A recent Law 360 story by Sayna Posses, “TCPA Class Demands Objector Post Bond in $15M Fee Appeal” reports that call recipients leading a Telephone Consumer Protection Act (TCPA) class action over unwanted calls soliciting Caribbean cruises asked an Illinois federal judge to force a fee objector challenging an at least $14.76 million attorneys’ fee award to post a bond to ensure the dissenter covers its costs upon inevitably losing its appeal of the fee decision.

Objector Freedom Home Care Inc. has appealed U.S. District Judge Matthew Kennelly’s April fee decision after claiming that the home health company deserves a cut because its involvement in the TCPA suit was instrumental in convincing the judge to award Edelson PC and Loevy & Loevy a lower proportion than they sought of the settlement fund.  The deal will range from $56 million to $76 million depending on how many class members make claims.

But Grant Birchmeier and several other plaintiffs said that Freedom Home Care is likely to lose on appeal, noting that the issues raised in its objection largely duplicated those raised by Caribbean Cruise Line Inc. and several other vacation marketing companies.  Plus, the plaintiffs said, the home health company’s general counsel Christopher Bandas is a “known vexatious appellant” who has been “repeatedly admonished for pursuing frivolous appeals of objections to class action settlements.”

“Given the court’s detailed reasoning and explanation for awarding the fees in the amount it did, it is unlikely Freedom Home Care can meet its burden to show the court abused its discretion,” the plaintiffs said.  “A bond of $5,000 is the appropriate amount to ensure that Freedom Home Care will pay plaintiffs’ costs in the likely event that it loses on appeal.”

The suit, filed in 2012, accused Caribbean Cruise Line and the other companies of robocalling nearly 1 million people with offers for free cruises that were actually meant to market timeshares.  In 2014, Judge Kennelly certified two classes of people who received the calls between August 2011 and 2012, one for cellphones and one for landlines.

And in September, just days before the suit was scheduled for trial, the parties announced the settlement.  Under the deal, each member of the class could receive up to $500 per call, which Judge Kennelly has said is among the largest TCPA recoveries he’s ever seen.  In the firms' fees request, they argued that their work resulted in the class' significant recovery, seeking one-third of the common fund.

The defendants and one class member, Freedom Home Care, objected to the request, saying the firms asked for too much of the settlement fund and should be held to the Seventh Circuit’s preferred sliding-scale calculations for fee awards, which divides the settlement into amount-based tiers and awards steadily decreasing percentages of the increasing tiers.

Judge Kennelly agreed in April, applying the sliding scale but overruling Freedom Home Care’s and the defendants’ request he not award any additional fees for the risk the firms took on, tacking on a few percentage points at each tier.  The maximum the firms could recover, $18.48 million, represents a little more than 25 percent of the fund, the judge said.

However, Freedom Home Care shot back that it deserves its own fee award, saying it was key in convincing the judge to land on a lower proportion, keeping up to $6 million earmarked for class members rather than putting it in attorneys’ pockets.  “Significantly, Freedom Home Care was the only litigant to propose the correct fee methodology for this large TCPA settlement,” it said.

The company initially requested fees in an April motion before filing a corrected May request that was substantially similar.  Freedom Home Care's law firm, Bandas Law Firm PC, said it deserves $59,410 for almost 148 hours of work in furtherance of its objection, plus a $1,000 incentive award.  If awarded, the fees should come out of the other attorneys’ fees, not out of the remainder left for class recoveries, Freedom Home Care argued.

Mere days after filing its corrected fee motion, the home health company appealed the fee decision to the Seventh Circuit, with the defendants following suit shortly thereafter, according to court filings.

The plaintiffs, meanwhile, challenged Freedom Home Care’s request, arguing that the company’s objections didn’t create any value for the class.  After all, the plaintiffs said, the objection mirrored the defendants’ predictable and expected arguments, and the court ultimately rejected Freedom Home Care’s proposed fee structure.

The defendants chimed in the same day, making largely the same arguments.  Their opposition to the fee petition offered all the arguments necessary for the court to reduce the fee award and Freedom Home Care’s brief didn’t provide any “material enhancement,” the defendants asserted.

The case is Birchmeier et al. v. Caribbean Cruise Line Inc., et al., case number 1:12-cv-04069, in the U.S. District Court for the Northern District of Illinois.