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Americana Art China Co., Inc. v. Foxfire Printing & Packaging, Inc.

United States Court of Appeals, Seventh Circuit

February 18, 2014

AMERICANA ART CHINA COMPANY, INC., Plaintiff-Appellant,
v.
FOXFIRE PRINTING AND PACKAGING, INC., Defendant-Appellee

Argued November 13, 2013.

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:08-cv-06992--Frederick J. Kapala, Judge.

For AMERICANA ART CHINA COMPANY, INC., individually and as the representative of a class of similarly-situated persons, Plaintiff - Appellant: David M. Oppenheim, Attorney, ANDERSON & WANCA, Rolling Meadows, IL.

For FOXFIRE PRINTING AND PACKAGING, INC., Defendant - Appellee: Eugene J. Schiltz, Attorney, COLEMAN & ASSOCIATES, Chicago, IL.

For CONTINENTAL CASUALTY COMPANY, Intervenor - Appellee: Christopher R. Carroll, Attorney, CARROLL MCNULTY & KULL, Basking Ridge, NJ.

Before MANION, KANNE, and HAMILTON, Circuit Judges.

OPINION

Page 244

Kanne, Circuit Judge.

Counsel for the plaintiff contests the district court's reduction of an attorney fee award negotiated as part of a class action settlement between plaintiff, defendant, and defendant's

Page 245

insurance carrier after defendant admitted to liability for violations of the Telephone Consumer Protection Act of 1991 (" TCPA" ), 47 U.S.C. § 227. The appeal was uncontested, but plaintiff's counsel must not have been pleased with the tenor of oral argument. Roughly a week after appearing in court, the parties attempted a Rule 42(b) dismissal. We decline to accept the voluntary dismissal, and affirm the district court's fee reduction.

I. Background

This is a " fax-blasting" case. In 2008, the defendant faxed unsolicited advertisements to tens of thousands of recipients in violation of the TCPA. Plaintiff Americana Art China Company, Incorporated, is class representative. In October 2011, the defendant tentatively settled for a judgment against it in the amount of $18 million, provided that its out-of-pocket expenses were limited to $75,000, with the remainder recoverable only from its insurance carriers, Hartford and Continental.

The agreement between Americana and the defendant prompted Continental (but not Hartford) to intervene. In October 2012, a second proposed class action settlement was reached, this time between Americana, the defendant, and Continental. In it, Continental agreed to make a total of $6.1 million available to the class members to resolve its own liability. The total is approximately equal to the number of faxes sent (110,853) times the per-fax damages figure offered by Continental ($55.03). The ...


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