IN THE UNITED STATES DISTRICT COURT 

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. 

No. 1:12-cv-04069 (N.D. Ill.) 

Honorable Matthew F. Kennelly 

MOTION FOR LEAVE TO FILE AMENDED CONSOLIDATED COMPLAINT

Plaintiffs Grant Birchmeier (“Birchmeier”), Stephen Parkes (“Parkes”), and Regina Stone 

(“Stone,” and together with Birchmeier, and Parkes, “Plaintiffs”), on behalf of themselves and the 

Certified Classes of others similarly situated, respectfully move for leave to amend their

Consolidated Class Action Complaint (the “Complaint”) against Defendants Caribbean Cruise Line, 

Inc. (“Caribbean Cruise Line”), Economic Strategy Group, Economic Strategy Group, Inc., 

Economic Strategy LLC (collectively the “ESG Companies”), The Berkley Group, Inc. (“Berkley” 

or the “Berkley Group”), and Vacation Ownership Marketing Tours, Inc. (“VOMT,” and 

collectively, “Defendants”), stating as follows:

Introduction

1. Plaintiffs seek leave to amend their Complaint pursuant to Federal Rule of Civil 

Procedure 15(a)(2) to add Gerarado Aranda as an additional named Plaintiff and to conform the 

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allegations of their Complaint to the facts adduced during discovery. A copy of the proposed First 

Amended Consolidated Complaint (the “Amended Complaint”) is attached hereto as Exhibit A.

2. Plaintiffs are not seeking to add any new claims or Defendants, and they are not 

seeking any additional discovery.

Background

3. Pursuant to the Court’s August 11, 2014 Order (the “Certification Order”), Plaintiffs 

represent themselves and a Class of others similarly situated, defined as follows:

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

more telephone calls were made [to his or her cellular telephone] by, on behalf, 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) between August 2011 and August 

2012, (5) whose (i) telephone number appears in Defendants’ records of those calls 

and/or the records of their third party telephone carriers or the third party telephone 

carriers of their call centers or (ii) own records prove that they received the calls—

such as their telephone records, bills, and/or recordings of the calls—and who 

submit an affidavit or claim form if necessary to describe the content of the call.

(Dkt. 241 at 31.)

4. In addition, Plaintiff Stone represents herself and a Class of others similarly 

situated, defined as follows:

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

more telephone calls were made [to his or her landline residential telephone] by, on 

behalf, 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) between August 2011 

and August 2012, (5) whose (i) telephone number appears in Defendants’ records of 

those calls and/or the records of their third party telephone carriers or the third 

party telephone carriers of their call centers or (ii) own records prove that they 

received the calls—such as their telephone records, bills, and/or recordings of the 

calls—and who submit an affidavit or claim form if necessary to describe the content 

of the call.

(Id.)

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5. At this time, none of the named Plaintiffs fall into category (5)(i) of the Class 

Definitions, as their telephone numbers do not appear in Defendants’ records of the survey calls at 

issue in this case.

6. Although the Court recognized this in its Certification Order and certified the 

Classes nonetheless, it explained that Plaintiffs “should consider” adding an additional named 

plaintiff whose number appears within Defendants’ records as the “Classes as a whole likely would 

benefit”:

One issue plaintiffs should consider as this litigation proceeds is whether they should 

designate additional class representatives, a possibility plaintiffs themselves raise in 

their supplemental memoranda. See id. (“[O]ther putative class members who do 

appear in those records have indicated that they are interested in, and willing to, 

serve as named plaintiffs in this case.”). Plaintiffs may be well-advised to do so, 

considering the fact that the named plaintiffs appear to represent only those class 

members whose membership is determined via plaintiffs' second proposed 

identification method. The classes as a whole likely would benefit from having class 

representatives whose phone numbers appear on the list of 930,000 that plaintiffs 

have presented.

(Dkt. 241 at 21.)

7. Gerardo Aranda is a class member whose cellular telephone number appears in 

Defendants’ records and the records of a third party telephone carrier of a CCL call center.

8. Mr. Aranda wishes to become a named Plaintiff in this case, and in order to best 

serve the Classes’ interest—as discussed in the Court’s Certification Order—Plaintiffs respectfully 

request that he be added as such.

9. Therefore, Plaintiffs now file the instant motion seeking to add Mr. Aranda as an 

additional named Plaintiff. The proposed Amended Complaint also seeks to conform the allegations 

to the information that Plaintiffs learned in discovery, including by providing additional details 

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describing the long-standing relationship between Berkley, VOMT, and CCL, which subject Berkley 

to liability under a joint venture/partnership theory.

1

Argument

10. Leave to amend a complaint should be liberally allowed in the interests of justice. See

Fed. R. Civ. P. 15(a); see also Bressner v. Ambroziak, 379 F.3d 478, 484 (7th Cir. 2004) (leave to amend 

should be granted liberally at any time before judgment). “In the absence of any apparent or 

declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave 

sought should, as the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962); see 

also Siwula v. Correct Care Solutions, LLC, 1:12-cv-02096, Dkt No. 140 (N.D. Ill. Mar. 8, 2015) 

(Kennelly, J.) (permitting amendment after summary judgment because, among other things, 

amendment would not cause undue prejudice and would aid in determination of merits).

11. Leave to amend should be granted here for numerous reasons. Foremost, and as 

recognized by the Court’s Order, adding Mr. Aranda is “well-advised” and will be beneficial to the 

“Classes as a whole,” as it will allow them to have a representative whose telephone number appears 

within Defendants’ records. (Dkt. 241 at 21.) Under these circumstances, such an amendment is

routinely permitted after certification. See, e.g., Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 

2006) (“Substitution of unnamed class members for named plaintiffs who fall out of the case 

because of settlement or other reasons is a common and normally an unexceptionable (‘routine’) 

1 Parties are not required to plead legal theories. See, e.g., McDonald v. Household Int'l, Inc., 425 

F.3d 424, 427 (7th Cir. 2005) (“This court has repeatedly held that pleaders in a notice system do not 

have any obligation to plead legal theories.”) Plaintiffs identify this theory of liability here only 

because they have added additional facts supporting the theory in their proposed amended 

complaint. Plaintiffs have also disclosed this theory of liability to Berkley in response to Berkley’s 

interrogatories to Plaintiff.

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feature of class action litigation both in the federal courts and in the Illinois courts.”); see also Fed. R. 

Civ. P. 23(c)(1)(C)(“[a]n order that grants or denies class certification may be altered or amended 

before final judgment.”).

12. Further, as Mr. Aranda’s claims are the same as those already alleged and certified in 

this case, no party would suffer any prejudice by permitting Plaintiffs to amend their complaint to 

add Mr. Aranda as an additional class representative2 and to conform their allegations to the 

evidence. Nor will there be undue delay, as Plaintiffs do not seek to change the March 16, 2015 factdiscovery deadline (other than for the limited purpose of allowing Defendants to depose Mr. 

Aranda, if they choose to do so),

3 and permitting the amendment will not affect any other dates—

with respect to the notice plan or otherwise—as there is currently no scheduling order in place.

13. As such, allowing Plaintiffs to amend the complaint is in the interest of justice.

Conclusion

14. Wherefore, for the reasons set forth above, Plaintiffs respectfully request that the

Court enter an order (i) granting them leave to their proposed Amended Complaint, and (ii) granting 

any other relief that the Court deems reasonable and just.

2 Aranda received the same type of survey call as other class members, on his cellular 

telephone. Therefore, his claims are typical of other class members. He similarly satisfies the 

adequacy requirement. (Ex. 1 ¶¶ 9, 36.)

3 Although fact discovery is set to close in this case on March 16, 2015, as stated above, 

Plaintiffs submit that no deadlines would need to be altered unless Defendants chose to depose Mr. 

Aranda, who will be made available promptly upon Defendants’ request. Mr. Aranda is likewise 

prepared to promptly provide Defendants with written discovery responses to any discovery 

requests that have previously been issued to Birchmeier, Parkes, or Stone, without requiring 

Defendants to formally propound such discovery and within an accelerated period of time. Under 

these circumstances, nothing else would need to slow down, and the litigation can proceed without 

delay.

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Respectfully submitted,

/s/ Scott Rauscher

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 Rauscher 

scott@loevy.com 

Michael 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 CoLead 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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