG voluntarily withdrew it on May 1, 2014, after Class Counsel filed a motion for 

summary judgment. Dkt. 191.

Heavily contested proceedings continued in this action after the case was reassigned from 

Judge Zagel to this Court on November 18, 2013, and discovery disputes and motion practice 

persisted both before this Court and Magistrate Judge Rowland, to whom discovery matters were 

referred on March 20, 2014. Dkt. 162, 181, 184. Among other things, after discovering that the 

telemarketing about which this lawsuit relates continued to be made well after the suit was filed, 

Class Counsel successfully moved for leave to file a third amended complaint in order to capture 

that continued allegedly illegal calling, over Defendants’ objection. Dkt. 308, 351, 443, 453, 454. 

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When Defendants submitted the affidavit of a third-party to suggest that Mr. Charvat was fishing 

for TCPA violations, Class Counsel went on the offensive, deposed the affiant, and obtained 

testimony confirming that the purported “opt-in” lead data Defendants claimed showed that Mr. 

Charvat consented to the calls at issue was fabricated. Dkt. 512-1, Pascale Dep. at 94. Similarly, 

when Defendants hired a third-party vendor to run a calling campaign to conduct an on-the-spot 

“survey” of putative class members about what they remembered from calls they received years 

ago without notice to Class Counsel or informing the recipients about the adversarial purpose of 

the call, Class Counsel sought to have the vendor’s declaration stricken. Dkt. 477, 487, 489. 

While that motion was denied by Judge Rowland without prejudice in terms of a discovery 

sanction, the briefing forced Defendants to commit to having only proffered the declarant as a 

non-expert, lay witness, contemplating later consideration by this Court as to whether the survey 

should be admitted on evidentiary grounds. Dkt. 509 at 1.

Discovery in this case was particularly hard-fought. Class Counsel prepared and served

multiple sets of written discovery requests on Defendants, worked with Mr. Charvat to respond 

to Defendants’ requests and prepare both him and his daughter for their depositions, worked with 

Plaintiff’s expert to ensure proper data analysis and prepare him for his deposition, and 

participated with defense counsel in a total of 15 depositions across four states. (Burke Decl. ¶ 

15.) Class Counsel filed a total of seven motions to compel discovery in this action, Dkt. 131, 

137, 159, 175, 246, 248, 303, and defended against numerous others, Dkt. 139, 179, 211, 213, 

214, 241, 254, 433, 446. Defendants appealed some of Magistrate Judge Rowland’s orders to this 

Court, requiring further briefing. Dkt. 232, 233, 236, 237, 238, 292, 294, 315, 327, 367, 430, 

482, 504, 511, 512. This advocacy permitted the development of an ample evidentiary record, 

ensuring effective argument—and, ultimately, settlement negotiations—while protecting against 

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overreaching or improper discovery. The more than 570 docket entries in this case evidence 

Class Counsel’s zealous advocacy on behalf of the class; indeed, between March 2014 and 

August 2016, Magistrate Judge Rowland held over 30 discovery hearings.

With discovery completed, Plaintiff initiated class certification briefing on May 16, 2016.

Dkt. 492. This, too, was heavily argued, with the parties submitting thousands of pages in 

briefing and exhibits, along with multiple motions to exclude the other side’s expert or other 

evidence. Dkt. 492, 520, 521, 530, 531, 547, 548, 551, 553. Several months later, the parties 

decided to discuss the possibility of class-wide settlement, and met for an all-day mediation with 

Bruce Friedman of JAMS in Miami, Florida, on March 18, 2017, preceded by the submission of 

mediation briefs. (Burke Decl. ¶ 15.) The parties failed to reach a settlement, but through 

continued, arms’ length negotiations between counsel for the parties over subsequent months, 

they ultimately reached the instant Settlement now before the Court. (Burke Decl. ¶ 15.)

B. The Settlement

The Settlement requires Defendants to pay between $7,000,000 and $12,500,000 for the 

benefit of a Settlement Class defined as:

[A]ll Persons in the United States who were the owner, subscriber or user of 

residential or cellular telephone numbers located in the RMG Defendants’ dialer 

databases and who received pre-recorded telemarketing calls from the RMG 

Defendants, which referred to the trade names of any of the Cruise Defendants 

between July 23, 2009 through March 8, 2014. The class is limited to those phone 

numbers contained in the Call Records of the RMG Defendants as defined in the 

Agreement. 

Excluded from the Settlement Class are the following: (i) any trial judge that may 

preside over this Action; (ii) the Cruise Defendants; (iii) any of the Released 

Parties; (iv) Class Counsel and their employees; (v) the immediate family of any 

of the foregoing persons; (v) any member of the Settlement Class who has timely 

submitted a Request for Exclusion by the Objection/Exclusion Deadline; (vi) any 

person who has previously given a valid release of the claims asserted in the 

Action; and (vii) persons who received or may have received a call or calls 

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referencing the goods and services of any of the Cruise Defendants, but which 

were not made by Defendant RMG (a/k/a “Travel Services”).

Dkt. 569-1, Agr. ¶ 2.46 (spacing provided). The Settlement requires Defendants to create a nonreversionary common fund of at least $7,000,000, or up to $12,500,000, as needed to pay the 

amount of all Approved Claims, Settlement Administration Expenses, any Incentive Award to 

Mr. Charvat, and Class Counsel’s attorneys’ fees and costs. Id. ¶¶ 2.49, 4.2. Settlement Class 

Members may recover up to $300 per call, with a cap at three calls, on any of their phone 

numbers that are part of the Class and contained in the Call Records obtained in this case. Id. ¶ 

2.49. Should the amount in payments exceed the $12,500,000 cap, Cash Awards to Settlement 

Class Members will be reduced on a pro rata basis. Id. Conversely, any of the $7,000,000 

minimum remaining in the Settlement Fund after distribution will be provided to the National 

Consumer Law Center or another approved recipient as cy pres. Id. ¶ 4.2. Notice and 

administration through Kurtzman Carson Consultants LLC (“KCC”) is expected to cost 

approximately $800,000. (Burke Decl. ¶ 15.)

Plaintiff respectfully requests that the Court approve attorneys’ fees equal to one-third of 

the Settlement Fund,

1 plus costs of $211,193.05. As explained below, the requested fee award is 

in line with the market rate for similar attorney services in this jurisdiction, and fairly reflects the 

result achieved.

 

1 Under the terms of the Settlement, the Settlement Fund includes not only the total amount of 

Approved Claims, Settlement Administration Expenses, and the amount of any incentive award, but the 

total of Class Counsel’s attorneys’ fees and costs, as well. Agr. ¶ 2.49. Thus, unless there are enough 

claims to cause the fund to hit the cap, Class Counsel’s requested fees do not affect the amount in Cash 

Benefits going to individual Settlement Class members who submit Approved Claims; the amount in 

attorneys’ fees and costs is in addition to the Settlement Class Recovery.

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III. LEGAL STANDARD FOR ATTORNEYS’ FEE DECISIONS

The Seventh Circuit and other federal courts have long recognized that when counsel’s 

efforts result in the creation of a common fund that benefits the plaintiff and unnamed class 

members, counsel have a right to be compensated from that fund for their successful efforts in 

creating it. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (“lawyer who recovers a 

common fund ... is entitled to a reasonable attorneys’ fee from the fund as a whole”); Sutton v. 

Bernard, 504 F.3d 688, 691 (7th Cir. 2007) (“the attorneys for the class petition the court for 

compensation from the settlement or common fund created for the class’s benefit”). The goal is 

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.” In re Synthroid Mktg. Litig., 264 F.3d 

712, 718 (7th Cir. 2001) (“Synthroid I”) (collecting cases).

In common fund cases, courts have discretion to use one of two methods to determine 

whether the request reflects the market rate for legal services: (1) percentage of the fund; or (2) 

lodestar plus a risk multiplier. Americana Art China, Co. v. Foxfire Printing & Packaging, Inc., 

743 F.3d 243, 247 (7th Cir. 2014). However, “the approach favored in the Seventh Circuit is to 

compute attorney’s fees as a percentage of the benefit conferred upon the class.” In re Ky. 

Grilled Chicken Coupon Mktg. & Sales Practices Litig., 280 F.R.D. 364, 379 (N.D. Ill. 2011). 

IV. ARGUMENT

A. The Court Should Calculate Fees as a “Percentage of the Fund.”

Courts in this District routinely hold that the percentage of the fund reflects the “market 

rate” for TCPA class actions because “given the opportunity ... class members and Plaintiff’s 

counsel would have bargained for” such. Craftwood Lumber Co. v. Interline Brands, Inc., No. 

11-4462, 2015 WL 1399367, at *5 (N.D. Ill. Mar. 23, 2015); Aranda v. Caribbean Cruise Line, 

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Inc., No. 12-4069, 2017 WL 1369741, at *2, 9 (N.D. Ill. Apr. 10, 2017) (using percentage-ofthe-fund method in TCPA case and declining to engage in lodestar analysis); Wright v. 

Nationstar Mortg. LLC, No. 14-1045, 2016 WL 4505169, *17 (N.D. Ill. Aug. 26, 2016) (same);

In re Capital One Tel. Consumer Prot. Act Litig. (“In re Capital One”), 80 F. Supp. 3d 781, 795 

(N.D. Ill. 2015) (percentage of the fund method is “more likely to yield an accurate 

approximation of the market rate” in TCPA case, and that, “had an arm’s length negotiation been 

feasible, the court believes that the class would have negotiated a fee arrangement based on a 

percentage of the recovery, consistent with the normal practice in consumer class actions”); The 

overwhelming preference for the percentage-of-the-fund approach makes sense because it best 

reflects the way fees work in such cases. In a non-fee-shifting matter like a personal injury or 

TCPA case, the only way for a lawyer to be paid is through a percentage of the client’s recovery. 

It would be nonsensical for a client to pay a lawyer hourly for a TCPA case because the fees for 

hourly work would quickly eat up the client’s possible recovery. An even stronger case can be 

made where the lawyer is very experienced because the higher hourly rate would surpass the 

client’s recovery even more quickly.

One of the advantages that the percentage of the fund has over lodestar, and a substantial 

reason why percentage of the fund more accurately represents the “market rate,” is that “the 

lodestar method [would] require plaintiffs to monitor counsel and ensure that counsel are 

working efficiently on an hourly basis, something a class of nine million lightly-injured plaintiffs 

likely would not be interested in doing.” Kolinek v. Walgreen Co., 311 F.R.D. 483, 501 (N.D. Ill. 

2015) (using percentage-of-the-fund method in TCPA class action). Indeed, “there are 

advantages to utilizing the percentage method in common fund cases because of its relative 

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simplicity of administration.” Florin v. Nationsbank of Ga., N.A., 34 F.3d 560, 566 (7th Cir. 

1994). As one seminal case found:

The percentage method is bereft of largely judgmental and time-wasting 

computations of lodestars and multipliers. These latter computations, no matter 

how conscientious, often seem to take on the character of so much Mumbo 

Jumbo. They do not guarantee a more fair result or a more expeditious disposition 

of litigation.

In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig., 724 F. Supp. 160, 170 (S.D.N.Y. 

1989); see also In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 573 (7th Cir. 1992) (noting it is easier 

to establish market based contingency fee percentages than to “hassle over every item or 

category of hours and expense and what multiple to fix and so forth”); Gaskill v. Gordon, 942 F. 

Supp. 382, 386 (N.D. Ill. 1996) (percentage of fund method “provides a more effective way of 

determining whether the hours expended were reasonable.”), aff’d, 160 F.3d 361 (7th Cir. 1998).

B. Counsel’s Request Is Within the “Market Rate.”

The Seventh Circuit has held that courts should determine this percentage by 

approximating the market rate, and in In re Synthroid Mktg. Litig., 325 F.3d 974, 975-80 (7th 

Cir. 2003) (“Synthroid II”), itself determined the “market” fee as a percentage of the entire

settlement fund. More recently, in Pearson v. NBTY, Inc., 772 F.3d 778, 782 (7th Cir. 2014), the 

Court established a presumption for fee requests, holding that notice and administration costs 

should be deducted before calculating the percentage for attorney’s fees. 

However, Pearson did not overrule Synthroid II, and did not purport to lower the “market 

rate” for attorney’s fees in consumer class actions like this one. Instead, Pearson held that the 

calculation for comparing settlements must account for costs as a benefit to counsel rather than a 

benefit to the class. Pearson holds that district courts enjoy wide discretion to award whatever 

fees are reasonable and appropriate; under the Pearson presumption, fees in any given settlement 

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should not “exceed a third or at most a half of the total amount of money going to class members 

and their counsel.” Pearson, 772 F.3d at 782 (emphasis added).

Here, Plaintiff’s fee request falls squarely within the Pearson presumption: Indeed, under 

the terms of the Settlement, more than 98% of the Settlement Class would have to fail to submit 

Approved Claims in order for the Pearson presumption of reasonableness to not be met.

2 To 

demonstrate, the following chart identifies the impact of varying claims rates under the 

Settlement, assuming estimated Settlement Administration Expenses of $800,000, approximate 

costs of $211,000, and approval of the requested incentive award of $50,000:

Approved 

Claims

Settlement 

Class 

Recovery

Attorneys’ Fees

(331⁄3% of 

Fund)

Settlement Fund

Pearson

Presumption 

Met?

20,000

(5% claims rate)

$6,000,000

($300 each) $3,530,500 $10,591,500

Yes

(Fees = 37.0% of 

Fees + Class 

Recovery)

30,000

(7.5% claims rate)

$7,272,333.34

($242.41 each) $4,166,666.66 $12,500,000 (ceiling)

Yes

(Fees = 36.4% of 

Fees + Class 

Recovery)

40,000

(10% claims rate)

$7,272,333.34

($181.80 each) $4,166,666.66 $12,500,000 (ceiling)

Yes

(Fees = 36.4% of 

Fees + Class 

Recovery)

The Seventh Circuit has elucidated ‘benchmarks’ that can assist courts in estimating the 

market rate, including “the fee contract between the plaintiff and counsel, data from similar 

cases, and information from class-counsel auctions,” Kolinek, 311 F.R.D. at 501 (citing 

Synthroid I, 264 F.3d at 719). Other factors are relevant, as well, including the risk counsel 

 

2 Under the Court’s preliminary approval order, implementation of the Notice plan commences the 

day of this filing; hence, data regarding the claims rate does not yet exist. Dkt. 576 at 5. Plaintiff will 

submit supplemental claim results closer to the date of the Final Approval Hearing.

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undertook in accepting the case, the quality of performance and the stakes of the case. Synthroid 

I, 264 F.3d at 721. As explained below, each of these factors supports the requested fee. 

1. The Fee Comports with the Contract between Plaintiff and Counsel.

The requested fee award is not only supported by the fee awards deemed reasonable in 

similar class cases; it is in line with representation agreements commonly entered into in this 

District, including between Plaintiff and his counsel. In addition to analyzing the market price for 

legal services from analogous cases, courts also may examine “actual fee contracts that were 

negotiated for private litigation.” Taubenfeld v. AON Corp., 415 F.3d 597, 599 (7th Cir. 2005); 

see also Stumpf v. PYOD, 12-4688, 2013 WL 6123156, at *2 (N.D. Ill. Nov. 20, 2013) (“The 

named plaintiff’s agreement to a floor of 33.33% of any net recovery supports the claim that 

30% of the net recovery is tied to the market.”); Mangone v. First USA Bank, 206 F.R.D. 222, 

226 (S.D. Ill. 2001) (requiring weight be given to the judgment of the parties and their counsel 

where, as here, the fees were agreed to through arm’s length negotiations after the parties agreed 

on the other key deal terms). 

The customary contingency agreement in this Circuit is 33% to 40% of the total recovery. 

Gaskill v. Gordon, 160 F.3d 361, 362–63 (7th Cir. 1998) (noting that typical contingency fees 

are between 33% and 40% and affirming award of 38%); Kirchoff v. Flynn, 786 F.2d 320, 323 

(7th Cir. 1986) (observing that “40% is the customary fee in tort litigation” and noting, with 

approval, contract providing for one-third contingent fee if litigation settled prior to trial); Retsky 

Family Ltd. P’ship v. Price Waterhouse, LLP, No. 97-7694, 2001 WL 1568856, at *4 (N.D. Ill. 

Dec. 10, 2001) (recognizing that a customary contingent fee is “between 33 1/3% and 40%” and 

awarding counsel one-third of the common fund). 

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Here, Plaintiff entered into a retainer agreement with Class Counsel that reflects this fee 

range, 331⁄3%, as up to 40% is normal in consumer TCPA cases in this District. (Burke Decl. ¶ 

14.) Such evidence supports a finding that the requested fee reflects the amount Class Counsel 

would have received had they negotiated their fee ex ante. 

2. The Requested Fee Reflects the Fees Awarded in Other Settlements. 

a. Pre-Pearson Percentage of the Fund Settlements

Awards of one-third of the entire settlement fund were commonplace before Pearson. 

Some TCPA cases where this happened are as follows: Martin v. Dun & Bradstreet, Inc., No.

12-215 (N.D. Ill. Jan. 16, 2014) (Martin, J.) (Dkt. No. 63) (one-third of total payout); Hanley v. 

Fifth Third Bank, No. 12-1612 (N.D. Ill.) (Dkt. No. 87) (awarding attorneys’ fees of one-third of 

total settlement fund); Cummings v. Sallie Mae, No. 12-9984 (N.D. Ill. May 30, 2014) 

(Gottschall, J.) (Dkt. No. 91) (one-third of common fund); Desai v. ADT Sec. Servs., Inc., No. 

11-1925 (N.D. Ill. June 21, 2013) (Bucklo, J.) (Dkt. No. 243) (one-third of the settlement fund); 

Paldo Sign & Display Co. v. Topsail Sportswear, Inc., No. 08-5959 (N.D. Ill. Dec. 21, 2011) 

(Kennelly, J.) (Dkt. No. 116) (fees equal to one-third of the settlement fund plus expenses); CE 

Design Ltd. v. CV’s Crab House North, Inc., No. 07-5456 (N.D. Ill. Oct. 27, 2011) (Kennelly, J.) 

(Dkt. No. 424) (fees equal to one-third of settlement plus expenses); Saf-T-Gard Int’l, Inc. v. 

Seiko Corp. of Am., No. 09-776 (N.D. Ill. Jan. 14, 2011) (Bucklo, J.) (Dkt. No. 100) (fees and 

expenses equal to 33% of the settlement fund); G.M. Sign, Inc. v. Finish Thompson, Inc., No. 07-

5953 (N.D. Ill. Nov. 1, 2010) (Kendall, J.) (Dkt. No. 146) (fees of one-third of settlement plus 

expenses); Hinman v. M&M Rentals, Inc., No. 06-1156 (N.D. Ill. Oct. 6, 2009) (Bucklo, J.) (Dkt. 

No. 225) (fees and expenses equal to 33% of the fund); Holtzman v. CCH, No. 07-7033 (N.D. Ill. 

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Sept. 30, 2009) (Nordberg, J.) (Dkt. No. 33) (same); CE Design, Ltd. v. Exterior Sys., Inc., No.

07-66 (N.D. Ill. Dec. 6, 2007) (Darrah, J.) (Dkt. No. 39) (same). 

Some other, non-TCPA cases where one-third of the entire fund was awarded, include:

Taubenfeld, 415 F.3d at 600 (noting counsel had submitted a table of thirteen cases in the 

Northern District of Illinois where counsel was awarded fees amounting to 30–39% of the 

settlement fund); In re Ky. Grilled Chicken, 280 F.R.D. at 380–81 (citing cases, and describing a 

fee of 32.7% of the common fund as “well within the market rate and facially reasonable”); City 

of Greenville v. Syngenta Corp Prot., Inc., 904 F. Supp. 2d 902, 908–09 (S.D. Ill. 2012)

(approving a one-third fee because a “contingent fee of one-third of any recovery after the 

reimbursement of costs and expenses reflects the market price” and citing cases); Will v. Gen. 

Dynamics Corp., No. 06-698, 2010 WL 4818174, *3 (S.D. Ill. Nov. 22, 2010) (finding “the 

market rate for complex plaintiffs’ attorney work in this case and similar cases is a contingency 

fee” and agreeing “a one-third fee is consistent with the market rate”); In re Bankcorp. Litig., 

291 F.3d 1035, 1038 (8th Cir. 2002) (affirming award of 36% of the settlement fund); In re 

Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir. 2000) (affirming award of attorneys’ 

fees equal to 33.33% of the total recovery); Greene v. Emersons Ltd., No. 76-2178, 1987 WL 

11558, at *8 (S.D.N.Y. May 20, 1987) (awarding attorneys’ fees and expenses in excess of 46% 

of the settlement fund); In re Combustion, Inc., 968 F. Supp. 1116, 1131–32 (W.D. La. 1997)

(awarding attorneys’ fees equal to 36% of the common fund); In re Ampicillin Antitrust Litig., 

526 F. Supp. 494, 503 (D.D.C. 1981) (awarding attorneys’ fees in excess of 40% of the 

settlement fund); Beech Cinema, Inc. v. Twentieth Century Fox Film Corp., 480 F. Supp. 1195, 

1198–99 (S.D.N.Y. 1979) (awarding fees in excess of 50% of the settlement fund); Van Gemert 

v. Boeing Co., 516 F. Supp. 412, 420 (S.D.N.Y. 1981) (awarding fees of 36% of fund). 

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b. Post-Pearson: The Pearson Presumption Did Not Alter the Market 

Rate for Fees.

The fee award requested here – 36.5% or less for anything more than a 6% claims rate, 

after deducting administration costs, expenses, and any service award – represents the postPearson market price, and is therefore reasonable. That the rate is within the market is reflected 

in the following fees approved by judges in this District in TCPA cases since Pearson:

- 36% of total fund: In re Capital One, 80 F. Supp. 3d 781 (N.D. Ill. 2015) (36% of the 

first $10 million of the settlement) (Holderman, J.).

- 33%: Charvat v. AEP Energy, Inc., No. 14-cv-03121, Dkt. No. 44, (N.D. Ill. 

November 20, 2015) (Zagel, J.).

- 38% of fund minus expenses, notice/admin costs, and service award: Martin v. JTH 

Tax, Inc., No. 13-6923 (N.D. Ill. Sept. 16, 2015) (Shah, J.).

- 36% of fund minus notice/admin costs and service award: Kolinek v. Walgreen Co., 

311 F.R.D. 483, 501 (N.D. Ill. 2015) (Kennelly, J.).

- 33% of fund minus notice/admin costs: Allen v. JPMorgan Chase Bank, NA, No. 13-

8285 (N.D. Ill. Oct. 21, 2015) (Dkt. No. 93 at 6) (Pallmeyer, J.).

3

Class Counsel’s requested fee also reflects post-Pearson fees approved by other courts in 

non-TCPA cases in this Circuit. Spano v. The Boeing Co., No. 06-743, 2016 WL 3791123 (S.D.

Ill. March 31, 2016) (awarding 33 1/3% of the monetary settlement); McCue v. MB Fin., Inc., 

No. 15-988, 2015 WL 4522564 (N.D. Ill. July 23, 2015) (awarding 33.33% of the fund plus 

costs); Abbott v. Lockheed Martin Corp., No. 06-701, 2015 WL 4398475 (N.D. Ill. July 17, 

2015) (awarding 33.33% of the fund plus costs); Zolkos v. Scriptfleet, Inc., No. 12-8230, 2015 

WL 4275540 (N.D. Ill. July 13, 2015) (awarding 33.33% of the fund plus expenses); Prena v. 

BMO Fin. Corp., No. 15-09175, 2015 WL 2344949 (N.D. Ill. May 15, 2015) (awarding 33.5% 

of the fund after deducting notice costs); Bickel v. Sheriff of Whitley Cnty, No. 08-102, 2015 WL 

 

3 The calculations here are for the first $10 million of the settlement. To the extent that these 

settlements exceeded $10 million, some of the Courts used a diminishing sliding scale. 

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1402018 (N.D. Ind. March 26, 2015) (awarding 43.7% of the fund); In re Dairy Farmers of Am., 

Inc., MDL No. 2031, 2015 WL 753946 (N.D. Ill. Feb. 20, 2015) (awarding 33.33% of the 

fund).4 Consequently, the requested fee award falls in line with numerous other settlements 

approved as reasonable in this Circuit.

3. Other Factors Support the Requested Fee.

Beyond comparisons to similar fee awards and agreements, the market price for legal fees 

“depends in part on the risk of nonpayment a firm agrees to bear, in part on the quality of its 

performance, in part on the amount of work necessary to resolve the litigation, and in part on the 

stakes of the case.” Sutton, 504 F.3d at 693 (quotation and internal marks omitted). Given the 

outstanding result achieved for the benefit of the Settlement Class in this case, considering the 

risk of nonpayment to Class Counsel and extensive resources expended over the years this 

litigation has been pending, Class Counsel respectfully submit that their requested fee is 

reasonable and appropriate under the totality of circumstances, and should be approved. 

a. Risk of Nonpayment 

From changing regulatory precedent and Supreme Court jurisprudence, to the inability to 

establish an absence of predominating individualized issues sufficient for certification of a 

litigation class, Class Counsel faced substantial risk and uncertainty at the outset of this action 

that they would receive no compensation despite investing the time and resources necessary to 

adequately prosecute this case. This risk supports the requested fee award.

“Contingent fees compensate lawyers for the risk of nonpayment. The greater the risk of 

walking away empty-handed, the higher the award must be to attract competent and energetic 

 

4 Synthroid I also says that District Courts may look to any data from pre-suit negotiations and 

class-counsel auctions, but such information is “basically non-existent” in the TCPA context. Kolinek, 

311 F.R.D. 501. 

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counsel.” Silverman v. Motorola Solutions, Inc., 739 F.3d 956, 958 (7th Cir. 2013) (citing 

Kirchoff v. Flynn, 786 F.2d 320 (7th Cir. 1986)). Thus, the risk of non-payment is a key 

consideration in assessing the reasonableness of a requested fee, and must be incorporated into 

any ultimate fee award. See Florin, 34 F.3d at 565 (“[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 their services.... [T]he need for such an adjustment is particularly acute in class 

action suits. The lawyers for the class receive no fee if the suit fails, so their entitlement to fees is 

inescapably contingent.”) (quotations and citations omitted); Sutton, 504 F.3d at 694 (finding 

abuse of discretion where court refused to account for the risk of loss on basis that “class actions 

rarely go to trial and that they all settle[,]” noting that “there is generally some degree of risk that 

attorneys will receive no fee (or at least not the fee that reflects their efforts) when representing a 

class because their fee is linked to the success of the suit[;] ... [b]ecause the district court failed to 

provide for the risk of loss, the possibility exists that Counsel ... was undercompensated”).

In this context, “at the time” is at the start of the case: the Court must “estimate the terms 

of the contract that private plaintiffs would have negotiated with their lawyers, had bargaining 

occurred at the outset of the case (that is, when the risk of loss still existed).” Synthroid I, 264 

F.3d at 718. That is so because “[t]he best time to determine this rate is the beginning of the case, 

not the end (when hindsight alters of the perception of the suit’s riskiness, and sunk costs make it 

impossible for the lawyers to walk away if the fee is too low). This is what happens in actual 

markets.” Id. Thus, because this case was filed in July of 2012, the Court must look at the risks 

associated with the case on that date.

There was no guarantee that the Cruise Defendants might be held vicariously liable for 

the calls in this case; the Dish ruling was issued on May 9, 2013, nine months after the case was 

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filed. Indeed, courts were divided before that time as to whether vicarious liability attaches for 

telemarketing calls like those at issue here. See Charvat v. EchoStar Satellite, LLC, 630 F.3d 

459, 466 (6th Cir. 2010) (“[C]ourts have reached different conclusions about whether an entity 

on whose behalf a call is made can be liable under the [TCPA], announcing different measures 

for determining whether an independent contractor or an agent acts on behalf of a company.”); 

compare Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226, 1243 (S.D. Fla. 

2013) (“Congress chose to provide liability only for those who ‘make’ calls in violation of the 

TCPA.”), rev’d in part, 768 F.3d 1110 (11th Cir. 2014), with Worsham v. Nationwide Ins. Co., 

772 A.2d 868, 878 (Md. App. Ct. 2001) (“[T]he existence of an independent contractor 

relationship ... would not, in itself, insulate [defendant] from liability under the TCPA.”).

Class Counsel agreed to pursue this action on a contingent fee basis without the benefit of 

discovery regarding the size or ascertainability of the asserted class. Class Counsel accepted the 

case despite that contentious class discovery would likely be required, with not only the several

Defendants but also third parties who may have participated in making the calls at issue. Class 

Counsel also accepted the possibility that, given the class period going back several years before 

the suit was filed, and the fact that businesses often purge their call records on a regular basis, 

necessary class call data would likely be difficult to obtain or even destroyed, potentially 

obliterating any ability to identify class members and ultimately obtain class-wide relief.5

Moreover, even assuming sufficient discovery could be obtained, Class Counsel accepted 

the risk that the Court might ultimately deny certification. This is a very real concern, as, for 

example, courts are divided as to whether consent issues predominate over common questions in 

TCPA cases, depending on the circumstances of the case. Compare Jamison v. First Credit 

 

5 This concern proved to be well-founded: Defendants used the absence of historic call recordings 

in this case as a basis for arguing against class certification on an adversarial basis. Dkt. 520 at 29-30.

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Servs., 290 F.R.D. 92, 107 (N.D. Ill. 2013) (finding issues of consent to predominate in TCPA 

action) and Balschmiter v. TD Auto Fin. LLC, 303 F.R.D. 508, 527 (E.D. Wis. 2014) (same), 

with Saf-T-Gard Int’l v. Vanguard Energy Servs., No. 12-3671, 2012 WL 6106714 (N.D. Ill. 

Dec. 6, 2012) (certifying a class in a TCPA action and finding no evidence supported the view 

that issues of consent would be individualized) and Birchmeier v. Caribbean Cruise Line, Inc., 

302 F.R.D. 240, 253 (N.D. Ill. 2014) (same).

And throughout much of this litigation, the FCC was considering numerous petitions, 

many of which were made by industry advocates urging the FCC to loosen prohibitions against 

robocalls like the ones at issue in this case, and the process before the FCC can be unpredictable. 

For example, on October 30, 2014, the FCC issued an order re-confirming its unequivocal prior 

orders that fax advertisements must contain specific language explaining how recipients can 

“opt-out” of receiving more faxes, but providing retroactive immunity for violators that file 

petitions with the FCC—a wholly unexpected and incongruous result from the consumer 

perspective.6 In fact, Judge Zagel stayed this case as to the Cruise Defendants while the FCC

considered the DISH Network petition regarding vicarious liability, a ruling ultimately made in 

consumers’ favor on May 9, 2013.

7 Dkt. 117. On July 10, 2015, the FCC also released an 

omnibus declaratory ruling clarifying numerous relevant issues affecting the TCPA, such as 

consent under the statute.8 And then there were the overhanging Spokeo and Campbell-Ewald 

Co. cases before the Supreme Court affecting standing and defendants’ ability to “pick-off” 

named plaintiffs through a settlement offer or Rule 68 offer of judgment.9 Any of these 

 

6 See http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db1030/FCC-14-164A1.pdf. 7 See https://apps.fcc.gov/edocs_public/attachmatch/FCC-13-54A1_Rcd.pdf. 8 See https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1.pdf. 9 See generally Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016); Campbell-Ewald Co., v. Gomez, 

136 S. Ct. 663 (2016).

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regulatory or legal proceedings could have had severe, negative impact on Plaintiff’s case or the 

ability of Class Counsel to recover any compensation or expenses reimbursement for their years 

of prolonged advocacy on behalf of the Class in this matter.

Success, especially at the outset of this action, was by no means assured. Class Counsel 

accepted that litigating these and other issues risked recovering nothing for the class, Plaintiff, or

counsel, and would have required significant expenditure of time, money, and resources —

including potentially substantial expert expenses — for which Class Counsel would receive 

absolutely no compensation upon losing at summary judgment, class certification, or trial. See In 

re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d 1028, 1035-35 (N.D. 

Ill. 2011) (finding significant risk of nonpayment where, among other reasons, counsel would 

have to overcome case dispositive defenses and certify a class); Jamison, 290 F.R.D. at 102–09

(denying class certification in part because a class-wide determination of consent would require 

“a series of mini-trials”); Green v. DirecTV, Inc., No. 10-117, 2010 WL 4628734, at *5 (N.D. Ill. 

Nov. 8, 2010) (granting summary judgment against TCPA plaintiff). The risk was real. As 

detailed in the accompanying declarations of counsel, plaintiffs’ lawyers lose TCPA cases 

regularly, both through summary judgment and through denial of class certification. (Burke 

Decl. ¶ 13); see, e.g., Donaca v. Dish Network, LLC., 303 F.R.D. 390, 396-402 (D. Colo. 2014)

(denying class certification in TCPA action); Fitzhenry v. ADT Corp., No. 14-80180, 2014 WL 

6663379, at *8 (S.D. Fla. Nov. 3, 2014) (order denying class certification); Brey Corp. v. LQ 

Mgmt. LLC, No. 11-718, 2014 WL 943445, at *1 (D. Md. Jan. 30, 2014). 

One of the primary battles in every TCPA action involves class plaintiffs’ attempts to 

determine the size and scope of the class. Those facts are not (and cannot be) known by 

plaintiffs’ counsel ex ante, and typically require contentious discovery and litigation before ever 

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becoming known. This case is no different; Class Counsel engaged in contested motion practice 

during discovery in an effort to determine the scope of the class. E.g., Dkt. 175, 186. TCPA 

plaintiffs sometimes lose such motions and are unable to proceed on a class basis as a result. 

See, e.g., Gusman v. Comcast Corp., 298 F.R.D. 592, 596–97 (S.D. Cal. 2014) (denying motion 

to compel production of call data). And, as this Court knows, non-settlement class certification in 

this case was particularly adversarial, involving thousands of pages of briefing and multiple 

ancillary motions. Dkt. 492, 520, 521, 530, 531, 547, 548, 551, 553. While Class Counsel were 

successful in fighting off dispositive motions by Defendants, even if the class was certified, 

success at trial was far from guaranteed.

Plaintiff believes that he would have prevailed on these issues, but success was by no 

means assured. Litigating these issues against Defendants would have risked recovering nothing 

for the class, and would have required significant additional expenditure of time, money, and 

resources — including potentially substantial expert expenses — for which Class Counsel would 

not be compensated should they lose on summary judgment or fail to certify a class. See In re 

AT&T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d at 1035–35 (finding class 

counsel incurred significant risk of nonpayment where, among other reasons, class counsel 

would have to overcome case dispositive defenses and certify a class); Jamison, 290 F.R.D. at 

102–09 (denying class certification in part because a class-wide determination of consent would 

require “a series of mini-trials”); Green, 2010 WL 4628734, at *5 (granting summary judgment 

against TCPA plaintiff).

That risk was meaningful. Of course, the facts and circumstances of every case are 

different and must be individually considered and separately analyzed, but it bears noting that 

Class Counsel have lost a number of TCPA class actions without any recovery for the class or 

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receiving any compensation for their fees or costs. (Burke Decl. ¶ 13; McCue Decl. ¶ 12;

Broderick Decl. ¶ 12; Paronich Decl. ¶ 9.) To be sure: Class Counsel do not accept 

representation for cases they do not believe they will prevail in, but litigation is an uncertain and

risky business, and those losses demonstrate such. In light of the considerable risk undertaken by 

Class Counsel in prosecuting this action on a purely contingent fee basis, the requested fee award

is reasonable and should be granted. In re Capital One, 80 F. Supp. 3d at 805 (awarding 6% risk 

premium on top of 30% fee award in TCPA class settlement, where some class members may 

have agreed to be called, there were potential manageability issues in relation to the ability to 

determine from defendants’ records whether class members consented, and FCC petitions 

similarly at issue in this case potentially could have affected the plaintiffs’ claims).

b. Quality of Performance and Work Invested

The quality of Class Counsel’s performance and time invested in fighting through years 

of contested motion practice, substantial discovery, and adversarial negotiations to achieve a $7 

to $12.5 million Settlement Fund for the benefit of the Settlement Class further supports the 

requested fee award. Sutton, 504 F.3d at 693. In addition to accepting considerable risk in 

litigating this action, Class Counsel committed their time and resources to this case without any 

guarantee of compensation, whatsoever, only achieving the Settlement after five years of arduous 

litigation. Each claimant will receive $300 for each of up to three telemarketing calls per phone 

number—an excellent result given that the TCPA itself provides for base statutory damages of 

$500 per violation without any fee shifting. Agr. ¶ 2.49; 47 U.S.C. § 227(b)(3). The Settlement 

also greatly exceeds recoveries in many other TCPA settlements. Indeed, in Kolinek v. Walgreen 

Co., 311 F.R.D. 483, 493-494 (N.D. Ill. 2015), the court approved $30 per claimant, saying it 

was within the range of approved TCPA settlements, citing In re Capital One Tel. Consumer 

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Prot. Act Litig., 80 F. Supp. 3d 781, 789 (N.D. Ill. 2015) (approving $34.60 per claimant), and 

Rose v. Bank of Am. Corp., No. 11-2390, 2014 WL 4273358, at *10 (N.D. Cal. Aug. 29, 2014)

(approving recovery of between $20-$40 per claimant).

Class Counsel are experienced in consumer and class action litigation, including under 

the TCPA. (Burke Decl. ¶¶ 2-10; McCue Decl. ¶¶ 3-9; Broderick Decl. ¶¶ 3-9; Paronich Decl. ¶¶ 

3-6.) Moreover, because they were proceeding on a contingent fee basis, Class Counsel “had a 

strong incentive to keep expenses at a reasonable level[.]” In re Marsh ERISA Litig., 265 F.R.D. 

128, 150 (S.D.N.Y. 2010). Given the outstanding settlement obtained for the class, and the half a 

decade spent in intense, adversarial litigation, zealously advocating on behalf of the class and 

Mr. Charvat, Class Counsel respectfully submit that their experience and the quality and amount 

of work invested in this action for the benefit of the class supports the requested fee award. 

c. Stakes of the Case

The stakes of the case further support the requested fee award. This case involves 

millions of Settlement Class Members who allegedly received unsolicited prerecorded 

telemarketing calls from RMG for the benefit of the Cruise Defendants. The amount each 

Settlement Class Member is individually eligible to recover is low (between $500 and $1,500 per 

call), and thus individuals are unlikely to file individual lawsuits, especially as here each class 

member only received a small number of these telemarketing calls. Indeed, individual litigants 

likely would have to provide proof of calls well beyond what is required here to submit a claim 

and call records may not be available going back to the beginning of the class period, making it 

even less likely that people would file individual lawsuits. A class action is realistically the only 

way that many individuals would receive any relief. In light of the number of Settlement Class 

Members and the fact that they likely would not have received any relief without the assistance 

Case: 1:12-cv-05746 Document #: 579 Filed: 08/07/17 Page 29 of 31 PageID #:22649
23

of Class Counsel, the requested fee is reasonable and should be granted.

V. CONCLUSION

WHEREFORE, Class Counsel respectfully request that the Court grant this motion and 

award Class Counsel attorneys’ fees in the amount of one-third of the Settlement Fund, as well 

as a $211,193.05 reimbursement of their out-of-pocket costs.

Respectfully submitted,

PHILIP CHARVAT, on behalf of himself 

and others similarly situated

Dated: August 7, 2017 By: /s/ Alexander H. Burke

Alexander H. Burke

Email: aburke@burkelawllc.com

Daniel J. Marovitch

Email: dmarovitch@burkelawllc.com

BURKE LAW OFFICES, LLC

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

Telephone: (312) 729‐5288

Facsimile: (312) 729‐5289

Edward A. Broderick

Email: ted@broderick-law.com

Anthony I. Paronich

Email: anthony@broderick-law.com

BRODERICK & PARONICH, P.C.

99 High St., Suite 304

Boston, MA 02110

Telephone: (617) 738-7080

Facsimile: (617) 830-0327

Case: 1:12-cv-05746 Document #: 579 Filed: 08/07/17 Page 30 of 31 PageID #:22650
24

Matthew P. McCue

Email: mmccue@massattorneys.net

THE LAW OFFICE OF MATTHEW P. MCCUE

1 South Avenue, Suite 3

Natick, MA 01760

Telephone: (508) 655-1415

Facsimile: (508) 319-3077

Counsel for Plaintiff and the Settlement Class

CERTIFICATE OF SERVICE

I hereby certify that, on August 7, 2017, I caused the foregoing document to be 

electronically filed with the Clerk of the United States District Court for the Northern District of 

Illinois using the CM/ECF system, which will send notification of such filing to all counsel of 

record.

 /s/ Alexander H. Burke

Case: 1:12-cv-05746 Document #: 579 Filed: 08/07/17 Page 31 of 31 PageID #:22651