Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 1 of 13 PageID# 4310 EXHIBIT 7

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1 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 1 of 13 PageID# 4310 EXHIBIT 7

2 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 2 of 13 PageID# 4311 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NEWPORT NEWS DIVISION FRANCIS W. HOOKER, JR., individually and on ) behalf of a class of similarly situated individuals ) ) Plaintiff, ) Civil Action No. 4:13-cv ) (AWA/LRL) v. ) ) SIRIUS XM RADIO INC., a Delaware ) corporation, ) ) Defendant. ) DECLARATION OF MYLES MCGUIRE IN SUPPORT OF MOTION FOR: (1) FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS; AND (2) AWARD OF ATTORNEYS FEES, COSTS, AND SERVICE AWARDS TO CLASS REPRESENTATIVES I, Myles McGuire, hereby aver, pursuant to 28 U.S.C. 1746, that I am fully competent to make this Declaration, have personal knowledge of all matters set forth herein unless otherwise indicated, and would testify to all such matters if called as a witness in this matter. 1. I am an adult over the age of 18 and a resident of the State of Illinois. I am licensed to practice law in the States of Illinois and Wisconsin and in numerous federal district and appellate courts around the country, including the United States Supreme Court. 2. I am Managing Partner of the law firm McGuire Law, P.C. and I, along with Michael A. Caddell and Cynthia B. Chapman of Caddell & Chapman, Christopher Colt North and William L. Downing of The Consumer and Employee Rights Law Firm, P.C., Abbas Kazerounian of the Kazerouni Law Group, APC, Joshua Swigart of Hyde & Swigart, and Michael J. McMorrow of McMorrow Law, P.C., have been appointed as Class Counsel in this matter representing Plaintiffs Francis W. Hooker, Jr., Eric Knutson, Yefim Elikman, Anthony Parker, and the Settlement Class.

3 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 3 of 13 PageID# I submit this declaration on behalf of my firm which is counsel of record to Yefim Elikman and Anthony Parker, plaintiffs in the related actions captioned Elikman v. Sirius XM Radio, Inc., No. 15-cv (N.D. Ill.) and Parker v. Sirius XM Radio, Inc., No. 15-cv-1710 (M.D. Fla.), in support of Plaintiffs Motion For (1) Final Approval of Class Action Settlement and Certification of Settlement Class; and (2) Award of Attorneys Fees, Costs, and Service Awards to Class Representatives. 4. McGuire Law, P.C. is a litigation firm based in Chicago, Illinois focusing on class action litigation, representing clients in state and national class actions in both state and federal trial and appellate courts throughout the country. 5. I and the other attorneys of McGuire Law have regularly engaged in complex litigation on behalf of consumers and have extensive experience in class action lawsuits similar in size and complexity to the instant case. I and the others attorneys of McGuire Law have been appointed as class counsel in numerous complex consumer class actions, including similar class actions involving violations of the TCPA, in state and federal courts across the country. See, e.g, McFerren et al., v. AT&T Mobility, LLC, (Sup. Ct. Fulton County, Ga. 2008); Gray et al. v. Mobile Messenger Americas, Inc. et al., (S.D. Fla. 2008); Gresham et al. v. Keppler & Associates, LLC et al., (Sup. Ct. Los Angeles County, Cal. 2008); Sims et al. v. Cellco Partnership et al., (N.D. Cal. 2009); Van Dyke et al. v. Media Breakaway, LLC et al., (S.D. Fla. 2009); Paluzzi, et al. v. mblox, Inc., et al., (Cir. Ct. Cook County, Ill. 2009); Valdez et al. v. Sprint Nextel Corporation, (N.D. Cal. 2009); Ryan et al. v. Snackable Media, LLC, (Cir. Ct. Cook County, Ill. 2010); Parone et al. v. m-qube,. Inc. et al., (Cir. Ct. Cook County, Ill. 2010); Lozano v. Twentieth Century Fox, (N.D. Ill. 2011); Williams et al. v. Motricity, Inc. et al., (Cir. Ct. Cook County, Ill. 2011); Walker et al. v. OpenMarket, Inc. et al., (Cir. Ct. Cook County, Ill. 2011); Schulken at al. v. Washington Mutual Bank, et al., (N.D. Cal. 2011); In re Citibank 2

4 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 4 of 13 PageID# 4313 HELOC Reduction Litigation, (N.D. Cal 2012); Ellison et al. v. Steve Madden, Ltd., (C.D. Cal. 2013); Lee et al. v. Stonebridge Life Ins. Co. et al., (N.D. Cal. 2013); Murray et al. v. Bill Me Later, Inc., (N.D. Ill. 2014); Manouchehri, et al. v. Styles for Less, Inc., et al., (S.D. Cal. 2016) (final approval pending); Valladares et al. v. Blackboard, Inc. et al., (Cir Ct. Cook County, Ill. 2016) (final approval pending); 5. The attorneys of McGuire Law have intimate knowledge of the law in the field of telecommunications and cellular telephony. Recognized as pioneers in the field of consumer class actions involving such claims brought under the TCPA, McGuire Law attorneys have served as counsel of record for numerous groundbreaking TCPA rulings involving cellular telephony obtained at the federal district and appellate court levels, including most recently at the U.S. Supreme Court. See, e.g., Shen et al. v. Distributive Networks, Inc., (N.D. Ill. 2007); Weinstein et al. v. The Timberland Co., et al., (N.D. Ill. 2008); Satterfield et al. v. Simon & Schuster, Inc., (9th Cir. 2009); Espinal et al. v. Burger King Corporation et al., (S.D. Fla. 2010); Abbas et al. v. Selling Source, LLC, (N.D. Ill. 2010); Damasco et al. v. Clearwire Corp., (7th Cir. 2011); Kramer et al. v. Autobytel et al., (N.D. Cal. 2011); Rojas et al. v. Career Education Co., (N.D. Ill. 2012); Ellison et al. v. Steven Madden, Ltd., (C.D. Cal. 2013); Robles et al. v. Lucky Brand Dungarees, Inc. et al., (N.D. Cal. 2013); In re Jiffy Lube Spam Text Litigation, (S.D. Cal. 2013); Lee et al. v. Stonebridge Life Ins. Co. et al., (N.D. Cal. 2013); Murray et al. v. Bill Me Later, Inc., (N.D. Ill. 2014); Campbell-Ewald Co. v. Jose Gomez, 136 S. Ct. 663 (2016). 6. The attorneys in my firm have been recognized as leaders in class action technology law by our peers and courts around the country and have been appointed lead counsel in numerous state and federal class actions. I have successfully prosecuted claims on behalf of clients in trial and appellate courts at both the state and federal levels throughout the country 3

5 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 5 of 13 PageID# 4314 involving consumer fraud, unfair competition, invasion of privacy, statutory violation, false advertising and breach of contract, among many others. I am a graduate of Marquette University and Marquette University Law School, and have been admitted to practice in the Illinois Supreme Court and Wisconsin Supreme Court and in several federal courts throughout the country, including the U.S. Supreme Court, where I recently served as co-lead counsel in a case of seminal importance to class action jurisprudence nationwide. See Campbell-Ewald Co. v. Gomez et al., 136 S. Ct. 663 (2016). I have been appointed to many industry panels and boards including the University of Illinois College of Law Advisory Board on which I currently serve. 7. My colleague, Evan M. Meyers, is a partner at McGuire Law. Mr. Meyers received his B.A. from the University of Michigan Ann Arbor, and graduated from the University of Illinois College of Law. In addition to his class action experience, Mr. Meyers has extensive experience in complex commercial litigation and has regularly litigated cases in state and federal trial and appellate courts across the nation, including in the Circuit Court of Cook County, the U.S. District Court for the Northern District of Illinois, and the U.S. Supreme Court. 8. My colleagues Eugene Y. Turin and Paul T. Geske also have extensive experience in litigating class action cases in state, federal and appellate courts, and have served as lead attorneys, in dozens of class action suits across the country. See, e.g., Serrano et al. v. A&M (2015) LLC, No. 13-cv (N.D. Ill.); Kominek et al. v. Physiotherapy Corp., No. 15-cv (N.D. Ill.); Spencer et al. v. Kohl s Department Stores, Inc., No. 14-cv (D. Nev.); Vergara et al. v. Uber Technologies, Inc., No. 15-cv (N.D. Ill.); Katz et al. v. American Honda Motor Co., Inc., No. 15-cv (C.D. Cal.); Snyder et al v. icard Gift Card, LLC, No. 15-cv (S.D. Fla.); Oliver et al. v. The Men s Wearhouse, Inc. No. 16-cv (C.D. 4

6 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 6 of 13 PageID# 4315 Cal.); Ibrahim et al. v. Stericycle, Inc., No. 16-cv (N.D. Ill.); Abdallah v. Fedex Corp., No. 16-cv (N.D. Ill.); Garcia et al. v. Target Corp., No. 16-cv (D. Minn.). 9. Mr. Turin received his B.A. from Loyola University Chicago and graduated from the Loyola University Chicago School of Law. Mr. Geske received his B.A. from the University of Illinois at Chicago and graduated from the Chicago-Kent College of Law. Class Counsel s Contribution to the Case 10. From the outset of this case, the attorneys and support staff of McGuire Law, P.C. anticipated spending hundreds, if not thousands, of hours litigating the claims in this matter with no guarantee of success. Class Counsel understood that prosecution of this case would require that other work be foregone, that there was significant uncertainty surrounding the applicable legal and factual issues, and that there would be significant opposition from a large defendant with substantial resources. 11. Throughout the litigation Sirius XM Radio ( Sirius ) and its counsel mounted a vigorous opposition, consistently arguing that the dialing system it used to place the calls at issue was not an Automatic Telephone Dialing System ( ATDS ) under the TCPA, and even going so far as filing a petition with the United States Court of Appeals for the D.C. Circuit to review the FCC s July 10, 2015 Ruling regarding the definition of ATDS. Sirius also moved to stay the prosecution of both the Elikman and Parker actions pending the outcome of the D.C. Circuit appeal. Had this case not settled, Sirius undoubtedly would have also raised this argument at the summary judgment stage. In addition, Sirius has raised arguments regarding Plaintiff Hooker s Article III standing to pursue his claims and has also attempted to compel arbitration of the claims brought by Plaintiffs Hooker and Knutson. Sirius also devoted significant resources to opposing Plaintiff Hooker s motion for class certification and it is far from clear whether 5

7 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 7 of 13 PageID# 4316 Plaintiff s motion would have ultimately been successful. Given the financial resources at its disposal, any final decisions favorable to Plaintiffs would have also likely been appealed by Sirius as it appealed the denial of its motion to arbitrate the Knutson action to the Ninth Circuit. 12. Class Counsel were able to obtain the substantial benefit provided to the Settlement Class in the Settlement Agreement despite the significant risks and defenses raised by Sirius, only as a result of their successful efforts in defeating Sirius efforts to enforce arbitration, defeating Sirius efforts to stay the Parker and Elikman actions pending the D.C. Circuit appeal, informally consolidating the Sirius litigation in this Court after moving for formal consolidation by the JPML, opposing Sirius motion to dismiss and proceeding with Class Certification in the Hooker action, as well as careful and extended negotiation of the final Settlement Agreement. 13. The work that the attorneys and staff of McGuire Law, P.C. have committed to this case has been substantial. Among other things, the attorneys of McGuire Law, P.C.: a. Conducted extensive pre-suit investigation, including communications with and vetting of Plaintiffs Elikman and Parker, identification of any vendors responsible for placing the calls on behalf of Sirius that were received by Plaintiffs, and early legal analysis of the allegations at issue in this litigation; b. Drafted and filed a placeholder Motion for Class Certification upon filing of the Elikman Complaint to prevent any potential attempts by Sirius to moot the case through an offer of judgment; c. Successfully briefed and defeated Sirius motions to stay pending the resolution of the D.C. Circuit appeal that were filed in the Elikman and Parker actions; d. Drafted and filed a motion to consolidate the Sirius litigation in a single MDL and attended oral arguments before the JPML; e. Engaged in extensive communications and negotiations with the other Class Counsel and successfully coordinated the informal consolidation of all of the actions involved in this litigation before this Court upon the JPML s denial of the motion to consolidate; f. Communicated early and often with Defendant s counsel, so as to open and maintain a dialogue regarding the parties respective views of the relevant facts, law, and overall direction of the litigation; 6

8 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 8 of 13 PageID# 4317 g. Attended an extensive, multiple day long mediation session with Randall W. Wulff an experienced and well regarded mediator of the dispute resolution firm Wulff Quinby Sochynsky; h. Engaged in continued communication, negotiations, and the exchange of settlement drafts with Sirius counsel and co-class Counsel which resulted in the drafting and execution of the finalized Settlement Agreement and related documents; i. Conducted investigation and legal research, as well as extensive communications with co-class Counsel, regarding arguments raised by objectors and issues related to scope of the release language in the settlement agreement raised by other public interest groups; 14. Our firm s billable rates and the hours of each person who worked on these matters are incorporated in the chart below. In my opinion, the expenditure of time by attorneys and staff of McGuire Law, P.C. was reasonable and necessary. The attorneys and staff assigned to this case were aware of the need to do all of the work necessary to prosecute this action to the best of our ability. At the same time, by prosecuting this case purely on a contingency basis and not being paid by the hour, my firm had an incentive to conduct its efforts efficiently and to avoid duplicative or unnecessary work. 15. Our firm s practice generally, which was followed in this case, is to use a collaborative effort in the drafting of court filings, exhibits, discovery-related documents, and other important documents. The attorneys and staff of my firm worked very closely and collaboratively throughout this action, including with respect to the pre-suit investigation, pleading, preparation, research, motion practice, litigation and settlement strategy, document requests, and document and data review. 16. I believe that McGuire Law, P.C. and its co-class Counsel in this litigation assumed a significant risk of non-payment in initiating and prosecuting this case given the novelty of legal issues involved, the breadth of Sirius dialing service, the complexity of the communications processes at issue, and the vigorous and nuanced defenses that Defendant and 7

9 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 9 of 13 PageID# 4318 its highly skilled counsel raised throughout the litigation and were prepared to further raise had this case proceeded. My colleagues and I would not have brought this action absent the prospect of obtaining a percentage of the fund or a multiplier on our actual fees expended to account for the risk inherent in this type of class action. 17. Prior to the initiation of this litigation, the Class Representatives, Plaintiffs Yefim Elikman and Anthony Parker executed fee agreements with my firm that were contingent in nature. Plaintiffs Elikman and Parker agreed ex ante that 33% of any settlement fund, plus reimbursement of all costs and expenses, would represent a fair award of attorneys fees from a fund recovered for the class. 18. As is the general practice of most law firms, the attorneys of McGuire Law, P.C., as well as its law clerks and paralegals, were responsible for keeping track of their own billable time, and did so with detailed daily time entries. The majority of these records are centralized in a billing management software program to which all employees have access. For this matter, law clerks William Kingston and Scott Lucas were assigned to assist the attorneys prosecution of the case and the execution of the settlement. 19. Based on the experience of McGuire Law attorneys doing both large firm defense work and plaintiffs class action work, as well our knowledge of the billing rates of other firms that pursue complex consumer class action litigation, I believe that the billing rates of the attorneys and staff at McGuire Law, P.C. properly correlate to their respective experience, are reasonable in the Chicago legal market, and approximate the average rates of attorneys with similar backgrounds and experience. Additionally, numerous federal courts have approved our then-prevailing billing rates in substantially similar litigation under the TCPA. See, e.g., Shen et al. v. Distributive Networks, Inc., No. 06-cv-04403, Dkt. 49 (N.D. Ill. Apr. 5, 2007); Weinstein et 8

10 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 10 of 13 PageID# 4319 al. v. The Timberland Co., No. 06-cv-00484, Dkt. 92 (N.D. Ill. Dec. 18, 2008); Satterfield et al. v. Simon & Schuster, Inc., No. 06-cv Dkt. 143 (N.D. Cal. Aug. 13, 2010); Lozano et al. v. Twentieth Century Fox Film Corp., No. 09-cv-06344, Dkt. 65 (N.D. Ill. Apr. 15, 2011); Rojas et al. v. Career Education Co., No. 10-cv-05260, Dkt. 62 (N.D. Ill. Sept. 6, 2012); Robles et al. v. Lucky Brand Dungarees, Inc., No. 10-cv-04846, Dkt. 105 (N.D. Cal. May 10, 2013); In re Jiffy Lube Spam Text Litigation, 11-md-02261, Dkt. 97 (S.D. Cal. Feb. 20, 2013); Murray et al. v. Bill Me Later, Inc., No. 12-cv-04789, Dkt. 78 (N.D. Ill. Nov. 20, 2014). 20. The rates listed below are the same rates that would be assessed to our hourly clients and approximate the average of rates for attorneys with similar backgrounds and experience in the Chicago legal market. The hours and rates of the McGuire Law, P.C. attorneys are provided below and represent the total work our firm has undertaken since the inception of this litigation, including case investigation, research, briefing, discovery and data analysis, negotiation, settlement and other tasks identified below. They have been reviewed and reduced to remove any hours found to have been duplicative or excessive. ATTORNEY YEAR OF HOURS HOURLY TOTAL (Position) EXP. RATE Myles McGuire $665 $285, (Managing Partner) Evan M. Meyers $615 $182, (Partner) Eugene Y. Turin $340 $99, (Associate) Paul T. Geske $310 $1, (Associate) Law Clerks n/a 65.6 $225 $14, Total Lodestar $582,

11 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 11 of 13 PageID# 4320 Type of Task Correspondence with co-counsel, opposing counsel, clients, experts, etc. Drafting pleadings, motions, and settlement related documents Attending court hearings and case proceedings Meeting with clients, co-counsel, and internally Preparation for hearings, proceedings and meetings Conducting factual and legal research Percent of Hours 8.5% 18.8% 4.3% 13.4% 20.2% 34.8% 21. Based on my experience, I anticipate that our firm will expend an additional hours in attorney and staff time over the pendency of this action relating to the briefing and filing of a motion for final approval of the Settlement, attending the final approval hearing, responding to Class Members inquiries regarding the Settlement and advising them how to proceed, responding to objectors, including handling any appeals filed after final approval is granted, reviewing submitted claims rejected by Sirius and/or the Settlement Administrator, and remaining involved with the Settlement through implementation. 22. In addition to attorney time, McGuire Law, P.C. has incurred $5, in expenses related to this litigation, which includes costs for filing fees ($400.00), service fees ($200.00), expert fees ($1,500.00), pro hac vice application fees ($150.00), and travel expenses associated with attending the MDL and mediation ($3,431.82). Every 10

12 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 12 of 13 PageID# 4321 effort was made to keep these expenses at a minimum. Being responsible for advancing all expenses, Class Counsel had a strong incentive not to expend any funds unnecessarily. Class Representatives 23. From the onset, Plaintiffs Elikman and Parker have been heavily involved in this litigation and have remained committed to the Class, have willingly contributed their own time and expended efforts toward this litigation, and are deserving of the proposed Incentive Award. Plaintiffs were instrumental in assisting Class Counsel s investigation at the outset and have remained fully involved in this litigation. Moreover, Plaintiffs Elikman and Parker received scores of automated calls from Sirius and chose to proceed with their claims on behalf of a class, despite having financial incentive to pursue their claims on an individual basis, and have succeeded in helping obtain nonmonetary, as well as financial relief, on behalf of a nationwide class. In fact, Plaintiff Parker rejected a significant offer to settle his case on an individual basis shortly after the complaint in the Parker action was filed. 24. Plaintiffs Elikman and Parker were consistently available to consult with Class Counsel in person, over the phone, and by and did so on numerous occasions. Plaintiffs also reviewed pleadings and settlement documents, and produced documents and information, committing numerous hours of their time for the benefit of the class. 25. Were it not for Plaintiffs efforts and contributions to the litigation by assisting Class Counsel with their investigation and filing of this suit and their monitoring of the case throughout its litigation, the substantial benefit to the class afforded under this Settlement Agreement would not have resulted. 11

13 Case 4:13-cv AWA-LRL Document Filed 11/21/16 Page 13 of 13 PageID# Plaintiffs have not received any payments in this matter, were never promised any payments, and were not promised that they would receive an award of any kind in this litigation. Rather, the requested Incentive Award seeks only to compensate Plaintiffs for their time, effort, and contributions to this case. I declare under penalty of perjury that the foregoing is true and correct. Executed on November 21, 2016 in Chicago, Illinois. /s/ Myles McGuire Myles McGuire, Esq. 12