IN THE UNITED STATES DISTRICT COURT FOR THE · PDF fileFOR THE NORTHERN DISTRICT OF ILLINOIS...

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

EASTERN DIVISION SARAH TONEY on behalf of herself and others ) similarly situated, ) )

Plaintiff, ) Case No. 1:13-cv-42 ) v. ) Judge Shadur ) QUALITY RESOURCES, INC. ) and SEMPRIS LLC D/B/A BUDGET ) SAVERS ) ) Defendants. )

PLAINTIFF’S UNOPPOSED MOTION FOR

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND FOR CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS

Case: 1:13-cv-00042 Document #: 241 Filed: 07/05/16 of 32 PageID #:2081

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TABLE OF CONTENTS

I. INTRODUCTION..............................................................................................................1

II. NATURE OF THE CASE .................................................................................................2

III. THE PROPOSED SETTLEMENT ..................................................................................4

A. The Settlement Class..............................................................................................4

B. Settlement Relief ....................................................................................................4

1. Class Member Relief: Settlement Fund ..................................................4

2. Class Member Relief: Assignment of Indemnity Rights against Quality .5

3. Class Representative Incentive Award ....................................................5

4. Attorneys’ Fees and Costs .........................................................................6

5. Remaining Funds .......................................................................................6

C. Notice and Settlement Administration .................................................................6

D. Opt-Out and Objection Procedures .....................................................................7

E. Release .....................................................................................................................7

IV. ARGUMENT ......................................................................................................................8

A. The Settlement Approval Process.........................................................................8

B. The Settlement Merits Preliminary Approval ..................................................10

1. The Proposed Settlement Provides Substantial Relief to the Settlement Class Particularly in Light of the Uncertainty of Prevailing on the

Merits. .......................................................................................................10

2. Continued Litigation Is Likely to Be Complex, Lengthy, and Expensive. .................................................................................................13

3. The Settlement Resulted from Extensive, Arm’s-Length Negotiations and Is Not the Result of Collusion. .........................................................13

4. The Stage of the Proceedings and the Amount of Discovery Completed Supports Preliminary Approval. ............................................................14

C. Plaintiff’s Requested Fees Are Reasonable. ......................................................15


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D. The Requested Incentive Award Is Reasonable. ...............................................16

E. The Proposed Class Notice Satisfies Due Process. ............................................16

F. The Court Should Grant Class Certification for Settlement Purposes. .........18

1. The Rule 23(a) Factors Are Met. ............................................................19

2. The Rule 23(b)(3) Factors Are Satisfied. ...............................................22

G. Scheduling a Final Approval Hearing Is Appropriate. ....................................24

V. CONCLUSION ................................................................................................................24


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TABLE OF AUTHORITIES

Cases Aliano v. Joe Caputo & Sons – Algonquin, Inc., No. 09-910, 2011 WL 1706061, at *4 (N.D. Ill.

May 5, 2011) ............................................................................................................................. 12 Am. Int’l Grp., Inc. v. ACE INA Holdings., Nos. 07-2898, 09-2026, 2012 WL 651727, at *2

(N.D. Ill. Feb. 28, 2012).............................................................................................................. 9 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997) .................................................... 24 Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013) .......................... 24 Armstrong v. Bd. of Sch. Dirs. of the City of Milwaukee, 616 F.2d 305, 312–13 (7th Cir. 1980) .. 8 Brown v. Nucor Corp., 576 F.3d 149, 153 (4th Cir. 2009) ........................................................... 22 Butler v. Sears, Roebuck & Co., 702 F.3d 359, 362 (7th Cir. 2012) (“Butler I”), vac’d on other

grounds 133 S. Ct. 2768 (2013), judgment reinstated, 727 F.3d 796 (7th Cir. 2013) (“Butler II”), cert. denied 134 S. Ct. 1277 (2014) .................................................................................. 24

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 2016 WL 228345 (U.S. 2016) .......................... 13 Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) ......................................... 25 Chapman v. First Index, Inc., No. 09-5555, 2014 WL 840565, at *2 (N.D. Ill. Mar. 4, 2014) ... 12 Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) ................................................................. 16 F.C.V., Inc. v. Sterling Nat’l. Bank, 652 F. Supp. 2d 928, 944 (N.D. Ill. 2009)..................... 17, 18 Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998) ............................................................................ 8 G.M. Sign, Inc. v. Brinks Mfg. Co., No. 09-5528, 2011 WL 248511, at *8 (N.D. Ill. Jan. 25,

2011) ......................................................................................................................................... 12 Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011) ......................................... 23 Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) .......................................................................... 19 In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 347 (N.D. Ill. 2010) ... 10 In re Synthroid Mktg. Litig., 264 F.3d 712, 718 (7th Cir. 2001) .................................................. 15 Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) ........................................................................... 8


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Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. Ill. 1998) ................................................................ 23 Kleen Products LLC v. Int’l Paper, 306 F.R.D. 585, 589 (N.D. Ill. 2015) .................................. 19 Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989) .................................................. 19 Mars Steel Corp. v. Cont’l Ill. Nat’l. Bank & Trust Co. of Chicago, 834 F. 2d 677, 684 (7th Cir.

1987) ......................................................................................................................................... 14 Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) ......................... 18 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). .................................... 17 Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015) .............................................. 19 Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. Ill. 2006) ............................................... 23 Parko v. Shell Oil Co., 739 F.3d 1083, 1084 (7th Cir. 2014) ....................................................... 19 Pearson v. NBTY, Inc., 772 F.3d 778, 782 (7th Cir. 2014) ........................................................... 15 Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010) ........................................................ 21 Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808 (1985) ........................................................ 17 Phillips Randolph Enters., LLC v. Rice Fields, No. 06-4968, 2007 WL 129052, at *3 (N.D. Ill.

Jan. 11, 2007) ............................................................................................................................ 12 Pruitt v. City of Chicago, 472 F.3d 925, 926 (7th Cir. 2006) ....................................................... 19 Robins v Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014) cert. granted 135 S. Ct. 1892 (Apr. 27, 2015)

................................................................................................................................................... 13 Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) ........................................................... 23 Savanna Group, Inc. v. Trynex, Inc., No. 10-7995, 2013 WL 66181, at *3 (N.D. Ill. Jan. 4, 2013)

................................................................................................................................................... 12 Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 586 (N.D. Ill. 2011) ....................................... 13 Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 759 (7th Cir. 2014) ........................................ 19, 21 Synfuel Tech., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006) ..................... 1 Toney v. Quality Res., Inc., 75 F. Supp. 3d 727, 732 (N.D. Ill. 2014) ............................................ 3


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v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013) ....................................................... 24 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011) .................................................... 22

Statutes 47 U.S.C. § 227 ............................................................................................................................... 2 47 U.S.C. § 227(c)(5) .................................................................................................................... 11

Other Authorities Manual for Complex Litig. § 21.633 (4th ed. 2004) ....................................................................... 9

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

Treatises 4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”) § 11:41 (4th ed.

2002) ........................................................................................................................................... 8 Newberg § 11:42 ........................................................................................................................... 14 Wright, et al., 7A Fed. Practice & Proc. § 1751 (3d ed. 2010) ................................................... 19

Regulations 47 C.F.R. § 64.1200(a)(1)(iii) ......................................................................................................... 2 47 C.F.R. § 64.1200(c)(2) ............................................................................................................... 2


I. INTRODUCTION

After more than three years of litigation, dispositive motions, discovery motions,

extensive discovery efforts, a dispute over applicable insurance coverage, numerous arm’s-length

negotiations between counsel, and three mediation sessions over eighteen months, including two

sessions before the Hon. James H. Holderman (Ret.), Plaintiff Sarah Toney, along with the

Defendant Sempris, LLC d/b/a Budget Savers (“Sempris”) have reached a class action settlement

of this matter. The Settlement1 includes the establishment of a $2,150,000 common fund, to be

distributed pro rata to Settlement Class Members who file a valid claim after payment of notice

and administration costs, class counsel fees, and an incentive award to the Plaintiff. Notice will

be effectuated through postcards mailed directly to Settlement Class Members identified in

records obtained in discovery, an online media campaign, and a website through which Claim

Forms may be directly submitted by any Class Members whose addresses cannot be located. In

addition to the $2,150,000 common fund, Sempris has agreed to assign the Plaintiff and the

Settlement Class any rights to indemnity or subrogation against Quality Resources for claims

arising out of the claims asserted by the Plaintiff in this action.

In evaluating the fairness of a proposed class action settlement, the key consideration is

the strength of the Plaintiff’s case on the merits balanced against the amount offered in the

Settlement. See Synfuel Tech., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir.

2006). Although Plaintiff here believes that she would secure class certification and ultimately

prevail on the merits at trial, success is far from assured. At every turn of the litigation and in

negotiations, Sempris has denied liability and vigorously defended its position. If approved, the

Settlement would bring a sure end to what would be contentious and costly litigation centered on

1 All capitalized terms not defined herein have the meanings set forth in the Parties’ Class Action Settlement Agreement (“Agr.”), attached as Exhibit 1.


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questions of whether a class should be certified and whether Sempris is liable for the allegedly

unlawful calls challenged in this action placed by the co-defendant, Quality Resources Group,

Inc. (“Quality”). Notably, the settlement class members are not foregoing their claims against

Quality as part of this settlement, and retain the ability to pursue Quality for these telemarketing

calls, as the Plaintiff will continue to seek to represent a class of individuals who were subjected

to Quality’s telemarketing practices.

The relief provided here—cash payments from a Settlement Fund, where Settlement

Class Members can still pursue claims against the co-defendant—meets the applicable standards

of fairness when taking into consideration the nature of Plaintiff’s claims and the risks inherent

in class litigation. Accordingly, Plaintiff respectfully request that the Court: (1) grant preliminary

approval of the Settlement; (2) provisionally certify the proposed Settlement Class; (3) appoint

Plaintiff’s attorneys as Class Counsel; (4) appoint Plaintiff as representative of the Settlement

Class; (5) approve the proposed Notice Plan, Notice, and Claim Form; and (6) schedule the Final

Approval Hearing and related dates as proposed.

II. NATURE OF THE CASE2

This case rests on alleged violations of the Telephone Consumer Protection Act

(“TCPA”), 47 U.S.C. § 227, which prohibits, inter alia, initiating any telephone solicitation to a

telephone subscriber who has registered his or her telephone number on the National Do Not

Call Registry, or calling a cell phone using an artificial or prerecorded voice. See 47 C.F.R. §

64.1200(c)(2); § 64.1200(a)(1)(iii). This case involves telemarketing that operated as follows:

Stompeez is a California based company that sells goods over the internet via its web site.

2 Sempris’s non-opposition is limited to not objecting to certification of the settlement class and approval of the settlement. Sempris does not concede or admit to any of the factual or legal assertions of the Plaintiff and, in fact, continues to vigorously dispute many of them.


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Consumers purchasing goods from the Stompeez web site were asked to provide a phone number

in the event Stompeez had “questions about [the] order.” See Toney v. Quality Res., Inc., 75 F.

Supp. 3d 727, 732 (N.D. Ill. 2014). Ms. Toney was never informed that her contact information

would be sold to third parties to make telemarketing calls to her cell phone. However, Stompeez

sold the contact information of consumers who purchased goods and services from its web site,

including Ms. Toney, to Quality. As part of this telemarketing program, Quality agreed to call

Stompeez’s customers for two purposes: first, Quality would confirm that the contact

information provided to Stompeez was correct. Second, and more importantly, after Quality

confirmed the contact information for Stompeez, it engaged in an “up sell” to the consumer, in

order to sell other goods and services of Sempris, unrelated to Stompeez or Quality.

On December 8, 2012, the Plaintiff bought two pairs of children’s slippers for her

godchildren for Christmas from Stompeez. Shortly thereafter, Plaintiff began receiving telephone

calls from an unknown telephone number. When Ms. Toney finally answered the persistent calls,

she spoke directly with a telemarketing representative for Quality who confirmed the plaintiff’s

address on the order was correct; of course, it was. Then the telemarketing representative of

Quality entered into the high-pressure sales pitch, which notified plaintiff that, as a result of her

Stompeez purchase, she was being automatically enrolled into Sempris’ “Budget Savers”

program. Through discovery, the Plaintiff was able to identify the other individuals who were

subjected to the same telemarketing practices.

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

three mediation sessions over the course of eighteen months, including two before the Honorable

James Holderman (Ret.) of JAMS, the final of which on May 10, 2016 resulted in a settlement in

principal. (Holderman Affidavit ¶ 4; Burke Aff. ¶ 10.) In connection with the mediations, the


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Parties submitted detailed mediation briefs to Judge Holderman, setting forth their respective

views on the strengths of their cases. (Holderman Aff. ¶ 5.) At all times, the Parties’ settlement

negotiations were adversarial, non-collusive, and at arm’s-length. (Holderman Aff. ¶ 7.) These

discussions culminated in the Settlement Agreement.

III. THE PROPOSED SETTLEMENT

A. The Settlement Class

The proposed Settlement would establish a “Settlement Class” for settlement purposes

only, defined as:

All persons who are or were the subscribers and/or customary users of the telephone numbers on the Class List, and to whom, from January 3, 2009 through the date of preliminary approval, Quality Resources, Inc., made a call or calls in connection with Stompeez Kids Slippers purchases. The following persons are excluded from the Settlement Class: Sempris, any parent, subsidiary, or affiliate of Sempris, the officers, directors, agents, servants, or employees of any of the foregoing as of the entry of the Preliminary Approval Order, Class Counsel, the Settlement Administrator, the Mediator, and any judge presiding over the Action.

(Agr. ¶ 1.23.) The records obtained in discovery indicate that there are 64,106 unique telephone

numbers attributable to Settlement Class Members. (Burke Aff. ¶10.)

B. Settlement Relief

1. Class Member Relief: Settlement Fund

The proposed Settlement establishes a non-reversionary $2,150,000 Settlement Fund,

which will be used to pay: (1) cash settlement awards to Settlement Class Members;

(2) Settlement Administration Expenses (estimated to be $51,089); (3) court-approved attorney’s

fees of up to one-third of the total amount of the Settlement Fund, in addition to out of pocket

expenses; and (4) a court-approved incentive award to the Class Representative of up to $15,000.

(Agr. ¶ 2.4)


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Each Settlement Class Member who submits a valid claim will receive a pro rata share of

the Settlement Fund after the deduction of the amount for Settlement Administration Expenses,

attorneys’ fees and costs to Class Counsel, and any incentive award. (Agr. ¶ 2.3) If all of these

amounts are approved as requested and agreed to by the parties, based on expected claims rates,

Plaintiff’s counsel would expect that each Settlement Class Member would receive $200. (Burke

Aff. ¶ 10.) This payment also does not prevent the Settlement Class from continuing to pursue

its claim against Quality. The Settlement places no cap on individual Settlement Class Member

recoveries, and, in fact, provides for a further pro rata distribution of any amount remaining

amount remaining in uncashed settlement distribution checks, to the extent administratively

feasible.3 (Agr. ¶ 2.4.)

2. Class Member Relief: Assignment of Indemnity Rights against Quality

As a result of this Lawsuit, Sempris has agreed that the Plaintiff and the Settlement Class

will receive any rights to indemnity or subrogation against Quality Resources for claims arising

out of the claims asserted by the Plaintiff in this action. (Agr. ¶ 2.2) This benefit received by the

Settlement Class Members increases the likelihood that Settlement Class Members will also be

able to recover against Quality as this action moves forward.

3. Class Representative Incentive Award

If approved by the Court, the Plaintiff will receive an incentive award of $15,000 from

the Settlement Fund, in lieu of any payments on claims to which she might otherwise be entitled

3 If distribution of any amounts remaining from uncashed checks is administratively infeasible—i.e., Settlement Class Members would receive less than an additional $1.00, after administrative costs—then that amount will instead be distributed to a Court-approved cy pres recipient. (Agr. ¶ 2.2.) The Parties propose the National Consumer Law Center as the designated cy pres recipient. (Agr. ¶ 2.2.)


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as a Settlement Class Member under the Settlement. (Agr. ¶ 8.2.) This award will compensate

Plaintiff for her time and effort and for the risk they undertook in prosecuting this case.

4. Attorneys’ Fees and Costs

Before the hearing on final approval of the settlement, Class Counsel will apply to the

Court for an award of attorneys’ fees in the amount of up to one-third of the total amount of the

Settlement Fund, in addition to out of pocket expenses. (Agr. ¶ 8.1.) As Class Counsel will

address in their fee application, an award of attorneys’ fees and costs will compensate Class

Counsel for the work already performed in relation to the settled claims, as well as the remaining

work to be performed in documenting the Settlement, securing Court approval of the Settlement,

making sure the Settlement is fairly implemented, and obtaining dismissal of the action.

5. Remaining Funds

Any amount remaining in the Settlement Fund after paying all Approved Claims,

Settlement Administration Expenses, and any Fee Award and incentive award will be distributed

to a Court-approved cy pres recipient. (Agr. ¶ 2.4(d).) The Parties propose National Consumer

Law Center. (Id.) This will only include the amount remaining from uncashed checks, to the

extent further distribution to the Settlement Class is not administratively feasible. (Id.)

C. Notice and Settlement Administration

All Settlement Administration Expenses will be paid from the Settlement Fund. (Agr. ¶

1.20.) The Parties have agreed upon, and propose that the Court approve, the nationally-

recognized class action administration firm Kurtzman Carson Consultants LLC (“KCC”) to be

the Settlement Administrator (Agr. ¶ 1.21), and to implement the Notice Plan and administer the

Settlement, subject to review by counsel. The Settlement Administrator’s duties will include:

(1) sending Notice to the Settlement Class pursuant to the Notice Plan; (2) responding to

inquiries regarding the process from persons in the Settlement Class; (3) processing and


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evaluating claim forms, opt-outs and objections and (4) issuing settlement payments. (Agr. ¶

5.1)

The Settlement Administrator will send direct postcard notice via the U.S. Postal

Service—substantially in the form attached as Exhibit 3 to the Settlement Agreement—to the

names and addresses of Settlement Class Members. (Agr. ¶ 4.2(a).) The Settlement

Administrator also will administer a Settlement Website, substantially in the form of Exhibit 4 to

the Settlement Agreement, through which Settlement Class Members will be able to submit

Claim Forms in response to Publication Notice and obtain further details and information about

the Settlement, including reviewing the Parties’ Stipulation of Settlement. (Agr. ¶ 4.2(c).)

Notice will be further bolstered through an online media notice campaign directing consumers to

the Settlement Website. (Agr. ¶ 4.2(b).)

D. Opt-Out and Objection Procedures

Persons in the Settlement Class will have the opportunity to exclude themselves from the

Settlement or object to its approval. (Agr. ¶¶ 4.3-4.4.) The procedures and deadlines for filing

opt-out requests and objections will be conspicuously listed in the Notices and on the Settlement

Website. (See Agr. at Exs. 2-3.) The Notice informs Settlement Class Members that they will

have an opportunity to appear and have their objections heard by this Court at a Final Approval

Hearing. (Id.) The Notice also informs Settlement Class Members that they will be bound by the

release contained in the Settlement Agreement unless they timely exercise their opt-out right.

(Id.)

E. Release

The release is appropriately tailored to this case involving alleged violations of the TCPA

and limited to the individuals called by Quality as a result of a Stompeez slippers online order, as


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was made to the Plaintiff. There are 64,106 unique telephone numbers contained in the Class

List. In exchange for settlement benefits, Plaintiff and all subscribers and customary users of

those 64,106 telephone numbers (the Settlement Class Members) who do not timely opt out of

the Settlement will release Sempris and its present, former, and future predecessors, successors,

assigns, parents, subsidiaries—from any and all claims against the Released Parties, or any of

them, arising out of or relating to the act of promoting Sempris goods or services by Quality as a

result of the online purchase of Stompeez slippers, that were calls made to: (a) telephone

numbers that were listed on the National Do Not Call registry and/or (b) to telephone numbers

using a pre-recorded message. (Agr. ¶¶ 1.24; § 3.). The co-defendant Quality is not participating

in the Settlement and Quality and its officers are not receiving a release.

IV. ARGUMENT

A. The Settlement Approval Process

Federal courts strongly favor and encourage settlements, particularly in class actions and

other complex matters, where the inherent costs, delays, and risks of continued litigation might

otherwise overwhelm any potential benefit the class could hope to obtain. Armstrong v. Bd. of

Sch. Dirs. of the City of Milwaukee, 616 F.2d 305, 312–13 (7th Cir. 1980) (noting that “[i]n the

class action context in particular there is an overriding public interest in favor of settlement”)

(citations, quotations, and internal marks omitted), overruled on other grounds by Felzen v.

Andreas, 134 F.3d 873 (7th Cir. 1998); Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996)

(“Federal courts naturally favor the settlement of class action litigation.”); see also 4 Herbert B.

Newberg & Alba Conte, Newberg on Class Actions (“Newberg”) § 11:41 (4th ed. 2002) (citing

cases). The traditional means for handling claims like those at issue here — individual

litigation — would unduly tax the court system, require a massive expenditure of public and

private resources and, given the relatively small value of the claims of the individual Settlement


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Class Members, would be impracticable. Thus, the proposed Settlement is the best vehicle for

Settlement Class Members to receive relief in a prompt and efficient manner.

A court may approve a class action settlement if it is “fair, reasonable, and adequate.”

Fed. R. Civ. P. 23(e)(2). A proposed class settlement is presumptively fair where it “is the

product of arm’s length negotiations, sufficient discovery has been taken to allow the parties and

the court to act intelligently, and counsel involved are competent and experienced.” Newberg

§ 11.41; Am. Int’l Grp., Inc. v. ACE INA Holdings., Nos. 07-2898, 09-2026, 2012 WL 651727, at

*2 (N.D. Ill. Feb. 28, 2012) (“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.”) (quotation and internal citation omitted).

Approval of a class action settlement is a two-step process. Armstrong, 816 F.2d at 314.

At the preliminary approval stage, the question for this Court is whether the settlement falls

“within a range of possible approval” and therefore warrants dissemination of notice apprising

class members of the proposed settlement. Id. If the Court preliminarily approves the class

action settlement, it then proceeds to the second step in the review process – the fairness hearing.

Id.; Manual for Complex Litig. § 21.633 (4th ed. 2004).

In assessing the fairness, reasonableness and adequacy of a settlement, courts view the

facts in the light most favorable to the settlement. Isby, 75 F.3d at 1199. The Court “should not

substitute [its] own judgment as to the optimal settlement terms for the judgment of the litigants

and their counsel.” Armstrong, 616 F.2d at 315. To evaluate fairness at the preliminary approval

stage, courts consider the following factors: (1) the strength of the case for plaintiff on the merits,

balanced against the amount offered in settlement; (2) the complexity, length and expense of the

litigation; (3) the presence of collusion in reaching a settlement; and (4) the stage of the


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proceedings and the amount of discovery completed. Synfuel Techs., Inc., 463 F.3d at 653; see

also Armstrong, 616 F.2d at 314; Isby, 75 F.3d at 1199.

As set forth in the following, the settlement here warrants preliminary approval so that

persons in the Settlement Class can be notified of the settlement and provided an opportunity to

voice approval or opposition.

B. The Settlement Merits Preliminary Approval

1. The Proposed Settlement Provides Substantial Relief to the Settlement Class Particularly in Light of the Uncertainty of Prevailing on the Merits.

a. Benefits to the Class

“The most important factor relevant to the fairness of a class action settlement is the first

one on the list: the strength of the Plaintiff’ case on the merits balanced against the amount

offered in the settlement.” Synfuel Techs., Inc., 463 F.3d at 653. Nevertheless, “[b]ecause the

essence of settlement is compromise, courts should not reject a settlement solely because it does

not provide a complete victory to Plaintiff.” In re AT&T Mobility Wireless Data Servs. Sales

Litig., 270 F.R.D. 330, 347 (N.D. Ill. 2010) (citations omitted).

The Settlement Agreement requires Sempris to pay $2,150,000 into a fund out of which

Settlement Class Members will receive a cash payment. (Agr. ¶ 2.3.) Although the precise

amount of each Settlement Class Member’s award cannot be determined until all claims have

been submitted, Plaintiff estimates, based on similar TCPA class actions, awards of

approximately $200 for each claimant after deductions for Settlement Administration Expenses,

Court‐approved attorneys’ fees and costs, and any Court‐approved incentive award. (Burke Aff.

¶ 10.) Plaintiff acknowledges that the $2,150,000 Settlement Fund does not constitute the full

measure of damages potentially available to Settlement Class Members, who theoretically could

recover up to $500 in statutory damages for each violation of the TCPA if they were to prevail in


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litigation, less fees and costs. See 47 U.S.C. § 227(c)(5) (permitting up to $500 in statutory

damages for each TCPA violation). This fact alone, however, should not weigh against

preliminary approval. “Because settlement of a class action, like settlement of any litigation, is

basically a bargained exchange between the litigants, the judiciary’s role is properly limited to

the minimum necessary to protect the interests of the class and the public. Judges should not

substitute their own judgment as to optimal settlement terms for the judgment of the litigants and

their counsel.” Armstrong, 616 F.2d at 315.

Furthermore, the Settlement Class is receiving substantial non-monetary benefits through

this Settlement Agreement. Sempris has agreed to assign the Plaintiff and the Settlement Class

any rights to indemnity or subrogation against Quality Resources for claims arising out of the

claims asserted by the Plaintiff in this action.

b. The Strength of Plaintiff’s Case

Plaintiff continues to believe that his claims against Sempris have merit, and that he

could make a compelling case if his claims were tried. Nevertheless, Plaintiff’s claims would

face a number of difficult challenges if the litigation were to continue.

Apart from the numerous affirmative defenses asserted in its Answer, Sempris has

consistently argued in negotiations, and would in its impending opposition to Plaintiff’s motion

for class certification assert that class certification is not appropriate because individualized

questions will predominate at trial, including questions relating to whether it was a class

member, or a previous subscriber, as well as the fact that a class is difficult, if not impossible, to

ascertain in this matter. These arguments are analogous to assertions of individualized issues of

consent, which often are raised by defendants in TCPA class actions. “Courts are split on

whether the issue of individualized consent renders a TCPA class uncertifiable on predominance


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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. Mar. 4, 2014)

(citing cases). For example, in Savanna Group, Inc. v. Trynex, Inc., No. 10-7995, 2013 WL

66181, at *3 (N.D. Ill. Jan. 4, 2013), the court granted class certification and rejected the

defendant’s argument that questions of consent caused individual issues to predominate, noting

that the defendant had not offered evidence tending to show that any particular class member

consented to the faxes at issue. On the other hand, in G.M. Sign, Inc. v. Brinks Mfg. Co., No. 09-

5528, 2011 WL 248511, at *8 (N.D. Ill. Jan. 25, 2011), the court declined to certify a class,

finding that the defendant offered evidence illustrating that consent could not be shown with

common proof. If Sempris were able to present convincing facts to support its position that

individualized issues predominate, there is a risk that the Court would decline to certify the class,

leaving only the named Plaintiff to pursue their individual claims.

In addition, 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.”).


13

Finally, Plaintiff faced the very real risk of failing to persuade a jury that Quality

Resources, who placed the calls at issue, were agents of Sempris. Even if Plaintiff did prevail at

trial, any judgment could be reversed on appeal. By contrast, the Settlement provides substantial

relief to Settlement Class Members without delay and is within the range of reasonableness,

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

Finally, the Agreement was achieved despite significant risk of no recovery for class

members. During this Supreme Court term, there were two cases that, if either resolved in the

favor of the Defendant, could have eliminated or diminished TCPA class actions all together. See

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 2016 WL 228345 (U.S. 2016) and Robins v

Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014) cert. granted 135 S. Ct. 1892 (Apr. 27, 2015).

2. Continued Litigation Is Likely to Be Complex, Lengthy, and Expensive.

Litigation would be lengthy and expensive if this action were to proceed. Although the

Parties have nearly concluded discovery, extensive motion work, including finishing the briefing

of motions for class certification and summary judgment, remain. The Parties also likely will

need to retain experts to analyze the applicable call data. Realistically, it could be more than a

year before the case would proceed to trial. The appeals process may further delay any judgment

in favor of Settlement Class Members. The Settlement avoids these risks and provides immediate

and certain relief. See, e.g., Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 586 (N.D. Ill.

2011) (citation omitted) (“Settlement allows the class to avoid the inherent risk, complexity,

time, and cost associated with continued litigation.”).

3. The Settlement Resulted from Extensive, Arm’s-Length Negotiations and Is Not the Result of Collusion.

The requirement that a settlement be fair is designed to prevent collusion among the

parties. Mars Steel Corp. v. Cont’l Ill. Nat’l. Bank & Trust Co. of Chicago, 834 F. 2d 677, 684


14

(7th Cir. 1987) (approving settlement upon a finding of no “hanky-panky” in negotiations).

There is an initial presumption that a proposed settlement is fair and reasonable when it was the

result of arm’s-length negotiations. Newberg, supra, § 11:42; see also Am. Int’l Grp., 2012 WL

651727, at *10.

Here, the proposed settlement was negotiated through three mediation sessions over the

course of eighteen months, and only effectuated after significant back-and-forth between the

Parties. (Holderman Aff. ¶¶4-7.) Plaintiff’s counsel are particularly experienced in the litigation

of nationwide class action cases, particularly under the TCPA. (See Burke Aff. ¶¶ 1-9; Paronich

Aff. ¶¶ 3-9; Broderick Aff. ¶¶ 3-9, McCue Aff. ¶¶ 3-9.) In negotiating this Settlement, putative

Class Counsel had the benefit of years of experience with class actions in general and a

familiarity with the facts of this case in particular. Id. An experienced mediator, the Honorable

James Holderman (Ret.) of JAMS, participated actively throughout the negotiation process.

(Burke Aff. ¶ 10, Holderman Aff. ¶ 4.) The fact that Plaintiff achieved an excellent result for the

Settlement Class despite facing significant procedural and substantive hurdles is a testament to

the non-collusive nature of the Settlement.

4. The Stage of the Proceedings and the Amount of Discovery Completed Supports Preliminary Approval.

The Parties have engaged in substantial, substantive discovery, permitting a thorough

analysis of the factual and legal issues involved in this matter. (Burke Aff. ¶10) Settlement

negotiations have been prolonged and hard-fought, spanning the course eighteen months and

three mediation sessions. Before the mediation, the Parties provided Judge Holderman with

extensive written analyses of the factual and legal issues involved with the case. (Holderman Aff.

¶ 5) Counsel’s thorough legal and factual analyses—including based on substantial discovery

and the use of a consulting expert—informed the Settlement.


15

C. Plaintiff’s Requested Fees Are Reasonable.

Putative Class Counsel seek an award not to exceed one-third of the total settlement fund

to compensate counsel for reasonable fees associated with this action (Agr. ¶ 8.1.) Additionally,

counsel for the Plaintiff will be applying for reimbursement of the actual costs expended in

litigating this matter. (Id.) The requested fee, which was negotiated only after the substantive

terms of the Settlement Agreement were reached, is reasonable under the circumstances of this

case. In the Seventh Circuit, “courts must do their best to award counsel the market price for

legal services, in light of the risk of nonpayment and the normal rate of compensation in the

market at the time.” In re Synthroid Mktg. Litig., 264 F.3d 712, 718 (7th Cir. 2001) (citing

cases).

Putative Class Counsel have achieved an excellent result for the Settlement Class. The

Settlement creates a non-reversionary Settlement Fund of $2,150,000, affording Settlement Class

Members direct monetary relief. Additionally, Sempris is providing the settlement class with

substantial non-monetary relief as it has agreed to assign the Plaintiff and the Settlement Class

any rights to indemnity or subrogation against Quality Resources for claims arising out of the

claims asserted by the Plaintiff in this action. Although putative Class Counsel were confident in

the ability to succeed at class certification and at trial, success was by no means guaranteed,

especially considering Sempris’s substantial opposition and the complexity of the issues

involved. Because putative Class Counsel agreed to prosecute this case on contingency with no

guarantee of ever being paid, counsel faced substantial risk. Finally, the fee is in line with those

deemed reasonable in the Seventh Circuit. See Pearson v. NBTY, Inc., 772 F.3d 778, 782 (7th

Cir. 2014) (“[A]ttorneys’ 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.”).


16

Prior to both final approval and the objection deadline, putative Class Counsel will file a

separate motion for an award of attorneys’ fees and costs, addressing in greater detail the facts

and law supporting their fee request in light of all of the relevant facts.

D. The Requested Incentive Award Is Reasonable.

Incentive awards for class representatives like the one requested here are appropriate.

Such awards, which serve as premiums in addition to any claims-based recovery from the

settlement, promote the public policy of encouraging individuals to undertake the responsibility

of representative lawsuits. See Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (approving

incentive award of $25,000); see also Manual for Complex Litig. § 21.62, n. 971 (incentive

awards may be “merited for time spent meeting with class members, monitoring cases, or

responding to discovery”). Such awards are generally proportional to the representative’s losses

or claims, and can range from several hundred dollars to many thousands of dollars.

Here, Plaintiff’s requested incentive award of not more than $15,000 is appropriate.

Unlike unnamed persons in the Settlement Class, who will enjoy the benefits of the Class

Representative’s efforts without taking any personal action, Plaintiff exposed themselves to

Sempris’s investigation, committed herself to all the rigors of litigation in the event the case did

not settle, and subjected herself to all the obligations of a named party. Ms. Toney had to respond

to discovery, provide documents and was subjected to an full day of deposition testimony.

E. The Proposed Class Notice Satisfies Due Process.

Rule 23(e)(1) requires the Court to “direct notice in a reasonable manner to all class

members who would be bound by” a proposed settlement. Fed. R. Civ. P. 23(e)(1); see also

Manual for Complex Litig., supra, at § 21.312. The best practicable notice is that which is

“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their objections.” Mullane v. Cent.


17

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). According to the Manual for Complex

Litigation, § 21.312, a settlement notice should do the following:

• Define the class;

• Describe clearly the options open to the class members and the deadlines for taking action;

• Describe the essential terms of the proposed settlement;

• Disclose any special benefits provided to the class representatives;

• Indicate the time and place of the hearing to consider approval of the settlement, and the method for objecting to or opting out of the settlement;

• Explain the procedures for allocating and distributing settlement funds, and, if the settlement provides different kinds of relief for different categories of class members, clearly set out those variations;

• Provide information that will enable class members to calculate or at least estimate their individual recoveries; and

• Prominently display the address and phone number of class counsel and the procedures for making inquiries.

The proposed Notice, attached as Exhibits 2-3 to the Settlement Agreement, satisfies all of the

above criteria. The Notice is clear, straightforward, and provides persons in the Settlement Class

with enough information to evaluate whether to participate in the Settlement. The Notice

therefore satisfies the requirements of Rule 23. See F.C.V., Inc. v. Sterling Nat’l. Bank, 652 F.

Supp. 2d 928, 944 (N.D. Ill. 2009) (Rule 23(b)(3) class) (citing Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 808 (1985)) (explaining that a settlement notice must provide settlement class

members with an opportunity to present their objections to the settlement).

The Settlement Agreement provides for direct notice via U.S. Mail to all addresses for all

class members contained in call logs produced in discovery. To supplement this postcard notice,

the Settlement Agreement provides for the creation of a Settlement Website where Settlement

Class Members may obtain additional relevant information about the Settlement and submit


18

Claim Forms in response to the publication notice online, which itself will be further supported

by an online media notice campaign. (Agr. ¶ 4.2(b)-(c).)

This Notice Plan satisfies due process, especially because Rule 23 does not require that

each potential class member receive actual notice of the class action. A court must simply make

certain that class members receive “the best practicable notice that is: ‘reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections.’” F.C.V., Inc., 652 F. Supp. 2d at 944 (Rule

23(b)(3) class) (quoting Shutts, 472 U.S. at 808).

All in, the Notice Plan constitutes the best notice practicable under the circumstances,

provides due and sufficient notice to the Settlement Class, and fully satisfies the requirements of

due process and Federal Rule of Civil Procedure 23.

F. The Court Should Grant Class Certification for Settlement Purposes.

For settlement purposes only, Plaintiff respectfully requests that the Court provisionally

certify the Settlement Class defined as:

All persons in the United States who, from January 3, 2009 through the date of preliminary approval, Quality Resources, Inc., called promoting Sempris’ goods or services, either (a) on a cellular telephone or (b) more than once within any twelve-month period to phone numbers registered on the Do Not Call Registry, in connection with Stompeez purchases, which are evidenced in the Class List.

(Agr. ¶ 1.23.) As detailed below, the Settlement Class meets all of the applicable certification

requirements.

Class certification is proper if Plaintiff satisfy the requirements of Rule 23(a) and one of

the prongs of Rule 23(b). Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th

Cir. 2012). Rule 23(a) requires Plaintiff to establish “‘numerosity, commonality, typicality, and

adequacy of representation.’” Kleen Products LLC v. Int’l Paper, 306 F.R.D. 585, 589 (N.D. Ill.


19

2015) (quoting Messner, 669 F.3d at 811). In this case, Plaintiff seek certification under Rule

23(b)(3), which “requires the court to find[ ] that the questions of law or fact common to class

members predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and efficiently adjudicating the

controversy,” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 759 (7th Cir. 2014) (quoting the

Rule) (internal quotation marks omitted).

The purpose of Rule 23 is to provide for the efficient administration of justice, as the

class action mechanism allows large numbers of claims involving the same core issues to

proceed in the aggregate, providing a path to relief where otherwise there would be none. “Class

actions serve an important function in our system of civil justice.” Gulf Oil Co. v. Bernard, 452

U.S. 89, 99 (1981); Wright, et al., 7A Fed. Practice & Proc. § 1751 (3d ed. 2010). In class

actions such as this one, the alternative to certification is reaping the benefits of illegal calls with

impunity. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015).

1. The Rule 23(a) Factors Are Met.

a. The Class Is Sufficiently Numerous and Joinder Is Impracticable.

A plaintiff does not need to “specify the exact number of persons in the class, … but

cannot rely on conclusory allegations that joinder is impractical or on speculation as to the size

of the class in order to prove numerosity.” Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th

Cir. 1989) (internal citations omitted). The Seventh Circuit has implied that even a class of forty

may be sufficient to warrant class certification. See Pruitt v. City of Chicago, 472 F.3d 925, 926

(7th Cir. 2006) (noting that “[s]ometimes ‘even’ 40 Plaintiff would be unmanageable”).

Numerosity is determined prior to any consideration of whether a particular class member has a

valid claim. See Parko v. Shell Oil Co., 739 F.3d 1083, 1084 (7th Cir. 2014) (“How many (if

any) of the class members have a valid claim is the issue to be determined after the class is


20

certified.”) (emphasis in original). In this case, there are tens of thousands of unique telephone

numbers that comprise the Class List. This more than establishes that “joinder of all members is

impractical.” Fed. R. Civ. P. 23(a)(1). Numerosity is satisfied.

b. The Settlement Class Shares Many Common Issues of Law and Fact.

“One of the requirements for a class action in federal court is the existence of ‘questions

of law or fact common to the class.’” Suchanek, 764 F.3d at 755 (quoting Fed. R. Civ. P.

23(a)(2)). “Where the same conduct or practice by the same defendant gives rise to the same

kind of claims from all class members, there is a common question.” Id. at 756 (citing Pella

Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010)). “The Supreme Court has explained that

‘for purposes of Rule 23(a)(2) even a single common question will do.’” Id. at 755 (quoting

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011)). Here, every class member’s

claims arise from the same common nucleus of operative facts: Quality Resources called them

to market Sempris’s products following their purchase of Stompeez children slippers. Similarly,

every class member has an interest in the same overarching question of law, i.e., whether

Sempris violated the TCPA by allowing its agents and their vendors to make these calls, and

accepting the benefits of such calls. On these issues alone, a class is appropriate. Additionally

common questions of law and fact include:

Is Sempris vicariously or directly liable under the TCPA for telemarketing calls placed by Quality?

Did Quality place the calls under Sempris’s actual authority? Did Quality place the calls under Sempris’s apparent authority? Do Sempris’s vendors agreements shield it from liability for Quality’s TCPA

violations? If there were violations of the TCPA by Sempris, were those violations knowing

or willful, such that treble damages are appropriate under 47 U.S.C. § 227(b)(3)?


21

These questions are dispositive, apply equally to all class members and, importantly, can be

answered using common proof and uniform legal analysis. Further, the uniformity of the

applicable law — the federal TCPA — distinguishes this case from putative nationwide class

actions requiring application of multiple states’ laws. The commonality requirement is therefore

met. As the Seventh Circuit recently stated, “[c]lass certification is normal in litigation under §

227, because the main questions … are common to all recipients.” Turza, 728 F.3d at 684.

c. Plaintiff’s Claims Are Typical of the Settlement Class.

As with commonality, the threshold requirement for typicality is “not high.” See Brown v.

Nucor Corp., 576 F.3d 149, 153 (4th Cir. 2009). Typicality means that the plaintiff’s claims

“arise[] from the same event or practice or course of conduct that gives rise to the claims of the

other class members and ... [the] claims are based on the same legal theory.” Rosario v. Livaditis,

963 F.2d 1013, 1018 (7th Cir. 1992) (citation omitted). This component is usually satisfied

where “defendants have engaged in standardized conduct towards members of the proposed

class.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. Ill. 1998). However, typicality does not

require that the representative’s claims be identical to every other member of the class. See

Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. Ill. 2006) (noting that “factual variations

may not defeat typicality”).

Here, the Plaintiff satisfies the typicality requirement because their interests are

sufficiently aligned with those of the class. Like all class members, the Plaintiff received

automated telemarketing calls on her cellular telephone multiple times, which was on the

National Do Not Call Registry. The Plaintiff is on the Class List obtained in discovery. She seeks

the same relief as the class, and is not subject to unique defenses.


22

d. Plaintiff and Her Counsel Are Adequate Representatives.

“Rule 23(a)(4) requires that the named Plaintiff and class counsel ‘will fairly and

adequately protect the interests of the class.’” Birchmeier, 302 F.R.D. at 252 (quoting the Rule).

In adequacy analysis, the Court considers “the adequacy of the named Plaintiff as representatives

of the proposed class’s myriad members, with their differing and separate interests.” Gomez v.

St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011). While the Supreme Court has noted

that adequacy and typicality analysis “tend[ ] to merge,” Windsor, 521 U.S. at 626 n. 20, courts

have rejected proposed class representatives due to “conflicts of interest” or “serious credibility

problems,” Birchmeier, 302 F.R.D. at 252 (internal quotation marks and citations omitted).7

Here, the Plaintiff has no conflicting interests with class members. In fact, by

investigating, documenting, filing, and prosecuting this action by providing discovery responses

documents and a full-day deposition, the Plaintiff has demonstrated a desire and ability to protect

class members’ interests. There is nothing to suggest that the Plaintiff has any interest

antagonistic to the vigorous pursuit of the class claims against the defendant. Rather, her interests

are perfectly aligned with those of class members. In addition, putative Class Counsel are

practitioners with substantial experience in consumer and class action litigation, including cases

under the TCPA similar to this one. (Burke Aff. . ¶¶ 1-9; Broderick Aff. . ¶¶ 3-9; Paronich Aff. .

¶¶ 3-9; McCue Aff. . ¶¶ 3-11.) The requirements of Rule 23(a), therefore, are satisfied.

2. The Rule 23(b)(3) Factors Are Satisfied.

Rule 23(b)(3)’s predominance requirement tests whether proposed classes are

“sufficiently cohesive to warrant adjudication by representation.” Butler v. Sears, Roebuck &

Co., 727 F.3d 796, 801 (7th Cir. 2013) (quoting Amchem Products, Inc. v. Windsor, 521 U.S.

7 Pursuant to the 2003 amendments to Rule 23, the qualifications of the Plaintiff’ counsel are assessed pursuant to subsection (g), and therefore are addressed below.


23

591, 623 (1997)). Predominance is satisfied so long as individual issues do not “overwhelm”

common issues. Id. (quoting Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 133 S. Ct.

1184, 1196 (2013)). Common issues predominate here because the central liability question—

i.e., whether Sempris caused calls to be made in violation of the TCPA—can be established

through generalized evidence. Predominance is “readily met” in certain consumer cases.

Windsor, 521 U.S. at 625. The touchstone for predominance analysis in the Seventh Circuit is

efficiency. Butler v. Sears, Roebuck & Co., 702 F.3d 359, 362 (7th Cir. 2012) (“Butler I”), vac’d

on other grounds 133 S. Ct. 2768 (2013), judgment reinstated, 727 F.3d 796 (7th Cir. 2013)

(“Butler II”), cert. denied 134 S. Ct. 1277 (2014). “[T]he requirement of predominance is not

satisfied if ‘individual questions ... overwhelm questions common to the class.’” Butler II, 727

F.3d at 801 (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196

(2013)).

Because the claims are being certified for purposes of settlement, there are no issues with

manageability. Windsor, 521 U.S. at 620 (“Confronted with a request for settlement-only

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.”). Additionally, resolution of

hundreds of thousands of claims in one action is far superior to individual lawsuits and promotes

consistency and efficiency of adjudication. See Butler, 727 F.3d at 801 (noting that “the more

claimants there are, the more likely a class action is to yield substantial economies in litigation”)

(quoting Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004)). Thus,

certification for purposes of settlement is appropriate.


24

G. Scheduling a Final Approval Hearing Is Appropriate.

The last step in the settlement approval process is a final approval hearing at which the

Court may hear all evidence and argument necessary to make its settlement evaluation.

Proponents of the Settlement may explain the terms and conditions of the Settlement Agreement,

and offer argument in support of final approval. The Court will determine after the Final

Approval Hearing whether the Settlement should be approved, and whether to enter a final order

and judgment under Rule 23(e). Plaintiff requests that the Court set a date for a hearing on final

approval at the Court’s convenience, but no earlier than 100 days after the preliminary approval

order is entered, and schedule further settlement proceedings pursuant to the schedule set forth

below:

ACTION DATE

Preliminary Approval Order Entered At the Court’s Discretion

Notice Deadline Within 21 days following entry of Preliminary Approval Order

Class Counsel’s Fee Motion Submitted Within 14 days following entry of Preliminary Approval Order

Exclusion/Objection/Publication Claim Deadline

60 days after Notice Deadline

Final Approval Brief and Response to Objections Due

At least 14 days prior to the Final Approval Hearing

Final Approval Hearing Date No earlier than 100 days following entry of Preliminary Approval Order

Final Approval Order Entered At the Court’s Convenience

V. CONCLUSION

The proposed class action Settlement is fair, reasonable, adequate, and well within the

permissible range of possible judicial approval. It should, therefore, be approved in all respects.


25

Respectfully submitted,

PLAINTIFF, individually and on behalf of a class of all persons and entities similarly situated Dated: July 5, 2016 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 Facsimile: (312) 729‐5289 Edward A. Broderick Email: [email protected] Anthony I. Paronich Email: [email protected] BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, Massachusetts 02110 Telephone: (617) 738-7080

Matthew P. McCue Email: [email protected] THE LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue, Suite 3 Natick, Massachusetts 01760 Telephone: (508) 655-1415 Facsimile: (508) 319-3077 Attorneys for Plaintiff and the Proposed Class


26

CERTIFICATE OF SERVICE

I hereby certify that on July 5, 2016, 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 Alexander H. Burke


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SARAH TONEY on behalf of herself and others )

similarly situated, )

Plaintiff, ) Case No. 1:13-cv-42

)

v. ) Judge Shadur

)

QUALITY RESOURCES, INC. )

and SEMPRIS, LLC D/B/A BUDGET )

SAVERS, )

)

Defendants. )

CLASS ACTION SETTLEMENT AGREEMENT

This class action settlement agreement (the or this “Agreement” or the or this “Settlement

Agreement”) is entered into as of June 15 2016, by and among Sarah Toney (“Plaintiff”),

individually and on behalf of the class of persons she seeks to represent (the “Settlement Class”

defined below), and Sempris, LLC d/b/a Budget Savers (“Sempris”) (Plaintiff and Sempris are

collectively referred to as the “Parties”). This Settlement Agreement is intended by the Parties to

fully, finally, and forever resolve, discharge, and settle the Released Claims (defined below),

upon and subject to the terms and conditions of the Agreement, and subject to the final approval

of the Court.

Case: 1:13-cv-00042 Document #: 241-1 Filed: 07/05/16 Page 1 of 54 PageID #:2113

- 2 -

RECITALS

A. On January 3, 2013, Plaintiff filed a putative class action complaint against

Sempris, as well as other entities, in the United States District Court for the Northern District of

Illinois, captioned Toney v. Sempris, LLC d/b/a Budget Savers, et. al., No. 13-cv-42 (the

“Action”), alleging, among other things, that Quality Resources, Inc. (“Quality Resources”)

made telemarketing calls to telephone numbers listed on the National Do Not Call Registry, as

well as to cellular telephone numbers, in violation of the Telephone Consumer Protection Act, 47

U.S.C. § 227 (the “TCPA”), and the regulations promulgated by the Federal Communications

Commission (the “FCC”) under that statute.

B. On July 31, 2014, Plaintiff filed her Third Amended putative class action

complaint against Sempris, as well as a number of other defendants, making substantially similar

allegations while eliminating a number of defendants.

C. On January 21, 2015, Sempris filed its answer and affirmative defenses in the

Action. In that answer, among other things, Sempris denies that it violated the TCPA or the

FCC’s regulations.

D. On May 10, 2016, the Parties participated in a full-day mediation with the

Honorable James F. Holderman (Ret.) of JAMS. The Parties reached an agreement on the key

terms of a class settlement.

E. Sempris at all times has denied and continues to deny any wrongdoing whatsoever

and has denied and continues to deny that it violated the TCPA or the FCC’s regulations, or

committed any other wrongful act or violation of law.

F. Plaintiff believes that the claims asserted in the Action have merit. Nonetheless,

Plaintiff and her counsel recognize and acknowledge the expense, time, and risk associated with


- 3 -

continued prosecution of the Action against Sempris through dispositive motions, class

certification, trial, and any subsequent appeals. Plaintiff and Plaintiff’s counsel also have taken

into account the uncertainty, difficulties, and delays inherent in litigation, especially in complex

actions. Therefore, Plaintiff and Plaintiff’ counsel believe that it is desirable that the Released

Claims be fully and finally compromised, settled, dismissed with prejudice, and barred pursuant

to the terms set forth herein. Based on their evaluation, which they have confirmed by consulting

with their own expert and by performing confirmatory discovery, Plaintiff and Plaintiff’s counsel

have concluded that the terms and conditions of this Agreement are fair, reasonable, and

adequate for the Settlement Class, and that it is in the best interests of the Settlement Class to

settle the Released Claims pursuant to the terms and provisions of this Agreement.

G. The Action was resolved in good faith, following arm’s-length bargaining

presided over by a retired chief federal judge for the United States Court for the Northern District

of Illinois, acting as a neutral mediator. Furthermore, the parties have been informed that Judge

Holderman will submit a declaration in support of preliminary and final approval attesting to the

same.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the

Parties, by and through their respective counsel, subject to final approval by the Court after a

hearing or hearings as provided for in this Settlement Agreement, and in consideration of the

benefits flowing from the Settlement Agreement set forth herein, that the Action and the

Released Claims shall be finally and fully compromised, settled, and released, and the Action

shall be dismissed with prejudice, upon and subject to the terms and conditions of this

Agreement.


- 4 -

AGREEMENT

1. DEFINITIONS

As used in this Settlement Agreement, the following terms have the meanings specified

below:

1.1 “Sempris Counsel” means:

David Jimenez-Ekman JENNER & BLOCK LLP

353 North Clark Street

Chicago, Illinois 60654

1.2 “Class Counsel” means:

Edward Broderick Anthony Paronich BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, Massachusetts 02110

Matthew P. McCue THE LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue, Suite 3 Natick, Massachusetts 01760 Alexander H. Burke Daniel J. Marovitch BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, Illinois 60601

1.3 “Class Representative” means Sarah Toney.

1.4 “Court” means the United States District Court for the Northern District of

Illinois.

1.5 “Effective Date” means the date one (1) business day after which all of the

events and conditions specified in Paragraph 9.1 have occurred and have been met.

1.6 “Fee Award” means the amount of attorneys’ fees and reimbursement of

expenses awarded by the Court to Class Counsel.


- 5 -

1.7 “Final” means one (1) business day following the later of the following events:

(i) the date upon which the time expires for filing or noticing any appeal of the Court’s Final

Approval Order and Judgment; or (ii) if there is an appeal or appeals, other than an appeal or

appeals solely with respect to the Fee Award, the date of final dismissal or completion – in a

manner that finally affirms and leaves in place the Final Approval Order and Judgment, provided

that any change or modification that may increase Sempris’ liability under the Settlement, reduce

the scope of the Released Claims, or alter the definition of the Settlement Class shall prevent the

Final Approval Order and Judgment from becoming Final, unless Sempris, in its sole discretion,

waives that condition – of all proceedings arising out of the appeal or appeals (including, but not

limited to, the expiration of all deadlines for motions for reconsideration or petitions for review

and/or certiorari, all proceedings ordered on remand, and all proceedings arising out of any

subsequent appeal or appeals following decisions on remand).

1.8 “Final Approval Hearing” means the hearing before the Court where the Parties

will request that the Court enter the Final Approval Order and Judgment, approve the Settlement

Agreement, and approve the Fee Award and the incentive award to the Class Representative.

1.9 “Final Approval Order and Judgment” means a document substantially in the

form of Exhibit 1, to be entered by the Court following the Final Approval Hearing.

1.10 “Mediator” means Honorable James Holderman (Ret.) of JAMS.

1.11 “Notice” means the notice of this Settlement Agreement and Final Approval

Hearing, which is to be provided to the Settlement Class in accordance with this Agreement and

substantially in the form of Exhibit 2 hereto.

1.12 “Claim Form” means the claim form that is to be provided to the Settlement

Class in accordance with this Agreement and substantially in the form of Exhibits 3 and 4 hereto.


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1.13 “Notice Plan” means the plan, as set forth in Paragraph 4.2 and as executed and

administered by the Settlement Administrator, for disseminating notice to members of the

Settlement Class of the Settlement Agreement and of the Final Approval Hearing.

1.14 “Objection/Exclusion/Claim Deadline” means the date by which (1) a written

objection to this Settlement Agreement, or (2) a request for exclusion, or (3) a Claim Form

submitted by a person within the Settlement Class must be postmarked, which shall be no later

than eighty-one (81) days after entry of the Preliminary Approval Order, or such other date as

ordered by the Court, which deadline shall be posted to the Settlement Website listed in

Paragraph 4.2(c).

1.15 “Preliminary Approval Order” means the document substantially in the form of

Exhibit 5, to be entered by the Court for purposes of preliminarily approving the Settlement

Agreement, certifying the Settlement Class solely for settlement purposes, and approving the

form of the Notice and the Notice Plan.

1.16 “Released Claims” means any and all actual, potential, filed, known or unknown,

fixed or contingent, claimed or unclaimed, asserted or unasserted, suspected or unsuspected,

claims, demands, liabilities, rights, causes of action, contracts or agreements, extra-contractual

claims, damages, punitive, exemplary, or multiplied damages, expenses, costs, attorneys’ fees

and or obligations, whether in law or in equity, accrued or unaccrued, direct, individual or

representative, of every nature and description whatsoever, whether based on the TCPA or other

federal, state, or local statutory or common law, or any other law, rule, or regulation, against the

Released Parties, or any of them, arising out of or relating to the act of initiating or making calls,

by or on behalf of any of the Released Parties, to: (a) telephone numbers that were listed on the

national Do Not Call registry and/or (b) wireless telephone numbers. The Released Claims


- 7 -

include any and all claims that were brought or could have been brought in the Action against the

Released Parties, and any and all Unknown Claims.

The foregoing release does not an shall not be construed to effect a release of the

claims of Plaintiff and the Proposed Class against Quality Resources, Inc. and any of its present

or former predecessors, successors, subsidiaries, and all of their respective officers, directors,

partners, insurers, insureds, employees, shareholders, servants and assigns.

1.17 “Unknown Claims” means claims that could have been raised in the Action and

that the Settlement Class Members or any or all other persons and entities whose claims are

being released, or any of them, do not know or suspect to exist, which, if known by him, her or

it, might affect his, her or its agreement to release the Released Parties or the Released Claims or

might affect his, her or its decision to agree, object or not to object to the Settlement. Upon the

Effective Date, Settlement Class Members and all other Persons and entities whose claims are

being released shall be deemed to have, and shall have, expressly waived and relinquished, to the

fullest extent permitted by law, the provisions, rights and benefits of § 1542 of the California

Civil Code, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Upon the Effective Date, Settlement Class Members and all other persons and entities

whose claims are being released, also shall be deemed to have, and shall have, waived any and

all provisions, rights and benefits conferred by any law of any state or territory of the United

States, or principle of common law, or the law of any jurisdiction outside of the United States,

which is similar, comparable or equivalent to § 1542 of the California Civil Code. Settlement


- 8 -

Class Members acknowledge that they may discover facts in addition to or different from those

that they now know or believe to be true with respect to the subject matter of this release, but that

it is their intention to finally and forever to settle and release the Released Claims,

notwithstanding any Unknown Claims they may have, as that term is defined in this Paragraph.

1.18 “Released Parties” means Sempris, LLC, its present, former, and future parents,

subsidiaries, and affiliates, and all employees, agents, representatives, consultants, independent

contractors, insurers, directors, managing directors, officers, partners, principals, members,

attorneys, accountants, financial and other advisors, investment bankers, underwriters,

shareholders, lenders, auditors, predecessors, successors, and assigns of any of the foregoing

persons and entities. In the avoidance of doubt, nothing in this Agreement is intended to, or shall

be construed as, include Quality Resources, Inc. and any of its present or former predecessors,

successors, subsidiaries, and all of their respective officers, directors, partners, insurers, insureds,

employees, shareholders, servants and assigns within the definition of Released Parties.

1.19 “Releasing Parties” means: (a) Plaintiff; (b) Settlement Class Members who do

not timely opt out of the Settlement Class (whether or not such members submit claims); (c) to

the extent that a Settlement Class Member is not an individual, all of its present, former, and

future parents, subsidiaries, and affiliates, and all employees, agents, representatives, consultants,

independent contractors, insurers, directors, managing directors, officers, partners, principals,

members, attorneys, accountants, financial and other advisors, investment bankers, underwriters,

shareholders, lenders, auditors, predecessors, successors, and assigns of any of the foregoing

persons and entities; and (d) to the extent the Settlement Class Member is an individual, any

present, former, and future spouses, as well as the present, former, and future heirs, executors,


- 9 -

estates, administrators, representatives, agents, attorneys, partners, successors, predecessors, and

assigns of each of them, and any other representatives of any of the foregoing persons.

1.20 “Settlement” means the settlement contemplated by this Agreement.

1.21 “Settlement Administration Expenses” means the expenses incurred by the

Settlement Administrator in providing Notice, and mailing checks for Settlement Class

Members. Settlement Administration Expenses shall be paid from the Settlement Fund.

1.22 “Settlement Administrator” means Kurtzman Carson Consultants LLC

(“KCC”).

1.23 “Class List” means the list of 64,106 unique telephone numbers that were called

by Quality Resources in connection with Stompeez Kids Slippers purchases.

1.24 “Stompeez” refers to the company that sold the children’s slippers purchase

information to Quality Resources. This company has also been referred to as Infomericals, USA

in this lawsuit.

1.25 “Settlement Class” means all persons who are or were the subscribers and/or

customary users of the telephone numbers on the Class List, and to whom, from January 3, 2009

through the date of preliminary approval, Quality Resources, Inc., made a call or calls in

connection with Stompeez Kids Slippers purchases. The following persons are excluded from the

Settlement Class: Sempris, any parent, subsidiary, or affiliate of Sempris, the officers, directors,

agents, servants, or employees of any of the foregoing as of the entry of the Preliminary

Approval Order, Class Counsel, the Settlement Administrator, the Mediator, and any judge

presiding over the Action.

1.26 “Settlement Class Member” means a person who falls within the definition of

the Settlement Class and who has not submitted a valid request for exclusion.


https://www.kccllc.net/

- 10 -

1.27 “Settlement Class Recovery” means the amount of the Settlement Fund

available for distribution to Settlement Class Members who submitted Approved Claims, after

payment of Settlement Administration Expenses, the Fee Award to Class Counsel, and any

approved incentive award to the Class Representative.

1.28 “Settlement Fund” means the Two Million One Hundred and Fifty Thousand

Dollars ($2,150,000) that Sempris has agreed to pay pursuant to the terms of this Settlement

Agreement, including but not limited to Paragraph 2.1 below.

1.29 “Settlement Website” means the website to be created by the Settlement

Administrator containing full details and information about the Settlement, including this

Agreement and the Notice.

2. SETTLEMENT RELIEF

2.1 Assignment of Indemnity and Subrogation Rights. Sempris agrees that, as part

of this Agreement, upon the Effective Date, Sempris irrevocably assigns to the Settlement Class

any and all of Sempris’ rights to indemnity and/or subrogation against Quality Resources for

claims arising out of the claims asserted by the Plaintiff in the Action; provided, however, that

Sempris expressly retains any and all rights to indemnity and subrogation against Quality

Resources arising from or relating to any action or failure to act other than those alleged actions

giving rise to the claims asserted by Plaintiff in the Action.

2.2 Settlement Fund. Sempris agrees to provide a Settlement Fund in the amount of

Two Million One Hundred and Fifty Thousand Dollars ($2,150,000), for the purpose of making

payments with respect to all Settlement Class Members who submit Approved Claims under this

Agreement, all Settlement Administration Expenses, any incentive award to the Class

Representative, and any Fee Award to Class Counsel. Sempris will fund the Settlement Fund as


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follows: (a) within fourteen (14) days following entry of the Preliminary Approval Order,

Sempris will transfer Two Million One Hundred and Fifty Thousand Dollars ($2,150,000) to the

Settlement Administrator (via wire instructions provided by the Settlement Administrator to

Sempris). The Settlement Administrator will hold those amounts until such time as the

Settlement Administrator is authorized to use or pay those funds, including for any authorized

up-front notice costs, pursuant to the Settlement Agreement, the Preliminary Approval Order, or

the Final Approval Order and Judgment.

2.3 Monetary Payments

(a) Settlement Class Members shall have until the Objection/Exclusion/Claim

Deadline to submit a Claim Form. Any Settlement Class Member who submits a Claim Form

that is determined to be an Approved Claim shall be entitled to receive a pro rata share of the

Settlement Class Recovery, so that each Settlement Class Member who submits an Approved

Claim shall be entitled to receive an amount equal to the Settlement Class Recovery divided by

the total number of Approved Claims.

(b) As soon as practicable but no later than sixty (60) days after the Effective

Date, or such other date as the Court may set, the Settlement Administrator shall transmit checks

to pay all Settlement Class Members who submitted Approved Claims, which shall be mailed to

those Settlement Class Members via first-class mail.

(c) All payments issued to Settlement Class Members via check will state on

the face of the check that the check will expire and become null and void unless cashed within

ninety (90) days after the date of issuance.

(d) To the extent that any checks to Settlement Class Members expire and

become null and void, the Settlement Administrator shall distribute the leftover funds associated


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with those checks to Settlement Class Members who cashed their check from the previous round

of distribution on a pro rata basis, if doing so is administratively feasible (i.e., those Settlement

Class Members each would receive a check for more than $1, after the costs of administration).

Any remaining monies, including to the extent a second distribution is not administratively

feasible, shall be distributed as a cy pres award to the National Consumer Law Center or other

organization as directed by the Court.

3. RELEASES

3.1 The Parties intend that this Settlement Agreement will fully and finally dispose of

the Action and any and all Released Claims against the Released Parties.

3.2 Upon the Effective Date, the Releasing Parties, and each of them, shall be deemed

to have, and by operation of the Final Approval Order and Judgment shall have, fully, finally,

and forever released, relinquished, and discharged all Released Claims against the Released

Parties, and each of them. The foregoing release does not and shall not extend to a release of the

claims of Plaintiff and the Settlement Class against Quality Resources, Inc. and any of its present

or former predecessors, successors, and subsidiaries, and all of their respective officers,

directors, partners, members, principals, insurers, insureds, employees, shareholders, attorneys,

servants, and assigns (“the Non-Released Parties”).

4. NOTICE TO THE CLASS

4.1 Upon entry of the Preliminary Approval Order, the Settlement Administrator shall

cause the Notice to be disseminated to the Settlement Class. Such Notice shall comport with

Rule 23 of the Federal Rules of Civil Procedure, and be effectuated pursuant to the Notice Plan,

the costs of which shall be Settlement Administration Expenses, and which shall be paid from

the Settlement Fund.


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4.2 The Notice Plan, which was developed in consultation with the Settlement

Administrator, includes:

(a) Direct Notice. Subject to the approval of the Court, the Settlement

Administrator shall send direct notice to the Settlement Class, within 21 days after entry of the

Preliminary Approval Order, substantially in the form provided in Exhibit 2, via the U.S. Postal

Service to the names and addresses associated with the telephone numbers in the Class List.

Sempris will reasonably cooperate with the Settlement Administrator in providing name,

address, and email information contained in Sempris’ files relating to any Settlement Class

Member. To the extent that Sempris is not reasonably able to provide such information to the

Settlement Administrator, Plaintiff will obtain the information from Quality Resources or

Infomercials USA.

(b) Online Media Notice. The Settlement Administrator will implement an on-

line media campaign as designed by the Settlement Administrator, the content of which will be

agreed upon by Class Counsel and Sempris Counsel. The online media campaign will commence

no later than fourteen (14) days after entry of the Preliminary Approval Order.

(c) Settlement Website. Within fourteen (14) days after entry of the

Preliminary Approval Order, Notice shall be provided on a website, which shall be administered

by the Settlement Administrator and shall include the ability to file Claim Forms online The

Notice on the Settlement Website shall be substantially in the form of Exhibit 4 hereto.

4.3 Any member of the Settlement Class who intends to object to this Agreement

must send to the Court a written statement that includes: his or her full name; address; telephone

number or numbers that he or she maintains were called; all grounds for the objection, with

factual and legal support for each stated ground; the identity of any witnesses he or she may call


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to testify; copies of any exhibits that he or she intends to introduce into evidence at the Final

Approval Hearing; a statement of the identity (including name, address, phone number and

email) of any lawyer who was consulted or assisted with respect to any objection, and a

statement of whether he or she intends to appear at the Final Approval Hearing with or without

counsel. Any member of the Settlement Class who fails to timely file a written objection in

accordance with the terms of this paragraph and as detailed in the Notice, and at the same time

provide a copy of the filed objection to the Settlement Administrator, shall not be permitted to

object to this Agreement at the Final Approval Hearing, and shall be foreclosed from seeking any

review of this Agreement by appeal or other means and shall be deemed to have waived his or

her objections and be forever barred from making any such objections in the Action or any other

action or proceeding. To be timely, the objection must be filed and sent to the Settlement

Administrator on or before the Objection/Exclusion/Claim Deadline approved by the Court and

specified in the Notice.

4.4 Any member of the Settlement Class may request to be excluded from the

Settlement Class by sending a written request for exclusion to the Settlement Administrator

postmarked on or before the Objection/Exclusion/Claim Deadline approved by the Court and

specified in the Notice. In order to exercise the right to be excluded, a member of the Settlement

Class must timely send a written request for exclusion to the Settlement Administrator providing

his or her full name, address, and telephone numbers. Further, the written request for exclusion

must include a statement that the member of the Settlement Class submitting the request wishes

to be excluded from the Settlement, and the personal signature of the member of the Settlement

Class submitting the request. A request to be excluded that does not include all of the foregoing

information, or that is sent to an address other than that designated in the Notice, or that is not


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postmarked within the time specified, shall be invalid, and any Person serving such a request

shall be a Settlement Class Member and shall be bound as a Settlement Class Member by the

Agreement, if approved. Any member of the Settlement Class who elects to be excluded shall

not: (i) be bound by the Final Approval Order and Judgment; (ii) be entitled to relief under this

Settlement Agreement; (iii) gain any rights by virtue of this Agreement; or (iv) be entitled to

object to any aspect of this Agreement. So-called “mass” or “class” opt-outs shall not be

allowed.

5. SETTLEMENT ADMINISTRATION

5.1 The Settlement Administrator shall, under the supervision of the Court, administer

the relief provided by this Settlement Agreement by processing Claim Forms in a rational,

responsive, cost effective, and timely manner. The Settlement Administrator shall maintain

reasonably detailed records of its activities under this Agreement. The Settlement Administrator

shall maintain all such records as are required by applicable law in accordance with its normal

business practices, and such records will be made available to Class Counsel and Sempris

Counsel upon request. The Settlement Administrator shall provide reports and other information

to the Court as the Court may require. Should the Court request, Class Counsel shall submit a

report to the Court summarizing the work performed by the Settlement Administrator, including

a report of all amounts from the Settlement Fund paid to Settlement Class Members on account

of Settlement Class Members. Without limiting the foregoing, the Settlement Administrator shall

receive objections and exclusion forms and promptly provide to Class Counsel and Sempris

Counsel copies thereof;


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5.2 In the exercise of its duties outlined in this Agreement, the Settlement

Administrator shall have the right to reasonably request additional information from the Parties

or any Settlement Class Member.

6. TERMINATION OF SETTLEMENT

Termination Notice. To the extent that Paragraphs 9.1-9.3 below are not substantially

fulfilled, Sempris, or the Plaintiff on behalf of the Settlement Class, shall have the right to

request termination of this Agreement by filing written request to do so (“Termination Notice”)

with the Court and serving that Termination Notice on all other Parties hereto within ten (10)

business days of any of the following events: (i) the Court’s refusal to enter a Preliminary

Approval Order; (ii) the Court’s refusal to enter a Final Approval Order and Judgment or any

appellate court’s refusal to Uphold the Final Approval Order and Judgment in any respect; or

(iii) the opt-out of more than 2,500 class members to the settlement. Upon effective termination,

the balance of the Settlement Fund not expended on notice and administration shall be returned

to Sempris.

7. PRELIMINARY APPROVAL ORDER AND FINAL APPROVAL ORDER AND

JUDGMENT.


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7.1 Promptly after the execution of this Agreement, Plaintiff’s counsel shall submit

this Agreement together with its exhibits to the Court and shall move the Court for entry of the

Preliminary Approval Order, which shall, among other things, certify the Settlement Class for

settlement purposes only, appoint Plaintiff’s counsel as Class Counsel and Plaintiff as the Class

Representative, shall set a Final Approval Hearing date, and approve the Notice for

dissemination in accordance with the Notice Plan. Such Preliminary Approval Order shall also

authorize the Parties, without further approval from the Court, to agree to and adopt such

amendments, modifications, and expansions of the Settlement Agreement and its implementing

documents (including all exhibits to this Agreement) so long as they are consistent in all material

respects with the terms of the Final Approval Order and Judgment set forth in Paragraph 7.4

below.

7.2 At the time of the submission of this Agreement to the Court as described above,

Plaintiff and Sempris shall request that, after Notice is disseminated to members of the

Settlement Class in accordance with the Notice Plan, the Court hold a Final Approval Hearing

and approve the Settlement as set forth herein. The Final Approval Hearing shall be no earlier

than one hundred (100) days after entry of the Preliminary Approval Order, or such other time as

the Court shall set.

7.3 The Settlement Administrator shall provide the notice required under the Class

Action Fairness Act (“CAFA”), including 28 U.S.C. § 1715, on behalf of and subject to the

approval of Sempris.

7.4 After Notice is disseminated in accordance with the Notice Plan, the Parties shall

request and seek to obtain from the Court a Final Approval Order and Judgment, which will

(among other things):


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(a) find that the Court has personal jurisdiction over all Settlement Class

Members and that the Court has subject matter jurisdiction to approve the Agreement, including

all exhibits hereto;

(b) approve the Settlement Agreement and the proposed Settlement as fair,

reasonable, and adequate as to, and in the best interests of Settlement Class Members; direct the

Parties and their counsel to implement the Agreement according to its terms and provisions; and

declare the Agreement to be binding on, and have preclusive effect on, all pending and future

lawsuits or other proceedings maintained by or on behalf of Plaintiff and the Releasing Parties;

(c) find that the Notice and the Notice Plan implemented pursuant to the

Agreement (1) constitute the best practicable notice under the circumstances; (2) constitute

notice that is reasonably calculated to apprise members of the Settlement Class of the pendency

of the Action, their right to object to or exclude themselves from the proposed Settlement, and to

appear at the Final Approval Hearing; (3) are reasonable and constitute due, adequate, and

sufficient notice to all persons and entities entitled to receive notice; and (4) meet all applicable

requirements of the Federal Rules of Civil Procedure, the Due Process Clause of the United

States Constitution, and the rules of the Court;

(d) find that the Class Representative and Class Counsel adequately

represented the Settlement Class for purposes of entering into and implementing the Agreement;

(e) dismiss the Action (including all individual claims and Settlement Class

Member claims asserted therein against Sempris) on the merits and with prejudice as to Sempris

only, without fees or costs to any Party except as provided in the Settlement Agreement.

However, the Action will remain with respect to Quality Resources;


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(f) incorporate the releases set forth above, make those releases effective as of

the Effective Date, and forever discharge the Released Parties as set forth herein; and

(g) without affecting the finality of the Final Approval Order and Judgment

for purposes of appeal, retain jurisdiction as to all matters relating to administration,

consummation, enforcement, and interpretation of the Settlement Agreement and the Final

Approval Order and Judgment, and for any other necessary purpose; and

(h) incorporate any other provisions, as the Court deems necessary and just.

8. CLASS COUNSEL’S FEE AWARD; INCENTIVE AWARD.

8.1 Subject to the Court’s approval, Sempris has agreed that the Settlement Fund can

be used to pay a Fee Award approved by the Court to Class Counsel. Class Counsel shall apply,

subject to the approval of the Court, for a fee award of up to one-third of the Settlement Fund of

$2,150,000, plus out-of-pocket costs incurred by Class Counsel in this litigation. Nothing in this

Agreement requires Sempris to take any position with respect to Class Counsel’s fee application.

Plaintiff’s counsel agrees that any such Fee Award shall be paid solely out of the Settlement

Fund and shall not increase Sempris’ total financial liability with respect to this Agreement.

8.2 In lieu of any payments on claims to which she may be entitled as a Settlement

Class Member under the Settlement Agreement, and in recognition of her efforts on behalf of the

Settlement Class, the Class Representative shall, subject to the approval of the Court, be awarded

an incentive award in the amount of fifteen thousand dollars ($15,000). Nothing in this

Agreement requires Sempris to take any position with respect to this paragraph. The Class

Representative agrees that any such incentive award shall be paid solely out of the Settlement

Fund and shall not increase Sempris’ total financial liability with respect to this Agreement.


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9. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL,

CANCELLATION OR TERMINATION.

9.1 The Effective Date of this Settlement Agreement shall not occur unless and until

each of the following events has occurred and shall be the date upon which the last (in time) of

the following events occurs:

(a) This Agreement has been signed by Plaintiff and Sempris;

(b) The Court has entered the Preliminary Approval Order;

(c) The Court has entered the Final Approval Order and Judgment, following

Notice to the Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of

Civil Procedure, and has entered the Final Approval Order and Judgment, or a final approval

order and judgment substantially consistent with this Agreement (the “Alternative Final

Approval Order and Judgment”); and

(d) The Final Approval Order and Judgment or Alternative Final Approval

Order and Judgment has become Final, as defined above.

9.2 If some or all of the conditions specified in Paragraph 9.1 are not met, or in the

event that this Agreement is not approved by the Court, then this Settlement Agreement shall be

canceled and terminated unless Plaintiff’s counsel and Sempris mutually agree in writing to

proceed with this Agreement.

9.3 If this Agreement is terminated or fails to become Effective, the Parties shall be

restored to their respective positions in the Action as of the date of the signing of this Agreement.

In such event, any Final Approval Order and Judgment or other order entered by the Court in

accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and the

Parties shall be returned to the status quo ante with respect to the Action as if this Agreement

had never been entered into.


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10. MISCELLANEOUS PROVISIONS

10.1 The Parties (a) acknowledge that it is their intent to consummate this Settlement

Agreement; and (b) agree, subject to their fiduciary and other legal obligations, to cooperate to

the extent reasonably necessary to effectuate and implement all terms and conditions of this

Agreement and to exercise their reasonable best efforts to accomplish the foregoing terms and

conditions of this Agreement. Plaintiff’s counsel and Sempris agree to cooperate with one

another in seeking Court approval of the Preliminary Approval Order, the Settlement Agreement,

and the Final Approval Order and Judgment, and promptly to agree upon and execute all such

other documentation as may be reasonably required to obtain final approval of the Agreement.

10.2 The Parties intend this Settlement Agreement to be a final and complete

resolution of all disputes between them with respect to the Released Claims. The Parties agree

not to assert in any forum that the Action was brought by Plaintiff or defended by Sempris in bad

faith or without a reasonable basis.

10.3 The Parties have relied upon the advice and representation of counsel, selected by

them, concerning their respective legal liability for the claims hereby released. The Parties have

read and understand fully the above and foregoing Agreement and have been fully advised as to

the legal effect thereof by counsel of their own selection and intend to be legally bound by the

same.

10.4 The Settlement and this Agreement represent a negotiated compromise, and

regardless whether the Effective Date occurs or the Settlement Agreement is terminated, neither

this Agreement nor the Settlement, nor any act performed or document executed pursuant to or in

furtherance of this Agreement or the Settlement:


- 22 -

(a) is, may be deemed, or shall be used, offered or received against the

Released Parties, or each or any of them, as an admission, concession, or evidence of the validity

of any Released Claims, the truth of any fact alleged by the Class Representative, the deficiency

of any defense that has been or could have been asserted in the Action, the violation of any law

or statute, the reasonableness of either the Settlement Fund or the Fee Award, or of any alleged

wrongdoing, liability, negligence, or fault of the Released Parties, or any of them;

(b) is, may be deemed, or shall be construed against Plaintiff and the

Settlement Class, or each or any of them, or against the Released Parties, or each or any of them,

as an admission, concession, or evidence that the consideration to be given hereunder represents

an amount equal to, less than or greater than that amount that could have or would have been

recovered after trial; and

(c) is, may be deemed, or shall be construed against Plaintiff and the

Settlement Class, or each or any of them, or against the Released Parties, or each or any of them,

as an admission, concession, or evidence that any of Plaintiff’s or the Settlement Class’s claims

are with or without merit or that damages recoverable in the Action would have exceeded or

would have been less than any particular amount.

10.5 Unless the context of this Agreement requires otherwise, the plural includes the

singular, the singular includes the plural, and “including” has the inclusive meaning of

“including without limitation.” The words “hereof”, “herein”, “hereby”, “hereunder”, and other

similar terms of this Agreement refer to this Agreement as a whole and not exclusively to any

particular provision of this Agreement. All pronouns and any variations thereof will be deemed

to refer to masculine, feminine, or neuter, singular, or plural, as the identity of the person or

persons may require.


- 23 -

10.6 The waiver by one Party of any breach of this Agreement by any other Party shall

not be deemed as a waiver of any other prior or subsequent breaches of this Agreement.

10.7 Except as otherwise provided herein, each Party shall bear its own costs and

attorneys’ fees.

10.8 Each counsel or other Person executing this Settlement Agreement, any of its

exhibits, or any related settlement documents on behalf of any Party hereto hereby warrants and

represents that such person has the full authority to do so and has the authority to take

appropriate action required or permitted to be taken pursuant to the Agreement to effectuate its

terms.

10.9 This Agreement may be executed by the Parties in one or more counterparts, each

of which shall be deemed an original but all of which together shall constitute one and the same

instrument. Facsimile signatures or scanned and e-mailed signatures shall be treated as original

signatures and shall be binding.

10.10 This Settlement Agreement shall be binding upon, and inure to the benefit of, the

successors and assigns of the Parties hereto and the Released Parties.

10.11 This Agreement is deemed to have been prepared by counsel for all Parties, as a

result of arms’ length negotiations among the Parties with the aid of a neutral mediator. Whereas

all Parties have contributed substantially and materially to the preparation of this Agreement, it

shall not be construed more strictly against one Party than another.


IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to

be executed.

For Plaintiff and the Settlement Class:

Date: Sarah Toney Class Representative

For Sempris, LLC

.uth<5hzed Representative Sempris, LLC

Date: Edward Broderick BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, MA 02110

Date:

Printed-Name and Titla

Date: th^Hk David Jimenez-EkmST/^H «^ « B.,^4-u &*<Y Ai? ^> I - VVT. ©wju Jenner & Block LLP V ' 353 North Clark Street Chicago, IL 60654

- 2 4 -


EXHIBIT 1




EASTERN DIVISION




)

v. ) Judge Shadur

)



SAVERS, )

)

Defendants. )

FINAL APPROVAL ORDER AND JUDGMENT

This matter having come before the Court on Plaintiff’s motion for final approval (the

“Motion for Final Approval”) of a proposed class action settlement (the “Settlement”) of the

above-captioned action (the “Action”) between Plaintiff Sarah Toney (“Plaintiff”), individually

and on behalf of the class of persons she seeks to represent (the “Settlement Class” defined

below), and Sempris, LLC d/b/a Budget Savers (“Sempris”), pursuant to the parties’ Class

Action Settlement Agreement (the “Agreement” or the “Settlement Agreement”), and having

duly considered all papers filed and arguments presented, the Court hereby finds and orders as

follows:

1. Unless defined herein, all defined terms in this Final Approval Order and

Judgment shall have the respective meanings set forth in the Agreement.

2. This Court has jurisdiction over the subject matter of the Action and over all

parties to the Action, including all Settlement Class Members.

3. The Court preliminarily approved the Settlement Agreement and entered the

Preliminary Approval Order dated ________, 2016, and notice was given to all members of the


Settlement Class under the terms of the Preliminary Approval Order.

4. The Court has read and considered the papers filed in support of the Motion,

including the Settlement Agreement and the exhibits thereto, memoranda and arguments

submitted on behalf of the Plaintiff, Settlement Class Members, and Sempris, and supporting

declarations. The Court has also read and considered any written objections filed by Settlement

Class Members. [Alternatively: “The Court has not received any objections from any person

regarding the Settlement.”] The Court held a hearing on ________, 2016, at which time the

parties [and objecting Settlement Class Members] were afforded the opportunity to be heard in

support of or in opposition to the Settlement. Furthermore, the Court finds that notice under the

Class Action Fairness Act was effectuated on ________, 2016, and that ninety (90) days has

passed without comment or objection from any governmental entity.

5. Based on the papers filed with the Court and the presentations made to the Court

at the hearing, the Court now gives final approval to the Settlement and finds that the Settlement

is fair, adequate, reasonable, and in the best interests of the Settlement Class. This finding is

supported by, among other things, the complex legal and factual posture of the Action, the fact

that the Settlement is the result of arms’ length negotiations presided over by a neutral mediator,

and the settlement benefits being made available to Settlement Class Members.

6. Under Federal Rule of Civil Procedure 23(c), the Court certifies, for settlement

purposes only, the following “Settlement Class”:



7. Under Federal Rule of Civil Procedure 23, Sarah Toney is hereby appointed as

Class Representative and the following are hereby appointed as Class Counsel:

Alexander Burke Dan Marovitch BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Edward Broderick Anthony Paronich BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, MA 02110 Matthew McCue THE LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue, Suite 3 Natick, Massachusetts 01760

8. With respect to the Settlement Class, this Court finds, for settlement purposes

only, that: (a) the Settlement Class is so numerous that joinder of all members is impracticable;

(b) there are questions of law or fact common to the Settlement Class; (c) the claims of the Class

Representative, identified above, are typical of the claims of the Settlement Class; (d) the Class

Representative will fairly and adequately protect the interests of the Settlement Class; (e) the

questions of law or fact common to the members of the Settlement Class predominate over the

questions affecting only individual members, and (f) certification of the Settlement Class is

superior to other available methods for the fair and efficient adjudication of the controversy. The

Court further finds that: (A) the members of the Settlement Class have a limited interest in

individually prosecuting the claims at issue; (B) the Court is satisfied with the Parties’

representations that they are unaware of any other litigation commenced regarding the claims at

issue by members of the Settlement Class; (C) it is desirable to concentrate the claims in this


forum; and (D) it is unlikely that there will be difficulties encountered in administering this

Settlement.

9. The Court has determined that the Notice given to the Settlement Class, in

accordance with the Notice Plan in the Agreement and the Preliminary Approval Order, fully and

accurately informed members of the Settlement Class of all material elements of the Settlement

and constituted the best notice practicable under the circumstances, and fully satisfied the

requirements of due process, Federal Rule of Civil Procedure 23, and all applicable law.

10. The Court finds that Defendant properly and timely notified the appropriate state

and federal officials of the Settlement Agreement under the Class Action Fairness Act of 2005

(“CAFA”), 28 U.S.C. § 1715.

11. All persons whose names were included on the list supplied by Plaintiff as having

made timely and valid requests for exclusion are excluded from the Settlement Class and are not

bound by this Final Approval Order and Judgment.

12. The Court orders the Parties to the Settlement Agreement to perform their

obligations thereunder. The Settlement Agreement shall be deemed incorporated herein as if

explicitly set forth and shall have the full force of an order of this Court.

13. The Court dismisses this Action with prejudice and without costs (except as

otherwise provided herein and in the Settlement Agreement) as to Sempris only. This Final

Approval Order and Judgment shall have no impact upon Plaintiff’s claims against Quality

Resources and its present or former predecessors, successors, subsidiaries, and all of their

respective officers, directors, partners, insurers, insureds, employees, shareholders, servants and

assigns.

14. On and after the Effective Date, the Releasing Parties, and each of them, are


forever barred and permanently enjoined from directly, indirectly, representatively, or in any

other capacity filing, commencing, prosecuting, continuing, or litigating any other proceeding

against any of the Released Parties in any jurisdiction based on or relating in any way to the

Released Claims, and the Releasing Parties, and each of them, are forever barred and

permanently enjoined from filing, commencing, or prosecuting any lawsuit individually or as a

class action against any of the Released Parties (including by seeking to amend a pending

complaint to include class allegations or by seeking class certification in a pending action in any

jurisdiction) based on or relating in any way to the Released Claims.

15. The Court further adjudges that upon the Effective Date, the above-described

releases and the Settlement Agreement will be binding on, and have res judicata and preclusive

effect in all pending and future lawsuits or other proceedings maintained by or on behalf of the

Releasing Parties, and each of them.

16. Without affecting the finality of this Final Approval Order and Judgment in any

way, the Court retains jurisdiction over: (a) implementation and enforcement of the Settlement

Agreement until the final judgment contemplated hereby has become effective and each and

every act agreed to be performed by the parties hereto pursuant to the Settlement Agreement

have been performed; (b) any other action necessary to conclude the Settlement and to

administer, effectuate, interpret and monitor compliance with the provisions of the Settlement

Agreement; and (c) all parties to this Action and Settlement Class Members for the purpose of

implementing and enforcing the Settlement Agreement, including the bar order set forth in

paragraph 14 above.

17. The Court approves payment of attorneys’ fees, costs, and expenses to Class

Counsel in the amount of $__________. This amount shall be paid from the Settlement Fund in


accordance with the terms of the Settlement Agreement. The Court, having considered the

materials submitted by Class Counsel in support of final approval of the Settlement and their

request for attorneys’ fees, costs, and expenses and in response to the filed objections thereto,

finds the award of attorneys’ fees, costs, and expenses appropriate and reasonable and the Court

notes that the class notice specifically and clearly advised the class that Class Counsel would

seek the award.

18. The Court approves the incentive fee payment of $_________ for Sarah Toney

and specifically finds such amount to be reasonable in light of the service performed by Plaintiff

for the class. This amount shall be paid from the Settlement Fund in accordance with the terms of

the Settlement Agreement.

19. Neither this Final Approval Order and Judgment nor the Settlement Agreement

shall be construed or used as an admission or concession by or against either Sempris or any of

the Released Parties of any fault, omission, liability, or wrongdoing, or the validity of any of the

Released Claims. This Final Approval Order and Judgment is not a finding of the validity or

invalidity of any claims in this Action or a determination of any wrongdoing by Sempris or any

of the Released Parties. The final approval of the Settlement Agreement does not constitute any

opinion, position, or determination of this Court, one way or the other, as to the merits of the

claims and defenses of Plaintiff, the Settlement Class Members, or Sempris.

20. Any objections to the Settlement Agreement are overruled and denied in all

respects. The Court finds that no just reason exists for delay in entering this Final Approval

Order and Judgment. Accordingly, the Clerk is hereby directed forthwith to enter this Final

Approval Order and Judgment.


DATED: , 2016 United States District Court


EXHIBIT 2




EASTERN DIVISION



)


)

v. ) Judge Shadur

)



SAVERS, )

)

Defendants. )

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION

THIS NOTICE CONCERNS SETTLEMENT OF A LAWSUIT THAT

MAY ENTITLE YOU TO RECEIVE A PAYMENT

This is a Notice of a proposed Settlement in a class action lawsuit Toney v. Sempris, LLC d/b/a

Budget Savers, et. al., United States District Court for the Northern District of Illinois, No. 13-cv-42 (the “Action”). The Settlement would resolve claims against defendant Sempris, LLC arising from calls made by defendant Quality Resources, Inc. (“Quality Resources”) in connection with Stompeez kids slippers purchases to (a) telephone numbers listed on the National Do Not Call Registry and/or (b) cellular telephone numbers. This settlement does not resolve or affect any claims against Quality Resources or its employees and officers..

WHAT IS THE LAWSUIT ABOUT?

The lawsuit alleges that telemarketing calls made by Quality Resources to telephone numbers listed on the National Do Not Call Registry as well as to cellular telephone numbers violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”), and the regulations promulgated by the Federal Communications Commission (the “FCC”) under that statute. At the time of this notice, there are two defendants in the Action: Sempris and Quality Resources. Sempris has asserted, asa defense in the Action, that it should not be held liable for the calls at issue because Quality Resources made the calls, not Sempris. This settlement does not resolve that disputed issue, or the disputed question of whether the calls violated the TCPA or the FCC’s regulations. The Court has preliminarily certified this matter as a class action for settlement. You are a member of the Settlement Class if you are included in the following:

All persons who are or were the subscribers and/or customary users of the telephone numbers on the Class List, and to whom, from January 3, 2009 through the date of preliminary approval, Quality Resources, Inc., made a call or calls in connection with Stompeez Kids Slippers purchases. The following persons are


excluded from the Settlement Class: Sempris, any parent, subsidiary, or affiliate of Sempris, the officers, directors, agents, servants, or employees of any of the foregoing as of the entry of the Preliminary Approval Order, Class Counsel, the Settlement Administrator, the Mediator, and any judge presiding over the Action.

Records in this action indicate the telephone numbers, names and addresses of members of the Settlement Class.

WHAT IS A CLASS ACTION?

In a class action, one or more people or entities, called “class representatives” (in this case, Sarah Toney), sue on behalf of people who have similar claims. All of those people together are a “class” or “class members.” The Settlement in this Lawsuit, if approved by the Court, resolves the claims of all members of the Settlement Class against Sempris only (not against Quality Resources, the remaining defendant, and its officer and employees), except for those who exclude themselves from the Settlement Class.

WHY IS THERE A SETTLEMENT?

The Court did not decide in favor of the Plaintiff or Sempris. Instead, both sides have agreed to a Settlement. This avoids the cost, risk, and delay of trial. Under the Settlement, members of the Settlement Class will have the opportunity to obtain a payment from Sempris in exchange for giving up certain legal rights. The Class Representative and the lawyers who brought the Lawsuit (“Class Counsel”) think the Settlement is best for all members of the Settlement Class. This settlement does not resolve the issue of Quality Resources’ liability for the calls at issue; it only resolves Sempris’ possible liability for those calls. WHAT DOES THE SETTLEMENT PROVIDE?

Sempris has agreed to pay $2,150,000 to create a Settlement Fund. Class Counsel (listed below) will ask the Court to award them up to one third of that amount in attorneys’ fees in addition to their out-of-pocket expenses, to compensate them for the substantial time and resources they devoted to this case. The Class Representative also will apply to the Court for payment of $15,000 in recognition of her service to the Settlement Class. Any amounts awarded to Class Counsel and the Class Representative will be paid from the Settlement Fund. The Settlement Fund also will cover costs associated with notice and administration of the Settlement. These costs include the cost of mailing this Notice and publishing notice of the Settlement, as well as the costs of administering the Settlement Fund. After attorneys’ fees and costs, the Class Representative service payments, and the expenses of notice and administration are deducted from the Settlement Fund, the balance will be divided and distributed to Settlement Class Members who submit valid claims. In addition to payments from the Settlement Fund, Sempris has agreed to assign to the Settlement Class any rights to indemnity or subrogation against Quality Resources for claims arising out of the claims asserted by the Plaintiff in this action. This will assist Class Counsel in continuing to litigate this case against Quality Resources following this settlement. HOW MUCH WILL I BE PAID?

If the Court approves the Settlement, every Settlement Class Member who submits a valid claim will be entitled to an equal payment from the Settlement Fund. That is, the amount of the


Settlement Fund available for distribution will be divided equally – sometimes referred to as “pro rata” – among all Settlement Class Members who submit valid claims. YOUR OPTIONS

Your choices are to: 1. File a Claim and Receive a Payment. If you are a member of the Settlement Class whose

number and address are within the records obtained in the case and you submit a valid claim, and the Settlement is finally approved by the Court, you will be bound by all of the terms of the Settlement, including the releases of claims, and you will receive a payment from the Settlement Fund. The case website contains a database against which you can check to confirm whether your telephone number was among those called. A claim form may be downloaded from [WEBSITE]. or by calling [INSERT] and requesting that a claim form be mailed to you.

2. Exclude yourself. You may “opt out” and exclude yourself from the Settlement. If you opt

out, you will not be eligible to receive any payment, and you will not release any claims you may have – you will be free to pursue whatever legal rights you may have at your own risk and expense. To exclude yourself from the Settlement, you must mail a request for exclusion to the Settlement Administrator (address below) postmarked by [INSERT DATE] that includes your full name, address, telephone number or numbers, a statement that you wish to be excluded from the Settlement, and your personal signature.

3. Object to the Settlement. You may object to the Settlement by submitting a written

objection in Toney v. Sempris, LLC d/b/a Budget Savers, et. al., No. 13-cv-42 to (1) the Clerk of Court, U.S. District Court, Northern District of Illinois, 219 South Dearborn St., Chicago, Illinois 60604; and (2) Class Counsel and (3) the Settlement Administrator, postmarked by [INSERT DATE]. Any objection to the Settlement must include your full name; address; telephone numbers that you maintain were called; all grounds for your objection, with factual and legal support for each stated ground; the identity of any witnesses you may call to testify; copies of any exhibits that you intend to introduce into evidence at the Final Approval Hearing; and a statement of whether you intend to appear at the Final Approval Hearing with or without counsel. Attendance at the hearing is not necessary; however, persons wishing to be heard orally (either personally or through counsel) in opposition to the approval of the Settlement are required to file a timely objection as set forth above.

WHEN WILL I BE PAID?

If the Court approves the Settlement, you will be paid as soon as possible after the court order becomes final. If there is an appeal of the Settlement, payment may be delayed. The Settlement Administrator will provide information about the timing of payment at [WEBSITE].

WHO REPRESENTS THE SETTLEMENT CLASS?

The attorneys who have been appointed by the Court to represent the Settlement Class are:


Edward A. Broderick Anthony I. Paronich

Broderick & Paronich, P.C. 99 High St., Suite 304

Boston, MA 02110

Matthew P. McCue The Law Office of Matthew P. McCue

1 South Ave, Third Floor Natick, MA 01760

Alexander H. Burke Daniel J. Marovitch

BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite

9020 Chicago, IL 60601

WHAT RIGHTS AM I GIVING UP IN THIS SETTLEMENT?

If the Court gives final approval to the Settlement, Members of the Settlement Class will be deemed to have released their rights to sue or continue a lawsuit against Sempris and the other Released Parties related to telemarketing calls that violate state or federal law. Giving up your legal claims is called a release. If you filed your own lawsuit for the violations alleged in this case you could, if you win, recover up to $1,500 per call plus an order prohibiting future calls. However, if you exclude yourself the lawyers in this case would not represent you in such a case, and Sempris would vigorously assert all available defenses (including that it should not be held vicariously liable for calls made by Quality Resources), and you could lose and receive nothing. This settlement permits class members the opportunity to obtain a smaller amount of money, risk-free.

WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE

SETTLEMENT?

The Court will hold a Final Approval Hearing (the “Hearing”) at [TIME] on [DATE]. The hearing will be held at the United States District Court for the Northern District of Illinois, Room 2303, 219 South Dearborn St., Chicago, Illinois 60604. At the Hearing, the Court will consider whether the proposed Settlement is fair, reasonable, and adequate. The Court will hear objections to the Settlement, if any. At the Hearing, the Court will also decide how much to pay Class Counsel. After the Hearing, the Court will decide whether to approve the Settlement. The Hearing may be continued at any time by the Court without further notice to you. If the Court does not approve the Settlement, or if it approves the Settlement and the approval is reversed on appeal, or if the Settlement does not become final for some other reason, you will not be paid at this time and the case will continue. The parties may negotiate a different settlement or the case may go to trial. DO NOT ADDRESS QUESTIONS ABOUT THE SETTLEMENT OR THE LAWSUIT

TO THE CLERK OF THE COURT OR TO THE JUDGE. PLEASE DIRECT

QUESTIONS TO:

SETTLEMENT ADMINISTRATOR – [INSERT]

Toll-Free 1-____________ DATED: ____________, 2016


EXHIBIT 3


2441947.1

A proposed settlement (the “Settlement”) has been reached in a class action lawsuit Toney v. Sempris, LLC d/b/a Budget Savers, et. al., United States District Court for the Northern District of Illinois, No. 13-cv-42 (the “Lawsuit”). The Lawsuit alleges that telemarketing calls made by Quality Resources, Inc. (“Quality Resources”) allegedly on behalf of Sempris, LLC in connection with Stompeez kids slippers purchases violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”) and the Federal Communications Commission’s regulations. Sempris denies that it violated any laws, that it did anything wrong and that it should be held liable for calls made by Quality Resources. Plaintiff and Sempris have agreed to the Settlement to avoid the burden, expense, risk and uncertainty of continuing the Lawsuit. Who is included? You were identified as someone who may have received one or more of these phone calls since January 3, 2009. How much money can I get? If the Court approves the Settlement, every Settlement Class Member who submits a valid Claim Form will be entitled to an equal payment from the $2,150,000 Settlement Fund. Your actual payment amount will depend on how many Settlement Class Members submit valid Claim Forms. The Settlement Fund will be divided and distributed equally–sometimes referred to as “pro rata”–to all Settlement Class Members who submit a valid Claim Form after attorneys’ fees, costs and expenses, an award for the Class Representative, and notice and administration costs have been deducted. Furthermore, the lawsuit will continue against Quality Resources, and you will continue to have an opportunity to recover against them. How can I get a payment? You must complete the attached Claim Form by no later than [DATE]. Claim Forms may also be completed online at [insert website address] or obtained by calling the Settlement Administrator at XXX-XXX-XXXX. What are my options? If you are a Settlement Class Member and you submit a Claim Form or do nothing, and the Court approves Settlement, you will be bound by all of the Settlement terms, including the releases of claims against Sempris and the other Released Parties. This settlement does not affect claims against Quality Resources and its officer and employees, which are still part of the Lawsuit. You may “opt out” (exclude yourself) from the Settlement. If you opt out, you will not receive a payment, and you will not release any claims. You will be free to pursue whatever legal rights you may have at your own risk and expense. To exclude yourself from the Settlement, you must mail a request for exclusion to the Settlement Administrator, , P.O. Box xxxx, City ST xxxx-xxxx] postmarked by [INSERT DATE] that includes your full name, address, telephone number or numbers, a statement that you wish to be excluded from the Settlement, and your personal signature. Unless you exclude yourself from this Settlement, you give up your right to sue or continue a lawsuit against Sempris and the other Released Parties related to or arising from the TCPA or similar state telemarketing laws having to do with calls made by Quality Resources in connection with a Stompeez purchase. You may object to the Settlement by submitting a written objection in Toney v. Sempris, LLC d/b/a Budget Savers, et. al., United States District Court for the Northern District of Illinois, No. 13-cv-42 postmarked by [INSERT DATE] to (1) the Clerk of Court, U.S. District Court, Northern District of Illinois, Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, IL 60604; and the (2) the Settlement Administrator (address provided above). Any objection must include your full name; address; telephone numbers that you maintain were called; all grounds for your objection, with factual and legal support for each stated ground; the identity of any witnesses you may call to testify; copies of any exhibits that you intend to introduce into evidence; identification of any lawyer you consulted with as to this settlement and a statement of whether you intend to appear at the Final Approval Hearing with or without counsel. Attendance at the hearing is not necessary. If you want to be heard orally (either personally or through counsel) in opposition to the Settlement you must file a timely objection as set forth above. When will the Settlement be finally approved? The Court will hold a Final Approval Hearing (the “Hearing”) at TIME on DATE at the U.S. District Court for the Northern District of Illinois. At the Hearing, the Court will consider whether to approve: the proposed Settlement as fair, reasonable, and adequate; Class Counsel’s request of up to one-third of the Settlement Fund in fees in addition to their costs and expenses; and a $15,000 payment to the Class Representative. The Court will also hear objections to the Settlement. If approval is denied, reversed on appeal, or does not become final, the case will continue and claims will not be paid. Want more information? The Settlement Agreement and other relevant documents are available at [website]. Pleadings and documents filed in Court may be reviewed or copied in the office of the Clerk. Please do not call the Judge or the Clerk of the Court. They cannot give you advice on your options.

PLACEHOLDER BRM PANEL: DO NOT USE.

THIS SECTION IS FOR

DEMONSTRATION ONLY

TBD


EXHIBIT 4


2441950.1

PROOF OF CLAIM FORM

Complete the steps below to Submit a Claim under the Settlement described in the Notice. You must complete and return this Claim Form before [DATE] to be eligible to

receive a payment under the Settlement. Your response will be checked against records produced in the case.

1. Identify yourself [Prepopulated by SettlementAdministrator]:

Name: __________________________________________________________________ Address: __________________________________________________________________________________________

City: _________________________________ State: ____ ____ Zip: ____ ____ ____ ____ ____ Telephone number: ____ ____ ____ - ____ ____ ____ - ____ ____ ____ ____

2. Verify that you are a member of the Settlement Class described in the Notice:

By checking this box, I am confirming that: I am confirming that the above information is accurate.

3. Sign the Claim Form and Transmit It to the Settlement Administrator.

After you complete this Claim Form, sign it below and submit it by United States Mail to the Settlement Administrator, postmarked no later than [DATE], at the following address:

SETTLEMENT ADMINISTRATOR

P.O. BOX #####, ##########, ## #####-####

NOTE: Only one claim is permitted per telephone number.

I certify that the statements herein are true to the best of my knowledge, and that I am not submitting multiple claim forms in this settlement, except as disclosed herein. Signature: _________________________ Print Name: ________________________ Telephone Number on Which Calls were Received (if known): ________________________


If you claim to have received calls on more than one telephone number and are submitting multiple claim forms, please provide an explanation of the circumstances surrounding such here: _______________________________________________________________________________________________________________________________________. Date: ________________

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EXHIBIT 5




EASTERN DIVISION



)


)

v. ) Judge Shadur

)



SAVERS, )

)

Defendants. )

PRELIMINARY APPROVAL ORDER

WHEREAS, this Action is a putative class action under the Telephone Consumer

Protection Act, 47 U.S.C. § 227, et seq.,

WHEREAS, Plaintiff Sarah Toney has filed an unopposed Motion for Preliminary

Approval of a Class Wide Settlement (the “Motion”);

WHEREAS, the Motion attaches and incorporates a Settlement Agreement1 (the

“Settlement Agreement”) that, together with the exhibits thereto, sets forth the terms and

conditions for the settlement of claims, on a class wide basis, against Sempris, LLC d/b/a Budget

Savers (“Sempris”) (Plaintiffs and Sempris are collectively referred to as the “Parties”) as more

fully set forth below; and

WHEREAS, the Court having carefully considered the Motion and the Settlement

Agreement, and all of the files, records, and proceedings herein, and the Court determining upon

preliminary examination that the Settlement Agreement appears to be fair, reasonable and

adequate, and that the proposed plan of notice to the Settlement Class is the best notice

1 Unless otherwise defined herein, all capitalized names have the definitions set forth in the Settlement Agreement.


practicable under the circumstances and consistent with requirements of due process and Federal

Rule of Civil Procedure 23, and that a hearing should and will be held after notice to the

Settlement Class to confirm that the Settlement Agreement is fair, reasonable, and adequate, and

to determine whether this Court should enter a judgment approving the Settlement and an order

of dismissal of this action based upon the Settlement Agreement;

NOW, THEREFORE, IT IS HEREBY ORDERED:

1. For purposes of settlement only, the Court has jurisdiction over the subject matter

of this action and personal jurisdiction over the parties and the members of the Settlement Class

described below.

Certification of Settlement Class

2. Under Rule 23(b)(3) of the Federal Rules of Civil Procedure, and for purposes of

settlement only, a “Settlement Class” is preliminarily certified, consisting of the following class:


3. All Persons who are members of the Settlement Class who have not submitted a

timely request for exclusion are referred to collectively “Settlement Class Members” or

individually as a “Settlement Class Member.”

4. For purposes of settlement only, the Court finds that the prerequisites for a class

action under Federal Rules of Civil Procedure 23(a) and (b)(3) have been preliminarily satisfied

in that: (a) the number of Settlement Class Members is so numerous that joinder of all members

thereof is impracticable; (b) there are questions of law and fact common to the Settlement Class


Members; (c) the claims of the class representative are typical of the claims of the Settlement

Class Members; (d) the class representative will fairly and adequately represent the interests of

the Settlement Class Members; (e) questions of law and fact common to the Settlement Class

Members predominate over any questions affecting only individual Settlement Class Members;

and (f) a class action is superior to other available methods for the fair and efficient adjudication

of the controversy. The Court further finds, for purposes of settlement only, that: (A) Settlement

Class Members have a limited interest in individually prosecuting the claims at issue; (B) the

Court is satisfied with Plaintiff’s counsel’s representation that they are unaware of any other

litigation commenced regarding the claims at issue by members of the Settlement Class; (C) it is

desirable to concentrate the claims in this forum; and (D) it is unlikely that there will be

difficulties encountered in administering this Settlement.

5. Under Federal Rule of Civil Procedure 23, and for settlement purposes only,

Plaintiff Sarah Toney is hereby appointed Class Representative and the following are hereby

appointed as Class Counsel:

Alexander H. Burke Danel J. Marovitch BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Edward Broderick Anthony Paronich BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, MA 02110

Matthew McCue THE LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue, Suite 3 Natick, Massachusetts 01760


Notice and Administration

6. The Court hereby approves of Kurtzman Carson Consultants to perform the

functions and duties of the Settlement Administrator set forth in the Settlement Agreement –

including effectuating the Notice Plan – and to provide such other administration services as are

reasonably necessary to facilitate the completion of the Settlement.

7. The Court has carefully considered the Notice Plan set forth in the Settlement

Agreement. The Court finds that the Notice Plan constitutes the best notice practicable under the

circumstances, and satisfies fully the requirements of Rule 23 of the Federal Rules of Civil

Procedure, the requirements of due process and any other applicable law, such that the terms of

the Settlement Agreement, the releases provided for therein, and this Court’s final judgment will

be binding on all Settlement Class Members.

8. The Court hereby approves the Notice Plan and the form, content, and

requirements of the Notice described in and attached as exhibits to the Settlement Agreement.

The Settlement Administrator shall cause the Notice Plan to be completed on or before

_________, 2016. Class Counsel shall, prior to the Final Approval Hearing, file with the Court a

declaration executed by the Settlement Administrator attesting to the timely completion of the

Notice Plan.

9. All costs of providing Notice to the Settlement Class, processing Claim Forms,

and administering distributions from the Settlement Fund shall be paid out of the Settlement

Fund, as provided by the Settlement Agreement.

Exclusion and “Opt-Outs”

10. Each and every member of the Settlement Class shall be bound by all

determinations and orders pertaining to the Settlement, including the release of all claims to the


extent set forth in the Settlement Agreement, unless such persons request exclusion from the

Settlement in a timely and proper manner, as hereinafter provided.

11. A member of the Settlement Class wishing to request exclusion (or “opt-out”)

from the Settlement shall mail the request in written form, by first class mail, postage prepaid,

and postmarked no later than _________, 2016, to the Settlement Administrator at the address

specified in the Notice. In the written request for exclusion, the member of the Settlement Class

must state his or her full name, address, and telephone numbers. Further, the written request for

exclusion must include a statement that the member of the Settlement Class submitting the

request wishes to be excluded from the Settlement, and the personal signature of the member of

the Settlement Class submitting the request. The request for exclusion shall not be effective

unless the request for exclusion provides the required information and is made within the time

stated above, or the exclusion is otherwise accepted by the Court. No member of the Settlement

Class, or any person acting on behalf of or in concert or in participation with a member of the

Settlement Class, may request exclusion of any other member of the Settlement Class from the

Settlement.

12. Members of the Settlement Class who timely request exclusion from the

Settlement will relinquish their rights to benefits under the Settlement and will not release any

claims against Sempris or any of the other Released Parties.

13. All Settlement Class Members who do not timely and validly request exclusion

shall be so bound by all terms of the Settlement Agreement and by the Final Approval Order and

Judgment even if they have previously initiated or subsequently initiate individual litigation or

other proceedings against Sempris or any of the other Released Parties.

14. The Settlement Administrator will promptly provide all Parties with copies of any


exclusion requests, and Plaintiff shall file a list of all persons who have validly opted-out of the

Settlement with the Court prior to the Final Approval Hearing.

Objections

15. Any Settlement Class Member who does not file a timely request for exclusion,

but who wishes to object to approval of the proposed Settlement, to the award of attorneys’ fees

and expenses, or to the compensation award to the Class Representative must submit to Class

Counsel and the Settlement Administrator a written statement that includes: his or her full name;

address; telephone numbers that he or she maintains were called; all grounds for the objection,

with factual and legal support for each stated ground; the identity of any witnesses he or she may

call to testify; copies of any exhibits that he or she intends to introduce into evidence at the Final

Approval Hearing; the identity of any attorney consulted as to such objection; and a statement of

whether he or she intends to appear at the Final Approval Hearing with or without counsel. Any

objecting Settlement Class Member also must send a copy of the filing to the Settlement

Administrator at the same time it is filed with the Court. The Court will consider objections to

the Settlement, to the award of attorneys’ fees and expenses, or to the compensation award to the

Class Representative only if, on or before _________, 2016, such objections and any supporting

papers are filed in writing with the Clerk of this Court and served on the Settlement

Administrator.

16. A Settlement Class Member who has timely filed a written objection as set forth

above may appear at the Final Approval Hearing in person or through counsel to be heard orally

regarding their objection. It is not necessary, however, for a Settlement Class Member who has

filed a timely objection to appear at the Final Approval Hearing. No Settlement Class Member

wishing to be heard orally in opposition to the approval of the Settlement and/or the request for


attorneys’ fees and expenses and/or the request for a compensation award to the Class

Representative will be heard unless that person has filed a timely written objection as set forth

above. No non-party, including members of the Settlement Class who have timely opted-out of

the Settlement, will be heard at the Final Approval Hearing.

17. Any member of the Settlement Class who does not opt out or make an objection

to the Settlement in the manner provided herein shall be deemed to have waived any such

objection by appeal, collateral attack, or otherwise, and shall be bound by the Settlement

Agreement, the releases contained therein, and all aspects of the Final Approval Order and

Judgment.

Final Approval Hearing

18. The Federal Rule of Civil Procedure 23(e) Final Approval Hearing is hereby

scheduled to be held before the Court on _________, 2016 at _____ am for the following

purposes:

(a) to finally determine whether the applicable prerequisites for settlement

class action treatment under Federal Rules of Civil Procedure 23(a) and (b) are met;

(b) to determine whether the Settlement is fair, reasonable and adequate, and

should be approved by the Court;

(c) to determine whether the judgment as provided under the Settlement

Agreement should be entered, including a bar order prohibiting Settlement Class

Members from further pursuing claims released in the Settlement Agreement;

(d) to consider the application for an award of attorneys’ fees and expenses of

Class Counsel;


(e) to consider the application for an compensation award to the Class

Representative;

(f) to consider the distribution of the Settlement Benefits under the terms of

the Settlement Agreement; and

(g) to rule upon such other matters as the Court may deem appropriate.

19. On or before thirty-five (14) days after entry of this Preliminary Approval Order,

Class Counsel shall file and serve any application for an award of attorneys’ fees and expenses.

20. On or before fourteen (14) days prior to the Final Approval Hearing, Class

Counsel shall file and serve (i) a motion for final approval; and (ii) any application for a

compensation award to the Class Representative. The Final Approval Hearing may be postponed,

adjourned, transferred or continued by order of the Court without further notice to the Settlement

Class. At, or following, the Final Approval Hearing, the Court may enter a Final Approval Order

and Judgment in accordance with the Settlement Agreement that will adjudicate the rights of all

class members.

21. For clarity, the deadlines the Parties shall adhere to are as follows:

Class Notice Mailed by: _________, 2016

Class Counsel Fee Application: _________, 2016

Objection/Exclusion/ Claim Deadline: _________, 2016

Final Approval Hearing: _________, 2016 at ______ am

22. Settlement Class Members do not need to appear at the Final Approval Hearing or

take any other action to indicate their approval.

Further Matters


23. All discovery and other pretrial proceedings in the Action as between the Plaintiff

and Sempris are stayed and suspended until further order of the Court except such actions as may

be necessary to implement the Settlement Agreement and this Order.

24. In the event that the Settlement Agreement is terminated under the terms of the

Settlement Agreement, or for any reason whatsoever the approval of it does not become final and

no longer subject to appeal, then: (i) the Settlement Agreement shall be null and void, including

any provisions related to the award of attorneys’ fees and expenses, and shall have no further

force and effect with respect to any party in this Action, and shall not be used in this Action or in

any other proceeding for any purpose; (ii) all negotiations, proceedings, documents prepared, and

statements made in connection therewith shall be without prejudice to any person or party hereto,

shall not be deemed or construed to be an admission by any party of any act, matter, or

proposition, and shall not be used in any manner of or any purpose in any subsequent proceeding

in this Action or in any other action in any court or other proceeding, provided, however, that the

termination of the Settlement Agreement shall not shield from subsequent discovery any factual

information provided in connection with the negotiation of this Settlement Agreement that would

ordinarily be discoverable but for the attempted settlement; (iii) this Order shall be vacated and

of no further force or effect whatsoever, as if it had never been entered; and (iv) any party may

elect to move the Court to implement the provisions of this paragraph, and none of the non-

moving parties (or their counsel) shall oppose any such motion.

25. The Court retains jurisdiction to consider all further matters arising out of or

connected with the Settlement.

DATED: , 2016

United States District Court



EASTERN DIVISION

SARAH TONEY, on behalf of ) herself and others similarly situated, )

Plaintiff, ) Case No. 1:13-cv-42 ) v. ) Judge Shadur ) QUALITY RESOURCES, INC., et al., ) Defendants. )

AFFIDAVIT OF ALEXANDER H. BURKE IN SUPPORT OF PRELIMINARY APPROVAL

1. I am Alexander H. Burke, manager of Burke Law Offices, LLC. I submit this

declaration in of preliminary approval of the proposed class action settlement in this matter. I can

competently testify as to the facts stated herein if called upon to do so.

2. In September 2008, I opened Burke Law Offices, LLC. This firm concentrates on

consumer class action and consumer work on the plaintiff side. Since the firm began, it has

focused on prosecuting cases pursuant to the Telephone Consumer Protection Act, although the

firm accepts the occasional action pursuant to the Fair Debt Collection Practices Act, Fair Credit

Reporting Act, Equal Credit Opportunity Act, Electronic Funds Transfer Act, Illinois Consumer

Fraud Act, Truth in Lending Act and the Fair Labor Standards Act, among others. The firm also

sometimes accepts mortgage foreclosure defense or credit card defense case. Except for debt

collection defense cases, the firm works almost exclusively on a contingency basis.

3. I am regularly asked to speak regarding TCPA issues, on the national level. For

example, I conducted a one-hour CLE on prosecuting TCPA autodialer and Do Not Call claims

pursuant to the Telephone Consumer Protection Act for the National Association of Consumer

Advocates in summer 2012, and spoke on similar subjects at the annual National Consumer Law


2

Center national conferences in October 2012, November 2013, November 2014 and October

2015. I also spoke at a National Association of Consumer Advocates conference regarding

TCPA issues in March 2015, and am scheduled to speak again in spring 2016 for that group. I

am slotted to speak on a panel concerning TCPA issues at the 2016 Practicing Law Institute

Consumer Financial Services meeting in Chicago, Illinois.

4. I make substantial efforts to remain current on other aspects of the law, too. I

attended the National Consumer Law Center Consumer Rights Litigation Conference in 2006

through 2015, and was an active participant in the Consumer Class Action Intensive Symposium

between 2006 and 2013. In October 2009, I spoke on a panel of consumer class action attorneys

welcoming newcomers to the conference. In addition to attending Chicago Bar Association

meetings and events, I was the vice-chair of the Chicago Bar Association’s consumer protection

section in 2009 and the chair in 2010. In November 2009, I moderated a panel of judges and

attorneys discussing recent events and decisions concerning arbitration of consumer claims and

class action bans in consumer contracts.

5. Some notable class actions and other cases that my firm has worked on include:

Hurst v. Monitronics Int'l, Inc., No. 1:15-CV-1844-TWT, 2016 WL 523385, at *1 (N.D. Ga.

Feb. 10, 2016); (motion to compel arbitration denied); Smith v. Royal Bahamas Cruise Line, No.

14-CV-03462, 2016 WL 232425 (N.D. Ill. Jan. 20, 2016) (personal jurisdiction motion denied);

Bell v. PNC Bank, Nat’. Ass’n., 800 F.3d 360 (7th Cir. 2015) (class certification affirmed in

wage and hour case); Charvat v. Travel Services, 2015 WL 3917046 (N.D. Ill. June 24, 2015)

(determining proper scope of class representative discovery in TCPA case), and 2015 WL

3575636 (N.D. Ill. June 8, 2015) (granting plaintiff's motion to compel vicarious liability/agency

discovery in TCPA case); Lees v. Anthem Ins. Cos. Inc., 2015 WL 3645208 (E.D. Mo. June 10,


3

2015) (finally approving TCPA class settlement where I was class counsel); Hofer v. Synchrony

Bank, 2015 WL 2374696 (E.D. Mo. May 18, 2015) (denying motion to stay TCPA case on

primary jurisdiction grounds); In re Capital One TCPA Litig., No. 11-5886, 2015 WL 605203

(N.D. Ill. Feb. 12, 2015) (granting final approval to TCPA class settlement where I was class

counsel); Wilkins v. HSBC Bank Nevada, N.A., 2015 WL 890566 (N.D. Ill. Feb. 27, 2015)

(granting final approval to TCPA class settlement where I was class counsel); Hossfeld v.

Government Employees Ins. Co., 88 F. Supp. 3d 504 (D. Md. 2015) (denying motion to dismiss

in TCPA class action); Legg v. Quicken Loans, Inc., 2015 WL 897476 (S.D. Fla. Feb. 25, 2015)

(denying motion to dismiss in TCPA case); Hanley v. Fifth Third Bank, No. 1:12-cv-1612 (N.D.

Ill. Dec. 27, 2013) (final approval for $4.5 million nonreversionary TCPA settlement); Markovic

v. Appriss, Inc., 2013 WL 6887972 (S.D. Ind. Dec. 31, 2013) (motion to dismiss denied in TCPA

class case); Martin v. Comcast Corp., 2013 WL 6229934 (N.D. Ill. Nov. 26, 2013) (motion to

dismiss denied in TCPA class case); Gold v. YouMail, Inc., 2013 WL 652549 (S.D. Ind. Feb. 21,

2013) (contested motion for leave to amend granted to permit cutting-edge vicarious liability

theory allegations); Martin v. Dun & Bradstreet, Inc., No. 1:12-cv-215 (N.D. Ill. Aug. 21, 2012)

(Denlow, J.) (certifying litigation class and appointing me as sole class counsel) (final approval

granted for $7.5 million class settlement granted January 16, 2014); Desai v. ADT, Inc., No.

1:11-cv-1925 (N.D. Ill. June 21, 2013) (final approval for $15 million TCPA class settlement

granted); Martin v. CCH, Inc., No. 1:10-cv-3494 (N.D. Ill. Mar. 20, 2013) (final approval

granted for $2 million class settlement in TCPA autodialer case); Swope v. Credit Mgmt., LP,

2013 WL 607830 (E.D. Mo. Feb. 19, 2013) (denying motion to dismiss in "wrong number"

TCPA case); Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL 3292838 (N.D. Ill.

Aug. 10, 2012) (denying motion to dismiss TCPA case on constitutional grounds); Soppet v.


4

Enhanced Recovery Co., 2011 WL 3704681(N.D. Ill. Aug 21, 2011), aff'd, 679 F.3d 637 (7th

Cir. 2012) (TCPA defendant's summary judgment motion denied. My participation was limited

to litigation in the lower court); D.G. ex rel. Tang v. William W. Siegel & Assocs., Attorneys at

Law, LLC, 2011 WL 2356390 (N.D. Ill. Jun 14, 2011); Martin v. Bureau of Collection Recovery,

2011WL2311869 (N.D. Ill. June 13, 2011) (motion to compel TCPA class discovery granted);

Powell v. West Asset Mgmt., Inc., 773 F. Supp. 2d 898 (N.D. Ill. 2011) (debt collector TCPA

defendant's "failure to mitigate" defense stricken for failure to state a defense upon which relief

may be granted); Fike v. The Bureaus, Inc., 09-cv-2558 (N.D. Ill. Dec. 3, 2010) (final approval

granted for $800,000 TCPA settlement in autodialer case against debt collection agency);

Donnelly v. NCO Fin. Sys., Inc., 263 F.R.D. 500 (N.D. Ill. Dec. 16, 2009) (Fed. R. Civ. P. 72

objections overruled in toto), 2010 WL 308975 (N.D. Ill. Jan 13, 2010) (novel class action and

TCPA discovery issues decided favorably to class).

6. Before I opened Burke Law Offices, LLC, I worked at two different plaintiff

boutique law firms doing mostly class action work, almost exclusively for consumers. Some

decisions that I was actively involved in obtaining while at those law firms include: Cicilline v.

Jewel Food Stores, Inc., 542 F. Supp. 2d 831 (N.D. Ill. 2008) (FCRA class certification granted);

542 F. Supp. 2d 842 (N.D. Ill. 2008) (plaintiffs' motion for judgment on pleadings granted);

Harris v. Best Buy Co., No. 07 C 2559, 2008 U.S. Dist. LEXIS 22166 (N.D. Ill. Mar. 20, 2008)

(Class certification granted); Matthews v. United Retail, Inc., 248 F.R.D. 210 (N.D. Ill. 2008)

(FCRA class certification granted); Redmon v. Uncle Julio's, Inc., 249 F.R.D. 290 (N.D. Ill.

2008) (FCRA class certification granted); Harris v. Circuit City Stores, Inc., 2008 U.S. Dist.

LEXIS 12596, 2008 WL 400862 (N.D. Ill. Feb. 7, 2008) (FCRA class certification granted); aff'd

upon objection (Mar. 28, 2008); Harris v. Wal-Mart Stores, Inc., 2007 U.S. Dist. LEXIS 76012


5

(N.D. Ill. Oct. 10, 2007) (motion to dismiss in putative class action denied); Barnes v.

FleetBoston Fin. Corp., C.A. No. 01-10395-NG, 2006 U.S. Dist. LEXIS 71072 (D. Mass. Aug.

22, 2006) (appeal bond required for potentially frivolous objection to large class action

settlement, and resulting in a $12.5 million settlement for Massachusetts consumers); Longo v.

Law Offices of Gerald E. Moore & Assocs., P.C., No. 04 C 5759, 2006 U.S. Dist. LEXIS 19624

(N.D. Ill. March 30, 2006) (class certification granted); Nichols v. Northland Groups, Inc., Nos.

05 C 2701, 05 C 5523, 06 C 43, 2006 U.S. Dist. LEXIS 15037 (N.D. Ill. March 31, 2006) (class

certification granted for concurrent classes against same defendant for ongoing violations);

Lucas v. GC Services, L.P., No. 2:03 cv 498, 226 F.R.D. 328 (N.D. Ind. 2004) (compelling

discovery), 226 F.R.D. 337 (N.D. Ind. 2005) (granting class certification); Murry v. America's

Mortg. Banc, Inc., Nos. 03 C 5811, 03 C 6186, 2005 WL 1323364 (N.D. Ill. May 5, 2006)

(Report and Recommendation granting class certification), aff'd, 2006 WL 1647531 (June 5,

2006); Rawson v. Credigy Receivables, Inc., No. 05 C 6032, 2006 U.S. Dist. LEXIS 6450 (N.D.

Ill. Feb. 16, 2006) (denying motion to dismiss in class case against debt collector for suing on

time-barred debts).

7. I graduated from Colgate University in 1997 (B.A. International Relations), and

from Loyola University Chicago School of Law in 2003 (J.D.). During law school I served as an

extern to the Honorable Robert W. Gettleman of the District Court for the Northern District of

Illinois and as a law clerk for the Honorable Nancy Jo Arnold, Chancery Division, Circuit Court

of Cook County. I also served as an extern for the United States Attorney for the Northern

District of Illinois and was a research assistant to adjunct professor Honorable Michael J.

Howlett, Jr.

8. I was the Feature Articles Editor of the Loyola Consumer Law Review and


6

Executive Editor of the International Law Forum. My published work includes International

Harvesting on the Internet: A Consumer's Perspective on 2001 Proposed Legislation Restricting

the Use of Cookies and Information Sharing, 14 Loy. Consumer L. Rev. 125 (2002).

9. I became licensed to practice law in the State of Illinois in 2003 and the State of

Wisconsin in March 2011, and am a member of the bar of the United States Court of Appeals for

the First, Second, Seventh, Eighth and Eleventh Circuits, as well as the Northern District of

Illinois, Central District of Illinois, Southern District of Illinois, Eastern District of Wisconsin,

Western District of Wisconsin, Northern District of Indiana, Southern District of Indiana and the

District of Nebraska. I am also a member of the Illinois State Bar Association, the Seventh

Circuit Bar Association and the American Bar Association, as well as the National Association

of Consumer Advocates.

10. Discovery produced in this case identified 64,106 unique telephone numbers that

were called in connections with purchases of Stompeez slippers. I actively participated in the

negotiations that led to this proposed settlement, including the May 10, 2016 mediation in

Chicago that led to the proposed settlement. The discussions were always arms-length and

adversarial, and my team and I consistently tried to get the best deal possible for the class. In the

end, I believe we did, in fact, negotiate the best possible settlement under the facts and

circumstances, and I fully support preliminary approval of this settlement. If the requested

incentive award is approved, based on expected claims rates, along with requested fees and

expenses, all of these amounts are approved as requested and agreed to by the parties, Plaintiff’s

counsel expect that each claiming Settlement Class Member would receive approximately $200.

Executed in Evanston, Illinois /s/Alexander H. Burke July 5, 2016 Alexander H. Burke



EASTERN DIVISION SARAH TONEY, on behalf of ) herself and others similarly situated, )

Plaintiff, ) Case No. 1:13-cv-42 ) v. ) Judge Shadur ) QUALITY RESOURCES, INC., et al., ) Defendants. )

AFFIDAVIT OF EDWARD A. BRODERICK

IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1. I make this declaration in support of the Plaintiff’s Unopposed Motion for

Preliminary Approval of Class Settlement, to set forth my qualifications to serve as class

counsel, and to state that in my experience litigating claims under the Telephone Consumer

Protection Act, the proposed settlement is reasonable and merits preliminary approval from the

Court.

2. I am an attorney duly admitted to practice in the Commonwealth of

Massachusetts, I am over 18 years of age, am competent to testify and make this affidavit on

personal knowledge. I have been admitted to practice before the United States District Courts

for the District of Massachusetts, the District of Michigan and the District of Colorado and the

First Circuit Court of Appeals. From time to time, I have appeared in other Federal District

Courts pro hac vice. I am in good standing in every court to which I am admitted to practice.

Along with my co-counsel in this action, I will faithfully, effectively and zealously represent the

interests of the class in this action.

Qualifications of Counsel


2

3. I have extensive experience in the prosecution of class actions on behalf of

consumers, particularly claims under the Telephone Consumer Protection Act, 47 U.S.C. §227.

(“TCPA”) As a result of my extensive experience litigating TCPA class claims, I am well-aware

of the significant time and resources needed to litigate such actions, and my firm possesses the

resources necessary to prosecute these actions successfully. My firm keeps contemporaneous

time records, and the rates for our attorneys and personnel are commensurate with my experience

and are commensurate with market rates in Boston for attorneys with similar levels of

experience. My hourly rate and that of my partner Anthony Paronich have been approved as

reasonable by numerous state and federal courts in approving settlements.

4. I am a 1993 graduate of Harvard Law School. Following graduation from law

school, I served as a law clerk to the Honorable Martin L.C. Feldman, United States District

Judge in the Eastern District of Louisiana.

5. Following my clerkship, from 1994 to December 1996, I was an associate in the

litigation department of Ropes & Gray in Boston, where I gained class action experience in the

defense of a securities class action, Schaeffer v. Timberland, in the United States District Court

in New Hampshire, and participated in many types of complex litigation.

6. From January 1997 to March 2000, I was an associate with Ellis & Rapacki, a

three-lawyer Boston firm focused on the representation of consumers in class actions.

7. In March 2000, I co-founded the firm of Shlansky & Broderick, LLP, focusing

my practice on complex litigation and the representation of consumers.

8. In 2003, I started my own law firm focusing exclusively on the litigation

consumer class actions.


3

9. A sampling of other class actions in which I have represented classes of

consumers follows:

i. In re General Electric Capital Corp. Bankruptcy Debtor Reaffirmation Agreements

Litigation (MDL Docket No. 1192) (N.D. Ill) (nationwide class action challenging

reaffirmation practices of General Electric Capital Corporation, settlement worth

estimated $60,000,000.)

ii. LaMontagne, et al. v. Hurley State Bank, et al., USDC, D. Mass., C.A. No. 97-30093-

MAP (nationwide class action challenging reaffirmation practices of the credit

services of Radio Shack and other entities);

iii. Hurley v. Federated Department Stores, Inc., et al, USDC D. Mass. Civil Action No.

97-11479-NG (nationwide class action challenged bankruptcy reaffirmation practices

of Federated Department Stores and others; $8,000,000 recovery for class.)

iv. Berry, et al. v. Stop & Shop Supermarket Company, Middlesex Superior Court, C.A.

No. 97-4612 (successful statewide class action brought on behalf of consumers

overcharged sales tax on their purchases—obtained full refund).

v. Valerie Ciardi v. F. Hoffman LaRoche, et al, Middlesex Superior Court Civil Action

No. 99-3244D, (class action pursuant to Massachusetts Consumer Protection Act,

M.G.L. c. 93A brought on behalf of Massachusetts consumers harmed by price-fixing

conspiracy by manufactures of vitamins; settled for $19,600,000.)

vi. Shelah Feiss v. Mediaone Group, Inc, et al, USDC N. District Georgia, Civil Action

No. 99-CV-1170, (multistate class action on behalf of consumers; estimated class

recovery of $15,000,000--$20,000,000.)


4

vii. Mey v. Herbalife International, Inc., USDC, D. W. Va., Civil Action No. 01-C-

263M. Co-lead counsel with Attorney McCue and additional co-counsel, prosecuting

consumer class action pursuant to TCPA on behalf of nationwide class of junk fax

and prerecorded telephone solicitation recipients. $7,000,000 class action settlement

preliminarily approved on July 6, 2007 and granted final approval on February 5,

2008.

viii. Mulhern v. MacLeod d/b/a ABC Mortgage Company, Norfolk Superior Court, 2005-

01619 (Donovan, J.). Representing class of Massachusetts consumers who received

unsolicited facsimile advertisements in violation of the TCPA and G.L. c. 93A. Case

certified as a class action, and I was appointed co-lead counsel with Attorney

Matthew McCue by the Court on February 17, 2006, settlement for $475,000 granted

final approval by the Court on July 25, 2007.

ix. I served as co-counsel on a Massachusetts consumer telemarketing class action

entitled Evan Fray-Witzer, v. Metropolitan Antiques, LLC, NO. 02-5827 Business

Session, Judge Van Gestel. In this case, the defendant filed two Motions to Dismiss

challenging the plaintiff’s right to pursue a private right of action and challenging the

statute at issue as violative of the telemarketer’s First Amendment rights. Both

Motions to Dismiss were denied. Class certification was then granted and I was

appointed co-lead class counsel. Companion to this litigation, my co-counsel and I

successfully litigated the issue of whether commercial general liability insurance

provided coverage for the alleged illegal telemarketing at issue. We ultimately

appealed this issued to the Massachusetts Supreme Judicial Court which issued a

decision reversing the contrary decision of the trial court and finding coverage. See


5

Terra Nova Insurance v. Fray-Witzer et al., 449 Mass. 206 (2007). This case

resolved for $1.8 million.

x. I served as co-class counsel in the action captioned Shonk Land Company, LLC v.

SG Sales Company, Circuit Court of Kanswaha County, West Virginia, Civil Action

No. 07-C-1800 (multi-state class action on behalf of recipients of faxes in violation of

TCPA, settlement for $2,450,000, final approval granted in September of 2009.

xi. I served as co-class counsel in Mann & Company, P.C. v. C-Tech Industries, Inc.,

USDC, D. Mass., C.A. 1:08CV11312-RGS, class action on behalf of recipients of

faxes in violation of TCPA, settlement for $1,000,000, final approval granted in

January of 2010.

xii. I served as co-class counsel in Evan Fray Witzer v. Olde Stone Land Survey

Company, Inc., Massachusetts Superior Court, Civil Action No. 08-04165 (February

3, 2011) (final approval granted for TCPA class settlement). This matter settled for

$1,300,000.

xiii. I served as co-class counsel in Milford & Ford Associates, Inc. and D. Michael

Collins vs. Cell-Tek, LLC, USDC, D. Mass. C. A. 1:09-cv-11261-DPW, class action

on behalf of recipients of faxes in violation of TCPA, settlement for $1,800,000, final

approval granted August 17, 2011 (Woodlock, J.).

xiv. I served as co-class counsel in Collins v. Locks & Keys of Woburn, Inc..,

Massachusetts Superior Court, Civil Action No. 07-4207-BLS2 (December 14, 2011)

(final approval granted for TCPA class settlement). This matter settled for

$2,000,000.

xv. I was appointed class counsel in Brey Corp t/a Hobby Works v. Life Time Pavers,


6

Inc., Circuit Court for Montgomery County, Maryland, Civil Action No. 349410-V

(preliminary approval granted for TCPA class settlement). This matter settled for

$1,575,000.

xvi. I was appointed class counsel in Collins, et al v. ACS, Inc. et al, USDC, District of

Massachusetts, Civil Action No. 10-CV-11912 a TCPA case for illegal fax

advertising, which settled for $1,875,000.

xvii. I was appointed class counsel in Desai and Charvat v. ADT Security Services, Inc.,

USDC, NDIL, Civil Action No. 11-CV-1925, settlement of $15,000,000 approved.

xviii. I was appointed class counsel in Kensington Physical Therapy, Inc. v. Jackson

Therapy Partners, LLC, USDC, D. MD, Civil Action No. 11-CV-02467, settlement of

$4,500,000 given preliminary approval by Judge Grimm on October 28, 2014.

xix. I was appointed class counsel in Jay Clogg Realty Group, Inc. v. Burger King

Corporation, Civil Action No. 13-cv-00662, USDC, D. MD, TCPA settlement of

$8,500,000 approved on April 15, 2015.

xx. I was appointed as class counsel in a contested class certification in a Do Not Call

case arising under the TCPA in Thomas Krakauer v. Dish Network, L.L.C., USDC

MDNC, Civil Action No. 1:14-CV-333 on November 9, 2015.

xxi. I was appointed class counsel in Mey v. Interstate National Dealer Services, Inc.,

1:14-cv-01846-ELR, NDGA, which resulted in final approval of a TCPA class

settlement of $4,200,000 on June 8, 2016, and entry of a final judgment on June 15,

2016.

xxii. I was appointed class counsel Philip Charvat and Ken Johansen, 15-cv-43-JDP

(WDWI) which resulted in a TCPA class settlement for $1,500,000 which was


7

granted preliminary approval on April 20, 2016.

xxiii. I was appointed class counsel in Bull v, US Coachways, Inc., 1:14-cv-05789, in

which a settlement was preliminarily approved on March 17, 2016 with an agreement

for judgment in the amount of $49,932,375 with an assignment of rights against

defendant’s insurance carrier.

SIGNED UNDER PAINS AND PENALTIES OF PERJURY THIS 5th DAY OF JULY, 2016.

/s/ Edward A. Broderick Edward A. Broderick



EASTERN DIVISION SARAH TONEY, on behalf of ) herself and others similarly situated, ) Plaintiff, ) Case No. 1:13-cv-42 ) v. ) Judge Shadur ) QUALITY RESOURCES, INC., et al., ) Defendants. )

AFFIDAVIT OF ANTHONY I. PARONICH

IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1. I make this affidavit in support of the Plaintiff’s Motion for Preliminary Approval

of Class Settlement, to set forth my qualifications to serve as class counsel, and to state that in

my experience litigating claims under the Telephone Consumer Protection Act, the proposed

settlement is reasonable and merits preliminary approval from the Court.



personal knowledge. I have extensive experience in the prosecution of class actions on behalf of

consumers.

Qualification of Counsel


consumers, particularly claims under the Telephone Consumer Protection Act, 47 U.S.C. §227.

4. I am a 2010 graduate of Suffolk Law School. In 2010, I was admitted to the Bar

in Massachusetts. Since then, I have been admitted to practice before the Federal District Court

for the District of Massachusetts. From time to time, I have appeared in other State and Federal

District Courts pro hac vice. I am in good standing in every court to which I am admitted to


2

practice.

5. I am a partner at Broderick & Paronich, P.C. in Boston, Massachusetts.

6. A sampling of other class actions in which I have participated regarding classes of

consumers follows:

i. I assisted class counsel in an action captioned Shonk Land Company, LLC v. SG

Sales Company, Circuit Court of Kanswaha County, West Virginia, Civil Action No.

07-C-1800 (multi-state class action on behalf of recipients of faxes in violation of

TCPA, settlement for $2,450,000, final approval granted in September of 2009.

ii. I assisted class counsel in Mann & Company, P.C. v. C-Tech Industries, Inc., USDC,

D. Mass., C.A. 1:08CV11312-RGS, class action on behalf of recipients of faxes in

violation of TCPA, settlement for $1,000,000, final approval granted in January of

2010.

iii. I assisted class counsel in Evan Fray Witzer v. Olde Stone Land Survey Company,

Inc., Massachusetts Superior Court, Civil Action No. 08-04165 (February 3, 2011)

(final approval granted for TCPA class settlement). This matter settled for $1.3

million.

iv. I assisted class counsel in Milford & Ford Associates, Inc. and D. Michael Collins vs.

Cell-Tek, LLC, USDC, D. Mass. C. A. 1:09-cv-11261-DPW, class action on behalf of

recipients of faxes in violation of TCPA, settlement for $1,800,000, final approval

granted August 17, 2011 (Woodlock, J.).

v. I assisted class counsel in Collins v. Locks & Keys of Woburn, Inc.., Massachusetts

Superior Court, Civil Action No. 07-4207-BLS2 (December 14, 2011) (final approval

granted for TCPA class settlement). This matter settled for $2,000,000.


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vi. I was appointed class counsel in Brey Corp t/a Hobby Works v. Life Time Pavers,

Inc., Circuit Court for Montgomery County, Maryland, Civil Action No. 349410-V

(preliminary approval granted for TCPA class settlement). This matter settled for

$1,575,000.

vii. I was appointed class counsel in Collins, et al v. ACS, Inc. et al, USDC, District of

Massachusetts, Civil Action No. 10-CV-11912 a TCPA case for illegal fax

advertising, which settled for $1,875,000.

viii. I was appointed class counsel in Desai and Charvat v. ADT Security Services, Inc.,

USDC, NDIL, Civil Action No. 11-CV-1925, settlement of $15,000,000, approved,

awarding fees of one third of common fund.

ix. I was appointed class counsel in Kensington Physical Therapy, Inc. v. Jackson

Therapy Partners, LLC, 8:11-cv-02467 (D. MD. February 12, 2015) (Grimm, J.),

TCPA class settlement of $4,500,000 approved, awarding $1,500,000 in fees plus

expenses and approving from the bench my hourly rate of $425.

x. I was appointed class counsel in Jay Clogg Realty Group, Inc. v. Burger King

Corporation, 13-cv-00662 (D. MD. April 15, 2015) (Hazel, J.), TCPA class

settlement of $8,500,000 approved, awarding $2,833,333.00 in fees plus expenses and

approving from the bench my hourly rate of $425.

xi. I was appointed class counsel in Mey v. Interstate National Dealer Services, Inc.,

1:14-cv-01846-ELR, NDGA, which resulted in final approval of a TCPA class

settlement of $4,200,000 on June 8, 2016, and entry of a final judgment on June 15,

2016.


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xii. I was appointed class counsel Philip Charvat and Ken Johansen, 15-cv-43-JDP

(WDWI) which resulted in a TCPA class settlement for $1,500,000 which was

granted preliminary approval on April 20, 2016.

xiii. I was appointed class counsel in Bull v, US Coachways, Inc., 1:14-cv-05789, in

which a settlement was preliminarily approved on March 17, 2016 with an agreement

for judgment in the amount of $49,932,375 with assignment of rights against

insurance carrier.

5. My law firm has collectively devoted time and resources to this litigation already.

6. My law firm is well-aware of the time and finances required to litigate a class action of

this nature against, and is capable of expending the resources necessary to prosecute these

actions effectively.

7. My law firm is monitoring resource levels to ensure that time and expenses are efficiently

utilized to prevent waste and duplication of effort, and will continue to do so.

8. With respect to billing practices, my law firm requires their personnel (attorneys and

staff) to keep contemporaneous time records, and bill their attorneys and staff at rates that are

commensurate with their years of practice in the localities in which they practice.

9. My hourly rates of Proposed Counsel have been approved by numerous federal and state

courts nationwide in class action fee petitions in similar litigation.

SIGNED UNDER PAINS AND PENALTIES OF PERJURY THIS 5th DAY OF JULY

2016.

/s/ Anthony I. Paronich

Anthony I. Paronich



EASTERN DIVISION SARAH TONEY, on behalf of ) herself and others similarly situated, ) Plaintiff, ) Case No. 1:13-cv-42 ) v. ) Judge Shadur ) QUALITY RESOURCES, INC., et al., ) Defendants. )

AFFIDAVIT OF MATTHEW P. MCCUE IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR

PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1. I make this affidavit in support of the Plaintiff’s Motion for Preliminary Approval

of Class Settlement.



personal knowledge. I have extensive experience in the prosecution of class actions on behalf of

consumers.

Qualifications of Counsel


consumers, particularly claims under the Telephone Consumer Protection Act, 47 U.S.C.

§227. Based on my experience, the proposed settlement is fair and reasonable and merits

approval.

4. I am a 1993 honors graduate of Suffolk Law School. Following graduation from

law school, I served as a law clerk to the Justices of the Massachusetts Superior Court. I then

served a second year as a law clerk for the Hon. F. Owen Eagan, United States Magistrate Judge


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for the USDC District of Connecticut.

5. In 1994, I was admitted to the Bar in Massachusetts. Since then, I have been

admitted to practice before the United States District Court for the District of Massachusetts, the

First Circuit Court of Appeals, the United States District Court for the District of Colorado and

the Sixth Circuit Court of Appeals. I frequently appear in federal courts around the United

States pro hac vice litigating TCPA claims.

6. I am in good standing in every court to which I am admitted to practice.

7. Following my clerkships, I was employed as a litigation associate with the Boston

law firm of Hanify & King. In 1997, I joined the law firm of Mirick O’Connell as a litigation

associate where I focused my trial and appellate practice on plaintiff’s personal injury and

consumer protection law.

8. In the summer of 2002, I was recognized by the legal publication Massachusetts

Lawyers Weekly as one of five “Up and Coming Attorneys” for my work on behalf of

consumers and accident victims.

9. In November of 2004, I started my own law firm focusing exclusively on the

litigation consumer class actions and serious personal injury cases.

10. Since 2004, I have worked extensively on consumer protection cases involving

illegal telemarketing. I have handled these cases both on an individual basis, and as consumer

class actions.

11. A sampling of other class actions in which I have represented classes of

consumers follows:

i. Mey v. Herbalife International, Inc., USDC, D. W. Va., Civil Action No. 01-C-263M. Co-lead counsel with Attorney Broderick and additional co-counsel, prosecuting consumer class action pursuant to TCPA on behalf of nationwide class of junk fax


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and prerecorded telephone solicitation recipients. $7,000,000 class action settlement preliminarily approved on July 6, 2007 and granted final approval on February 5, 2008.

ii. Mulhern v. MacLeod d/b/a ABC Mortgage Company, Norfolk Superior Court, 2005-01619 (Donovan, J.). Representing class of Massachusetts consumers who received unsolicited facsimile advertisements in violation of the TCPA and G.L. c. 93A. Case certified as a class action, and I was appointed co-lead counsel with Attorney Edward Broderick by the Court on February 17, 2006, settlement for $475,000 granted final approval by the Court on July 25, 2007.

iii. I served as co-counsel on a Massachusetts consumer telemarketing class action entitled Evan Fray-Witzer, v. Metropolitan Antiques, LLC, NO. 02-5827 Business Session, (Van Gestel, J.). In this case, the defendant filed two Motions to Dismiss challenging the plaintiff’s right to pursue a private right of action and challenging the statute at issue as violative of the telemarketer’s First Amendment rights. Both Motions to Dismiss were denied. Class certification was then granted and I was appointed co-lead class counsel. Companion to this litigation, my co-counsel and I successfully litigated the issue of whether commercial general liability insurance provided coverage for the alleged illegal telemarketing at issue. We ultimately appealed this issue to the Massachusetts Supreme Judicial Court which issued a decision reversing the contrary decision of the trial court and finding coverage. See Terra Nova Insurance v. Fray-Witzer et al., 449 Mass. 206 (2007). This case resolved for $1,800,000.

iv. I served as co-class counsel in the action captioned Shonk Land Company, LLC v. SG Sales Company, Circuit Court of Kanawha County, West Virginia, Civil Action No. 07-C-1800 (multi-state class action on behalf of recipients of faxes in violation of TCPA, settlement for $2,450,000, final approval granted in September of 2009.

v. I served as co-class counsel in Mann & Company, P.C. v. C-Tech Industries, Inc., USDC, D. Mass., C.A. 1:08CV11312-RGS, class action on behalf of recipients of faxes in violation of TCPA, settlement for $1,000,000, final approval granted in January of 2010.

vi. I served as co-class counsel in Evan Fray Witzer v. Olde Stone Land Survey Company, Inc., Massachusetts Superior Court, Civil Action No. 08-04165 (February 3, 2011) (final approval granted for TCPA class settlement). This matter settled for $1,300,000.

vii. I served as co-class counsel in Milford & Ford Associates, Inc. and D. Michael Collins vs. Cell-Tek, LLC, USDC, D. Mass. C. A. 1:09-cv- 11261-DPW, class action on behalf of recipients of faxes in violation of TCPA, settlement for $1,800,000, final approval granted August 17, 2011 (Woodlock, J.).

viii. I served as co-class counsel in Collins v. Locks & Keys of Woburn Inc.., Massachusetts Superior Court, Civil Action No. 07-4207-BLS2 (December 14, 2011) (final approval granted for TCPA class settlement). This matter settled for $2,000,000.

ix. I was appointed class counsel in Brey Corp t/a Hobby Works v. Life Time Pavers,

Inc., Circuit Court for Montgomery County, Maryland, Civil Action No. 349410-V (preliminary


4

approval granted for TCPA class settlement). This matter settled for $1,575,000. x. I was appointed class counsel in Collins, et al v. ACS, Inc. et al, USDC, District of

Massachusetts, Civil Action No. 10-CV-11912 a TCPA case for illegal fax advertising, which settled for $1,875,000. Fee of 33.33% approved, including time submitted at rate of $500 per hour for my work on the case.

xi. I was appointed class counsel in Desai and Charvat v. ADT Security Services,

Inc., USDC, NDIL, Civil Action No. 11-CV-1925, settlement of $15,000,000, approved, awarding fees of one third of common fund.

xii. I was appointed class counsel in Benzion v. Vivint, 0:12cv61826, USDC S.D.Fla,

settlement of $6,000,000 granted final approval. xiii. I was appointed class counsel in Kensington Physical Therapy, Inc. v. Jackson

Therapy Partners, LLC, 8:11-cv-02467 (D. MD. February 12, 2015) (Grimm, J.), class settlement of $4,500,000 under TCPA approved, awarding $1,500,000 in fees plus expenses and approving my hourly rate of $700.

xiv. I was appointed class counsel in Jay Clogg Realty Group, Inc. v. Burger King

Corporation, 13-cv-00662 (D. MD. April 15, 2015) (Hazel, J.), TCPA class settlement of $8,500,000 approved, awarding $2,833,333.00 in fees plus expenses and approving from the bench my hourly rate of $425.

xv. I was appointed class counsel in Mey v. Interstate National Dealer Services, Inc.,

1:14-cv-01846-ELR, NDGA, which resulted in final approval of a TCPA class settlement of $4,200,000 on June 8, 2016, and entry of a final judgment on June 15, 2016.

xvi. I was appointed class counsel Philip Charvat and Ken Johansen, 15-cv-43-JDP

(WDWI) which resulted in a TCPA class settlement for $1,500,000 which was granted preliminary approval on April 20, 2016.

xvii. I was appointed class counsel in Bull v, US Coachways, Inc., 1:14-cv-05789, in

which a settlement was preliminarily approved on March 17, 2016 with an agreement for judgment in the amount of $49,932,375 with an assignment of rights against defendant’s insurance carrier.

12. My law firm has collectively devoted time and resources to this litigation already.

13. My law firm is well-aware of the time and finances required to litigate a class action of

this nature against, and are capable of expending the resources necessary to prosecute these

actions effectively.


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14. My law firm is monitoring resource levels to ensure that time and expenses are

efficiently utilized to prevent waste and duplication of effort, and will continue to do so.

15. With respect to billing practices, my law firm requires their personnel (attorneys and

staff) to keep contemporaneous time records, and bill their attorneys and staff at rates that are

commensurate with their years of practice in the localities in which they practice.

16. My hourly rates of Proposed Counsel have been approved by numerous federal and

state courts nationwide in class action fee petitions in similar litigation.

SIGNED UNDER PAINS AND PENALTIES OF PERJURY THIS 5th DAY OF JULY

2016.

/s/ Matthew P. McCue Matthew P. McCue


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