Grant Birchmeier v. Caribbean Cruise Line, Incorpo ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 16, 2021*
Decided March 19, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
Nos. 20-2672, 20-2676, 20-2698 & 20-2699 Appeals from the United
States District Court for the
GRANT BIRCHMEIER, et al.,
Northern District of Illinois,
Plaintiffs-Appellees,
Eastern Division.
v.
No. 12 C 4069
CARIBBEAN CRUISE LINE, INC., et al., Matthew F. Kennelly, Judge.
Defendants.
Appeals of: Caribbean Cruise Line, Inc.;
Vacation Ownership Marketing Tours, Inc.;
The Berkley Group, Inc.; and Daisy Exum
Order
Our first decision in this large-scale class action, see 896 F.3d 792 (7th Cir. 2018), af-
firmed the district court’s handling of the settlement and award of attorneys’ fees. What
*These successive appeals are being submitted to the original panel, with the exception of District
Judge Griesbach, who has not participated. The appeals are being decided by a quorum of the panel. See
28 U.S.C. §46(d). After examining the briefs and the record, we have concluded that oral argument is un-
necessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
Nos. 20-2672 et al. Page 2
remained for decision was who had received how many illegal robocalls, each of which
was to support an award of $500 (subject to any adjustments necessary to ensure that
the total received by class members fits within the range of $56 million to $76 million
established by the settlement). Following the process outlined in the settlement, the dis-
trict court resolved some open issues and referred others to a claims administrator,
whose decisions could be reviewed by Wayne Anderson, serving as a special master.
After the Master had made determinations (which the parties call “awarding calls”), the
class took exception to some parts of the decision and three of the defendants took ex-
ception to others. The district judge asked the Master to hold additional hearings to re-
solve disputes by some class members who said that their claims had been mishandled.
After that had been done, the judge resolved the remaining issues. The appeals contest
two of the judge’s decisions: one handling the principal class-wide issues, see 2019 U.S.
Dist. LEXIS 127472 (N.D. Ill. July 31, 2019), and one determining that class member Daisy
Exum had received 15 robocalls rather than the 700 she claimed or the 250 the Master
found, see 2020 U.S. Dist. LEXIS 129538 (N.D. Ill. July 22, 2020). The class representatives
have not appealed, but Exum and three of the original defendants have done so.
Exum contends that the Master’s decisions are not reviewable, while the three de-
fendants assert that appellate review is de novo—in other words, that the court of ap-
peals decides on its own, without deference to the Master or the district judge. We do
not agree with either approach. A special master, as a judge’s delegate, cannot exercise
unreviewable authority even if the parties agree to cut out the Article III judiciary. And
the defendants are wrong to label their protests issues of law. They are mixed legal and
factual matters. As the Supreme Court explained in U.S. Bank N.A. v. Village at Lakeridge,
LLC, 138 S. Ct. 960, 966–68 (2018), the standard of appellate review depends on whether
the arguments are case-specific, which implies deferential appellate review, or apply to
multiple other cases. All of the arguments in all of the appeals before us are case-
specific, which means that our review is deferential.
And the district judge’s decisions comfortably survive deferential appellate review.
Take Exum’s contention that she received 700 robocalls. She said that her phone bills
prove that 700 calls originated from the defendants or their agents, but she asserted that
she had lost the bills. She did not attempt to obtain new copies from the phone compa-
ny. The district judge observed that there would not have been any reason for defend-
ants to call Exum incessantly (Exum estimated twice a day for a year), when they did
not call anyone else nearly that often. Drawing on the numbers of calls proved by class
members who retained records, the district judge estimated that Exum had been called
15 times. That number is not clearly erroneous.
Nos. 20-2672 et al. Page 3
Defendants’ arguments in support of their own appeals principally concern the ad-
ministration of the settlement’s presumption that class members who do not prove
some different number of calls will be treated as having received three. The settlement
calls this a presumption, but defendants challenged its application to almost 95% of the
class members who availed themselves of it. In defendants’ view, only calls registered
on the “class list” should count. The claims administrator, however, also looked at calls
on lists derived from other sources. The district judge largely endorsed the claims ad-
ministrator’s approach, observing that the class list had been compiled from incomplete
records. We think that the district judge’s opinion says all that need be said about the
objections that the defendants have raised on appeal.
AFFIRMED