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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 FINAL APPROVAL OF CLASS 

ACTION SETTLEMENT

Hon. William Alsup

 Motion Hearing Date: October 25, 2018

 Motion Hearing Time: 12:00 p.m.

 Courtroom 12 - 19th Floor

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NOTICE OF MOTION 

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

On October 25, 2018, at 12:00 p.m., in Courtroom 12 – 19th Floor of the Honorable William 

Alsup, Appointed Class Representative/Plaintiff, John C. Etter (“Etter”), will and does hereby move 

the Court, for the entry of the following order:

Etter moves the Court for final approval of the settlement contained in the “Settlement 

Agreement” entered into by the parties (previously lodged with the Court in connection with Etter’s 

Motion for Preliminary Approval of Class Action Settlement (Doc. 131) (with fully executed copy 

being ECF filed as Doc. 134).

Etter makes his Motion on the following grounds:

1. The settlement proposed in the Settlement Agreement was negotiated at arm’s-length, 

is not collusive, and is fair, reasonable, adequate, and in the best interests of the Certified Class;

2. Notices to the Certified Class and method of disseminating the same to the Certified 

Class provided the best notice practicable under the circumstances and complied with Fed. R. Civ. P. 

23(e) and due process;

3. This Court previously certified the Class and a notice of pendency was sent. Ten (10) 

class members who received ten (10) faxes opted out;

4. This settlement provides $375.00 to each class member of a certified class, net of an 

award of attorneys’ fees and reimbursement of expenses to Class Counsel, an incentive award to 

Plaintiff, and settlement administration costs. There is no claim form and the Settlement Fund is 

non-reversionary.

The Motion is based on the accompanying Memorandum in Support of the Motion; the 

Declarations and Exhibits filed concurrently herewith; the Settlement Agreement previously lodged

with the Court; the previously filed Motion for Preliminary Approval of Class Action Settlement, 

including the Declaration and Exhibits submitted in connection with that Motion, the pleadings and 

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papers filed in this case; and on such further briefs and argument of counsel that will be received 

before or during the hearing on the Motion.

The Motion is unopposed by Defendants. 

STATEMENT OF ISSUES PRESENTED

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

approval factors outlined in Churchill Village, LLC v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004)? 

2. Did the Court-approved notice plan satisfy the requirements of Federal Rule of Civil 

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

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TABLE OF CONTENTS

Page

INTRODUCTION ....................................................................................................................1

THE PROPOSED CLASS SETTLEMENT..............................................................................2

THE SETTLEMENT NOTICE ................................................................................................3

The Proposed Settlement Merits Should Receive Final Approval ...........................................3

A. The Strength of Plaintiff’s Case ....................................................................................5

B. The Risk, Expense, Complexity and Likely Duration of Further Litigation ................7

C. The Risk of Maintaining Class Status ...........................................................................8

D. The Amount Offered in Settlement ...............................................................................9

E. The Extent of Discovery Completed and the Stage of the Proceedings......................10

F. Experienced Class Counsel Favor Approval ..............................................................11

G. The Highly Favorable Class Reaction to the Proposed Settlement ............................11

CONCLUSION .......................................................................................................................12

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TABLE OF AUTHORITIES

Page

Cases

Aguilar v. Wawona Frozen Foods, 

No. 1:15-cv-00093-DAD-EPG (E.D. Cal. May 19, 2017) ...................................4–5, 7, 11

Arthur v. Sallie Mae, Inc.,

2:10-cv-00198 (W.D. Wash. Oct. 11, 2011) .....................................................................10

Bais Yaakov of Spring Valley v. FCC,

852 F.3d 1078, 1083 (D.C. Cir. 2017) ................................................................................9

Bayat v. Bank of the West, 

2015 U.S. Dist. LEXIS 50416 (N.D. Cal. Apr. 15, 2015) ...................................................7

Bellinghausen v. Tractor Supply Co., 

306 F.R.D. 245 (2015).........................................................................................................9

Castillo v. ADT, LLC,

No. 2:15-383 WBS DB, 2017 WL 363108 (E.D. Cal. Jan. 25, 2017) ............................4, 9

Churchill Village, L.L.C. v. General Elec.,

361 F.3d 566 (9th Cir. 2004) ..........................................................................................4, 7

Class Plaintiffs v. City of Seattle, 

955 F.2d 1268 (9th Cir. 1985) ..........................................................................................11

Emmons v. Quest Diagnostics Clinical Labs., Inc.,

No. 1:13-cv-00474-DAD-BAM, 2017 WL 749018 (E.D.C.A. Feb. 27, 2017) ..............5, 8

Garner v. State Farm Mut. Auto. Ins. Co., 

2010 U.S. Dist. LEXIS 49477 (N.D. Cal. Apr. 22, 2010) ...................................................5

Gene and Gene, LLC v. BioPay, LLC,

541 F.3d 318 (5th Cir. 2008) . .............................................................................................8

G.F. v. Contra Costa Cnty., 

2015 U.S. Dist. LEXIS 100512 (N.D. Cal. July 30, 2015)................................................11

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ............................................................................................4

Health One Med. Ctr., Eastpointe PLLC v. Mohawk, Inc., 

--- F.3d ---, 2018 WL 2123336 (6th Cir. May 9, 2018) ......................................................6

Helping Hand Caregivers, Ltd. v. Darden Restaurants, Inc., 

900 F.3d 884 (7th Cir., Aug. 14, 2018) ...............................................................................7

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TABLE OF AUTHORITIES (Con't.) 

Page 

Cases

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

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

In re Google Referrer Header Privacy Litig., 

87 F. Supp. 3d 1122 (2015) ................................................................................................8 

In re LinkedIn User Privacy Litig., 

309 F.R.D. 573 (2015) .........................................................................................................9 

In re Optical Disk Drive Prods. Antitrust Litig., 

2016 U.S. Dist. LEXIS 175515 (N.D. Cal. Dec. 19, 2016) .................................................4 

In re Syncor ERISA Litig.,

516 F.3d 1095 (9th Cir. 2008) ............................................................................................4 

In re Toys “R” Us-Del., Inc. Fair & Accurate Credit 

Transactions Act (FACTA) Litig., 

295 F.R.D. 438 (C.D. Cal. 2014) .......................................................................................11 

In re Wash. Pub. Power Supply Sys. Secs. Litig.,

720 F. Supp. 1379 (D. Ariz. 1989) .....................................................................................5 

In re:Checking Account Overdraft Litig.,

No. 1:09-MD-02036-JLK, 2013 WL 11319244 (S.D. Fla. Aug. 2, 2013) ........................10 

Ira Holtzman, CPA, & Assocs., Ltd. v. Turza,

728 F.3d 682 (7th Cir. 2013) ..............................................................................................8 

Lane v. Facebook, Inc.,

696 F.3d 811 (9th Cir. 2012) ..............................................................................................4 

Meyer v. Capital All. Grp., 

No. 15-CV-2405-WVG, 2017 WL 5138316 (S.D. Cal. Nov. 6, 2017) ...............................7 

Mitchinson v. Love’s Travel Stops & Country Stores, Inc.,

No. 1:15-cv-01474-DAD-BAM, 2017 WL 2289342 (E.D.C.A. May 25, 2017) ............4, 7 

Nachshin v. AOL, LLC,

663 F.3d 1034 (9th Cir. 2011) ............................................................................................3 

National Rural Telecomms. Coop. v. DIRECTV, Inc.,

221 F.R.D. 523 (C.D. Cal. 2004) ......................................................................................12 

Officers for Justice v. Civil Serv. Comm’n,

688 F.2d 615 (9th Cir. 1982) ..............................................................................................4 

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TABLE OF AUTHORITIES (Con't.) 

Page 

Cases

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

825 F.3d 793 (7th Cir. 2016) ..............................................................................................6 

Palmer v. Sprint, 

No. 09-cv-01211 (W.D. Wash. April 26, 2011) ...............................................................10 

Pimental v. Google, Inc.,

No. 4:11-cv-02585 (N.D. Cal. Oct. 5, 2012) ....................................................................10 

Saf-T-Gard Int’l, Inc. v. Seiko Corp. of Am., 

No. 1:09-cv-00776 (N.D. Ill. Jan. 7, 2011) .......................................................................10 

Sandusky Wellness Ctr. v. ASD Specialty Healthcare, Inc.,

No. 16-3741, __F.3d___, 2017 WL 2953039 (6th Cir. July 11, 2017) ..............................9 

Satterfield v. Simon & Schuster, Inc.,

No. 4:06-cv-02893 (N.D. Cal. February 17, 2010) ...........................................................10 

Taylor v. FedEx Freight, Inc.,

No. 1:13-cv-01137-DAD-BAM, 2016 WL 6038949 (E.D. Cal. 

Oct. 13, 2016) .........................................................................................................4, 10, 12 

Valentino v. Carter-Wallace, Inc.,

97 F.3d 1227 (9th Cir. 1996) ..............................................................................................8 

Vandervort v. Balboa Capital Corp.,

287 F.R.D. 554 (C.D. Cal. 2012) ........................................................................................9 

Vandervort v. Balboa Capital Corp.,

SACV 11-1578-JLS (C.D. Cal. Jan. 20, 2014) .................................................................10 

Statutes

47 C.F.R. § 64.1200(f)(10) .........................................................................................................5–6 

47 U.S.C. § 227 ...............................................................................................................................8 

47 U.S.C. § 227(b)(1)(C) .................................................................................................................1

Other Authorities

Brian T. Fitzpatrick & Robert C. Gilbert, An Empirical Look at Compensation in 

Consumer Class Actions, 11 N.Y.U. J.L. & Bus. 767, 770 (2015) ...................................10 

Rules & Regulations 

Fed. R. Civ. P. 23 ............................................................................................................................8 

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TABLE OF AUTHORITIES (Con't.)

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Rules & Regulations

Fed. R. Civ. P. 23(b)(3) ...................................................................................................................8

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

Fed. R. Civ. P. 23(e)(2) ...................................................................................................................4

In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 

1991, CG Docket Nos. 02-278, 05-338, FCC 14-164, Order, ¶ 27 n.99 (Oct. 

30, 2014) .............................................................................................................................9

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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, the Court certified a Class of recipients of junk faxes sent by 

Defendants. (Doc. No. 73.) A notice of pendency was disseminated to the Class. (Doc. No. 104.) 

After the parties reached a settlement at a second settlement conference before Magistrate Judge 

Jacqueline Scott Corley, Plaintiff moved for preliminary approval of the settlement. 

This Court granted preliminarily approval of the settlement on May 30, 2018. (Doc. No. 136.)

The Court subsequently approved the notice of settlement for distribution to the Class, and 

scheduled dates for motions in support of the settlement by order dated June 11, 2018. (Doc. No. 

138.) The response to the settlement hasbeen overwhelmingly positive. Over 96% percent of the 

Class received notices of the settlement approved by this Court in English and Spanish, and have 

been able to access the settlement website, with links to key case documents. No Class members

have objected. 

Plaintiff now moves the Court for final approval of the settlement. The proposed class 

settlement meets and exceeds Rule 23(e)’s standard of fundamental fairness, adequacy, and 

reasonableness. The settlement will compensate 15,276 California residents and small businesses for 

the junk faxes they received from Defendants. The settlement avoids further litigation that would 

expose the Class to numerous legal and practical risks. Defendant Odiase’s errors and omissions 

insurance carrier paid its $1 million policy limits as part of the settlement. The other Allstate

Defendants steadfastly denied responsibility for Odiase’s fax-blast activities, but are paying an 

additional $5,533,250.00 to resolve this case.

The settlement was achieved only after months of hard-fought litigation against formidable 

defense teams, two separate mediations, and extensive negotiations over the final settlement terms. It

apportions all settlement proceeds equitably among the entire Class based on the number of fax ads 

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each Class member received, paying $375 per fax, net of attorneys’ fees and litigation expenses, as 

discussed below. The absence of objections the settlement reflects the settlement’s tangible benefits 

for Class members. The settlement merits final approval.

The Proposed Class Settlement

The Court recently considered the proposed Class Action Settlement Agreement and granted 

Plaintiff’s motion for preliminary approval. By this Court’s order of December 26, 2017 (Doc. No. 

73), the certified Class is defined as follows:

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 and fax 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”

If finally approved, the settlement will establish a non-reversionary $6,533,250.00 common 

fund for recipients of Defendants’ faxes on or about October 11, 2016. On a gross basis, before 

expenses and fees, the settlement pays $375 per fax, per Class member. Costs of notice and 

settlement administration, attorneys’ fees and expenses, and any incentive award to Plaintiff will be 

paid directly from the fund. After projected notice and settlement administration expenses, and 

assuming attorneys’ fees and expenses and an incentive award are granted in the requested amounts, 

approximately $4,421,277.00, or an average of $254 per fax, per Class member, will be distributed.

All net settlement proceeds will be distributed automatically to Class members at addresses 

compiled from Defendants’ record, and further updated by the settlement administrator, without the 

need for Class members to submit claims. If net settlement funds remain after the initial distribution, 

they will be redistributed in accordance with section 3.07 of the Restatement of the Law of Aggregate 

Litigation.1 This means there would be an additional distribution to all participating Class members, 

 1 Section 3.07(b) states that “[i]f the settlement involves individual distributions to class members and funds remain after 

distributions (because some class members could not be identified or chose not to participate), the settlement should 

presumptively provide for further distributions to participating class members unless the amounts involved are too small 

to make individual distributions economically viable or other specific reasons exist that would make such further 

distributions impossible or unfair.” The Restatement provides that if a redistribution cannot be made under these criteria, 

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if economically viable. (Id.) Only if a further distribution to the class is not economically viable, 

Plaintiff has proposed a cy pres recipient whose interests most closely approximate those of the class. 

(Id.) See Nachshin v. AOL, LLC, 663 F.3d 1034, 1040 (9th Cir. 2011). Defendants have asked the 

court to appoint another cy pres recipient.

Class members will grant a limited release to Defendants and their affiliated parties. (Doc. 

No. 131, p. 9–10.) The release is narrowly tailored to claims concerning the specific fax in this case—

only the fax sent on October 11, 2016. 

Settlement was achieved only after months of heavily-contested litigation against two highlyskilled legal defense teams, punctuated with numerous discovery battles, a contested class 

certification hearing, 16 depositions, fully briefed cross motions for summary judgment, two intense 

mediations, and detailed negotiations over the terms of the Class Action Settlement Agreement. At 

the time settlement in principle was reached, cross motions for summary judgment were pending and 

trial was imminent. The settlement removes the risks associated with these and other defense 

challenges and provides substantial, certain recovery to Class members.

The Settlement Notice

On July 2, 2018, the Settlement Administrator sent notice by fax and mail. (Merryman Decl.

¶¶ 10, 14) The administrator successfully transmitted the notice to some 96% of Class members by 

mail and 90% by fax. (Id., ¶¶ 11, 16) For the mail notices that were returned, the administrator remailed to new addresses that had been located through additional searches. (Id., ¶ 15)

The Settlement Administrator also set up a website and posted settlement documents as well 

as the Plaintiff’s Motion for Attorneys’ Fees and Reimbursement of Reasonable Expense and Service

Award. No Class member has objected to the settlement, the expenses, or fees requested.

The Proposed Settlement Merits Should Receive Final Approval

 remaining funds should be distributed to a cy pres recipient “whose interests reasonably approximate those being 

pursued by the class.” § 3.07(c).

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“At the final approval stage, the primary inquiry is whether the proposed settlement ‘is 

fundamentally fair, adequate and reasonable.’” Taylor v. FedEx Freight, Inc., No. 1:13-cv-01137-

DAD-BAM, 2016 WL 6038949, at *2 (E.D. Cal. Oct. 13, 2016) (Drozd, J.) (quoting Lane v. 

Facebook, Inc., 696 F.3d 811, 818 (9th Cir. 2012)); see Fed. R. Civ. P. 23(e)(2). But “the court’s 

intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a 

lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not 

the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the 

settlement, taken as a whole, is fair, reasonable, and adequate to all concerned.” Hanlon v. Chrysler 

Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (citing Officers for Justice v. Civil Serv. Comm’n, 688 

F.2d 615, 628 (9th Cir. 1982)). The review should be undertaken with due regard for the strong legal

policy favoring compromise and settlement of class actions. See In re Syncor ERISA Litig., 516 F.3d 

1095, 1101 (9th Cir. 2008); Churchill Village, L.L.C. v. General Elec., 361 F.3d 566, 576 (9th Cir. 

2004); see also In re Optical Disk Drive Prods. Antitrust Litig., No. 3:10-md-2143-RS, 2016 U.S. 

Dist. LEXIS 175515, at *43 (N.D. Cal. Dec. 19, 2016) (internal citation omitted).

In deciding whether to give final approval to a class settlement, courts in the Ninth Circuit 

balance several factors: (1) the strength of plaintiffs’ case; (2) the risk, expense, complexity and likely 

duration of further litigation; (3) the risk of maintaining class action status throughout 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;2 and (8) the 

reaction of class members to the proposed settlement. Churchill, 361 F.3d at 575-76 (citing Hanlon, 

150 F.3d at 1026); see, e.g., Mitchinson v. Love’s Travel Stops & Country Stores, Inc., No. 1:15-cv01474-DAD-BAM, 2017 WL 2289342, at *4-6 (E.D. Cal. May 25, 2017) (Drozd, J.) (granting final

approval based on these factors); Aguilar v. Wawona Frozen Foods, No. 1:15-cv-00093-DAD-EPG, 

2017 WL 2214396, at *2-4 (E.D. Cal. May 19, 2017) (same). Settlements resulting from noncollusive, arm’s-length negotiations conducted by capable and experienced counsel are afforded a 

 2 Because there is no governmental participant in this case, “this factor...is irrelevant to the court’s analysis.” Castillo v. 

ADT, LLC, No. 2:15-383 WBS DB, 2017 WL 363108, at *6 (E.D. Cal. Jan. 25, 2017) (Shubb, J.).

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presumption of fairness and reasonableness. Garner v. State Farm Mut. Auto. Ins. Co., No. 08-cv1365-CW, 2010 U.S. Dist. LEXIS 49477, at *35 (N.D. Cal. Apr. 22, 2010).

The proposed settlement measures well against these standards.

A. The Strength of Plaintiff’s Case

“When assessing the strength of plaintiff’s case, the court does not reach ‘any ultimate 

conclusions regarding the contested issues of fact and law that underlie the merits of [the] litigation.’” 

Aguilar, 2017 WL 2214936, at *3 (quoting In re Wash. Pub. Power Supply Sys. Secs. Litig., 720 F. 

Supp. 1379, 1388 (D. Ariz. 1989)). “Instead, the court is to ‘evaluate objectively the strengths and 

weaknesses inherent in the litigation and the impact of those considerations on the parties’ decisions 

to reach these agreements.’” Emmons v. Quest Diagnostics Clinical Labs., Inc., No. 1:13-cv-00474-

DAD-BAM, 2017 WL 749018, at *4 (E.D.C.A. Feb. 27, 2017) (Drozd, J.) (quoting Wash. Pub.

Power, 720 F. Supp. at 1388)).

At the time of settlement, the case against Odiase appeared strong. Odiase acquired a database 

of fax numbers from Salesgenie. The Salesgenie program was made available to Odiase by Allstate

and provided a database which included fax numbers. Odiase sent fax advertisements to the list, 

admitted to sending the faxes out, and claimed he had obtained consent from the recipients. At the 

hearing on the motion for class certification, the court expressed doubts regarding Odiase’s claim of 

consent. After the Class was certified, Odiase’s insurance carrier put up its $1 million policy limits.

The case against Allstate was more tenuous. There was 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:

(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; 

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(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.” Plaintiff’s 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 transmissions, 

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

products. Id. If Plaintiff had not reached the Settlement on April 20, 2018, its strongest case for 

“sender” liability, Imhoff, would have been undermined. 

In addition, the Seventh Circuit on August 4, 2018 held that a defendant could not be held 

strictly liable under the TCPA on the basis that its goods or services were advertised in fax when it did 

not have any connection to the faxing, did not know about the faxing, and it was against the defendant’s 

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company policy. See Helping Hand Caregivers, Ltd. v. Darden Restaurants, Inc., 900 F.3d 884 (7th

Cir., Aug. 14, 2018)

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. 

In the present context, however, the Court need not reach any ultimate conclusions because the 

evidence has not been fully presented. Mitchinson, 2017 WL 2289342, at *4. The seriousness of the 

issues presented, and the fact that they were heavily contested, weighs in favor of approval. See

Mitchinson, 2017 WL 2289342, at *4; Aguilar, 2017 WL 2214936, at *3.

The settlement amount ($375 per fax) represents 75% of what the class would have recovered 

at trial if they had a victory on the merits. See, e.g., Bayat v. Bank of the West, No. C-13-2376-EMC, 

2015 U.S. Dist. LEXIS 50416, at *10 (N.D. Cal. Apr. 15, 2015) (“Because the strength of Plaintiffs’ 

claims is in doubt, the first Churchill Village factor tips in favor of final approval of the settlement.”).

B. The Risk, Expense, Complexity and Likely Duration of Further Litigation

Continued litigation would have exposed the Class to considerable risks of non-recovery and, 

at best, delayed any recovery for years. To be blunt, Odiase is judgment proof. The only available 

recovery would be from his errors and omissions carrier. The Allstate Defendants have the financial 

ability to litigate this case indefinitely and appeal any unfavorable result.

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Absent this settlement, litigation would have continued for years. Defendants mounted a 

tenacious defense through two highly-skilled and experienced legal teams. Any liability judgment 

would almost certainly be appealed. Defendants would have challenged the class certification order 

and any jury verdict on both merits and due process grounds. And a bankruptcy filing by Odiase at 

any time in this process would have delayed recovery even longer. “All these proceedings could take 

years to fully resolve.” Emmons, 2017 WL 749018, at *5. Furthermore, a party’s continued denial of 

liability necessarily causes Plaintiffs “to face serious hurdles, including a motion for summary 

judgment, Daubert challenges, and inevitable appeals that would likely prolong the litigation, and any 

recovery by class members, for years.” In re Google Referrer Header Privacy Litig., 87 F. Supp. 3d 

1122, 1131 (2015).

C. The Risk of Maintaining Class Status

Plaintiff believes the case for certification is strong and that the court’s certification order 

would not be overturned because the material facts concerning the fax-blast program or the asserted 

defenses did not vary by Class member, and thus a strong case can be made that the predominance 

element of Rule 23(b)(3) was satisfied. Nevertheless, there was an inherent, irreducible risk that class 

certification could not be maintained throughout the case. Rule 23 requires the moving party to 

independently satisfy all four requirements of subsection (a), and at least one alternative standard 

under subsection (b). See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). 

“[T]here are no invariable rules regarding the suitability of a particular case filed under this 

subsection of the TCPA [prohibiting unsolicited facsimile advertisements] for class treatment; the 

unique facts of each case generally will determine whether certification is proper.” Gene and Gene, 

LLC v. BioPay, LLC, 541 F.3d 318, 328 (5th Cir. 2008).

The strong majority of courts, particularly recently, have certified contested TCPA/junk fax 

classes. See, e.g., Ira Holtzman, CPA, & Assocs., Ltd. v. Turza, 728 F.3d 682, 684 (7th Cir. 2013) 

(“class certification is normal in litigation under §227”), cert. denied, 134 S. Ct. 1310 (2014). In this 

case, however, Odiase contended that he had obtained permission from the fax recipients. Numerous 

courts have denied class certification of junk fax classes when the advertiser offers credible evidence 

that the permission issue would require a large number of individual inquiries. The Sixth Circuit held 

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that when the advertiser produces concrete evidence of “consent, evinced by hundreds of thousands 

of customer documents,” the question whether the faxes were unsolicited “is sufficiently 

individualized to preclude class certification.” Sandusky Wellness Ctr. v. ASD Specialty Healthcare, 

Inc., No. 16-3741, __F.3d___, 2017 WL 2953039, at *6 (6th Cir. July 11, 2017).3 Although Plaintiff

believes this argument would have been unavailing on the facts of this case, affirming class 

certification on appeal was certainly not “guaranteed,” and “this favor weighs in favor of approving 

the settlement.” Castillo, 2017 WL 363108, at *5. This risk of losing class status in the absence of 

settlement weighs in favor of approval. In re LinkedIn User Privacy Litig., 309 F.R.D. at 587 (2015).

D. The Amount Offered in Settlement

This factor weighs strongly in favor of approval. The $6.5 million recovery is exemplary, 

particularly in comparison with the numerous litigation and collection risks discussed above. The 

gross settlement is $375 per fax (75% of what a successful jury trial could achieve), per Class 

member. As discussed earlier, the net settlement amount to be distributed to the Class would be about 

$4,425,188.00, with the average Class member receiving $254. (Decl. ¶¶ 12-13.) This is well-within 

the Ninth Circuit’s appropriate range of relief. See, e.g., Bellinghausen v. Tractor Supply Co., 306 

F.R.D. at 256 (approving settlement that represented between 11% and 27% of the total potential 

recovery); In re LinkedIn User Privacy Litig., 309 F.R.D. at 588 (approving settlement that

represented at least 30% of what class members could receive at trial). This settlement appears to be 

the largest junk fax settlement in the Northern District of California to date.

The settlement also stands apart for its fair and equitable class distribution. Unlike the vast 

majority of TCPA and consumer class settlements, proceeds will be distributed to all known Class 

 3 Plaintiff also charged Defendants with violating FCC regulations that required opt-out disclosures on all faxes, solicited 

or unsolicited. (Doc. No. 1, ¶ 30.) Several courts have held that common issues predominated, and certified junk fax 

classes, when the faxes failed to include an opt-out notice required by the statute and FCC regulations. See, e.g., 

Vandervort v. Balboa Capital Corp., 287 F.R.D. 554, 561 (C.D. Cal. 2012). In 2014, however, the FCC “waived” 

Defendant’s compliance with its regulation requiring opt-out disclosures on solicited faxes. See In re Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket Nos. 02-278, 05-338, FCC 14-

164, Order, ¶ 27 n.99 (Oct. 30, 2014). And earlier this year, the District of Columbia Circuit held that “the FCC’s 2006 

Solicited Fax Rule is unlawful to the extent that it requires opt-out notices on solicited faxes,” and vacated the FCC’s 

order that had promulgated the rule. Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017). Taken 

together, these developments weakened the argument for predominance based on defective opt-out notices.

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members without requiring them to submit claims. An automatic distribution is much more likely to 

result in meaningful compensation to the class than a reversionary, claims-made settlement. See Brian 

T. Fitzpatrick & Robert C. Gilbert, An Empirical Look at Compensation in Consumer Class Actions, 

11 N.Y.U. J.L. & Bus. 767, 770 (2015); see also In re:Checking Account Overdraft Litig., No. 1:09-

MD-02036-JLK, 2013 WL 11319244, at *10 (S.D. Fla. Aug. 2, 2013). The settlement fairly 

apportions net proceeds among the Class according to the number of faxes successfully sent to each 

member. In other words, Class members will be paid according to the number of faxes they received,

rather than by an arbitrary “pro rata” or other formula.4 And under no circumstances will any 

settlement funds revert to Defendants. 

E. The Extent of Discovery Completed and the Stage of the Proceedings

The stage of the proceedings at which settlement was reached also strongly favors final 

approval. This “settlement is the product of non-collusive negotiations after substantial discovery had 

been conducted, giving plaintiff and plaintiff's counsel a good grasp of the merits of the case before 

settlement talks began.” Taylor, 2016 WL 6038949, at *4. Plaintiff’s counsel engaged in a year’s

worth of discovery, serving several sets of interrogatories, requests for admission, Rule 34 requests 

for production of documents, and answering 10 sets of written discovery. This resulted in production 

of approximately 4,344 documents and reviewing 15,395 recorded telephone calls and analyzing 8 

electronic databases. To obtain much of this discovery, Plaintiff had to convene several formal and 

informal discovery conferences. The parties took 16 depositions, including Plaintiff’s forensic 

computer expert. Even after the discovery, the proposed settlement was achieved only after two 

mediations with Magistrate Judge Corley, and detailed negotiations over the final settlement 

agreement.

 4 Several other approved TCPA settlements, by contrast, have imposed arbitrary ceilings on claimants’ recoveries, 

regardless of how many violations impacted them. See, e.g., Vandervort v. Balboa Capital Corp., SACV 11-1578-JLS 

(JPRx), Doc. No. 120-1 (C.D. Cal. Jan. 20, 2014); Palmer v. Sprint, 09-cv-01211, Dkt. 61-8 (W.D. Wash. April 26, 

2011) (recovery capped at $2,000); Pimental v. Google, Inc., 4:11-cv-02585, Dkt. 84-1 (N.D. Cal. Oct. 5, 2012) 

(recovery capped at $500); Arthur v. Sallie Mae, Inc., 2:10-cv-00198, Dkt. 184-1 (W.D. Wash. Oct. 11, 2011) ($500 

cap); Saf-T-Gard Int’l, Inc. v. Seiko Corp. of Am., No. 1:09-cv-00776 (Dkt. 98-2) (N.D. Ill. Jan. 7, 2011) (recovery 

capped at $375 regardless of number of faxes received); Satterfield v. Simon & Schuster, Inc., 4:06-cv-02893, Dkt. 112-1 

(N.D. Cal. February 17, 2010) ($175 cap).

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This settlement was secured only after intense litigation with highly-skilled and tenacious 

adversaries. It does not come close to overreaching or collusion among the parties. See Aguilar, 2017 

WL 2214936, at *4 (citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1290 (9th Cir. 1985)).

All settlement negotiations and a written term sheet was executed in the presence of Judge Corley. 

Where a proposed settlement is the product of arm’s-length negotiations conducted by 

capable and experienced counsel, the Court begins its analysis with a presumption that the settlement 

is fair and reasonable. See In re Toys “R” Us-Del., Inc. FACTA Litig., 295 F.R.D. at 450; G.F. v. 

Contra Costa Cnty., 2015 U.S. Dist. LEXIS 100512, at *43 (N.D. Cal. July 30, 2015) (“the assistance 

of an experienced mediator in the settlement process confirms that the settlement is non-collusive”).

F. Experienced Class Counsel Favor Approval

Class counsel are veteran litigation attorneys with extensive experience representing clients in 

complex litigation. Among other things, they have considerable experience prosecuting class actions, 

and TCPA class actions in particular. After reviewing the briefs and taking oral argument on the 

contested class certification motion, the Court found Class counsel well qualified to represent this 

class and appointed them to represent the Class. Class counsel uniformly believe the settlement is 

fair, reasonable, and adequate, and strongly recommend its approval. The named plaintiff/class 

representative, who has actively participated in the case, agrees. 

G. The Highly Favorable Class Reaction to the Proposed Settlement

This factor weighs heavily in support of the proposed settlement. As discussed earlier, the 

settlement administrator successfully delivered notice to 96% of the 15,276-member class. The notice 

gave Class members meaningful information about the litigation and settlement. It informed members 

they could object, or remain in the class and receive payment. The notice also informed members they

could obtain additional information by visiting the settlement website, by contacting settlement 

administrator or Class counsel at a toll-free number, and by accessing the Court file on PACER.5

 5 The settlement website, www.odiase-allstatetcpasettlement.com, offers extensive information to interested class 

members. (Merryman Decl.)

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The Class’s reaction was extremely positive. To date, no Class members have objected to the 

settlement, and none have expressed dissatisfaction with the settlement. 

The Class’s overwhelming backing is powerful support in favor of the settlement. “The 

absence of objections to a proposed class action settlement supports that the settlement is fair, 

reasonable, and adequate.” Taylor, 2016 WL 6038949, at *5 (citing National Rural Telecomms. 

Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004)).

Conclusion

For the foregoing reasons, Plaintiff respectfully requests that the Court grant final approval to 

the settlement.

DATED: October 4, 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 

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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