Redman v. Radioshack Corporation
MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 2/7/2014: Mailed notice(lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
SCOTT D.H. REDMAN, individually )
and on behalf of all others similarly )
a Delaware corporation,
MARIO ALIANO and VICTORIA
RADAVICIUTE, individually and on )
behalf of all others similarly
a Delaware corporation,
No. 11 C 6741
MEMORANDUM OPINION AND ORDER
This matter is before the court on Plaintiffs’ Motion for Final Approval of
Settlement Agreement and class counsel’s request for attorneys’ fees, costs, and
expenses, and for approval of incentive awards for class representatives [Doc. Nos.
124 and 129]. For the reasons that follow, the motion for final approval is granted
with an adjustment to the requested attorneys’ fees, and the objections to the
parties’ proposed settlement agreement are overruled.
Plaintiff Scott Redman filed a class action complaint against defendant
RadioShack on September 26, 2011. Plaintiff alleges that he made a purchase at
RadioShack with a MasterCard credit card and that the information printed on his
receipt included the expiration date of that card, in violation of the Fair and
Accurate Credit Transactions Act (“FACTA”), which prohibits businesses from
printing “more than the last 5 digits of the [purchase] card number or the expiration
date upon any receipt provided to the cardholder at the point of sale or transaction.”
15 U.S.C. § 1681c(g). Plaintiff brought suit on behalf of all RadioShack customers
after 2008 whose receipt displayed the expiration date of the credit or debit card
used in a purchase. (Compl.¶ 15.) On January 11, 2012, the District Court then
presiding consolidated Redman’s claims against RadioShack with those of Mario
Aliano and Victoria Radaviciute based on relatedness. [Doc. No. 26.]
Beginning in March 2012, the parties engaged in several rounds of armslength settlement negotiations before this Court. During this time, litigation
proceeded before the District Court, including significant discovery motion practice.
Thereafter, the parties consented to the jurisdiction of the United States Magistrate
Judge pursuant to 29 U.S.C. § 636(c), and the case was reassigned to this Court on
May 17, 2013.
On May 16, 2013, Plaintiffs filed a motion for preliminary approval of the
class action settlement agreement, requesting that the Court issue preliminary
approval, approve the parties proposed notice plan, appoint Plaintiffs’ counsel as
settlement class counsel, and set a fairness hearing for final approval of the
settlement. The Court granted preliminary approval to the parties’ settlement
agreement on May 29, 2013, and a fairness hearing on the proposed settlement was
held on September 17, 2013.
The Settlement Agreement provides class members $10.00 vouchers,
redeemable for purchases at RadioShack. The vouchers are fully transferable and
expire six months after issue. Members of the settlement class include individuals
who bought products or services from RadioShack using personal credit or debit
cards whose electronically printed receipt contained the expiration date of the credit
or debit card used for the purchase. (See Mem. in Supp. of Pls.’ Mot., Ex. 1
(“Settlement Agreement”) § 2.1.) Further terms of the settlement provide that class
representatives will receive $5,000 to resolve their individual claims and as
incentive awards. (Id. § 2.3(C).) The original settlement also provided for a cy pres
distribution to the Boys and Girls Club in the event that disbursements paid as
under the settlement totaled less than $3.25 million. (Id. § 2.3(E).) However, class
counsel has indicated that the disbursements will exceed $3.25 million, thereby
eliminating the need for a cy pres distribution. (Mem. in Supp. of Pls.’ Mot. at 4.)
Class counsel requests $1 million in fees and costs. (Settlement Agreement §
On May 29, 2013, the Court concluded that the notice plan proposed in the
original settlement agreement was the best practicable notice under the
circumstances and that it satisfied the requirements of Federal Rule of Civil
Procedure (“Rule”) 23(c)(2)(B). (See Prelim. Approval Order at 2 [Doc. No. 101].) The
Court therefore ordered that the notice plan be implemented pursuant to the terms
of the original settlement agreement. (Id. at 3.) The parties have sufficiently
complied with the Court’s order approving the class notice plan and directing notice.
(See Keough Decl. ¶¶ 10-12, 14, 16-17 [Doc. No. 135]; Zimmerman Decl. ¶ 17 [Doc.
“Best practicable” notice requires only the best notice “‘under the
circumstances, including individual notice to all members who can be identified
through reasonable effort.’” Hughes v. Kore of Ind. Enter., Inc., 731 F.3d 672, 677
(7th Cir. 2013) (quoting Fed. R. Civ. P. 23(c)(2)(B)). In this case, the class settlement
administrator — Garden City Group — sent written notice of the settlement by
direct mail to over 4,000,000 known potential class members and emails to over
550,000 class members for whom Defendant had email addresses. (See Keough Decl.
¶¶ 10-11.) Notice was also published in four major news magazines with national
circulations and large readerships, providing broader notice to unknown class
members. (Id. ¶ 14.) Finally, Garden City Group operated a settlement website,
www.shacksettlement.com, which made class notice and claim forms available to
potential class members and also established a toll-free telephone line that
claimants could call to obtain claim forms and make inquiries. (Id. ¶¶ 15-18.)
The extensive measures taken by the parties and the class settlement
administrator provided adequate notice to class members, including individualized
notice to those class members that were identifiable using information available to
the parties. Thus, the notice plan and its implementation satisfy due process and
Three formal objections protesting the settlement have been filed by putative
class members represented by counsel. On August 20, 2013, Objectors Vanita
Gupta, Gregory Runyard and Charles H. Warner, Jr. filed an amended objection
(“Gupta Objection”) to the settlement, claiming that the terms of the settlement are
unfair, that the requirements for submitting a claim had a chilling effect on
potential claimants, and the requested $1 million in attorneys’ fees and costs
violates the Class Action Fairness Act (“CAFA”), 28 U.S.C.§ 1712. (See Gupta Obj.
[Doc. No. 110].) On August 26, 2013, a separate objection was filed by Eduardo
Vazquez, who is represented by the same counsel as the Gupta Objectors and
presents virtually identical arguments. [Doc No. 112.] Objectors Michael Rosman
and Jessica Kasten filed a third objection (“Rosman Objection”) to the settlement on
August 27, 2013, alleging that the settlement violates CAFA because the proposed
attorneys’ fees are disproportionately large when compared to the value of the
settlement to the class. [Doc. No. 115.] Additionally, the Rosman Objectors argue
that class counsel violated Rule 23(h) in three ways: by failing to provide a fee
motion prior to the settlement objection deadline; the cy pres provision of the
settlement is unfair; and the incentive awards for class representatives are
In addition to the objections supported by formal briefs, eight letters sent by
individual class members between June 28 and September 3, 2013, were filed
protesting the settlement. Darryl Burton claims that he and military personnel on
active duty might be members of the class but were not sufficiently made aware of
the class action and that the proposed attorneys’ fees are excessive. [Doc. No. 104.]
Lawrence Penna poses several questions regarding the nature of the harm to class
members and expresses concern about potential harm to RadioShack as a result of
the litigation. [Doc. No. 103.] Joseph Bentley objects to the low value of the
settlement vouchers and to the fact that the vouchers must be redeemed at
RadioShack. [Doc. No. 106.] Neel Freedman objects to the amount of requested
attorneys’ fees. [Doc. No. 117.] Edward Siegel objects to the value of the settlement
vouchers, to the fact that class members are only eligible to receive one voucher,
regardless of the number of purchases made at RadioShack, and to the proposed
attorneys’ fees under the settlement. [Doc. No. 118.] Paul Spencer voices the same
objections as Siegel, and also complains that there may be some difficulty
identifying class members due to lost receipts, low claim value, and problems with
the settlement website. [Doc. No. 118.] Robert Scott lists several objections to the
settlement, including: (1) insufficient notice to the class; (2) the lack of a motion for
attorneys’ fees; (3) the need to adhere to CAFA; (4) the penalty of perjury
requirement to submit a claim; (5) the size of attorneys’ fees under the settlement;
(6) the need for greater transparency through the settlement website; (7) the cy pres
component of the settlement; and (8) Scott’s belief that the settlement authorizes
class counsel to be paid before the settlement is finalized. [Doc. No. 120.]
Pursuant to Rule 23, “the court must approve any settlement, voluntary
dismissal, or compromise of the claims, issues, or defenses of a certified class.” Fed.
R. Civ. P. 23(e)(1)(A). Final approval of a class settlement that is binding on class
members requires a district court to determine whether “the settlement is fair,
reasonable, and adequate.” Fed. R. Civ. P. 23(e)(3). Factors a court should consider
in evaluating the fairness of a class action settlement include “the strength of
plaintiffs’ case compared to the amount of defendants’ settlement offer, an
assessment of the likely complexity, length, and expense of the litigation, an
evaluation of opposition to the settlement among affected parties, the opinion of
competent counsel, and the stage of the proceedings and the amount of discovery
completed at the time of settlement.” Synfuel Techs., Inc. v. DHL Express (USA),
Inc., 463 F.3d 646, 653 (7th Cir. 2006).
“Federal courts naturally favor the settlement of class action litigation.” Isby
v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996). Evaluations of fairness, reasonableness,
and adequacy require that the facts be viewed in a light most favorable to the
settlement. Id. at 1199. Finally, the reviewing court should not substitute its own
judgment as to the best outcomes for litigants and their counsel. Armstrong v. Bd. of
Sch. Dirs., 616 F.2d 305, 315 (7th Cir. 1980), overruled on other grounds by Felzen v.
Andreas, 134 F.3d 873, 875 (7th Cir. 1998).
FAIRNESS, REASONABLENESS, AND ADEQUACY OF THE
Strength of Plaintiffs’ Case Against the Value of the
“The most important factor relevant to the fairness of a class action
settlement is the first one listed: the strength of the plaintiffs’ case on the merits
balanced against the amount offered in the settlement.” Synfuel, 463 F.3d at 653
(internal quotes omitted). ?Because the essence of settlement is compromise, courts
should not reject a settlement solely because it does not provide a complete victory
to plaintiffs.” In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D.
330, 347 (N.D. Ill. 2010) (citing E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d
884, 889 (7th Cir. 1985); see Isby, 75 F.3d at 1200.
FACTA states that “no person that accepts credit cards or debit cards for the
transaction of business shall print more than the last 5 digits of the card number or
the expiration date upon any receipt provided to the cardholder at the point of the
sale or transaction.” 15 U.S.C. § 1681c(g)(1). Under FACTA, if a merchant violates
the statute as a result of negligence, a plaintiff may recover only actual damages.
See § 1681o(a)(1). “If the violation was willful, however, FACTA allows a plaintiff to
elect to recover either actual damages or statutory damages between $100 and
$1000. A court may also award punitive damages in cases involving willful
violations.” Long v. Tommy Hilfiger U.S.A., 671 F.3d 371, 374 (3d Cir. 2012) (citing
§ 1681n(a)(2)) (internal citation omitted).
Here, there are no actual damages; therefore, the only avenue for monetary
relief would be proof that the Defendant acted willfully. For a violation to be
“willful,” the merchant must knowingly violate the statute or exhibit reckless
disregard for its statutory duty. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 56-57
(2007). This is a heavy burden to meet, and plaintiffs in previous FACTA class
action litigation have struggled to show conclusive evidence of willful violations.
See, e.g., Van Straaten v. Shell Oil Prods. Co. LLC, 678 F.3d 486, 489, 491 (7th Cir.
2012), cert. denied, 133 S. Ct. 983 (2013) (finding no willful violation of FACTA and
expressing consternation that a merchant, if ruled “willful”, would have to pay “[a]n
award of $100 to everyone who has used a Shell Card at a Shell station[, which]
would exceed $1 billion, despite the absence of a penny's worth of injury”); Shurland
v. Bacci Café & Pizzeria on Ogden, Inc., 259 F.R.D. 151, 156-57 (N.D. Ill. 2009)
(concluding that genuine issues of material fact existed as to whether defendant
had willfully violated FACTA); Aliano v. Joe Caputo & Sons-Algonquin, Inc., 09 C
910, 2011 WL 1706061, at *4 (N.D. Ill. May 5, 2011) (same); see also In re Toys R
US-Delaware, Inc. – Fair and Accurate Credit Transactions Act (FACTA) Litigation,
— F.R.D. —, 2014 WL 198665, at *8 (C.D. Cal. Jan. 17, 2014) (finding that the
plaintiffs’ high burden to show willfulness under the statute was a factor in favor of
a determination that the settlement was fair).
Plaintiffs have acknowledged the difficulty of proving willful violations of
FACTA and have accordingly settled for less than full statutory damages of $100 to
$1000 available under the statute. (See Pls.’ Final Approval Mem. at 14-15.) The
time and expense of potentially litigating these issues — especially considering the
possibility that Plaintiffs will not be successful in meeting the high “willful” burden
— strongly suggest that settlement was a reasoned choice.
Additionally, Plaintiffs point out several indicators of financial instability at
RadioShack, such as decreasing stock value and a recently lowered credit rating.
These financial difficulties present the risk that Defendant may not be able to
satisfy an adverse judgment in the event that the case goes to trial and the
Plaintiffs prevail. Such risk necessitates a settlement that guarantees
compensation for the class should RadioShack become insolvent. (See Markoff Decl.
¶ 30 [Doc. No. 131].) The parties have accomplished this by making the settlement
agreement an executory contract through the deadline for class claims, protecting
class members in the event that RadioShack files for bankruptcy. (Id.) Defendant’s
dwindling assets, weighed against the price of continued litigation and alternative
settlement structures resulting in class awards that Defendant could not feasibly
pay, suggests that the settlement confers a benefit on class members that may not
otherwise be available.
In light of the difficult road to winning and securing FACTA damages, the
$10 vouchers that are available to class members under the settlement agreement
are adequate compensation. See Murray v. GMAC Mortg. Corp. 434 F.3d 948, 952
(7th Cir. 2006) (“[R]isk that the class will lose should the suit go to judgment on the
merits justifies a compromise that affords a lower award with certainty”).
A settlement where class members receive a noncash benefit may
nonetheless recover significant value, especially where proceeding with litigation
would be tenuous. See In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002,
1027 (N.D. Ill. 2000), aff'd, 267 F.3d 743 (7th Cir. 2001) (concluding that $6.00 and
$4.25 discounts on money transfers “provide significant value to class members
because they are freely transferable, immediately available, and good for 35 months
in any transaction, including where Defendants are offering other sales or
promotions”). The vouchers are transferable and do not require any additional
purchase. More importantly, the vouchers provide immediate value to the class
members, who are not otherwise guaranteed an award even following lengthy and
The class will receive a substantial benefit considering the viable defenses
that would be available if the case were to proceed to trial, as well as barriers to the
satisfaction of a judgment in the event that Plaintiffs were to prevail. All of the
noted attributes of the class award weigh in favor of approval of the settlement
under the first Synfuel factor.
Complexity, Length, and Expense of Further Litigation.
If the Court grants final approval to the proposed settlement, class members
will receive an immediate benefit as a result of the class award. Contrary to
assertions made by objectors, resolving factual and legal questions in this case
would not be cut and dried. If the Court were to refuse to grant final approval,
initial indications are that continued discovery and motion practice would be a
difficult, long, and costly process.
The parties would have to grapple with the issues of proof surrounding the
question of willfulness under FACTA. See 15 U.S.C. § 1681n(a). The difficulty of
establishing the willfulness component necessary to trigger the penalty would
require significant build-up to summary judgment and probably end in trial. As one
court noted, ?no FACTA class action alleging a willful failure to truncate credit card
numbers has been decided in favor of a plaintiff at the summary judgment stage.”
Shurland v. Bacci Café & Pizzeria On Ogden, Inc., No. 08 C 2259, 2011 WL
3840339, at *5 (N.D. Ill. Aug. 30, 2011) (discussing history of FACTA class action
litigation and describing cases denying summary judgment to class action
plaintiffs). The time and resources that would likely be spent on extended discovery,
motions for class certification and for summary judgment, and in preparation for
trial weigh in favor of approving the proposed settlement.
Number of Objections to the Settlement.
Of the estimated 16,000,000 potential members of the settlement class, the
Court received only fourteen objections. An additional 1,555 class members
requested that they be excluded from the settlement. (Keough Decl. ¶ 21.) The fact
that the vast majority of class members — over 99.99% — have not objected to the
proposed settlement or opted out suggests that the class generally approves of its
terms and structure. See, e.g. In re Mexico Money Transfer Litig., 165 F. Supp. 2d. at
1021 (“99.9% of class members have neither opted out nor filed objections to the
proposed settlements. This acceptance rate is strong circumstantial evidence in
favor of the settlements.”) (citations omitted); see also In re AT&T Mobility Wireless
Data Services Sales Tax Litig., 789 F. Supp. 2d 935, 965 (N.D. Ill. 2011) (same).
As of September 8, 2013, Garden City Group had received and processed
83,332 timely claim forms and was continuing to process late claims. (Keough Decl.
¶ 19.) Even discounting for those who opted out (1,555), there still remains an over
98% acceptance rate from those who responded. The claimants apparently found
value in the settlement, to the extent that they were willing to acknowledge the
notice and engage in the claim filing process, in spite of what objectors argue to be a
nominal recovery under the settlement. This large number of claims filed to this
point bolsters a finding of fairness, reasonableness, and adequacy, insofar as class
members appear to be satisfied with what they are recouping. See Schulte v. Fifth
Third Bank, 805 F. Supp. 2d 560, 586 (N.D. Ill. 2001) (finding that a “high
participation rate” of over 100,000 claims favored a finding of fairness,
reasonableness, and adequacy).
Thus, the relatively large number of claims filed and the low percentage of
objections and opt-outs suggests that the class does not oppose the proposed
settlement, which favors approval.
Opinion of Competent Counsel.
Courts are “entitled to give consideration to the opinion of competent counsel
that the settlement [is] fair, reasonable and adequate.” Isby, 75 F.3d at 1200. The
lawyers for the parties have described their prior work in class action litigation,
including decades of experience in class actions in trial and on appeal. (See
Zimmerman Decl. ¶¶ 2-7, 14; Markoff Decl. ¶¶ 4-5.) These background
qualifications are relevant to their ability to recognize cases appropriate for
settlement and to craft a fair and reasonable settlement.
Further, the settlement was the result of arms-length negotiations by
experienced counsel. See In re Mexico Money Transfer Litig., 164 F. Supp. 2d at
1019-20 (placing “significant weight on the unanimously strong endorsement of
these settlements” by “well-respected attorneys”); Alliance to End Repression v. City
of Chi., 561 F. Supp. 537, 548 (N.D. Ill. 1982) ( “Judges should not substitute their
own judgment as to optimal settlement terms for the judgment of the litigants and
their counsel.”); National Rural Telecommunications Cooperative v. DIRECTV, Inc.,
221 F.R.D. 523, 528 (C.D. Cal. 2004) (“A settlement following sufficient discovery
and genuine arms-length negotiation is presumed fair.”) (internal citation omitted).
The Court’s interactions with the parties through litigation and negotiations
leading up to the settlement support the conclusion that class counsel’s decision to
settle was reasonably based on available information demonstrating likelihood of
success at trial, and that a fair settlement was produced . Advocacy by class counsel
throughout discovery and settlement negotiations suggests that they have
competently represented their clients in reaching the settlement. Given the absence
of collusion, as evidenced by time spent in arms-length negotiations under the
supervision of this Court, opinion of competent counsel weighs in favor of final
Timing of the Settlement.
The final factor used to determine whether a class action settlement is fair,
reasonable, and adequate considers how far a case has progressed prior to the
parties’ decision to settle. This factor reveals “how fully the district court and
counsel are able to evaluate the merits of plaintiffs’ claims.” Armstrong v. Bd. of
Sch. Dirs. of City of Milwaukee, 616 F.2d 305, 325 (7th Cir. 1980).
At this stage of the litigation, the parties have exchanged a significant
amount of information in formal discovery and through informal proceedings in
settlement conferences and other negotiations. (Markoff Decl. ¶ 10.) It is
noteworthy that class action settlements have previously been approved in this
district without any formal discovery taking place. See In re AT&T Mobility
Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d at 966-67 (finding that the
stage of the proceedings weighed in favor of final approval absent formal discovery).
The information produced by formal discovery and through other exchanges by the
parties is sufficient to enable the Court and counsel to assess the strength of
Plaintiffs’ claims and to create a settlement that addresses those claims, and thus
the timing of the settlement weighs in favor of granting final approval. Accordingly,
the Court finds that each of the five Synfuel factors support the conclusion that the
settlement is fair, reasonable, and adequate and therefore warrants final approval.
OBJECTIONS TO THE SETTLEMENT
Whether the Proposed Settlement is Fair, Reasonable, and
The Court is not persuaded by the Gupta Objectors’ position that Plaintiffs
would win on the merits. To date, there are no definitive examples of FACTA cases
in the Seventh Circuit showing that class action plaintiffs are likely to prevail
where a defendant has knowledge of the statute’s truncation requirement, but
nonetheless violates it. The Gupta Objectors rely on Follman v. Hospitality Plus of
Carpentersville, Inc., 532 F. Supp. 2d 960 (N.D. Ill. 2007), to show that printing
credit card expiration dates on receipts with reasonable warning constitutes
willfulness under FACTA. But Follman involved a motion to dismiss, and the court
expressly stated that the issue of willfulness “goes beyond the complaint, asking us
to consider [the defendant’s] interpretation of the statute.” Id. at 963. On the other
hand, plaintiffs have historically struggled to prove willful violations of FACTA as
The Gupta Objectors’ arguments do not sufficiently present any particular
strengths of Plaintiffs’ case that would tend to show willfulness. “When the
potential liability created by a lawsuit is very great, even though the probability
that the plaintiff will succeed in establishing liability is slight, the defendant will be
under pressure to settle rather than to bet the company, even if the betting odds are
good.” Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 678 (7th Cir. 2009). The
significant hurdles that Plaintiffs face in the event of continued litigation strongly
suggest that settlement is a reasonable and beneficial outcome for both parties.
Value of the Settlement.
The Gupta Objectors — along with several of the objectors who wrote letters
independently — complain that the $10 voucher offered through the settlement is
not adequate compensation because FACTA provides for statutory damages
between $100 and $1000 in addition to punitive damages for violations. This
argument is premised on the supposition that damage awards may only be reduced
if the award exceeds constitutional limitations, citing Murray, v. GMAC Mortg.
Corp., 434 F.3d 948 (7th Cir. 2006). The objectors list selected cases from outside of
the Seventh Circuit to support their argument that FACTA settlements around the
country have produced cash settlements. The arguments presented by the Gupta
Objectors are not persuasive as to the need for increased recovery among class
members under the settlement.
Neither Murray nor any other controlling case sets out a minimum amount
that must be made available to a class through settlement negotiations. The dicta
in Murray, relied upon by objectors, concerned a class settlement that left class
members with virtually nothing. See id. at 952. However, the decision clarified that
“[w]e don’t mean by this that all class members must receive [the statute’s
minimum damages of] $100; risk that the class will lose should the suit go to
judgment on the merits justifies a compromise that affords a lower award with
certainty.” Id. The settlement before the Court does not raise the same concerns
that the Seventh Circuit dealt with in Murray. The considerable portion of class
members who have filed claims, the vouchers’ value and transferability, and
Defendant’s financial instability all suggest that the settlement provides adequate
compensation to the class.
While the $10 value of the voucher is less than the statutory damages
Plaintiffs could potentially pursue through individual FACTA claims, the context of
the settlement indicates that the vouchers provide adequate compensation to class
members. First, the nature of settlement is such that plaintiffs should expect to see
some – and occasionally significant – reduction from the amount that they might
have recovered following a full trial. “Parties to a settlement benefit by immediately
resolving the litigation and receiving some measure of vindication for [their]
position[s] while foregoing the opportunity to achieve an unmitigated victory. Thus,
the parties to a settlement will not be heard to complain that the relief afforded is
substantially less than what they would have received from a successful resolution
after trial.” E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir.
1985) (emphasis in original).
Second, class members will receive an immediate benefit under the
settlement, rather than potentially waiting years for a larger recovery that may
never come. “To most people, a dollar today is worth a great deal more than a dollar
ten years from now.” Reynolds v. Beneficial Nat. Bank, 288 F.3d 277, 284 (7th Cir.
2002). The possibility that Plaintiffs could face years of continued litigation in this
case, without a clear road to victory, mitigates the larger value of the prescribed
statutory penalties under FACTA. Furthermore, possible insolvency facing
RadioShack raises the value of the vouchers received immediately through the
settlement agreement, where the class may receive nothing following trial. See Lisa
M. Mizetti & Whitney R. Case, The Coupon Can Be the Ticket: The Use of “Coupon”
and Other Non–Monetary Redress in Class Action Settlements, 18 GEO. J. LEGAL
ETHICS 1431, 1433–34 (2005) (“For defendants that are having financial trouble,
payments of redress to class members by coupons and similar methods can prevent
bankruptcy. In these cases, the defendants keep their business alive while plaintiffs
get valuable goods or services rather than a place in line at bankruptcy court.”)
Whether Coupon Provisions of the Class Action Fairness Act
The Rosman Objectors insist that many of the elements of the proposed
settlement are problematic because they run afoul of CAFA’s checks on collusive
and unfair settlements in class actions, especially those safeguards concerned with
outsized attorneys’ fees and nominal awards to class members. The Rosman
Objectors specifically argue that CAFA Section 1712(a) dictates that attorneys’ fees
must be based on the number of vouchers ultimately redeemed by class members.
Class counsel respond that this is not a coupon settlement and CAFA therefore does
not apply. The Court finds that the vouchers that will be awarded to class members
are not “coupons,” and that the settlement therefore does not fall under CAFA’s
Under Section 1712(a) — titled “Coupon settlements” — of CAFA:
If a proposed settlement in a class action provides for a recovery of
coupons to a class member, the portion of any attorney's fee award to
class counsel that is attributable to the award of the coupons shall be
based on the value to class members of the coupons that are redeemed.
28 U.S.C. § 1712(a). “The first question is whether the proposed settlement
‘provide[s] for a recovery of coupons’ within the meaning of CAFA. While CAFA does
not expressly define what a coupon is, the legislative history suggests that a coupon
is a discount on another product or service offered by the defendant in the lawsuit.’”
In re S.W. Airlines Voucher Litig., No. 11 C 8176, 2013 WL 5497275, at *3 (N.D. Ill.
Oct. 3, 2013) (quoting Fleury v. Richemont N. Am., Inc., No. C-05-4525, 2008 WL
3287154, at *2 (N.D. Cal. Aug. 6, 2008)). Further, another relevant consideration is
whether the proposed in-kind consideration “force[s] future business with the
defendant.” Synfuel, 463 F.3d at 654.
The Court agrees with the Northern District of California court’s
interpretation of Synfuel, which concluded that “a noncash benefit cannot be a
coupon if it allows a consumer to by an entire product.” Fleury, 2008 WL 3287154,
at *2 (citing Synfuel, 463 F.3d at 654) (emphasis in original). This case presents a
noncash benefit that does not force class members to “do business” with Defendant
— i.e. spend money — in order to take advantage of the in-kind compensation in
question. The $10 vouchers that class members will receive will provide enough
store credit to purchase over 6,000 individual products before tax. (See Markoff
Decl. ¶ 25.) Because class members redeeming settlement vouchers will not be
required to benefit Defendant by making purchases at RadioShack stores, the Court
finds that the settlement is not subject to CAFA’s fee guidelines for coupon
settlement cases. See In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liab.
Litig., MDL 1967, 2011 WL 1790603, at *3 (W.D. Mo. May 10, 2011) (“The term
‘coupon’ is not statutorily defined, but the Court notes the vouchers provided in this
case are unique in that they do not necessarily require the class members expend
money of their own in order to realize the benefits of the settlement”); see also In re
Toys R US-Delaware, Inc., 2014 WL 198665, at *11 (approving a class action
settlement which included vouchers ranging in value from $5 to $30 where the store
at issue had approximately 7,000 items available for purchase under $5).
Nevertheless, the Court has the responsibility to protect the class with
careful oversight. See Synfuel, 463 F.3d at 654 (noting the need for higher judicial
scrutiny where class members are rewarded with in-kind payments rather than
cash). The Court concludes that the in-kind award at issue is satisfactory
compensation for class members, especially considering the lack of demonstrated
harm to the class as a result of Defendant’s alleged violation of FACTA. See id.
(“The fairness of the settlement must be evaluated primarily on how it compensates
class members for . . . past injuries.”).
Class Counsel’s Fee Request.
As discussed above, this Court has concluded that the settlement in question
is not a coupon settlement and is therefore not governed by Section 1712(a), and
thus the Court is not limited by the statute in awarding fees and costs. “In a
certified class action, the court may award reasonable attorney’s fees . . . that are
authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Evaluating
the reasonableness of proposed attorneys’ fees requires courts to “balance the
competing goals of fairly compensating attorneys for their services rendered on
behalf of the class and of protecting the interests of the class members in the fund.”
Skelton v. Gen. Motors Corp., 860 F.2d 250, 258 (7th Cir. 1988). In this case, the
approximate fees requested are reasonable when calculated using the lodestar
method and further supported by an assessment as a percentage of the settlement’s
value, suggesting that the fee application should be granted.
The settlement agreement stipulates that “Class Counsel shall be paid
$1,000,000. . . .” (Settlement Agreement § 2.3(D).) The agreed award to class
counsel under the settlement is a lump sum that was negotiated after benefits to
the class were established. The award will not reduce recovery by class members,
and will be paid apart from relief to the class, meaning that this is not a “common
fund” settlement. See McBean v. City of N.Y., 233 F.R.D. 377, 392 (S.D.N.Y. 2006)
(describing common funds and distinguishing them class from settlements where
payments to class members are separate from attorney compensation). The lodestar
approach is the reasonable way to examine the proposed fees because this is not a
common fund settlement and therefore does not present a zero-sum structure. See
Yeagley v. Wells Fargo & Co., 365 Fed. Appx. 886, 887 (9th Cir. 2010) (unpublished
decision) (“Under a fee-shifting statute such as the FCRA . . . the lodestar method is
generally the correct method of calculating attorneys’ fees.”) (citing Staton v. Boeing
Co., 327 F.3d 938, 965 (9th Cir. 2003)). Even if this were a settlement that operated
subject to the coupon provision of CAFA, the lodestar method would still be
appropriate under CAFA Section 1712(b). See In re S.W. Airlines Voucher Litig.,
2013 WL 5497275, at *6 (“[28 U.S.C. § 1712(b)] says, in a straightforward way, that
if a portion (percentage) of the coupon recovery is not used to determine the
attorney’s fee, the lodestar method shall be used.”) Hence, the fairness of the
proposed attorneys’ fees will be assessed using the lodestar method.
The lodestar method is calculated by multiplying a reasonable hourly rate for
counsel’s work by the number of hours spent working on the case. Gastineau v.
Wright, 592 F.3d 747, 748 (7th Cir. 2010). The Court may adjust the amount
awarded based on factors such as the complexity of the legal issues presented by the
case, the success achieved by counsel, and whether the case was pursued in the
public interest. Id. A court “must award a multiplier when attorney’s fees are
contingent upon the outcome of a case (i.e., there is a possibility that the attorney
will not receive any fee).” Cook v. Niedert, 142 F.3d 1004, 1013 (7th Cir. 1988). In
deciding on an appropriate multiplier, a court should make a “‘a retroactive
calculation of the probability of success as measured at the beginning of the
litigation.” Id. The Court may also consider the risk assumed by plaintiff’s counsel
that they may recover nothing. See Harman v. Lyphomed, Inc., 945 F.2d 969, 97576 (7th Cir. 1991). Ultimately, ?the standard is whether the fees are reasonable in
relation to the difficulty, stakes, and outcome of the case.” Id. The fee petitioner
bears the burden of establishing the reasonableness of the award requested. See
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).
Attorneys from Markoff Leinenberger, LLC request fees and costs amounting
to $439,615.00 for 865.6 hours of work. (See Markoff Decl. ¶ 38.) Co-counsel
Zimmerman Law Offices, P.C. requests an award of $352.618.50, representing
716.5 hours of work. The base amount requested by Class Counsel therefore totals
$792,233.50. (See Zimmerman Decl., Ex. 4.) Both firms have provided declarations
and detailed billing statements reflecting the tasks attorneys were engaged in
during billable hours. Rates requested by participating law firms are as follows:
Markoff Leinenberger, LLC
Paul Markoff: $550 per hour
Karl Leinenberger: $500 per hour
Non-clerical legal assistance: $100 per hour
Zimmerman Law Offices, PC
Thomas Zimmerman: $550 per hour
Adam Tamburelli: $400 per hour
Paralegal assistance: $170 per hour
Class Counsel have sufficiently demonstrated that their hourly rates are a
reasonable reflection of services by attorneys with similar experience, skill, and
reputation nationwide.1 See, e.g., Crosby v. Reg’ l Transp. Auth., 07 C 6235, slip op.
at 4 (N.D. Ill. May 24, 2012) (approving $615 hourly rate). Class Counsel further
support their request using the Adjusted Laffey Matrix, a table prepared by the
U.S. Attorney’s Office for the District of Columbia designed to estimate appropriate
legal hourly rates based on experience and location. See Smith v. Dist. of Columbia,
466 F. Supp. 2d 151, 155-56 (D.D.C. 2006) (describing and approving of the use of
the base Laffey Matrix). The Adjusted Laffey Matrix yields a suggested hourly rate
of $640 for attorneys with 11 plus years of experience working in Chicago, which is
higher that the rate sought by class counsel. (See Markoff Decl.¶ 47; Zimmerman
Decl. ¶¶ 23-25.)
Markoff and Zimmerman both have 17 years of practice experience, including class
actions in Illinois. (See Markoff Decl. ¶ 2; Zimmerman Decl. ¶ 2.)
In order to approach the agreed upon attorneys’ fee amount of $1 million, the
base hourly rate suggested by Class Counsel requires a lodestar multiplier of
approximately 1.25. Counsel argue that the multiplier is appropriate because there
was no certainty of compensation at the outset given the risk that litigation would
be unsuccessful. Counsel also assert that their requested multiplier lies at the low
end of typical multipliers ranging from one to four. See Harman v. Lyphomed, Inc.,
945 F.2d 969, 976 (7th Cir. 1991) (noting that while multipliers between one to four
have been approved, the higher end of the scale “is quite rare”).
The Court finds the risk multiplier of 1.25 to be reasonable. The attorneys
who took this case did so knowing that they would have to overcome several
obstacles in order to achieve success. As discussed above, class counsel faced the
task of establishing a “willful” violation of FACTA, as well as greater risk of nonpayment due to RadioShack’s financial difficulties. Both of those realities, in
addition to the inherent risk borne by attorneys pursuing large, time-consuming
cases on a contingent basis, suggest that class counsel faced a real risk of walking
away with nothing. All told, the risk of defeat and the relative complexity of the
case justify a modest multiplier of 1.25, resulting in a fee award of $990,291.88.
The appropriateness of the proposed attorneys’ fee is confirmed when crosschecked as a percentage of the settlement’s value. In this case, the value of the
settlement was estimated to be $4,096,281.74 at the time class counsel submitted
the request for final approval. (See Keough Decl. ¶¶ 23-24.) By that estimate, the
requested attorneys’ fees equal approximately 24% of the settlement’s value. This
percentage falls below typical percentages in the Seventh Circuit. See, e.g., Schulte,
805 F. Supp. 2d at 598 (33.3% of $9.5 million settlement fund); Taubenfeld v. AON
Corp., 415 F.3d 597, 598-600 (7th Cir. 2005) (30% of $7.25 million fund). The
reasonableness of the requested attorneys’ fees as a percentage of the settlement
also supports approval.
As a final matter, class counsel requests $88,877.25 in additional attorneys’
fees based on the suggestion that 175 extra hours will be necessary to assist in
administering benefits to more than 82,000 claimants. Class counsel requests these
additional fees “[t]o the extent Class Counsel’s lodestar is less than $1,000,000 . . . .”
(See Br. in Supp. of Request for Att’ys’ Fees 13.) The Court has awarded nearly the
full requested fee amount, plus costs as laid out below. Because the award
approaches the full amount requested by class counsel and because the Court finds
the sum of these awards to be fair compensation for time spent on the case, the
request for additional compensation for future work is denied.2
The Rosman Objectors also request that the Court delay approval of the attorneys’ fee
award until after the number of settlement vouchers that are redeemed by class members
can be established in order to comply with CAFA and to more accurately reflect the value
of the settlement. The Court declines to defer the fee award, as CAFA does not govern the
settlement, and the objectors fail to offer a compelling reason for delay. See In re Mexico
Money Transfer Litig., 164 F. Supp. 2d at 1034 (?[The court declines to delay the fee award]
pending a determination of the number of coupons that are actually redeemed . . . . [T]he
court . . . is unwilling to require counsel to become guarantors of circumstances than
cannot be dependably predicted by anyone.”)
Class Counsel’s Request for Costs.
Federal Rule of Civil Procedure 23(h) gives courts approving class action
settlements the discretion to “award reasonable . . . nontaxable costs that are
authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Class counsel
request an additional $6,789.66 in costs, composed of $700 in filing fees, $84 for
service of process, a $5.66 messenger fee, and a $6000 expert witness fee during the
course of litigation. The Court finds that the requested costs are reasonable given
the scope of the litigation. The Court awards class counsel costs in the amount of
Timing of the Fee Award Application.
The objectors challenge the timing of class counsel’s fee application, stating
that it violates Federal Rule of Civil Procedure 23(h), which requires that “[a] claim
for an award must be made by motion . . . at a time the court sets. Notice of the
motion must be served on all parties and, for motions by class counsel, directed to
class members in a reasonable manner.” Fed. R. Civ. P. 23(h)(1). The objectors
argue that class members were “impeded from understanding the extent of class
counsel’s improper fee award” because the fee application — filed September 10,
2013 — was submitted after the August 27, 2013 objection deadline. (Rosman
Objection at 8-9.) The Rosman Objectors cite In re Mercury Interactive Corp. Sec.
Litig., 618 F.3d 988, 993-94 (9th Cir. 2010), for the proposition that “[t]he plain text
of [Rule 23] requires a district court to set the deadline for objections to counsel’s fee
request on a date after the motion and documents supporting it have been filed.”
(Rosman Objection at 9.)
As the Rosman Objectors acknowledge, the Seventh Circuit has not stated a
requirement that applications for attorneys’ fees in class action settlements must
precede the objection deadline. The difficulties highlighted in In re Mercury do not
present themselves here. In that case, the Ninth Circuit was markedly concerned
with attorneys’ fees being drawn from a common fund, thus compensating the
lawyers at the expense of the class and resulting in an adversarial relationship
between class plaintiffs and their attorneys. See In re Mercury, 618 F.3d at 994-95.
This settlement does not involve a common fund, so class members will not benefit
or suffer based on changes to the fee award. District courts in the Ninth Circuit
have declined to follow In re Mercury where the benefits of class members are not
directly tied to attorneys’ fees awards. See In re Lifelock, Inc. Mktg. & Sales
Practices Litig., No. MDL 08-1977-MHM, 2010 WL 3715138, at *9 (D. Ariz. Aug. 31,
2010) (distinguishing In re Mercury as a case that involved a common fund and
therefore required greater oversight); see also Calloway v. Cash Am. Net of
California LLC, No. 09-CV-04858, 2011 WL 1467356, at *2 (N.D. Cal. Apr. 12,
2011) (“This lack of a common fund obviates the due process concerns highlighted
by the Mercury court.”)
Moreover, the Notice of Class Action Settlement in this case gave objectors a
clear understanding of the amount that class counsel would receive under the
settlement terms. Ultimately, several objectors were able to challenge the proposed
attorneys’ fees because the class notice included the amount of the fee award. (See,
e.g., Rosman Objection at 4; Vasquez Objection at 14-15; Gupta Objection at 15;
Siegel Letter at 2.) The facts that objectors in this case identified and protested the
requested fees belies any alleged prejudicial impact as a result of the objection
deadline falling before the fee application was received.
The Court finds that class counsel’s failure to file an application for
attorneys’ fees prior to the objection deadline does not warrant rejection of the
The Rosman Objectors next argue that the $5,000 award to class
representatives is too large in light of lesser recovery by non-named class members.
(See Rosman Objection 12-13.) The Rosman Objectors are primarily concerned with
the size of the incentive awards as they compare with the relief offered to individual
class members under the settlement, arguing that Murray v. GMAC Mortgage
Corp., 434 F.3d 948 (7th Cir. 2006), dictates that disproportionate awards to class
representatives should be rejected.
Incentive awards are valuable insofar as they “induce individuals to become
named representatives.” In re Synthroid Mktg. Litig., 264 F.3d 712, 722-723 (7th
Cir. 2001). Factors relevant to deciding whether an incentive award is justified
include actions taken by the plaintiff on behalf of the class, the benefits the class
reaps from those actions, and the burden class representatives take on in
representing the class. See Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998). In
this case, the class representatives were unlikely to come forward to act as named
representatives in the absence of incentive awards due to the length of the litigation
and lack of harm suffered by class members. Furthermore, the class representatives
actively participated in the case. Plaintiff Redman offered strategic insights based
on his experience as an attorney for venture capitalists and banks. (See Markoff
Decl. ¶ 30.) The class representatives also acted as a group to monitor the activities
of the attorneys by reviewing documents in the case and commenting on the
direction of the litigation. (See id. ¶¶ 31-33; Zimmerman Decl. ¶ 33.)
Other approved incentive awards in similar class actions suggest that an
award of $5000 to each class representative is not unreasonable. See, e.g., In re
AT&T Mobility Wireless Data Servs. Sales Litig.,792 F. Supp. 2d at 1041 ($5000 to
named representatives); In re S.W. Airlines Voucher Litig., 2013 WL 4510197, at
*11 ($15,000 to named representatives). Because the showing of substantial input
by the class representatives in this case comports with the factors laid out in Cook
and because the award is on par with others from class actions in this district, the
Court finds the incentive awards to be justified.
The Appearance of Collusion.
The Gupta and Vasquez Objectors assert that the settlement was a collusive
effort between class counsel, counsel for Defendant, and the class representatives
based on three remarks made during a May 8, 2013 hearing before Judge Grady.
The Objectors are first concerned by class counsel’s statement that RadioShack ?got
a good deal on the proposed settlement.” (Gupta Objection at 9; Vazquez Objection
at 3.) The fact that class counsel stated that the terms of the proposed settlement
were favorable to RadioShack does not preclude the possibility that counsel also
fought to reach reasonable and fair terms for the class; good settlements should be
designed such that the terms are agreeable to both parties.
Similarly, class counsel’s statement that the proposed settlement be done
with bankruptcy protections does not imply any malfeasance on the part of the
attorneys. Instead, it is more likely that counsel was concerned that there would be
no possible recovery for any members of the class in the event that RadioShack
entered bankruptcy proceedings and was therefore expressing a desire to shield the
settlement fund from the company’s financial instability.
Finally, the Gupta and Vazquez Objectors express concern because class
counsel indicated that a class representative was ?tired of waiting.” (Gupta
Objection at 9; Vazquez Objection at 3.) It is reasonable that a class representative
– like any member of the class – would have an interest in being compensated as
soon as possible.
Given this Court’s first-hand observations of the adversarial nature of the
proceedings up to and through protracted settlement negotiations, none of the
dialogue presented by the objectors suggests that the settlement was reached in a
The Penalty of Perjury Requirement for Claims.
The Gupta Objectors state that the number of claims by potential class
members have been artificially suppressed by language in the claim forms requiring
a certification under penalty of perjury. The Objectors argue that class members
were unlikely to submit claim forms given the low value of settlement vouchers
when weighed against the perceived seriousness of prosecution for perjury.
The Court finds that this language was a reasonable addition to the claims
process as an effort to protect against false claims. Such language is common in
claim forms. See, e.g., Schulte, 805 F. Supp. 2d at 568 (declaration ?under penalty
of perjury” for claims by class members). The inclusion of a penalty of perjury
requirement as a nominal safeguard against fraudulent claims does not warrant
rejection of the settlement.
Exclusion and Objection Requirements.
The Rosman Objectors argue that the exclusion and objection requirements of
the settlement have further driven down objections and opt-outs by requiring that
objectors deliver three copies of their exclusion request or objection to the Court and
one, class counsel, and Defendant’s counsel. Objectors assert that these
requirements are so onerous that they should result in rejection of the settlement.
The Court disagrees.
The Objectors cite no compelling authority in support of their argument that
mailing three copies of a letter would drive down opposition among class members
to the point of delegitimizing the settlement. See McClintic v. Lithia Motors, Inc.,
No. C11-869RAJ, 2012 WL 112211, at *6 (W.D. Wash. Jan. 12, 2012) (denying
preliminary approval to class settlement but stating that ?none of the concerns the
court has listed, standing alone, is fatal to the settlement”); see also Galloway v.
Kan. City Landsman LLC, No. 11-1020-CV-W-DGK, 2012 WL 4862833, at *6 (W.D.
Mo. Oct. 12, 2012) (court expressed concern with requiring class members to both
mail and e-mail exclusion forms). Requiring objectors and opt-outs to post multiple
letters allows parties to review objections and prepare responses and to assess
overall levels participation in the settlement in anticipation of a final fairness
hearing. The Court finds this to be a reasonable aspect of the settlement.
The Settlement Release.
The Gupta Objectors take issue with the release included in the settlement,
whereby class members who fail to opt out waive “claims made or that could have
been made by Plaintiffs in the Lawsuits or relating in any way to the alleged
printing of expiration dates on credit or debit card receipts or relating in any way to
FACTA (the ‘Released Claims’).” (Settlement Agreement § 2.4.)
The settlement’s release of future claims is a common mechanism by which a
settling defendant can secure peace by providing compensation to a settlement
class. The language of the release is sufficiently precise to ensure that class
members do not give up legitimate, unrelated claims against Defendant as a result
of participating in the settlement. Furthermore, settlement releases are necessary
to free defendants from duplicative causes of action. See, e.g., In re AT & T Mobility
Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d at 944 (granting final
approval to a settlement agreement stipulating that plaintiffs who did not opt out
would “release and forever discharge AT & T Mobility from any and all claims . . .
causes of action, obligations, . . . and costs . . . relating in any way or arising out of
[AT & T’s alleged violation fo the Internet Tax Freedom Act]”).
The Settlement’s Use of Cy Pres.
The Rosman Objectors argue that the use of a cy pres fund in the settlement
is inappropriate because it diverts funds away from the class members and because
the proposed cy pres award recipient, the Boys and Girls Clubs of America, is
insufficiently related to the subject matter of the case.
The concerns associated with cy pres funds are moot in this case. The
settlement agreement stipulates that vouchers would be provided to the cy pres
recipient only in the event that the total value of vouchers paid to class members,
incentive awards, notice and administration costs, and attorneys fees and costs
totaled less than $3.25 million. (See Settlement Agreement § 2.3(E).) The
settlement’s value amounting to more than $3.25 million eliminates any potential
harm to class members due to the specification of a cy pres recipient, because no
money will flow from the settlement to the Boys and Girls Club. As a result, it is
unnecessary for the Court to analyze the merits of the cy pres language in the
Objections Raised through Letter.
As a final matter, the Court does not find that objections raised informally in
several letters from class members justify rejecting the settlement. First, the letter
objections raise issues fully addressed by the Court in this Opinion; these include
objections based on attorneys’ fees, notice to the class, the value of the vouchers, the
penalty of perjury provision in the claim form and the objections to the cy pres
provision contained in the settlement agreement. Additionally, Objector Scott’s
argument that Class Counsel will be paid their fees before the settlement is final is
inaccurate. Class Counsel’s payment depends on final approval of the settlement by
this Court and the resolution of any appeals of that approval, should they be filed.
(See Settlement Agreement § 1.17.)
The Court finds that none of the objections filed in opposition to the
settlement warrant rejection of the settlement, and, those objections are overruled.
For the reasons above, the Court concludes that the settlement is fair,
reasonable, and adequate. The Court grants the Motion for Final Approval of the
Settlement. The Court has considered the objections and overrules them for the
reasons presented in this opinion. The Court awards class counsel fees in the
amount of $990,291.88 and costs in the amount of $6,789.66. The request for
incentive awards in the amount of $5,000 to each class representative is granted.
DATE: February 7, 2014
HON. MARIA VALDEZ
United States Magistrate Judge
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