Case: 1:12-cv-05746 Document #: 626 Filed: 04/25/18 Page 1 of 7 PageID #:23049 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Philip Charvat on behalf of himself and others ) similarly situated, ) Plaintiff, ) Case No. 1:12-cv-5746 ) v. ) Judge Wood ) Mag. Judge Rowland Elizabeth Valente, Resort Marketing Group, Inc., ) Carnival Corporation & PLC, Royal Caribbean ) Cruises, Ltd., NCL (Bahamas) Ltd. ) Defendants. ) JOINT STATUS REPORT TO COURT AND MOTION TO EXTEND VERIFICATION PERIOD FOR THIRTY DAYS AND TO SEND POST CARD NOTICE TO CLAIMANTS WHO DID NOT RECEIVE VERIFICATION EMAIL The plaintiff, Philip Charvat ( Plaintiff ) and the defendants Carnival Corporation & PLC ( Carnival ), Royal Caribbean Cruises, Ltd. ( Royal ), and NCL (Bahamas) Ltd. ( Norwegian ) (collectively referred to as the Cruise Defendants ) jointly provide the Court with this status report and request for appropriate relief. Factual Background Relating to This Motion On July 6, 2017, this Court granted preliminary approval of the Settlement 1 between the Plaintiff, RMG, and the Cruise Defendants. (DE# 576). The Settlement established a non-reversionary Settlement Fund of between $7,000,000 and $12,500,000, from which Settlement Class Members could make a claim for a cash payment. (DE #569-1). The ultimate amount of the Settlement Fund depended on the number of valid claims filed. The maximum value of each illegal call was set at $300. A consumer could recover for up to three illegal calls per telephone line for a maximum amount of $900. If sufficient claims were submitted to exceed $12.5 million, then the recovery per class member 1 Capitalized terms used throughout are defined terms contained in the Settlement Agreement (DE #569-1)
Case: 1:12-cv-05746 Document #: 626 Filed: 04/25/18 Page 2 of 7 PageID #:23050 would be reduced pro rata. The class was comprised of consumers whose phone numbers appeared in the Call Records contained within the Dialer Database produced by RMG in discovery. The Dialer Database evidenced approximately sixty million telemarketing calls. Not all the calls in the Dialer Database, however, promoted the goods and services of the Cruise Defendants. RMG claimed that it also sold other travel packages unrelated to the Cruise Defendants and its call records did not specify whether a particular call promoted the Cruise Defendants or some other travel product. The phone numbers of approximately four hundred thousand Settlement Class Members, however, were found in the same telemarketing campaigns as Mr. Charvat, who recorded his calls which confirmed their reference to the Cruise Defendants. These class members were sent direct mail notice. To ensure that other class members whose numbers were found in the Call Records could participate in the Settlement, if appropriate, Class Counsel proposed, and this Court approved, of the establishment of a web based portal that consumers could access to see if their phone number was a match to the Call Records. If their number matched, these class members could also then file a claim if they attested under the pains and penalties of perjury to receiving pre-recorded telemarketing calls promoting the Cruise Defendants during the Class Period. Against this factual backdrop, the Parties obtained preliminary approval of the Settlement from this Court. (DE #576). Kurtzman Carson Consultants ( KCC ) was retained as the Class Administrator which proceeded to give notice to the class as set forth in both the Settlement Agreement and in the Preliminary Approval Order, which called for dissemination of a press release, physical notice to be mailed to certain Class Members, and publication notice to be made to all other Class Members via various means, including press-release, internet advertising and Facebook. (DE #569-1 at Section 7.0). The notice plan, and consumer response thereto, was overwhelmingly successful. For 2
Case: 1:12-cv-05746 Document #: 626 Filed: 04/25/18 Page 3 of 7 PageID #:23051 example, just the press release alone that was issued by KCC was distributed to 216 media sources and reached an estimated audience of 88,196,338. This press release was distributed to hundreds of media outlets. Stories in television and print media then ran in media outlets from coast to coast broadly publicizing the Settlement and directing consumers to the settlement web site to file a claim. In fact, the Settlement was prominently featured on ABC News with David Muir. See http://abcnews.go.com/wnt/video/class-action-lawsuit-targets-lawsuits-49260456. This extensive media coverage was in addition to KCC s promotion of the Settlement as set forth in the Settlement Agreement and approved by the Court. Obviously, the goal of informing class members of their rights under the Settlement and offering them an opportunity to participate was achieved. Unfortunately, some media coverage, over which the Parties had no control, informed consumers that they might be owed $900 without providing any context for this statement or explaining that an individual consumer s recovery was completely dependent upon the number of claims filed, and could ultimately be a pro rata share of the Settlement Fund. The fact that per consumer recover could be a pro rata share of the Settlement Fund was prominently featured in the court-approved notice provided to Class Members by KCC. See DE #569-1, Settlement Agreement at page 84, Long Form Notice at #9, available to consumers on www.rmgtcpasettlement.com; DE #569-1 at page 90, Post Card Notice at Settlement Terms). Accordingly, due to the massive media attention given to this Settlement, and perhaps inflated consumer expectations concerning the amount of each individual s recovery, the number of claims filed by consumers in this case exceeds two million. Thereafter, KCC began to vet the claims to assess their validity and informed counsel for the Parties, and the Court, of its concern that a significant but unknown number of claims may be fraudulent. The Parties then jointly petitioned the Court to approve a verification process that would 3
Case: 1:12-cv-05746 Document #: 626 Filed: 04/25/18 Page 4 of 7 PageID #:23052 essentially require class members who did not receive mailed notice of this settlement, but rather learned of the settlement via media or the internet (Indirect Notice Claimants), to submit additional documentation to demonstrate their ownership or subscription to the phone numbers which received the telemarketing calls at issue in this case. The Parties proposed and the Court ordered that Indirect Notice Claimants were to be so informed of their requirement to submit verification documentation via email. (DE 620). In accord with the Court s Order of March 15, 2018 (DE 620), KCC proceeded to send email notice to all claimants informing them of the need to submit verification documentation in order to complete their claim. Specifically, emails were sent to over 2.2 million Indirect Notice Claimants on April 9, 2018. A reminder email was sent to all 2.2 million Indirect Notice Claimants on April 20, 2018. See Exhibit A, Declaration Phil Cooper. The response of the class to the campaign has been positive and the Parties are in the process of compiling tens of thousands of verification responses and finalizing claims. The Settlement Administrator, however, has informed counsel for the Parties that a small percentage of Indirect Notice Claimants did not receive either email informing them of their need to provide additional documentation to complete their claims. Id. Further, some class members have notified counsel of the need for more time to produce verification documentation. The Settlement Administrator and counsel for the Parties agree that post-card notice should be immediately sent to all Indirect Notice Claimants who the Settlement Administrator has an objective reason to believe did not receive either verification email. Second, the Settlement Administrator and counsel for the Parties, also agree that the time for class members to respond with verification documents, and to object or opt out, should be extended for thirty days. The Parties do not seek an extension on the July 24, 2018 final 4
Case: 1:12-cv-05746 Document #: 626 Filed: 04/25/18 Page 5 of 7 PageID #:23053 approval hearing. 2 Because the parties will need the data from the settlement administrator for various filings, the parties seek an extension of the following deadlines: (1) Response to Plaintiff s Motion for Class Incentive Award currently set for June 19, 2018; (2) the Parties Request for Final Approval set for June 21, 2018; (3) supporting memoranda regarding final approval set for June 21, 2018; and (4) memoranda addressing objections set for June 21, 2018. The settlement administrator also needs additional time to complete the tasks set for June 21, 2018, including providing an accounting of all costs and expenses and an estimate of fees, filing a declaration concerning notice to the class, compliance with the settlement agreement and information concerning the total claims. The Parties thus request that all of these deadlines be re-set for July 9, 2018 so that they will have access to the claims information prior to having to file the above-referenced documents. Prayer for Relief For the reasons stated above, counsel for all Parties jointly request that this Court enter the attached Order approving of the recommended follow up plan to provide post-card notice to those Indirect Notice Claimants who did not receive a verification email and to extend the time for Class Members to produce additional documentation to complete their claims. 2 Attached at Exhibit B is a Proposed Order that extend various filing deadlines but does not change the date of the Final Approval hearing. 5
Case: 1:12-cv-05746 Document #: 626 Filed: 04/25/18 Page 6 of 7 PageID #:23054 RESPECTFULLY SUBMITTED, Counsel for Plaintiff For the Plaintiff, Philip Charvat, /s/ Matthew P. McCue Matthew P. McCue (pro hac vice) The Law Office of Matthew P. McCue 1 South Ave., Third Floor Natick, MA 01760 Telephone: (508) 655-1415 Facsimile: (508) 319-3077 mmccue@massattorneys.net Alexander H. Burke Daniel J. Marovitch Burke Law Offices, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 Facsimile: (312) 729-5289 aburke@burkelawllc.com dmarovitch@burkelawllc.com Edward A. Broderick (pro hac vice) Broderick Law, P.C. 125 Summer St., Suite 1030 Boston, MA 02110 Telephone: (617) 738-7080 Facsimile: (617) 314-7783 ted@broderick-law.com For the Defendant, Carnival Corporation & PLC s, /s/ Jeffrey S. Becker Jeffrey S. Becker, Esq. SWANSON, MARTIN & BELL, LLP 330 N. Wabash, Suite 3300 Chicago, Illinois 60611 6
Case: 1:12-cv-05746 Document #: 626 Filed: 04/25/18 Page 7 of 7 PageID #:23055 For the Defendants, Royal Caribbean Cruises Ltd. s and NCL (Bahamas) Ltd., /s/ Catherine J. MacIvor Catherine J. MacIvor, Esq. FOREMAN FRIEDMAN, PA 2 South Biscayne Blvd., Suite 2300 Miami, FL 33131 CERTIFICATE OF SERVICE I hereby certify that on April 25, 2018, I electronically filed the foregoing with the Clerk of the Court, using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Daniel J. Marovitch 7
Exhibit A
Case: 1:12-cv-05746 Document #: 626-1 Filed: 04/25/18 Page 1 of 2 PageID #:23056
Case: 1:12-cv-05746 Document #: 626-1 Filed: 04/25/18 Page 2 of 2 PageID #:23057
Exhibit B
Case: 1:12-cv-05746 Document #: 626-2 Filed: 04/25/18 Page 1 of 4 PageID #:23058 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Philip Charvat on behalf of himself and others ) similarly situated, ) Plaintiff, ) Case No. 1:12-cv-5746 ) v. ) Judge Wood ) Mag. Judge Rowland Elizabeth Valente, Resort Marketing Group, Inc., ) Carnival Corporation & PLC, Royal Caribbean ) Cruises, Ltd., NCL (Bahamas) Ltd. ) Defendants. ORDER ON PARTIES JOINT MOTION TO EXTEND VERIFICATION PERIOD FOR THIRTY DAYS AND TO SEND POST CARD NOTICE TO CLAIMANTS WHO DID NOT RECEIVE VERIFICATION EMAIL On March 18, 2018, this Court issued an Order on the Parties Joint Request To Authorize Claims Administrator To Request Follow Up Documentation From Certain Class Members (the Verification Order ). (DE #620). The Verification Order was issued after the Settlement Administrator, Kurtzman Carson Consultants LLC ("KCC ), informed the Court that an unknown, but substantial, number of claims filed via the settlement web-site portal by consumers who received publication notice of the settlement ( Indirect Notice Claims ) were potentially fraudulent. Thereafter, the Court ordered KCC to send email notice to Indirect Notice Claimants informing them of the need to provide additional documentation to complete their claims. KCC proceeded to do so, sending email notices to over 2.6 million Indirect Notice Claimants on April 8, 2018 and a reminder email on April 20, 2018. Following this email campaign, however, KCC informed counsel for the Parties that it received bounce back messages for a small percentage of Indirect Notice Claimants indicating these class members did 1
Case: 1:12-cv-05746 Document #: 626-2 Filed: 04/25/18 Page 2 of 4 PageID #:23059 not receive either email. KCC has explained that bounce back messages may be due to the fact that the email address was not properly entered by the class member, that the class member is no longer using the email address, or due to other technical issued relating to the class members email service providers. To ensure that these remaining Indirect Notice Claimants receive notice of the need to produce verification documents, the Parties have proposed that KCC send these class members a post card notice substantially similar in content to the e-mail notice sent to other Indirect Notice Claimants. To otherwise accommodate all Indirect Notice Claimants in their submission of verification documents, the Parties have also proposed extending the deadline for submissions, and otherwise for all class members to object or to opt out of this settlement to May 31, 2018. Accordingly, the Court ORDERS, the following: 1. The Settlement Administrator is authorized to send a post-card notice to any Indirect Notice Claimant that it has reason to believe did not receive either verification email instructing the class member of the need to submit additional documentation to complete their claim. 2. The content of the post-card is to be substantially similar to the e-mail notice sent to other Indirect Notice Claimants. 3. In order to otherwise accommodate all Indirect Notice Claimants in their submission of verification documents, the Court also extends the deadline for submissions, and otherwise for all class members to object or to opt out of this settlement to May 31, 2018. 4. In addition, the following deadlines specified in the Settlement Agreement shall be modified to the dates expressly sated below: 7/9/18 Response to Motion for Class Attorneys Fees award due; 7/9/18 Response to Motion for Class Incentive Award due; 7/9/18 Settlement Administrator to provide accounting of all costs and expenses as well as an estimate of fees for any and all Settlement Administration Expenses to be incurred after the Funding Date; 2
Case: 1:12-cv-05746 Document #: 626-2 Filed: 04/25/18 Page 3 of 4 PageID #:23060 7/9/18 Settlement Administrator shall file with the Court and serve on Class Counsel and Cruise Defendants Counsel, a declaration attesting to the satisfaction of Class Notice Requirements contained in the Agreement and the Court s Preliminary Approval Order including proof that notice was provided pursuant to the requirements of the Settlement Agreement and the Order; proof that notice was provided to the appropriate State and federal officials pursuant to the Class Action Fairness Act, 28 U.S.C. 1715; as well as a declaration attesting to the results of the notice plan, such as the estimated reach of notice, the number of undeliverable mailings, and the number of internet impressions; 7/9/18 Settlement Administrator shall file with the Court and serve on Class Counsel and Cruise Defendants Counsel, a declaration attesting to compliance with the Agreement and listing each member who timely and validly submitted a request for exclusion opting out of the Settlement; 7/9/18 The Parties shall request that the Court enter Final Approval of the Order; 7/9/18 Class Counsel shall file memorandum supporting the Motion for Final Approval; 7/9/18 - Class Counsel and/or Cruise Defendants may file memorandum addressing any Objection to Settlement; and 7/9/18 Settlement Administrator shall file with the Court and serve on Cruise Defendants Counsel a declaration stating that the Notice required by the Agreement has been completed in accordance with the terms of the Preliminary Order. 5. The Settlement Administrator shall file with the Court by no later than Monday, July 9, 2018, proof that notice was provided pursuant to the requirements of the Settlement Agreement and the Order; proof that notice was provided to the appropriate State and federal officials pursuant to the Class Action Fairness Act, 28 U.S.C. 1715; as well as a declaration attesting to the results of the notice plan, such as the estimated reach of notice, the number of undeliverable mailings, and the number of internet impressions. 3
Case: 1:12-cv-05746 Document #: 626-2 Filed: 04/25/18 Page 4 of 4 PageID #:23061 IT IS SO ORDERED. Entered: ANDREA R. WOOD UNITED STATES DISTRICT JUDGE 4