United States District Court, N.D. Illinois, Eastern Division
VINCENT LEUNG, on behalf of himself and all others similarly situated, Plaintiff,
XPO LOGISTICS, INC., Defendant.
MEMORANDUM OPINION AND ORDER
E. Chang, Judge
receiving a prerecorded-voice call inquiring about the
quality of his IKEA furniture delivery, Vincent Leung sued
the caller on behalf of himself and others similarly
situated, arguing that the call violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227. R. 1, Compl. The
parties engaged in discovery and underwent mediation, and
finally arrived at a proposed settlement agreement. After a
hearing, the Court conditionally approved a class and granted
preliminary approval of the settlement agreement. R. 141,
10/19/17 Minute Entry; R. 142, Order Granting Preliminary
Approval. The settlement agreement (with minor adjustments
agreed to by the parties, R. 143) is now before the Court for
final approval. The Court held a fairness hearing on March 7,
2018. As discussed at that hearing, the motion for final
approval of the settlement is granted; the only question
remaining was the Plaintiff's motion for an incentive
award and attorneys' fees. The incentive award is granted
as proposed, and the attorneys' fees are granted in part
and denied in part. See R. 144, Mot. Fees.
Attorney's fees will be limited to one-third of the
settlement fund, net of administrative costs and the
April 2015, Vincent Leung (the named plaintiff in this case)
bought two mirrors from the IKEA store in Schaumburg,
Illinois. R. 157, Leung Dep. 20:2-5, 20:24-21:1. In a rush
and with two small children in tow, Leung opted to have the
mirrors delivered by IKEA's next-day delivery service.
Leung Dep. 23:7-14. Leung's wife wrote down Leung's
cell phone number on a form while he watched; Leung signed
and initialed the form. Id. 25:24-26:18. The next
day, Leung received an automated voice message and a text
message notifying him that the delivery was imminent. Compl.
¶ 14. These messages came from Defendant XPO Logistics.
Compl. ¶ 14. The mirrors were delivered without issue.
Leung Dep. 32:5-11.
the delivery, Leung received another call from XPO Logistics.
Compl. ¶ 15. This call used a pre-recorded or artificial
voice, and asked Leung to complete a survey regarding the
delivery service. Id.; see also R. 157,
IKEA Call Script. Irked by the post-delivery call, Leung
complained to a friend, who referred Leung to the Keogh Law
firm. Leung Dep. 15:23-18:12. Keogh Law filed a lawsuit on
behalf of Leung, and sought to certify a class of similarly
situated consumers. Compl. The complaint alleged that XPO
Logistics violated the Telephone Consumer Protection Act, 47
U.S.C. § 227, by making calls to cell phones
“using [an] automatic telephone dialing system or an
artificial or prerecorded voice” without express
consent. See Compl. ¶ 33; 47 U.S.C. §
parties engaged in extensive and, at times, intensely
disputed discovery. R. 56, 76, 83, 113, 127, 132; see
also R. 149, Mot. Final Approval at 5. They also engaged
in three mediation sessions in front of, separately, two
former federal judges (Judge Wayne Andersen and Judge James
Holderman), both of Judicial Arbitration and Mediation
Services, Inc. (better known as JAMS). Id. The
mediation sessions involved detailed argument and briefing.
Id. After the third mediation session, the parties
were able to reach an agreement. Id.
proposed settlement agreement defines the settlement class as
“the parties whose cellular telephone numbers are
identified in the call data produced in this litigation
… where XPO or its subsidiary placed a pre-recorded
post-delivery survey call after May 1, 2011 relating to an
IKEA delivery.” Mot. Final Approval Exh. 1, Settlement
Agreement § 2.25. The Settlement Agreement requires XPO
to create a non-reversionary settlement fund of $7, 000, 000.
Settlement Agreement § 2.34. Class members who file
valid claims will receive cash payments from the fund.
Settlement Agreement § 5.1. The Settlement provides for
a robust notice plan and a streamlined claim process.
See Settlement Agreement §§ 10.1-10.2. Any
funds that cannot be feasibly distributed to class members
will be donated to a cy pres recipient, the National
Consumer Law Center. Settlement Agreement § 12.3.
(through his counsel) also filed a motion for attorneys'
fees, costs, and a service award. Mot. Fees. The motion seeks
an incentive payment of $10, 000 to Leung. Id. at 1.
Leung's counsel, Keogh Law, Ltd., requests attorneys'
fees of $2, 333, 334 (equal to one-third of the total
settlement fund), plus compensation of $52, 458.90 for
counsel's out-of-pocket litigation costs. R. 144, Mot.
Fees at 1; Mot Final Approval at 11. The fees, costs, and
incentive award would be taken out of the settlement fund.
Settlement Agreement § 2.34.
first step in evaluating the settlement is to determine
whether a class can be certified. See Fed. R. Civ.
P. 23(e) (“The claims, issues, or defenses of a
certified class may be settled, voluntarily dismissed,
or compromised only with the court's approval.”
(emphasis added)). To be certified, the class must meet the
requirements of Federal Rule of Civil Procedure 23.
Harriston v. Chi. Tribune Co., 992 F.2d 697, 703
(7th Cir. 1993). Under Rule 23(a), the class must meet the
requirements of numerosity, commonality, typicality, and
adequacy. Fed.R.Civ.P. 23(a). Additionally, the class must
satisfy at least one of the conditions of Rule 23(b).
Fed.R.Civ.P. 23(b); Arreola v. Godinez, 546 F.3d
788, 794 (7th Cir. 2008). In this case, the relevant Rule
23(b) requirement is that “the questions of law or fact
common to class members” must “predominate over
any questions affecting only individual members, and [ ] a
class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.”
Fed.R.Civ.P. 23(b)(3). The Court will evaluate each
requirement in turn.
in Rule 23(a) is the requirement that the proposed class must
be definite enough for the class to be ascertained.
Alliance to End Repression v. Rochford, 565 F.2d
975, 977 (7th Cir. 1977); Oshana v. Coca-Cola Co.,
472 F.3d 506, 513 (7th Cir. 2006). In general, this means
that a class must be clearly defined by objective criteria.
Mullins v. Direct Digital, LLC, 795 F.3d 654, 659-60
(7th Cir. 2015). Classes defined by vague or subjective
criteria, or classes defined only in terms of success on the
merits (so-called “fail-safe classes”), fail the
ascertainability requirement. Id. The class
definition in this case, however, does not suffer from any of
those shortcomings. The class defined in the Settlement
Agreement is “the parties whose cellular telephone
numbers are identified in the call data produced in this
litigation … where XPO or its subsidiary placed a
pre-recorded post-delivery survey call after May 1, 2011
relating to an IKEA delivery.” Settlement Agreement
§ 2.25. This class definition articulates an
identifiable class of individuals who have been harmed in a
particular, concrete way. The proposed class as defined by
the Settlement Agreement satisfies the ascertainability
Rule 23(a)(1), a class must be “so numerous that
joinder of all members is impracticable.” Fed.R.Civ.P.
23(a)(1). Although there is no bright-line test for
numerosity, courts have long commented that a class of forty
or more is enough to satisfy Rule 23(a)(1). See,
e.g., Swanson v. Am. Consumer Indus., Inc., 415
F.2d 1326, 1333 n.9 (7th Cir. 1969); Oplchenski v.
Parfums Givenchy, Inc., 254 F.R.D. 489, 495 (N.D. Ill.
2008); Fauley v. Drug Depot, Inc., 2018 WL 587150,
at *4 (N.D. Ill. Jan. 29, 2018). At last count, the class in
this case had 311, 013 members, Mot. Final Approval at 1
n.1-enough to make joinder of all members obviously
impracticable. The numerosity requirement is clearly
23(a)'s second requirement is that “there are
questions of law or fact common to the class.”
Fed.R.Civ.P. 23(a)(2). Commonality is satisfied if the class
members' claims “depend upon a common
contention.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011) (citations and quotation marks
omitted). The common contention 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.” Id. Commonality is
satisfied in this case. All the class claims depend upon the
common contention that XPO violated the TCPA by making an
unsolicited, prerecorded survey call to the class
members' cell phones following an IKEA delivery. Every
one of the plaintiffs' claims rises and falls on the
question of consent.
TCPA unambiguously prohibits prerecorded voice calls to cell
phones without consent, see 47 U.S.C. §
227(b)(1)(A), but the question of “consent” is
tricky and context-dependent. The Federal Communications
Commission (which has statutory authority to interpret the
TCPA) has cautioned 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
& Regulations Implementing the Tel. Consumer Prot. Act of
1991, 7 F.C.C. Rcd. 8752, 8769 (Oct. 16, 1992). But
consent to be called for one purpose is not
necessarily consent to be called for any purpose.
See, e.g., Blow v. Bijora, 855 F.3d 793,
805 (7th Cir. 2017) (agreeing that “[c]onsent for one
purposes does not equate to consent for all purposes”);
Van Patten v. Vertical Fitness Group, LLC, 847 F.3d
1037 (9th Cir. 2017) (holding that “transactional
context matters in determining the scope of a consumer's
consent to contact”); In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of
1991, 27 F.C.C. Rcd. 1830, 1840 (Feb. 15, 2012). In this
case, XPO Logistics would argue that the class members
consented to the survey call when they agreed to give their
phone numbers to facilitate delivery. Cf., e.g.,
In re GroupMe, Inc./Skype Communications S.A.R.L.
Petition for Expedited Declaratory Ruling, 29 F.C.C.
Rcd. 3442, 3443 (Mar. 27, 2014) (holding that consumers'
consent to join a GroupMe text group constituted prior
express consent to receive administrative texts related to
the operation of that group). In response, Leung would argue
that he consented to be called or texted only to the extent
necessary to facilitate the IKEA delivery, and that any other
calls exceeded the scope of that consent. If XPO prevailed on
its consent argument, then each class member's claim
would fail. Thus, all the class members' claims raise the
same dispositive legal question, which satisfies the
requirement of commonality.
the requirement that “the claims or defenses of the
representative parties are typical of the claims or defenses
of the class.” Fed.R.Civ.P. 23(a)(3). “A
plaintiff's claim is typical if it 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.” Keele v. Wexler,
149 F.3d 589, 595 (7th Cir. 1998) (quoting De La Fuente
v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.
1983)). In this case, each plaintiff's claim arises from
the same event (a post-delivery prerecorded survey call) and
the same legal theory (that the prerecorded call violated the
TCPA because it exceeded the scope of the consent to
delivery-related calls). Leung's claim follows the simple
pattern of events articulated in the class definition (a
post-IKEA-delivery call), and does not raise issues that
would cause his claim to succeed or fail on unique grounds,
separate from the claims of the rest of the class. See CE
Design Ltd. v. King Architectural Metals, Inc., 637 F.3d
721, 724 (7th Cir. 2011). In other words, Leung's claim
is typical of the class claims.
of the Rule 23(a) requirements is the rule that “the
representative parties will fairly and adequately protect the
interests of the class.” Fed.R.Civ.P. 23(a)(4). When
evaluating adequacy of representation, courts consider
“the adequacy of the named plaintiff's counsel, and
the adequacy of representation provided in protecting the
different, separate, and distinct interest of the absentee
members.” Sec. of Labor v. Fitzsimmons, 805
F.2d 682, 697 (7th Cir. 1986) (en banc). As already
discussed, Leung is an adequate representative, because his
claim is basically identical to the other claims in the
class, without complicating factual issues that would lead to
“antagonistic or conflicting claims.” Retired
Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 598
(7th Cir. 1993) (quoting Rosario v. Livaditis, 963
F.2d 1013, 1018 (7th Cir. 1992). As for the adequacy of
plaintiff's counsel, Keogh Law (headed by lead counsel
Keith J. Keogh) has extensive experience litigating TCPA
class actions. See R. 144, Keogh Decl. ¶¶
12, 15-16. As would be expected of competent and experienced
attorneys, Leung's lawyers have vigorously litigated this
case, including engaging in motion practice and substantial
discovery efforts. Leung and his counsel are adequate class
Predominance and Superiority
final hurdle before class certification, the plaintiffs must
show that they fit into at least one of the categories
outlined in Rule 23(b). The 23(b) category that plausibly
applies here is that “questions of law or fact common
to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ.
Pro. 23(b)(3) (emphases added). The predominance requirement
is similar to the commonality and typicality requirements,
but “far more demanding.” Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 623-24 (1997). Predominance is
established if “common questions represent a
significant aspect of [a] case and ... can be resolved for
all members of [a] class in a single adjudication.”
Messner v. Northshore Univ. HealthSystem, 669 F.3d
802, 815 (quoting Wright & Miller, Federal Practice &
Procedure § 1778 (3d ed. 2011)). The court should take a
pragmatic view of the evidence and issues in the case, and
“formulate some prediction as to how specific issues
will play out in order to determine whether common or
individual issues predominate in a given case.”
Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th
Cir. 2016) (quoting Waste Mgmt. Holdings, Inc. v.
Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)).
“Courts determine whether issues of individualized
consent defeat commonality and predominance in [ ] TCPA cases
on a case-by-case basis after evaluating the specific
evidence available to prove consent.” Physicians
Healthsource, Inc. v. A-S Medication Sols., LLC, 318
F.R.D. 712, 725 (N.D. Ill. 2016).
case, the predominance requirement is satisfied by the common
question of law regarding the scope of the plaintiffs'
consent to delivery-related calls. As discussed, there is no
dispute that an unconsented-to call to a plaintiff's
cellular phone using an automatic voice violates the TCPA. 47
U.S.C. § 227(b)(1)(A). But the question in this case is
whether the plaintiffs' consent to receive calls related
to their IKEA deliveries extended to a follow-up survey call
about the delivery service. Of course, there might be some
individual variation in the claims- perhaps some plaintiffs
explicitly consented to a follow-up survey call-but Rule
23(b)(3) does not require that individual questions be
absent. Messner, 669 F.3d at 815. It is
enough that the common questions predominate, as
they do here. See, e.g., Kolinek v. Walgreen
Co., 311 F.R.D. 483, 492 (N.D. Ill. 2015) (holding that
predominance was satisfied when there was a common question
whether providing a cell phone number for identity
verification purposes constitutes consent to receive
prescription refill reminders); Toney v. Quality
Resources, Inc., 2018 WL 844424, at *17 (N.D. Ill. Feb.
12, 2018) (predominance satisfied by common questions whether
constitutes a person's consent to receive telemarketing
phone calls if a person orders a product on that website; and
(2) providing one's cell phone number for questions about
her order results in her consent to receive telemarketing
calls unrelated to her order”). The same considerations
also satisfy Rule 23(b)(3)'s superiority inquiry. Because
the plaintiffs' claims all turn on the outcome of the
same legal question, it makes sense to adjudicate the claims
all at once, rather than having the hundreds of thousands of
plaintiffs file individual cases.
the requirements of Rule 23 are met, so the Court certifies