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Kolinek-Walgreens Mtn Final App [V12 CB]

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Kolinek-Walgreens Mtn Final App [V12 CB] Case: 1:13-cv-04806 Document #: 137-1 Filed: 07/29/15 Page 1 of 162 PageID #:1032 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION ROBERT KOLINEK, individually and on behalf of all others similarly situated, Case. No. 13-cv-04806 Plaintiff, Hon. Matthew F. Kennelly v. WALGREEN CO., an Illinois corporation, Defendant. PLAINTIFF’S MEMORANDUM IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT Case: 1:13-cv-04806 Document #: 137-1 Filed: 07/29/15 Page 2 of 162 PageID #:1033 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 1 II. NATURE OF THE LITIGATION .................................................................................. 4 A. The Facts, the Law, and the Litigation History ................................................. 4 B. The Mediations and the Settlement Agreement ................................................. 7 III. TERMS OF THE SETTLEMENT .................................................................................. 9 A. Class Definition ..................................................................................................... 9 B. Class Member Payments ...................................................................................... 9 C. Prospective Relief ................................................................................................ 10 D. Additional Relief ................................................................................................. 10 1. Payment of Notice and Settlement Administration Expenses ................ 10 2. Incentive Award for Class Representative .............................................. 10 3. Payment of Attorneys’ Fees and Expenses ............................................. 10 E. The Release .......................................................................................................... 11 IV. THE IMPLEMENTED NOTICE PLAN COMPORTS WITH DUE PROCESS .... 11 V. THE SETTLEMENT WARRANTS FINAL APPROVAL ......................................... 12 A. The Strength of Plaintiff’s Case Compared to the Settlement ....................... 13 B. The Likelihood of an Increase in the Complexity, Length, and Expense of Continued Litigation Validates Final Approval of the Settlement ............ 18 C. The Opinion of Competent Counsel Favors Approval .................................... 19 D. The Stage of the Proceedings and Amount of Discovery Completed Weigh in Favor of Final Approval .................................................................... 20 E. The Settlement is not a Product of Collusion and There are No “Red Flags” Present ...................................................................................................... 21 F. The Reaction of the Settlement Class Favors Final Approval ........................ 23 i Case: 1:13-cv-04806 Document #: 137-1 Filed: 07/29/15 Page 3 of 162 PageID #:1034 1. Several Objections Fail to Comply with the Court’s Preliminary Approval Order and the Requirements of the Settlement Agreement ................................................................................................. 25 a. ......................................................................................................... O bjectors Hughes, Oldham, Streight and Sibley are not members of the Settlement Class .................................................. 25 b. The Dipuccio and Fuzzell objections were untimely filed ........... 27 c. Objectors Mehl, Habermann, Thomas, and Gonzales failed to provide all of the information required to raise a valid objection ............................................................................... 28 2. The General and Philosophical Objections to the Settlement are not Obstacles to Final Approval .............................................................. 28 a. The general contention that the Settlement should have obtained more monetary relief for the Settlement Class does not change the fact that the actual recovery for the Settlement Class is substantial and consistent with other TCPA settlement ........................................................................... 29 b. The philosophical objections to class actions miss the point and have no place in the analysis of the Settlement ...................... 30 3. Objections to Class Certification and the Adequacy of Kolinek as Class Representative Lack Merit ............................................................. 30 4. Objections to the Injunctive Relief Misunderstand the Settlement ......... 31 5. Objections to the Requested Attorneys’ Fees and Incentive Award Have No Basis in Law or Fact ................................................................. 33 a. Class Counsel’s fee request is consistent with the market-rate approach employed by courts in the Seventh Circuit ................... 33 b. The challenges to the reasonable incentive award are likewise without merit ................................................................................. 38 6. The Objections Related to Cy Pres, Notice and the Discovery Taken are Mistaken and Should be Overruled .................................................... 39 a. Streight and Spann are mistaken about a “hidden cy pres provision” ...................................................................................... 39 ii Case: 1:13-cv-04806 Document #: 137-1 Filed: 07/29/15 Page 4 of 162 PageID #:1035 b. Any objections challenging adequate notice fail because the Court already found the proposed Notice Plan sufficient ....... 40 c. The discovery taken in this case was more than adequate final approvalfor of the Settlem ent .............................................. 41 7. The Objections Raised or Prepared by Professional Objectors Were Improperly “Ghost-Written” or Otherwise Call Into Question the Propriety of the Arguments Raised and the Objections’ Underlying Motivations ............................................................................................... 42 a. Page Nash’s “pro se” objection was ghost-written by serial objector Thomas L. Cox, and she herself has been represented numerous times in the past by fellow objector Gary Sibley ......... 44 b. Objector Gary Sibley is himself an attorney and serial objector, who has worked frequently with Nash and her professional objector attorney, Thomas L. Cox ................................................ 47 c. ......................................................................................................... L yndy Streight’s “pro se” objection was ghost-written by serial objector Matt Kurilich ......................................................... 48 d. Objector Melinda Franz’s objection was ghost-written by serial objector Chris T. Cain for her other professional objector counsel, attorney W. Allen McDonald ......................................... 51 e. Todd Spann’s objection is no different from the dozens of baseless objections his attorneys have filed in other large class actions and is tainted by his attorneys’ misconduct ...................... 53 f. The Cozby, Bullard, Hughes, and Oldham objection was filed by professional objector Chris Braun of Plews, Shadley, Racher & Braun LLP, who was himself ghost-written in this Court in the past .......................................................................................... 55 VI. CONCLUSION ............................................................................................................... 55 iii Case: 1:13-cv-04806 Document #: 137-1 Filed: 07/29/15 Page 5 of 162 PageID #:1036 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES: Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) .......................................................................................................... 11 Haines v. Kerner, 404 U.S. 519 (1972) .......................................................................................................... 43 Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) .......................................................................................................... 5 UNITED STATES CIRCUIT COURT OF APPEALS CASES: Americana Art China, Co., Inc. v. Foxfire Printing and Packaging, Inc., 743 F.3d 243 (7th Cir. 2014) ....................................................................................... 36-37 Armstrong v. Bd. of Sch. Directors of Milwaukee, 616 F.2d 305 (7th Cir. 1980) ............................................................................................ 20 Blessing v. Sirius XM Radio, Inc., No. 11-cv-3696, 2012 WL 6684572 (2d Cir. Dec. 20, 2012) ........................................... 53 Burns v. Elrod, 757 F.2d 151 (7th Cir. 1985) ............................................................................................ 11 Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) .......................................................................................... 36 Freeman v. Berge, 68 F. App’x 738 (7th Cir. 2003) ....................................................................................... 25 Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014) ...................................................................................... 13, 22 Hughes v. Kore of Ind. Enterprise, Inc., 731 F.3d 672 (7th Cir. 2013) ............................................................................................ 39 In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988 (9th Cir. 2010) ...........................................................................................
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