IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · ii C. A $1,000 Incentive Award to Plaintiff Is Reasonable and Should Be Approved.....24 IV. CONCLUSION.....25 CASE 0:15-cv-02058-MJD-BRT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

NEIL KRAN, individually and on behalf of all others similarly situated,

Plaintiff, v. HEARST NEWSPAPERS, LLC, a Delaware corporation, A MARKETING RESOURCE, LLC, a Minnesota limited liability company,

Defendants.

Case No. 0:15-cv-02058-MJD-BRT

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF AWARD OF REASONABLE

ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD

CASE 0:15-cv-02058-MJD-BRT Document 56 Filed 08/19/16 Page 1 of 35

i

TABLE OF CONTENTS

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

II. BACKGROUND .....................................................................................................2

A. The Underlying Claims and the TCPA. .....................................................2

B. The Litigation History and Work Performed for the Settlement Class’s Benefit ..............................................................................................6

C. The Settlement Secures Extraordinary Relief for the Settlement

Class ..............................................................................................................8

III. ARGUMENT ...........................................................................................................9

A. The Requested Attorneys’ Fees and Incentive Award Are Reasonable and Should Be Approved ......................................................10

1. The Benefit Conferred on the Settlement Class is Outstanding .....................................................................................11

2. Plaintiff’s Counsel (and the Settlement Class) Faced the Real Risk of Receiving Nothing .....................................................13

3. The Case Presented Significant Difficulties, and Plaintiff was Not Aided by Government Action .........................................16

4. Plaintiff’s Counsel and Hearst’s Counsel Are Both Extremely Skilled Litigators ..........................................................17

5. Counsel Expended Significant Time and Effort on This Case .........................................................................................18

6. The Class Has Reacted Positively to the Settlement Agreement ....................................................................18

7. The Requested Fee is Comparable to Percentages Awarded in Similar Cases ..............................................................................18

B. A Lodestar Crosscheck Confirms the Reasonableness of the Requested Fees ...........................................................................................20


ii

C. A $1,000 Incentive Award to Plaintiff Is Reasonable and Should Be Approved ..................................................................................24

IV. CONCLUSION ......................................................................................................25


iii

TABLE OF AUTHORITIES Supreme Court Cases Campbell-Ewald Co. v. Gomez,

136 S. Ct. 663 (2016) ................................................................................................6 Hall v. Cole, 412 U.S. 1 (1973) ....................................................................................................19 Mims v. Arrow Fin. Servs. LLC,

132 S. Ct. 740 (2012) ................................................................................................4 United States Court Of Appeals Cases Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011) ..................................................................................14 Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) ................................................................................24 In re U.S. Bancorp Litig., 291 F.3d 1035 (8th Cir. 2002) ..........................................................................11, 24 Johnston v. Comerica Mortgage Corp., 83 F.3d 241 (8th Cir. 1996) ..............................................................................10, 20 Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, DDS, PA,

781 F.3d 1245 (11th Cir. 2015) ................................................................................5 Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ..........................................................................10, 20 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) ..................................................................................17 Siding & Insul. Co. v. Alco Vending, Inc., 822 F.3d 886 (6th Cir. 2016) ....................................................................................5 Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) ................................................................................21


iv

United States District Court Cases Adams v. Alliance One Receivables Mgmt., Inc., No. 08-cv-00248-JAH, Dkts. 115-1, 137 (S.D. Cal. 2012) ....................................21 Arthur v. Sallie Mae, Inc.,

No. 2:10-cv-00198, Dkt. 266 (W.D. Wash. Sept. 17, 2012) ..................................13 Agne v. Papa John’s Int’l, Inc.,

286 F.R.D. 559 (W.D. Wash. 2012) .......................................................................16

Baird v. Sabre Inc., No. 13-cv-999, 2014 WL 320205 (C.D. Cal. Jan. 28, 2014) ..................................15

Birchmeier v. Caribbean Cruise Line, Inc.,

302 F.R.D. 240 (N.D. Ill. 2014) ..............................................................................15 Ellison v. Steven Madden Ltd.,

No. 11-cv-5935, Dkt. 73 (C.D. Cal. May 7, 2013) .................................................17 Estrada v. iYogi, Inc.,

No. 13-cv-01989, 2015 WL 5895942 (E.D. Cal. Oct. 6, 2015) ..............................15 Goodman v. Hangtime, Inc., No. 14-cv-01022, Dkt. 124 (N.D. Ill. Sept. 29, 2015) ............................................23 Gross v. Symantic Corp.,

No. 3:12-cv-00154-CRB, Dkt. 88 (N.D. Cal. Mar. 21, 2014) ................................23 Guttierrez v. Barclays Group,

No. 10-cv-01012-DMS, Dkt. 57 (S.D. Cal. May 12, 2010) ...................................21 Hashw v. Dept. Stores Nat’l Bank, No.13-727-RHK, 2016 WL 1729525 (D. Minn. Apr. 26, 2016) .................... passim Hopwood v. Nuance Communications, Inc.,

No. 13-cv-2132, Dkt. 101-1, (N.D. Cal. Apr. 24, 2015) .........................................12 In re Capital One TCPA Litig.,

80 F. Supp. 3d 781 (N.D. Ill. 2015) ..................................................................13, 19


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In re Charter Communications, Inc., No. MDL 1506, 4:02-CV-1186 CAS, 2005 WL 4045741 (E.D. Mo. 2005) .......................................................................20 In re Jiffy Lube Int’l, Inc., Text Spam Litig.,

847 F. Supp. 2d 1253 (S.D. Cal. 2012) .............................................................12, 21 In re St. Paul Travelers Securities Litig., 2006 WL 1116118 (D. Minn. 2006) .......................................................................20 In re UnitedHealth Grp. Inc. PSLRA Litig.,

643 F. Supp. 2d 1094 (D. Minn. 2009) ............................................................. 20-21 In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig.,

364 F. Supp. 2d 980 (D. Minn. 2005) ............................................................ passim Jackson v. Caribbean Cruise Line, Inc.,

88 F. Supp. 3d 129 (E.D.N.Y. 2015) ........................................................................5 Jamison v. First Credit Servs., Inc.,

290 F.R.D. 92 (N.D. Ill. 2013) ................................................................................16 Kazemi v. Payless Shoesource, Inc.,

No. 3:09-cv-05142, Dkt. 94 (N.D. Cal. Apr. 2, 2012) ............................................12 Kolinek v. Walgreens, 311 F.R.D. 483 (N.D. Ill. 2015) ..............................................................................17 Kulesa v. PC Cleaner, Inc., No. 12-cv-725, Dkt. 101 (C.D. Cal. Aug. 26, 2014) ..............................................23 Lambert v. Buth-Na-Bodhage, Inc., No. 14-cv-00514-MCE, Dkt. 36 (E.D. Cal. Nov. 20, 2015) ...................................21 Lee v. Stonebridge Life Ins. Co., No. C 11-0043 RS, 2013 WL 542854, (N.D. Cal. Feb. 12, 2013) ................... 15-16 McClintic v. Lithia Motors, Inc., No. 11-cv-00859-RAJ, Dkt. 51 (W.D. Wash. Oct. 23, 2012) ................................21 Ott et al. v. Mortgage. Invest. Corp., No. 14-cv-00645, Dkt. 146 (D. Or. Jan. 5, 2016) ...................................................12


vi

Roberts v. PayPal, Inc., No. 13-cv-0622, 2013 WL 2384242 (N.D. Cal. May 30, 2013) aff’d, 621 F. App’x 478 (9th Cir. 2015) ..................................................................15 Robles v. Lucky Brand Dungarees, Inc., No. 3:10-cv-04846-MMC, Dkt. 105 (N.D. Cal. May 10, 2013) .............................23 Ryabyshchuck v. Citibank (S.D.) N.A., No. 11-cv-1236, 2012 WL 5379143 (S.D. Cal. Oct. 30, 2012) ..............................15 Simmons v. Charter Commc’n, Inc., No. 15-cv-317, 2016 WL 1257815 (D. Conn. Mar. 30, 2016) ...............................14 Skelton v. Gen. Motors Corp., 661 F. Supp. 1368 (N.D. Ill. 1987) aff’d in part and rev’d in part on other grounds 860 F.2d 250 (7th Cir. 1988) ........................................ 22-23 Theis v. AVG Techs. USA, Inc., No. 1:12-cv-10920-RGS, Dkt. 116 (D. Mass. May 5, 2014) ..................................23 Yarrington v. Solvay Pharm., Inc., 697 F. Supp. 2d 1057 (D. Minn. 2010) ........................................................... passim Rules & Statutes 47 C.F.R. § 64.1200 ...................................................................................................4, 5, 14 47 U.S.C. § 227 .......................................................................................................... passim Fed. R. Civ. P. 23 ....................................................................................................... passim Miscellaneous Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical L. Stud. 811 (2010) ...........................................10 Fin. Servs. & Gen. Gov’t Approps. for F.Y. 2009, S. Comm. on Appropriations, Fin. Servs. & Gen. Gov’t Approps. Subcomm., 110th Cong. 14 (2008) (statement of Jon Leibowitz, Chairman, FTC) .........................................................4 Flanigan v. The Warranty Group, Inc., No. 2014 CH 00956 (Cir. Ct. Cook Cty. Dec. 3, 2015) ..........................................12


vii

In re Rules & Regulations Implementing the Tel. Consumer Prot. Act. of 1991, 18 F.C.C.R. 14014 (2003) .........................................................................................4 In the Matter of the Joint Petition Filed by Dish Network, LLC et al. for Declaratory Ruling Concerning the Tel. Consumer Prot. Act (TCPA) Rules, Declaratory Ruling, 28 FCC Rcd. 6574 (F.C.C. May 9, 2013) ............................ 5-6


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I. INTRODUCTION

Plaintiff Neil Kran (“Plaintiff” or “Kran”) brought this case after receiving a series

of unsolicited telemarketing calls from A Marketing Resource, LLC (“AMR”) promoting

Hearst Newspapers, LLC’s (“Hearst” and collectively “Defendants”) San Francisco

Chronicle newspaper, despite the fact that he placed his number on the National Do Not

Call Registry (“DNC Registry”). Kran alleged these unsolicited calls violated the

Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). After months of intense

litigation, a day-long mediation session with the Hon. Edward A. Infante (ret.) of JAMS

in San Francisco, and many additional weeks of contentious negotiations in effort to

reduce the agreement to writing, Class Counsel reached a Settlement1 that provides

unprecedented relief to the Class and is vastly superior to the majority of settlements on

the well-worn TCPA landscape. That Settlement is what forms the basis for the instant

request for an award of reasonable attorneys’ fees, expenses, and an incentive award to

Plaintiff as class representative.

The instant Settlement is exceptional primarily for two reasons: (1) it is among a

handful of deals that provides relief on a per call basis; and (2) the monetary payment per

call greatly exceeds the amount typically available in so-called single payout settlements,

which pay class members on a per person, rather than per call basis. With respect to the

per call amount, based on the current rate of claims, Class Counsel estimates that

claiming Class members will receive at between $300 to $500 per call from the $2.1 1 A copy of the class action settlement agreement (the “Settlement” or “Settlement Agreement”) is attached as Exhibit 1. Except as otherwise noted, capitalized terms take the meaning given them in the Settlement.


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million non-reversionary Settlement Fund. Notably, in but a handful of TCPA settlements

do class members have the ability to recover on the basis of the number of allegedly

unlawful calls received, and to the best of Class Counsel’s knowledge, no other

settlement provides such relief merely upon completion of a simple claim form like the

instant Agreement. Moreover, the amount class members will receive per call surpasses

the relief secured in the vast majority of TCPA settlements that have received the

approval of federal courts throughout the country where recovery is typically limited to a

single flat rate ranging from less than $25 in cash or coupons to—at the upper end—a

$150 payment. And, equally important, the Settlement provides meaningful prospective

relief requiring Hearst to implement procedures to ensure that class members, and others

on the DNC Registry, do not receive unsolicited phone calls again.

In light of this extraordinary settlement—which this Court has preliminarily

approved—and the efforts that preceded it as the backdrop, Plaintiff respectfully requests

that this Court approve: (1) a fee award to Class Counsel in the amount of $700,000,

equal to one-third of the Settlement Fund; and (2) a $1,000 incentive award to Plaintiff

for his service as class representative. The requested fee is squarely in line with the 33%

of common funds routinely awarded in the Eighth Circuit and below the prevailing rate of

36% for contingent fee awards in TCPA cases generally. It is therefore reasonable, and

that reasonableness is confirmed by a lodestar cross-check (should the Court exercise its

discretion to do one) using just a modest multiplier.

For these reasons, and as explained more fully below, Plaintiff requests that the

Court approve his requested attorneys’ fees and incentive award.


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II. BACKGROUND

A brief summary of the underlying facts and law will lend context to the instant

Motion, and demonstrates the reasonableness of the requested fees, costs, and incentive

award.

A. The Underlying Claims and the TCPA.

Starting in or around January 2015, Hearst (a large media company) engaged

AMR (a telemarketing agency based in Minnesota) to reverse its declining subscribership

to the San Francisco Chronicle through a telemarketing campaign. (Dkt. 38 ¶¶ 1-2, 7-8.)

Around that same time, Kran began receiving telephone calls on his landline that

attempted to sell him a subscription to that newspaper. (Id. ¶ 18.) Kran alleged that these

calls appeared on his caller ID as coming from a San Francisco area code and identified

the caller as the “SF Chronicle.” (Id.) Kran further alleged that when he answered one of

the calls, the telemarketer explicitly stated that she was calling from the San Francisco

Chronicle and inquired whether he would like to subscribe to the newspaper. (Id. ¶¶ 18-

20.) Kran informed the telemarketer that he was not interested in subscribing and that he

had never been a subscriber, that his telephone number was on the DNC Registry, and

specifically requested to not be called again. (Id. ¶ 20.) Nevertheless, Defendants

continued to call Kran. (Id.) Fed up, and understanding that his experience was not an

isolated incident, Kran filed this action on behalf of himself and others similarly situated,

claiming Defendants’ telemarketing calls to consumers who listed their phone numbers

on the DNC Registry violated the TCPA. (Id. ¶¶ 32-41.)


4

The TCPA was enacted in response to “[v]oluminous consumer complaints about

the abuses of telephone technology.” Mims v. Arrow Fin. Servs. LLC, 132 S. Ct. 740, 744

(2012). In passing the statute, Congress specifically sought to prevent “intrusive nuisance

calls” to consumers that it deemed “invasive of privacy.” See id. The DNC Registry

portion of the TCPA didn’t come about in its present form until 2003, when Congress

enacted the Do-Not-Call Implementation Act, Pub. L. No. 108-10, 117 Stat 557 (Mar. 11,

2003), and in response the FCC—the agency entrusted with interpreting the TCPA—

adopted rules to establish a national do-not-call registry. See In re Rules & Regulations

Implementing the Tel. Consumer Prot. Act. of 1991, 18 F.C.C.R. 14014 (2003), ¶¶ 28-33.

In so doing, the FCC recounted, for instance, the abundant complaints it had received

related to telemarketing, id. ¶ 28 & n.117, and noted that “incessant telephone

solicitations are especially burdensome for the elderly, disabled, and those that work non-

traditional hours.” Id. ¶ 29 & n.119.2

Through its FCC implementing regulations, the TCPA provides that “[n]o person

or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber

who has registered his or her telephone number on the national do-not-call registry of

persons who do not wish to receive telephone solicitations that is maintained by the

federal government.” 47 C.F.R. § 64.1200(c). This prohibition extends “to any person or

2 The Do-Not-Call Registry is one of the most popular government programs ever created. In fact, “[t]he great American philosopher, Dave Barry, has called the Do-Not-Call Registry the most popular Government program since the Elvis stamp.” Fin. Servs. & Gen. Gov’t Approps. for F.Y. 2009, S. Comm. on Appropriations, Fin. Servs. & Gen. Gov’t Approps. Subcomm., 110th Cong. 14 (2008) (statement of Jon Leibowitz, Chairman, FTC).


5

entity making telephone solicitations or telemarketing calls to wireless telephone

numbers” as well. 47 C.F.R. § 64.1200(e). The TCPA provides a private right of action

for any “person who has received more than one telephone call within any 12-month

period by or on behalf of the same entity in violation of the [FCC’s] regulations,” 47

U.S.C. § 227(c)(5), and allows for recovery of “up to $500 in damages for each such

violation,” or up to “3 times th[at] amount” if the defendants’ conduct is found “willful[]

or knowing[].” Id (emphasis added).

Additionally, and relevant here, the TCPA’s prohibitions extend not only to the

party that directly placed the calls, but also impose liability for those “on whose behalf” a

solicitation is made. Id. § 64.1200(c)(2). Courts have interpreted this phrase to sweep

more broadly than traditional agency principles of actual and apparent authority and

ratification. See Siding & Insul. Co. v. Alco Vending, Inc., 822 F.3d 886, 897-99 (6th Cir.

2016); Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, DDS, PA, 781 F.3d 1245,

1254 (11th Cir. 2015); see also see Jackson v. Caribbean Cruise Line, Inc., 88 F. Supp.

3d 129, 137-38 (E.D.N.Y. 2015) (observing that “common-law vicarious liability is a

different legal creature than statutorily created ‘on behalf of’ liability”). The FCC has

likewise made clear that liability under the TCPA will attach to persons or entities who

have a high degree of involvement in the transmissions even if they did not place the

calls, and that an entity can be liable under the TCPA through federal common law

agency principles. See In the Matter of the Joint Petition Filed by Dish Network, LLC et

al. for Declaratory Ruling Concerning the Tel. Consumer Prot. Act (TCPA) Rules,

Declaratory Ruling, 28 FCC Rcd. 6574, 6583-84, 6587, n. 107 (F.C.C. May 9, 2013) (the


6

“2013 FCC Order”); cf. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 674 (2016)

(finding “no cause to question” the FCC’s ruling “that under federal common-law

principles of agency, there is vicarious liability for TCPA violations”).

B. The Litigation History and Work Performed for the Settlement Class’s Benefit.

As noted above, Kran received the alleged offending calls in January of 2015 and

connected with Class Counsel, who began an extensive investigation into the companies

involved and the breadth of the claimed violations. That investigation included, inter alia,

engaging in numerous discussions with Plaintiff, researching the Defendant companies

by, for example, studying the manner in which Hearst markets its publication and

reviewing the telephone technology AMR utilizes to make the calls, and reviewing

consumer complaints about the calls, which ultimately culminated with the filing of the

instant Action on April 20, 2015. (See Declaration of Eve-Lynn J. Rapp, attached hereto

as Exhibit 2 ¶¶ 3-4.) As a result, both Kran’s initial and amended complaint allege a

single claim: that Defendants violated the TCPA when they placed phone calls to

individuals listed on the DNC Registry. (See Dkt. 1.) On June 19, 2015, Defendants filed

their respective answers to the complaint, each asserting several affirmative defenses and

disputing any liability for their alleged conduct. (See Dkts. 18, 20.)

As the Parties began preparing their discovery plan, the discussion turned to the

potential viability of reaching resolution of Plaintiff’s claims. (Rapp Decl. ¶ 5.) Both

parties recognized that any discussion of resolution would require discovery regarding

the extent of the telemarketing campaign, including, inter alia, the number of calls made,


7

the number of unique telephone numbers dialed, how the calls were placed, and further

information regarding the relationship between Defendants. (Id.) Defendants agreed to

produce that discovery to Class Counsel informally, and after the production and review

of that information, the Parties decided to participate in a mediation.3 (Id. ¶ 6.) After

various communications about an appropriate mediator, the Parties ultimately selected

Judge Infante (ret.) of JAMS in San Francisco as he has significant experience in the

settlement of class actions generally, and with TCPA class actions in particular. (Id. ¶ 7.)

In preparation for that mediation, Class Counsel prepared an exhaustive mediation

memorandum analyzing the strengths and weaknesses of Kran’s case and presenting a

detailed proposal for settlement. (Id. ¶ 8.) On December 14, 2015, the Parties participated

in a day-long mediation with Judge Infante. (Id. ¶ 9.) Although progress toward

settlement was made, the Parties could not reach an agreement at that time. (Id.) As a

result, at the end of the negotiations—and in hopes of bridging the gap between the

Parties’ respective positions—the Parties agreed to allow Judge Infante to make a

mediator’s proposal. (Id.) And, while both Parties ultimately accepted Judge Infante’s

proposal (after several weeks of additional evaluation), the negotiations did not end there.

(Id. ¶ 10.) Indeed, even after the Parties’ accepted, it took several more weeks of

negotiations—and the further assistance of Judge Infante—to hammer out the details with

3 That informal discovery and Class Counsel’s investigation revealed that Hearst retained AMR and provided it with telephone numbers to dial in order to effectuate the telemarketing campaign to boot sales of the San Francisco Chronicle. Ultimately, discovery showed Defendants placed more than 48,000 calls to the 4,162-person Settlement Class who had their telephone numbers listed on the DNC Registry. (Rapp Decl. ¶ 7.)


8

Hearst’s counsel, prepare and finalize the settlement papers, and agree upon the

Settlement that forms the basis for the instant petition for attorneys’ fees and an incentive

award now before the Court. (Id.)

C. The Settlement Secures Extraordinary Relief for the Settlement Class.

The fruit of Class Counsel’s efforts is arguably the strongest TCPA settlement

ever reached in an arena that is not lacking for available comparisons. The Settlement

creates a $2,100,000 non-reversionary Settlement Fund, from which each of the 4,162

Settlement Class members who files an approved claim will be entitled to a per call pro

rata share of the Settlement Fund calculated automatically based on records obtained in

discovery, up to the full statutory amount of $500 per call (and potentially $1,500 per call

should there be money remaining in the Settlement Fund after payment for the other costs

of the Settlement). (Dkt. 43-1 ¶¶ 1.32, 2.1.) Based on the current number of claims and

the number of calls associated with each, Class Counsel anticipates that, on average, each

claimant will receive $300-500 per call.

Further, the Agreement provides wide-ranging prospective relief. Specifically, as

part of the Settlement, Defendant Hearst has agreed to implement procedures for making

phone calls in the future to ensure that Settlement Class Members, and others, do not

receive phone calls while their telephone numbers are registered on the DNC Registry.

(Id. ¶ 2.2) These procedures include (1) cross-referencing all telephone numbers to which

it intends to make telephone calls promoting subscriptions to the San Francisco

Chronicle against the DNC Registry database for telephone numbers, (2) refraining from

calling such numbers identified as being on the DNC Registry, and (3) providing to


9

consumers the option to elect to receive, and unsubscribe from telephone calls promoting

subscriptions or the renewal of subscriptions to the San Francisco Chronicle through

channels such as their telephonic customer service systems and by contacting Hearst by

other available means. (Id.) Ultimately, Plaintiff and Class Counsel secured exceptional

relief for the Class. That relief, viewed alongside the risks Plaintiff faced in the case,

form the basis for and justify the award of the requested attorneys’ fees and incentive

award.

III. ARGUMENT

Plaintiff respectfully submits that the requested attorneys’ fees and incentive

award are fair and reasonable and should be approved by the Court. As part of the

Settlement, Hearst has agreed to pay from the Settlement Fund, subject to Court approval,

an incentive award of $1,000 to Plaintiff Kran in recognition of his service as Class

Representative and an award of reasonable attorneys’ fees and expenses to Class

Counsel, as may be awarded by the Court. (Dkt. 43-1 ¶ 8). Despite the Settlement

Agreement’s provision that, with no consideration from Hearst, Class Counsel would

limit any fee request to 40% of the Settlement, Class Counsel respectfully requests that

the Court award thirty-three percent (33%), or $700,000 of the Settlement Fund in

attorneys’ fees, as that amount is squarely in-line which similar awards in this District

and with TCPA settlement generally. Defendants are free to oppose this latter request if

they so choose.


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A. The Requested Attorneys’ Fees and Incentive Award Are Reasonable and Should Be Approved.

The amount of reasonable attorney’s fees awarded pursuant to a class action

settlement “is committed to the sound discretion of the district court.” In re Xcel Energy,

Inc., Sec., Derivative & “ERISA” Litig., 364 F. Supp. 2d 980, 991 (D. Minn. 2005)

(citing Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1157 (8th Cir. 1999)). Although the

Court’s discretion allows it to utilize either the percentage of the common fund or

“lodestar” method in calculating fees, see Johnston v. Comerica Mortgage Corp., 83 F.3d

241, 244-45 (8th Cir. 1996), “[a]warding attorney fees based on the percentage of the

common fund recovered is a routine calculation of fees” that is both “approved of” and

“well established” in the Eighth Circuit. See Yarrington v. Solvay Pharm., Inc., 697 F.

Supp. 2d 1057 (D. Minn. 2010); see also Hashw v. Dept. Stores Nat’l Bank, --- F. Supp.

3d ---, No.13-727-RHK, 2016 WL 1729525, *8 (D. Minn. April 26, 2016) (applying the

percentage method because the Eighth Circuit recommends it for common fund cases and

the percentage method is utilized in TCPA class actions across the country); Brian T.

Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J.

Empirical L. Stud. 811, 814 (2010) (“Most federal judges choose to award fees by using

the highly discretionary percentage-of-the-settlement method.”). In contrast, the lodestar

method is typically reserved for civil rights cases with statutory fee shifting because it

doesn’t involve making monetary assessments of intangible rights. See Johnson, 83 F.3d

at 245. Although not required, the Court may choose to cross-check the reasonableness of

the percentage fee award with the lodestar method. In re Xcel, 364 F. Supp. 2d at 999.


11

Despite its stated preference for the percentage method, the Eighth Circuit has yet

to establish a test for considering the reasonableness of attorneys’ fees under this

approach. However, courts in this District have consistently considered a variety factors,

including: (1) the benefit conferred on the class, (2) the risk to which plaintiff’s counsel

were exposed, (3) the difficulty and novelty of the legal and factual issues in the case,

including whether plaintiffs were assisted by a relevant governmental investigation, (4)

the skill of the lawyers, both plaintiffs’ and defendants’, (5) the time and labor involved,

(6) the reaction of the class and (7) the comparison between the requested attorney fee

percentage and percentages awarded in similar cases. See, e.g., Yarrington, 697 F. Supp.

2d at 1062. “In this Circuit, courts ‘have frequently awarded attorney fees between

twenty-five and thirty-six percent of a common fund in class actions.’” Id. at 1065

(quoting In re U.S. Bancorp Litig., 291 F.3d 1035, 1036 (8th Cir. 2002) (affirming award

of 36% of common fund “to class counsel who obtained significant monetary relief on

behalf of the class.”)).

Here, each factor favors the requested attorneys’ fees, which this Court should find

to be reasonable.

1. The Benefit Conferred on the Settlement Class is Outstanding.

The result achieved as measured by the benefit conferred upon the class is

accorded particular weight in determining the reasonableness of a fee award. See In re

Xcel, 364 F. Supp. 2d at 994. Here, the relief obtained for the Settlement Class is

exceptional, both compared to other TCPA actions and when viewed in light of the risks

of obtaining nothing through continued litigation. At base, not only does the settlement


12

provide for recovery for every class member on a per call basis (as opposed to a single

payment per claimant regardless of the number of violations), it is easily superior to other

settlements with similar factual and legal complications.

As noted above, both the provision of relief on a per violative call basis, as well as

the estimated $300-500 that Settlement Class members will receive per call, are nearly

unprecedented. To the best of Class Counsel’s knowledge, in only two other TCPA

settlements (both settlements handled by Class Counsel here) has per call relief been

available, and in those instances the claim processes required the provision of call

records. See Hopwood v. Nuance Communications, Inc., No. 13-cv-2132, Dkt. 101-1,

(N.D. Cal.) (providing class members that submitted claim form with accompanying

proof $65 per call); Flanigan v. The Warranty Group, Inc., No. 2014 CH 00956 (Cir. Ct.

Cook Cty.) (providing class members that submitted claim form with accompanying

proof $50 per call). Also, in nearly all TCPA cases—and in those few based upon alleged

violation of the TCPA’s prohibition against calling members of the DNC Registry

specifically—class members’ single payment amount is often far less than is anticipated

here. See Hashw, 2016 WL 1729525, at *1, 4 (approving settlement providing class

members who received over 100 calls in violation of the TCPA a single $33 payment);

Ott et al. v. Mortgage. Invest. Corp., No. 14-cv-00645, Dkt. 146 at 2 (D. Or. Jan 5, 2016)

(providing a single $140 to each class member for defendants’ alleged repeated violations

of the TCPA’s Do Not Call provisions); see also e.g., Kazemi v. Payless Shoesource,

Inc., No. 3:09-cv-05142, Dkt. 94 (N.D. Cal. Apr. 2, 2012) (providing for a $25 voucher

to each class member); In re Jiffy Lube Int’l, Inc. Text Spam Litig., No. 3:11-md-02261,


13

Dkt. 97 (S.D. Cal. Feb. 20, 2013) (providing for a $20 voucher or $15 cash to each class

member); Arthur v. Sallie Mae, Inc., No. 2:10-cv-00198, Dkt. 266 (W.D. Wash. Sept. 17,

2012) (providing for a $20-40 cash payment to each class member); In re Capital One

TCPA Litig., 80 F. Supp. 3d at 789 (providing for $34 to each class member).

Ultimately, although settlement is meant to be a compromise, and it is expected

that a Class would not receive full relief for Defendants’ violations, Class Counsel

negotiated an outstanding settlement that is estimated to provide class members both the

per call relief they are entitled to by statute without a cumbersome claims process and

$300-500 in per call relief. The benefit conferred upon the Class by this Settlement is not

only outstanding, but it is rare, and strongly supports the requested fee.

2. Plaintiff’s Counsel (and the Settlement Class) Faced the Real Risk of Receiving Nothing.

The risk of receiving little or nothing is another significant factor in assessing the

reasonableness of a fee award. Yarrington, 697 F. Supp. 2d at 1062. This risk is not

merely hypothetical, as attorneys representing plaintiffs in class actions often devote

significant time and advanced costs only to lose despite their best efforts. See In re Xcel,

364 F. Supp. 2d at 994. Here, Class Counsel accepted this case on a contingency basis

knowing that there was a significant and real risk of receiving nothing for their services.

(Rapp Decl. ¶¶ 13-15.) Nevertheless, Counsel expended time and money, and forewent

the opportunity to work on other cases, in pursuit of a fair and reasonable solution for the

class. (Id.)


14

Relevant here, three of Defendants’ collectively asserted twenty-nine affirmative

defenses put the success of this litigation reasonably in jeopardy. First, Defendants

argued that their calls were exempt based on their claim that companies that place calls to

numbers on the registry erroneously, and that, “as part of [their] routine business

practice[s] . . . use a process to prevent telephone solicitations to any telephone number

of any list established pursuant to the do-not-call rules” come within the regulatory and

statutory “safe harbor.” See 47 C.F.R. 64.1200(c)(2)(i)(D); see also 47 U.S.C. §

227(c)(5)(C) (“It shall be an affirmative defense . . . that [a] defendant has established

and implemented, with due care, reasonable practices and procedures to effectively

prevent telephone solicitations in violation of . . . this subsection.”); Charvat v. NMP,

LLC, 656 F.3d 440, 448-49 (6th Cir. 2011) (acknowledging the establishment and

implementation of minimum reasonable procedures may act as an affirmative defense to

liability for calls made in violation of the TCPA’s do not call provisions). And, while

Kran and Class Counsel do not believe that Defendants’ policies were adequate to afford

such protection, there is very little case law on this issue (none in this Circuit) and at least

one decision supports Defendants’ argument. See Simmons v. Charter Communications,

Inc., 15-cv-317, 2016 WL 1257815 (D. Conn. March 30, 2016), appeal docketed, 2d Cir.

No. 16-1405. As such, this asserted defense called Plaintiff’s and Class Counsel’s

ultimate recovery into question.

Additionally, Defendants also raised consent as a defense, arguing that class

members voluntarily provided their telephone numbers to the Defendants in connection


15

with their previous subscriptions to Hearst’s San Francisco Chronicle newspaper.4 Some

courts have held that where a called party voluntarily provided their telephone number to

the caller—no matter the reason for providing it—that constitutes prior express

consent. See Roberts v. PayPal, Inc., No. 12-cv-0622, 2013 WL 2384242, at *4 (N.D.

Cal. May 30, 2013) (holding that the prior provision of a cell phone number to the caller

for any reason constituted prior express consent to be called at that number) aff’d, 621 F.

App’x 478 (9th Cir. 2015); Ryabyshchuck v. Citibank (S.D.) N.A., No. 11-cv-1236, 2012

WL 5379143, at *3 (S.D. Cal. Oct. 30, 2012); Baird v. Sabre Inc., No. 13-cv-999, 2014

WL 320205, at *2 (C.D. Cal. Jan. 28, 2014); but see In re Jiffy Lube Int’l, Inc., Text Spam

Litig., 847 F. Supp. 2d 1253, 1258n.7 (S.D. Cal. 2012) (noting that the court was “not

persuaded that a customer’s provision of a telephone number on [an] invoice . . . would

constitute prior express consent.”).

Defendants also asserted as an affirmative defense that the Class couldn’t be

certified under Fed. R. Civ. P. 23 (notwithstanding that it’s not really an affirmative

defense). While Class Counsel is confident that the Class (including the Settlement Class)

is readily certifiable, see Estrada v. iYogi, Inc., CV21301989WBSCKD, 2016 WL

310279, at *3 (E.D. Cal. Jan. 26, 2016) (noting that “plaintiffs would have a strong

chance of certifying the class given . . . that TCPA class actions are routinely certified);

see also, e.g., Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014)

(certifying class in TCPA action); Lee v. Stonebridge Life Ins. Co., No. C 11-0043 RS, 4 It should be noted that Plaintiff does not believe this is a viable defense to his claim, since he was not a former subscriber to the San Francisco Chronicle, and never provided his phone number to Defendants.


16

2013 WL 542854, at * 4 (N.D. Cal. Feb. 12, 2013) (same); Agne v. Papa John’s Int’l,

Inc., 286 F.R.D. 559, 572 (W.D. Wash. 2012) (same), Kran and Class Counsel are

likewise mindful of the numerous occasions in which class certification has been denied

on TCPA claims. See Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 107 (N.D. Ill.

2013) (collecting cases).

Finally, Class Counsel’s experience also allows them to acknowledge that

litigation can often go in unexpected directions so it’s always possible that Defendants

could prevail on one of their other defenses should the litigation proceed, and if that

happened, the Class, and ultimately Class Counsel, would obviously receive nothing at

all.

3. The Case Presented Significant Difficulties, and Plaintiff was Not Aided by Government Action.

Next, reaching this Settlement Agreement was no simple matter and there was no

government action to piggyback on top of. First, the Parties initially were far apart on

both the structure of the settlement and the amount to be paid and it took numerous

teleconferences and email exchanges before making any progress on those fronts. (Rapp

Decl. ¶ 6.) These communications ultimately culminated in a mediation before Judge

Infante, but even those efforts did result in a deal for the Class. (Id. ¶¶ 8-10.) Rather, the

Parties were only able to reach an agreement in principle after Judge Infante made a

mediator’s proposal that both sides accepted. (Id. ¶ 10.) And, even then, it still took

several more weeks, various exchanges between the Parties, and additional guidance


17

from Judge Infante before the final terms of the Settlement now before the Court was

reached. (Id.) Accordingly, this factor favors approval of the requested fee as well.

4. Plaintiff’s Counsel and Hearst’s Counsel Are Both Extremely Skilled Litigators.

Both Parties are represented by experienced and highly qualified counsel that have

reviewed the facts and law in this case and concluded that it is in the best interests of their

respective clients to resolve this matter on the terms memorialized in the Settlement. As

explained in Plaintiff’s Motion for Preliminary Approval, Class Counsel have extensive

experience in similar complex litigation and have been appointed class counsel in

numerous TCPA class actions. (See Edelson PC Firm Resume attached to the Rapp

Declaration as Exhibit 2-A); see also Ellison v. Steven Madden Ltd., No. 11-cv-5935,

Dkt. 73 at 9 (C.D. Cal.) (“[Attorneys at Edelson PC] specialize in litigating consumer

class actions and have pioneered the application of the TCPA[.]”); Kolinek v. Walgreens,

311 F.R.D. 483 (N.D. Ill. 2015) (serving as lead counsel in $11 million TCPA

settlement). They have also developed an in-depth understanding of the TCPA and have

successfully litigated emerging issues that continue to redefine its boundaries. See e.g.,

Satterfield v. Simon & Shuster, Inc., 569 F.3d 946 (9th Cir. 2009). Further, Hearst’s

Counsel, from a top-tier international law firm and the largest law firm in the state of

Minnesota, are equally skilled, and presented strong arguments in their client’s defense.

This factor supports the requested fees as well.


18

5. Counsel Expended Significant Time and Effort On This Case.

As further elaborated in the lodestar cross-check section below (see Section B

supra, Class Counsel has spent 606.65 hours on this matter equaling $281,784.25 in

straight billable time, all while passing up opportunities to take on other cases. (Rapp

Decl. ¶ 19.) This time was spent investigating Kran’s claims and those of the Class,

preparing the pleading, reviewing discovery, preparing mediation materials, mediating

this dispute with Judge Infante, negotiating the Settlement, preparing the necessary

settlement and notice papers, and ultimately obtaining approval from this Court. (Id.

¶¶ 16-18.) Class Counsel’s time and effort was not wasted, as Settlement Class Members

have an exceptional result to show for these efforts.

6. The Class Has Reacted Positively to the Settlement Agreement.

The deadline for class members to object, exclude themselves, or file claims has

yet to occur, but to date the reaction of the class has been overwhelmingly positive. There

are currently zero objections or opt-outs, and a significant number of class members have

already submitted claims. Also, Class Counsel doesn’t anticipate any opposition to the

requested fees based on the fact that they are seeking less in fees than was stated as the

potential maximum in the Notice. Class Counsel will update these numbers in their final

approval briefing and at the Final Approval Hearing, but, as it stands, this factor strongly

supports the requested fee.

7. The Requested Fee is Comparable to Percentages Awarded in Similar Cases.

Unlike some circuits, the Eighth Circuit has not established a benchmark


19

percentage award, but as noted above courts in this Circuit routinely award fees between

25% and 36% of the common fund, and courts in this District typically award 33%.

Yarrington, 697 F. Supp. 2d at 1064 (citing In re Xcel, 364 F. Supp. 2d at 998). In

relation to TCPA cases, the 33% norm that Class Counsel seek here is squarely in-line

with the percentage awarded in a TCPA settlement of this size and complexity. See In re

Capital One TCPA Litig., 80 F. Supp. 3d 781. The case of In re Capital One is

instructive. In Capital One, former-Chief of the U.S. District Court for the Northern

District of Illinois, James F. Holderman, conducted an analysis of attorneys’ fees

awarded in TCPA settlements, compiling data from seventy-one post-2010 TCPA class

action settlements and the fees awarded therein. What Judge Holderman determined was

that the typical amount class counsel should receive is 36% of the common fund through

the first $10 million of recovery. Id. at 807. While courts have deviated from this average

on occasion, they typically do so when the relief afforded by the settlement is below or

merely average—issues this Settlement doesn’t suffer from. See, e.g., Hashw, 2016 WL

1729525, at *9 (reducing request for 1/3 of a settlement fund where class members

received approximately $33). Additionally, the non-monetary benefits created by a class

action settlement are properly considered for purposes of determining fees. See Hall v.

Cole, 412 U.S. 1, 5 n.7 (1973) (noting that the common fund doctrine “must logically

extend, not only to litigation that confers a monetary benefit on others, but also litigation

which corrects or prevents an abuse which would be prejudicial to the rights and interests

of those others”).

Thus, Class Counsel’s request for 33% of the common fund is comparable to


20

requests made in similar class actions, including TCPA cases specifically, and thus,

should be approved.

B. A Lodestar Crosscheck Confirms the Reasonableness of the Requested Fees.

The Court has discretion to verify the reasonableness of the percentage of the

common fund awarded by cross-checking it against the lodestar. In re Xcel, 364 F. Supp.

2d at 999. This step is not mandatory and “does not trump the court’s primary reliance on

the percentage of the common fund method.” Id. (citing Petrovic, 200 F.3d at 1157). The

base “lodestar” amount is calculated by multiplying the hours reasonably expended by

class counsel by a reasonable hourly rate. Johnston, 83 F.3d at 244. This base lodestar

can then be adjusted based on the unique circumstances of the case by a “multiplier.” See

id. Importantly, performing a lodestar cross-check does not require “mathematical

precision nor bean counting” and there is no predefined range for the multiplier, which

can be justified by reference to multipliers used in other cases. In re Xcel, 364 F. Supp.

2d at 999.

In the Eighth Circuit, courts have approved lodestar cross check multipliers from

3.9 to 6.5. See In re Xcel, 364 F. Supp. 2d at 999 (approving fee award with a lodestar

cross-check multiplier of 4.7); In re Charter Communications, Inc., 2005 WL 4045741

(E.D. Mo. 2005) (approving fee award with a lodestar cross-check multiplier of 5.6); In

re St. Paul Travelers Securities Litigation, 2006 WL 1116118 (D. Minn. 2006)

(approving fee award with a lodestar cross-check multiplier of 3.9); In re UnitedHealth

Grp. Inc. PSLRA Litig., 643 F. Supp. 2d at 1106 (approving fee award with a lodestar


21

cross-check multiplier of 2.95). These multipliers are consistent with those awarded in

class actions nationwide. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1052–54 (9th

Cir. 2002) (surveying class actions nationwide and finding the average multiplier to be

3.32).

Multipliers in TCPA class action fee awards follow this trend. Indeed, in the only

TCPA decision from this district to utilize a lodestar cross-check, the court approved a

fee award with a 5.95 multiplier. See Hashw, 2016 WL 1729525 at *9. Other recent

TCPA decisions from across the country that utilized a lodestar cross check have

approved multipliers falling between 2 and 5. See, e.g., Lambert v. Buth-Na-Bodhage,

Inc., No. 14-cv-00514-MCE, Dkt. 36 (E.D. Cal. Nov. 20, 2015) (approving fee award

with a lodestar cross-check multiplier of 2.95); Kramer, No. 10-cv-02722-CW, Dkt. 148

(approving a fee award with a multiplier of 2.69); In re Jiffy Lube Int’l, Inc. Text Spam

Litig., No. 11-md-2261-JTM, Dkt. 97 (approving a fee award with a multiplier of 3.58);

Guttierrez v. Barclays Group, No. 10-cv-01012-DMS, Dkt. 57 (S.D. Cal. May 12, 2010)

(approving a fee award with a multiplier of 4.55); Adams v. AllianceOne Receivables

Mgmt., Inc., No. 08-cv-00248-JAH, Dkts. 115-1, 137 (S.D. Cal. 2012) (approving a fee

award with a lodestar cross-check multiplier of 3.81); McClintic v. Lithia Motors, Inc.,

No. 11-cv-00859-RAJ, Dkt. 51 (W.D. Wash. Oct. 23, 2012) (approving a fee award with

a lodestar cross-check multiplier of 3.1).


22

The work performed by Class Counsel5 is summarized in the following chart and

attached declaration:

ATTORNEY (Position)

FIRM YEARS OF EXPERIENCE

HOURS HOURLY RATE

TOTAL

Jay Edelson (Founder & CEO)

Edelson PC 20 37.3 $725 $27,042.50

Rafey S. Balabanian

(Nat’l Managing Partner)

Edelson PC

11 82.7 $625 $42,062.50

Benjamin Richman (Chicago Managing

Partner)

Edelson PC 7 122.6 $525 $64,365.00

Eve-Lynn Rapp (Partner)

Edelson PC 7 172.7 $500 $86,350.00

Jamie Holz (Associate)

Edelson PC 1 58.4 $295 $17,228.00

Law Clerks Edelson PC n/a 66.5 $215 $14,297.50 Stefan Coleman Law Offices

of Stefan Coleman

9 45.7 $450 $20,565.00

Robert K. Shelquist Lockridge Grindal Nauen

26 10.25 $785 $8,046.25

Paralegals Lockridge Grindal Nauen

n/a 10.5 $175 1,837.50

TOTAL 606.65 $281,784.25

A lodestar analysis is properly based on Class Counsel’s current hourly rates.

See Skelton v. Gen. Motors Corp., 661 F. Supp. 1368, 1382 (N.D. Ill. 1987), aff’d in part 5 Our firm’s practice generally, which we followed in this case, is to use a collaborative effort in drafting of all major court filings, exhibits, and other important documents. (Rapp Decl. ¶ 21.) Although several lawyers were involved in the litigation of this matter, each made a conscious effort to minimize the duplication of work and adjusted for time deemed to be unnecessary or duplicative. (Id.) In fact, many of the attorneys were enlisted to perform specific litigation tasks. (Id.) And, by taking this case on a contingency basis and not being paid by the hour, we had an incentive to conduct our efforts efficiently. (Id. ¶ 15.)


23

and rev’d in part on other grounds 860 F.2d 250 (7th Cir. 1988). The rates charged by

attorneys at Edelson PC correlate to their respective experience, and are at or below the

average rates of attorneys with similar backgrounds and experience litigating similarly

complex cases nationwide. (Rapp Decl. ¶ 21.) They are the same rates Edelson PC

charges when representing corporate clients on an hourly basis (e.g., when defending

class actions or handling their corporate matters), and the same rates that are routinely

approved by courts nationwide. (Id.) See, e.g., Gross v. Symantic Corp., No. 3:12-cv-

00154-CRB, Dkt. 88 (N.D. Cal. March 21, 2014) (finding Edelson PC’s current “hourly

rates are reasonable and have previously been approved by other courts throughout the

country” in awarding fees based on the lodestar method); Theis v. AVG Techs. USA, Inc.,

No. 1:12-cv-10920-RGS, Dkt. 116 (D. Mass. May 5, 2014) (same); Goodman v.

Hangtime, Inc., No. 14-cv-01022, Dkt. 124 (N.D. Ill. Sept. 29, 2015) (same); Kulesa v.

PC Cleaner, Inc., No. 12-cv-725, Dkt. 101 (C.D. Cal. Aug. 26, 2014) (same) Robles v.

Lucky Brand Dungarees, Inc., No. 3:10-cv-04846-MMC, Dkt. 105 (N.D. Cal. May 10,

2013) (same).

As the chart above reflects, Plaintiff’s Counsel’s base lodestar equals $281,784.25.

Multiplying that total lodestar of $281,784.25 by approximately 2.5 results in the agreed

upon fees of $700,000 (notwithstanding the expenses of $10,451.17 Plaintiff’s Counsel

incurred in litigating this action). This multiplier is on par with or lower than multipliers

awarded in similar cases and thus, confirms the reasonableness of the 33% of the

common fund requested.


24

C. A $1,000 Incentive Award to Plaintiff Is Reasonable and Should BeApproved.

The agreed-upon incentive award of $1,000 for Kran’s services as class

representative is also a fair and reasonable one. “Small incentive awards, which serve as

premiums to any claims-based recovery from the Settlement, promote the public policy

of encouraging individuals to undertake the responsibility of representative lawsuits.”

Yarrington, 697 F. Supp. 2d at 1068. In deciding whether an incentive award is

reasonable, factors relevant to the court’s inquiry include the actions the plaintiff has

taken to protect the interests of the class, the amount of time and effort the plaintiff

expended in pursuing the litigation, and the degree to which the class has benefitted from

those actions. In re U.S. Bancorp, 291 F.3d at 138 (citing Cook v. Niedert, 142 F.3d

1004, 1016 (7th Cir. 1998)).

These factors are readily satisfied here. Kran has worked alongside Class Counsel

and been actively engaged in every stage of the litigation—reviewing the complaint and

other documents, equipping Class Counsel with the information needed to pursue their

(and the Class’s) claims, and responding to requests for additional information

throughout the settlement process. (Rapp Decl. ¶ 25.) Were it not for Kran’s efforts and

contributions to the litigation, the Class would not have obtained the substantial benefit

conferred by the Settlement. (Id.) Further, the proposed incentive award of $1,000 is well

below awards approved in similar class action settlements. See Hashw, 2016 WL

1729525 (approving $15,000 incentive award to named plaintiff in TCPA class action

settlement); Capital One, 80 F. Supp. 3d at 809 (granting requested incentive awards of


25

$5,000 for each named plaintiff in a TCPA class action settlement); see also Yarrington,

697 F. Supp. 2d at 1069 (noting $5,000 incentive award is “at the modest end of the

spectrum”). Accordingly, the requested incentive award is reasonable and should be

approved.

IV. CONCLUSION

For the reasons stated above, Kran respectfully requests that the Court (i) approve

the requested fee award in the amount of $700,000, (ii) approve the requested incentive

award of $1,000, and (iii) award such other and further relief the Court deems equitable

and just.


26

Respectfully submitted,


Dated: August 19, 2016 By: /s/ Eve-Lynn J. Rapp One of Plaintiff’s Attorneys

Robert K. Shelquist Attorney No. 21310X [email protected] Lockridge Grindal Nauen P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, Minnesota 55401 Tel: 612.339.6900 Fax: 612.339.0981

Rafey S. Balabanian (Admitted pro hac vice) Attorney No. 6285687 [email protected] Edelson PC 123 Townsend Street, Suite 100 San Francisco, California 94107 Tel: 415.212.9300 Fax: 415.373.9435

Benjamin H. Richman (Admitted pro hac vice) Attorney No. 6285687 [email protected] Eve-Lynn J. Rapp (Admitted pro hac vice) Attorney No. 6300632 [email protected] Edelson PC 350 North LaSalle Street, 13th Floor Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378

Stefan Coleman (Admitted pro hac vice) [email protected] LAW OFFICES OF STEFAN COLEMAN, LLC 201 South Biscayne Boulevard, 28th Floor Miami, Florida 33131 Tel: 877.333.9427 Fax: 888.498.8946


27

CERTIFICATE OF SERVICE

I, Eve-Lynn J. Rapp, an attorney, hereby certify that on August 19, 2016, I served the above and foregoing Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Approval of Class Action Settlement by causing a true and accurate copy of such paper to be filed and transmitted to all counsel of record via the Court’s CM/ECF electronic filing system, on this the 19th day of August 2016.

/s/ Eve-Lynn J. Rapp


1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA


Plaintiff,

v.

HEARST COMMUNICATIONS, INC., a Delaware corporation, A MARKETING RESOURCE, LLC, a Minnesota limited liability company,

Defendants.

Case No. 0:15-cv-02058-MJD-BRT

CERTIFICATE OF COMPLIANCE WITH L.R. 7.1(f) AND L.R. 7.1(h)

I, Eve-Lynn J. Rapp, attorney for Plaintiff Neil Kran, hereby certify that

Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Award of

Reasonable Attorneys’ Fees, Expenses, and Incentive Award complies with the limits

set forth in Local Rule 7.1(f), and the type-size limit of L.R. 7.1(h). The above and

foregoing Memorandum contains 6,686 words. This word count was calculated using

Microsoft Word for Mac 2011’s word count function, which was applied specifically to

include all text, including headings, footnotes, and quotations.

CASE 0:15-cv-02058-MJD-BRT Document 56-1 Filed 08/19/16 Page 1 of 3

2

Dated: August 19, 2016

Respectfully submitted,


By: /s/Eve-Lynn J. Rapp One of Plaintiff’s Attorneys

Robert K. Shelquist Attorney No. 21310X [email protected] LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, Minnesota 55401 Tel: 612.339.6900 Fax: 612.339.0981

Rafey S. Balabanian (Admitted pro hac vice) Attorney No. 6285687 [email protected] EDELSON PC 123 Townsend Street, Suite 100San Francisco, California 94107 Tel: 415.212.9300 Fax: 415.373.9435

Benjamin H. Richman (Admitted pro hac vice) Attorney No. 6285687 [email protected] Eve-Lynn J. Rapp (Admitted pro hac vice) Attorney No. 6300632 [email protected] EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378

Stefan Coleman (Admitted pro hac vice) [email protected] OFFICES OF STEFAN COLEMAN, LLC 201 South Biscayne Boulevard, 28th Floor Miami, Florida 33131Tel: 877.333.9427 Fax: 888.498.8946


3

CERTIFICATE OF SERVICE

I Eve-Lynn J. Rapp, an attorney, hereby certify that on August 19, 2016, I served the above and foregoing Certificate of Compliance with L.R. 7.1(f) and L.R. 7.1(h) by causing a true and accurate copy of such paper to be filed and transmitted to all counsel of record via the Court’s CM/ECF electronic filing system, on this 19th day of August 2016.

/s/ Eve-Lynn J. Rapp


Documents

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · ii C. A $1,000 Incentive Award to Plaintiff Is Reasonable and Should Be Approved.....24 IV. CONCLUSION.....25 CASE 0:15-cv-02058-MJD-BRT