IN THE UNITED STATES DISTRICT COURT FOR THE

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

GRANT BIRCHMEIER, STEPHEN PARKES, 

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’ COMBINED REPLY IN SUPPORT OF CLASS CERTIFICATION

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................................1

ARGUMENT......................................................................................................................................................3

I. THE CLASS IS OBJECTIVELY ASCERTAINABLE.............................................................3

A. The Ascertainability Requirement Does Not Require Plaintiffs 

to Identify Each Class Member So Long as the Proposed 

Classes are Objectively Defined.........................................................................................3

B. Class Members Can Be Identified By Defendants’ Own Records, 

By the Records of Third Parties, and By Class Member Affidavits.........................6

i. Because there exist lists identifying the phone numbers called 

by Defendants, as well as the phone numbers used by them to 

make the calls, denying certification due to Defendants’ failure 

to maintain a complete call list would be improper .......................................6

ii. Courts in this District routinely allow the use of sworn 

testimony and affidavits to demonstrate class membership........................8

C. Individual and Merits-Based Issues Do Not Preclude Ascertainability ................9

i. Whether the ESG Defendants were responsible for 

effectuating the call ..................................................................................................9

ii. Whether the survey was “political” in nature, whether 

the same survey was given to each Class member, and 

whether an exemption applied..............................................................................11

iii. Whether the call recipient actually took the survey, 

opted for an upgraded vacation, or was required to view a 

timeshare presentation, and whether that presentation 

related to a Berkley timeshare...............................................................................12

iv. Whether the call was made to a landline or cell phone .................................13

v. Whether the call recipient suffered actual damages.......................................14

vi. Ascertaining Class membership will not require the 

Court to prematurely determine the issue of vicarious 

liability or the merits of the case...........................................................................14

II. THE PROPOSED CLASSES OTHERWISE MEET ALL OF RULE 23’S 

REQUIREMENTS .............................................................................................................................16

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A. Rule 23’s Numerosity Requirement is Satisfied............................................................16

B. Rule 23’s Commonality and Predominance Requirements are Satisfied...............18

C. Rule 23’s Typicality Requirement is Satisfied................................................................19

D. Rule 23’s Adequacy Requirement is Satisfied................................................................20

E. Rule 23’s Superiority and Manageability Requirements Are Satisfied ...................22

CONCLUSION..................................................................................................................................................25

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TABLE OF AUTHORITIES

Cases

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

Appleton Elec. Co. v. Advance-United Expressways, 494 F.2d 126 (7th Cir. 1974).............................................8

Boundas v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408 (N.D. Ill. 2012) ..................................................4, 8, 9

Bridgeview Health Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2011 WL 4628744 

(N.D. Ill. Sept. 30, 2011) ........................................................................................................................14 n.16

CE Design v. Beaty Const., Inc., No. 07 C 3340, 2009 WL 192481

(N.D. Ill. Jan. 26, 2009) ..........................................................................................................................5, 7-8, 24

Chapman v. Wagener Equities, Inc., 09 C 07299,, 2014 WL 540250 

(N.D. Ill. Feb. 11, 2014) .........................................................................................................................passim

Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012)...........................................................................11

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir. 1983) ............................................................19, 20

Eisen v. Carlisle & Jacqueline, 417 U.S. 156 (1974)..............................................................................................24

Foreman v. PRA III, LLC, No. 05 C 3372, 2007 WL 704478 (N.D. Ill. Mar. 5, 2007) ...............................16

GM Sign, Inc. v. Group C Cmcn’s, No. 08 C 4521, 2010 WL 744262 (N.D. Ill. Feb. 25, 2010)...................18

Green v. Serv. Master On Location Servs. Corp., No. 07 C 4705, 2009 WL 1810769 

(N.D. Ill. June 22, 2009).........................................................................................................................5, 22

Harris v. comScore, 292 F.R.D. 579 (N.D. Ill. 2013)...........................................................................................23

Herkert v. MRC Receivables Corp., 254 F.R.D. 334 (N.D. Ill. 2008) .................................................................8, 9 n.7

Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152 (N.D. Ill. 2009)...................................................12 

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

In re Folding Carton Antitrust Litig., 88 F.R.D. 211 (N.D. Ill. 1980).................................................................23-24

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

Report and Order, 18 FCC Rcd. 14014, 2003 WL 21517853 (F.C.C. July 2, 2003)..........................11

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

Request of ACA International for Clarification and Declaratory Ruling, 

23 F.C.C. Rcd. 559 (2008)......................................................................................................................11 n.12

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Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620 (N.D. Ill. 2007)......................................................................3, 4

Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292 (N.D. Cal. 2013) .....................................................................1, 12

Levitt v. Fax.com, No. 05-949, 2007 WL 3169078 (D. Md. 2007)...................................................................7 n.3

Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674 (S.D. Fla. 2013).........................................1, 13

Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012).............................................................7 .3

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

(N.D. Ill. Mar. 31, 2004).........................................................................................................................22

Messner v. Northshore Univ. Health System, 669 F. 3d 802 (7th Cir. 2012) ........................................................14, 19

Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953-54 (7th Cir. 2006)........................................................23

Northside Chiropractic, Inc. v. Yellowbook, Inc., No. 09 CV 04468, 2012 WL 3777010 

(N.D. Ill. Aug. 29, 2012).........................................................................................................................15

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

(N.D. Ill. Nov. 29, 2010)........................................................................................................................22

Pastor v. State Farm Mut. Auto. Ins. Co., 05 C 1459, 2005 WL 2453900 

(N.D. Ill. Sept. 30, 2005) ........................................................................................................................15

Phillips Randolph Enters., LLC v. Rice Fields, 2007 W 129052 (N.D. Ill. Jan. 11, 2007) ................................22

Quality Mgmt. & Consulting Servs., Inc. v. SAR Orland Food Inc., No. 11 C 06791, 

2013 WL 5835915 (N.D. Ill. Oct. 30, 2013)........................................................................................6, 7 n.3

Reliable Money Order, Inc. v. McKnight Sales Co., Inc. 281 F.R.D. (E.D. Wis. 2012).........................................21

Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992).............................................................................................18

Sadowski v. Med1 Online, LLC, No. 07 C 2973, 2008 WL 2224892 

(N.D. Ill. May 27, 2008)..........................................................................................................................17

Saf-T-Gard Int’l, Inc. v. Wagener Equities, Inc., 251 F.R.D. 312 (N.D. Ill. 2008)..............................................6, 7 n.3

Savanna Grp., Inc. v. Trynex, Inc., No. 10-CV-7995, 2013 WL 66181 

(N.D. Ill. Jan. 4, 2013).............................................................................................................................18, 19

Smith v. Greystone Alliance LLC, No. 09C5585, 2010 WL 2680147 (N.D. Ill. 2010)....................................8

State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) .................................................23

Targin Sign Sys., Inc. v. Preferred Chiropractic Ctr., Ltd., 679 F. Supp. 2d 894 

(N.D. Ill. 2010).........................................................................................................................................14

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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).......................................................................................12 n.13, 15

Rules & Statutes 

47 C.F.R. § 64.1200...............................................................................................................................................11 n.12

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

Fed. R. Civ. P. 23...................................................................................................................................................16, 24

Other

Manual for Complex Litigation § 21.222 (4th ed. 2004).................................................................................4

Newberg on Class Actions § 3:5 (4th ed. 2008) ...............................................................................................3, 5n.2

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INTRODUCTION

Starting in the summer of 2011, millions of people received unsolicited robocalls announcing 

they would receive a free cruise in exchange for taking a political or public opinion survey. The calls 

were designed to sell Caribbean Cruise Line’s vacation packages and Berkley’s timeshare interests, 

and they plainly violated the Telephone Consumer Protection Act’s (“TCPA”) prohibition on 

making unsolicited robocalls to residential and cellular telephones. See 47 U.S.C. § 227. Courts 

throughout the country routinely certify these types of cases, 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 unsolicited text message recipients); Agne v. Papa John’s Int’l, Inc., 

286 F.R.D. 559 (W.D. Wash. 2012) (same), and because essentially every issue can be determined on 

a classwide basis, certification is likewise appropriate here.

Incredibly, Defendants make no effort to argue the calls were authorized—the defense most 

defendants flock to when facing this type of case. Instead, Defendants pin their hopes of defeating 

certification on a single argument: that Plaintiffs have failed to satisfy Rule 23’s unwritten 

ascertainability requirement because they cannot yet specifically identify individual class members. 

Stated simply, Defendants are wrong on the law and the facts.

Defendants are wrong on the law because courts in this District and elsewhere have 

repeatedly held that plaintiffs need not identify every individual putative class member to satisfy Rule 

23. Instead, Plaintiffs must demonstrate that the Proposed Classes are capable of being ascertained 

by objective criteria, which they have done: any individual who received a call on his or her cellular 

or residential telephone offering a “free” cruise in exchange for taking a political or public-opinion 

survey is a member of one of the Proposed Classes.

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Defendants are wrong on the facts because Plaintiffs do have records identifying many of 

the telephone numbers that received the illegal survey calls. Specifically, Plaintiffs have received:

• three spreadsheets that CCL produced in discovery containing a total of 174,930

unique telephone numbers of individuals who unquestionably received the free 

cruise call and were subsequently transferred to CCL or one of is call centers, see 

Ex.27, Sampling of CCL0002996, CCCL0004523, CCL0005804; Ex. 28, CCL 

Responses to Birchmeier’s Third Set of Interrogatories at Resp. No. 18 

(explaining that these documents show “the customer’s phone number”); Ex. 29, 

Declaration of Ersin Ackini (explaining how the numbers within the respective 

documents were counted);

1

• a massive file of telephone numbers—including those of each of the remaining 

Plaintiffs—that the President of the ESG Defendants, Jacob DeJongh, originally

provided to Contract Center Compliance (“CCC”), his supposed “scrubbing 

database”, and which Plaintiffs have good reason to believe may contain all of 

the numbers that were uploaded into the dialer during the time period DeJongh 

subscribed to its services, Ex. 30, Sampling of CCC Data;

• contemporaneous consumer complaints made to regulatory authorities and 

online complaint boards, Exs. 16 & 17; and

• documents collected by the ESG Defendants identifying telephone numbers that 

received the survey calls. Def. Ex. K.

Thus, Defendants’ ascertainability concerns—which in reality are premature concerns about 

providing notice—do not provide a basis for denying class certification.

Defendants’ other arguments against Rule 23’s requirements simply mimic their arguments 

regarding ascertainability, they fare no better. In short, there should be no doubt that in this case, a 

class action is the superior method to adjudicate Plaintiffs and the Proposed Classes’ claims, and

Defendants’ attempts to confuse the issues through pure speculation should not stand in the way of

certification. 

																																																							 1 All exhibits cited in Plaintiffs’ motion and reply are numbered consecutively and without repetition. 

Plaintiffs motion attached 26 exhibits, so the first exhibit attached to their reply brief is Exhibit 27.

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ARGUMENT

I. THE CLASS IS OBJECTIVELY ASCERTAINABLE.

Defendants’ main challenge to certification relates to Plaintiffs’ ability to satisfy Rule 23’s 

implicit ascertainability requirements. Defendants claim the Proposed Classes are “amorphous” 

blobs of individuals that have not been and never could be identified without requiring the Court to 

make “arduous” individualized inquires. Defendants are wrong. Plaintiffs have demonstrated the 

Classes are ascertainable because (i) they are indisputably defined by reference to objective criteria, 

and (ii) there are presently a multitude of documents that identify Class members, which the parties 

can use to corroborate class membership. As for all the purported “individualized” issues that call 

ascertainability into question, all that needs to be said is they are irrelevant to the ascertainability 

analysis and, as speculation, offer no probative value. Ultimately, Plaintiffs have readily established 

that the Proposed Classes are ascertainable.

A. The Ascertainability Requirement Does Not Require Plaintiffs to Identify 

Each Class Member So Long as the Proposed Classes are Objectively 

Defined.

Defendants’ central argument against ascertainability is based on a fundamental 

misunderstanding of the law. Defendants argue the Proposed Classes are not ascertainable because 

the members of the Proposed Classes haven’t been identified. (Berkley Opp. at 6; CCL Opp. at 10, 

12.) That is not the law.

Class members need not be specifically identified for certification to be appropriate. See Lau 

v. Arrow Fin. Servs., LLC, 245 F.R.D. 620, 624 (N.D. Ill. 2007) (“Plaintiff need not identify each class 

member to secure class certification.”); Newberg on Class Actions § 3:5 (4th ed. 2008) (same). 

Rather, the focus of Rule 23’s ascertainability requirement is, and has always been, on whether 

classes members “can be ascertained by reference to objective criteria,” such as by “reference to 

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defendants’ conduct,” Hinman v. M and M Rental Ctr., Inc., 545 F. Supp. 2d 802, 806 (N.D. Ill. 2008), 

as opposed to “subjective criteria, like the class members’ state of mind.” Lau, 245 F.R.D. at 624.

Judge Feinerman, in Boundas v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408 (N.D. Ill. 

2012), recently rejected the same arguments Defendants make here. The plaintiffs in Boundas sought 

certification of a class that received “promotional gift cards [that were later] voided . . . despite 

having credit remaining[.]” Id. at 411. The proposed class included individuals who currently held a 

gift card and individuals who had thrown one away, only a “small proportion of [which could be] 

identified by [the defendant’s records.]” Id. at 417. In certifying the proposed class, Judge Feinerman 

explained:

It is enough that the class be ascertainable. The class in this case consists primarily of 

individuals holding an Abercrombie promotional gift card whose value was voided 

on or around January 30, 2010. That criterion is as objective as they come. The class 

also includes individuals who threw away their cards because they were told that the 

balances had been voided. That criterion is not as objective as actually holding a 

physical card, but anybody claiming class membership on that basis will be required 

to submit an appropriate affidavit, which can be evaluated during the claims 

administration process. . . .

Id. at 417-18 (citing Manual for Complex Litigation § 21.222, at 270 (4th ed. 2004) (class definition 

“must be precise, objective, and presently ascertainable”)).

The same reasoning presently applies, as the complexity of ascertaining Proposed Class 

members in this case is no more difficult (and is likely less difficult) than it was in Boundas. There, 

class members who had thrown away their cards would have to swear—through an “affidavit 

procedure” like that anticipated by Defendants here (see CCL Opp. at 18)—not just that they had 

possessed a gift card, but that the card (i) had value on it when thrown away and (ii) was discarded in 

reliance upon the defendant’s representations that it had expired. See Boundas, 280 F.R.D. at 417. 

Here, presently unidentified Class members (i.e., those not appearing in Defendants’ records) can 

simply swear that they received an offending call on a cellular or residential telephone during the 

relevant time period. Finally, if Plaintiffs prevail at trial, affidavits from Class members, “can be 

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evaluated during the claims administration process” to address any remaining concerns, just as 

Boundas suggested. See id. 

In this case, there is no question that Plaintiffs’ class definitions are objectively defined: if an

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

the benefit of Defendants, offering a purportedly free cruise in exchange for taking an automated 

political or public opinion survey, he or she is a member of one of the Proposed Classes. Courts in 

this District, and elsewhere, have consistently held similar objectively defined TCPA classes satisfy 

Rule 23’s ascertainability requirement. See CE Design v. Beaty Const., Inc., No. 07 C 3340, 2009 WL 

192481, at *3-4 (N.D. Ill. Jan. 26, 2009) (“A class is identifiable if its members can be ascertained by 

reference to objective criteria,” including a “defendant’s conduct,” such as receiving an unsolicited 

fax); see also Green v. Serv. Master On Location Servs. Corp., No. 07 C 4705, 2009 WL 1810769, at *3-4 

(N.D. Ill. June 22, 2009) (holding a class of all persons who received a fax with a certain message 

was appropriate because it “provide[d] ‘precise, objective criteria that would be within the personal 

knowledge of the potential class member,’ [] making it [] apparent from the face of the notice 

whether a person is a [] member of the class.”); Agne, 286 F.R.D. at 566 (holding a class of “all 

persons...sent text messages advertising Papa John’s pizza” to be “precise and objective”).2 

Thus, because the Proposed Classes here are defined by reference to receipt of Defendants’ 

calls offering a free cruise in exchange for taking a political survey, Plaintiffs’ Proposed Classes 

should likewise be found to have satisfied the ascertainability requirement.

																																																							 2 Defendants seem to suggest that the Proposed Classes are not ascertainable because they would be 

administratively burdensome and because Plaintiffs have “not answer[ed]... who [will] get notice of and be 

bound by the decision in this case.” (CCL Opp. at 11-12.) Ultimately, these challenges relate to class notice 

and are not properly considered in connection with a motion to certify. See Agne, 286 F.R.D. at 566 (“[n]otice 

considerations technically do not come into play until [after] class [] certifi[cation],”) (citing Newberg on Class 

Actions § 4:35). Nonetheless, as such issues can affect class manageability, Plaintiffs address such concerns 

infra (see § II.E), where they are more appropriately addressed.

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B. Class Members Can Be Identified By Defendants’ Own Records, By the 

Records of Third Parties, and By Class Member Affidavits. 

Despite these objective criteria, Defendants contend that the Proposed Classes are not 

ascertainable because “no records of any of the calls” exist, and as a result, it would be impossible to 

determine who received a free cruise call. (CCL Opp. at 10, 12; Berkley Opp. at 6.) Put differently, 

Defendants contend class certification should be denied because they failed to create (or maintain) 

records identifying everyone who was subjected to the illegal calling campaign. They are wrong.

i. Because there exist lists identifying the phone numbers called by 

Defendants, as well as the phone numbers used by them to make the 

calls, denying certification due to Defendants’ failure to maintain a 

complete call list would be improper.

As explained above, Plaintiffs have records identifying hundreds of thousands of telephone 

numbers that received the illegal robocalls. The fact that there may not be complete records of each 

and every call made does not warrant the denial of class certification. The cases on which 

Defendants rely do not hold otherwise. 

For example, in Saf-T-Gard Int’l, Inc. v. Wagener Equities, Inc., 251 F.R.D. 312 (N.D. Ill. 2008), 

the court found the class to be unascertainable because “there appear[ed] to be no list of numbers 

from which the parties (or the court) may reasonably assume class members could be identified.” Id. 

at 312 (emphasis in the original). But, importantly, the court noted that even a “subset of [a] 

universal list” could have been sufficient. Id. Similarly, in Quality Mgmt. & Consulting Servs., Inc. v. SAR 

Orland Food Inc., No. 11 C 06791, 2013 WL 5835915 (N.D. Ill. Oct. 30, 2013), the only list of 

potential class members came from defendant’s competitor, and that competitor “refused to identify 

the source of the database” and “admitted that he ha[d] no personal knowledge of how [defendant] 

compiled the recipient list”. Id. at *2. The court there thus rejected plaintiff’s efforts to rely on 

defendant’s competitor’s list, finding it was “unreliable,” and “would require the [c]ourt to rely on a 

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long chain of unsupported inferences.” Id. at *4.

3 Unlike Saf-T-Gard and Quality Mgmt., in this case 

Plaintiffs possess various records allowing them to identify Class members, and as Defendants 

produced the majority of these lists, Defendants cannot question their reliability.4

Finally, Defendants’ failure to ensure that adequate records were kept or preserved should 

not be rewarded. Specifically, although CCL may have at some point requested that DeJongh 

maintain his records, it was anything but diligent in ensuring that he did so (such as requiring that he 

produce the call records during the calling campaigns or cutting off its participation with the 

program if/when he didn’t).

5 The truth is that CCL never required DeJongh to maintain precise 

records, and then failed to ask that its telephone carriers (or that its agent call centers) maintain their 

records of the calls once the litigation began. Ex. 28, CCL Responses to Birchmeier’s Third Set of

Interrogatories at Resp. No. 19 (admitting that “CCL has not otherwise requested or received ‘call 

detail records’ from [its] telephone service providers such as Sprint”).

As such, denying certification because Plaintiffs do not possess a full list of call records here 

would essentially reward Defendants for undertaking their violation of federal law on a large scale. 

Beaty Const., 2009 WL 192481, at *3-4 (“class certification will not be barred “because the defendant 

																																																							 3 Defendants also reference Levitt v. Fax.com, No. 05-949, 2007 WL 3169078 (D. Md. 2007) and Marcus 

v. BMW of North America, LLC, 687 F.3d 583, 593-94 (3d Cir. 2012), but those cases are also distinguishable. 

In Levitt, plaintiffs had absolutely no information about the phone numbers that were called, and regardless, 

the Court cited the individualized nature of the consent—specifically as it related to the need to “make a 

determination for each class member as to...the absence of a prior express business relationship”— as the 

basis for decertifying the class. 2007 WL 3169078, at *5-7. Likewise, in Marcus, the court did not hold that 

records were always required, but rather, cautioned against the use of affidavits where they would need to 

include statements about substantive, and potentially subjective, issues such as whether and how defendants’ 

products damaged class members. Marcus, 687 F.3d. at 593-94.

4 Importantly, in both Saf-T-Gard and Quality Mgmt., the Court did not address the possibility of using 

class members’ affidavits as a means of ascertaining the proposed classes.

5 Indeed, the program at issue continued unabated for a period of time after Plaintiffs initiated their 

lawsuit. Ex. 12, Poole Dep. at Dep. Ex. 3 (showing that leads from the survey calls at issue were still being 

received in August 2012). Moreover, CCL’s founder acknowledged that CCL destroyed documents (after this 

litigation started), which showed the identity of individuals who accepted the cruise offer. Ex. 31, 

Supplemental Excerpts of CCL 30(b)(6) Dep. at 165-167 (Lambert testifying that “[d]eal sheets are collected 

and then destroyed after a customer’s data is entered[,]” and similarly, that CCL does not keep records of 

which leads are linked to specific marketing programs because “[t]here [wa]s no reason for [CCL]to know 

that”). 

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has lost or destroyed the list of its alleged victims.”); see also, e.g., Appleton Elec. Co. v. Advance-United 

Expressways, 494 F.2d 126, 139 (7th Cir. 1974) (class actions cannot be defeated by destroying 

records); Smith v. Greystone Alliance LLC, No. 09C5585, 2010 WL 2680147, at *3 (N.D. Ill. 2010) 

(failure to maintain a list of contacts will not defeat class certification); Agne, 286 F.R.D. at 566 (“it 

would be unfair to deny class certification because of the potential difficulty of identifying the class 

members where that difficulty is mostly due to the fact that [defendant] [] destroyed the call lists that 

it used.”).

ii. Courts in this District routinely allow the use of sworn testimony and 

affidavits to demonstrate class membership. 

In addition to using the lists of telephone numbers discussed above, class membership can 

be established by affidavit or claim form, a process that courts in this District have repeatedly 

authorized. As noted above, Judge Feinerman approved the use of affidavits to identify class 

membership in Boundas. See Boundas, 280 F.R.D. at 417. Likewise, in Beaty—where the plaintiff 

alleged the defendant’s hiring of a third-party vendor to send out facsimile advertisements to 

thousands of businesses violated the TCPA—the court held that it would not “bar class certification 

because the defendant has lost or destroyed the list of its alleged victims.” 2009 WL 192481, at *4. 

Relying on Herkert v. MRC Receivables Corp., 254 F.R.D. 334, 348 (N.D. Ill. 2008), the Beaty Court 

went on to explain that because “a potential class can be defined in reference to objective criteria, in 

this case, the defendants’ conduct,” class membership could be determined through the 

“represent[ations] to the Court—via affidavit under the penalty of perjury—that they received the 

fax in question on the date in issue.” Beaty, 2009 WL 192481, at *4; see also Herkert, 254 F.R.D. at 348 

(holding that information provided on affidavits allowed “the classes [to be] ascertainable based on 

objectively identifiable criteria”).

The same reasoning applies here. Because ascertaining class membership relies on objective 

criteria (whether each Class member received an offending call) and their subjective reaction to that 

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call is irrelevant, Class members can be identified through sworn statements about Defendants’ 

conduct in addition to Defendants’ records. Specifically, Class members can indicate (i) that they 

received a call offering a free cruise (ii) that they were asked to take a political and/or public opinion 

survey, (iii) and the time period in which the call was received.6 Affidavits from the Class members, 

like in Boundas, could then “be evaluated during the claims administration process” if Plaintiffs 

prevail at trial. Boundas 280 F.R.D. at 417; see also Agne, 286 F.R.D. at 566 (holding that “whether 

other consumers received the messages can be determined using claim forms and phone records, as 

well as any records [p]laintiff may be able to obtain from [the party charged with actually sending the 

message]”).

7

C. Individual and Merits-Based Issues Do Not Preclude Ascertainability. 

Finally, Defendants try to invent a number of individual issues to challenge the objectivity of 

the class definitions, but none have any bearing on the ascertainability analysis.

i. Whether the ESG Defendants were responsible for effectuating the 

call. 

Defendants argue that there is no way to trace all of the calls back to them because

supposedly (i) “ESG was not the only entity conducting [a free cruise] survey[] for CCL,”8 and (ii) 

																																																							 6 Defendants claim that determining “whether the call was made since May 24, 2008” creates an 

individual issue precluding certification (Berkley Opp. at 12), but that is hardly the case. Testifying to the 

specific date or time of the alleged violation is plainly objective, and a fact of almost every class action. 

Moreover, testimony suggests that the calls occurred during a discrete, and relatively short, period of time 

between August 2011-August 2012. See Ex. 12, Poole Dep. at Dep. Ex. 3 (recording transferred calls from 

August 8, 2011 to August 5, 2012); Ex. 32, Supplemental Excerpts of Broomfield FTC Dep. at 66-68 

(explaining the calls started around September 2011 and ended around the Fall of 2012). Defendants’ 

concerns are just manufactured. 

7 Alternatively, should the Court deem it necessary, Plaintiffs could limit the class definitions to only 

those individuals whose membership in one of the Proposed Classes could be confirmed by their telephone 

statements and/or Defendants’ records. See Herkert, 254 F.R.D. at 348 (“[a]ny doubt over the ascertainability 

of the class can be resolved by amending the class definition.”).

8 Defendants do not dispute that the other free cruise calls they discuss—i.e. those without a political 

or public opinion survey were made for the benefit of CCL (or its affiliated entity Plaza Resorts), VOMT, and 

Berkley. CCL and VOMT apparently attempt to distance themselves from these calls, however, by taking 

issue with Plaintiffs’ statement that DeJongh used money he received from CCL to purchase the telephone 

numbers used in this case. Specifically, CCL and VOMT contend that DeJongh’s testimony shows that CCL 

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other companies were conducting surveys for CCL that were political in nature. (CCL Opp. at 15.) 

This argument is a non-starter. For one, the evidence doesn’t support it. As noted above, 

Defendants’ Marketing Director testified that the political survey program at issue was the only 

calling program involving outbound surveys. Ex. 33, Supplemental Excerpts of Poole Deposition at 

38-39, 50, 167. Moreover, even if CCL actually participated in more than one political survey 

program, Berkley, VOMT, and CCL all stood to benefit collectively by way of their lead agreement,

and it would not make the proposed class definitions in this case any less objective.9 And as has 

already been explained, anyone who didn’t receive a political or public-opinion survey offering a free 

cruise in exchange for taking the survey would not be part of one of the Proposed Classes.

10 Class 

members shouldn’t have any problem attesting to that fact, as each one of the named-Plaintiffs had 

no problem recalling the calls in their deposition, including former Plaintiff Vigus who specifically 

did not recall hearing the name “Political Opinions of America,” a telltale sign of the political survey 

calls. Ex. 34, Supplemental Excerpts of Vigus Deposition at 65.

11

																																																																																																																																																																																		

did not purchase the telephone numbers. (CCL Opp. at 4.) But that was never the point, as Plaintiffs never 

said that CCL directly purchased the numbers. Rather, Plaintiffs noted that DeJongh used money from CCL 

to purchase the numbers, and the evidence supports that statement. See Ex. 32, Supplemental Excerpts of 

Broomfield FTC Dep. at 64-67.

9 Despite that there is no evidence that Defendants actually utilized the other SROs, to the extent the 

Court believes their existence presents an issue, the class definition could easily be modified to include only 

those individuals who could attest to hearing one of DeJongh’s sham polling companies—e.g. Political 

Opinions of America or Independent Research Group—mentioned during the free cruise calls.

10 Regardless, Defendants’ claim that “30% to 40% of the calls made did not include the cruise 

incentive” (CCL Opp. at fn. 25; Berkley Opp. at 10), is belied by the evidence, and specifically by previous 

representations made to various government agencies about the calls at issue in this case. See Ex. 43, August 

13,2012 Letter from ESG to Office of the Kentucky Attorney General (stating that“[f]or each and every call 

completed, the individual contacted was informed that by completing the survey, they would receive the free 

incentive.”) (emphasis added); Id., August 6, 2012 Letter from ESG to Office of the Illinois Attorney General 

at 2 (indicating that it has records of 72,000 people it called in Illinois, and that each received a free cruise 

offer).

11 The Court may recall that Ms. Vigus received a non-political call, which among other things, gave rise 

to her motion to separate the case (Dkt. 151)—never mind that it was ultimately dropped in the face of 

Defendants’ motion for sanctions against Ms. Vigus and her counsel. (Dkt. 156.)

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ii. Whether the survey was “political” in nature, whether the same 

survey was given to each Class member, and whether an exemption 

applied.

Next, Defendants contend that because ESG conducted “different surveys...with different 

scripts,” it would be necessary to determine which type of survey was used in order to ascertain class 

membership. (CCL Opp. at 16; Berkley Opp. at 10.) Presumably, Defendants’ theory here is that 

determining the content of each survey call—i.e. determining whether the calls contained a 

“political,” “religious,” or “informational survey,”—and determining whether the survey’s results 

were ultimately provided to a political organization will be necessary to determine whether each call 

was impermissible under the TCPA. This argument equally lacks merit. 

CCL admits that each of the unsolicited free cruise calls were made with the goal of 

increasing vacation and timeshare sales for Defendants, see Ex. 3, CCL Dep. at 189-90 (CCL’s 

President referring to the political program as “the next great mousetrap” and a “great way to get 

sales”), which means they violated the TCPA regardless of whether the calls included an otherwise 

exempt survey. See Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 917 (9th Cir. 2012) (“The FCC has 

determined that so-called “dual purpose” calls, those with both a customer service or informational 

component as well as a marketing component, are prohibited [under the TCPA].”) (citing In re Rules 

and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 

14014, 14095 ¶ 136, 2003 WL 21517853 (F.C.C. July 2, 2003).12 As a result, the content of the calls 

																																																							 12 Indeed, at least one other court has already rejected Defendants’ argument that the exact same calls 

at issue in this case are exempt. See Exs. 19, 20. Moreover, as the “political call exemption” does not apply to 

calls made in violation of 47 U.S.C. 227(b)(1)(a)(iii), this issue is irrelevant to the Cellular Telephone Class. See 

In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for

Clarification and Declaratory Ruling, 23 F.C.C.R. 559, ¶ 11, (2008) (stating that 47 U.S.C. 227(b)(1)(a)(iii)’s 

“prohibition applies regardless of the content of the call”). In any event, although the parties have referred to 

a “political” call exemption, the exemption applies equally to calls made on behalf of political organizations 

and other non-profits. See 47 C.F.R. § 64.1200(a)(3). Therefore, it does not matter whether a call involved a 

“political” organization or a different type of non-profit for determining whether the exemption might 

apply—that issue could be commonly decided. 

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and whether the results of the survey were potentially provided to some third party has no 

significance here. 13

iii. Whether the call recipient actually took the survey, opted for an 

upgraded vacation, or was required to view a timeshare presentation, 

and whether that presentation related to a Berkley timeshare.

Defendants also argue that individual inquires would be required to determine which 

individuals “elected an upgraded vacation package...[and] attended a [Berkley] sales presentation,” 

as well as whether that presentation related to a Berkley timeshare, in order to ascertain the 

Proposed Classes. (CCL Opp. at 6; Berkley Opp. at 10.) These are desperate arguments. 

The TCPA makes it unlawful for Defendants “to make” or “to initiate” any telephone call 

using an artificial or prerecorded voice. See 47 U.S.C 227(b)(1)(A), (b)(1)(B). Hence, the violation 

occurs as soon as the call is placed. See e.g. Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152, 

1159 (N.D. Ill. 2009) (holding that “on its face, the [TCPA] prohibit[s] the sending of unsolicited fax 

advertisements and make[s] no reference at all to receipt, much less to printing.”) (emphasis added); 

Lee, 289 F.R.D. at 293 (the TCPA “prohibits the sending of text message [calls], without prior 

consent, through use of an ‘automatic telephone dialing machine’”) (emphasis added).

14 Thus, what 

happened once a call was answered (or even if the call wasn’t answered)—such as whether class 

members took the survey, opted for an upgraded vacation, or were required to view a timeshare 

presentation—does not create an actual issue, much less an individual one that would prevent the 

class members from being ascertained. 

																																																							 13 Nor is it relevant that the scripts differed depending on what entity’s name DeJongh attached to the 

call, so long as the calls (i) offered a free cruise (ii) in exchange for taking a political or public opinion survey 

(iii) for the ultimate benefit of Defendants. As a result, each of the call recipients suffered the same injury—a 

violation of the TCPA—and any difference in the type of questions that were asked is irrelevant. See, e.g., WalMart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (holding that commonality is satisfied where the named 

representative and the proposed class members “have suffered the same injury”). 

14 Defendants attempt to distinguish Lee by claiming that the defendants there “did not even challenge 

class certification.” (CCL Opp. at 7.) That’s a misread of the docket in that case. See Lee, No. 11-cv-00043 

(N.D. Cal.), Dkt. No. 78, Opposition to Plaintiff’s Motion for Class Certification. One of the defendants 

didn’t oppose certification, but the main defendant certainly did.

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Furthermore, the assertion that the “calls in question would relate to Berkley only [if] a call 

recipient...agree[d] to attend a sale presentation,” (Berkley Opp. at 10), is equally unavailing. 

Defendants admit that they provided leads from these calls to each other exclusively, so any call 

offering a free cruise was made to benefit each of the Defendants. See Ex. 3, CCL 30(b)(6) Dep. at 

146-148 (explaining per their contracts, CCL provided leads to VOMT exclusively, and VOMT in 

turn provided those leads exclusively to Berkley); see also Ex. 4-6. That every call did not result in the 

sale of a timeshare or cruise does not affect Defendants’ ultimate liability.

iv. Whether the call was made to a landline or cell phone.

Defendants’ argument that fatal individual issues exist because there is “no way” to 

determine whether the class members received calls on their landline or cellular telephone, (CCL 

Opp. at 15-16; Berkley Opp. at 10), similarly does not prevent the Proposed Classes from being 

objectively ascertained. Aside from the fact that Class members could easily indicate as much in their 

affidavits, on their claims forms, or by providing their telephone bills, this argument ignores the

available technology that is capable of making this distinction. For example, an expert could be 

retained to perform a “cell-phone scrub,” which would distinguish between cell phone and landline 

telephone numbers. See Manno, 289 F.R.D. at 684 n.3 (discussing with approval the fact that plaintiff 

“enlist[ed] an expert to perform a ‘cell phone scrub’ [to] segregate[e] mobile numbers from 

landlines.”). Further, online verification sites—like searchbug.com and phonevalidator.com—could 

likewise verify to what type of phone a number is assigned. Thus, the distinction between residential 

and landline phones does not create an individualized issue or preclude ascertainability.

15

																																																							 15 Notably, the distinction between the landline and cellular telephone calls in this case has little 

relevance given that none of the calls were truly political in nature and all were made using an artificial or prerecorded voice. See 47 U.S.C. 227 (b)(1)(A)(iii), (b)(1)(B). 

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v. Whether the call recipient suffered actual damages.

Next, Defendants argue that to determine class membership, individual proof will be 

required to determine actual damages because each class member may have had “a different 

telephone plan, stayed on the phone for varying amounts of time, [or] accepted the complimentary 

cruise.” (CCL Opp. at 16.) Also not true. 

Given that the TCPA is violated once the call is made, (see supra § I.C.ii), and Plaintiffs seek 

to recover statutory and not actual damages, none of these issues will affect ascertainability. 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). Thus, the Court should reject this argument as well.

16

vi. Ascertaining Class membership will not require the Court to 

prematurely determine the issue of vicarious liability or the merits of 

the case.

Finally, Defendants contend that membership in the Proposed Classes is not ascertainable 

because it would require the Court to delve into the merits of “whether Berkley is vicariously liable 

to the putative classes.” (Berkley Opp. at 13-15.) Although they do not explicitly say it, what Berkley 

appears to be arguing here is that Plaintiffs have proposed impermissible fail-safe classes—i.e. classes 

that are “defined so that whether a person qualifies as a member” would require individual 

determinations of “whether [each] person has a valid claim.” Messner v. Northshore Univ. Health System, 

669 F. 3d 802, 825 (7th Cir. 2012). This argument doesn’t withstand scrutiny either. 

																																																							 16 Relatedly, Defendants assert that issues of “standing” would present individual inquires precluding 

ascertainability, (CCL Opp. 16), but they do not explain how or why. To the extent Defendants raise this 

issue because they believe individual inquiries will be required to determine whether the call recipient was the 

actual owner of the telephone, this is a non-issue as “ownership of the receiving machines is not required by 

the [TCPA].” Chapman v. Wagener Equities, Inc., 09 C 07299, 2014 WL 540250, at *4 (N.D. Ill. Feb. 11, 2014)

(quoting Bridgeview Health Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2011 WL 4628744, at *3 (N.D. Ill. Sept. 30, 

2011)).

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First, membership in the Proposed Classes does not depend on individual inquiries regarding 

Berkley’s liability. Rather, the Court can objectively determine whether a particular individual is a 

member of one of the Proposed Classes if he or she received an automated call that offered a free 

cruise in exchange for taking a political survey. As all of these calls were designed to benefit all of 

the Defendants—including Berkley—each Defendant’s liability will ultimately turn on common 

questions about their knowledge of, their involvement in, and the benefit they gained from the calls. 

See Agne, 286 F.R.D. at 568 (granting class certification and holding that “[w]hether [defendants] can 

be held liable for the conduct of its franchisees is a common question whose answer is ‘apt to drive 

resolution of the case’”) (citing Dukes, 131 S. Ct. 2551). As a result, the proposed class definitions 

“merely set[] the boundaries of the class” and “resolving the substantive merits” of Plaintiffs’ claims 

are not required. See Hinman, 545 F. Supp. 2d at 807 (rejecting the argument that a “class defined to 

include individuals who did not consent...reache[d] too far into the merits of the case”). 

The cases Defendants rely on for this point are inapposite, as the courts in each of those 

cases would have been required to determine the merits of each potential class member’s claims 

individually to ascertain class membership. See Northside Chiropractic, Inc. v. Yellowbook, Inc., No. 09 CV 

04468, 2012 WL 3777010, at *4-5 (N.D. Ill. Aug. 29, 2012) (requiring the court to determine 

whether each customer was “beguiled and misled by [the defendant’s] false representations” to 

identify class membership); Pastor v. State Farm Mut. Auto. Ins. Co., No. 05 C 1459, 2005 WL 2453900 

(N.D. Ill. Sept. 30, 2005) aff’d sub nom. Pastor v. State Farm Mut. Auto Ins. Co., 487 F.3d 1042 (7th Cir. 

2007) (holding that the class was not “objectively ascertainable” because it would require the court 

to individually determine whether each putative class members’ car was or was not in “usable” 

condition to ascertain their membership in the class). 

Unlike Northside and Pastor, there are no unique inquiries necessary to determine whether an 

individual will be a Class member here. Class membership is based on objective criteria, and the

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ultimate determination of Defendants’ liability under the TCPA is an issue to be commonly decided 

in the future. See Foreman v. PRA III, LLC, No. 05 C 3372, 2007 WL 704478, at *6 (N.D. Ill. Mar. 5, 

2007) (rejecting defendants’ reliance on Pastor where it was “still necessary for the court to examine 

whether [their] practices that served the basis for class membership... constitute[d] a FDCPA 

violation”). Notably, Defendants have not cited a single case where the eventual need to determine 

vicarious liability in a common manner—which is the case here—precluded class certification based 

on ascertainability or otherwise.17

In sum, none of purported individual issues raised by Defendants prevent the Court from 

ascertaining the Proposed Classes here. The Court should find ascertainability readily satisfied.

II. THE PROPOSED CLASSES OTHERWISE MEET ALL OF RULE 23’S 

REQUIREMENTS.

The bulk of Defendants’ remaining Rule 23 challenges essentially mimic their arguments 

against ascertainability. For many of the same reasons, they must be rejected. 

A. Rule 23’s Numerosity Requirement is Satisfied. 

First, in a single sentence, Defendants assert that Plaintiffs do note meet Rule 23(a)(1)’s 

numerosity requirement “because the class cannot be ascertained.” (CCL Mot. at 16.) This 

argument, while convenient, is without support. 

Numerosity is established where the class is so numerous that joinder of all members in a 

single action is impracticable, Fed. R. Civ. P. 23(a)(1), and an “exact number or identity of the class 

members” need not be established. Hinman, 545 F. Supp. 2d at 806. Instead, Plaintiffs may rely on 

																																																							 17 Although addressing the issue of liability would be premature at this juncture, Berkley’s discussion of 

the various forms of vicarious liability and how they would apply to Defendants nonetheless lack merit. For 

one, the Court has already indicated that Defendants’ reliance on the fact that Plaintiffs did not know each 

Defendant by name is meaningless. Ex. 35, October 16, 2013 Transcript of Proceeding at 33:8-11 (explaining 

that “nobody would have heard of who the [actual responsible] entities were”). Moreover, Berkley has 

omitted significant information that will be relevant to any vicarious liability determination, like that it was 

aware of, and received complaints about the calls, but nevertheless continued to receive leads from 

CCL/VOMT and benefit from them. See, e.g., Ex. 36, Sample of Consumer Complaints to Berkley.

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“common sense assumptions” to meet the numerosity requirement. Id. Here, the record

demonstrates that such “common sense assumptions”—while not inappropriate—are not even 

necessary, as the evidence clearly establishes numerosity.

Specifically, in addition to DeJongh’s testimony that 50 million total calls were made as part 

of the calling campaign, Ex. 11, DeJongh FTC Dep. at 79:13-14—a fact on which Defendants 

repeatedly themselves rely throughout their briefs—Defendants’ internal records demonstrate that at 

minimum the class totals nearly two million individuals. See Ex. 12, Pool Dep. at Deposition Ex. 3 

(recording the total amount of political calls made and then transferred to CCL to be 1,945,866); see 

also Ex. 27, Sampling of CCL002966, CCL 004523, CCL005804. In addition, thousands of 

documented complaints by Class members corroborate that the Proposed Classes are sufficiently 

numerous. Ex. 16.18 See Hinman, 545 F. Supp. 2d at 805 (“Although there is no ‘bright line’ test for 

numerosity, a class of forty is generally sufficient”). These records alone easily establish numerosity. 

See Sadowski v. Med1 Online, LLC, No. 07 C 2973, 2008 WL 2224892, at *3 (N.D. Ill. May 27, 2008) 

(rejecting the argument that proposed class size was “nothing more than speculation because the list 

of specific fax numbers... that received the faxes at issue no longer exist”). 

																																																							 18 Defendants label Plaintiffs’ use of these contemporaneous complaints from websites as “egregious,” 

because, according to them, they (i) do not have dates associated with them, (ii) relate to other types of calls, 

and because they (iii) “do[] not mention CCL or VOMT.” (CCL Opp. at 9-10, 14-15.). Defendants’ attempt 

to create hysteria should be ignored. First, as indicated on the face of the documents, each complaint plainly 

lists the specific year, month, and date the complaint was made under the “name” of the call recipient who 

lodged it. Ex. 16. Second, the attorney affidavit attached by CCL to argue that the complaints relate to other 

types of calls, contains only excerpts of the complaints that Defendants’ selected and pulled from January 31, 2014—

nearly two years after the calls were made. The attorney affidavit does not include the actual print outs of the 

complaints or the dates they were lodged; that the types of calls complained of are different is understandable, 

given the fact that the illegal calls at issue in this case ended long before January 31, 2014. Third, the Court 

has already rejected the idea that class members would be able to identify the Defendants given the great 

effort that was made to conceal the identity of the companies behind or that stood to benefit from the calls. 

Ex. 35. 

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B. Rule 23’s Commonality and Predominance Requirements are Satisfied. 

In challenging the existence of commonality and predominance, Defendants essentially make 

the same arguments that they made in the context of ascertainability. They fare no better this time 

around.

Here, common issues apt to drive resolution of the litigation abound because all Class 

members received the same calls, made by (or on behalf of) the same Defendants, using the same 

technology, and resulting in the same injury. See Hinman, 545 F. Supp. 2d at 806 (finding 

commonality satisfied where defendant engaged in a “standard course of conduct,” of transmitting 

“fax broadcasts [] en masse”); see also Agne, 286 F.R.D. at 567. This alone is enough to establish 

commonality, see Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (commonality is satisfied 

where “a common nucleus of operative fact” exists, even if as to one question of law or fact), and 

none of the so-called individual issues offered by Defendants demonstrate that these common issues 

do not predominate. 

Foremost, Defendants’ challenge regarding “consent’ is unavailing.19 For this point, 

Defendants simply state—without citing to any supporting authority—that “the question [of 

consent] turns on highly individualized determinations that thwart the conclusion that this is [a] 

common issue.” (CCL Opp. at 19-20.) This type of “unsupported speculation” cannot defeat 

commonality or predominance, and does not warrant the denial of class certification. See, e.g.,

Savanna Grp., Inc. v. Trynex, Inc., No. 10-CV-7995, 2013 WL 66181, at *9 (N.D. Ill. Jan. 4, 2013); 

GM Sign, Inc. v. Group C Cmcn’s, No. 08 C 4521, 2010 WL 744262, at *3 (N.D. Ill. Feb. 25, 2010) 

(holding that “[defendant’s] unsupported speculation that some of the proposed class members” 

consented could “not warrant denial of class certification.”). This is especially true here, where 

Plaintiffs have proffered evidence specifically demonstrating that consent is highly unlikely. See Ex. 

																																																							 19 Defendants confuse Plaintiffs’ first common issue, “whether each Defendant can be held commonly 

liable to Plaintiffs” (Mot. at 12), and instead label it as a discussion about “consent.” (CCL Opp. at 17.)

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1, DeJongh Dep. at 117-18, 258:23-259:1-4 (testifying that he wanted to indiscriminately call the 

entire country); Ex. 3, CCL 30(b)(6) Dep. at 106-07 (Lambert stating that CCL “ha[d] no idea” 

whether individuals consented to receive the survey calls).

Likewise, Defendants are wrong when they assert that determining whether the calls are 

subject to a political exemption requires individual inquiries “to identify the content of the calls” 

(CCL Opp. at 20-21.) As discussed above, all of the calls made by DeJongh’s companies contained a 

materially identical public opinion or political survey, and all were made for Defendants’ benefit. See 

Ex. 3, CCL 30(b)(6) Dep. at 146-48 (describing how CCL provided each and every lead exclusively 

to VOMT, and how VOMT then provided those exclusively to Berkley). Thus, there is no real 

question that the ultimate resolution of the exemption issue will be resolved on a classwide basis. See 

Savanna Grp., Inc., 2013 WL 66181, at *15 (“[p]redominance is satisfied where common evidence 

may prove the class member’s claims,” even in the presence of limited individual issues) (citing 

Messner, 669 F.3d at 815). 

C. Rule 23’s Typicality Requirement is Satisfied. 

Similarly, typicality is satisfied because each Plaintiff received at least one call that offered a 

free cruise in exchange for taking a political/public opinion survey and suffered the same injuries, 

which gave rise to the same TCPA claim and right to recover statutory damages. See De La Fuente v. 

Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (typicality satisfied where “the named 

representatives’ claims have the same essential characteristics as the claims of the class at large”).

Nevertheless, Defendants argue against typicality by repeating the same arguments they 

assert against ascertainability. According to them, because Plaintiffs (i) “did not all participate in the 

survey,” (ii) were not each “offered” and did not each “accept a cruise,” and (iii) did “not all 

purchase a timeshare from Berkley,” their damages and defenses will vary, and their claims will not 

be typical of the proposed class members. (CCL Opp. at 22-24.) Like those before them, these 

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arguments should be rejected. As discussed above, Defendants’ concerns have no bearing on the 

“essential characteristics” (e.g., receipt of unsolicited calls offering a free cruise in exchange for taking 

a survey) of Plaintiffs’ and the Proposed Classes’ TCPA claims. See Chapman, 2014 WL 540250, at 

*11 (“[f]actual distinctions between the representative parties [] and the class members’ claims do 

not destroy typicality.”) (citing De La Fuente , 713 F.2d at 232). As such, typicality is satisfied.

D. Rule 23’s Adequacy Requirement is Satisfied. 

Similarly, Rule 23’s adequacy requirement is easily satisfied. Defendants do not challenge the 

adequacy of proposed class counsel, and they would have no basis to do so. Similarly, Plaintiffs are 

more than adequate as they (i) have the same interests as the other putative Class members, (ii) are 

committed to vigorously prosecuting the Proposed Classes’ claims, and have (iii) no antagonistic 

interests.20(Mot. at 18-19.) Defendants’ challenges to Plaintiffs’ adequacy should be rejected.

Foremost, Defendants’ assertion that Plaintiffs Stone and Birchmeier are inadequate because 

they have failed to produce or preserve relevant documents is patently false and borders on bad 

faith. Birchmeier readily produced all the relevant documents sought from him by Defendants—

including his call records, phone bills, and screen shots of the offending calls he received—and did 

not produce any personal notes or research, because no such documents exist. Ex. 37, Supplemental 

Excerpts of Birchmeier Deposition at 71-75. Likewise, Stone has produced all of the call records she 

possesses, and there can be no question that the evidence demonstrates that she received 

Defendants’ calls. Ex. 38, Nov. 25, 2014 – Jan. 15, 2015 Email Chain at 10-11.21 Defendants’ claim 

																																																							 20 Defendants make the strange statement that the history of blunders involving former plaintiff Vigus 

somehow makes clear that the current Plaintiffs face adequacy issues (CCL Opp. at 15. ) It is not clear what 

Defendants are referring to, as Ms. Vigus, represented by her own counsel (who also represented her when 

she filed her lawsuit), dropped her case after it came to light that certain of her allegations were untrue.

21 Defendants’ suggestion that Stone is inadequate because she could not match all the calls “identified 

in her interrogatories to her telephone records” (CCL Opp. at 25), is unfounded. First, Stone has repeatedly 

testified that she answered the calls on numerous occasions and heard POA mentioned, confirmed that she 

completed the survey on at least one occasion, and even recalled the type of questions she was asked. Ex. 39, 

Supplemental Excerpts of Stone Dep. at 24­26; 32­35; 54­55, 62:4­9; 63:21­25. Moreover, at least one of 

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that Stone refused to produce her communications about the calls with her former attorney is also

wrong. See id. (making clear that Stone produced all of her intake communications with her 

attorney’s office and that “no [other records of the] communications between Stone and [] her 

attorneys reflecting the date and time of the calls she received” existed). 

Similarly, that Plaintiffs could not identify each of the Defendants by name until after the 

commencement of this litigation says nothing of their adequacy. As Defendants effectuated this 

robocalling scheme in a manner specifically designed to conceal their identity, this fact is 

unsurprising. See Ex. 35, Oct. 16, 2013 Trnscpt. at 33:8-11. This is particularly true given that, here, 

CCL has gone to great lengths to avoid detection. Ex. 42; cf. Mitchell FTC Dep. at 37-38 (explaining

that Lambert named him President of CCL because Mitchell has a common name that makes it 

difficult for consumers to trace complaints to the company). In reality, Plaintiffs here have more 

than sufficient knowledge about and commitment to this case to satisfy the adequacy requirement. 

See Ex. 21-23. See also Reliable Money Order, Inc. v. McKnight Sales Co., Inc. 281 F.R.D. 327, at 333-34

(E.D. Wis. 2012) (rejecting defendant’s adequacy argument that plaintiff was “merely a pawn of the 

class lawyers”).

Finally, none of the purported “unique” differences asserted by Defendants—such as 

whether certain Class members took the survey, accepted the cruise, or were the actual owner of the 

telephone numbers that received the calls—would make Plaintiffs’ interests antagonistic to, or in 

conflict with those of Proposed Class members. Again, the TCPA violations occurred when the calls 

																																																																																																																																																																																		

Defendants’ calls does appear on Stone’s phone records, and her interrogatories now reflect that accordingly. 

Ex. 40, Stone Supplemental Interrogatory Response to CCL. Resp. No. 2 (adding another one of Defendants’ 

calls to her interrogatory responses, the number for which appears in her phone records). As such, the notion 

that her “TCPA claims are driven by someone else” (CCL Opp. at 25), is absurd. Finally, although 

Defendants fail to acknowledge it, the reason many of Stone’s calls do not appear in her telephone records is 

because (i) her landline carrier admits that it “does not keep or have records for every incoming or outgoing 

call,” Ex. 41, Composite of Stone Production at RS000040, and likewise because, (ii) as explained by her 

phone provider, given the nature of her pre-paid cell phone, certain of the call detail records do “not show 

transaction[s when] the phone [wa]s not in use.” Id. at RS000789. 

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were placed.22 What happened on the calls is not sufficient to create a conflict between Plaintiffs and

the Proposed Classes’ claims. (Mot. at 18.) See Maxwell v. Arrow Fin. Servs., LLC, No. 03 C 1995, 

2004 WL 719278, at *5 (N.D. Ill. Mar. 31, 2004) (finding that 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.”). 

As such, Plaintiffs are adequate class representatives.

E. Rule 23’s Superiority and Manageability Requirements Are Satisfied. 

Finally, Defendants proffer two main arguments against a finding that Plaintiffs have 

satisfied Rule 23(b)(3)’ superiority requirements. Neither is convincing. 

First, Defendants argue that a class action is not a superior method for adjudicating TCPA 

class actions such as this one, because it will “generate massive damages and attorneys’ fees.” (CCL 

Opp. 30.) Courts in this District “squarely reject” this argument. See Green, 2009 WL 1810769, at *3 

(rejecting defendant’s argument that “Congress did not intend that the TCPA serve as a vehicle to 

bring class complaints[,]” and further explaining that the Seventh Circuit has “forcefully” rebuffed 

the argument that the TCPA’s potentially large penalties result in “[un]sound public polic[ies]”) 

(citation omitted); see also Phillips Randolph Enters., LLC v. Rice Fields, 2007 W 129052, at *3 (N.D. Ill. 

Jan. 11, 2007) (Congress is not required to “to make illegal behavior affordable.”). Moreover, this 

Court has recognized that there is little incentive to pursue TCPA claims independently, which 

makes class resolution the superior method for aggrieved individuals, such as the class members 

here, to pursue their claims. See e.g. Paldo Sign & Display Co. v. Topsail Sportswear, Inc., No. 08-CV5959, 2010 WL 4931001, at *2-3 (N.D. Ill. Nov. 29, 2010) (Hon. Kennelly, M.) (certifying a TCPA 

																																																							 22 Indeed, as discussed supra (Section I.C.iii.), because the TCPA prohibits Defendants from making or 

initiating calls, see 47 U.S.C 227(b)(1)(A), (b)(1)(B), what happened after the calls were made has no bearing on 

Plaintiffs’ ability to represent the Proposed Classes. Similarly, as the TCPA does not require that the call 

recipient be the actual owner of the telephone on which the call was received, no conflict exists here either. 

See Chapman, 2014 WL 540250, at *4 (“ownership of the receiving machines is not required by the Act”).

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class and noting that individual damages would likely be modest). Indeed, the Seventh Circuit—in 

the case of Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953-54 (7th Cir. 2006)—has done away 

with the argument that the threat of annihilative damages should act as a bar to class certification. 

There, the Court stated that:

The reason that damages can be substantial, however, does not lie in an “abuse” of 

Rule 23; it lies in the legislative decision to authorize awards as high as $1,000 per 

person, 15 U.S.C. § 1681n(a)(1)(A), combined with GMACM's decision to obtain the 

credit scores of more than a million persons.

Many laws that authorize statutory damages also limit the aggregate award to any 

class. For example, the Fair Debt Collection Practices Act says that total recovery 

may not exceed “the lesser of $500,000 or 1 per centum of the net worth of the debt 

collector”. 15 U.S.C. § 1692k(a)(2)(B)(ii). The Truth in Lending Act has an identical 

cap. 15 U.S.C. § 1640(a)(2)(B) (substituting “creditor” for “debt collector”). See also 

15 U.S.C. § 1693m(a)(1)(B), 12 U.S.C. § 4010(a)(2)(B), and 12 U.S.C. § 4907(a)(2)(B). 

Other laws, however, lack such upper bounds. See 15 U.S.C. § 1679g(a) (Credit 

Repair Organizations Act); 15 U.S.C. § 1667d (Consumer Leasing Act). The Fair 

Credit Reporting Act is in the cap-free group.

... Maybe suits such as this will lead Congress to amend the Fair Credit Reporting 

Act; maybe not. While a statute remains on the books, however, it must be enforced 

rather than subverted. An award that would be unconstitutionally excessive may be 

reduced, see State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 

S.Ct. 1513, 155 L.Ed.2d 585 (2003), but constitutional limits are best applied after a 

class has been certified. Then a judge may evaluate the defendant's overall conduct 

and control its total exposure. Reducing recoveries by forcing everyone to litigate 

independently—so that constitutional bounds are not tested, because the statute 

cannot be enforced by more than a handful of victims—has little to recommend it.

Id.

Next, Defendants contend that certification would present manageability problems because 

Plaintiffs cannot identify and contact each and every one of the proposed class members directly, 

and even if they could, such notice would require “substantial resources.” (CCL Opp. at 28-29.) As 

an initial matter, although the number of class members may seem large, that alone does not make 

the class unmanageable or the cost of notice prohibitive. See Harris v. comScore, 292 F.R.D. 579, 565-

566 (N.D. Ill. 2013) (certifying a class of approximately 10 million individuals in the United States 

and another 55 million individuals world-wide); see also In re Folding Carton Antitrust Litig., 88 F.R.D. 

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211, 216-17 (N.D. Ill. 1980) (citing Eisen v. Carlisle & Jacqueline, 417 U.S. 156 (1974) (certifying a class 

of 3,750,000)). Moreover, Plaintiffs must ensure only that class members receive the “best notice 

that is practicable under the circumstances,” Fed. R. Civ. P. 23 (C)(2)(B), and the type of direct 

notice suggested by Defendants would not be required. See Beaty, 2009 WL 192481, at *10. 

Indeed, the court in Beaty addressed this issue under near identical circumstances. There, the 

plaintiff sought to certify a class of unsolicited fax recipients and, because the master lists of call 

recipients was lost or destroyed, planned to provide notice by publication only. Beaty, 2009 WL 

192481, at *10. Defendant opposed plaintiff’s proposed notice plan, arguing that it would fail to 

identify those individuals who did “not remember receiving the fax in question.” Id. The Court 

rejected this argument, explaining that Rule 23 did not require “perfect notice”. Id. The Court 

further held that “plaintiff should be afforded [] flexibility with respect to providing notice to 

unknown, potential class members[,]” and especially in this case, where “the list of potential 

plaintiffs was destroyed by [defendant] or its agent.” Id. 

As in Beaty, where direct notice can’t be effectuated, publication notice would be reasonably 

practicable and would not create any manageability issues. To be sure, such notice could easily be 

circulated in nationwide newspapers and magazines, through an online media campaign, and even 

on Defendants’ websites and online complaint boards, which the potential class members here are 

likely to view. Moreover, and in addition to the notice effectuated in Beaty, Plaintiffs could 

potentially use the existing records of the class members’ phone numbers—and ultimately others 

obtained through further discovery—to identify class members, and confirm class membership. 

Such flexibility is necessary given Defendants’ failure to maintain adequate records. When 

considered against the tremendous burdens that bringing individual actions would create, Beaty, 2009 

WL 192481, at *10, along with the barriers that would prevent the class members from litigating 

their claims individually, Plaintiffs’ Proposed Classes would not be unmanageable. See Agne, 286 

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F.R.D. at 566, n. 6 (evaluating the potential burdens of notice relative to 23(b)(3)’s other factors and 

holding that notice—“even if [d]efendants are ultimately unable to produce complete lists”—would 

not be unmanageable).

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 PC and Scott Rauscher of Loevy & Loevy as Class Counsel, 

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

Date: March 3, 2014 By: /s/Rafey S. Balabanian

Interim Co-Lead Class Counsel 

Date: March 3, 2014 By: /s/ Scott R. Rauscher

Interim Co-Lead Class Counsel

Jay Edelson

jedelson@edelson.com

Rafey S. Balabanian

rbalabanian@edelson.com

Eve-Lynn J. Rapp

erapp@edelson.com

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Counsel for Stone, and Interim Co-Lead 

Class Counsel

Scott R. Rauscher

scott@loevy.com

Michael I. Kanovitz

mike@loevy.com

Jonathan I. Loevy

jon@loevy.com

LOEVY & LOEVY

312 N. May Street, Suite 100

Chicago, Illinois 60607

Tel: 312.243.5900

Fax: 312.243.5902 

 

Counsel for Birchmeier and Parkes, and 

Interim Co-Lead Class Counsel

Scott D. Owens

scott@scottdowens.com

LAW OFFICES OF SCOTT D. OWENS, ESQ.

664 East Hallandale Beach Boulevard

Hallandale, Florida 33009

Tel: (954) 306-8104 

 

Counsel for Stone

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1

CERTIFICATE OF SERVICE

I, Eve-Lynn J. Rapp, an attorney, hereby certify that on March 3, 2014, I caused the 

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

/s/ Eve-Lynn J. Rapp

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