IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

PHILIP CHARVAT, on behalf of himself and ) 

others similarly situated, ) 

 ) Case No. 1:12-cv-05746 

 Plaintiff, ) 

v. ) Honorable Judge Andrea Wood 

 ) 

ELIZABETH VALENTE, RESORT ) Magistrate Judge Mary Rowland 

MARKETING GROUP, INC., CARNIVAL ) 

CORPORATION & PLC, ROYAL CARIBBEAN ) 

CRUISES, LTD., and NCL (BAHAMAS) LTD., ) 

 ) 

Defendants. ) 

ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT, 

CONDITIONALLY CERTIFYING SETTLEMENT CLASS, APPROVING NOTICE 

PLAN AND SETTING FINAL APPROVAL HEARING 

This matter having come before the Court on Plaintiffs’ Unopposed Motion for 

Preliminary Approval of Class Action Settlement (“Settlement”) of the above-captioned matter 

(the “Action”) between Plaintiff, Phillip Charvat (“Plaintiff”), and Defendants, Resort Marketing 

Group, Inc., Carnival Corporation & PLC, Royal Caribbean Cruises Ltd, and NCL (Bahamas) 

Ltd. as set forth in the Class Action Settlement Agreement and Release between the Plaintiff and 

the Defendants (“Settlement Agreement”) and the Court having duly considered the papers and 

arguments of counsel, the Court hereby finds and orders as follows: 

1. Settlement Terms. Unless defined herein, all defined terms in this Order shall have 

the same meaning set forth in the Settlement Agreement. 

 2. Jurisdiction. The Court preliminarily finds that it has jurisdiction over the 

subject matter of this action and personal jurisdiction over the parties and the Settlement 

Class Members described below. 

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 3. Scope of the Settlement Agreement. The Settlement Agreement resolves the 

Action, including all claims alleged in the Third Amended Complaint. [DE 463]. 

4. Preliminary Approval of Settlement Agreement. The Court has conducted a 

preliminary evaluation of the Settlement set forth in the Settlement Agreement for fairness, 

adequacy, and reasonableness. Based on this preliminary evaluation, the Court finds that: (i) 

there is good cause to believe that the settlement is fair, reasonable, and adequate, (ii) the 

Settlement has been negotiated at arm’s length between experienced attorneys familiar with the 

legal and factual issues of this case and was reached with the assistance of the Bruce Friedman, 

Esq. of JAMS, and (iii) the Settlement warrants Notice of its material terms to the Settlement 

Class for their consideration and reaction. Therefore, the Court grants preliminary approval of 

the Settlement. 

 5. Class Certification for Settlement Purposes Only. The Court, pursuant to Rule 23 

of the Federal Rules of Civil Procedure, conditionally certifies, for settlement purposes only, the 

following Settlement Class consisting of: 

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. 

For purposes of settlement, the Court finds the class is limited to those phone numbers contained 

in the Call Records of the RMG Defendants as defined in the Settlement Agreement. For 

purposes of settlement, the Court also finds the following people are excluded from the 

Settlement Class: (i) any trial judge or Magistrate presiding over this Action and members of 

their families; (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 timely Request for Exclusion by the 

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Objection/Exclusion Deadline; (vi) the legal representatives, successors or assigns of any such 

excluded persons; and (vii) counsel for all Parties and members of their families; (viii) any person 

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

6. Rule 23 Requirements. For Purposes of Settlement Only. The Court preliminarily 

finds that the prerequisites for a class action under Federal Rules of Civil Procedure 23(a) have 

been satisfied in that: (a) the number of Settlement Class Members is so numerous that joinder of 

all members thereof is impracticable; (b) there are questions of law and fact common to the 

Settlement Class Members; (c) the claims of the class representative are typical of the claims of 

the Settlement Class Members; (d) the class representative will fairly and adequately represent the 

interests of the Settlement Class Members; (e) for purposes of determining whether the Settlement 

Agreement is fair, reasonable and adequate, common questions of law and fact predominate over 

questions affecting only individual persons in the Settlement Class and, accordingly, the 

Settlement Class is sufficiently cohesive to warrant settlement by representation; and (f) for 

purposes of settlement, certification of the Settlement Class is superior to other available methods 

for the fair and efficient settlement of the claims of the Settlement Class. 

 7. Class Representative. The Court preliminarily appoints Plaintiff, Phillip Charvat, 

as Class Representative of the Settlement Class pursuant to Rule 23 of the Federal Rules of Civil 

Procedure. 

 8. Class Counsel. For settlement purposes, the Court appoints Broderick & Paronich, 

P.C., and The Law Offices of Matthew P. McCue and Burke Law Offices, LLC as settlement 

class counsel pursuant to Rule 23(g). 

 9. Claims Administrator. Pursuant to the Settlement Agreement, Kurtzman Carson 

Consultants is hereby appointed as Claims Administrator and shall be required to perform all the 

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duties of the Claims Administrator as set forth in the Settlement Agreement and this Order.

10. Final Approval Hearing. At 11:00 a.m. on Wednesday, April 4, 2018, in 

courtroom 1925, of the Everett McKinley Dirksen Building, United States Courthouse, 

219 Dearborn Street, Chicago, Illinois, or at such other date and time later set by Court 

Order, this Court will hold a Final Approval Hearing on the fairness, adequacy, and 

reasonableness of the Settlement Agreement for the following purposes: (a) to determine 

whether the Settlement is fair, reasonable and adequate, and should be approved by the Court; 

(b) to finally determine whether the requirements of Federal Rules of Civil Procedure 23(a) 

and (b) are met; (c) to determine whether the judgment as provided under the Settlement 

Agreement should be entered, including a bar order prohibiting Settlement Class Members 

from further pursuing claims released in the Settlement Agreement; (d) to consider the 

application for an award of attorneys’ fees and expenses of Class Counsel; (e) to consider the 

application for a compensation award to the Class Representative; (f) to consider the distribution 

of the Settlement Benefits under the terms of the Settlement Agreement; and (g) to rule upon 

such other matters as the Court may deem appropriate. 

 11. No later than Monday, August 7, 2017 which is thirty (30) days after Preliminary 

Approval, Class Counsel shall file and serve any application for a compensation award to the 

Class Representative as well as any application for an award of attorneys’ fees and expenses. 

The Cruise Defendants and RMG Defendants may file a response, if any, to Plaintiff’s 

application for Class representative’s incentive award or Class Counsel’s application for an 

award of attorneys’ fees and expenses fourteen on Monday, March 19, 2018, which is no later 

than (14) days prior to the final approval hearing. On Monday, March 19, 2018, which is no later 

than fourteen (14) days before the Final Approval Hearing, Class Counsel shall file a motion for 

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final approval, and the Cruise Defendants shall file a response, if any, to the motion for final 

approval within ten (10) days of their receipt of this motion. 

 12. Settlement Class Members do not need to appear at the Final Approval Hearing 

or take any other action to indicate their approval. 

 13. Class Notice. The Court approves the form, content, and requirements set forth in 

Section 7 of the Settlement Agreement, including the Notice attached as exhibits to the Settlement 

Agreement, for giving notice to the Settlement Class by direct U.S. Mail to all reasonably 

obtainable addresses of the Settlement Class Members who are in the Charvat Campaigns, and 

who are located by the Settlement Administrator and matched to the Call Records. The Court also 

approves of the proposed publication and website notice set forth in the Settlement Agreement. 

Notice is to comply in all respects with the Settlement Agreement The Court finds that the notice 

program constitutes the best notice practicable under the circumstances, and satisfies fully the 

requirements of Rule 23(c)(2), and the requirements of due process. The Court directs the Parties 

and the Settlement Administrator to commence the Notice plan on or before Monday, August 7, 

2017, which is 30 days following the entry of this Preliminary Approval Order, in accordance 

with the Settlement Agreement. 

 14. The Settlement Administrator shall file with the Court by no later than Monday, 

March 19, 2018, which is no later than fourteen (14) days prior to the Final Approval Hearing, 

proof that Notice was provided pursuant to the requirements of the Settlement Agreement and this 

Order, proof that notice was provided to the appropriate State and federal officials pursuant to the 

Class Action Fairness Act, 28 U.S.C. § 1715, as well as a declaration attesting to the results of the 

notice plan, such as the estimated “reach” of notice, the number of undeliverable mailings, and the 

number of internet impressions. The Settlement Administrator shall also include copies of any 

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objections to the settlement it received, and a brief summary of the substance of these objections. 

 15. Claims Deadline. Pursuant to the Settlement Agreement, Settlement Class 

Members who wish to receive a distribution from the Settlement Class Recovery shall submit a 

completed claim form via United States Mail or via the Settlement Website in accordance with 

the procedures set forth in the Settlement Agreement by the Claims Deadline of Friday, 

November 3, 2017, which is 120 days after this Court’s grant of preliminary approval. 

 16. Screening of Claims by Settlement Administrator. The Settlement Administrator 

shall employ reasonable procedures to screen claims for abuse or fraud, including without 

limitation, by cross-referencing the information provided on the Claim Form against the Call 

Records, and by reviewing the submissions of the Settlement Class Members. The Settlement 

Administrator shall reject a Claim Form, or any part of a claim for a payment reflected therein, 

where the telephone number submitted does not match the Call Records or where there is 

evidence of abuse or fraud. The Settlement Administrator shall also reject a Claim Form that 

does not contain all of the requested information necessary to screen the claim for fraud or abuse, 

after giving the claimant a reasonable opportunity of no greater than fourteen (14) days to 

provide any requested missing information. The Settlement Administrator shall notify the 

claimant regarding the missing information via email, telephone call or direct mail, whichever is 

the most practical based on the information provided in the Claim Form, within five (5) business 

days after the Settlement Administrator rejects the claim. The Settlement Administrator’s 

validation or rejection of all Claim Forms shall occur on a rolling basis once the Settlement Class 

Members have been notified of the Settlement. The Parties shall receive weekly reports of the 

status of all claims, including, but not limited to all pending, valid, Approved, rejected and 

invalid claims. The Settlement Administrator shall provide a list identifying all of the validated, 

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rejected and Final Approved Claims on Wednesday, January 3, 2017. 

 17. Challenges to Claims by the Parties. In accordance with the Settlement 

Agreement, the Cruise Defendants and the Class Representative will have the right to challenge 

the submission of any claim from any Settlement Class Member on an ongoing basis from the 

date Settlement Class Members have been notified of the Settlement up to Friday, February 2, 

2018, which is thirty (30) days after the Settlement Administrator provides the list of all of the 

validated and Final Approved Claims for payment. The Cruise Defendants right to challenge to 

any potential claim made by a Settlement Class Member is as follows: (1) any and all telephone 

number(s) submitted by each Settlement Class Member that do not match the Call Records (each 

and every telephone number that does not match Call Records should be excluded by the 

Settlement Administrator and automatically denied as an unapproved claim); (2) claim forms that 

are not signed on paper or electronically, (3) claim forms that are not dated; (4) claim forms in 

which the Settlement Class Member does not declare under penalty of perjury as to ownership or 

use of a particular telephone number found in the Call Records during the class period; (5) to any 

objective and reasonable indicia of fraud, including, for example, multiple claims filed with 

respect to the same number, numerous (more than three) claims filed by the same user, and use 

of a false or fictitious name and/or address of the Person submitting the form, etc. If one or more 

Settlement Class Members’ claims have been challenged, the Settlement Administrator shall 

notify each Settlement Class Member within five (5) business days of its receipt of the challenge 

via email, telephone call or direct mail, whichever is the most practical based on the information 

provided in the Claim Form or on the Settlement Website submission, that the Settlement Class 

Member shall submit a response to the Cruise Defendants’ challenge, if any, within fourteen (14) 

days. If the Settlement Class Member does not timely submit the supplemental information, the 

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challenge shall be automatically sustained and the Settlement Class Member will receive no 

distribution. If the Settlement Class Member provides a response to the challenge, the Parties 

shall attempt to resolve the challenge within twenty-one (21) days following receipt of the 

Settlement Class Member’s response. In the event that the Parties are unable to resolve the 

challenge, it shall be presented to the Court for resolution at the Final Approval Hearing. To the 

extent the Court sustains the challenge, the Settlement Class member will not be permitted to 

recover for any calls. The Court’s determination regarding the challenge shall be final and 

binding on the Parties. The parties shall notify the Court of the total number of challenges, and 

the number of claims denied based upon these challenges and not otherwise presented to the 

Court for determination, no less than fourteen (14) days before the Final Approval Hearing. 

 18. Exclusions and Opt-Out Deadline. Each and every member of the Settlement 

Class shall be bound by all determinations and Orders pertaining to the Settlement, including the 

release of all claims as set forth in the Settlement Agreement, unless such persons request 

exclusion from the Settlement in a timely and proper manner. Pursuant to the Settlement 

Agreement, Settlement Class Members who wish to either object to the Settlement Agreement or 

opt-out by completing a Request for Exclusion must do so by the Objection Deadline and Opt-Out 

Deadline of Friday, November 3, 2017, both of which are 120 days after this Court’s grant of 

preliminary approval. Settlement Class Members may not both object and opt out. If a Settlement 

Class Member submits both a Request for Exclusion and an objection, the Request for Exclusion 

will be controlling. 

 19. Exclusion from Settlement Class. A member of the Settlement Class w h o 

wishes to request exclusion (or “opt-out”) from the Settlement may do so at his or her own 

expense and must follow the directions in the Notice by mailing the request in written form 

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to the Settlement Administrator at the address designated in the Notice, by first class mail, 

postage prepaid, and the request for exclusion must be received by the Settlement Administrator 

no later than Friday, November 3, 2017, which is 120 days after this Court’s grant of Preliminary 

Approval. In the written request for Exclusion, the member of the Settlement Class must 

state (i) his or her full name, address, telephone number, and last four Social Security 

number digits of the person seeking the Exclusion, (ii) the name and case number of the Action, 

(iii) a clear and unequivocal statement under penalty of perjury that the person excluding him or 

herself believes he or she is a member of the Settlement Class and that the number(s) listed on 

the opt-out is the one on which the Settlement Class member received a call, (iv) a statement that 

the Person wishes to be excluded from the Settlement Class, and (v) the date and signature of 

such Person or, in the case of a Person in the Settlement Class who is deceased or incapacitated, 

the signature of the legally authorized representative of such Person. The request for exclusion 

shall not be effective unless the request for exclusion provides the required information and 

is made within the time stated above, or the exclusion is otherwise accepted by the Court. No 

Settlement Class Member, or any person acting on behalf of or in concert or in participation 

with that Settlement Class Member, may request exclusion of any other Settlement Class 

Member from the Settlement. 

 20. If a timely and valid Request for Exclusion is made by a Settlement Class 

Member, then that person will relinquish their rights to benefits under the Settlement and will 

not release any claims against the Defendants or any of the other Released Parties. 

 21. All Settlement Class Members who do not timely and validly request exclusion 

shall be so bound by all terms of the Settlement Agreement and by the Final Approval Order 

and Judgment even if they have previously initiated or subsequently initiate individual litigation 

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or other proceedings against the Defendants or any of the other Released Parties. 

 22. The Settlement Administrator will promptly provide all Parties with copies of 

any exclusion requests, and Plaintiff shall file a list of all persons who have validly opted-out of 

the Settlement with the Court prior to the Final Approval Hearing. 

23. Objections to the Settlement. Any Settlement Class Member who does not file a 

timely request for exclusion, but who wishes to object to approval of the proposed Settlement, to 

the award of attorneys’ fees and expenses, or to the compensation award to the Class 

Representative must follow the directions in the Notice and file a written objection with the 

Court on or before Friday, November 3, 2017, which is 120 days after this Court’s grant of 

Preliminary Approval. In the written Objection, the Settlement Class members must submit a 

written statement that includes: (i) the full name, address, telephone number, date and signature 

of the objecting Class Member and (ii) a statement under penalty of perjury that the Settlement 

Class Member is a member of the Settlement Class and that the telephone number identified in 

the objection by the settlement Class member is the one(s) on which he/she received a call; (iii) 

all grounds for the objection, with factual and legal support for each stated ground; (iv) the 

identity of any witnesses he or she may call to testify; (v) copies of any exhibits that he or she 

intends to introduce into evidence at the Final Approval Hearing; and (vi) a statement of whether 

he or she intends to appear at the Final Approval Hearing with or without counsel. Any 

documents supporting the Objection shall also be attached to the Objection. No Objection will be 

valid unless all of the information described above is included. The Parties will have the right to 

depose any objector to assess whether the objector has standing or motives that are inconsistent 

with the interests of the Class. Any objecting Settlement Class Member also must send a copy of 

the filing to the Settlement Administrator at the same time it is filed with the Court. The Court 

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will consider objections to the Settlement, to the award of attorneys’ fees and expenses, or to the 

compensation award to the Class Representative only if, on or before Friday, November 3, 2017, 

which is 120 days after this Court’s grant of Preliminary Approval, such objections and any 

supporting papers are filed in writing with the Clerk of this Court and served on the Settlement 

Administrator. 

24. A Settlement Class Member who has timely filed a written objection as set forth 

above may appear at the Final Approval Hearing in person or through counsel to be heard orally 

regarding their objection. It is not necessary, however, for a Settlement Class Member who has 

filed a timely objection to appear at the Final Approval Hearing. No Settlement Class Member 

wishing to be heard orally in opposition to the approval of the Settlement and/or the request for 

attorneys’ fees and expenses and/or the request for a compensation award to the Class 

Representative will be heard unless that person has filed a timely written objection as set forth 

above. No non-party, including members of the Settlement Class who have timely opted-out of 

the Settlement, will be heard at the Final Approval Hearing. 

25. Waiver of Exclusion or Objection. Any Settlement Class Member who does not 

opt out or make an objection to the Settlement in the manner provided herein shall be deemed to 

have waived any such objection by appeal, collateral attack, or otherwise, and shall be bound by 

the Settlement Agreement, the releases contained therein, and all aspects of the Final Approval 

Order and Judgment. 

26. If a Settlement Class Member does not submit a written Objection to the 

Settlement Agreement or the application of Class Counsel for attorneys’ fees and expenses or 

the incentive awards in accordance with the deadline and procedure set forth in the Notice and 

this Order, but the Settlement Class Member wishes to appear and be heard at the Final 

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Approval Hearing, the Settlement Class Member must (i) file a notice of intention to appear 

with the Court no later than the Objection Deadline; and (ii) comply with all other requirements 

of the Court for such an appearance. 

27. Any Settlement Class Member who fails to comply with Paragraphs 18 and 19 

(and as detailed in the Notice) will not be permitted to object to the Settlement Agreement at the 

Final Approval Hearing, will be foreclosed from seeking any review of the Settlement 

Agreement by appeal or other means, will be deemed to have waived his or her objections, and 

will be forever barred from making any objections in the Action or any other related action or 

proceeding. All members of the Settlement Class, except those members of the Settlement Class 

who submit timely Requests for Exclusion, will be bound by all determinations and judgments in 

this Action, whether favorable or unfavorable to the Settlement Class. 

 28. Stay of Other Proceedings. Pending the final determination of whether the 

Settlement Agreement should be approved, and except as otherwise stated herein, all pre-trial 

proceedings and briefing schedules in the Litigation are stayed. If the Settlement Agreement is 

terminated or final approval does not for any reason occur, the stay will be immediately 

terminated. 

 29. The Final Approval Hearing may be postponed, adjourned, transferred or 

continued by order of the Court without further notice to the Settlement Class. Notice of any 

schedule change will be posted on the Settlement Website. At, or following, the Final Approval 

Hearing, the Court may enter a Final Approval Order and Judgment in accordance with the 

Settlement Agreement that will adjudicate the rights of all class members. 

 30. Pending the final determination of whether the Settlement Agreement should be 

approved, the Settlement Class Representatives and all Settlement Class Members are hereby 

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enjoined from commencing, pursuing, maintaining, enforcing, or prosecuting, either directly or 

indirectly, any Released Claims in any judicial, administrative, arbitral, or other forum, against 

any of the Released Parties. Such injunction will remain in force until Final Approval or until 

such time as the Parties notify the Court that the Settlement Agreement has been terminated. This 

injunction is necessary to protect and effectuate the Settlement Agreement, this Preliminary 

Approval Order, and the Court’s flexibility and authority to effectuate the Settlement Agreement 

and to enter Judgment when appropriate, and is ordered in aid of this Court’s jurisdiction and to 

protect its judgments. This injunction does not apply to any person who files a Request for 

Exclusion pursuant to Paragraphs 18 and 19 of this Order. 

 31. No Admission of Liability. The Settlement Agreement and any and all 

negotiations, documents, and discussions associated with it, will not be deemed or construed to 

be an admission or evidence of any violation of any statute, law, rule, regulation, or principle of 

common law or equity, or of any liability or wrongdoing by the Defendants or any other party, 

or the truth of any of the allegations in the Action. The Settlement Agreement and any and all 

negotiations, documents, and discussions associated with it, will not be deemed or construed to 

be an admission by the Defendants that the Action is properly brought on a class or 

representative basis, or that classes may be certified, other than for settlement purposes. To this 

end, the negotiation and execution of the Settlement Agreement and all acts performed or 

documents executed pursuant to or in furtherance of the Settlement Agreement: (i) are not and 

will not be deemed to be, and may not be used as, an admission or evidence of any wrongdoing 

or liability on the part of State Farm or of the truth of any of the allegations in the Litigation; 

(ii) are not and will not be deemed to be, and may not be used as an admission or evidence of 

any fault or omission on the part of the Defendants in any civil, criminal, or administrative 

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proceeding in any court, arbitration forum, administrative agency, or other tribunal; and, (iii) 

are not and will not be deemed to be and may not be used as an admission of the 

appropriateness of these or similar claims for class certification. Defendants have denied and 

continue to deny the claims asserted by Plaintiff. Notwithstanding, nothing contained herein 

shall be construed to prevent a Party from offering the Settlement Agreement into evidence for 

the purpose of enforcing the Settlement Agreement. 

 32. In the event that the Settlement Agreement is terminated under the terms of the 

Settlement Agreement, or for any reason whatsoever the approval of it does not become final and 

no longer subject to appeal, then: (i) the Settlement Agreement shall be null and void, including 

any provisions related to the award of attorneys’ fees and expenses, and shall have no further 

force and effect with respect to any party in this Action, and shall not be used in this Action or in 

any other proceeding for any purpose; (ii) all negotiations, proceedings, documents prepared, and 

statements made in connection therewith shall be without prejudice to any person or party hereto, 

shall not be deemed or construed to be an admission by any party of any act, matter, or 

proposition, and shall not be used in any manner of or any purpose in any subsequent proceeding 

in this Action or in any other action in any court or other proceeding, provided, however, that the 

termination of the Settlement Agreement shall not shield from subsequent discovery any factual 

information provided in connection with the negotiation of this Settlement Agreement that would 

ordinarily be discoverable but for the attempted settlement; (iii) this Order shall be vacated; and 

(iv) any party may elect to move the Court to implement the provisions of this paragraph, and 

none of the non-moving parties (or their counsel) shall oppose any such motion. 

 33. Reasonable Procedures to Effectuate the Settlement Agreement. Counsel are 

hereby authorized to use all reasonable procedures in connection with approval and 

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administration of the Settlement Agreement that are not materially inconsistent with this Order 

or the Settlement Agreement, including making, without further approval of the Court, minor 

changes to the form or content of the Notice and other exhibits that they jointly agree are 

reasonable and necessary. The Court reserves the right to approve the Settlement Agreement 

with such modifications, if any, as may be agreed to by the Parties without further notice to the 

members of the Class. The Court retains jurisdiction to consider all further matters arising out of 

or connected with the Settlement. 

 34. All pending motions as of the date of this order are hereby terminated without 

prejudice. 

 IT IS SO ORDERED. 

Entered: July 6, 2017 ________________________________________ 

 ANDREA R. WOOD 

 UNITED STATES DISTRICT JUDGE 

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