United States District Court, S.D. Indiana, Indianapolis Division
Rebecca Ashack, individually and on behalf of all others similarly situated, Plaintiff,
Caliber Home Loans, Inc., Defendant.
Jane Magnus-Stinson, Chief Judge.
Rebecca Ashack, individually and on behalf of all others
similarly situated, asserts claims in this action against
Defendant Caliber Home Loans, Inc.
(“Caliber”) under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (the
“TCPA”). Specifically, Ms. Ashack
alleges that Caliber placed telephone calls to her cellular
telephone, and the cellular telephones of class members,
using an automatic telephone system, or autodialer. On
January 24, 2017, after the parties had conducted discovery
and participated in a private mediation, the Court granted
the parties' Motion for Preliminary Approval of
Settlement Class, and certified the following settlement
All persons or entities in the United States who, on or after
July 9, 2011 to the date this action is finally approved,
received a call to their cellular telephone line through the
use of an automatic telephone dialing system or an artificial
or prerecorded voice made by or on behalf of Defendant.
[Filing No. 85 at 2.] The Court preliminarily found the
settlement to be “fundamentally fair, adequate, and
reasonable, ” and found that the settlement class met
the requirements of Fed. R. Civ. P. 23. [Filing No. 85 at
2-3.] The Court approved the form of notice proposed by the
parties, and the procedure by which notice would be given.
[Filing No. 85 at 3-8.]
administering the settlement, Ms. Ashack filed a Motion for
Attorneys' Fees, Costs and Service Awards, [Filing No.
86], and an Unopposed Motion for Final Approval of Class
Settlement and Response to Objection, [Filing No. 93]. The
Court held a hearing on the motions on May 31, 2017, [see
Filing No. 95], and also heard argument regarding an
Objection to the settlement filed by David Tharp, [Filing No.
93-5]. The motions and the Objection are now ripe for the
March 6, 2017, David Tharp sent an Objection to the
settlement to the Claims Administrator in which he stated:
As I understand the terms of the settlement, [Caliber]
violated Federal Law, caused a severe amount of damage to my
family and I, as a result they pay out $2, 895, 000. Attorney
Fees are $900, 000, a few other fees and administrator costs,
and I can expect a check for somewhere between $70 and $100.
For anyone to believe that this is a fair and equitable
settlement arrangement is to live in an alternative reality.
On 17 May, 2016 I sent the President of [Caliber] a
registered letter demanding they cease and desist with these
harassing phone calls. Most of the time, the calls were
generated because the company failed to properly apply paid
funds. At a rate of 3 per day, 6 days a week for 10 months.
Federal guidelines and precedent cases estimate damages of
$1, 500 per call - that is $1, 404, 000 due and payable to
me. Yet I should expect a check for between $70 and $100 then
call it a day.
To be sure, please accept the letter as the strongest
objection possible to the terms and conditions of the
[Filing No. 93-5.]
Tharp testified at the May 31, 2017 hearing, and described
the telephone calls he received from Caliber. Through his
testimony, it became apparent that many, but not all, of the
calls at issue that Caliber placed were to Mr. Tharp's
home telephone, and not his cellular phone. Because this
litigation raises only TCPA claims, which necessarily involve
telephone calls to cellular telephones and not to home
telephones, the Court suspected that Mr. Tharp's issues
with Caliber were not addressed by the proposed settlement.
In a June 1, 2017 Order, the Court noted this, quoted
language from the Settlement Agreement that defines
“Released Claims, ” and stated “[t]he Court
construes the definition of ‘Released Claims' in
the Settlement Agreement as not covering potential claims by
Mr. Tharp related to calls Caliber made to his home
telephone, rather than his cellular telephone.”
[Filing No. 96 at 2.] The Court ordered that, to the
extent any party disagreed with the Court's analysis of
the definition of “Released Claims” in the
Settlement Agreement, they were to file a Report setting
forth their position by June 7, 2017, and that if a Report
was not filed by that date, the Court would assume that the
parties agree with the Court's analysis. [Filing No.
96 at 2.] No party has filed a Report to date, and so
the Court assumes that the parties agree that “Released
Claims” would not cover claims Mr. Tharp may have
against Caliber related to telephone calls made to his home
telephone - since those claims are not a part of this
litigation. Accordingly, Mr. Tharp's objection is
OVERRULED AS MOOT, and he may raise any
claims related to calls Caliber made to his home telephone in
a separate lawsuit, subject to applicable law.
Settlement Agreement, Attorneys' Fees and Costs, and
of class claims brought under Fed.R.Civ.P. 23 may be approved
if the Court finds the settlement to be “fair,
reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). The
Seventh Circuit Court of Appeals has characterized the
Court's role as that of a fiduciary to the class members
in considering whether a settlement ...