IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

BNVS Transport LLC and MEIN & MEEN 

TRUCKING, INC., individually and on behalf of 

all others similarly situated,

Plaintiffs,

vs.

C&K TRUCKING, LLC, 

Defendants.

Case No. 1:20-CV-04305

HON. JOHN ROBERT BLAKEY

HON. M. DAVID WEISMAN

DATE: February 15, 2023

TIME: 11:00 a.m.

LOCATION: Courtroom 1203

219 South Dearborn Street

Chicago, IL 60604

JUDGE: Hon. John Robert Blakey

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ 

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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................1

II. OVERVIEW OF COUNSEL’S WORK ON THIS CASE.......................................2

III. LEGAL BASIS FOR AWARD OF ATTORNEYS’ FEES AND COSTS...................5

A. Plaintiffs’ entitlement to attorneys’ fees.....................................................5

B. Methods for evaluating attorneys’ fee requests in the Seventh Circuit...............6

C. The preferred percentage of the fund approach applies here...........................6

D. A fee of one-third (1/3) the net settlement amount is fair and reasonable............7

1. The quality of performance and work invested support the fee 

request................................................................................7

2. The risks presented by the contingent nature of the recovery and the 

stakes of the case support the fee request....................................... 9

3. The requested fees reflect typical contingency fee agreements in this 

Circuit and are in line with previous fee awards that Counsel have 

received ............................................................................11

4. The requested fees are well within the typical range of awards that 

Seventh Circuit courts grant in class action cases............................12

5. Counsel’s requested fees are commensurate with their lodestar............13

IV. PLAINTIFFS’ REQUESTED COST REIMBURSEMENTS ARE REASONABLE

.........................................................................................................14

V. CONCLUSION......................................................................................15

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TABLE OF AUTHORITIES

Cases

Allegretti v. Walgreen Co., 

N.D. Ill. Jan. 4, 2022................................................................................................................. 7, 12

Birchmeier v. Carribean Cruise Line, Inc., 

896 F.3d 792, (2018)................................................................................................................. 7, 13

Boeing Co. v. Van Gemert, 

444 U.S. 472, (1980)................................................................................................................. 6, 14

Camp Drug Store, Inc. v. Cochran Wholesale Pharm., Inc., 

897 F.3d 825, (7th Cir. 2018))........................................................................................................ 7

Florin v. Nationsbank of Ga., N.A., 

34 F.3d 560, (7th Cir.1994) ............................................................................................................ 6

Garcia v. J.C. Penney Corp., 

N.D. Ill. Aug. 9, 2017 ................................................................................................................... 13

Gaskill v. Gordon, 

160 F.3d 361 (7th Cir. 1998) ........................................................................................................ 11

George v. Kraft Foods Global, Inc., 

N.D. Ill. June 26, 2012.................................................................................................. 7, 12, 13, 14

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

S.D. Ill. Dec. 16, 2018 .............................................................................................................. 6, 14

In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 

792 F. Supp. 2d 1028 (N.D. Ill. 2011).......................................................................................... 15

In re Cap. One TCPA Litig., 

80 F. Supp. 3d 781 (N.D. Ill. 2015)................................................................................................ 7

In re Comdisco Sec. Litig., 

150 F. Supp. 2d 943, 948 .............................................................................................................. 13

In re Dairy Farmers of Am., Inc., 

80 F. Supp. 3d 838 (N.D. Ill. 2015).............................................................................................. 14

In re Ready-Mixed Concrete Antitrust Litig., 

S.D. Ind. Mar. 31, 2009 ................................................................................................................ 12

In re Synthroid Mktg. Litig., 

325 F.3d 974, (7th Cir. 2003) ................................................................................................. 13, 14

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In re Tiktok, Inc., Consumer Priv. Litig., 

N.D. Ill. July 28, 2022................................................................................................................... 12

Jeffboat, LLC v. Dir., OWCP, 

553 F.3d 487 (7th Cir. 2009) ........................................................................................................ 14

Kirchoff v. Flynn, 

786 F.2d 320, (7th Cir. 1986) ....................................................................................................... 11

Konlinek v. Walgreen Co., 

311 F.R.D. 483, (N.D. Ill. 2015)................................................................................................... 12

Leung v. XPO Logistics, Inc., 

326 F.R.D. 185, (N.D. Ill. 2018)............................................................................................... 7, 12

Mangone v. First USA Bank, 

206 F.R.D. 222, (S.D. Ill. 2001) ................................................................................................... 11

Michels Corp. v. Cent. States, 

N.D. Ill. May 30, 2017............................................................................................................ 13, 14

Pearson v. NBTY, Inc.,

772 F.3d 778, (7th Cir. 2014)..............................................................................12

Reid v. Unilever U.S., Inc., 

N.D. Ill. June 10, 2015.................................................................................................................... 6

Retsky Family Ltd. V. P’ship v. Price Waterhouse, LLP, 

N.D. Ill. Dec. 10, 2001.................................................................................................................. 11

Schulte v. Fifth Third Bank, 

805 F. Supp. 2d 560, (N.D. Ill. 2011)........................................................................................... 13

Silverman v. Motorola Sols., Inc., 

739 F.3d 956, (7th Cir. 2013) ................................................................................................... 9, 15

Simms v. Exacttarget, LLC, 

S.D. Ind. Oct. 2, 2018 ................................................................................................................... 13

Skelton v. Gen. Motors Corp., 

860 F.2d 250, (7th Cir. 1988) ..................................................................................................... 6, 7

Sutton v. Bernard, 

504 F.3d 688 ................................................................................................................................... 9

T.K. Bytedance v. Tech. Co., Ltd., 

2022 U.S. Dist. LEXIS 65322 ............................................................................................... passim

Taubenfeld v. AON Corp., 

415 F.3d 597, (7th Cir. 2005) ....................................................................................................... 11

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Statutes

49 U.S.C. § 14704(e) .................................................................................................................. 5, 6

Rules

Fed. R. Civ. P. 23...................................................................................................................... 5, 14

Federal Rule of Civil Procedure 23(h)............................................................................................ 5

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ 

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I. INTRODUCTION

Plaintiffs BNVS Transport LLC and Mein & Meen Trucking, Inc. respectfully submit this 

joint application of attorneys’ fees and costs to compensate Plaintiffs’ counsel for the skillful work 

they undertook on a completely contingent basis to achieve a beneficial class action settlement.

The proposed class action settlement, which the Court preliminarily approved on 

November 15, 2022 (ECF 75), establishes a non-reversionary common settlement fund of 

$3,350,000. Plaintiffs’ counsel worked diligently and effectively to achieve this strong outcome 

for the members of the settlement classes. Indeed, Plaintiffs’ counsel conducted a thorough 

investigation, comprehensive discovery, effective depositions, important legal research, and 

proficient motion practice to establish a strong negotiating position for the settlement discussions. 

These settlement discussions, in turn, were supervised by Professor Lynn Cohn, Director of the 

Center on Negotiation and Mediation at Northwestern School of Law, and included two separate 

mediation sessions, along with numerous discussions between counsel, Plaintiffs’ expert, and the 

parties, before and between those two sessions. Plaintiffs’ counsel’s ongoing commitment to and 

work on the case ultimately allowed them to secure the evidence and present the legal and factual 

analyses that persuaded Defendant to agree to the beneficial class settlement now before the Court.

When Plaintiffs and their counsel agreed to take this case on as a class action, the result 

was not certain. As discussed below, the case presented many risks and potential roadblocks that 

could have resulted in little or no recovery for the Classes or the attorneys. Nonetheless, counsel 

accepted the case on a wholly contingent fee basis, pursuing it with skill and diligence before 

achieving the strong result now before this Court. Because of counsel’s advocacy and willingness 

to proceed in the face of substantial risk, Class Members will receive a meaningful recovery 

without having to wait through considerably more years of litigation and attendant delays.

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Plaintiffs request attorneys’ fees of one-third (1/3) the net settlement fund. This is in line 

with Circuit precedent concerning market rate for similar cases and well within the range of awards 

courts in the Seventh Circuit have granted. Plaintiffs’ fee request is amply supported by the strong 

results achieved, skill of counsel in achieving them, and risks undertaken in bringing the case, 

among other factors that inform the determination of reasonable fee awards. As further discussed 

below, the requested fee is also commensurate with Plaintiffs’ counsel’s lodestar. For these reasons 

and as discussed further below, Plaintiffs respectfully request that the Court grant the Motion.

II. OVERVIEW OF COUNSEL’S WORK ON THIS CASE

In approximately February and March 2020, one of Plaintiffs’ counsel, Stacey Vucko, of

Vucko Law LLP began investigating complaints she received from Plaintiffs’ representatives, 

Valinda Stephens, Bernard Shurn, and Damien Muhammad, concerning their work at C&K 

Trucking, LLC. Vucko Decl. at ¶ 10. Plaintiffs complained about ongoing underpayments, 

confusing and inadequately documented or explained deductions from their pay, and a lack of 

transparency in Defendant’s pay processes. Id.; Konecky Decl. at ¶ 8. Ms. Vucko met with 

Plaintiffs’ representatives in person, over the phone, and by email, and analyzed documentation 

they provided. Vucko Decl. at ¶ 10. She then sought to partner with Schneider Wallace Cottrell 

Konecky LLP, a firm with substantial experience in similar class actions, to further investigate and 

pursue Plaintiffs’ claims. Id.; Konecky Decl. at ¶ 8. 

Plaintiffs’ counsel did not take the decision to bring this case lightly. They knew from 

previous experience that cases challenging large transportation companies’ pay practices are often 

vigorously litigated. Konecky Decl. at ¶ 45. This includes extensive discovery, motion practice, 

contested motions for class certification, and even trial or pretrial proceedings before such cases 

can be resolved. Id. Despite these risks, Counsel believed in the merit of the case and pressed 

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forward with representing Plaintiffs and the Class. Id. at ¶¶ 8-9, 45-48. On July 22, 2020, Plaintiffs 

filed a class action complaint in this District, identifying Ms. Stephens and Mr. Shurn, d/b/a BNVS 

Transport LLC and Damien Muhammad, d/b/a Mein & Meen Trucking as the Named Plaintiffs. 

Id. at ¶ 9.

On September 14, 2020, Defendant filed a motion to dismiss the Complaint based primarily 

upon the argument that Ms. Stephens and Messrs. Shurn and Muhammad could not sue C&K in 

their personal capacities because they signed their contracts with C&K on behalf of their 

companies rather than on behalf of themselves personally. ECF 19. Without conceding the 

legitimacy of Defendant’s arguments and to efficiently advance the litigation, Plaintiffs’ counsel 

filed a First Amended Complaint on October 5, 2020 that substituted BNVS Transport LLC and 

Mein & Meen Trucking, Inc. as the Named Plaintiffs. Konecky Decl. at ¶ 10. 

On October 26, 2020, Defendant filed a second motion to dismiss, based upon the 

contentions that the companies did not have standing and that Plaintiffs’ allegations were 

insufficiently detailed. ECF 26. Plaintiffs’ counsel put substantial efforts into preparing and filing

the opposition, which was filed on November 23, 2020. ECF 34. Defendant filed its reply on 

December 7, 2020. ECF 37. Plaintiffs’ counsel’s efforts proved worthwhile, as the Court denied 

the motion and ordered Defendant to file an Answer. ECF 39. Defendant filed its Answer to the 

First Amended Complaint on June 4, 2021. ECF 40. 

After resolving the pleadings, the parties propounded and responded to requests for 

production of documents and interrogatories. Konecky Decl. at ¶ 12. Defendant produced over 

20,000 pages of documents, including (after meet and confer) a class list that enabled Plaintiff’s 

counsel to contact and interview putative class members. Id. Plaintiffs searched for and produced 

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approximately 1,000 pages of documents. Id. The parties also provided substantive answers (in 

addition to objections) to the interrogatories served on each other. Id.

The parties also pressed forward with depositions. On January 12, 2022, Plaintiffs’ counsel 

took the deposition of Defendant’s President, Sean McShane, who appeared as a designee witness 

pursuant to Federal Rule of Civil Procedure 30(b)(6). Id. at ¶ 13. Defendant’s counsel took the 

deposition of Valinda Stephens in her individual capacity and as a Rule 30(b)(6) designee witness 

of BNVS Transport LLC on February 11, 2022, the deposition of Bernard Shurn on February 24, 

2022, and the deposition of Damien Muhammad in his individual capacity and as a Rule 30(b)(6) 

designee witness of Plaintiff Mein & Meen Trucking, Inc. on March 22, 2022. Id.

On May 20, 2022, Plaintiffs filed their motion for class certification, which was supported 

by excerpts from the foregoing depositions, documents and interrogatory responses, declarations 

from putative class members that they spent significant time interviewing, and a memorandum of 

points and authorities. ECF 62; Konecky Decl. at ¶¶ 12-14, 32, 34.

While the motion for class certification was pending, the parties engaged in extensive, 

arms-length negotiations facilitated by Professor Lynn Cohn, Director of the Center on Negotiation 

and Mediation at the Northwestern School of Law. Konecky Decl. at ¶ 15. The negotiations were 

informed by documents, interrogatory responses, and depositions provided by both sides, as well 

as the exchange of mediation data and information (including revenue and settlement data 

produced by Defendant for the time period through May 16, 2021). Id. Counsel also prepared and 

exchanged mediation briefs with substantive legal and factual analysis. Id. After this exchange of 

information, the parties and their counsel also attended two mediation sessions on June 27 and July 

29, 2022, and Plaintiffs’ counsel had numerous discussions with their expert and Defendants’ 

counsel before and between the mediation sessions. Id. Both mediation sessions were attended by 

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representatives of the parties, including Defendant’s President, Valinda Stephens and Bernard 

Shurn, owner-operators of Plaintiff BNVS Transport LLC, and Damien Muhammad, owneroperator of Plaintiff Mein & Meen Trucking, Inc. Id. at ¶¶ 15, 59. With Professor Cohn’s 

assistance, the parties reached an agreement on the material terms of a settlement agreement. Id.

at ¶ 15. 

Following the close of mediation, the parties negotiated the remaining details of the 

settlement. Id. at ¶ 16. Counsel also worked together to prepare a long-form settlement agreement 

and notice to the class, among other settlement documents the parties have now submitted to the 

Court. Id. at ¶ 17.

On September 28, 2022, Plaintiffs filed the motion for preliminary approval of the 

proposed class action settlement. ECF 70. On November 15, 2022, the Court issued its Order (1) 

certifying the class for settlement purposes; (2) preliminarily approving the class settlement; (3) 

approving the class notice; and (4) scheduling the final approval hearing. ECF 75. Following 

preliminary approval, counsel worked with the administrator to facilitate notice and address class 

member inquiries in a timely manner. Konecky Decl. at ¶ 20.

III. LEGAL BASIS FOR AWARD OF ATTORNEYS’ FEES AND COSTS

A. Plaintiffs’ entitlement to attorneys’ fees

Federal Rule of Civil Procedure 23(h) provides, “[i]n a certified class action, the court may 

award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties’ 

agreement.” Fed. R. Civ. P. 23(h). Additionally, the Truth in Leasing Act contains a fee-shifting 

provision that authorizes a court to award attorneys’ fees to the prevailing party. 49 U.S.C. § 

14704(e). 

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B. Methods for evaluating attorneys’ fee requests in the Seventh Circuit

Where a settlement produces a common fund for the benefit of the entire class, there are 

two methods of calculating attorneys’ fees: (1) the percentage of recovery method, and (2) the 

lodestar/multiplier method. Reid v. Unilever U.S., Inc., 2015 U.S. Dist. LEXIS 75383, at *14 (N.D. 

Ill. June 10, 2015) (“In a case where common fund principles apply, a district court may apply 

either the percentage approach or the lodestar method.”) (citing Florin v. Nationsbank of Ga., N.A., 

34 F.3d 560, 566 (7th Cir. 1994)); see also T.K. v. Bytedance v. Tech. Co., Ltd., 2022 U.S. Dist. 

LEXIS 65322, at *66 (N.D. Ill. Mar. 25, 2022) (Blakey, J.) (“[T]his Court has discretion to use 

‘either a percentage of the fund or lodestar methodology[.]’”) (quoting Hale v. State Farm Mut. 

Auto. Ins. Co., 2018 U.S. Dist. LEXIS 210368 (S.D. Ill. Dec. 16, 2018)).

C. The preferred percentage of the fund approach applies here

“[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than 

himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing 

Co. v. Van Gemert, 444 U.S. 472, 478 (1980). “[T]he ‘percentage method is employed by the vast 

majority of courts in the Seventh Circuit’” in evaluating fee requests in common fund settlements. 

See Bytedance, 2022 U.S. Dist. LEXIS 65322, at *66 (Blakey, J.) (quoting Hale, 2018 U.S. Dist. 

LEXIS 210368). Moreover, “[t]he Seventh Circuit has determined that . . . ‘when a settlement fund 

is created in exchange for release of the defendant’s liability both for damages and for statutory 

attorney’s fees, equitable fund principles must govern the court’s award of attorney’s fees.’” Reid, 

2015 U.S. Dist. LEXIS 75383, at *15 (quoting Skelton v. Gen. Motors Corp., 860 F.2d 250, 256 

(7th Cir. 1988)). 

The percentage of the fund approach applies under the circumstances. Plaintiffs here sought 

attorneys’ fees under a fee-shifting statute, and the agreement at issue requires Defendant to pay

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$3.35 million into a common fund in exchange for a release of liability for both damages and 

attorneys’ fees. See Amended Compl. (ECF 24) at p. 23 (citing 49 U.S.C. § 14704(e)); Settlement 

Agreement (ECF 70-1 at pp. 16-43) at §§ 1.34, 3.1, 3.2.2, 6; Reid, 2015 U.S. Dist. LEXIS 75383, 

at *15 (quoting Skelton, 860 F.2d at 256). The courts in the Seventh Circuit routinely award fees 

under this approach in class action cases. See, e.g., Bytedance, 2022 U.S. Dist. LEXIS 65322, at 

*65-69 (Blakey, J.); Leung v. XPO Logistics, Inc., 326 F.R.D. 185, 198-203 (N.D. Ill. 2018); 

George v. Kraft Foods Global, Inc., 2012 U.S. Dist. LEXIS 166816, at *7-13 (N.D. Ill. June 26, 

2012); Allegretti v. Walgreen Co., 2022 U.S. Dist. LEXIS 31985, at *9-11, *13-14 (N.D. Ill. Jan. 

4, 2022); Birchmeier v. Caribbean Cruise Line, Inc., 896 F.3d 792, 795 (7th Cir. 2018); In re Cap. 

One TCPA Litig., 80 F. Supp. 3d 781, 808 (N.D. Ill. 2015). 

D. A fee of one-third (1/3) the net settlement amount is fair and reasonable

To determine the percentage of the net settlement amount that constitutes the market rate, 

Seventh Circuit courts consider the following factors: “‘the risk of nonpayment, the quality of the 

attorney’s performance, the amount of work necessary to resolve the litigation, and the stakes of 

the case.’” Bytedance, 2022 U.S. Dist. LEXIS 65322, at *66 (Blakey, J.) (quoting Camp Drug 

Store, Inc. v. Cochran Wholesale Pharm., Inc., 897 F.3d 825, 832-33 (7th Cir. 2018)). “[C]ourts 

also consider the ‘normal rate of compensation in the market.’” T.K. Bytedance, 2022 U.S. Dist. 

LEXIS 65322, at *66 (Blakey, J.) (citation omitted). These factors support a market rate of one 

third the net settlement amount as discussed below. 

1. The quality of performance and work invested support the fee request

The quality of Plaintiffs’ counsel’s performance and time invested support the requested 

fee award. In addition to accepting considerable risk in litigating this action, Plaintiffs’ counsel 

committed their time and resources to this case without any guarantee of compensation, including 

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substantial investigation, discovery, depositions, motion practice, and arms-length negotiations. 

All this work paved the way for the $3,350,000 settlement fund for the Classes’ benefit. 

Plaintiffs’ counsel committed significant time and resources to this matter from the prefiling stage to the present. Counsel spoke with the Named Plaintiffs’ representatives at length, 

analyzed their documentary evidence, and thoroughly investigated their claims before filing this 

action. Vucko Decl. at ¶ 10; Konecky Decl. at ¶ 8. After filing this action, counsel confronted and 

surpassed two motions to dismiss. Konecky Decl. at ¶¶ 9-11. Counsel subsequently engaged in 

extensive discovery, which included propounding and assisting Plaintiffs’ representatives in 

responding to discovery requests, taking and defending depositions including that of Defendant’s 

Person Most Knowledgeable, and interviewing multiple Class Members. Konecky Decl. at ¶¶ 12-

14, 32, 34. Counsel then invested extensive time and resources into preparing a motion for class 

certification, which was supported by excerpts from the foregoing depositions and discovery 

responses, declarations from Class Members, and a memorandum of points and authorities.

Konecky Decl. at ¶ 14.

Counsel subsequently engaged in multi-step negotiations mediated by Professor Lynn 

Cohn of the Northwestern School of Law and informed by the data analysis Plaintiffs’ counsel 

performed with the assistance of a forensic accountant. Konecky Decl. at ¶¶ 15-16, 32, 34. Once 

the parties reached an agreement, Plaintiffs’ counsel worked with Defendant’s counsel to draft a 

long-form agreement and notice, prepared a motion for preliminary approval, appeared for the 

hearing on that motion, and worked with the settlement administrator to facilitate notice. Konecky 

Decl. at ¶¶ 17-20.

Counsel are experienced in litigating class, collective, and individual actions, including 

cases related to pay in the transportation industry. Konecky Decl. at ¶¶ 8, 26-34, 45-47 and Exh. 

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2; Vucko Decl. at ¶¶ 16-20. Counsel’s experience in this regard and their investment of significant 

time, energy, and resources enabled them to thoroughly assess the strengths and weaknesses of the 

case and achieve a strong result for the Classes. Counsel respectfully submit that the quality of 

their performance and the work they invested in this action support the requested fee award. 

2. The risks presented by the contingent nature of the recovery and the stakes 

of the case support the fee request

“As the ‘risk of walking away empty-handed’ increases, so too must the fee award in order 

to ‘attract competent and energetic counsel.’” Bytedance, 2022 U.S. Dist. LEXIS 65322, at *67 

(Blakey, J.) (quoting Silverman v. Motorola Sols., Inc., 739 F.3d 956, 958 (7th Cir. 2013)). Thus, 

the risk of non-payment is a key consideration in assessing the reasonableness of a requested fee 

and must be incorporated into any ultimate fee award. See Sutton v. Bernard, 504 F.3d 688, 691 

(7th Cir. 2007) (finding abuse of discretion where lower court, in applying percentage-of-the-fund 

approach, refused to account for risk of loss on basis that “class actions rarely go to trial and that 

they all settle[,]” noting that “there is generally some degree of risk that attorneys will receive no 

fee (or at least not the fee that reflects their efforts) when representing a class because their fee is 

linked to the success of the suit . . . [b]ecause the district court failed to provide for the risk of loss, 

the possibility exists that Counsel, whose only source of a fee was a contingent one, was 

undercompensated.”).

The contingent risk Plaintiffs’ counsel faced support the requested fee award here. 

Plaintiffs’ counsel take their cases on a contingent fee basis and rely on attorneys’ fee and cost 

awards to continue their work to seek enforcement of state and federal laws. Konecky Decl. at ¶ 

44; Vucko Decl. at ¶ 44. Counsel also had to forego requests by other prospective clients to bring 

other cases with merit to ensure they could continue to adequately and successfully represent 

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Plaintiffs and the Classes in this matter. Konecky Decl. at ¶ 44; Vucko Decl. at ¶ 44. Additionally, 

Plaintiffs’ counsel knew from experience pursuing class actions against large transportation 

companies that the Classes and Counsel faced the risk of undergoing intensive litigation, including 

likely appeals, potentially with no recovery. Konecky Decl. at ¶¶ 47-48, 54; see also Vucko Decl. 

at ¶ 45. 

Plaintiffs’ counsel faced substantial risks in winning back pay for the many owneroperators who will benefit from this settlement. Id. at ¶ 50. With respect to their TILA and breach 

of contract claims, for example, Plaintiffs faced a series of risks and uncertainties due to the 

possibility of differing interpretations of the standardized owner-operator agreements and the 

complexities of the revenue and pay data, which could also be interpreted differently. Id. at ¶ 51.

Additionally, the common law fraud claim in this case presented the issue of reliance, a showing 

that could be difficult to make on a class basis. Id. at ¶ 52. Similarly, an argument might be 

presented that Plaintiffs need to show reliance on their other claims as well, including the TILA 

claim – and while Plaintiffs dispute whether that is correct, such an argument presented another 

layer of potential risk and complication. Id.

Developments during the litigation also increased the stakes for the owner-operators and 

Counsel. Specifically, while this case was pending, Defendant required existing owner-operators 

to sign a new contract that purported to waive their ability to participate in any class action 

proceeding. Id. at ¶ 53. While Plaintiffs dispute the validity of this waiver, it raised the risk that 

even if Plaintiffs were to prevail on class certification, Class Members could be discouraged or 

even prohibited from participating in the case. Id. Counsel were able to negotiate a strong result 

that will enable all Class Members whose pay was at stake to participate in the settlement, 

regardless of whether they have signed this new agreement. Id.

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Risks also existed pertaining to the measure of damages that also affected the owneroperators and Counsel. Id. at ¶ 54. The measure of damages would have been hotly contested. Id.

Thus, even if Plaintiffs were to prevail on class certification and liability, the measure of damages 

presented further risk. Id.

In sum, the legal and factual issues specific to this case increased the contingent risk to 

Counsel and the risks to the owner-operators, who risked not recovering any back pay at all. 

Plaintiffs’ counsel therefore respectfully submit that the risks and stakes of the case also support 

the requested fee.

3. The requested fees reflect typical contingency fee agreements in this Circuit

and are in line with previous fee awards that Counsel have received

The “actual fee contracts that were privately negotiated for similar litigation” may also be 

relevant considerations to a fee request. Taubenfeld v. AON Corp., 415 F.3d 597, 599 (7th Cir. 

2005) (citation omitted); Mangone v. First USA Bank, 206 F.R.D. 222, 226 (S.D. Ill. 2001)

(requiring weight to be given to the judgment of the parties and their counsel where the fees were 

agreed to through arm’s length negotiations after the parties agreed on other key deal terms). 

The customary contingency agreement in this Circuit is 33% to 40% of the total recovery. 

Gaskill v. Gordon, 160 F.3d 361, 362-63 (7th Cir. 1998) (affirming award of 38%); Kirchoff v. 

Flynn, 786 F.2d 320, 323 (7th Cir. 1986) (finding 40% to be “the customary fee in tort litigation”); 

Retsky Family Ltd. V. P’ship v. Price Waterhouse, LLP, 2001 WL 1568856, at *4 (N.D. Ill. Dec. 

10, 2001) (customer contingent fee is “between 33 1/3% and 40%.”) (quotations and citation 

omitted). In line with these practices, co-counsel Vucko Law LLP typically includes an agreement 

for 1/3 of recovery in fees in its retainer agreements, with an escalator for trial work. Vucko Decl. 

at ¶ 22. Similarly, in class action cases such as this one, the process for co-counsel Schneider 

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Wallace Cottrell Konecky LLP is typically to make a motion for attorneys’ fees and costs at the 

end of the case, most often as a percentage of the recovery. Konecky Decl. at ¶ 35.

4. The requested fees are well within the typical range of awards that Seventh 

Circuit courts grant in class action cases

“As the Seventh Circuit has held, attorney’s fee awards in analogous class action 

settlements shed light on the market rate for legal services in similar cases.” Kolinek v. Walgreen 

Co., 311 F.R.D. 483, 501 (N.D. Ill. 2015) (citation omitted). Additionally, there is a 

“‘presumption’” in this Circuit “that ‘attorneys’ fees awarded to class counsel should not exceed 

a third,’ or ‘at most half of the” net settlement amount. Bytedance, 2022 U.S. Dist. LEXIS 65322, 

at *66 (Blakey, J.) (quoting Pearson v. NBTY, Inc., 772 F.3d 778, 782 (7th Cir. 2014)); In re Tiktok, 

Inc., Consumer Priv. Litig., 2022 U.S. Dist. LEXIS 134177, at *68-69 (N.D. Ill. July 28, 2022). 

One third of the net amount is commonly considered to be the market rate. See George, 

2012 U.S. Dist. LEXIS 166816, at *8 (citing In re Ready-Mixed Concrete Antitrust Litig., 2009 

U.S. Dist. LEXIS 132343, at *34 (S.D. Ind. Mar. 31, 2009) for the proposition that 33.33% of the 

common fund recovered is the “market rate” for fees in common fund cases); Allegretti, 2022 U.S. 

Dist. LEXIS 31985, at *10 (describing a 1/3 fee as market rate in complex cases) (citations 

omitted); see also, e.g., id. at *13-14 (awarding fees of 33.3% of the common fund); Bytedance, 

2022 U.S. Dist. LEXIS 65322, at *66-67 (Blakey, J.) (finding that facts “support[ed] a market rate 

of 33.3%” in a common fund case); Leung, 326 F.R.D. at 203 (same). 

Moreover, Seventh Circuit courts have granted fee awards constituting greater percentages 

of the settlement fund than Plaintiffs’ counsel are requesting here. See, e.g., Birchmeier, 896 F.3d 

at 795 (affirming fee award that included “the sum of 36% of the first $10 million”); Garcia v. 

J.C. Penney Corp., 2017 U.S. Dist. LEXIS 131890, at *4-6 (N.D. Ill. Aug. 9, 2017) (granting fees 

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amounting to 35% of the gross settlement fund); Simms v. Exacttarget, LLC, 2018 U.S. Dist. 

LEXIS 245963, at *27, *30 (S.D. Ind. Oct. 2, 2018) (recommending that the District Judge grant 

35% of the net settlement fund), adopted by Simms v. Exacttarget, LLC, 2018 U.S. LEXIS 245994, 

at *1-2 (S.D. Ind. Oct. 19, 2018). 

Plaintiffs’ counsel respectfully submit that the requested fees are reasonable because they 

reflect a percentage that Seventh Circuit courts typically determine to be market rate, while also 

being at the lower end of the range of percentages Seventh Circuit courts have granted. 

5. Counsel’s requested fees are commensurate with their lodestar

“The use of a lodestar cross-check has fallen into disfavor.” George, 2012 U.S. Dist. 

LEXIS 166816, at *11 (citing In re Synthroid Mktg. Litig., 325 F.3d 974, 979-80 (7th Cir. 2003); 

Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 598 n.27 (N.D. Ill. 2011); In re Comdisco Sec. 

Litig., 150 F. Supp. 2d 943, 948 (N.D. Ill. 2001)). Nonetheless, Plaintiffs’ counsel’s lodestars 

support the instant fee request here because they are commensurate with the requested fees.

Courts have consistently approved the rates that Plaintiffs’ counsel bill for their work, 

which are the reference point for determining the market rate. See Michels Corp. v. Cent. States, 

2017 U.S. Dist. LEXIS 213714, at *35 (N.D. Ill. May 30, 2017) (“...in the end, ‘an attorney’s 

actual billing rate for comparable work is presumptively appropriate for use as a market rate when 

making a lodestar calculation.’”) (quoting Jeffboat, LLC v. Dir., OWCP, 553 F.3d 487, 490 (7th 

Cir. 2009)), adopted by Michels Corp. v. Cent. States, 2017 U.S. Dist. LEXIS 213711 (N.D. Ill. 

June 19, 2017); Konecky Decl. at ¶¶ 37-40 and Exhs. 3-22; see also Vucko Decl. at ¶ 25.

Considering Plaintiffs’ counsel’s reasonable rates and that the requested fees are commensurate 

with their lodestars, a lodestar cross-check also supports Counsel’s request. See George, 2012 U.S. 

Dist. LEXIS 166816, at *13 (“At these reasonable rates, even an unenhanced lodestar would result 

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in a fee far in excess of what Class Counsel have requested here. Accordingly, while the Court 

does not believe a lodestar cross-check is necessary, Class Counsel’s fee request easily withstands 

such analysis.”)

IV. PLAINTIFFS’ REQUESTED COST REIMBURSEMENTS ARE REASONABLE

“Rule 23(h) also permits courts to ‘award . . . nontaxable costs that are authorized by law 

or by the parties’ agreement.’” Bytedance, 2022 U.S. Dist. LEXIS 65322, at *70 (Blakey, J.). “[I]t 

‘is well established that counsel who create a common fund . . . are entitled to the reimbursement 

of litigation costs and expenses.’” Id. at *70 (quoting Hale, 2018 U.S. Dist. LEXIS 210638); see 

also George, 2012 U.S. Dist. LEXIS 166816, at *14 (same; such expenses “include[] . . . expert 

witness costs; computerized research; court reports; travel expense; copy, phone and facsimile 

expenses and mediation.”) (citing Fed. R. Civ. P. 23; Boeing v. Van Gemert, 444 U.S. 472, 478 

(1980)). The Seventh Circuit has held that costs and expenses should be awarded based upon the 

types of “expenses private clients in large class actions (auctions and otherwise) pay.” In re 

Synthroid Mktg. Litig., 264 F.3d 712, 722 (7th Cir. 2001); see also Bytedance, 2022 U.S. Dist. 

LEXIS 65322, at *70 (Blakey, J.) (expense reimbursement appropriate where counsel present 

“sufficient records to allow courts to carry out their ‘duty to ensure that the expenses are 

reasonable.’”) (quoting In re Dairy Farmers of Am., Inc., 80 F. Supp. 3d 838, 853 (N.D. Ill. 2015)). 

Here, as set forth in the accompanying Konecky and Vucko Declarations, Plaintiffs’ outof-pocket expenses include the following: (1) filing fees, court fees, and service of process; (2) 

mediation fees; (3) legal research; (4) overnight and bulk mail; (5) copies and postage; (6) court 

reporter and transcript fees for depositions; (7) e-discovery fees; (8) fees incurred to travel to and 

appear for the hearing on Plaintiffs’ motion for preliminary approval; and (9) expert fees. Konecky 

Decl. at ¶ 57 & Exh. 1 (item-by-item listing of costs); Vucko Decl. at ¶ 44 & Exh. 1 (same). These 

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expenses were reasonable, necessary to the prosecution of this case, and are customarily billed to 

fee-paying clients. Moreover, at $47,780.86, they represent less than less than 1.5% of the common 

fund net administrative costs and proposed service awards. See, e.g., Bytedance, 2022 U.S. Dist. 

LEXIS 65322, at *71 (Blakey, J.) (approving documented costs that “comprise[d] less than 1.5% 

of the common fund . . . (or roughly 2.2% of the common fund net administrative costs and service 

awards), a portion smaller than the ‘average’ of ‘4 percent of relief for the class.’”) (Blakey, J.) 

(quoting In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d 1028, 1041 

(N.D. Ill. 2011)); Silverman v. Motorola, Inc., 2012 U.S. Dist. LEXIS 63477, at *14-15 (N.D. Ill. 

May 7, 2012) (approving documented costs that “consist[ed] of 2.4% of the relief obtained for the 

class).

V. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ 

motion for attorneys’ fees and costs.

Respectfully submitted,

DATED: December 22, 2022 VUCKO LAW LLP

 

By: /s/ Stacey Vucko

Stacey Vucko

Attorneys for Plaintiffs

SCHNEIDER WALLACE

COTTRELL KONECKY LLP

 

By: /s/ Joshua Konecky

Joshua Konecky

Sarah McCracken

Attorneys for Plaintiffs

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ 

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CERTIFICATE OF SERVICE

I hereby certify that December 22, 2022, I electronically filed the foregoing document with 

the Clerk of Court using the Court’s CM/ECF system, which will send a notice of electronic filing 

to all CM/ECF participants.

/s/ Joshua Konecky

 Joshua Konecky

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