Case: 1:18-cv-06785 Document #: 982 Filed: 05/26/23 Page 1 of 37 PageID #:20457

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IN RE: LOCAL TV ADVERTISING Master Docket No. 18-06785

ANTITRUST LITIGATION
MDL No. 2867
This document applies to all actions.
Honorable Virginia M. Kendall

PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENTS

WITH DEFENDANTS CBS, FOX, THE COX ENTITIES, AND SHAREBUILDERS
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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................. 1
II. BACKGROUND ................................................................................................................ 2
A. LITIGATION HISTORY. ....................................................................................................... 2
B. SETTLEMENT NEGOTIATIONS AND RESULTING AGREEMENT WITH CBS. .......................... 4
C. SETTLEMENT NEGOTIATIONS AND RESULTING AGREEMENT WITH FOX. ........................... 6
D. SETTLEMENT NEGOTIATIONS AND RESULTING AGREEMENT WITH THE COX ENTITIES. .... 7
E. SETTLEMENT NEGOTIATIONS AND RESULTING AGREEMENT WITH SHAREBUILDERS. ....... 9
F. THE PROPOSED PLAN OF DISTRIBUTION TO SETTLEMENT CLASS MEMBERS................... 10
III. LEGAL STANDARD ...................................................................................................... 11
IV. ARGUMENT ................................................................................................................ 13
A. THE PROPOSED SETTLEMENTS ARE FAIR, REASONABLE, AND ADEQUATE. ..................... 13
1. Plaintiffs and Interim Lead Counsel Have Represented the Settlement Classes
Vigorously and Skillfully. .................................................................................................. 13
2. The Settlements are the Product of Informed, Arm’s-Length Negotiations. .............. 14
3. The Relief Provided to the Settlement Classes is Substantial. ................................... 15
4. The Relief is Adequate Considering the Costs, Risks, and Delay of Trial and
Appeal. ............................................................................................................................... 16
5. The Relief is Adequate Considering the Effectiveness of the Proposed Method
of Distributing Relief to the Settlement Classes. ............................................................... 17
6. The Relief is Adequate Considering the Terms of the Proposed Award of
Attorney’s Fees .................................................................................................................. 18
7. The Settlements and the Proposed Plan of Allocation Treat Settlement Class
Members Equitably Relative to Each Other. ..................................................................... 20
B. THE PROPOSED SETTLEMENT CLASSES SATISFY RULE 23(A) ......................................... 21
1. Numerosity is Satisfied ............................................................................................... 22
2. Commonality is Satisfied ............................................................................................ 22
3. Typicality is Satisfied ................................................................................................. 23
4. Adequacy is Satisfied .................................................................................................. 24
C. THE PROPOSED SETTLEMENT CLASSES SATISFY RULE 23(B)(3). .................................... 25
1. Common Issues Predominate. .................................................................................... 25
2. A Class Action is Superior to Individual Litigations.................................................. 26
D. INTERIM CO-LEAD COUNSEL SHOULD BE APPOINTED SETTLEMENT CLASS
COUNSEL. ............................................................................................................................... 27

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E. PLAINTIFFS WILL BRING A SEPARATE MOTION TO APPROVE THE FORM AND

MANNER OF DISSEMINATION OF NOTICE TO THE SETTLEMENT CLASS. .................................. 28
V. CONCLUSION ................................................................................................................ 28

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TABLE OF AUTHORITIES

Page(s)

Cases

Agretti v. ANR Freight Sys., Inc.,

982 F.2d 242 (7th Cir. 1992) ..........................................................................................17

Alexander v. Q.T.S. Corp.,

1999 WL 573358 (N.D. Ill. July 30, 1999).....................................................................25

In re Am. Int’l Grp., Inc. Sec. Litig.,

689 F.3d 229 (2d Cir. 2012)............................................................................................26

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ................................................................................................ passim

Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,

568 U.S. 455 (2013) ........................................................................................................25

Armstrong v. Bd. of Sch. Dirs.,

616 F.2d 305 (7th Cir. 1980) ..........................................................................................11

Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities, Inc.,
747 F.3d 489 (7th Cir. 2014) ..........................................................................................22

In re Blue Cross Blue Shield Antitrust Litig.,

2020 WL 8256366 (N.D. Ala. Nov. 30, 2020) ...............................................................19

Camp Drug Store, Inc. v. Cochran Wholesale Pharm., Inc.,

897 F.3d 825 ...................................................................................................................19

In re Cathode Ray Tube (CRT) Antitrust Litig.,

2015 WL 9266493 (N.D. Cal. Dec. 17, 2015) ................................................................20

Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of Chicago,

797 F.3d 426 (7th Cir. 2015) ..........................................................................................25

In re Citric Acid Antitrust Litig.,

145 F. Supp. 2d 1152 (N.D. Cal. 2001) ..........................................................................20

In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig.,

795 F.3d 380 (3d Cir. 2015)............................................................................................13

Cook v. Niedert,
142 F.3d 1004 (7th Cir. 1998) ........................................................................................19

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In re Corrugated Container Antitrust Litig.,

1981 WL 2093 (S.D. Tex. June 22, 1981), aff’d, 659 F.2d 1322 (5th Cir. 1981) ..........15

In re Corrugated Container Antitrust Litig.,

659 F.2d 1322 (5th Cir. 1981) ........................................................................................15

In re Corrugated Container Antitrust Litig.,

643 F.2d 195 (5th Cir. 1981) ..........................................................................................13

In re Corrugated Container Antitrust Litig.,

456 U.S. 998 (1982) ........................................................................................................13

In re Currency Conversion Fee Antitrust Litig.,

2006 WL 3247396 (S.D.N.Y. Nov. 8, 2006) ..................................................................17

In re Domestic Airline Travel Antitrust Litig.,

378 F. Supp. 3d 10 (D.D.C. 2019) ..................................................................................16

E.E.O.C. v. Hiram Walker & Sons, Inc.,

768 F.2d 884 (7th Cir. 1985) ..........................................................................................11

E.E.O.C. v. Hiram Walker & Sons, Inc.,

478 U.S. 1004 (1986) ......................................................................................................11

Fauley v. Drug Depot, Inc.,

323 F.R.D. 594 (N.D. Ill. 2018) (Kendall, J.) .....................................................22, 23, 25

Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998) ..................................................................11

Four in One Co. v. S.K. Foods, L.P.,

2014 WL 4078232 (E.D. Cal. Aug. 14, 2014) ................................................................20

Gautreaux v. Pierce,
690 F.2d 616 (7th Cir. 1982) ..........................................................................................12

Goldsmith v. Tech. Sos. Co.,

1995 WL 17009594 (N.D. Ill. Oct. 10, 1995).................................................................14

Hughes v. Baird & Warner, Inc.,

1980 WL 1894 (N.D. Ill. Aug. 20, 1980) .......................................................................26

Isby v. Bayh,
75 F.3d 1191 (7th Cir. 1996) ....................................................................................11, 12

Keele v. Wexler,
149 F.3d 589 (7th Cir. 1998) ..........................................................................................23

Kleen Prods. LLC v. Int’l Paper Co.,

2017 WL 5247928 (N.D. Ill. Oct. 17, 2017)...................................................................16

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Kohen v. Pac. Inv. Mgmt., Co. LLC,

571 F.3d 672 (7th Cir. 2009) ....................................................................................13, 22

In re Lawnmower Engine Horsepower Mktg. & Sales Practices Litig.,

733 F. Supp. 2d 997 (E.D. Wis. 2010) ............................................................................16

In re Lithium Ion Batteries Antitrust Litig.,

2020 WL 7264559 (N.D. Cal. Dec. 10, 2020) ................................................................16

Lucas v. Vee Pak, Inc.,

2017 WL 6733688 (N.D. Ill., Dec. 20, 2017) .................................................................15

McNeely v. Nat’l Mobil Health Care, LLC,

2008 WL 4816510 (W.D. Okla. Oct. 27, 2008) .............................................................17

Montgomery v. Cont’l Intermodal Grp.-Trucking LLC,

2021 WL 1339305 (D.N.M. Apr. 9, 2021) .....................................................................18

In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Inj. Litig.,

332 F.R.D. 202 (N.D. Ill. 2019) ......................................................................................22

Owner-Operator Indep. Drivers’ Ass’n v. Allied Van Lines, Inc.,

231 F.R.D. 280 (N.D. Ill. 2005) ......................................................................................23

In re PaineWebber Ltd. P’ships Litig.,

171 F.R.D. 104 (S.D.N.Y. 1997) ....................................................................................20

In re PaineWebber Ltd. P’ships Litig.,

117 F.3d 721 (2d Cir. 1997)............................................................................................20

Paper Sys. Inc. v. Nippon Paper Indus. Co.,

281 F.3d 629 (7th Cir. 2002) ..........................................................................................15

Pearson v. NBTY, Inc.,

772 F.3d 778 (7th Cir. 2014) ..........................................................................................19

In re Potash Antitrust Litig.,

2013 WL 12470850 (N.D. Ill. June 12, 2013) ................................................................19

In re Processed Egg Prod. Antitrust Litig.,

2016 WL 3584632 (E.D. Pa. June 30, 2016) ..................................................................26

In re Processed Egg Prod. Antitrust Litig.,

284 F.R.D. 249 (E.D. Pa. 2012) ......................................................................................16

Pruitt v. City of Chicago,

472 F.3d 925 (7th Cir. 2006) ..........................................................................................22

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Reynolds v. Beneficial Nat’l Bank,

288 F.3d 277 (7th Cir. 2002) ..........................................................................................11

Rohlfing v. Manor Care, Inc.,

172 F.R.D. 330 (N.D. Ill. 1997) ......................................................................................25

Rosario v. Livaditis,
963 F.2d 1013 (7th Cir. 1992) ..................................................................................23, 24

In re Rubber Chems. Antitrust Litig.,

232 F.R.D. 346 (N.D. Cal. 2005) ....................................................................................23

Saltzman v. Pella Corp.,

257 F.R.D. 471 (N.D. Ill. 2009) ......................................................................................24

Saltzman v. Pella Corp.,

606 F.3d 391 (7th Cir. 2010) ..........................................................................................24

Sec’y of Labor v. Fitzsimmons,

805 F.2d 682 (7th Cir. 1986) ..........................................................................................24

In re Steel Antitrust Litig.,

2015 WL 5304629 (N.D. Ill. Sept. 9, 2015) .......................................................23, 24, 25

Sullivan v. DB Invs., Inc.,

667 F.3d 273 (3d Cir. 2011)............................................................................................17

In re Superior Beverage/Glass Container Consol. Pretrial,

133 F.R.D. 119 (N.D. Ill. 1990) ......................................................................................17

Swanson v. Am. Consumer Indus., Inc.,

415 F.2d 1326 (7th Cir. 1969) ........................................................................................22

In re Telectronics Pacing Sys. Inc.,

137 F. Supp. 2d 985 (S.D. Ohio 2001) ...........................................................................17

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) ........................................................................................................15

Thillens, Inc. v. Cmty. Currency Exch. Ass’n,

97 F.R.D. 668 (N.D. Ill. 1983) ........................................................................................23

In re TikTok, Inc., Consumer Privacy Litig.,

556 F. Supp. 3d 1076 (N.D. Ill. 2021) ................................................................12, 14, 18

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) ........................................................................................................25

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Uhl v. Thoroughbred Tech. & Telecomms., Inc.,

309 F.3d 978 (7th Cir. 2002) ..........................................................................................12

United States v. Sinclair Broadcast Group, Inc., et al.,

No. 1:18-cv-2609, ECF No. 1 (D.D.C.) ................................................................2, 3, 5, 6

In re Universal Serv. Fund Tel. Billing Practices Litig.,

219 F.R.D. 661 (D. Kan. 2004).......................................................................................27

In re Urethane Antitrust Litig.,

251 F.R.D. 629 (D. Kan. 2008).......................................................................................23

In re Urethane Antitrust Litig.,

768 F.3d 1245 (10th Cir. 2014) ......................................................................................23

In re Vitamin C Antitrust Litig.,

279 F.R.D. 90 (E.D.N.Y. 2012) ......................................................................................27

In re Vitamins Antitrust Litig.,

2000 WL 1737867 (D.D.C. Mar. 31, 2000)....................................................................20

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ........................................................................................................22

Walker v. Nat’l Collegiate Athletic Ass’n, 2019 WL 8058082 (7th Cir. Oct.
25, 2019) .........................................................................................................................22

Statutes & Rules

Sherman Act..........................................................................................................................27

Sherman Act Section 1............................................................................................................3

Fed. R. Civ. P. 23 ........................................................................................................... passim

Fed. R. Civ. P. 23(g) ......................................................................................................27, 28

Fed. R. Civ. P. 45 ....................................................................................................................8

Other Authorities

The Manual for Complex Litigation (Fourth) § 21.632 (2004) ...........................................12

McLaughlin on Class Actions § 6.23 (17th ed. 2020) ..........................................................20

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Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs,1 by and through their

undersigned counsel, respectfully submit this Motion for Preliminary Approval of the Settlement

Agreements with the Settling Defendants:2 CBS, Fox, the Cox Entities, and ShareBuilders

(“Motion for Preliminary Approval”) and request that the Court enter an Order (1) preliminarily

approving the proposed settlements with CBS, Fox, the Cox Entities, and ShareBuilders

(“Settlements” or “Settlement Agreements”), and the proposed plan of distribution for each of the

Net Settlement Funds (as defined below); (2) provisionally certifying the proposed Settlement

Classes (defined below) and appointing Megan Jones of Hausfeld LLP as Settlement Class

Counsel; and (3) staying the above-captioned action (“Action”) for CBS, Fox, the Cox Entities,

and ShareBuilders pending final approval of the respective Settlement Agreements.3

I. INTRODUCTION

Plaintiffs have engaged in extensive negotiations and reached Settlement Agreements that,

when approved, will resolve all claims against the Settling Defendants. In exchange, Defendants

CBS, the Cox Entities, and Fox will collectively pay $48,000,000.00 (forty-eight million dollars)

and provide meaningful cooperation, which will assist Plaintiffs in the prosecution of their claims

against the Non-Settling Defendants.4 Defendant ShareBuilders will provide meaningful

1
“Plaintiffs” refers to One Source Heating & Cooling, LLC, ThoughtWorx, Inc. d/b/a MCM
Services Group, Hunt Adkins, Inc., and Fish Furniture.
2
“Settling Defendants” refers to (1) CBS Corp. n/k/a Paramount Global (“CBS”); (2) Fox Corp.
(“Fox”); (3) Cox Media Group, LLC (“CMG LLC”), Cox Enterprises, Inc. (“CEI”), CMG Media
Corporation (f/k/a Terrier Media Buyer, Inc. and d/b/a Cox Media Group) (“CMG”), and Cox Reps, Inc.
(“CoxReps”) (CoxReps, CMG LLC, CEI, and CMG are collectively referred to herein as the “Cox
Entities”); and (4) ShareBuilders, Inc. (“ShareBuilders”).
3
All capitalized terms in this brief have the same meaning as in the Settlement Agreements, unless
otherwise defined.
4
“Non-Settling Defendants” refers to Raycom Media Inc. (“Raycom”), Meredith Corporation
(“Meredith”), Griffin Communications, LLC (“Griffin”), Nexstar Media Group, Inc. (“Nexstar”),
Dreamcatcher Broadcasting, LLC (“Dreamcatcher”), Sinclair Broadcasting Group, Inc. (“Sinclair”),
Tribune Broadcasting Company, LLC (“Tribune Broadcasting”) and Tribune Media Company (“Tribune

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cooperation, which Lead Counsel also believes will assist Plaintiffs in the prosecution of their

claims against the Non-Settling Defendants. Plaintiffs respectfully submit that the four

Settlements, which were negotiated by experienced and informed counsel, are fair, reasonable, and

adequate and in the best interests of the proposed Settlement Classes.5

II. BACKGROUND

A. Litigation History.

Beginning in the late summer of 2018, individual complaints were filed in jurisdictions

across the United States alleging an anticompetitive scheme by television broadcasting companies

and their sales representative firms to artificially inflate the price of broadcast television spot

advertisements. The cases were subsequently transferred and consolidated before this Court, and

Megan Jones of Hausfeld LLP was appointed Interim Lead Counsel. ECF Nos. 1, 170, 356.6

Plaintiffs filed a Consolidated Amended Antitrust Class Action Complaint on April 13,

2019, naming as Defendants the companies named as defendants by the DOJ, see ECF No. 223,

and a Consolidated Second Amended Antitrust Class Action Complaint (“Second Amended

Complaint”) on September 9, 2019, adding additional Defendants subsequently named by the

DOJ.7 See ECF No. 292. Plaintiffs allege that Defendants—firms that together account for billions

Media”) (collectively, “Tribune,” and with Dreamcatcher and Nexstar, “Nexstar Group”), The E.W. Scripps
Company (“Scripps”), and TEGNA Inc. (“TEGNA”).
5
The respective settlement agreements are attached as Exhibit 1 (“CBS Settlement”), Exhibit 2
(“Fox Settlement”), Exhibit 3 (“Cox Entities Settlement”), and Exhibit 4 (“ShareBuilders Settlement”)
(collectively, the “Settlement Agreements” or “Agreements”) to the Declaration of Megan E. Jones (“Jones
Decl.”) submitted in support of Plaintiffs’ Motion for Preliminary Approval. All capitalized defined terms
used herein have the same meanings ascribed in the Settlement Agreements.
6
On November 13, 2018, the United States Department of Justice (“DOJ”) filed its original
complaint against Raycom, Meredith, Griffin, Dreamcatcher, Sinclair, and Tribune, later adding Nexstar as
a defendant on December 13, 2018. See United States v. Sinclair Broadcast Group, Inc., et al., No. 1:18-
cv-2609, ECF No. 1 (D.D.C.). A final judgment was entered against all seven defendants on May 22, 2019.
Id. at ECF Nos. 34-40.
7
On June 17, 2019, the DOJ filed a second amended complaint, adding CBS, CEI, Scripps, Fox, and
TEGNA as defendants. See United States v. Sinclair Broadcast Group, Inc., et al., No. 1:18-cv-2609, ECF

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of dollars in annual broadcast television spot advertising revenue—engaged in a unitary scheme

to raise the prices of broadcast television spot advertisements to supra-competitive levels by

agreeing to fix prices and exchange competitively sensitive information, including pacing data, in

violation of Section 1 of the Sherman Act and various state unfair competition laws. See ECF Nos.

223, 292.

Plaintiffs’ claims have been vigorously prosecuted and contested at every stage of this

Action. See Jones Decl., ¶ 10. On October 8, 2019, CBS, Fox, CMG LLC, Dreamcatcher, Griffin,

Meredith, Nexstar, Raycom, Scripps, Sinclair, TEGNA and Tribune (collectively, “Broadcaster

Defendants”) filed a motion to dismiss the Second Amended Complaint. ECF No. 328. Following

briefing and oral argument, the Court denied the Broadcaster Defendants’ motion on November 6,

2020. ECF No. 392. Thereafter, the parties proceeded with discovery, which is still ongoing.

In March 2022, following the production and review of millions of documents from

Defendants, Plaintiffs amended their complaint to add ShareBuilders as a Defendant, alleging that

it facilitated the alleged conspiracy. See ECF No. 556 (“Third Amended Complaint”).

ShareBuilders moved to dismiss, and by opinion and order dated August 29, 2022, the Court

dismissed ShareBuilders with leave to amend. See ECF No. 716 at 16. On October 20, 2022, the

Court extended the fact discovery schedule to at least April 15, 2023, see ECF 844 and on March

13, the Court vacated the April 15 discovery deadline in light of the ongoing privilege disputes

pending before the Special Master. See ECF No. 926.

To date, Defendants have collectively produced, and Plaintiffs have been diligently

reviewing, nearly fourteen (14) million documents. Jones Decl., ¶ 13. Plaintiffs also received and

No. 42 (D.D.C.). A final judgment was entered against these five defendants on December 3, 2019. Id. at
ECF Nos. 76-80.

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are reviewing thousands of pages of third-party documents in response to subpoenas for documents

served on a number of third parties. Id., ¶ 14. Notably, Plaintiffs served dozens of subpoenas on

AT&T and Verizon, seeking telephone records for more than 1,200 individuals associated with

Defendants, and have received roughly 1.4 million pages of telephone records in response. Id.

Plaintiffs then synthesized these phone records, which has enabled them to identify instances

where certain Defendants’ employees were communicating with each other. Id. To date, Plaintiffs

have filed over twenty (20) discovery motions against one or more Defendants, which, among

other things, seek additional documents and custodians, challenge Defendants’ assertions of

privilege, and seek spoliation sanctions. Id., ¶ 15. Plaintiffs have also taken over thirty (30)

depositions. Id.

B. Settlement Negotiations and Resulting Agreement with CBS.

Beginning in the Summer of 2021, counsel for Plaintiffs and CBS began a series of

vigorous, bilateral settlement discussions, which included email exchanges, telephonic

communications, and video conference meetings. Id., ¶ 20. In late 2021, the parties reached an

agreement in principle to settle. Id. Thereafter, over the course of many months, the parties

engaged in arm’s-length negotiations regarding the settlement terms, with the final Settlement

Agreement executed on May 10, 2023. Id., Ex. 1.

The CBS Settlement is on behalf of a Settlement Class (the “CBS Settlement Class”)

defined as follows:

All persons and entities in the United States who purchased broadcast television
spot advertising directly from one or more Broadcaster Defendants in a designated
market area (“DMA”) within which two or more of the Broadcaster Defendants
sold broadcast television spot advertisements on broadcast television stations,
including anyone who directly paid one or more Defendants for all or a portion of
the cost of such broadcast television spot advertisements from January 1, 2014 to
and including December 31, 2018 (the “Settlement Class Period”). For the sake of
clarity, the DMAs within which two or more of the Broadcaster Defendants sold
broadcast television spot advertisements on broadcast television stations are set

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forth in Appendix A to the consolidated Third Amended Antitrust Class Action

Complaint dated March 16, 2022 and attached hereto.

Excluded from the Settlement Class are Defendants, their parent companies,
subsidiaries, affiliates, officers, directors, employees, assigns, successors, agents,
or co-conspirators; the court, court staff, defense counsel, all respective immediate
family members of these excluded entities, federal governmental entities and
instrumentalities of the federal government, and states and their subdivisions,
agencies and instrumentalities.

Id., ¶ 3.8

Pursuant to the CBS Settlement, CBS will pay $5,000,000 (five million dollars) to settle

this Action. Id., ¶ 5. The CBS Settlement provides no reversion of the Settlement Amount or opt-

out reduction to CBS.

In addition to the monetary payment, CBS agreed to provide Plaintiffs with valuable

cooperation in the continued prosecution of their claims against the remaining Defendants. Id., ¶

12. This includes CBS providing Plaintiffs with the following: (1) all documents previously

produced by CBS to the DOJ in connection with United States v. Sinclair Broadcast Group, Inc.

et al.; (2) documents responsive to Plaintiffs’ First Set of Request for Documents, as limited by

the parties’ agreements regarding scope, custodians, search terms and privilege; (3) structured data

for its stations for the time period from January 1, 2013 through December 31, 2020; (4) an

attorney proffer regarding the broadcast television spot advertising industry and facts reasonably

known to CBS that are relevant to the claims asserted in the Action; and (5) declarations,

certifications, or affidavits regarding the authenticity and admissibility of documents. Id. This

cooperation—some of which CBS has already provided to Plaintiffs and all of which will be made

available to Plaintiffs if the Court grants preliminary approval of the CBS Settlement—is valuable

8
This is the same class definition in all four Settlement Agreements and is hereinafter referred to as
the “Settlement Classes.”

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to Plaintiffs and the Class members they represent as this case proceeds to trial. Jones Decl., ¶ 21.

In consideration for the above-specified relief, Plaintiffs and the proposed CBS Settlement

Class agree, among other things, to release claims against CBS and Releasees (as defined in the

CBS Settlement Agreement) that were, or could have been, brought in this Action arising from the

conduct alleged in Action. Id., Ex. 1, ¶ 4. The release does not extend to any other Defendants, and

importantly, CBS’s sales remain in the case for purposes of joint and several liability. Id., ¶ 17.

C. Settlement Negotiations and Resulting Agreement with Fox.

Plaintiffs likewise reached the Fox Settlement following hard fought and arm’s-length

negotiations. Jones Decl., ¶ 22. The negotiations began in or around July of 2021. Id. After several

months of negotiations between the parties, which included email exchanges, telephonic

communications and video conference meetings, Plaintiffs and Fox reached an agreement in

principle to settle in October of 2021. Id. The parties then engaged in months of negotiations

regarding a final Settlement Agreement, which was executed on May 9, 2023. Id., Ex. 2.

The Fox Settlement is on behalf of the Fox Settlement Class, which has the same definition

as the CBS Settlement Class, as set forth above. Id., Ex. 2, ¶ 3. Pursuant to the Fox Settlement,

Fox will pay $6,000,000 (six million dollars) to settle this Action. Id., ¶ 5. The Fox Settlement

provides no reversion of the Settlement Amount or opt-out reduction to Fox.

In addition to the monetary payment, Fox agreed to provide Plaintiffs with valuable

cooperation in the continued prosecution of their claims against the remaining Defendants. Id., ¶

12. This includes Fox providing Plaintiffs with the following: (1) all documents produced by Fox

to the DOJ in connection with United States v. Sinclair Broadcast Group, Inc. et al.; (2) documents

responsive to Plaintiffs’ First Set of Request for Documents; (3) structured data for its stations for

the time period from January 1, 2013 through December 31, 2020; (4) an attorney proffer(s)

regarding the broadcast television spot advertising industry and facts reasonably known to Fox

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that are relevant to the claims asserted in the Action; (5) witnesses for up to two depositions; and

(6) declarations, certifications, or affidavits, at the request of Plaintiffs’ counsel, regarding the

authenticity and admissibility of documents. Id. This cooperation—some of which Fox has already

provided to Plaintiffs and all of which will be made available to Plaintiffs if the Court grants

preliminary approval of the Fox Settlement—is valuable to Plaintiffs and the Class members they

represent as this case proceeds to trial. Jones Decl., ¶ 23.

In consideration for the above-specified relief, Plaintiffs and the proposed Fox Settlement

Class agree, among other things, to release claims against Fox and Releasees (as defined in the

Fox Settlement Agreement) that were, or could have been, brought in this Action arising from the

conducted alleged in the Action. Id., Ex. 2, ¶ 4. The release does not extend to any other

Defendants, and importantly, Fox’s sales remain in the case for purposes of joint and several

liability. Id., ¶ 17.

D. Settlement Negotiations and Resulting Agreement with the Cox Entities.

Plaintiffs likewise reached the Cox Entities Settlement following hard fought and arm’s-

length negotiations. Jones Decl., ¶ 24. The initial negotiations were mediated by Michelle Yoshida

of Phillips ADR in January of 2022. Id. While the parties did not reach an agreement during the

mediation, thereafter, they continued to engage in direct negotiations, including email exchanges,

telephonic communications, and video conference meetings. Id. Plaintiffs and the Cox Entities

reached an agreement in principle to settlement in February 2022. Id. The parties then engaged in

additional arm’s-length negotiations regarding the detailed terms of the settlement to reach a final

Settlement Agreement, which was executed on May 10, 2023. Id., Ex. 3.

The Cox Entities Settlement is on behalf of the Cox Entities Settlement Class, which also

has the same definition as the CBS Settlement Class, as set forth above. Id., ¶ 3.

Pursuant to the Cox Entities Settlement, the Cox Entities will pay an aggregate total of

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$37,000,000 (thirty-seven million dollars) to settle this Action. Id., ¶ 5. Rules 23(e)(2)(C)(iv) and

23(e)(3) require that any agreement “made in connection with the proposal” be identified.

Plaintiffs and the Cox Entities have entered into one such agreement: the Cox Entities have the

right to rescind the Settlement Agreement if opt-outs meet or exceed certain criteria set forth in a

confidential supplemental agreement (which shall be provided to the Court for in camera

inspection upon request). Jones Decl., ¶ 25.

In addition to the monetary payment, the Cox Entities agreed to provide Plaintiffs with

valuable cooperation in the continued prosecution of their claims against the remaining

Defendants. Id., Ex. 3, ¶ 12. This includes the Cox Entities providing Plaintiffs with the following:

(1) documents responsive to Plaintiffs’ Rule 45 subpoena served on CoxReps; (2) assistance with

respect to questions about the transactional data that CMG produced; (3) attorney proffers related

to Cox Reps and CMG, including a description of facts reasonably known to CoxReps and/or

CMG that are relevant to the claims asserted in the Action; (4) declarations, certifications, or

affidavits, regarding the authenticity and admissibility of documents; (5) witnesses for one

30(b)(6) deposition each of CMG and CoxReps; and (6) up to five witnesses at the trial against the

remaining Defendants. Id. This cooperation—some of which the Cox Entities have already

provided to Plaintiffs and all of which will be made available to Plaintiffs if the Court grants

preliminary approval of the Cox Entities Settlement—is valuable to Plaintiffs and the Class

members they represent as this case proceeds to trial. Jones Decl., ¶ 25.

In consideration, Plaintiffs and the proposed Cox Entities Settlement Class agree, among

other things, to release claims against the Cox Entities and Releasees (as defined in the Cox Entities

Settlement Agreement) that were, or could have been, brought in this Action arising from the

conducted alleged in the Action. Id., Ex. 3, ¶ 4. The release does not extend to any other

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Defendants, and importantly, the Cox Entities’ sales remain in the case for purposes of joint and

several liability. Id., ¶ 17.

E. Settlement Negotiations and Resulting Agreement with ShareBuilders.

Plaintiffs likewise reached the ShareBuilders Settlement following hard fought and arm’s-

length negotiations. Jones Decl., ¶ 26. Plaintiffs and ShareBuilders initially discussed settlement

prior to the filing of Plaintiffs’ Third Amended Complaint which added ShareBuilders as a

Defendant. Id. Those discussions ultimately did not bear fruit. Id. Following the Court’s dismissal

of ShareBuilders as a Defendant in August 2022, the parties restarted their settlement discussions.

Id. Following a mediation session with the Honorable Michael J. Reagan (Ret.) of JAMS in

October 2022, which included a proffer regarding ShareBuilders’ financial status and ability to

pay any settlement amount, the parties reached an agreement in principle to settle for cooperation

only. Id. The parties then engaged in additional arm’s-length negotiations regarding the detailed

terms of the settlement to reach a final Settlement Agreement, which was executed on May 10,

2023. Id., Ex. 4.

The ShareBuilders Settlement is on behalf of the ShareBuilders Settlement Class, which

also has the same definition as the CBS Settlement Class, as set forth above. Id., ¶ 3.

Pursuant to the ShareBuilders Settlement, ShareBuilders agreed to provide Plaintiffs with

valuable cooperation in the continued prosecution of their claims against the remaining

Defendants. Id., ¶ 8. This includes ShareBuilders providing Plaintiffs with the following: (1)

documents responsive to Plaintiffs’ First Set of Requests for Production of Documents served on

ShareBuilders; (2) a demonstration of how it uses its algorithm(s) and related electronic code and

an ability to inspect the algorithm(s) under mutually agreed terms; (3) assistance with respect to

questions about the algorithm(s); (4) attorney proffers regarding the broadcast television spot

advertising industry and facts known to ShareBuilders that are relevant to the claims asserted in

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the Action; (5) up to four witnesses, including Erin Koller and Austin Locke, for witness interviews

(the “ShareBuilders Witnesses”); (6) up to four of the ShareBuilders Witnesses for depositions;

(7) up to four of the ShareBuilders Witnesses to testify at trial; (8) a 30(b)(6) deposition with up

to ten (10) topics; and (9) declarations, certifications, or affidavits regarding the authentication and

admissibility of ShareBuilders’ documents. Id. This cooperation—some of which ShareBuilders

has already provided to Plaintiffs and all of which will be made available to Plaintiffs if the Court

grants preliminary approval of the ShareBuilders Settlement—is valuable to Plaintiffs and the

Class members they represent as this case proceeds to trial. Jones Decl., ¶ 27.

In consideration, Plaintiffs and the proposed ShareBuilders Settlement Class agree, among

other things, to release claims against ShareBuilders and Releasees (as defined in the

ShareBuilders Settlement Agreement) that were, or could have been, brought in this Action arising

from the conducted alleged in the Third Amended Complaint. Id., Ex. 4, ¶ 4. The release does not

extend to any other Defendants, and the non-settling Defendants remain jointly and severally liable

for the full amount of damages caused by the alleged conspiracy. Id., ¶ 14.

F. The Proposed Plan of Distribution to Settlement Class Members.

Subject to the Court’s approval and direction, the proceeds from the CBS, Fox, and the

Cox Entities Settlements, net of Court-approved attorneys’ fees, litigation expenses, claims

administration costs, and service awards for the class representatives (the “Net Settlement Funds”),

will be distributed, to the extent economically feasible, to members of the respective Settlement

Classes pursuant to a pro rata plan of allocation based upon the amounts claiming Settlement Class

members paid to the Broadcaster Defendants for broadcast television spot advertising during the

Settlement Class Period.9 As discussed in more detail below, such a pro rata distribution is fair

9
If the total final claim payment is equal to or less than $5.00, no distribution will be made to that
claimant, and the claimant will be notified that there will be no distribution given the de minimis value of

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and reasonable because it will compensate Settlement Class members commensurate with the

degree of alleged harm suffered.

III. LEGAL STANDARD

There is an overriding public interest in settling litigation, and this is particularly true in

class actions. See Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) (“Federal courts naturally favor

the settlement of class action litigation.”) (citing E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d

884, 888-89 (7th Cir. 1985)), cert. denied, 478 U.S. 1004 (1986) (noting that there is a general

policy favoring voluntary settlements of class action disputes); Armstrong v. Bd. of Sch. Dirs., 616

F.2d 305, 312 (7th Cir. 1980) (“It is axiomatic that the federal courts look with great favor upon

the voluntary resolution of litigation through settlement.”), overruled on other grounds by Felzen

v. Andreas, 134 F.3d 873 (7th Cir. 1998). Class action settlements minimize the litigation expenses

of the parties and reduce the strain such litigation imposes upon already scarce judicial resources.

Armstrong, 616 F.2d at 312-13.

A class action, however, may only be settled with court approval. See Reynolds v.

Beneficial Nat’l Bank, 288 F.3d 277, 279 (7th Cir. 2002) (“Federal Rule of Civil Procedure 23(e)

requires court approval of any settlement that effects the dismissal of a class action.”). Before the

court may give that approval, all class members must be given notice of the proposed settlement

in the manner the court directs. Fed. R. Civ. P. 23(e). And before notice is given to class members,

the court must make a preliminary evaluation of the proposed settlement. The Manual for Complex

Litigation explains:

First, counsel submit the proposed terms of settlement and the judge makes a
preliminary fairness evaluation . . . The Judge must make a preliminary
determination on the fairness, reasonableness and adequacy of the settlement terms
and must direct the preparation of notice of the . . . proposed settlement, and the date
of the [formal Rule 23(e)] fairness hearing.

the claim.

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The Manual for Complex Litigation (Fourth) § 21.632 (2004).

The standard for final approval of a class action settlement is whether the proposed

settlement is fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2); see also Uhl v. Thoroughbred

Tech. & Telecomms., Inc., 309 F.3d 978, 986 (7th Cir. 2002); Isby, 75 F.3d at 1198-99. Rule 23(e),

which was amended in 2018 to include its own four-factor test for finding a proposed class action

settlement fair, reasonable, and adequate, considers whether:

(A) the class representatives and class counsel have adequately represented the
class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for
the class is adequate, taking into account: (i) the costs, risks, and delay of trial and
appeal; (ii) the effectiveness of any proposed method of distributing relief to the
class, including the method of processing class-member claims; (iii) the terms of
any proposed award of attorney’s fees, including timing of payment; and (iv) any
agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats
class members equitably relative to each other.

Fed. R. Civ. P. 23(e)(2).

At the preliminary approval stage, however, a court need not conduct a full inquiry into

whether a settlement satisfies Rule 23(e); rather, it need only determine whether a proposed

settlement is “within the range of possible approval” and whether it is likely that the class will be

certified. See Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982) (“The first step in district

court review of a class action settlement is a preliminary, pre-notification hearing to determine

whether the proposed settlement is ‘within the range of possible approval”); see also In re TikTok,

Inc., Consumer Privacy Litig., 556 F. Supp. 3d 1076, 1080-83 (N.D. Ill. 2021) (citing Fed. R. Civ.

P. 23(e)(1)(B)(i)-(ii)).

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IV. ARGUMENT

A. The Proposed Settlements are Fair, Reasonable, and Adequate.

1. Plaintiffs and Interim Lead Counsel Have Represented the Settlement

Classes Vigorously and Skillfully.

Rule 23(e)(2)(A) requires that “the class representatives and class counsel have adequately

represented the class.” Fed. R. Civ. P. 23(e)(2)(A). Adequacy is measured by a two-part test: (i)

the named plaintiffs cannot have claims in conflict with other class members and (ii) the named

plaintiffs and proposed class counsel must demonstrate their ability to litigate the case vigorously

and competently on behalf of named and absent class members alike. See Kohen v. Pac. Inv.

Mgmt., Co. LLC, 571 F.3d 672, 679 (7th Cir. 2009). Plaintiffs and Interim Lead Counsel have

more than adequately represented the proposed Settlement Classes.

Plaintiffs and the proposed Settlement Classes do not have antagonistic or conflicting

claims. Indeed, they are purchasers of broadcast television advertising spots asserting the same

claims against the same Defendants to recover for the same alleged injury inflicted by Defendants.

Plaintiffs have participated in this Action and are genuinely concerned about the alleged conduct’s

effects on other similarly situated purchasers, and there has been no evidence, let alone any real

probability, that Plaintiffs have antagonistic interests with other members of the Settlement

Classes. See, e.g., In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380, 394

(3d Cir. 2015) (finding that there is no fundamental intra-class conflict to prevent class certification

where all class members pursuing damages under the same statutes and the same theories of

liability); In re Corrugated Container Antitrust Litig., 643 F.2d 195, 208 (5th Cir. 1981), cert.

denied, 456 U.S. 998 (1982) (certifying a settlement class and holding that “so long as all class

members are united in asserting a common right, such as achieving the maximum possible

recovery for the class, the class interests are not antagonistic for representation purposes”).

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Further, Plaintiffs and Interim Lead Counsel will continue to litigate this case vigorously

and competently. As demonstrated when she sought appointment, Interim Lead Counsel is

qualified, experienced, and thoroughly familiar with antitrust class action litigation. See also ECF

No. 170. Interim Lead Counsel has obtained an excellent result for the Settlement Classes and will

continue to do so as this case proceeds against the non-settling Defendants through discovery, class

certification, summary judgment, and trial. Accordingly, Plaintiffs and Interim Lead Counsel have

adequately represented the Class.

2. The Settlements are the Product of Informed, Arm’s-Length

Negotiations.

The Settlements are the product of informed, arm’s-length negotiations. As described

above, Plaintiffs and Defendants have been engaged in protracted litigation over the course of

more than four years, involving the review of more than fourteen (14) million documents, the

review of deposition transcripts from the DOJ investigations, and extensive motion practice. See

Part II-A, supra. In light of the significant amount of discovery conducted, Plaintiffs possessed

sufficient information to reach fair, reasonable, and adequate settlements.

Moreover, the Settlements are the product of extensive arm’s-length settlement

negotiations, which included numerous rounds of give-and-take between Interim Lead Counsel

and the respective Settling Defendants’ counsel. See Jones Decl., ¶ 18. The negotiations were hard-

fought and conducted in good faith, resulting fair, reasonable, and adequate Settlements. Id.

Where, as here, a settlement is proposed by experienced counsel and results from arm’s-length

negotiations, a presumption that the settlement is fair and reasonable is appropriate. Goldsmith v.

Tech. Sos. Co., 1995 WL 17009594, at *3 n.2 (N.D. Ill. Oct. 10, 1995). Such a presumption reflects

courts’ understanding that vigorous negotiations between seasoned counsel protect against

collusion and advance the fairness concerns of Rule 23(e). See TikTok, 565 F. Supp. 3d at 1088

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n.5 (collecting cases).

3. The Relief Provided to the Settlement Classes is Substantial.

In assessing whether a settlement provides adequate relief for the putative class under Rule

23(e)(2)(C), the Court should consider the following:

(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any
proposed method of distributing relief to the class, including the method of
processing class-member claims[, if required]; (iii) the terms of any proposed award
of attorney’s fees, including timing of payment; and (iv) any agreement required to
be identified under Rule 23(e)(3).

Fed. R. Civ. P. 23(e)(2)(C)(i–iv).

The CBS, Fox, and Cox Entities Settlements provide $5 million, $6 million, and $37

million respectively, totaling $48 million in monetary relief. These amounts represent a significant

relief for the Settlement Classes. Importantly, the proposed Settlements do not affect the potential

full recovery of damages for the Settlement Classes under the antitrust laws; the remaining

Defendants will be jointly and severally liable for injuries incurred because of the conspiracy

Plaintiffs allege. See Paper Sys. Inc. v. Nippon Paper Indus. Co., 281 F.3d 629, 632 (7th Cir. 2002)

(“[E]ach member of a conspiracy is liable for all damages caused by the conspiracy’s entire

output.”) (citing Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981)).

In addition, if approved, each of the Settlements provides significant cooperation that

would otherwise be obtainable only through protracted litigation. The cooperation will provide

Plaintiffs with strategic advantages and increase the value of this case to the absent class members

as Plaintiffs continue to litigate against the remaining Defendants. For decades, courts around the

country have recognized the benefit of cooperation in settlements in antitrust class actions,

including in cooperation-only settlements. See, e.g., Lucas v. Vee Pak, Inc., 2017 WL 6733688, at

*10, *12 (N.D. Ill., Dec. 20, 2017) (“[T]he [settlement’s] cooperation agreement [will] save the

plaintiffs from trying to determine the right questions to ask the right people, a challenge plaintiffs

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often face in civil discovery [and] will serve to minimize the costs and challenges the plaintiffs

face in their case. . . .”); In re Corrugated Container Antitrust Litig., 1981 WL 2093, at *16 (S.D.

Tex. June 22, 1981), aff’d, 659 F.2d 1322 (5th Cir. 1981) (noting that the cooperation provisions

in the settling parties’ agreements “constituted a substantial benefit to the class”); In re Domestic

Airline Travel Antitrust Litig., 378 F. Supp. 3d 10, 29 (D.D.C. 2019) (noting that the cooperation

provisions of the settling parties’ agreement weigh in favor of court approval); In re Processed

Egg Prod. Antitrust Litig., 284 F.R.D. 249, 275 (E.D. Pa. 2012) (“[T]he Court recognizes that

[settling Defendant’s] agreement to cooperate with Plaintiffs throughout the course of pre-trial

proceedings and trial is valuable consideration in light of the risks in proceeding with this suit

against the remaining Defendants.”); In re Lawnmower Engine Horsepower Mktg. & Sales

Practices Litig., 733 F. Supp. 2d 997, 1009 (E.D. Wis. 2010) (recognizing the value of and

approving a cooperation only settlement).

In sum, Interim Lead Counsel thoroughly evaluated the relative strengths and weaknesses

of the respective litigation positions and determined that each Settlement brings substantial

benefits to the proposed Settlement Classes at an early stage in this Action and avoids the delay

and uncertainty of continuing protracted litigation with the Settling Defendants. Jones Decl., ¶ 19.

The benefits of Settlements outweigh the costs and risks associated with continued litigation with

Settling Defendants and weigh in favor of granting preliminary approval.

4. The Relief is Adequate Considering the Costs, Risks, and Delay of Trial
and Appeal.

It has long been recognized that “[a]ntitrust cases are particularly risky, challenging, and

widely acknowledged to be among the most complex actions to prosecute.” In re Lithium Ion

Batteries Antitrust Litig., 2020 WL 7264559, at *15 (N.D. Cal. Dec. 10, 2020) (collecting cases

from across the circuits); see also Kleen Prods. LLC v. Int’l Paper Co., 2017 WL 5247928, at *5

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(N.D. Ill. Oct. 17, 2017) (“Antitrust cases are particularly complex and risky”).

While Plaintiffs believe the case is strong and that they would achieve success on the

merits, these Settlements mitigate that risk and protect the Settlement Classes. See, e.g., Agretti v.

ANR Freight Sys., Inc., 982 F.2d 242, 247 (7th Cir. 1992) (“In complex litigation with a plaintiff

class, partial settlements often play a vital role in resolving class actions”) (cleaned up); In re

Superior Beverage/Glass Container Consol. Pretrial, 133 F.R.D. 119, 127 (N.D. Ill. 1990) (“The

‘best’ case can be lost and the ‘worst’ case can be won, and juries may find liability but no

damages. None of these risks should be underestimated.”); Sullivan v. DB Invs., Inc., 667 F.3d

273, 323-24 (3d Cir. 2011) (noting that a settlement represents a compromise that takes into

account risks, expense and delay of further litigation); In re Telectronics Pacing Sys. Inc., 137 F.

Supp. 2d 985, 1013 (S.D. Ohio 2001) (noting that a settlement avoids costs, delays, and other

problems associated with complex class actions).

Absent the Settlements, members of the Settlement Classes would likely need to wait years

before any recovery, with summary judgment briefing not yet scheduled, and trial and an inevitable

lengthy appeals period thereafter. Thus, the Settlements assures that there will be some monetary

recovery now, the value of which courts often recognize. See, e.g., McNeely v. Nat’l Mobil Health

Care, LLC, 2008 WL 4816510, at *13 (W.D. Okla. Oct. 27, 2008) (noting that the class was “better

off receiving compensation now as opposed to being compensated, if at all, several years down

the line, after the matter is certified, tried, and all appeals are exhausted”); In re Currency

Conversion Fee Antitrust Litig., 2006 WL 3247396, at *6 (S.D.N.Y. Nov. 8, 2006) (“[I]t may be

preferable to take the bird in the hand instead of the prospective flock in the bush.”) (cleaned up).

5. The Relief is Adequate Considering the Effectiveness of the Proposed

Method of Distributing Relief to the Settlement Classes.

Plaintiffs propose to distribute the Net Settlement Funds pro rata, by check or electronic

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means, based on individual Settlement Class members’ purchases of broadcast television

advertising spots during the Settlement Class Period, which treats all members of the Settlement

Classes equitably. Such a pro rata distribution is fair and reasonable because it will compensate

members of the Settlement Classes commensurate with the degree of alleged harm suffered.

For example, Settlement Class members that purchased more broadcast television

advertising spots (and thus likely suffered more in alleged damages than Settlement Class members

that purchased fewer spots) will receive proportionately more from the Settlements. In other words,

the method of distribution will ensure that Settlement Class members are compensated in

proportion to the alleged injuries they suffered. Such pro rata distribution is the norm in complex

class action antitrust settlements. See Part IV.A.7, infra.

Plaintiffs’ proposed allocation plan will be efficient and streamlined. Plaintiffs’ proposed

method of distribution includes mailing and emailing notice to potential members of the Settlement

Classes, which are widely accepted as an effective form of distributing notice in class actions. See,

e.g., Montgomery v. Cont’l Intermodal Grp.-Trucking LLC, 2021 WL 1339305, at *7 (D.N.M.

Apr. 9, 2021); TikTok, 565 F. Supp. 3d at 1091-92 (approving email notice). This plan of allocation

will ensure the Net Settlement Funds are distributed to as many members of the Settlement Classes

as possible, as efficiently and fairly as possible.

6. The Relief is Adequate Considering the Terms of the Proposed Award of

Attorney’s Fees

At a later date, Plaintiffs’ Counsel will submit an application(s) to the Court for: (i) an

award of attorneys’ fees of no more than one-third (33.33%) of the Settlement Amount, (ii)

reimbursement of expenses and costs reasonably and actually incurred in connection with

prosecuting the action, not to exceed $6,000,000 (six million dollars); and (iii) reimbursement of

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expenses and costs incurred in connection with settlement notice and administration.10

Courts in this Circuit routinely award attorneys’ fees of one-third of settlement funds in

class actions, including in analogous antitrust cases. See, e.g., Pearson v. NBTY, Inc., 772 F.3d

778, 782 (7th Cir. 2014) (recognizing presumption that attorneys’ fees awarded to class counsel

“should not exceed a third or at most a half of the total amount of money going to class members

and their counsel”); In re Potash Antitrust Litig., 2013 WL 12470850, at *1 (N.D. Ill. June 12,

2013) (finding an award of one-third of the settlement funds reasonable).

Plaintiffs will also seek an interim incentive award of $5,000 (five thousand dollars) for

each of the four class representatives. See, e.g., Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir.

1998) (“[A]n incentive award is appropriate if it is necessary to induce an individual to participate

in the suit . . . .”). To determine if an incentive award is warranted, a district court evaluates “the

actions the plaintiff has taken to protect the interests of the class, the degree to which the class has

benefitted from those actions, and the amount of time and effort the plaintiff expended in pursuing

the litigation.” Camp Drug Store, Inc. v. Cochran Wholesale Pharm., Inc., 897 F.3d 825,

834 (internal quotation marks omitted). Here, Plaintiffs have been active participants in this Action

and have spent time producing documents and responding to interrogatories. Jones Decl., ¶ 16.

Incentive awards are appropriate in these circumstances.

10
Consistent with practice in class actions under Rule 23, Plaintiffs will file a separate motion
addressing their requested attorneys’ fees and litigation expenses in advance of the opt-out and objection
deadline established by the Court. Prior to notice being given to the Settlement Class, the Court must
determine whether it will likely be able to approve the proposal under Rule 23(e)(2)—that is, whether the
requested percentage is within the range typically approved by courts. After Settlement Class members
have had the opportunity to weigh in on the request, and a final approval hearing is held, the Court will
decide whether to approve the requested attorneys’ fees and litigation expenses. See In re Blue Cross Blue
Shield Antitrust Litig., 2020 WL 8256366, at *23 (N.D. Ala. Nov. 30, 2020) (approving, preliminarily, a
proposed fee percentage that was “in line with benchmarks” in the Circuit, noting that settlement class
members would receive the formal “fee and expense request and will have an opportunity to object to any
such award prior to final approval”).

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7. The Settlements and the Proposed Plan of Allocation Treat Settlement

Class Members Equitably Relative to Each Other.

Rule 23(e)(2)(D) requires that “the proposal treats class members equitably relative to each

other.” Fed. R. Civ. P. 23(e)(2)(D). Consideration under this Rule “could include whether the

apportionment of relief among class members takes appropriate account of differences among their

claims, and whether the scope of the release may affect class members in different ways that bear

on the apportionment of relief.” Fed. R. Civ. P. 23 Advisory Committee’s Note to 2018

Amendment. A plan of allocation will pass muster so long as “it has a reasonable, rational basis,

particularly if experienced and competent class counsel support it.” McLaughlin on Class Actions

§ 6.23 (17th ed. 2020) (cleaned up).

Here, the Settlements and the proposed plan of allocation treat members of the Settlement

Classes equitably, in that every person or entity that purchased broadcast television advertising

spots during the Class Period is subject to the same terms of the Settlements, and the proposed

plan of allocation will provide for relief in proportion to the harm allegedly suffered. Additionally,

the release applies uniformly to all members of the Settlement Classes and does not affect the

apportionment of the relief to them. Pro rata distributions are regularly approved in antitrust cases

and other types of complex class action litigation. See, e.g., In re Vitamins Antitrust Litig., 2000

WL 1737867, at *6 (D.D.C. Mar. 31, 2000) (“Settlement distributions, such as this one, that

apportions funds according to the relative amount of damages suffered by class members have

repeatedly been deemed fair and reasonable.”).11 Accordingly, this factor will likely weigh in favor

11
See also In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 135 (S.D.N.Y. 1997), aff’d 117
F.3d 721 (2d Cir. 1997) (“[A] pro rata distribution of the Settlement on the basis of Recognized Loss will
provide a straightforward and equitable nexus for allocation and will avoid a costly, speculative and
bootless comparison of the merits of the Class Members’ claims.”); Four in One Co. v. S.K. Foods, L.P.,
2014 WL 4078232, at *15 (E.D. Cal. Aug. 14, 2014) (approving “plan of allocation providing for a pro rata
distribution of the net settlement fund based on verified claimants’ volume of qualifying purchases” as
“fair, adequate, and reasonable”); In re Citric Acid Antitrust Litig., 145 F. Supp. 2d 1152, 1154 (N.D. Cal.

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of granting preliminary approval.

B. The Proposed Settlement Classes Satisfy Rule 23(a)

In addition to preliminarily approving the Settlements, Plaintiffs respectfully request that

the Court certify the CBS Settlement Class, the Fox Settlement Class, the Cox Entities Settlement

Class, and the ShareBuilders Settlement Class, each of which has been defined as follows:

All persons and entities in the United States who purchased broadcast television
spot advertising directly from one or more Broadcaster Defendants in a designated
market area (“DMA”) within which two or more of the Broadcaster Defendants
sold broadcast television spot advertisements on broadcast television stations,
including anyone who directly paid one or more Defendants for all or a portion of
the cost of such broadcast television spot advertisements from January 1, 2014 to
and including December 31, 2018 (the “Settlement Class Period”). For the sake of
clarity, the DMAs within which two or more of the Broadcaster Defendants sold
broadcast television spot advertisements on broadcast television stations are set
forth in Appendix A to the consolidated Third Amended Antitrust Class Action
Complaint dated March 16, 2022 and attached hereto.

Excluded from the Settlement Class are Defendants, their parent companies,
subsidiaries, affiliates, officers, directors, employees, assigns, successors, agents,
or co-conspirators; the court, court staff, defense counsel, all respective immediate
family members of these excluded entities, federal governmental entities and
instrumentalities of the federal government, and states and their subdivisions,
agencies and instrumentalities.

The proposed Settlement Classes should be certified because it satisfies the four

requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy of

representation—and Rule 23(b)(3)—namely, that “questions of law or fact common to class

members predominate over any questions affecting only individual members,” and that class action

treatment is the “superior” method to “fairly and efficiently adjudicate[e] the controversy.” Fed.

R. Civ. P. 23(b)(3). Moreover, according to the Supreme Court, the class certification burden is

2001) (“A plan of allocation that reimburses class members based on the type and extent of their injuries is
generally reasonable.”); In re Cathode Ray Tube (CRT) Antitrust Litig., 2015 WL 9266493, at *5-8 (N.D.
Cal. Dec. 17, 2015) (approving pro rata plan of allocation based upon proportional value of price-fixed
component in finished product).

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lower for “settlement-only class certification,” because the Court “need not inquire whether the

case, if tried, would present intractable management problems, for the proposal is that there be no

trial.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (citations omitted). The Court’s

focus is instead “on whether a proposed class has sufficient unity so that absent class members can

fairly be bound by” the settlements. Id. at 621.

As shown below, this standard is readily satisfied in this case, and the Settlement Classes

should be certified.

1. Numerosity is Satisfied

Rule 23(a)(1) requires that the class be so numerous as to make joinder of its members

“impracticable.” Fed. R. Civ. P. 23(a)(1). Rule 23(a)(1) is easily satisfied here because there are

tens of thousands of members of the Settlement Classes and joinder would be impracticable. See

Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities, Inc., 747 F.3d 489, 492 (7th

Cir. 2014) (finding that numerosity was satisfied where “it’s reasonable to believe [the class is]

large enough to make joinder impracticable and thus justify a class action suit.”) (citing Kohen,

571 F.3d at 677-78); Fauley v. Drug Depot, Inc., 323 F.R.D. 594, 599 (N.D. Ill. 2018) (Kendall,

J.) (“Numerosity is typically satisfied where a potential class representative can identify at least

40 members.”) (citing Pruitt v. City of Chicago, 472 F.3d 925, 926 (7th Cir. 2006); Swanson v.

Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969)).

2. Commonality is Satisfied

Commonality requires “questions of law or fact common to the class.” Fed R. Civ. P.

23(a)(2). A question is “common to the class if it generates a common answer, such that

determination of the question will ‘resolve an issue that is central to the validity of each one of the

claims in one stroke.’” In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Inj. Litig.,

332 F.R.D. 202, 214 (N.D. Ill. 2019) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

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(2011), aff’d sub nom. Walker v. Nat’l Collegiate Athletic Ass’n, 2019 WL 8058082 (7th Cir. Oct.

25, 2019). “For purposes of Rule 23(a)(2), even a single common question will suffice.” Id.

(cleaned up).

Common questions in this Action include whether Defendants entered into an unlawful

combination, contract, or conspiracy to artificially inflated prices for broadcast television spot

advertising above competitive levels, whether harm was suffered, and the proper measure of

damages. Because proof of each of these questions will be common to the class, the commonality

requirement of Rule 23(a)(2) is satisfied. See, e.g., Thillens, Inc. v. Cmty. Currency Exch. Ass’n,

97 F.R.D. 668, 677 (N.D. Ill. 1983) (“The overriding common issue of law is to determine the

existence of a conspiracy . . . .”); In re Urethane Antitrust Litig., 768 F.3d 1245, 1256 (10th Cir.

2014) (affirming trial court’s certification of class in price-fixing case where “two common

questions . . . could yield common answers at trial: the existence of a conspiracy and the existence

of impact”).

3. Typicality is Satisfied

Rule 23(a)(3) requires that the class representatives’ claims be “typical” of class members’

claims. “Where claims stem from the same event, practice, or legal theory, they are said to be

typical.” Fauley, 323 F.R.D. at 600 (Kendall, J.) (citing Keele v. Wexler, 149 F.3d 589, 595 (7th

Cir. 1998)) (emphasis in original). Typicality is a “low hurdle” requiring “neither complete

coextensivity nor even substantial identity of claims.” Owner-Operator Indep. Drivers’ Ass’n v.

Allied Van Lines, Inc., 231 F.R.D. 280, 282 (N.D. Ill. 2005). Thus, factual differences among class

members do not defeat typicality. See Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992)

(“The fact that there is some factual variation among the class grievances will not defeat a class

action.”). Courts regularly find typicality satisfied in cases alleging a price-fixing conspiracy. See,

e.g., In re Steel Antitrust Litig., 2015 WL 5304629, at *3 (N.D. Ill. Sept. 9, 2015) (finding typicality

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satisfied where “plaintiffs and all class members alleg[e] the same antitrust violations by

defendants”) (quoting In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346, 351 (N.D. Cal. 2005)

(alterations in original); In re Urethane Antitrust Litig., 251 F.R.D. 629, 640 (D. Kan. 2008) aff’d,

768 F.3d 1245 (10th Cir. 2014)).

Typicality is satisfied here because the Plaintiffs each allege the same legal theories and

fact issues that underlie the rest of the Settlement Classes’ claims—that Defendants conspired to

fix prices and exchange competitively sensitive information to derail the competitive process and

avoid price competition. See Steel, 2015 WL 5304629, at *4 (finding typicality where “the claims

of each named representative and class members are based on the same legal theory and arise from

the same course of conduct”).

4. Adequacy is Satisfied

Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement is satisfied where the class

representatives have retained competent counsel, have a sufficient interest in the outcome to ensure

the case is vigorously prosecuted, and do not have interests antagonistic to those of the class. See

Steel, 2015 WL 5304629, at *4 (citing Saltzman v. Pella Corp., 257 F.R.D. 471, 480 (N.D. Ill.

2009) aff’d, 606 F.3d 391 (7th Cir. 2010)).

As discussed in more detail above, the adequacy requirement is easily satisfied here. See

Part IV.A.1, supra. Plaintiffs retained qualified and competent counsel who are highly experienced

in prosecuting class actions generally, and antitrust class actions in particular; the pre-filing

investigation and work performed since the initial complaint was filed show that Plaintiffs and

their counsel are vigorously prosecuting this case; and Plaintiffs’ interests in this Action are

aligned with, and not antagonistic to, those of the Settlement Classes they seek to represent. See

Rosario, 963 F.2d at 1018 (concluding that a class is fairly and adequately represented if class

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representatives’ claims are not antagonistic or conflicting with claims of the class) (citing Sec’y of

Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986)).

C. The Proposed Settlement Classes Satisfy Rule 23(b)(3).

Once the four prerequisites of Rule 23(a) are met, Plaintiffs must show the proposed

Settlement Classes also satisfy Rule 23(b). The proposed Settlement Classes satisfy Rule 23(b)(3)

by showing that “that the questions of law or fact common to class members predominate over any

questions affecting only individual members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Fauley, 323 F.R.D. at 602

(Kendall, J.) (quoting Fed. R. Civ. P. 23(b)(3)). See also id. (citing Chicago Teachers Union, Local

No. 1 v. Bd. of Educ. of Chicago, 797 F.3d 426, 443 (7th Cir. 2015)).

1. Common Issues Predominate.

The predominance inquiry “asks whether the common, aggregation-enabling, issues in the

case are more prevalent or important than the non-common, aggregation-defeating, individual

issues.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (quotation omitted). “When

one or more of the central issues in the action are common to the class and can be said to

predominate, the action may be considered proper under Rule 23(b)(3) even though other

important matters will have to be tried separately, such as damages or some affirmative defenses

peculiar to some individual class members.” Id. (internal quotation omitted). Predominance

requires that “questions common to the class predominate, not that those questions will be

answered, on the merits, in favor of the class.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568

U.S. 455, 459 (2013) (emphasis in original).

In antitrust conspiracy cases such as this one, courts have consistently found that common

issues regarding the existence and scope of the conspiracy predominate over individual issues. See,

e.g., Steel, 2015 WL 5304629, at *5 (“In many cases alleging a violation of antitrust laws,

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predominance is a test ‘readily met.’”) (quoting Amchem, 521 U.S. at 625)).12 This rule is

particularly true in the context of settlement classes, where “the proposal is that there be no trial.”

Amchem, 521 U.S. at 620-21.13 In the settlement context, the Supreme Court has noted that “the

predominance requirement of Rule 23(b)(3) is similar to the requirement of Rule 23(a)(3) that

‘claims or defenses’ of the named representatives must be ‘typical of the claims or defenses of the

class.’” Id. at 623 n.18.

Here, Plaintiffs’ and the Settlement Classes’ claims all focus on the same operative set of

facts and legal theories. They were all allegedly harmed by the same conduct by Defendants and

evidence of the alleged conspiracy would be entirely common if presented in a litigation posture,

which is not at issue here because the proposal is there would be no trial. Thus, the predominance

requirement for the Settlement Classes is met here, as “[a]ll claims arise out of the same course of

defendants’ conduct; [and] all share a common nucleus of operative fact, supplying the necessary

cohesion.” In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229, 240 (2d Cir. 2012) (quotation

omitted).

2. A Class Action is Superior to Individual Litigations.

In considering class certification, the Court must balance the advantages of a class action

with other available methods of adjudication, considering (a) class members’ interests in individual

litigation, (b) the extent of ongoing individual litigation, (c) the desirability of centralizing the

12
See also Alexander v. Q.T.S. Corp., 1999 WL 573358, at *10 (N.D. Ill. July 30, 1999) (“It is well
established that the question of conspiracy predominates in antitrust cases.”); Rohlfing v. Manor Care, Inc.,
172 F.R.D. 330, 336-37 (N.D. Ill. 1997) (“The weight of authority in antitrust cases indicates that the
question of the existence of a conspiracy in restraint of trade is one that is common to all potential plaintiffs,
and the importance of this question usually warrants treating them as a class.”); Hughes v. Baird & Warner,
Inc., 1980 WL 1894, at *3 (N.D. Ill. Aug. 20, 1980) (noting that “[t]he existence of a conspiracy is the
common issue in this case,” and that this issue “predominates over issues affecting only individual sellers”).
13
See also, e.g., In re Processed Egg Prod. Antitrust Litig., 2016 WL 3584632, at *8 (E.D. Pa. June
30, 2016) (holding that certain litigation class concerns, like common impact, fall away in the context of a
settlement class because they are trial management issues).

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claims in one forum, and (d) difficulties in managing a class action trial. Fed. R. Civ. P.

23(b)(3)(A)-(D).

In most antitrust class actions, although the conduct at issue generates widespread harm,

individual recoveries are relatively modest, at least compared to the millions of dollars in attorney

time and litigation expenses required to recover them. In re Vitamin C Antitrust Litig., 279 F.R.D.

90, 109 (E.D.N.Y. 2012) (recognizing that in antitrust litigation it can be “prohibitively expensive

for class members with small claims to proceed individually” as litigation “require[s] significant

fees toward expert analysis and testimony”). For this reason, the first superiority factor favors

certifying the Settlement Class. And likely because of that same reason, there are no individual

Sherman Act actions being prosecuted outside of this MDL, such that the second superiority factor

favors certification too.

As to the third superiority factor, individual suits would be “grossly inefficient, costly, and

time consuming because the parties, witnesses, and courts would be forced to endure unnecessarily

duplicative litigation” while a “class action is by far the more superior method.” In re Universal

Serv. Fund Tel. Billing Practices Litig., 219 F.R.D. 661, 679 (D. Kan. 2004). And as to the fourth

superiority factor, in a settlement-only class certification, the Court “need not inquire whether the

case, if tried, would present intractable management problems.” Amchem, 521 U.S. at 620.

Accordingly, all four superiority factors favor certification here.

D. Interim Lead Counsel Should Be Appointed Settlement Class Counsel.

Under Rule 23(g), a court that certifies a class must appoint class counsel, who is charged

with fairly and adequately representing the interests of the class. See Fed. R. Civ. P. 23(g)(1). In

determining class counsel, the Court must consider (1) the work undertaken by counsel in

identifying or investigating the potential claims; (2) counsel’s experience in handling class actions,

other complex litigation, and similar claims; (3) counsel’s knowledge of the applicable law; and

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(4) the resources that counsel will commit to representing the class. See Fed. R. Civ. P. 23(g)(1)(A).

Interim Lead Counsel readily meet these requirements and should be appointed as

Settlement Class Counsel. As discussed above, Interim Lead Counsel undertook significant effort

in identifying and asserting the claims in this Action. She has significant experience litigating

antitrust class actions, as this Court implicitly recognized when it appointed Interim Lead Counsel

to represent the proposed class pursuing claims against all Defendants. See ECF No. 170. Interim

Lead Counsel has vigorously prosecuted this case and committed the substantial resources

necessary to effectively litigate it, including significant out of pocket litigation expenses and

thousands of hours of attorney time, with no guarantees of remuneration. For these reasons, the

Court should appoint Interim Lead Class Counsel as Settlement Class Counsel.

E. Plaintiffs Will Bring a Separate Motion to Approve the Form and Manner of
Dissemination of Notice to the Settlement Class.

Plaintiffs move under Rule 23(e) to determine whether the Court “will likely be able to: (i)

approve the proposal under Rule 23(e)(2) and (ii) certify the class for purposes of judgment on the

proposal,” such that “giving notice [to the Settlement Class] is justified.” Fed. R. Civ. P.

23(e)(1)(B). Plaintiffs will file a separate motion to approve the form and manner of dissemination

of notice to the members of the Settlement Class, which will include deadlines for members of the

Settlement Classes to object to, or opt out of, one or more of the Settlements, as well as claims

administration deadlines, and a proposed final approval hearing date for the Court’s consideration.

V. CONCLUSION

Plaintiffs respectfully submit that their Motion for Preliminary Approval should be granted,

the Settlement Classes certified under Rules 23(a) and 23(b)(3), and Interim Lead Counsel

appointed Settlement Class Counsel under Rule 23(g).

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Dated: May 26, 2023 Respectfully submitted,

/s/ Robert J. Wozniak

Robert J. Wozniak
FREED KANNER LONDON &
MILLEN LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
(224) 632-4500
[email protected]

Liaison Counsel

Hilary K. Scherrer Megan E. Jones

Nathaniel C. Giddings HAUSFELD LLP
Farhad Mirzadeh 600 Montgomery St. #3200
In Kyung “Jane” Shin San Francisco, CA 94111
HAUSFELD LLP (415) 633-1908
888 16th Street NW, Suite 300 (415) 358-4980
Washington, DC 20006 [email protected]
(202) 540-7200
[email protected]
[email protected]
[email protected]
[email protected]

Lead Counsel

Meegan Hollywood Kimberly A. Justice

ROBINS KAPLAN LLP FREED KANNER LONDON &
399 Park Avenue, Suite MILLEN LLC
3600 New York, NY 923 Fayette Street
10022 Conshohocken, PA 19428
(212) 980-7400 (610) 234-6487
[email protected] [email protected]

Plaintiffs’ Steering Committee

29