United States District Court, N.D. Illinois, Eastern Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Robert Kolinek, individually and on behalf of all others
similarly situated, Plaintiff: Benjamin Harris Richman,
Edelson P.C., Chicago, IL; Stefan Louis Coleman, Law Offices
of Stefan Coleman, LLC, Miami, Fl; Christopher Lillard Dore,
Edelson PC, Chicago, IL.
Walgreen Co., an Illinois corporation, Defendant: Bradley
Joseph Andreozzi, LEAD ATTORNEY, Justin O'Neill Kay,
Drinker Biddle & Reath LLP, Chicago, IL.
OPINION AND ORDER
F. KENNELLY, United States District Judge.
2013, Robert Kolinek filed suit against Walgreen Co.
(Walgreens) on behalf of a class of similarly situated
Walgreens customers. Kolinek alleged that Walgreens had made
unsolicited calls to him and other current and former
customers on their cellular telephones in violation of the
Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C.
§ 227(b)(1)(A)(iii). After a period of contested
litigation, the parties engaged in mediation, conducted by
the Honorable Wayne R. Andersen, a highly respected retired
judge of this court. The parties agreed to a class-wide
settlement of Kolinek's claims that would provide both
injunctive and monetary relief to members of Kolinek's
putative class. The Court preliminarily approved the
settlement in April 2015 and also approved a program of
individual notice to potential class members, combined with
has moved for final approval of the proposed class
settlement. Kolinek has also requested an incentive award,
and his counsel have petitioned for an award of
attorney's fees and costs. A number of class members have
submitted objections challenging the settlement, the proposed
fee award, and the incentive award. One of those objectors,
Todd Spann, has also moved for attorney's fees for his
counsel. For the reasons stated below, the Court grants final
approval of the settlement agreement and grants Kolinek's
petition for fees, costs, and an incentive award. The Court
also denies objector Spann's motion for attorney's
History of the litigation
indicated above, Kolinek filed this suit in July 2013.
According to his complaint, Kolinek first filled a
prescription at a Walgreens store sometime between early 2002
and 2012. At the time, the Walgreens pharmacist told Kolinek
that his phone number " was needed for verification
purposes ( i.e., if another customer named Robert
Kolinek attempted to fill a prescription at the same
Walgreens, the pharmacist would be able to confirm the
correct person using the phone number on record)."
Compl. ¶ 18. In early 2012, Kolinek began receiving
prerecorded calls from Walgreens on his cellular telephone
reminding him to fill his prescriptions at a Walgreens
pharmacy. Kolinek alleged that Walgreens made these "
refill reminder" calls as a means to increase its share
of the pharmacy market, contacting millions of customers who
had previously filled prescriptions at Walgreens stores to
encourage them to do so again in the future. Kolinek claimed
that Walgreens had not obtained those customers' prior
express consent to make those calls. Accordingly, Kolinek
alleged that Walgreens had violated the TCPA, which provides:
It shall be unlawful for any person within the United States
. . . to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using . . . an artificial or prerecorded voice . . .
to any telephone number assigned to . . . a cellular
telephone service . . . .
47 U.S.C. § 227(b)(1)(A)(iii). Each violation of the
TCPA carries with it $500 in statutory damages, and willful
violations carry $1500 in statutory damages.
Walgreens moved to dismiss Kolinek's complaint for
failure to state a claim. In its motion, Walgreens argued
that Kolinek and his putative class of similarly situated
individuals consented to receive prescription reminder calls
by providing their cellular telephone numbers to Walgreens.
Alternatively, Walgreens argued that even without prior
express consent, the calls were " made for emergency
purposes," 47 U.S.C. § 227(b)(1)(A), and therefore
did not violate the TCPA. Following full briefing of these
issues, the Court granted Walgreens's motion to dismiss.
The Court observed that the TCPA does not define " prior
express consent" but that pursuant to the Administrative
Orders Review Act (more commonly known as the Hobbs Act), the
Federal Communications Commission's (FCC) interpretation
of the prior express consent defense is binding on federal
district courts. Citing the FCC's statement that "
persons who knowingly release their phone numbers have in
effect given their invitation or permission to be called at
the number which they have given, absent instructions to the
contrary," In re Rules & Regs. Implementing Tel.
Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 ¶
31 (Oct. 16, 1992) (" 1992 Order" ), the Court held
that Kolinek had given Walgreens " prior express
consent" and his claim was therefore barred. The Court
dismissed Kolinek's complaint with prejudice.
See Kolinek v. Walgreen Co., No. 13 C 4806,
2014 WL 518174 (N.D. Ill. Feb. 10, 2014) ( Kolinek 1
then filed a motion to reconsider, which Walgreens opposed.
Kolinek argued that the Court had misunderstood the FCC's
1992 Order and its other orders interpreting the prior
express consent defense. In particular, Kolinek directed the
Court's attention to FCC orders issued in 2008, 2012, and
2014, the last one issue shortly after the Court dismissed
the case. Those orders together indicated to the Court "
that the FCC considers the scope of a consumer's consent
to receive calls to be dependent on the context in which it
is given--contrary to what the Court had seen in the 1992
Order as a general rule that consent for one purpose means
consent for all purposes." Kolinek v. Walgreen
Co., No. 13 C 4806, 2014 WL 3056813, at *3 (N.D. Ill.
July 7, 2014) ( Kolinek 2 ). The Court held that if
discovery proved true Kolinek's allegation that he gave
his number only when asked to provide it for verification
purposes (an allegation that the Court at that juncture was
required to take as true, see Rooni v. Biser, 742
F.3d 737, 738 (7th Cir. 2014)), Walgreens would be unable to
prevail on a prior express consent defense. Kolinek
2, 2014 WL 3056813, at *4. The Court also noted that
further factual development might reveal that Kolinek and
other members of the putative class gave their cell phone
numbers to Walgreens in a manner that would constitute prior
express consent, but that this could not be demonstrated
before undertaking discovery. Id.
the time that had passed since the initial briefing on
Walgreens's motion to dismiss, the Court asked the
parties to present their arguments on Walgreens's
alternative basis for dismissal--that the prescription
reminder calls fell under the TCPA's emergency purposes
exception--via oral argument. Both parties participated in
oral argument before the Court in July 2014. In August 2014,
the Court issued a written order rejecting Walgreens's
emergency purposes argument, explaining:
If the agency charged with interpreting the TCPA--namely, the
Federal Communications Commission--had read the exception as
covering any call to a customer about prescriptions,
prescription refills, or anything of the sort, that
interpretation would not only bind the Court but would also
dictate the conclusion in this case. See CE
Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443,
449-50 (7th Cir. 2010). But in fact there is no such
interpretation of the TCPA by the FCC. The allegations in the
complaint do not say enough about the nature or contents of
the call to make it appropriate to dismiss the complaint at
this stage of the case based on this particular affirmative
defense. As with the express consent defense, further factual
development is necessary.
Kolinek v. Walgreen Co., No. 13 C 4806, dkt. no. 66,
at 2 (N.D. Ill. Aug. 11, 2014) ( Kolinek 3 ). The
Court therefore denied Walgreens's motion to dismiss,
whereupon Walgreens answered
Kolinek's complaint, denying any and all liability and
asserting numerous affirmative defenses. See
Def.'s Answer, dkt. no. 68.
Walgreens answered the complaint, the parties began to
discuss the possibility of settlement. Informal discovery
transpired, and the parties had teleconferences throughout
August and September 2014, when they agreed to participate in
private mediation. They engaged in a day-long mediation
session with retired Judge Wayne Andersen on October 15,
2014, at the close of which Kolinek made a settlement
proposal. Walgreens counteroffered a week later, and on
October 24, 2014, the parties came to an agreement in
principle to resolve the case and avoid protracted
litigation, subject to additional confirmatory discovery.
to mediation, the parties informally exchanged information
regarding the prescription refill reminder program, including
the ways in which Walgreens obtained telephone numbers, how
it obtained consent, how the calls were made, and how
Walgreens kept its records. Kolinek also served formal
written discovery requests, and his counsel took the
deposition of Walgreens's Rule 30(b)(6) witness,
Christopher Helzerman, in January 2015. Kolinek learned
through discovery that Walgreens typically collected
customers' phone numbers when they provided personal
information in the course of filling or refilling
prescriptions. Walgreens would ask customers to identify
whether the phone numbers provided were cell phones or
landlines. Although Walgreens allegedly determined that it
would make prescription refill reminder calls only to
landlines, numerous customers ultimately received calls on
their cellular phones. Kolinek also learned that Walgreens
provided call recipients an easy way to opt out of receiving
future calls (by simply pressing " 8" on their dial
pads), but over the life of the program only 1.5% of all
recipients opted out. Meanwhile, many customers appreciated
the calls, and customers often used the system to refill
their prescriptions at Walgreens.
March 26, 2015, Kolinek moved for preliminary approval of a
class-wide settlement. The Court instructed class counsel to
make certain changes to the proposed claim form. Once the
claim form was revised to comply with the Court's
instructions, the Court granted preliminary approval of the
settlement on April 3, 2015.
The settlement agreement and proposed fee awards
provided Kolinek and Kurtzman Carson Consultants (KCC), a
third party administrator, with records that identified the
phone numbers to which it had placed prescription refill
reminder calls. KCC analyzed the data and determined that
roughly 9.2 million of the numbers dialed were cell phones.
The proposed settlement defines the settlement class as
including all individuals in the United States to whom
Walgreens placed a prerecorded prescription refill reminder
call to their cellular phone. These individuals, if they did
not opt out of the settlement, would agree to release any and
all claims against Walgreens based on its making of
prerecorded prescription refill reminder calls in exchange
for both prospective and retrospective relief from Walgreens.
the settlement requires Walgreens to implement new safeguards
to ensure that it knows whether the phone numbers in its
database belong to cellular telephones, including expert
analysis, third-party data, and improved customer
confirmation practices. Walgreens also agrees to provide
customers with the option to elect to receive or stop
receiving prescription reminder calls. Walgreens has promised
to implement this prospective relief within a year of the
effective date of the settlement.
the settlement requires Walgreens to establish a settlement
fund of $11 million, from which will be drawn all claim
awards, administrative costs, and any incentive and
attorney's fee awards. Each class member who submitted a
valid claim no later than fourteen days before the
Court's final approval hearing will be entitled to a
pro rata share of the money remaining in the
settlement fund after those settlement administration
expenses, incentive awards, and attorney's fee awards
have been deducted. The settlement also provides that
uncashed checks issued to claiming class members and other
unclaimed money remaining in the settlement
fund after payment of all approved claims, expenses, and
awards will be distributed to settlement class members with
approved claims unless doing so is impracticable, in which
case the Court will direct the parties as to what to do with
the funds. If so many settlement class members submit
approved claims that the pro rata share of the fund
available to each claimant will be less than fifteen dollars,
each claiming Settlement Class Member will have a second
opportunity to exclude himself or herself from the Settlement
(the " downstream opt-out" ), provided that he or
she exercises such option within forty-five (45) days after
the Settlement Administrator has posted notice of the amount
of the payment per Approved Claim on the settlement website.
In such instance, Walgreens may choose in its discretion to
pay such Settlement Class Members who have submitted Approved
Claims the difference between the amount they received under
the Settlement and fifteen dollars ($15), thereby mooting the
Class Action Settlement Agreement, dkt. no. 98-1 ¶
indicated above, the settlement agreement contemplates that
the settlement fund will provide reimbursement of expenses,
an attorney's fee award for Kolinek's counsel, and an
incentive award for Kolinek. In his motion for approval of
attorney's fees, expenses, and incentive award, Kolinek
seeks roughly $3.15 million to cover the costs of notice and
settlement administration; $2,824,200 in attorney's fees
(representing 36% of the settlement fund after deducting from
the total amount the costs of notice and administration
pursuant to Pearson v. NBTY, Inc., 772 F.3d 778, 781
(7th Cir. 2014), and Redman v. RadioShack Corp., 768
F.3d 622, 630 (7th Cir. 2014), and the value of an incentive
award for Kolinek); and a $5,000 incentive award for Kolinek.
notice sent to the class set a deadline for submission of
objections. Timely objections were submitted jointly by
Gleith Cozby, Sharon Hughes, Christinna Oldham, and Rendee
Bullard, and individually by Melinda Franz, Phyllis Mehl,
Betty Morgan, William Mann, Robert Habermann, Rebecca Thomas,
Pamela Sweeney, Paige Nash, Lyndy Streight, Gary Sibley, Todd
Spann, and Michael Beskine. Hughes, Oldham, and Spann
ultimately withdrew their objections to the proposed
other apparent objections were sent to one or more of the
attorneys, including those submitted by Isela Gonzales, Lisa
Ray, Ashley McClure, and Dr. Kenneth M. Hoffman, but these
did not meet the preliminary approval order's
requirements for objections. Neither did objections filed by
Jimmy Fuzzell and Rita Hartsell, whose objections were
received after the deadline for submitting objections, and
those filed by Mehl, Habermann, and Thomas, all of whom
failed to provide their telephone numbers as required by the
preliminary approval order. The Court has nonetheless
considered the points made by all who submitted objections.
Certification of the proposed settlement class
proposed settlement class is defined as " all
individuals in the United States to whom Walgreens placed a
Prerecorded Prescription Call to their cellular
telephone," The term Prerecorded Prescription Calls is
defined as " any prerecorded voice prescription refill
reminder call to a cellular telephone placed by Walgreens
and/or any third parties acting on its behalf."
Settlement Agreement, dkt. no. 137-1, at 121-22.
first question the Court must address is whether the class
meets the requirements for class certification set forth in
Federal Rule of Civil Procedure 23. A court may certify a
class if the party seeking certification meets all the
requirements of Rule 23(a) and the requirements of Rule
23(b)(1), (2), or (3). Oshana v. Coca-Cola Co., 472
F.3d 506, 513 (7th Cir. 2006).
Rule 23(a) requirements
23(a) requires the party seeking certification to demonstrate
that the members of the class are so numerous that
joinder is impracticable (numerosity); there are questions of
law or fact common to the proposed class (commonality); the
class representative's claims are typical of the claims
of the class (typicality); and the representative will fairly
and adequately represent the interests of the class (adequacy
of representation). Fed.R.Civ.P. 23(a)(1)--(4). Numerosity is
typically satisfied where there are at least forty members of
a putative class. See, e.g., Pruitt v. City of
Chicago, 472 F.3d 925, 926-27 (7th Cir. 2006).
Commonality " requires the plaintiff to demonstrate that
the class members 'have suffered the same injury' . .
. ." Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quoting
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157,
102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). " Their claims
must depend on a common contention" that " must be
of such a nature that it is capable of classwide
resolution--which means that determination of its truth or
falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke."
Wal-Mart, 131 S.Ct. at 2551. Typicality is satisfied
when a plaintiff's claim " arises from the same
event or practice or course of conduct that gives rise to the
claims of other class members and his or her claims are based
on the same legal theory." De La Fuente v.
Stokely--Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.
1983). Lastly, the adequacy of representation requirement
involves two inquiries: whether the plaintiff's attorney
is qualified, experienced, and capable of conducting this
type of litigation, and whether the named plaintiff's
interests are not antagonistic to those of the class.
See, e.g., Rosario v. Livaditis, 963 F.2d
1013, 1018 (7th Cir. 1992).
undisputed that the proposed class meets the numerosity
requirement. Over nine million individuals allegedly received
prerecorded prescription refill reminder calls from Walgreens
on their cellular telephones.
handful of objectors claim that the settlement class should
not be certified because commonality is lacking, Kolinek is
not an adequate representative of the class, or his claims
are not typical of the class. Citing the Supreme Court's
recent grant of certiorari in Spokeo v. Robins, 135
S.Ct. 1892, 191 L.Ed.2d 762 (2015), objector Streight
contends that Kolinek is an inadequate representative because
he has not sustained an injury-in-fact and thus cannot
demonstrate standing to sue in federal court. Objector Sibley
argues that Kolinek is an inadequate class representative and
his claims are atypical because some class members received
numerous prescription refill reminder calls from Walgreens,
and those class members' potential damages for
Walgreens's violations of the TCPA are therefore much
higher than those available to a class representative
alleging only one or a few TCPA violations. Objector Nash
makes a general claim (without explaining her rationale) that