Birchmeier Dkt. No. 711 - Sears appeal of special master re claim

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
GERARDO ARANDA, GRANT
BIRCHMEIER, STEPHEN PARKES, and
REGINA STONE, on behalf of themselves
and a class of others similarly situated, Case No. 1:12-cv-04069
Plaintiffs,
Honorable Matthew F. Kennelly
v.
CARIBBEAN CRUISE LINE, INC.,
ECONOMIC STRATEGY GROUP,
ECONOMIC STRATEGY GROUP, INC.,
ECONOMIC STRATEGY, LLC, THE
BERKLEY GROUP, INC., and VACATION
OWNERSHIP MARKETING TOURS, INC.,
Defendants.
REQUEST FOR REVIEW OF THE SPECIAL MASTER’S DECISION ON
SEARS HOLDINGS CORPORATION’S CHALLENGE TO THE
DENIAL OF AMENDMENTS TO ITS TIMELY-FILED CLAIM
Pursuant to Paragraph 11 of the Amended Preliminary Approval Order, class member
Sears Holdings Corporation (“Sears”) requests Court review of the Special Master’s June 15,
2018, decision on Sears’ challenge to the Settlement Administrator’s denial of amendments to its
timely-filed claim. Sears has claims to the settlement fund in this matter by virtue of the 12,424
qualifying, automated calls received from the named Defendants to company-owned mobile
phones between August 1, 2011 and August 31, 2012. Sears respectfully requests that the Court
overrule the Special Master’s decision and allow its amended claims to proceed in the claims
process as supported by the great weight of authority and principles of equity and fairness.
Case: 1:12-cv-04069 Document #: 711 Filed: 07/06/18 Page 1 of 13 PageID #:15450

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BACKGROUND
Sears filed a timely claim in this matter by the original February 1, 2017, filing deadline.
Because Defendants’ records were incomplete and did not include any of Sears’ phone numbers
– absent which Sears’ claim would have presumably been approved in its entirety – Sears was
forced to subpoena records from its phone carriers and await receipt of those records to amend its
timely-filed claim. Sears acted diligently to subpoena its three phone carriers for the call data
needed to support its claim. Sears promptly amended its claim each time data was received from
its carriers and corresponded with the Settlement Administrator regarding same, ultimately
submitting a Third Amended Claim on April 26, 2017, for 12,424 eligible calls.
Notwithstanding, and despite Sears’ diligent efforts to evaluate, develop, and file both its initial
timely claim and amendments thereto, the Settlement Administrator rejected Sears’ amendments.
Sears challenged the rejection of its claim amendments in a March 22, 2018, letter to the
Special Master. (Exh. A, Letter of 03/22/18 from Sears’ counsel Daniel Sasse to Special Master
Wayne Andersen) At the Special Master’s request, the parties and the Special Master conducted
a call regarding Sears’ challenge on April 20, 2018, during which Plaintiffs’ counsel took no
position on Sears’ challenge and Defendants’ counsel requested an opportunity to respond in
writing, and Sears requested the opportunity to reply thereto. Defendants’ counsel submitted a
letter response on May 15, 2018, supporting the decision of the Settlement Administrator. (Exh.
B, Letter of 05/15/18 from Defendants’ counsel Richard Prendergrast to Special Master Wayne
Andersen) Sears submitted a reply to Defendants’ response on June 1, 2018, reiterating the
grounds upon which the Settlement Administrator’s decision should be overruled. (Exh. C,
Letter of 06/01/18 from Sears’ counsel Daniel Sasse to Special Master Wayne Andersen)

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While the Special Master recognized that Sears had “sprung into action in this case” he
apparently felt his authority in this matter was limited. (Exh. D, Email of 06/07/18 from Special
Master Wayne Andersen) Accordingly, the Special Master issued a decision via email on June
15, 2018, rejecting Sears’ challenge by noting “[a]s Special Master I have no authority to alter
the Judge’s order” – seemingly inviting reconsideration of the Court’s previous order on
deadlines. (Exh. E, Email of 06/15/18 from Lana Lucchesi on behalf of Special Master Wayne
Andersen) 1
Sears therefore respectfully requests review by the Court.
I. The Court’s Order Extending the Claim Filing Deadline for Class Members Who
Had to Subpoena Phone Records is Evidence that a Deadline Adjustment was
Necessary for the Very Subset of Class Members to which Sears Belongs and Sears’
Diligence in Amending its Timely-Filed Claim Further Supports the Equity and
Fairness of Allowing Sears’ Amended Claims to Proceed
Because Defendants’ records were incomplete and did not include any of Sears’ phone
numbers, Sears was forced to subpoena records from its phone carriers and await receipt of those
records to supplement its timely-filed claim. This is precisely the subset of class members that
the Court sought to protect by extending the claim filing deadline in its February 9, 2017,
Stipulation and Order:
The Claims Deadline is extended until February 22, 2017 for anyone who has
subpoenaed, on or before February 1, 2017, a telephone provider for records in an effort
to support a potential claim in this case. . . . Anyone who falls into [this] category of
claimants . . . may supplement his or her claim by March 20, 2017 using records received
in response to his or her subpoena.”
Id. at ¶ 1-2, Exh. B at Exh. B (emphasis added).
The extension granted was intended to protect those class members (a) whose phone
numbers, through no fault or failing of their own, did not appear in Defendants’ records, and (b)
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While Sears’ initial challenge letter, Defendants’ response, and the Special Master’s decision also address a
challenge brought by class member Delphi Automotive Systems LLC, the immediate request is brought only on
behalf of Sears.

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were therefore left no other option to support their claim but to subpoena phone records from
their carriers and wait for receipt of those records to supplement their claim. Sears is one of
these class members.
Indeed, Sears acted diligently to begin filing the necessary subpoenas with each of its
phone carriers, and did so a mere eight (8) days from the February 1, 2018, subpoena deadline in
the extension, after which it was at the mercy of its carriers to quickly respond to the subpoenas.
Sears also acted expeditiously upon receipt of subpoenaed records to amend its claim with the
eligible 12,424 call total from its carriers, ultimately submitting the third and final amendment to
its timely-filed claim on April 26, 2017 – a mere thirty-seven (37) days from the extended March
20, 2017 supplementation deadline.
It is inequitable to reject Sears’ amended claims simply because Defendants’ data was
incomplete as to Sears’ phone numbers and therefore – despite Sears’ diligently subpoenaing
records, awaiting carrier responses, and quickly supplementing its claims – its final claim
amendment was filed thirty-seven (37) days from the extended deadline. Sears was squarely
within the class subset that the Court sought to address and for whom deadlines were extended,
and whose claims were presumably approved for acting on virtually the same timetable as Sears.
The rejection of Sears’ amendments – which were necessitated solely by the
incompleteness of Defendants’ data and consequential need to subpoena records – is particularly
inequitable when contrasted with the approval of claims filed by other class members, who just
like Sears, filed by the initial filing deadline, but whose claims were approved in full because
their phone numbers appeared in Defendants’ data and they were, therefore, not required to
provide any supporting information. This disparity is not just or fair under class guidelines and
no one – including the Special Master – has addressed this inequity or the injustice that ensues

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from the disparate treatment of timely-filed claimants simply by virtue of inclusion or exclusion
from Defendants’ data.
To be clear, if Defendants’ records were complete, the entirety of Sears’ claim for the
12,424 qualifying, automated calls it received from the named Defendants – without need for any
supporting information – would be approved. Instead, because Defendants’ data was incomplete
and despite Sears acting diligently to subpoena supporting records and promptly amend its
timely-filed claim, Sears faces denial of virtually its entire claim to the settlement funds in this
matter. This prospect – particularly when contrasted with the full approval of other timely-filed
claims by class members whose numbers appeared in Defendants’ data – is patently unfair.
Accordingly, Sears respectfully requests that the Court overrule the Special Master’s decision
and allow its amended claims to proceed.
II. Sears Has Demonstrated the Requisite Showing of Excusable Neglect Necessary to
Allow its Amended Claims to Proceed
Class members who amend their timely-filed claims after the filing deadline are no less
beneficiaries of the Court’s “inherent power and duty to protect unnamed, but interested persons”
until a settlement “is actually distributed” than late claimants, and one may argue even more
deserving of that protection than late claimants. Zients v. LaMorte, 459 F.2d 628, 360 (2d Cir.
1972) (reversing denial of late claimants’ participation in settlement fund using “traditional
equity powers”). This “important role of protector” rises to a “sort of fiduciary capacity.” In re
Orthopedic Bone Screw Products Liability Litig., 246 F.3d 315, 321 (3d Cir. 2001).
In practice, protecting those who amend claims after the deadline often means that courts
allow them to participate in the settlement fund, tardiness notwithstanding. See In re Crazy
Eddie Securities Litig., 906 F. Supp. 840, 845 (E.D.N.Y. 1995) (including late filers who
demonstrated “excusable neglect” in settlement distribution); In re Folding Carton Antitrust

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Litig., 557 F. Supp. 1091, 1104 (N.D. Ill. 1983), aff'd in part, 744 F.2d 1252 (7th Cir. 1984)
(“every opportunity should be afforded to class members who had not filed claims to come
forward and collect their rightful share of the settlement”); see also Pettis v. Underwood, No. 06-
2143, 2007 WL 2948400, at *1 (C.D. Ill. Oct. 9, 2007) (accepting late claims); Abrams v. Van
Kampen Funds, Inc., No. 01 C 7538, 2007 WL 1280626, at *2 (N.D. Ill. Apr. 26, 2007)
(accepting claims filed up to 18 months after deadline).
The Court’s protection of late claimants extends especially to those, like Sears, who file
post-deadline amendments to timely filed claims because “the justification for imposing
unyielding time limits on [claim amendments] is even less obvious than that for filing a proof of
claim.” In re Cendant Corp. Prides Litig., 311 F.3d 298, 302 (3d Cir. 2002). To that end, courts
and claims administrators routinely process claims cured after the deadline. See, e.g., In re Royal
Ahold N.V. Sec. & ERISA Litig., No. CIV. 1:03-MD-01539, 2007 WL 3128594, at *3 (D. Md.
Sept. 26, 2007) (establishing reserve fund in distribution order to pay for late-cured claims); In re
Dairy Farmers of America, Inc. Cheese Antitrust Litig., Case No. 09-3690 (N.D. Ill. 2014)
(accepting late-filed claims and post-deadline amendments to timely claims); State v. AU
Optronics Corp., Case No. 10-CH-344724 (Ill. Cir. Ct. 2010); In re: TFT-LCD (Flat Panel)
Antitrust Litig., Case No. 3:07-md-01827 (N.D. Cal. 2012); In re: Dynamic Random Access
Memory (DRAM) Antitrust Litig., Case No. 02-1486 (N.D. Cal. 2008).
Sears is no less “deserving of remedy, for purposes of equity,” than timely-filed
claimants “with similar claims, presuming the failure to register on time was indeed blameless.”
In re Orthopedic Bone Screw, 246 F.3d at 324. Courts routinely determine blamelessness – that
is, whether to allow a late claim – using not a “strict requirement [for] good cause” but rather the
more forgiving standard of “excusable neglect.” See In re Crazy Eddie Securities Litig., 906 F.

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Supp. at 844; see also In re Orthopedic Bone Screw 246 F.3d 315 at 321 (citing In re Cendant
Corp. Prides Litig., 189 F.R.D. 321, 324 (D.N.J. 1999)); Barnes v. District of Columbia, 38 F.
Supp. 3d 131, 134 (D.D.C. 2014) (citing In re Vitamins Antitrust Class Actions, 327 F.3d 1207,
1209 (D.C. Cir. 2003); Clark v. Runyon, 165 F. Supp. 2d 920, 922 (D. Minn. 2001) (“The Court
has equitable power to allow…late-cured proofs of claim…if the movant can demonstrate the
delay was caused by “excusable neglect.”).
To determine “excusable neglect” courts routinely examine the following factors: (1) the
danger of prejudice, (2) the length of delay and its potential impact on judicial proceedings, (3)
the reason for the delay, including whether it was within the reasonable control of the movant,
and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. Partnership, 507 U.S. 380, 395 (1993); see also In re Authentidate Holding Corp. Securities
Litig., 05-cv-5323-LTS, 2013 WL 324153, at *1 (S.D.N.Y. Jan. 25, 2013) (allowing late claims).
The claimant is responsible for showing excusable neglect, but the burden “is not especially
demanding.” Newberg on Class Actions § 12:23 (5th ed.).
Here, all four factors for a finding of “excusable neglect” strongly weigh in favor of
allowing Sears’ amended claims to proceed in the claims process.
1. Allowing Sears’ Amended Claims to Proceed Will Not Prejudice Other Class
Members or Defendants
Allowing Sears’ amended claims to proceed in the claims process does not prejudice
other class members. Claimants who file timely claims have no justifiable expectation to any
particular pay-out. See In re “Agent Orange” Product Liability Litig., 689 F. Supp. 1250, 1263
(E.D.N.Y. 1998). And even where, as here, the settlement is fully subscribed and including
additional claims will almost certainly decrease the class’ per-call recovery amount, that smaller
payment does not constitute prejudice under the “excusable neglect” inquiry, as (a) the number

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of eligible claimants and size of their claims are the same regardless of when the claimants file;
and (b) “payout reductions attributable to a more equitable distribution among a larger group of
injured parties” is not prejudice. In re Authentidate Holding Corp. Securities Litig., 05-cv-5323-
LTS, 2013 WL 324153, at *1. In other words, excluding Sears’ amended claims from the
settlement would give other claimants “what is essentially a windfall, comprised of some portion
of the recovery that would be owed to the otherwise deserving late registrants.” In re Orthopedic
Bone Screw, 246 F.3d at 324.
Indeed, as courts have routinely recognized, class members must have assumed when
deciding whether to participate in a settlement that Sears and other eligible class members, may
file timely, comprehensive claims. Accordingly, class members are not prejudiced simply
because Sears is ultimately allowed to proceed with claim amendments to a timely-filed claim.
See, e.g., In re Static Random Access Memory (SRAM) Antitrust Litig., No. 07-mdl-1819-CW,
2013 WL 1222690, at *1 (N.D. Cal. Mar. 25, 2013) (claimants not prejudiced when opt-outs
rejoin the class because “remaining members will receive no less than what they would have
received had that plaintiff never opted out”); In re Elec. Carbon Prod. Antitrust Litig., 447 F.
Supp. 2d 389, 397 (D.N.J. 2006) (no prejudice where an opt-out party rejoins the settlement class
because the “development was contemporaneous with all other decisions and could not have
been a factor in the decision of any particular class member to participate”).
It is worth noting that the Special Masters’ finding with respect to prejudice to other class
members hinges on the presumption that payout in this case will exceed the $76 million ceiling,
such that allowing Sears’ amended claims to proceed will decrease pro rata payments to other
class members. Not only is this a speculative, unfounded assumption, but the Special Master
failed to address the fact that if the payout falls below the $76 million ceiling, payments to other

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class members will be unchanged by virtue of allowing Sears’ amendments to proceed. It is not
appropriate to evaluate the would-be prejudice of allowing Sears’ amended claims to proceed
based on speculation and until there is a showing on this point, it is potential error to deny Sears’
amendments based thereon.
The Special Master’s finding with respect to prejudice to Defendants relies on the
alternative assumption that payout in this case will fall above the $56 million floor and below the
$76 million ceiling, thereby necessitating a cost to Defendants for Sears’ amended claims. Until
Defendants’ challenges to thousands of other claims are resolved, the anticipated payout in this
case is entirely speculative. Again, it is not appropriate to evaluate the would-be prejudice of
allowing Sears’ amended claims to proceed based on speculation. Indeed, even if permitting
Sears’ amended claims to proceed does necessitate a cost to Defendants, a finding of prejudice is
nonetheless inappropriate because, as previous courts have recognized, late or absent claimants –
and certainly those who timely-file and subsequently amend – have a greater equitable stake than
Defendants in any remaining portion of the total settlement fund. See In re Cendant Corp.
PRIDES Litig., 235 F.3d at 184; In re Folding Carton Antitrust Litig., 557 F. Supp. at 1107
(finding that late or non-claiming plaintiffs’ equitable claim to remaining settlement funds is
greater than defendants).
Ultimately, the final resolution of Defendants’ challenges is of no consequence.
Defendants entered into a settlement agreement that requires them to pay up to $76 million.
Defendants had no reasonable – and certainly no guaranteed – basis on which to expect to pay
anything less than $76 million. In agreeing to be bound to the Settlement, Defendants had to
assume that they would be obligated to pay $76 million if the claims rate was strong, which it

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has been. Allowing Sears’ amended claims to proceed will require Defendants to pay no more
than the $76 million that they agreed to pay under the express terms of the Settlement.
2. Allowing Sears’ Amended Claims to Proceed Will Not Delay or Disrupt the
Claims Process
The risk of delay or disruption to the claims process by allowing Sears’ amended claims
to proceed is near nonexistent. The thousands of challenges that Defendants have themselves
submitted against other claims have not yet been decided and the distribution process is,
therefore, unlikely to commence any time in the near term. Accordingly, the risk of delay or
disruption to the claims or distribution process by allowing Sear’s Third Amended Claim to
proceed is near zero.
Indeed, delay here is measured by the lateness of the claim – or in this case the
amendment – itself, and not by the time the administrator will take to adjudicate the claim. In re
Orthopedic Bone Screw, 246 F.3d at 325. For claims filed or amended during the claims review
process, there is typically no finding of delay. See Zients v. LaMorte, 459 F.2d at 630-31. And
where, as here, claims administrators are still processing other claims, there should be no finding
of unreasonable delay because the fund would not have been ready for distribution even if the
filing or amended filing had been timely. See In re Flag Telecom Holdings, Ltd. Securities
Litig., 02-cv-3400-CM, 2011 WL 5039776, at *2 (S.D.N.Y. Oct. 21, 2011) (allowing late claims
that were “by far the largest filed” where processing work was ongoing when registrant filed
untimely claim).
3. Sears Acted Diligently to Amend Its Timely-Filed Claim and the Reason for
Delay was Due In Large Part to the Incompleteness of Defendants’ Records
The length of actual delay in claim amendment here was a mere thirty-seven (37) days,
far less than the multi-month delays permitted by past courts in reviewing and approving late

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claims, let alone late amendments to timely-filed claims. Sears acted diligently to subpoena
records from its carriers and to amend its timely-filed claim upon receipt of those records. The
sole reason Sears had to subpoena records from its phone carriers and await receipt of those
records to amend its timely-filed claim was because of the incompleteness of Defendants’ own
records – a factor well outside Sears’ control. Likewise, the speed with which its phone carriers
responded to subpoenas was outside of Sears’ control.
Sears’ thirty-seven (37) day in filing its third amendment falls squarely within the types
of delay recognized by courts as meeting the “excusable neglect” standard. See, e.g., In re
Cendant Corp. Prides Litig., 311 F.3d at 305 (accepting claims filed five months late); In re
Orthopedic Bone Screw, 246 F.3d at 328 (seven month delay held excusable); Abrams v. Van
(accepting claims filed up to 18 months after deadline).
4. Sears Acted In Good Faith to Diligently Pursue Call Records and Amend Its
Timely-Filed Claim
Sears acted in good faith to diligently pursue the call records necessary to support its
timely-filed claim, as well as to expeditiously amend its claim as soon as it was able to do so;
ultimately filing its final claim amendment only thirty-seven (37) days from the extended
deadline.
Requests for equitable relief in general require a showing of good faith, and a finding of
excusable neglect is no different. See In re Orthopedic Bone Screw, 246 F.3d at 329. Where, as
here, no party presents allegations that Sears acted in bad faith, and absent any affirmative reason
to disbelieve claimants avowal of good faith, courts routinely find that the good faith factor is
met. See, e.g., In re Authenticate Holding Corp. Securities Litigation, 05-cv-5323-LTS, 2013
WL 324153, at *2 (S.D.N.Y. Jan. 25, 2013); Sewell v. Bovis Lend Lease, 09-cv-6548-SHS-RLE,

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2012 WL 639136, at *1 (S.D.N.Y. Feb. 24, 2012) (allowing late claims where “there is no
evidence of bad faith”); See In re Crazy Eddie Securities Litig., 906 F. Supp. 840, 845 (E.D.N.Y.
1995) (“Good faith is not disputed, so the only [remaining] issue is the reason given for
tardiness.”)
* * * * *
The great weight of authority and principles of fairness and equity in light of
demonstrated excusable neglect in this instance support allowing Sears’ amended claims to
proceed. Accordingly, Sears respectfully requests that the Court overrule the decision of the
Special Master and allow Sears’ amended claims to proceed in the claims process.2
Dated: July 6, 2018 Respectfully submitted by:
/s/ Daniel A. Sasse
Daniel A. Sasse, Esq. (Pro Hac Vice pending)
CROWELL & MORING LLP
3 Park Plaza, 20th
Floor
Irvine, CA 92614
(949) 263-8400
dsasse@crowell.com
Justin D. Kingsolver, Esq. (IL Bar No. 6320926)
1001 Pennsylvania Avenue NW
Washington, DC 20004
(202) 624-2500
jkingsolver@crowell.com
Counsel for Sears Holdings Corporation
2
The Special Master’s suggestion that Sears ought to “launch its own legal effort to
enforce these [TCPA] laws” in light of the more than 12,000 illegal calls received, is
commendable. Exh. E. But not only is Sears likely barred from so doing based on statute of
limitations alone, it did not exclude itself from the settlement class and instead relied on the class
settlement process to provide the equitable relief it is due for the 12,424 illegal calls it received
from Defendants.

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CERTIFICATE OF SERVICE
I, Daniel A. Sasse, hereby certify that on July 6, 2018, I caused the foregoing to be served
by causing a true and accurate copy of such paper to be filed and served on all counsel of record
via the court’s ECF electronic filing system.
/s/ Daniel A. Sasse
Daniel A. Sasse, Esq. (Pro Hac Vice pending)
3 Park Plaza, 20th
Floor
Irvine, CA 92614
(949) 263-8400
dsasse@crowell.com
Counsel for Sears Holdings Corporation

EXHIBIT A
Case: 1:12-cv-04069 Document #: 711-1 Filed: 07/06/18 Page 1 of 11 PageID #:15463

3 Park Plaza, 20th Floor, Irvine, CA 92614-8505  p949 263-8400  f949 263-8414
Daniel A. Sasse
(949) 798-1347
dsasse@crowell.com
March 22, 2018
VIA E-MAIL
Hon. Wayne R. Andersen (Ret.)
71 S. Wacker Drive
Suite 3090
Chicago, Illinois 60606
Re: Birchmeier et al. v. Caribbean Cruise Line, Inc. et al., Case No. 12-cv-04069
(N.D. Ill.) (“Caribbean Cruise matter”)
Dear Honorable Wayne R. Andersen:
We write on behalf of our clients, Sears Holdings Corporation (“Sears”) and Delphi
Automotive Systems LLC (“Delphi”), regarding their claims to the class action settlement fund
in the above-referenced matter. Sears and Delphi have claims to the fund by way of the
qualifying, automated calls received from the named defendants to company-owned mobile
phones between August 1, 2011 and August 31, 2012. Sears has submitted a Third Amended
Claim in this matter for the 12,424 calls received, while Delphi has submitted a claim setting
forth its company-owned phone numbers. Both entities are entitled to recover from the
settlement fund and should be paid for all qualifying calls received. Notwithstanding, and
despite the diligent efforts of each entity to evaluate, develop and file their claims, including any
amendments thereto, and the absence of notice to either entity under the class notice plan, the
claims administrator has rejected Delphi’s claim and Sears’ amendments to its timely-filed
claim. By way of this letter, we are providing the legal authority supporting our challenge to the
rejection of Sears’ Third Amended Claim and Delphi’s claim.
As you may know, Sears filed a timely claim on the February 1, 2017 deadline. Sears
then promptly amended the claim on March 20th, April 24th, and April 26th following the
receipt of phone records subpoenaed from Sears’ three different phone carriers. The claims
administrator advised Sears that the claim on file as of February 1st is the claim that will be
processed.

Hon. Wayne R. Andersen
March 22, 2018
Page 2
Sears did not receive notice of the Caribbean Cruise matter under the class notice plan.
Instead, it received notice of the matter by word-of-mouth a few days before the claims deadline
and just in time to retain counsel. Sears filed its claim on the day of the deadline for 18 eligible
calls based on information available to it and as it subpoenaed its three phone carriers for the call
data needed to further develop its submission. As counsel, our firm was ethically obligated to
wait until conflicts cleared before subpoenaing Sears’ phone carriers. Sears diligently amended
its filing each time data was received from its carriers and corresponded with the claims
administrator regarding same, ultimately submitting a Third Amended Claim for 12,424 eligible
calls.
Similar to Sears, Delphi did not receive notice of this matter under the class notice plan
and only became aware of the settlement on the day of the claims deadline by a third party
recovery service. As soon as Delphi became aware of the matter, it diligently worked with its
phone carrier and internal personnel to obtain information in order to pursue its claim and
retained counsel to submit a claim on its behalf. Delphi submitted a claim on June 27, 2017
enclosing a list of company-owned phone numbers from 2017 that it had gathered from internal
personnel. With the understanding that the claims administrator may not cross-check Delphi’s
phone numbers against defendants’ phone records, Delphi subpoenaed its phone records with the
intention of amending its claim at a later date to include information obtained from the
subpoenaed records, namely the number of eligible calls. The voluminous records were
produced by Delphi’s phone carrier in November 2017. Delphi has not amended its original
claim submission with information from its subpoenaed records in light of the claims
administrator’s indication that claims, as well as any late amendments to timely claims,
submitted after February 1, 2017 are deemed rejected.
For the reasons set forth below, we request the approval of Sears’ Third Amended Claim
and Delphi’s claim in this matter.
I. Courts Consistently Allow Claimants Filing Late Claims and Late Amendments to
Timely Claims to Recover From Class Action Settlement Funds.
Settlement subscribers who amend their claims after the deadline, and late claimants in
general, are beneficiaries of the court’s “inherent power and duty to protect unnamed, but
interested persons” until a settlement “is actually distributed.” Zients v. LaMorte, 459 F.2d 628,
360 (2d Cir. 1972) (reversing denial of late claimants’ participation in settlement fund using
“traditional equity powers”). This “important role of protector” rises to a “sort of fiduciary
capacity.” In re Orthopedic Bone Screw Products Liability Litig., 246 F.3d 315, 321 (3d Cir.
2001).
In practice, protecting those who file and/or amend claims after the deadline often means
that courts allow them to participate in the settlement fund, tardiness notwithstanding. See In re
Crazy Eddie Securities Litig., 906 F. Supp. 840, 845 (E.D.N.Y. 1995) (including late filers who

March 22, 2018
Page 3
demonstrated “excusable neglect” in settlement distribution); In re Folding Carton Antitrust
Litig., 557 F. Supp. 1091, 1104 (N.D. Ill. 1983), aff'd in part, 744 F.2d 1252 (7th Cir. 1984)
(“every opportunity should be afforded to class members who had not filed claims to come
forward and collect their rightful share of the settlement”); see also Pettis v. Underwood, No. 06-
2143, 2007 WL 2948400, at *1 (C.D. Ill. Oct. 9, 2007) (accepting late claims); Abrams v. Van
(accepting claims filed up to 18 months after deadline). And indeed, the Manual for Complex
Litigation recommends that federal courts “allow adequate time for late claims before any refund
of other disposition of settlement funds occurs, and might consider ordering a reserve for late
claims.” Manual for Complex Litigation, Fourth § 21.662.
The court’s protection of late claimants extends especially to claimants who file post-
deadline amendments to timely claims—claimants like Sears—because “the justification for
imposing unyielding time limits on [claim amendments] is even less obvious than that for filing a
proof of claim.” In re Cendant Corp. Prides Litig., 311 F.3d 298, 302 (3d Cir. 2002). To that
end, courts and claims administrators routinely process claims cured after the deadline, often
without objection and with little fanfare. See, e.g., In re Royal Ahold N.V. Sec. & ERISA Litig.,
No. CIV. 1:03-MD-01539, 2007 WL 3128594, at *3 (D. Md. Sept. 26, 2007) (establishing
reserve fund in distribution order to pay for late-cured claims); In re Dairy Farmers of America,
Inc. Cheese Antitrust Litig., Case No. 09-3690 (N.D. Ill. 2014) (accepting late-filed claims and
post-deadline amendments to timely claims); State v. AU Optronics Corp., Case No. 10-CH-
344724 (Ill. Cir. Ct. 2010); In re: TFT-LCD (Flat Panel) Antitrust Litig., Case No. 3:07-md-
01827 (N.D. Cal. 2012); In re: Dynamic Random Access Memory (DRAM) Antitrust Litig., Case
No. 02-1486 (N.D. Cal. 2008).
Sears and Delphi are no less “deserving of remedy, for purposes of equity,” than timely
claimants “with similar claims, presuming the failure to register on time was indeed blameless.”
In re Orthopedic Bone Screw, 246 F.3d at 324. Courts routinely determine blamelessness, i.e.,
whether to allow a late claim, using not a “strict requirement [for] good cause” but rather the
more forgiving standard of “excusable neglect.” See In re Crazy Eddie Securities Litig., 906 F.
Supp. at 844; see also In re Orthopedic Bone Screw 246 F.3d 315 at 321 (citing In re Cendant
Corp. Prides Litig., 189 F.R.D. 321, 324 (D.N.J. 1999)); Barnes v. District of Columbia, 38 F.
Supp. 3d 131, 134 (D.D.C. 2014) (citing In re Vitamins Antitrust Class Actions, 327 F.3d 1207,
1209 (D.C. Cir. 2003); Clark v. Runyon, 165 F. Supp. 2d 920, 922 (D. Minn. 2001) (“The Court
has equitable power to allow…late-cured proofs of claim…if the movant can demonstrate the
delay was caused by “excusable neglect.”).
Courts examine the following factors to determine “excusable neglect”: (1) the danger of
prejudice, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason
for the delay, including whether it was within the reasonable control of the movant, and (4)
whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 507 U.S. 380, 395 (1993); see also In re Authentidate Holding Corp. Securities

March 22, 2018
Page 4
Litig., 05-cv-5323-LTS, 2013 WL 324153, at *1 (S.D.N.Y. Jan. 25, 2013) (allowing late claims).
The claimant is responsible for showing excusable neglect, but the burden “is not especially
demanding.” Newberg on Class Actions § 12:23 (5th ed.). In this case, all four factors weigh in
favor of approval of both Sears and Delphi’s claims.
II. Including Sears’ Third Amended Claim and Delphi’s Claim in the Planned
Settlement is Not Prejudicial to Claimants Filing Timely Claims.
“[I]n the ordinary case, there will be little prejudice or disruption caused by allowing a
late-submitted claim[.]” In re Oxford Health Plans, Inc., 383 Fed. Appx. 43, 45 (2d Cir. 2010).
When prejudice is at issue, courts have examined potential prejudice vis-à-vis both the
defendants and the other class members.
Including Sears and Delphi in the distribution of settlement funds does not prejudice the
other class members. Plaintiffs who file timely claims have no justifiable expectation to any
particular pay-out. See In re “Agent Orange” Product Liability Litig., 689 F. Supp. 1250, 1263
(E.D.N.Y. 1998). And even where, as here, the settlement is fully subscribed and including
additional claims will almost certainly decrease the class’s per-call recovery amount, that smaller
payment does not constitute prejudice under the “excusable neglect” inquiry. There are at least
two reasons for this: (1) the number of eligible claimants and size of their claims are the same
regardless of when the claimants file; and (2) “payout reductions attributable to a more equitable
distribution among a larger group of injured parties” is not prejudice. In re Authentidate Holding
Corp. Securities Litig., 05-cv-5323-LTS, 2013 WL 324153, at *1. In other words, excluding
Sears and Delphi’s amended claims from the settlement would give the other plaintiffs “what is
essentially a windfall, comprised of some portion of the recovery that would be owed to the
otherwise deserving late registrants.” In re Orthopedic Bone Screw, 246 F.3d at 324.
Indeed, as courts have routinely recognized, class members must have assumed when
deciding whether to participate in a settlement that Sears and Delphi, and other eligible class
members, may file timely, comprehensive claims. That is, class members are not prejudiced
simply because Sears and Delphi are ultimately approved to do so. See, e.g., In re Static Random
Access Memory (SRAM) Antitrust Litig., No. 07-mdl-1819-CW, 2013 WL 1222690, at *1 (N.D.
Cal. Mar. 25, 2013) (claimants not prejudiced when opt-outs rejoin the class because “remaining
members will receive no less than what they would have received had that plaintiff never opted
out”); In re Elec. Carbon Prod. Antitrust Litig., 447 F. Supp. 2d 389, 397 (D.N.J. 2006) (no
prejudice where an opt-out party rejoins the settlement class because the “development was
contemporaneous with all other decisions and could not have been a factor in the decision of any
particular class member to participate”).
Similarly, processing Sears’ Third Amended Claim and Delphi’s claim will not prejudice
the defendants. As an initial matter, courts routinely hold that there is no prejudice when
defendants’ liability is capped. See In re Orthopedic Bone Screw, 246 F.3d at 323. Here, the

March 22, 2018
Page 5
defendants’ liability is effectively capped because the settlement will reach the $76,000,000 limit
regardless of whether the finalized claims by Sears and Delphi are included. But even if their
claims had increased the defendants’ total liability, a finding of prejudice is nonetheless
inappropriate because late or absent claimants have a greater equitable stake than defendants in
any remaining portion of a settlement fund. See In re Cendant Corp. PRIDES Litig., 235 F.3d at
184; In re Folding Carton Antitrust Litig., 557 F. Supp. at 1107 (finding that late or non-claiming
plaintiffs’ equitable claim to remaining settlement funds is greater than either the defendants or
the claimants who had already filed).
III. Accepting Sears’ Third Amended Claim and Delphi’s Claim Will Not Delay the
Distribution Process.
Timely claimants’ payouts will not be unreasonably delayed if Sears’ claim amendments
and Delphi’s claim are allowed. Delay is measured by the lateness of the claim (or amendment)
itself, and not by the time the administrator will take to adjudicate the claim. In re Orthopedic
Bone Screw, 246 F.3d at 325. For claims filed or amended during the claims review process,
there is typically no finding of delay. See Zients v. LaMorte, 459 F.2d at 630-31. And when
claims administrators are still processing other claims when late claims are filed, there should be
no finding of unreasonable delay because the fund would not have been ready for distribution
even if the filing had been timely. See In re Flag Telecom Holdings, Ltd. Securities Litig., 02-
cv-3400-CM, 2011 WL 5039776, at *2 (S.D.N.Y. Oct. 21, 2011) (allowing late claims that were
“by far the largest filed” where processing work was ongoing when registrant filed untimely
claim).
IV. Sears and Delphi Diligently Pursued Claims in this Matter.
Sears diligently pursued and filed its claim. Becoming aware of the settlement just a few
days before the claims deadline, Sears retained counsel as quickly as possible—the day of the
deadline—and filed a timely claim. Crowell & Moring also diligently prepared subpoenas on
behalf of Sears for three phone carriers, but was ethically obligated to refrain from serving them
until the subpoenas cleared conflicts. An amendment was filed to Sears’ claim each time a
subpoenaed carrier responded with the newly-available data.
Similarly, Delphi became aware of the settlement on the day of the claims deadline.
Delphi diligently worked with its phone carrier and internal personnel to obtain information for
its claim and was able to acquire a list of account numbers and company-owned phone numbers
from 2017. Delphi filed a claim after the claims deadline using the documentation Delphi had
gathered and subsequently subpoenaed its phone carrier in order to obtain the company’s phone
records and gather the necessary information to supplement the claim. Delphi’s phone carrier
did not produce the records until November 2017—after the claims administrator had indicated
that claims submitted after the February 1st
deadline were deemed rejected.

March 22, 2018
Page 6
The issues of delay outlined above fall well within the types of delay recognized by the
“excusable neglect” standard. Excusable neglect is an “elastic concept,” and when evaluating
the reasons for claimants’ delay, courts are free to examine not only the claimants’ conduct, but
also other factors, such as the quality of notice provided. In re Orthopedic Bone Screw, 246 F.3d
at 328. Further, acceptable delay “is ‘not limited strictly to omissions caused by circumstances
beyond the control of the movant.’” Id.at 329 (finding error where district court considered only
whether the delay was outside the movant’s control) (quoting Pioneer, 507 U.S. at 392); see also
Barnes v. District of Columbia, 38 F. Supp. at 133; Clark v. Runyon, 165 F. Supp. 2d 920, 923
(D. Minn. 2001) (allowing late claim even though claimant “should have taken responsibility for
contacting Class Counsel”). Further, the length of delay (Sears’ final amendment was made just
under three months after the deadline, and Delphi’s claim was filed within five months of the
deadline) fits squarely within the types of late claims and late-filed amendments that courts
routinely allow. See, e.g., In re Cendant Corp. Prides Litig., 311 F.3d at 305 (accepting claims
filed five months late); In re Orthopedic Bone Screw, 246 F.3d at 328 (seven month delay held
excusable); Abrams v. Van Kampen Funds, Inc., No. 01 C 7538, 2007 WL 1280626, at *2 (N.D.
Ill. Apr. 26, 2007) (accepting claims filed up to 18 months after deadline).
V. Sears and Delphi Pursued Claims in Good Faith.
Sears and Delphi request in good faith that the Court allow them to participate in the
settlement fund by way of their amended claims. Requests for equitable relief in general require
good faith, and a finding of excusable neglect is no different. See In re Orthopedic Bone Screw,
246 F.3d at 329. Here, no party has alleged that Sears or Delphi seeks inclusion of their
amended claims in bad faith. It is clear that Sears and Delphi diligently pursued their claims in
this matter from the day they became aware that a claim could be filed. Sears submitted
amendments to its claim as subpoenaed data supporting those amendments became available,
and Delphi diligently pursued information from its carrier in order to pursue a claim and intends
to amend its claim as subpoenaed data becomes available. Where no party presents allegations
of bad faith, and absent any affirmative reason to disbelieve registrants’ avowal of good faith,
courts routinely find that the good faith factor is met. See, e.g., In re Authenticate Holding Corp.
Securities Litigation, 05-cv-5323-LTS, 2013 WL 324153, at *2 (S.D.N.Y. Jan. 25, 2013); Sewell
v. Bovis Lend Lease, 09-cv-6548-SHS-RLE, 2012 WL 639136, at *1 (S.D.N.Y. Feb. 24, 2012)
(allowing late claims where “there is no evidence of bad faith”); See In re Crazy Eddie Securities
Litig., 906 F. Supp. 840, 845 (E.D.N.Y. 1995) (“Good faith is not disputed, so the only
[remaining] issue is the reason given for tardiness.”)
* * * * *
The great weight of authority supports approving Delphi’s claim and Sears’ post-deadline
amendments to its timely-filed claim. Accordingly, we request the approval of Sears’ Third
Amended Claim and Delphi’s claim.

March 22, 2018
Page 7
Should you have any questions regarding the above authority or should you need
anything further on this matter, please do not hesitate to contact the undersigned.
Best regards,
Daniel A. Sasse, Esq.
Crowell & Moring LLP
Counsel for Sears Holdings Corporation and
Delphi Automotive Systems, LLC

EXHIBIT B

1
Via Email
Hon. Wayne R. Andersen (Ret.)
77 South Wacker Drive
Suite 3090
Chicago, IL 60606
wra1991@aol.com
bbuczkowski@jamsadr.com
Re: Birchmeier et al. v. Caribbean Cruise Line, Inc., et al.
Case No. 12-cv-04069 (N.D. Ill.)
Late Claims of Sears Holdings and Delphi Automotive
Dear Judge Andersen:
This letter is in response to the March 22, 2018 communication sent to you by counsel for
Sears Holdings Corporation (“Sears”) and Delphi Automotive Systems LLC (“Delphi”) asking
you, as Special Master, to overrule the Settlement Administrator’s rejection of their late claims in
the above-referenced matter. Defendants Caribbean Cruise Line, Inc., Vacation Ownership
Marketing Tours, Inc., and The Berkley Group, Inc., collectively, “the Defendants,” support the
decision of the Settlement Administrator to deny the late claims of Delphi and to limit Sears’
recovery to the six calls approved by the Settlement Administrator. In support, Defendants
provide the following.
Introduction
Sears seeks $6,212,000 from the settlement fund even though it failed to timely avail
itself of its rights, filed late claims, and turned a blind eye to direct notice and widespread public
notice of the settlement. Delphi also seeks money from the settlement fund based on a late and
wholly incomplete claim form. To date, Delphi has not even identified how many calls it
allegedly received. As with Sears, Delphi ignored direct and public notice of the settlement and
failed to meet the claims deadline, but now wants to benefit from the settlement while unfairly
prejudicing Defendants by substantially increasing their payment obligation. The Settlement

2
Administrator’s determination relating to the claims submitted by Sears and Delphi should be
sustained.
Background
Preliminary Approval, Notice Plan, and Final Approval
The district court preliminarily approved the parties’ Class Action Settlement Agreement
(“Settlement Agreement” or “Agreement”) on October 26, 2016. Exhibit A, 10/26/16 Amended
Preliminary Approval Order.
In that order, the court approved the proposed plan for giving robust and far-reaching
notice to the settlement class: “(i) by direct U.S. Mail and email Notice to all reasonably
obtainable addresses of the Settlement Class Members on the Class List (ii) internet banner ads
on premium high quality websites, and 800Notes.com (iii) one-time eighth of a page summary
publication notice . . . in the New York Daily News, Los Angeles Times, Chicago Tribune, Dallas
Morning News, Philadelphia Inquirer, Miami Herald, Houston Chronicle, Washington Post,
Atlanta Journal-Constitution, and the Boston Globe as well as a one-time third of a page
summary publication notice . . . in People, and (iv) the modification of the Settlement Website
established as part of class certification, as more fully described in the Settlement Agreement.”
Ex. A at 3.
Notice was to be completed by November 27, 2016. Ex. A at 3-4. The district court
found that the plan for notice in the Settlement Agreement complied with Rule 23 and due
process and constituted the best notice practicable under the circumstances. Id. at 3. The claims
deadline, which was very important to Defendants in light of the payment structure, was
negotiated and set for February 1, 2017. The court also approved a Settlement Administrator,
Kurtzman Carson Consultants (“KCC”), and directed KCC to provide the approved notice and

3
process and pay “Approved Claims.”1
Id. at 3. KCC was charged with employing reasonable
procedures to screen claims and review the evidentiary proof submitted by Settlement Class
Members. Settlement Agreement, § 5.2.
On January 5, 2017, almost one month before the claims deadline, Plaintiffs filed a
motion requesting an extension of the claims deadline for a specific group of claimants.
Defendants filed a response objecting to the extension and Plaintiffs filed a reply. At the hearing
on the motion, the court encouraged the parties to agree on various issues, including the
requested extension of the claims deadline. The parties did so and, on February 9, 2017, the
court entered a stipulation and order allowing a limited extension of the claims deadline to
February 22, 2017 for anyone who had subpoenaed, on or before February 1, 2017, a telephone
provider for records. Exhibit B, 2/9/17 Stipulation and Order at 1, ¶ 1. The stipulation and order
also allowed the submission of supplements by March 20, 2017 to timely filed claims and
provided other instructions regarding the handling of claim forms with certain stated
deficiencies. Id. at 1, ¶ 2, and at 3, ¶ 9. It expressly provided as follows:
“Claimants who are not on the Class List and did not submit any proof with their
Claim Forms shall not be eligible to have their claims approved, other than
claimants who subpoenaed their telephone records on or before February 1, 2017
and supplement(ed) their claims by March 20, 2017.”
Id. at 3, ¶ 9.
On March 2, 2017, the court granted Plaintiffs’ motion for final approval of the proposed
Settlement Agreement subject to one modification not applicable here. Exhibit C, 3/2/17 Final
Approval Order. The court again found that the notice complied with Rule 23(c). It noted that
the Settlement Administrator delivered notice directly, either through electronic or regular mail,
to 78.6% of the 1,040,389 names and addresses associated with telephone numbers obtained
1
The term “Approved Claim” is defined in Section 1.2 of the Settlement Agreement.

4
from Defendants’ records. It also noted that notice in online banner advertisements received
over 150 million impressions and was sent to the Attorney General of the United States and
attorneys general of all 50 states, the District of Columbia, Puerto Rico, Guam, the Northern
Mariana Islands, the U.S. Virgin Islands and American Samoa. The court found that a total of
nearly 500,000 people visited the settlement website, and over 9,000 calls were made to the toll-
free number. There were no objections to the adequacy of the notice to the class. Ex. C at 5-6.
Judgment granting final approval of settlement was entered on April 5, 2017. Exhibit D, 4/5/17
Final Judgment Order.
Defendants’ Payment Obligation
The approved Settlement Agreement created a settlement fund in which Defendants are
required to pay no less than $56 million (the “Floor”) but no more than $76 million (the
“Ceiling”), depending on the number of “Approved Claims,” defined as:
“[a] Claim Form submitted by a Settlement Class Member that is (a) submitted
timely and in accordance with the directions on the Claim Form and the provisions
of the Settlement Agreement, (b) fully and truthfully completed and executed, with
all the information requested in the Claim Form, (c) signed by the Settlement Class
Member, . . . affirming [receipt of] a call . . . , and (d) is verified by the Settlement
Administrator . . . and has not been successfully challenged . . . .”
Settlement Agreement, § 1.2 (emphasis added). Each Approved Claim would be entitled to a
payment of $500 per call. Id., § 2.2(b). If the total number of Approved Claims fell within the
range of $56 million and $76 million, Defendants would only have to pay the amount that fell
within that range. Id. If the number of Approved Claims that are not successfully challenged
exceeds the $76 million Ceiling, then the $500 per call payment will be reduced because Class
Members will be required to take a pro rata share of the settlement fund. Id.

5
Sears and Delphi Received Direct Notice
In their March 22, 2018 letter to the Special Master, both Sears and Delphi state that they
did not receive notice under the class notice plan. KCC’s records, however, demonstrate that
direct notice was sent to both Sears and Delphi. Exhibit E, Email from KCC regarding list of
mailing addresses. Specifically, direct notice was sent to eleven Sears affiliated locations.
While five of the direct mailings were returned as undeliverable, six were not returned as
undeliverable. One of those mailings not returned was sent to the national headquarters of Sears
Home Improvement Products, Inc. at 1024 Florida Central Pkwy, Longwood FL, 32750-7579.
Exhibit F, Internet Research (Sears). Direct notice was also sent to four Delphi affiliated
locations, with only one mailing having been returned as undeliverable. One of the mailings that
was not returned was sent to Delphi’s world headquarters at 5725 Delphi Dr., Troy MI 48098-
2815. Exhibit G, Internet Research (Delphi).
Sears Submitted Late Claims
Sears cannot legitimately dispute that it received notice directly and through the
ubiquitous public notice plan. So Sears tries to side-step the issue with a carefully crafted
declaration from a Sears attorney, Matthew Savin, Esq. In his declaration, Mr. Savin states that
“I did not receive notice under the class notice plan in this matter and only became aware of the
matter by word-of-mouth a few days before the claims deadline.” See Declaration of Matthew
Savin, Esq., ¶ 3 (emphasis added). Mr. Savin goes on to state that “[a]s soon as I became aware
of this matter, I immediately contacted Sears’ phone carriers as well as class counsel in an effort
to evaluate Sears’ potential claim.” Id. (emphasis added). Mr. Savin further states that he “did
not personally receive notice by mail or email . . .” and “on information and belief, Sears’ legal
department did not receive notice prior to January 27, 2017 . . . .” Id. at ¶ 7 (emphasis added).

6
The fact that Mr. Savin may have personally only learned of the settlement “a few days
before” the deadline does not alter the fact that Sears received direct notice at the headquarters of
one of its divisions and several affiliated locations. Notwithstanding direct notice, Sears should
have also been aware of the settlement through public notice. Mr. Savin’s declaration indicates
that Sears files claims in other class actions and apparently has personnel dedicated to such
filings who, if truly diligent, would have seen the notice of settlement through the various public
channels. Savin Dec., ¶ 1. So Sears either was aware of the public notice and failed to act or
Sears failed to see the public notice despite its vast resources. Under both scenarios, Sears’
neglect is not excusable. Nevertheless, Sears believes it is entitled to millions of dollars for its
untimely claims.
Sears contends that it timely filed a claim for 18 calls on February 1, 2017. Sears then
amended its claim form on March 20, 2017, April 24, 2017 and April 26, 2017 after obtaining
the subpoenaed records from its three telephone carriers. Sears issued the subpoenas for its
telephone records from Verizon, Sprint and AT&T. Savin Dec., ¶ 12. While Sears’ counsel
states that they were “ethically obligated to wait until conflicts cleared before subpoenaing
Sears’ telephone carriers,” they do not disclose when the subpoenas were actually sent.
Moreover, they fail to provide any authority to show how simply serving a benign subpoena for
telephone records could violate the rules of ethics. Finally, Sears was not required to hire
counsel whose retention put them in a perceived ethical conundrum as there are certainly other
law firms that could handle the job. In fact, Sears already had counsel – class counsel. But Sears
did not take advantage of that obvious resource even though Mr. Savin states that he contacted
class counsel. Savin Dec., ¶ 3. Instead, Sears waited until February 9, 2017 to send a subpoena
to Verizon, February 27, 2017 to send a subpoena to Sprint and March 22, 2017 to send a

7
subpoena to AT&T, all of which were outside of the extended deadline set forth in the above-
referenced stipulation and order.2
Group Exhibit H, Sears’ Subpoenas to Verizon, Sprint and
AT&T. In that time, Sears had several options at its disposal to obtain relief, but did not avail
itself of any of them. Despite these avoidable missteps, Sears now seeks recovery through its
“Third Amended Claim” for 12,424 calls, which translates to $6,212,000, about a 690% increase
in calls claimed since the original claim form was submitted.
Delphi Submitted a Late and Wholly Incomplete Claim
While Delphi received direct notice to its world headquarters, it argues that it only
received notice of the settlement from a third-party recovery service on February 1, 2017.
Delphi admits, however, that it did not submit a claim until June 27, 2017. Moreover, Delphi’s
claim form does not identify the number of calls it allegedly received during the class period.
Rather, Delphi’s late claim form enclosed a list of company-owned telephone numbers from
2017 that it gathered from internal personnel. In support of this late and incomplete claim,
Delphi attaches the declaration of a senior legal assistant at Delphi, Barbara Frantangelo. This
declaration is based on hearsay and second-hand knowledge of information Ms. Frantangelo
obtained from Delphi’s former senior legal assistant, Pamela Newton. And while Ms.
Frantangelo affirmatively states that “Delphi did not receive notice under the class notice plan,”
all she can say to support that claim is that Ms. Newton told her that “she did not personally
receive class notice” and, “on information and belief, Delphi’s legal department did not receive
class notice prior to February 1, 2017.” Declaration of Barbara Frantangelo, ¶¶ 3 and 6
(emphasis added). Her declaration includes double-hearsay as well. For example, Ms.
2
Notably, the March 22, 2017 subpoena is signed by Mr. Savin, not outside counsel. This demonstrates
that Sears did not need to wait for outside counsel to clear conflicts as Sears could have served subpoenas
through its in-house counsel.

8
Frantangelo states that she heard from Ms. Newton who heard from some other unnamed
individual that Delphi does not retain copies of phone numbers dating back to the claim period.
Frantangelo Dec., ¶ 8. Thus, Ms. Frantangelo’s testimony is not reliable on its face.
Delphi further states that it subpoenaed records from its telephone carrier with the
intention of later amending its claim. 3/22/18 Ltr. at 2. While Delphi states that it received
records from its phone carrier in November 2017, Delphi does not explain why it took so long.
The reason, in fact, is that Delphi waited until August 21, 2017 to subpoena telephone records
from Verizon, which, like Sears’ subpoenas, was not within the extended deadline set forth in the
stipulation and order. Exhibit I, Delphi’s Subpoena to Verizon. Delphi provides no excuse or
explanation as to why it waited over six months after learning of the settlement to send a
subpoena. Therefore, Delphi cannot blame its telephone carrier for the untimely submission of
its claim form – the blame falls squarely on Delphi. Moreover, Delphi concedes that it did not
amend its claim form or submit those subpoenaed records to KCC.
Argument
I. The Settlement Agreement Does Not Permit Challenges by Sears and Delphi.
The Sears and Delphi submission fails for the threshold reason that there is nothing in the
Settlement Agreement that permits them to challenge KCC’s determination that their claims
were untimely. Section 5.3 of the Settlement Agreement sets forth the contractually-bargained
for challenge process. But although Section 5.3 provides that “Defendants and the Class
Representatives” have the right to assert challenges, there is nothing in that provision or any
other provision of the Settlement Agreement that permits someone other than the Defendants or
Class Representatives to do so. And given that Sears and Delphi are neither Defendants nor
Class Representatives, as those terms are expressly defined in the Settlement Agreement at

9
Sections 1.7 and 1.15, the express terms of the Settlement Agreement bar their effort to avail
themselves of a process that does not include them. Accordingly, for this reason alone, Sears’
and Delphi’s request to submit untimely claims should be denied.
II. In Any Event, Sears and Delphi Have Failed to Demonstrate Excusable Neglect.
Even if Sears and Delphi were somehow permitted under the Settlement Agreement to
assert a challenge under Section 5.2 (and for the straight-forward reasons described above they
are not), Sears and Delphi cannot make the requisite showing of excusable neglect needed to
reverse KCC’s determination that the claims in question are untimely.
Sears and Delphi argue that KCC’s determination should be reversed because the
untimeliness of their claims was the result of excusable neglect. The factors to be considered for
excusable neglect include: (1) the danger of prejudice; (2) the length of delay and its potential
impact on judicial proceedings; (3) the reason for the delay, including whether it was within the
reasonable control of the movant; and (4) whether the movant acted in good faith. Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). In making this
determination, the totality of the circumstances must be examined. Id.; Clark v. Runyon, 165 F.
Supp. 2d 920, 922 (D. Minn. 2001). Sears and Delphi acknowledge that they are responsible for
showing excusable neglect and argue that all four factors weigh in favor of approval of their
claims. 3/22/18 Ltr. at 4. As set forth below, however, Sears and Delphi have not satisfied their
burden of demonstrating excusable neglect, and their arguments should be rejected by the
Special Master. See Equal Employ. Opportunity Comm’n v. Burlington N., Inc., MDL 374 No.
78 C 269, 1986 WL 5643 (N.D. Ill. May 5, 1986) (accepting report of special master to deny
three late claims, including one because insufficient evidence of excuse).

10
A. Factor 1 – Danger of Prejudice
Sears and Delphi give short shrift to the first factor, danger of prejudice. They recognize
that “[w]hen prejudice is at issue, courts have examined potential prejudice vis-à-vis both the
defendants and the other class members.” 3/22/18 Ltr. at 4 (emphasis added). They also
recognize that it is their burden to show a lack of prejudice. Id. And while Sears and Delphi
argue in conclusory fashion that neither Defendants nor other class members would be
potentially prejudiced if their untimely claims were permitted, they are wrong. Id. at 3-4.
Rather, as demonstrated below, there are multiple scenarios where either Defendants or the other
class members would be prejudiced by permitting the untimely claims submitted by Sears and
Delphi. Equally without merit is their argument that, even if prejudice exists, it would somehow
be equitable to allow their late claims.
Potential Prejudice to Defendants: As purported evidence of lack of prejudice to
Defendants, Sears and Delphi argue – albeit incorrectly – that “defendants’ liability is effectively
capped because the settlement will reach the $76,000,000 limit regardless of whether the
finalized claims by Sears and Delphi are included.” 3/22/18 Ltr. at 5. This argument is wrong.
Based on the challenges that have been submitted by Defendants, the settlement payment will
only reach the Floor of $56 million. And while other settlements have established reserve funds
for late claims, no such reserve fund was created here. So if Sears’ late claims are allowed, then
Defendants will be required to pay an additional $6,212,000, which substantially increases the
payment amount above the Floor. That amount increases if Delphi is also permitted to submit a
claim for calls even though, to date, Delphi is unable to quantify how many calls it received; but
because Delphi is a large corporation and indicated that there are “voluminous records” from its
telephone carrier (3/22/18 Ltr. at 2), it will likely claim a significant number of calls.

11
Sears and Delphi cite In Re: Oxford Health Plans, Inc., 383 Fed. Appx. 43 (2d Cir.
2010), for the proposition that “in the ordinary case, there will be little prejudice or disruption
caused by allowing a late-submitted claim[.]” 3/22/18 Ltr. at 4. Not only is this phrase taken out
of context, but in Oxford Health, the district court denied the late claims; and the court of appeals
affirmed the denial because the institutional claimant failed to show reasonable delay. 383 Fed.
Appx. at 46.
Moreover, this case is not an “ordinary case” in which a set common fund has been
established and Defendants’ payment obligation is not impacted by the number of claims
approved. Rather, as explained above, whether Defendants pay the Ceiling, the Floor or
somewhere in between critically depends on the number of claim forms approved. If Sears’ and
Delphi’s claim forms are approved, there will be significant prejudice and disruption. To be
sure, a multi-million dollar increase in Defendants’ payment obligation is, without question,
prejudicial and demonstrates that a finding of excusable neglect is not warranted under the first
factor.3
See In re: Sears, Roebuck & Co. Front-Loading Washer Prods. Liab. Litig., No. 06 C
7023, 2018 WL 1138541, at *4-5 (N.D. Ill. March 2, 2018) (rejecting 399 late claims because
monetary liability was unknown, but allowing 180 claims that had miniscule value).
None of the other cases cited by Sears and Delphi support their argument that Defendants
will not be prejudiced by permitting their untimely claims. For example, Sears and Delphi rely
on In re Orthopedic Bone Screw Products Liability Litig., 246 F. 3d 315 (3d Cir. 2001) to argue
that courts routinely hold that there is no prejudice when defendants’ liability is capped.
3/22/2018 Ltr. at 4. But that case is inapposite because, as discussed above, depending upon the
outcome of the challenge process Defendants may be able to achieve an amount lesser than the
3
This should not be construed as a waiver of Defendants’ right to challenge any call if the Special Master
reverses KCC’s decision denying these claims as untimely.

12
$76 million Ceiling. Their reliance on In re “Agent Orange” Prod. Liab. Litig., 689 F. Supp.
1250, 1263 (E.D.N.Y. 1988) is likewise inapposite as that case involved certain late claims
where the cost to the fund was de minimis. By contrast, permitting the tardy Sears and Delphi
claims could result in additional liability of over $6 million (a very significant portion of the total
settlement amount). Other cases cited by Sears and Delphi also involved late claims of de
minimis value. Zients v. LaMorte, 459 F.2d 628, 629 (2d Cir. 1972) (five individual claims
would result in miniscule recovery); Barnes v. District of Columbia, 38 F. Supp. 3d 131, 133-34
(D.D.C. 2014) (noting value of 14 additional claims was de minimis).
In re Crazy Eddie Securities, 906 F. Supp. 840 (E.D.N.Y. 1995), another case cited by
Sears and Delphi, is also distinguishable. There, the number of late claims was minimal (257 out
of 13,000 proofs) and amounted to less than 1.4% of the settlement amount; the tardiness was
due to postal errors in delivering the completed claim forms and to broker failures to send
necessary information. 906 F. Supp. at 843-45. Most of the claimants were “relatively
unsophisticated investors whose small investments . . . represented significant amounts of their
portfolios.” Id. at 846. Such extenuating factors are absent here.
Potential Prejudice to Other Class Members: As to the other class members, if the $76
million Ceiling is achieved before including the more than $6 million in untimely claims that
Sears and Delphi seek, the other class members with Approved Claims would be prejudiced if
Sears and Delphi are permitted to have their late claims credited. This is because under the
Settlement Agreement, it would result in a proportional reduction the other class members’
claims. Settlement Agreement, § 2.2(b). For example, if the total payment reaches exactly $76
million without the Sears and Delphi untimely claims, then each class member would experience
approximately a 10% reduction in their share of the settlement fund if Sears and Delphi were

13
credited with their more than $6 million in untimely claims. So, unlike the cases relied upon by
Sears and Delphi, the prejudice to other class members, who timely complied with the deadline,
is real and not de minimis.
Finally, Sears’ and Delphi’s argument that “a finding of prejudice is nonetheless
inappropriate because late or absent claimants have a greater equitable stake than defendants in
any remaining portion of a settlement fund” is without merit. 3/22/18 Ltr. at 5. In support of
that contention, Sears and Delphi cite In re Folding Carton Antitrust Litig., 557 F. Supp. 1091
(N.D. Ill. 1983). In that case, the court explained that, as to the reserve fund in question, it “was
established for the express purpose of benefitting those class members who might appear and file
late claims.” 557 F. Supp. at 1107. Because the reserve fund was established for the express
purpose of benefitting class members who filed late claims, the court further explained that such
class members “have an equitable claim to the reserve fund” and that it was “equitably superior”
to the claims of the settling defendants. Id. By contrast, there is nothing in the Settlement
Agreement or court order that even remotely suggests that the parties established a reserve fund
here for the benefit of class members who appear and file late claims. In the absence of any such
provision, there is no basis for Sears and Delphi to suggest that they have a superior right over
Defendants to the difference between the Floor and Ceiling.
B. Factor 2 – Length of Delay
As to the second factor, there will be a delay if the late claims are allowed to proceed.
Sears has requested approval of 12,424 calls. If approved, Defendants have a right to review and
challenge each of those calls, which will require a significant amount of time and expense.
Plaintiffs’ counsel, KCC and the Special Master will also be required to dedicate a significant
amount time to the process and there will undoubtedly be additional associated costs and

14
expenses incurred by them. As to Delphi, it is not known how many calls Delphi will claim; but,
as noted above, presumably, they will be numerous. Thus, a finding of excusable neglect is not
supported by the second Pioneer factor. See Sears, Roebuck & Co., 2018 WL 1138541, at *5
(rejection of 399 late claims deemed preliminarily deficient and where assessment would require
additional time, administrative effort, and cost).
This is to be contrasted with the 180 valid but late claims permitted by the court in Sears,
Roebuck & Co., 2018 WL 113854. The court in that case noted that thee 180 claims would not
require further action by the settlement administrator and would result in minimal disruption to
administration of the settlement fund. More specifically, the 180 late claimants were unique in
that they were “Prequalified Class Members” who could be identified in the defendants’
databases and were not required to submit any documentation to support their claims.
Additionally, the value of their claims was miniscule because over 11,335 claims had been
received. 2018 WL 113854, at *4.
C. Factor 3 – Reason for Delay
The excusable neglect arguments of Sears and Delphi fare no better under the third
factor. Permissible reasons for delay include postal errors in delivering the claim, medical
reasons, extenuating personal or business circumstances. In re Crazy Eddie Secs. Litig., 906 F.
Supp. at 845-47; Clark, 165 F. Supp. 2d at 922.
Here, Sears and Delphi have no good reason for filing late claims. Notice was sent to
them directly and through multiple public channels. Even if Sears or Delphi did not receive
direct mail notice, the extensive publication notice was more than sufficient. In Burns v. Elrod,
757 F.2d 151 (7th Cir. 1985) for example, the district court denied the petitions of three
prospective class members who sought leave to file late claims about 19 months after the filing

15
deadline. They alleged that they did not receive notice of the settlement agreement by mail or
through the newspapers. The court found that the best notice practicable was given and that the
plaintiffs and defendants were not required to exhaust every conceivable method of identifying
potential class members. Id. at 153. The Seventh Circuit affirmed, finding that the defendants’
efforts in notifying class members were reasonable and that the district court did not
unreasonably draw the line for late claims. Id. at 155.
Here, the district court has already determined that the efforts dedicated to notifying
prospective class members were reasonable and complied with Federal Rule of Civil Procedure
23. Indeed, Sears and Delphi do not contest the adequacy or reasonableness of the steps taken to
notify them of the class action settlement. There simply is no excusable neglect here. See Sears,
Roebuck & Co., 2018 WL 1138541, at *4 (excusable neglect standard considers all relevant
circumstances).
Further, Sears and Delphi acknowledge that “when evaluating the reasons for claimants’
delay, courts are free to examine not only the claimants’ conduct, but also other factors, such as
the quality of notice provided.” 3/22/16 Ltr. at 6 citing In re Orthopedic Bone Screw, 246 F.3d at
328 (emphasis added). In Orthopedic Bone Screw, the claimant seeking approval of a claim
lived in a seaside village in Puerto Rico who did not receive direct notice. The court found that
“absent actual notice mailed to his address, it is incongruous, in the unique circumstances of this
case, to find [the claimant] culpable for his failure to note a small advertisement run once on
page 50 of a newspaper he does not receive.” 246 F.3d at 327. Unlike the claimant in
Orthopedic Bone Screw, Sears and Delphi received direct notice, were within the vast scope of
prominent public notice, and are hardly residents of seaside villages.

16
In Barnes v. District of Columbia, 38 F. Supp. 3d 131, 132 (D.D.C. 2014), also cited by
Sears and Delphi, the class consisted of individuals who, while incarcerated, were improperly
detained and strip searched. There was an inability to locate members of the class, many of
whom were incarcerated or released from custody and difficult to locate, making notice by mail
or publication “imperfect” methods of notice. Id. at 133-34. Further, the number of late claims
was de minimis.
As explained above, the quality of notice in this case was extensive and effective. KCC’s
records show that the return rate was 7.67% and that approximately 20,211 individuals/entities
submitted claim forms even though they did not receive direct notice. Despite these uncontested
statistics and the massive public notice campaign that spanned several months, Sears and Delphi
– two large, sophisticated corporations with in-house legal departments and capable outside
counsel – argue that they did not learn of the settlement until a few days before the deadline
(Sears) or on the day of the deadline (Delphi). See Burlington N., Inc., 1986 WL 5643, at *2
(rejecting argument of improper notice where potential claimants notified by two mass mailings
and by publications in newspapers and magazines).
Even assuming Sears and Delphi only received notice by word-of-mouth and through a
third party recovery service, respectively, they could have then simply checked the court docket
for immediate access to case information. The court docket is a publicly available resource and
certainly known by sophisticated companies with legal departments, like Sears and Delphi. A
review of the court docket would have revealed the filings relating to the requested extension of
the claims deadline and the court hearing on the issue. Still, neither Sears nor Delphi sought to
intervene to request an extension or participate in any manner.

17
It is also uncontested that both Sears and Delphi knew about the class settlement before
the court entered the February 9, 2017 stipulation and order extending the claims deadline. Sears
and Delphi could have notified the court before entry of the stipulation and order to make their
case and request relief, but they failed to do so. Sears and Delphi could have sought assistance
from class counsel to advance their position. In fact, class counsel advocated for other class
members to extend the claims deadline. 4
Yet, Sears and Delphi inexcusably neglected to take
advantage of that resource. They did not seek assistance from the court or class counsel. Sears
and Delphi slept on their rights and sprung their “challenges” more than one year after the claims
deadline. Such a tactic should not be rewarded. See In re: Oxford Health Plans, Inc., 383 Fed.
Appx. 46 (affirming rejection of late claims where within company’s reasonable control to file a
timely claim and where company conceded that its agent held all information on microfiche and
could have discovered information to file timely claim); Burlington N., Inc., 1986 WL 5643, at
*3 (denying late claim where claimant had constructive knowledge of time limitations and of
dates upon which he could appear to file an objection to his not receiving claim form, but failed
to do so).
Moreover, obtaining telephone records does not require some complex analysis or
complicated process. Delphi still has made no attempt to provide documentation in support of its
claim. In fact, it concedes that it has not amended its original claim submission with information
from its subpoenaed records in light of the claims administrator’s actions to deny late claims and
late amendments. 3/22/18 Ltr. at 2. Delphi does not even suggest that those subpoenaed records
provide proof of receipt of actionable telephone calls received during the class period.
4
It is also telling that while class counsel has vigorously argued for other class members, class counsel
takes no position regarding the Sears and Delphi claims.

18
Simply put, Sears and Delphi have not established that they are blameless in the untimely
submission of their claims. In fact, they both missed several opportunities to avail themselves of
their rights, which was the result of their own inexcusable neglect.
D. Factor 4 – Good Faith
Finally, as to the good faith factor from the Pioneer decision, Sears and Delphi are unable
to demonstrate that the circumstances surrounding their failure to timely pursue their claims
somehow constitutes good faith on their part. Indeed, the very cases relied upon by Sears and
Delphi affirmatively show that they cannot meet their burden to demonstrate their good faith
conduct. For example, in In re Orthopedic Bone Screw, the court found that the claimant had
acted responsibly by consulting with an attorney who failed to inform him about the settlement
and then, when he learned of the settlement, sought the assistance of another attorney to prepare
the necessary paperwork. 246 F. 3d at 319, 329. Similarly, in Clark v. Runyon, excusable
neglect was premised on the fact that the claimant’s son had surgery and required significant
follow-up care that prevented her from retrieving information she needed to complete the claim
form. 165 F. Supp. 2d at 921. By contrast, Sears and Delphi do not – and cannot – demonstrate
that there was some good faith basis for why they failed to timely act or that they tried to
discover the settlement but were somehow thwarted in their reasonable efforts to do so.
Moreover, Sears’ and Delphi’s claims of “good faith” are particularly unavailing where
the record shows that, as sophisticated corporate entities with in-house legal departments, they
received direct notice of the settlement, as well as extensive published notice through multiple
means, yet failed to timely act. In short, they learned of the class action settlement before the
deadline, but failed to avail themselves of multiple resources at their disposal, including seeking
assistance from class counsel and/or requesting relief from the court.

19
Further, while courts have discretion to allow late claims, they can do so only when the
equities, on balance, favor the claimants. Burns, 757 F.2d at 155. As the Seventh Circuit has
recognized, defendants are “entitled to some certainty in their settlement liability and to avoid
claims that trickle in too long past the filing deadline.” Id. In many of the cases cited by Sears
and Delphi, the balance of the equities was significantly influenced by the fact that the
underlying misconduct of the defendants involved securities fraud. E.g., In re Cendant
Corporation PRIDES Litigation, 311 F.3d 298 (3d Cir. 2002); Zients, 459 F.2d 628; In re
Authentidate Holding Corp. Secs. Litig., No. 05 Civ. 5323(LTS), 2013 WL 324153 (S.D.N.Y.
Jan. 25, 2013); In re Flag Telecom Holdings Ltd. Secs. Litig., No. 02-CV-3400(CM)(PED), 2011
WL 5039776 (S.D.N.Y. Oct. 21, 2011); In re Crazy Eddie Securities, 906 F. Supp. 840.
Not only does the underlying conduct of Defendants fall far short of securities fraud, but
Sears and Delphi are sophisticated companies. Defendants were alleged (but not proven) to have
violated the TCPA on a theory of vicarious liability. If Sears and Delphi received such calls,
they were likely directed to a number of telephone numbers at their locations and to a number of
their employees, many of whom may not have even answered the calls. At most, their
employees were slightly inconvenienced, not the Sears and Delphi institutions.5
Conclusion
For all of these reasons, Defendants request that the Special Master deny the request of
Sears Holdings Corporation and Delphi Automotive Systems LLC and to affirm the Settlement
Administrator’s determinations regarding those claims.
5
Several of the cases cited by Sears and Delphi were unreported or lacked any discussion of facts
showing similarities to the facts presented here.

20
Dated: May 15, 2018 Respectfully Submitted,
By: /s/Richard J. Prendergast
Richard J. Prendergast, Esq.
Michael T. Layden, Esq.
RICHARD J. PRENDERGAST, LTD. (#11381)
111 W. Washington St., Suite 1100
Chicago, Illinois 60602
(312) 641-0881
rprendergast@rjpltd.com
mlayden@rjpltd.com
Richard W. Epstein (Florida Bar No. 229091)
Richard.Epstein@gmlaw.com
Jeffrey A. Backman (Florida Bar No. 662501)
Jeffrey.Backman@gmlaw.com
GREENSPOON MARDER, P.A.
200 E. Broward Blvd., Suite 1500
Fort Lauderdale, Florida 33301
954.491.1120 (Telephone)
954.343.6958 (Fax)
Kevin M. Forde, Esq.
Brian P. O’Meara, Esq.
Forde Law Offices LLP
111 West Washington Street
Suite 1100
Chicago, IL 60602
(T) 312.465.4780
(F) 312.641.1288
kforde@fordellp.com
bomeara@fordellp.com
cc: Counsel (via email)

Exhibit A

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
GERARDO ARANDA, GRANT
BIRCHMEIER, STEPHEN PARKES, and
REGINA STONE, on behalf of themselves and
a class of others similarly situated,
Plaintiffs,
v.
CARIBBEAN CRUISE LINE, INC.,
ECONOMIC STRATEGY GROUP,
ECONOMIC STRATEGY GROUP, INC.,
ECONOMIC STRATEGY, LLC, THE
BERKLEY GROUP, INC., and VACATION
OWNERSHIP MARKETING TOURS, INC.,
Defendants.
Case No. 1:12-cv-04069
Honorable Matthew F. Kennelly
AMENDED PRELIMINARY APPROVAL ORDER
This matter having come before the Court on Plaintiffs’ Motion for Preliminary Approval
of Class Action Settlement (“Settlement”) of the above-captioned matter (the “Action”) between
Plaintiffs Gerardo Aranda, Grant Birchmeier, Stephen Parkes, Regina Stone (“Plaintiffs”) as
representatives of the two classes it certified (Dkt. 241), and Defendants Caribbean Cruise Line,
Inc., Vacation Ownership Marketing Tours, Inc. and The Berkley Group, Inc., as set forth in the
Class Action Settlement Agreement between Plaintiffs and Defendants (the “Settlement
Agreement”), and the Court having duly considered the papers and arguments of counsel, the
Court hereby finds and orders as follows:
1. Unless defined herein, all defined terms in this Order shall have the respective
meanings ascribed to the same terms in the Settlement Agreement.
2. The Court has conducted a preliminary evaluation of the Settlement set forth in
the Settlement Agreement for fairness, adequacy, and reasonableness. Based on this preliminary
Case: 1:12-cv-04069 Document #: 513 Filed: 10/26/16 Page 1 of 7 PageID #:12211Case: 1:12-cv-04069 Document #: 711-2 Filed: 07/06/18 Page 23 of 107 PageID #:15496

2
evaluation, the Court finds that: (i) there is good cause to believe that the settlement is fair,
reasonable, and adequate, (ii) the Settlement has been negotiated at arm’s length between
experienced attorneys familiar with the legal and factual issues of this case and was reached with
the assistance of the Honorable Wayne R. Andersen (ret.) of JAMS, and (iii) the Settlement
warrants Notice of its material terms to the Settlement Class for their consideration and reaction.
Therefore, the Court grants preliminary approval of the Settlement.
3. On August 11, 2014, this Court certified two classes pursuant to Federal Rule of
Civil Procedure 23(b)(3), one for individuals that received cellular phone calls and another for
those who received landline calls, each defined as:
All persons in the United States to whom (1) one or more telephone calls were
made by, on behalf, or for the benefit of the Defendants, (2) purportedly offering
a free cruise in exchange for taking an automated public opinion and/or political
survey, (3) which delivered a message using a prerecorded or artificial voice; (4)
between August 2011 and August 2012, (5) whose (i) telephone number appears
in Defendants’ records of those calls and/or the records of their third party
telephone carriers or the third party telephone carriers of their call centers or (ii)
own records prove that they received the calls—such as their telephone records,
bills, and/or recordings of the calls—and who submit an affidavit or claim form if
necessary to describe the content of the call.
(Dkt. 241 at p. 31.) For purposes of settlement the Court finds that the following people are
excluded from the Settlement Class (1) any Judge or Magistrate presiding over this Action and
members of their families; (2) Defendants, Defendants’ subsidiaries, parent companies,
successors, predecessors, and any entity in which Defendants or their parents have a controlling
interest and their current or former officers, directors, agents, attorneys and employees; (3)
persons who properly execute and file a timely request for exclusion from the class; (4) the legal
representatives, successors or assigns of any such excluded persons; and (5) counsel for all
Parties and members of their families.
4. On February 23, 2017 at 9:30 am CST or at such other date and time later set by

3
Court Order, this Court will hold a Final Approval Hearing on the fairness, adequacy, and
reasonableness of the Settlement Agreement, and to determine whether: (a) final approval of the
Settlement should be granted and (b) Class Counsel’s application for attorney’s fees and
expenses, and an incentive award to the Class Representatives should be granted. No later than
January 9, 2017, Plaintiffs must file their papers in support of Class Counsel’s application for
attorneys’ fees and expenses, and no later than February 9, 2017, Plaintiffs must file their papers
in support of final approval of the Settlement and in response to any objections.
5. Pursuant to the Settlement Agreement, Kurtzman Carson Consultants d/b/a KCC
is hereby appointed as Settlement Administrator and shall be required to perform all of the duties
of the Settlement Administrator as set forth in the Settlement Agreement and this Order.
6. The Court approves the proposed plan for giving Notice to the Settlement Class
(i) by direct U.S. Mail and email Notice to all reasonably obtainable addresses of the Settlement
Class Members on the Class List (ii) internet banner ads on premium high quality websites, and
800Notes.com (iii) one-time eighth of a page summary publication notice will be placed in the
New York Daily News, Los Angeles Times, Chicago Tribune, Dallas Morning News,
Philadelphia Inquirer, Miami Herald, Houston Chronicle, Washington Post, Atlanta Journal-
Constitution, and the Boston Globe as well as a one-time third of a page summary publication
notice will be placed in People, and (iv) the modification of the Settlement Website established
as part of class certification, as more fully described in the Settlement Agreement. The plan for
giving Notice, in form, method, and content, fully complies with the requirements of Rule 23 and
due process, constitutes the best notice practicable under the circumstances, and is due and
sufficient notice to all persons entitled thereto. The Court hereby directs the Parties and
Settlement Administrator to complete all aspects of the notice plan by no later than November

4
27, 2016.
7. Pursuant to Rule 23(e)(4), all persons who meet the definition of the Settlement
Class and who wish to exclude themselves from the Settlement Class must submit their request
for exclusion in writing to the Settlement Administrator and postmarked no later than the
Objection/Exclusion Deadline of January 23, 2017. The request for exclusion must be personally
signed by the Settlement Class Member seeking to be excluded from the Settlement Class, and
include his or her name and address, the cellular and/or landline telephone number(s) on which
he or she allegedly received calls with a prerecorded or artificial voice offering a free cruise in
exchange for taking an automated public opinion and/or political survey, the caption for the
Action (i.e., Aranda et al v. Caribbean Cruise Line, Inc., et al., Case No. 12-cv-04069 (N.D.
Ill.)) and a statement that he or she wishes to be excluded from the Settlement Class. A request to
be excluded that does not include all of the foregoing information, that is sent to an address other
than that designated in the Notice, or that is not postmarked within the time specified, shall be
invalid and the Persons serving such a request shall be deemed to remain Members of the
Settlement Class and shall be bound as Settlement Class Members by this Settlement Agreement,
if approved.
8. Any member of the Settlement Class may comment in support of, or in opposition
to, the Settlement at his or her own expense; provided, however, that all comments and
objections must (i) be filed with the Clerk of the Court or, if the Settlement Class Member is
represented by counsel, filed through the CM/ECF system and (ii) be sent via mail, hand or
overnight delivery service to Class Counsel and Defendants’ Counsel as described in the Notice,
no later than the Objection/Exclusion Deadline of January 23, 2017. Any member of the
Settlement Class who intends to object to this Settlement Agreement must include his or her

5
name and address, include all arguments, citations, and evidence supporting the objection
(including copies of any documents relied on), state that he or she is a Settlement Class Member,
provide the cellular and/or landline telephone number(s) on which he or she allegedly received
calls with a prerecorded or artificial voice offering a free cruise in exchange for taking an
automated public opinion and/or political survey, the name and contact information of any and
all attorneys representing, advising, or in any way assisting the objector in connection with the
preparation or submission of the objection or who may profit from the pursuit of the objection;
and a statement indicating whether the objector intends to appear at the Final Approval Hearing
either personally or through counsel, who must file an appearance or seek pro hac vice
admission, accompanied by the signature of the objecting Settlement Class Member. Any
Settlement Class Member who fails to timely file a written objection with the Court and notice of
his or her intent to appear at the Final Approval Hearing in accordance with the terms of this
Paragraph and as detailed in the Notice, and at the same time provide copies to designated
counsel for the Parties, shall not be permitted to object to this Settlement Agreement at the Final
Approval Hearing, and shall be foreclosed from seeking any review of this Settlement
Agreement by appeal or other means and shall be deemed to have waived his or her objections
and be forever barred from making any such objections in the Action or any other action or
proceeding.
9. Any Settlement Class Member who fails to timely file a written objection with the
Court and notice of his or her intent to appear at the Final Approval Hearing in accordance with
the terms of this Paragraph and as detailed in the Notice, and at the same time provide copies to
designated counsel for the Parties, shall not be permitted to object to this Settlement Agreement
at the Final Approval Hearing, and shall be foreclosed from seeking any review of this

6
Settlement Agreement by appeal or other means and shall be deemed to have waived his or her
objections and be forever barred from making any such objections in the Action or any other
action or proceeding.
10. The Settlement Agreement and the proceedings and statements made pursuant to
the Settlement Agreement or papers filed relating to the Settlement Agreement and this Order,
are not and shall not in any event be construed, deemed, used, offered or received as evidence of
an admission, concession, or evidence of any kind by any Person or entity with respect to: (i) the
truth of any fact alleged or the validity of any claim or defense that has been, could have been, or
in the future might be asserted in the Action or in any other civil, criminal, or administrative
proceeding in any court, administrative agency, or other tribunal, or (ii) any liability,
responsibility, fault, wrongdoing, or otherwise of the Parties. Defendants have denied and
continue to deny the claims asserted by Plaintiffs. Notwithstanding, nothing contained herein
shall be construed to prevent a Party from offering the Settlement Agreement into evidence for
the purpose of enforcing the Settlement Agreement.
11. Pursuant to the Settlement Agreement and Federal Rule of Civil Procedure 53, the
Court appoints the Honorable Wayne R. Andersen (ret.) of JAMS as Special Master who is
directed to proceed with all reasonable diligence with the duties outlined in the Settlement. Any
member of the Settlement Class who wishes to contest a decision made by the Special Master in
accordance with the duties outlined in the Settlement may do so by seeking Court review of the
decision by no later than twenty-one (21) days after a copy of the order is served, unless the
Court sets a different time.

7
IT IS SO ORDERED.
ENTERED: 10/26/2016
HONORABLE MATTHEW F. KENNELLY
UNITED STATES DISTRICT JUDGE

Exhibit B

Birchmeier Dkt. No. 711 - Sears appeal of special master re claim

Birchmeier Dkt. No. 711 - Sears appeal of special master re claim

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