John Heenan Benjamin R. Bingham BISHOP & HEENAN Bingham ... · BISHOP & HEENAN Bingham & Lea PC...

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John Heenan Benjamin R. Bingham

BISHOP & HEENAN Bingham & Lea PC

1631 Zimmerman Trail 319 Maverick St.

Billings, MT 59102 San Antonio, TX 78212

T: (406) 839-9091 T: (210) 224-1819

F: (406) 839-9092 F: (210) 224-0141

[email protected] [email protected]

Admitted Pro Hac Vice

Keith J. Keogh

Keogh Law LTD

55 W. Monroe St. Suite 3390

Chicago, IL 60603

T: (312) 726-1092

F: (312) 726-1093

[email protected]

Admitted Pro Hac Vice

Attorneys for Plaintiff and the Class

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

JOEL HAGEMAN, on behalf of ) Case No. CV-13-50-DLC-RWA

himself and all others similarly )

situated, )

)

Plaintiff, )

) APPLICATION FOR AWARD OF

v. ) ATTORNEY’S FEES AND

) INCENTIVE AWARD

AT&T MOBILITY LLC, )

)

Defendant. )

Pursuant to the Settlement Agreement, the Court’s Preliminary Approval

Order (Dkt. #57), and Rule 23(h), F.R.Civ.P., Class Counsel hereby apply for an

Case 1:13-cv-00050-DLC-RWA Document 60 Filed 01/05/15 of 22

mailto:[email protected]



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award of attorney’s fees in the amount of one-third of the Settlement Fund ($15

million) and for an incentive award to the class representative in the amount of

$20,000.

Pursuant to Local Rule 7.1, Plaintiff advises that Defendant does not oppose

this Application. The requested attorney’s fees and incentive award are included in

the proposed order granting final approval which has been filed with the Court

along with the Unopposed Motion for Final Approval.

In support of this application, Class Counsel shows the following:

SUMMARY OF APPLICATION

The most important factor in determining what is a reasonable fee to be paid

from a common fund is the results achieved.1 The result achieved in this case is

extraordinary. This is the largest recovery per class member in the 25 year history

of the Telephone Consumer Protection Act2 (“TCPA”). The $45 million settlement

fund is for only about 16,000 thousand class members, a vast difference from other

TCPA cases with similar settlement funds but which are to be distributed to

millions of class members.3 Because of the incredible results achieved, Class

1In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011) (Foremost among

factors considered in setting a reasonable fee “is the benefit obtained for the class”); Hensley v.

Eckerhart, 461 U.S. 424, 436 (1983) ("the most critical factor [in determining an appropriate

attorneys' fee] is the degree of success obtained"); Vizcaino v. Microsoft Corp. 290 F.3d 1043,

1049 (9th Cir. 2002). 2 47 U.S.C. 227 et seq. entitled Restrictions on the Use of Telephone Equipment. 3 See Page 11, infra, summarizing largest TCPA settlements and showing that they all involve

classes with millions of members.


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Counsel respectfully requests their one-third contingency fee. Under the

circumstances of this case, an award of one-third of the fund is abundantly

reasonable because:

•This is a large settlement for a relatively small class-- individual class

members will receive up to $500 per call made, and most claimant have numerous

calls;

•This settlement, unlike every other major TCPA settlement, pays claimants

on a per call basis, not a per capita basis;

•Not a penny of the $45 million fund will revert to the Defendant; all money

will go to the claimants, to Class Counsel, or to a charity if there remain

undistributed funds;

•There is no attorney’s fee provision under the TCPA. Thus, a contingency

fee is the norm for an attorney to prosecute a TCPA case, be it individual or class

action. The one-third fee requested here is not expected to take away from the

class members’ recovery any more than if they successfully pursued their own case

on an individual basis, and in all likelihood, they will fare better with this

settlement than they ever could have by hiring an attorney to prosecute their case

individually;

•The settlement was reached only after full class discovery, review of over

40,000 pages of documents, depositions of parties and experts, exchange of expert


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reports, exchange of lengthy mediation memorandums, mediation before a retired

U.S. Magistrate Judge mediator versed in the nuances of the TCPA, followed by

three more months of post-mediation negotiation;

•The Class supports the settlement (no objections or opt-outs as of the date

of filing).

•The Class supports the fee requests (no objections or opt-outs as of the date

of filing)

•A one-third contingent fee is consistent with Ninth Circuit precedent as

well as TCPA and common-fund cases throughout the nation, and also reflective of

and consistent with the marketplace for contingent fee lawyers handling TCPA

cases.

LEGAL AUTHORITY

1. The Requested Fee is Presumptively Reasonable and Resulted from

Arm’s Length Negotiations.

“A request for attorney’s fees should not result in a second major litigation.

Ideally, of course, litigants will settle the amount of the fee.” Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983). While the Court must perform its own

evaluation to verify that the requested fee is reasonable and not the product of

collusion, it should give weight to the judgment of the parties and their counsel

where the fees were agreed to through arm’s length negotiations after the parties


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agreed on the other key settlement terms. See, e.g., In re Apple Computer, Inc.

Derivative Litig., 2008 U.S. Dist. LEXIS 108195, at *12 (N.D. Cal. Nov. 5, 2008).

Here, Class Counsel negotiated with ATTM to reach an agreed fee amount

that was reasonable in light of the benefits achieved for the class and applicable

legal principles, and did so only after they reached agreement on the other key deal

terms. Heenan Decl., ¶ 9. Further, the fee amount, like the settlement itself, was

agreed upon with the experience of an experienced former federal Magistrate

Judge and mediator, Judge Morton Denlow. Judge Denlow’s involvement

provides “independent confirmation that the fee was not the result of collusion or a

sacrifice of the interests of the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011,

1029 (9th Cir. 1998). Consequently, in view of the fact that ATTM does not

oppose Class Counsel’s fee request, and the fact that its acquiescence came in the

context of a mediation with a skilled mediator, the Court should consider Class

Counsel’s fee request presumptively reasonable.

2. The Percentage-of-the-Fund Method should be Applied in this Case.

The Ninth Circuit has approved both the “percentage of the fund” method

and “lodestar method” for calculating a reasonable attorneys' fee award in common

fund cases, with the method depending on the circumstances of the case. The

district court has discretion in common fund cases to choose either method. In re

Mercury Interactive Corp., 618 F. 3d 988, 992 (9th Cir. 2010). Whichever method


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is chosen and applied is subject to an ‘abuse of discretion” review standard. The

only requirement is that the court conclude that the fee awarded is reasonable given

all the facts and circumstances of the case. In re Bluetooth Headset Prods. Liab.

Litig. 654 F.3d 935, 942 (9th Cir. 2011).

The Ninth Circuit has clarified that the "lodestar method"4 is most

appropriate in class actions brought under fee-shifting statutes where the prevailing

party is by statute entitled to recover attorney’s fees. Id. at 941. In cases without a

fee-shifting provision such as this one, however, the lodestar method has been

criticized widely and for a long period of time. In the Report of the Third Circuit

Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 285 (1985), the Task

Force concluded that the lodestar method was a "cumbersome, enervating, and

often surrealistic process of preparing and evaluating fee petitions that now plagues

the Bench and Bar. . . ." The Ninth Circuit has likewise recognized that the

lodestar method "creates incentives for counsel to spend more hours than may be

necessary on litigating a case so as to recover a reasonable fee, since the lodestar

method does not reward early settlement." Vizcaino v. Microsoft Corp., 290 F.3d

1043, 1050, fn.5 (9th Cir. 2002).

4 The lodestar figure is calculated by multiplying the number of documented hours the prevailing

party reasonably expended on the litigation by a reasonable hourly rate for the region and for the

experience of the lawyer. Id.


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In addition to its tendency to promote inefficiency and burden courts and

their staffs, the use of the lodestar method often delays payments to class members

with no real offsetting benefit to them—i.e. with no real reduction in fees. The

Court in In re Activision Securities Litig., 723 F. Supp. 1373, 1375-1379 (N.D. Cal.

1989) surveyed and compared fees awards from numerous cases using both the

lodestar and the percentage of the fund methods and found that, regardless of

which method is used, the fee “almost always hovers around 30% of the fund

created by the settlement” . Id at 1375. Likewise Newberg states: “Empirical

studies show that, regardless whether the percentage method or the lodestar

method is used, fees awards in class action average around one-third of the

recovery”. 4 NEWBERG ON CLASS ACTIONS §14:6 at 1-2 (4th Ed.).

Conversely, “[W]here both the class and its attorneys are paid in cash, this

task [of awarding fees] is fairly effortless. The district court can assess the relative

value of the attorneys' fees and the class relief simply by comparing the amount of

cash paid to the attorneys with the amount of cash paid to the class. The more

valuable the class recovery, the greater the fees award.” In re HP Inkjet Printer

Litig. 716 F.3d 1173, 1178 (9th Cir. 2013). Further, because it relies on incentives

that promote efficiency and yokes together the interests of the class and its

attorneys, the percentage of the fund method has been described as “self-

regulatory” and “self-policing” and frees the courts to do other business. Coffee,


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John C. Jr., Understanding the Plaintiff’s Attorney: The Implications of Economic

Theory for Private Enforcement of Law through Class and Derivative Actions, 86

Colum. L. Rev. 669, 724-25 (1986).

Because of the burdens of the lodestar approach and the benefits of the

percentage of the fund method, about 90% of all courts employ the percentage of

the fund method when awarding fees from a common fund.5 The practice is the

predominant in the Ninth Circuit as well. See Omnivision, 559 F. Supp. 2d 1036,

1046 (N.D. Cal. 2009) (“Use of the percentage method in common fund cases

appears to be dominant”); Vizcaino, 209 F.3d at 1050 (“the primary basis of the fee

award remains the percentage method.) Elliot v. Rolling Frito-Lay 2014 U.S. Dist.

LEXIS at * 25 (S.D. Cal. 2014) (percentage of the common fund method is the

“typical” method of awarding fees in the Ninth Circuit).

For these reasons, Class Counsel submits that the Court should use the

standard percentage-of-the-fund method to determine the award of attorney’s fees

in this action.6

5 Eisenberg & Miller, Attorneys’ Fees and Expenses in Class Action Settlements, p.20 (from

2003 to 2008 only 9.6% of courts in common fund cases awarded fees using lodestar method).

6 The Ninth Circuit has suggested that in some cases, primarily “mega-fund” cases where the size

of the fund is simply the product of an extremely large class and a percentage of the fund might

result in a windfall for the attorneys at the expense of the class, the trial court may exercise its

option to cross-check the fee request by applying the lodestar method in order to arrive at a

reasonable fee. Bluetooth 652 F.3d at 943-3; Vizcaino, 290 F. 3d at 1047-8. However, the

lodestar cross check is optional and need not be performed where plaintiff's counsel achieves a

significant result through an early settlement. See Glass v. UBS Financial Services, Inc. 2007


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3. Class Counsel’s Fee Request is Abundantly Fair and Reasonable under

the Percentage-of-the-Fund Method.

In common fund cases, the Ninth Circuit has suggested a “benchmark” of

25% as a starting point for analysis. Vizcaino, 290 F.3d at 1048. However, courts

in the Ninth Circuit frequently award a percentage of the fund that is higher than

the 25% benchmark. Omnivision, 559 F.Supp. 2d at 1047. In fact, the fee awarded

exceeds the 25% benchmark in most common fund cases. See Lopez v.

Youngblood, 2011 U.S. Dist. LEXIS 99289, at *12 (E.D. Cal. Sept. 1, 2011) (fees

in common fund cases average 32% or 34.64%); Omnivision, supra at 1047 (“This

court's review of recent reported cases discloses that nearly all common fund

awards range around 30%”); In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379

(9th Cir. 1995) (affirming fee award equal to 33% of fund); Romero v. Producers

Diary Foods, Inc., 2007 U.S. Dist. LEXIS 86270 ("Empirical studies show that,

U.S. Dist. LEXIS 8476, (N.D. Cal. 2007) (declining to conduct a lodestar cross check, and

approving a request for fees based on the percentage of recovery method); Rankin v. American

Greetings, Inc., 2011 U.S. Dist. LEXIS 72250 *4 (E.D. Cal. July 5, 2011) (lodestar cross check

not necessary); Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, at *31 (E.D. Cal. Sept. 1,

2011) (“A lodestar cross-check is not required in this circuit, and in a case such as this [all cash

fund], is not a useful reference point.”); Craft v County of San Bernadino, 624 F. Supp. 2d 1113,

1122 (C.D. Cal. 2008) (“A lodestar cross check is not required in this circuit.”) In re

Manufacturers Life Insurance, 1009 U.S. Dist. LEXIS 23217 at *34 (S.D. Cal. 1998) (lodestar

analysis was unnecessary and attorney's fee was reasonable solely on percentage-recovery

method because “the touchstone is whether the fee is "reasonable under the circumstances.")

Because Class Counsel is seeking their fee under the percentage-of-the-fund method, and in view

of the result achieved and other attendant factors, submit that a lodestar “cross-check” is

unwarranted. Class Counsel is of course prepared to submit their lodestar for cross-check if

requested.


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regardless whether the percentage method or the lodestar method is used, fee

awards in class actions average around one-third of the recovery" citing 4

Newberg, NEWBERG ON CLASS ACTIONS § 14.6 (4th ed. 2007)); In re Mego,

213 F. 3d 457, 463 (9th Cir. 2000) (affirming award of one-third of common fund);

Vandervort v. Balboa Capital Corp. 8 F. Supp. 3d 1200, 1210 (C.D. Cal. 2014)

(awarding 1/3 of fund in TCPA class action); Bellows v. NCO Financial Sys. Inc.,

2009 U.S. Dist. LEXIS 273 at *4-5 (S.D. Cal. Jan. 5, 2009) (awarding 31.6% of

TCPA settlement fund).

This is not a fee shifting case-- the TCPA has no attorney’s fees provision.

Nor is this a “mega-fund” case where the size of the settlement fund is merely a

function of the size of the class; there are only about 16,000 class members here.7

This is not a case where awarding fees of 1/3 of the fund will unfairly tax or erode

the relief to class members. Quite to the contrary, the class members are getting

outstanding relief better than what they could have achieved had they hired

individual lawyers to prosecute their individual cases.

When awarding a fee from the fund, the Ninth Circuit has suggested a non-

exclusive list of factors to consider. The first and most important factor is the

results achieved. The Court may also consider: the risks of litigation; the skill

7Although “mega-fund” has no precise definition, it is generally considered to be in excess of

$100 million. In re AT&T Mobility Wireless Data Services Sales Tax Litig., 792 F. Supp. 2d

1028, 1032 (N.D. Ill. 2011).


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required and the quality of work; the contingent nature of the fee; the burdens

carried by class counsel; and the awards made in similar cases. Vizcaino, supra at

1048-50. All of these factors overwhelmingly support the requested 1/3 fee here.

•The Result Achieved Here is Exceptional.

The settlement requires AT&T to pay $45 million into a non-reversionary

common fund out of which class member claimants will receive their pro rata

share of cash payment. No money will revert to the Defendant.

Importantly, class members will be compensated on a per call basis, not a per

person basis like many other TCPA settlements. This is important because the

TCPA contemplates statutory damages on a per call basis; the more calls received,

the larger the damages warranted.

The per call settlement achieved in this case is spectacular, as depicted in

this table below comparing this case to the largest TCPA settlements against major

company defendants:

CASE # of CLASS

MEMBERS

SETTLEMENT

AMOUNT

AVG. RECOVERY

PER CLASS

MEMBER

Hageman v. ATTM 16,000 $45,000,000 $15,000-$17,0008

Capital One9 16 million $75,500,000 $20-$40

HSBC10 10 million $40,000,000 $20-$40

Chase Bank11 7 million $34,000,000 $20-$40

8 Based on current claims filing information, claim deadline is Jan. 19, 2015. 9 In re Capital One TCPA Litigation, 12-cv-10064 (MDL No. 2416) (N.D. Ill. Doc.#951) 10 Wilkins v. HSBC 14-cv-190 (N.D. Ill, 2014 pending) 11 Connor v. JPMorgan Chase, et al, 10-cv-1284 (S.D. Cal.)


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Bank of America12 7 million $32,000,000 $22-$45

Sallie Mae13 8 million $24,000,000 $110

Wells Fargo14 5.8 million $17,100,000 $84

Discover15 8 million $8,700,000 $47

In addition to the outstanding montetary relief, ATTM has agreed to

continue to implement procedures to reduce the prospects that it might call cellular

telephone numbers through the use of an automated dialing system in the absence

of consent. Essentially, ATTM has taken action to ensure that the calls which

plagued the class members here do not occur again.

As set forth, the results achieved is the most important factor in considering

whether a fee is reasonable. Here, the results for the class are objectively

outstanding and better frankly than any of the individual class members could have

achieved on their own. Class Counsel’s requested 1/3 fee is warranted in view of

the exceptional result achieved for the class.

•The Risk of Litigation was Substantial.

There are substantial risks in high-stakes litigation such as this. At the time

this case was filed, ATTM and its defense counsel in this case, Mayer Brown, had

just been the victors at the United States Supreme Court in one of the worst set-

12 Rose v. Bank of America, 2014 U.S. Dist Lexis 121641 ((N.D. Cal. Aug.29, 2014);11-cv-

02390 (N.D. Cal. Dkt. 59) 13 Arthur v. Sallie Mae, 10-cv-00198 (W.D. Wa. 2012) 14 Malta v FHLMA, et al, 10-cv-01290 (S.D. Cal.) 15 Steinfeld v. Discover Fin. Svcs. 12-cv-01118 (N.D. Cal.)


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backs for consumers in history. AT&T Mobility v. Concepcion 563 U.S. 321

(2011) (upholding ban on class arbitration in consumer cases).

At the time this case was filed, courts had refused to certify numerous TCPA

class action cases, or dismissed them, or de-certified them after initial certification.

See, e.g. Southwell v. Mortgage Investors Corp. of Ohio, 2014 U.S. Dist. LEXIS

112362 (W.D. Wash. Aug. 12, 2014) (denying motion for class certification);

Balschmiter v. TD Auto Fin. LLC, 2014 U.S. Dist. LEXIS 163771 (E.D. Wis. Nov.

20, 2014); Jamison v. First Credit Servs., Inc., 2013 WL 1248306, at *15-17 (N.D.

Ill. Mar. 28, 2013) (upholding denial of certification of TCPA class). Separately,

Courts across the country were also routinely “staying” TCPA cases on the basis

that the FCC had “primary jurisdiction” to interpret certain provision of the TCPA.

At the time this case was filed, there were only two known plaintiffs, and

only one of them lasted the duration of the case. A single plaintiff creates a risk of

dismissal or failure to achieve certification due to possible lack of the typicality

and adequacy requirement of Rule 23. See, e.g. Labou v. Cellco Partnership dba

Verizon, 2014 WL 824225 (E.D. Cal. March 3, 2014).

At the outset, Class Counsel had no idea whether there would be an

ascertainable class, much less what the scope would be. The only thing Class

Counsel knew when they filed this case was that their adversaries were formidable

and that this case would by no means be easy. In the face of these risks, the case


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was filed and prosecuted diligently. Over 40,000 pages of documents and

numerous spreadsheets were produced, both parties had their experts prepare

reports based on the class data available, the parties were deposed, plaintiff’s

expert was deposed and many hours were expended before Class Counsel could

confirm that this was a case where class certification might be achieved if the case

were not dismissed or stayed.

As in all class cases though, certification is only the first step of what can be

much more litigation. Interlocutory appeals are common in class action cases, and

the class and class counsel remain at risk during the lengthy appellate time period.

Even if Plaintiff prevailed on interlocutory appeal, the case is not over. A trial

result is not assured, and if tried, the losing party is almost certainly going to

appeal. Such are the risk in any litigation, but in a national class action such as this

one concerning a statute interpreted by courts and the FCC in varying degrees of

non-conformity, with a moneyed Defendant with a proven record of “making its

point”, the ordinary risk are greatly magnified. See Fulford v. Logitech, Inc., 2010

U.S. Dist. LEXIS 29042, at *8 (N.D. Cal. Mar. 5, 2010) (“[L]iability and damages

issues—and the outcome of any appeals that would likely follow if the Class were

successful at trial—present substantial risks and delays for class member

recovery.”). The risks which Class Counsel undertook in prosecuting this case

were real and substantial, and warrant the requested 1/3 contingency fee.


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•The Prosecution of this Case Required Skill and Hard Work.

The TCPA is a complex statute, not necessarily for what it says, but for what

it means in an era of rapidly changing technology. Courts and parties cannot agree

on the meaning of “automatic telephone dialing system” as used in the TCPA and

have turned to the FCC for interpretation. See, e.g., Marks v. Crunch San Diego,

LLC, 2014 U.S. Dist. LEXIS 152923 (Oct. 23, 2014) at *6-13 (parsing the meaning

of “automatic telephone dialing system” in granting defendant’s motion for

summary judgment because defendant’s web-based platform required “human

curation and intervention”). Among other arcane issues and statutory

interpretations, parties regularly dispute whether “robo-calls” have to connect or

only be attempted to give rise to TCPA liability. See, e.g., Satterfield v. Simon &

Schuster, 569 F.3d 946, 953-54 (9th Cir. 2009) (holding that “to make any call” in

§227(b)(1)(A) means “to communicate with or try to get into communication with

a person by telephone.”)

The “prosecution and management of a complex national class action

requires unique legal skills and abilities.” Omnivision, 559 F. Supp. 2d at 1047

(citation omitted). As the Court is aware, Mr. Heenan is a small firm practitioner.

In order to prosecute and manage this case properly, Mr. Heenan involved lawyers

he knew and trusted through work on previous consumer cases. Heenan Decl., ¶ 7.

Specifically, Mr. Bingham is a skilled class action litigator who has worked with


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Mr. Heenan in the past to achieve successful results for consumers. See, e.g., Cole

v. Portfolio Recovery Associates, LLC, CV-08-36-GF-RKS (multi-million

settlement on behalf of victims of debt collection misconduct). Mr. Keogh is one of

the nation’s foremost TCPA and consumer lawyers. He has prosecuted numerous

TCPA cases on an individual basis and as class actions since early 2002, has

presented at numerous national and local conferences on the TCPA, and has met

with the FCC on several occasions to discuss TCPA interpretation by the agency.

See Keogh Decl.

The result of counsels’ efforts is this record-setting settlement. The

prosecution of this case required both skill and hard work, and in view of the

success achieved, demonstrates the reasonableness of the 1/3 fee request.

•The Contingent Nature of the Fee and the Burdens Carried by Class

Counsel Warrants the Requested 1/3 Fee.

For any Plaintiff’s firm to bring a national class action against one of

America’s largest companies requires substantial commitment of time and

resources in the face of significant risks of loss and/or delay. In this case, Class

Counsel is comprised of three small firms with an aggregate total of seven lawyers,

only three of whom worked on the case to any significant extent. (By comparison,

AT&T’s counsel is a 1,500 lawyer law firm.16)

16 See http://en.wikipedia.org/wiki/Mayer_Brown.


http://en.wikipedia.org/wiki/Mayer_Brown

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Firms of small size face even greater risks in litigating large class actions

with no guarantee of payment. Boyd v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS

162880 (C.D. Cal. Nov. 18, 2014) (awarding fee award of 1/3 rather than 25%

benchmark, finding heightened risk of small firm representation should be

rewarded with larger percentage fee for good result); see also Pennsylvania v.

Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 750 (1987)

(Delaware Valley II) (plurality opinion) (“[C]ontingent litigation may pose greater

risks to a small firm or a solo practitioner because the risk of nonpayment may not

be offset so easily by the presence of paying work. . . .”); Davis v. Mutual Life Ins.

Co., 6 F.3d 367, 382 (6th Cir. 1993) (“[T]he maintenance of comparatively large

pieces of litigation prevents small firms from diversifying risk by taking on

additional clients ...”).

As stated, this is a pure contingent fee case, and one which Class Counsel

took on with high risk concerning not only the result of the case, but also how

much time and money would need to be invested to get a result. Class Counsel

was far into the water before they could see the other side. Because hours and

resources are necessarily limited, the three attorneys involved in this case were

required to defer or decline other work in order to properly prosecute this case.

See Heenan, Bingham and Keogh Declarations. Had the case been lost, they

would have received no compensation for their significant investment of time and


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effort. Conversely, because Class Counsel’s time and effort resulted in an

outstanding result for the class members, they are entitled to their 1/3 contingency

fee.

•Awards made in Similar Cases Confirm the Reasonableness of the

Requested Fee.

An often cited empirical study of attorneys’ fees in common fund cases

found that fees awarded average 32% of fund, and 34.74% when expenses are

added in. Silber and Goodrich, Common Funds and Common Problems: Fee

Objections and Class Counsel's Response, 17 Rev.Litig 525, 534 (1998) cited in

Craft v County of San Bernadino, 624 F. Supp. 2d 1113, 1123-25 (C.D. Cal. 2008).

Silber and Goodrich recommend a one-third fee award and say that this is

appropriate because "the attorneys will receive the best fee when the attorneys

obtain the best recovery for the class. Hence, under the percentage approach, the

class members and the class counsel have the same interest — maximizing the

recovery of the class." Id.; see also In re Mego Fin. Corp., 313 F.3d at 463 (9th Cir.

2000) (affirming fee award of one-third of fund); In re Pacific Enters. Sec. Litig.

47 F. 3d 373, 379 (9th Cir. 1995) (affirming fee award of one-third of fund).

The fee requested in this case is in line with similar awards in other class

action cases, including TCPA class action cases. See, e.g., Vandervort v Balboa

Capital Corp., 8 F. Supp. 3d 1200, 1210 (C.D. Cal. 2014) (fee of 1/3 fund awarded

in TCPA case); Saf-T-Gard v Vanguard Energy Services, LLC., 12 C 3671 (N.D.


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Ill 2014) (awarding 33% of the common fund); Hanley v Fifth Third Bank, 12 C

1612 (N.D. Ill) (Judge Castillo) (Awarding 33% of the common fund); Saf-T-Gard

v Seiko, 09 C 776 (N.D. Ill. 2011) (Judge Bucklo) (Awarding 33% of the common

fund); Hinman v. M and M Rental Center Inc., 06-cv- 01156, Doc. 225 (N.D. Ill.

2008) (Awarded 33% of the common fund plus costs); CE Design, Ltd. v. Cy’s

Crabhouse, 07 C 5456 (N.D. Ill. Sept. 22, 2010) (Judge Kennelly) (awarded 33%

of the common fund plus costs. Doc. 373); Holtzman v. CCH, 07 C 7033 (N.D. Ill.

Sept. 30, 2009) (Judge Nordberg) (awarded 33% of the common fund plus costs.

Doc. 33); CE Design, Ltd. v. Exterior Systems, Inc., 07 C 66 (N.D. Ill. Dec. 6,

2007) (Judge Darrah) (awarded 33% of the common fund plus costs. Doc. 32-2;

Locklear Electric, Inc. v. Norma L. Lay, 09 C 0531 (S.D. Ill.) (Reagan, J.)

(Awarded 33% of the common fund plus costs. Doc. 67); Accounting Outsourcing,

LLC. v Verizon Wireless, 2007 U.S. Dist. LEXIS 97153 (M.D. La. 2007) (Awarded

$2,314, 328, which is in excess of 35% of the common fund, plus costs); Nicholson

v Hooters of Augusta, Inc., 95-RCCV-616 (Richmond County, Ga. April 25, 2001)

(Awarded $3,931,035.62, which was 33% of the common fund plus costs).

Class Counsel has secured a spectacular result here that dwarfs all other

TCPA settlements. In view of the outstanding result achieved as well as every

other factor the Ninth Circuit considers relevant, Class Counsel has earned and is

entitled to the requested 1/3 fee. See In re Bluetooth Headset Prod. Liab.


20

Litigation, 654 F.3d 935, 942 (9th Cir. 2011) ("[f]oremost among these

considerations [in awarding fees], however, is the benefit obtained for the class.")

REQUEST FOR INCENTIVE AWARD

On behalf of the named Plaintiff Joel Hageman, Class Counsel requests an

incentive award of $20,000 be paid from the fund to Mr. Hageman. The requested

award is about one-half of one percent (.05556%) of the fund.

Incentive awards to the named plaintiff or plaintiffs are fairly typical in class

action cases and are intended to compensate class representatives for work done on

behalf of the class, to make up for financial or reputational risk undertaken in

bringing the action, and, sometimes, to recognize their willingness to act as a

private attorney general. See Albert Conte and Herbert B. Newberg, 4 NEWBERG

ON CLASS ACTIONS, §11.38 (4th ed.) Awards are generally sought after a

settlement or verdict has been achieved. Rodriguez v West Publishing 563 F.3d

948, 958 (9th Cir. 2009). Courts use various factors to determine the amount of the

incentive award, including “the actions the plaintiff has taken to protect the

interests of the class, the degree to which the class has benefitted from those

actions, ... [and] the amount of time and effort the plaintiff expended in pursuing

the litigation ...." Louie v. Kaiser Foundation Health Plan, Inc., 2008 U.S. Dist.

LEXIS 78314 at *18 (awarding $25,000 incentive award) (internal citations

omitted); Glass, 2007 U.S. Dist. LEXIS 8476 ($25,000 incentive award).


21

Here, Mr. Hageman has diligently prosecuted this action on behalf of not

just himself, but the class. When deposed, he testified:

Q. Did you think you'd be better off by bringing it as a class

action individually, that you would individually be

better off?

A. No. I mean, I just brought it because I know

by myself that it's frustrating to get these calls, and

there are other people out there that are getting these

calls. And it is what it is. You know, I don't know if

I'll be better or worse.

(Hageman Depo. at 18-19.) Mr. Hageman could have simply prosecuted his own

TCPA case. Instead, he chose to fight for not only his own rights but the absent

class members as well. The requested incentive award is justified in view of Mr.

Hageman’s diligence and the outstanding results obtained.

CONCLUSION

For the foregoing reasons, Class Counsel respectfully request that the Court

grant Plaintiffs’ application for an award from the settlement fund of attorney’s

fees in the amount of $15,000,000 and service award to Mr. Hageman in the

amount of $20,000. The requested fees and incentive award are incorporated into

the proposed order for final approval filed contemporaneously with this

Application.


22

DATED this 5th day of January, 2015.

Respectfully Submitted,

/s/ John Heenan

John Heenan

BISHOP & HEENAN

1631 Zimmerman Trail

Billings, MT 59102


1

John Heenan

BISHOP & HEENAN


Billings, MT 59102

T: (406) 839-9091

F: (406) 839-9092

[email protected]

Attorney for Plaintiff



BILLINGS DIVISION



situated, )

)

Plaintiff, )

) DECLARATION OF JOHN

v. ) HEENAN

)


)

Defendant. )

I, John Heenan, declare under penalty of perjury that the following

statements are true:

1. I am an attorney licensed to practice law in the State of Montana and

am a member in good standing of the bar of the State of Montana. I make this

Declaration based upon my personal knowledge.

2. I was admitted to practice law in Montana in 2003. I am rated “AV”

according to Martindale-Hubbell.

Case 1:13-cv-00050-DLC-RWA Document 60-1 Filed 01/05/15 Page 1 of 7

2

3. My practice includes the representation of consumers. I have

developed a statewide consumer law practice and have represented consumers

from various regions of the State of Montana. I am one of a limited number of

attorneys in Montana prosecuting consumer class action cases. I am one of the

only private attorneys in Montana who is a member of the National Association of

Consumer Advocates (NACA), a nationwide group of consumer lawyers. As part

of the development of my consumer law practice, I have attended national

continuing legal education seminars on consumer law. I have spoken about

consumer law issues throughout Montana including at the Montana Bar’s Annual

Convention (twice), the Montana Trial Lawyers Association’s annual seminar

(three times), the Federal Bar Association, the Montana Bankruptcy law

conference, and the National Business Institute (twice). I have also spoken about

consumer law issues at the NACA annual conference and to the California Bar

Association.

4. I, along with Keith Keogh and Ben Bingham, are the attorneys for

Joel Hageman, the Plaintiff and class representative in this case.

5. This case was brought under the federal Telephone Consumer

Protection Act (“TCPA”) which prohibits what are generally referred to as “robo-

calls” made to cellphones of consumers unless they have given their prior express

consent to the calls. The case was brought as a class action because it was


3

perceived that what was happening to Mr. Hageman was happening to others as

well. What was happening to Mr. Hageman was repeated calls to his cellphone

from AT&T Mobility (“ATTM”) or debt collectors attempting to collect for

ATTM on accounts that were not Mr. Hageman’s accounts. Mr. Hageman was not

and has never been an ATTM customer. It is my experience that there are very

few, if any, private attorneys in Montana willing or able to take on and represent

consumers in cases such as this action.

6. I am a small firm practitioner with no associates or paralegal support.

I do all of my own research, write all of my own briefs, and generally do

everything required to prosecute a case by myself. Because of my limited time, I

frequently associate with other attorneys in cases.

7. I associated other counsel in this case, Keith Keogh and Ben

Bingham. Mr. Bingham and I have had other class action settlements approved as

fair, reasonable and adequate by federal courts in Montana, and we have both been

involved in other class action cases in other states. See, e.g., Cole v. Portfolio

Recovery Associates, LLC, CV-08-36-GF-RKS (multi-million settlement on behalf

of victims of debt collection misconduct). Mr. Keogh is one of the nation’s

leading experts in TCPA cases and other areas of consumer law. He is and has

been involved in some of the biggest TCPA cases in the country. Together we

performed the upfront due diligence to initiate the case, and agreed to jointly


4

prosecute it and divide the work amongst us evenly. To that end, we conducted

extensive discovery both formally and informally over many months. ATTM

produced to us thousands of pages of documents and numerous different

spreadsheets all of which involved hundreds of thousands of calls to cellphones.

We had to retain at our own expense an expert, Robert Biggerstaff of South

Carolina to assist us with the interpretation of the data produced by ATTM.

Eventually, Mr. Biggerstaff produced a lengthy report summarizing his expected

testimony and the basis for it, and he was deposed by ATTM attorneys in South

Carolina. ATTM attorneys also came to Montana to depose Mr. Hageman, and we

deposed ATTM’s corporate representative in Chicago. Through this process of

discovery we were able to distill our potential class down to what we thought

would be an almost certainly certifiable class. ATTM, however, was just as certain

that our class could not be certified, and retained its own expert to assist it with its

effort to fight certification.

8. After class discovery had closed and the parties had time to have their

own experts analyze the reports and basis of the competing experts opinions, the

parties agreed to attempt to settle the case by mediation. The parties selected as a

mediator the Honorable Morton Denlow, a former federal Magistrate Judge from

the Northern District of Illinois, now a mediator for JAMS. Judge Denlow was


5

chosen in part because he had prior experience mediating TCPA cases and so he

had knowledge of the statute itself and the case law developing under the TCPA.

9. Prior to the mediation the parties exchanged extensive mediation

position statements and data to support their respective positions. Judge Denlow

required that Plaintiff make a pre-mediation demand and that Defendant respond to

it. This was done and each side entered the meditation well prepared. The

mediation occurred on June 24, 2014 in Chicago and resulted in a signed term

sheet memorializing the major points of agreement. Only after the relief to the

class and all other material aspects of the settlement had been agreed did the

parties discuss the resolution of attorney’s fees and class representative incentive

awards. At the mediation, and with the assistance of Judge Denlow, we agreed to

accept, and ATTM agreed that it would not oppose, an award of attorney’s fees

equal to 1/3 the settlement fund ($15 million) and an award of $20,000 to Mr.

Hageman as an incentive award for serving as class representative. Based on our

experience and knowledge of claim rates in consumer class cases in general and of

TCPA class cases in particular, it was Class Counsel’s estimation that class

members who filed claims in this case would still receive an extraordinary

payment and fare better than in an individual action, even with the 1/3 fee award

considered. Stated differently, we estimated that even with the 1/3 fee awarded,


6

claimants would net a larger amount from this settlement than they would in an

individual case, making this essentially a “fee free” settlement to them.

10. Following the settlement conference and over a period of three

months, the parties continued to negotiate some of the finer points of the

settlement, with the culmination being that a Settlement Agreement was signed on

September 26, 2014 and filed with the Court on September 30, 2014.

11. We are incredibly proud of this settlement. While it is one of the

highest TCPA settlement in terms of dollars ($45 million), it is one of the smallest

in terms of number of class members. Therefore, the settlement fund we created

will result in significant payments to class members who file claims. Pursuant to

the settlement agreement, class members are entitled to recover up to $500 for each

call they received, and will likely do so. Even after attorneys’ fees and other costs

incurred in creating and administering the fund are deducted, class members filing

claims can expect to recover the full $500 per call or very close to it. Thus, the

class members who filed claims will recover more than they could reasonably

expect to recover if they hired an attorney to prosecute their individual case. In the

context of class actions which not infrequently result in coupons or marginal

monetary relief, the settlement we have achieved here is outstanding. As our fee

application documents, courts have approved TCPA settlements where class

members get $20-$40 total regardless of the number of calls they received.


7

12. We all believe that this is a great settlement, one of the best we have

ever been involved with or even know of, and one that will provide consumers a

substantial benefits, more than they could expect to receive if they prosecuted their

TCPA claims on an individual basis.

DATED this 5th day of January, 2015.

Respectfully Submitted,

/s/ John Heenan

John Heenan

BISHOP & HEENAN


Billings, MT 59102


1

John Heenan

BISHOP & HEENAN


Billings, MT 59102

T: (406) 839-9091

F: (406) 839-9092

[email protected]

Attorney for Plaintiff



BILLINGS DIVISION



situated, )

)

Plaintiff, )

) DECLARATION OF KEITH

v. ) KEOGH

)


)

Defendant. )

Keith J. Keogh declares under penalty of perjury, that the following

statements are true:

1. Keogh Law, Ltd. consists of four attorneys and focuses on consumer

protection cases for both individuals and class actions. I am a shareholder of the

firm and member of the bars of the United States Court of Appeals for the Seventh

Circuit, Eastern District of Wisconsin, Northern District of Illinois, Southern


2

District of Indiana, District of Colorado and Illinois State Bar as well as several bar

associations and the National Association of Consumer Advocates.

2. I was lead counsel in the following class settlements, many of which

involve claims under the Telephone Consumer Protection Act (“TCPA”): See

Lopera v RMS, 12-c-9649 (N.D. Ill. Judge Wood), Kubacki v Peapod, 13-cv-729

(N.D. Ill. Judge Mason); Wojcik v. Buffalo Bills, Inc., 8:12 CV 2414-SDM-

TBM (M.D. Fl. Judge Merryday) (TCPA) l Cummings v Sallie Mae, 12 C-9984

(N.D. Ill. Judge Gottschall) (TCPA) (co-lead); Brian J. Wanca, J.D., P.C. v. L.A.

Fitness International, LLC, Case No. 11-CV-4131 (Lake County, Il. Judge

Berrones) (TCPA); Osada v. Experian Info. Solutions, Inc., 2012 U.S. Dist. LEXIS

42330 (N.D. Ill. Mar. 28, 2012) (FCRA class); Saf-T-Gard International, Inc. v.

Vanguard Energy Services, L.L.C., et al, 12-cv-3671 (N.D. Ill. 2013 Judge

Gottschall) (TCPA); Saf-T-Gard v TSI, 10-c-7671, (N.D. Ill. Judge Rowland)

(TCPA); Cain v Consumer Portfolio Services, Inc. 10-cv-02697 (N.D. Ill. Judge

Keys) (TCPA); Iverson v Rick Levin & Associates, 08 CH 42955 Circuit Court

Cook County (Judge Cohen) (TCPA); Saf-T-Gard v Seiko, 09 C 776 (N.D. Ill.

Judge Bucklo) (TCPA); Jones v. Furniture Bargains, LLC, 09 C 1070 (N.D. Ill)

(FLSA collective action); Saf-T-Gard v Metrolift, 07 CH 1266 Circuit Court Cook

County (Judge Rochford) (Co-Lead) (TCPA); Bilek v Countrywide, 08 C 498

(N.D. Ill. Judge Gottschell); Pacer v Rochenback, 07 C 5173 (N.D. Ill. Judge


3

Cole); Overlord Enterprises v. Wheaton Winfield Dental Associates, 04 CH 01613,

Circuit Court Cook County (Judge McGann) (TCPA); Whiting v SunGard, 03 CH

21135, Circuit Court Cook County (Judge McGann) (TCPA); Whiting v.

Golndustry,03 CH 21136, Circuit Court Cook County (Judge McGann) (TCPA).

3. I was the attorney primarily responsible for the following class

settlements: Wollert v. Client Services, 2000 U.S. Dist. LEXIS 6485 (N.D. Ill.

2000); Rentas v. Vacation Break USA, 98 CH 2782, Circuit Court of Cook County

(Judge Billik); McDonald v. Washington Mutual Bank, supra; Wright v. Bank One

Credit Corp., 99 C 7124 (N.D. Ill. Judge Guzman); Arriaga v. Columbia

Mortgage, 01 C 2509 (N.D. Ill. Judge Lindberg); Frazier v. Provident Mortgage,

00 C 5464 (N.D. Ill. Judge Coar); Largosa v. Universal Lenders, 99 C 5049 (N.D.

Ill. Judge Leinenweber); Arriaga v. GNMortgage, (N.D. Ill. Judge Holderman);

Williams v. Mercantile Mortgage, 00 C 6441 (N.D. Ill. Judge Pallmeyer); Reid v.

First American Title, 00 C 4000 (N.D. Ill. Magistrate Judge Ashman); Fabricant v.

Old Kent, 99 C 6846 (N.D. Ill. Magistrate Judge Bobrick); Mendelovits v. Sears,

99 C 4730 (N.D. Ill. Magistrate Judge Brown); Leon v. Washington Mutual, 01 C

1645 (N.D. Ill. Judge Alesia).

4. The individual class members’ recovery in some of these settlements

was substantial. For example, in one of the cases against a major bank the class

members’ recovery was 100% of their actual damages resulting in a payout of


4

$l,000 to $9,000 per class member. In another case against a major lender

regarding mortgage servicing responses, each class member who submitted a claim

form received $1,431. McDonald v. Washington Mutual Bank.

5. In addition, to the above settlements, I was appointed class counsel in

Galvan v. NCO Fin. Sys., 2012 U.S. Dist. LEXIS 128592 (N.D. Ill. 2012); Osada

v. Experian Info. Solutions, Inc., 2012 U.S. Dist. LEXIS 42330 (N.D. Ill. Mar. 28,

2012) (FCRA class); Pesce v First Credit Services, 11-cv-01379 (N.D. Ill.

December 19 2011) (TCPA Class); Smith v Greytsone Alliance, 09 CV 5585 (N.D.

Ill. 2010); Cicilline v. Jewel Food Stores, Inc., 542 F.Supp.2d 831 (N.D.Ill.

2008)(Co-Lead Counsel for FACTA class); Harris v. Best Buy Co., 07 C

2559,2008 U.S. Dist. LEXIS 22166 (N.D.Ill. March 20, 2008)( FACTA class);

Matthews v. United Retail, Inc., 248 F.R.D. 210 (N.D.Ill. 2008)( FACTA class);

Redmon v. Uncle Julio's, Inc., 249 F.R.D. 290 (N.D.Ill. 2008)( FACTA class);

Harris v. Circuit City Stores, Inc., 2008 U.S. Dist. LEXIS 12596,2008 WL 400862

(N.D. Ill. 2008)( FACTA class); Pacer v Rockenbach Chevrolet Sales, Inc., 07 C

5173 (N.D. Ill. 2008)( FACTA class).

6. Some reported cases of mine involving consumer protection include:

Townsel v. DISH Network L.L.C., 668 F.3d 967 (7th Cir. Ill. 2012); Catalan v.

GMAC Mortgage Corp., No. 09-2182 (7th Cir. 2011) ; Gburek v Litton Loan, 614

F.3d 380 (7th Cir. 2010); Sawyer v. Ensurance Insurance Services consolidated


5

with Killingsworth v. HSBC Bank Nev., NA., 507 F3d 614, 617 (7th Cir. 2007),

Echevarria et al. v. Chicago Title and Trust Co., 256 F3d 623 (7th Cir. 2001);

Demitro v. GMAC, 388 Ill. App. 3d 15, 16 (lst Dist. 2009); Hill v. St. Paul Bank,

329 Ill. App. 3d 7051, 1768 N.E.2d 322 (lst Dist. 2002); In re Mercedes-Benz Tele

Aid Contract Litig., 2009 U.S. Dist. LEXIS 35595 (D.N.J. 2009); Catalan v. RBC

Mortg. Co., 2009 U.S. Dist. LEXIS 26963 (N.D. Ill. 2009); Elkins v. Equifax, Inc.,

2009 U.S. Dist. LEXIS 18522 (N.D. Ill. 2009); Harris v. DirecTV Group, Inc.,

2008 U.S. Dist. LEXIS 8240 (N.D. Ill. 2008); In re TJX Cos., Inc., Fair &

Accurate Credit Transactions Act (FACTA) Litig., 2008 U.S. Dist. LEXIS 38258

(D. Kan. 2008); Martin v. Wal- Mart Stores, Inc., 2007 U.S. Dist. LEXIS 89715

(N.D. Ill. 2007); Elkins v. Ocwen Fed. Sav. Bank Experian Info. Solutions, Inc.,

2007 U.S. Dist. LEXIS 84556 (N.D. Ill. 2007); Harris v. Wal-Mart Stores, Inc.,

2007 U.S. Dist. LEXIS 76012 (N.D. Ill. 2007); Stegvilas v. Evergreen Motors,

Inc., 2007 U.S. Dist. LEXIS 35303 (N.D. Ill. 2007); Cook v. River Oaks Hyundai,

Inc., 2006 U.S. Dist. LEXIS 21646 (N. D. Ill. 2006); Gonzalez v. W. Suburban

Imps., Inc., 411 F. Supp. 2d 970 (N.D. Ill. 2006); Eromon v. GrandAuto Sales,

Inc., 333 F. Supp. 2d 702 (N.D. Ill. 2004); Williams v. Precision Recovery, Inc.,

2004 U.S. Dist. LEXIS 6190 (N.D. Ill. 2004); Doe v. Templeton, 2003 U.S. Dist.

LEXIS 24471 (N.D. Ill. 2003); Ayala v. Sonnenschein Fin. Servs., 2003 U.S. Dist.

LEXIS 20148 (N.D. Ill. 2003); Gallegos v. Rizza Chevrolet, Inc., 2003 U.S. Dist.


6

LEXIS 18060 (N.D. Ill. 2003); Szwebel v. Pap’s Auto Sales, Inc., 2003 U.S. Dist.

LEXIS 13044 (N.D. Ill. 2003); Johnstone v. Bank of America, 173 F. Supp.2d 809

(N.D. Ill. 2001); Leon v. Washington Mutual Bank, 164 F. Supp.2d 1034 (N.D. Ill.

2001); Ploog v. HomeSide Lending, 2001 WL 987889 (N.D. Ill. 2001); Christakos

v. Intercounty Title, 196 F.R.D. 496 (N.D. Ill. 2000); Batten v. Bank One, 2000

WL 1364408 (N.D. Ill. 2000); McDonald v. Washington Mutual Bank, 2000 WL

875416 (N.D. Ill. 2000); and Williamson v. Advanta Mtge Corp., 1999 U.S. Dist.

LEXIS 16374 (N.D. Ill. 1999). The Christakos case significantly broadened title

and mortgage companies’ liability under Real Estate Settlement Procedures Act

(“RESPA”) and McDonald is the first reported decision to certify a class regarding

mortgage servicing issues under the Cranston-Gonzales Amendment of RESPA.

7. I have argued before the Seventh Circuit, the First District of Illinois

and the MultiLitigation Panel in Townsel v. DISH Network L.L.C., 668 F.3d 967

(7th Cir. Ill. 2012); Catalan v GMACM (7th Cir. 2010); Gburek v Litton Loan

Servicing (7th Cir. 2009); Sawyer v Esurance (7th Cir. 2007), Echevarria, et al. v.

Chicago Title and Trust Co. (7th Cir. 2001); Morris v Bob Watson, (lst. Dist.

2009); Iverson v Gold Coast Motors Inc., (lst. Dist. 2009); Demitro v. GMAC (lst

Dist. 2008), Hill v. St. Paul Bank (lst Dist. 2002), and In Re: Sears, Roebuck &

Company Debt Redemption Agreements Litigation (MDL Docket No. 1389.)


7

Echevarria was part of a group of several cases that resulted in a nine million

dollar settlement with Chicago Title.

8. My published works include co-authoring and co-editing the 1997

supplement to Lane’s Goldstein Trial Practice Guide and Lane’s Medical

Litigation Guide.

9. I was the presenter at the National Consumer Law Center annual

conference for two sessions on the TCPA. I was a panelist for the December 2013

Strafford CLE Webinar titled TCPA Class Actions: Pursuing or Defending Claims

Over Phone, Text and Fax Solicitations. I was a panelist for the December 2014

Chicago Bar Association Class Action Seminar titled “Class Action Settlements in

the Seventh Circuit: Navigating Turbulent Waters.” I lectured at the 2014 Fair

Debt Collection Training Conference for three sessions on the TCPA. I was a

panelist for the December 2013 Strafford CLE Webinar titled Class Actions for

Telephone and Fax Solicitation and Advertising Post‐Mims. Leveraging TCPI

lectured at the 2014 Fair Debt Collection Training Conference for three sessions on

the TCPA. I was a panelist for the December 2013 Strafford CLE Webinar titled

Class Actions for Telephone and Fax Solicitation and Advertising Post‐Mims.

Leveraging TCPA Developments in Federal Jurisdiction, Class Suitability, and

New Technology. I was the sole presented for the National Association of

Consumer Advocates November 2013 webinar titled Current Telephone Consumer


8

Protection Act Issues Regarding Cell Phones. I was a presenter for the November

2013 Chicago Bar Association Class Action Committee presentation titled Future

of TCPA Class Actions. I was invited to speak at the Social Security

Administration’s Chicago office in August 2013 on a presentation on identity theft,

which included consumers’ rights under the Fair Credit Reporting Act. I was a

panelist for the May 14, 2013 Chicago Bar Association Class Action Seminar titled

“The Shifting Landscape of Class Litigation” as well as for the March 20, 2013

Strafford CLE webinar titled “Class Actions for Telephone and Fax Solicitation

and Advertising Post‐Mims. Leveraging TCPA Developments in Federal

Jurisdiction, Class Suitability, and New Technology.” I lectured at the June 6,

2013 Consumer Law Committee of the Chicago Bar Association on the topic

“Employment Background Reports under the Fair Credit Reporting Act: Improper

consent forms to failure to provide background report prior to adverse action.” I

also lectured at the 2013 Fair Debt Collection Training Conference for three

sessions on the TCPA, the 2012 National Consumer Law Center annual conference

for a session on the TCPA; the 2012 Fair Debt Collection Training Conference for

a session on the TCPA, I was a panelist for Solutions for Employee Classification

& Wage/Hour Issues at the 2011 Annual Employment Law Conference hosted by

Law Bulletin Seminars; I lectured at the 2011 National Consumer Law Center

conference for a session titled Telephone Consumer Protection Act: Claims, Scope,


9

Remedies as well as lectured at the same 2011 National Consumer Law Center

conference for a double session titled ABC’s of Class Actions.

10. I have taught Defenses to Foreclosures for Lorman Education

Services, which was approved for CLE credit, in 2008 and 2010 and I was a guest

lecturer on privacy issues at University of Illinois at Urbana-Champaign School of

Law. In March 2010, I was invited to speak by the Student Legal Services Office

of The Graduate School and Kellogg MBA Program at Northwestern University

for its seminar titled: “Financial Survival Guide: Legal Strategies for Graduate

Students During A Period of Economic Uncertainty.”

11. I was selected as an Illinois Super Lawyer in 2014 and an Illinois

Super Lawyer Rising Star each year from 2008 through 2013 and my cases have

been featured in local newspapers such as the Chicago Tribune, Chicago Sun-

Times, The Naperville Sun, Daily Herald and RedEye.

12. In April 2011, Timothy J. Sostrin joined the firm. He is a member in

good standing of the Illinois bar, the U.S. District Court District of Colorado, U.S.

District Court Northern District of Illinois, U.S. District Court Northern and

Southern Districts of Indiana, U.S. District Court Eastern and Western Districts of

Michigan, U.S. District Court Eastern District of Missouri, U.S. District Court

Southern District of Texas and U.S. District Court Eastern and Western Districts of

Wisconsin.


10

13. Timothy J. Sostrin has zealously represented consumers in Illinois and

in federal litigation nationwide against creditors, debt collectors, retailers, and

other businesses engaging in unlawful practices. Tim has extensive experience

with consumer claims brought under the Fair Debt Collection Practices Act, The

Telephone Consumer Protection Act, the Fair Credit Reporting Act, the Electronic

Fund Transfer Act, and Illinois law. Some of Tim’s representative cases include:

Osada v. Experian Info. Solutions, Inc., 2012 U.S. Dist. LEXIS 42330 (N.D. Ill.

Mar. 28, 2012) (granting class certification); Galvan v. NCO Financial Systems,

Inc., 2012 U.S. Dist. LEXIS 128592 (N.D. Ill. 2012)(granting class certification);

Saf-T-Gard International, Inc. v. Vanguard Energy Services, LLC, (2012 U.S. Dist.

LEXIS 174222 (N.D. Ill. December 6, 2012)(granting class certification); Jelinek

v. The Kroger Co., 2013 U.S. Dist. LEXIS 53389 (N.D. Ill. 2013)(denying

defendant’s motion to dismiss); Hanson v. Experian Information Solutions, Inc.,

2012 U.S. Dist. LEXIS 11450 (N.D. Ill. January 27, 2012)(denying defendant’s

motion for summary judgment); Warnick v. DISH Network, LLC, 2013 U.S. Dist.

LEXIS 38549 (D. Colo. 2013)(denying defendant’s motion to dismiss);Torres v.

Nat’l Enter. Sys., 2013 U.S. Dist. LEXIS 31238 (N.D. Ill. 2013)(denying

defendant’s motion to dismiss); Griffith v. Consumer Portfolio Serv., 838 F. Supp.

2d 723 (N.D. Ill. 2011)(denying defendant’s motion for summary judgment);

Frydman et al v. Portfolio Recovery Associates, LLC, 2011 U.S. Dist. LEXIS


11

69502 (N.D. Ill 2011)(denying defendant’s motion to dismiss); Rosen Family

Chiropractic S.C. v. Chi-Town Pizza, 2013 U.S. Dist. LEXIS 6385 (N.D. Ill.

2013)(denying defendant’s motion to dismiss); Sengenberger v. Credit Control

Services, Inc., 2010 U.S. Dist. LEXIS 43874 (N.D. Ill. May 5, 2010) (granting

summary judgment on TCPA claim);

14. Tim is a member of the National Association of Consumer Advocates

and ISBA. He received his Juris Doctorate, cum laude, from Tulane University

Law School in 2006.

15. In October 2012, Katherine Bowen joined the firm as an associate.

Prior to joining the firm, Kate worked at large corporations and private firms

where she worked on consumer law issues. She developed her knowledge of

consumer protection laws by working at the Illinois Attorney General’s Office and

Legal Aid of Western Missouri.

16. Kate focuses on Illinois and federal litigation against creditors, debt

collectors, retailers, and other businesses engaging in unlawful practices, including

claims under the Fair Debt Collection Practices Act, the Telephone Consumer

Protection Act, the Fair Credit Reporting Act, and Illinois law.

17. Kate is a 2012 graduate of the University of Illinois College of Law,

Champaign, Illinois. During school she was awarded the following honors: Pro

Bono Notation; Rickert Award for Excellence in Advocacy; College of Law Trial


12

Team; Student Bar Association Engagement Grant Recipient and was also an

Adjunct LLM Instructor in August 2012.

18. In 2014, Michael Hilicki joined the firm. He has spent nearly all of his

approximately 20-year legal career helping consumers and workers subjected to

unfair and deceptive business practices, and unpaid wage practices. He is

experienced in a variety of consumer and wage-related areas including, but not

limited to, the Fair Debt Collection Practices Act, Truth-in-Lending Act, Fair

Credit Reporting Act, Real Estate Settlement Procedures Act, Illinois Consumer

Fraud & Deceptive Business Practices Act, Telephone Consumer Protection Act,

Fair Labor Standards Act and the Illinois Wage & Hour Law. He is experienced in

all aspects of consumer and wage litigation, including arbitrations, trials and

appeals.

19. Examples of the numerous certified class actions in which Michael

has represented consumers or workers include: Eibert v. Jaburg & Wilk, P.C., 13-

cv-301 (D. Minn.); Brinkley v. Zwicker & Associates, P.C., 13 C 1555 (N.D. Ill.);

Kraskey v. Shapiro & Zielke, LLP, 11-cv-3307 (D. Minn.); Short v. Anastasi &

Associates, P.A., 11-cv-1612 SRN/JSM (D. Minn.); Kimball v. Frederick J. Hanna

& Associates, P.C., 10-cv-130 MJD/JJG (D. Minn.); Murphy v. Capital One Bank,

08 C 801 (N.D. Ill.); In re American Family Mut. Ins. Co. Overtime Pay Litig., 06-

cv-17430 WYD/CBS (D. Colo.); Nettles v. Allstate Ins. Co., 02 CH 14426 (Cir. Ct.


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Cook Cty.); Sanders v. OSI Educ. Servs., Inc., 01 C 2081 (N.D. Ill.); Kort v.

Diversified Collection Servs., Inc., 01 C 0689 (N.D. Ill.); Hamid v. Blatt

Hasenmiller, et al., 00 C 4511 (N.D. Ill.); Durkin v. Equifax Check Servs., Inc., 00

C 4832 (N.D. Ill.); Torres v. Diversified Collection Services, et al., 99-cv-00535

(RL-APR) (N.D. Ind.); Morris v. Trauner Cohen & Thomas, 98 C 3428 (N.D. Ill.),

Mitchell v. Schumann, 97 C 240 (N.D. Ill.); Pandolfi, et al. v. Viking Office Prods.,

Inc., 97 CH 8875 (Cir. Ct. Cook Cty.); Trull v. Microsoft Corp., 97 CH 3140 (Cir.

Ct. Cook Cty.); Deatherage v. Steven T. Rosso, P.A., 97 C 0024 (N.D. Ill.); Young

v. Meyer & Njus, P.A., 96 C 4809 (N.D. Ill.); Newman v. Boehm, Pearlstein &

Bright, Ltd., 96 C 3233 (N.D. Ill.); Holman v. Red River Collections, Inc., 96 C

2302 (N.D. Ill.); Farrell v. Frederick J. Hanna, 96 C 2268 (N.D. Ill.); Blum v.

Fisher and Fisher, 96 C 2194 (N.D. Ill.); Riter v. Moss & Bloomberg, Ltd., 96 C

2001 (N.D. Ill.); Clayton v. Cr Sciences Inc., 96 C 1401 (N.D. Ill.); Thomas v.

MAC/TCS Inc., Ltd., 96 C 1519 (N.D. Ill.); Young v. Bowman, et al., 96 C 1767

(N.D. Ill.); Depcik v. Mid-Continent Agencies, Inc., 96 C 8627 (N.D. Ill.); and

Dumetz v. Alkade, Inc., 96 C 4002 (N.D. Ill.)

20. Michael has lectured on consumer law issues at Upper Iowa

University and the Chicago Bar Association. He is a member of the Trial Bar of

the United States District Court for the Northern District of Illinois, and he has


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represented consumers in state and federal courts around the country on a pro hac

vice basis.

21. Michael’s published work includes "AND THE SURVEY SAYS…"

When Is Evidence of Actual Consumer Confusion Required to Win a Case Under

Section 1692g of the Fair Debt Collection Practices Act in the Seventh Circuit?, 13

Loy. Consumer L. Rev. 224 (2001).

22. By taking this case on a contingency basis and not being paid by the

hour, my firm had an incentive to conduct our efforts efficiently. So too, being

responsible for advancing all expenses, we had an incentive not to expend funds

unnecessarily.

23. I believe that my firm assumed a significant risk of non-payment in

initiating and prosecuting this case given the novelty of the legal issues involved

and the vigorous defense.

24. Based on my experience doing Plaintiff’s consumer protection work,

including the TCPA, I believe this settlement, and the requested fee, to be fair and

reasonable and in the best interest of the class. The settlement provides real

monetary recovery, substantial prospective relief and will act as a strong deterrent

to future conduct by other actors considering activities proscribed by the TCPA.


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Executed at Chicago, Illinois, on January 4, 2015.


John Heenan Benjamin R. Bingham BISHOP & HEENAN Bingham ... · BISHOP & HEENAN Bingham & Lea PC...

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