Kolinek v. Walgreen, Co., 2015 WL 7450759, at *7-8 (N.D.Ill., 2015), Judge Kennelly overruled objectors to a proposed TCPA class settlement, and their concern that they would receive pennies on the dollar compared to individual TCPA cases. The decision is a reasonable primer on the terms to include in TCPA class settlement agreements in order to withstand objectors.
For one thing, if Kolinek were to take this case to trial, he would be faced with rebutting Walgreens’s defenses that he and his fellow class members provided prior express consent to receive prescription refill reminder calls and that these calls were made for an emergency purpose and are therefore not unlawful. Although Kolinek withstood Walgreens’s motion to dismiss on both grounds, the Court observed in its written orders as to both issues that further factual development might prove that plaintiffs did indeed consent or that the calls were made for emergency purposes. See Kolinek 2, 2014 WL 3056813, at *4; Kolinek 3, No. 13 C 4806, dkt. no. 66, at 2. *8 In addition, manageability concerns would arise if this case went to trial, which might seriously imperil Kolinek’s bid for class certification and ultimately deprive Kolinek of the benefits of the class action device. Pursuant to Rule 23(b)(3)’s predominance requirement, courts must consider class members’ interest in prosecuting separate actions; the extent and nature of any other litigation over the controversy; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and any likely difficulties in managing a class action. See Fed. R. Civ. P. 23(b)(3)(A)–(D). The last of these factors—manageability—diminishes in importance when the request, as in this case, is for settlement-only class certification. Amchem Prods., 521 U.S. at 620. Matters would be different were the case to proceed to trial. Identifying consenting class members and determining the timing and nature of such consent would require significant discovery and might require individual determinations, which might undermine manageability enough to destroy predominance. See, e.g., Balschmiter v. TD Auto Finance LLC, 303 F.R.D. 508, 527–29 (E.D. Wis. 2014); Jamison v. First Credit Servs., 290 F.R.D. 92, 107 (N.D. Ill. 2013) (denying certification of class in TCPA litigation where the ‘parties would need to scour [the defendant’s] records‘ in order to determine consent). Considering how Walgreens vigorously litigated its defenses in briefing the motion to dismiss and motion to reconsider, it is highly likely that, absent settlement, Walgreens would have equally vigorously opposed class certification, and it might have prevailed. Finally, without prompt and final resolution through settlement, Kolinek and the plaintiff class would face the realistic probability that the FCC might reinterpret the TCPA in such a way as to extinguish Kolinek’s claims and render any recovery impossible. As now-retired Judge James Holderman observed, the FCC frequently issues orders interpreting or reinterpreting the TCPA. See In re Capital One, 80 F. Supp. 3d at 791. And as this Court expressed in its earlier orders regarding Walgreens’s motion to dismiss, the FCC’s interpretations are binding on the Court. Kolinek 2, 2014 WL 3056813, at *4; Kolinek 3, No. 13 C 4806, dkt. no. 66, at 2. If, for example, the FCC were to issue an order in which it determined that prior express consent exists when a consumer, when filling a prescription, volunteers her cellular telephone number for verification purposes, then Kolinek’s claim—and the claims of the other nine million people in the settlement class—would likely vanish. This could happen at any time, and prosecuting this litigation through discovery and a trial would only allow a greater opportunity for the FCC to issue such an interpretation. As other judges in this district have recognized, ‘a settlement is a compromise, and courts need not—and indeed should not—’reject a settlement solely because it does not provide a complete victory to plaintiffs.’ ‘ In re Capital One, 80 F. Supp. 3d at 790 (quoting In re AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 347 (N.D. Ill. 2010) (AT&T Mobility 1)); see American Int’l Grp., Inc. v. ACE INA Holdings, Inc., Nos. 07 C 2898 & 07 C 2026, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012). Were Kolinek were to proceed to trial, he would have a tough row to hoe in order to overcome Walgreens’s two potentially meritorious defenses and an even tougher one to secure victory. In light of the significant possibility that Kolinek would recover nothing for the class if he proceeded with litigation and the fact that the per-claimant recovery under this settlement is comparable to the per-claimant recoveries in other TCPA cases, the Court finds that this factor weighs in favor of approval.