Clark v. Gannett Co., Inc.

2018 IL App (1st) 172041

No. 1-17-2041

Opinion filed November 20, 2018

Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

)
)
RAMONA CLARK and DYLAN
) Appeal from the Circuit Court
SCHLOSSBERG, Individually and on Behalf of
) of Cook County.
All Others Similarly Situated,
)
)
Plaintiffs-Appellees and
)
Cross-Appellants,
)
) No. 16 CH 06603
v.
)
)
GANNETT CO., INC., a Delaware Corporation,
)
)
Defendant-Appellee.
)
) The Honorable
(Gary Stewart, Objector-Appellant and Cross­
) Kathleen G. Kennedy and
Appellee; Christopher A. Bandas and C. Jeffrey
) Pamela McLean Meyerson,
Thut, Cross-Appellees).
) Judges, presiding.
)

JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justice Walker concurred in the judgment and opinion.
Presiding Justice Mason specially concurred, with opinion.

OPINION

¶1 The relationship between class counsel and objector’s counsel can be a tense and

combative one. And when objector’s counsel happens to be professional objectors, who impose

objections for personal financial gain without little or no regard for the interests of the class
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members, open hostility often ensues. Objector’s counsel here, Christopher A. Bandas, of Corpus

Christi, Texas, and C. Jeffrey Thut, of Chicago, have provoked more than the ire of class counsel,

earning condemnation for their antics from courts around the country. Yet, their obstructionism

continues.

¶2 After the trial court overruled objector counsel’s boilerplate objections to the settlement

agreement and attorneys’ fees, class counsel decided to expose what they regarded as a farce by

moving under Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) for sanctions against objector’s

counsel.

¶3 The trial court held a hearing on the Rule 137 motion. The objector, Gary Stewart, of

Cardiff, California, who had been ordered to appear at the hearing, was a no-show. The trial court

held Stewart in contempt, fined him $500, and struck his objections to the settlement and

attorneys’ fees. The trial court also denied sanctions against objector’s counsel.

¶4 Stewart appeals the trial court’s contempt order. But, his notice of appeal is defective.

The notice of appeal identifies an order that had been withdrawn and omits mention of the

superseding order issued four days later. Thus, this court lacks jurisdiction to review Stewart’s

contempt finding, and it stands.

¶5 Stewart also appeals the trial court’s order denying his objections to the class settlement

and granting the full amount of class counsel’s request for attorneys’ fees. Because the contempt

order stands, and that order struck his objections, we need not address his objections.

¶6 In the course of the Rule 137 hearing, the trial court granted a motion in limine to exclude

evidence of objector’s counsel’s pattern of conduct in representing objectors in class action

lawsuits. We reverse that ruling and remand for new Rule 137 hearing at which this evidence will

be admitted to determine whether the objection was filed for an improper purpose.

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¶7 Finally, we direct the clerk of our court to forward a copy of this order to the Attorney

Registration and Disciplinary Commission (ARDC) to determine whether disciplinary action

should be taken against Bandas and Thut.

¶8 The Parties

¶9 Plaintiff-Class representatives, Ramona Clark and Dylan Schlossberg, represented by

Edelson PC, of Chicago, sued Gannett Co., Inc., in a class action suit alleging violations of the

Telephone Consumer Protection Act of 1991 (Telephone Consumer Protection Act) (47 U.S.C.

§ 227 (b)(1)(A)(iii) (2012)). A disbarred California attorney referred objector Gary Stewart, of

Cardiff, California, to attorney Christopher Bandas, a member of the Texas state bar who is not

licensed to practice law in Illinois. C. Jeffrey Thut, of Chicago, acted as local counsel for Bandas.

¶ 10 Background

¶ 11 Plaintiffs alleged that Gannett violated the Telephone Consumer Protection Act (id.) by

promoting the sale of its newspapers through unsolicited marketing calls to cellular telephones of

a class of about 2.6 million individuals. Plaintiffs sought actual and statutory damages, an

injunction on unsolicited calls, and declaratory relief.

¶ 12 In January 2014, Richard Casagrand and Schlossberg filed an almost identical lawsuit in

the United States District Court for the District of New Jersey. About two years later, during

which little formal discovery appears to have been exchanged, the parties spent a full day in

mediation with former federal Judge Wayne R. Andersen. In April, the parties held another full

day with Judge Andersen. Next, Casagrand and Schlossberg voluntarily dismissed the New Jersey

case, and in May 2016, Schlossberg along with Clark (in place of Casagrand) refiled the virtually

identical case in the chancery division of the circuit court of Cook County.

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¶ 13 By July, the parties had signed a settlement agreement establishing a nonreversionary fund

of $13.8 million. Gannett also promised to initiate various measures designed to ensure

compliance with the Act and prevent future unwanted telemarketing calls to consumers. On the

matter of class counsel’s attorneys’ fees, the settlement agreement provided: “Class Counsel will

petition the Court for an award of reasonable attorneys’ fees,” which class counsel agreed “to

limit” at “no more than 39% of the Settlement Fund.”

¶ 14 The following month, in August 2016, Judge Kathleen Kennedy preliminarily approved

the settlement and directed notice to a settlement class. According to the parties, 99% of the

settlement class of 2.6 million members received direct notice of the suit. About 50,000 members

made claims to participate in the settlement. Absent from the record is a transcript of the

preliminary hearing.

¶ 15 In October, class counsel moved for an award of attorneys’ fees, expenses, and an

incentive award for the class representatives.

¶ 16 The sole objector to the settlement was Stewart. His participation was solicited by a

disbarred California attorney, Darrell Palmer, who referred Stewart to Texas attorney Bandas. In

turn, Bandas contacted Chicago attorney Thut to act as his local counsel. On the last day for filing

objections, Thut signed and filed an objection prepared by Bandas, which included this statement:

“Objector is also represented by Christopher Bandas, with Bandas Law Firm, PC, 500 N.

Shoreline, Corpus Christi, Texas 78401, as his general counsel in objecting to the settlement. Mr.

Bandas does not presently intend on making an appearance for himself or his firm.” At no time

did Bandas file an appearance or sign a pleading.

¶ 17 Bandas’s objection on behalf of Stewart argued that class counsel’s attorneys’ fees were

excessive and class members had received insufficient information in the class notice regarding

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the settlement terms. After class counsel’s response, Stewart added an objection to the amount of

the settlement.

¶ 18 At the fairness hearing, the Edelson PC firm argued that the objection was a “cut and paste

job” filed by a professional objector. Thut’s total oral argument consisted of a single sentence,

“We are resting on our papers.”

¶ 19 Judge Kennedy affirmed the certification of the settlement class, overruled Stewart’s

objection, determined that class notice provided adequate information, and found the settlement

agreement “fair, reasonable, and adequate.” As to attorneys’ fees, she found “no basis to require a

net benefit analysis or a Lone Star [sic] cross-check or to supervise the allocation of fees,” and

approved $5,382,000 for attorneys’ fees and expenses, representing a fee of 39% of the settlement

amount, as “within the range of reasonable fees.”

¶ 20 Rule 137 Sanctions

¶ 21 The next month, Edelson PC moved for sanctions against Bandas and Thut under Rule

137. Edelson PC maintained that Bandas and Thut filed Stewart’s objection for an improper

purpose, namely, to elicit attorneys’ fees without providing any benefit to the class or informing

the court of their improper purpose. Bandas and Thut retained separate counsel for the hearing on

the Rule 137 motion. On January 31, 2017, Freeborn & Peters LLP filed an appearance on behalf

of Bandas, along with a motion challenging the court’s jurisdiction over him (735 ILCS 5/2-301

(West 2016)) and asserting the sanctions motion fails to state a claim under section 2-615 of the

Code of Civil Procedure (id. § 2-615). The trial court construed the 2-615 motion as a motion to

strike the sanctions motion.

¶ 22 Edelson PC argued:

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“Ultimately he, you know, Mr. Bandas, got us to a mediation and basically said, ‘I’m

going to—I can delay the settlement which will cost the class and class counsel money.

And, in exchange for me not doing that, you can pay me’—I think his first demand was

near half a million dollars. We ultimately agreed to pay him $225,000 so he wouldn’t

appeal this objection.”

Edelson PC also argued that Bandas’s “game” was to enlist other attorneys to sign documents,

even though he wrote “every single document in this case,” and not sign the objection. As to

Thut, Edelson PC argued he was responsible for Bandas’s actions because he “signed everything

without reviewing it.”

¶ 23 Bandas’s counsel admitted Bandas had “participated in the mediation” and had prepared

the first draft of the objection and stated that “there was input from others.”

¶ 24 On May 19, 2017, Judge Pamela McLean Meyerson ruled on the Rule 137 motion for

sanctions, noting

“The objection to the settlement was prepared by Mr. Bandas and it was reviewed, signed,

and filed by Mr. Thut. Judge Kennedy had overruled the objection and approved the

settlement on November 14th, 2016. At that time there were some arguments about

improper motives of the objector, but she stated that this court attempted to look only to

the merits and makes no determination about any untoward motive behind Mr. Stewart’s

objection.”

¶ 25 Edelson PC requested sanctions (i) striking the objection; (ii) requiring Bandas to obtain

admission to the bar of this state before representing any future clients in Illinois; and (iii)

imposing monetary sanctions or, alternatively, amending the judgment to note that the objection

had been resolved by settlement, essentially enforcing Bandas’s alleged demand of $225,000 to

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drop the appeal. Judge Meyerson refused to strike the objection on the basis that Judge Kennedy

had overruled it. Judge Meyerson then found that Rule 137 sanctions did not apply to Bandas

because he did not sign the objection and had not filed an appearance in this jurisdiction, but

suggested filing a complaint with the ARDC about Bandas not having been admitted pro hac

vice.

¶ 26 Regarding Thut, Judge Meyerson ordered an evidentiary hearing limited to the issue of

whether Thut filed the objection for an improper purpose: “My holding is that I do need more

evidence and I will set an evidentiary hearing, but it’s going to be strictly limited. I mentioned

what the sanctions were that have been requested. The only sanction that I will consider at this

point is a monetary sanction. I will not strike the objection because it’s already been overruled by

Judge Kennedy. I won’t require anything of Mr. Bandas because it is only with respect to Mr.

Thut, and I will not enforce the alleged settlement as a sanction because while Plaintiff asked me

to enforce the settlement as an alternative sanction, Plaintiff also says that the mediation was a

sham and that the settlement agreement [with the objector] is the product of extortion.”

¶ 27 Edelson PC served Stewart with an Illinois Supreme Court Rule 237(b) (eff. July 1, 2005)

notice to appear at the evidentiary hearing. Thut, as Stewart’s counsel, moved to quash Stewart’s

appearance. The court denied the motion, and ordered Stewart’s appearance.

¶ 28 Rule 137 Sanctions Evidentiary Hearing

¶ 29 Before the hearing, Thut moved in limine to bar any testimony or evidence regarding other

class action cases in which he served as objector’s counsel or in which sanctions were sought

against him.

¶ 30 Edelson’s Testimony

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¶ 31 At the hearing, attorney Jay Edelson, of Edelson PC, testified that he represented the class

and lead negotiations to resolve Stewart’s objection. In October 2016, he called Thut to discuss

the objector’s request for more information to assess the settlement’s reasonableness. Thut

“responded with impatience,” did not seem to understand that he had made that objection, and he

didn’t care.” Thut responded that he “should speak to his co-counsel [Bandas] who’s really

leading the case.” Thut also said Bandas was “calling all of the shots.” After some discussion

about inaccuracies in the objection, Thut “started swearing” and, eventually, hung up on him.

¶ 32 Thut, in a letter dated October 27, 2016, to Jay Edelson, stated that Bandas served as lead

counsel, made all the decisions, and would move to be admitted pro hac vice in Illinois.

¶ 33 Balabanian’s Testimony

¶ 34 Edelson PC attorney Rafey Balabanian testified that he knew Stewart acted as a

“professional objector.” He noted that Stewart’s objection described Bandas to be “general

counsel,” and he believed Stewart’s objection indicated Bandas intended to seek pro hac vice

admission, which Bandas never did. (The objection states, “Mr. Bandas does not presently intend

on making an appearance for himself or his firm.”) Balabanian said Thut repeatedly told him that

Bandas represented Stewart.

¶ 35 Balabanian spoke with Thut outside Judge Kennedy’s courtroom after the initial final

fairness hearing,

“Judge Kennedy entered and continued the motion for final approval. Mr. Thut left the

courtroom rather abruptly. I recall I walked out after him. I told him that—I reminded him

about the contents, essentially, of the letter that my partner had sent to him on, I think,

October 18th, expressing that Christopher Bandas was a serial professional objector, that

he filed objections for the improper purpose of extorting fees for himself as proved, and

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that if he persisted in acting as counsel for Mr. Stewart, that we would likely sue him for

that conduct.”

Thut responded by calling Balabanian “Junior” and saying Balabanian should talk to Bandas

because “he was calling the shots.”

¶ 36 After the hearing at which Judge Kennedy approved the settlement, Balabanian spoke

with Thut about withdrawing from the case. Thut said Balabanian should speak to Bandas about

resolving the case because “he’s the one running the show” and “he speaks for us.” Balabanian

denied chasing Thut down the hall and asking him to resolve the objection to avoid an appeal.

¶ 37 Next, Bandas returned a telephone call from Balabanian to discuss “potentially resolving”

Stewart’s objection. Balabanian wanted to talk about the objection because he thought they had

an “understanding” that “we don’t pay professional objectors.” Bandas “became irritated” and

called the subject “nonsense,” then hung up. A few days later, Balabanian e-mailed Bandas to

again inquire about resolving the objection. Bandas responded that he did not “trust” Balabanian

and they would need to communicate through a mediator.

¶ 38 Balabanian e-mailed Bandas on November 30 about mediation. Bandas responded,

suggesting a mediator, Rodney Max. Bandas e-mailed Max (copying Balabanian) that he

represented the objector “and soon-to-be appellant” and Balabanian for the settlement class and

Bandas for Stewart, had agreed to mediate fees for Bandas.

¶ 39 Then, Max and Bandas spoke by telephone, followed by Max relating to Balabanian a

demand from Bandas “to his group” of between $225,000 and $457,000. The demand did not

seek any alterations to the class settlement. Balabanian understood this to mean the objection

would “potentially” be resolved in exchange for a payment. Balabanian did not know if the

demand included any payment to Stewart.

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¶ 40 Balabanian asked Max for Bandas’s justification for the requested payment, explaining

that a payment without any relief for the class was inappropriate and improper. Bandas’s response

to Max was that he had no obligation to improve the settlement on behalf of the class, he

represented only his client’s interest, and the payment demand had nothing to do with the time he

put into the case. Balabanian “felt as though we were being extorted” and made no counteroffer

but asked if “$225,000 would actually settle the matter.” Balabanian understood this to mean that

if his firm paid $225,000, Bandas and Thut would not pursue an appeal. Max confirmed an

agreement between class counsel and Bandas for the $225,000. When Max informed Bandas of

Edelson PC’s intent to seek court approval of the payment as required by statute (735 ILCS 5/2­

806 (West 2016)), Bandas responded that disclosure of the mediation agreement could not be

made to anyone, “including the court.”

¶ 41 An objection to a question regarding Bandas’s reputation in the legal community was

sustained by the trial court.

¶ 42 On cross-examination, Thut’s lawyer questioned Balabanian, eliciting testimony that

Bandas’s conduct as a serial objector was well-known to the class action community.

¶ 43 Thut’s Testimony

¶ 44 Thut testified that before this case, he had been co-counsel with Bandas on objections

involving three class action cases; two in federal court, and one in Illinois state court. Bandas was

admitted to practice in federal court so he would handle appeals in those cases. As for the Gannett

settlement, Bandas called Thut on the morning of October 21, 2016, the deadline for objections,

and they had a five-minute conversation about Stewart’s need for representation. Thut received

Bandas’s objection by e-mail at 1 p.m. Thut checked the settlement website, read the objection

and exhibits, and called Bandas back. Thut said he asked Bandas, “Is everything in here true and

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correct?” and “Did this guy sign this?” After Bandas answered “absolutely” and “yes, he did,”

Thut “hopped in [his] car” and “flew down” to the Skokie courthouse to meet the filing deadline.

Thut filed the objection at 4:30 p.m.

¶ 45 Thut did not review any case law. He was satisfied that Stewart’s objection was “factually

accurate and warranted by existing law.” Thut did not have a retainer agreement with Stewart,

and he did not know whether Bandas and Stewart had a retainer agreement but assumed they did.

¶ 46 Trial Court’s Ruling

¶ 47 The trial court found by a preponderance of the testimony that the objection was not filed

for an improper purpose. The trial court further declined to grant the Rule 137 motion for

sanctions.

¶ 48 Stewart’s Contempt Finding

¶ 49 On the day of the hearing, July 19, 2017, Stewart failed to appear. Judge Meyerson found

Stewart to be in direct criminal contempt and imposed a $500 fine. But the written order entered

on July 20 read that Stewart had been found

“in indirect criminal contempt of court for his knowing failure to appear at the evidentiary

hearing on July 19, 2017, in violation of the Court’s Orders of June 30 and July 19, 2017.

As a sanction, Mr. Stewart is ordered to pay a fine in the amount of $500 to the Clerk of

the Circuit Court of Cook County within 30 days of the date of this Order. In addition, the

Court strikes Mr. Stewart’s objection to the settlement in this matter (which objection was

previously overruled).”

¶ 50 On July 24, on Clark and Schlossberg’s motion, Judge Meyerson withdrew the July 20

order, finding Stewart in direct criminal contempt of court to conform to her oral pronouncement.

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¶ 51 Stewart’s Notice of Appeal referenced only the July 20 order that found him in indirect

criminal contempt. His Notice of Appeal does not mention or refer to the July 24 order. In his

prayer for relief he “requests that the Appellate Court reverse the November 14, 2016 Order

overruling his objection and reverse the July 20, 2017 Order finding Mr. Stewart in Contempt,

imposing a $500 on him, and striking his objection.”

¶ 52 Analysis

¶ 53 Stewart’s Notice of Appeal

¶ 54 We have an independent duty to review our jurisdiction over an appeal and dismiss when

it does not exist. Vines v. Village of Flossmoor, 2017 IL App (1st) 163339, ¶ 8 (citing Archer

Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984)). Illinois Supreme Court Rule

303(b)(2) provides that a notice of appeal “shall specify the judgment or part thereof or other

orders appealed from and the relief sought from the reviewing court.” Ill. S. Ct. R. 303(b)(2) (eff.

June 4, 2008). Without a properly filed notice of appeal, the appellate court lacks jurisdiction over

the matter and must dismiss the appeal. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176

(2011). A notice of appeal confers jurisdiction on the appellate court to consider only the

judgments or parts of judgments specifically identified in the notice. Corah v. The Bruss Co.,

2017 IL App (1st) 161030, ¶ 20 (citing General Motors Corp., 242 Ill. 2d at 176).

¶ 55 The July 20 order found Stewart in “indirect criminal contempt.” The July 24 order

withdrew the July 20 order and found Stewart in “direct criminal contempt.” Stewart’s notice of

appeal references only the withdrawn July 20 order and Judge Kennedy’s November 14, 2016

order overruling his objection to the settlement.

¶ 56 Stewart’s insurmountable problem is that Judge Meyerson withdrew the July 20 order and

issued a different order on July 24, superseding the order specified in his notice of appeal. Under

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Illinois Supreme Court Rule 303(b)(2) (eff. July 1, 2017), an appellant must “specify the

judgment or part thereof or other orders appealed from and the relief sought from the reviewing

court.” The appellate court has jurisdiction only to review the judgments or parts of judgments

identified, or inferred from, the notice of appeal. City of Chicago v. Concordia Evangelical

Lutheran Church, 2016 IL App (1st) 151864, ¶ 70. Further, a notice of appeal will be deemed to

include an unspecified interlocutory order when the interlocutory order was a step in the

procedural progression leading to the judgment specified in the notice. Id. In City of Chicago, the

trial court’s ruling on a motion in limine was a step in the procedural progression leading to the

final order specified in the notice. Id. ¶ 71. Here, the order specified in the notice, the withdrawn

order, preceded the order that held Stewart in contempt. The July 20 order, having been

withdrawn, no longer exists and cannot be the basis for an appeal. See Kelch v. Watson, 237 Ill.

App. 3d 875, 877 (1992) (“The effect of a vacated order is that of a void order. Black’s Law

Dictionary defines ‘vacate’ as follows: ‘[t]o annul; to set aside; to cancel or rescind. To render an

act void; as, to vacate an entry of record, or a judgment.’ (Black’s Law Dictionary 1548 (6th ed.

1990).”).

¶ 57 Finally, the notice filed on August 15, 2017, referenced four orders: November 14, 2016;

June 30, July 17, and July 20, 2017. During oral argument, Thut represented to this court that the

proper order (the July 24 order) was attached to the notice of appeal. Contrary to Thut’s

statement, not only did the notice of appeal not reference or attach the July 24 order, but none of

the four orders referenced as exhibits in the body of the notice were attached either. The notice of

appeal in the record consists of two pages without any attachments.

¶ 58 We must comply with the Illinois Supreme Court Rules governing appeals, and neither a

trial court nor an appellate court has the authority to excuse compliance with the filing

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requirements. Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (1994). Thus, we lack jurisdiction

to consider Stewart’s appeal.

¶ 59 Class Counsel’s Cross-Appeal

¶ 60 Class counsel cross-appeals (i) the order denying sanctions under Rule 137 against

Bandas; (ii) the evidentiary rulings excluding evidence, including the grant of Thut’s motion

in limine related to objections to class action settlements in which Thut was counsel; and (iii) the

trial court’s order denying sanctions under Rule 137 against Thut. Class counsel asks that we

remand for a new evidentiary hearing.

¶ 61 After thoroughly reviewing the record, including the transcripts and pleadings in the trial

court, we recognize the cross-appeal for what it is—an internecine clash between class counsel

and objector counsel, between Edelson PC and Bandas-Thut. So we refer to the Edelson PC firm

rather than the named plaintiffs because the cross-appeal, at its core, is a feud that the Edelson PC

firm has with objector’s counsel. This is nothing new to class action litigation; an objector by

challenging one or more aspects of the settlement transforms the fairness hearing into an

adversarial proceeding. And, from time to time, as here, objections are not class member driven

but driven by attorneys interested in lining their own pocket-books. Stewart was plucked by an

intermediary, a disbarred lawyer to boot, for Bandas-Thut.

¶ 62 Edelson PC claims that Bandas-Thut’s motive for objecting was nothing short of

disingenuous and Bandas-Thut interposed the last-minute objection for their own pecuniary

interests, their own self-interests; in other words, to extort a fee for themselves. For this reason,

Edelson PC moved for Rule 137 sanctions against Bandas-Thut, asserting that the objection was

filed for “an improper purpose.” Essentially, Edelson PC depicts Bandas-Thut as hold-up artists

deliberately manipulating the legal system to collect an unearned bonanza at Edelson PC’s

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expense. This is self-serving because here every dollar for fees reduces what is available to class

members and, accordingly, is at the class members’ expense.

¶ 63 Illinois Supreme Court Rule 137 Sanctions

¶ 64 Edelson PC asserts error in the July 19, 2017, granting of Thut’s motion in limine to

exclude all evidence related to other objections to class action settlements in which Thut was

counsel. According to Edelson PC, by so doing, the trial court excluded certain evidence

demonstrating Thut’s knowledge of the extortionate purpose of the objection. Edelson PC argues

that the trial court failed to follow procedures required by the Attorney Act (705 ILCS 205/1

(West 2014)), thereby allowing Bandas and Thut to file documents “in a manner that avoids any

attorney taking responsibility for their contents.”

¶ 65 Rule 137 requires every pleading, motion and other document of a party represented by an

attorney to be signed by at least one attorney of record.

“The signature of an attorney or party constitutes a certificate by him that he has read the

pleading, motion or other document; that to the best of his knowledge, information, and

belief formed after reasonable inquiry it is well grounded in fact and is warranted by

existing law or a good-faith argument for the extension, modification, or reversal of

existing law, and that it is not interposed for any improper purpose, such as to harass or to

cause unnecessary delay or needless increase in the cost of litigation.” Ill. S. Ct. R. 137(a)

(eff. Jan. 1, 2018).

(We do not condone the use of sexist language; the pronouns should be reconfigured to refer to

both sexes or, better yet, gender-free. We urge the supreme court to substitute gender-neutral

language.) Rule 137 further provides that if a document is signed in violation of this rule, the

court, either on a motion or its own initiative, may impose on the person who signed it “an

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appropriate sanction, which may include an order to pay to the other party or parties the amount

of reasonable expenses incurred because of the filing of the pleading, motion or other document,

including a reasonable attorney fee.” Id.

¶ 66 The supreme court designed Rule 137 to prevent abuse of the judicial process by

sanctioning parties who file vexatious and harassing actions based on unsupported allegations of

fact or law. Dismuke v. Rand Cook Auto Sales, Inc., 378 Ill. App. 3d 214, 217 (2007). See

Sanchez v. City of Chicago, 352 Ill. App. 3d 1015, 1020 (2004) (“The purpose of Rule 137 is to

prevent the filing of false and frivolous lawsuits.”). The purpose is not, however, to punish parties

“simply because they have been unsuccessful in the litigation.” Burrows v. Pick, 306 Ill. App. 3d

1048, 1050 (1999). Using an objective standard, the trial court must evaluate whether a party

made a reasonable inquiry into the facts and law supporting his or her allegations. Dismuke, 378

Ill. App. 3d at 217. Penal in nature, Rule 137 is strictly construed, and courts reserve sanctions for

egregious cases. Webber v. Wight & Co., 368 Ill. App. 3d 1007, 1032 (2006). The party seeking

sanctions for a violation of the rule bears the burden of proof and must show that the opposing

party made untrue and false allegations without reasonable cause. Stiffle v. Baker Epstein Marz,

2016 IL App (1st) 150180, ¶ 32.

¶ 67 When considering the propriety of Rule 137 sanctions, a reviewing court determines

whether (i) a trial court’s ruling was based on adequate information, (ii) valid reasons appropriate

to the case are identifiable, and (iii) the ruling logically follows from applying the reasons stated

to the particular circumstances. Berg v. Mid-America Industrial, Inc., 293 Ill. App. 3d 731, 737

(1997). Before imposing sanctions, a hearing must be conducted to afford the parties an

opportunity to present evidence to support or rebut the claim and to allow them to articulate their

respective positions. Id. at 736. See Century Road Builders, Inc. v. City of Palos Heights, 283 Ill.

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App. 3d 527, 531 (1996) (“An evidentiary hearing should always be held when a sanction award

is based upon a pleading filed for an improper purpose, rather than one which is merely

unreasonable based on an objective standard.”). The ruling on the motion in limine foreclosed

Edelson PC from presenting evidence of the relationships between serial objector Stewart and

Texas attorney Bandas, who has a history with courts across the country of acting frivolous,

vexatious, and in bad faith. See infra ¶ 69.

¶ 68 Thut, as Stewart’s Illinois attorney, argues that he should not be held responsible for

Bandas’s actions, despite signing the objection. Thut avers the objection to the settlement was

proper and that Judge Kennedy overruled Stewart’s objection but declined to find the objection

frivolous “or impute untoward motives toward Thut.”

¶ 69 There are two ways an objector might be paid: first, “by raising the value of a class action

settlement and receiving a percentage of the increase in value or a fixed-payment for having

improved the settlement” or, “on the other hand, he might intervene and cause expensive delay in

the hope of getting paid to go away. The former purpose for intervening would be entirely proper,

while the latter would not.” Vollmer v. Selden, 350 F.3d 656, 660 (7th Cir. 2003). The attempt to

intervene might not be frivolous, but the court must decide whether sufficient evidence supports

the trial court’s conclusion regarding improper purpose. Id. at 659. The pattern of conduct

engaged in by Bandas, Thut, and Stewart is relevant to the objection’s possible improper purpose

of seeking attorneys’ fees with the bare minimum of effort, expense, and time.

¶ 70 Bandas-Thut, with Stewart as the objector, have used this strategy in multiple cases in

different states. This case was the impetus for the federal lawsuit brought by Edelson PC accusing

the defendants of various racketeering and conspiracy violations of federal statutes. We take

judicial notice of that proceeding. Edelson PC v. The Bandas Law Firm PC, No. 16 C 11057,

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2018 WL 3496085, at *2 (N.D. Ill. July 20, 2018). Plaintiff Edelson PC accused Bandas, Thut,

Stewart, and 20 unnamed John Does of being “vexatious litigants” who allegedly recruit “sham”

objectors to frivolously object, appeal its denial, settle out of court, then withdraw as soon as class

counsel agrees to a nominal amount in “attorneys’ fees.” As noted in Judge Pallmeyer’s ruling in

Edelson PC, “courts nationwide have denounced Defendants’ behavior,” specifically Bandas,

Thut, and Stewart. The Gannett case was cited as one of 15 lawsuits since 2009 in which Bandas,

Thut, and Stewart have repeated this same basic pattern—frivolously object, appeal its denial,

settle out of court, and withdraw. See id. (“Nevertheless, courts across the country have

excoriated Defendants’ exploitative, rent-seeking behavior in cases in which their involvement

has come to light.”). One federal judge found that “Bandas routinely represents objectors

purporting to challenge class action settlements, and does not do so to effectuate changes to

settlements, but does so for his own personal financial gain [and] has been excoriated by Courts

for this conduct.” In re Cathode Ray Tube (CRT) Antitrust Litigation, 281 F.R.D. 531, 533 (N.D.

Cal. 2012). Another federal judge described Mr. Bandas as “a known vexatious appellant” who

has been “repeatedly admonished for pursuing frivolous appeals of objections to class action

settlements.” In re General Electric Co. Securities Litigation, 998 F. Supp. 2d 145, 156 (S.D.N.Y.

2014). See, e.g., In re Oil Spill by the Oil Rig “Deepwater Horizon,” 295 F.R.D. 112, 159 n.40

(E.D. La. 2013); Garber v. Office of the Commissioner of Baseball, No. 12-CV-03704, 2017 WL

752183 (S.D.N.Y. Feb. 27, 2017).

¶ 71 The same pattern of “rent-seeking behavior” expressed in Edelson PC exists here. An

order denying Rule 137 sanctions will not be disturbed on review absent an abuse of discretion.

Oviedo v. 1270 S. Blue Island Condominium Ass’n, 2014 IL App (1st) 133460, ¶ 46 (citing

Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 47). But our deferential standard of review does

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not prevent this court from independently reviewing the record to determine whether the facts

warrant an abuse of discretion finding. Id. Here, as in Oviedo, “the better course is to allow the

trial court, on consideration of our views” regarding the claims of an improper purpose as the

basis for Stewart’s objection, to revisit the request for sanctions. Id. Therefore, we vacate the

order denying the motion for Rule 137 sanctions and remand this matter to the trial court. We

direct the trial court to conduct a new hearing with admission of evidence of similar conduct in

other cases to determine whether the objection was indeed filed for an improper purpose.

¶ 72 Unauthorized Practice of Law

¶ 73 The Attorney Act requires a license to practice law in Illinois, and only a licensed attorney

can “receive any compensation directly or indirectly for any legal services.” 705 ILCS 205/1

(West 2014); see also Ill. R. Prof’l Conduct (2010) R. 8.5(a) (eff. Jan. 1, 2010) (“A lawyer not

admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the

lawyer provides or offers to provide any legal services in this jurisdiction.”). Section 1 of the

Attorney Act permits a contempt sanction for the unauthorized practice of law, “in addition to

other remedies permitted by law and shall not be construed to deprive courts of this State of their

inherent right to punish for contempt or to restrain the unauthorized practice of law.” 705 ILCS

205/1 (West 2014). The Attorney Act was intended to prevent the practice of a profession by

those who are not licensed. King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 25

(2005). No private right of action exists under the Attorney Act, but other attorneys licensed in

Illinois have standing to bring an unauthorized practice of law cause of action because the

practice of law by unlicensed persons infringes on the rights of those who are properly licensed.

Id. at 26 (citing Richard F. Mallen & Associates, Ltd., v. Myinjuryclaim.com Corp., 329 Ill. App.

3d 953, 956 (2002)).

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¶ 74 Bandas claims there is no basis to sanction him because he is a nonparty and a

nonattorney of record and he did not sign any pleadings. Responding to Edelson PC’s argument,

Bandas asserts Thut was Stewart’s attorney of record and signed the objection. Bandas further

asserts Rule 137 cannot apply to impose sanctions on him and, thus, the trial court did not abuse

its discretion in refusing sanctions.

¶ 75 Bandas hides behind the narrow interpretation of Rule 137 as limited to those attorneys

who sign a pleading or other document. First, Stewart’s objection, filed October 16, 2016,

identifies Bandas, with Bandas Law Firm, PC, in Corpus Christi, Texas, as his general counsel in

objecting to the settlement. Stewart’s objection stated further: “Mr. Bandas does not presently

intend on making an appearance for himself or his firm.” And Bandas unquestionably provided

Stewart legal services that constitute the practice of law in Illinois and subject him to the personal

jurisdiction of this Court, including (i) soliciting a disbarred lawyer to arrange for Stewart to

serve as an objector in Illinois; (ii) agreeing to represent Stewart in the Illinois proceeding, as

Stewart’s objection acknowledges; (iii) drafting Stewart’s objection and listing himself as

Stewart’s lawyer in the Illinois proceeding; (iv) contacting Thut to appear in his stead in the

Illinois proceeding; (v) representing Stewart in discussions with class counsel regarding Stewart’s

objection, by phone, and by e-mail; and (vi) entering into negotiations with class counsel and,

apparently, agreeing to resolve this matter solely in exchange for $225,000 in attorneys’ fees. In

addition, Thut repeatedly informed class counsel that Bandas called the shots, and his role was

limited, so limited, in fact, that at the final hearing Thut made no argument or any other comment

regarding the objection.

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¶ 76 By not signing or appearing in court, Bandas has succeeded in circumventing the Rule

137, but that does not relieve him of responsibility for his undisputed representation of Stewart in

Illinois.

¶ 77 In ruling on the motion for sanctions, the trial court noted “[t]he objection to the

settlement was prepared by Mr. Bandas and it was reviewed, signed, and filed by Mr. Thut.” The

trial court found, however, it had no jurisdiction to sanction Bandas, suggesting the proper route

to pursue sanctions was with the Illinois ARDC. In “a case before a court of the State of Illinois,”

the lawyer must still register with the ARDC, be admitted pro hac vice, and file an appearance.

Ill. S. Ct. R. 707(c)(1) (eff. Feb. 1, 2018). See also III. S. Ct. R. 13 Committee Comments

(adopted June 14, 2013) (noting limited scope appearance applies to attorneys appearing for

“settlement negotiations”). At the very least, subsections (1) and (3) of Rule 13(c) require Bandas

to have filed a limited scope appearance (after being admitted pro hac vice under Rule 707). See

Ill. S. Ct. R. 13(c)(1), (6) (eff. July 1, 2017); R. 707 (eff. Feb. 1, 2018).

¶ 78 The Illinois Supreme Court possesses the authority to regulate the practice of law, but no

all-embracing definition defines its meaning. Grafner v. Department of Employment Security, 393

Ill. App. 3d 791, 797-98 (2009). A “generally accepted definition of the term exists,” however, as

“ ‘the giving of advice or rendition of any sort of service by any person, firm or corporation when

the giving of such advice or rendition of such service requires the use of any degree of legal

knowledge or skill.’ ” Id. at 798 (quoting People ex rel. Chicago Bar Ass’n v. Barasch, 406 Ill.

253, 256 (1950)). Bandas’s method of not applying and appearing pro hac vice is designed to

escape responsibility by appearing not to practice law in this jurisdiction.

¶ 79 Bandas was named as Stewart’s counsel from the inception of proceedings; this status

never changed and presents this court with the conundrum of Bandas filing an objection to reap

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monetary benefits in an Illinois case, and doing all the substantive work, while hiding behind the

cloak of Rule 137.

¶ 80 But, Bandas cannot avoid responsibility so easily. Rule 5.1(c) of the Illinois Rules of

Professional Conduct of 2010 provides,

“A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional

Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct

involved; or

(2) the lawyer *** has direct supervisory authority over the other lawyer, and knows

of the conduct at a time when its consequences can be avoided or mitigated but fails to

take reasonable remedial action.” Ill. R. Prof’l Conduct (2010) R. 5.1(c) (eff. Jan. 1,

2010).

The committee comments indicate paragraph (c) “expresses a general principle of personal

responsibility for acts of another” and references Rule 8.4(a) regarding misconduct. Ill R. Prof’l

Conduct (2010) R. 5.1 cmt. 4 (eff. Jan. 1, 2010); see Ill. R. Prof’l Conduct (2010) R. 8.4(a) (eff.

Jan. 1, 2010) (“It is professional misconduct for a lawyer to: (a) violate or attempt to violate the

Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the

acts of another.”).

¶ 81 We turn to Thut’s actions. Assisting another in the unauthorized practice of law is also the

unauthorized practice of law. III. R. Prof’l Conduct (2010) R. 5.5(a) (eff. Jan. 1, 2010). The

Illinois Rules were adopted in 1990 and modeled after the American Bar Association Model

Rules of Professional Conduct. Schwartz v. Cortelloni, 177 Ill. 2d 166, 179 (1997). Foreign

lawyers “not disbarred or suspended from practice in any jurisdiction, may provide legal services

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on a temporary basis in [Illinois,]” but they must associate with an admitted lawyer “who actively

participates in the matter.” Ill. R. Prof’l Conduct (2010) R. 5.5(c)(1) (eff. Jan. 1, 2010).

“ ‘The signing attorney cannot leave it to some trusted subordinate, or to one of his [or

her] partners, to satisfy himself [or herself] that the filed paper is factually and legally

responsible; by signing he [or she] represents not merely the fact that it is so, but also the

fact that he [or she] personally has applied his [or her] own judgment.’ ” Bachmann v.

Kent, 293 Ill. App. 3d 1078, 1086 (1997) (quoting Pavelic & LeFlore v. Marvel

Entertainment Group, 493 U.S. 120, 125 (1989)).

Here, the documents were prepared by Bandas and signed by Thut, who admittedly did not

review or take an active part in the case. By failing to adequately investigate the basis for the

objections to the proposed settlement before filing, Thut did not use his own judgment, nor did

Bandas adequately supervise his actions.

¶ 82 The annotated comments to the American Bar Association’s Model Rules of Professional

Conduct Rule 5.5 note the following: “Lawyers who work with out-of-state lawyers risk being

deemed to have assisted in them in the unauthorized practice of law.” American Bar Association,

Annotated Model Rules of Professional Conduct, R. 5.5, at 523 (8th ed. 2015). See, e.g., In re

Lerner, 197 P.3d 1067 (Nev. 2008) (lawyer allowed employee licensed only in Arizona to

conduct initial consultations, decide whether to accept representation, negotiate claims, and serve

as clients’ sole contact with firm); In re DuBre, 656 S.E.2d 343 (S.C. 2007) (managing lawyer of

out-of-state collection firm’s South Carolina office signed firm’s pleadings so they could be filed

in state and took no other action in those cases, which were handled by out-of-state lawyers).

¶ 83 Exceptions to the rule enable an out-of-state attorney to participate in pending litigation,

and include a co-counsel situation where representation is undertaken in association with an

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attorney admitted to practice in the jurisdiction and who actively participates in the

representation. Peter J. Walsch, Multijurisdictional Practice of Law Issues in Estate Planning, 40

Est. Plan. 23, 29 (June 2013). For the “temporary basis” to apply, “the affiliation with the local

attorney must be temporary.” Id.

“A local attorney serving as a ‘mere conduit’ to an out-of-state attorney could face

discipline for ‘assisting in unauthorized practice of law.’ For example, in In Re DuBre,

[656 S.E.2d 343 (S.C. 2007)], an attorney was disciplined for an association with an out­

of-state *** law firm through which the attorney lent his name to the pleadings filed

within the state but substantially all substantive work in the matters was done at the office

of the out-of-state law firm. The local attorney may need to implement the action

recommended by the out-of-state attorney so that the local attorney has the opportunity to

review all such actions and protect the client against any advice which falls below the

level of competence.” Id.

The situation described is akin to that presented here, with the out-of-state attorney doing all the

substantive work and the local counsel filing the objection a few scant hours after first hearing of

it via telephone.

¶ 84 Moreover, Thut admitted that he did not have a retainer agreement with Stewart. As Thut

stated, Bandas was “calling all the shots.” Thut was merely the frontman for the objection so that

Bandas did not have to sign any pleadings or appear in court. The record does not establish any

payment-sharing between Bandas and Thut, but we are mindful that any agreement addressing the

division of fees between law firms must comply with Rule 1.5(e), which states:

“(e) A division of a fee between lawyers who are not in the same firm may be made

only if:

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(1) the division is in proportion to the services performed by each lawyer, or if the

primary service performed by one lawyer is the referral of the client to another lawyer and

each lawyer assumes joint financial responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will

receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.” Ill. R. Prof’l Conduct (2010) R. 1.5(e) (eff. Jan. 1,

2010).

¶ 85 Bandas and Thut, and Stewart by extension, have taken advantage of a situation described

as “murky” and with “unpredictable” or “sporadic” enforcement, with a “vastly uncertain” scope

of jurisdictional restrictions in various states. See Arthur F. Greenbaum, Multijurisdictional

Practice and the Influence of Model Rule of Professional Conduct 5.5—An Interim Assessment,

43 Akron L. Rev. 729, 731 n.7 (2010) (“Commission member describing the rules governing

multijurisdictional practice at that time as ‘ambiguous’ and ‘uncertain’ ”). Both attorneys have

engaged in a fraud on the court.

¶ 86 We reverse the judgment of the circuit court of Cook County and remand for further

proceedings consistent with this opinion. The clerk of our court is directed to forward a copy of

this order to the ARDC to determine whether disciplinary action should be taken against Bandas

and Thut.

¶ 87 Reversed and remanded.

¶ 88 PRESIDING JUSTICE MASON, specially concurring:

¶ 89 I concur in the result in this case and agree that we lack jurisdiction over Stewart’s appeal

from the trial court’s order finding him in contempt. The failure of Stewart’s counsel to perfect an

appeal from the July 24, 2017, order precludes us from resolving on the merits issues relating to

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the November 14, 2016, order overruling his objection to the settlement and the propriety of the

trial court’s July 20, 2017 order striking that objection, nunc pro tunc, as a sanction for Stewart’s

failure to appear for a hearing on the petition for Rule 137 sanctions against his attorney. I write

specially because I nevertheless consider it necessary, as future guidance for trial judges, to

comment on the exorbitant fees awarded to class counsel and the lack of any meaningful

examination by the trial court of the justification for those fees.

¶ 90 As noted, a virtually identical class action complaint was originally filed in federal district

court in New Jersey on January 2, 2014. According to class counsel’s brief on appeal, “[t]he

parties litigated the case in that forum for nearly two years.” But examination of the court’s

docket reveals that other than the filing of the complaint and responsive pleadings, there was

virtually no “litigation” to speak of. There was no contested motion practice and, in particular, no

motion for class certification. The court originally ordered that an initial pretrial conference

would be held on July 15, 2014. At the request of the parties, that conference was postponed to

October 30, 2014. Although class counsel represent that the parties engaged in “extensive

discovery,” none of that activity is reflected on the court’s docket.

¶ 91 By September 2015, the parties had agreed to stay the federal case pending mediation.

Ultimately, after several extensions of the stay, the federal case was dismissed by stipulation on

April 27, 2016. Class counsel’s brief explains the reason for the dismissal as based on “the

uncertainty surrounding federal subject-matter jurisdiction in TCPA cases at that time.” In point

of fact, as recited in the stipulation of settlement, class counsel’s concern pertained to the

anticipated decision in Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540 (2016), a case

decided shortly after the parties stipulated to dismiss the federal case. Spokeo dealt not with

subject-matter jurisdiction but rather with a class plaintiff’s ability to demonstrate injury-in-fact

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as required to establish standing to sue under federal law. In Spokeo, the United States Supreme

Court determined that publication of allegedly inaccurate information by a website operator was

insufficient to confer standing on a putative class representative alleging a “bare procedural

violation” of the Fair Credit Reporting Act. Id. at ___, 136 S. Ct. at 1549. The court found that the

procedural violation unaccompanied by an identifiable, “concrete” injury could not satisfy the

injury-in-fact component of standing. Id. at ___, 136 S. Ct. at 1548. As applied in this case, the

allegation in the New Jersey complaint that the named plaintiff and members of the class had

received unsolicited, automated telephone calls, without more, would likely suffer the same fate.

Thus, it is apparent that it was not the lack of subject-matter jurisdiction but standing that

motivated class counsel to abandon a forum in which the court might determine that the named

plaintiff—and hence the class—had not suffered any concrete injury at all.

¶ 92 By the time the New Jersey case was dismissed by stipulation, the parties had participated

in two days of mediation in an effort to settle the case. Although the mediation did not

immediately produce a settlement, later negotiations resulted in an agreement in principle that

called for the federal case to be dismissed and refiled in Cook County. Thus, before the case was

filed here, the parties had agreed to settle it.

¶ 93 The case was refiled in Cook County on May 12, 2016. Two months later, on July 12,

2016, the stipulation of class action settlement was signed. The stipulation of settlement was filed

in the circuit court on October 7, 2016. In addition to the creation of a $13.8 million settlement

fund, the agreement provided that within one year of the settlement’s effective date, Gannett

would (i) provide “training concerning [Telephone Consumer Protection Act (TCPA)]

compliance to key managers who oversee telemarketing calls to consumers” and (ii) “conduct a

review of its internal TCPA compliance procedures and the TCPA compliance procedures of any

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vendor that conducts telemarketing on Gannett’s behalf.” No enforcement or verification

mechanism for this relief is provided for under the settlement. Class counsel also agreed to

“limit” their fees to “no more than 39% of the Settlement Fund” or roughly $5.38 million, plus

costs, including the cost of administering the settlement.

¶ 94 The trial court preliminarily approved the settlement the following month. We have no

way of knowing what, if any, inquiries the trial judge made regarding the “package deal”

presented to her as the parties did not bother to bring a court reporter to the hearing. We do know

that the parties’ appearance on the settlement was, other than routine motions, their first

substantive appearance on the case.

¶ 95 As is typical in TCPA cases, less than 2% of the estimated 2.6 million class members

responded to notice of the settlement. The 50,000 class members who did file claims can expect

to receive, after payment of attorney fees and costs, roughly $150 each. Meanwhile, even if we

had jurisdiction, we would have no record to speak of that would enable us to determine whether

the more than $5 million in fees Class Counsel expect to receive are reasonable or appropriate.

The trial court did not require counsel to file a fee petition supported by time records showing

exactly how much time counsel devoted to the case. As discussed above, the docket in the New

Jersey litigation, participation in two days of mediation and negotiation of the settlement

agreement, particularly lacking any mechanism to enforce the nonmonetary relief beyond the

modest payments to class members, would not appear to warrant such a generous payday. And

while a trial court certainly has discretion to dispense with a lodestar calculation under

appropriate circumstances (Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235, 244

(1995)), where, as here, the parties present the court with a fait accompli and the court has

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absolutely no familiarity with the background of the litigation, the court abdicates its role as the

guardian of the interests of absent class members when it simply accepts counsel’s word for it.

¶ 96 Every dollar that goes to class counsel depletes the funds available to compensate class

members. See Baksinski v. Northwestern University, 231 Ill. App. 3d 7, 15 (1992) (“once an

attorney files a petition for compensation from the [class action settlement] fund, his role changes

from that of a fiduciary for his clients to that of a claimant against the fund which was created for

the benefit of [his] client[ ]”); see also In re Mercury Interactive Corp. Securities Litigation, 618

F.3d 988, 994 (9th Cir. 2010); Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781, 785 (7th Cir.

2004) (reversing district court’s approval of settlement and criticizing court for failing to carefully

scrutinize the settlement’s terms to ensure class counsel was acting as “honest fiduciaries”). As

the settlement fund is non-reversionary, Gannett had no interest in opposing Edelson PC’s request

for fees and given our conclusion that Stewart’s objection was motivated solely by his lawyers’

desire to extract a payment from class counsel and not to improve the terms of the settlement for

the class, without the trial judge’s oversight, absent class members had no one looking out for

their interests. See Baksinski, 231 Ill. App. 3d at 13 (courts must act with “ ‘moderation and a

jealous regard’ ” for the rights of absent class members) (quoting Trustees v. Greenough, 105

U.S. 527, 536 (1881)). And as far as the record shows, the trial court simply accepted class

counsel’s representation that a 39% fee was appropriate.

¶ 97 I sincerely doubt that a lodestar calculation would have yielded a number that, enhanced

by a reasonable multiplier, would remotely approach $5.38 million. And we have nothing upon

which to base a conclusion that this case presented particularly risky litigation warranting a

significantly higher fee than the traditional 20 to 30% fees commonly awarded in TCPA cases.

See In re Capital One Telephone Consumer Protection Act Litigation, 80 F. Supp. 3d 781, 798-99

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(N.D. Ill. 2015) (conducting TCPA class action settlement analysis of 72 settlements approved

since 2010 and finding median fees to be between 17.7 to 33.3% of the settlement); see also

Wilkins v. HSBC Bank Nevada, NA, No. 14 C 190, 2015 WL 890566, at *11 (N.D. Ill. Feb. 27,

2015) (awarding fees of 23.75% in “average TCPA class action”); Bayat v. Bank of the West, No.

C-13-2376 EMC, 2015 WL 1744342, at *3, *8-10 (N.D. Cal. Apr. 15, 2015) (using lodestar

method to award fees which amounted to 13.5% of settlement fund); Michel v. WM Healthcare

Solutions, Inc., No. 1:10-cv-638, 2014 WL 497031, at *17 (S.D. Ohio Feb. 7, 2014) (reducing fee

award in TCPA class action from one-third of the settlement fund to 15% of the fund).

¶ 98 The trial court’s uncritical acceptance of an award of 39% of the settlement fund to class

counsel in a case in which the court had no prior involvement encourages the skepticism,

cynicism, and distrust of our judicial system so prevalent in society today. I strongly encourage

trial judges in future cases to fulfill their critical role as the guardians of the interests of absent

class members, to carefully analyze unopposed fee requests that diminish funds available to

compensate class members, and to insist that a reviewable record be made of any hearing,

including the court’s reasons for granting counsel’s fee request.

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