john heenan benjamin r. bingham bishop & heenan bingham ... · bishop & heenan bingham...
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John Heenan Benjamin R. Bingham
BISHOP & HEENAN Bingham & Lea PC
1631 Zimmerman Trail 319 Maverick St.
Billings, MT 59102 San Antonio, TX 78212
T: (406) 839-9091 T: (210) 224-1819
F: (406) 839-9092 F: (210) 224-0141
[email protected] [email protected]
Admitted Pro Hac Vice
Keith J. Keogh
Keogh Law LTD
55 W. Monroe St. Suite 3390
Chicago, IL 60603
T: (312) 726-1092
F: (312) 726-1093
Admitted Pro Hac Vice
Attorneys for Plaintiff and the Class
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JOEL HAGEMAN, on behalf of ) Case No. CV-13-50-DLC-RWA
himself and all others similarly )
situated, )
)
Plaintiff, )
) APPLICATION FOR AWARD OF
v. ) ATTORNEY’S FEES AND
) INCENTIVE AWARD
AT&T MOBILITY LLC, )
)
Defendant. )
Pursuant to the Settlement Agreement, the Court’s Preliminary Approval
Order (Dkt. #57), and Rule 23(h), F.R.Civ.P., Class Counsel hereby apply for an
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award of attorney’s fees in the amount of one-third of the Settlement Fund ($15
million) and for an incentive award to the class representative in the amount of
$20,000.
Pursuant to Local Rule 7.1, Plaintiff advises that Defendant does not oppose
this Application. The requested attorney’s fees and incentive award are included in
the proposed order granting final approval which has been filed with the Court
along with the Unopposed Motion for Final Approval.
In support of this application, Class Counsel shows the following:
SUMMARY OF APPLICATION
The most important factor in determining what is a reasonable fee to be paid
from a common fund is the results achieved.1 The result achieved in this case is
extraordinary. This is the largest recovery per class member in the 25 year history
of the Telephone Consumer Protection Act2 (“TCPA”). The $45 million settlement
fund is for only about 16,000 thousand class members, a vast difference from other
TCPA cases with similar settlement funds but which are to be distributed to
millions of class members.3 Because of the incredible results achieved, Class
1In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011) (Foremost among
factors considered in setting a reasonable fee “is the benefit obtained for the class”); Hensley v.
Eckerhart, 461 U.S. 424, 436 (1983) ("the most critical factor [in determining an appropriate
attorneys' fee] is the degree of success obtained"); Vizcaino v. Microsoft Corp. 290 F.3d 1043,
1049 (9th Cir. 2002). 2 47 U.S.C. 227 et seq. entitled Restrictions on the Use of Telephone Equipment. 3 See Page 11, infra, summarizing largest TCPA settlements and showing that they all involve
classes with millions of members.
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Counsel respectfully requests their one-third contingency fee. Under the
circumstances of this case, an award of one-third of the fund is abundantly
reasonable because:
•This is a large settlement for a relatively small class-- individual class
members will receive up to $500 per call made, and most claimant have numerous
calls;
•This settlement, unlike every other major TCPA settlement, pays claimants
on a per call basis, not a per capita basis;
•Not a penny of the $45 million fund will revert to the Defendant; all money
will go to the claimants, to Class Counsel, or to a charity if there remain
undistributed funds;
•There is no attorney’s fee provision under the TCPA. Thus, a contingency
fee is the norm for an attorney to prosecute a TCPA case, be it individual or class
action. The one-third fee requested here is not expected to take away from the
class members’ recovery any more than if they successfully pursued their own case
on an individual basis, and in all likelihood, they will fare better with this
settlement than they ever could have by hiring an attorney to prosecute their case
individually;
•The settlement was reached only after full class discovery, review of over
40,000 pages of documents, depositions of parties and experts, exchange of expert
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reports, exchange of lengthy mediation memorandums, mediation before a retired
U.S. Magistrate Judge mediator versed in the nuances of the TCPA, followed by
three more months of post-mediation negotiation;
•The Class supports the settlement (no objections or opt-outs as of the date
of filing).
•The Class supports the fee requests (no objections or opt-outs as of the date
of filing)
•A one-third contingent fee is consistent with Ninth Circuit precedent as
well as TCPA and common-fund cases throughout the nation, and also reflective of
and consistent with the marketplace for contingent fee lawyers handling TCPA
cases.
LEGAL AUTHORITY
1. The Requested Fee is Presumptively Reasonable and Resulted from
Arm’s Length Negotiations.
“A request for attorney’s fees should not result in a second major litigation.
Ideally, of course, litigants will settle the amount of the fee.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). While the Court must perform its own
evaluation to verify that the requested fee is reasonable and not the product of
collusion, it should give weight to the judgment of the parties and their counsel
where the fees were agreed to through arm’s length negotiations after the parties
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agreed on the other key settlement terms. See, e.g., In re Apple Computer, Inc.
Derivative Litig., 2008 U.S. Dist. LEXIS 108195, at *12 (N.D. Cal. Nov. 5, 2008).
Here, Class Counsel negotiated with ATTM to reach an agreed fee amount
that was reasonable in light of the benefits achieved for the class and applicable
legal principles, and did so only after they reached agreement on the other key deal
terms. Heenan Decl., ¶ 9. Further, the fee amount, like the settlement itself, was
agreed upon with the experience of an experienced former federal Magistrate
Judge and mediator, Judge Morton Denlow. Judge Denlow’s involvement
provides “independent confirmation that the fee was not the result of collusion or a
sacrifice of the interests of the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011,
1029 (9th Cir. 1998). Consequently, in view of the fact that ATTM does not
oppose Class Counsel’s fee request, and the fact that its acquiescence came in the
context of a mediation with a skilled mediator, the Court should consider Class
Counsel’s fee request presumptively reasonable.
2. The Percentage-of-the-Fund Method should be Applied in this Case.
The Ninth Circuit has approved both the “percentage of the fund” method
and “lodestar method” for calculating a reasonable attorneys' fee award in common
fund cases, with the method depending on the circumstances of the case. The
district court has discretion in common fund cases to choose either method. In re
Mercury Interactive Corp., 618 F. 3d 988, 992 (9th Cir. 2010). Whichever method
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is chosen and applied is subject to an ‘abuse of discretion” review standard. The
only requirement is that the court conclude that the fee awarded is reasonable given
all the facts and circumstances of the case. In re Bluetooth Headset Prods. Liab.
Litig. 654 F.3d 935, 942 (9th Cir. 2011).
The Ninth Circuit has clarified that the "lodestar method"4 is most
appropriate in class actions brought under fee-shifting statutes where the prevailing
party is by statute entitled to recover attorney’s fees. Id. at 941. In cases without a
fee-shifting provision such as this one, however, the lodestar method has been
criticized widely and for a long period of time. In the Report of the Third Circuit
Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 285 (1985), the Task
Force concluded that the lodestar method was a "cumbersome, enervating, and
often surrealistic process of preparing and evaluating fee petitions that now plagues
the Bench and Bar. . . ." The Ninth Circuit has likewise recognized that the
lodestar method "creates incentives for counsel to spend more hours than may be
necessary on litigating a case so as to recover a reasonable fee, since the lodestar
method does not reward early settlement." Vizcaino v. Microsoft Corp., 290 F.3d
1043, 1050, fn.5 (9th Cir. 2002).
4 The lodestar figure is calculated by multiplying the number of documented hours the prevailing
party reasonably expended on the litigation by a reasonable hourly rate for the region and for the
experience of the lawyer. Id.
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In addition to its tendency to promote inefficiency and burden courts and
their staffs, the use of the lodestar method often delays payments to class members
with no real offsetting benefit to them—i.e. with no real reduction in fees. The
Court in In re Activision Securities Litig., 723 F. Supp. 1373, 1375-1379 (N.D. Cal.
1989) surveyed and compared fees awards from numerous cases using both the
lodestar and the percentage of the fund methods and found that, regardless of
which method is used, the fee “almost always hovers around 30% of the fund
created by the settlement” . Id at 1375. Likewise Newberg states: “Empirical
studies show that, regardless whether the percentage method or the lodestar
method is used, fees awards in class action average around one-third of the
recovery”. 4 NEWBERG ON CLASS ACTIONS §14:6 at 1-2 (4th Ed.).
Conversely, “[W]here both the class and its attorneys are paid in cash, this
task [of awarding fees] is fairly effortless. The district court can assess the relative
value of the attorneys' fees and the class relief simply by comparing the amount of
cash paid to the attorneys with the amount of cash paid to the class. The more
valuable the class recovery, the greater the fees award.” In re HP Inkjet Printer
Litig. 716 F.3d 1173, 1178 (9th Cir. 2013). Further, because it relies on incentives
that promote efficiency and yokes together the interests of the class and its
attorneys, the percentage of the fund method has been described as “self-
regulatory” and “self-policing” and frees the courts to do other business. Coffee,
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John C. Jr., Understanding the Plaintiff’s Attorney: The Implications of Economic
Theory for Private Enforcement of Law through Class and Derivative Actions, 86
Colum. L. Rev. 669, 724-25 (1986).
Because of the burdens of the lodestar approach and the benefits of the
percentage of the fund method, about 90% of all courts employ the percentage of
the fund method when awarding fees from a common fund.5 The practice is the
predominant in the Ninth Circuit as well. See Omnivision, 559 F. Supp. 2d 1036,
1046 (N.D. Cal. 2009) (“Use of the percentage method in common fund cases
appears to be dominant”); Vizcaino, 209 F.3d at 1050 (“the primary basis of the fee
award remains the percentage method.) Elliot v. Rolling Frito-Lay 2014 U.S. Dist.
LEXIS at * 25 (S.D. Cal. 2014) (percentage of the common fund method is the
“typical” method of awarding fees in the Ninth Circuit).
For these reasons, Class Counsel submits that the Court should use the
standard percentage-of-the-fund method to determine the award of attorney’s fees
in this action.6
5 Eisenberg & Miller, Attorneys’ Fees and Expenses in Class Action Settlements, p.20 (from
2003 to 2008 only 9.6% of courts in common fund cases awarded fees using lodestar method).
6 The Ninth Circuit has suggested that in some cases, primarily “mega-fund” cases where the size
of the fund is simply the product of an extremely large class and a percentage of the fund might
result in a windfall for the attorneys at the expense of the class, the trial court may exercise its
option to cross-check the fee request by applying the lodestar method in order to arrive at a
reasonable fee. Bluetooth 652 F.3d at 943-3; Vizcaino, 290 F. 3d at 1047-8. However, the
lodestar cross check is optional and need not be performed where plaintiff's counsel achieves a
significant result through an early settlement. See Glass v. UBS Financial Services, Inc. 2007
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3. Class Counsel’s Fee Request is Abundantly Fair and Reasonable under
the Percentage-of-the-Fund Method.
In common fund cases, the Ninth Circuit has suggested a “benchmark” of
25% as a starting point for analysis. Vizcaino, 290 F.3d at 1048. However, courts
in the Ninth Circuit frequently award a percentage of the fund that is higher than
the 25% benchmark. Omnivision, 559 F.Supp. 2d at 1047. In fact, the fee awarded
exceeds the 25% benchmark in most common fund cases. See Lopez v.
Youngblood, 2011 U.S. Dist. LEXIS 99289, at *12 (E.D. Cal. Sept. 1, 2011) (fees
in common fund cases average 32% or 34.64%); Omnivision, supra at 1047 (“This
court's review of recent reported cases discloses that nearly all common fund
awards range around 30%”); In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379
(9th Cir. 1995) (affirming fee award equal to 33% of fund); Romero v. Producers
Diary Foods, Inc., 2007 U.S. Dist. LEXIS 86270 ("Empirical studies show that,
U.S. Dist. LEXIS 8476, (N.D. Cal. 2007) (declining to conduct a lodestar cross check, and
approving a request for fees based on the percentage of recovery method); Rankin v. American
Greetings, Inc., 2011 U.S. Dist. LEXIS 72250 *4 (E.D. Cal. July 5, 2011) (lodestar cross check
not necessary); Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, at *31 (E.D. Cal. Sept. 1,
2011) (“A lodestar cross-check is not required in this circuit, and in a case such as this [all cash
fund], is not a useful reference point.”); Craft v County of San Bernadino, 624 F. Supp. 2d 1113,
1122 (C.D. Cal. 2008) (“A lodestar cross check is not required in this circuit.”) In re
Manufacturers Life Insurance, 1009 U.S. Dist. LEXIS 23217 at *34 (S.D. Cal. 1998) (lodestar
analysis was unnecessary and attorney's fee was reasonable solely on percentage-recovery
method because “the touchstone is whether the fee is "reasonable under the circumstances.")
Because Class Counsel is seeking their fee under the percentage-of-the-fund method, and in view
of the result achieved and other attendant factors, submit that a lodestar “cross-check” is
unwarranted. Class Counsel is of course prepared to submit their lodestar for cross-check if
requested.
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regardless whether the percentage method or the lodestar method is used, fee
awards in class actions average around one-third of the recovery" citing 4
Newberg, NEWBERG ON CLASS ACTIONS § 14.6 (4th ed. 2007)); In re Mego,
213 F. 3d 457, 463 (9th Cir. 2000) (affirming award of one-third of common fund);
Vandervort v. Balboa Capital Corp. 8 F. Supp. 3d 1200, 1210 (C.D. Cal. 2014)
(awarding 1/3 of fund in TCPA class action); Bellows v. NCO Financial Sys. Inc.,
2009 U.S. Dist. LEXIS 273 at *4-5 (S.D. Cal. Jan. 5, 2009) (awarding 31.6% of
TCPA settlement fund).
This is not a fee shifting case-- the TCPA has no attorney’s fees provision.
Nor is this a “mega-fund” case where the size of the settlement fund is merely a
function of the size of the class; there are only about 16,000 class members here.7
This is not a case where awarding fees of 1/3 of the fund will unfairly tax or erode
the relief to class members. Quite to the contrary, the class members are getting
outstanding relief better than what they could have achieved had they hired
individual lawyers to prosecute their individual cases.
When awarding a fee from the fund, the Ninth Circuit has suggested a non-
exclusive list of factors to consider. The first and most important factor is the
results achieved. The Court may also consider: the risks of litigation; the skill
7Although “mega-fund” has no precise definition, it is generally considered to be in excess of
$100 million. In re AT&T Mobility Wireless Data Services Sales Tax Litig., 792 F. Supp. 2d
1028, 1032 (N.D. Ill. 2011).
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required and the quality of work; the contingent nature of the fee; the burdens
carried by class counsel; and the awards made in similar cases. Vizcaino, supra at
1048-50. All of these factors overwhelmingly support the requested 1/3 fee here.
•The Result Achieved Here is Exceptional.
The settlement requires AT&T to pay $45 million into a non-reversionary
common fund out of which class member claimants will receive their pro rata
share of cash payment. No money will revert to the Defendant.
Importantly, class members will be compensated on a per call basis, not a per
person basis like many other TCPA settlements. This is important because the
TCPA contemplates statutory damages on a per call basis; the more calls received,
the larger the damages warranted.
The per call settlement achieved in this case is spectacular, as depicted in
this table below comparing this case to the largest TCPA settlements against major
company defendants:
CASE # of CLASS
MEMBERS
SETTLEMENT
AMOUNT
AVG. RECOVERY
PER CLASS
MEMBER
Hageman v. ATTM 16,000 $45,000,000 $15,000-$17,0008
Capital One9 16 million $75,500,000 $20-$40
HSBC10 10 million $40,000,000 $20-$40
Chase Bank11 7 million $34,000,000 $20-$40
8 Based on current claims filing information, claim deadline is Jan. 19, 2015. 9 In re Capital One TCPA Litigation, 12-cv-10064 (MDL No. 2416) (N.D. Ill. Doc.#951) 10 Wilkins v. HSBC 14-cv-190 (N.D. Ill, 2014 pending) 11 Connor v. JPMorgan Chase, et al, 10-cv-1284 (S.D. Cal.)
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Bank of America12 7 million $32,000,000 $22-$45
Sallie Mae13 8 million $24,000,000 $110
Wells Fargo14 5.8 million $17,100,000 $84
Discover15 8 million $8,700,000 $47
In addition to the outstanding montetary relief, ATTM has agreed to
continue to implement procedures to reduce the prospects that it might call cellular
telephone numbers through the use of an automated dialing system in the absence
of consent. Essentially, ATTM has taken action to ensure that the calls which
plagued the class members here do not occur again.
As set forth, the results achieved is the most important factor in considering
whether a fee is reasonable. Here, the results for the class are objectively
outstanding and better frankly than any of the individual class members could have
achieved on their own. Class Counsel’s requested 1/3 fee is warranted in view of
the exceptional result achieved for the class.
•The Risk of Litigation was Substantial.
There are substantial risks in high-stakes litigation such as this. At the time
this case was filed, ATTM and its defense counsel in this case, Mayer Brown, had
just been the victors at the United States Supreme Court in one of the worst set-
12 Rose v. Bank of America, 2014 U.S. Dist Lexis 121641 ((N.D. Cal. Aug.29, 2014);11-cv-
02390 (N.D. Cal. Dkt. 59) 13 Arthur v. Sallie Mae, 10-cv-00198 (W.D. Wa. 2012) 14 Malta v FHLMA, et al, 10-cv-01290 (S.D. Cal.) 15 Steinfeld v. Discover Fin. Svcs. 12-cv-01118 (N.D. Cal.)
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backs for consumers in history. AT&T Mobility v. Concepcion 563 U.S. 321
(2011) (upholding ban on class arbitration in consumer cases).
At the time this case was filed, courts had refused to certify numerous TCPA
class action cases, or dismissed them, or de-certified them after initial certification.
See, e.g. Southwell v. Mortgage Investors Corp. of Ohio, 2014 U.S. Dist. LEXIS
112362 (W.D. Wash. Aug. 12, 2014) (denying motion for class certification);
Balschmiter v. TD Auto Fin. LLC, 2014 U.S. Dist. LEXIS 163771 (E.D. Wis. Nov.
20, 2014); Jamison v. First Credit Servs., Inc., 2013 WL 1248306, at *15-17 (N.D.
Ill. Mar. 28, 2013) (upholding denial of certification of TCPA class). Separately,
Courts across the country were also routinely “staying” TCPA cases on the basis
that the FCC had “primary jurisdiction” to interpret certain provision of the TCPA.
At the time this case was filed, there were only two known plaintiffs, and
only one of them lasted the duration of the case. A single plaintiff creates a risk of
dismissal or failure to achieve certification due to possible lack of the typicality
and adequacy requirement of Rule 23. See, e.g. Labou v. Cellco Partnership dba
Verizon, 2014 WL 824225 (E.D. Cal. March 3, 2014).
At the outset, Class Counsel had no idea whether there would be an
ascertainable class, much less what the scope would be. The only thing Class
Counsel knew when they filed this case was that their adversaries were formidable
and that this case would by no means be easy. In the face of these risks, the case
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was filed and prosecuted diligently. Over 40,000 pages of documents and
numerous spreadsheets were produced, both parties had their experts prepare
reports based on the class data available, the parties were deposed, plaintiff’s
expert was deposed and many hours were expended before Class Counsel could
confirm that this was a case where class certification might be achieved if the case
were not dismissed or stayed.
As in all class cases though, certification is only the first step of what can be
much more litigation. Interlocutory appeals are common in class action cases, and
the class and class counsel remain at risk during the lengthy appellate time period.
Even if Plaintiff prevailed on interlocutory appeal, the case is not over. A trial
result is not assured, and if tried, the losing party is almost certainly going to
appeal. Such are the risk in any litigation, but in a national class action such as this
one concerning a statute interpreted by courts and the FCC in varying degrees of
non-conformity, with a moneyed Defendant with a proven record of “making its
point”, the ordinary risk are greatly magnified. See Fulford v. Logitech, Inc., 2010
U.S. Dist. LEXIS 29042, at *8 (N.D. Cal. Mar. 5, 2010) (“[L]iability and damages
issues—and the outcome of any appeals that would likely follow if the Class were
successful at trial—present substantial risks and delays for class member
recovery.”). The risks which Class Counsel undertook in prosecuting this case
were real and substantial, and warrant the requested 1/3 contingency fee.
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•The Prosecution of this Case Required Skill and Hard Work.
The TCPA is a complex statute, not necessarily for what it says, but for what
it means in an era of rapidly changing technology. Courts and parties cannot agree
on the meaning of “automatic telephone dialing system” as used in the TCPA and
have turned to the FCC for interpretation. See, e.g., Marks v. Crunch San Diego,
LLC, 2014 U.S. Dist. LEXIS 152923 (Oct. 23, 2014) at *6-13 (parsing the meaning
of “automatic telephone dialing system” in granting defendant’s motion for
summary judgment because defendant’s web-based platform required “human
curation and intervention”). Among other arcane issues and statutory
interpretations, parties regularly dispute whether “robo-calls” have to connect or
only be attempted to give rise to TCPA liability. See, e.g., Satterfield v. Simon &
Schuster, 569 F.3d 946, 953-54 (9th Cir. 2009) (holding that “to make any call” in
§227(b)(1)(A) means “to communicate with or try to get into communication with
a person by telephone.”)
The “prosecution and management of a complex national class action
requires unique legal skills and abilities.” Omnivision, 559 F. Supp. 2d at 1047
(citation omitted). As the Court is aware, Mr. Heenan is a small firm practitioner.
In order to prosecute and manage this case properly, Mr. Heenan involved lawyers
he knew and trusted through work on previous consumer cases. Heenan Decl., ¶ 7.
Specifically, Mr. Bingham is a skilled class action litigator who has worked with
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Mr. Heenan in the past to achieve successful results for consumers. See, e.g., Cole
v. Portfolio Recovery Associates, LLC, CV-08-36-GF-RKS (multi-million
settlement on behalf of victims of debt collection misconduct). Mr. Keogh is one of
the nation’s foremost TCPA and consumer lawyers. He has prosecuted numerous
TCPA cases on an individual basis and as class actions since early 2002, has
presented at numerous national and local conferences on the TCPA, and has met
with the FCC on several occasions to discuss TCPA interpretation by the agency.
See Keogh Decl.
The result of counsels’ efforts is this record-setting settlement. The
prosecution of this case required both skill and hard work, and in view of the
success achieved, demonstrates the reasonableness of the 1/3 fee request.
•The Contingent Nature of the Fee and the Burdens Carried by Class
Counsel Warrants the Requested 1/3 Fee.
For any Plaintiff’s firm to bring a national class action against one of
America’s largest companies requires substantial commitment of time and
resources in the face of significant risks of loss and/or delay. In this case, Class
Counsel is comprised of three small firms with an aggregate total of seven lawyers,
only three of whom worked on the case to any significant extent. (By comparison,
AT&T’s counsel is a 1,500 lawyer law firm.16)
16 See http://en.wikipedia.org/wiki/Mayer_Brown.
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Firms of small size face even greater risks in litigating large class actions
with no guarantee of payment. Boyd v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS
162880 (C.D. Cal. Nov. 18, 2014) (awarding fee award of 1/3 rather than 25%
benchmark, finding heightened risk of small firm representation should be
rewarded with larger percentage fee for good result); see also Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 750 (1987)
(Delaware Valley II) (plurality opinion) (“[C]ontingent litigation may pose greater
risks to a small firm or a solo practitioner because the risk of nonpayment may not
be offset so easily by the presence of paying work. . . .”); Davis v. Mutual Life Ins.
Co., 6 F.3d 367, 382 (6th Cir. 1993) (“[T]he maintenance of comparatively large
pieces of litigation prevents small firms from diversifying risk by taking on
additional clients ...”).
As stated, this is a pure contingent fee case, and one which Class Counsel
took on with high risk concerning not only the result of the case, but also how
much time and money would need to be invested to get a result. Class Counsel
was far into the water before they could see the other side. Because hours and
resources are necessarily limited, the three attorneys involved in this case were
required to defer or decline other work in order to properly prosecute this case.
See Heenan, Bingham and Keogh Declarations. Had the case been lost, they
would have received no compensation for their significant investment of time and
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effort. Conversely, because Class Counsel’s time and effort resulted in an
outstanding result for the class members, they are entitled to their 1/3 contingency
fee.
•Awards made in Similar Cases Confirm the Reasonableness of the
Requested Fee.
An often cited empirical study of attorneys’ fees in common fund cases
found that fees awarded average 32% of fund, and 34.74% when expenses are
added in. Silber and Goodrich, Common Funds and Common Problems: Fee
Objections and Class Counsel's Response, 17 Rev.Litig 525, 534 (1998) cited in
Craft v County of San Bernadino, 624 F. Supp. 2d 1113, 1123-25 (C.D. Cal. 2008).
Silber and Goodrich recommend a one-third fee award and say that this is
appropriate because "the attorneys will receive the best fee when the attorneys
obtain the best recovery for the class. Hence, under the percentage approach, the
class members and the class counsel have the same interest — maximizing the
recovery of the class." Id.; see also In re Mego Fin. Corp., 313 F.3d at 463 (9th Cir.
2000) (affirming fee award of one-third of fund); In re Pacific Enters. Sec. Litig.
47 F. 3d 373, 379 (9th Cir. 1995) (affirming fee award of one-third of fund).
The fee requested in this case is in line with similar awards in other class
action cases, including TCPA class action cases. See, e.g., Vandervort v Balboa
Capital Corp., 8 F. Supp. 3d 1200, 1210 (C.D. Cal. 2014) (fee of 1/3 fund awarded
in TCPA case); Saf-T-Gard v Vanguard Energy Services, LLC., 12 C 3671 (N.D.
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Ill 2014) (awarding 33% of the common fund); Hanley v Fifth Third Bank, 12 C
1612 (N.D. Ill) (Judge Castillo) (Awarding 33% of the common fund); Saf-T-Gard
v Seiko, 09 C 776 (N.D. Ill. 2011) (Judge Bucklo) (Awarding 33% of the common
fund); Hinman v. M and M Rental Center Inc., 06-cv- 01156, Doc. 225 (N.D. Ill.
2008) (Awarded 33% of the common fund plus costs); CE Design, Ltd. v. Cy’s
Crabhouse, 07 C 5456 (N.D. Ill. Sept. 22, 2010) (Judge Kennelly) (awarded 33%
of the common fund plus costs. Doc. 373); Holtzman v. CCH, 07 C 7033 (N.D. Ill.
Sept. 30, 2009) (Judge Nordberg) (awarded 33% of the common fund plus costs.
Doc. 33); CE Design, Ltd. v. Exterior Systems, Inc., 07 C 66 (N.D. Ill. Dec. 6,
2007) (Judge Darrah) (awarded 33% of the common fund plus costs. Doc. 32-2;
Locklear Electric, Inc. v. Norma L. Lay, 09 C 0531 (S.D. Ill.) (Reagan, J.)
(Awarded 33% of the common fund plus costs. Doc. 67); Accounting Outsourcing,
LLC. v Verizon Wireless, 2007 U.S. Dist. LEXIS 97153 (M.D. La. 2007) (Awarded
$2,314, 328, which is in excess of 35% of the common fund, plus costs); Nicholson
v Hooters of Augusta, Inc., 95-RCCV-616 (Richmond County, Ga. April 25, 2001)
(Awarded $3,931,035.62, which was 33% of the common fund plus costs).
Class Counsel has secured a spectacular result here that dwarfs all other
TCPA settlements. In view of the outstanding result achieved as well as every
other factor the Ninth Circuit considers relevant, Class Counsel has earned and is
entitled to the requested 1/3 fee. See In re Bluetooth Headset Prod. Liab.
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20
Litigation, 654 F.3d 935, 942 (9th Cir. 2011) ("[f]oremost among these
considerations [in awarding fees], however, is the benefit obtained for the class.")
REQUEST FOR INCENTIVE AWARD
On behalf of the named Plaintiff Joel Hageman, Class Counsel requests an
incentive award of $20,000 be paid from the fund to Mr. Hageman. The requested
award is about one-half of one percent (.05556%) of the fund.
Incentive awards to the named plaintiff or plaintiffs are fairly typical in class
action cases and are intended to compensate class representatives for work done on
behalf of the class, to make up for financial or reputational risk undertaken in
bringing the action, and, sometimes, to recognize their willingness to act as a
private attorney general. See Albert Conte and Herbert B. Newberg, 4 NEWBERG
ON CLASS ACTIONS, §11.38 (4th ed.) Awards are generally sought after a
settlement or verdict has been achieved. Rodriguez v West Publishing 563 F.3d
948, 958 (9th Cir. 2009). Courts use various factors to determine the amount of the
incentive award, including “the actions the plaintiff has taken to protect the
interests of the class, the degree to which the class has benefitted from those
actions, ... [and] the amount of time and effort the plaintiff expended in pursuing
the litigation ...." Louie v. Kaiser Foundation Health Plan, Inc., 2008 U.S. Dist.
LEXIS 78314 at *18 (awarding $25,000 incentive award) (internal citations
omitted); Glass, 2007 U.S. Dist. LEXIS 8476 ($25,000 incentive award).
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21
Here, Mr. Hageman has diligently prosecuted this action on behalf of not
just himself, but the class. When deposed, he testified:
Q. Did you think you'd be better off by bringing it as a class
action individually, that you would individually be
better off?
A. No. I mean, I just brought it because I know
by myself that it's frustrating to get these calls, and
there are other people out there that are getting these
calls. And it is what it is. You know, I don't know if
I'll be better or worse.
(Hageman Depo. at 18-19.) Mr. Hageman could have simply prosecuted his own
TCPA case. Instead, he chose to fight for not only his own rights but the absent
class members as well. The requested incentive award is justified in view of Mr.
Hageman’s diligence and the outstanding results obtained.
CONCLUSION
For the foregoing reasons, Class Counsel respectfully request that the Court
grant Plaintiffs’ application for an award from the settlement fund of attorney’s
fees in the amount of $15,000,000 and service award to Mr. Hageman in the
amount of $20,000. The requested fees and incentive award are incorporated into
the proposed order for final approval filed contemporaneously with this
Application.
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22
DATED this 5th day of January, 2015.
Respectfully Submitted,
/s/ John Heenan
John Heenan
BISHOP & HEENAN
1631 Zimmerman Trail
Billings, MT 59102
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1
John Heenan
BISHOP & HEENAN
1631 Zimmerman Trail
Billings, MT 59102
T: (406) 839-9091
F: (406) 839-9092
Attorney for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JOEL HAGEMAN, on behalf of ) Case No. CV-13-50-DLC-RWA
himself and all others similarly )
situated, )
)
Plaintiff, )
) DECLARATION OF JOHN
v. ) HEENAN
)
AT&T MOBILITY LLC, )
)
Defendant. )
I, John Heenan, declare under penalty of perjury that the following
statements are true:
1. I am an attorney licensed to practice law in the State of Montana and
am a member in good standing of the bar of the State of Montana. I make this
Declaration based upon my personal knowledge.
2. I was admitted to practice law in Montana in 2003. I am rated “AV”
according to Martindale-Hubbell.
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2
3. My practice includes the representation of consumers. I have
developed a statewide consumer law practice and have represented consumers
from various regions of the State of Montana. I am one of a limited number of
attorneys in Montana prosecuting consumer class action cases. I am one of the
only private attorneys in Montana who is a member of the National Association of
Consumer Advocates (NACA), a nationwide group of consumer lawyers. As part
of the development of my consumer law practice, I have attended national
continuing legal education seminars on consumer law. I have spoken about
consumer law issues throughout Montana including at the Montana Bar’s Annual
Convention (twice), the Montana Trial Lawyers Association’s annual seminar
(three times), the Federal Bar Association, the Montana Bankruptcy law
conference, and the National Business Institute (twice). I have also spoken about
consumer law issues at the NACA annual conference and to the California Bar
Association.
4. I, along with Keith Keogh and Ben Bingham, are the attorneys for
Joel Hageman, the Plaintiff and class representative in this case.
5. This case was brought under the federal Telephone Consumer
Protection Act (“TCPA”) which prohibits what are generally referred to as “robo-
calls” made to cellphones of consumers unless they have given their prior express
consent to the calls. The case was brought as a class action because it was
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3
perceived that what was happening to Mr. Hageman was happening to others as
well. What was happening to Mr. Hageman was repeated calls to his cellphone
from AT&T Mobility (“ATTM”) or debt collectors attempting to collect for
ATTM on accounts that were not Mr. Hageman’s accounts. Mr. Hageman was not
and has never been an ATTM customer. It is my experience that there are very
few, if any, private attorneys in Montana willing or able to take on and represent
consumers in cases such as this action.
6. I am a small firm practitioner with no associates or paralegal support.
I do all of my own research, write all of my own briefs, and generally do
everything required to prosecute a case by myself. Because of my limited time, I
frequently associate with other attorneys in cases.
7. I associated other counsel in this case, Keith Keogh and Ben
Bingham. Mr. Bingham and I have had other class action settlements approved as
fair, reasonable and adequate by federal courts in Montana, and we have both been
involved in other class action cases in other states. See, e.g., Cole v. Portfolio
Recovery Associates, LLC, CV-08-36-GF-RKS (multi-million settlement on behalf
of victims of debt collection misconduct). Mr. Keogh is one of the nation’s
leading experts in TCPA cases and other areas of consumer law. He is and has
been involved in some of the biggest TCPA cases in the country. Together we
performed the upfront due diligence to initiate the case, and agreed to jointly
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4
prosecute it and divide the work amongst us evenly. To that end, we conducted
extensive discovery both formally and informally over many months. ATTM
produced to us thousands of pages of documents and numerous different
spreadsheets all of which involved hundreds of thousands of calls to cellphones.
We had to retain at our own expense an expert, Robert Biggerstaff of South
Carolina to assist us with the interpretation of the data produced by ATTM.
Eventually, Mr. Biggerstaff produced a lengthy report summarizing his expected
testimony and the basis for it, and he was deposed by ATTM attorneys in South
Carolina. ATTM attorneys also came to Montana to depose Mr. Hageman, and we
deposed ATTM’s corporate representative in Chicago. Through this process of
discovery we were able to distill our potential class down to what we thought
would be an almost certainly certifiable class. ATTM, however, was just as certain
that our class could not be certified, and retained its own expert to assist it with its
effort to fight certification.
8. After class discovery had closed and the parties had time to have their
own experts analyze the reports and basis of the competing experts opinions, the
parties agreed to attempt to settle the case by mediation. The parties selected as a
mediator the Honorable Morton Denlow, a former federal Magistrate Judge from
the Northern District of Illinois, now a mediator for JAMS. Judge Denlow was
Case 1:13-cv-00050-DLC-RWA Document 60-1 Filed 01/05/15 Page 4 of 7
5
chosen in part because he had prior experience mediating TCPA cases and so he
had knowledge of the statute itself and the case law developing under the TCPA.
9. Prior to the mediation the parties exchanged extensive mediation
position statements and data to support their respective positions. Judge Denlow
required that Plaintiff make a pre-mediation demand and that Defendant respond to
it. This was done and each side entered the meditation well prepared. The
mediation occurred on June 24, 2014 in Chicago and resulted in a signed term
sheet memorializing the major points of agreement. Only after the relief to the
class and all other material aspects of the settlement had been agreed did the
parties discuss the resolution of attorney’s fees and class representative incentive
awards. At the mediation, and with the assistance of Judge Denlow, we agreed to
accept, and ATTM agreed that it would not oppose, an award of attorney’s fees
equal to 1/3 the settlement fund ($15 million) and an award of $20,000 to Mr.
Hageman as an incentive award for serving as class representative. Based on our
experience and knowledge of claim rates in consumer class cases in general and of
TCPA class cases in particular, it was Class Counsel’s estimation that class
members who filed claims in this case would still receive an extraordinary
payment and fare better than in an individual action, even with the 1/3 fee award
considered. Stated differently, we estimated that even with the 1/3 fee awarded,
Case 1:13-cv-00050-DLC-RWA Document 60-1 Filed 01/05/15 Page 5 of 7
6
claimants would net a larger amount from this settlement than they would in an
individual case, making this essentially a “fee free” settlement to them.
10. Following the settlement conference and over a period of three
months, the parties continued to negotiate some of the finer points of the
settlement, with the culmination being that a Settlement Agreement was signed on
September 26, 2014 and filed with the Court on September 30, 2014.
11. We are incredibly proud of this settlement. While it is one of the
highest TCPA settlement in terms of dollars ($45 million), it is one of the smallest
in terms of number of class members. Therefore, the settlement fund we created
will result in significant payments to class members who file claims. Pursuant to
the settlement agreement, class members are entitled to recover up to $500 for each
call they received, and will likely do so. Even after attorneys’ fees and other costs
incurred in creating and administering the fund are deducted, class members filing
claims can expect to recover the full $500 per call or very close to it. Thus, the
class members who filed claims will recover more than they could reasonably
expect to recover if they hired an attorney to prosecute their individual case. In the
context of class actions which not infrequently result in coupons or marginal
monetary relief, the settlement we have achieved here is outstanding. As our fee
application documents, courts have approved TCPA settlements where class
members get $20-$40 total regardless of the number of calls they received.
Case 1:13-cv-00050-DLC-RWA Document 60-1 Filed 01/05/15 Page 6 of 7
7
12. We all believe that this is a great settlement, one of the best we have
ever been involved with or even know of, and one that will provide consumers a
substantial benefits, more than they could expect to receive if they prosecuted their
TCPA claims on an individual basis.
DATED this 5th day of January, 2015.
Respectfully Submitted,
/s/ John Heenan
John Heenan
BISHOP & HEENAN
1631 Zimmerman Trail
Billings, MT 59102
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John Heenan
BISHOP & HEENAN
1631 Zimmerman Trail
Billings, MT 59102
T: (406) 839-9091
F: (406) 839-9092
Attorney for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JOEL HAGEMAN, on behalf of ) Case No. CV-13-50-DLC-RWA
himself and all others similarly )
situated, )
)
Plaintiff, )
) DECLARATION OF KEITH
v. ) KEOGH
)
AT&T MOBILITY LLC, )
)
Defendant. )
Keith J. Keogh declares under penalty of perjury, that the following
statements are true:
1. Keogh Law, Ltd. consists of four attorneys and focuses on consumer
protection cases for both individuals and class actions. I am a shareholder of the
firm and member of the bars of the United States Court of Appeals for the Seventh
Circuit, Eastern District of Wisconsin, Northern District of Illinois, Southern
Case 1:13-cv-00050-DLC-RWA Document 60-3 Filed 01/05/15 Page 1 of 15
2
District of Indiana, District of Colorado and Illinois State Bar as well as several bar
associations and the National Association of Consumer Advocates.
2. I was lead counsel in the following class settlements, many of which
involve claims under the Telephone Consumer Protection Act (“TCPA”): See
Lopera v RMS, 12-c-9649 (N.D. Ill. Judge Wood), Kubacki v Peapod, 13-cv-729
(N.D. Ill. Judge Mason); Wojcik v. Buffalo Bills, Inc., 8:12 CV 2414-SDM-
TBM (M.D. Fl. Judge Merryday) (TCPA) l Cummings v Sallie Mae, 12 C-9984
(N.D. Ill. Judge Gottschall) (TCPA) (co-lead); Brian J. Wanca, J.D., P.C. v. L.A.
Fitness International, LLC, Case No. 11-CV-4131 (Lake County, Il. Judge
Berrones) (TCPA); Osada v. Experian Info. Solutions, Inc., 2012 U.S. Dist. LEXIS
42330 (N.D. Ill. Mar. 28, 2012) (FCRA class); Saf-T-Gard International, Inc. v.
Vanguard Energy Services, L.L.C., et al, 12-cv-3671 (N.D. Ill. 2013 Judge
Gottschall) (TCPA); Saf-T-Gard v TSI, 10-c-7671, (N.D. Ill. Judge Rowland)
(TCPA); Cain v Consumer Portfolio Services, Inc. 10-cv-02697 (N.D. Ill. Judge
Keys) (TCPA); Iverson v Rick Levin & Associates, 08 CH 42955 Circuit Court
Cook County (Judge Cohen) (TCPA); Saf-T-Gard v Seiko, 09 C 776 (N.D. Ill.
Judge Bucklo) (TCPA); Jones v. Furniture Bargains, LLC, 09 C 1070 (N.D. Ill)
(FLSA collective action); Saf-T-Gard v Metrolift, 07 CH 1266 Circuit Court Cook
County (Judge Rochford) (Co-Lead) (TCPA); Bilek v Countrywide, 08 C 498
(N.D. Ill. Judge Gottschell); Pacer v Rochenback, 07 C 5173 (N.D. Ill. Judge
Case 1:13-cv-00050-DLC-RWA Document 60-3 Filed 01/05/15 Page 2 of 15
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Cole); Overlord Enterprises v. Wheaton Winfield Dental Associates, 04 CH 01613,
Circuit Court Cook County (Judge McGann) (TCPA); Whiting v SunGard, 03 CH
21135, Circuit Court Cook County (Judge McGann) (TCPA); Whiting v.
Golndustry,03 CH 21136, Circuit Court Cook County (Judge McGann) (TCPA).
3. I was the attorney primarily responsible for the following class
settlements: Wollert v. Client Services, 2000 U.S. Dist. LEXIS 6485 (N.D. Ill.
2000); Rentas v. Vacation Break USA, 98 CH 2782, Circuit Court of Cook County
(Judge Billik); McDonald v. Washington Mutual Bank, supra; Wright v. Bank One
Credit Corp., 99 C 7124 (N.D. Ill. Judge Guzman); Arriaga v. Columbia
Mortgage, 01 C 2509 (N.D. Ill. Judge Lindberg); Frazier v. Provident Mortgage,
00 C 5464 (N.D. Ill. Judge Coar); Largosa v. Universal Lenders, 99 C 5049 (N.D.
Ill. Judge Leinenweber); Arriaga v. GNMortgage, (N.D. Ill. Judge Holderman);
Williams v. Mercantile Mortgage, 00 C 6441 (N.D. Ill. Judge Pallmeyer); Reid v.
First American Title, 00 C 4000 (N.D. Ill. Magistrate Judge Ashman); Fabricant v.
Old Kent, 99 C 6846 (N.D. Ill. Magistrate Judge Bobrick); Mendelovits v. Sears,
99 C 4730 (N.D. Ill. Magistrate Judge Brown); Leon v. Washington Mutual, 01 C
1645 (N.D. Ill. Judge Alesia).
4. The individual class members’ recovery in some of these settlements
was substantial. For example, in one of the cases against a major bank the class
members’ recovery was 100% of their actual damages resulting in a payout of
Case 1:13-cv-00050-DLC-RWA Document 60-3 Filed 01/05/15 Page 3 of 15
4
$l,000 to $9,000 per class member. In another case against a major lender
regarding mortgage servicing responses, each class member who submitted a claim
form received $1,431. McDonald v. Washington Mutual Bank.
5. In addition, to the above settlements, I was appointed class counsel in
Galvan v. NCO Fin. Sys., 2012 U.S. Dist. LEXIS 128592 (N.D. Ill. 2012); Osada
v. Experian Info. Solutions, Inc., 2012 U.S. Dist. LEXIS 42330 (N.D. Ill. Mar. 28,
2012) (FCRA class); Pesce v First Credit Services, 11-cv-01379 (N.D. Ill.
December 19 2011) (TCPA Class); Smith v Greytsone Alliance, 09 CV 5585 (N.D.
Ill. 2010); Cicilline v. Jewel Food Stores, Inc., 542 F.Supp.2d 831 (N.D.Ill.
2008)(Co-Lead Counsel for FACTA class); Harris v. Best Buy Co., 07 C
2559,2008 U.S. Dist. LEXIS 22166 (N.D.Ill. March 20, 2008)( FACTA class);
Matthews v. United Retail, Inc., 248 F.R.D. 210 (N.D.Ill. 2008)( FACTA class);
Redmon v. Uncle Julio's, Inc., 249 F.R.D. 290 (N.D.Ill. 2008)( FACTA class);
Harris v. Circuit City Stores, Inc., 2008 U.S. Dist. LEXIS 12596,2008 WL 400862
(N.D. Ill. 2008)( FACTA class); Pacer v Rockenbach Chevrolet Sales, Inc., 07 C
5173 (N.D. Ill. 2008)( FACTA class).
6. Some reported cases of mine involving consumer protection include:
Townsel v. DISH Network L.L.C., 668 F.3d 967 (7th Cir. Ill. 2012); Catalan v.
GMAC Mortgage Corp., No. 09-2182 (7th Cir. 2011) ; Gburek v Litton Loan, 614
F.3d 380 (7th Cir. 2010); Sawyer v. Ensurance Insurance Services consolidated
Case 1:13-cv-00050-DLC-RWA Document 60-3 Filed 01/05/15 Page 4 of 15
5
with Killingsworth v. HSBC Bank Nev., NA., 507 F3d 614, 617 (7th Cir. 2007),
Echevarria et al. v. Chicago Title and Trust Co., 256 F3d 623 (7th Cir. 2001);
Demitro v. GMAC, 388 Ill. App. 3d 15, 16 (lst Dist. 2009); Hill v. St. Paul Bank,
329 Ill. App. 3d 7051, 1768 N.E.2d 322 (lst Dist. 2002); In re Mercedes-Benz Tele
Aid Contract Litig., 2009 U.S. Dist. LEXIS 35595 (D.N.J. 2009); Catalan v. RBC
Mortg. Co., 2009 U.S. Dist. LEXIS 26963 (N.D. Ill. 2009); Elkins v. Equifax, Inc.,
2009 U.S. Dist. LEXIS 18522 (N.D. Ill. 2009); Harris v. DirecTV Group, Inc.,
2008 U.S. Dist. LEXIS 8240 (N.D. Ill. 2008); In re TJX Cos., Inc., Fair &
Accurate Credit Transactions Act (FACTA) Litig., 2008 U.S. Dist. LEXIS 38258
(D. Kan. 2008); Martin v. Wal- Mart Stores, Inc., 2007 U.S. Dist. LEXIS 89715
(N.D. Ill. 2007); Elkins v. Ocwen Fed. Sav. Bank Experian Info. Solutions, Inc.,
2007 U.S. Dist. LEXIS 84556 (N.D. Ill. 2007); Harris v. Wal-Mart Stores, Inc.,
2007 U.S. Dist. LEXIS 76012 (N.D. Ill. 2007); Stegvilas v. Evergreen Motors,
Inc., 2007 U.S. Dist. LEXIS 35303 (N.D. Ill. 2007); Cook v. River Oaks Hyundai,
Inc., 2006 U.S. Dist. LEXIS 21646 (N. D. Ill. 2006); Gonzalez v. W. Suburban
Imps., Inc., 411 F. Supp. 2d 970 (N.D. Ill. 2006); Eromon v. GrandAuto Sales,
Inc., 333 F. Supp. 2d 702 (N.D. Ill. 2004); Williams v. Precision Recovery, Inc.,
2004 U.S. Dist. LEXIS 6190 (N.D. Ill. 2004); Doe v. Templeton, 2003 U.S. Dist.
LEXIS 24471 (N.D. Ill. 2003); Ayala v. Sonnenschein Fin. Servs., 2003 U.S. Dist.
LEXIS 20148 (N.D. Ill. 2003); Gallegos v. Rizza Chevrolet, Inc., 2003 U.S. Dist.
Case 1:13-cv-00050-DLC-RWA Document 60-3 Filed 01/05/15 Page 5 of 15
6
LEXIS 18060 (N.D. Ill. 2003); Szwebel v. Pap’s Auto Sales, Inc., 2003 U.S. Dist.
LEXIS 13044 (N.D. Ill. 2003); Johnstone v. Bank of America, 173 F. Supp.2d 809
(N.D. Ill. 2001); Leon v. Washington Mutual Bank, 164 F. Supp.2d 1034 (N.D. Ill.
2001); Ploog v. HomeSide Lending, 2001 WL 987889 (N.D. Ill. 2001); Christakos
v. Intercounty Title, 196 F.R.D. 496 (N.D. Ill. 2000); Batten v. Bank One, 2000
WL 1364408 (N.D. Ill. 2000); McDonald v. Washington Mutual Bank, 2000 WL
875416 (N.D. Ill. 2000); and Williamson v. Advanta Mtge Corp., 1999 U.S. Dist.
LEXIS 16374 (N.D. Ill. 1999). The Christakos case significantly broadened title
and mortgage companies’ liability under Real Estate Settlement Procedures Act
(“RESPA”) and McDonald is the first reported decision to certify a class regarding
mortgage servicing issues under the Cranston-Gonzales Amendment of RESPA.
7. I have argued before the Seventh Circuit, the First District of Illinois
and the MultiLitigation Panel in Townsel v. DISH Network L.L.C., 668 F.3d 967
(7th Cir. Ill. 2012); Catalan v GMACM (7th Cir. 2010); Gburek v Litton Loan
Servicing (7th Cir. 2009); Sawyer v Esurance (7th Cir. 2007), Echevarria, et al. v.
Chicago Title and Trust Co. (7th Cir. 2001); Morris v Bob Watson, (lst. Dist.
2009); Iverson v Gold Coast Motors Inc., (lst. Dist. 2009); Demitro v. GMAC (lst
Dist. 2008), Hill v. St. Paul Bank (lst Dist. 2002), and In Re: Sears, Roebuck &
Company Debt Redemption Agreements Litigation (MDL Docket No. 1389.)
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7
Echevarria was part of a group of several cases that resulted in a nine million
dollar settlement with Chicago Title.
8. My published works include co-authoring and co-editing the 1997
supplement to Lane’s Goldstein Trial Practice Guide and Lane’s Medical
Litigation Guide.
9. I was the presenter at the National Consumer Law Center annual
conference for two sessions on the TCPA. I was a panelist for the December 2013
Strafford CLE Webinar titled TCPA Class Actions: Pursuing or Defending Claims
Over Phone, Text and Fax Solicitations. I was a panelist for the December 2014
Chicago Bar Association Class Action Seminar titled “Class Action Settlements in
the Seventh Circuit: Navigating Turbulent Waters.” I lectured at the 2014 Fair
Debt Collection Training Conference for three sessions on the TCPA. I was a
panelist for the December 2013 Strafford CLE Webinar titled Class Actions for
Telephone and Fax Solicitation and Advertising Post‐Mims. Leveraging TCPI
lectured at the 2014 Fair Debt Collection Training Conference for three sessions on
the TCPA. I was a panelist for the December 2013 Strafford CLE Webinar titled
Class Actions for Telephone and Fax Solicitation and Advertising Post‐Mims.
Leveraging TCPA Developments in Federal Jurisdiction, Class Suitability, and
New Technology. I was the sole presented for the National Association of
Consumer Advocates November 2013 webinar titled Current Telephone Consumer
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8
Protection Act Issues Regarding Cell Phones. I was a presenter for the November
2013 Chicago Bar Association Class Action Committee presentation titled Future
of TCPA Class Actions. I was invited to speak at the Social Security
Administration’s Chicago office in August 2013 on a presentation on identity theft,
which included consumers’ rights under the Fair Credit Reporting Act. I was a
panelist for the May 14, 2013 Chicago Bar Association Class Action Seminar titled
“The Shifting Landscape of Class Litigation” as well as for the March 20, 2013
Strafford CLE webinar titled “Class Actions for Telephone and Fax Solicitation
and Advertising Post‐Mims. Leveraging TCPA Developments in Federal
Jurisdiction, Class Suitability, and New Technology.” I lectured at the June 6,
2013 Consumer Law Committee of the Chicago Bar Association on the topic
“Employment Background Reports under the Fair Credit Reporting Act: Improper
consent forms to failure to provide background report prior to adverse action.” I
also lectured at the 2013 Fair Debt Collection Training Conference for three
sessions on the TCPA, the 2012 National Consumer Law Center annual conference
for a session on the TCPA; the 2012 Fair Debt Collection Training Conference for
a session on the TCPA, I was a panelist for Solutions for Employee Classification
& Wage/Hour Issues at the 2011 Annual Employment Law Conference hosted by
Law Bulletin Seminars; I lectured at the 2011 National Consumer Law Center
conference for a session titled Telephone Consumer Protection Act: Claims, Scope,
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9
Remedies as well as lectured at the same 2011 National Consumer Law Center
conference for a double session titled ABC’s of Class Actions.
10. I have taught Defenses to Foreclosures for Lorman Education
Services, which was approved for CLE credit, in 2008 and 2010 and I was a guest
lecturer on privacy issues at University of Illinois at Urbana-Champaign School of
Law. In March 2010, I was invited to speak by the Student Legal Services Office
of The Graduate School and Kellogg MBA Program at Northwestern University
for its seminar titled: “Financial Survival Guide: Legal Strategies for Graduate
Students During A Period of Economic Uncertainty.”
11. I was selected as an Illinois Super Lawyer in 2014 and an Illinois
Super Lawyer Rising Star each year from 2008 through 2013 and my cases have
been featured in local newspapers such as the Chicago Tribune, Chicago Sun-
Times, The Naperville Sun, Daily Herald and RedEye.
12. In April 2011, Timothy J. Sostrin joined the firm. He is a member in
good standing of the Illinois bar, the U.S. District Court District of Colorado, U.S.
District Court Northern District of Illinois, U.S. District Court Northern and
Southern Districts of Indiana, U.S. District Court Eastern and Western Districts of
Michigan, U.S. District Court Eastern District of Missouri, U.S. District Court
Southern District of Texas and U.S. District Court Eastern and Western Districts of
Wisconsin.
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13. Timothy J. Sostrin has zealously represented consumers in Illinois and
in federal litigation nationwide against creditors, debt collectors, retailers, and
other businesses engaging in unlawful practices. Tim has extensive experience
with consumer claims brought under the Fair Debt Collection Practices Act, The
Telephone Consumer Protection Act, the Fair Credit Reporting Act, the Electronic
Fund Transfer Act, and Illinois law. Some of Tim’s representative cases include:
Osada v. Experian Info. Solutions, Inc., 2012 U.S. Dist. LEXIS 42330 (N.D. Ill.
Mar. 28, 2012) (granting class certification); Galvan v. NCO Financial Systems,
Inc., 2012 U.S. Dist. LEXIS 128592 (N.D. Ill. 2012)(granting class certification);
Saf-T-Gard International, Inc. v. Vanguard Energy Services, LLC, (2012 U.S. Dist.
LEXIS 174222 (N.D. Ill. December 6, 2012)(granting class certification); Jelinek
v. The Kroger Co., 2013 U.S. Dist. LEXIS 53389 (N.D. Ill. 2013)(denying
defendant’s motion to dismiss); Hanson v. Experian Information Solutions, Inc.,
2012 U.S. Dist. LEXIS 11450 (N.D. Ill. January 27, 2012)(denying defendant’s
motion for summary judgment); Warnick v. DISH Network, LLC, 2013 U.S. Dist.
LEXIS 38549 (D. Colo. 2013)(denying defendant’s motion to dismiss);Torres v.
Nat’l Enter. Sys., 2013 U.S. Dist. LEXIS 31238 (N.D. Ill. 2013)(denying
defendant’s motion to dismiss); Griffith v. Consumer Portfolio Serv., 838 F. Supp.
2d 723 (N.D. Ill. 2011)(denying defendant’s motion for summary judgment);
Frydman et al v. Portfolio Recovery Associates, LLC, 2011 U.S. Dist. LEXIS
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69502 (N.D. Ill 2011)(denying defendant’s motion to dismiss); Rosen Family
Chiropractic S.C. v. Chi-Town Pizza, 2013 U.S. Dist. LEXIS 6385 (N.D. Ill.
2013)(denying defendant’s motion to dismiss); Sengenberger v. Credit Control
Services, Inc., 2010 U.S. Dist. LEXIS 43874 (N.D. Ill. May 5, 2010) (granting
summary judgment on TCPA claim);
14. Tim is a member of the National Association of Consumer Advocates
and ISBA. He received his Juris Doctorate, cum laude, from Tulane University
Law School in 2006.
15. In October 2012, Katherine Bowen joined the firm as an associate.
Prior to joining the firm, Kate worked at large corporations and private firms
where she worked on consumer law issues. She developed her knowledge of
consumer protection laws by working at the Illinois Attorney General’s Office and
Legal Aid of Western Missouri.
16. Kate focuses on Illinois and federal litigation against creditors, debt
collectors, retailers, and other businesses engaging in unlawful practices, including
claims under the Fair Debt Collection Practices Act, the Telephone Consumer
Protection Act, the Fair Credit Reporting Act, and Illinois law.
17. Kate is a 2012 graduate of the University of Illinois College of Law,
Champaign, Illinois. During school she was awarded the following honors: Pro
Bono Notation; Rickert Award for Excellence in Advocacy; College of Law Trial
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Team; Student Bar Association Engagement Grant Recipient and was also an
Adjunct LLM Instructor in August 2012.
18. In 2014, Michael Hilicki joined the firm. He has spent nearly all of his
approximately 20-year legal career helping consumers and workers subjected to
unfair and deceptive business practices, and unpaid wage practices. He is
experienced in a variety of consumer and wage-related areas including, but not
limited to, the Fair Debt Collection Practices Act, Truth-in-Lending Act, Fair
Credit Reporting Act, Real Estate Settlement Procedures Act, Illinois Consumer
Fraud & Deceptive Business Practices Act, Telephone Consumer Protection Act,
Fair Labor Standards Act and the Illinois Wage & Hour Law. He is experienced in
all aspects of consumer and wage litigation, including arbitrations, trials and
appeals.
19. Examples of the numerous certified class actions in which Michael
has represented consumers or workers include: Eibert v. Jaburg & Wilk, P.C., 13-
cv-301 (D. Minn.); Brinkley v. Zwicker & Associates, P.C., 13 C 1555 (N.D. Ill.);
Kraskey v. Shapiro & Zielke, LLP, 11-cv-3307 (D. Minn.); Short v. Anastasi &
Associates, P.A., 11-cv-1612 SRN/JSM (D. Minn.); Kimball v. Frederick J. Hanna
& Associates, P.C., 10-cv-130 MJD/JJG (D. Minn.); Murphy v. Capital One Bank,
08 C 801 (N.D. Ill.); In re American Family Mut. Ins. Co. Overtime Pay Litig., 06-
cv-17430 WYD/CBS (D. Colo.); Nettles v. Allstate Ins. Co., 02 CH 14426 (Cir. Ct.
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Cook Cty.); Sanders v. OSI Educ. Servs., Inc., 01 C 2081 (N.D. Ill.); Kort v.
Diversified Collection Servs., Inc., 01 C 0689 (N.D. Ill.); Hamid v. Blatt
Hasenmiller, et al., 00 C 4511 (N.D. Ill.); Durkin v. Equifax Check Servs., Inc., 00
C 4832 (N.D. Ill.); Torres v. Diversified Collection Services, et al., 99-cv-00535
(RL-APR) (N.D. Ind.); Morris v. Trauner Cohen & Thomas, 98 C 3428 (N.D. Ill.),
Mitchell v. Schumann, 97 C 240 (N.D. Ill.); Pandolfi, et al. v. Viking Office Prods.,
Inc., 97 CH 8875 (Cir. Ct. Cook Cty.); Trull v. Microsoft Corp., 97 CH 3140 (Cir.
Ct. Cook Cty.); Deatherage v. Steven T. Rosso, P.A., 97 C 0024 (N.D. Ill.); Young
v. Meyer & Njus, P.A., 96 C 4809 (N.D. Ill.); Newman v. Boehm, Pearlstein &
Bright, Ltd., 96 C 3233 (N.D. Ill.); Holman v. Red River Collections, Inc., 96 C
2302 (N.D. Ill.); Farrell v. Frederick J. Hanna, 96 C 2268 (N.D. Ill.); Blum v.
Fisher and Fisher, 96 C 2194 (N.D. Ill.); Riter v. Moss & Bloomberg, Ltd., 96 C
2001 (N.D. Ill.); Clayton v. Cr Sciences Inc., 96 C 1401 (N.D. Ill.); Thomas v.
MAC/TCS Inc., Ltd., 96 C 1519 (N.D. Ill.); Young v. Bowman, et al., 96 C 1767
(N.D. Ill.); Depcik v. Mid-Continent Agencies, Inc., 96 C 8627 (N.D. Ill.); and
Dumetz v. Alkade, Inc., 96 C 4002 (N.D. Ill.)
20. Michael has lectured on consumer law issues at Upper Iowa
University and the Chicago Bar Association. He is a member of the Trial Bar of
the United States District Court for the Northern District of Illinois, and he has
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represented consumers in state and federal courts around the country on a pro hac
vice basis.
21. Michael’s published work includes "AND THE SURVEY SAYS…"
When Is Evidence of Actual Consumer Confusion Required to Win a Case Under
Section 1692g of the Fair Debt Collection Practices Act in the Seventh Circuit?, 13
Loy. Consumer L. Rev. 224 (2001).
22. By taking this case on a contingency basis and not being paid by the
hour, my firm had an incentive to conduct our efforts efficiently. So too, being
responsible for advancing all expenses, we had an incentive not to expend funds
unnecessarily.
23. I believe that my firm assumed a significant risk of non-payment in
initiating and prosecuting this case given the novelty of the legal issues involved
and the vigorous defense.
24. Based on my experience doing Plaintiff’s consumer protection work,
including the TCPA, I believe this settlement, and the requested fee, to be fair and
reasonable and in the best interest of the class. The settlement provides real
monetary recovery, substantial prospective relief and will act as a strong deterrent
to future conduct by other actors considering activities proscribed by the TCPA.
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Executed at Chicago, Illinois, on January 4, 2015.
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