IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

KENNETH JOHANSEN, individually and on 

behalf of a class of all persons and entities 

similarly situated,

Plaintiff

vs.

BLUEGREEN VACATIONS UNLIMITED, 

INC., a Florida corporation,

Defendant.

Case No. 9:20-cv-81076-SMITH

CLASS ACTION

PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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I. INTRODUCTION

This one count Telephone Consumer Protection Act case is well-suited for class 

certification because it involves a single telemarketing campaign that Bluegreen hired a single 

telemarketer to perform. Bluegreen and its telemarketer have produced lead lists, call records, 

contracts, and other documents showing that, at Bluegreen’s direction, the telemarketer made 

millions of telemarketing calls to numbers supplied by Bluegreen to promote Bluegreen’s 

products and services. Plaintiff’s expert has determined that than 250,000 of these calls were 

made to more than 19,000 telephone numbers registered with the National Do Not Call Registry. 

Bluegreen obtained each of these consumer’s telephone numbers either (1) prior to 2013, in 

connection with purported vacations or vacation transactions, or (2) from someone else as a 

referral, and Bluegreen has no evidence of consent or an established business relationship to call 

any of them, including the Plaintiff. 

The central and determinative issues in this case will be (1) whether calls were made to 

telephone numbers registered with the National Do Not Call Registry, (2) whether the calls were 

“telephone solicitations” under the TCPA, and (3) whether Bluegreen is vicariously liable for the 

calls that its telemarketer made. Mr. Johansen and proposed class members’ claims and 

Bluegreen’s defenses can be established through class wide proof, including the lead lists, call 

records, contracts, and testimony from the telemarketing participants and the parties’ experts. 

Certification of Plaintiff’s proposed class is therefore warranted.

II. THE TELEPHONE CONSUMER PROTECTION ACT

“Telemarketing calls are intrusive. A great many people object to these calls, which 

interfere with their lives, tie up their phone lines, and cause confusion and disruption on phone 

records. Faced with growing public criticism of abusive telephone marketing practices, Congress

enacted the Telephone Consumer Protection Act of 1991. Pub. L. No. 102-243, 105 Stat. 2394

(1991) (codified at 47 U.S.C. § 227 (2012)). As Congress explained, the law was a response to

Americans ‘outraged over the proliferation of intrusive, nuisance calls to their homes from

telemarketers’ id. § 2(6), and sought to strike a balance between ‘[i]ndividuals’ privacy rights,

public safety interests, and commercial freedoms’ id. § 2(9).

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“The law opted for a consumer-driven process that would allow objecting individuals to 

prevent unwanted calls to their homes. The result of the telemarketing regulations was the

national Do-Not-Call registry. See 47 C.F.R. § 64.1200(c)(2). Within the federal government’s 

web of indecipherable acronyms and byzantine programs, the Do-Not-Call registry stands out as 

a model of clarity. It means what it says. If a person wishes to no longer receive telephone 

solicitations, he can add his number to the list. The TCPA then restricts the telephone 

solicitations that can be made to that number. See id.; 16 C.F.R. § 310.4(b)(iii)(B) (‘It is an 

abusive telemarketing act or practice and a violation of this Rule for a telemarketer to . . . 

initiat[e] any outbound telephone call to a person when . . . [t]hat person’s telephone number is 

on the “do-not-call” registry, maintained by the Commission.’).

“Private suits can seek either monetary or injunctive relief. Id. If damages are sought, the 

plaintiff is entitled to receive the greater of either his actual loss or statutory damages up to 

$500.... This private cause of action is a straightforward provision designed to achieve a 

straightforward result. Congress enacted the law to protect against invasions of privacy that were 

harming people. The law empowers each person to protect his own personal rights. Violations of 

the law are clear, as is the remedy. Put simply, the TCPA affords relief to those persons who, 

despite efforts to avoid it, have suffered an intrusion upon their domestic peace.” Krakauer v.

Dish Network, L.L.C., 925 F.3d 643, 649-50 (4th Cir. 2019).

The “model of clarity” that is the National Do Not Call Registry has also been one of the 

federal government’s most popular programs. According to the Federal Trade Commission’s 

December 2019 Biennial Report to Congress, the National Do Not Call Registry currently has 

more than 239,000,000 active registrations. See “FTC Issues Biennial Report to Congress on the 

National Do Not Call Registry” available at https://www.ftc.gov/news-events/pressreleases/2019/12/ftc-issues-biennial-report-congress-national-do-not-call-registry (last visited 

Feb. 17, 2021).

The National Do Not Call Registry allows consumers to register their telephone numbers 

and thereby indicate their desire to not receive telephone solicitations at those numbers. See 47 

C.F.R. § 64.1200(c)(2). A listing on the Registry “must be honored indefinitely, or until the 

registration is cancelled by the consumer or the telephone number is removed by the database 

administrator.” Id. 

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In this action, Plaintiff’s claim is brought under 47 U.S.C. § 227(c), which provides a 

private right of action to any consumer who receives two or more “telephone solicitations”

within a twelve month period to a residential telephone number that was registered with the 

National Do Not Call Registry more than 30 days before the calls. 47 C.F.R. §§ 64.1200(c)(2), 

(e); see 47 C.F.R. § 64.1200(f)(14) (“The term telephone solicitation means the initiation of a 

telephone call or message for the purpose of encouraging the purchase or rental of, or investment 

in, property, goods, or services, which is transmitted to any person ...”). 

Prior express written consent is a defense to a Do Not Call registry claim. Id. at §§ 

(c)(2)(i)-(iii). As is the existence of an established business relationship. Id. at § (f)(5) (“The 

term established business relationship for purposes of telephone solicitations means a prior or 

existing relationship formed by a voluntary two-way communication between a person or entity 

and a residential subscriber with or without an exchange of consideration, on the basis of the 

subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately 

preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application 

regarding products or services offered by the entity within the three months immediately 

preceding the date of the call, which relationship has not been previously terminated by either 

party.”).

The TCPA imposes up to $500 in statutory damages per violation of the National Do Not 

Call Registry provision, and provides for treble damages if the company acted “willfully or 

knowingly.” 47 U.S.C. § 227(c)(5). 

Notably, under the TCPA a party may be liable pursuant to tort-related vicarious liability 

rules, including actual authority, apparent authority, and ratification principles. Shamblin v.

Obama for Am., No. 8:13-cv-2428-T-33TBM, 2015 WL 1754628, at *6 (M.D. Fla. Apr. 17,

2015); see also In re Joint Petition Filed by DISH Network, LLC et al. for Declaratory Ruling 

Concerning the TCPA Rules, 28 FCC Rcd 6574, 6588 (¶ 1) (FCC 2013) (holding that a 

corporation or other entity that contracts out its telephone marketing “may be held vicariously 

liable under federal common law principles of agency for violations of either section 227(b) or 

section 227(c) that are committed by third-party telemarketers”). 

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III. STATEMENT OF FACTS

A. Bluegreen Hired a Telemarketing Company to Make the Calls to the 

Proposed Class and Has Provided Records of the Calls.

This case is straightforward.

In November 2016, Bluegreen hired Schumer Management & Consulting, LLC 

(“Schumer”) to make telemarketing calls promoting Bluegreen’s vacation products to consumers 

whose contact information Bluegreen supplied to Schumer. From 2016 until after Schumer 

called the Plaintiff to promote Bluegreen’s products, the relationship between Bluegreen and 

Schumer worked as follows: 

• Schumer called only numbers that Bluegreen instructed it to call, which 

Bluegreen transmitted to Schumer through a File Transfer Protocol website.

• Schumer made all calls using scripts that Bluegreen had drafted and/or 

approved with the exception of minor non-substantive changes.

• Bluegreen was exclusively responsible for ensuring that any numbers called 

by Schumer were permitted to be called in compliance with federal or state 

telemarketing laws.

• During calls, Schumer promoted only the offers that Bluegreen directed it 

to promote, and when there was a sale, Schumer used Bluegreen’s merchant 

terminal to provide the information for Bluegreen to fulfil the contract.

• Starting in 2017, Bluegreen required that Schumer upload calling records 

for calls made by Schumer to the numbers supplied by Bluegreen through a 

File Transfer Protocol website. 

• All of the calls in the records uploaded through the through File Transfer 

Protocol website on the Chase Data Corp platform were made for the same 

singular purpose – to market Bluegreen’s products and services. 

See Declaration of Schumer’s owner and records custodian Jared Schumer [attached as Exhibit 

1] at ¶¶ 11-18. 

This course of dealing was entirely consistent with the written Vacation Package 

Marketing Agreement between Bluegreen and Schumer [attached as Exhibit 2], which 

 Vacation Package Marketing Agreement at p. 1 (emphasis in original). The 

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contract also specified the “ ” that Schumer was allowed to operate from, 

and . Id. at p. 6; see Bluegreen’s 

response to Plaintiff’s first interrogatories [attached as Exhibit 3] at no. 3 (“The agreement 

between Bluegreen and Schumer Management & Consulting, LLC, Bates No. BG000001-

BG000033, identifies the vendor and the relevant work it performs.”).

As for the leads Bluegreen supplied Schumer to call, Bluegreen obtained them from only 

a handful different channels: 

• Past guests; 

• Guest and owner-provided referrals;

• Sweepstakes entrants; and 

• Customers who had previously allegedly purchased a tour or mini-vacation. 

Bluegreen’s response to Plaintiff’s third interrogatories [attached as Exhibit 4] at no. 1; see also 

Bluegreen’s response to Plaintiff’s second interrogatories [attached as Exhibit 5] at nos. 1-2, 

explaining that, to the extent either defense is valid, Bluegreen has the same basis for its consent 

and established business relationship defenses as to each potential class member. 

B. The Plaintiff’s Contacts from Bluegreen.

The Plaintiff received a telemarketing call from Bluegreen on May 26, 2020 in which he 

did not express any interest in the services offered. See Declaration of Plaintiff Kenneth 

Johansen [attached as Exhibit 6] at ¶ 8. The Plaintiff then received another call on May 27, 2020. 

Id. at ¶ 9. To conclusively identify the party that was contacting him illegally, the Plaintiff 

listened to the sales pitch of the telemarketer for Bluegreen. Id. at ¶ 10. The call was then 

terminated. Id. at ¶ 11. The Defendant then contacted the Plaintiff at least four more times that 

day. Id. at ¶ 12. The Plaintiff was then called again on June 2, 2020 without any reference to the 

calls on May 26 and May 27 as part of the solicitation. Id. at ¶ 13. 

The calls came from two Caller ID numbers: (216) 279-5134 and (419) 458-5578. Id. at ¶ 

14. Each of those numbers have had complaints associated with them. First, the website 

NoMoRobo, winner of the FTC’s challenge to stop robocalls, has labeled calls from (419) 458-

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5578 as robocalls. See https://www.nomorobo.com/lookup/419-458-5578 (last visited Feb. 27, 

2021). Second, consumers complaining about calls from (216) 279-5134 have labeled them as 

“verified ROBO call.” See https://800notes.com/Phone.aspx/1-216-279-7356 (last visited Feb. 

27, 2021). The association of these Caller ID numbers with complaints about “robocalls” further 

supports the allegations of en masse marketing, which has been confirmed in discovery. 

Prior to receiving the calls at issue, Plaintiff never knowingly provided his phone number 

to Bluegreen, had not transacted with Bluegreen in many years, if ever, and had never provided 

his written consent to receive telemarketing calls from them. Johansen Decl. at ¶ 16. 

Notwithstanding, Bluegreen claims that “[o]n or about November 30, 2010, Plaintiff 

purchased a Bluegreen vacation package from The Welcome Center in Daytona Beach,

Florida.”1 See Bluegreen’s amended response to Plaintiff’s first interrogatories [attached as 

Exhibit 7] at no. 6. Although Bluegreen also claims that “[w]hen making a purchase of a 

Bluegreen vacation package at The Welcome Center, purchasers signed acceptance forms 

containing consent to receive calls,” Bluegreen has not provided a single document evidencing 

any such consent for Plaintiff or any other consumer whose telephone number Bluegreen 

obtained from any source prior to 2013, the year the TCPA’s written consent requirement went 

into effect. See In re Rules and Regulations Implementing the Telephone Consumer Protection

Act of 1991, Report and Order, 27 F.C.C.R. 1830, 1831 ¶ 2, (Feb. 15, 2012) (“Specifically, in 

this Order, we . . . revise our rules to require prior express written consent.”). In fact, 

. See Sales Receipt dated June 28, 2013 [attached as Exhibit 8]. 

1

 Importantly, as explained in the Schumer Declaration at ¶ 5(d), the consumer leads that 

Bluegreen supplied to Schumer and that Schumer produced as part of this litigation all include 

the date of the consumer’s prior purchase from Bluegreen, if any, in the “Age_Range” field. 

Consistent with this, and Bluegreen’s explanation of where it obtained the Plaintiff’s contact 

information, the lead information supplied by Bluegreen to Schumer for the Plaintiff indicates an 

“Age_Range” of November 30, 2010. Declaration of Plaintiff’s expert Aaron Woolfson 

[attached at Exhibit 9] at ¶ 35. 

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The Plaintiff issued a subpoena to The Welcome Center, who responded to the subpoena 

confirming that there are no records of Plaintiff or any other consumer whose lead was generated 

for Bluegreen long, long ago providing consent to receive calls from or on behalf Bluegreen: 

We have none of the data that you are requesting. We do not hold records two years 

after billing has taken place. This dates back 10 years. All records, on any traveler, 

do not belong to our company. We process the paperwork and track the bill. We 

are service providers. We do not sell or call outbound or take any money from 

consumers directly. The Welcome Center is a processing center for hotel/resort 

reservations. We do not see Kenneth Johansen in our data base in the last 24 

months. The Welcome Center is simply a processing center sending out 

confirmation letters and reservations for companies that promote hotel or resort 

accommodations. We do not sell anything to consumers or have any direct customer 

contact. 

See The Welcome Center’s subpoena response [attached as Exhibit 10].

2

C. Bluegreen has a long history of failing to comply with the TCPA.

 Not surprisingly, discovery has revealed that Bluegreen has been the subject of many 

TCPA complaints, like Plaintiff’s, over the years. Indeed, Bluegreen has been subject to nearly 

twenty TCPA lawsuits, a series of Better Business Bureau complaints, and government 

regulatory investigations related to its telemarketing system during the last five years. These 

complaints are substantively similar in that they all involve unwanted telemarketing solicitations, 

like those received by the Plaintiff: 

2 The contract between Bluegreen and The Welcome Center makes clear that in

 See Marketing Agreement Term Sheet and Marketing Agreement [attached as Exhibit 

11]. Bluegreen terminated the relationship with The Welcome Center in 2011, but continued to 

make calls to the telephone numbers it had purchased from them, including Plaintiff’s, in the 

summer of 2020. See The Welcome Center termination letter [attached as Exhibit12]. 

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See sample consumer complaints [attached as Composite Exhibit 13]; compilation of the lawsuits 

that Bluegreen has produced to date in discovery alleging TCPA violations [attached as 

Composite Exhibit 14].

D. The Plaintiff’s Expert’s Analysis.

The Plaintiff has retained database and telecommunications expert Aaron Woolfson to 

identify call recipients who received more than one outbound call from Schumer on behalf of 

Bluegreen within a 12 month period prior to their making any inbound call for Bluegreen, to 

their residential telephone numbers registered with the National Do Not Call Registry, and whose 

phone numbers were obtained by Bluegreen either (1) prior to 2013, at the time of a purported 

vacation, vacation purchase, or contemplated vacation purchase, or (2) as a referral from 

someone else. See Woolfson Decl. [Exhibit 9]. To do so, Mr. Woolfson analyzed the calling 

data produced by Bluegreen and the lead lists provided by Bluegreen to Schumer (and produced 

by Schumer), and was able to identify 19,772 such telephone numbers that received a total of 

280,440 connected calls, including the Plaintiff who received more than 2 such calls in an 8 day 

period in 2020. Id. at ¶¶ 30, 35. Mr. Woolfson also analyzed the numbers called to determine 

which telephone carriers serviced the 19,772 telephone numbers at the time they were called to 

facilitate subpoenas to those carriers for information identifying whether each such line was 

residential or non-residential at the time of the calls. Id. at ¶ 31-34.

IV. PROPOSED CLASS DEFINITION

Mr. Johansen requests that the Court certify the following proposed class under Federal 

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Rules of Civil Procedure Rules 23(a) and (b)(3):

All persons within the United States who, (a) from October 1, 2018 through July 8, 

2020; (b) received more than one outbound call from Schumer for Bluegreen within 

a 12 month period prior to making any inbound calls; (c) to their residential 

telephone numbers registered with the National Do Not Call Registry; and (d) 

whose phone numbers were obtained by Bluegreen either (1) prior to 2013, at the 

time of a purported vacation, vacation purchase, or contemplated vacation

purchase, or (2) as a referral from someone else. 

Excluded from the class are all persons who made one or more inbound calls to Schumer for 

Bluegreen before receiving at least two outbound calls from Schumer for Bluegreen. Also

excluded from the class are: (1) any Judge or Magistrate presiding over this action and members 

of their families; (2) Bluegreen, its subsidiaries, parents, successors, predecessors, and any entity 

in which Bluegreen or its parents have a controlling interest and their current or former 

employees, officers and directors; (3) Plaintiff’s attorneys; (4) persons who properly execute and 

file a timely request for exclusion from the class; (5) the legal representatives, successors or 

assigns of any such excluded persons; and (6) persons whose claims against Bluegreen have been 

fully and finally adjudicated and/or released. 

V. MEMORANDUM OF LAW

As a remedial statute that was passed to protect consumers from unwanted telephone 

calls, the TCPA is construed broadly to benefit consumers. See Gurzi v. Penn Credit Corp., 449 

F. Supp. 3d 1294, 1299 (M.D. Fla. 2020) (citing Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 

271 (3d Cir. 2013)). “If proposed interpretations of the TCPA are equally plausible, the scales 

tip in favor of the consumer.” Klein v. Commerce Energy, Inc., 256 F. Supp. 3d 563, 576 (W.D. 

Pa. 2017). 

“In light of the fact that Rule 23 provides a district judge with great flexibility to adopt 

appropriate procedures, certify conditionally, or decertify a class in later stages of litigation, ... 

judges should err in favor of certification.” DeLeon-Granados v. Eller & Sons Trees, Inc., 497 

F.3d 1214, 1218 (11th Cir. 2007).

A class should be certified if it satisfies the four requirements of Rule 23(a) and at least 

one subsection of Rule 23(b). See Fed. R. Civ. P. 23; Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 

1321-22 (11th Cir. 2008). To meet Rule 23(a)’s prerequisites, a plaintiff must demonstrate that: 

1) The class is so numerous that joinder is impracticable; 

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2) There are questions of law or fact common to the class; 

3) The claims or defenses of the representative parties are typical of the claims or 

defenses of the class; and 

4) The representative parties will fairly and adequately protect the interests of the class. 

Fed. R. Civ. P. 23(a)(1-4). 

Here, the Plaintiff seek certification under Rule 23(b)(3). See Erica P. John Fund, Inc. v. 

Halliburton Co., 131 S. Ct. 2179, 2184 (2011). Rule 23(b)(3) further mandates that Plaintiff

demonstrate that common questions of law or fact “predominate over any questions affecting 

individual members” and that maintaining a class action “is superior to other available methods”

of adjudication. Plaintiff’s proposed class meets all of these requirements.

A. The Requirements of Rule 23(a) are Satisfied.

1. The Class is Sufficiently Numerous Because It Includes

Thousands of Class Members.

The first requirement of Rule 23(a) is that “the class is so numerous that joinder of all 

members is impracticable.” Fed. R. Civ. P. 23(a)(1); Kilgo v. Bowman Trans., 789 F.2d 859, 878 

(11th Cir. 1986) (numerosity is satisfied where Plaintiff identified at least 31 class members

“from a wide geographical area”). Here, the Plaintiff’s expert has identified more than 19,000 

individuals registered on the National Do Not Call Registry that received multiple calls from 

Schumer for Bluegreen whose telephone numbers were collected in connection with vacations or 

vacation purchases prior to 2013, or whose numbers were provided as a referral by someone else.

Woolfson Decl. at ¶ 30. Numerosity is therefore satisfied.

2. Numerous Common Questions Exist Regarding Bluegreen’s

Liability.

Rule 23(a)(2) next requires that there is “a common question of law or fact among the 

members of the class.” As the Supreme Court has explained, “[c]ommonality requires the 

plaintiff to demonstrate that the class members ‘have suffered the same injury,’” such that “all 

their claims can be productively litigated at once.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 

350 (2011) (citation omitted). The common questions must generate common “answers” that are 

“apt to drive the resolution of the litigation.” Id. (citation omitted). Commonality is thus satisfied 

where the claims of all class members “depend upon a common contention ... of such a nature 

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that it is capable of classwide resolution—which means that determination of its truth or falsity 

will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

Under this “relatively light burden,” the class action “must involve issues that are 

susceptible to class-wide proof.” Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 

2001)). Accordingly, it is “not just the presence of common questions that matters, but the ability 

of the class action device to ‘resolve an issue that is central to the validity of each one of the 

claims in one stroke.’” Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 311 F.R.D. 688, 695 (S.D. Fla. 

2015). 

The common questions of law and fact to be determined in this action include whether 

the calls to class members on Bluegreen’s behalf were made to residential telephone numbers 

registered on the National Do Not Call Registry, for telemarketing purposes, and without 

consent. See, e.g., Cordoba v. DIRECTV, LLC, 320 F.R.D. 582, 600 (N.D. Ga. 2017) reversed in 

part on other grounds (certifying National Do Not Call Registry class and finding commonality 

satisfied by the question of “whether all of the calls at issue for the NDNC class were made to 

telephone numbers on the NDNC registry”). Furthermore, whether Bluegreen’s calling conduct 

was willful or knowing entitling class members to treble damages under the TCPA is a common 

question because class members received calls made in the identical way, for the identical 

purpose, and based on their telephone numbers having been obtained in one of two ways –

neither of which involved the provision of consent to Bluegreen to make telemarketing calls. See, 

e.g., Northrup v. Innovative Health Ins. Partners, LLC, 329 F.R.D. 443, 453 (M.D. Fla. 2019) 

(finding that the question of whether TCPA violations were willful or knowing was a common 

question for the class). There’s also the overarching common question of whether Bluegreen is

vicariously liable for the calls it hired Schumer to make to leads Bluegreen provided to Schumer. 

See, e.g., Mohamed v. Off Lease Only, Inc., 320 F.R.D. 301, 313 (S.D. Fla. 2017) (finding that 

the named defendant’s vicariously liability for calls made by an entity it contracted with was a 

common question and certifying claims under the TCPA); see also Krakauer, 925 F.3d at 656 

(“Put simply, a plaintiff suing under § 227(c)(5) is likely to be in the same position as a great 

many other people and can rely largely on common proof to make out his claim....”).

These legal and factual questions are shared by class members and will be resolved based 

on common proofs, including Bluegreen’s call logs and leads lists, the parties’ respective 

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experts’ testimony, evidence of the repeated complaints received by Bluegreen regarding their 

telemarketing practices, Bluegreen’s contract with Schumer, and other documents and testimony 

relating to the direction from Bluegreen to Schumer to make calls. Additionally, the absence of 

any evidence of written consent or a temporally relevant established business relationship from 

any class members – whose telephone numbers Bluegreen obtained either as part of a vacation or

vacation purchase prior to 2013, before the TCPA’s broad, written consent requirement was 

implemented, or as a referral from someone else – will allow for the resolution of Bluegreen’s 

consent and established business relationship defenses in a single stroke.

3. The Plaintiff’s Claim is Typical Because he Received 

Telemarketing Calls from Bluegreen on his Residential Phone

Number Registered with the National Do Not Call Registry.

Generally, typicality is satisfied where the claims are based on the same legal remedial 

theory. See Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Kornberg v. Carnival 

Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (typicality is satisfied where claims 

“arise from the same event or pattern or practice and are based on the same legal theory”). Yet, 

the “[c]lass members’ claims need not be identical to satisfy the typicality requirement; rather, 

there need only exist ‘a sufficient nexus between the legal claims of the named class 

representatives and those of individual class members to warrant class certification.’” Ault v. 

Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012). The required nexus exists “if the 

claims or defenses of the class and the class representative arise from the same event or pattern 

or practice and are based on the same legal theory.” See Ault, 692 F.3d at 1216. Typicality is 

satisfied in TCPA cases where the claims are based on the defendant’s homogenous 

telemarketing. See McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 169-70 (S.D. Cal. 

2019) (Plaintiff “raise claims and legal theories typical of the class they seek to represent—a 

class of individuals who did not consent to receive calls to their cellular phones made by or on 

behalf of Royal”).

The Plaintiff here has “allege[d] that the putative class members were also wrongly 

contacted by Defendant,” making their claims “reasonably coextensive with the putative class 

members.” Knapper v. Cox Commc’ns, Inc., 329 F.R.D. 238, 242 (D. Ariz. 2019) (certifying 

TCPA class). The Plaintiff received 9 telemarketing calls from Schumer for Bluegreen in an 8 

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day period in 2020 on his residential telephone number registered with the National Do Not Call 

Registry based on a purported vacation purchase from Bluegreen in November 2010. See 

Woolfson Decl. at ¶ 35 (identifying the “Age_Range” for Plaintiff’s lead as November 30, 

2010). All class members, including Plaintiff, were called as a result of Bluegreen obtaining 

their number either (1) as part of a vacation or actual or contemplated vacation transaction prior 

to 2013, or (2) as a referral from someone else. See Woolfson at ¶ 30. And, to date, Bluegreen 

has not identified the existence of a single document that could represent written consent or a 

basis for finding the existence of an established business relationship sufficient to call any of 

them years later.

Mr. Johansen therefore has the same claims as all other members of the proposed class.

4. Plaintiff and his Counsel Have Demonstrated the Commitment 

and Competency Needed to Prosecute the Class Claims.

Rule 23(a)(4) requires that the class representative can fairly and adequately protect and 

represent the interests of each member of the class. “[A] class representative must be part of 

the class and possess the same interest and suffer the same injury as the class members.”

Amchem at 625-26 (1997). Rule 23(a)(4) “requires courts to ask whether Plaintiff’s interests 

are antagonistic to the interest of other members of the class.” Id. The determinative factor “is 

the forthrightness and vigor with which the representative party can be expected to assert and 

defend the interests of the members of the class.” Lyons v. Georgia-Pacific Corp. Salaried 

Employees Ret. Plan, 221 F.3d 1235, 1253 (11th Cir. 2000) (internal quotation marks omitted).

Plaintiff has no conflicting interests with class members. In fact, by investigating, 

filing, and vigorously prosecuting this case, he has demonstrated a desire and ability to protect 

class members’ interests. Plaintiff has worked with counsel to develop the class claims, 

responded to multiple waves of requests for production and interrogatories, and will be 

deposed. See Johansen Decl. [Exhibit 6].

Just as the Plaintiff is committed to the prosecution of this case, so too are his lawyers, 

who request appointment as class counsel. Plaintiff’s counsel have extensive experience in 

consumer rights and class action litigation. Plaintiff’s counsel have litigated multiple cases 

nationally (in several federal district courts) and have the resources necessary to conduct 

litigation of this nature. Plaintiff’s counsel have been appointed as lead class counsel in several 

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TCPA cases. See Ikuseghan v. Multicare Health Sys., No. C 14-5539 BHS, 2015 WL 4600818, 

at *6 (W.D. Wash. July 29, 2015) (finding adequacy satisfied where Plaintiff’s counsel served 

as counsel “in other class action lawsuits, including a previous TCPA case”). Plaintiff’s

counsel have dedicated substantial time and financial resources to the investigation and 

prosecution of the claims at issue and will continue to do so. See Declaration of Avi R. 

Kaufman [attached as Exhibit 15]; Declaration of Anthony Paronich [attached as Exhibit 16].

B. Rule 23(b)(3) Is Satisfied.

Class certification is appropriate under Rule 23(b)(3) when “questions of law or fact 

common to the members of the class predominate over any question affecting only individual 

members, and ... a class action is superior to other available methods for the fair and efficient 

adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). Both requirements are satisfied for the 

proposed class in this case.

1. Common Issues Predominate.

Predominance is satisfied when “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, 136 S. Ct. 1036, 1045 (2016) (citation omitted). “[A] common 

question is one where ‘the same evidence will suffice for each member to make a prima facie 

showing [or] the issue is susceptible to generalized, class-wide proof.” Id. (citation omitted). A 

plaintiff does not need to “prove that each ‘element of her claim is susceptible to classwide 

proof.’” Amgen, 568 U.S. at 469 (citation and alterations omitted).

TCPA claims, by their nature, involve large numbers of Plaintiff who received identical 

telemarketing contacts, a small number of defendants, and a common course of conduct that 

affected each plaintiff in the same way. Indeed, as another circuit court recently explained when 

affirming the certification of a class of individuals called while on the National Do Not Call 

Registry in violation of the TCPA and a subsequent jury verdict:

Given the remedial purpose of the TCPA, it is no surprise that its cause of action 

would be conducive to class-wide disposition. In enacting the law, Congress sought 

to deter an activity that, while pernicious and disruptive, does not trigger 

extensive liability in any single case. Since few individuals would have an 

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incentive to bring suit, no matter how frustrated they were with the intrusion on 

their privacy, the TCPA opted for a model that allows for resolution of issues 

without extensive individual complications.

Krakauer, 925 F.3d at 656.

And that is precisely the circumstance here. Bluegreen obtained proposed class member 

telephone numbers either (1) prior to 2013, as part of a vacation or vacation transaction, or (2) 

from someone else as a referral, and then had Schumer call them repeatedly to promote 

Bluegreen’s vacation products. Class members were harmed in the same way, through the receipt 

of unsolicited, telemarketing calls on their National Do Not Call Registry protected telephone 

numbers, and their damages are based on the same fixed arithmetic calculation. See Cordoba v. 

DIRECTV, LLC, 942 F.3d 1259, 1271 (11th Cir. 2019) (holding that Article III standing is 

satisfied where, as here, “the class [is] based on calls to individuals on the [National Do Not Call

Registry], since those whose numbers are on the Registry and nevertheless received marketing 

calls suffered an injury that is traceable to [the defendant’s] misconduct”).

The predominance analysis “begins, of course, with the elements of the underlying cause 

of action.” Erica P. John Fund, Inc. v. Halliburton, 563 U.S. 804, 809 (2011). Courts routinely 

certify TCPA claims because the elements are amenable to class wide proof. Each element of the 

Plaintiff’s claim focuses on the conduct of Bluegreen. Plaintiff must establish three elements to 

prove his claim: (1) that he received 2 or more calls by or on behalf of Bluegreen in a twelve

month period, (2) for telemarketing purposes, (3) to his telephone number registered with the 

National Do Not Call Registry. 47 U.S.C. § 227(c)(5); 47 C.F.R. 64.1200(c)(2). Each of these 

elements and the other key issues in this case will be proven with common evidence, or, in the 

case of Bluegreen’s consent and established business relationship defenses, by the common 

absence of any evidence. 

Calls to National Do Not Call Registry Protected Phone Numbers. Common evidence 

exists to show that calls were made to residential telephone numbers registered with the National 

Do Not Call Registry. Cordoba, 320 F.R.D. at 598 (N.D. Ga. 2017) (“whether Plaintiff’s list of 

persons in the IDNC and [National Do Not Call Registry] class lists will persuade a factfinder on 

the merits ‘is simply a common question of fact’”). Expert Aaron Woolfson has identified the 

calls made by Schumer to leads obtained by Bluegreen prior to 2013 connection with vacation or 

vacation transaction or as referrals that had associated phone numbers registered with the 

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National Do Not Registry by running a series of database queries and using the Official Federal 

DNC Database, the industry standard for identifying if a telephone number was on the National 

Do Not Call Registry more than 30 days before it was called. See Woolfson Decl. at ¶¶ 18, 23, 

30. Additionally, Mr. Woolfson has identified the telephone carrier for each class member’s 

telephone number on the date of Bluegreen’s calls, and Plaintiff is in the process of subpoenaing 

these carriers for records reflecting whether each telephone number was residential or nonresidential when called. Woolfson Decl. at ¶¶ 31-34. 

Other courts have accepted similar methodology when certifying TCPA class actions 

regarding calls to Do Not Call Registry protected numbers. See, e.g., Cordoba, 320 F.R.D. at 

598; Krakauer v. Dish Network L.L.C., 311 F.R.D. 384, 391 (M.D.N.C. 2015) (“As to the NDNC 

class, Ms. Verkhovskaya determined which of the more than 1.6 million calls in the SSN records 

were ‘connected.’ Second, she identified numbers that received more than one connected call in 

any 12-month period during the class period. Third, she used data from Nexxa, Inc., a vendor 

that collects data on when individuals registered on the NDNC list, to determine which of these 

numbers were registered on the NDNC list as of April 1, 2010.” (internal annotations omitted)); 

Williams v. PillPack LLC, No. C19-5282 TSZ, 2021 U.S. Dist. LEXIS 27496, at *17 (W.D. 

Wash. Feb. 12, 2021) (certifying a class of National Do Not Call Registry call recipients);

Chinitz v. Intero Real Estate Servs., No. 18-cv-05623-BLF, 2020 U.S. Dist. LEXIS 247921, at 

*44-45 (N.D. Cal. July 22, 2020) (same); Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., 

No. 15-cv-06314, 2018 WL 3707283, at *7-8 (N.D. Cal. Aug. 3, 2018) (same).

Telephone Solicitations. Whether Schumer’s calls for Bluegreen constitute “telephone 

solicitations” will be determined based on Bluegreen’s underlying purpose in having Schumer 

make the calls, regardless of the content of any specific call. See Golan v. Veritas 

Entertainment, LLC, 788 F.3d 814, 819-21 (8th Cir. 2015) (“the purpose of the calls is the 

critical issue in this case”); Chesbro v. Best Buy Stores, LP, 705 F.3d 913, 917-18 (9th 2012) 

(citing FCC order: “[A]pplication of the prerecorded message rule should turn, not on the 

caller’s characterization of the call, but on the purpose of the message.”); Bennett v. 

GoDaddy.com LLC, No. CV-16-3908, 2019 U.S. Dist. LEXIS 59766, at *18-27 (D. Ariz. Apr. 8, 

2019) (“The relevant question is Defendant’s purpose in initiating the calls” (emphasis in 

original)). The key evidence of the purpose of the calls will be Bluegreen’s and Schumer’s 

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testimony and documents relating to the directions for marketing Bluegreen vacations that 

Bluegreen provided to Schumer.

Vicarious liability. The issue of whether Bluegreen is vicariously liable for the calls 

placed by Schumer as part of the Bluegreen campaign is central to this case and is vital to 

enforcement of the TCPA. Under federal common law principles of agency, a party may be

vicariously liable for TCPA violations even if that party did not initiate or make the calls at

issue. See, e.g., Shamblin, 2015 WL 1754628, at *6; Legg v. Voice Media Grp., Inc., 20 F. Supp.

3d 1370, 1376-77 (S.D. Fla. 2014). When determining the existence of vicarious liability, courts

must evaluate “whether the principal had the necessary agency relationship with the direct

wrongdoer.” Legg, 20 F. Supp. 3d at 1377 (citing Commodity Futures Trading Comm’n v.

Gibraltar Monetary Corp., 575 F.3d 1180, 1189 (11th Cir. 2009)). The focus is therefore on 

Bluegreen’s conduct, “without concern for any conduct by the class members.” Kristensen v.

Credit Payment Servs., 12 F. Supp. 3d 1292 (D. Nev. 2014).

Under any theory of agency, common evidence will be decisive. Specifically, Mr. 

Johansen will rely on the documents produced by Bluegreen and third parties, along with the 

testimony of Bluegreen and Schumer relating to the direction provided by Bluegreen in 

connection with the telemarketing calls, including why and how Bluegreen obtained the 

telephone numbers that it supplied to Schumer to call and what Schumer said during those calls.

Consent and Established Business Relationship. A defendant is not liable under the 

TCPA for telemarketing calls placed with the called party’s prior express written consent or an 

established business relationship with the called party. 47 C.F.R. § 64.1200(c)(2); id. at § (f)(5) 

(“The term established business relationship for purposes of telephone solicitations means a prior 

or existing relationship formed by a voluntary two-way communication between a person or 

entity and a residential subscriber with or without an exchange of consideration, on the basis of 

the subscriber’s purchase or transaction with the entity within the eighteen (18) months 

immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or 

application regarding products or services offered by the entity within the three months 

immediately preceding the date of the call, which relationship has not been previously terminated 

by either party.”); see Whelpley v. Comenity Bank, No. 2:18-cv-433-FtM-99MRM, 2018 U.S. 

Dist. LEXIS 127432, at *9 (M.D. Fla. July 31, 2018) (“[e]xpress consent is not an element of a 

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plaintiff’s prima facie case [under the TCPA] but is an affirmative defense for which the 

defendant bears the burden of proof.”). 

In this case, Schumer called more than 13,000 leads whose telephone numbers Bluegreen 

obtained in connection with a vacation or vacation transaction that occurred prior to 2013, and 

more than 3,000 leads whose telephone numbers Bluegreen obtained as a referral from someone 

else. To date, Bluegreen has not produced or identified any evidence of any writing signed by 

any of these consumers consenting to be called, or of any subsequent transactions with any of 

these consumers after the vacation, vacation transaction, or referral during which their telephone 

numbers were obtained. Furthermore, as explained above, the ways in which consumer data was 

acquired was uniform. As such, any finding related to consent will be outcome determinative for 

all proposed class members.

Additionally, Plaintiff’s expert has excluded from the class all calls to any consumer that 

were made by Schumer after any inbound call from that consumer was received by Schumer. 

Woolfson Decl. at ¶ 30; see also Krakauer, 311 F.R.D. at 398 (“Dish can prove this defense by, 

for example, offering a comprehensible customer list along with testimony about the list and 

which calls were to Dish customers; the factfinder could then determine whether those 

individuals as a group are not entitled to recover because of an EBR. To the extent there are a 

few situations where individual inquiry into the dates during which Dish is entitled to the EBR 

defense may be needed or where the parties dispute these dates, these issues appear to be easily 

manageable.”).

Therefore, Bluegreen’s prospective consent and established business relationship 

defenses will be determined based on the common absence of evidence of such defenses for all 

class members.

Damages. The Plaintiff will be entitled to up to $500 for each negligent violation of the 

TCPA and treble damages—up to $1,500 for each violation—if Bluegreen’s violations were 

“willful or knowing.” 47 U.S.C. § 227(c)(5)). The question of whether Bluegreen’s conduct was 

willful or knowing will be resolved with common proof since it focuses on Bluegreen conduct

including what it knew or did in response to myriad consumer complaints. See, e.g., Krakauer, 

925 F.3d at 661-62 (affirming treble damages award after a jury trial based on the common 

evidence presented at trial of defendant’s conduct).

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The common issues in this case accordingly predominate over any individualized issues. 

2. A Class Action is the Superior Method of Adjudicating the 

Claims.

The second prong of the analysis under Rule 23(b)(3) requires a finding that “a class 

action is superior to other available methods for the fair and efficient adjudication of the 

controversy.” Fed. R. Civ. P. 23(b)(3). Class members rarely have an interest in bringing 

individual TCPA claims against a Bluegreen and are unlikely to have the necessary resources to 

do so. The damages are rarely high enough to justify the cost of proving their claims, which are 

most effectively brought en masse as a class action. See McCurley, 331 F.R.D. at 178-79 

(“Courts recognize that given these damages relative to the costs of litigation, a class action is a 

superior means of adjudicating TCPA claims against a defendant.”).

Other judges in this district have agreed when it comes to TCPA claims, indicating that 

the “large number of claims, along with the relatively small statutory damages, the desirability of 

adjudicating these claims consistently, and the probability that individual members would not 

have a great interest in controlling the prosecution of these claims, all indicate that [a] class 

action would be the superior method of adjudicating” them. C-Mart, Inc. v. Metro. Life Ins. Co., 

299 F.R.D. 679, 691 (S.D. Fla. 2014); see Physicians Healthsource, Inc. v. Doctor Diabetic 

Supply, LLC, No. 12-22330-CIV, 2014 U.S. Dist. LEXIS 177222, at *22-23 (S.D. Fla. Dec. 23, 

2014) (citing C-Mart).

Just like other courts have determined with respect to TCPA cases, a single litigation of 

thousands of telemarketing calls at issue is superior to a series of other litigations or to 

individuals potentially foregoing their claims. Superiority is therefore satisfied.

C. The Proposed Class is Ascertainable.

As the Eleventh Circuit Court of Appeals clarified earlier this month in Cherry v.

Dometic Corp., No. 19-13242, 2021 U.S. App. LEXIS 2809 (11th Cir. Feb. 2, 2021):

Our ascertainability precedents ... do not mandate proof of administrative 

feasibility. A class is “clearly ascertainable” if we are certain that its membership 

is “capable of being” determined. Ascertain, Webster’s New International

Dictionary (3d ed. 1993); Ascertainable, Webster’s New

International Dictionary (3d ed. 1993). But membership can be capable of 

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determination without being capable of convenient determination. Administrative 

feasibility is not an inherent aspect of ascertainability.... We hold that 

administrative feasibility is not a requirement for certification under Rule 23. In 

doing so, we limit ascertainability to its traditional scope: a proposed class is 

ascertainable if it is adequately defined such that its membership is capable of 

determination.

Id. at *12-13, 16.

More particularly, a class definition is ascertainable where it is (1) not amorphous or 

imprecise, but clearly defined, (2) not limited by subjective criteria, but rather objective criteria, 

and (3) not a fail-safe class, or one defined in terms of success on the merits. See Mullins v.

Direct Dig., Ltd. Liab. Co., 795 F.3d 654, 659-60 (7th Cir. 2015); accord C-Mart, Inc., 299 

F.R.D. at 687 (“[A] plaintiff seeking to represent a proposed class must establish that the 

proposed class is adequately defined and clearly ascertainable. A vague class definition portends 

significant manageability problems for the court.”).

Here, the proposed class definition is not vague; it identifies a particular group of 

individuals harmed in a particular way during a specific period of time. It is also not limited by 

subjective criteria as it can be determined based on Bluegreen’s records and publicly available 

information. And it does not create a fail-safe class – regardless of whether Plaintiff does or does

not prevail on his claim, res judicata will bar the class members he represents from re-litigating 

their claims. The proposed class is therefore ascertainable. 

VI. CONCLUSION

Because the Rule 23 requirements are satisfied, the Plaintiff respectfully requests that the 

Court: (1) certify the proposed class; (2) appoint the Plaintiff to serve as the class representative; 

(3) appoint Kaufman P.A. and Paronich Law, P.C. to serve as class counsel; and (4) direct the 

Plaintiff to submit a proposed notice plan and form of notice within a reasonable time. 

Respectfully submitted,

Dated: February 17, 2021 /s/ Avi R. Kaufman

Avi R. Kaufman (FL Bar no. 84382)

kaufman@kaufmanpa.com

Rachel E. Kaufman (FL Bar no. 87406)

rachel@kaufmanpa.com

KAUFMAN P.A.

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400 NW 26th Street

Miami, FL 33127

Telephone: (305) 469-5881

Anthony I. Paronich (pro hac vice)

Paronich Law, P.C.

350 Lincoln Street, Suite 2400

Hingham, MA 02043

508.221.1510

E-mail: anthony@paronichlaw.com

Counsel for Plaintiff and the putative class

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