Petition for Writ of Certiorari — Kevin McCabe, Petitioner v. Gerardo Aranda, et al.

No. 18-

In The Supreme Court of the United States

KEVIN McCABE,

Petitioner,

v.

GERARDO ARANDA and CARIBBEAN

CRUISE LINE, INC., et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TODD C. BANK

TODD C. BANK,

ATTORNEY AT LAW, P.C.

119-40 Union Turnpike

Fourth Floor

Kew Gardens, New York 11415

(718) 520-7125

tbank@toddbanklaw.com

Counsel of Record to Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Whether a cy pres provision of a class-action

settlement agreement may, in authorizing the class

members to make recommendations for the selection,

by the district court, of a cy pres recipient, do so

without requiring that the class members be given

either guidance or a list of potential recipients in order

to help ensure that the selected recipient has interests

that are aligned with the interests of the class

members.

2. Whether a cy pres provision of a class-action

settlement agreement may decline to state when the

district court would select the cy pres recipient.

3. Whether a cy pres provision of a class-action

settlement agreement may decline to state whether, or

how, the class members would be able to object to the

district court’s selection of the cy pres recipient.

i

LIST OF PARTIES AND

RULE 29.6 DISCLOSURE

Petitioner, Kevin McCabe (“McCabe”), is a

natural person. Therefore, no corporate-disclosure

statement is required under Supreme Court Rule 29.6.

Respondents are Gerardo Aranda, Grant Birchmeier, Stephen Parkes, and Regina Stone, on behalf of

themselves and a class of others similarly situated,

and Caribbean Cruise Line, Inc., Economic Strategy

Group, Economic Strategy Group, Inc., Economic Strategy, LLC, the Berkley Group, Inc., and Vacation Ownership Marketing Tours, Inc.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . i

LIST OF PARTIES AND

RULE 29.6 DISCLOSURE . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

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

OPINIONS AND ORDERS . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 2

STATUTORY PROVISION INVOLVED . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING THE PETITION . . . . 5

I.

THERE IS A CIRCUIT CONFLICT

OVER THE CRITERIA THAT GOVERN

THE SELECTION OF A CY PRES

RECIPIENT AS PART OF A CLASSACTION SETTLEMENT . . . . . . . . . . . . . . . . 5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iii

Page

Table of Contents (cont’d)

APPENDIX

A.

Aranda, et al. v. Caribbean Cruise

Line, Inc., et al., No. 17-1626,

Opinion (7th Cir. July 24, 2018) . . . . . . . . . 1a

B.

Aranda, et al. v. Caribbean Cruise

Line, Inc., et al., Case No. 1:12-cv-04069,

Memorandum Opinion and Order

(N.D. Ill. Mar. 2, 2017) . . . . . . . . . . . . . . 13a

C.

Aranda, et al. v. Caribbean Cruise

Line, Inc., et al., Case No. 1:12-cv-04069,

Amended Preliminary Approval Order

(N.D. Ill. Oct. 26, 2016) . . . . . . . . . . . . . 30a

D.

Aranda, et al. v. Caribbean Cruise

Line, Inc., et al., No. 17-1626,

Order denying petition for rehearing

(7th Cir. Aug. 23, 2018) . . . . . . . . . . . . . . . 39a

E.

Aranda, et al. v. Caribbean Cruise

Line, Inc., et al., Case No. 1:12-cv-04069,

Class Action Settlement Agreement

(portion) (N.D. Ill. Sept. 26, 2016) . . . . . . . 41a

F.

Birchmeier v. Caribbean Cruise

Line, Inc., et al., Case No. 1:12-cv-04069,

Class Notice (portion)

(N.D. Ill. Sept. 26, 2016) . . . . . . . . . . . . 44a

iv

TABLE OF AUTHORITIES

STATUTES AND RULES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 7

Fed. R. Civ. P. 23(e)(5) . . . . . . . . . . . . . . . . . . . . . . . 4

CASES

Dennis v. Kellogg Co.,

697 F.3d 858 (9th Cir. 2012) . . . . . . . . . . 10, 11, 12

In re Baby Prods. Antitrust Litig.,

708 F.3d 163 (3d Cir. 2013) . . . . . . . . . . . . . . 14-15

In re BankAmerica Corp. Sec. Litig.,

775 F.3d 1060 (8th Cir. 2015) . . . . . . . . . 12, 13, 14

In re Google Referrer Header

Privacy Litig.,

869 F.3d 737 (9th Cir. 2017),

cert. granted sub nom. Frank v. Gaos,

138 S. Ct. 1697 (2018) . . . . . . . . . . . . . . . . . . . . . 11

In re Katrina Canal Breaches Litig.,

628 F.3d 185 (5th Cir. 2010) . . . . . . . . . . . . . . . . 13

v

Page

Table of Authorities (cont’d)

In re Lupron Mktg. & Sales Practices Litig.,

677 F.3d 21 (1st Cir. 2012) . . . . . . . . . . . . . . . . . . 11

Ira Holtzman C.P.A. v. Turza ,

728 F.3d 682 (7th Cir. 2013) . . . . . . . . . . . . . 10-11

Masters v. Wilhelmina Model Agency, Inc.,

473 F.3d 423 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 11

OTHER AUTHORITIES

The American Law Institute,

Principles of the Law of

Aggregate Litigation

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14, 15

Herbert B. Newberg & Alba Conte,

Newberg on Class Actions

(4th ed. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vi

INTRODUCTION

Kevin McCabe respectfully petitions this Court for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit.

OPINIONS AND ORDERS

The Opinion of the United States Court of Appeals

for the Seventh Circuit, dated July 24, 2018 (the

“Opinion”), is reported at 896 F.3d 792, and is

reprinted in the Appendix to this Petition (“Appx.”) at

Appx. “A,” 1a-12a.

The Memorandum Opinion and Order of the

United States District Court for the Northern District

of Illinois dated March 2, 2017, is not reported but is

available at 2017 WL 818854 and is reprinted at Appx.

“B,” 13a-29a.

The Amended Preliminary Approval Order of the

United States District Court for the Northern District

of Illinois dated October 26, 2016, is not reported; it is

reprinted at Appx. “C,” 30a-38a.

The Order dated August 23, 2018, of the United

States Court of Appeals for the Seventh Circuit,

denying McCabe’s petition for rehearing and rehearing

en banc, is not reported; it is reprinted at Appx. “D,”

39a-40a.

A portion of the Class Action Settlement

Agreement, filed in the District Court on September

1

26, 2016, is reprinted at Appx. “E,” 41-42a.

A portion of the class notice, filed in the District

Court on September 26, 2016, is reprinted at Appx. “F,”

44a.

STATEMENT OF JURISDICTION

The Opinion was entered on July 24, 2018.

On August 7, 2018, McCabe filed a petition for

panel rehearing with suggestion for rehearing en banc,

which the Seventh Circuit denied on August 23, 2018.

This Court has jurisdiction under 28 U.S.C. §

1254(1).

STATUTORY PROVISION INVOLVED

This petition involves Rule 23 of the Federal Rules

of Civil Procedure, which states in relevant part:

Rule 23. Class Actions

(e) S ETTLEMENT ,

COMPROMISE.

V OLUNTARY

D ISMISSAL ,

OR

The claims, issues, or defenses of a certified class may

be settled, voluntarily dismissed, or compromised only

with the court’s approval. The following procedures

apply to a proposed settlement, voluntary dismissal, or

2

compromise:

(1) The court must direct notice in a reasonable

manner to all class members who would be

bound by the proposal.

(2) If the proposal would bind class members, the

court may approve it only after a hearing and

on finding that it is fair, reasonable, and

adequate.

(3) The parties seeking approval must file a

statement identifying any agreement made in

connection with the proposal.

(4) If the class action was previously certified

under Rule 23(b)(3), the court may refuse to

approve a settlement unless it affords a new

opportunity to request exclusion to individual

class members who had an earlier opportunity

to request exclusion but did not do so.

(5) Any class member may object to the proposal

if it requires court approval under this

subdivision (e); the objection may be withdrawn only with the court’s approval.

3

STATEMENT OF THE CASE

McCabe brought the underlying proceeding in the

United States District Court for the Northern District

of Illinois, which had jurisdiction under 28 U.S.C. §

1331 and Rule 23(e)(5) of the Federal Rules of Civil

Procedure.

To the cy pres provision of a proposed class-action

settlement agreement, McCabe objected on the grounds

that the provision, which gave class members the right

to recommend cy pres recipients to the District Court,

whereupon the District Court, upon the occurrence of

certain financial contingencies, would select the

recipient, did not: (i) provide any guidance, nor a list of

potential recipients, in order to help ensure that the

selected recipient had interests that aligned with the

interests of the class members; (ii) state when the

selection of the cy pres recipient would occur; and (iii)

state whether, or how, the class members would be

able to object to the selection of the cy pres recipient.

4

REASONS FOR GRANTING THE PETITION

I.

THERE IS A CIRCUIT CONFLICT

OVER THE CRITERIA THAT GOVERN

THE SELECTION OF A CY PRES

RECIPIENT AS PART OF A

CLASS-ACTION SETTLEMENT

The Seventh Circuit, in the opinion that is the

subject of this Petition (the “Subject Opinion” or

“Opinion”), affirmed the District Court’s denial of

McCabe’s objections to the cy pres provision of the

Class Action Settlement Agreement (the “Settlement

Agreement”) and that provision’s counterpart in the

class notice (the “Class Notice” or “Notice”). The

provision of the Settlement Agreement stated:

Any un-cashed checks issued to Settlement Class Members during the second

and final round of payments made in

accordance with this Agreement, as well

as any unclaimed funds remaining in the

Settlement Fund after payment of all

Approved Claims, all Settlement Administration Expenses, the Fee Award to

Class Counsel, and the incentive awards

to the Class Representatives shall be

distributed to an appropriate cy pres recipient selected by the Special Master

upon recommendation from counsel for

the Parties and the Settlement Class

5

Members by email to the Settlement

Administrator as indicated in the Notice.

Appx. E at 42a-43a (emphasis added).

The cy pres provision of the Class Notice similarly

provided:

Any un-cashed checks issued to Settlement Class Members during the second

round of payments, as well as any unclaimed funds remaining in the Settlement Fund after payment of all Approved

Claims, all Settlement Administration

Expenses, the Fee Award to Class Counsel, and the incentive awards to the Class

Representatives shall be distributed to an

appropriate cy pres recipient selected by

the Special Master upon recommendations from Settlement Class Members.

To recommend a cy pres recipient, please

email the Settlement Administrator at

[the settlement administrator’s email

address].

Appx. F at 44a (emphasis added) (collectively, the two

cy pres provisions will be referred to as the “Cy Pres

Provision” or “Provision”).

The Subject Opinion addressed the Cy Pres

Provision solely in response to McCabe’s objections,

stating, in full, as follows:

6

We can quickly dispose of McCabe’s remaining argument: He insists that the

notice sent to the class insufficiently

described the process for selecting a cy

pres recipient. Not so. The notice told

class members that a cy pres recipient

might be selected after the second round

of payments, gave instructions for

recommending recipients, and provided a

website where members can learn more

about the settlement. That is enough to

meet the notice requirements of Fed. R.

Civ. P. 23.

Appx. A at 12a (emphasis added). First, McCabe had

not taken issue with the Class Notice’s (nor, for that

matter, the Settlement Agreement’s) description of “the

process for selecting a cy pres recipient,” Appx. A at

12a; rather, McCabe had objected to the process itself.

See McCabe’s Objections, No. 17-1626 (7th Cir.),

Separate Appendix of Objector Kevin McCabe, Doc. 65,

A-116 - A-124.

Second, in addressing the Cy Pres Provision, the

District Court, in neither the Amended Preliminary

Approval Order nor the Memorandum Opinion and

Order, the latter of which the Subject Opinion affirmed, referred to the website. Likewise, Plaintiffs, in

their motion for final approval of the Settlement Agreement, which the District Court granted in the Memorandum Opinion and Order, did not refer to the website

in addressing the Provision (which Plaintiffs addressed

solely in response to McCabe’s objections), see Case

7

No. 1:12-cv-04069 (N.D. Ill.), Dkt. No. 571, at 22-23,

whereas Plaintiffs’ motion for preliminary approval of

the settlement did not refer to the Provision at all. See

id., Dkt. No. 497.

The above-noted lack of references to the website

was consistent with the fact that nothing in the record

had shown, nor even suggested, that the website addressed, much less answered, any of McCabe’s objections to the Cy Pres Provision, such objections having

been to the Provision’s: (i) lack of measures to help

ensure that the selected recipient had interests that

aligned with the interests of the class members, such

measures being guidance regarding the class members’

recommending of a cy pres recipient and a requirement

that a list of potential recipients be provided to the

class members; (ii) lack of informing the class members

when the selection of the recipient would occur; and

(iii) lack of informing the class members of whether, or

how, they would be able to object to the selection.

Third, the District Court, in the Amended

Preliminary Approval Order, stated:

Pursuant to the Settlement Agreement

and Federal Rule of Civil Procedure 53,

the Court appoints the Honorable . . .

(ret.) of JAMS [(from the former name of

“Judicial Arbitration and Mediation

Services”)] as Special Master who is directed to proceed with all reasonable diligence with the duties outlined in the

Settlement. Any member of the Settle8

ment Class who wishes to contest a decision made by the Special Master in

accordance with the duties outlined in

the Settlement may do so by seeking

Court review of the decision by no later

than twenty-one (21) days after a copy of

the order is served, unless the Court sets

a different time.

Appx. C at 37a-38a (emphases added). Even assuming,

arguendo, that the class members were deemed to have

read (and understood) the Amended Preliminary

Approval Order, the right “to contest a decision made

by the Special Master in accordance with the duties

outlined in the Settlement,”Appx. C at 38a (emphasis

added), was a mirage, for the only requirement

regarding the cy pres selection was that the recipient

be “appropriate,” Settlement Agreement, Appx. F at

44a, see also Class Notice, Appx. F at 43a (same); but,

class members were given no information as to what it

meant for a cy pres recipient to be “appropriate.”

Moreoever, the word “appropriate” was superfluous, for

with or without that word’s appearance in the

Settlement Agreement (or Notice), the selection would

clearly warrant objections on the basis that it was not

“appropriate”; but, again, the word “appropriate”

merely begged the question of what “appropriate”

meant, a question upon which neither the Settlement

Agreement nor Notice gave any indication, much less

to which either provided a clear answer.

Finally, the Subject Opinion, in finding that “[t]he

[N]otice . . . gave instructions for recommending

9

recipients,” Appx. A at 12a (emphasis added), was

apparently referring to the Notice’s statement that,

“[t]o recommend a cy pres recipient, please email the

Settlement Administrator at [the settlement

administrator’s email address],” Appx. F at 44a, for the

Notice did not contain any other instructions relating

to the Cy Pres matter (nor did the Settlement

Agreement); that is, instructions that were tailored to

helping ensure that the selected recipient had interests

that aligned with the interests of the class members.

The Cy Pres Provision would presumably have

been invalidated in the Ninth Circuit, which, in

Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012),

found that the district court’s approval of a class-action

settlement was an abuse of discretion due to several

flaws of the settlement’s cy pres provision, see id. at

868, among which were that it did not “identify the cy

pres recipients,” id. at 867, but, instead, provided that

“the [recipients] will be identified at a later date and

approved by the court [(]a decision from which the

Objectors might again appeal,[)]” id. (emphases added),

thereby “restrict[ing] [the appellate court’s] ability to

undertake the searching inquiry that [Ninth Circuit]

precedent requires,” id.; that is, an inquiry for the

purpose of addressing the court’s concern that, “[w]hen

selection of cy pres beneficiaries is not tethered to the

nature of the lawsuit and the interests of the silent

class members, the selection process may answer to the

whims and self[-]interests of the parties, their counsel,

or the court,” id. (emphasis added); see also Ira

Holtzman C.P.A. v. Turza , 728 F.3d 682, 689 (7th Cir.

2013) (stating, in reference to cy pres funds, that

10

“[m]oney not claimed by class members should be used

for the class’s benefit to the extent that [that] is

feasible,” citing, inter alia, Dennis; In re Google

Referrer Header Privacy Litig., 869 F.3d 737, 743 (9th

Cir. 2017), cert. granted sub nom. Frank v. Gaos, 138

S. Ct. 1697 (2018) (“we require cy pres awards to meet

a ‘nexus’ requirement by being tethered to the

objectives of the underlying statute and the interests

of the silent class members.”); In re Lupron Mktg. &

Sales Practices Litig., 677 F.3d 21 (1st Cir. 2012):

[The] A[merican] L[aw] I[nstitute][,]

Principles [of the Law of Aggregate Litigation] § 3.07(c) sets up an order of preference: when feasible, [cy pres] recipients

should be those “whose interests reasonably approximate those being pursued by

the class.” Id. If no recipients “whose interests reasonably approximate those being pursued by the class can be identified

after thorough investigation and analysis, a court may approve a recipient that

does not reasonably approximate the interests being pursued by the class.” Id.

Id. at 33; Masters v. Wilhelmina Model Agency, Inc.,

473 F.3d 423, 436 (2d Cir. 2007) (“[a] [d]istrict [c]ourt

should bear in mind that the purpose of [c]y [p]res

distribution is to ‘put[ ] the unclaimed fund to its next[]best compensation use, e.g., for the aggregate,

indirect, prospective benefit of the class,’’’ quoting 2

Herbert B. Newberg & Alba Conte, Newberg on Class

Actions, § 10:17 (4th ed. 2002) (emphasis by Masters).

11

Under the Settlement Agreement, the Seventh

Circuit, like the Ninth Circuit in Dennis, was forced to

issue its ruling before the cy pres recipient was

scheduled to be selected, see Appx. E at 41a-43a; see

also the Settlement Website, which is available at

www.freecruisecallclassaction.net/Home.aspx (checked

last on Oct. 24, 2018):

UPDATE: The Seventh Circuit Court of

Appeals affirmed the Court’s Final Approval Order in August 2018. The time for

parties to ask the United States Supreme

Court to review the case has not yet

passed. Until that date passes, the

Court’s Order is not “Final”, as defined in

Section 1.20 of the Settlement Agreement, and payments will not issue until

the Court’s Order is Final.

As a result, the Seventh Circuit was unable to rule

upon the propriety of the selected recipient, instead

being forced to wait for each of the following to occur:

(i) the District Court’s selection of the recipient; (ii) the

making of objections, in the District Court, to the

selection; and (iii) the district court’s denial of the

objections and an appeal therefrom.

Like the Ninth Circuit, the Eighth Circuit would

also presumably have invalidated the Cy Pres

Provision. In In re BankAmerica Corp. Sec. Litig., 775

F.3d 1060 (8th Cir. 2015), the court explained that,

“when a district court concludes that a cy pres

distribution is appropriate . . ., such a distribution

12

must be [(emphasis in original)] ‘for the next best use

... for indirect class benefit,’ and ‘for uses consistent

with the nature of the underlying action and with the

judicial function,’” id. at 1067, quoting In re Katrina

Canal Breaches Litig., 628 F.3d 185, 196 (5th Cir.

2010) (emphasis added), and that, accordingly,

unless the amount of funds to be distributed cy pres is de minimis, the district

court should make a cy pres proposal

publicly available and allow class mem-

bers to object [to the proposed recipients]

or suggest alternative recipients before

the [district] court selects a cy pres recipient[,] [which] gives class members a

voice in choosing a ‘next best’ third party

. . . and minimizes any appearance of judicial overreaching.

Id. at 1066 (emphases added; citations and quotation

marks omitted).

The In re BankAmerica court struck the cy pres

selection at issue in that case, explaining:

[I]t is clear that [the chosen recipient],

though unquestionably a worthy charity,

is not the “next best” recipient of

unclaimed settlement funds in this

nationwide class action seeking damages

for violations of federal and state securities laws. In approving [the recipient],

the district court found that “there is no

13

immediately apparent organization that

will indirectly benefit [the] class members,” and that [the recipient] sufficiently

approximated the interests of the class

because it serves victims of fraud. But it

is not sufficient to find that no “next-best”

recipient is “immediately apparent.”

Rather, a district court must carefully

weigh all considerations, including the

geographic scope of the underlying litigation, and make a “thorough investigation” to determine whether a recipient

can be found that most closely approximates the interests of the class. ALI,

Principles of the Law of Aggregate

Litig.[,] § 3.07, cmt b. The court must look

for a recipient that relates directly to the

injury alleged in this lawsuit and settled

by the parties.

Id. at 1067 (emphases added; citations and quotations

omitted; stylistic modifications).

The Cy Pres Provision did not: (i) require a publicly

available cy pres proposal; (ii) require that the District

Court select a “‘next best’ recipient,” id., much less, in

doing so, “carefully weigh all considerations,” id., and

conduct “a ‘thorough investigation,’” id.; and (iii); give

the class members the right to object to the District

Court’s selection of the cy pres recipient.

Unlike in the Subject Opinion, the Third Circuit,

in In re Baby Prods. Antitrust Litig., 708 F.3d 163 (3d

14

Cir. 2013), approved of a cy pres provision because,

first, it directed the class members to choose the

recipient from a list that the parties had provided, and,

second, the list’s potential recipients had interests that

aligned with the interests of the class members:

Class members know there is a possibility

of a cy pres award and that the [district]

[c]ourt will select among recipients proposed by the parties at a later date. This

knowledge is adequate to allow any interested class member to keep apprised of

the cy pres recipient selection process. We

are confident [that] the [district] [c]ourt

will ensure [that] the parties make their

proposals publicly available and will

allow class members the opportunity to

object before it makes a selection.

Courts generally require the parties

to identify “a recipient whose interests

reasonably approximate those being

pursued by the class.” ALI, Principles of

the Law of Aggregate Litig. § 3.07

[(2010)]. In this case, the [district] [c]ourt

indicated that it would select a cy pres

recipient (from among the organizations

proposed by the parties) that satisfies

this standard.

Id. at 180 & n.16 (emphases added). Here, neither the

Memorandum Opinion and Order nor the Subject

Opinion even suggested that the cy pres recipient

15

would be required to have “interests [that] reasonably

approximate those being pursued by the class.” Id. at

180, n.16.

In sum, the Seventh Circuit’s acceptance of the

fatally flawed Cy Pres Provision conflicts with the case

law of the Third, Fifth, Eighth, and Ninth Circuit

Courts of Appeals, and should not be left intact.

CONCLUSION

This Petition should be granted.

Respectfully submitted,

TODD C. BANK

TODD C. BANK,

ATTORNEY AT LAW, P.C.

119-40 Union Turnpike

Fourth Floor

Kew Gardens, New York 11415

(718) 520-7125

tbank@banklaw.com

Counsel of Record to Petitioner

NOVEMBER, 2018

16

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 17-1626, 17-1778, 17-1953,

17-1969, 17-1984 & 17-2857

GRANT BIRCHMEIER, et al.,

Plaintiffs-Appellees,

v.

CARIBBEAN CRUISE LINE, INC., et al.,

Defendants-Appellants.

APPEALS OF: CARIBBEAN CRUISE LINE, INC.; VACATION

OWNERSHIP MARKETING TOURS, INC.; THE BERKLEY

GROUP, INC.; FREEDOM HOME CARE, INC.; KEVIN

MCCABE

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 4069 — Matthew F. Kennelly, Judge.

ARGUED FEBRUARY 14, 2018 — DECIDED JULY 24, 2018

Before EASTERBROOK and ROVNER, Circuit Judges,

1a

and GRIESBACH, District Judge.*

EASTERBROOK, Circuit Judge. During 2011 and 2012 a

million people received phone calls asking them to take

political surveys in exchange for a chance to go on a

free cruise. Some recipients filed a class action under

the Telephone Consumer Protection Act, 47 U.S.C. §

227, seeking damages for these unsolicited

communications. Caribbean Cruise Line, Vacation

Ownership Marketing Tours, and the Berkley Group

were named as defendants on the theory that, though

they had not placed the calls, they had directed them

and thus are vicariously liable. (The plaintiffs also

sued the caller, which has not participated in these

appeals.) The district court certified a class under Fed.

R. Civ. P. 23(b)(3). Later it granted partial summary

judgment in the plaintiffs’ favor and scheduled a trial.

179 F.Supp.3d 817 (N.D. Ill. 2016).

On the eve of trial the parties settled. Plaintiffs

agreed to release their claims against all defendants

and any of the defendants’ “agents [or] independent

contractors”. In exchange defendants agreed to pay

into a fund no less than $56 million and no more than

$76 million. The total will depend on the number of

approved claims that class members submit. Out of the

fund will come payments to the class, incentive awards

to the named representatives, about $2 million in

administrative expenses, and attorneys’ fees. The class

will receive payments in two rounds. If some claimants

do not cash the checks sent during the second round,

*

Of the Eastern District of Wisconsin, sitting by designation.

2a

money will be left over, and those remaining funds will

go to “an appropriate cy pres recipient” to be approved

by the district court. (The district court has not yet

determined whether that occurs, so we need not wait

for In re Google Referrer Header Privacy Litigation,

869 F.3d 737 (9th Cir. 2017), cert. granted under the

name Frank v. Gaos, ––– U.S. ––––, 138 S.Ct. 1697,

200 L.Ed.2d 948 (2018).)

Over the objections of Kevin McCabe, who says he

is in the class, the district court approved the

settlement, estimating that each claimant will receive

$400. 2017 U.S. Dist. LEXIS 29400 (N.D. Ill. Mar. 2,

2017). After approving the settlement, the court

entered judgment under Fed. R. Civ. P. 58. It also

awarded attorneys’ fees to class counsel under Fed. R.

Civ. P. 23(h). The award gives counsel 36% of the first

$10 million paid into the fund, 30% of the next $10

million, 24% of the next $36 million, and 18% of any

additional recovery. 2017 U.S. Dist. LEXIS 54080

(N.D. Ill. Apr. 10, 2017).

We have three sets of appeals: (1) defendants and

a member of the class, Freedom Home Care, contend

that the award of fees overcompensates class counsel;

(2) Freedom Home Care wants an incentive award and

attorneys’ fees for its role in objecting to class counsel’s

fees; and (3) McCabe complains that the settlement’s

approval was improper. Before we discuss the merits of

these appeals, we must ensure that we have

jurisdiction.

The appeals are within our jurisdiction only if they

3a

challenge “final decisions” of the district court. 28

U.S.C. § 1291. A decision on the merits is final only if

it “resolves all claims of all parties”. Domanus v. Locke

Lord LLP, 847 F.3d 469, 477 (7th Cir. 2017) (emphasis

in original). The caller (or rather, three entities that

allegedly acted as the caller—Economic Strategy LLC,

Economy Strategy Group, Inc., and a political

committee named Economic Strategy Group) did not

participate in the settlement. But the settlement

releases plaintiffs’ claims against the settling

defendants’ “agents [or] independent contractors”. The

parties to these appeals tell us that the caller was an

“agent” or “independent contractor” of the other

defendants for the purpose of this release. Consistent

with that understanding, the district court’s judgment

states: “The Court hereby dismisses the Action”—the

whole action, not just some of it—“on the merits and

with prejudice”. This judgment disposes of the claims

against all parties, not just the claims against the

settling parties, so it is a final decision on the merits.

Freedom Home Care’s challenge to the denial of an

incentive award and fees therefore falls within the

scope of § 1291, as does McCabe’s appeal. Cf. Devlin v.

Scardelletti, 536 U.S. 1, 122 S.Ct. 2005, 153 L.Ed.2d 27

(2002).

Whether the same can be said about defendants’

and Freedom Home Care’s appeal of the decision

awarding fees to class counsel requires more

discussion. A decision about fees, if final, is appealable

separately from the merits. See Budinich v. Becton

Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100

L.Ed.2d 178 (1988). The district court wrote:

4a

Because the process for approving claims

is still ongoing, the Court awards at this

time only those attorney’s fees

corresponding to the minimum amount

defendants will be required to pay into

the common fund. As discussed above,

that fee amount is $14.76 million [that is,

the sum of 36% of the first $10 million,

30% of the next $10 million, and 24% of

the next $34 million]. Class counsel may

petition the Court for the remainder of

the fee award upon conclusion of the

claims-approval process.

2017 U.S. Dist. LEXIS 54080 at *32. This decision does

not quantify the total fees that counsel will collect. It

instead awards a portion of the fees ($14.76 million)

and tells counsel to come back for more if the size of

the pot grows.

Interim awards of attorneys’ fees can hardly be

called final, cf. Sole v. Wyner, 551 U.S. 74, 127 S.Ct.

2188, 167 L.Ed.2d 1069 (2007), and such awards

typically are not appealable under § 1291. See, e.g.,

Dupuy v. Samuels, 423 F.3d 714, 717 (7th Cir. 2005);

People Who Care v. Board of Education, 272 F.3d 936,

937 (7th Cir. 2001). But an award may be final if the

district court lays out a formula for calculating the

award’s amount. See, e.g., Hyland v. Liberty Mutual

Fire Insurance Co., 885 F.3d 482, 484 (7th Cir. 2018);

Production & Maintenance Employees’ Local 504 v.

Roadmaster Corp., 954 F.2d 1397, 1401–02 (7th Cir.

1992); Parks v. Pavkovic, 753 F.2d 1397, 1401 (7th Cir.

5a

1985). See also Charles Alan Wright, Arthur R. Miller

& Edward H. Cooper, 15B Federal Practice &

Procedure §3915.2 at 279 (2d ed. 1992) (“[M]erely

‘ministerial’ proceedings to calculate a specific award

do not defeat finality.”). Such an award leaves some

math but nothing for the district court to decide.

This award does exactly that. Though the district

court told counsel to “petition the Court for the

remainder of the fee award,” it also prescribed a

formula for that remainder: 18% of the amount

recovered over $56 million. The court had considered

other means, such as using a multiplier of 0.15 instead

of 0.18. But it landed on 18%, explained its choice, and

stated that “the Court awards class counsel ... 18% of

the remainder.” 2017 U.S. Dist. LEXIS 54080 at

*28–31. The total award is not yet known only because

the number of approved claims is not yet known. Once

the parties know that number, computing the

remaining fees will be a mechanical exercise. Some

tasks unrelated to the calculation of fees remain for the

district court, such as (perhaps) choosing a recipient

for funds unclaimed after the second round of

payments. But as a practical matter the district court

is finished with the litigation about class counsel’s fees,

so the award is final for the purpose of § 1291.

More: The fact that the award postdates the

judgment creates a problem distinct from cases about

prejudgment awards. A litigant who wishes to

challenge a prejudgment award can do so by timely

appealing the judgment. See Dupuy, 423 F.3d at 717;

Badger Pharmacal, Inc. v. Colgate-Palmolive Co., 1

6a

F.3d 621, 626 (7th Cir. 1993). But when, if not now,

could the defendants in this case challenge the

postjudgment award? Suppose that months from now

the parties determine that only $56 million goes into

the fund. Then there will not be any remaining fees for

class counsel to seek (18% of nothing is nothing) or any

subsequent award from which defendants could

appeal. That possibility and its variations, if combined

with a conclusion that the original award is not final,

would put defendants in a bind. They could not timely

appeal the original award, because a second might

follow after the expiration of the 30-day deadline to

appeal the first. See 28 U.S.C. § 2107(a). But a second

might not follow, and defendants cannot appeal an

award that is never made. Such dilemmas should be

avoided. See Gelboim v. Bank of America Corp., –––

U.S. ––––, 135 S.Ct. 897, 904–06, 190 L.Ed.2d 789

(2015). We do not mean to suggest that the collateralorder doctrine applies; that possibility goes nowhere

after Mohawk Industries, Inc. v. Carpenter, 558 U.S.

100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). Instead we

mean that our conclusion about the award’s finality

steers clear of a problem that the opposite conclusion

would produce.

So we have jurisdiction over the appeals, and we

address each in turn. Defendants take issue with the

structure of the fee award. They insist that the award

should give class counsel only 25% (rather than 30%)

of the second tier of recovery, 20% (rather than 24%) of

the third, and 15% (rather than 18%) of the remainder.

To this Freedom Home Care adds that the third tier

should be capped at some figure lower than $56

7a

million. These changes to the award, they say, would

align it with awards of attorneys’ fees that have been

approved in other suits brought under the Act. See also

In re Synthroid Marketing Litigation, 325 F.3d 974

(7th Cir. 2003).

Defendants are correct that the fee award is bigger

than some awards in other suits. But that does not

mean the award is too big. When awarding fees to class

counsel, district courts must approximate the fees that

the lawyers and their clients would have agreed to at

the outset of the litigation given the suit’s risks,

competitive rates in the market, and related

considerations. See In re Synthroid Marketing

Litigation, 264 F.3d 712 (7th Cir. 2001); Silverman v.

Motorola Solutions, Inc., 739 F.3d 956 (7th Cir. 2013).

The district court engaged in that ex ante analysis,

explaining at length why this suit had been a riskier

undertaking than many others brought under the Act

and why counsel thus would have negotiated a

relatively high rate of compensation. A primary source

of risk was plaintiffs’ reliance on a theory of vicarious

liability, which created legal and factual complications

that do not arise when plaintiffs pursue only direct

liability. See 2017 U.S. Dist. LEXIS 54080 at *18–32.

We need not reproduce the district court’s thorough

discussion of this subject. We review decisions about

attorneys’ fees for abuse of discretion, see, e.g.,

Silverman, 739 F.3d at 958, and appellants have not

identified any abuse. We add only that it is

unproductive to make arguments about the

percentages assigned to some tiers of recovery, as

8a

defendants have done. Consider: 30% of the first $20

million and 20% of the next $20 million come to the

same as 25% of $40 million. Bands and percentages

can be juggled, but, unless the bottom line changes,

what’s the point? (The risk profiles of these two

structures may differ, but that does not matter when

they are devised after the award of damages has been

calculated.) Defendants’ position boils down to a

contention that the fees exceed the market rate, and

the district court did not abuse its discretion in finding

otherwise. What got multiplied with what else to

produce a market-approximating outcome does not

matter.

Freedom Home Care contends that it is entitled to

an incentive award and attorneys’ fees for its objection

to class counsel’s fees. Plaintiffs’ motion for fees had

proposed that class counsel take a third of the fund.

Freedom Home Care counter-proposed that the fund be

divided into four tiers and that counsel take decreasing

proportions of each. The award adopts that structure,

which the parties call a “sliding-scale approach,” and

Freedom Home Care wants to be compensated for

proposing it. Yet its proposal did not add marginal

value to the litigation. Plaintiffs’ motion itself

discussed the sliding-scale approach, a common one in

large class actions. The district court was certain to

consider the possibility, no matter what Freedom

Home Care said, so the court did not abuse its

discretion in concluding that Freedom Home Care did

not supply value to the class. See 2017 U.S. Dist.

LEXIS 135755 (N.D. Ill. Aug. 24, 2017).

9a

Last comes McCabe’s appeal. He contends that the

settlement improperly releases claims outside the class

period (August 2011 to August 2012) and that the

notice sent to the class members was deficient. For two

reasons the district court held that McCabe lacks

standing to raise these objections. First, McCabe’s

objections state that he is “a class member who

received calls on his cellphone number ... and landline

phone ... outside of the class period”. The court found

this statement self-contradictory; it treated McCabe’s

assertion that he received calls “outside of the class

period” as an assertion that he did not receive calls

within the class period, and it reasoned that McCabe

thus could not be in the class. Second, in 2015 McCabe

won a judgment against Caribbean Cruise Line in an

action he had brought in the Eastern District of New

York. The court decided that any claim arising from

calls McCabe received during the class period should

have been brought in his separate suit, and that the

doctrine of claim preclusion now bars any such claim.

The district court’s conclusions about standing

were flawed. Claim preclusion, an affirmative defense

under Fed. R. Civ. P. 8(c), has nothing to do with

standing. See Exxon Mobil Corp. v. Saudi Basic

Industries Corp., 544 U.S. 280, 293, 125 S.Ct. 1517,

161 L.Ed.2d 454 (2005). And there wasn’t a basis to

ignore McCabe’s assertion that he is a member of the

class. The statement on which the district court relied

does not say otherwise; it tells us that McCabe is a

member who also received calls outside the class

period. The other parties ask us to disbelieve McCabe

because he has not produced logs to show when he

10a

received calls. But McCabe supported his statement by

signing it under penalty of perjury. See 18 U.S.C. §

1621; 28 U.S.C. § 1746. Though he could have proved

his membership with different evidence, it does not

follow that we should disregard the evidence he

offered.

Despite concluding that McCabe lacks standing,

the district court rejected his objections on the merits.

So do we. McCabe first argues that the settlement

releases claims arising from calls outside the class

period. The settlement defines “released claims” as:

[A]ny and all actual, potential, filed,

known or unknown, fixed or contingent,

claimed or unclaimed, suspected or

unsuspected, claims ... arising out of the

facts, transactions, events, matters, occurrences, acts, disclosures, statements,

representations, omissions or failures to

act regarding the alleged calls made with

a prerecorded or artificial voice offering a

free cruise in exchange for taking an

automated public opinion and/or political

survey[.]

According to McCabe, the “alleged calls” mentioned

in this definition include calls made before 2011 or

after 2012. Because the class members were never

notified that the settlement covers such calls, the

argument goes, the court should not have approved it.

The argument rests on an incorrect premise. The

“alleged calls” include: well, only the calls that were

11a

alleged. And the operative complaint, filed in March

2015, alleges calls only from August 2011 to August

2012. The appellate briefs tell us that plaintiffs and

defendants (and the district court) agreed that “alleged

calls” means “calls within the class period”, and the

doctrine of judicial estoppel will prevent those parties

from taking an opposite position in future proceedings.

See New Hampshire v. Maine, 532 U.S. 742, 749–51,

121 S.Ct. 1808, 149 L.Ed.2d 968 (2001).

We can quickly dispose of McCabe’s remaining

argument: He insists that the notice sent to the class

insufficiently described the process for selecting a cy

pres recipient. Not so. The notice told class members

that a cy pres recipient might be selected after the

second round of payments, gave instructions for

recommending recipients, and provided a website

where members can learn more about the settlement.

That is enough to meet the notice requirements of Fed.

R. Civ. P. 23.

AFFIRMED

12a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

Case No. 12 C 4069

GERARDO ARANDA, GRANT BIRCHMEIER,

STEPHEN PARKES, and REGINA STONE, on behalf

of themselves and a class of others similarly situated,

Plaintiffs,

v.

CARIBBEAN CRUISE LINE, INC., ECONOMIC

STRATEGY GROUP, ECONOMIC STRATEGY

GROUP, INC., ECONOMIC STRATEGY, LLC, THE

BERKLEY GROUP, INC., and VACATION

OWNERSHIP MARKETING TOURS, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs filed suit on behalf of themselves and

similarly situated individuals against Caribbean

Cruise Line, Inc. (CCL), Vacation Ownership

Marketing Tours, Inc. (VOMT), The Berkley Group,

Inc., and Economic Strategy Group and its affiliated

entities (collectively ESG). Plaintiffs alleged that

defendants violated the Telephone Consumer

13a

Protection Act, 47 U.S.C. § 227, by using an autodialer

and an artificial or prerecorded voice to call plaintiffs’

cellular and landline telephones. After roughly four

years of contested litigation, the parties reached

agreement on a class-wide settlement of plaintiffs’

claims, and plaintiffs have moved for final approval of

the proposed settlement. Two purported class members

have raised objections to the terms of the agreement.

Plaintiffs’ counsel have also petitioned for an award of

attorney’s fees. Defendants and one of the class

members have objected to the size of the requested fee.

For the reasons stated below, the Court grants final

approval of the settlement. The Court will issue a

separate decision at a later time concerning the

petition for attorney’s fees.

Background

The Court assumes familiarity with the basic facts

of the case, which the Court has already discussed in

other written decisions. See, e.g., Aranda v. Caribbean

Cruise Line, Inc., 179 F. Supp. 3d 817, 820–22 (N.D.

Ill. 2016). In short, plaintiffs allege that ESG placed

millions of calls to consumers without their consent.

The calls featured prerecorded messages explaining to

recipients that they would be eligible for a free cruise

if they participated in various short political surveys.

According to plaintiffs, ESG’s true purpose in placing

these calls was to sell vacation products at the

direction and on the behalf of CCL, VOMT, and

Berkley.

The parties engaged in contested litigation for

14a

roughly four years before reaching a settlement

agreement. Over that time, the Court denied

defendants’ motion to dismiss, granted plaintiffs’

motion for class certification over defendants’ objection,

denied defendants’ motions for summary judgment,

granted in part plaintiffs’ motion for summary

judgment, and denied defendants’ additional motion

for summary judgment and class decertification. Before

proceeding to trial, the parties engaged in mediation,

conducted by Wayne Andersen, a highly respected

retired judge of this court. The parties reached

agreement on a memorandum of understanding only

four days before trial, and that memorandum formed

the basis of the agreement that is now before the Court

for approval.

The agreement’s definition of the settlement class

is the same as the definition of the class in the Court’s

class certification order. That order certified two

classes—one for individuals who received cellular

phone calls and one for those who received landline

calls—and defined each class as those persons in the

United States who received the calls at issue in this

case between August 2011 and August 2012 and (a)

whose telephone number appeared in defendants’

records or the records of third party telephone carriers

or (b) whose own records prove that they received the

calls. See Birchmeier v. Caribbean Cruise Line, Inc.,

302 F.R.D. 240, 256 (N.D. Ill. 2014). The following

individuals are excluded from the settlement class

under the agreement: the judge in this case,

defendants, those who opt out of the class pursuant to

Federal Rule of Civil Procedure 23(e)(4), and counsel

15a

and their families.

The agreement provides that defendants will

establish a common fund in an amount no lower than

$56 million and no higher than $76 million, from

which all class members will be paid. The total fund

amount will be equal to the sum of the award to class

members, settlement administration and notice

expenses, any incentive award to class representatives,

and any attorney’s fee award. Class members may

submit claim forms for approval by a settlement

administrator, who was selected by plaintiffs and

approved by the Court. Each class member who

submits an approved claim will be entitled to $500 per

call received unless the total of such payments (plus

payment of administration expenses, incentive awards

to class representatives, and attorney’s fees) would

exceed the $76 million cap on the fund total. If the cap

is met, settlement class members with approved claims

will be entitled to a pro rata share of the fund based on

the number of calls they received. Plaintiffs’ counsel

have requested a fee award of 33% of the fund (minus

notice expenses), up to a maximum of $24.5 million,

and plaintiffs request incentive awards of $10,000 for

each of the four class representatives. No party or class

member has objected to the requested incentive award

for the class representatives.

Under the agreement, all cash payments to

settlement class members are to be issued via checks

that expire and become null and void unless cashed

within ninety days. After the first round of cash

payments and payment of administration expenses,

16a

attorney’s fees, and incentive awards, any uncashed

checks or unclaimed funds will be issued to settlement

class members with approved claims on a pro rata

basis. The agreement provides that any uncashed

checks and unclaimed funds remaining after this

second round of payments will be distributed to a cy

pres recipient selected by Judge Andersen.

In addition to making payments into the

settlement fund, defendants have agreed to conduct

annual internal audits of their procedures to ensure

that they do not make autodialed calls without

consumer consent in the future. In exchange for

defendants’ agreement to make the required payments

and conduct internal audits of their procedures,

plaintiffs have agreed that settlement class members

will be deemed to have released defendants from all

claims against them.

Discussion

As mentioned above, only two purported members

of the class have raised objections to any aspect of the

settlement agreement other than the size of the

potential attorney’s fee award. Before addressing those

specific objections, the Court first considers generally

whether the agreement meets the requirements of

Federal Rule of Civil Procedure 23. The Court must

determine, for example, whether the notice provided to

the settlement class under the agreement is “the best

notice that is practicable under the circumstances.”

Fed. R. Civ. P. 23(c)(2)(B). With respect to the

substance of the proposed settlement, the Court must

17a

determine whether it is “fair, reasonable, and

adequate.” Fed. R. Civ. P. 23(e)(2). In addition, the

Court must consider whether there is anything

suggesting that the settlement was the product of

collusion. See Mirfasihi v. Fleet Mortg. Corp., 450 F.3d

745, 748 (7th Cir. 2006).

A. Notice to the class

The notice directed to the settlement class must be

“the best notice that is practicable under the

circumstances, including individual notice to all

members through reasonable effort.” Fed. R. Civ. P.

23(c)(2)(B). Where individual members cannot be

identified through reasonable effort, “notice by

publication, imperfect though it is, may be

substituted.” Hughes v. Kore of Indiana Enter., Inc.,

731 F.3d 672, 677 (7th Cir. 2013). Kurtzman Carson

Consultants, LLC, the Court-approved settlement

administrator in this case, has implemented the notice

plan by providing both direct and publication notice.

The Court is satisfied that the notice provided is

sufficient under Rule 23(c)(2)(B).

The settlement administrator delivered notice

directly, either through electronic or regular mail, to

78.6% of the 1,040,389 names and addresses associated

with telephone numbers obtained from defendants’

records. Notice was also published in ten prominent

newspapers throughout the United States, as well as

in a national edition of People magazine. Notice was

also placed in online banner advertisements that

received over 150 million impressions and was sent to

18a

the Attorney General of the United States as well as

the Attorneys General of all 50 states, the District of

Columbia, Puerto Rico, Guam, the Northern Mariana

Islands, the U.S. Virgin Islands, and American Samoa.

In

addition,

a settlement website

(www.freecruisecallclassaction.net) provides notice and

relevant court documents to website visitors, and the

settlement administrator maintains a toll-free

telephone number to assist class members. In total,

nearly 500,000 people have visited the settlement

website, and over 9,000 calls have been made to the

toll-free number. There have been no objections to the

adequacy of the notice to the class, and the Court is

confident that under the circumstances of this case, the

notice directed to the class has been the best notice

practicable.

B. Rule 23(e)(2) factors

A district court may only approve a proposed

settlement upon a finding that the proposal is “fair,

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In

making that finding, a court considers the following

factors: (1) the strength of plaintiffs’ case compared to

the amount of defendants’ settlement offer; (2) the

likely complexity, length, and expense of the 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 at the time of settlement. Synfuel

Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646,

653 (7th Cir. 2006).

19a

1. Strength of plaintiffs’ case as compared to

settlement offer

“The most important factor relevant to the fairness

of a class action settlement is the first one listed: the

strength of plaintiff[s’] case on the merits balanced

against the amount offered in the settlement.” Id.

(internal quotation marks omitted). As this Court has

noted previously, valuing hypothetical continued

litigation is necessarily somewhat speculative and not

an exact science. Kolinek v. Walgreen Co., 311 F.R.D.

483, 493 (N.D. Ill. 2015) (Kennelly, J.). But the size of

the monetary award defendants have agreed to pay

under the proposed settlement suggests that this first

factor favors approval of the settlement. As plaintiffs

point out, TCPA cases of this size generally do not

result in awards greater than $40 per plaintiff. See,

e.g., In re Capital One Tel. Consumer Prot. Act Litig.,

80 F. Supp. 3d 781, 787 (N.D. Ill. 2015) (providing

$34.60 each to individual claimants); Kolinek, 311

F.R.D. at 494 (providing roughly $30 per claimant).

Plaintiffs maintain that individual claimants in this

case are likely to receive at least $135 per call received,

meaning each approved claimant likely will receive at

least $400 in total. Thus the monetary award in this

case is clearly significant in comparison to the relief

awarded in similar TCPA cases.

The amount offered in the settlement also appears

to be substantial in light of the risks plaintiffs faced

had they continued to trial. As plaintiffs note, a key

issue at trial would be the factually and legally

complicated question of whether Berkley, CLL, and

20a

VOMT could be held vicariously liable for the calls

ESG made, and a jury’s adverse finding on that issue

would leave the class without any recovery at all. In

addition, even if plaintiffs prevailed at trial, there was

a serious possibility that a large jury verdict would

render the defendants insolvent and unable to pay the

damages awarded. See Dkt. 463 (“A judgment in the

amount Plaintiffs seek could not be paid by Berkley. In

fact, such a judgment would require Berkley to

terminate thousands of employees and declare

bankruptcy.”). In light of the real risks associated with

continued litigation, the amount defendants have

agreed to pay appears to be fair and commensurate

with the strength of plaintiffs’ case.

2. Complexity,

litigation

length,

and

expense

of

The risks just discussed, as well as the history of

this hard-fought litigation, suggests that continued

litigation likely would add complexity, length, and

considerable expense to this already complex, long, and

expensive case. “If the Court approves the proposed

settlement agreement, this case will end, and class

members will be entitled to the retrospective and

prospective relief [defendants] ha[ve] promised.”

Kolinek, 311 F.R.D. at 495. If, on the other hand, the

Court were to deny approval, the parties would proceed

to try a week-long class action jury trial. A verdict for

plaintiffs likely would lead to a potentially fruitless

attempt to recover damages from defendants who

would be rendered insolvent or would file for

bankruptcy. A verdict for defendants likely would

21a

result in an appeal of not only the verdict, but also

certification of the class. (As plaintiffs note, defendants

sought appellate review on that issue, but they were

denied permission to appeal on an interlocutory basis.)

In Re Caribbean Cruise Line, Inc., No. 14-8021 (7th

Cir. Oct. 10, 2014). Given the complexity and expense

inherent in a class action jury trial, the possibility that

plaintiffs might face problems recovering a potential

judgment, and the likelihood of a potentially lengthy

appellate review process, the Court is confident that

the second Synfuel factor weighs in favor of approving

the settlement and avoiding the increased complexity,

length, and expense of continued litigation.

3. Amount of opposition

The extremely low level of opposition to the

settlement proposal also favors its approval. Of the

more than 1 million class members, only three

purported members have objected to the proposed

agreement, and one of those objects only to the

proposed attorney’s fee award, not the settlement

itself. And rather than opting out or objecting, tens of

thousands of class members—including Fortune 500

companies, Oakland County, Michigan, and other

sophisticated actors—have filed claims. Though the

Court addresses the objectors’ specific concerns below,

the fact that so few class members have expresses

opposition to the settlement supports the

reasonableness of the proposal. See In re Sw. Airlines

Voucher Litig., No. 11 C 8176, 2013 WL 4510197, at *7

(N.D. Ill. Aug. 26, 2013) (less than 0.01% objecting or

opting out supports reasonableness of settlement).

22a

4. Opinion of competent counsel

It is undisputed that class counsel are experienced

and respected members of the plaintiff’s class action

bar. Attorneys at Edelson PC have extensive

experience litigating consumer class actions, including

numerous TCPA cases, and attorneys at Loevy &

Loevy have extensive experience trying class actions

before juries. That complementary experience of cocounsel gives them insight into the value of plaintiffs’

claims and the potential risks and rewards of

continued litigation through trial and appeal. Thus the

opinion of the competent counsel, who negotiated this

settlement with defendants at arms-length, and with

the assistance of an experienced and respected

mediator, favors approval of the proposed settlement.

Isby v. Bayh, 75 F.3d 1191, 1200 (7th Cir. 1996) (“[T]he

district court was entitled to give consideration to the

opinion of competent counsel that the settlement was

fair, reasonable and adequate.”).

5. Stage of proceedings and amount of

discovery completed

As discussed above, the parties engaged in hardfought litigation for over four years and were days

away from trial when they reached agreement on

settlement terms. They engaged in and reviewed the

results of substantial discovery, they briefed three sets

of dispositive motions, and the Court ruled on those

motions. The Court is therefore “satisfied that the

discovery and investigation by class counsel prior to

entering into settlement negotiations was extensive

23a

and thorough.” Id. (internal quotation marks omitted).

Thus the final Synfuel factor also favors approval of

the settlement.

C. Absence of collusion

The Court has not detected any “hints” that the

parties’ agreement was the result of collusion, and

none of the objectors has made such a suggestion.

Mirfasihi, 450 F.3d at 748. Indeed, the circumstances

surrounding the parties’ mediation and ultimate

agreement minimize the likelihood of any collusion. As

plaintiffs note, the parties reached settlement only

after several rounds of mediation with a neutral

mediator, and they did so only after years of combative

litigation. In addition, the agreement lacks any of the

problematic features the Seventh Circuit has identified

as red flags for collusion. See, e.g., Redman v.

RadioShack Corp., 768 F.3d 622, 637 (7th Cir. 2014)

(questioning “clear-sailing clause” in which defendant

agreed not to contest class counsel’s request for

attorneys’ fees); Eubank v. Pella Corp., 753 F.3d 718,

721 (7th Cir. 2014) (criticizing binding of single class

despite adversity of subclasses, provision allowing

reduction in attorney’s fee award to revert back to

defendant, and failure to quantify benefits to class

members, among other problematic features). Nothing

in the history of this litigation or in the terms of the

settlement suggests that the agreement was the

product of collusion.

24a

D. Objections

Only two purported class members have raised

objections to the terms of the proposed settlement.

Thomas Taylor has filed a pro se objection, arguing

that it is unreasonable to require him to produce

documentation of the calls he received in order to be a

part of the settlement class. As plaintiffs note, the

settlement agreement uses the same definition of the

class as the class certification order, which imposes the

requirement on class members to produce

documentation of calls if their numbers do not appear

in defendants’ records. See Birchmeier, 302 F.R.D. at

256. It is appropriate to require substantiation of

claims in large class actions, see Settlement

Administration, Ann. Manual Complex Lit § 21.66 (4th

ed.), and Taylor has not provided any reason for the

Court to revisit its class certification order at this

stage. And as plaintiffs point out, class counsel helped

class members to serve hundreds of subpoenas with

wireless and landline providers to obtain records. This

assistance would have been available to Taylor and

other class members like him had he asked for it.

Because Taylor offers no reason for the Court to

reconsider its class certification order and has offered

no other basis for his objection to the settlement

proposal, the Court overrules his objection.1

Plaintiffs contend that Kevin McCabe, the second

1

The Court notes that if, as is likely, Taylor has no such

documentation, that would mean he is not a class member, which

would bring into question his standing to object to the settlement.

25a

objector to the settlement proposal, lacks standing to

raise an objection. And indeed, McCabe’s brief in

support of his objection suggests that he is not a

member of the class: he states that the calls he

received from defendants were made and received

outside of the class period (from August 2011 to August

2012). In addition, any claim McCabe might assert in

this case would be barred by the doctrine of claim

preclusion because he already sued defendants in the

Eastern District of New York for the same alleged

TCPA violation in a case that reached final judgment.

McCabe does not deny that his claims in that case

against VOMT and Berkley were dismissed or that the

district court entered judgment in his favor against

CCL in the amount of $2,500. He contends, however,

that the doctrine of claim preclusion does not bar his

claims in this case because his claim in the New York

case concerned only one of the allegedly improper

phone calls he received from defendants. The doctrine

of claim preclusion, however, requires a plaintiff to

bring all of his claims arising out of the same

transaction and bars additional suits against the same

defendants if “the same facts were essential to

maintain both actions.” Evans ex rel. Evans v. Lederle

Labs., 167 F.3d 1106, 1113 (7th Cir. 1999). Apart from

the dates of the alleged phone calls, the facts

underlying McCabe’s claim in the previous case and he

claims in this case—including all essential facts—are

identical. McCabe may not bring multiple, nearly

identical actions against defendants merely because he

received multiple individual calls. “Claim splitting is

not a way around res judicata.” Chicago Title Land

Trust Co. v. Potash Corp. of Saskatchewan Sales, 664

26a

F.3d 1075, 1081 (7th Cir. 2011). Thus because McCabe

is not a member of the class or has no live claims

against defendants that could be released by the

settlement agreement, he lacks standing to object.

Nevertheless, to ensure the interests of the class

are protected, the Court will consider McCabe’s

objections despite his lack of standing. McCabe argues

that the portion of the settlement agreement

concerning class members’ release of claims against

defendants is too broad because it does not expressly

contain a date restriction. The Court disagrees with

McCabe’s reading of the settlement agreement. The

definition of “released claims” under the agreement is

confined to those claims arising out of the “alleged

calls,” meaning the calls that are the subject of

plaintiffs’ complaint in this case, and the allegations in

plaintiffs’ complaint are limited to calls placed between

August 2011 and August 2012 (the class period).

McCabe is therefore mistaken that individuals who

received calls outside the class period are at risk of

having their claims released by virtue of the settlement

agreement.

McCabe also objects to the agreement’s proposed cy

pres award. He argues that plaintiffs have not

demonstrated that it would be infeasible to award the

designated cy pres funds to the class. Because the

agreement does not specify the amount of the potential

cy pres award or the specific awardee, he contends that

the agreement and the notice to the class may be

providing inadequate information about an award that

may turn out to be the “bulk of the total payout.” Dkt.

27a

545 at 10. The contention that a cy pres award is likely

to involve a significant sum borders on the frivolous.

This is a case in which, to receive payment, class

members had to submit claim forms providing contact

information. In short, they have already provided a

concrete expression of their interest in receiving

payment. And as previously discussed, the amount

each class member will receive is significant—likely

several hundred dollars at the low end. Under the

settlement agreement, if any class members with

approved claims fail to cash their initial checks, the

funds left over will be redistributed to those with

approved claims in a second round of payments. It is

only after this second round of payments that

unclaimed funds would go toward a cy pres award. For

a cy pres award to be substantial, therefore, numerous

individuals who already went to the trouble of filling

out claim forms would have to fail to cash the checks

they receive not once, but twice. It is overwhelmingly

likely that any unclaimed funds designated for cy pres

disposition will be so small that the cost of distributing

those funds through the mail would far exceed the

amount of the funds. Nevertheless, although it is

unlikely that the cy pres payout would be substantial,

the Court will guard against this extremely remote

possibility by modifying the agreement to make the

size of the cy pres award and the identity of the

recipient subject to this Court’s approval.

Conclusion

For the reasons stated above, the Court grants

plaintiffs’ motion [dkt. no. 571] for final approval of the

28a

proposed settlement agreement, subject to the

following modification to section 2.2(f) of the

agreement: a sentence shall be added to the end of

section 2.2(f) stating “No funds shall be distributed to

a cy pres recipient without prior approval of the

Court.”

IT IS SO ORDERED.

[signature]

MATTHEW F. KENNELLY

United States District Judge

Dated: March 2, 2017

29a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

Case No. 1:12-cv-04069

Honorable Matthew F. Kennelly

GERARDO ARANDA, GRANT BIRCHMEIER,

STEPHEN PARKES, and REGINA STONE, on behalf

of themselves and a class of others similarly situated,

Plaintiffs,

v.

CARIBBEAN CRUISE LINE, INC., ECONOMIC

STRATEGY GROUP, ECONOMIC STRATEGY

GROUP, INC., ECONOMIC STRATEGY, LLC, THE

BERKLEY GROUP, INC., and VACATION

OWNERSHIP MARKETING TOURS, INC.,

Defendants.

AMENDED PRELIMINARY APPROVAL ORDER

This matter having come before the Court on

Plaintiffs’ Motion for Preliminary Approval of Class

Action Settlement (“Settlement”) of the abovecaptioned matter (the “Action”) between Plaintiffs

30a

Gerardo Aranda, Grant Birchmeier, Stephen Parkes,

Regina Stone (“Plaintiffs”) as representatives of the

two classes it certified (Dkt. 241), and Defendants

Caribbean Cruise Line, Inc., Vacation Ownership

Marketing Tours, Inc. and The Berkley Group, Inc., as

set forth in the Class Action Settlement Agreement

between Plaintiffs and Defendants (the “Settlement

Agreement”), and the Court having duly considered the

papers and arguments of counsel, the Court hereby

finds and orders as follows:

1. Unless defined herein, all defined terms in this

Order shall have the respective meanings ascribed to

the same terms in the Settlement Agreement.

2. The Court has conducted a preliminary

evaluation of the Settlement set forth in the

Settlement Agreement for fairness, adequacy, and

reasonableness. Based on this preliminary evaluation,

the Court finds that: (i) there is good cause to believe

that the settlement is fair, reasonable, and adequate,

(ii) the Settlement has been negotiated at arm’s length

between experienced attorneys familiar with the legal

and factual issues of this case and was reached with

the assistance of the Honorable Wayne R. Andersen

(ret.) of JAMS, and (iii) the Settlement warrants Notice

of its material terms to the Settlement Class for their

consideration and reaction. Therefore, the Court grants

preliminary approval of the Settlement.

3. On August 11, 2014, this Court certified two

classes pursuant to Federal Rule of Civil Procedure

23(b)(3), one for individuals that received cellular

31a

phone calls and another for those who received

landline calls, each defined as:

All persons in the United States to whom

(1) one or more telephone calls were made

by, on behalf, or for the benefit of the

Defendants, (2) purportedly offering a

free cruise in exchange for taking an

automated public opinion and/or political

survey, (3) which delivered a message

using a prerecorded or artificial voice; (4)

between August 2011 and August 2012,

(5) whose (i) telephone number appears

in Defendants’ records of those calls

and/or the records of their third party

telephone carriers or the third party

telephone carriers of their call centers or

(ii) own records prove that they received

the calls—such as their telephone

records, bills, and/or recordings of the

calls—and who submit an affidavit or

claim form if necessary to describe the

content of the call.

(Dkt. 241 at p. 31.) For purposes of settlement the

Court finds that the following people are excluded from

the Settlement Class (1) any Judge or Magistrate

presiding over this Action and members of their

families; (2) Defendants, Defendants’ subsidiaries,

parent companies, successors, predecessors, and any

entity in which Defendants or their parents have a

controlling interest and their current or former officers,

directors, agents, attorneys and employees; (3) persons

32a

who properly execute and file a timely request for

exclusion from the class; (4) the legal representatives,

successors or assigns of any such excluded persons;

and (5) counsel for all Parties and members of their

families.

4. On February 23, 2017 at 9:30 am CST or at such

other date and time later set by Court Order, this

Court will hold a Final Approval Hearing on the

fairness, adequacy, and reasonableness of the

Settlement Agreement, and to determine whether: (a)

final approval of the Settlement should be granted and

(b) Class Counsel’s application for attorney’s fees and

expenses, and an incentive award to the Class

Representatives should be granted. No later than

January 9, 2017, Plaintiffs must file their papers in

support of Class Counsel’s application for attorneys’

fees and expenses, and no later than February 9, 2017,

Plaintiffs must file their papers in support of final

approval of the Settlement and in response to any

objections.

5. Pursuant to the Settlement Agreement,

Kurtzman Carson Consultants d/b/a KCC is hereby

appointed as Settlement Administrator and shall be

required to perform all of the duties of the Settlement

Administrator as set forth in the Settlement

Agreement and this Order.

6. The Court approves the proposed plan for giving

Notice to the Settlement Class (i) by direct U.S. Mail

and email Notice to all reasonably obtainable

addresses of the Settlement Class Members on the

33a

Class List (ii) internet banner ads on premium high

quality websites, and 800Notes.com (iii) one-time

eighth of a page summary publication notice will be

placed in the New York Daily News, Los Angeles

Times, Chicago Tribune, Dallas Morning News,

Philadelphia Inquirer, Miami Herald, Houston

Chronicle, Washington Post, Atlanta JournalConstitution, and the Boston Globe as well as a onetime third of a page summary publication notice will be

placed in People, and (iv) the modification of the

Settlement Website established as part of class

certification, as more fully described in the Settlement

Agreement. The plan for giving Notice, in form,

method, and content, fully complies with the

requirements of Rule 23 and due process, constitutes

the best notice practicable under the circumstances,

and is due and sufficient notice to all persons entitled

thereto. The Court hereby directs the Parties and

Settlement Administrator to complete all aspects of the

notice plan by no later than November 27, 2016.

7. Pursuant to Rule 23(e)(4), all persons who meet

the definition of the Settlement Class and who wish to

exclude themselves from the Settlement Class must

submit their request for exclusion in writing to the

Settlement Administrator and postmarked no later

than the Objection/Exclusion Deadline of January 23,

2017. The request for exclusion must be personally

signed by the Settlement Class Member seeking to be

excluded from the Settlement Class, and include his or

her name and address, the cellular and/or landline

telephone number(s) on which he or she allegedly

received calls with a prerecorded or artificial voice

34a

offering a free cruise in exchange for taking an

automated public opinion and/or political survey, the

caption for the Action (i.e., Aranda et al v. Caribbean

Cruise Line, Inc., et al., Case No. 12-cv-04069 (N.D.

Ill.)) and a statement that he or she wishes to be

excluded from the Settlement Class. A request to be

excluded that does not include all of the foregoing

information, that is sent to an address other than that

designated in the Notice, or that is not postmarked

within the time specified, shall be invalid and the

Persons serving such a request shall be deemed to

remain Members of the Settlement Class and shall be

bound as Settlement Class Members by this

Settlement Agreement, if approved.

8. Any member of the Settlement Class may

comment in support of, or in opposition to, the

Settlement at his or her own expense; provided,

however, that all comments and objections must (i) be

filed with the Clerk of the Court or, if the Settlement

Class Member is represented by counsel, filed through

the CM/ECF system and (ii) be sent via mail, hand or

overnight delivery service to Class Counsel and

Defendants’ Counsel as described in the Notice, no

later than the Objection/Exclusion Deadline of January

23, 2017. Any member of the Settlement Class who

intends to object to this Settlement Agreement must

include his or her name and address, include all

arguments, citations, and evidence supporting the

objection (including copies of any documents relied on),

state that he or she is a Settlement Class Member,

provide the cellular and/or landline telephone

number(s) on which he or she allegedly received calls

35a

with a prerecorded or artificial voice offering a free

cruise in exchange for taking an automated public

opinion and/or political survey, the name and contact

information of any and all attorneys representing,

advising, or in any way assisting the objector in

connection with the preparation or submission of the

objection or who may profit from the pursuit of the

objection; and a statement indicating whether the

objector intends to appear at the Final Approval

Hearing either personally or through counsel, who

must file an appearance or seek pro hac vice

admission, accompanied by the signature of the

objecting Settlement Class Member. Any Settlement

Class Member who fails to timely file a written

objection with the Court and notice of his or her intent

to appear at the Final Approval Hearing in accordance

with the terms of this Paragraph and as detailed in the

Notice, and at the same time provide copies to

designated counsel for the Parties, shall not be

permitted to object to this Settlement Agreement at the

Final Approval Hearing, and shall be foreclosed from

seeking any review of this Settlement Agreement by

appeal or other means and shall be deemed to have

waived his or her objections and be forever barred from

making any such objections in the Action or any other

action or proceeding.

9. Any Settlement Class Member who fails to

timely file a written objection with the Court and

notice of his or her intent to appear at the Final

Approval Hearing in accordance with the terms of this

Paragraph and as detailed in the Notice, and at the

same time provide copies to designated counsel for the

36a

Parties, shall not be permitted to object to this

Settlement Agreement at the Final Approval Hearing,

and shall be foreclosed from seeking any review of this

Settlement Agreement by appeal or other means and

shall be deemed to have waived his or her objections

and be forever barred from making any such objections

in the Action or any other action or proceeding.

10. The Settlement Agreement and the proceedings

and statements made pursuant to the Settlement

Agreement or papers filed relating to the Settlement

Agreement and this Order, are not and shall not in any

event be construed, deemed, used, offered or received

as evidence of an admission, concession, or evidence of

any kind by any Person or entity with respect to: (i) the

truth of any fact alleged or the validity of any claim or

defense that has been, could have been, or in the

future might be asserted in the Action or in any other

civil, criminal, or administrative proceeding in any

court, administrative agency, or other tribunal, or (ii)

any liability, responsibility, fault, wrongdoing, or

otherwise of the Parties. Defendants have denied and

continue to deny the claims asserted by Plaintiffs.

Notwithstanding, nothing contained herein shall be

construed to prevent a Party from offering the

Settlement Agreement into evidence for the purpose of

enforcing the Settlement Agreement.

11. Pursuant to the Settlement Agreement and

Federal Rule of Civil Procedure 53, the Court appoints

the Honorable Wayne R. Andersen (ret.) of JAMS as

Special Master who is directed to proceed with all

reasonable diligence with the duties outlined in the

37a

Settlement. Any member of the Settlement Class who

wishes to contest a decision made by the Special

Master in accordance with the duties outlined in the

Settlement may do so by seeking Court review of the

decision by no later than twenty-one (21) days after a

copy of the order is served, unless the Court sets a

different time.

IT IS SO ORDERED.

ENTERED: 10/26/2016

[signature]

HONORABLE MATTHEW F. KENNELLY

UNITED STATES DISTRICT JUDGE

38a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 17-1626, 17-1778, 17-1953,

17-1969, 17-1984 & 17-2857

GRANT BIRCHMEIER, et al.,

Plaintiffs-Appellees,

v.

CARIBBEAN CRUISE LINE, INC., et al.,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 4069

Matthew F. Kennelly, Judge.

August 23, 2018

Before

Frank A. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

39a

WILLIAM H. GRIESBACH, District Judge.*

Order

Objector Kevin McCabe filed a petition for

rehearing and rehearing en banc on August 6, 2018.

No judge in regular active service has requested a vote

on the petition for rehearing en banc,† and all of the

judges on the panel have voted to deny rehearing. The

petition for rehearing is therefore DENIED.

*

Of the Eastern District of Wisconsin, sitting by designation.

†

Judge Flaum did not participate in the consideration of this

petition.

40a

APPENDIX E

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

Case No. 1:12-cv-04069

Honorable Matthew F. Kennelly

GERARDO ARANDA, GRANT BIRCHMEIER,

STEPHEN PARKES, and REGINA STONE, on behalf

of themselves and a class of others similarly situated,

Plaintiffs,

v.

CARIBBEAN CRUISE LINE, INC., ECONOMIC

STRATEGY GROUP, ECONOMIC STRATEGY

GROUP, INC., ECONOMIC STRATEGY, LLC, THE

BERKLEY GROUP, INC., and VACATION

OWNERSHIP MARKETING TOURS, INC.,

Defendants.

CLASS ACTION SETTLEMENT AGREEMENT

***

1.17. “Effective Date” means the first business day

after which all of the events and conditions specified in

Paragraph 9.1 have been met and have occurred.

41a

***

1.20. “Final” means one (1) business day following the

latest of the following events: (i) the date upon which

the time expires for filing or noticing any appeal of the

Court’s Final Judgment approving this Settlement

Agreement; (ii) if there is an appeal or appeals, other

than an appeal or appeals solely with respect to the

Fee Award and/or incentive award, the date of

completion, in a manner that finally affirms and leaves

in place the Final Judgment without any material

modification, of all proceedings arising out of the

appeal or appeals (including, but not limited to, the

expiration of all deadlines for motions for

reconsideration or petitions for review and/or

certiorari, all proceedings ordered on remand, and all

proceedings arising out of any subsequent appeal or

appeals following decisions on remand); or (iii) the date

of final dismissal of any appeal or the final dismissal

of any proceeding on certiorari.

***

1.22. “Final Judgment” means the Final Judgment

and order(s) to be entered by the Court approving the

Settlement Agreement and determining the Fee

Award, and the incentive award to the Class

Representatives.

***

2.2(f) Any un-cashed checks issued to Settlement Class

Members during the first round of payments made in

42a

accordance with this Agreement, as well as any

unclaimed funds remaining in the Settlement Fund

after payment of all Approved Claims, all Settlement

Administration Expenses, the Fee Award to Class

Counsel, and the incentive awards to the Class

Representatives shall be distributed to Settlement

Class Members with Approved Claims in the second

round of payments. Any un-cashed checks issued to

Settlement Class Members during the second and final

round of payments made in accordance with this

Agreement, as well as any unclaimed funds remaining

in the Settlement Fund after payment of all Approved

Claims, all Settlement Administration Expenses, the

Fee Award to Class Counsel, and the incentive awards

to the Class Representatives shall be distributed to an

appropriate cy pres recipient selected by the Special

Master upon recommendation from counsel for the

Parties and the Settlement Class Members by email to

the Settlement Administrator as indicated in the

Notice.

***

9.1. The Effective Date of this Settlement Agreement

shall not occur unless and until each and every one of

the following events occurs, and shall be the date upon

which the last (in time) of the following events occurs:

. . . (d) The Final Judgment has become Final, as

defined above, or, in the event that the Court enters an

order and final judgment in a form other than that

provided above (“Alternative Judgment”) to which the

Parties have consented, that Alternative Judgment has

become Final.

43a

APPENDIX F

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

Birchmeier v. Caribbean Cruise Line, Inc. et al.,

Case No. 12-cv-4069 (N.D. Ill)

If you received an automated call between August

2011 and August 2012 offering a free cruise in

exchange for taking a political and/or public opinion

survey, a class action settlement may affect your

rights. You may be entitled to up to $500 per call. A

court authorized this notice. You are not being sued.

This is not a solicitation from a lawyer.

A court authorized this notice. You are not being

sued. This is not a solicitation from a lawyer.

***

Any un-cashed checks issued to Settlement Class

Members during the second round of payments, as well

as any unclaimed funds remaining in the Settlement

Fund after payment of all Approved Claims, all

Settlement Administration Expenses, the Fee Award

to Class Counsel, and the incentive awards to the

Class Representatives shall be distributed to an

appropriate cy pres recipient selected by the Special

Master upon recommendations from Settlement Class

Members. To recommend a cy pres recipient, please

email the Settlement Administrator at [the settlement

administrator’s email address].

44a