Birchmeier et al v. Caribbean Cruise Line, Inc. et al

Filing 846

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 7/22/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court vacates the special master's award dated December 2, 2019 to the extent it awarded 250 calls to claimant Daisy Exum and hereby awards Ms. Exum fifteen calls. Class counsel are directed to immediately provide a copy of this opinion to Ms. Exum and are to certify on the docket that they have done so. (mk)

Case: 1:12-cv-04069 Document #: 846 Filed: 07/22/20 Page 1 of 12 PageID #:51131

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GERARDO ARANDA, et al.,
Plaintiffs,
vs.
CARIBBEAN CRUISE LINE, INC., et al.,
Defendants.

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Case No. 12 C 4069

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiffs in this case filed suit on behalf of a class against a number of
entities, alleging that they violated the Telephone Consumer Protection Act by placing
millions of automated phone calls to them and others similarly situated without their
consent. The Court later certified a class. The parties settled just before trial with the
assistance of a mediator, retired U.S. District Judge Wayne Andersen. The Court
approved the settlement agreement in March 2017. The agreement provided that class
members could recover $500 per violating call claimed. It provided that a claim
administrator would make initial award decisions on claims by class member and that a
special master would review the administrator's awards. The Court appointed retired
Judge Andersen as the special master.
The special master made an initial award of calls in May 2019, but this did not
include about 100 claimants who had challenged the claim administrator's awards and
requested hearings. These claimants were given notice of hearing dates, and the
special master ultimately held 87 telephonic hearings. He issued an award in

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December 2019. A little over 20 claimants claimed 10 or more calls. After conducting
telephone hearings, at which counsel for the plaintiff class and for defendants permitted
to question the claimants (as did the special master), he awarded fewer than 10 calls to
a handful, 10 to 20 to nearly all the rest, and more than 20 to two claimants: Yolanda
Higginbotham, who was awarded 30 calls, and Daisy Exum, who was awarded 250.
Ms. Exum's award from the special master would translate into a total monetary award
of $125,000. (Ms. Exum sought an award of 700 calls, which if accepted would have
resulted in a monetary award of $350,000.)
The defendants appealed the special master's award of 250 calls to Ms. Exum,
arguing that she failed to prove her entitlement to that many calls. In early March 2020,
the Court issued in opinion in which it took defendants' objections under advisement but
determined that it could not make a final ruling—which would involve either upholding or
overturning the special master's implicit credibility determination—without hearing
testimony by Ms. Exum directly.
The Court then set a hearing, to be held by telephone, for March 18, 2020. That
hearing had to be vacated due to the coronavirus pandemic and the entry of a general
order by this district's chief judge suspending all court proceedings, effective March 16,
2020. The Court later attempted to make arrangements to take Ms. Exum's testimony
by video conference but then learned that this would require her to purchase Internet
service, which she did not then have. The Court decided not to require Ms. Exum to
take that step and therefore conducted the hearing by telephone, on June 12, 2020.
The Court asked Ms. Exum a number of questions, and counsel for both sides were
also given an opportunity to do so (class counsel did not ask questions; defense

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counsel did). The Court advised that it would consider Ms. Exum's testimony at the
hearing before the special master along with her testimony at the hearing before this
Court and any other evidence submitted by the parties.
During the June 12 hearing, Ms. Exum testified, as she had in the earlier hearing
before the special master, that she had received the subject calls at the phone number
xxx-xxx-7474. This was originally a land line, but in or about 2009 she "ported" the
number to a cellular phone, which is the phone on which she received the subject calls.
The period covered by the class settlement is August 2011 through August 2012,
a period of approximately one year. Ms. Exum said that during that period, the calls
would come "every day, if not every day, certainly every other day, and they would
come more than once in a day." She said that she answered them "almost every time,"
because they were coming from different numbers, and she thought the calls could be
coming from colleges to which her son had applied for admission. She said that the
caller—which she referred to as having a "robotic" voice—would make reference to
taking a political-type survey, and she recalled references to the presidential election
(presumably the one held in 2012) and to "Obamacare." Ms. Exum stated that once
she was able to ascertain that a call was a telemarketing call, she would wait a few
seconds and then hang up—except for some of the calls earlier during the period, on
which she may have punched in numbers when prompted by the caller. She stated that
on at least one occasion, she was transferred and then got a sales pitch for a cruise, or
perhaps a time share.
The Court asked Ms. Exum if she was getting other "robocalls" during the same
period. She said, "There may have been a few other calls. I just don't remember." The

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subject calls stood out, she said, because of the annoying robotic voice. Ms. Exum said
that over the year in question, she had gotten a total of perhaps 20 or 30 other
"robocalls."
Ms. Exum stated that in the summer of 2012, the subject calls became less
frequent. She summarized: "I was probably getting anywhere from two calls a day
most days to maybe a call every other day as it got closer to the middle to the end of
July into August."
The Court also asked Ms. Exum about records to support her claim. She stated
that her phone bills at the relevant time "absolutely" listed the incoming calls she had
received. When the Court challenged her on this, she said, "I'm a hundred percent
sure." Ms. Exum further stated that she had located the bills after receiving notification
of the lawsuit and had been able to identify the subject robocalls. She had kept all of
her bills and did not have to obtain them from her cellular service provider. She testified
(both during the hearing with the special master and during the hearing with this Court)
that she had highlighted relevant calls and sent a stack of bills to an address in Rhode
Island in support of her claim.
It is undisputed that the claim administrator has reported, contrary to Ms. Exum's
statements, that it received no supporting documentation from her. During the hearing,
the Court asked Ms. Exum why she had not kept copies of the bills she claimed to have
sent in. She replied, "I honestly thought that I did keep copies," but that she had not
been able to find them. She then speculated that because of the deadline to submit
supporting information, "perhaps I sent the originals without actually making copies, but
I'm almost certain that I did make copies." She has never been able to locate any

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copies, however.
In response to a further question by the Court, Ms. Exum stated that after
sending her materials to the address in Rhode Island, "I did not hear anything back from
anybody."
The Court pointed out to Ms. Exum that during her testimony before the special
master, she had testified that she had highlighted "about a hundred, just over a
hundred" calls on the bills she claimed to have sent in. She testified before the Court,
however, that "there was more calls" than that. She did not highlight the others, she
said, because she suffers from carpal tunnel syndrome and it was acting up. She was
concerned she would miss the deadline if she waited for her symptoms to subside, so
she submitted the bills without further highlighting.
Ms. Exum told the Court that she is claiming a total of 700 calls. The Court
asked how she had come up with this figure. Here is what Ms. Exum said:
Well, the way I came up with that number is that I really sat down and
thought about just how annoying, I mean, when I say annoying, just how
annoying and aggravating those calls were. I know there were at least
two calls a day minimum. I know that without any doubt, and so I just
based it on doing two calls per day and then I multiplied that by, say, the
number of days in a week and I remember the calls probably were slowing
down and that's how I came up with that number.
THE COURT: So it's basically two calls a day every day for a year
essentially?
THE WITNESS: Yes, your Honor.
THE COURT: Seven days a week?
THE WITNESS: Well, I'll be honest, I don’t remember a lot of calls being
on Sundays and even if there were, you know, I was always so busy on
Sundays and there may have been calls on Saturdays, but I definitely
know the majority of the Monday through Friday, it was like nonstop. So in
all fairness, if I had to just say the number of days in a week at the most
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six days, but definitely five days.
During examination by defense counsel, Ms. Exum conceded that she had
previously testified that in addition to sending call records to the claim administrator, she
had also sent them to class counsel. She backed away from this, however, during the
hearing before the Court: she said that she sent out one envelope and claimed that
when asked about this at the earlier hearing, she must have assumed that class
counsel and the claim administrator were related entities.
Significantly (for reasons that will become clear), Ms. Exum testified during
examination by defense counsel that when going through her phone bills to determine
which calls were the subject calls, she did not identify the subject calls from the list of
numbers on the class settlement website, which listed numbers from which the calls at
issue had been placed. Rather, Ms. Exum said, she identified the calls "by the length of
time that I was on the phone call, and when it was a minute or less, I knew that it was a
call that I hung up on it, that I listened to just enough to identify that it was a robo call
and I was not going to stay on the line with that caller." She conceded, however, that
she had followed the same practice (staying on the line only briefly) in dealing with
telemarketing calls other than the subject calls. This, presumably, would make it
impossible to distinguish the subject calls from other robocalls by simply looking at
phone bills. But Ms. Exum said she was certain that the calls she claimed to have
highlighted on her bills were the subject calls.
As indicated, the Court advised the parties—without objection—that it would also
consider Ms. Exum's testimony before the special master. In broad strokes, her
testimony was similar to that before the Court, though not entirely the same. In terms of

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similarities, before the special master, Ms. Exum testified that there "were approximately
two – one to two calls per day," but that "it didn't happen every day, but it almost
happened almost every day, every other day. So I base that assumption on maybe one
to two calls per day." Sept. 16, 2019 Tr. at 6-7. She also testified that the calls were
memorable because of the upcoming presidential election, and she referenced a few
occasions when she was routed to someone who attempted to market a cruise to her.
And there are other similarities as well.
But there are significant inconsistencies between Ms. Exum's testimony before
the Court has her testimony before the special master. These inconsistencies bear
directly on Ms. Exum's contentions regarding the number of calls she received. In
particular, contrary to her testimony to the Court that, in reviewing records, she had
determined which calls to highlight by the length of the calls, Ms. Exum testified before
the special master that she had determined which calls to highlight by checking the
phone numbers from which the calls had been placed. This was directly contrary to her
testimony before the Court, where (as noted earlier) she specifically denied doing that.
Her testimony on this point before the special master was as follows:
Q: So, Ms. Exum, when you were doing the highlighting years after 2011
and 2012, how did you know what numbers to highlight?
A: Well, because there were calls from 312 area codes and there were
calls from other 800 numbers that did not make sense to me.
And, in addition, there was some information out there where, you know,
people were talking about if they call the Administrator – and I, actually,
called a few times to find out how can I get information of running down
the phone calls.
So on the Birchmeier website – I believe it's the Birchmeier website – you
can find out if you were a party to the lawsuit, if your number had been
called, or you could check your phone bills with certain numbers, and
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that's how I ran down those numbers.
Id. at 28.
In and after the hearing before the Court, Ms. Exum offered additional evidence
in support of her claim for 700 calls. Some of this amounted to evidence of good
character. Ms. Exum also offered records to support the proposition, apparently
contested by defendants, that she owned the relevant phone number during 2011-12.
Most of the remaining exhibits that Ms. Exum has submitted consist of her
communications with the claim administrator. At least one of these is offered, it
appears, to support her claim that she sent annotated phone records to the
administrator. Specifically, Ms. Exum cites her Exhibit B (dkt. no. 843, p. 2). This exhibit
is an acknowledgment from the claim administrator, which appears to be a form letter of
sorts, and which reads as follows:
Mr./Ms. DAISY EXUM:
You are receiving this email because you recently made a request for a
telephonic hearing and/or submitted additional documents in support of
your claim in the class action Birchmeier et al v. Caribbean Cruise Line,
Inc., et al., No. 12-cv-04069 (N.D. Ill.).
We thank you for your patience with the claims process. There are a
variety of legal issues that the attorneys have asked the Special Master to
resolve, a process that will take at least several months. For those of you
who requested a telephonic hearing, we will be in touch with you to
schedule the hearing if and when that becomes necessary. We hope to
have claims challenges resolved by the end of the year.
Exum Ex. B (dkt. 843).
Ms. Exum says that this e-mail "shows my request for a Telephonic Hearing
along with acknowledgment of supporting documents." Exum suppl. submission (dkt.
845) at 1. The Court disagrees. The e-mail from the administrator says it was sent

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because Ms. Exum made a request for a telephonic hearing, "and/or" submitted
additional documents. And we know that Ms. Exum did make a request for a telephonic
hearing. So the most that can be said with assurance about the administrator's e-mail is
that it confirms that she requested a telephonic hearing. It does not confirm her
submission of additional documents.
On the question of documentation, it is noteworthy that despite the fact that Ms.
Exum has now known, for months, that the administrator has no supporting documents
for her claims (i.e., it did not have her purported phone bills), Ms. Exum has not
submitted, and has not been able to submit, further copies of those documents in
support of her claim. Ms. Exum claimed that she kept copies, but she has never been
able to locate them. Nor has she, apparently, been able to obtain them from her phone
service provider or even attempted to do so. The only reasonable conclusion the Court
can draw at this point is that Ms. Exum did not submit, and cannot produce,
documentation that supports her claim for the 700 calls she asserts, the 250 calls
awarded by the special master, or any other particular number of calls.
The Court believes that Ms. Exum is an honorable person, as supported by
documents she has submitted. But her contention that she received 700 calls is not
credible. As indicated, she is unable to document her contentions in any way. And her
number of calls is admittedly an estimate to begin with. Indeed, if one takes her
testimony about the relative frequency of calls as completely true, it makes her claimed
number of calls an extraordinarily generous estimate. As estimates go, the one that Ms.
Exum has offered as her claim lacks credence.
In addition, Ms. Exum's testimony about how she identified the calls she is

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claiming suffers from a significant inconsistency, as the Court has described. On one
occasion, she testified that she identified the calls by looking at phone numbers on the
settlement website. More recently, she disavowed relying on those phone numbers and
said she relied on the length of the calls as shown by her purported records. But that—
virtually by her own admission—would not have permitted her to distinguish the subject
calls from other robocalls that she received during the relevant period.
In addition, the claimant with the next highest number of calls awarded by the
special master was able to support only thirty, and most of those awarded larger-thanthe-default calls were awarded between ten and twenty. It does not stand to reason
that Ms. Exum would have received thirty-five to seventy times as many calls as others.
The most likely conclusion, and the one the Court adopts, is that Ms. Exum, like many
Americans, received and receives a lot of robocalls but that her guesstimate
erroneously puts all such calls she got from August 2011 to August 2012—whatever
their source—into the Caribbean Cruise Line basket.
For these reasons, the Court rejects Ms. Exum's request for an award of 700
calls and respectfully overturns the special master's determination that Ms. Exum
credibly supported a claim for 250 calls. 1
The next question is how many calls the Court should award to Ms. Exum.
Defendants say that the right answer is one. They rely on section 5.4 of the courtapproved class settlement agreement, that says that all class members (with exceptions

1

In one of Ms. Exum's submissions, she states that the defendants, at some earlier
point, offered to settle with her for an award of 125 calls. But the Court may not
consider this. Federal Rule of Evidence 408(a) bars use of a settlement offer to prove
the validity or amount of a disputed claim.
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not relevant here) "will have the ultimate burden if their Claim Form is challenged to
demonstrate the number of calls, greater than one (1), that they received." Class
Settlement Agr. § 5.4. Defendants also rely on section 5.5, which says, in part, that if a
class member "does not timely submit the supplemental documentation or testify before
the Special Master, the Special Master shall sustain the Defendants' challenge and the
Settlement Class Member will have an Approved Claim for one (1) call." Id. § 5.5.
Section 5.5 goes on to say, however, that if a class member does testify before the
special master—as Ms. Exum did—and a challenge by the defendants to a claim is
sustained (as the Court has done), "the Settlement Class member will be permitted to
recover for at least one (1) call." Id. (emphasis added).
The Court does not find it appropriate to limit Ms. Exum to a single call. There is
no doubt in the Court's mind following consideration of her testimony that she received
multiple calls covered by the class settlement. Aside from her inability to support her
claim with records, Ms. Exum has diligently pursued her claim, has testified twice, and
has persuasively beat back defendants' contention that the phone number in question
was not even hers. The Court has concluded that she has not supported the very large
claim that she proposed, or the award made by the special master, but it is appropriate
to make an award to Ms. Exum within the range approved by the special master for
other claimants who made claims for more than ten calls and proceeded to hearing.
The Court hereby makes an award to Ms. Exum of fifteen calls, which is approximately
in the middle of the approved range for class members who claimed more than ten
calls. The Court acknowledges that this is an estimate, but it is a reasonable and fair
estimate based on the testimony and other evidence presented. It is so ordered.

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Conclusion
For the reasons stated above, the Court vacates the special master's award
dated December 2, 2019 to the extent it awarded 250 calls to claimant Daisy Exum and
hereby awards Ms. Exum fifteen calls. Class counsel are directed to immediately
provide a copy of this opinion to Ms. Exum and are to certify on the docket that they
have done so.
Date: July 22, 2020

________________________________
MATTHEW F. KENNELLY
United States District Judge

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