Request for Judicial Notice

Case: 1:11-cv-04462 Document #: 141-2 Filed: 02/13/15 Page 1 of 31 PageID #:6053
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Craftwood Lumber Company, an
Illinois corporation, individually and on
behalf of all others similarly situated,
Case No. 11-cv-4462
Hon. Amy J. St. Eve
Plaintiff,
v.
Interline Brands, Inc., a Delaware
corporation; Interline Brands, Inc., a
New Jersey corporation,
Defendants.
Request for Judicial Notice in Support of Plaintiff's Motion for Incentive Fee
Award to Class Representative
Case: 1:11-cv-04462 Document #: 141-2 Filed: 02/13/15 Page 2 of 31 PageID #:6054
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that pursuant to Federal Rule of Evidence 201 and
in connection with Plaintiff Craftwood Lumber Company's ("Plaintiff') motion for
incentive fee award to class representative, Plaintiff will and hereby does request
that the Court take judicial notice of the following documents:
1.
Motion for an Award of Fees and Approval of Incentive Award in
Connection with the Settlement filed October 3, 2013 in Hanley v. Fifth Third
Bank, No. 12-cv-1612 (N.D. Ill. Dec. 23, 2013). A true and correct copy of the
October 3, 2013 motion is attached as Exhibit "A" and can also be found by
accessing the docket, available on PACER, for Hanley v. Fifth Third Bank at
Docket No. 81.
2.
Order filed December 23, 2013 in Hanley v. Fifth Third Bank, No. 12-
cv-1612 (N.D. Ill. Dec. 23, 2013). A true and correct copy of the December 23,
2013 order is attached as Exhibit "B" and can also be found by accessing the
docket, available on PACER, for Hanley v. Fifth Third Bank at Docket No. 86.
3.
Order filed October 27, 2011 in CE Design v. Cy's Crab House, No
07-cv-05456 (N.D. Ill. Oct. 27, 2011). A true and correct copy of the October 27,
2011 order is attached as Exhibit "C" and can also be found by accessing the
docket, available on PACER, for CE Design v. Cy's Crab House at Docket No.
424.
Case: 1:11-cv-04462 Document #: 141-2 Filed: 02/13/15 Page 3 of 31 PageID #:6055
DATED: February 12, 2015
Respectfully Submitted,
s/ Scott Z. Zimmermann
One of Attorneys for the Preliminarily
Appointed Class Representative/
Plaintiff Craftwood Lumber Company
and the Preliminarily Certified Class
Scott Z. Zimmermann
601 S. Figueroa, Suite 2610
Los Angeles, California 90017
Telephone: (213) 452-6509
Facsimile: (213) 622-2171
Case: 1:11-cv-04462 Document #: 141-2 Filed: 02/13/15 Page 4 of 31 PageID #:6056
Exhibit A
Case:
1:12-cv-01612
Document
81 Filed:
Case:
1:11-cv-04462
Document
#: #:
141-2
Filed:10/03/13
02/13/15Page
Page15ofof13
31PagelD
PageID#:429
#:6057
IN THE UNITED STATES DISTRICT CQURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DISVISION
GARY HANLEY, on behalf of himself and
others similarly situated,
Plaintiff,
v.
FIFTH THIRD BANK,
Defendant.
NO. 1:12-CV-1612
Honorable Rubin Castillo
Magistrate Judge Maria Valdez
CLASS COUNSEL'S MOTION FOR AN AWARD OF FEES AND APPROVAL OF
INCENTIVE AWARD IN CONNECTION WITH THE SETTLEMENT
Case:
1:12-cv-01612
Document
81 Filed:
Case:
1:11-cv-04462
Document
#: #:
141-2
Filed:10/03/13
02/13/15Page
Page2 6ofof13
31PagelD
PageID#:430
#:6058
TABLE OF CONTENTS
Page No.
I.
INTRODUCTION 1
II.
ARGUMENT 1
A.
1
Class Counsel's Requested Fee Is Reasonable 1.
2.
3.
B.
III.
One-Third of the Common Fund Is in Line with Fees
Awarded in Similar Cases 1
The Requested Fee Reflects the Market Price for Legal
Services 3
a.
Risk of Nonpayment 4
b.
Quality of Performance 4
c.
Amount of Work Invested 4
d.
Stakes of the Case 5
No Class Members Have Objected to the Requested Fee 5
The Incentive Award to the Class Representative Should Be Approved 6
CONCLUSION 7
Case:
1:12-cv-01612
Document
81 Filed:
Case:
1:11-cv-04462
Document
#: #:
141-2
Filed:10/03/13
02/13/15Page
Page37ofof13
31PagelD
PageID#:431
#:6059
TABLE OF AUTHORITIES
Page No.
FEDERAL CASES
Beech Cinema, Inc. v. Twentieth Century Fox Film Corp.,
480 F. Supp. 1195 (S.D.N.Y. 1979) 3
CE Design Ltd. v. CV's Crab House North, Inc.,
No. 07-cv-05456 (N.D. Ill. Oct. 27, 2011) 3
City of Greenville v. Syngenta Corp Prot., Inc.,
904 F. Supp. 2d 902 (S.D. Ill. 2012) 2
Cook v. Niedert,
142 F.3d 1004 (7th Cir. 1998) 6
Desai v. ADT Sec. Servs., Inc.,
No. 1:11-cv-01925 (N.D. Ill. June 21, 2013) 3
Florin v. Nationsbank of Ga., NA.,
34 F.3d 560 (7th Cir. 1994) 1
Gaskill v. Gordon,
942 F. Supp. 382 (N.D. Ill. 1996) 2
G.M. Sign, Inc. v. Finish Thompson, Inc.,
No. 07-cv-05953 (N.D. Ill. Nov. 1, 2010) 3
Greene v. Emersons Ltd,
No. 76 Civ. 2178 (CSH), 1987 WL 11558 (S.D.N.Y. May 20, 1987) 2, 3
Heekin v. Anthem, Inc.,
No. 1:05-01908, 2012 WL 5878032 (S.D. Ind. Nov. 20, 2012) 7
Hinman v. M&M Rentals, Inc.,
No. 06-1156 (N.D. Ill. Oct. 6, 2009) 3
In re Ampicillin Antitrust Litig.,
526 F. Supp. 494 (D.D.C. 1981) 3
In re Bankcorp. Litig.,
291 F.3d 1035 (8th Cir. 2002) 2
Case:1:11-cv-04462
1:12-cv-01612
Document
81 Filed:
#:432
Case:
Document
#:#:
141-2
Filed:10/03/13
02/13/15Page
Page4 8ofof1331PagelD
PageID
#:6060
In re Combustion, Inc.,
968 F. Supp. 1116 (W.D. La. 1997) 3
In re Heritage Bond Litig.,
No. 02-ML-1475 DT, et al., 2005 WL 1594403 (C.D. Cal. June 10, 2005) 2
In re Ky. Grilled Chicken Coupon Mktg. & Sales Practices Litig.,
280 F.R.D. 364 (N.D. Ill. 2011) 1, 2
In re M.D.C. Holdings Sec. Litig.,
No. CV89-0090 E (M), 1990 WL 454747 (S.D. Cal. Aug.30, 1990) 2
In re Mego Fin. Corp. Sec. Litig.,
213 F.3d 454 (9th Cir. 2000) 2
In re Southwest Airlines Voucher Litig.,
No. 11 C 8176, 2013 WL 4510197 (N.D. Ill., Aug. 26, 2013) 6
In re Synthroid Mktg. Litig.,
264 F.3d 712 (7th Cir. 2001) 6
In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig.,
724 F. Supp. 160 (S.D.N.Y. 1989) 2
Matter of Cont'l la Sec. Litig.,
962 F.2d 566 (7th Cir. 1992) 2
Paldo Sign & Display Co. v. Topsail Sportswear, Inc.,
No. 08-cv-05959 (N.D. Ill. Dec. 21, 2011) 3
Saf-T-Gard Intl, Inc. v. Seiko Corp. of Am.,
No. 09 C 0776 (N.D. Ill. Jan. 14, 2011) 3
Silverman v. Motorola Solutions, Inc.,
--- Fed. Appx. ---, Nos. 12-2339, 12-2354, 2013 WL 4082843
(7th Cir. Aug. 14, 2013) 2
Sutton v. Bernard,
504 F.3d 688 (7th Cir. 2007) 1, 4
Will v. Gen. Dynamics Corp.,
Civil No. 06-698-GPM, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) 2, 7
Van Gemert v. Boeing Co.,
516 F. Supp. 412 (S.D.N.Y. 1981) 3
Case:
1:12-cv-01612
Document
81 Filed:
Case:
1:11-cv-04462
Document
#:#:
141-2
Filed:10/03/13
02/13/15Page
Page5 9ofof1331PagelD
PageID#:433
#:6061
I. INTRODUCTION
In the face of a staunch defense and real litigation risk, Plaintiff and his counsel have
achieved an excellent settlement that requires Defendant Fifth Third to pay $4.5 million into a
settlement common fund for the benefit of the Class. To compensate them for their efforts, Class
Counsel seek an award of one-third of the common fund. They also seek approval of an
incentive award of $25,000 to Plaintiff Gary Hanley. As set forth in the following, the requested
fee and incentive award are reasonable and satisfy the requirements for approval.
II. ARGUMENT
A.
Class Counsel's Requested Fee Is Reasonable
1.
One-Third of the Common Fund Is in Line with Fees Awarded in Similar Cases
Attorneys who recover a common fund for the benefit of a class are entitled to a
reasonable attorney fee from the fund as a whole. See Sutton v. Bernard, 504 F.3d 688, 691-92
(7th Cir. 2007). "[T]he approach favored in the Seventh Circuit is to compute attorney's fees as
a percentage of the benefit conferred upon the class." In re Ky. Grilled Chicken Coupon Mktg. &
Sales Practices Litig., 280 F.R.D. 364, 379 (N.D. Ill. 2011). Courts should "do their best to
award counsel the market price for legal services, in light of the risk of nonpayment and the
normal rate of compensation in the market at the time." Id. The market price "depends in part
on the risk of nonpayment a firm agrees to bear, in part on the quality of its performance, in part
on the work necessary to resolve the litigation, and in part on the stakes of the case." Sutton, 504
F.3d at 693.
"[T]here are advantages to utilizing the percentage method in common fund cases
because of its relative simplicity of administration." Florin v. Nationsbank of Ga., NA., 34 F.3d
560, 566 (7th Cir. 1994).
The percentage method is bereft of largely judgmental and timewasting computations of lodestars and multipliers. These latter
computations, no matter how conscientious, often seem to take on
the character of so much Mumbo Jumbo. They do not guarantee a
more fair result or a more expeditious disposition of litigation.
- 1-
Case:
1:12-cv-01612
Document
#: 81 Filed:
of of
1331
PagelD
#:434
Case:
1:11-cv-04462
Document
#: 141-2
Filed: 10/03/13
02/13/15 Page
Page610
PageID
#:6062
In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig., 724 F. Supp. 160, 170 (S.D.N.Y.
1989); see also Matter of Cont Ill. Sec. Litig., 962 F.2d 566, 573 (7th Cir. 1992) (noting it is
easier to establish market based contingency fee percentages than to "hassle over every item or
category of hours and expense and what multiple to fix and so forth"); Gaskill v. Gordon, 942 F.
Supp. 382, 386 (N.D. Ill. 1996) ("[T]he percentage of fund method provides a more effective
way of determining whether the hours expended were reasonable."), aff'd, 160 F.3d 361 (7th Cir.
1998).
One-third of the common fund, a percentage of the benefit conferred upon the Class, is at
the market price and therefore reasonable, as reflected in the fees approved by other courts in this
Circuit and elsewhere. In re Ky. Grilled Chicken, 280 F.R.D. at 380-81 (citing cases, and
describing a fee of 32.7% of the common fund as "well within the market rate and facially
reasonable"); see also Silverman v. Motorola Solutions, Inc., --- Fed. Appx. ---, Nos. 12-2339,
12-2354, 2013 WL 4082843, *2 (7th Cir. Aug. 14, 2013) (approving a fee of 27.5% of $200
million common fund and noting that another court had approved a fee of 30% for the first $10
million of a common fund); City of Greenville v. Syngenta Corp Prot., Inc., 904 F. Supp. 2d 902,
908-09 (S.D. Ill. 2012) (approving a one-third fee because a "contingent fee of one-third of any
recovery after the reimbursement of costs and expenses reflects the market price" and citing
cases); Will y. Gen. Dynamics Corp., Civil No. 06-698-GPM, 2010 WL 4818174, *3 (S.D. Ill.
Nov. 22, 2010) (finding "the market rate for complex plaintiffs' attorney work in this case and
similar cases is a contingency fee" and agreeing "a one-third fee is consistent with the market
rate"); In re Heritage Bond Litig., No. 02-ML-1475 DT, et al., 2005 WL 1594403, * 19 (C.D.
Cal. June 10, 2005) (awarding class counsel's fee request of 33% of the common fund); In re
Bankcorp. Litig., 291 F.3d 1035, 1038 (8th Cir. 2002) (affirming award of 36% of the settlement
fund); In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir. 2000) (affirming award of
attorneys' fees equal to 33.33% of the total recovery); In re M.D.C. Holdings Sec. Litig.,
No. CV89-0090 E (M), 1990 WL 454747, *1, *10 (S.D. Cal. Aug.30, 1990) (awarding
attorneys' fees equal to 30% of the settlement fund plus expenses); Greene v. Emersons Ltd., No.
-2-
Case:
1:12-cv-01612
Document
81 Filed:
of of
1331
PagelD
#:435
Case:
1:11-cv-04462
Document
#: #:
141-2
Filed:10/03/13
02/13/15 Page
Page711
PageID
#:6063
76 Civ. 2178 (CSH), 1987 WL 11558, *8 (S.D.N.Y. May 20, 1987) (awarding attorneys' fees
and expenses in excess of 46% of the settlement fund); In re Combustion, Inc., 968 F. Supp.
1116, 1131-32 (W.D. La. 1997) (awarding attorneys' fees equal to 36% of the common fund); In
re Ampicillin Antitrust Litig., 526 F. Supp. 494, 503 (D.D.C. 1981) (awarding attorneys' fees in
excess of 40% of the settlement fund); Beech Cinema, Inc. v. Twentieth Century Fox Film Corp.,
480 F. Supp. 1195, 1198-99 (S.D.N.Y. 1979) (awarding attorneys' fees in excess of 50% of the
settlement fund); Van Gemert v. Boeing Co., 516 F. Supp. 412, 420 (S.D.N.Y. 1981) (awarding
attorneys' fees of 36% of settlement fund).
Judges in this district also have approved similar fee awards previously in TCPA cases.
See Desai v. ADT Sec. Servs., Inc., No. 1:11-cv-01925 (N.D. Ill. June 21, 2013) (Bucklo, J.)
(ECF No. 243) (fees equal to one-third of the settlement fund); Paldo Sign & Display Co. v.
Topsail Sportswear, Inc., No. 08-cv-05959 (N.D. Ill. Dec. 21, 2011) (Kennelly, J.) (ECF No.
116), attached hereto as Exhibit 1 (fees equal to one-third of the settlement fund plus expenses);
CE Design Ltd. v. CV's Crab House North, Inc., No. 07-cv-05456 (N.D. Ill. Oct. 27, 2011)
(Kennelly, J.) (ECF No. 424), attached hereto as Exhibit 2 (fees equal to one-third of settlement
plus expenses); Saf-T-Gard Int'l, Inc. v. Seiko Corp. of Am., No. 09 C 0776 (N.D. Ill. Jan. 14,
2011) (Bucklo, J.) (ECF No. 100), attached hereto as Exhibit 3 (fees and expenses equal to 33%
of the settlement fund); G.M. Sign, Inc. v. Finish Thompson, Inc., No. 07-cv-05953 (N.D. Ill.
Nov. 1, 2010) (Kendall, J.) (ECF No. 146), attached hereto as Exhibit 4 (fees equal to one-third
of settlement plus expenses); Hinman v. M&M Rentals, Inc., No. 06-1156 (N.D. Ill. Oct. 6, 2009)
(Bucklo, J.) (ECF No. 225), attached hereto as Exhibit 5 (fees and expenses equal to 33% of the
settlement fund).
2.
The Requested Fee Reflects the Market Price for Legal Services
A review of the market price factors from Sutton demonstrates that counsel should
receive a market-rate fee award of one-third of the common fund.
3
Case:
1:12-cv-01612
Document
#: 81 Filed:
of of
1331
PagelD
#:436
Case:
1:11-cv-04462
Document
#: 141-2
Filed: 10/03/13
02/13/15 Page
Page812
PageID
#:6064
a.
Risk of Nonpayment
First, prosecution of this action has involved significant financial risk for Class Counsel.
Class Counsel undertook this matter solely on a contingent basis, with no guarantee of recovery.
See Declaration of Alexander H. Burke ("Burke Decl") 10; Declaration of Beth E. Terrell
("Terrell Decl") ¶ 9. 1 The risk of protracted litigation, and of ultimately obtaining no recovery at
all, was especially high in this case, given that Fifth Third lodged a vigorous defense focused on
its belief that Plaintiff and Class members had expressly consented to receive automated calls to
their cellular phones. Plaintiff disputes both the factual and legal bases for Fifth Third's position
but acknowledges that even if he prevailed on this issue, identifying the individuals who either
never consented to the calls or who had revoked their consent would be a difficult, expensive,
and time-consuming process.
b.
Quality of Performance
Second, the fee award reasonably reflects the "market price" given the quality of Class
Counsel's performance. See Sutton, 504 F.3d at 693. By applying their skill and experience,
Class Counsel were able to obtain an outstanding result for Class members in the face of a
staunch defense. The settlement requires Fifth Third to pay $4.5 million into a common fund for
the benefit of the Class. Every Class member who fills out a simple claim form will receive a
cash payment estimated to be approximately $200. The fact that Fifth Third was willing to pay
such an amount reflects the dedication, skill, and experience of Class Counsel.
c.
Amount of Work Invested
Class Counsel have devoted numerous hours to investigating, litigating, and settling this
case. Burke Decl. ¶ 10; Terrell Decl. ¶ 10. Class Counsel propounded written discovery
requests to Fifth Third and reviewed the written answers and documents produced in response.
Terrell Decl. 10. Class Counsel moved to amend the complaint to reflect relevant information
The declarations of Mr. Burke and Ms. Terrell are attached as Exhibits 1 and 2 respectively to Plaintiffs Motion
for Final Approval.
4
Case:
1:12-cv-01612
Document
81 Filed:
of of
1331
PagelD
#:437
Case:
1:11-cv-04462
Document
#: #:
141-2
Filed:10/03/13
02/13/15Page
Page913
PageID
#:6065
acquired from Fifth Third during this initial discovery. Id. In the course of briefing the motion
to amend, Class Counsel thoroughly analyzed issues relating to Fifth Third's "consent" defense,
including whether an individual can "expressly consent" to automated calls by signing a contract
with a third party and whether any revocation of consent must be in writing. Id. Class counsel
also served Fifth Third with a detailed Rule 30(b)(6) notice regarding Fifth Third's information
systems. Id. The deposition never took place because settlement negotiations commenced
shortly thereafter.
Class Counsel devoted numerous hours to negotiating the settlement, which included
preparing their client's mediation submission, attending three separate mediation sessions, and
following up with Fifth Third's counsel over the phone. Burke Decl. ¶ 10; Terrell Decl. 1110.
Class Counsel insisted that Fifth Third substantiate its assertions regarding the number of
allegedly unlawful calls that it made and refused to settle until they had received an affidavit
providing this information. Terrell Decl. 1111. Finally, Class Counsel spent substantial time
preparing the settlement papers and notice documents, working with the independent notice
provider, and drafting the approval motions. Id. The amount of work supports the requested fee.
d.
Stakes of the Case
This case involves hundreds of thousands of Class members who allegedly received
harassing, unlawful calls from Fifth Third. See Declaration of Rust Consulting Inc. Submitted in
Support of Timely Compliance of Class Notice ("Rust Decl.") 8 (indicating that 216,498
notices were mailed to the Class). The amount each class member is individually eligible to
recover is low (between $500 and $1,500 per call) and thus individuals are unlikely to file
individual lawsuits. A class action is realistically the only way that many individuals would
receive any relief In light of the number of Class members and the fact that they likely would
not have received any relief without the assistance of Class Counsel, the requested fee is
reasonable.
5
Case:
1:12-cv-01612
Document
81 Filed:
Case:
1:11-cv-04462
Document
#:#:
141-2
Filed:10/03/13
02/13/15Page
Page1014ofof1331PagelD
PageID#:438
#:6066
3.
No Class Members Have Objected to the Requested Fee
Class Counsel fully disclosed that they seek attorneys' fees of $1.5 million in notices
mailed to the Class, published in national and regional periodicals, and on the settlement website.
See Dkt. No. 69-1, Exs. C, E, and F; see also Rust Decl., Ex. 1.2 To date, Class Counsel have not
received a written objection to Class Counsel's fee request. Burke Decl. 12; Terrell Decl. 1112.
Class Counsel will respond to timely objections in accordance with the Court's deadlines. Id.
In sum, the $1,500,000 requested attorneys' fees are fair, adequate, and reasonable in
light of: (1) the substantial financial recovery for Class members (2) the diligent and efficient
effort utilized by Class Counsel in litigating Plaintiff's claims; (3) Class Counsel's substantial
experience in complex litigation and skill utilized to achieve the settlement; (4) the lack of
opposition to the fee request; and (5) the hurdles to certifying the Class and proving liability and
damages at trial.
B.
The Incentive Award to the Class Representative Should Be Approved
Federal courts often exercise their discretion under Rule 23(d) and (e) to approve case
contribution awards to the plaintiff who instituted and prosecuted the action on the theory that
there would be no class wide benefit absent the plaintiffs suit. Service awards compensating
named plaintiffs for work done on behalf of the Class attempt to account for financial or
reputational risks associated with litigation, and promote the public policy of encouraging
individual plaintiffs to undertake the responsibility of representative lawsuits. See Cook v.
Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (recognizing that "because a named plaintiff is an
essential ingredient of any class action, an incentive award is appropriate if it is necessary to
induce an individual to participate in the suit"); see also In re Synthroid Mktg. Litig., 264 F.3d
712, 722 (7th Cir. 2001) ("Incentive awards are justified when necessary to induce individuals to
become named representatives."). Factors relevant to determining whether an incentive award is
proper and the amount of such award "include the actions the plaintiff has taken to protect the
The Declaration of Rust Consulting, Inc. Regarding Timely Compliance of Class Notice ("Rust Decl.") is attached
as Exhibit 3 to Plaintiff's Motion for Final Approval.
2
6
Case:1:11-cv-04462
1:12-cv-01612
Document
81 Filed:
Case:
Document
#:#:
141-2
Filed:10/03/13
02/13/15Page
Page1115ofof1331PagelD
PageID#:439
#:6067
interests of the class, the degree to which the class has benefitted from those actions, and the
amount of time and effort the plaintiff has expended in pursuing the litigation." Cook, 142 F.3d
at 1016.
The requested service award of $25,000 is reasonable under the circumstances. Mr.
Hanley worked with Class Counsel to investigate the case, was kept abreast of the proceedings
through litigation and settlement, attended the first settlement conference in person and
participated by phone during the two others, and was consulted on major litigation decisions and
briefing. Mr. Hanley also reviewed and commented on the Settlement Agreement. See Burke
Dec1.1111.
An award of $25,000 is well in line with awards approved by federal courts in Illinois
and elsewhere. See, e.g., Cook, 142 F.3d at 1016 (affirming $25,000 incentive award to
plaintiff); In re Southwest Airlines Voucher Litig., No. 11 C 8176, 2013 WL 4510197, *11 (N.D.
Ill., Aug. 26, 2013) (awarding $15,000 each to two named plaintiffs); Heekin v. Anthem, Inc.,
No. 1:05-01908, 2012 WL 5878032, *1 (S.D. Ind. Nov. 20, 2012) (approving $25,000 incentive
award to lead class plaintiff over objection); Will v. Gen. Dynamics Corp., Civil No.
06-698-GPM, 2010 WL 4818174, *4 (S.D. Ill. Nov. 22, 2010) (awarding $25,000 each to three
named plaintiffs); Spicer, 844 F. Supp. at 1267-68 (collecting cases awarding incentive fees
ranging from $5,000 to $100,000 and awarding $10,000 each to three named plaintiffs). If
approved, the incentive award will be deducted from the common fund.
III. CONCLUSION
For the foregoing reasons, Class Counsel respectfully requests that the Court grant their
motion and award Class Counsel $1.5 million, which amounts to one-third of the settlement
fund. Class Counsel further requests that the Court approve an incentive award of $25,000 to
Mr. Hanley.
RESPECTFULLY SUBMITTED AND DATED this 3rd day of October, 2013.
TERRELL MARSHALL DAUDT & WILLIE PLLC
7
Case:
1:12-cv-01612
Document
81 Filed:
Case:
1:11-cv-04462
Document
#:#:
141-2
Filed:10/03/13
02/13/15Page
Page1216ofof1331PagelD
PageID#:440
#:6068
By: /s/ Beth E. Terrell, Admitted Pro Hac Vice
Beth E. Terrell, Admitted Pro Hac Vice
Email: [email protected]
Kimberlee L. Gunning, Admitted Pro Hac Vice
Email: [email protected]
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 350-3528
Alexander H. Burke
Email: [email protected]
BURKE LAW OFFICES, LLC
155 North Michigan Avenue, Suite 9020
Chicago, Illinois 60601
Telephone: (312) 729-5288
Facsimile: (312) 729-5289
Attorneys for Plaintiff
8
Case:1:11-cv-04462
1:12-cv-01612
Document
81 Filed:
Case:
Document
#:#:
141-2
Filed:10/03/13
02/13/15Page
Page1317ofof1331PagelD
PageID#:441
#:6069
CERTIFICATE OF SERVICE
I, Beth E. Terrell, hereby certify that on October 3, 2013, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send notification of
such filing to the following:
Gary S. Caplan, #6198263
Email: [email protected]
Henry Pietrkowski, #6230048
Email: [email protected]
Timothy R. Carraher, #6299248
Email: [email protected]
REED SMITH LLP
10 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
Telephone: (312) 207-1000
Attorneys for Defendant
DATED this 3rd day of October, 2013.
TERRELL MARSHALL DAUDT & WILLIE PLLC
By: /s/ Beth E. Terrell, Admitted Pro Hac Vice
Beth E. Terrell, Admitted Pro Hac Vice
Email: [email protected]
936 North 34th Street, Suite 300
Seattle, Washington 98103 8869
Telephone: (206) 816 6603
Facsimile: (206) 350-3528
-
-
Attorneys for Plaintiff
9
Case: 1:11-cv-04462 Document #: 141-2 Filed: 02/13/15 Page 18 of 31 PageID #:6070
Exhibit B
Case:
1:12-cv-01612
Document
#: 86 Filed:
12/23/13 Page
Page 1
PagelD
#:472
Case:
1:11-cv-04462
Document
#: 141-2
Filed: 02/13/15
19ofof131
PageID
#:6071
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Gary Hanley, on behalf of himself and
others similarly situated,
Plaintiffs
Case No: 12 C 1612
v.
Judge: Ruben Castillo
Fifth Third Bank,
Defendant
Fairness hearing held on 12/23/2013. Plaintiff's motion for final approval of class action
settlement [79] and class counsel's motion for an award of fees and approval of incentive award
in connection with the settlement [81] are granted. The Court finds the settlement is fair and
reasonable. Enter Final Judgment and Order of Dismissal.
(T:)
0:15
Date: 12/23/13
/s/ Chief Judge Ruben Castillo
f
1.itilStErgli
0313
I t 14 i4c1 EZ330001
,41 'V3 00
9-
Case: 1:11-cv-04462 Document #: 141-2 Filed: 02/13/15 Page 20 of 31 PageID #:6072
Exhibit C
Case:1:11-cv-04462
1:07-cv-05456Document
Document#:
#:141-2
424 Filed:
of 11
PagelD
#:13035
Case:
Filed:10/27/11
02/13/15Page
Page1 21
of 31
PageID
#:6073
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CE DESIGN LTD., an Illinois corporation, individually and as the representative of a class of similarly-
situated persons,
)
)
)
)
) No. 07 C 5456
Plaintiff,
)
) Judge Matthew F. Kennelly
v.
)
)
CY'S CRAB HOUSE NORTH, INC. and )
CY'S CRABHOUSE & SEAFOOD
)
GRILL, INC.,
)
)
Defendants. )
FINAL APPROVAL OF SETTLEMENT AGREEMENT AND JUDGMENT
WHEREAS, as a precondition to entering into a class settlement, Plaintiff
requested that Defendants execute affidavits attesting that conflicts of interest had
never been disclosed to them, and that they had never waived conflicts of interest,
and Defendants executed such affidavits ("the Cy's Affidavits"); and
WHEREAS, Plaintiff (on behalf of itself and the Class) and Defendants
thereafter filed an executed Settlement Agreement (the "Agreement") with the
Court on September 14, 2010; and
WHEREAS, the Court, on September 22, 2010, entered an Order
Preliminarily Approving the Class Action Settlement, and Approving the Class
Action Settlement Notice (the "Preliminary Approval Order"), and directed that the
Notice of Proposed Settlement be distributed to Class Members, and scheduled a
Case: 1:11-cv-04462
1:07-cv-05456 Document
Document #:
#: 141-2
424 Filed:
2 22
of 11
PagelD
#:13036
Case:
Filed:10/27/11
02/13/15Page
Page
of 31
PageID
#:6074
hearing to be held on January 12, 2011, to determine whether the Settlement
should be approved as fair, reasonable, and adequate; and
WHEREAS, Plaintiff has demonstrated to the Court that such Notice of
Proposed Settlement was distributed in accordance with the terms of the
Preliminary Approval Order; and
WHEREAS, in accordance with the Notice of Proposed Settlement
disseminated to the Class Members, a hearing was held on January 12, 2011, at
which all interested persons were given an opportunity to be heard, and none of the
Class Members appeared or responded when the Court called the matter for said
hearing; and
WHEREAS, at said hearing on January 12, 2011, Plaintiff requested that
final approval of the Agreement be postponed pending confirmation of the truth of
the Cy's Affidavits, and the Court granted such postponement, ultimately re-setting
a final fairness hearing on the Agreement for September 8, 2011; and
WHEREAS, the Court held said hearing on September 8, 2011, at which all
interested persons were again given an opportunity to be heard;
NOW, THEREFORE, the Court, having read and considered all submissions
made in connection with the Agreement, including statements in open court, finds
and concludes as follows:
1.
The Complaint in this action alleged Defendants faxed unsolicited
advertisements to Plaintiff and the other members of a putative class. The
2
Case: 1:11-cv-04462
1:07-cv-05456 Document
Document #:
#:141-2
424 Filed:
of 11
PagelD
#:13037
Case:
Filed:10/27/11
02/13/15Page
Page3 23
of 31
PageID
#:6075
Complaint alleged Defendants' practice violated federal law and caused damages to
Plaintiff and the putative class.
2.
On September 14, 2010, the Court certified the following Class for
settlement purposes:
All persons who, on November 1, 2005 and/or November 9,
2005, received a fax stating "We Love to Serve You at Cy's
Crabhouse" listing Cy's Crabhouse, 301 N. Milwaukee Ave.,
Buffalo Grove, IL.
The Court hereby affirms this definition of the Class for purposes of this Final
Judgment. The Court appointed Plaintiff to represent the Class and appointed
Plaintiffs attorneys as class counsel.
3.
The Court certified the Class as defined above after finding that the
requirements of Federal Rule of Civil Procedure Rule 23 were met, because: (1) the
Class is so numerous that joinder of all members is impracticable; (2) there are
common questions of fact or law that predominate over any questions affecting only
individual members; (3) the claims or defenses of Plaintiff are typical of the claims
or defenses of the Class; (4) Plaintiff and its attorneys fairly and adequately protect
the interests of the Class; (5) common questions of law or fact predominate over
individual questions; and (6) a class action be the superior method for adjudicating
the claims.
4.
Plaintiff and Defendants executed the Agreement and filed it with the
Court. The Agreement provides for the settlement of this action on behalf of
Plaintiff and the Class, subject to the Court's approval. The Court scheduled a
hearing to consider approval of the Agreement, and directed that notice of the
3
Case: 1:11-cv-04462
1:07-cv-05456 Document
Document #:
#:141-2
424 Filed:
of 11
PagelD
#:13038
Case:
Filed:10/27/11
02/13/15Page
Page4 24
of 31
PageID
#:6076
Agreement and of this hearing be disseminated to the Class in accordance with the
terms of the Preliminary Approval Order.
5.
In accordance with the terms of both the Agreement and the
Preliminary Approval Order, Plaintiff caused the Notice of Proposed Settlement to
be disseminated, informing potential Class Members of the pendency of this Action
and of the terms of the settlement, and of their opportunity to request exclusion
from the Class or to object to the terms of the settlement. Plaintiffs attorneys
confirmed to the Court on January 12, 2011, that the dissemination of the Notice of
Proposed Settlement had occurred in accordance with the Preliminary Approval
Order.
6.
The Court hereby finds that the Notice of Proposed Settlement
disseminated to the Class Members in accordance with the terms of the Preliminary
Approval Order constituted the best notice practicable under the circumstances.
The Affidavit confirming dissemination of the Notice of Proposed Settlement filed
with this Court demonstrates that this Court's Preliminary Approval Order with
respect to dissemination of the Notice of Proposed Settlement was complied with,
and that the best notice practicable under the circumstances was in fact given, and
constituted valid, due, and sufficient notice to Class Members.
7.
As previously indicated, the final fairness hearing on the Agreement
was originally scheduled for January 12, 2011, and the notice given to the Class
advised the Class Members that such hearing would be held on said date, but the
hearing was thereafter postponed until September 8, 2011. Nevertheless, on
4
Case: 1:11-cv-04462
1:07-cv-05456 Document
Document #:
#:141-2
424 Filed:
of 11
PagelD
#:13039
Case:
Filed:10/27/11
02/13/15Page
Page5 25
of 31
PageID
#:6077
January 12, 2011, in open court, the Court called the case for hearing and
specifically asked if any Class Members were present for the scheduled hearing.
See 1/12/11 Hearing Transcript, p. 3: "Is there anybody here in the courtroom who is
here because of the case of CE Design v. Cy's Crabhouse for a settlement hearing?
No. And just for the record, it's about 10:10. Okay." If any Class Members had
elected to appear at the hearing on January 12, 2011, they would have been aware
of the events transpiring at said hearing and in subsequent proceedings in this case,
including the final fairness hearing scheduled for September 8, 2011. Given the
foregoing, the Court hereby finds that the Class received proper, sufficient and
adequate notice of the final fairness hearing on September 8, 2011.
8.
Plaintiff and Defendants have applied to the Court for final approval of the terms
of the Agreement and for the entry of this Final Approval Order. Based upon the evidence in the
record, the Court concludes that the affidavits submitted by Cy Sadeghi and Bruce Goldberg are
true and correct and relies upon their truth in finding the settlement fair, reasonable, and
adequate.
9.
The Court finds, for the reasons described in open court and in this
order, that the Agreement is the result of good faith arm's-length negotiations by
the parties thereto, and that it will further the interests of justice. The Settlement
Agreement is hereby incorporated into and adopted as part of this Order.
10.
Additionally, based upon the evidence in the record and statements
made in open court and in this order, including the findings has made regarding the
Sadeghi and Goldberg affidavits, the Court finds that:
(a)
The settlement is made in reasonable anticipation of liability;
5
Case:1:11-cv-04462
1:07-cv-05456Document
Document#:
#:141-2
424 Filed:
of 11
PagelD
#:13040
Case:
Filed:10/27/11
02/13/15Page
Page6 26
of 31
PageID
#:6078
(b)
The settlement amount was fair and reasonable;
(c)
Defendants' decision to settle conformed to the standard of a
prudent uninsured;
(d)
The damages amount agreed to is what a reasonably prudent
person in Defendants' position would have settled for on the merits of the
claims in this Litigation;
(e)
Defendants directed that 10,000 unsolicited advertisements be
faxed on November 1, 2005 and November 9, 2005, and 7,295 of those were
received;
(0
Defendants believed that their fax broadcaster had the consent
of the fax recipients when it sent the faxes;
(g)
Defendants did not intend to injure the fax recipients; and
(h)
Defendants tendered this lawsuit to Truck Insurance Exchange
and Truck Insurance Exchange agreed to defend this matter, but reserved its
rights and then filed suit seeking to void coverage.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED
THAT:
A.
The Court possesses jurisdiction over the subject matter of this Action,
the Plaintiff, the Class Members, and Defendants.
B.
The Court certifies the following settlement class:
All persons who, on November 1, 2005 and/or November 9, 2005,
received a fax stating "We Love to Serve You at Cy's Crabhouse" listing
Cy's Crabhouse, 301 N. Milwaukee Ave., Buffalo Grove, IL.
6
Case: 1:11-cv-04462
1:07-cv-05456Document
Document#:
#:141-2
424 Filed:
of 11
PagelD
#:13041
Case:
Filed:10/27/11
02/13/15Page
Page7 27
of 31
PageID
#:6079
C.
The Court appoints Plaintiff as the class representative and appoints
Plaintiff's attorneys, Brian J. Wanca of Anderson + Wanca and Phillip A. Bock of
Bock & Hatch, LLC as class counsel.
D.
It is hereby determined that the Notice of Proposed Settlement, as
disseminated to members of the Class in accordance with provisions of the
Preliminary Approval Order, was the best notice practicable under the
circumstances to all members of the Settlement Class, and is therefore finally
approved as reasonable. Due and adequate notice of the pendency of this Action
and of this Settlement has been provided to members of the Class, and this Court
hereby finds that the notice program described in the Preliminary Approval Order
and completed by Plaintiff complied fully with the requirements of due process,
under Federal Rule of Civil Procedure 23, and all other applicable laws.
E.
Sixteen (16) members of the Class filed Requests for Exclusion.
Exhibit 1. The persons listed on Exhibit 1 to this Order are hereby excluded from
the Class. All remaining Class Members are bound by this Final Judgment and by
the Agreement and the settlement embodied therein, including the covenant not to
execute provided for in the Agreement and in this Final Approval Order.
F.
All provisions and terms of the Agreement are hereby found to be fair,
reasonable, and adequate as to the Class Members and Plaintiff, and all provisions
and terms of the Agreement are hereby finally approved in all respects. The
Agreement was made in reasonable anticipation of liability. The settlement amount
is fair and reasonable. Defendants' decision to settle conforms to the standard of a
7
Case: 1:11-cv-04462
1:07-cv-05456Document
Document#:
#:141-2
424 Filed:
of 11
PagelD
#:13042
Case:
Filed:10/27/11
02/13/15Page
Page8 28
of 31
PageID
#:6080
prudent potentially uninsured. The agreed judgment amount is what a reasonably
prudent person in Defendants' position would have settled for.
G.
The Court enters judgment on all counts of the Second Amended Class
Action Complaint against Defendants, jointly and severally, in the total amount of
$3,647,500.00. The Judgment shall be satisfied only through the proceeds of
Defendants' insurance policies.
H.
The Court hereby approves Defendants' assignment to the Class of all
of Defendants' claims, rights to payment, and rights of action against every insurer
covering any part of the period November 1, 2005 through November 30, 2005.
I.
It is hereby ordered that Plaintiff shall receive $25,000.00 from any
recovery against Defendants' insurer(s), in accordance with the Agreement, as an
incentive payment for its services to the Class. It is hereby ordered that Plaintiffs
attorneys shall receive attorneys' fees equal to one-third plus litigation expenses
from any recovery against Defendants' insurer(s), before any other deductions, in
accordance with the Agreement.
J.
It is hereby ordered that each Class member, including Plaintiff, who
does not exclude himself will be mailed a pro rata share of the amount recovered.
Such payments will be made by checks void 90 days after issuance.
L.
On the date of this Order, any Class member who did not opt out will
be forever barred and permanently enjoined from directly, indirectly,
representatively or in any other capacity, filing, commencing, prosecuting,
continuing, litigating, intervening in, participating in as class members or
8
Case: 1:11-cv-04462
1:07-cv-05456Document
Document#:
#:141-2
424 Filed:
of 11
PagelD
#:13043
Case:
Filed:10/27/11
02/13/15Page
Page9 29
of 31
PageID
#:6081
otherwise, or receiving any benefits or other relief from any other lawsuit, any other
arbitration, or any other administrative, regulatory, or other proceeding against
Defendants and/or any of their agents and assigns in any jurisdiction based on or
relating in any way whatsoever to the claims and causes of action, or the facts or
circumstances relating thereto, in or underlying the Action and/or the settled claims
as defined in the Agreement; and all persons shall be forever barred and
permanently enjoined from filing, commencing, or prosecuting any other lawsuit as
a class action against Defendants and their agents and assigns (including by
seeking to amend a pending complaint to include class allegations or by seeking
class certification in a pending action in any jurisdiction) on behalf of Class
Members who have not timely excluded themselves from the Class if such other
lawsuit is based on or related to the claims and causes of action or the facts and
circumstances relating thereto, in this Action and/or the settled claims.
M.
Plaintiff and each Class Member, and their heirs, executors,
administrators, representatives, agents, successors and assigns, and any and all
other Persons claiming through or by virtue of them, have covenanted with
Defendants not to execute on the Judgment against any non - insurance asset or
property of Defendants, or any of their agents, assigns or legal representatives
thereof, but rather have agreed to pursue collection of the Judgment solely against
Defendants' insurance policies and Defendants' insurer(s) only. This provision does
not release the judgment against Defendants to be entered herein, nor does it
release the asserted claims that are the basis for the entry of the judgment or the
9
Case:
Filed:
10/27/11
Page
1030
of of
1131
PagelD
#:13044
Case: 1:07-cv-05456
1:11-cv-04462 Document
Document #:
#: 424
141-2
Filed:
02/13/15
Page
PageID
#:6082
right to enforce the judgment in favor of the Plaintiff and the Class against
Defendants' insurers only.
N.
The terms of the Agreement and of this Order and the accompanying
Final Judgment shall be forever binding on Plaintiff and all other Class Members,
as well as their heirs, executors and administrators, successors and assigns, and
those terms shall have res judicata and other preclusive effect in all pending and
future claims, lawsuits or other proceedings maintained by or on behalf of any such
persons, to the extent those claims, lawsuits, or other proceedings involve settled
Claims.
0.
Defendants shall reasonably cooperate fully with Plaintiff in all
subsequent actions against Defendants' insurer(s) and make available their
employees to testify upon reasonable notice, if necessary.
P.
This is a final and appealable order and there is no just reason to delay
enforcement or appeal.
Q.
Post-judgment interest shall accrue from the date of entry of this
Judgment Order.
ENTER:
Dated: October 27, 2011
s/ Matthew F. Kennelly
Judge Matthew F. Kennelly
10
▪
▪
Case: 1:11-cv-04462 Document #: 141-2 Filed: 02/13/15 Page 31 of 31 PageID #:6083
Ln cn Ln
VI r--.
N. CA %-1 0 111
en Cr NN N
N LO
L.C)
I
rn LO en v-i esi al m Ln oci LO 00
CY) NI 01 1-1 11 • 11 Lt1 0 t-I e-I r-I
LrIN71N 111Ln N LID 0 Cr 0
N ‘-1 1-1 N N LO 1,:r N 11:1' N m
4 o .1.
U1
.1. IA
00
111 cl., LLI LA
I
LA I I A LA
e-1 Cr 00 LO "Cr CT 0 01 0 Cr 1-1
N N 0 CTI
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
VD liD VD LC) (L)
LO LO LO CD 1..0 CD LO V3 LO LO LO
--I J .........
.....
a)
a,
U)
2
0
(.1)
a)
C
CD
co
a)
a)
O
2
4-,
VI
O
O
LL
C
C
U-
cD
0)
C
L-
a)
03
CD
CO
0_
00
0
V)
4-,
4±,
00
C
17U
CU
-C
C
0
4-,
13.0
OD
C
C
O
_c
U
*c
a)
73
t
CU
_C
a)
0
0
rn
ri
CT)
C)
1C
t-I
I—
ri m
a)
U
_o
a)
Ho
a)
ccanZ
cp
coz,
O
Ln
ri
r-I
ta2
0
a)
-4;
N
0
0
CC
0
0
a)
C
'474'
C 0
cc
0- a)
C
0
00
0
C
CC
C
C
0
CC
LU
s_
CD
D
-O
CD
(/)
C
cCD
LU
0
a) 0
U)
_C
4
a)
Dp4
O
H
r
CU
>•C
z
L9
70
U)
I-
a)
a)
C
a)
C
0
N
15
3
U
a)
s
-0)
OD
CD
0
0
-
CD
a)
C
-1
0
C
>
a)
C
-C
4-,
a)
-0
C
O
00
•-
"'
a)
C
CU
CC
co
UJ
0
a)
C
CD
D
E
a)
8
UJ
0
' EA
._
LiJ
z
U
CU
a)
•CU
U
C.4=
E
C
a)
*(7)
tr)
CD
C
C
0
C 0
0
C
(0
00
0 a_
C
_c
co
O
a)
CD
C
t
0
0
z
0
U
C
0
0
(0
4-,
CU
CU
(!:)
CD
U
C
a.
C
Ln
C
a(..)
c
C
C
E
a)
CD U
oo
L.n
0_
O
U
C
C
tr)
CU
C
O
-C
U
C
U-
CC
L
O
CJ
U
C
O
U
co
O U a)
E
_c
U
O
C
0
a_
O
4-,
Q
0
11)
(al
0D
U)
4-,
C
C
(0
.8
O
0
4-
a)
0
ai
a)
C
>0.
Co
0
C
(0
E
U
V/
a)
CD
U
Li
C
a)
(1)
0
a)
U
-C
0.
cc
O
(0
-C
U
a)
01
U
•—
C
OD
CU
-NG
O1
en 0
tO 1-1-1
en en ri LL
O
o. L0
0') 0 0) N Lc) fY) 0 N
en
en ri '-I N N N r1 N r-I N 01
O
U
LU
0
0
cc
73
CC
4-,
COr-1
E
O
CO
-J
>-
Ct
0
Ec. 41
CC
0.)
z
NJ
U)
U
vU
N
Er@l
a). 0
s-
O
E
C11
CU
C
a)
U
'a)
a)
-o
ct
t
00
0
-C
E
-C
-C
U
_%e
0
E
0
8
4-,
4-
a)
U,
lD
a)
0.0
oZ
Le. _0
C
O -0
CD
(13
U
CIC
0
a)
a)
a) LL,
CU
7
CO
U
CO
L62
ra
U
C
N
00
0
r-I
r1 N
rl
U
CU
00
03_
.o
co
C 5
a)
0_
0 cc _c
7, N U
C
no
4-•
cr) e.)
Q •-)
0
0-
lD
0
Cr)
11
0
eC
a) t
a)
a)
0
Ln LC)
ri