In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 17-1626, 17-1778, 17-1953, 17-1969, 17-1984 & 17-2857

GRANT BIRCHMEIER, et al.,

Plaintiffs-Appellees,

v.

CARIBBEAN CRUISE LINE, INC., et al.,

Defendants-Appellants.

APPEALS OF:

CARIBBEAN CRUISE LINE, INC.; VACATION OWNERSHIP 

MARKETING TOURS, INC.; THE BERKLEY GROUP, INC.;

FREEDOM HOME CARE, INC.; KEVIN MCCABE

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 4069 — Matthew F. Kennelly, Judge.

____________________

ARGUED FEBRUARY 14, 2018 — DECIDED JULY 24, 2018

____________________
2 Nos. 17-1626 et al.

Before EASTERBROOK and ROVNER, Circuit Judges, and 

GRIESBACH, District Judge.

*

EASTERBROOK, Circuit Judge. During 2011 and 2012 a million people received phone calls asking them to take political 

surveys in exchange for a chance to go on a free cruise. Some 

recipients filed a class action under the Telephone Consumer 

Protection Act, 47 U.S.C. §227, seeking damages for these

unsolicited communications. Caribbean Cruise Line, Vacation Ownership Marketing Tours, and the Berkley Group 

were named as defendants on the theory that, though they 

had not placed the calls, they had directed them and thus are

vicariously liable. (The plaintiffs also sued the caller, which

has not participated in these appeals.) The district court certified a class under Fed. R. Civ. P. 23(b)(3). Later it granted 

partial summary judgment in the plaintiffs’ favor and 

scheduled a trial. 179 F. Supp. 3d 817 (N.D. Ill. 2016).

On the eve of trial the parties settled. Plaintiffs agreed to 

release their claims against all defendants and any of the defendants’ “agents [or] independent contractors”. In exchange 

defendants agreed to pay into a fund no less than $56 million and no more than $76 million. The total will depend on 

the number of approved claims that class members submit. 

Out of the fund will come payments to the class, incentive 

awards to the named representatives, about $2 million in 

administrative expenses, and attorneys’ fees. The class will 

receive payments in two rounds. If some claimants do not 

cash the checks sent during the second round, money will be 

left over, and those remaining funds will go to “an appropriate cy pres recipient” to be approved by the district court. 

 * Of the Eastern District of Wisconsin, sitting by designation.
Nos. 17-1626 et al. 3

(The district court has not yet determined whether that occurs, so we need not wait for In re Google Referrer Header Privacy Litigation, 869 F.3d 737 (9th Cir. 2017), cert. granted under the name Frank v. Gaos, 138 S. Ct. 1697 (2018).)

Over the objections of Kevin McCabe, who says he is in 

the class, the district court approved the settlement, estimating that each claimant will receive $400. 2017 U.S. Dist. LEXIS

29400 (N.D. Ill. Mar. 2, 2017). After approving the settlement, 

the court entered judgment under Fed. R. Civ. P. 58. It also 

awarded attorneys’ fees to class counsel under Fed. R. Civ. 

P. 23(h). The award gives counsel 36% of the first $10 million 

paid into the fund, 30% of the next $10 million, 24% of the 

next $36 million, and 18% of any additional recovery. 2017 

U.S. Dist. LEXIS 54080 (N.D. Ill. Apr. 10, 2017).

We have three sets of appeals: (1) defendants and a 

member of the class, Freedom Home Care, contend that the 

award of fees overcompensates class counsel; (2) Freedom 

Home Care wants an incentive award and attorneys’ fees for 

its role in objecting to class counsel’s fees; and (3) McCabe 

complains that the settlement’s approval was improper. Before we discuss the merits of these appeals, we must ensure 

that we have jurisdiction.

The appeals are within our jurisdiction only if they challenge “final decisions” of the district court. 28 U.S.C. §1291.

A decision on the merits is final only if it “resolves all claims 

of all parties”. Domanus v. Locke Lord LLP, 847 F.3d 469, 477 

(7th Cir. 2017) (emphasis in original). The caller (or rather, 

three entities that allegedly acted as the caller—Economic 

Strategy LLC, Economy Strategy Group, Inc., and a political 

committee named Economic Strategy Group) did not participate in the settlement. But the settlement releases plaintiffs’ 
4 Nos. 17-1626 et al.

claims against the settling defendants’ “agents [or] independent contractors”. The parties to these appeals tell us that 

the caller was an “agent” or “independent contractor” of the 

other defendants for the purpose of this release. Consistent 

with that understanding, the district court’s judgment states: 

“The Court hereby dismisses the Action”—the whole action, 

not just some of it—“on the merits and with prejudice”. This 

judgment disposes of the claims against all parties, not just 

the claims against the settling parties, so it is a final decision 

on the merits. Freedom Home Care’s challenge to the denial 

of an incentive award and fees therefore falls within the 

scope of §1291, as does McCabe’s appeal. Cf. Devlin v. 

Scardelletti, 536 U.S. 1 (2002).

Whether the same can be said about defendants’ and 

Freedom Home Care’s appeal of the decision awarding fees 

to class counsel requires more discussion. A decision about 

fees, if final, is appealable separately from the merits. See 

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988). The 

district court wrote:

Because the process for approving claims is still ongoing, the 

Court awards at this time only those attorney’s fees corresponding to the minimum amount defendants will be required to pay 

into the common fund. As discussed above, that fee amount is 

$14.76 million [that is, the sum of 36% of the first $10 million,

30% of the next $10 million, and 24% of the next $34 million]. 

Class counsel may petition the Court for the remainder of the fee 

award upon conclusion of the claims-approval process.

2017 U.S. Dist. LEXIS 54080 at *32. This decision does not 

quantify the total fees that counsel will collect. It instead 

awards a portion of the fees ($14.76 million) and tells counsel 

to come back for more if the size of the pot grows.
Nos. 17-1626 et al. 5

Interim awards of attorneys’ fees can hardly be called final, cf. Sole v. Wyner, 551 U.S. 74 (2007), and such awards 

typically are not appealable under §1291. See, e.g., Dupuy v. 

Samuels, 423 F.3d 714, 717 (7th Cir. 2005); People Who Care v. 

Board of Education, 272 F.3d 936, 937 (7th Cir. 2001). But an 

award may be final if the district court lays out a formula for 

calculating the award’s amount. See, e.g., Hyland v. Liberty 

Mutual Fire Insurance Co., 885 F.3d 482, 484 (7th Cir. 2018); 

Production & Maintenance Employees’ Local 504 v. Roadmaster 

Corp., 954 F.2d 1397, 1401–02 (7th Cir. 1992); Parks v. Pavkovic, 753 F.2d 1397, 1401 (7th Cir. 1985). See also Charles 

Alan Wright, Arthur R. Miller & Edward H. Cooper, 15B 

Federal Practice & Procedure §3915.2 at 279 (2d ed. 1992) 

(“[M]erely ‘ministerial’ proceedings to calculate a specific 

award do not defeat finality.”). Such an award leaves some 

math but nothing for the district court to decide.

This award does exactly that. Though the district court 

told counsel to “petition the Court for the remainder of the 

fee award,” it also prescribed a formula for that remainder: 

18% of the amount recovered over $56 million. The court 

had considered other means, such as using a multiplier of 

0.15 instead of 0.18. But it landed on 18%, explained its 

choice, and stated that “the Court awards class counsel ... 

18% of the remainder.” 2017 U.S. Dist. LEXIS 54080 at *28–31. 

The total award is not yet known only because the number 

of approved claims is not yet known. Once the parties know 

that number, computing the remaining fees will be a mechanical exercise. Some tasks unrelated to the calculation of 

fees remain for the district court, such as (perhaps) choosing 

a recipient for funds unclaimed after the second round of 

payments. But as a practical matter the district court is fin-
6 Nos. 17-1626 et al.

ished with the litigation about class counsel’s fees, so the 

award is final for the purpose of §1291.

More: The fact that the award postdates the judgment 

creates a problem distinct from cases about prejudgment 

awards. A litigant who wishes to challenge a prejudgment 

award can do so by timely appealing the judgment. See 

Dupuy, 423 F.3d at 717; Badger Pharmacal, Inc. v. ColgatePalmolive Co., 1 F.3d 621, 626 (7th Cir. 1993). But when, if not 

now, could the defendants in this case challenge the 

postjudgment award? Suppose that months from now the

parties determine that only $56 million goes into the fund. 

Then there will not be any remaining fees for class counsel to 

seek (18% of nothing is nothing) or any subsequent award 

from which defendants could appeal. That possibility and its 

variations, if combined with a conclusion that the original 

award is not final, would put defendants in a bind. They 

could not timely appeal the original award, because a second 

might follow after the expiration of the 30-day deadline to 

appeal the first. See 28 U.S.C. §2107(a). But a second might 

not follow, and defendants cannot appeal an award that is 

never made. Such dilemmas should be avoided. See Gelboim 

v. Bank of America Corp., 135 S. Ct. 897, 904–06 (2015). We do 

not mean to suggest that the collateral-order doctrine applies; that possibility goes nowhere after Mohawk Industries, 

Inc. v. Carpenter, 558 U.S. 100 (2009). Instead we mean that 

our conclusion about the award’s finality steers clear of a 

problem that the opposite conclusion would produce.

So we have jurisdiction over the appeals, and we address 

each in turn. Defendants take issue with the structure of the 

fee award. They insist that the award should give class 

counsel only 25% (rather than 30%) of the second tier of re-
Nos. 17-1626 et al. 7

covery, 20% (rather than 24%) of the third, and 15% (rather 

than 18%) of the remainder. To this Freedom Home Care 

adds that the third tier should be capped at some figure 

lower than $56 million. These changes to the award, they 

say, would align it with awards of attorneys’ fees that have 

been approved in other suits brought under the Act. See also 

In re Synthroid Marketing Litigation, 325 F.3d 974 (7th Cir. 

2003).

Defendants are correct that the fee award is bigger than 

some awards in other suits. But that does not mean the 

award is too big. When awarding fees to class counsel, district courts must approximate the fees that the lawyers and 

their clients would have agreed to at the outset of the litigation given the suit’s risks, competitive rates in the market, 

and related considerations. See In re Synthroid Marketing Litigation, 264 F.3d 712 (7th Cir. 2001); Silverman v. Motorola Solutions, Inc., 739 F.3d 956 (7th Cir. 2013). The district court engaged in that ex ante analysis, explaining at length why this 

suit had been a riskier undertaking than many others 

brought under the Act and why counsel thus would have 

negotiated a relatively high rate of compensation. A primary 

source of risk was plaintiffs’ reliance on a theory of vicarious 

liability, which created legal and factual complications that 

do not arise when plaintiffs pursue only direct liability. See 

2017 U.S. Dist. LEXIS 54080 at *18–32.

We need not reproduce the district court’s thorough discussion of this subject. We review decisions about attorneys’ 

fees for abuse of discretion, see, e.g., Silverman, 739 F.3d at 

958, and appellants have not identified any abuse. We add 

only that it is unproductive to make arguments about the 

percentages assigned to some tiers of recovery, as defend-
8 Nos. 17-1626 et al.

ants have done. Consider: 30% of the first $20 million and 

20% of the next $20 million come to the same as 25% of $40

million. Bands and percentages can be juggled, but, unless 

the bottom line changes, what’s the point? (The risk profiles 

of these two structures may differ, but that does not matter 

when they are devised after the award of damages has been 

calculated.) Defendants’ position boils down to a contention 

that the fees exceed the market rate, and the district court

did not abuse its discretion in finding otherwise. What got 

multiplied with what else to produce a marketapproximating outcome does not matter.

Freedom Home Care contends that it is entitled to an incentive award and attorneys’ fees for its objection to class 

counsel’s fees. Plaintiffs’ motion for fees had proposed that 

class counsel take a third of the fund. Freedom Home Care 

counter-proposed that the fund be divided into four tiers 

and that counsel take decreasing proportions of each. The 

award adopts that structure, which the parties call a “sliding-scale approach,” and Freedom Home Care wants to be 

compensated for proposing it. Yet its proposal did not add 

marginal value to the litigation. Plaintiffs’ motion itself discussed the sliding-scale approach, a common one in large 

class actions. The district court was certain to consider the 

possibility, no matter what Freedom Home Care said, so the 

court did not abuse its discretion in concluding that Freedom Home Care did not supply value to the class. See 2017 

U.S. Dist. LEXIS 135755 (N.D. Ill. Aug. 24, 2017).

Last comes McCabe’s appeal. He contends that the settlement improperly releases claims outside the class period 

(August 2011 to August 2012) and that the notice sent to the 

class members was deficient. For two reasons the district 
Nos. 17-1626 et al. 9

court held that McCabe lacks standing to raise these objections. First, McCabe’s objections state that he is “a class 

member who received calls on his cell-phone number ... and 

landline phone ... outside of the class period”. The court 

found this statement self-contradictory; it treated McCabe’s 

assertion that he received calls “outside of the class period” 

as an assertion that he did not receive calls within the class 

period, and it reasoned that McCabe thus could not be in the 

class. Second, in 2015 McCabe won a judgment against Caribbean Cruise Line in an action he had brought in the Eastern District of New York. The court decided that any claim 

arising from calls McCabe received during the class period 

should have been brought in his separate suit, and that the 

doctrine of claim preclusion now bars any such claim.

The district court’s conclusions about standing were 

flawed. Claim preclusion, an affirmative defense under Fed. 

R. Civ. P. 8(c), has nothing to do with standing. See Exxon 

Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293 

(2005). And there wasn’t a basis to ignore McCabe’s assertion that he is a member of the class. The statement on which 

the district court relied does not say otherwise; it tells us that 

McCabe is a member who also received calls outside the class 

period. The other parties ask us to disbelieve McCabe because he has not produced logs to show when he received 

calls. But McCabe supported his statement by signing it under penalty of perjury. See 18 U.S.C. §1621; 28 U.S.C. §1746. 

Though he could have proved his membership with different evidence, it does not follow that we should disregard the 

evidence he offered.

Despite concluding that McCabe lacks standing, the district court rejected his objections on the merits. So do we. 
10 Nos. 17-1626 et al.

McCabe first argues that the settlement releases claims arising from calls outside the class period. The settlement defines “released claims” as:

[A]ny and all actual, potential, filed, known or unknown, fixed 

or contingent, claimed or unclaimed, suspected or unsuspected, 

claims ... arising out of the facts, transactions, events, matters, 

occurrences, acts, disclosures, statements, representations, omissions or failures to act regarding the alleged calls made with a 

prerecorded or artificial voice offering a free cruise in exchange 

for taking an automated public opinion and/or political survey[.]

According to McCabe, the “alleged calls” mentioned in this 

definition include calls made before 2011 or after 2012. Because the class members were never notified that the settlement covers such calls, the argument goes, the court should 

not have approved it. The argument rests on an incorrect 

premise. The “alleged calls” include: well, only the calls that 

were alleged. And the operative complaint, filed in March 

2015, alleges calls only from August 2011 to August 2012. 

The appellate briefs tell us that plaintiffs and defendants 

(and the district court) agreed that “alleged calls” means 

“calls within the class period”, and the doctrine of judicial 

estoppel will prevent those parties from taking an opposite 

position in future proceedings. See New Hampshire v. Maine, 

532 U.S. 742, 749–51 (2001).

We can quickly dispose of McCabe’s remaining argument: He insists that the notice sent to the class insufficiently 

described the process for selecting a cy pres recipient. Not so. 

The notice told class members that a cy pres recipient might 

be selected after the second round of payments, gave instructions for recommending recipients, and provided a 

website where members can learn more about the settle-
Nos. 17-1626 et al. 11

ment. That is enough to meet the notice requirements of Fed. 

R. Civ. P. 23.

AFFIRMED