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SCHUBERT JONCKHEER & KOLBE LLP

ROBERT C. SCHUBERT (62684) 

WILLEM F. JONCKHEER (178748)

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

Telephone: (415) 788-4220

Email: rschubert@schubertlawfirm.com 

Email: wjonckheer@schubertlawfirm.com

Class Counsel

ANDERSON & WANCA 

BRIAN J. WANCA (pro hac vice)

RYAN M. KELLY (pro hac vice)

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

Telephone: (847) 368-1500

Email: bwanca@andersonwanca.com

Email: rkelley@andersonwanca.com

Lead Class Counsel

 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 

JOHN C. ETTER, individually and as the 

representative of a class of similarly-situated 

persons,

Plaintiff,

v.

ALLSTATE INSURANCE COMPANY, 

ALLSTATE INDEMNITY COMPANY, 

ALLSTATE PROPERTY AND CASUALTY 

INSURANCE COMPANY, ALLSTATE 

NORTH BROOK INDEMNITY COMPANY, 

ALLSTATE INSURANCE COMPANY OF 

CALIFORNIA, LOUIS ODIASE and JOHN 

DOES 1-5,

Defendants.

Case No. 17-CV-00184-WHA

NOTICE OF MOTION AND MOTION 

FOR PRELIMINARY APPROVAL OF 

CLASS ACTION SETTLEMENT,

MEMORANDUM OF POINTS AND 

AUTHORITIES

Hon. William Alsup

 Motion Hearing Date: May 23, 2018

 Motion Hearing Time: 2:00 p.m.

 Courtroom 12 - 19th Floor

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NOTICE OF MOTION 

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

On May 23, 2018, at 8:00 a.m., in Courtroom 12 – 19th Floor of the Honorable William 

Alsup, Plaintiff, John C. Etter, will move the Court, pursuant to Federal Rule of Civil Procedure 

23(e), for the entry of an Order as follows:

1. Preliminarily approving the Settlement Agreement between Plaintiff, John C. Etter 

and Defendants, Allstate Insurance Company, Allstate Indemnity company, Allstate Property and 

Casualty Insurance Company, Allstate Northbrook Indemnity Company, Allstate Insurance 

Company of California and Louis Odiase;

2. Approving the form of Notice of Class Action Settlement attached as Exhibit 2 to the 

Settlement Agreement and its dissemination to the Settlement Class by facsimile and first-class U.S. 

Mail ; and

3. Setting a schedule for the final approval process.

This motion is made on the grounds that the proposed settlement is within the necessary 

range of reasonableness to justify granting the preliminary approval.

This is based on this Notice of Motion, the attached Memorandum of Points and Authorities, 

the Declaration of Ryan M. Kelly, the pleadings and papers on file in this action, and any oral and 

documentary evidence that may be presented at the hearing on this motion.

DATED: May 17, 2018 JOHN C. ETTER, individually and on behalf of a 

class of similarly situated persons

By: s/ Ryan M. Kelly

 

BRIAN J. WANCA (pro hac admitted)

RYAN M. KELLY (pro hac admitted)

ANDERSON + WANCA

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

Telephone: (847) 368-1500

Facsimile: (847) 368-1501

bwanca@andersonwanca.com

rmkelly@andersonwanca.com

Lead Class Counsel 

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ROBERT C. SCHUBERT

WILLEM F. JONCKHEER

SCHUBERT JONCKHEER & KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

Telephone: (415) 788-4220

Facsimile: (415) 788-0161

rschubert@schubertlawfirm.com

wjonckheer@schubertlawfirm.com

Class Counsel

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TABLE OF CONTENTS

 Page

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL......................................................1

 I. STATEMENT OF ISSUES PRESENTED .......................................................................1

II. INTRODUCTION..............................................................................................................1

III. FACTUAL and PROCEDURAL HISTORY ....................................................................2

IV. SUMMARY OF THE SETTLEMENT..............................................................................3

V. THE COURT SHOULD GRANT PRELIMINARY APPROVAL TO THE 

 CLASS SETTLEMENT .....................................................................................................6

A. STANDARD FOR PRELIMINARY APPROVAL......................................................6

B. THE PROPOSED SETTLEMENT MEETS THE STANDARD FOR 

PRELIMINARY APPROVAL .....................................................................................8

 VI. THE PROPOSED NOTICE PLAN MEETS THE REQUIREMENTS

 OF RULE 23 .......................................................................................................................10

 VII. ATTORNEYS’ FEES AND COSTS AND AN AWARD TO PLAINTIFF ....................10

 VIII. THE COURT SHOULD SCHEDULE A FINAL FAIRNESS HEARING .....................16

CONCLUSION..................................................................................................................................

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TABLE OF AUTHORITIES

Cases

American Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 

No. 09-cv-1162 (W.D., Mich. Mar. 1, 2016)................................................................9, 14

Avio, Inc. v. Alfoccino, Inc., 

No. 10-cv-10085 (E.D. Mich. Jan. 18, 2018) ....................................................................14

Avio, Inc. v. Creative Office Solutions, Inc., 

10-cv-10622 (E.D., Mich. Dec. 10, 2012) .........................................................................14

Churchill Vill., L.L.C. v. Gen. Elec., 

361 F.3d 566 (9th Cir. 2004)..........................................................................................7, 10

Class Plaintiffs v. City of Seattle, 

995 F.2d 1268 (9th Cir. 1992) .............................................................................................7

G.M. Sign, Inc. v. Finish Thompson, Inc., 

08 C 5953 (N.D. Ill. Nov. 1, 2010)................................................................................... 14

G.M. Sign, Inc. v. Finish Thompson, Inc.,

No. C 5953, 2009 WL 2581324 (N.D. Ill. Aug. 20, 2009).................................................9

Gribble v. Cool Transports Inc., 

No. 06-cv-04863, 2008 WL 5281665 (C.D. Cal. Dec. 15, 2008)........................................8

Harris v. Vector Mktg. Corp.,

No. 08-CV-5198, 2011 WL 1627973 (N.D. Cal. April 29, 2011) .....................................7

Hawk Valley, Inc. v. Taylor, Case

No. 10-cv-804 (E.D. Pa. Aug 6, 2015) .............................................................................14

Health One Medical Center, Eastpointe P.L.L.C. v. Mohawk, Inc., 

2018 WL 2123336 (May 9, 2018, 6th Cir.).......................................................................12

Hinman v. M and M Rental Center, Inc., 

545 F. Supp. 2d 802 (N.D. Ill. 2008)...................................................................................9

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TABLE OF AUTHORITIES (Cont’d.)

Cases

Imhoff Inv., LLC v. Alfoccino, Inc., 

792 F.3d 627(6th Cir. 2015) ........................................................................................12, 13

Imhoff Investment, LLC v. Sammichaels, Inc.,

No. 10-Cv-10996 (E.D. Mich. Nov. 2, 2016)....................................................................14

In re Activision Sec. Litig., 

723 F. Supp. 1373 (N.D. Cal. 1989)..................................................................................14

In re Bluetooth Headset Prods. Liab. Litig.,

654 F.3d 935 (9th Cir. 2011) .............................................................................................10

In re M.L. Stern Overtime Litigation,

No. 07-CV-0118, 2009 WL 995864 (S.D. Cal. April 13, 2009) ........................................7

In re Oral Sodium Phosphate Solution-Based Prods. Liab. Action,

No. MDL 2066, 2010 WL 5058454 (N.D. Ohio Dec. 6, 2010)........................................15

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,

148 F.3d 283, 341 (3d Cir. 1998).......................................................................................15

In re Syncor ERISA Litig., 

516 F.3d 1095 (9th Cir. 2008) .............................................................................................7

In re Toys R Us-Delaware, Inc. – Fair and Accurate Credit Transactions Act (FACTA) Litigation,

 295 F.R.D. 438 (C.D. Cal. 2014)........................................................................................15

Jackson’s Five Star Catering, Inc. v. Beason,

No. 10-cv-10010 (E.D. Mich. Apr. 15, 2015)..................................................................14

JWD Automotive Inc., v. DJM Advisory Group LLC,

218 F. Supp. 3d 1335 (M.D. Fla. Nov. 21, 2016) ...............................................................9

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TABLES OF AUTHORITIES (cont’d)

Cases

Meyer v. Capital All. Grp.,

No. 15-cv-2405-WVG, 2017 WL 5138316 (S.D. Cal. Nov. 6, 2017) ..............................13

Paldo Sign & Display Co. v. Wagener Equities, Inc., 

825 F.3d 793 (7th Cir. 2016) .............................................................................................12

Saf-T-Gard International, Inc. v. Seiko Corp. of America, 

No. 09 C 0776 (N.D. Ill. Jan, 14, 2011).............................................................................14

Sandusky Wellness Center, LLC v. Heel, Inc.,

12-cv-1470 (N.D. Ohio Apr. 25, 2014) ............................................................................14

Sandusky Wellness Center, LLC v. Wagner Wellness, Inc., 

No. 12-cv-2257 (N.D. Ohio Feb. 9, 2016).........................................................................14

Sawyer v. Atlas Heating and Sheet Metal Works, Inc.,

No. 10-cv-331 (E.D. Wis. July 19, 2013).........................................................................14

Stanley v. U.S. Steel Co., 

No. 04-74654, 2009 WL 4646647 (E.D. Mich. Dec. 8, 2009) ..........................................14

Siding and Insulation Co., Inc.,v. Beachwood Hair Clinic, Inc.,

 279 F.R.D. 442 (N.D. Ohio Jan. 30, 2012) ........................................................................9

State Farm General Ins. Co. v. JT’s Frames, Inc., 

2010 WL 29799 (Cal. App. Jan. 27, 2010)........................................................................11

Staton v. Boeing Co.,

327 F.3d (9th Cir. 2002) .....................................................................................................8

Targin Sign Systems, Inc., v. Preferred Chiropractic Center, Ltd.,

 679 F. Supp. 2d 894 (N.D. Ill. Jan. 21, 2010) ....................................................................9

The Savanna Group, Inc. v. Trynex, Inc., 

10-cv-7995 (N.D. Ill. Mar. 4, 2014) ..................................................................................14

Torrisi v. Tucson Elec. Power Co.,

8 F.3d 1370 (9th Cir. 1993) .................................................................................................8

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TABLES OF AUTHORITIES (cont’d)

Cases

Vandervort v. Balboa Capital Corp.,

8 F.Supp.3d 1200 (C.D. Dist. Cal. 2014...............................................................10, 11, 14

Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002) ..........................................................................................11

Other Authorities

3 Herbert Newberg & Alba Conte, Newberg on Class Actions, 

§ 14.03 AT 14-5 (3D ED. 1992)........................................................................................15

4 Alba Conte and Herbert Newberg, Newberg on Class Actions,

 § 11.25 (4th ed. 2002)..........................................................................................................7

Manual for Complex Litigation (Fourth) § 14.121 (2004) ............................................................14

Manual for Complex Litigation (Fourth) § 21.632-34 (2012).........................................................6

Rules

47 C.F.R. § 64.1200(f)(10) .................................................................................................... passim

Fed. R. Civ. P. 23(h) ......................................................................................................................10

Fed. R. Civ. P. 23...........................................................................................................................10

Fed. R. Civ. P. 23 (c)(2)(B) ...........................................................................................................10

Fed. R. Civ. P. 23(b)(3)..................................................................................................................10

Fed. R. Civ. P. 23(e) ........................................................................................................................6

Fed. R. Civ. P. 23(e)(1) ...............................................................................................................1,10

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL

I. STATEMENT OF ISSUES PRESENTED

1. Is the proposed Settlement Agreement fair, adequate, and reasonable?

2. Does the proposed notice plan satisfy the requirements of Federal Rule of Civil 

Procedure 23(e)(1) and due process?

II. INTRODUCTION

This class action is brought by Plaintiff John C. Etter (“Plaintiff”) against Defendants, 

Allstate Insurance Company, Allstate Indemnity Company, Allstate Property and Casualty Insurance 

Company, Allstate Northbrook Indemnity Company, Allstate Insurance Company of California

(collectively, “Allstate”) and Louis Odiase (“Odiase,” and collectively with Allstate, “Defendants”) 

alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1)(C) 

(“TCPA”). On December 26, 2017, this Court certified a class of “All persons or entities 

successfully sent a facsimile on or about October 11, 2016, stating, “potentially save 40-60% of 

your Commercial auto insurance,” “fill out the form below” and “FAX YOUR REQUEST TO 510-

234-0518, TEL 510-234-0516, OR EMAIL A026315@ALLSTATE.COM” and “if you wish to be 

removed from our Fax list, please call 888-828-3086” (the “Class”). Rather than continue to litigate 

this case through trial, and face the uncertainties that invariably follow, Plaintiff and Defendants 

(collectively, the “Parties”) reached a settlement after two arms-length settlement negotiations with 

the assistance of U.S. District Court Magistrate Judge Jacqueline Scott Corley. As a result of the

settlement negotiations, the Parties have resolved the claims arising from the alleged violations of 

the TCPA by Defendants regarding fax advertisements sent on or about October 11, 2016, subject to 

the Court’s approval.

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Pursuant to the Settlement Agreement, Defendants have agreed to pay $6,533,250.00 on a 

non-reversionary basis to create a Settlement Fund to be administered by the Settlement 

Administrator, which will be used to pay class members, the costs of settlement administration,

attorneys’ fees and reasonable litigation expenses, and an incentive award to Plaintiff, as approved 

by the Court (the “Settlement”). The Settlement is of the claims asserted by the Certified Class.

When weighed against the risks, costs, delay, and uncertainties of continuing the litigation, 

the Settlement constitutes an excellent result that is fair, adequate, and reasonable, and comports 

with all of the criteria for preliminary approval. Furthermore, the notice plan contemplated by the 

Settlement Agreement, as more fully detailed herein, complies with the applicable law and is the 

best notice practicable for this case. Accordingly, Plaintiff requests that the Court grant preliminary 

approval of the proposed Settlement, direct distribution of notice to the Class, and set a schedule for 

final approval of the Settlement. 

III. Factual and Procedural history

This action was filed on January 13, 2017. (Dkt. 1; Declaration of Ryan M. Kelly (“Kelly 

Decl.”), ¶ 2). Plaintiff’s Complaint alleges that Defendants sent unsolicited faxes to Plaintiff and 

others in violation of the TCPA. The action seeks statutory damages and injunctive relief.

On March 14, 2017, the Allstate Defendants filed their Answer and Affirmative Defenses 

(Dkt. 26; Kelly Dec. ¶ 3). On April 24, 2017, Odiase filed his Answer and Affirmative Defenses 

(Dkt. 48, Kelly Dec. ¶ 4). The Parties exchanged Rule 26 initial disclosures and engaged in 

extensive pre-certification discovery. An invoice produced by third party fax broadcaster WestFax 

confirms that 17,432 unsolicited facsimiles were successfully sent to the class on or about October 

11, 2016. (Kelly Dec. ¶ 5). The fax was physically transmitted by WestFax. Odiase uploaded the

fax image and target list using the WestFax portal, directed WestFax to transmit it, and paid the

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invoice for the transmissions. Odiase did these things in order to sell Allstate insurance products, the 

premiums for which are collected by Allstate. (Kelly Dec. ¶ 6).

The Court granted, in part, Plaintiff’s Motion for Class Certification on December 26, 2018 

and appointed Plaintiff’s Counsel as Class Counsel. (Doc. 73, Kelly Dec. ¶ 5). On January 4, 2018, 

the Parties submitted a Joint Proposed Notice of Pending Class Action and Distribution Plan. (Doc. 

76.) The Court amended the notice and method of distribution in its order Re Proposed Notice of 

Pending Class Action on February 12, 2018 (Doc. 82), and subsequently extended the deadline for 

distribution of notice from February 23, 2018 to March 16, 2018. (Doc. 92.) The Notice of Pending 

Class Action was distributed by first class U.S. mail and facsimile on or about March 16, 2018 and 

notified Class members that they had until April 24, 2018 to request exclusion. Thus, Class 

members had a period of approximately 40 days in which to opt out, slightly less than the 60 days 

initially anticipated. (See Doc. Nos. 74, 89.) A total of ten (10) Class members, who received a 

total of 10 facsimiles, timely excluded themselves from the Class. No opt out requests have been 

received after April 24, 2018.

On February 6, 2018, the Parties attended a Settlement Conference with Magistrate Judge

Corley which did not result in settlement. After additional written and oral discovery, and the filing 

of cross motions for summary judgment, the Parties attended a second Settlement Conference with 

Magistrate Judge Corley on April 20, 2018, at which time the Parties agreed to the terms for a classwide settlement in this matter. (Kelly Dec. ¶ 7). The parties subsequently negotiated a formal, 

written settlement agreement (the “Settlement Agreement”), proposed preliminary approval order, 

and proposed notice to the class members. (Kelly Dec. ¶¶ 8, 9, 10).

IV. Summary of the Settlement.

If approved by the Court after notice to the Class, the Settlement Agreement would resolve 

this action and the controversy about fax advertisements sent on or about October 11, 2016. The 

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Parties negotiated the Settlement after reviewing and analyzing the legal and factual issues presented 

by this action, the risks and expenses involved in pursuing the lawsuit to conclusion, and the 

likelihood, costs, and possible outcomes of one or more procedural and substantive appeals. Based 

upon their review and analysis, the Parties agreed to and executed the Settlement Agreement.

The key terms of the Agreement are as follows:

a. The Class. The Class is the Class certified by the Court in its certification 

order of December 26, 2017: “All persons or entities successfully sent a facsimile on or about 

October 11, 2016, stating, “potentially save 40-60% off your Commercial auto insurance,” 

“fill out the form below” and “FAX YOUR REQUEST TO: 510-234-0518, TEL 510-234-

0516, OR EMAIL: A026315@ALLSTATE.COM,” and “If you wish to be removed from our 

Fax list, please call 888-828-3086.” Excluded from the Class are (a) Defendants and their 

present and former officers, directors, shareholders, employees, and their successors, heirs, 

assigns, and legal representatives; and (b) the Court and its officers. (Also excluded are those 

10 persons or entities who timely and validly excluded themselves from the Class, as listed in 

the Settlement Agreement.)

b. The Class Representative and Class Counsel. The Court previously appointed 

Plaintiff as the Class Representative and Plaintiff’s counsel from the law firms of Anderson + 

Wanca and Schubert Jonckheer & Kolbe LLP as class counsel, with Anderson + Wanca as 

lead counsel.

c. Monetary Relief to the Members of the Settlement Class. Defendants have 

agreed to pay $6,533,250.00 to create a non-reversionary settlement fund to be administered 

by the Settlement Administrator (the “Settlement Fund”) which will be used to pay class 

members, the costs of settlement administration, Plaintiff’s counsel’s attorneys’ fees and 

reasonable litigation expenses, and an incentive award to Plaintiff, as approved by the Court. 

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If any Settlement check is not cashed, the Parties agree that unclaimed funds from uncashed 

checks issued to Claimants shall be redistributed to the other class members, or if not 

feasible, paid as a cy pres award to charities mutually agreed by the parties and approved by 

the Court. Plaintiff requests that any cy pres award be made to National Consumer Law 

Center, www.nclc.com and Defendants propose the Consumer Federation of America, which 

have lobbied Congress and the FCC on a number of issues involving the TCPA. The Court 

can choose whatever entity(s) should receive cy pres if available.

d. Class Notice. The Parties have agreed to notify the Settlement Class about the 

settlement by sending the notice by facsimile and U.S. mail. The notice advises the class

members that they will receive a check for their pro rata share of the Settlement Fund and 

includes instructions on how to object, should a class member desire to do so. There is no 

claim form necessary.

e. Settlement Administrator. Plaintiff requests that Class-settlement.com be 

appointed to serve as the third-party settlement administrator who will issue the Settlement

Notice, maintain the settlement website, and issue checks and withhold income taxes or 

collect W-9 information if needed. The anticipated administrative costs are $52,940.00,

(Kelly Dec. ¶ 12), which will be paid from the Settlement Fund. Those costs are reasonable 

compared to the size of the Settlement Fund and in light of the costs for fax and first class 

mail notice to 15,286 class members, plus first class mailing of the settlement checks. The 

costs are to come out of the Settlement Fund. If the settlement is not approved, the costs of 

settlement administration will be divided equally among the parties. 

f. Release. The claims being released are the same claims asserted in the 

Complaint and limited to the October 11, 2016 fax. In consideration of the relief provided by 

the Settlement, the Settlement Class will release all claims that were brought or could have 

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been brought, as defined in the Settlement Agreement, in this action against Defendants and 

the other Released Parties (as defined in the parties’ Settlement Agreement) about the faxes 

sent on or about October 11, 2016. 

Plaintiff sought injunctive relief in his Complaint but injunctive relief is not part of 

this Settlement.

g. Attorneys’ Fees and Costs and Class Representative Award. At the final 

approval hearing, after the Class is notified about the same, Class Counsel will apply to the 

Court and request approval of award of attorney’s fees equal to 30% of the Settlement Fund, 

plus their reasonable out-of-pocket expenses. Class Counsel will also ask the Court to 

approve an award of $7,500.00 to Plaintiff John C. Etter, for serving as the class 

representative. This request is reasonable given the amount of work Plaintiff has done in this 

case, including answering 10 sets of written discovery, traveling 2 hours each way to attend 

his deposition, and making 2 other employees available to be deposed. The amount is 

consistent with the other awards in TCPA cases and amounts to less than $0.50 per class 

member who benefit from his efforts on behalf of the class.

V. The Court should grant preliminary approval to the Class Settlement.

A. Standard for Preliminary Approval

Class action settlements must be approved by the Court. See, Fed. R. Civ. P. 23(e). Court 

approval occurs in three steps: (1) a preliminary approval hearing, at which the Court considers 

whether the proposed settlement is within the range of reasonableness meriting final approval; (2) a 

notice and comment stage, during which class members are informed about the proposed settlement 

and given an opportunity to object or exclude themselves from the settlement; and (3) a “formal 

fairness hearing” or final approval hearing, at which the court decides whether the proposed 

settlement should be approved as fair, adequate, and reasonable to the class. See, Manual for 

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Complex Litigation (Fourth) §§ 21.632-34 (2012). Underlying this process is a well-settled judicial 

policy that favors settlements, especially where complex class litigation is concerned. Class 

Plaintiffs v. City of Seattle, 995 F.2d 1268, 1276 (9th Cir. 1992); see also, Churchill Vill., L.L.C. v. 

Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004); In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th 

Cir. 2008).

During the preliminary approval stage, the court determines only whether the settlement falls 

“within the range of possible approval, such that there is any reason to notify the class members of 

the proposed settlement and to proceed with a fairness hearing.” See, In re M.L. Stern Overtime 

Litigation, No. 07-CV-0118, 2009 WL 995864, at *3 (S.D. Cal. April 13, 2009). In other words, the 

Court makes only a preliminary determination of the settlement’s fairness, reasonableness, and 

adequacy, granting preliminary approval unless the settlement terms are so unacceptable that a 

formal fairness hearing would be a waste of time. See, Manual for Complex Litigation, § 21.632; 4 

Alba Conte and Herbert Newberg, Newberg on Class Actions § 11.25 (4th ed. 2002). 

In assessing preliminary approval, courts consider whether a settlement: (1) appears to be the 

product of serious, informed, non-collusive negotiations; (2) has no obvious deficiencies; (3) does 

not improperly grant preferential treatment to class representatives or segments of the class; and (4) 

falls within a range of possible approval. See, Harris v. Vector Mktg. Corp., No. 08-CV-5198, 2011 

WL 1627973, at *7 (N.D. Cal. April 29, 2011). While making this assessment, courts must balance 

a number of factors, including: “(1) the strength of the plaintiff’s case; (2) the risk, expense, 

complexity, and likely duration of further litigation; (3) the risk of maintaining class action status 

throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed, and 

the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a 

governmental participant; and (8) the reaction of the class members to the proposed settlement.” 

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Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2002); See also Torrisi v. Tucson Elec. Power Co.,

8 F.3d 1370, 1375 (9th Cir. 1993). 

B. The Proposed Settlement Meets the Standard for Preliminary Approval 

At the outset, it is important to note that the Settlement was negotiated at arm’s length by 

counsel well versed in class litigation, particularly with respect to TCPA cases, under the auspices of 

Magistrate Judge Scott Corley. The Settlement is therefore entitled preliminarily to “a presumption 

of fairness.” Gribble v. Cool Transports Inc., No. 06-cv-04863, 2008 WL 5281665, at *9 (C.D. Cal. 

Dec. 15, 2008). As to the factors the Court may examine, the Settlement, by any measure, is clearly 

fair, reasonable and adequate. 

First, while Plaintiff was poised to take the case through trial, there existed unique issues in 

the case regarding the facsimiles at issue which could invite protracted litigation, extensive motions, 

hearings and inevitable appeals. At best, this would significantly delay the ultimate recovery for the 

class. This Settlement avoids these issues and enables the class to obtain immediate, certain, and 

substantial monetary and non-monetary benefits. 

Second, the amount offered in the settlement demonstrates that this Settlement is an excellent 

result for both the Class and Defendants, considering their risks. The TCPA gives private citizens a 

right to sue to (i) enjoin future transmissions, (ii) recover the greater of actual monetary damages or 

$500.00 in damages for each junk fax, or (iii) obtain an injunction plus damages. If a court finds that 

the sender willfully or knowingly violated the TCPA, it may treble the amount of damages. Here, 

Plaintiff recovered a Settlement Fund based on a gross recovery of $375.00 per fax. Each class 

member will receive their pro rata share of the Settlement Fund, net of attorneys’ fees and expenses, 

an incentive award to Plaintiff, and settlement administration costs.

This is an excellent result given that the potential recovery per class member if Plaintiff was 

successful was $500.00 per fax, unless the Court found Defendants’ conduct to be willful, knowing 

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or intentional, which would be very difficult to establish in this case. Here every class member who 

has not opted out will receive a check from the Settlement Administrator, and there are no claim 

forms. Plaintiff submits this is the best method to allocate the Settlement Fund among the class 

members who have not previously opted out (10 opt-outs with 10 total faxes).

Third, this case is at a stage that allowed the Parties to value it fairly. The Parties engaged in 

extensive written and oral discovery. Plaintiff answered 10 sets of written discovery, reviewed 4,344

pages of documents produced by Defendants, reviewed 15,395 recorded telephone calls, reviewed 

and analyzed eight (8) electronic databases, and issued three (3) out of district records subpoenas. 

Fifteen (15) depositions were taken in this case. In addition, the Class has already been certified and

the Parties briefed cross motions for summary judgment and began preparing trial materials before 

this settlement was reached during the second mediation.

Finally, Class counsel are skilled class action lawyers with extensive TCPA experience. 

They have been appointed class counsel in many such cases, as well as in other types of class 

actions. See, e.g., G.M. Sign, Inc. v. Finish Thompson, Inc., No. C 5953, 2009 WL 2581324, *6 

(N.D. Ill. Aug. 20, 2009) (Kendall, J.); Targin Sign System, Inc., v. Preferred Chiropractic Center, 

Ltd., 679 F. Supp. 2d. 894 (N.D. Ill. Jan. 21, 2010) (Hibbler, J.); Siding and Insulation Co., Inc., v. 

Beachwood Hair Clinic, Inc., 279 F.R.D. 442 (N.D. Ohio Jan. 30, 2012); JWD Automotive Inc., v. 

DJM Advisory Group LLC., 218F. Sup. 3d. 13335 (M.D. Fla. Nov. 21, 2016

); American Copper & Brass, Inc., v. Lake City Indus. Prods., Inc., No. 09-cv-1162 (W.D., Mich. 

Mar. 1, 2013); Hinman v. M and M Rental Center, Inc., 545 F. Supp. 2d 802 (N.D. Ill. 2008) 

(Bucklo, J.), appeal denied (08-8012) (7th Cir. Jun 13, 2008).

Given the favorable terms of the proposed Settlement and the rigorous manner in which the 

terms were negotiated, the proposed Settlement is a fair, reasonable, and adequate compromise of 

the issues in dispute and merits preliminary approval.

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VI. The Proposed Notice Plan Meets the Requirements of Rule 23

Rule 23 (c)(2)(B) requires that, upon certifying a Rule 23(b)(3) class, the Court must “direct 

to class members the best notice that is practicable under the circumstances, including individual 

notice to all members who can be identified through reasonable effort.” In addition, Rule 23(e)(1) 

requires that before a proposed settlement may be approved, the Court “must direct notice in a 

reasonable manner to all class members who would be bound by the proposal.” Notice is 

satisfactory “if it generally describes the terms of the settlement in sufficient detail to alert those with 

adverse viewpoints to investigate and to come forward and be heard.” Churchill Vill., 361 F.3d at 

575 (internal citations omitted). 

Here, a Notice of Pending Class Action has previously been sent to the certified Class via 

facsimile and U.S. mail and Class Members were given the opportunity to opt-out. The Parties have 

agreed that the Notice of Class Action Settlement will be sent in the same manner (fax and U.S. 

mail) to the class members who have not previously opted out. This is, after all, a case based on the 

receipt of faxes, and Class members are best identifiable and reachable by their fax numbers. There 

is no claim form necessary as Class Members will be mailed a check for their pro rata share of the 

Settlement Fund upon final approval by this Court. 

VII. Attorneys’ Fees and Costs and an Award to Plaintiff

At final approval, Class Counsel will request that the Court approve Plaintiff’s request for 

attorneys’ fees equal to 30% of the Settlement Fund, or $1,959,975.00, plus reasonable expenses, as 

well as payment of settlement-administration costs to the Settlement Administrator. Rule 23 permits 

a court to award “reasonable attorney’s fees . . . that are authorized by law or by the parties’ 

agreement.” Fed. R. Civ. P. 23(h); see Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200, 

1209 (C.D. Cal. 2014). “[C]ourts have an independent obligation to ensure that the award, like the 

settlement itself, is reasonable, even if the parties have already agreed to an amount.” In re Bluetooth 

Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).

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The benchmark for a fee award in a common-fund case is 25% of the recovery. Vandervort, 

8 F. Supp. 3d at 1209. In “megafund” cases, fees will commonly be under the benchmark, while 

smaller cases – particularly where the common fund is under $10 million – awards more frequently 

exceed the benchmark. Id. (awarding 33% attorney fee in $3.3 million TCPA settlement). The Ninth 

Circuit has identified several factors the Court may consider in assessing whether an award is 

reasonable and whether a departure from the benchmark is warranted, including: (1) the result 

achieved; (2) the risk of litigation; (3) the skill required and the quality of work; and (4) the 

contingent nature of the fee and the financial burden carried by the plaintiffs. Vizcaino v. Microsoft 

Corp., 290 F.3d 1043, 1048–50 (9th Cir. 2002). These factors all weigh in favor of Class Counsels’ 

30% fee request. 

First, the result achieved is excellent, in light of the potential recovery and the strength of 

Allstate’s defenses to liability. The maximum recovery for the 17,432 transmissions at issue in the 

certified Class, at the automatic statutory $500 per violation, would equal $8,716,000. The 

Settlement provides for a non-reversionary Settlement Fund of $6,533,250, which is 75% of the 

reasonable potential recovery, a truly remarkable result. 

Second, Class Counsel took substantial risk in this case. There was little prospect for 

insurance coverage because California courts have held that comprehensive general liability 

insurance coverage is not available in TCPA cases. See State Farm Gen. Ins. Co. v. JT’s Frames, 

Inc., 181 Cal. App. 4th 429, 2010 WL 29799 (Cal. App. Jan. 27, 2010). In addition, Plaintiff 

suspected Odiase did not have the financial ability to pay for a class settlement, and Odiase’s status 

as an independent contractor would result in Allstate disputing any claim for vicarious liability. 

There was also a substantial risk that Allstate would prevail against the Class in its Motion 

for Summary Judgment. (Doc. 119). Allstate argued that it could not be held liable as the “sender” of 

the faxes under the FCC regulation defining that term, 47 C.F.R. § 64.1200(f)(10), for the following 

reasons:

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(1) that the faxes were not sent “on behalf of” Allstate, where Odiase failed to obtain 

Allstate’s prior approval for the faxes as required by the Allstate policies he agreed to, and where 

those policies specifically prohibited agents from sending fax advertisements without the recipients’ 

prior express invitation or permission; 

(2) that the faxes do not advertise Allstate’s “goods or services,” where the faxes do not 

state that the insurance policies offered are “Allstate” policies, and the only mention of the word 

“Allstate” on the faxes is in Odiase’s email address; and 

(3) that, even if the faxes do advertise Allstate’s “goods or services,” Allstate could not 

be held liable as a “sender” solely on that basis, despite the plain language of § 64.1200(f)(10). 

The third point presented the greatest risk. The Ninth Circuit has not decided the issue of 

“sender” liability, but Allstate’s strongest case on point was the Seventh Circuit’s decision in Paldo 

Sign & Display Co. v. Wagener Equities, Inc., 825 F.3d 793, 797 (7th Cir. 2016), which held that, 

despite the plain language of § 64.1200(f)(10), a defendant cannot be liable merely because its 

“goods or services” are advertised, and the defendant “must have done something to advertise goods 

or services.” Class Counsels’ strongest case at summary judgment was the Sixth Circuit’s decision in 

Imhoff Inv., LLC v. Alfoccino, Inc., 792 F.3d 627, 636–37 (6th Cir. 2015), which held the plain 

language of § 64.1200(f)(10) states that a defendant whose “goods or services are advertised” is 

liable. 

Notably, however, after the Settlement was reached, on May 9, 2018, the Sixth Circuit 

decided Health One Med. Ctr., Eastpointe PLLC v. Mohawk, Inc., --- F.3d --- , 2018 WL 2123336, 

at *2 (6th Cir. May 9, 2018), which held that Imhoff applies only where “the defendant in fact hired a 

fax broadcaster to send out the junk faxes,” and that § 64.1200(f)(10) does not allow “an innocent 

party” to “be held liable for having ‘sent’ the faxes.” The Health One court held that the defendant 

drug companies, who did not contract with the fax broadcaster and were unaware of the fax 

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transmissions, were not liable and were not “senders” under the TCPA, even though the faxes 

advertised their products. Id. If Class Counsel had not reached the Settlement on April 20, 2018, its 

strongest case for “sender” liability, Imhoff, would have been undermined. 

Furthermore, there was an additional risk that the Court would accept Allstate’s argument 

that Ninth Circuit TCPA cases would have required Plaintiff to “prove there is an agency 

relationship” between Allstate and Odiase with respect to the fax advertising at issue. (Doc. 119, 

Allstate Mot. Summ. J. at 13 (quoting Meyer v. Capital All. Grp., No. 15-CV-2405-WVG, 2017 WL 

5138316, at *10 (S.D. Cal. Nov. 6, 2017)). The Class faced significant risk that it would be unable to 

prove that Allstate is “vicariously liable” for the faxes under traditional agency-law standards. 

Plaintiff believes this is the first class settlement where the Defendant did not order and did 

not know the fax advertisement was being sent. The Allstate Defendants are paying in excess of 

$5.5 million to settle the actions of an independent contractor in violation of written company 

guidelines. 

Third, the “skill required and the quality of work” weigh in favor of Class Counsels’ fee 

request. Class Counsel engaged in extensive written discovery and answers to ten (10) sets of written 

discovery, participated in 15 depositions, prevailed on Plaintiff’s motion for class certification, 

engaged in two settlement conferences, briefed cross-motions for summary judgment, engaged in 

preparing trial preparation materials per the Court’s order, and advanced all costs and expenses 

including costs associated with providing a notice of pendency to the 15,286 class members. Class 

Counsel resolved this case through unique capabilities from their years of experience in this type of 

case. Plaintiff’s counsel was able to persuade Defendant Odiase’s errors and omissions insurance 

carrier to contribute its full policy limits to the settlement.

Fourth, the contingent nature of the fee and the financial burden carried by Class Counsel 

weigh in favor of a 30% fee. Class Counsel took this case on a contingent basis, assuming a 

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significant risk of nonpayment, not only for their time but also for their out-of-pocket costs. Under 

similar circumstances, Courts have been willing to exceed the 25% benchmark. See Vandervort, 8 

F. Supp. 3d at 1209 (granting 33% award of fees and costs in a TCPA settlement). Plaintiff’s 

counsel has received in excess of 30% of the settlement funds plus expenses from many other courts, 

and a 30% fee is well within the market rate for TCPA cases. See Avio, Inc. v. Alfoccino, Inc., No. 

10-cv-10085 (E.D. Mich. Jan. 18, 2018) (Doc. 180) (awarding one third of fund); Avio, Inc. v. 

Creative Office Solutions, Inc., No. 10-cv-10622 (E.D., Mich. Dec. 10, 2012) (Doc. 31) (same); 

Imhoff Investment, LLC v. Sammichaels, Inc., No. 10-cv-10996 (E.D. Mich. Nov. 2, 2016) (Doc. 

120) (same); Jackson’s Five Star Catering, Inc. v. Beason, No. 10-cv-10010 (E.D. Mich. Apr. 15, 

2015) (Doc. 90) (same); American Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., No. 09-cv1162 (W.D., Mich. Mar. 1, 2016) (Doc. 278) (same); Sandusky Wellness Center, LLC v. Wagner 

Wellness, Inc., No. 12-cv-2257 (N.D. Ohio Feb. 9, 2016) (Doc. 73) (same); Hawk Valley, Inc. v. 

Taylor, No. 10-cv-804 (E.D. Pa. Aug 6, 2015) (Doc. 193) (same); Sandusky Wellness Center, LLC v. 

Heel, Inc., No. 12-cv-1470 (N.D. Ohio Apr. 25, 2014) (Doc. 95) (same); Savanna Group, Inc. v. 

Trynex, Inc., No. 10-cv-7995 (N.D. Ill. Mar. 4, 2014) (Doc. 243) (same); Sawyer v. Atlas Heating & 

Sheet Metal Works, Inc., No. 10-cv-331 (E.D. Wis. July 19, 2013) (Doc. 59) (35% of fund); G.M. 

Sign, Inc. v. Finish Thompson, Inc., No. 08 C 5953 (N.D. Ill. Nov. 1, 2010) (Doc. 146) (same); SafT-Gard Int’l, Inc. v. Seiko Corp. of Am., No. 09 C 0776 (N.D. Ill. Jan, 14, 2011) (Doc. 100) (same).

“Use of the percentage method also decreases the burden imposed on the Court by 

eliminating a full-blown, detailed and time consuming lodestar analysis while assuring that the 

beneficiaries do not experience undue delay in receiving their share of the settlement.” Stanley v. 

U.S. Steel Co., No. 04-74654, 2009 WL 4646647, at *1 (E.D. Mich. Dec. 8, 2009) (citing In re 

Activision Sec. Litig., 723 F. Supp. 1373 (N.D. Cal. 1989); MANUAL FOR COMPLEX 

LITIGATION, FOURTH § 14.121 (2004)). Even where courts examine class counsel’s “lodestar,” 

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courts frequently award multipliers between one and four, with an average near the top of that range. 

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 341 (3d Cir. 1998) 

(quoting 3 Herbert Newberg & Alba Conte, NEWBERG ON CLASS ACTIONS, § 14.03 at 14-5 (3d 

Ed. 1992)); In re Oral Sodium Phosphate Solution-Based Prods. Liab. Action, No. MDL 2066, 2010 

WL 5058454, at *4 n.28 (N.D. Ohio Dec. 6, 2010) (court examined 1,120 class settlements 

nationwide and found “the courts’ effective multipliers averaged . . . 3.89 across all 1,120 cases”). 

To date, Class Counsel Anderson + Wanca has invested 1,135.5 hours and $731,500.00 in 

attorneys’ fees in pursuit of the claims and $141,276.68 in litigation expenses. (Kelly Dec. ¶ 13). 

Class Counsel Schubert Jonckheer & Kolbe LLP has invested 81.8 hours and $64,060.00 in 

attorneys’ fees, and $1,369.17 in litigation expenses. (Kelly Dec. ¶ 13). The requested fee represents 

a multiplier of approximately 2.46, which is less than the average identified eight years ago in In re 

Oral Sodium Phosphate. This multiplier is amply justified by the extraordinary result Class Counsel 

achieved for the Class. 

Finally, Class Counsel will also request that the Court approve payment to Plaintiff in the 

amount of $7,500.00 from the Settlement Fund for serving as the class representative. It is wellestablished that the Court may grant a modest incentive award to class representatives, both as an 

inducement to participate in the suit and as compensation for time spent in litigation, including 

depositions. In re Toys R Us-Delaware, Inc. – Fair & Accurate Credit Transactions Act (FACTA) 

Litigation, 295 F.R.D. 438, 470 (C.D. Cal. 2014). 

Here, Plaintiff was a catalyst for the Settlement Class’s recovery. Plaintiff filed and pursued 

the action. Plaintiff responded to ten (10) sets of written discovery and traveled to San Francisco 

from Sand City, California for his deposition. Two of his employees were also deposed, and he had 

a representative attend the first settlement conference. Plaintiff has also interacted with his counsel 

and his telephone carrier concerning thousands of recorded telephone calls being produced. He has 

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been a very responsive plaintiff and has invested as much time as any plaintiff that Plaintiff’s 

counsel have had in any TCPA case. Plaintiff’s efforts greatly benefited the Settlement Class, and, 

as a result, he entitled it to an incentive award. The award sought amounts to less than $0.50 from 

each of the 15,276 class members. Plaintiff’s counsel will provide more information as part of its 

request for an incentive award, attorney’s fees and expenses filed before final approval.

VIII. The Court should schedule a final fairness hearing.

Plaintiff requests that the Court schedule a hearing to determine whether the settlement 

should be finally approved. A proposed Final Approval of Agreement and Judgment Order will be 

included with Plaintiff’s brief in support of final approval.

IX. Conclusion.

WHEREFORE, Plaintiff respectfully requests that the Court enter a Preliminary Approval 

Order in the form attached as Exhibit 1 to the Agreement, granting preliminary approval of the 

proposed settlement, directing that the members of the Settlement Class be notified about the 

proposed settlement in the form and manner agreed by the parties (Exhibit 2 to the Agreement), and 

setting dates for objections and a final approval hearing. The final approval hearing should be on a 

date no sooner than 90 days after notice to government officials as required by CAFA.

DATED: May 17, 2018 JOHN C. ETTER, individually and on behalf of a class 

of similarly situated persons,

By: s/ Ryan M. Kelly

 

BRIAN J. WANCA (pro hac admitted)

RYAN M. KELLY (pro hac admitted)

ANDERSON + WANCA

3701 Algonquin Road, Suite 760

Rolling Meadows, IL 60008

Telephone: 847-368-1500

Fax: 847-368-1501

bwanca@andersonwanca.com

rmkelly@andersonwanca.com

Lead Class Counsel

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ROBERT C. SCHUBERT

WILLEM F. JONCKHEER

SCHUBERT JONCKHEER & KOLBE LLP

Three Embarcadero Center, Suite 1650

San Francisco, CA 94111

Telephone: (415) 788-4220

Facsimile: (415) 788-0161

rschubert@schubertlawfirm.com

wjonckheer@schubertlawfirm.com

Class Counsel

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