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IN THE UNITED STATES DISTRICT COURT 

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 situation, 

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. 

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Case #: 1:12-cv-04069 

Related to: Case #: 1:13-cv-00903 

 Case #: 1:13-cv-00908 

Honorable Matthew F. Kennelly 

CARIBBEAN CRUISE LINE, INC. AND VACATION OWNERSHIP 

MARKETING TOURS, INC.’S JOINT STATEMENT OF UNDISPUTED MATERIAL 

FACTS IN SUPPORT OF THEIR MOTIONS FOR SUMMARY JUDGMENT 

Defendants Caribbean Cruise Line, Inc. (“CCL) and Vacation Ownership Marketing 

Tours, Inc. (“VOMT”), by and through undersigned counsel, pursuant to Rule 56 of the Federal 

Rules of Civil Procedure and Northern District of Illinois Local Rule 56.1, hereby file this Joint 

Statement of Undisputed Material Facts In Support of Their Motions for Summary Judgment, 

and states as follows: 

I. STATEMENT OF UNDISPUTED MATERIAL FACTS 

A. Parties, Jurisdiction and Venue 

1. The named Plaintiffs in this lawsuit are Grant Birchmeier (“Birchmeier”), 

Stephen Parkes (“Parkes”), Regina Stone (“Stone”), and Gerardo Aranda (“Aranda”).1

 

1. See Consolidated Amended Complaint, Docket Entry (“DE”) 289. 

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2. This Court has federal question subject matter jurisdiction under 28 U.S.C. § 

1331, and venue is proper pursuant to 28 U.S.C. § 1391.2

B. Facts Specific to CCL 

3. CCL is a company that markets and sells cruise and vacation packages.3 

4. On or about September 12, 2011, CCL entered into a Supplier Agreement with 

Economic Strategy Group (“ESGP”).4 

5. On or about September 12, 2011, CCL entered into a Supplier Agreement with 

Employment for America (“EFA”).5 

6. The SROs’ contractual relationship with CCL was defined by the Supplier 

Agreements.6 

7. A company called Linked Service Solutions (“LSS”) brokered the Supplier 

Agreements between ESGP and CCL, which is the only relationship that ESGP, EFA and 

Political Opinions of America (“POA”) (collectively, the “SROs”) had with CCL.7 

8. CCL did not know or have any control over where the SROs received their 

telephone numbers or which person or entity actually made the telephone calls.8 

9. The SROs are survey research companies with contractual relationships with 

 

2. See DE 289, ¶¶7-8; CCL’s Answer and Affirmative Defenses at DE 290, ¶¶7-8; VOMT’s 

Answer and Affirmative Defenses at DE 292, ¶¶7-8. 

3. Declaration of Dan Lambert for CCL (“CCL Dec.”), attached hereto as Exhibit 1, at ¶ 2; 

CCL Depo., p. 16, 24 (Portions of the deposition of the Daniel Lambert, the Fed.R.Civ.P. 30(b)(6) 

representative of CCL, are attached hereto as Composite Exhibit 2, and will be referred to as (“CCL 

Depo., p._”)); DeJongh Depo., p. 20. (Portions of the deposition of Jacob DeJongh are attached hereto as 

Composite Exhibit 3, and will be herein referred to as (“DeJongh Depo., p._”)). 

4. A true and correct copy of the Supplier Agreement between CCL and ESGP is attached 

hereto as Exhibit 4. 

5. A true and correct copy of the Supplier Agreement between CCL and EFA is attached 

hereto as Exhibit 5. Exhibits 4 and 5 shall collectively be referred to herein as the “Supplier 

Agreements”.

6. DeJongh Depo., pp. 41-42, 127, 290, 354-355. 

7. DeJongh Depo., pp. 21, 23, 127, 354, 376-377. 

8. CCL Depo., p. 74-75; DeJongh Depo., pp. 342-343, 349. 

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various political groups under which the SROs collect information through political surveys.9 

10. All SROs including, but not limited to, ESGP, EFA and POA, were independent 

entities that were the brainchild and mission of Jacob DeJongh (“DeJongh”), the founder of, sole 

director, sole worker and/or sole employee of, the SROs.

10

 

11. The SROs did not share common ownership, directorships, board members, 

physical location or any other connection to CCL, outside of the Supplier Agreements.11 

12. CCL did not direct or control the manner and means of the SROs’ business.12 

13. CCL did not provide any assistance, including monetary support, to the 

establishment of the SROs.13 

14. The SROs were setup solely by DeJongh with input and funds from nondefendant third parties to conduct political surveys.14

 

15. DeJongh’s business plans for the SROs, in addition to the formation of such 

entities, were completed before DeJongh had spoken with anyone from CCL.15 

16. Neither DeJongh nor any of the SROs, including, but not limited to, ESG, EFA 

and POA, ever worked for or held an ownership interest in CCL.16 

17. The SROs were legitimate survey organizations seeking the views of likeminded 

persons.17 

 

9. DeJongh Depo., p. 36-37, 58-59, 72-73, 324-327, 370, 381, 391, 430-431. 

10. DeJongh Depo., pp. 34-38, 40-41, 46, 62, 69, 72, 322-324, 329-331. 

11. DeJongh Depo., pp. 355-356, 372-375. 

12. DeJongh Depo., pp. 36- 37, 372-375, 430; CCL Depo., p. 92. 

13. DeJongh Depo., pp. 258-259, 276-277, 330-334, 338-339, 341, 345-348, 359; CCL 

Depo., pp. 109-110. 

14. DeJongh Depo., pp. 38, 74, 76-77, 100-101, 113, 201, 324-330. 

15. DeJongh Depo., pp. 329, 331-334. See also the Supplier Agreements. 

16. DeJongh Depo., pp. 355-56. 

17. DeJongh Depo., pp. 38-39, 322-327. A copy of DeJongh’s business plan, an exemplar 

agreement with one of his Political Action Committees, and an example of survey results provided by 

DeJongh to his clients are attached hereto as Composite Exhibit 6. DeJongh testified that POA is a 

legitimate company that was doing business on behalf of the ESG Defendants. DeJongh Depo., pp. 324-

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18. The SROs had contracts with political and charitable organizations.18 

19. The SROs and third party brokers assisted the SROs with the creation and 

verbiage of their websites, of which CCL had no input.19 

20. CCL did not have access to or information regarding the SROs’ bank accounts.20 

21. CCL’s cruise product was an incentive for the participants in certain of the SROs’ 

surveys.21 

22. The SROs would have conducted the surveys with or without CCL’s cruise offer 

incentive.22 

23. Only the SROs purchased and utilized the purchased phone numbers given to the 

dialer, Darren Robb (“Robb”).23 

24. CCL did not know where the broker and/or the SROs were getting their telephone 

numbers.24 

25. Once SROs purchased the telephone numbers from various entities, such numbers 

 

25; id. at p. 326 (“Q. And it states in paragraph 2 ... [in] the Consolidated Complaint, the first sentence 

says ‘Nor is POA a legitimate survey organization.’ Do you agree with that? A. No, I don’t.”); id. at p. 

327 (“Q. Were your surveys a sham? A. No, they were not a sham. I discussed why I was doing them, and 

it is for the very reasons that I discussed, and I feel very passionate....”). 

18. DeJongh Depo., pp. 323-324, 370, 381, 391, 430-431. Attached hereto as Composite 

Exhibit 7 are: (1) Survey Research Agreements between ESGP and American Independent Party of 

Southwest Florida, (2) Survey Research Agreement between ESGP and Liberty Counsel Action, (3) 

Agreement to Provide 1.5 Million Survey Phone Calls for Northern Virginia House of Prayer, (4) 

Agreement to Provide 1.5 Million Survey Phone Calls at No Cost to the Hands Across the Sea, (5) 

Agreement to Provide 1.5 Million Survey Phone Calls at No Cost to the Jack Kemp Foundation, (6) 

Agreement to Provide 1.5 Million Survey Phone Calls at No Cost to the Washington Arts Group, and (7) 

Agreement to Provide 100,000 Survey Phone Calls at No Cost to Young Life, Inc. These agreements will 

collectively be referred to as the “Survey Research Agreements”. 

19. DeJongh Depo., pp. 337- 338. 

20. DeJongh Depo., p. 348 

21. DeJongh Depo., pp. 134, 254-256, 352-53. 

22. DeJongh Depo., pp. 326, 352-353, 401. 

23. DeJongh Depo., pp. 342, 351-352. 

24. DeJongh Depo., pp. 342-343, 362-363, 376-377. 

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were provided to LSS then to Robb.25 

26. While the SROs were to provide CCL with a general description of the political 

survey and script, CCL could not amend the script even if it requested to do so and could not 

instruct the SROs on whom to call.26 

27. CCL was not involved in any negotiations or preparations of any contracts 

between the SROs and their clients.27 

28. The SROs’ clients had the absolute right, and exercised that right, to alter or 

update the automated script.28 

29. CCL had no input into the scripts used on the telephone calls (except with respect 

to what was required in the event the SRO utilized the cruise incentive on a particular call).29 

30. A called party was only connected to CCL after he or she answered all of the 

questions included in a survey, assuming the cruise incentive was utilized, and after the called 

party expressly and affirmatively chose to be connected to one of CCL’s representatives.30 

31. Prior to selecting to speak to an operator, even if the complimentary cruise was 

offered, the Plaintiffs did not hear reference to CCL.31 

32. CCL did not, and could not, advise or affirmatively influence the SROs on their 

conduct, or their day to day functions.32 

33. In fact, the SROs were not required to include CCL’s offer and could chose, at the 

 

25. DeJongh Depo. pp. 115, 258-259, 362-363. 

26. DeJongh Depo., pp. 258-259, 358-359. 

27. DeJongh Depo., p. 416-419. 

28. DeJongh Depo., pp. 135, 383-384. 

29. CCL Depo., pp. 54-55, 73, 76; DeJongh Depo., pp. 23, 40-41, 376-377. 

30. DeJongh Depo., pp. 155-156. 

31. See infra, notes 58-76. 

32. DeJongh Depo., pp. 240, 372-375. CCL did, however, notify LSS of the availability of its 

call centers to accept transfers. Id. pp. 134, 155. 

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SRO’s sole discretion, not to offer the cruise on the survey calls.33 

34. One of the SROs’ clients, Let Freedom Ring, determined that it did not want to 

use CCL’s incentive and the SROs continued to make the political calls for Let Freedom Ring 

without the cruise incentive.34 

35. CCL did not have any input or control regarding how the SROs’ survey calls were 

made, when telephone calls were made or to whom telephone calls were made.35 

36. CCL did not direct or control the business operations of The Berkley Group, Inc. 

(“Berkley”) or VOMT.36

C. Facts Specific to VOMT 

37. VOMT is a timeshare tour lead broker and was established in 2001. In connection 

with its business operations, VOMT has entered into agreements with various lead generators in 

the vacation sales business.37 

38. VOMT does not own, sell, operate or market any vacation property, timeshares 

and/or cruise ships.38 

39. On or about September 30, 2003, VOMT and Berkley entered into a Marketing 

Agreement.39 

40. On or about January 1, 2008, VOMT entered into a Marketing Agreement with 

 

33. DeJongh Depo., pp. 139, 256, 326. 

34. DeJongh Depo., pp. 390, 436. 

35. DeJongh Depo., pp. 390 

36. CCL Dec., ¶¶ 6-11. 

37. Declaration of Dan Lambert for VOMT (“VOMT Dec.”), attached hereto as Exhibit 8, at 

¶3; VOMT Depo., pp. 7. (Portions of the deposition of the Daniel Lambert, the Fed.R.Civ.P. 30(b)(6) 

representative of VOMT, are attached hereto as Composite Exhibit 9, and will be herein referred to as 

(“VOMT Depo. p._”)). 

38. VOMT Depo pp. 8-9. 

39. See VOMT Depo., p. 24. A true and correct copy of the Marketing Agreement between 

VOMT and Berkley Group is attached as Exhibit B to the VOMT Dec. 

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CCL.40

41. VOMT entered into agreements with various third parties, including CCL, to 

obtain potential tour prospects.41 

42. During the course of the VOMT/CCL relationship, the number of tours brokered 

by VOMT from CCL customers was fairly consistent.42 

43. The telephone calls at issue in this case took place between August 2011 and 

August 2012. In the calendar year 2010, VOMT brokered approximately 47,000 tour prospects; 

in the calendar year 2011, VOMT brokered approximately 35,000 tour prospects; in the calendar 

year 2012, VOMT brokered approximately 36,000 tour prospects; and in the calendar year 2013, 

VOMT brokered approximately 36,000 tour prospects.43

44. VOMT charged CCL, and any other company from which it may have obtained 

leads, with handling its own marketing programs and monitoring such programs for 

compliance.44 

45. VOMT was not a party to any Supplier Agreement with any SRO. 

46. The SROs do not share common ownership, directorships, board members, 

physical location or any other connection to VOMT.45 

47. DeJongh and the SROs including, but not limited to, POA, EFA and ESG, never 

did business with VOMT.46

48. VOMT was not involved in any of the aspects of the various political surveys 

 

40. VOMT Dec., ¶ 4; a true and correct copy of the Agreement between CCL and VOMT is 

attached as Exhibit A to the VOMT Dec. 

41. VOMT Dec., ¶4; VOMT Depo p.25-26. 

42. VOMT Dec., ¶5. 

43. VOMT Dec., ¶6. 

44. VOMT Depo p. 29. 

45. VOMT Depo., p. 6; DeJongh Depo., pp. 355-356, 372-375. 

46. DeJongh Depo p. 322. 

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conducted by the SROs.47

49. VOMT did not provide any assistance, including monetary support, to the 

establishment of the SROs.48 

50. There was no component of DeJongh’s business plan that involved telemarketing 

for VOMT.49

51. Neither DeJongh nor any of the SROs including, but not limited to, ESG, EFA 

and POA, ever worked for or held an ownership interest in VOMT.50

52. DeJongh had never heard of VOMT until after the lawsuit was filed.51

53. VOMT did not enter into any agreements or contracts with any SRO.52

54. VOMT did not provide any cruise or other offer to the SROs.

53

 

55. VOMT had no input into the scripts used on the survey calls made by the SROs.54

56. VOMT did not transfer any funds to any of the SROs.55

57. VOMT did not, and could not, advise or affirmatively influence ESG or POA on 

its day to day functions or in the amount of calls that the SROs conducted.56 

58. VOMT did not have any input or control regarding how telephone calls were 

made, when telephone calls were made or to whom telephone calls were made.57 

59. VOMT is a separate and distinct entity from CCL; VOMT was incorporated and 

 

47. DeJongh Depo pp. 322, 334, 340. 

48. DeJongh Depo pp. 322, 338-339, 345-348. 

49. DeJongh Depo pp. 322, 334. 

50. DeJongh Depo pp. 355-356. 

51. DeJongh Depo., pp. 19, 322. 

52. See Supplier Agreements; DeJongh Depo., pp. 334, 340. 

53. See Supplier Agreements; DeJongh Depo., pp. 396-398; CCL Depo., pp. 95-96. 

54. DeJongh Depo., pp. 258-259, 358-359. 

55. DeJongh Depo., pp. 330-334, 339. 

56. DeJongh Depo., pp. 240, 372-375. 

57. DeJongh Depo., p. 390 

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began doing business in 2001 and CCL was not created until 2008.58 VOMT maintains its own 

corporate books and records, and separate bank accounts, from CCL and Berkley.59

D. Facts Specific to the Named Plaintiffs

60. Plaintiff Birchmeier received one call to his cellular telephone on May 7, 2012,60

which he answered and heard a “recorded message ... from Political Opinions of America” 

prompting him to “take a 30-second political survey” in return for a free two-day cruise.61

61. Birchmeier cannot recall the name of any entity other than Political Opinions of 

America disclosed on the call.62 

62. Birchmeier first heard the name CCL through court documents from his 

attorney,63 and never heard of the name VOMT until after the lawsuit was filed.64 Birchmeier 

said he decided to sue VOMT because of information his attorney discovered.65 

63. Birchmeier never took advantage of the free cruise offer, and never spoke with an 

agent of CCL.66

64. Plaintiff Aranda complained he received one alleged unlawful call to his cellular 

telephone on March 10, 2012.67 

65. Aranda testified that he cannot remember any details from the telephone call on 

March 10, 2012,68 other than that he received a call from a robotic voice and was later 

 

58. VOMT Dec., ¶ 20. 

59. VOMT Dec., ¶¶ 20-21. 

60. Birchmeier Depo., pp. 14-16. (Portions of the deposition of the Grant Birchmeier are 

attached hereto as Composite Exhibit 10, and will be herein referred to as (“Birchmeier Depo. p._”)). 

61. Birchmeier Depo., p.18:3-19 (description of call). 

62. Birchmeier Depo., pp. 20:23-25, 21:1-10, 76-77. 

63. Birchmeier Depo., pp. 64-67. 

64. Birchmeier Depo., p. 67. 

65. Birchmeier Depo., p. 67. 

66. Birchmeier Depo., p. 100. 

67. Aranda Depo., p. 37. (Portions of the deposition of the Gerardo Aranda are attached 

hereto as Composite Exhibit 11, and will be herein referred to as (“Aranda Depo. p._”)). 

68. Aranda Depo., pp. 39-42. 

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transferred to a live person who offered a 2-day free cruise.69

66. Aranda testified that he did not hear about the free cruise during the recorded 

message,70 and the first time Aranda heard of CCL or VOMT was through his attorneys and/or 

court documents.71

67. Aranda never bought anything from CCL and never went on a free cruise.72

68. Plaintiff Parkes testified that he received the first alleged violative call on his 

cellular telephone on March 13, 2012 “from Political Opinions of America” which offered a free 

cruise for answering a few questions.73 

69. Parkes testified that no business or entity other than “Political Opinions of 

America” was mentioned in the recording during that call.74 

70. Parkes claimed he received another call on April 14, 2012,75 but his call records 

show the call lasted only ten (10) seconds.76

71. Parkes also claims he received calls on his business lines (which are not at issue 

in this lawsuit), and admits the only time he spoke to a CCL representative was after receiving a 

call on his business line.77

72. Parkes’s telephone records show the calls about which he complains lasted 

between only two and twenty-one second.78 Parkes testified that the calls were the same and he 

 

69. Aranda Depo., pp. 43-45. 

70. Aranda Depo., pp. 45-46. 

71. Aranda Depo., pp. 30-31. 

72. Aranda Depo., pp. 48. 

73. Parkes Depo., pp. 33-35. (Portions of the deposition of the Stephen Parkes are attached 

hereto as Composite Exhibit 12, and will be herein referred to as (“Parkes Depo. p._”)). 

74. Parkes Depo., p. 37. 

75. Parkes Depo., p. 110. 

76. Parkes Depo., p. 110. 

77. Parkes Depo., pp. 35-37, 109-110. 

78. Parkes Depo., pp. 102-108. 

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cannot recall any variations in the calls lasting of differing lengths.79

73. The calls Regina Stone alleges she received are not substantiated by her call 

records.80 

74. Regina Stone testified the first call she received on her cellular telephone offering 

a cruise in exchange for taking a short political survey was on April 27, 2012.81 

75. Stone testified that following the survey she was connected to a live operator who 

advised Stone she had won a free cruise. Stone claims the operator identified herself as being 

from CCL, and after requesting Stone’s credit card information for the payment of port fees, 

Stone ended the conversation.82

76. Stone admits that except on one telephone call, she never listened past the 

prerecorded voice long enough to take the survey.83 Stone first heard of VOMT through her 

attorneys.84

E. Facts Relevant to All Parties 

77. Darren Rob assisted Jacob DeJongh with placing the telephone calls.85

78. Darren Rob brokered the relationship between Jacob DeJongh, the owner of the 

SROs, and Venture VoIP, the “dialer” or entity that housed the software and equipment to assist 

DeJongh in placing calls.86

 

79. Parkes Depo., pp. 102-108. 

80. Stone Depo., pp. 152-165. (Portions of the deposition of the Regina Stone are attached 

hereto as Composite Exhibit 13, and will be herein referred to as (“Stone Depo. p._”)). See Regina 

Stone’s responses to Berkley’s First set of Interrogatories, included as part of Composite Exhibit 13, pp. 

6-7. Attached hereto as Composite Exhibit 14 are the call records produced by Aranda, Parkes, and 

Stone, as referenced in their depositions. 

81. Stone Depo., pp. 22-25. 

82. Stone Depo., pp. 36-37. 

83. Stone Depo., p. 148. 

84. Stone Depo., p. 77. 

85. DeJongh Depo., p. 156. 

86. Darren Robb’s Depo., p. 111. (Portions of the deposition of the Darren Robb are attached 

hereto as Composite Exhibit 15, and will be herein referred to as (“Robb Depo. p._”)).

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79. Darren Rob had never heard of CCL until after the lawsuit was filed.87 Robb 

never spoke with anyone from CCL.88

80. Robb never heard of VOMT until the date of his deposition on May 8, 2014.89

DATED: November 23, 2015 Respectfully submitted, 

 s/Jeffrey Backman_______ 

RICHARD W. EPSTEIN, ESQ. 

(Fla. Bar No. 229091) 

Admitted Pro Hac Vice 

Richard.Epstein@gmlaw.com 

JEFFREY A. BACKMAN, ESQ 

(Fla. Bar No. 0662501) 

Admitted Pro Hac Vice 

Jeffrey.Backman@gmlaw.com

GREENSPOON MARDER, P.A 

200 East Broward Blvd., Suite 1800 

Fort Lauderdale, Florida 33301 

954.491.1120 (Telephone) 

954.343.6958 (Facsimile) 

 Timothy A. Hudson 

THudson@TDRLAWFIRM.com

TABET DiVITO & ROTHSTEIN, LLC 

209 S. LaSalle Street, Suite 700 

Chicago, Illinois 60604 

Telephone: (312) 762-9450 

Facsimile: (312) 762-9451 

Firm No.: 38234 

Attorneys for Defendant Caribbean Cruise Line, 

Inc. and Vacation Ownership Marketing Tours, Inc. 

 

87. Robb Depo., p. 120. 

88. Robb Depo., p. 121. 

89. Robb Depo., p. 121. 

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CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically 

filed with the Clerk of Court by using CM/ECF service which will provide copies to all counsel 

of record registered to receive CM/ECF notification on this 23rd day of November, 2015. 

 s/Jeffrey Backman 

 Jeffrey A. Backman 

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