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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GRANT BIRCHMEIER, et al.,

Plaintiffs,

vs.

CARIBBEAN CRUISE LINE, INC., et

al.,

Defendants.

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Docket No. 12 C 4069

Chicago, Illinois

February 27, 2017

9:50 o'clock a.m.

TRANSCRIPT OF PROCEEDINGS - MOTION

BEFORE THE HONORABLE MATTHEW F. KENNELLY

APPEARANCES:

For the Plaintiffs: LOEVY AND LOEVY

BY: MR. SCOTT R. RAUSCHER

MR. MICHAEL I. KANOVITZ

311 North Aberdeen Street, 3rd Floor

Chicago, IL 60607

(312) 243-5900

EDELSON PC

BY: MR. JAY EDELSON

MR. RAFEY S. BALABANIAN

MS. EVE-LYNN J. RAPP

MR. ALEXANDER GLENN TIEVSKY

350 North LaSalle Street, Suite 1300

Chicago, IL 60654

(312) 589-6370

Court Reporter: MS. CAROLYN R. COX, CSR, RPR, CRR, FCRR

Official Court Reporter

219 S. Dearborn Street, Suite 2102

Chicago, Illinois 60604

(312) 435-5639
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APPEARANCES CONTINUED:

For Caribbean GREENSPOON MARDER, P.A.

Cruise Line, Inc.: BY: MR. JEFFREY BACKMAN

200 East Broward Boulevard, Suite 1800

Fort Lauderdale, FL 33301

(954) 491-1120

For The Berkley FORDE LAW OFFICES LLP

Group, Inc.: BY: MR. BRIAN PATRICK O'MEARA

111 West Washington Street, Suite 1100

Chicago, IL 60602

(312) 641-1441

For Freedom Home BANDAS LAW FIRM, P.C.

Care, Inc.: BY: MR. CHRISTOPHER A. BANDAS

ROBERT W. CLORE

500 North Shoreline Boulevard

Corpus Christi, TX 78401

(361) 558-3527

JONATHAN NOVOSELSKY, P.C.

BY: MR. JONATHAN P. NOVOSELSKY

303 West Madison, 22nd Floor

Chicago, IL 60606

(312) 286-8429
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(The following proceedings were had in open court:)

THE CLERK: Case No. 12 C 4069, Birchmeier v.

Caribbean Cruise Line.

THE COURT: Mr. Backman is on the phone.

Mr. Backman, can you give your name for the record, please.

MR. BACKMAN: Jeffrey Backman for Caribbean Cruise

Line and Vacation Ownership Marketing Tours.

THE COURT: I am going to alert you at the beginning.

We are having some problems with the sound system in here.

Normally, you'd be hooked in through the sound system and

you'd be able to hear and people will be able to hear you way

better than is going to happen. You are actually on my

speaker phone, which is sort of generally pointed out towards

the audience, but I am going to ask the people who are talking

in the court just to keep your voice up so Mr. Backman can

hear you.

Just project. Go ahead, starting with Mr. O'Meara.

MR. O'MEARA: Good morning, your Honor. Brian

O'Meara on behalf of the defendant, the Berkley Group.

MR. BANDAS: Good morning, your Honor. Chris Bandas

for objector Freedom Home Care.

MR. CLORE: Good morning, your Honor. Robert Clore

for objector Freedom Home Care.

MR. NOVOSELSKY: Good morning, your Honor. Jon

Novoselsky, local counsel for objector Freedom Home Care.
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MR. EDELSON: Good morning, your Honor. Jay Edelson

for the class.

MR. BALABANIAN: Good morning, your Honor. Rafey

Balabanian for the class.

MS. RAPP: Good morning, your Honor. Eve-Lynn Rapp

for the class.

MR. KANOVITZ: Good morning, Judge. Mike Kanovitz

for the class.

MR. RAUSHER: Good morning. Scott Rauscher also for

the class.

THE COURT: Okay. Give me just a second here. Bear

with me. Sorry.

I apologize. I am going to have to walk out of the

room for a second because pretty much -- oh, no, here it came.

All right. So I think where I want to start is with

the matter that I tabled regarding Freedom Home Care, so let

me just pull up my notes here. Just one second.

Okay. So go ahead. You've got the floor.

MR. BANDAS: Thank you, your Honor. Chris Bandas for

Freedom Home Care.

As I understand the issue, the Court would like us to

address whether or not we intend to seek attorneys' fees in

this case if the Court reduces class counsels' attorneys'

fees. The answer to that question is yes, your Honor. The

basis for the fees would be a straight lodestar. We would not
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ask the court for a multiplier.

THE COURT: Okay. That tells me what I need to know.

Thanks.

MR. BANDAS: Thank you.

THE COURT: Just so you know, if he had known the

answer to that question -- I don't know why you both came up

here today, but you could have saved yourself a trip or, I

guess, two trips at this point.

All right. So we have some other things that I want

to talk about, and I'm not sure I am going to get these in

exactly the right logical order. But there's a couple of

things that we talked about last week that I'm going to need

you to kind of go over again for a second here, and one of

them is an issue for Mr. O'Meara, and this is the question --

I am not sure that the issue for Mr. O'Meara is the first one.

This is the question about -- I asked a question -- this was

towards the beginning last week -- to ask you to explain this

whole question of -- just to put it in very broad terms, it

sounds like a dumb question -- why the defendants are

objecting to the fees. In other words, what I thought I was

kind of hearing from the plaintiff at some point in time --

when I say hearing, it doesn't mean necessarily orally

hearing; it may be something I read in the briefs -- is that

even if all of the claims that got objected to are tossed,

there's still going to be enough here to get to the high end
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of the range. And if you get to the high end of the range,

then -- this part I'm adding on; this is not something

Mr. Edelson said -- if you get to the high end of the range,

then whether the -- whether the attorneys get 5 million, 10

million, 15 million, or 25 million of the 75 is no -- doesn't

really matter to the defendant because money is all money.

Okay? And I think I heard you saying that that's maybe not

right or that there's some flaw in kind of the steps that I

get to get there.

And I guess sort of the flip side of that is -- and I

know you said you had the guy here on Friday who could explain

the appendix, and I don't see him here right now, but I looked

at that thing and I need the -- as I said to the people in the

previous case, I need the summary for ordinary mortals.

So why don't I start with Mr. O'Meara to give

Mr. Edelson and company time to collect their thoughts on

that. Go ahead.

MR. O'MEARA: Judge, I think you're right that if the

claims that are actually paid out exceed the 76 million --

THE COURT: I said 75. I meant 76.

MR. O'MEARA: -- 76, the ceiling, if you will, then,

right, I think our objection is moot.

THE COURT: It doesn't really matter. But do you

think -- as you stand there, do you think that there is some

reasonable basis to believe that there might be an outcome
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under which the total claims paid out falls short of the 76?

MR. O'MEARA: Yes.

THE COURT: And that's presumably why you objected to

the fees.

MR. O'MEARA: That is it.

THE COURT: That answers my question. Okay. So

that's the simple version of that. Sorry I didn't give you

too much time to kind of think up the executive summary,

Mr. Edelson.

Now I am over to you. This formula thing, the thing

that's in the appendix, I looked at it and I looked at it, and

I thought I understood it, and I looked at it again, and I

thought I didn't understand it. Can you walk me through it?

Let me get the appendix in front of me.

MR. EDELSON: Your Honor --

THE COURT: Any time you -- I have to say I was

pretty good in math, but that was a long time ago. It's like

40 years ago at this point. So any time you put something in

there that's got a line in there divided by, I kind of break

out into a cold sweat.

MR. EDELSON: I peaked out at sixth grade, your

Honor.

THE COURT: Okay. There you go.

MR. EDELSON: With apologies, I think I understand

and I hope to get it right. The first part in understanding
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what the fee award is is conceptually you can't just look at

what is paid to the class alone. The fee award is a

percentage of what is paid to the class and what's paid in

fees.

So, for example, if it were just a simple $10 million

common fund and your Honor was giving us a third of that, we

would get $3.3 million. You wouldn't say, well, let's look at

what the class is getting, which is 6.6 million, and then get

a third of that. Do you understand?

THE COURT: Yeah, I get that, sure.

MR. EDELSON: Okay. So that's the first step. I

think that's partly the defendants missed that step.

In figuring out what is -- what is it that we won for

the class, under the Seventh Circuit, what we have won for the

class is what the class gets --

THE COURT: What you get, what the incentive awards

are, and what the cost of notice and the cost of administrator

are.

MR. EDELSON: Not the cost of notice. Yes, the

Seventh Circuit has --

THE COURT: You can't get fees on that.

MR. EDELSON: You cannot. That does not count.

THE COURT: Okay.

MR. EDELSON: And that's about $2 million.

THE COURT: All right. Hang on a second. I think I
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understand this, but I want to make sure I understand it.

Let's say it is 2 million and let's say that there's

-- the number of claims that are approved is enough to get you

over the 76, is the 2 part of the 76?

MR. EDELSON: No.

THE COURT: In other words, did the defendants agree

to pay a maximum of 76 inclusive of --

MR. EDELSON: Correct.

THE COURT: -- the cost of the administrator?

MR. EDELSON: Correct. So we would be seeking a

percentage of the 74.

THE COURT: 74.

MR. EDELSON: Correct.

THE COURT: Fine.

MR. EDELSON: So there are two possibilities that

make the math really easy. One is if the ceiling is hit, if

it is the 76 or 74 once you reduce it, and then it's really

easy and you apply a straight percentage, assuming you're

doing a percentage.

The other -- the other place where it's really easy

is if the floor isn't hit.

THE COURT: Yeah.

MR. EDELSON: And then it goes up to 56, and then we

get a percentage, assuming you're doing percentage, of the 56.

The place where it gets complicated is if it's in
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that middle category, and that's where this excessively

complicated formula came up.

THE COURT: So let me ask you this. And here's

where I got hung up. I was looking at this as what I

considered to be a simple, but what is potentially a

simplistic way. And when I read the appendix and reread the

appendix, it suggested that the way I was looking at it is

wrong. The way I was looking at it is that since what you're

asking for, assuming I decide to compute it this way, whether

it's a flat percentage or a sliding scale or whatever, you're

asking for a percentage of the recovery, why do we even think

about that number until we -- until you know what the total

is? In other words, we are not saying that class members --

the notice that went out to class members isn't saying that

you're going to get at least, you know, X amount of money and

then the fees are going to be off to the side somewhere. In

fact, the class notice -- I asked you to amend it, I think, to

make it clear that the cost of the fees or that the price of

the fees is going to come out of whatever they get, and so it

seems to me -- it just seemed to me when I was thinking about

this is that the simplest way of looking at it was to say,

okay, you're going to have a certain number of claims, you've

got this formula in the settlement agreement about how the

claims are going to be valued, I do that math, I take off the

cost of notice, and then I have a number, and then I calculate
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the fees, if it's done by a percentage, based on that.

And so all of this other stuff about whether, okay,

if under your scenario, if it's a $10 million award and you

get 33 percent, well, maybe your fees are half of what the

class gets, but that doesn't mean it's a 50 percent fee

because you are not calculating -- that just seemed to me to

be overcomplicating things to even think about that. Why

would I think about that?

The number is claims times amount per claim, that's a

total, minus the cost of administration, that's a subtotal, or

that's a net, and then the fees are calculated, if it's done

by a percentage, based on that.

MR. EDELSON: I think you've got to add the fees to

the numerator in your math, the top part.

THE COURT: Yeah.

MR. EDELSON: So it's money to the class plus fees

divided by percent.

THE COURT: See, again, I thought I had this all

figured out until I read the appendix, and I thought I had it

all figured out again until you said that just now. Maybe I'm

just dense. It doesn't make sense to me.

MR. EDELSON: Well --

THE COURT: So, look --

MR. EDELSON: I can try it another way.

THE COURT: So what's -- what is a number of claims
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that if ultimately approved would -- let's just pick a number

out. What's a number of claims that if ultimately approved

would have us end up somewhere between 56 and 76?

MR. O'MEARA: It's actually calls, right, so the

number of calls itself.

THE COURT: Fair enough. Calls, yes.

MR. O'MEARA: I think we had an example of like over

a hundred thousand.

THE COURT: Let's say there's a hundred thousand

calls that end up getting through the whole objection process,

okay? So then what happens? Somebody's got to take that

100,000 and convert it to an amount of money so the defendants

know how much they end up having to pay, right?

MR. O'MEARA: Correct.

THE COURT: What's the number you multiply times a

hundred thousand to get there?

MR. O'MEARA: 500.

THE COURT: 500. Under that scenario, it would be 50

million?

MR. O'MEARA: Correct.

THE COURT: Now, does the 2 million in that scenario,

does that come off of the 50 million or does it get added onto

the 50 million?

MR. O'MEARA: I think it gets added on.

THE COURT: It gets added on. So actually, you're
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stuck with 52 million?

MR. O'MEARA: Correct.

THE COURT: The reason being that it's still under

76?

MR. O'MEARA: Yes.

THE COURT: In other words, if the number of calls

times $500 got you to 76 million, then you don't have to pay

another 2 million?

MR. O'MEARA: That's right.

THE COURT: Now you're at 52 million. Now -- but I

don't calculate the fees based on the 52, it's based on the

50. All right. Let's say just for purposes of discussion

that I end up saying, okay, plaintiffs are entitled to

one-third, under that scenario, you get $16,666,666.66?

MR. EDELSON: No, your Honor. We would actually get

half of the 50 -- I forgot the number, 52 or 54 million.

That's how you get a third. Because you've got to add -- so

you've got the claims.

Let's make it easy. If there was $4 going to the

class, for us to get a third, that would be $2 of 6. You add

the $4 plus the attorneys' fees and divide that by three. So

X equals 4 plus X divided by 3.

THE COURT: Wait a second. Under this scenario where

there's a hundred thousand calls, $500 per call -- we are

disregarding the $2 million for now -- I guess we wouldn't
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disregard the $2 million, because you're saying under that

scenario, the fee, if I said it was a third, would actually be

25 million, not 50 million -- not 16,666...

MR. EDELSON: The reason is because 50 million is to

the class, 25 is for fees, so the class got 75 million.

THE COURT: So why didn't somebody then tell me that

I was just flat wrong back when I told you when we talked

about the notice that you had to add something to the notice

that basically said that whatever amount is approved for fees

is going to come out of what you get as a class member,

because you just told me that it doesn't.

MR. EDELSON: It does.

THE COURT: No, it doesn't.

MR. EDELSON: Well --

THE COURT: You multiplied it times 500 bucks. Where

did the 500 bucks figure come from, Mr. O'Meara?

MR. O'MEARA: That's what's agreed to be paid per

call.

THE COURT: It doesn't come out of it unless you get

to a certain number, if you get up to a hundred thousand or

somewhere around a hundred thousand.

MR. O'MEARA: That's correct, your Honor. You're

correct.

MR. EDELSON: Luckily in this case, though,

everything was accurate because the fees will come out.
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THE COURT: Okay. Fine. Point to me -- I think I

got -- I ought to have the -- I thought I had the settlement

agreement here somewhere.

All right. I asked this question the other day, and

then I looked at it on the screen and didn't print it out.

Does somebody remember offhand what docket entry the

settlement agreement is?

MR. BALABANIAN: It's 502, your Honor.

MR. EDELSON: 502.

THE COURT: 502, thank you. I've got it up.

What paragraph of the settlement agreement do I look

at that explains to me the calculation that Mr. Edelson just

gave me or what page, I guess? Either way is fine.

MR. EDELSON: The calculation with how to come up

with --

THE COURT: In other words, a class member is going

to get a maximum of $500 per call less if there's enough --

too many calls to get you over 76 million, but that at least

under the type of scenario we just talked about, that the fees

don't come out of and aren't calculated based on the amounts

that the class members would get under that scenario.

MR. EDELSON: It's Section 2.2(b).

THE COURT: Give me a page.

MR. EDELSON: Page 15, your Honor.

THE COURT: Page 15, 2.2(b). Let me just read it to
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myself.

I am going to try to take out the unnecessary

language. Each approved claim gets you 500 bucks a call

unless the total plus administration expenses, incentive

award, and fee award would exceed 76 million. That's it right

there, basically. It's the parentheses that says, Plus

payment of settlement administration expenses, any incentive

award, and any fee award.

So in that case -- in other words, if it would exceed

-- if the calculation in the first sentence would exceed 76

million, the class member gets a pro rata share after payment

of administration expenses, incentive award, and fee award,

and then it gives an example. Okay.

MR. EDELSON: I hate to introduce something, but

something defendants said was actually inaccurate.

THE COURT: What's that?

MR. EDELSON: What they were suggesting was if there

are $50 million to be paid to the class --

THE COURT: Yeah.

MR. EDELSON: -- then our fees would be -- you know

what?

THE COURT: I am not sure --

MR. EDELSON: I am going to withdraw that.

THE COURT: Fair enough.

And so the thing that I had you add to the notice is
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probably still true in the overwhelming majority of potential

scenarios because it would be only if the amount of calls fell

below some certain number that a fee award would never affect

what the person was getting per call, right?

MR. EDELSON: Correct.

THE COURT: Okay. All right. I was concerned that

maybe I had said something that in retrospect turned out to be

inaccurate. I don't think it was. You got the message across

-- the message that I wanted to get across in that was, hey,

if you want to come in and object to the fees, come in and

object to the fees because it might affect you, and that was

the message that that part of the notice said. It sounds like

there may be some small number of scenarios where that's not

accurate, but in the large numbers, it is accurate. Does

anybody disagree with what I said?

MR. O'MEARA: We do not disagree.

THE COURT: And you do not disagree.

MR. EDELSON: No.

THE COURT: I think I now get it. Let me put it this

way. I think I get it again.

So let me move on then to the other questions I

wanted to ask -- the other topics that I wanted to discuss.

A couple of the things I left on the table were sort

of generally speaking whether fees should be decided now or

later, and then as part of that question, whether and the
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extent to which I ought to have the defendants provide

information about their fees and hourly rates, hours and

hourly rates, and whether -- and in what form I ought to have

people give me kind of the blow by blow of the settlement

negotiations. So those two issues are still -- those two and

a half or three issues are still on the table.

And the more I thought about this, the -- the more I

think -- first of all, at a minimum, I want -- before I decide

exactly when I'm going to decide the fees, I want to get this

information, unless somebody can come up with a good reason

why I shouldn't get it about the settlement history and about

the defendants' attorney hours and hourly rates. And then --

I know there was sort of a fallback position, if you will,

made by Mr. Edelson. The fallback position was -- it's

probably an unfair characterization, but you get my point --

you calculate the fees, a percentage based on the low-end

number, and then you come back later and ask me for more

depending on how many claims get approved. I know that's out

there and on the table. I want to think about that a little

bit more.

Does anybody want to say anything more, and I guess

this would really be a question for Mr. O'Meara and people on

the defense side about whether there's some reason why I

shouldn't tell you to give me something that says, this is

hours and hourly rates for the attorneys that represented the
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defendants and then this question about disclosing the

settlement negotiation history.

MR. O'MEARA: Sure. On the first issue regarding our

records, I mean, we'd be happy to provide them.

THE COURT: I don't want records. I want a summary.

MR. O'MEARA: I understand. I don't know that it's

absolutely necessary. Even if you take the rates and the

amount now before your Honor, it's almost $5 million. Our

position is just even if you consider that, which you can,

it's really the two multipliers is kind of a standard of what

we believe rather than a five multiplier.

THE COURT: I get that. I get that. Nobody should

take, you know, from the fact that I'm asking for this that I

have made up my mind in any way, shape, or form about the

basis of the fee calculation, because I haven't. This is all

data that I want to consider.

MR. O'MEARA: Yes.

THE COURT: That's what I'd like you to do. It makes

sense, I think, to have it all in one document for all the

defendants put together. I just want to get hours and hourly

rates. I think because there's also been an issue raised

regarding the number of attorneys, I think it should be

attorney A spent, you know, a hundred hours at X hourly rate,

attorney B spent 200 hours at Y hourly rate and so on, and it

probably ought to be broken down on a per defendant basis.
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MR. O'MEARA: We had a firm --

THE COURT: How long should I give you to do that?

MR. O'MEARA: If we could get 14 days.

THE COURT: Sure. That's fine. So the order is

going to say that the defendants have until the 13th of March

to provide information regarding attorney hours and hourly

rates.

So the second question is settlement negotiation

history. So we talked about this a little bit last week. I

think Mr. Edelson's position was it ought to be disclosed and

it ought to be a matter of public record because it's a class

action, so that's the question.

MR. O'MEARA: Our position, your Honor -- it hasn't

changed, and I hope I didn't give any indication otherwise --

we believe those settlement discussions, including the

mediation, are confidential. All the parties signed a

confidentiality agreement prior to entering into all of the

mediations with Judge Andersen. We don't believe, frankly,

the history of the specifics of the settlement negotiations

are relevant to the attorneys' fee determination, and so we

would very strenuously say that those specifics of the

negotiations are confidential, have remained confidential, we

have not waived any confidentiality, and they really do not

play a relevant role, we believe, in your determination of

attorneys' fees.
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THE COURT: Mr. Edelson, is there more that you want

to say about that or anybody on your side of the fence?

MR. EDELSON: Yes, your Honor. First of all, we have

provided evidence in the form of an affidavit from me, and we

are trying to find the pinpoint cite.

THE COURT: Is this an affidavit to the fee petition?

MR. EDELSON: Yes.

MR. BALABANIAN: Yes, and the reply brief, your

Honor.

THE COURT: All right. Because your affidavit on the

fee petition is Exhibit 1?

MR. BALABANIAN: Yes.

THE COURT: And I mean, it did say -- I mean, it gave

-- that affidavit gave some sort of general information, but

it didn't give what I would call a blow by blow.

MR. EDELSON: Which we would be happy to do.

THE COURT: Do you think that you've already given it

to me at some point in time? If you did, I didn't see it.

MR. EDELSON: No, we would like to. But what our

understanding was the way we perceived was we would give our

views of this, and if they objected to it, then we would go

through the blow by blow. But we did give an affidavit, which

is evidence. Our expert looked at all the settlement

negotiations, gave an expert opinion. Both of those are --

have not been refuted with any evidence. If they want to
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refute that, they certainly have the right to, and then we can

say -- everything is in writing, we can say, here's exactly

what happened. But this is a big point for the basis of our

fees, and --

THE COURT: Yeah, so the way I look at this is that

-- again, the fact that I'm asking about this is not an

indication that I think this is a dispositive issue because,

honestly, certain people decide things in certain ways. I'd

rather know more than less before deciding things, and I'd

rather actually know more than less before deciding, frankly,

how to go about deciding it.

One of the arguments that's made on the defense side

is that, you know, default rule or maybe it's more than the

default rule is this whole descending percentage scale. The

plaintiffs make the argument, well, it's not a default rule,

but even if it is, Synthroid talks about it doesn't apply in

every case, this is a case it doesn't apply in. There are

reasons why it doesn't apply. And it seemed to me from

reading the briefs that part of that pitch -- and I know

that's not the only argument that's made, but part of that

pitch is that the way settlement negotiations in this case

proceeded explains why this case fits within what I'll call

the exception that Judge Easterbrook talked about in

Synthroid. So as part of trying to figure this whole thing

out, I think that I would like to get more about that.
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So, look, so -- A, it's a class action, and, B, I

have an objector, and the objector is objecting on this basis.

That's on the one hand. On the other hand, you have this

confidentiality agreement. I know those are standard

operating procedures in mediations that are done with people

like retired Judge Andersen, and so I'm trying to figure out

-- I'm trying to figure out if there is a way that I can get

this information so I can evaluate whether I'm going to take

it into account without making it a matter of public record

and open it up only if I decide that it should be taken into

account. And I don't know if I can -- I don't know if I can

slice it that thin. That's the question.

MR. EDELSON: I have a suggestion that might work.

THE COURT: Okay.

MR. EDELSON: Why don't we do it under seal.

THE COURT: So the whole deal is whether the tall guy

standing over there gets to see it or not.

MR. EDELSON: Yeah, he should get it. That's my

view. He can be part of the protective order as long as he

understands it's under seal. And then, you know, our position

is ultimately it shouldn't be under seal, but as a threshold

matter, he is the only one I believe who is objecting to fees.

THE COURT: Correct.

MR. EDELSON: So that seems like it would solve the

problem.
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THE COURT: Do you have a view on this?

MR. NOVOSELSKY: I would be okay with going about it

in that way, your Honor.

THE COURT: If the under seal basically meant

attorneys' eyes only, are you comfortable with that too?

MR. NOVOSELSKY: Yes, your Honor.

THE COURT: Mr. O'Meara?

MR. O'MEARA: Judge, our position --

THE COURT: I know your position is I shouldn't take

it into consideration. I am not prepared to buy off on that

right now.

MR. O'MEARA: I know, but I appreciate your

willingness to look at it under seal. I guess what I'd ask is

to the extent there is a determination that it should be in

the public record --

THE COURT: I'll give you a chance.

MR. O'MEARA: -- we can brief it.

THE COURT: Absolutely. That's a completely

reasonable request. I absolutely will let you do that.

What I want to get is a -- I don't know the best way

to do this. Just get a report regarding the settlement

negotiation is to be filed under seal. It only can be viewed

by counsel of record for the parties and objector Freedom Home

Care, Inc., and that's it. None of those people can disclose

it to anybody else. If you think you need to disclose it to
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somebody else, you got to come and ask me first, and before I

make it a matter of public record, I will give the parties a

chance to brief that.

Should I get something -- can you do something joint,

or does it make more sense -- you tell me. You tell me.

What's the form and manner I should get this?

MR. O'MEARA: It's unusual from our perspective. We

can do it jointly, that's fine. I wonder if I could just

suggest, is it possible we could submit is to you in a

different form rather than under seal? I think if someone

sees a docket entry with something under seal, later on if you

decide it does get unsealed, I just have a concern.

THE COURT: Well, there's going to be an order that's

going to say it's to be filed under seal. It won't be just

kind of this mystery entry. I don't know if there is any

other way rather than making a paper airplane and sending it

to me that you could get it to me. Let's do it that way. Is

that same two weeks enough time to do that?

MR. EDELSON: Yes, your Honor.

THE COURT: Fine. That's also due on the 13th of

March.

MR. O'MEARA: Judge, I am thinking in my head about

getting hours and stuff. Can I get 21 days?

THE COURT: Sure. That's fine. 21 days, that's

fine.
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MR. O'MEARA: Thank you.

THE COURT: The fee thing is the 20th of March. The

settlement history thing is the 16th of March. I think that I

can -- I am not giving up too much when I tell you that --

again, as I suggested last week, aside from the one other

objector, there's nobody objecting to the terms of the

settlement as distinct from the attorneys' fees -- I am

working on an order approving the settlement because I think

the criteria have been met. I am not going to walk through

that today because it's going to be in a written order and

it's just going to leave the fees for later determination.

And hopefully, by the time I figure that out, I will know what

later means, although I can't guarantee that.

Anything else anybody wants to talk about here today?

Mr. Backman, do you have anything you want to bring

up?

MR. BACKMAN: I couldn't really hear the lawyers. I

am just hearing the context of the order with respect to the

disclosure of the settlement communications in some sort of

written form.

THE COURT: Yeah. Let me tell you -- I'm sorry. It

is kind of a bad situation here with the sound.

What I've told the attorneys is that I want a joint

report that basically gives me what I'll call a blow-by-blow

description of the settlement discussions. It's to be filed
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under seal, attorneys' eyes only. The attorney for objector

Freedom Home Care is going to get to see it, but it's

attorneys' eyes only for him too. He was okay with that.

If anybody thinks they need to show it to anybody

other than counsel of record, they are going to need to come

ask me. And I guaranteed to Mr. O'Meara we will put in the

order that before I contemplate unsealing it, I will give the

parties a chance to brief that.

MR. BACKMAN: Thank you for clarifying that for me,

your Honor. I take it there is no talking you out of that

disclosure in the first place.

THE COURT: Mr. O'Meara gave it his level best.

MR. BACKMAN: I am wondering if we could do some sort

of in camera discussion with you as opposed to putting it on

paper and perhaps have Judge Andersen there as well.

THE COURT: What would be the reason for doing that?

What difference does it make?

MR. BACKMAN: I always have concerns when it's under

seal. Once it's on paper, once it's filed in the court

records even under seal, you can't get any of that back.

THE COURT: Look, here's the deal. It's a class

action. If I had an in camera discussion, I'd have the court

reporter there, and I'd tell her to put the transcript under

seal. All roads lead to Rome.

MR. BACKMAN: Perhaps I misunderstood some comments
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during the course of the hearing. It seemed like you want to

know to know before you even decide if you want to know for

purposes of your ruling. That's the only reason I suggest

something a little more informal.

THE COURT: Actually, you described that accurately,

and when we all go back some day and read that sentence, it's

going to look pretty goofy, but it's accurate. Yeah, the

short answer is I don't think that I'm going to be able to

make up my mind, you know, just off-the-cuff, and so I would

prefer to have something that I can think about and digest and

not have to deal with in that way. And the bottom line is I

do not believe that CM/ECF -- that a single under seal entry

in the history of CM/ECF has ever been hacked by anybody, and

so I really don't think that there's a basis for concern

there.

And the bottom line is that there's a finite number

of attorneys of record who are going to see this, and I want

to think about that for a second because now that I'm thinking

about it, the other objector is also an attorney of record,

and he's not entitled to it. So I think I'm going to have my

courtroom deputy think about if there's a way of limiting who

can see this particular document to particular individuals,

but we will talk about that offline. I would probably then

just make it -- I'd ask each side, including the Freedom Home

Care, to designate one person who is able to see the thing,
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but I don't know. I will think about that. I got to move on

to something else, though, and I don't want to spend too much

more time talking about this.

MR. BACKMAN: Thank you.

THE COURT: Anything else?

Thanks. Take care.

MR. EDELSON: Thank you, your Honor.

MR. O'MEARA: Thank you, your Honor.

MR. NOVOSELSKY: Thank you, your Honor.

(Which were all the proceedings had in the above-entitled

cause on the day and date aforesaid.)

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

Carolyn R. Cox Date

Official Court Reporter

Northern District of Illinois

/s/Carolyn R. Cox, CSR, RPR, CRR, FCRR