Ira Holtzman v. Gregory Turza , 701 F. App'x 506 ( 2017 )

NONPRECEDENTIAL DISPOSITION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 November 7, 2017*
Decided November 14, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-2330 Appeal from the United
States District Court for
IRA HOLTZMAN, individually and as
the Northern District of
representative of a class,
Illinois, Eastern Division.
Plaintiff-Appellee,
No. 08 C 2014
v.
Robert W. Gettleman,
GREGORY P. TURZA, Judge.
Defendant-Appellant.
Order
This case, now almost a decade old, has produced two published opinions.
The first held that the class prevails on the merits but remanded for further
proceedings concerning the remedy. 728 F.3d 682 (7th Cir. 2013). The second
*This successive appeal has been submitted under Operating Procedure 6(b) to the panel that
decided an earlier appeal. We have unanimously agreed to decide the case without argument
because the briefs and record adequately present the facts and legal arguments, and argument
would not significantly aid the court. See Fed. R. App. P. 34(a)(2)(C).
No. 17-2330 Page 2
held, among other things, that class counsel is entitled to a third of each class
member’s award as a contingent fee, but only if the class member collects the
recovery ($500 per unauthorized fax), and that any remainder goes back to
Turza. 828 F.3d 606 (7th Cir. 2016). The district court then approved a mailing to
class members asking each whether he or she wants to claim the recovery (with
nonresponse implying consent) and to update any details necessary to ensure
that checks reach the correct addresses.
Turza has appealed, contending that the notice should have directed each
class member to verify, under penalty of perjury, that he or she (1) used a
particular fax number from 2006 through 2008; (2) received at that number a
“Daily Plan-It” from Turza; (3) had not authorized Turza to send these faxes; and
(4) agrees to the retention of class counsel and payment of the one-third
contingent fee. Although the case has been fully briefed, the class has asked for
summary affirmance. There’s nothing “summary” about affirming after a case
has been briefed, but we understand this motion as, in effect, a proposal to
dispense with oral argument. We grant the motion as so understood; argument
could not add significantly to the briefs or to what we already know from the
previous appeals.
The first three of Turza’s requests concerning the notice essentially dispute
the decision this court reached in 2013. We held then that the record establishes
to what telephone number the faxes had been sent and what the faxes contained.
Whose fax numbers those were was established from electronic records and does
not depend on personal recollection. We added that it does not matter whether
any class member remembers receiving the “Daily Plan-It.” We also held that
any given recipient’s (potential) consent is irrelevant because the faxes omitted
the opt-out notice required by law.
The fourth of Turza’s requests implicitly disagrees with our decision of 2016,
which concluded that class counsel are entitled to receive a third of the award to
any class member who claims the money. None of the class members can reject
the services of class counsel and receive $500 per fax. The only decision a class
member must make is to accept or reject $333 per fax. To the extent Turza is
contending that the ethics rules of Illinois preclude such a result, that’s just a
form of disagreement with our 2016 decision—and it is inconsistent with Rand v.
Monsanto Co., 926 F.2d 596 (7th Cir. 1991), which held that federal rather than
state law supplies the procedures (including rules of legal ethics) used to
administer class actions in federal court.
No. 17-2330 Page 3
The final disposition of this case has been delayed far too long. The district
court’s decision is affirmed. The mandate will issue today.