February 14, 2018
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division. No. 12 C
4069 - Matthew F. Kennelly, Judge.
Easterbrook and Rovner, Circuit Judges, and Griesbach,
District Judge. [*]
Easterbrook, Circuit Judge.
2011 and 2012 a million people received phone calls asking
them to take political surveys in exchange for a chance to go
on a free cruise. Some recipients filed a class action under
the Telephone Consumer Protection Act, 47 U.S.C. §227,
seeking damages for these unsolicited communications.
Caribbean Cruise Line, Vacation Ownership Marketing Tours,
and the Berkley Group were named as defendants on the theory
that, though they had not placed the calls, they had directed
them and thus are vicariously liable. (The plaintiffs also
sued the caller, which has not participated in these
appeals.) The district court certified a class under
Fed.R.Civ.P. 23(b)(3). Later it granted partial summary
judgment in the plaintiffs' favor and scheduled a trial.
179 F.Supp.3d 817 (N.D. Ill. 2016).
eve of trial the parties settled. Plaintiffs agreed to
release their claims against all defendants and any of the
defendants' "agents [or] independent
contractors". In exchange defendants agreed to pay into
a fund no less than $56 million and no more than $76 million.
The total will depend on the number of approved claims that
class members submit. Out of the fund will come payments to
the class, incentive awards to the named representatives,
about $2 million in administrative expenses, and
attorneys' fees. The class will receive payments in two
rounds. If some claimants do not cash the checks sent during
the second round, money will be left over, and those
remaining funds will go to "an appropriate cy
pres recipient" to be approved by the district
court. (The district court has not yet determined whether
that occurs, so we need not wait for In re Google
Referrer Header Privacy Litigation, 869 F.3d 737 (9th
Cir. 2017), cert. granted under the name Frank v.
Gaos, 138 S.Ct. 1697 (2018).)
the objections of Kevin McCabe, who says he is in the class,
the district court approved the settlement, estimating that
each claimant will receive $400. 2017 U.S. Dist. Lexis 29400
(N.D. Ill. Mar. 2, 2017). After approving the settlement, the
court entered judgment under Fed.R.Civ.P. 58. It also awarded
attorneys' fees to class counsel under Fed.R.Civ.P.
23(h). The award gives counsel 36% of the first $10 million
paid into the fund, 30% of the next $10 million, 24% of the
next $36 million, and 18% of any additional recovery. 2017
U.S. Dist. Lexis 54080 (N.D. Ill. Apr. 10, 2017).
three sets of appeals: (1) defendants and a member of the
class, Freedom Home Care, contend that the award of fees
overcompensates class counsel; (2) Freedom Home Care wants an
incentive award and attorneys' fees for its role in
objecting to class counsel's fees; and (3) McCabe
complains that the settlement's approval was improper.
Before we discuss the merits of these appeals, we must ensure
that we have jurisdiction.
appeals are within our jurisdiction only if they challenge
"final decisions" of the district court. 28 U.S.C.
§1291. A decision on the merits is final only if it
"resolves all claims of all
parties". Domanus v. Locke Lord LLP, 847 F.3d
469, 477 (7th Cir. 2017) (emphasis in original). The caller
(or rather, three entities that allegedly acted as the
caller-Economic Strategy LLC, Economy Strategy Group, Inc.,
and a political committee named Economic Strategy Group) did
not participate in the settlement. But the settlement
releases plaintiffs' claims against the settling
defendants' "agents [or] independent
contractors". The parties to these appeals tell us that
the caller was an "agent" or "independent
contractor" of the other defendants for the purpose of
this release. Consistent with that understanding, the
district court's judgment states: "The Court hereby
dismisses the Action"-the whole action, not just some of
it-"on the merits and with prejudice". This
judgment disposes of the claims against all parties, not just
the claims against the settling parties, so it is a final
decision on the merits. Freedom Home Care's challenge to
the denial of an incentive award and fees therefore falls
within the scope of §1291, as does McCabe's appeal.
Cf. Devlin v. Scardelletti, 536 U.S. 1 (2002).
the same can be said about defendants' and Freedom Home
Care's appeal of the decision awarding fees to class
counsel requires more discussion. A decision about fees, if
final, is appealable separately from the merits. See
Budinich v. Becton Dickinson & Co., 486 U.S. 196
(1988). The district court wrote:
Because the process for approving claims is still ongoing,
the Court awards at this time only those attorney's fees
corresponding to the minimum amount defendants will be
required to pay into the common fund. As discussed above,
that fee amount is $14.76 million [that is, the sum of 36% of
the first $10 million, 30% of the next $10 million, and 24%
of the next $34 million]. Class counsel may petition the
Court for the remainder of the fee award upon conclusion of
the claims-approval process.
2017 U.S. Dist. Lexis 54080 at *32. This decision does not
quantify the total fees that counsel will collect. It instead
awards a portion of the fees ($14.76 million) and tells
counsel to come back for more if the size of the pot grows.
awards of attorneys' fees can hardly be called final, cf.
Sole v. Wyner, 551 U.S. 74 (2007), and such awards
typically are not appealable under §1291. See, e.g.,
Dupuy v. Samuels, 423 F.3d 714, 717 (7th Cir. 2005);
People Who Care v. Board of Education, 272 F.3d 936,
937 (7th Cir. 2001). But an award may be final if the
district court lays out a formula for calculating the
award's amount. See, e.g., Hyland v. Liberty Mutual
Fire Insurance Co., 885 F.3d 482, 484 (7th Cir. 2018);
Production & Maintenance Employees' Local 504 v.
Roadmaster Corp., 954 F.2d 1397, 1401-02 (7th Cir.
1992); Parks v. Pavkovic, 753 F.2d 1397, 1401 (7th
Cir. 1985). See also Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, 15B Federal Practice &
Procedure §3915.2 at 279 (2d ed. 1992)
("[M]erely 'ministerial' proceedings to
calculate a specific award do not defeat finality.").
Such an award leaves some math but nothing for the district
court to decide.
award does exactly that. Though the district court told
counsel to "petition the Court for the remainder of the
fee award," it also prescribed a formula for that
remainder: 18% of the amount recovered over $56 million. The
court had considered other means, such as using a multiplier
of 0.15 instead of 0.18. But it landed on 18%, explained its
choice, and stated that "the Court awards class counsel
… 18% of the remainder." 2017 U.S. Dist. Lexis
54080 at *28-31. The total award is not yet known only
because the number of approved claims is not yet known. Once
the parties know that number, computing the remaining fees
will be a mechanical exercise. Some tasks unrelated to the
calculation of fees remain for the district court, such as
(perhaps) choosing a recipient for funds unclaimed after ...