IN THE UNITED STATES DISTRICT COURT FOR THE

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

GRANT BIRCHMEIER, STEPHEN PARKES, 

SUSAN VIGUS, and REGINA STONE, on 

behalf of themselves and a class of others similarly 

situated,

Plaintiffs,

v.

CARIBBEAN CRUISE LINE, INC., 

ECONOMIC STRATEGY GROUP, 

ECONOMIC STRATEGY GROUP, INC., 

ECONOMIC STRATEGY, LLC, THE 

BERKLEY GROUP, INC., and VACATION 

OWNERSHIP MARKETING TOURS, INC., 

Defendants.

Case No. 1:12-cv-04069

Honorable Matthew F. Kennelly

PLAINTIFFS’ MOTION AND INCORPORATED MEMORANDUM OF LAW 

IN SUPPORT OF CLASS CERTIFICATION

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TABLE OF CONTENTS

OVERVIEW....................................................................................................................................................... 1

FACTS.................................................................................................................................................................. 4

ARGUMENT..................................................................................................................................................... 7

I. The TCPA.............................................................................................................................................. 7

II. The Applicable Legal Standard for Class Certification Under Rule 23............................... 9

III. The Proposed Classes are Readily Ascertainable ...................................................................... 10

IV. The Classes Satisfy Rule 23(a) ........................................................................................................ 11

V. The Classes Satisfy Rule 23(b)(3) ................................................................................................... 19

CONCLUSION................................................................................................................................................. 21

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TABLE OF AUTHORITIES

Cases

Adams v. R.R. Donnelley & Sons, Nos. 98 C 4025, 96 C 7717, 2001 WL 336830 

(N.D. Ill. Apr. 6, 2001).......................................................................................................................... 12, 20

Agne v. Papa John’s Int’l, Inc., 286 F.R.D. 559 (W.D. Wash. 2012) ................................................................. 2, 9

Alliance to End Repression v. Rochford, 565 F.2d 975 (7th Cir. 1977) ................................................................ 10

Banks v. Caribbean Cruise Line, et al., Case No. 1:12-cv-00584-JG-VMS, 

Dkt. 49, Report and Recommendation............................................................................................... 15

Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012).......................................................................... 15

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir. 1983) ........................................................... 17

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)............................................................................................. 11, 17

Gomez v. Ill. State Bd. of Educ., 117 F.R.D. 394 (N.D. Ill. 1987) ..................................................................... 18

Hamlett v. Santander Consumer USA Inc., No. 11-CV-6106 JFB GRB, 2013 WL 1150048 

(E.D.N.Y. Mar. 19, 2013)...................................................................................................................... 15

Hinman v. M and M Rental Ctr., Inc., 545 F.Supp.2d 802 (N.D. Ill. 2008)..................................................... 10, 11, 14

In re: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,

27 F.C.C.R. 1830 (F.C.C. 2012)............................................................................................................ 8

In the Matter of the Joint Petition Filed by Dish Network, LLC, the United States of Am., & 

the States of California, Illinois. N. Carolina, & Ohio for Declaratory Ruling Concerning the 

Tel. Consumer Prot. Act (TCPA) Rules, 28 F.C.C.R. 6574 (2013)........................................................ 8-9

Ira Holtzman, C.P.A. v. Turza, No. 11-3188, --- F.3d ---, 2013 WL 4506176 

(7th Cir. Aug. 26, 2013)......................................................................................................................... 2, 9

Jackson v. Sheriff of Cook County, No. 06-cv-04932006, 2006 WL 3718041 

(N.D. Ill. Dec. 14, 2006)........................................................................................................................ 11

Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998)..................................................................................................... 12

Kernats v. Comcast Corp., No. 09 C 3368, 2010 WL 4193219 (N.D. Ill. October 20, 2010)........................ 20

Knutson v. Schwan’s Home Serv., Inc., No. 3:12-CV-0964-GPC-DHB, 2013 WL 4774763 

 (S.D. Cal. Sept. 5, 2013)......................................................................................................................... 10

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Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620 (N.D. Ill. 2007) ..................................................................... 10

Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292 (N.D. Cal. 2013) .................................................................... 2

Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674 (S.D. Fla. 2013)........................................ 2

Maxwell v. Arrow Fin. Servs., LLC, No. 03 C 1995, 2004 WL 719278 

 (N.D. Ill. Mar. 31, 2004) ............................................................................................................ 18

McCabe v. Crawford & Co., 21 F.R.D. 631 (N.D. Ill. 2002) ............................................................................. 11

Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012).......................................................... 9, 19, 20

Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012)..................................................................................... 16

Paldo Sign & Display Co. v. Topsail Sportswear, Inc., No. 08-CV-5959, 2010 WL 4931001 

(N.D. Ill. Nov. 29, 2010)....................................................................................................................... 14, 21

Parker v. Risk Mgmt. Alt., 206 F.R.D. 211 (N.D. Ill. 2002)............................................................................. 11

Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042 (7th Cir. 2007) ......................................................... 20-21

Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992)............................................................................................ 12, 13

Savanna Grp., Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 4734004 (N.D. Ill. Sept. 3, 2013).................. 9

Savanna Grp., Inc. v. Trynex, Inc., No. 10-CV-7995, 2013 WL 66181 (N.D. Ill. Jan. 4, 2013)..................... 19

Streeter v. Sheriff of Cook County, 256 F.R.D. 609 (N.D. Ill. 2009) ................................................................... 20

Targin Sign Sys., Inc. v. Preferred Chiropractic Ctr., Ltd., 679 F. Supp. 2d 894 (N.D. Ill. 2010)....................... 16

Thrasher-Lyon v. Illinois Farmers Ins. Co., 861 F. Supp.2d 898 (N.D. Ill. 2012) .............................................. 13

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)...................................................................................... 11, 19

Whitten v. ARS Nat’l Servs. Inc., No. 00 C 6080, 2001 WL 1143238 (N.D. Ill. Sept. 27, 2001)................. 12

Williams-Green v. J. Alexander’s Restaurants, Inc., 277 F.R.D. 374 (N.D. Ill. 2011) ........................................ 19

Young v. County of Cook, 06 C 552, 2007 WL 1238920 (N.D. Ill. Apr. 25, 2007)......................................... 20

Rules & Statutes

105 Stat. 2394 § 2(10).......................................................................................................................................... 7

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47 U.S.C. § 227..................................................................................................................................................... passim

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

Other

MAN. FOR COMPLEX LITIG. (4th ed. 2004) § 21.222 ......................................................................................................... 10

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Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs Grant Birchmeier, Stephen Parkes, 

and Regina Stone (the “Plaintiffs”)1respectfully move this Court for an order (i) certifying two 

Classes of individuals as defined below, (ii) appointing Plaintiffs as the Class Representatives, (iii) 

appointing Jay Edelson of Edelson LLC and Scott Rauscher of Loevy & Loevy as Class Counsel, 

and (iv) granting such further relief as this Court deems reasonable and just. In support thereof, 

Plaintiffs state as follows: 

OVERVIEW

This case arises from a massive, unsolicited robocall campaign designed to sell vacation 

packages and timeshare properties for Defendants The Berkley Group, Inc. (“Berkley”), Caribbean 

Cruise Line, Inc. (“CCL”), and Vacation Ownership Marketing Tours, Inc. (“VOMT,” and with 

Caribbean and Berkley, collectively the “Defendants”).

2 The campaign involved millions of calls to 

cellular and residential telephones, all made without the consent of the called party in violation of 

the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Each call contained a 

prerecorded voice offering the called party a “free” cruise in exchange for taking a purported

automated public opinion or political survey,

3

each was effectuated using the same autodialing 

 

1 As it was recently determined through discovery that Susan Vigus received different phone 

calls than the other named plaintiffs, she is not a member of either of the proposed classes. 

2 There are three additional defendants in this case: Economic Strategy Group; Economic 

Strategy Group, Inc.; and Economic Strategy LLC (collectively, “ESG”). Having not answered the 

Consolidated Complaint or otherwise participated in this litigation, they are in default. Plaintiffs, 

however, do not seek to certify a class against them at this time.

3 There is no real difference between Defendants’ “public opinion” and “political” survey 

calls. Each call was made without the recipients’ consent, using the same autodialing technology, and 

an automated voice to offer a “free” cruise in exchange for completion of the survey. Additionally, 

each survey was effectuated by Jacob DeJongh—the President and sole employee of the ESG 

Defendants—for the collective benefit of CCL, VOMT, and Berkley. Although the public opinion 

surveys were purportedly done by Employment for America (“EFA”)—rather than ESG—EFA is 

merely another one of DeJongh’s shell polling companies. See Ex. 1, Excerpts of Deposition of 

Jacob DeJongh (“DeJongh Dep.”) at 79-80; see also Ex. 2, CCL001675 (indicating that, in response to 

complaints from a company using the same initials as ESG, DeJongh would change the name 

mentioned on the surveys from ESG to another one of his “DBA compan[ies] name[d] EFA Survey 

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technology, and each was a guise to sell expensive vacation and timeshare packages for the benefit 

of Berkley, CCL, and VOMT.

The policy behind Rule 23 is to aggregate this type of claim into a class action, and so 

numerous courts have certified similar TCPA class actions under Rule 23(b)(3). See e.g. Manno v. 

Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674 (S.D. Fla. 2013) (certifying a class of individuals 

who received illegal automated calls under the TCPA); Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292 

(N.D. Cal. 2013) (certifying nationwide class of individuals who received unsolicited text message 

calls); Agne v. Papa John’s Int’l, Inc., 286 F.R.D. 559 (W.D. Wash. 2012) (same); see also Ira Holtzman, 

C.P.A. v. Turza, No. 11-3188, --- F.3d ---, 2013 WL 4506176, at *1 (7th Cir. Aug. 26, 2013) 

(observing that “[c]lass certification is normal in litigation under § 227, because the main questions, 

such as whether a given [communication] is an advertisement, are common to all recipients.”). Class 

certification is equally appropriate here.

As such, Plaintiffs now ask the Court to certify two classes: (1) one of people who received 

the illegal survey calls on their residential telephone lines; and (2) another of people who received 

the illegal survey calls on their cellular telephone lines,4defined as follows: 

Cellular Telephone Class: All persons in the United States to whom (1) 

one or more telephone calls were made by, on behalf of, or for the benefit of 

the Defendants; (2) purportedly offering a free cruise in exchange for taking 

an automated public opinion and/or political survey; (3) which delivered a 

 

Group”). Moreover, DeJongh’s own testimony indicates that EFA and ESG were used 

interchangeably, that some of EFA’s surveys were in fact political (and vice versa), and that both 

were used to generate leads for Defendants. As such, any mention of political surveys throughout 

this Motion encompasses both the purportedly “political” and “public opinion” survey calls. 

4 Given the Court’s recent ruling (see Dkt. 143), Plaintiffs’ Proposed Classes are narrower than 

those defined in their Consolidated Complaint. That is, the Proposed Classes only include 

individuals to whom Defendants made calls offering a free cruise in exchange for taking an 

automated political survey, rather than all automated survey calls offering a free cruise that were 

caused to be made by Defendants. Compare Plaintiffs’ Consolidated Complaint (“Compl.”), Dkt. 102 

at ¶ 31. Given Rule 23’s instruction that orders granting “class certification may be altered or 

amended before final judgment,” such modification is appropriate. Fed. R. Civ. P. 23(c)(1)(C). 

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message using a prerecorded or artificial voice; (4) to a telephone number 

assigned to a cellular service; (5) since May 24, 2008.

Landline Telephone Class: All persons in the United States to whom (1) 

one or more telephone calls were made by, on behalf of, or for the benefit of 

the Defendants; (2) purportedly offering a free cruise in exchange for taking 

an automated public opinion and/or political survey; (3) which delivered a 

message using a prerecorded or artificial voice; (4) to a residential landline 

telephone number; (5) since May 24, 2008.

(collectively, the “Proposed Classes”).5

The common questions arising from Defendants’ uniform practice predominate for each of 

the Proposed Classes, and the Proposed Classes are amply numerous—each numbering in the 

millions. In addition, a class action is the superior method for addressing Defendants’ systematic 

TCPA violations, given the inefficiency of what might otherwise be numerous nearly identical 

lawsuits, or none at all, as many class members would otherwise forfeit their claims due to the high 

cost of suing individually compared to the relatively modest damages, and because many people may 

be unaware of their rights. Finally, Defendants engaged in such a massive robocalling campaign 

because it is economically advantageous to do so—CCL acknowledges that the robocall campaign 

was one of its major marketing programs—and a handful of individual lawsuits holds no realistic 

hope of bringing Defendants into compliance. Thus, classwide liability is the only way to ensure that 

Defendants stop systematically violating the law and to compensate those who were injured, and the 

Proposed Classes should be certified.

 

5 Excluded from the Classes are 1) Defendants, Defendants’ agents, subsidiaries, parents, 

successors, predecessors, and any entity in which the Defendants or their parents have a controlling 

interest and their current and former employees, officers, and directors; 2) the Judge or Magistrate 

Judge to whom this case is assigned and the Judge’s or Magistrate Judge’s immediate family; 3) 

persons who execute and file a timely request for exclusion; 4) the legal representatives, successors, 

or assigns of any such excluded person; and 5) Plaintiffs’ counsel and Defendants’ counsel.

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FACTS

Defendants are collectively responsible for effectuating a massive robocall marketing 

campaign that offers a “free” cruise in exchange for completing a purportedly political survey. The 

real motive of these surveys is to increase Defendants’ vacation package and timeshare sales, and 

thus, ultimately their profits. See, e.g., Ex. 3, Excerpts of CCL 30(b)(6) Deposition of Daniel Lambert 

(“CCL Lambert Dep.”) at 189-90 and CCL Lambert Dep. at Ex. 24 (referring to the program as “the 

next great mousetrap ... as far as sales go,” and further explaining that the robocalls were one of 

CCL’s major marketing programs). As explained below, because each Defendant contributed to and 

benefitted from the illegal calls at issue, each has violated the TCPA. 

The Defendant Companies and Their Lead Generation Efforts 

Berkley is a “timeshare sales and marketing company” with approximately 2,000 employees 

throughout the country that sells timeshare interests for its affiliated properties in “Florida, Virginia, 

Massachusetts, and Nevada.” Ex. 4, Excerpts of Berkley Rule 30(b)(6) Deposition (“Berkley Dep.”) 

at 14-20. CCL is a Florida company that “markets and sells vacation packages” to consumers, 

including by acting as a lead generator for Berkley’s Florida timeshare properties. See Ex. 3, CCL 

Lambert Dep. at 16. It was founded and is operated by Daniel Lambert and James Verillo, who also 

founded and operated VOMT. See Ex. 3, CCL Lambert Dep. at 148-51.

CCL carried out its role as a Berkley lead generator through an exclusive contract it had with 

VOMT, pursuant to which CCL provided all of its sales leads for timeshare properties to VOMT. 

See Ex. 5, Marketing Agreement Between VOMT and CCL; see also CCL Lambert Dep. at 147-48.

VOMT, in turn, had an exclusive contract with Berkley, whereby VOMT provided all of its sales 

leads for timeshare properties to Berkley. See Ex. 6, Marketing Agreement Between Berkley and 

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VOMT; see also Ex. 4, Berkley Dep. at 84-86 & Berkley Dep. at Ex. 12, Response to FTC Civil 

Investigative Demand. 

Despite its purported role as lead generator for Berkley, VOMT never had any employees, 

officers, directors, office space, telephone numbers, or email addresses. See Ex. 7, Excerpts from

VOMT 30(b)(6) Deposition of Daniel Lambert (“VOMT Lambert Dep.”) at 7-11, 21:21-24. In 

short, VOMT existed only on paper, and the sales leads passed directly from CCL to Berkley.6

In or around August 2011, through its lead-broker Scott Broomfield (and his then-company 

Linked Service Solutions), CCL, acting for the benefit of both VOMT and Berkley, agreed to pay 

ESG and EFA to “solicit survey takers by transmitting or causing to be transmitted prerecorded 

survey messages using an autodialer.” Ex. 8, Supplier Agreement Between ESG and CCL and Ex. 9,

Supplier Agreement Between EFA and CCL. Instead of paying DeJongh—as President of ESG and 

EFA—directly, however, CCL paid Broomfield approximately $2 for each transferred survey call 

that was connected to CCL for more than thirty seconds, Ex. 10, Excerpts of Broomfield’s FTC 

Deposition (“Broomfield FTC Dep.”) at 71-73, and that money was then passed to DeJongh to pay 

for the costs associated with arranging and executing Defendants’ robocall campaign. Ex. 11, 

Excerpts of DeJongh’s FTC Deposition (“DeJongh FTC Dep.”) at 28-29. Throughout the relevant 

time period, Berkley met with Lambert and Verillo to discuss their marketing relationship. Ex. 4, 

Berkley Dep. at 24-25, 49-50.

Defendants’ Telemarketing Campaign Offers an Automated Political Survey in Exchange 

for a “Free” Cruise Using a Prerecorded Voice and a Single Automated Dialing System

With all the key players in place, starting in or around August 2011, and continuing through 

about August 2012, Defendants effectuated their robocalls in the following common manner. 

 

6 After this lawsuit was filed, Lambert and Verillo replaced VOMT with another company, 

through which they can continue to inconspicuously provide Berkley with leads. As with VOMT, 

the new company has no employees. Ex. 3, CCL Lambert Dep. at 172-76.

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Foremost, using the funds originally provided by CCL, DeJongh purchased telephone numbers 

from “a lot of different places.” Ex. 1, DeJongh Dep. at 342-343. Importantly, neither Defendants 

nor DeJongh contend that those individuals expressly consented to receive Defendants automated 

survey calls. Next, using online software services, DeJongh recorded the automated political surveys,

id. at 144-46; 148-49, all which offered a “free” cruise in exchange for taking the survey. Thereafter, 

through a single automated dialer (similarly paid for by funds originating from CCL), DeJongh, 

through his dialer, placed robocalls to consumers nationwide. DeJongh made these calls, 

indiscriminately, and admittedly with the goal to call “the whole country.” Ex. 1, DeJongh Dep. at 

117:14-25 - 118:1-16; see also id. at 258:23 - 259:1-4 (confirming that the survey calls were made to 

people all over the country). DeJongh believes that he made approximately fifty million calls using

the above-described process, Ex. 11, DeJongh FTC Dep. at 79:3-14, and CCL’s own records 

indicate that nearly two million of those calls were transferred to CCL (and lasted more than thirty 

seconds) after completion of the survey. Ex. 12, Excerpts of Deposition of CCL’s Director of 

Marketing Jennifer Poole (“Poole Dep.”) at 67.

Each class member who completed the survey received an offer to be transferred to a live

CCL sales agent, and those who were connected to an agent were all offered a materially identical 

pitch for an upgraded vacation package that included a mandatory presentation at one of Berkley’s 

timeshare properties. Ex. 3, CCL Lambert Dep. at 64-65, 144-46. If the consumer chose not to 

upgrade to a more expensive vacation package, he or she was offered a timeshare presentation later, 

when they took the vacation. Id. at 64-65.

Plaintiffs Received the Same Calls and Suffered the Same Injury as the Class Members

Each of the Plaintiffs’ experiences are materially identical and mirror those described above. 

Specifically, on May 7, 2012, Plaintiff Grant Birchmeier received one of Defendants’ political survey 

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calls on his cellular telephone. Ex. 13, Excerpts of Birchmeier’s Responses to VOMT’s

Interrogatories at Resp. Nos. 1 & 8. When he answered the telephone, he heard a robocall

promoting a “free” cruise in exchange for answering a series of questions. Id. The robocall stated 

that the questions and calls were on behalf of “Political Opinions of America” (“POA”), which is 

one of the many fake names Defendants placed on the illegal survey calls. Id. at Resp. No. 1.

Similarly, Plaintiff Stephen Parkes received multiple robocalls identical to the one that 

Birchmeier received, also on his cellular telephone. Ex. 14, Excerpts of Parkes’ Responses to 

VOMT’s Interrogatories at Resp. Nos. 1 & 8. Plaintiff Regina Stone received the same calls, on both

her residential landline and on her cellular telephone from POA. Ex. 15, Excerpts of Stone’s

Responses to CCL’s Interrogatories at Resp. No. 2.

7

The Plaintiffs’ experiences in receiving a barrage of such calls parallel those described by the

thousands of putative class members similarly reporting Defendants’ harassing phone calls. See, e.g.,

Exs. 16 & 17, Sample of Online Consumer Complaints, and Letter from Kentucky Office of 

Attorney General to Berkley Re: Consumer Complaints, respectively.

ARGUMENT

I. The TCPA

The TCPA is a consumer-protection statute Congress enacted after finding that robocalls 

had become a serious problem, posing a nuisance and invading the privacy of telephone subscribers 

nationwide. See TCPA, 47 U.S.C. § 227 note; see also 105 Stat. 2394 § 2(10). To solve the problem, 

 

7 At least one of the unsolicited robocalls Stone received used the fake survey name 

“Independent Research Group” (or something similar) rather than “Political Opinions of America,” 

but was otherwise identical to the other calls. Ex. 15 at Resp. No. 2; see also Ex. 3, CCL Lambert 

Dep. at 137-140 and CCL Lambert Dep. at Ex. 19 (demonstrating that Broomfield told CCL, in 

response to complaints about Political Opinions of America, that www.independentsurveygroup.org 

was the new name that CCL should be referring to); Ex. 18, CCL001754 (earlier email from 

Broomfield informing CCL employees that the “new name [on the survey] is Political Opinions of 

America”, but that “the message is exactly the same other than the name change.”).

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Congress, with limited exceptions that do not apply to the calls at issue in this case, prohibited 

callers from using a prerecorded voice to deliver a message to cellular telephones and residential 

telephones without the prior express consent of the called party, and granted a private right of 

action with statutory damages for victims of illegal calls. See 47 U.S.C. § 227(b). Despite these 

measures, however, illegal calls continue to be a widespread problem. See, e.g., In re: Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 F.C.C.R. 1830, 1839 ¶ 22, 

(F.C.C. 2012) (“Since the TCPA’s enactment...the Commission has continued to receive thousands 

of complaints regarding unwanted telemarketing robocalls.”).

As part of the continuing effort to prevent the type of wide-scale violation at issue in this

case—where profitable businesses hire others in an effort to hide their role in robocall campaigns—

the FCC recently ruled that companies may be held vicariously liable for calls made on their behalf, 

in a wide variety of situations, including when the companies knowingly benefit from the calls. See In 

the Matter of the Joint Petition Filed by Dish Network, LLC, the United States of Am., & the States of 

California, Illinois. N. Carolina, & Ohio for Declaratory Ruling Concerning the Tel. Consumer Prot. Act (TCPA) 

Rules, 28 F.C.C.R. 6574, 6588 (2013). As the FCC explained:

[T]he seller is in the best position to monitor and police TCPA compliance by 

third-party telemarketers. We thus agree that, consistent with the statute’s 

consumer protection goals, potential seller liability will give the seller 

appropriate incentives to ensure that their telemarketers comply with our rules.

By contrast, allowing the seller to avoid potential liability by outsourcing its 

telemarketing activities to unsupervised third parties would leave consumers in 

many cases without an effective remedy for telemarketing intrusions. This 

would particularly be so if the telemarketers were judgment proof, 

unidentifiable, or located outside the United States, as is often the case.

Id; see also id. at 6593 (“we see no reason that a seller should not be liable under those provisions for 

calls made by a third-party telemarketer when it has authorized that telemarketer to market its goods 

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or services. In that circumstance, the seller has the ability, through its authorization, to oversee the 

conduct of its telemarketers, even if that power to supervise is unexercised”).

8

Moreover, courts routinely certify class actions to remedy telemarketing campaigns that 

systematically violate the TCPA, like the conduct at issue here, and this Court should do the same in 

this case. See e.g. Agne, 286 F.R.D. 559, 572 (W.D. Wash. 2012) (certifying class “for resolving the 

claims of consumers who received text message advertisements [calls] sent by or at the instruction of 

the Defendants”); see also Turza, 2013 WL 4506176 (affirming class certification in blast fax case 

involving mixed advertisement and information material).

II. The Applicable Legal Standard for Class Certification Under Rule 23

Classes should be certified when they satisfy all of the requirements of Rule 23(a) and at least 

one of the requirements of Rule 23(b). See, e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 

808 (7th Cir. 2012). Specifically, under Rule 23(a), the movant must demonstrate four requirements:

(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Fed. R. Civ. P. 

23(a). Additionally, Rule 23(b)(3)—the prong under which Plaintiffs seek to certify the Proposed 

Classes here—requires Plaintiffs to show that “questions of law or fact common to the members of 

the class predominate over any questions affecting individual members, and [that] a class action is 

superior to other available methods for the fair and efficient adjudication of the controversy.” See

Fed. R. Civ. P. 23(b)(3); see also Messner, 669 F.3d at 808. As fully explained below, the Proposed 

Classes satisfy Rule 23(a) and Rule 23(b)(3) and should be certified.

 

8 This Court, and other courts within this District agree that such vicarious liability is 

necessary to enforce the TCPA. See Dkt. 75 a 2 (rejecting CCL’s “contention that liability attaches 

under the TCPA only to the party that placed the call”); Savanna Grp., Inc. v. Trynex, Inc., No. 10 C 

7995, 2013 WL 4734004, at *4-6 (N.D. Ill. Sept. 3, 2013) (explaining that in Dish Network the FCC 

determined that a “‘seller’—who does not generally ‘initiate’ calls within the meaning of the 

TCPA—may nevertheless be vicariously liable under federal common law agency principles 

for violations of either § 227(b) or § 227(c) committed by third-party telemarketers” and further 

holding that the FCC’s “ruling concerning violations of § 227(b) [] is controlling”). 

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III. The Proposed Classes are Readily Ascertainable

As an initial matter, and though it is not explicitly provided for in Rule 23(a), courts require 

that a proposed class be sufficiently definite, or in other words, ascertainable. Hinman v. M and M Rental 

Ctr., Inc., 545 F. Supp. 2d 802, 806 (N.D. Ill. 2008) (citing Alliance to End Repression v. Rochford, 565 

F.2d 975, 977 (7th Cir. 1977)). A class is sufficiently definite “if its members can be ascertained by 

reference to objective criteria.” Id. The goal of Rule 23’s implicit ascertainability requirement is not to

determine the actual identities of individual class members, but to ensure that class members generally 

“receive the best notice practicable and have an opportunity to opt out.” MAN. FOR COMPLEX LITIG. (4th 

ed. 2004) § 21.222 at 270. As a result, Plaintiffs “need not identify each class member to secure class 

certification,” Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620, 624 (N.D. Ill. 2007), and a class is

sufficiently ascertainable where its “scope is defined by the activities of the defendants.” Rochford, 565 

F.2d 975 at 978; see also Hinman, 545 F. Supp. 2d at 806.

Here, class membership is straightforward and turns on simple and objective criteria: if an 

individual’s cellular or residential telephone number was called by, called on behalf of, or called for the 

benefit of Defendants for the purpose of promoting Defendants’ timeshare packages by offering a 

purportedly free cruise in exchange for taking an automated political survey or public opinion poll, he or 

she is a member of one of the Proposed Classes. See Knutson v. Schwan’s Home Serv., Inc., No. 3:12-CV0964-GPC-DHB, 2013 WL 4774763, at *5 (S.D. Cal. Sept. 5, 2013) (finding the proposed class 

ascertainable because “[w]hether a customer received an autodialed or artificial/prerecorded call may 

be determined objectively.”). Thus, the class definitions are based upon Defendants’ standardized 

conduct and procedures, and the Proposed Classes can be easily ascertained. See Rochford, 565 F.2d at 978 

(noting that “[i]n those cases in which class certification has been denied on account of 

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indefiniteness, the primary defect in the class definition has been that membership in the class was 

contingent on the state of mind of the prospective class members.”); Hinman, 545 F.Supp.2d at 806.

IV. The Classes Satisfy Rule 23(a)

Numerosity

The first express requirement of Rule 23(a)(1) requires that the class be so numerous that 

joinder of all members in a single action is impracticable. Fed. R. Civ. P. 23(a)(1). Generally, a class 

of forty or more satisfies this requirement. Hinman, 545 F. Supp. 2d at 803; see also McCabe v. Crawford 

& Co., 21 F.R.D. 631, 642 (N.D. Ill. 2002). Plaintiffs may rely on “common sense assumptions” to 

meet the numerosity requirement, and they need not establish an exact number of members in the 

class. See Jackson v. Sheriff of Cook County, No. 06-cv-04932006, WL 3718041, at *3 (N.D. Ill. Dec. 14, 

2006); Parker v. Risk Mgmt. Alt., 206 F.R.D. 211, 213 (N.D. Ill. 2002) (same).

As previously discussed, here, the Proposed Classes each number in the millions. CCL’s 

records indicate that it received nearly 2 million transferred political survey calls from DeJongh 

lasting over thirty seconds. See Ex. 12, Poole Dep. at Deposition Ex. 3 (recording the total amount 

of political calls made and then transferred to CCL between August 8, 2011 to August 5, 2012 to be 

1,945,866). And, DeJongh admits that more than 50 million total calls were made as part of the

political/public opinion survey campaign. Ex. 11, DeJongh FTC Dep. at 79:3-14. Thus, both Classes

plainly satisfy the numerosity requirement. 

Commonality

Next, under Rule 23(a)(2), there must be at least one question of law or fact that is common 

to the class. Fed. R. Civ. P. 23(a)(2). To meet the commonality requirement, the named representative 

must demonstrate that the proposed class members “have suffered the same injury.” Wal-Mart Stores,

Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 

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(1982)). In other words, commonality requires that the claims of the class “depend upon a common 

contention...of such a nature 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. 

Commonality is present where a “a common nucleus of operative fact” exists, even if as to 

one question of law or fact, Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992), and is often 

found where “defendants have engaged in standardized conduct toward members of the proposed 

class.” Whitten v. ARS Nat’l Servs. Inc., No. 00 C 6080, 2001 WL 1143238, at *3 (N.D. Ill. Sept. 27, 

2001). Thus, achieving commonality is a relatively low hurdle and “does not require that all or even 

most of the issues in the litigation be common issues...one common issue is enough.” Adams v. R.R. 

Donnelley & Sons, Nos. 98 C 4025, 96 C 7717, 2001 WL 336830, at *5 (N.D. Ill. Apr. 6, 2001).

Here, there are multiple common issues. To start, Plaintiffs’ and the Proposed Classes’ 

claims rely on a single contention: Defendants violated the TCPA by placing, causing to be placed, 

or benefitting from, robocalls that utilized a prerecorded voice to send the same type of message, 

from the same person, using the same technology. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.

1998) (“Common nuclei of fact are typically manifest where . . . the defendants have engaged in 

standardized conduct towards members of the proposed class.”). Those common facts give rise to 

several common and controlling factual and legal questions that will resolve each class members’ 

TCPA claims against Defendants in one stroke.

First, whether each Defendant can be held commonly liable to Plaintiffs and the putative 

class members for placing, causing to placed, or benefitting from the survey calls is a common 

question. Here, while CCL’s past contention that it cannot be liable for calls it did not directly place 

was labeled by the Court as “absurd,” in denying CCL’s motion to dismiss on that ground, see Dkt. 

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75 a 2 (holding that CCL’s “contention that liability attaches under the TCPA only to the party that 

placed the call...w[as] absurd indeed.”), Defendants Berkley and VOMT will likely undertake this 

same defense. And though Plaintiffs anticipate that any attempt to recycle this argument will 

similarly be unsuccessful, such a determination will nevertheless turn on the various contracts and 

relationships between Defendants—all which are the same. See Exs. 5-6 & 8-9. Thus, the ultimate 

answer to any question of Defendants’ liability can be commonly resolved. 

Second, whether Defendants’ survey calls utilized an artificial or prerecorded voice also 

presents a controlling common issue, the answer to which is undoubtedly “yes.” Indeed, CCL’s 

contracts with DeJongh’s companies explicitly state that they will “solicit[] survey takers by 

transmitting or causing to be transmitted prerecorded survey messages using an autodialer.” Exs. 8-

9. Likewise, it is undisputed that each and every survey call was made using a single autodialer and 

dialer service. See Ex. 1, DeJongh Dep. at 272:23-25 - 273:1-4; 371 (DeJongh explaining that the 

“same dialer” was used for all survey calls). Thus, because each class member was confronted with a 

prerecorded message containing materially identical content, which was delivered by the same 

autodialing equipment and service, the Court’s determination as to whether prerecorded calls were 

placed to the class members will similarly be resolved by consideration of the same operative facts. 

See Rosario, 963 F.2d at 1018.

Third, Defendants’ ability to assert, and ultimately satisfy their burden of proving, any 

attempted affirmative defense of consent also presents a common question. See Thrasher-Lyon v. 

Illinois Farmers Ins. Co., 861 F. Supp.2d 898, 905 (N.D. Ill. 2012) (“‘express consent’ is not an element 

of a TCPA plaintiff’s prima facie case, but rather is an affirmative defense for which the defendant 

bears the burden of proof.”). Here, neither DeJongh nor any of the other Defendants have 

presented even a shred of evidence demonstrating that anyone consented to their robocalls. Instead, 

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DeJongh testified that he wanted to indiscriminately call the entire country, Ex. 1, DeJongh Dep. at 

117-118, 258:23 – 259:1-4, and CCL admits that it made no effort to verify Plaintiffs’ consent to be 

called, see e.g. Ex. 3, CCL Lambert Dep. at 106-107 (stating that Caribbean “ha[d] no idea” whether 

individuals provided their consent to receive survey calls), and that the individuals called were 

randomly selected. See Ex. 24, February 13, 2012 Letter from CCL to Office of Ohio Attorney 

General. Thus, the question of whether Defendants can meet their burden of demonstrating consent 

can be decided on a class-wide basis, based on the absence of any such evidence. See, e.g., Paldo Sign 

& Display Co. v. Topsail Sportswear, Inc., No. 08-CV-5959, 2010 WL 4931001, at *2-3 (N.D. Ill. Nov. 

29, 2010) (Kennelly, J.) (Rule 23(b)(3) satisfied in TCPA case because method by which defendant 

obtained and used fax numbers made individualized consent unlikely, and further noting that 

“evidence regarding consent would be in [defendant’s] hands if it is anywhere, yet [defendant] has 

offered nothing to suggest that any of the recipients might have consented to receive faxed 

advertisement”); see also Hinman, 545 F. Supp. 2d at 806-07 (collecting authorities and agreeing that 

when thousands of calls are made “ ‘en masse ’... the question of consent may rightly be understood 

as a common question”).9

Fourth, any contention that Defendants are exempt from liability as a result of the so-called 

“political” nature of their surveys will similarly rise or fall with generalized proof. Specifically,

whether Defendants will be able to assert the defense that the calls were exempt under the TCPA 

because they were political in nature is another common issue—either the calls are altogether 

 

9 Additionally, and even though it is Defendants’ burden, Plaintiffs’ own evidence 

demonstrates that consent is lacking. Indeed, each of the Plaintiffs has affirmatively represented—

both through their written discovery responses and during their deposition testimony—that they 

never consented to receive Defendants’ political survey calls. See, e.g., Exs. 13-15. Likewise, 

thousands of individuals throughout the nation have lodged nearly identical complaints of these 

exact calls on online consumer complaint forums, and even with various state agencies, indicating 

that their consent to be contacted was similarly lacking. See Ex. 16 & 17.

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exempted or they are altogether violative of the TCPA. Here, the answer is that the calls are not 

exempt.

With respect to the cellular telephone class, the TCPA plainly prohibits all calls to cellular 

telephones made using automatic dialing technology and/or a prerecorded or artificial voice (both 

present in the calls at issue here) and made without the prior express consent of the called party. 47 

U.S.C. § 227(b)(1)(iii). There are absolutely no exceptions to this rule. Id.; see also Hamlett v. Santander 

Consumer USA Inc., No. 11-CV-6106 JFB GRB, 2013 WL 1150048, at *5 (E.D.N.Y. Mar. 19, 2013) 

(“the section governing calls to cell phones (which often charge recipients on a per-call basis), does 

not provide for an exemption”). With respect to the residential telephone class, the defense equally 

lacks merit. Even assuming there is an exemption for political calls made using auto-dialing 

equipment (which this Court previously rejected as “a non-starter” (see Dkt. 75)), that exemption 

plainly does not extend to telemarketing or dual-purpose calls that include an otherwise exempt 

automated message and an effort to sell goods or services. See Chesbro v. Best Buy Stores, L.P., 705 F.3d 

913, 917 (9th Cir. 2012) (holding unsolicited “robot-calls [that] urged the listener to ‘redeem’ his 

Reward Zone points, directed him to a website where he could further engage with the RZP, and 

thanked him for ‘shopping at Best Buy’” violated the TCPA) (citing FCC 2003 Report and Order at 

14097–98 ¶¶ 140–42); see also Ex. 19, Banks v. Caribbean Cruise Line, et al., Case No. 1:12-cv-00584-

JG-VMS, Dkt. 49, Report and Recommendation at 11-13, 26 n.11 (recommending denial of CCL’s 

motion for summary judgment, rejecting argument that the same calls at issue in this case fit under a 

political call exemption, and suggesting that “a legal finding that [the survey call] was made for a 

commercial purpose could be entered” by the district court); Ex. 20, Banks Docket Sheet at 4, Order 

Adopting Magistrate’s Recommendation and Report.

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Moreover, in disputing any political call defense, Plaintiffs will rely on common proof, which

would include, inter alia, proffering evidence of the monetary benefits realized by Defendants as a 

result of their survey calls, and of the statements made by VOMT and CCL’s principal Dan Lambert

in which he states that the political program was to be “the next great mousetrap” and a “a great way 

to get lots of sales.” Ex. 3, CCL Dep. at 189-90. Thus, the applicability of any political exemption 

defense asserted by Defendants, and the proof used to support or refute it, will not be unique to any 

one class member.

Fifth, and finally, the amount of statutory damages to which Plaintiffs and the class 

members are entitled is also a common question capable of determination on a class-wide basis. See 

Dukes, 131 S. Ct. at 2551. Here, Plaintiffs allege a single violation of the TCPA, which exists to 

address privacy violations caused by the annoying and invasive transmission of unsolicited 

telemarketing calls. See Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012). The TCPA 

provides for statutory injunctive relief and monetary damages of $500 per violation to remedy the 

injuries resulting from such violations, which may be trebled to $1,500 if Defendants’ conduct is 

proven willful. 47 U.S.C.§ 227(b)(3)(C). As such, calculating the amount of statutory damages, as 

well as proving that Defendants’ conduct was knowing and willful, and therefore that damages 

should be trebled, will be a collective task. See, e.g., Targin Sign Sys., Inc. v. Preferred Chiropractic Ctr., 

Ltd., 679 F. Supp. 2d 894, 898-99 (N.D. Ill. 2010) (availability of statutory damages in TCPA case 

made individualized damages inquiry unnecessary and class certification appropriate).

In sum, the common questions presented by the Plaintiffs are the exact sort found to apply 

in TCPA class actions, and justify class certification here. 

Typicality

Rule 23(a) also requires that the Plaintiffs’ claims are typical of the Proposed Classes. Fed. R. Civ. 

P. 23(a)(3). The purpose of the typicality inquiry is to ensure that the named plaintiffs will be proving 

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the class members’ claims as they pursue their own. See De La Fuente v. Stokely-Van Camp, Inc., 713 

F.2d 225, 232 (7th Cir. 1983) (typicality inquiry asks “whether the named representatives’ claims 

have the same essential characteristics as the claims of the class at large”). A named plaintiff’s claim 

is typical if it “arises from the same event or practice or course of conduct that gives rise to the 

claims of other class members and his or her claims are based on the same legal theory.” See id. 

(internal quotation omitted). Commonality and typicality overlap, and a finding of one usually results 

in a finding of the other. Id; see also Gen. Tel. Co. of Southwest, 457 U.S. at 158, n. 13 (“The 

commonality and typicality requirements of Rule 23(a) tend to merge.”). 

Here, the “essential characteristics” between Plaintiffs’ claims and those of the respective classes 

they seek to represent are more than significant—they are practically identical. First, each of the Plaintiffs’

and class members’ claims result from the exact same conduct—Defendants’ unsolicited automated 

political survey calls. Additionally, the automated surveys contained the exact same message—an 

offer for a purportedly “free cruise” in exchange for answering political or public opinion based

questions. Ex. 3, CCL Dep. Lambert at 64-65 (agreeing that “all the survey calls transferred to 

Caribbean Cruise Line mention[ed] a free cruise”). Moreover, all of the surveys had the same 

purpose—to benefit Defendants by creating potential leads that, if successful, would generate profits 

for Defendants. As a result, each of the Plaintiffs’ rights under the TCPA were violated by the same 

common course of conduct that Defendants subjected every other putative class member to, and 

Plaintiffs, like all of the other class members suffered the exact same injury. Nothing more is 

required, and typicality is satisfied.

Adequacy

Finally, Rule 23(a)(4) requires that the class representatives “fairly and adequately protect the 

interests of the class.” Fed. R. Civ. P. 23(a)(4). “This determination has two elements: the adequacy 

of the named plaintiffs’ counsel, and the adequacy of the named plaintiffs’ ability to protect the 

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separate and distinct interests of class members.” Adams, 2001 WL 336830 at *6. A named plaintiff 

will be adequate so long as his or her claims are not “antagonistic or conflicting...with other 

members of the class,” and he or she has a “sufficient interest in the outcome of the case to ensure 

vigorous advocacy.” Maxwell v. Arrow Fin. Servs., LLC, No. 03 C 1995, 2004 WL 719278, at *5 (N.D.

Ill. Mar. 31, 2004). For their part, class counsel is “adequate” if they are competent and have the 

resources necessary to sustain the complex litigation necessitated by class claims. See Gomez v. Ill. 

State Bd. of Educ., 117 F.R.D. 394, 401 (N.D. Ill. 1987).

Plaintiffs and their Counsel are undoubtedly adequate to represent the Proposed Classes 

here. Foremost, each Plaintiff has the same interests as the other members of their respective

classes. That is, they, like every other member of the Proposed Classes they seek to represent,

received unsolicited telemarketing calls from Defendants in violation of the TCPA. They thus share 

the same interest in ensuring that Defendants’ conduct does not continue in the future, and in 

recovering the statutory damages to which they are entitled. Further, Plaintiffs have and will 

continue to vigorously prosecute this case, including by responding to numerous sets of written 

discovery, providing Defendants with various documents, and sitting for their depositions in 

Chicago. Additionally, each of the Plaintiffs have a full understanding of the case, their duties as 

class representatives, and have affirmatively committed themselves to acting in the Proposed 

Classes’ best interests at all times. See e.g. Ex. 21, Excerpts of Deposition of Parkes at 76-78 (stating 

that he would “do whatever I need to do” in response to Defendants’ question about his ability to 

commit himself to the demands of this case); Ex. 22, Excerpts of Deposition of Stone at 94-96

(indicating her refusal to walk away from the litigation if Defendants compensated her individually, 

because she is a class representative and the putative class needs to be compensated too); Ex. 23, 

Excerpts of Deposition of Birchmeier at 36 (explaining his obligations as a class representative and 

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recognizing his “need to be a full participant in this case”). Moreover, none of the Plaintiffs has any 

interests antagonistic to the Proposed Classes.

Plaintiffs have also retained experienced and skilled counsel who have, and will continue to,

adequately represent the interests of Proposed Classes. See Exs. 25 & 26, Declaration of Scott 

Rauscher and attached Loevy & Loevy Firm Resume, and Declaration of Jay Edelson and attached 

Edelson LLC Firm Resume, respectively. That is, Plaintiffs’ Counsel have a wealth of experience in 

prosecuting complex class actions and have routinely served as class counsel in similar actions. Id. 

Thus, both Plaintiffs and their counsel are more than adequate to represent the Proposed Classes 

and the final requisite to certification under Rule 23(a) is satisfied. 

V. The Classes Satisfy Rule 23(b)(3)

The Proposed Classes also satisfy the dual requirements of Rule 23(b)(3): classwide issues 

predominate, and a class action is the superior method to handle this lawsuit.

Predominance

Rule 23(b)(3)’s “predominance requirement looks to whether the proposed class is 

‘sufficiently cohesive’ to warrant ‘adjudication’ by representation.” Williams-Green v. J. Alexander’s 

Restaurants, Inc., 277 F.R.D. 374, 383 (N.D. Ill. 2011) (citing Dukes, 131 S. Ct. at 2566)). This does 

not mean, however, that individual issues need be entirely absent. Rather, “[c]ourts in this district 

agreed that the presence of some limited issues requiring individual inquiry do not defeat 

predominance.” Savanna Grp., Inc. v. Trynex, Inc., No. 10-CV-7995, 2013 WL 66181, at *15 (N.D. Ill. 

Jan. 4, 2013). As such, “[p]redominance is satisfied where common evidence may prove the class 

member’s claims,” even in the presence of limited individual issues. Id. (citing Messner, 669 F.3d at 

815).

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Here, the foregoing discussion about the common issues confronting the Proposed Classes

and the adequacy of the Plaintiffs demonstrate that Rule 23(b)(3)’s predominance prong is satisfied. 

As discussed above, Defendants employed uniform practices with regard to each class member: (i) 

they used a single automated dialing system to deliver the recorded messages, (ii) each of which 

offered the called party a “free” cruise in exchange for taking a political or public opinion survey. 

Moreover, (iii) each call was designed to sell a more expensive vacation package and a timeshare 

interest for Defendants’ under their respective marketing agreements, and each was made (iv) 

without first obtaining the call recipient’s express consent. As such, Plaintiffs’ and the Proposed 

Classes’ claims will be subject to common proof, and this litigation should be adjudicated on a classwide basis. 

Additionally, where, as here, “a class challenges a uniform policy or practice, the validity of 

that policy or practice tends to be the predominant issue in the ensuing litigation.” Kernats v. Comcast 

Corp., No. 09 C 3368, 2010 WL 4193219, at *8 (N.D. Ill. October 20, 2010); Streeter v. Sheriff of Cook 

County, 256 F.R.D. 609, 614 (N.D. Ill. 2009) (same); Young v. County of Cook, 06 C 552, 2007 WL 

1238920, at *7 (N.D. Ill. Apr. 25, 2007) (same). Further, the sheer number of common issues 

demonstrates that such issues predominate. See supra at 11-16; Messner, 669 F.3d at 815 n.5.

Superiority

Finally, a class action is the superior method to resolve the Plaintiffs’ and the Proposed 

Classes’ claims. See Fed. R. Civ. P. 23(b)(3), as there is a substantial risk that class members’ claims 

would be forfeited absent the instant class action. Namely, the TCPA does not provide for statutory 

fee-shifting, so any potential individual judgment would likely be dwarfed by the attorneys’ fees and 

costs needed to get there. As a result, without certification, class members will lose their rights by 

attrition, and Defendants will be able to continue their mass campaign of illegal robocalls. See Pastor 

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v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1047 (7th Cir. 2007) (“The policy at the very core of 

the class action mechanism is to overcome the problem that small recoveries do not provide the 

incentive for any individual to bring a solo action prosecuting his or her rights.”). This alone 

demonstrates that resolution on a class-wide basis is the superior method of adjudicating Plaintiffs’ 

and the Proposed Classes’ claims. See Topsail Sportswear, Inc., No. 08-CV-5959, 2010 WL 4931001, at 

*2-3 (N.D. Ill. Nov. 29, 2010) (certifying class and noting that individual damages would likely be 

modest).

In addition, even if individual lawsuits were filed, hearing essentially the same case over and 

over again would be patently inefficient. In contrast, class certification would avoid the need for 

multiple individual actions, and with that the duplicative proceedings, which would inevitably result 

in enormous and unnecessary expense to both the judicial system and its litigants. Relatedly, class 

certification would promote consistency of rulings and judgments, while at the same time giving all 

parties the benefit of finality by resolution in a single action. This too, favors certification. 

CONCLUSION

For the reasons set forth above, Plaintiffs respectfully request that the Court enter an order 

(i) certifying the Proposed Classes, (ii) appointing Plaintiffs as the respective Class Representatives, 

(iii) appointing Jay Edelson of Edelson LLC and Scott Rauscher of Loevy & Loevy as Class 

Counsel, and (iv) granting any such further relief as this Court deems reasonable and just. 

Date: October 10, 2013 Respectfully submitted,

By: /s/ Scott Rauscher

Interim Co-Lead Class Counsel 

By: /s/ Jay Edelson

Interim Co-Lead Class Counsel 

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Jay Edelson

Rafey S. Balabanian

Christopher L. Dore

Eve-Lynn J. Rapp

EDELSON LLC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Telephone: (312) 589-6370

Email: jedelson@edelson.com

rbalabanian@edelson.com

cdore@edelson.com

erapp@edelson.com

Counsel for Stone, and Interim Co-Lead 

Class Counsel

Scott Rauscher

Jonathan I. Loevy

Michael I. Kanovitz

LOEVY & LOEVY

312 N. May Street, Suite 100

Chicago, Illinois 60607

Telephone: (312) 243-5900

Email: scott@loevy.com

jon@loevy.com

mike@loevy.com

Counsel for Birchmeier and Parkes, and 

Interim Co-Lead Class Counsel

Scott D. Owens

LAW OFFICES OF SCOTT D. OWENS, ESQ.

664 East Hallandale Beach Boulevard

Hallandale, Florida 33009

Telephone: (954) 306-8104

Email: scott@scottdowens.com

Counsel for Stone

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CERTIFICATE OF SERVICE

I, Scott Rauscher, an attorney, hereby certify that on October 10, 2013, I caused the 

foregoing to be filed by the Court’s CM/ECF system and to be served on all counsel of record.

/s/ Scott Rauscher

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