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, )

) No. 12-cv-05746

v. )

) Judge Andrea R. Wood

ELIZABETH VALENTE, RESORT )

MARKETING GROUP, INC., CARNIVAL )

CORPORATION & PLC, ROYAL )

CARIBBEAN CRUISES, LTD., and NCL )

(BAHAMAS) LTD., )

)

Defendants. )

MEMORANDUM OPINION

Beginning in 2011, Philip Charvat received a series of prerecorded telemarketing calls 

from Defendant Resort Marketing Group, Inc. and its principal Elizabeth Valente (together, 

“RMG”), promoting travel products and services offered by Defendants Carnival Corporation & 

PLC, Royal Caribbean Cruises, Ltd., and NCL (Bahamas) Ltd. (collectively, “Cruise 

Defendants,” and together with RMG, “Defendants”). Charvat had not consented to receive the 

calls, and so he filed this lawsuit as a putative class action against Defendants for alleged 

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

extensive, often contentious, litigation, the parties reached a classwide settlement for which they

now seek final approval. (Dkt. No. 682.) In addition, Charvat seeks approval for his requested

incentive award (Dkt. No. 580), and his counsel have petitioned for an award of attorneys’ fees 

and costs (Dkt. No. 660). Three objectors have also moved for their own incentive awards (Dkt. 

No. 693) and attorneys’ fees for their counsel (Dkt. No. 691). For the reasons explained below, 

the Court grants final approval of the class settlement, grants Charvat’s petitions for attorneys’ 

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and costs and for an incentive award (albeit the latter at a reduced amount than requested), and 

denies the objectors’ motions for attorneys’ fees and incentive awards.

BACKGROUND

The TCPA prohibits the use of “any automatic telephone dialing system or an artificial or 

prerecorded voice” to call cellular and landline phones without prior express consent from the 

recipient of the calls or messages. 47 U.S.C. §§ 227(b)(1)(A), (B). The statute also establishes a 

private right of action—for each violation, a consumer may recover $500 in damages, with the 

damages amount increasing to up to $1,500 if a court finds that the defendant “willfully or 

knowingly violated” the TCPA. Id. § 227(b)(3).

In this case, Charvat alleges that, as part of an extended robocalling campaign, RMG, a 

travel agency, repeatedly called his phone with a prerecorded message informing him that he had 

been selected to receive a cruise with one of the Cruise Defendants. The Cruise Defendants 

maintain that RMG made those automated, prerecorded phone calls without informing them or 

obtaining authority to do so. Charvat filed his original class action complaint on July 23, 2012. 

That initial complaint was followed by the First Amended Complaint, the Second Amended 

Complaint, and finally, the Third Amended Complaint, which was filed April 1, 2016. After 

extensive fact and expert discovery, Charvat moved for class certification in May 2016. (Dkt. 

No. 492.) Briefing for the class certification motion spanned several months and generated over 

3,000 pages of material. Then, while the class certification motion was pending in early 2017, 

the parties requested and were granted a stay of the proceedings to permit them to participate in a 

private settlement mediation. Although the mediation in March 2017 did not immediately result 

in a settlement, the parties continued to engage in settlement discussions and subsequently 

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informed the Court in April 2017 that they had reached an agreement-in-principle for a classwide 

settlement.

On June 7, 2017, Charvat moved for preliminary approval of the settlement. The Court 

granted preliminary approval on July 6, 2017, after an in-court hearing where the terms of the 

settlement and the parties’ proposed plan for providing notice to class members was discussed at 

length. (Dkt. No. 576.) The settlement agreement requires that Defendants establish a common 

settlement fund of $12,500,000.1 From that fund, Class Counsel seek payment of $3,150,000 in 

attorneys’ fees, reimbursement of expenses in the amount of $207,548, and an incentive award 

for Charvat of $50,000. Additionally, the settlement agreement allocates $3,000,000 for costs 

incurred by the Settlement Administrator, KCC Class Action Services LLC (“KCC”), in 

connection with processing and analyzing claims. The settlement would permit a claimant to 

recover for up to three calls per telephone number, with a maximum value for each call set at 

$300. Although an individual claimant could potentially recover a maximum of $900 under the 

terms of the agreement, any actual recovery will be reduced pro rata because the number of 

submitted claims exceeds $12,500,000. The final average amount per claimant is therefore likely 

to be $22.17, with each call valued between $7.41 and $8.42. 

Between the preliminary approval hearing and the final fairness hearing on October 30, 

2018, the Court held several interim hearings to ensure that the distribution of class notice and 

general claim process were progressing appropriately and that the interests of class members 

were being addressed in a timely and fair manner. Of particular concern was the extensive 

publicity the settlement received through national and local news outlets, which misleadingly 

 

1The settlement agreement establishes a settlement fund of between $7,000,000 and $12,500,000. Under 

the terms of the agreement, the actual amount of the settlement fund depends on the number of valid 

claims filed. As a result of the high number of approved claims, the settlement fund will max out at 

$12,500,000.

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reported that each class member would receive $900. In actuality, the $900 figure represented the 

maximum amount a class member could receive, with the actual amount of each class member’s 

recovery dependent on the number of valid claims submitted. The misleading press coverage 

resulted in a response rate from class members much greater than the parties had anticipated (and 

thus reduced the anticipated recovery per claim) and raised a risk of fraud in the claim process. 

To address these issues, the Court approved a plan for providing supplemental notice to class 

members explaining further the claim process and for verifying claims through a request for 

supplemental documentation. (Order Amending Publication Notice Plan, Dkt. No. 596; Order 

Authorizing Follow Up Documentation, Dkt. No. 620.) 

Thirty-one separate objections were submitted to the Court in advance of the final 

approval hearing. The objections address several subjects: (1) the claim verification and 

supplemental documentation processes, (2) the settlement’s limitation allowing recovery for no 

more than three violations, (3) the amount of the anticipated per-claim payment, (4) the total 

amount of the settlement fund, (5) Charvat’s suitability as class representative, (6) Charvat’s 

proposed incentive fee, and (7) Class Counsel’s proposed attorneys’ fees. Most of the objections, 

however, take issue with the supplemental documentation process, with the next most common 

issue being Charvat’s proposed incentive fee. The Court will discuss the objections in greater 

detail below. 

At the final approval hearing on October 30, 2018, the Court heard arguments from 

objectors as well as the parties, heard testimony from Charvat, and requested two supplemental 

post-hearing filings. (Dkt. No. 707.) Specifically, the Court requested that (1) KCC provide a 

detailed accounting of its fees, costs, and expenses incurred in administering the claims, and (2) 

Class Counsel file an affidavit attesting to whether objectors who claimed to have had difficulty 

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complying with claim submission or verification process were deemed to have submitted a valid 

claim. Both supplements were filed with the Court in November 2018. (Dkts. No. 709, 711, 712.)

Having considered the extensive record before it, the Court now concludes that the proposed 

classwide settlement satisfies the requirements of Federal Rule of Civil Procedure 23.

DISCUSSION

I. Class Certification

The Court first considers whether the following class should be certified for settlement 

only: 

All 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.

“Confronted with a request for settlement-only class certification, a district court need not 

inquire whether the case, if tried, would present intractable management problems, for the 

proposal is that there be no trial.” Smith v. Sprint Commc'ns Co., L.P., 387 F.3d 612, 614 (7th 

Cir. 2004) (internal citations omitted). But settlement-only actions cannot evade the requirements 

of Rule 23, as “[f]ailure to meet any one of the requirements of Rule 23 precludes certification of 

a class.” Harriston v. Chi. Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). 

To grant class certification under Rule 23, the Court must be “satisfied, after a rigorous 

analysis” that the Rule’s requirements are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 

350–51 (2011). Failure to meet a single one of these requirements precludes class certification. 

Harper v. Sheriff of Cook Cty., 581 F.3d 511, 513 (7th Cir. 2009). To be certified, a proposed 

class must first satisfy the four requirements of Rule 23(a): “(1) the class is so numerous that 

joinder of all members is impracticable; (2) there are questions of law or fact common to the 

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class; (3) the claims or defenses of the representative parties are typical of the claims and 

defenses of the class; and (4) the representative parties will fairly and adequately protect the 

interests of the class.” Fed. R. Civ. P. 23(a). If Rule 23(a) is satisfied, the proposed class must 

then satisfy at least one of the three categories listed in Rule 23(b); in this particular instance, the 

category of cases “in which the common questions predominate and class treatment is superior.” 

Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); Spano v. Boeing Co., 633 F.3d 574, 

583 (7th Cir. 2011).

A. Rule 23(a) requirements

Class certification requires the party seeking certification to demonstrate, by a 

preponderance of the evidence, that the putative class satisfies all four requirements of Federal 

Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and adequacy of 

representation. Numerosity is generally satisfied when there are at least forty members in the 

putative class. See Kolinek v. Walgreen Co., 311 F.R.D. 483, 491 (N.D. Ill. 2015); Pruitt v. City 

of Chicago, 472 F.3d 925, 926–27 (7th Cir. 2006). A plaintiff can show commonality by 

demonstrating the class members “have suffered the same injury.” Wal-Mart Stores, Inc., 564 

U.S. at 350. Class members need not have identical claims: what matters is these claims “depend 

upon a common contention” of such a nature that determination of its “truth or falsity will 

resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

Typicality is satisfied when the named plaintiff’s claim “arises from the same event or practice 

or course of conduct that gives rise to the claims of other class members and is based on the 

same legal theory.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (internal citation 

omitted). Finally, the plaintiff must meet the adequacy of representation requirement by showing 

that (1) class counsel is qualified, experienced, and capable of conducting the litigation and (2) 

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the named plaintiff’s interests are not antagonistic to other class members. See Rosario v. 

Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). 

First, there is no question the proposed class meets the numerosity requirement. Over 

270,000 claims have been approved by the parties, and many more would may have been eligible 

for a payment. Second, commonality is satisfied by the shared nature of the injury common to all 

class members: receipt of at least one unwanted automated call or voicemail promoting the 

products of the Cruise Defendants. The claims of all class members depend on resolving 

common questions, such as whether the calls made by RMG used an “artificial or prerecorded 

voice” within the meaning of the TCPA and whether TCPA statutory damages would be 

available. Third, Charvat’s claims are typical of class members, as he claims that Defendants 

violated the TCPA when RMG sent automated calls promoting the Cruise Defendants’ products 

to thousands of phone numbers. Any minor factual variations (such as receipt of the calls on a 

landline instead of a cell phone) are immaterial to the key question of whether the TCPA claims 

arise from the same course of conduct and share a common legal theory. 

Finally, Charvat is an adequate representative of the class. He claims Defendants made 

unwanted calls to his telephone number in violation of the TCPA, giving him standing to sue.

Some objectors assert that Charvat’s interests are not aligned with those of the settlement class 

because Charvat has been involved in many TCPA cases and seeks a high incentive award, while 

other class members are likely to receive significantly smaller amounts. Objector Fruchter asserts 

that Charvat is additionally unsuitable because he received the automated calls on a landline 

instead of a cell phone and would face potential defenses or counterclaims unique to him alone 

(such as a potential counterclaim for recording the robocalls). (Dkt. No. 604.) 

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The Court finds these arguments unpersuasive. Charvat’s involvement in other cases does 

not mean he was injured any less when he received the unwanted phone calls at issue here. That 

he received similar or identical messages on a landline phone instead of a cell phone does not 

makes the calls any less of a TCPA violation. Moreover, Charvat’s decision to record the phone 

calls benefited the settlement class by providing them with evidence of the extent and nature of 

the TCPA violations. Similarly, Charvat’s frequent participation in TCPA cases does not make 

his injury any less real simply because he has suffered similar ones in earlier cases. Additionally, 

Charvat made his request for an incentive award after he had already participated in years of 

litigation, including seeking and responding to discovery requests and sitting for a deposition. 

While he is likely to receive a higher payout than other class members, this goes hand in hand 

with Charvat incurring a higher risk by agreeing to be the named plaintiff in the case. Given his 

efforts to advocate for the class—whether by participating in discovery or testifying at the final 

approval hearing—the Court does not find that Charvat has any conflicts of interest that would 

prevent him from representing the class adequately. Finally, Class Counsel is adequate in that 

they are experienced in class actions and, in particular, TCPA litigation.

Accordingly, the Court finds that the Rule 23(a) requirements have been met.

B. Rule 23(b) requirements

Rule 23(b) provides the circumstances under which a class action may be maintained 

after satisfying the requirements of Rule 23(a). Charvat relies specifically on Rule 23(b)(3) for 

certification. A proposed class satisfies Rule 23(b)(3) if “the questions of law or fact common to 

class members predominate over any questions affecting only individual members” and “a class 

action is superior to other available methods for fairly and efficiently adjudicating the 

controversy.” Fed. R. Civ. P. 23(b)(3). This inquiry “tests whether proposed classes are 

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sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. 

Windsor, 521 U.S. 591, 623 (1997). Relevant factors include “(A) the class members' interests in 

individually controlling the prosecution or defense of separate actions; (B) the extent and nature 

of any litigation concerning the controversy already begun by or against class members; (C) the 

desirability or undesirability of concentrating the litigation of the claims in the particular forum; 

and (D) the likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3).

The Rule 23(b)(3) requirements are satisfied here. The common questions speak to issues

at the heart of each individual claim: whether the claimant is eligible for TCPA damages for a 

robocall and whether the call itself meets the definition of an automated, prerecorded call as 

defined by the TCPA. A single adjudication resolves all of these claims. Moreover, given the

likelihood that damages would be limited to a few hundred dollars at most, it is unlikely class 

members would have much interest in controlling the prosecution of separate actions. Extensive 

litigation had not yet occurred with respect to the injuries suffered by the class members here 

when Charvat brought his lawsuit. And given the shared nature of the unwanted calls and 

voicemails, it is unlikely that managing a class action would prove to have any special 

difficulties: the claims are so similar in nature that a class action seems the most straightforward 

way of resolving them. In short, the common questions do represent a significant aspect of the 

case, they can be resolved on classwide basis, and they predominate over individual issues. The 

proposed class therefore satisfies Rule 23(b)(3).

II. Approval of Proposed Settlement

Having determined that certification of a settlement-only class is appropriate, the Court 

turns to the specifics of the settlement proposed here. This Court may approve a settlement 

binding class members only if it determines, after proper notice and a public hearing, that the 

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proposed settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1)-(2). In making 

this determination, Rule 23(e)(2) requires the Court to consider whether (1) the class 

representatives and class counsel have adequately represented the class, (2) the proposal was 

negotiated at arm’s length, (3) the proposal treats class members equitably relative to each other, 

and (4) the relief provided by the settlement is adequate. Fed. R. Civ. P. 23(e). In addition, courts 

in the Seventh Circuit consider the following five factors: (1) the strength of the plaintiffs’ case 

compared against the amount of the defendants’ settlement offer; (2) the complexity, length, and 

expense of continued litigation; (3) the amount of opposition to the settlement; (4) the opinion of 

experienced counsel; and (5) the stage of the proceedings and the amount of discovery 

completed. Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006)

(internal citation omitted). In making their decisions, courts should “consider the facts in the 

light most favorable to settlement.” Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996) (internal 

quotation marks omitted). This does not mean a court should rubberstamp a settlement 

agreement, however; instead, courts must remain vigilant for any evidence of collusion between 

the defendants, the named plaintiff, and class counsel. See Eubank v. Pella Corp., 753 F.3d 718, 

720 (7th Cir. 2014).

A. Adequacy of Representation of the Class

The Court finds that Charvat has represented the class diligently as the named plaintiff: 

he sat for a deposition, responded to discovery requests, and assisted Class Counsel throughout 

the litigation. For their part, Class Counsel zealously represented the class throughout the action,

including through a lengthy and contentious discovery period that involved serving several sets 

of discovery requests on Cruise Defendants, drafting seven motions to compel (and defending 

against several others), and participating in no less than fifteen depositions. Class Counsel also 

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prepared for and attended mediation when it appeared to be a feasible route to a satisfactory 

settlement; and although the mediation itself did not conclude with a settlement, Class Counsel 

pursued negotiations afterward that led to the proposed settlement before the Court today. The 

Court finds that Class Counsel more than adequately represented class members.

B. Arm’s Length Negotiations

The record reflects that the proposed settlement here was negotiated at arm’s length after 

a lengthy period of litigation. Unlike many class action settlements in which settlement 

negotiations begin before discovery even takes place, this case was contested through an

adversarial and contentious process. The parties attended a full day of mediation that, after 

initially failing to result in a settlement, finally jumpstarted negotiations between the parties. The 

settlement agreement contains no red flags that would lead the Court to think the settlement 

agreement resulted from anything other than good faith arm’s length negotiations.

C. Equitable Treatment of Class Members

The proposed settlement allows each class member to recover for up to three illegal calls 

per telephone number. Since class members may have received more than three unwanted calls, 

some may contend that this represents an unfair outcome. Indeed, Objector Schilling complains 

that the settlement is unfair for precisely this reason. But capping the recovery is reasonable—

without such a provision, a relatively small number of class members could swallow up a 

significant portion of the settlement fund, resulting in a smaller per-claimant payout for a 

relatively minor actual injury. A business or institution, for instance, that filed claims for calls 

made to employees’ cell phones or landlines might claim entitlement to several thousand dollars 

of a limited settlement fund. Class Counsel’s decision to cap recovery at three requests per 

claimant is a reasonable way of ensuring that every individual claimant has the best possible 

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payout. Moreover, the ability to opt out of the settlement allows class members who received 

more than three calls to pursue the possibility of a greater award in an individual suit. The Court 

thus finds that the proposal is equitable for class members. 

D. Adequacy of Relief

In considering whether the relief provided by the settlement is adequate, Rule 23(e)(2) 

instructs the Court to take into consideration the costs, risks, and delay of trial and appeal; the 

effectiveness of the proposed method of distributing relief; the terms of any proposed award of 

attorneys’ fees; and any agreements made in connection with the proposed settlement. Fed. R. 

Civ. P. 23(e)(2). Since the factors articulated by the Seventh Circuit subsume most of these 

factors, the Court will consider the adequacy of the settlement’s relief against the background of 

the factors. See Snyder v. Ocwen Loan Servicing, LLC, 14-cv-8461, 2019 WL 2103379, at *5 

(N.D. Ill. May 14, 2019).

1. Strength of Case against the Settlement Offer

The “strength of plaintiffs’ case on the merits balanced against the amount offered in the 

settlement” is the most important factor for determining whether a proposed settlement is fair 

under Rule 23(e). Synfuel, 463 F.3d at 653. The Court must “estimate the likely outcome of a 

trial” in assessing whether a settlement adequately disposes of the case. Eubank, 753 F.3d at 727.

As it currently stands, the settlement requires the Cruise Defendants to pay $12,500,000 into a 

common settlement fund. After deducting attorneys’ fees, costs, administrative expenses, and an 

incentive award for Charvat, the 274,851 class members who submitted timely claims will 

receive their pro rata share of the settlement fund, which amounts to an average of $22.17 per 

claim. 

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As some objectors note, that recovery is significantly below the $500 recovery available 

under the statute for each call, or $1,500 per call for violations willfully or knowingly 

committed. 47 U.S.C. § 227(b)(3). But a settlement does not need to provide the class with the 

maximum possible damages in order to be reasonable. See, e.g., Douglas v. Western Union Co., 

328 F.R.D. 204, 215 (N.D. Ill. 2018) (approving TCPA settlement providing $95.90 per 

claimant). Here, individual class members will receive compensation without suffering more 

than a few calls or having to endure the time, expense, and uncertainty of litigation. While the 

average consumer payout of $22.17 is not anywhere the statutory maximum, it is also not out of 

line with other approved TCPA class action settlements. See, e.g., Kolinek, 311 F.R.D. 493 

(average award of $30 per claimant); In re Capital One Tel. Consumer Prot. Act Litig., 80 F. 

Supp. 3d 781 (N.D. Ill. 2015) (average award of $39.66 each); Rose v. Bank of Am. Corp., 12-cv04009, 2014 WL 4273358 at *10 (N.D. Cal. Aug. 29, 2014) (discussing range of acceptable 

TCPA settlements and approving $20.00 to $40.00 per claimant). And given the extensive

publicity received by the case and the surge in claimants that resulted, it is not surprising that the 

average payout is on lower end of approved TCPA class action settlements. Simply put, while 

certain objectors correctly note that the average recovery per claimant is well below the $500 

statutory recovery available for each call (or $1,500 if the violations were willful or knowing), 

the inability to pay every injured plaintiff the absolute statutory maximum does not reflect a 

failure of the settlement itself. See 47 U.S.C. 227(b)(3). 

Moreover, even if the amount of the recovery per class member is less than what one 

might typically expect in a TCPA case, the typical recovery in these cases is still only in the 

realm of a few dozen dollars. Regardless of class members’ recoveries, the settlement still serves 

the purpose of punishing Cruise Defendants for their role in the controversy. That is, regardless 

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of what class members receive, Defendants are still paying the same substantial amount of 

$12,500,000. The settlement serves as a deterrent to potential future defendants who might think 

twice about violating the TCPA in an effort to boost business.

Additionally, the Court notes that absent a settlement, each of the parties would face very 

real litigation risk at trial. Charvat, for instance, may well have failed to prevail at trial, as his 

claims were predicated on the notion that the Cruise Defendants were vicariously liable for 

RMG’s actions in sending the telemarketing calls. Should the Court or a jury have found that 

RMG was not acting as an agent for the Cruise Defendants, not a single member of the class 

would have received any payment. In sum, although the matter was not actually litigated, the 

Cruise Defendants had at least one colorable argument that could very well have foreclosed any

recovery at all. On the other hand, the Cruise Defendants faced the risk of paying more at trial if 

Charvat and the class members prevailed. There is no reason to believe the parties failed to take 

these considerations into account when choosing to settle this case. Given the above, the Court 

concludes that this factor weighs in favor of approving the settlement.

2. Complexity, Length, and Expense of Future Litigation

The Court must consider the likely complexity, length, and expense of continued 

litigation. Synfuel, 463 F.3d at 653. Here, while the parties exchanged a substantial amount of 

discovery, they had not yet proceeded to filing motions for summary judgment or preparing for 

trial.2 Given the course of this litigation, it is reasonable to assume that summary judgment and 

pretrial issues would be hotly contested. As a result, any relief to class members would still be 

far down the road and may ultimately be entirely denied. Approving the proposed settlement 

 

2 While Charvat filed a motion for summary judgment as to a counterclaim raised by the Cruise 

Defendants (Dkt. No. 169), the parties shortly thereafter stipulated to the voluntary dismissal of the 

counterclaim and the motion was terminated. (Dkt. No. 193.)

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agreement will end the case and cause benefits to flow in short order. In sum, the Court finds that 

the stage of proceedings supports approving the settlement.

3. Amount of Opposition

“Significant opposition to a proposed settlement by interested parties should signal to a 

court that the settlement should not be approved.” Kolinek. 311 F.R.D. at 495 (citing Synfuel 

Techs., 463 F.3d at 653). Courts assess whether opposition levels are “low” by comparing the 

number of objectors and opt-outs to the number of individuals reached by the notice plan. 

Kolinek, 311 F.R.D. at 495. Opt-out and objection rates below 0.01% suggest that a settlement is 

reasonable. In re Sw. Airlines Voucher Litig., 11-cv-8176, 2013 WL 4510197, at *7 (N.D. Ill. 

Aug. 26, 2013); see also In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1021 (N.D. 

Ill. 2000) (finding the fact that more than “99.9% of class members have neither opted out nor 

filed objections” to be “strong circumstantial evidence in favor of the settlements”). 

Here, as the settlement administrator, KCC initially received over 2.7 million claims, 

with 274,851 of those claims ultimately accepted as valid. A total of 287 class members opted 

out of the settlement and thirty-one objections were filed with the Court. That means only 

0.001% of valid claimants chose either to opt out of the settlement or file an objection. Such a 

low percentage of opposition strongly suggests that the settlement is fair, reasonable, and 

adequate. While Objectors Johnson and Shelton contend that objections are underreported 

because the process was “difficult” and public perception led class members to think they could 

not object, the Court finds this to be unlikely. Thirty-one class members, including Johnson and 

Shelton, managed to file objections, including several individuals who did so pro se, which 

suggests that the process was readily accessible to class members. Moreover, the publicity the 

case received and the effort undertaken by Class Counsel to keep class members informed 

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through a regularly updated website meant that potential claimants had many avenues to become 

aware of their options with respect to participating in the case.

The Court also notes that the bulk of objector arguments focus on two issues: (1) the 

burden placed on class members in complying with the supplemental proof process, and (2) the 

failure of the settlement to award members the statutory maximum of $500 per call. The Court 

does not find that the burden placed on class members in complying with the supplemental proof 

process was terribly substantial. Claimants had to submit some form of documentation, such as a 

phone bill or copy of a phone directory page, to show ownership, use, or subscription to the 

phone number relating to the claim. Claimants were permitted to redact private account 

information and supporting documents only needed to be emailed or uploaded to a particular 

webpage. The supplemental proof process was a necessary procedure for safeguarding the 

integrity of the claim process: after the case received heavy publicity in the media, the parties 

adopted this procedure to vet the high volume of claims submitted and protect the settlement 

class from any potential fraud.

With respect to the payout rate, the Court appreciates that some class members may be 

unhappy about receiving approximately $22.17 per claim. Moreover, many claimants likely 

gained notice of their claims by reading the third-party media reports that suggested, rather 

misleadingly, that claimants would receive $900. But the surge of claimants that resulted from 

the press coverage was not a situation created by the parties. For most individuals, the experience 

of receiving the recorded calls or messages at issue lasted only seconds. No demands were made, 

no money exchanged hands, and not one objector has indicated how any of the calls could be 

considered distressing. Given the low harm experienced by class members, the Court finds 

objector concerns regarding the low payout rate to be unwarranted.

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4. Opinion of Competent Counsel

The opinion of competent counsel is relevant in determining whether a class action 

settlement is fair, reasonable, and adequate. Synfuel Techs., 463 F.3d at 653. Class Counsel here 

are experienced TCPA litigators who strongly support the settlement. This factor weighs in favor 

of the settlement.

5. Stage of Proceedings and Amount of Discovery Completed

Finally, courts should consider the stage of proceedings and the amount of discovery 

completed in order to determine “how fully the district court and counsel are able to evaluate the 

merits of plaintiffs’ claims.” Armstrong v. Bd. Of Sch. Dirs. Of City of Milwaukee, 616 F.2d 305, 

325 (7th Cir. 1980). Here, the parties engaged in a substantial amount of discovery over the 

course of multiple years. Simply put, the parties have completed enough discovery to place a 

reasoned value on their respective positions and litigation risk. This factor weighs in favor of 

settlement.

6. Absence of Collusion

In addition to the above factors, the Seventh Circuit has emphasized the importance of 

constant vigilance regarding collusion in class action settlements. See Redman v. RadioShack 

Corp., 768 F.3d 622, 637 (7th Cir. 2014) (noting the danger of collusion should district court 

judges fail to apply intense scrutiny to settlements). The danger is especially salient in class 

action suits, where “the class has limited ability to hold accountable either the named plaintiffs or 

class counsel.” Douglas, 328 F.R.D. at 216. Courts must be on the lookout for deals that promote 

“the self-interest of both class counsel and defendant” but fail to provide adequate compensation 

for the class. Eubank, 753 F.3d at 720. 

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Here, the record provides no basis from which to conclude that the proposed settlement 

resulted from collusion between or among the parties. To the contrary, the parties have been 

embroiled in contentious litigation for several years. The parties quarreled over the extent of 

discovery and briefed several motions to compel during the discovery period, prepared for and 

attended an unsuccessful mediation, and presented oral argument at well over a dozen motion 

hearings. In sum, the Court finds that nothing on the record suggests the proposed settlement has 

been tainted by collusion.

7. Objections to the Settlement

Thirty-one individuals have submitted objections arguing that the Court should either 

modify or not approve the proposed settlement. The Court has addressed some of the objectors’

arguments above in analyzing the factors for approval of a proposed class settlement and will 

address those concerning the incentive award for Charvat and Class counsel’s attorneys’ fees and 

costs below. The Court focuses here on the remaining objections.

Three objectors take issue with the administrative costs for this case, which they contend 

are excessive and not fully documented. (Dkt. Nos. 671, 672.) These concerns, however, were 

addressed by the Court at the final approval hearing: the Court noted that costs had increased 

significantly, and while that was not necessarily an indicator that anything was amiss, it did not 

appear that KCC had fully documented the work associated with the additional administrative 

steps taken to effect notice and vet potential claimants. The Court requested that KCC provide a 

detailed accounting of all expenses. Since then, KCC has filed an additional affidavit and records 

documenting the particular work associated with each set of costs. (Cooper Dec., Dkt. No. 711; 

KCC Exhibits, Dkt. No. 712.) Exhibit B of KCC’s Exhibits, for instance, documents everything 

from the cost of postage for the initial mailing to the website hosting fees to the cost of 

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processing claims. (Exh. B, KCC Exhibits, Dkt. No. 712.) Phil Cooper, the Senior Project 

Manager at KCC, also submitted a declaration providing detailed information regarding the 

specific tasks KCC undertook to respond to potential claimants following the misleading media 

coverage of the notice efforts. (Cooper Dec., Dkt. No. 711.) The Court recognizes that the scope 

of KCC’s assignment as Settlement Administrator changed significantly with the increased 

number of claimants and the additional vetting requirements imposed by the parties and the 

Court. The parties and KCC represent that KCC chose to cap its expenses at $3,000,000 in 

administering the settlement to preserve the settlement fund for class members. The Court finds 

that KCC’s response provides adequate assurance that the Settlement Administrator devised and 

implemented an acceptable procedure for providing multiple rounds of notice to potential 

claimants and weeding out potentially fraudulent claims.

Some objectors are nonetheless unhappy with the supplemental verification process 

implemented by the parties to guard against fraud. Some, for instance, contend that they no 

longer have phone bills and therefore could not provide evidence to support that their older 

phone numbers were eligible for claims. Others contend they provided additional documentation 

but received no response. While the Court understands that the process of acquiring records may 

have required more effort from potential claimants than in a typical TCPA case, the 

supplemental proof process was necessary to safeguard the settlement from the risk of fraud. 

And courts have discretion to impose additional verification requirements on class members as 

part of the proof process in a class action settlement. Saltzman v. Pella Corp., 257 F.R.D. 471, 

476 (N.D. Ill. 2009) (members asked to verify class membership by submitting photographs of 

damage). The process implemented in this case ensured only legitimate claims would receive a 

payout from the settlement fund, which in turn kept the per person payout from reducing further. 

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Moreover, the objections were filed before the supplemental proof process had concluded: 

objectors therefore had time to reach out to Class Counsel to work out an arrangement for 

providing evidence of a connection to a phone number. Indeed, Class Counsel have represented

that they had contacted all objectors and, to the extent necessary, provided guidance regarding 

what supporting documentation would suffice, extended time for objectors to send in documents, 

and otherwise attempted to facilitate the supplemental proof process for class members. 

Moreover, the parties had extensive discussions both in and out of court about how to implement 

additional verification requirements without inflating the cost of implementing the settlement or 

discouraging potential claimants. Therefore, although the Court fully considers the concern 

raised by objectors, it finds that the supplemental proof process was fully warranted and 

implemented in the fairest possible manner.

Objectors Johnson and Shelton contend that Class Counsel prejudiced the class by 

negotiating a settlement based on a smaller class of 40,000 when the actual class had more than 

2,000,000 potential members. But the Court disagrees that this result reflects poor performance 

by Class Counsel. All the parties were surprised that media outlets seized upon statutory 

provisions for relief while failing to pay attention to the terms of the actual settlement. Given that 

counsel on both sides have a long history working in class action litigation, the Court credits

their assertions that it was reasonable to expect a smaller class size. To the extent individuals feel 

misled due to third-party representations not endorsed by either counsel, such frustrations do not 

speak to the question of whether the settlement itself is fair. 

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III. Charvat’s Incentive Award

Charvat also seeks approval of an incentive award of $50,000 to reward him for his 

participation as the named plaintiff in the suit. “Incentive awards are justified when necessary to 

induce individuals to become named representatives.” In re Synthroid Mktg. Litig., 264 F.3d 

712, 722 (7th Cir. 2001). Such an award compensates a named plaintiff for subjecting himself to 

various risks, including the burdens of discovery and potential responsibility for a defendant’s 

costs or attorneys’ fees should the suit fail. Espenscheid v. DirectSat USA, LLC, 688 F.3d 872, 

875 (7th Cir. 2012). In deciding whether an incentive award is proper and, if so, in what amount, 

courts should consider “the actions the plaintiff has taken to protect the interests of the class, the 

degree to which the class has benefitted from those actions, and the amount of time and effort the 

plaintiff expended in pursuing the litigation.” Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 

1998).

Here, the Court concludes that an incentive award to Charvat is appropriate. Charvat

chose to bear the risk of being the named plaintiff and stayed involved throughout a lengthy 

discovery process. Charvat should be rewarded for his service to the class. That said, the Court 

finds the requested $50,000 to be excessive. Incentive awards for class action plaintiffs are 

usually modest in nature for good reason: the plaintiff’s duties are not arduous in nature and the 

risk of incurring liability is small. Espenscheid, 688 F.3d at 877. An award of $50,000 would be 

a significant outlier for a named plaintiff in a TCPA consumer class action. In this District, 

courts routinely grant such plaintiffs incentive awards of only $5,000. See Douglas, 328 F.R.D. 

at 219; Kolinek, 311 F.R.D. at 503; In re Capital One Tel. Consumer Prot. Act Litig., 80 F. Supp. 

3d at 809.

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However, unlike most named TCPA plaintiffs, Charvat’s participation in the discovery 

process was extensive and included sitting for a seven-hour deposition. Charvat has endured 

several years of discovery, scrutiny, and inconvenience in pursuit of this case. Under these 

circumstances, the Court believes an incentive award of $25,000 is appropriate. See Craftwood 

Lumber Co. v. Interline Brands, Inc., 11-cv-4462, 2015 WL 1399367, at *6 (N.D. Ill. Mar. 23, 

2015) (awarding a $25,000 incentive fee for a plaintiff who assisted significantly during 

discovery, attended multiple mediations, and regularly communicated with counsel about 

strategy). This amount recognizes that Charvat’s participation in this litigation was greater than 

that experienced by the typical TCPA plaintiff but does not

IV. Attorneys’ Fees and Costs

To determine whether a requested fee award is reasonable, courts “must balance the 

competing goals of fairly compensating attorneys for their services rendered on behalf of the 

class and of protecting the interests of the class members in the fund.” Skelton v. Gen. Motors 

Corp., 860 F.2d 250, 258 (7th Cir. 1988). The relevant ratio for assessing the reasonableness of 

attorneys’ fees “is the ratio of (1) the fee to (2) the fee plus what the class members received.”

Redman, 768 F.3d at 630. See also Pearson v. NBTY, Inc., 772 F.3d 778, 781 (7th Cir. 2014). In

the Seventh Circuit, there is a presumption that “attorneys’ fees awarded to class counsel should 

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

their counsel.” Id. at 782. This is a “common fund” case in which Defendants are paying a 

specific sum in exchange for a release of liability to all Plaintiffs; as such, in determining an 

appropriate attorneys’ fee award, the Court should “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 at 718. 

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Class Counsel here request an award of attorneys’ fees in the amount of $3,150,000. 

After subtracting administrative costs and a $25,000 incentive award for Charvat as named 

plaintiff, that amounts to 33.99% of the net settlement fund. Class Counsel request the Court 

calculate this award by using a percentage-of-the-fund method—that is, determining what fee 

arrangement the parties would have otherwise bargained for at the outset of litigation based on a 

percentage of the plaintiffs’ ultimate recovery. See Silverman v. Motorola Sols., Inc., 739 F.3d 

956, 957–58 (7th Cir. 2013). To determine the reasonableness of the requested award, the Court 

must determine what “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” should be. In re Synthroid Mktg. 

Litig., 264 F.3d at 718.

In class action cases, attorneys’ fees “should approximate the market rate that prevails 

between willing buyers and willing sellers of legal services.” Silverman, 739 F.3d at 947. The 

goal in awarding a reasonable attorneys’ fee award “is to give the lawyer what he would have 

gotten in the way of a fee in an arm’s length negotiation, had one been feasible.” In re Cont’l Ill. 

Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992). In calculating such an award, the Court “must 

assess the value of the settlement to the class and the reasonableness of the agreed-upon 

attorneys’ fees for class counsel, bearing in mind that the higher the fees the less compensation 

will be received by the class members.” Redman, 768 F.3d at 629. Factors bearing on the market 

price for legal fees may include “the risk of nonpayment, the quality of the attorney’s 

performance, the amount of work necessary to resolve the litigation, and the stakes of the case.” 

Camp Drug Store, Inc. v. Cochran Wholesale Pharm., Inc., 897 F.3d 825, 833 (7th Cir. 2018). 

Since such an estimate is “inherently conjectural,” the Seventh Circuit leaves to the discretion of 

district courts the decision whether to use the lodestar or percentage-of-fund approach to 

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calculate attorneys’ fees in common-fund cases. Florin v. Nationsbank of Ga., N.A., 34 F.3d 560, 

566 (7th Cir. 1994). 

The Court agrees with Class Counsel that using the percentage-of-recovery method is 

preferable to the lodestar method in this instance. The “normal practice in consumer class 

actions” is to negotiate a fee arrangement based on a percentage of recovery. In re Capital One, 

80 F. Supp. 3d at 795. See also Kolinek v. Walgreen Co., 311 F.R.D. 483, 501 (7th Cir. 2015)

(noting a large class of lightly-injured plaintiffs would be unlikely “to monitor counsel and 

ensure that counsel are working efficiently on an hourly basis” as required by the lodestar 

model). Moreover, counsel’s request for a 33.99% award comports with the attorneys’ fees 

awards granted in similar cases. See Taubenfeld v. Aon Corp., 415 F.3d 597, 600 (7th Cir. 2005) 

(fee awards in analogous class action settlements shed light on the market rate for legal services 

in similar cases); see also Martin v. Dun & Bradstreet, Inc., 12-cv-215, 2014 WL 9913504, at *3

(N.D. Ill. Jan. 16, 2014) (one-third of value of settlement); Craftwood Lumber Co., 2015 WL 

1399367, at *4 (sliding scale contingency fee including thirty percent of the first ten million 

dollars of the settlement). A 33.99% market rate award in a complex case that involved a lengthy 

and contentious discovery period would by no means be an unreasonable outlier.

The Court next turns to the specific facts of the case to determine whether the factors 

bearing on the market price for legal fees justify the percentage-of-recovery fee arrangement 

proposed by Class Counsel. See Camp Drug Store, Inc., 897 F.3d at 832–33. First, as to the 

quality of Class Counsel’s work, the Court finds that Class Counsel have diligently worked to 

represent the class and produced work of a high quality, commensurate with their extensive class 

action experience. With respect to the amount of work necessary to resolve the litigation, Class 

Counsel have clearly spent a significant amount of time and effort litigating this matter since the 

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first complaint was filed in 2012. This is not a case in which parties engaged in “no real 

litigation” and moved immediately to settlement. See id. (finding a reduced attorneys’ fee award 

warranted where counsel merely filed a complaint and negotiated a settlement). Two amended 

complaints were filed. Counsel fought extensively to secure written discovery (including briefing 

and arguing motions to compel that led to evidence assisting in the identification of potential 

claimants) and worked diligently to provide notice to potential claimants. And Class Counsel

undoubtedly spent additional effort on a failed mediation before settlement negotiations 

eventually bore fruit. Finally, while the parties may have reasonably expected the case would 

settle before reaching trial or the summary judgment stage, that was by no means certain, and 

neither was the liability of the Cruise Defendants. Class Counsel faced a real risk of nonpayment. 

Therefore, the Court finds that a 33.99% attorneys’ fee award reflects the market rate and 

takes into account the risk of nonpayment. The requested fee is granted.

V. Objectors’ Requests for Attorneys’ Fees and an Incentive Award

Objectors Dunlap, Johnson, and Shelton (“DJS Objectors”) filed two motions: one 

requesting an incentive fee of $500 each (Dkt. No. 693) and one requesting an award of

attorneys’ fees in the amount of $211,588 and expenses totaling $1,860.70. (Dkt. No. 691.) The 

DJS Objectors claim they played a material role in pressuring the Cruise Defendants to 

contribute an additional $969,600.00 to the common fund, modifying the notice procedure to 

allow an additional opt-out period after the parties moved to require supplemental documentation 

for potential claimants, and pushing Class Counsel to reduce their fee request. The Cruise

Defendants and Charvat dispute that the objectors materially contributed to the proceedings or 

offered objections that held merit.

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In a class action settlement, having a broad range of participants is desirable because of 

the potential risk of collusion over attorneys’ fees and settlement terms. Reynolds v. Beneficial 

Nat. Bank, 288 F.3d 277, 288 (7th Cir. 2002). “Objectors who add value to a class settlement 

may be compensated for their efforts.” In re Sw. Airlines Voucher Litig., 898 F.3d 740, 744 (7th 

Cir. 2018). For an objector to recover fees, however, he must show his objection secured a 

benefit for the class that outweighs the fees he is seeking. Mirfasihi v. Fleet Mortg. Corp., 551 

F.3d 682, 687–88 (7th Cir. 2008); see also Eubank, 753 F.3d at 720 (noting that objectors may 

receive an award “if their objections persuade the judge to disapprove” a settlement and “as a 

consequence a settlement more favorable to the class is negotiated and approved”). Otherwise, 

he has rendered no actual benefit to the class. Reynolds, 288 F.3d at 288.

The two objector requests stem from the modification of the class notice process in 2018. 

As noted above, after news of the potential settlement gained widespread media attention, the 

number of claimants responding to the notice skyrocketed. To safeguard against potential fraud, 

the parties asked the Court to authorize requests for follow-up documentation from claimants. It 

is here where the DJS Objectors claim they made their mark. First, they assert that they 

“pressured” the Cruise Defendants into contributing more money to the common fund by serving 

discovery on the Cruise Defendants and complaining that the payout per claimant was too low. 

But the DJS Objectors overstate their influence. The Cruise Defendants never responded to the 

discovery requests issued by the DJS Objectors. It is difficult to see how issuing fruitless 

discovery requests had any impact on the Cruise Defendants’ decision to contribute additional 

money to the common fund. Additionally, while it was accurate to note that a per-claimant 

payout rate of below $20 would be low for similar TCPA actions in the Northern District of 

Illinois, it is not clear how the DJS Objectors’ stating of this point had a clear and material 

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impact on parties. The DJS Objectors claim that because the Cruise Defendants contributed 

additional money to the common fund, the DJS Objectors’ position “has won out.” But it is not 

evident to the Court that the statements made by the DJS Objectors influenced the Cruise 

Defendants’ decision; it seems more likely that negotiations between the Cruise Defendants and 

Class Counsel, as well as the parties’ collective decision to cap or reduce fees to preserve the 

potential Settlement Fund, pushed the Cruise Defendants to raise their contribution to the 

Settlement Fund.

The DJS Objectors also claim their suggestion that additional notice emails be sent and 

an opt-out deadline extended as a result of the Court’s decision to authorize an additional 

documentation requirement constitutes a material benefit warranting compensation. The Court 

acknowledges that the DJS Objectors made a helpful suggestion, but this suggestion constituted

only a few minutes of dialogue in a lengthy and detailed hearing. When viewed in light of the 

parties’ successful effort to persuade the Settlement Administrator to cap the cost of collecting 

supplemental documentation after negotiating two previous email campaigns, the DJS Objectors’ 

contribution was minimal. And finally, while the DJS Objectors may have made a valid point in 

contending that Class Counsel should reduce their fee request in light of the rising administrative 

costs, those concerns had already been raised and both parties had committed to assuming

additional costs in relation to the documentation process. In sum, the Court cannot find that the 

DJS Objectors’ comments or suggestions that made a material difference to the benefit of class 

members.

The Court is mindful that having a variety of voices, including dissenters, adds value to 

the process of reviewing a class action settlement. But an objector must contribute materially to 

the settlement class’s recovery in order to justify receipt of an incentive award or attorneys’ fees. 

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That is not what happened here. The Court therefore denies DJS Objectors’ motions for 

attorneys’ fees and costs and incentive awards. 

CONCLUSION

For the foregoing reasons, Charvat’s motion for final approval of the class settlement is 

granted. Charvat’s motion for attorneys’ fees and costs is also granted in its entirety. Charvat’s 

motion for an incentive award is granted in amount of $25,000. Objectors Dunlap, Johnson, and 

Shelton’s motion for an incentive award is denied. Objectors Dunlap, Johnson, and Shelton’s 

motion for attorneys’ fees and costs is also denied.

ENTERED:

Dated: October 28, 2019 __________________________

Andrea R. Wood

United States District Judge

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