UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

SIMON PFEIFER, ISABEL BOTELLO, and

KARI WHALEN, Individually and on Behalf 

of All Others Similarly Situated,

Plaintiffs,

v.

LOYOLA UNIVERSITY OF CHICAGO,

Defendant.

Case No. 20-cv-03116 

Honorable Robert W. Gettleman 

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................... ii

I. FACTUAL AND PROCEDURAL BACKGROUND......................................................... 1

II. MATERIAL TERMS OF THE SETTLEMENT AGREEMENT........................................ 2

A. Class Definition ...................................................................................................... 3

B. Non-Reversionary Settlement Fund With Automatic Payments.............................. 3

C. Release.................................................................................................................... 4

D. Notice and Administration Expenses ...................................................................... 4

E. Service Awards....................................................................................................... 4

F. Attorneys’ Fees....................................................................................................... 4

III. ARGUMENT ..................................................................................................................... 5

A. The Proposed Settlement Class is Appropriate Under Rule 23 ............................... 5

1. Rule 23(a) Is Satisfied.................................................................................... 5

2. Rule 23(b)(3) Is Satisfied ............................................................................... 7

a. Common questions of law or fact predominate. ...................................... 8

b. Class settlement is superior to alternate methods of 

adjudication. ........................................................................................... 8

B. The Settlement Is Fair and Reasonable ................................................................... 9

1. The Settlement Is Reasonable .......................................................................10

2. Continued Litigation Would Be Complex, Lengthy, And 

Expensive......................................................................................................11

3. There Is No Opposition to The Settlement ....................................................11

4. Experienced Counsel Recommend the Settlement ........................................12

5. A Settlement at This Stage Benefits Class Members.....................................12

C. Berger Montague PC and Fegan Scott LLC Should Be Appointed as 

Class Counsel.........................................................................................................12

D. Plaintiffs Simon Pfeifer, Isabel Botello, And Kari Whalen Should Be 

Appointed as Settlement Class Representatives .....................................................13

E. The Proposed Class Notice Plan Provides The Best Practicable Notice 

In Easily Understood Language .............................................................................13

IV. CONCLUSION .................................................................................................................15

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TABLE OF AUTHORITIES

Page(s)

Cases

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997)...........................................................................................................5, 8

American Int’l Group, Inc. v. ACE INA Holdings, Inc.,

Nos. 07 C 2898, 09 C 2026, 2011 WL 3290302 (N.D. Ill. July 26, 2011)............................10

Armstrong v. Bd. of Sch. Dirs. of City of Milwaukee,

616 F.2d 305 (7th Cir. 1980)................................................................................................10

Chaffee v. A&P Tea Co.,

Nos. 79 C 2735 and 79 C 3625, 1991 WL 5859 (N.D. Ill. Jan. 16, 1991) ............................13

CV Reit, Inc. v. Levy,

144 F.R.D. 690 (S.D. Fla. 1992) ........................................................................................... 7

E.E.O.C. v. Hiram Walker & Sons, Inc.,

768 F.2d 884 (7th Cir. 1985)................................................................................................. 5

Eddlemon v. Bradley Univ.,

65 F.4th 335 (7th Cir. 2023).................................................................................................11

Felzen v. Andreas,

134 F.3d 873 (7th Cir. 1998)................................................................................................10

Gen. Tel. Co. of the Sw. v. Falcon,

457 U.S. 147 (1982).............................................................................................................. 9

Gociman v. Loyola Univ. of Chi.,

41 F.4th 873 (7th Cir. 2022).................................................................................................. 2

Harris v. Circuit City Stores, Inc.,

No. 07-cv-2512, 2008 WL 400862 (N.D. Ill. Feb. 7, 2008) .................................................12

Haynes v. Logan Furniture Mart, Inc.,

503 F.2d 1161 (7th Cir. 1974)............................................................................................... 8

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

270 F.R.D. 330 (N.D. Ill. 2010) ...........................................................................................11

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In re Prudential Sec. Inc. Ltd. Partnerships Litig.,

163 F.R.D. 200 (S.D.N.Y. 1995)..........................................................................................10

In re TikTok, Inc., Consumer Privacy Litig.,

565 F. Supp. 3d 1076 (N.D. Ill. 2021)................................................................................... 7

Isby v. Bayh,

75 F.3d 1191 (7th Cir. 1996)................................................................................................. 5

Kaufman v. Am. Express Travel Related Servs. Co.,

264 F.R.D. 438 (N.D. Ill. 2009) ...........................................................................................12

McCabe v. Crawford & Co.,

210 F.R.D. 631 (N.D. Ill. 2002) ............................................................................................ 5

Parker v. Risk Mgmt. Alternatives, Inc.,

206 F.R.D. 211 (N.D. Ill. 2002) ............................................................................................ 6

Reliable Money Order, Inc. v. McKnight Sales Co.,

704 F.3d 489 (7th Cir. 2013)................................................................................................12

Synfuel Techs., Inc. v. DHL Express (USA), Inc.,

463 F.3d 646 (7th Cir. 2006)................................................................................................10

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016).............................................................................................................. 8

Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,

396 F.3d 96 (2d Cir. 2005)...................................................................................................13

Rules

Fed. R. Civ. P. 23 ...................................................................................................................5, 9

Fed. R. Civ. P. 23(a)...........................................................................................................5, 7, 9

Fed. R. Civ. P. 23(a)(1) ............................................................................................................. 5

Fed. R. Civ. P. 23(a)(2) ......................................................................................................... 6, 7

Fed. R. Civ. P. 23(a)(3) ......................................................................................................... 6, 7

Fed. R. Civ. P. 23(a)(4) ............................................................................................................. 7

Fed. R. Civ. P. 23(b)...............................................................................................................5, 8

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Fed. R. Civ. P. 23(b)(3) ......................................................................................................5, 7, 8

Fed. R. Civ. P. 23(c)(2)(B) .................................................................................................13, 14

Fed. R. Civ. P. 23(e)...........................................................................................................10, 13

Fed. R. Civ. P. 23(e)(1)(B) ........................................................................................................ 5

Fed. R. Civ. P. 23(e)(2) ............................................................................................................. 9

Fed. R. Civ. P. 23(g).................................................................................................................13

Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv)............................................................................................12

Fed. R. Civ. P. 23(g)(1)(B), (2), (4)..........................................................................................12

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Plaintiffs Simon Pfeifer, Isabel Botello, and Kari Whalen (collectively, “Plaintiffs”), 

students at Defendant Loyola University of Chicago (“Loyola,” the “University” or 

“Defendant”) during the Spring 2020 semester, allege that Loyola breached a contractual 

agreement to provide them, and similarly situated students, with promised in-person instruction 

and campus access.

1 This Court dismissed Plaintiffs’ First Amended Complaint, however the 

U.S. Court of Appeals for the Seventh Circuit vacated the Court’s decision, in part, and remanded

the case for further proceedings. Plaintiffs filed a Second Amended Complaint (“SAC”) (ECF 

No. 51). After engaging in settlement discussions, the Parties subsequently reached an agreement 

to resolve the matter (the “Settlement Agreement”).

The Parties’ negotiated Settlement Agreement delivers immediate relief to the proposed

Settlement Class.

2

It creates a $1,375,000 non-reversionary settlement fund which will 

automatically provide all Settlement Class Members who were assessed a Lab Fee (as defined 

in the Settlement Agreement) a cash reimbursement of those fees, unless the Class Member 

excludes him or herself from the Settlement. Any remaining funds will be allocated pro rata to 

the Remaining Settlement Class Members who have not excluded themselves. Settlement Class 

Members are not required to submit a claim form or take other action to receive their Fee 

Reimbursement or any pro rata share of the Remaining Net Settlement Fund.

Plaintiffs move the Court for an Order (1) preliminarily approving the proposed class 

action Settlement; (2) authorizing the transmission of notice of the proposed Settlement to the 

1

In the alternative, Plaintiffs allege that Defendant was unjustly enriched when it retained their 

full payments of tuition and fees.

2 The Settlement Class is defined below. All capitalized terms in this brief have the same 

meaning assigned to them, infra, or in the Settlement Agreement.

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proposed Class of Loyola students enrolled during the Spring 2020 semester (See Exhibit 1 to 

the Declaration of Ellen T. Noteware, the Settlement Agreement and its attachments at Exhibit 

A, filed concurrently herewith (“Noteware Decl.”) (“Proposed Long Form Class Notice”); see 

also id. at Exhibit C. (“Proposed Short Form Class Notice”) (collectively, the “Class Notices” 

or “Notices”)); (3) certifying, for purposes of the Settlement only, the Settlement Class as 

defined herein; (4) appointing Plaintiffs as Settlement Class Representatives; (5) appointing the 

law firms of Berger Montague PC and Fegan Scott LLC as Class Counsel; (6) approving the 

Parties’ proposed Settlement procedure, including approving the Parties’ selection of KCC Class 

Action Services LLC as Settlement Administrator; (7) entering the proposed Order Preliminarily 

Approving the Proposed Settlement attached as Exhibit B to the Settlement Agreement; and (8) 

scheduling a Final Approval Hearing of the proposed class action Settlement.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs brought this action on behalf Loyola students seeking pro rata refunds of their 

tuition and fees for the Spring 2020 semester following the termination of in-person instruction, 

and the loss of in-person, on-campus benefits, and services, in the middle of the Spring 2020 

semester. SAC at ¶ 1. Plaintiffs allege that they and the Settlement Class Members did not 

receive the full semester’s worth of in-person instruction and on-campus benefits for which they

had bargained and paid. Id. at ¶ 5. Plaintiffs brought claims for breach of contract or, 

alternatively, unjust enrichment, and sought damages and/or restitution on their behalf and on 

behalf of the Settlement Class in the form of tuition and fee refunds for the period during which 

they were denied on-campus instruction and access to campus facilities and resources. Id. at ¶ 6.

Former plaintiff Andreea Gociman filed the initial complaint in this action on May 26, 

2020. ECF No. 1 (the “Complaint”). Defendant moved to dismiss the Complaint on August 14, 

2020. On September 4, 2020, Ms. Gociman filed the Amended Class Complaint (ECF No. 17, 

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the “FAC”), adding Plaintiffs Simon Pfeifer, Isabel Botello, and Kari Whalen. On September 

29, 2020, Defendant moved to dismiss the FAC (ECF Nos. 21-22) and on January 25, 2021, the 

Court dismissed the FAC with prejudice. ECF No. 37.

Plaintiffs appealed the Court’s decision to the U.S. Court of Appeals for the Seventh 

Circuit, which affirmed in part, vacated in part, and remanded for further proceedings. Gociman 

v. Loyola Univ. of Chi., 41 F.4th 873 (7th Cir. 2022). On November 15, 2022, the Seventh Circuit 

denied Loyola’s Petition for Rehearing En Banc. Gociman v. Loyola Univ. of Chi., No. 21-1304, 

2022 WL 16954353 (7th Cir. Nov. 15, 2022). On November 23, 2022, the case was remanded 

and returned to the Court for further proceedings. See ECF Nos. 44-47.

Plaintiffs filed the SAC on January 6, 2023, which Loyola answered on February 3, 2023. 

ECF Nos. 51, 55. Defendant raised nineteen (19) Affirmative and Other Defenses. ECF No. 55

at 38-41. Recognizing the risks of litigation and the desire to avoid expensive discovery and 

provide more immediate relief to the Class, the Parties actively attempted to resolve this dispute. 

See ECF No. 57. After being informed of these discussions, the Court granted the Parties’ request

for a stay until March 13, 2023. ECF No. 58. The Parties spent several months negotiating an 

acceptable resolution to this case—one that provides tangible, immediate, and automatic relief.

3

II. MATERIAL TERMS OF THE SETTLEMENT AGREEMENT

The material terms of the Settlement Agreement are briefly summarized as follows:

3 On March 13, 2023, the Parties notified the Court that they had reached a settlement in principle 

to resolve the case on behalf of the proposed Class and requested an additional 60-day stay. ECF 

No. 59. The Court granted the Parties’ request and stayed the case through May 12, 2023. ECF 

No. 60. The Parties required several additional months to finalize their agreement as they 

reviewed the pertinent information related to fees. The Parties jointly requested additional time, 

which the Court allowed. See ECF Nos. 61-66. 

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A. Class Definition

The “Settlement Class” is defined as:

All students enrolled in any Loyola program who were assessed any tuition or 

Fees for the Spring 2020 semester, with the exception of (i) any person enrolled 

in online-only courses for the Spring 2020 semester, (ii) any person who withdrew 

from Loyola on or before March 17, 2020, (iii) any person who requested to block 

the release of his/her Directory Information and has not agreed to remove that 

block; (iv) any person who properly executes and files a proper and timely optout request to be excluded from the Settlement Class; and (v) the legal 

representatives, successors, or assigns of any such excluded person.

Settlement Agreement ¶ dd.

B. Non-Reversionary Settlement Fund With Automatic Payments

Each Settlement Class Member who was assessed any Lab Fees during the Spring 2020 

semester will receive a pro-rata refund of those fees (“Fee Reimbursement”). “Lab Fees” are 

defined as “the Biology Science Lab fee, the Physics Science Lab fee, the Chemistry Science 

Lab fee, Language Lab fees and the Fine Arts Lab fee assessed to Loyola students enrolled in 

classes during the Spring 2020 semester.” Id. ¶ l. 

After payment of the Fee Reimbursement to any Settlement Class Member who was 

assessed Lab Fees during the Spring 2020 Semester, the Remaining Net Settlement Fund will be 

allocated pro rata to the Remaining Settlement Class Members based on the ratio of (a) the total 

number of Remaining Settlement Class Members (i.e. Settlement Class Members who were not 

assessed Lab Fees) to (b) the Remaining Net Settlement Fund (i.e. the Net Settlement Fund less 

the portion allocated to Settlement Class Members who were assessed Lab Fees). The resulting 

ratio will be multiplied by the Remaining Net Settlement Fund to determine each Remaining 

Settlement Class Member’s Settlement Benefit. Id. ¶ 2.

Each Settlement Class Member’s Settlement Benefit will be distributed to that Settlement 

Class Member automatically, with no action required by that Settlement Class Member. Id. ¶ 4.

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Settlement Class Members who do not specify otherwise via a form on the Settlement Website

will be paid by a check issued by the Settlement Administrator. The check will be mailed by first 

class U.S. Mail by the Settlement Administrator to the Settlement Class Member’s last known 

mailing address on file with Loyola’s Office of Registration and Records. Id.

No portion of the Settlement Fund will revert to Defendant. Rather, any amounts from 

uncashed checks shall be donated, as a cy pres award, to After School Matters. Id. ¶ 6.

C. Release

In exchange for the above relief, Releasing Settlement Class Parties shall be deemed to 

have, and by operation of law and of the Final Judgment shall have, fully, finally, and forever 

compromised, settled, released, resolved, relinquished, waived, and discharged all Released 

Claims against the Released Loyola Parties, and shall forever be barred and enjoined from 

prosecuting any or all of the Released Claims against the Released Loyola Parties. Id. ¶¶ 7-10.

D. Notice and Administration Expenses

The Settlement Fund will pay the cost of settlement Administrative Expenses, which 

includes sending the Class Notice set forth in the Settlement and any other notice as required by 

the Court, and all costs of administering the Settlement. Id. ¶ 33. After soliciting multiple 

requests for proposals, Plaintiffs have identified a reputable administrator, KCC Class Action 

Services LLC, to facilitate notice and administration. Id. ¶ aa.

E. Service Awards

In recognition for their efforts on behalf of the Settlement Class, the Parties agreed that 

Plaintiffs may seek individual Service Awards not to exceed $5,000 each. Id. ¶ 44.

F. Attorneys’ Fees

The Settlement Agreement provides that the Settlement Fund may also pay Class Counsel 

reasonable attorneys’ fees and to reimburse case expenses, in an amount to be approved by the 

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Court. Id. ¶ 46. Class Counsel will apply for an award of attorneys’ fees not to exceed one-third 

of the Settlement Fund, plus reimbursement of out-of-pocket expenses. Id.

III. ARGUMENT

“Federal courts naturally favor the settlement of class action litigation.” Isby v. Bayh, 75 

F.3d 1191, 1196 (7th Cir. 1996) (citing E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 

888-89 (7th Cir. 1985), cert. denied, 478 U.S. 1004 (1986)). In deciding whether to preliminarily 

approve a settlement and direct notice, a court must determine whether it “will likely be able to” 

both (1) certify the class for settlement purposes and (2) find that the settlement is fair, 

reasonable, and adequate. Fed. R. Civ. P. 23(e)(1)(B).

A. The Proposed Settlement Class is Appropriate Under Rule 23

Before granting preliminary approval of a settlement, a Court must determine whether 

the class proposed for settlement purposes is appropriate under Rule 23. See Amchem Prods., 

Inc. v. Windsor, 521 U.S. 591, 620 (1997). While the ultimate decision to certify the class is not 

made until the final approval hearing after the preliminary approval stage, “the parties must 

ensure that the court has a basis for concluding that it likely will be able, after the final hearing, 

to certify the class.” Fed. R. Civ. P. 23, Advisory Committee Note to Subdivision (e)(1). To 

proceed as a class action, Plaintiffs must satisfy the four prerequisites of Rule 23(a): (1) 

numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed. R. Civ. P. 

23(a). In addition, at least one of the three requirements of Rule 23(b) must be met. Fed. R. Civ. 

P. 23(b). Here, the Settlement Class meets the requirements of Rule 23(a) and Rule 23(b)(3).

1. Rule 23(a) Is Satisfied

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is 

impracticable.” Fed. R. Civ. P. 23(a)(1). “Although there is no ‘bright line’ test for numerosity, 

a class of forty is generally sufficient to satisfy Rule 23(a)(1).” McCabe v. Crawford & Co., 210 

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F.R.D. 631, 643 (N.D. Ill. 2002). Here, Defendant represents that the Settlement Class consists 

of approximately 15,600 students. Noteware Decl. ¶ 9. The size of the proposed Settlement Class 

is more than sufficient to satisfy Rule 23(a)(1).

The commonality element of Rule 23(a)(2) requires that “there are questions of law or 

fact common to the class.” Fed. R. Civ. P. 23(a)(2). “[A] common nucleus of operative fact is 

usually enough to satisfy the [commonality] requirement.” Parker v. Risk Mgmt. Alternatives, 

Inc., 206 F.R.D. 211, 213 (N.D. Ill. 2002). The typicality requirement of Rule 23(a)(3) provides 

that “the claims or defenses of the representative parties are typical of the claims or defenses of 

the class.” Fed. R. Civ. P. 23(a)(3). “Typicality is satisfied if a plaintiff’s claims arise from the 

same event, practice or course of conduct that gives rise to the claim of the other class members, 

and if the claims are based on the same legal theory.” Parker, 206 F.R.D. at 213.

Here, the claims are based on a common set of facts and Plaintiffs’ claims are typical of 

those of the Settlement Class. Loyola transitioned its in-person Spring 2020 semester courses to 

remote instruction for all Settlement Class Members, barred Settlement Class Members from 

accessing certain campus facilities and resources, and did not provide refunds to any Settlement 

Class Members for tuition or certain fees. This action focuses on Defendant’s common course 

of conduct in allegedly breaching its contract with students for in-person instruction and campus 

access for the Spring 2020 semester. This action presents many questions common to the 

Settlement Class, including: (a) whether Defendant entered into a contract with the Settlement

Class for the Spring 2020 semester; (b) the terms of any such contract; (c) whether Defendant 

breached that contract; (d) whether the Settlement Class is entitled to damages for any such 

breach; (e) whether Defendant benefitted unjustly from the money it accepted from the

Settlement Class for the Spring 2020 semester; and (f) the amount and nature of relief to be 

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awarded to Plaintiffs and the other Settlement Class Members. SAC ¶ 80. These common 

questions, which target the same alleged conduct by Loyola, satisfy Rule 23(a)(2).

Additionally, Plaintiffs pursue the same claims as the Settlement Class based on the same 

legal theories and the same alleged course of conduct: that Plaintiffs and Settlement Class 

Members paid Spring 2020 semester tuition and fees in exchange for in-person instruction and 

services that they did not receive. Thus, the typicality requirement of Rule 23(a)(3) is satisfied.

Rule 23(a) requires that “the representative party will fairly and adequately protect the 

interests of the class.” Fed. R. Civ. P. 23(a)(4). “This prerequisite of Rule 23(a) has two 

components: (1) ‘the representatives must not possess interests which are antagonistic to the 

interests of the class,’ and (2) ‘the representatives’ counsel must be qualified, experienced and 

generally able to conduct the proposed litigation.’” In re TikTok, Inc., Consumer Privacy Litig., 

565 F. Supp. 3d 1076, 1085 (N.D. Ill. 2021) (“TikTok I”) (quoting CV Reit, Inc. v. Levy, 144 

F.R.D. 690, 698 (S.D. Fla. 1992)). Both components are satisfied here. The Settlement Class 

Representatives have not displayed any conflicts with members of the Settlement Class.

Noteware Decl. ¶ 10. To date, they have vigorously represented their fellow Settlement Class 

Members, spending significant time assisting their counsel in this matter. Id. Additionally, 

proposed Class Counsel is highly experienced and well-versed in complex class action litigation. 

See id. ¶ 8. See also id. at Exhibit 2 (Berger Montague Firm Resume); id. at Exhibit 3 (Fegan 

Scott Firm Resume). Rule 23 (a)(4) is satisfied.

2. Rule 23(b)(3) Is Satisfied

Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3). As to the predominance and 

superiority requirements of Rule 23(b)(3), when “[c]onfronted with a request for settlement-only 

class certification, a district court need not inquire whether the case, if tried, would present 

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intractable management problems ... for the proposal is that there will be no trial.” Amchem 

Prods., Inc., 521 U.S. at 620 (explaining that subdivision 23(b)(3)(D) drops out of the analysis).

a. Common questions of law or fact predominate.

The “predominance inquiry tests whether proposed classes are sufficiently cohesive to 

warrant adjudication by representation.” Id. at 623. It “asks whether the common, aggregationenabling, issues in the case are more prevalent or important than the non-common, aggregationdefeating, individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) 

(citation and quotation marks omitted). “When one or more of the central issues in the action are 

common to the class and can be said to predominate, the action may be considered proper under 

Rule 23(b)(3).” Id. (citation and quotation marks omitted). When “issues of law and fact common 

to members of” a class “may be resolved through generalized proof,” “[p]redominance is met.” 

TikTok I, 565 F. Supp. 3d at 1086.

Common questions of law and fact predominate here. All Settlement Class Members are 

students who were enrolled at Loyola during the Spring 2020 semester, and who paid tuition and 

fees expecting to receive in-person instruction and on-campus access and services. Determining 

whether Loyola breached a contract to provide students with in-person instruction and oncampus benefits for the Spring 2020 semester, or was thereby unjustly enriched, are central 

questions common to each Settlement Class Member’s claim. Accordingly, this Court should 

find that common questions predominate over individual issues for settlement purposes.

b. Class settlement is superior to alternate methods of adjudication.

Rule 23(b)(3) also requires a class action to be “superior to other available methods for 

fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b). Superiority is met 

where, like here, “it is improbable that many ‘would possess the initiative to litigate 

individually.’” TikTok I, 565 F. Supp. 3d at 1086 (quoting Haynes v. Logan Furniture Mart, Inc., 

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503 F.2d 1161, 1165 (7th Cir. 1974)); see also Amchem Prods. Inc., 521 U.S. at 617; Gen. Tel. 

Co. of the Sw. v. Falcon, 457 U.S. 147, 155 (1982) (noting “the class-action device saves the 

resources of both the courts and the parties by permitting an issue potentially affecting every 

class member to be litigated in an economical fashion under Rule 23”).

Here, class treatment is superior to other methods of adjudication. The maintenance of 

individual lawsuits by Settlement Class Members would be cost-prohibitive and an inefficient 

use of judicial resources. Class Counsel is unaware of any individual actions that have been 

instituted by Settlement Class Members. Noteware Decl. ¶ 11. Thus, both fairness and efficiency 

support class certification. 

Class certification therefore will permit a large number of students to adjudicate their 

common claims in a single forum simultaneously, effectively, and efficiently, without the 

duplication of effort and expense, or the burden on judicial resources, that numerous individual 

actions would involve. Moreover, the class action vehicle provides class members with the 

opportunity for a relatively expeditious resolution as opposed to continued protracted litigation. 

The risk that these efforts might result in no benefit at all is particularly present here, as this 

Court previously and completely dismissed all claims in this case. The class action device 

provides superior means to resolve this controversy effectively and efficiently.

As all the requirements of Rule 23(a) and (b)(3) are satisfied, certification of the 

Settlement Class for settlement purposes is appropriate, and this Court should preliminarily 

approve the Settlement.

B. The Settlement Is Fair and Reasonable

To approve the proposed Settlement, the Court must determine that it is “fair, reasonable, 

and adequate.” Fed. R. Civ. P. 23(e)(2). The Seventh Circuit provides a five-factor test for the 

Court to consider at the final approval stage: “(1) the strength of plaintiffs’ case compared to the 

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terms of the proposed settlement; (2) the likely complexity, length and expense of continued 

litigation; (3) the amount of opposition to settlement among affected parties; (4) the opinion of 

competent counsel; and (5) the stage of the proceedings and the amount of discovery completed.” 

American Int’l Group, Inc. v. ACE INA Holdings, Inc., Nos. 07 C 2898, 09 C 2026, 2011 WL 

3290302, at *5 (N.D. Ill. July 26, 2011) (“AIG”) (citing Synfuel Techs., Inc. v. DHL Express 

(USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006)).

“At the preliminary approval stage, however, the court’s task is merely to ‘determine 

whether the proposed settlement is within the range of possible approval,’ not to conduct a fullfledged inquiry into whether the settlement meets Rule 23(e)’s standards under Synfuel. Id., 2011 

WL 3290302, at *6 (citing Armstrong v. Bd. of Sch. Dirs. of City of Milwaukee, 616 F.2d 305, 

314 (7th Cir. 1980) (noting that at the final fairness hearing, the court will “adduce all 

information necessary to enable [it] intelligently to rule on whether the proposed settlement is 

fair, reasonable, and adequate”), overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 

(7th Cir. 1998); In re Prudential Sec. Inc. Ltd. Partnerships Litig., 163 F.R.D. 200, 209 

(S.D.N.Y. 1995) (preliminary approval determines whether the settlement is “possibly fair, 

reasonable, and adequate”)). While not required by the Federal Rules, “courts in this in this 

district have performed ‘a more summary version’ of the final fairness inquiry at the preliminary 

approval stage.” Id. (citing cases). Nonetheless, the Synfuel factors weigh in favor of 

preliminarily approving the proposed Settlement.

1. The Settlement Is Reasonable 

At the preliminary approval stage, the Court only needs to find “that the settlement figure 

is within a reasonable range.” Id., 2011 WL 3290302, at *7. Here, the Settlement Amount is inline with other settlements of Spring 2020 tuition and fee refund cases that have been approved.

See, e.g., Wright v. S. New Hampshire Univ., No. 1:20-cv-00609 (D.N.H.) ($1.25M); Martin v. 

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Lindenwood Univ., No. 4:20-cv-01128 (E.D. Mo.) ($1.65M); Choi v. Brown Univ., 1:20-cv001914 (D.R.I.) ($1.5M); Fittipaldi v. Monmouth Univ., No. 3:20-cv-5526 (D.N.J.) ($1.3M).

The Settlement here is reasonable for two additional reasons. First, Loyola represented 

that it already issued partial refunds to students for certain fees they had paid for the Spring 2020 

semester. Noteware Decl. ¶ 12. Second, there is uncertainty surrounding the likelihood of 

Plaintiffs’ claims on the merits since this Court previously dismissed the case and, as noted 

above, Defendant raised 19 defenses in response to the SAC. ECF No. 55 at 38-41. Moreover, 

the Seventh Circuit recently vacated the district court’s class certification order in a similar case. 

See Eddlemon v. Bradley Univ., 65 F.4th 335 (7th Cir. 2023).

Settlement spares the litigants the uncertainty, delay, and expense of further litigation 

while also reducing the burden on judicial resources. Balancing the significant risks against a 

certain monetary recovery for the Settlement Class Members demonstrates this Settlement is fair 

and reasonable.

2. Continued Litigation Would Be Complex, Lengthy, And 

Expensive

Another factor that weighs in favor of preliminary approval is that the Settlement 

provides immediate compensation to Settlement Class Members. Litigating the case through trial

and appeal would likely take years and include expensive expert discovery. Settlement Class 

Members would also face the possibility of no recovery.

3. There Is No Opposition to The Settlement

“Because the parties have not yet sent the notice, it is premature to fully assess this 

factor.” In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 349 (N.D. Ill. 

2010). However, at this time, the Parties are unaware of any opposition to the Settlement.

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4. Experienced Counsel Recommend the Settlement

Proposed Class Counsel, Berger Montague PC and Fegan Scott LLC, both recommend 

the Settlement. Both firms have extensive expertise litigating and settling complex class actions. 

Noteware Decl. ¶ 8; see also id. at Exhibits 2-3. “The court is entitled to rely heavily on the 

opinion of competent counsel.” AIG, WL 3290302, at *8 (internal quotation marks and citation 

omitted). 

5. A Settlement at This Stage Benefits Class Members

Further litigation not only would be complex, lengthy, and expensive and runs the risk 

of no recovery at all for Class Members. Settlement of this litigation after three years of litigation

does not put the Class at any disadvantage. In fact, given the settlement amounts reached in 

similar cases, the current Settlement will save Plaintiffs and the Class the costs of discovery. 

Courts in this District “have preliminarily approved settlements where ... no discovery at all was 

conducted before the settlement agreement was reached.” Id. (citing Kaufman v. Am. Express 

Travel Related Servs. Co., 264 F.R.D. 438, 447 (N.D. Ill. 2009)).

C. Berger Montague PC and Fegan Scott LLC Should Be Appointed as Class 

Counsel

Upon certifying a class, Rule 23 requires that a court appoint class counsel who will 

“fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B), (2), (4); 

Harris v. Circuit City Stores, Inc., No. 07-cv-2512, 2008 WL 400862, at *11 (N.D. Ill. Feb. 7, 

2008) (citation omitted). A court must consider (1) the work counsel has done in identifying or 

investigating potential claims; (2) counsel’s experience in handling class actions, other complex 

litigation, and the types of claims asserted in the case; (3) counsel’s knowledge of the applicable 

law; and (4) the resources class counsel has committed to representing the class. Fed. R. Civ. P. 

23(g)(1)(A)(i)-(iv); Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489, 498 n.7 

(7th Cir. 2013).

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Proposed Class Counsel satisfy Rule 23(g)’s criteria. Class Counsel has devoted 

substantial time, effort, and resources to this litigation, beginning with their initial investigation 

of Plaintiffs’ allegations, continuing through dismissal of the case and successful appeal, and 

ending with settlement negotiations that resulted in a non-reversionary settlement fund for the 

Class’s benefit, while taking into account the case’s strengths and weaknesses. Additionally, 

proposed Class Counsel have extensive experience in complex and class action litigation and 

have served as class counsel in an assortment of complex class actions. Noteware Decl., Exhibits

2-3. They should be appointed as Class Counsel here.

D. Plaintiffs Simon Pfeifer, Isabel Botello, And Kari Whalen Should Be 

Appointed as Settlement Class Representatives

The Court should also appoint Plaintiffs as Class Representatives. Plaintiffs have spent 

time and effort representing the Class, including significant time assisting counsel, providing 

information regarding Defendant’s policies and practices, reviewing and approving multiple 

amended complaints before filing, participating in the appellate process that revived the Action, 

and consulting with counsel during settlement negotiations. Noteware Decl. ¶ 10.

E. The Proposed Class Notice Plan Provides The Best Practicable Notice In 

Easily Understood Language

Under Rule 23(c)(2) and Rule 23(e) of the Federal Rules of Civil Procedure, 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.” Fed. 

R. Civ. P. 23(c)(2)(B). The notice requirements are “designed to guaranty that those bound by 

the ruling in a class action were accorded their due process rights to notice and an opportunity

to be heard.” Chaffee v. A&P Tea Co., Nos. 79 C 2735 and 79 C 3625, 1991 WL 5859, at *2 

(N.D. Ill. Jan. 16, 1991). Notice is “adequate if it may be understood by the average class 

member.” Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 114 (2d Cir. 2005) (internal 

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quotations and citations omitted). The form of Class Notice proposed here complies with all of 

these requirements. See Noteware Decl., Exhibit 1 at Exhibits A and C.

The proposed Class Notice provides detailed information about the Settlement, including: 

(1) a comprehensive summary of the terms; (2) Class Counsel’s intent to request attorneys’ fees, 

reimbursement of expenses, and Service Awards for named Plaintiffs; and (3) detailed 

information about the Released Claims. See id. It also provides information about the Final 

Approval Hearing date, the rights of Settlement Class Members to seek exclusion from the Class 

or to object (and the deadlines and procedure for doing so), and the procedure to receive 

additional information. Id. It fully informs Settlement Class Members of the lawsuit, the 

proposed Settlement, and the information they need to make informed decisions and exceeds the 

Rule’s requirements. 

The agreed-upon notice plan satisfies the requirements of Rule 23(c)(2)(B). Loyola will 

provide the Settlement Administrator a list from Loyola’s Office of Registration and Records 

containing the names and last known email and postal addresses, to the extent available, and 

social security numbers (for tax reporting purposes only if necessary and requested for particular 

Settlement Class Member(s) by the Settlement Administrator) of all Potential Settlement Class 

Members (the “Class List”) and the names of Potential Settlement Class Members who were 

assessed Lab Fees for the Spring 2020. Settlement Agreement ¶ 12.

The Settlement Administrator will send the Proposed Short Form Class Notice 

substantially in the form attached as Exhibit 1, at Exhibits A and C, via email to persons listed 

on the Class List. If an email address is not available for a Potential Settlement Class Member, 

the Short Form Notice will be sent to the Potential Settlement Class Member’s last known 

mailing address via U.S. Mail. Settlement Agreement ¶ 13. The Short Form Notice will advise 

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the Potential Settlement Class Members of their rights under the Settlement, including the right 

to be excluded from and/or object to the Settlement or its terms, and will inform Potential 

Settlement Class Members that they can access the Long Form Notice on the Settlement Website. 

Both Notices will advise Potential Settlement Class Members of the procedures outlined in 

Paragraphs 17-24 of the Settlement Agreement, specifying how to request exclusion from the 

Settlement or submit an objection to the Settlement. See Exhibit 1 at Exhibits A and C.

The Settlement Administrator will establish a Settlement Website that will allow 

Settlement Class Members to (a) update their addresses; or (b) elect to receive a Settlement 

Benefit by Venmo or PayPal. Settlement Agreement ¶ 5. It will also include case and Settlement 

documents. Id. ¶ 15.

IV. CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that the Court grant their 

Motion and enter the Proposed Order, attached as Exhibit B to the Settlement Agreement.

Dated: August 1, 2023 Respectfully submitted,

/s/Ellen T. Noteware

Ellen T. Noteware

BERGER MONTAGUE PC

1818 Market Street, Suite 3600

Philadelphia, PA 19103

Tel: (215) 875-3000

Email: enoteware@bm.net

Elizabeth A. Fegan

Fegan Scott LLC

150 S. Wacker Dr., 24th Floor

Chicago, IL 60606

Tel: (312) 741-1019

Email: beth@feganscott.com

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E. Michelle Drake

BERGER MONTAGUE PC

1229 Tyler Street NE, Suite 205

Minneapolis, MN 55413

Tel: (612) 594-5999

Email: emdrake@bm.net

Attorneys for Plaintiffs and the Class

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CERTIFICATE OF SERVICE

I, Ellen T. Noteware, an attorney, affirm that the foregoing Plaintiffs’ Motion for 

Preliminary Approval of Class Action Settlement was filed on August 1, 2023 on ECF, which 

automatically served all counsel of record.

Dated: August 1, 2023 Respectfully submitted,

/s/Ellen T. Noteware

Ellen T. Noteware

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