UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Case No. 2:15-cv-10248-DML-EAS

Hon: David M. Lawson

NANCY MCKEE,

individually, and on behalf of all those CLASS REPRESENTATION

similarly situated,

Plaintiff, 

vs. 

NAVIENT SOLUTIONS, INC. 

f/k/a SALLIE MAE, INC., a foreign 

corporation,

Defendant.

___________________________________________________________________

R. Christopher Cataldo (P39353) Tod Aronovitz 

JAFFE, RAITT, HEUER & WEISS, PC ARONOVITZ LAW

27777 Franklin Rd., Ste. 2500 2 S. Biscayne Boulevard

Southfield, MI 48034 One Biscayne Tower, Suite 2630

(248) 351-3000 Miami, FL 33131

ccataldo@jaffelaw.com (305) 372-2772 

ta@aronovitzlaw.com

Timothy J. Sostrin

KEOGH LAW, LTD.

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

(312) 726-1092 

sostrin@keoghlaw.com

PLAINTIFF’S MOTION IN SUPPORT OF AWARD OF 

ATTORNEY’S FEES AND EXPENSES TO CLASS COUNSEL

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Plaintiff, Nancy McKee, moves this Honorable Court for the entry of an Order 

awarding reasonable attorney’s fees and costs pursuant to the provisions of Fed. R. 

Civ. P. 68.

In order to kill this putative class action and escape massive liability, 

Defendant Navient Solutions, Inc. f/k/a Sallie Mae, Inc. (“Navient”) served Plaintiff 

with an offer of judgment that could arguably moot Plaintiff’s individual claim and 

require dismissal of the putative class claims as well. See Brunet v. City of Columbus, 

1 F.3d 390, 399 (6th Cir. 1993).

Navient resorted to this tactic because this action, were it to proceed, would 

establish that Navient continues to violate the Telephone Consumer Protection Act 

(47 U.S.C. § 227) despite two prior class actions that together required Navient to 

pay over $33,000,000 to the benefit of the class. See Arthur v. SALLIE MAE, Inc., 

No. 10-00198 (W.D. Wa.); Cummings v. Sallie Mae, Inc., No. 12-9984 (N.D. Ill.)

Rather than risk liability on that scale yet again, Navient offered Mrs. McKee 

thousands of dollars more than she would have received as an individual had the 

case proceeded to pretrial settlement or trial, and thus threatened dismissal of the 

putative class claims for mootness. Rather than risk that outcome and the sanctions 

imposed by Rule 68 for the rejection of complete offers of relief, Plaintiff accepted 

the offer of judgment. Doc. 20. 

The offer of judgment states that Navient: 

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“hereby offers to allow judgment to be taken against it in this action in 

favor of the individual plaintiff Nancy McKee (“McKee”) for 

$12,001.00 (twelve thousand one dollars), plus an additional amount 

for reasonable attorneys’ fees and costs incurred by McKee related 

solely to her individual claim. Such fees and costs shall be in an amount 

mutually agreed upon by Mckee and [Navient], or if they are unable to 

agree, as determined by the Court upon Motion.” 

Doc. 20 at ex. A. The parties were unable to agree. Plaintiff now moves for an 

award of reasonable attorneys’ fees and costs pursuant to Rule 68. 

BRIEF IN SUPPORT OF MOTION

Issue Presented: The amount of Reasonable Attorney’s Fees and Costs that 

Defendant Navient must pay to plaintiff in accordance with its offer of judgment.

Controlling Authorities: Andretti v. Borla Performance Industries, Inc., 426 

F.3d 824 (6th Cir. 2005); Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th 

Cir. 2000); Purtle v. Eldridge Auto Sales, 91 F.3d 797, 802 (6th Cir. 1996).

Case Overview

Starting in the Fall of 2014, after being contacted by Mrs. Nancy McKee, 

counsel diligently commenced fact investigation and legal research of a prospective 

TCPA case to be filed against Navient Solutions, Inc. f/k/a Sallie Mae, Inc. 

(“Navient”). The presuit investigation included an in-person interview of Mrs. 

McKee, detailed analysis of the business practices of Defendant to determine if there 

was indeed a TCPA violation that adversely impacted the Plaintiff and other putative 

class members, and diligently performed legal research to determine the business 

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practices of Navient and its recent five (5) year history of defending wrongful 

telephone debt collection calling practices in class action cases across the country. 

Undersigned counsel concluded that Navient had entered into two (2) national 

TCPA class action settlements in 2012 and 2014 which were confirmed and 

approved by two (2) U.S. District Court Judges. Counsel’s investigation concluded 

that Navient had violated the rights and interests of Mrs. McKee and other class 

members. This nationwide consumer class action case was thereafter filed. 

The TCPA, in relevant part, makes it unlawful for any person “to make any 

call using any automatic telephone dialing system...to any telephone number 

assigned to a...cellular telephone service.” 47 U.S.C. § 227(b)(1)(A). Further, the 

TCPA specifically prohibits autodialed and prerecorded messages calls to a cellular 

telephone service without the “prior express consent of the called party.” 47 U.S.C. 

§ 227(b)(1)(A)(iii). For each violation of the TCPA, a person or entity is afforded 

a private right of action to seek both injunctive relief and monetary damages. 47 

U.S.C. § 227(c)(5).

On September 17, 2012, the United States District Court for the Western 

District of Washington approved a nationwide settlement in a class action case in 

which the Plaintiff detailed SALLIE MAE’s nearly 5-year practice of violating the 

TCPA. See Arthur v. SALLIE MAE, Inc., No. 10-00198 (W.D. Wa. Sept. 17, 2012) 

(Settlement Order and Final Judgment).

In Arthur, the settlement with SALLIE MAE over TCPA violations included 

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a settlement fund for plaintiffs and the class in the amount of $24,150,000.

In 2013, plaintiffs in the United States District Court for the Northern District of 

Illinois filed a class action against SALLIE MAE alleging nationwide claims of 

TCPA violations, which occurred on or after the class period expired in Arthur

(September 15, 2010). See Cummings v. Sallie Mae, Inc., No. 12-9984 (N.D. Ill. 

Oct. 16, 2013) (Amended Complaint).

On May 30, 2014, the Northern District of Illinois Court approved a class 

action settlement against SALLIE MAE, defining the settlement class as including 

“approximately 251,000 persons who SALLIE MAE has identified in available 

records as possibly having been called from September 15, 2010 through, and 

including [ December 12, 2013]”. Id. at Doc. 73 (Dec. 12, 2013). Despite the 

substantial settlements in both Arthur and Cummings relating to allegations of 

TCPA violations over an eight year period, Defendant continues to violate the 

TCPA.

Plaintiff, Mrs. McKee, received calls from Defendant on her cellular 

telephone including calls on September 9, 2014, and September 17, 2014. These 

telephone calls from Defendant were an attempt to collect a debt relating to 

Plaintiff’s daughter. In both instances, voicemails were left on Mrs. McKee’s

cellular phone voicemail indicating that the calls were from “SALLIE MAE,” and 

were sent from telephone number (317) 348-9960. 

Each call the Defendant made to Plaintiff was made using an “automatic 

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telephone dialing system” which has the capacity to store or produce telephone 

numbers to be called, using a random or sequential number generator; and to dial 

such numbers as specified by 47 U.S.C. § 227(b)(1)(A). Each call the Defendant 

made to the Plaintiff’s aforementioned cellular telephone number was for nonemergency purposes and in the absence of Plaintiff’s prior express consent, in 

violation of 47 U.S.C. § 227(b)(1)(A).

Plaintiff’s complaint defined the putative class as follows:

All persons within the United States who received a nonemergency telephone call from Defendant to a cellular telephone 

through the use of an automatic telephone dialing system or an 

artificial or prerecorded voice on or after December 13, 2013. 

Excluded from this class are persons who provided their express 

permission for Defendant to contact them on their cellular 

phones or who have released all of their claims as a result of the 

class settlements in Arthur v. Sallie Mae and Cummings v. Sallie 

Mae.

This case was filed on January 22, 2015 and was originally assigned to the 

U.S. District Court Judge Sean Cox and thereafter assigned to U.S. District Court 

Judge David Lawson. Plaintiff’s counsel diligently litigated this case in compliance 

with all court ordered deadlines. The legal services performed by Plaintiff’s counsel 

are detailed in the Declarations of Tod Aronovitz (Exhibit “A”), R. Christopher

Cataldo (Exhibit “B”) and Keith Keogh (Exhibit “C”) attached hereto.

Counsel for Plaintiff have itemized and explained in Exhibits “A”, “B”, and 

“C” their commitment to the case and describe the legal services performed and costs 

incurred in prosecuting this consumer class action case. As stated herein, Plaintiff’s 

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counsel vigorously prosecuted this case with the belief that an order granting class 

certification would be entered. The Offer of Judgment offered Mrs. McKee

thousands of dollars more than she would have received had the case proceeded to 

pretrial settlement or trial. The generous Offer of Judgment was made by the same 

corporation that had spent the past five (5) to eight (8) years defending the very same 

allegations of a national practice of wrongful telephone collection conduct. 

Navient’s strategic ploy succeeded.

On July 15, 2015 Defendant filed an Offer of Judgment which was discussed 

between Plaintiff’s counsel and Mrs. McKee. Plaintiff did in fact accept the Offer 

of Judgment.

Law and Argument

A. Navient Must Pay Reasonable Attorneys’ Fees and Costs

Plaintiff’s acceptance of the offer of judgment requires Navient to pay 

reasonable attorneys’ fees and costs because the acceptance binds Navient to its offer 

to do so. See Andretti v. Borla Performance Industries, Inc., 426 F.3d 824 (6th Cir. 

2005) (“we should apply general contract principles to interpret Rule 68 offers of 

judgment”); see also Malone v. Portfolio Recovery Associates, 2015 U.S. Dist. 

LEXIS 103575, *13 (E.D. MI 2015). 

Thus, Navient must pay Plaintiff’s reasonable attorney’s fees and costs even 

though the TCPA is not a fee shifting statute. See Barech v. City of Portland, 2015 

U.S. Dist. LEXIS 25398, *9 (D. Ore. 2015) (“Here, the plain language of the Offer 

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of Judgment suggests the City agreed to pay for Barech's reasonable attorney fees 

incurred in conjunction with all seven of his claims, and not attorney fees incurred 

pursuing only those claims brought under statutes which allow recovery of attorney 

fees.”); Tijerina v. Bommarito Pontiac South, Inc., 2013 U.S. Dist. LEXIS 177622, 

*4 (E.D. Mo. 2013) (“when defendant agreed to pay the reasonable attorneys' fees 

in this case, it waived any right it might have had to argue that the bankruptcy law 

precludes an award of fees.”)

B. The Court Should Award Attorneys’ Fees Pursuant to Lodestar

The starting point for a calculation of reasonable attorney's fees “should be 

the determination of the fee applicant's ‘Lodestar,’ which is the proven number of 

hours reasonably expended on the case by an attorney, multiplied by his [or her] 

court-ascertained reasonable hourly rate.” Adcock-Ladd v. Sec'y of Treasury, 227

F.3d 343, 349 (6th Cir. 2000), citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The Lodestar amount determined by the Court enjoys a “strong presumption” that 

the fee “represents a ‘reasonable’ fee.” Pennsylvania v. Del. Valley Citizens' Council 

for Clean Air, 478 U.S. 546, 565 (1986); City of Burlington v. Dague, 505 U.S. 557, 

562 (1992).

Attorney’s fees are not limited by the amount of recovery, especially in 

consumer cases such as this one where attorneys’ fees can quickly surpass the 

Plaintiff’s damages. Purtle v. Eldridge Auto Sales, 91 F.3d 797, 802 (6th Cir. 1996). 

An award of attorneys’ fees in consumer cases should provide compensation which 

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is commensurate with other types of cases in order encourage counsel to undertake 

them. Zagorski v. Midwest Billing Services, 128 F.3d 1164, 1167 (7th Cir. 1997).

C. Counsel’s Hourly Rates and Hours Expended are Reasonable 

The attached declarations establish the reasonableness of counsel’s hourly 

rates, which average $397 per hour. Counsel took this matter on a contingent fee 

basis and thus faced significant risk of nonpayment for their work. Exhibit A at ¶ 14. 

Counsel have proven success in consumer class action litigation, including litigation 

under the TCPA. Tod Aronovitz has served as President of the Florida Bar, and was 

selected to be a member of the National Association of Distinguished Counsel. 

Exhibit A at ex. 1. His firm recently won the title of Best Florida Firm for Class 

Action Litigation. Id. Attorneys Keith Keogh and Timothy Sostrin have been at the 

forefront of TCPA litigation throughout the country. Keith Keogh was class counsel 

in the two largest TCPA settlements in history. See Hageman v. AT&T Mobility LLC, 

et al., Case 1:13-cv-00050-DLC-RWA (D. MT.) (Co-Lead) (Final Approval 

Granted February 11, 2015 providing for a $45 million settlement for a class of 

16,000 persons) and Capital One Telephone Consumer Protection Act Litigation, et 

al., 12-cv-10064 (N.D. Ill.) (Liaison Counsel and additional Class Counsel)(Final 

Approval Granted February 12, 2015 for a $75 million settlement). Keogh Law was 

also appointed class counsel in one of the previous class actions against Navient. See 

Cummings v. Sallie Mae, Inc., No. 12-9984 (N.D. Ill.)

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According to the State Bar of Michigan Law Practice 2014 survey, the upper 

quartile of attorneys practicing consumer law in Michigan had a rate of at least $400 

per hour, and the upper 5% had a rate of at least $500 per hour. See 2014 Economics 

of Law Practice Attorney Income and Billing Rate Summary Report, State Bar of 

Michigan at Table 7 (January 2014).

1

 Similarly, the upper quartile of attorneys 

practicing in downtown Detroit had a rate of at least $400 per hour and the upper 

5% had a rate of at least $550 per hour. Id at Table 6. The proven success of counsel 

in complex consumer class actions, including the two largest TCPA settlements in 

history, justify their rates in these high percentiles for this TCPA class action. 

The attached declarations also establish that the hours expended on this matter 

were reasonable. This was a complex action concerning technical and highly 

specialized matters of substantive and procedural class action law. Among other 

things, Counsel retained and conferred with an expert to analyze documents and data 

produced by Navient on an ongoing basis, reviewed thousands of pages of 

documents, and conducted and defended numerous depositions. Exhibit A at ¶ 12. 

Conclusion

WHEREFORE, counsel for Plaintiff state that this case was diligently 

researched and litigated with an eye to proceed to have a national class certified. 

Counsel accepted representation and expected to achieve class action status. The 

 

1 Available at http://www.michbar.org/file/pmrc/articles/0000151.pdf.

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Rule 68 Offer of Judgment made by Navient sought to “pick off” Plaintiff McKee

and thereby avoid the scrutiny of a Third District Judge in the past three (3) years 

from reviewing the telephone collection practices of Navient. Navient should not 

be rewarded for its conduct by reducing the legal fee and costs of capable attorneys 

who accepted and litigated this national consumer class action case on a contingent 

fee basis. Counsel seek just compensation for their diligent efforts performed on 

behalf of Mrs. McKee and the putative class.

CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1(a)

I hereby certify that the parties have made a good faith effort to reach a 

concurrence on the relief sought in this motion. The parties were unable to reach 

an agreement regarding the amount of attorneys’ fees and costs. 

DATED: August 28, 2015 Respectfully submitted,

By: /s/ Timothy J. Sostrin

Timothy J. Sostrin (IL Bar: 6290807)

sostrin@keoghlaw.com

Keith Keogh

Keith@keoghlaw.com

KEOGH LAW, LTD.

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

(312) 726-1092 Telephone

(312) 726-1093 Facsimile

Tod Aronovitz

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ta@aronovitzlaw.com

ARONOVITZ LAW 

2 S. Biscayne Boulevard

One Biscayne Tower, Suite 2630

Miami, FL 33131

(305) 372-2772 Telephone

(305) 397-1886 Facsimile

R. Christopher Cataldo (P39353)

ccataldo@jaffelaw.com 

JAFFE, RAITT, HEUER & WEISS, PC

27777 Franklin Road, Suite 2500

Southfield, MI 48034

(248) 351-3000 Telephone

(248) 351-3082 Facsimile

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on August 28, 2015, I electronically filed the foregoing 

paper with the Clerk of the Court using the ECF system which will send notification 

of such filing to the following Service List.

/s/ Timothy J. Sostrin

KEOGH LAW, LTD

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

(312) 726-1092 Telephone

(312) 726-1093 Facsimile

tsostrin@keoghlaw.com

IL Bar: 6290807

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SERVICE LIST

Nancy McKee vs. Navient Solutions., et al.

Case No. 2:15-cv-10248-DML-EAS

Hon: David M. Lawson

Attorneys for Plaintiff 

and Proposed Class:

R. Christopher Cataldo (P39353)

ccataldo@jaffelaw.com 

JAFFE, RAITT, HEUER & WEISS, PC

Attorneys for Plaintiff

27777 Franklin Rd., Ste. 2500

Southfield, MI 48034

Telephone: (248) 351-3000

Facsimile: (248) 351-3082

Tod Aronovitz 

ta@aronovitzlaw.com

ARONOVITZ LAW

One Biscayne Tower, Suite 2630

2 South Biscayne Boulevard

Miami, FL 33131

Telephone: (305) 372-2772

Facsimile: (305) 397-1886

Timothy J. Sostrin

sostrin@keoghlaw.com

KEOGH LAW, LTD.

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

Telephone: (312) 726-1092 

Facsimile: (312) 726-1093 

Attorneys for Defendant, Navient 

Solutions, Inc. f/k/a Sallie Mae, Inc.

Lisa M. Simonetti 

lsimonetti@vedderprice.com

VEDDER PRICE (CA), LLP

Attorneys for Defendant

1925 Century Park East, Suite 1900

Los Angeles, CA 90067

Telephone: (424) 204 7700

Facsimile: (424) 204-7702

Jeffrey G. Collins (P37260)

jcollins@collinslegal.net

COLLINS & COLLINS P.C.

1323 Broadway, Suite 800

Detroit, MI 48226

Telephone: (313) 963-2303

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