IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN … · 2020. 1. 30. · Notice was mailed to all of the Class Members. Remarkably, more than 99% of the notices were successfully

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION KEARBY KAISER, on behalf of himself and others similarly situated, Plaintiff, v. CVS PHARMACY, INC., MINUTECLINIC, LLC, and WEST CORPORATION, Defendants.

)))))))))))

Case No. 1:14-cv-03687 Hon. Judge John Z. Lee Hon. Mag. Judge M. David Weisman

PLAINTIFF’S UNOPPOSED MOTION FOR

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Case: 1:14-cv-03687 Document #: 426 Filed: 01/16/20 Page 1 of 28 PageID #:13243

i

TABLE OF CONTENTS Page I. BACKGROUND .................................................................................................................2 II. THE SETTLEMENT MEETS ALL REQUIREMENTS FOR APPROVAL. ................... 4 A. Plaintiff and Class Counsel Have Adequately Represented the Class. ....................5 B. The Settlement Was Negotiated at Arm’s-Length, and There Has Been No Fraud

or Collusion. .............................................................................................................7 C. The Settlement Provides Substantial Relief for the Class. ......................................7 1. Substantial Legal and Factual Risks Weigh in Favor of Settlement. ...........8 2. The Monetary Terms of this Proposed Settlement Fall Favorably within

the Range of Prior TCPA Class Action Settlements. .................................11 3. The Settlement is an Effective and Equitable Means of Distributing Relief

to the Settlement Class. ..............................................................................12 4. The Attorneys’ Fees Raise No Questions About the Settlement. ..............14 D. Notice Complied with Rule 23 and Due Process. ..................................................16 III. CERTIFICATION OF THE SETTLEMENT CLASS IS APPROPRIATE. .....................17 A. The Rule 23(a) Requirements Are Satisfied. .........................................................17 B. The Rule 23(b)(3) Requirements Are Satisfied. ....................................................18 IV. CONCLUSION ..................................................................................................................19


ii

TABLE OF AUTHORITIES Page(s)

Cases

ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) .................................................................................................... 9

Al Haj v. Pfizer Inc., 338 F. Supp. 3d 815 (N.D. Ill. 2018) ........................................................................................ 10

Aliano v. Joe Caputo & Sons - Algonquin, Inc., No. 09-910, 2011 WL 1706061 (N.D. Ill. May 5, 2011) .......................................................... 10

Am. Int'l Grp., Inc. v. ACE INA Holdings, Inc., No. 07-2898, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012) .......................................................... 6

Amchem Prods. v. Windsor, 521 U.S. 591 (1997) .................................................................................................................. 19

Bailey v. CVS Pharmacy, Inc., No. 17-11482, 2018 WL 3866701 (D.N.J. Aug. 14, 2018) ........................................................ 9

Behrens v. Landmark Credit Union, No. 17-101, 2018 WL 3130629 (W.D. Wis. June 26, 2018) ...................................................... 5

Birchmeier v. Caribbean Cruise Line, Inc., 896 F.3d 792 (7th Cir. 2018) .................................................................................................... 15

Bristol-Myers Squibb Co. v. Sup. Ct. Cal., 137 S. Ct. 1773 (2017) .............................................................................................................. 10

Brotherton v. Cleveland, 141 F. Supp. 894 (S.D. Ohio 2001) .......................................................................................... 14

Cavin v. Home Loan Ctr., Inc., 236 F.R.D. 387 (N.D. Ill. 2006) .................................................................................................. 5

Chapman v. First Index, Inc., No. 09-5555, 2014 WL 840565 (N.D. Ill. March 4, 2014) ......................................................... 8

Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848 (N.D. Cal. 2010) ...................................................................................... 14

Cooper v. IBM Pers. Pension Plan, No. 99-829, 2005 WL 8173718 (S.D. Ill. Jan. 10, 2005) ........................................................... 8


iii

Dorfman v. Albertson’s, LLC, No. 18-94, 2020 WL 86192 (D. Idaho Jan. 7, 2020) .................................................................. 9

Doster Lighting, Inc. v. E-Conolight, LLC, No. 12-23, 2015 WL 3776491 (E.D. Wis. June 17, 2015) ......................................................... 5

Edwards v. N. Am. Power & Gas, LLC, No. 14-1714, 2018 WL 3715273 (D. Conn. Aug. 3, 2018) ...................................................... 17

Espejo v. Santander Consumer USA, Inc., No. 11-8987, 2019 WL 2450492 (N.D. Ill. June 12, 2019) ...................................................... 10

Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998) ...................................................................................................... 4

G.M. Sign, Inc. v. Finish Thompson, Inc., No. 07-5953, 2009 WL 2581324 (N.D. Ill. Aug. 20, 2009) ..................................................... 18

Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074 (7th Cir. 1997) .................................................................................................... 5

Hale v. State Farm Mut. Auto Ins. Co., No. 12-660, 2018 WL 6606079 (S.D. Ill. Dec. 16, 2018) .......................................................... 5

In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330 (N.D. Ill. 2010) .................................................................................................. 8

In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000) ......................................................................................... 14

In re Capital One TCPA Litig., 80 F. Supp. 3d 781 (N.D. Ill. 2015) .................................................................................... 11, 12

In re Nat'l Collegiate Athletic Ass'n Student-Athlete Concussion Injury Litig., 314 F.R.D. 580 (N.D. Ill. 2016) ............................................................................................... 16

In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088 (5th Cir. 1977) .................................................................................................. 16

Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) ...................................................................................................... 5

Juris v. Inamed Corp., 685 F.3d 1294 (11th Cir. 2012) ................................................................................................ 16

Kolinek v. Walgreen Co., 311 F.R.D. 483 (N.D. Ill. 2015) .................................................................................... 11, 12, 15


iv

Latner v. Mt. Sinai Health Sys., Inc., 879 F.3d 52 (2d Cir. 2018).......................................................................................................... 9

Lucas v. Vee Pak, Inc., No. 12-9672, 2017 WL 6733688 (N.D. Ill. Dec. 20, 2017) ........................................................ 4

Malta v. Fed. Home Loan Mortg. Corp., No. 10-1290, 2013 WL 444619 (S.D. Cal. Feb. 5, 2013) ......................................................... 11

Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) .................................................................................................. 10

McCabe v. Crawford & Co., 210 F.R.D. 631 (N.D. Ill. 2002) ................................................................................................ 17

Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) .................................................................................................... 11

Murray v. New Cingular Wireless Servs., 232 F.R.D. 295 (N.D. Ill. 2005) ................................................................................................ 19

Nat’l Rural Telecomms. Coop. v. DIRECTV Inc., 221 F.R.D. 523 (C.D. Cal. 2004) .............................................................................................. 14

Parker v. Risk Mgmt. Alternatives, Inc., 206 F.R.D. 211 (N.D. Ill. 2002) ................................................................................................ 18

Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014) .................................................................................................... 15

Perez v. Asurion Corp., 501 F. Supp. 2d 1360 (S.D. Fla. 2007) ..................................................................................... 14

Phillips Randolph Enters., LLC v. Rice Fields, No. 06-4968, 2007 WL 129052 (N.D. Ill. Jan. 11, 2007) ......................................................... 10

Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927 (N.D. Ill. 2018) .......................................................................................... 9

Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F. Supp. 3d 840 (N.D. Ill. 2018) ........................................................................................ 10

Sadowski v. Med1 Online, LLC, No. 07-2973, 2008 WL 2224892 (N.D. Ill. May 27, 2008) ................................................ 18, 19

Schulte v. Fifth Third Bank, No. 09-6655, 2010 WL 8816289 (N.D. Ill. Sept. 10, 2010) ................................................. 7, 14


v

Schwyhart v. AmSher Collection Servs., Inc., No. 15-1175, 2017 WL 1034201 (N.D. Ala. Mar. 16, 2017) ................................................... 15

Snyder v. Ocwen Servicing, LLC, No. 14-8461, 2019 WL 2103379 (N.D. Ill. May 14, 2019) ........................................................ 4

Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006) .................................................................................................. 5, 8

Todd S. Elwert, Inc., DC v. All. Healthcare Servs., Inc., No. 15-2673, 2018 WL 4539287 (N.D. Ohio Sept. 21, 2018) .................................................. 15

Wal-Mart Stores, Inc. v. Visa USA, Inc., 396 F.3d 96 (2d Cir. 2005).................................................................................................... 6, 16

Wilkins v. HSBC Bank Nevada, N.A., No. 14-190, 2015 WL 890566 (N.D. Ill. Feb. 27, 2015) .......................................................... 11

Wreyford v. Citizens for Transp. Mobility, Inc., No. 12-2524, 2014 WL 11860700 (N.D. Ga. Oct. 16, 2014) ................................................... 15

Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017) ......................................................................................... 9

Statutes

47 U.S.C. § 227(b)(1)(A)(iii) .......................................................................................................... 2

815 ILCS 305/1 ............................................................................................................................... 2

Other Authorities

2 McLaughlin on Class Actions, § 6:7 (8th ed. 2011) .................................................................... 7

Fed. R. Civ. P. 23 Notes of Advisory Committee......................................................................... 15

In re Rules & Regs. Implementing the TCPA, 30 FCC Rcd. 7961 (2015) ........................................................................................................... 9

Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide (Federal Judicial Center 2010) ................................................................................................................ 16

Manual for Complex Litig. ........................................................................................................... 17

Newberg on Class Actions .......................................................................................................... 4, 7


vi

Rules

Fed. R. Civ. P. 23(a) ..................................................................................................................... 17

Fed. R. Civ. P. 23(b)(3)................................................................................................................. 18

Fed. R. Civ. P. 23(c)(2)(B) ........................................................................................................... 16

Fed. R. Civ. P. 23(e)(2) ............................................................................................................... 4, 5

Fed. R. Civ. P. 23(e)(2)(A) ............................................................................................................. 5

Fed. R. Civ. P. 23(e)(2)(B) ............................................................................................................. 7

Fed. R. Civ. P. 23(e)(2)(C) ............................................................................................................. 7

Fed. R. Civ. P. 23(e)(2)(C)(i) .......................................................................................................... 8

Fed. R. Civ. P. 23(e)(2)(C)(ii) ....................................................................................................... 12

Fed. R. Civ. P. 23(e)(2)(C)(iii) ..................................................................................................... 14

Fed. R. Civ. P. 23(e)(2)(D) ....................................................................................................... 7, 12


1

After over five years of litigation, dispositive motion practice, discovery motions,

extensive discovery efforts, two mediations with two separate, nationally-recognized mediators,

and extensive, arm’s length negotiations between counsel, Plaintiff Kearby Kaiser (“Plaintiff

Kaiser”) and Defendants CVS Pharmacy, Inc. (“CVS Pharmacy”), MinuteClinic, LLC

(“MinuteClinic”) (collectively, “CVS”), and West Corporation (“West”) (collectively, the

“Parties”), reached a class action settlement in this matter.

The Settlement calls for Defendants to pay $15,000,000 into a common fund for the

benefit of persons associated with a list of 233,079 phone numbers called during MinuteClinic’s

2013 flu shot reminder campaign with a message offering a CVS Pharmacy shopping pass.

Notice was mailed to all of the Class Members. Remarkably, more than 99% of the notices were

successfully received. Checks will be mailed to all Class Members with valid addresses or who

submitted a valid claim, and who did not otherwise opt out.

The reaction of the Class to this Settlement has been overwhelmingly positive. Only one

Class Member submitted an “objection,” which in truth reflects confusion about the scope of

claims released.1 Further, following direct notice under CAFA, neither any state attorney general

nor the Attorney General of the United States has objected. The Settlement is an excellent result

for the Class, particularly in view of the risks and delays involved in continued litigation.

Considering the overwhelmingly favorable support for the Settlement from the Class Members,

Plaintiff respectfully requests that this Court enter final approval of the Settlement in its entirety.

1 Ms. Wanda L. Porter did not object to the adequacy of the settlement of TCPA claims but, rather, misunderstood that the Settlement would cover what she described as her injuries for “bad flu serum” in 2013. A copy of Ms. Porter’s objection is attached to the Declaration of Eric Schachter of AB Data, Ltd. (Exhibit 1, “Schachter Decl.”), as Exhibit E thereto. The Parties agree that any concern about physical injury caused by a flu shot falls outside of the scope of this lawsuit and Settlement.


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I. BACKGROUND

Plaintiff filed this action on May 20, 2014, seeking redress for violations of the TCPA

arising from nonconsensual calls made by or on behalf of CVS to the cell phone numbers of

himself and others using an automatic telephone dialing system (“ATDS” or “autodialer”) or an

artificial or prerecorded voice. 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff also alleged violations of

the Illinois Automatic Telephone Dialers Act (“ATDA”), 815 ILCS 305/1 et seq., arising out of

Defendants’ use of an autodialer to call his and others’ phones, and impeding caller

identification. Plaintiff subsequently amended his pleadings to add a CVS calling vendor, West,

as a defendant, filing an amended complaint on April 13, 2015.2 Dkt. 82.

As the Court is aware, this litigation was hard-fought, with the case opening with a

motion to stay pending a ruling on petitions for a declaratory ruling on calling a reassigned or

wrong phone number, which was later renewed by CVS. Dkt. 25, 134. Defendants additionally

moved to dismiss on jurisdictional grounds. Dkt. 223. Plaintiff filed multiple motions on

discovery issues, and went through oral argument and two rounds of briefing on class

certification. Dkt. 52, 141, 156, 160, 173, 179, 189, 202-1, 287, 363, 366. This case was not

easy: Defendants were well-represented by skilled counsel, who used every available resource

and angle to defend the case.

In addition to numerous informal discussions between counsel, the Parties participated in

two all-day mediation sessions with two mediators. On November 9, 2015, the Parties engaged

in an all-day, in-person, arms-length mediation with the Rodney A. Max, Esq. Dkt. 411-1, Agr. ¶

1.02. This mediation did not result in settlement, and the Parties thereafter continued to

aggressively litigate the case, including through contested motion practice, extensive adversarial

2 Kaiser was joined in these proceedings with another consumer plaintiff, Carl Lowe. Mr. Lowe is not a part of this Settlement.


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discovery, and briefing and oral argument on class certification. Id. On September 21, 2018, the

Parties again participated in mediation, with Hon. Diane M. Welsh (Ret.) of JAMS. This

mediation was, likewise, unsuccessful. Id. ¶ 1.03.

In April 2019, counsel for the Parties reopened communications to determine the

possibility that this case could be resolved through negotiated settlement, which efforts were

ultimately successful at reaching an agreement requiring Defendants to pay $15,000,000 for the

benefit of a Class defined as follows:

The persons on the Class List.3 For self-identification purposes, the Class List may be described as all persons in the United States whom CVS called using an unattended message in MinuteClinic’s 2013 flu shot reminder campaign that offered a CVS Pharmacy retail coupon, where: (1) the call was made to a cell phone number, or (2) the person was an Illinois resident.

Id. ¶¶ 1.04, 2.29. Under this non-reversionary Settlement, all Class Members with an identifiable

address or who submit a valid and timely claim will receive a pro rata share of the Settlement

Fund per phone number called, less the amounts distributable to notice and administration costs,

Class Counsel’s attorneys’ fees and expenses, and any incentive award.4 Id. ¶¶ 4.03-4.04.

Plaintiff moved for preliminary approval of the Settlement on July 26, 2019, which the Court

granted on August 5, 2019. Dkt. 417. Since then, the Settlement Administrator, AB Data, has

effectuated CAFA and Class Notice in accordance with the Court’s Preliminary Approval Order,

including direct mail notice to all of the Class Members (in excess of 99% of which were

successfully received), a settlement website, and toll-free number. See generally Exhibit 1,

3 The Class List consists of 233,079 cell or Illinois landline numbers called in MinuteClinic’s 2013 flu shot reminder campaign that offered a CVS Pharmacy retail coupon. Dkt. 411-1, Agr. ¶ 2.09, Ex. E. 4 This release is tailored to the claims at issue: If approved, the Settlement provides that Class Members who do not opt out will release “[TCPA] or state analog ... claims ... arising out of MinuteClinic’s or CVS Pharmacy’s (or West’s operating on either CVS Pharmacy’s or MinuteClinic’s behalf) telephonic contact of Settlement Class Members, or alleged impediment of caller identification during such calls, during the Class Period.” Dkt. 411-1, Agr. ¶ 13.01.


4

Schachter Decl.

As further detailed herein, the Settlement is fair, reasonable, adequate, and in the best

interests of the Class Member, and it should, respectfully, be finally approved.

II. THE SETTLEMENT MEETS ALL REQUIREMENTS FOR APPROVAL.

“The Seventh Circuit has acknowledged that ‘federal courts look with great favor upon

the voluntary resolution of litigation through settlement’ and in the class action context in

particular, there is ‘an overriding public interest in favor of settlement.’” Lucas v. Vee Pak, Inc.,

No. 12-9672, 2017 WL 6733688, at *8 (N.D. Ill. Dec. 20, 2017) (quoting Armstrong v. Board of

School Directors, 616 F.2d 305, 312-13 (7th Cir. 1980), overruled on other grounds in Felzen v.

Andreas, 134 F.3d 873, 875 (7th Cir. 1998)). In that light, “[a] district court may approve a

proposed settlement of a class action only after it directs notice in a reasonable manner to all

class members who would be bound and finds, after a hearing, that the proposed settlement is

‘fair, reasonable and adequate.’” Snyder v. Ocwen Servicing, LLC, No. 14-8461, 2019 WL

2103379, at *4 (N.D. Ill. May 14, 2019) (quoting Fed. R. Civ. P. 23(e)(2)). “In most situations,

unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy

and expensive litigation with uncertain results.” Newberg on Class Actions, § 11:50.

Rule 23, as revised as of December 1, 2018, “sets forth a list of points a court must

consider in determining whether a proposed class action settlement is fair, reasonable, and

adequate.” Snyder, 2019 WL 2103379, at *4. These are:

(A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably relative to each other.


5

Fed. R. Civ. P. 23(e)(2). “These considerations overlap with the factors previously articulated by

the Seventh Circuit, which include: (1) the strength of the plaintiff’s case compared to the terms

of the settlement; (2) the complexity, length, and expense of continued litigation; (3) the amount

of opposition to the settlement; (4) the presence of collusion in gaining a settlement; (5) the stage

of the proceedings and the amount of discovery completed.” Hale v. State Farm Mut. Auto Ins.

Co., No. 12-660, 2018 WL 6606079, at *2 (S.D. Ill. Dec. 16, 2018) (citing Synfuel Techs., Inc. v.

DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006); Gen. Elec. Capital Corp. v. Lease

Resolution Corp., 128 F.3d 1074, 1082 (7th Cir. 1997)).

Those factors are satisfied here.

A. Plaintiff and Class Counsel Have Adequately Represented the Class.

A plaintiff seeking approval of a proposed class settlement must show: “‘(1) the

representative does not have conflicting or antagonistic interests compared with the class as a

whole; (2) the representative is sufficiently interested in the case outcome to ensure vigorous

advocacy; and (3) class counsel is experienced, competent, qualified and able to conduct the

litigation vigorously.’” Doster Lighting, Inc. v. E-Conolight, LLC, No. 12-23, 2015 WL

3776491, at *7 (E.D. Wis. June 17, 2015) (quoting Cavin v. Home Loan Ctr., Inc., 236 F.R.D.

387, 392-93 (N.D. Ill. 2006)); see also Fed. R. Civ. P. 23(e)(2)(A) (requiring that “the class

representatives and class counsel have adequately represented the class”). “In deciding whether

to approve the settlement, the court is ‘entitled to give consideration to the opinion of competent

counsel.’” Behrens v. Landmark Credit Union, No. 17-101, 2018 WL 3130629, at *5 (W.D.

Wis. June 26, 2018) (quoting Isby v. Bayh, 75 F.3d 1191, 1200 (7th Cir. 1996)). A “‘presumption

of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-

length negotiations between experienced, capable counsel after meaningful discovery.’” Am.


6

Int'l Grp., Inc. v. ACE INA Holdings, Inc., No. 07-2898, 2012 WL 651727, at *10 (N.D. Ill. Feb.

28, 2012) (quoting Wal-Mart Stores, Inc. v. Visa USA, Inc., 396 F.3d 96, 116 (2d Cir. 2005)).

Here, the parties substantially litigated this case prior to reaching the proposed

Settlement. Plaintiff and his counsel vigorously litigated this case for five years, through

extensive discovery efforts involving, among other things, depositions in Illinois, Massachusetts,

Nebraska, Rhode Island and New Hampshire and the review or analysis of hundreds of

thousands of pages of documents and billions of rows of data, discovery and dispositive motion

practice, two rounds of briefing on class certification, and two previously unsuccessful mediation

attempts preceded by the exchange of position papers. Dkt. 52, 141, 156, 160, 173, 179, 189,

202-1, 223, 287, 363, 366; Dkt. 421-1, Burke Decl. ¶¶ 18-19; Dkt. 421-2, Broderick Decl. ¶¶ 5-

7. In light of this history, Plaintiff and Class Counsel had a complete picture of the case, and did

everything possible to get the best possible result for Class Members. On the basis of these

efforts, the case was highly developed, supporting final approval.

Plaintiff’s claims are fully aligned with the claims of the Class. He thus had every

incentive to vigorously pursue the claims of the class, as he has done by remaining actively

involved in this matter since its inception, participating in discovery, sitting for a deposition, and

remaining involved in the settlement process. Dkt, 421-1, Burke Decl. ¶ 20. In addition, Plaintiff

retained the services of law firms with extensive experience in litigating consumer class actions,

and TCPA actions in particular. E.g., Dkt. 411-2, Burke Decl. ¶¶ 3-12; Dkt. 411-3, Broderick

Decl. ¶¶ 14-20; Dkt. 411-4, McCue Decl.¶¶ 6-12; Dkt. 411-5, Murphy Decl. ¶¶ 4-8.

Plaintiff and Class Counsel believe that the Settlement is fair, reasonable, and adequate,

and in the best interests of the members of the Class. Plaintiff also believes that the benefits of

the parties’ settlement far outweigh the delay and considerable risk of proceeding to a contested


7

class certification and trial. This factor thus supports granting final approval of the Settlement.

B. The Settlement Was Negotiated at Arm’s-Length, and There Has Been No Fraud or Collusion.

Whether a settlement “was negotiated at arm’s length” is relevant to whether it should be

approved. Fed. R. Civ. P. 23(e)(2)(B). “A settlement reached after a supervised mediation

receives a presumption of reasonableness and the absence of collusion.” 2 McLaughlin on Class

Actions, § 6:7 (8th ed. 2011). Further, “‘courts respect the integrity of counsel and presume the

absence of fraud or collusion in negotiating the settlement, unless evidence to the contrary is

offered.’” Schulte v. Fifth Third Bank, No. 09-6655, 2010 WL 8816289, at *4 (N.D. Ill. Sept. 10,

2010) (quoting 4 Newberg on Class Actions § 11:51 (4th ed. 2002)).

Here, the Settlement resulted from good faith, arm’s-length negotiations over a course of

months, including after two previously unsuccessful, in-person mediation sessions before two

nationally-recognized mediators, Rodney Max, Esq, and the Hon. Diane Welsh (Ret.), which

were each preceded by the exchange of position papers setting forth the Parties’ respective views

as to the strengths of their cases. Dkt. 411-1, Agr. ¶¶ 1.02-1.04; Dkt. 421-1, Burke Decl. ¶ 18. In

the end, the Parties were only able to reach an agreement after full-blown adversarial discovery

and class certification briefing. Dkt. 421-1, Burke Decl. ¶¶ 18-19; Dkt. 421-2, Broderick Decl. ¶

6. Class Counsel are experienced TCPA class action attorneys, and fully support the Settlement.

Dkt. 411-2, Burke Decl. ¶¶ 3-12, 15; Dkt. 411-3, Broderick Decl. ¶¶ 10, 14-20; Dkt. 411-4,

McCue Decl. ¶¶ 6-13; Dkt. 411-5, Murphy Decl. ¶¶ 4, 6-8. That the Parties negotiated their

Settlement at arm’s-length, absent any fraud or collusion, thus supports final approval.

C. The Settlement Provides Substantial Relief for the Class.

Rule 23(e)(2)(C) and (D) direct the Court to evaluate whether “the relief provided for the

class is adequate” and whether “the proposal treats class members equitably relative to each


8

other.” See also Synfuel Techs, 463 F.3d at 653 (“The most important factor relevant to the

fairness of a class action settlement is the first one listed: the strength of the plaintiffs’ case on

the merits balanced against the amount offered in the settlement.”) (internal quotes and citations

omitted); In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 347 (N.D. Ill.

2010) (“Because the essence of settlement is compromise, courts should not reject a settlement

solely because it does not provide a complete victory to plaintiffs.”) (citations omitted). The

Settlement provides meaningful and substantial relief, particularly given the facts and

circumstances of this case. Likewise, the Settlement’s terms ensure all Settlement Class

Members will be treated equitably. As such, these factors likewise support final approval.

1. Substantial Legal and Factual Risks Weigh in Favor of Settlement.

The “costs, risks, and delay of trial and appeal” is a relevant factor in determining

whether the relief provided for the class supports approval of the parties’ settlement. Fed. R. Civ.

P. 23(e)(2)(C)(i); e.g., Cooper v. IBM Pers. Pension Plan, No. 99-829, 2005 WL 8173718, at *1

(S.D. Ill. Jan. 10, 2005) (“[T]he Court finds the risk of continued litigation and the delay

occasioned thereby strongly supports the proposed settlement.”).

The Settlement in this matter comes at a moment of substantial uncertainty in this

litigation, with Plaintiff’s motion for class certification pending. Dkt. 287, 366. Although

Plaintiff was confident in his prospect of success, the fact remains that Plaintiff faced serious risk

at class certification, as “[c]ourts are split on whether the issue of individualized consent renders

a TCPA class uncertifiable on predominance and ascertainability grounds, with the outcome

depending on the specific facts of each case.” Chapman v. First Index, Inc., No. 09-5555, 2014

WL 840565, at *2 (N.D. Ill. March 4, 2014), aff’d in part and vacated in part on other grounds,

remanded, 796 F.3d 783 (7th Cir. 2015) (citing cases). There is a risk that the Court would


9

decline to certify the class, leaving only the named Plaintiff to pursue his individual claims.

The unique nature of Plaintiff’s and the Class’ claims further compounded the risks of

continued litigation. Unlike in many other TCPA cases involving telemarketing calls to non-

customers, Plaintiff and the Class here are all former customers of CVS who provided their

phone numbers in relation to prior healthcare services, prompting Defendants to assert that they

had consent for the calls at issue, both on the merits and as a wedge against class certification

based on purported individualized issues regarding that alleged consent. Dkt. 384 at pp. 13-17.

While Plaintiff strongly disagrees with Defendants’ arguments, and believes that this case is

distinguishable based on, for example, the “shopping pass” telemarketing aspect of Defendants’

calls, some courts have ruled in favor of the defense with respect to TCPA healthcare-related

“reminder” call cases.5 Plaintiff’s ATDA claims, for their part, are untested; Class Counsel’s

research reveals a dearth of rulings addressing the merits of the caller ID claim Plaintiff asserts

under 815 ILCS 305/15(d).

Indeed, the law applicable to this case has seen some radical changes since its filing with,

for example, the FCC granting an exemption to certain healthcare-related calls,6 or the D.C.

Circuit undoing binding regulatory authority concerning what constitutes an “automatic

telephone dialing system” under the statute. ACA Int’l v. FCC, 885 F.3d 687, 695 & 706 (D.C.

Cir. 2018).7 And then there are the arguments – which Defendants raised in this case, see Dkt.

5 See e.g., Latner v. Mt. Sinai Health Sys., Inc., 879 F.3d 52 (2d Cir. 2018) (affirming dismissal of TCPA class action based on flu shot reminder calling after consumer visit to facility years prior); Bailey v. CVS Pharmacy, Inc., No. 17-11482, 2018 WL 3866701, at *8 (D.N.J. Aug. 14, 2018) (applying TCPA “Healthcare Exemption” to flu shot reminder texts); Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017) (dismissing “flu shot reminder” case based on consent purportedly previously provided during a prior transaction); Dorfman v. Albertson’s, LLC, No. 18-94, 2020 WL 86192, at *4 (D. Idaho Jan. 7, 2020) (“the emergency purposes exception may apply to prescription pick-up robocalls”). 6 In re Rules & Regs. Implementing the TCPA, 30 FCC Rcd. 7961, ¶ 147 (2015). 7 Courts are still dealing with the aftermath of the ACA Int’l decision, with varying outcomes. See Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927, 939 (N.D. Ill. 2018) (adopting restrictive Third


10

351 at 2-6 – that, longstanding Supreme Court precedence notwithstanding, the non-class case of

Bristol-Myers Squibb Co. v. Sup. Ct. Cal., 137 S. Ct. 1773 (2017), precludes certification of

nationwide classes. Compare, e.g., Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc.,

301 F. Supp. 3d 840, 865 (N.D. Ill. 2018) (finding court “lacks personal jurisdiction over

defendants with respect to class members who are not Illinois residents”); with Al Haj v. Pfizer

Inc., 338 F. Supp. 3d 815, 818-21 (N.D. Ill. 2018) (finding such a position “cannot be right”).

This case has been pending for over five years, and the increased risk of continued changes to the

legal landscape thus further supports approval of the Settlement.

And even if Plaintiff were ultimately successful on the merits, at least some courts view

awards of aggregate, statutory damages with skepticism and reduce such awards—even after a

plaintiff has prevailed on the merits—on due process grounds. See, e.g., Aliano v. Joe Caputo &

Sons - Algonquin, Inc., No. 09-910, 2011 WL 1706061, at *4 (N.D. Ill. May 5, 2011) (“[T]he

Court cannot fathom how the minimum statutory damages award for willful FACTA violations

in this case—between $100 and $1,000 per violation—would not violate Defendant’s due

process rights . . . . Such an award, although authorized by statute, would be shocking, grossly

excessive, and punitive in nature.”); but see Phillips Randolph Enters., LLC v. Rice Fields, No.

06-4968, 2007 WL 129052, at *3 (N.D. Ill. Jan. 11, 2007) (“Contrary to [defendant’s] implicit

position, the Due Process clause of the 5th Amendment does not impose upon Congress an

obligation to make illegal behavior affordable, particularly for multiple violations.”).

The complexity, length, and expense of continued litigation further support approval of

the Settlement. Plaintiff’s contested class certification motion was pending when the Parties

Circuit interpretation of what constitutes an ATDS); but see Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018) (rejecting restrictive ATDS interpretation); Espejo v. Santander Consumer USA, Inc., No. 11-8987, 2019 WL 2450492, at *8 (N.D. Ill. June 12, 2019) (citing Marks in finding dialer constitutes ATDS).


11

reached the proposed Settlement, Dkt. 287, 366, and thus even if the Court were to certify an

adversarial class in this case, substantial additional time would still be required to brief summary

judgment and prepare for eventual trial. This litigation has already been pending for over five-

and-a-half years, and this Settlement guarantees that the Class will receive a material financial

benefit now – in most cases, without the Class Member even having to submit a claim – in lieu of

protracted, expensive litigation for which there is every indication that, absent settlement,

Defendants will continue to fight tooth and claw to see that the Class gets nothing. Plaintiff

believed, and continues to believe, in the strength of the claims asserted in this case. But his

likelihood of success on class certification, summary judgment, and at trial is far from certain.

Accordingly, Plaintiff’s decision to settle his and the Class’ claims is reasonable.

2. The Monetary Terms of this Proposed Settlement Fall Favorably within the Range of Prior TCPA Class Action Settlements.

The Settlement requires Defendants to pay $15,000,000 into a Settlement Fund, or $64

dollar for each Class Member without deducting for expenses, costs and administration. This

compares exceedingly well with other TCPA class settlements courts have approved. See, e.g.,

Malta v. Fed. Home Loan Mortg. Corp., No. 10-1290, 2013 WL 444619, at *7 (S.D. Cal. Feb. 5,

2013) (approximately $3 per class member); Wilkins v. HSBC Bank Nevada, N.A., No. 14-190,

2015 WL 890566, at *3 (N.D. Ill. Feb. 27, 2015) ($4.41 per class member); In re Capital One

TCPA Litig., 80 F. Supp. 3d 781,787 (N.D. Ill. 2015) ($4.31 per class member); Kolinek v.

Walgreen Co., 311 F.R.D. 483, 493 (N.D. Ill. 2015) ($1.20 per class member). And this

Settlement—in providing for automatic distribution of checks in most instances—has the added

benefit of ensuring greater direct relief to Settlement Class Members than many other TCPA

class settlements that rely entirely on a claims process. See Mullins v. Direct Digital, LLC, 795

F.3d 654, 667 (7th Cir. 2015) (noting that typically “only a tiny fraction of eligible claimants


12

ever submit claims for compensation in consumer class actions”).

Moreover, Class Members will receive real monetary rewards from this Settlement. Each

of the 231,253 Class Members whose addresses were confirmed through the distribution of the

Notice or who otherwise submitted a valid and timely claim and did not opt out (more than 99%

of the Class) will receive approximately $40.13.8 Thus, even though the vast majority of Class

Members did not need to make a claim, Class Members will still receive a sum that compares

favorably to similar TCPA settlements that had a claims process, with a significantly higher

proportion of Class Members getting paid through the Settlement here.9

The Settlement provides substantial relief to Class Members without delay, particularly in

light of the above risks that Class Members would face in litigation.

3. The Settlement is an Effective and Equitable Means of Distributing Relief to the Settlement Class.

The “effectiveness of any proposed method of distributing relief to the class, including

the method of processing class-member claims[,]” and whether “the proposal treats class

members equitably relative to each other[,]” are also considerations relevant to approval of a

proposed class action settlement. Fed. R. Civ. P. 23(e)(2)(C)(ii) and 23(e)(2)(D).

The Settlement treats each Class Member in precisely the same way. Each Class Member

had an equal opportunity to submit a claim for a Cash Award through the Settlement’s website or

by mailing a simple, one-page claim form to the Settlement Administrator, and each Settlement

Class Member with an address identifiable through a reverse-lookup confirmed through

8 Of the 402 claims submitted, 18 were valid, 91 were submitted unnecessarily by Class Members who were already going to receive a Cash Award due to having already had their addresses confirmed through the distribution of the Notice, and 293 were invalid because they attempted to claim in on a phone number for which there was no match on the Class List. Exhibit 1, Schachter Decl. ¶ 12. 9 See, e.g., In re Capital One TCPA Litig., 80 F. Supp. 3d at 786 & 809 (granting final approval where each class member would be awarded $39.66 with a 7.87% claims rate); Kolinek, 311 F.R.D at 493-94 (granting final approval where class members each stood to receive $30 with a 2.5% claims rate).


13

Defendants’ records, or who otherwise submitted a valid and timely claim, will receive an equal,

pro rata Cash Award per number called, through a settlement check mailed to them at the

address confirmed through the class notice and claims process. Dkt. 411-1, Agr. ¶¶ 4.04, 7.08(d),

8.04, 9.01-9.02, Ex. A.10 Class Members who cash their initial distribution will even receive a

further pro rata distribution of any uncashed settlement checks to the extent administratively

feasible, with any leftover amounts distributed as cy pres to the Illinois Bar Foundation or other

recipient approved by the Court. Id. ¶ 7.08(e)-(f). No one was favored, disfavored, or otherwise

treated differently from anyone else; rather, the Settlement was designed to ensure the

widespread, equitable distribution of relief to as many Class Members as possible—including by

removing the need for the vast majority of Class Members to submit any claim at all. Indeed, the

fairness of the claims process is evident by its success in reaching and, if approved, ensuring

payment to, more than 99% of the entire Class. Exhibit 1, Schachter Decl. ¶¶ 5, 9, 12. This factor

thus supports final approval of the Settlement.

Moreover, the overwhelmingly positive reaction of Class Members to the Settlement and

its relief supports the fundamental equality and effectiveness of the Settlement. As a result of the

notice that AB Data distributed, only one objection was received, which, rather than challenging

any aspect of the Settlement, misunderstood it as compensation for alleged problems with the flu

shot, itself. See Exhibit 1, Schachter Decl. ¶ 14, Ex. E. This litigation and the Settlement, though,

involve alleged telephone call violations, and thus the objector’s concerns fall outside the scope

of the Settlement. See Dkt. 411-1, Agr. ¶¶ 2.30 (defining Settlement Class), 13.01 (release).

The Class’ overwhelmingly favorable reaction to the Settlement—especially considering

the effectiveness of the claim and Cash Award distribution process, and equitable treatment of

10 The Settlement also contemplated a dispute resolution process in the case of contested claims, but this issue did not arise. Dkt. 411-1, Agr. ¶ 9.03.


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the Class overall—supports final approval. See Schulte, 805 F. Supp. 2d at 586 (finding support

for approval of class settlement where only “[a] very small percentage of affected parties have

opposed the settlement”); Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 852 (N.D.

Cal. 2010) (“The reaction of class members to the proposed settlement, or perhaps more

accurately the absence of a negative reaction, strongly supports settlement.”); Perez v. Asurion

Corp., 501 F. Supp. 2d 1360, 1381 (S.D. Fla. 2007) (“A low percentage of objections

demonstrates the reasonableness of a settlement.”); Nat’l Rural Telecomms. Coop. v. DIRECTV

Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004) (“the absence of a large number of objections to a

proposed class action settlement raises a strong presumption that the terms of a proposed class

settlement action are favorable to the class members”); Brotherton v. Cleveland, 141 F. Supp.

894, 906 (S.D. Ohio 2001) (“[A] relatively small number of class members who object is an

indication of a settlement’s fairness.”); In re Austrian & German Bank Holocaust Litig., 80 F.

Supp. 2d 164, 175 (S.D.N.Y. 2000) (“If only a small number of objections are received, that fact

can be viewed as indicative of the adequacy of the settlement.”).

4. The Attorneys’ Fees Raise No Questions About the Settlement.11

The “terms of any proposed award of attorney’s fees, including timing of payment[,]” is

also a factor relevant to the reasonableness of a proposed class settlement. Fed. R. Civ. P.

23(e)(2)(C)(iii). Plaintiff has requested $5,000,000 in attorneys’ fees (i.e., one-third of the

Settlement Fund or 34% of the Fund net of administration expenses and incentive award), along

with $402.991.03 in attorney expenses. Dkt. 421, Fee Pet. at 1. This request was identified

clearly on the Class Notice, and though Class Members had the opportunity to review and object

to the requested fees, no one did so. See Exhibit 1, Schachter Decl. at Ex. C (Mail Notice at 2);

11 Class Counsel’s request for attorneys’ fees and expenses is addressed in greater detail in Plaintiff’s Motion for Attorneys’ Fees, Expenses, and Incentive Award, Dkt. 421.


15

see also FAQs and Court Documents Sections of Settlement Website, www.FluShotTCPA.com.

Moreover, the fee request falls well within the range of requests as to similar settlements, and

will befit the substantial risks Class Counsel undertook in pursuing these claims, their efforts on

behalf of the Settlement Class, and the resolution they have achieved.12 Indeed, though not

required, a lodestar cross-check further confirms the reasonableness of Class Counsel’s fee

request. See Dkt. 421, Fee Pet. at p. 16 (identifying modest multiplier of 1.86).13

Under the Settlement, Class Counsel and qualifying Class Members are to be paid within

the same time schedule: 30 days after the Funding Date.14 Dkt. 411-1, Agr. ¶¶ 7.08, 9.04.

Moreover, the claim period in this non-reversionary Settlement ended on December 2, 2019,

Dkt. 417 at 8, ensuring finality as to the amount of Cash Awards distributable to the Class—and

thereby alleviating the timing concerns raised in the Federal Rules with regard to settlements in

which the amount that might ultimately be distributed to the class is unknown.15 See Fed. R. Civ.

P. 23 Notes (“Settlement regimes that provide for future payments, for example, may not result

in significant actual payments to class members…. In some cases, it may be appropriate to defer

some portion of the fee award until actual payouts to class members are known.”).

Additionally, Plaintiff requests an incentive award of $15,000. As set forth in Plaintiff’s 12 E.g., Birchmeier v. Caribbean Cruise Line, Inc., 896 F.3d 792, 795 (7th Cir. 2018) (affirming fee award in TCPA class case that contemplated 36% of the first $10 million and 30% of the next $10 million); Kolinek, 311 F.R.D. at 501 (awarding 36% of net settlement fund); Todd S. Elwert, Inc., DC v. All. Healthcare Servs., Inc., No. 15-2673, 2018 WL 4539287, at *4 (N.D. Ohio Sept. 21, 2018) (awarding fees of one-third of fund in TCPA case); Wreyford v. Citizens for Transp. Mobility, Inc., No. 12-2524, 2014 WL 11860700, at *1 (N.D. Ga. Oct. 16, 2014) (same); Schwyhart v. AmSher Collection Servs., Inc., No. 15-1175, 2017 WL 1034201, at *3 (N.D. Ala. Mar. 16, 2017) (finding, in TCPA class case, that “attorneys’ fees … of one-third of the Settlement Fund ... is fair and reasonable”). 13 Plaintiff’s fee request is also presumptively reasonable under Seventh Circuit precedent. See Pearson v. NBTY, Inc., 772 F.3d 778, 782 (7th Cir. 2014) (“[T]he presumption should we suggest be that attorneys’ fees awarded to class counsel should not exceed a third or at most a half of the total amount of money going to class members and their counsel.”). 14 The Funding Date is 30 days after the Settlement’s Effective Date. Dkt. 411-1, Agr. ¶ 7.07. 15 The Settlement contemplates payment of attorneys’ fees and costs after the Effective Date, when the Final Approval Order and Judgment is no longer subject to appeal. Agr. ¶¶ 7.08(b), 2.16, 2.21, 12.01.


16

Motion for Attorneys’ Fees, Cost and Incentive Award, the requested incentive award is

supported by the considerable time Plaintiff spent in responding to discovery, appearing for a

deposition, and assisting his counsel in the case. Dkt. 421 at pp. 21-22. The requested award is

consistent with awards granted in other TCPA cases. Id. at p. 22.

Thus, for the foregoing reasons and as addressed in greater detail in his fee petition, Dkt.

421, Plaintiff’s request for attorneys’ fees, expenses, and incentive award warrants approval.

D. Notice Complied with Rule 23 and Due Process.

The polestar for assessing the adequacy of notice, whether through the lens of Rule 23 or

constitutional due process, is “reasonableness.” Wal-Mart, 396 F.3d at 114. Reasonableness is,

in turn, “a function of anticipated results, costs, and amount involved.” In re Nissan Motor

Corp. Antitrust Litig., 552 F.2d 1088, 1099 (5th Cir. 1977). Both the manner of dissemination

and the form of the notice ensured “the best notice that is practicable under the circumstances.”

Fed. R. Civ. P. 23(c)(2)(B). But “even in Rule 23(b)(3) class actions, due process does not

require that class members actually receive notice.” Juris v. Inamed Corp., 685 F.3d 1294, 1321

(11th Cir. 2012) (collecting cases).

Direct mail notice was successfully delivered to in excess of 99% of Class Members.

Exhibit 1, Schachter Decl. ¶ 9. The notice program in this case thus far exceeds the minimum

due process requirements. See In re Nat'l Collegiate Athletic Ass'n Student-Athlete Concussion

Injury Litig., 314 F.R.D. 580, 603 (N.D. Ill. 2016) (citing Judges’ Class Action Notice and

Claims Process Checklist and Plain Language Guide at 3 (Federal Judicial Center 2010), for

finding notice reaching “70% to 95% to be reasonable”).

Moreover, AB Data set up and administered a settlement website, which contained all

relevant documents and notice forms to any Class Members who visited, and even permitted


17

Settlement Class Members to submit their claims online directly. Exhibit 1, Schachter Decl. ¶ 10

(noting website had 32,426 unique visits); see, e.g., Edwards v. N. Am. Power & Gas, LLC, No.

14-1714, 2018 WL 3715273, at *5 (D. Conn. Aug. 3, 2018) (approving notice by postcard

directing class members to website). Notice was thus reasonable and proper.

III. CERTIFICATION OF THE SETTLEMENT CLASS IS APPROPRIATE.

Plaintiff respectfully requests that the Court finally certify the Settlement Class defined in

the Parties’ Settlement Agreement. Dkt. 411-1, Agr. ¶ 2.29. In its Preliminary Approval Order,

the Court conditionally certified the Settlement Class for settlement purposes, pursuant to Fed. R.

Civ. P. 23(a) and 23(b)(3). Dkt. 417, Order ¶ 4. The Court directed notice of the proposed

Settlement, thereby informing Settlement Class Members of the existence and terms of the

proposed Settlement, their right to be heard on its fairness, their right to opt out, and the date,

time, and place of the fairness hearing. Id. ¶ 9; see Manual for Complex Litig., at §§ 21.632,

21.633. Nothing has occurred since preliminary approval that should alter this Court’s

conclusions. Accordingly, the Settlement Class should be certified under Fed. R. Civ. P. 23.

A. The Rule 23(a) Requirements Are Satisfied.

The numerosity requirement of Rule 23(a) is satisfied because the Settlement Class

consists of the 233,079 cell owners or Illinois residents targeted with Defendants’ CVS

Pharmacy shopping pass message as part of MinuteClinic’s 2013 flu shot reminder call

campaign. Exhibit 1, Schachter Decl. ¶ 5; Dkt. 411-1, Agr. ¶ 2.29; see McCabe v. Crawford &

Co., 210 F.R.D. 631, 643 (N.D. Ill. 2002) (a class of forty or more is generally sufficient to

establish numerosity). The commonality requirement is satisfied because there are many

questions of law and fact common to the Settlement Class, such as whether Defendants’ dialer

constitutes an autodialer, whether Defendants had consent, and whether Defendants’ calls were


18

willful. See Parker v. Risk Mgmt. Alternatives, Inc., 206 F.R.D. 211, 213 (N.D. Ill. 2002) (“[A]

common nucleus of operative fact is usually enough to satisfy the [commonality] requirement.”);

G.M. Sign, Inc. v. Finish Thompson, Inc., No. 07-5953, 2009 WL 2581324, at *4 (N.D. Ill. Aug.

20, 2009) (finding that common questions supported certification of TCPA class action). The

typicality requirement is satisfied because Plaintiff’s TCPA and ATDA claims, which derive

from the same campaign during which all Class Members were called, arise out of the same

“event, practice or course of conduct that gives rise to the claim[s] of the other class members”

and “are based on the same legal theory.” Parker, 206 F.R.D. at 213. The adequacy of

representation requirement is satisfied because Plaintiff’s interests are coextensive with, and not

antagonistic to, the interests of the Settlement Class. See G.M. Sign, 2009 WL 2581324, at *6.

Further, Plaintiff is represented by qualified and competent counsel who have extensive

experience and expertise in prosecuting complex class actions, including TCPA actions. See id.

B. The Rule 23(b)(3) Requirements Are Satisfied.

The predominance requirement of Rule 23(b)(3) is satisfied because the claims of the

Class Members all arise from the same call campaign, using the same dialing system, targeting a

discrete category of former flu shot customers—thereby ensuring a predominance of common

questions concerning whether the dialer constitutes an autodialer under the TCPA, whether

consent existed for such calls to these former flu shot customers, whether Defendants’ violations

were willful, and whether caller identification was impeded for purposes of the ATDA—all of

which Plaintiff asserts can be determined on a class-wide basis through generalized evidence.16

See Sadowski v. Med1 Online, LLC, No. 07-2973, 2008 WL 2224892, at *4-5 (N.D. Ill. May 27,

2008) (finding common issues such as “how numbers were generated from Defendant’s database

16 Defendants disagree that a non-settlement class can be certified in this action, but submit to certification of the Class here for purposes of settlement, only. Dkt. 411-1, Agr. ¶ 3.01.


19

and whether Defendant’s actions . . . violated the TCPA” to predominate, and that the issue of

consent might be resolved through common proof such as “the source of the numbers” and “how

Defendant elected who was to receive the [ ] faxes”). Because the claims are being certified for

purposes of settlement, there are no issues with manageability. Amchem Prods. v. Windsor, 521

U.S. 591, 620 (1997) (“Confronted with a request for settlement-only class certification, a

district court need not inquire whether the case, if tried, would present intractable management

problems . . . for the proposal is that there be no trial.”).

Moreover, resolution of hundreds of thousands of claims in one action is far superior to

individual lawsuits and promotes consistency and efficiency of adjudication. See Sadowski, 2008

WL 2224892, at *5 (“In consumer actions involving small individual claims, such as this one,

class treatment is often appropriate because each member’s damages ‘may be too insignificant to

provide class members with incentive to pursue a claim individually.’”) (quoting Murray v. New

Cingular Wireless Servs., 232 F.R.D. 295, 303 (N.D. Ill. 2005)). For these reasons, certification

of the Class for settlement purposes is appropriate.

IV. CONCLUSION

Plaintiff respectfully submits that the Settlement in this matter is an excellent result for

Class Members, and the exceptional response from Class Members suggests that they agree. For

this and the foregoing reasons, Plaintiff respectfully requests that the Court approve this

unopposed request to approve the Settlement and enter a final judgment and order, in the form

attached hereto as Exhibit 2.


20

Respectfully submitted,

KEARBY KAISER, on behalf of himself and others similarly situated

Dated: January 16, 2020 By: /s/ Alexander H. Burke

Alexander H. Burke Email: [email protected] Daniel J. Marovitch Email: [email protected] BURKE LAW OFFICES, LLC 155 North Michigan Avenue, Suite 9020 Chicago, Illinois 60601 Telephone: (312) 729-5288 Edward A. Broderick (pro hac vice) Email: [email protected] BRODERICK LAW, P.C. 99 High Street, Suite 304 Boston, Massachusetts 02110 Telephone: (617) 738-7080

Matthew P. McCue (pro hac vice) Email: [email protected] THE LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue, Suite 3 Natick, Massachusetts 01760 Telephone: (508) 655-1415 Brian K. Murphy MURRAY MURPHY MOUL + BASIL LLP 1114 Dublin Road Columbus, OH 43215 Telephone: (614) 488-0400 Facsimile: (614) 488-0401 [email protected] Attorneys for Plaintiff and the Class


21

CERTIFICATE OF SERVICE

I hereby certify that, on January 16, 2020, I electronically filed the foregoing with the

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

counsel of record.

/s/ Alexander H. Burke
