Kevin McCabe v. Caribbean Cruise Line, Incorpo
Kevin McCabe v. Caribbean Cruise Line, Incorpo
Opinion
*794
During 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,
On the 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
,
Over 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.
We have 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.
The appeals are within our jurisdiction only if they challenge "final decisions" of the district court.
Whether 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.
,
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.
Interim awards of attorneys' fees can hardly be called final, cf.
Sole v. Wyner
,
*796
Production & Maintenance Employees' Local 504 v. Roadmaster Corp.
,
This 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."
More: The fact that the award postdates the judgment creates a problem distinct from cases about prejudgment awards. A litigant who wishes to challenge a prejudgment award can do so by timely appealing the judgment. See
Dupuy
,
So we have jurisdiction over the appeals, and we address each in turn. Defendants take issue with the structure of the fee award. They insist that the award should give class counsel only 25% (rather than 30%) of the second tier of recovery, 20% (rather than 24%) of the third, and 15% (rather than 18%) of the remainder. To this Freedom Home Care adds that the third tier should be capped at some figure lower than $56 million. These changes to the award, they say, would align it with awards of attorneys' fees that have been approved in other suits brought under the Act. See also
In re Synthroid Marketing Litigation
,
Defendants are correct that the fee award is bigger than some awards in other suits. But that does not mean the award is too big. When awarding fees to class counsel,
*797
district courts must approximate the fees that the lawyers and their clients would have agreed to at the outset of the litigation given the suit's risks, competitive rates in the market, and related considerations. See
In re Synthroid Marketing Litigation
,
We need not reproduce the district court's thorough discussion of this subject. We review decisions about attorneys' fees for abuse of discretion, see, e.g.,
Silverman
,
Freedom Home Care contends that it is entitled to an incentive award and attorneys' fees for its objection to class counsel's fees. Plaintiffs' motion for fees had proposed that class counsel take a third of the fund. Freedom Home Care counter-proposed that the fund be divided into four tiers and that counsel take decreasing proportions of each. The award adopts that structure, which the parties call a "sliding-scale approach," and Freedom Home Care wants to be compensated for proposing it. Yet its proposal did not add marginal value to the litigation. Plaintiffs' motion itself discussed the sliding-scale approach, a common one in large class actions. The district court was certain to consider the possibility, no matter what Freedom Home Care said, so the court did not abuse its discretion in concluding that Freedom Home Care did not supply value to the class. See
Last comes McCabe's appeal. He contends that the settlement improperly releases claims outside the class period (August 2011 to August 2012) and that the notice sent to the class members was deficient. For two reasons the district court held that McCabe lacks standing to raise these objections. First, McCabe's objections state that he is "a class member who received calls on his cellphone number ... and landline phone ... outside of the class period". The court found this statement self-contradictory; it treated McCabe's assertion that he received calls "outside of the class period" as an assertion that he did not receive calls within the class period, and it reasoned that McCabe thus could not be in the class. Second, in 2015 McCabe won a judgment against Caribbean Cruise Line in an action he had brought in the Eastern District of New York. The court decided that any claim arising from calls McCabe received during the class period should have been brought in his separate suit, and that the doctrine of claim preclusion now bars any such claim.
*798
The district court's conclusions about standing were flawed. Claim preclusion, an affirmative defense under Fed. R. Civ. P. 8(c), has nothing to do with standing. See
Exxon Mobil Corp. v. Saudi Basic Industries Corp.
,
Despite concluding that McCabe lacks standing, the district court rejected his objections on the merits. So do we. McCabe first argues that the settlement releases claims arising from calls outside the class period. The settlement defines "released claims" as:
[A]ny and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims ... arising out of the facts, transactions, events, matters, occurrences, acts, disclosures, statements, representations, omissions or failures to act regarding the alleged calls made with a prerecorded or artificial voice offering a free cruise in exchange for taking an automated public opinion and/or political survey[.]
According to McCabe, the "alleged calls" mentioned in this definition include calls made before 2011 or after 2012. Because the class members were never notified that the settlement covers such calls, the argument goes, the court should not have approved it. The argument rests on an incorrect premise. The "alleged calls" include: well, only the calls that were alleged. And the operative complaint, filed in March 2015, alleges calls only from August 2011 to August 2012. The appellate briefs tell us that plaintiffs and defendants (and the district court) agreed that "alleged calls" means "calls within the class period", and the doctrine of judicial estoppel will prevent those parties from taking an opposite position in future proceedings. See
New Hampshire v. Maine
,
We can quickly dispose of McCabe's remaining argument: He insists that the notice sent to the class insufficiently described the process for selecting a cy pres recipient. Not so. The notice told class members that a cy pres recipient might be selected after the second round of payments, gave instructions for recommending recipients, and provided a website where members can learn more about the settlement. That is enough to meet the notice requirements of Fed. R. Civ. P. 23.
AFFIRMED
Reference
- Full Case Name
- Grant BIRCHMEIER, Et Al., Plaintiffs-Appellees, v. CARIBBEAN CRUISE LINE, INC., Et Al., Defendants-Appellants. Appeals Of: Caribbean Cruise Line, Inc.; Vacation Ownership Marketing Tours, Inc.; The Berkley Group, Inc.; Freedom Home Care, Inc.; Kevin McCabe
- Cited By
- 13 cases
- Status
- Published