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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

GERARDO ARANDA, GRANT 

BIRCHMEIER, STEPHEN PARKES, and 

REGINA STONE, on behalf of themselves 

and classes 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 

VACATION OWNERSHIP MARKETING TOUR, INC.’S MEMORANDUM 

OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 
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TABLE OF CONTENTS 

I. INTRODUCTION AND BACKGROUND .....................................................................1 

A. TELEPHONE CALLS TO PLAINTIFFS .........................................................................2 

B. PROCEDURAL HISTORY ..............................................................................................2 

C. VOMT’S BUSINESS MODEL ........................................................................................2 

II. ARGUMENT: SUMMARY JUDGMENT IS PROPER UNDER ANY THEORY OF 

LIABILITY ................................................................................................................................5 

A. SUMMARY JUDGMENT STANDARD .........................................................................5 

B. NO DIRECT TCPA LIABILITY EXISTS AS CCL DID NOT MAKE OR INITIATE THE 

POLITICAL SURVEY CALLS...............................................................................................5 

C. NO THEORY OF VICARIOUS LIABILITY IS PLEADED IN THE ACC OR OTHERWISE 

AVAILABLE AGAINST VOMT ............................................................................................5 

 1. NO ALLEGATIONS REGARDING VICARIOUS LIABILITY ARE SET FORTH IN 

THE ACC TO PERMIT PLAINTIFFS TO PURSUE SUCH CLAIM ......................................5 

 2. VOMT IS NOT A SELLER UNDER THE TCPA ...................................................... 6 

 3. THE RECORD EVIDENCE DEMONSTRATES THAT NO THEORY OF VICARIOUS 

LIABILITY EXISTS TO HOLD VOMT LIABLE UNDER THE TCPA ...............................7 

 a. VOMT IS NOT VICARIOUSLY LIABLE FOR THE ACTIONS OF THE SROS ......7 

b. VOMT IS NOT LIABLE UNDER PRINCIPLES OF AGENCY, APPARENT 

AUTHORITY, OR RATIFICATION ............................................................................. 10 

D. NO JOINT VENTURE OR PARTNERSHIP EXISTS BETWEEN VOMT AND ANY 

OTHER DEFENDANT ......................................................................................................... 11 

E. VOMT IS ENTITLED TO SUMMARY JUDGMENT ON TELEPHONE CALLS TO 

PLAINTIFFS THAT DID NOT REFERENCE A CRUISE OR APPEAR IN PLAINTIFFS’ OR 

DEFENDANTS’ PHONE RECORDS ................................................................................... 13 

F. VOMT IS ENTITLED TO SUMMARY JUDGMENT ON ALL CALLS TO LANDLINE 

TELEPHONES...................................................................................................................... 14 

III. STAY OF LAWSUIT PENDING OUTCOME OF SPOKEO V. ROBINS ...................... 14 

IV. CONCLUSION ............................................................................................................. 14 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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I. INTRODUCTION 

Vacation Ownership Marketing Tours, Inc. (“VOMT”) has nothing to do with the telephone 

calls at issue in this case. It did not make or initiate any telephone calls and it did not ask anyone to 

make any telephone calls on its “behalf”. No party involved with the making of the telephone calls 

or the receiving of the telephone calls ever heard of VOMT before this lawsuit.1 All Plaintiffs 

concede they never heard of VOMT prior to the filing of this lawsuit.2 The owner and operator of 

the SROs, Jacob DeJongh (“DeJongh”), as well as the dialer of the calls, Darren Robb (“Robb”), 

never heard of VOMT either.3 Plaintiffs seek to hold VOMT responsible for the independent 

actions of third parties making political survey calls based solely on the fact that VOMT did not have 

any employees and it is owned and operated by two individuals that also have a relationship with coDefendant Caribbean Cruise Line, Inc. (“CCL”). 

In addition to the fact that Plaintiffs have failed to plead any secondary theory of liability in 

the Amended Consolidated Complaint (“ACC”), there are no facts existing in the record to 

demonstrate that VOMT had any direction or control over the actions of the survey research 

organizations (“SROs”) or the manner and means of how the calls were made to result in VOMT 

being vicariously liable for the calls. In fact, the undisputed material facts reveal the opposite: 

VOMT had absolutely no involvement with the calls at issue in this lawsuit, and no joint venture 

arguments or vicarious liability theories can subject VOMT to liability for calls with which it had no 

involvement.4

Importantly, VOMT is not a seller under the TCPA to subject it to liability as it was not 

 

1. Statement of Undisputed Material Facts in Support of VOMT’s Motion for Summary 

Judgment (“Def. SOF”), ¶¶ 47, 52, 80. 

2. Def. SOF, ¶¶ 62, 66, 68, 76. 

3. Def. SOF, ¶¶ 52, 80. 

4. See Declaration of Dan Lambert for VOMT (“VOMT Dec.”), ¶¶ 7-8, attached to Def. SOF as 

Exhibit 8. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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offering any products on the alleged calls at issue; VOMT actually does not “sell” anything to 

consumers. Even if VOMT could somehow be found responsible for the actions of the SROs, for the 

reasons set forth in CCL’s Motion for Summary Judgment at Section II, summary judgment should 

be entered in favor of VOMT or, alternatively, this case should be stayed pending the decision of the 

United States Supreme Court in Spokeo v. Robins. 

A. Telephone calls to Plaintiffs 

 The description of the telephone calls to Plaintiffs is set forth in detail in CCL’s Motion for 

Summary Judgment. As it relates to VOMT, neither DeJongh nor the operator of the dialer used by 

DeJongh, ever heard of VOMT.5 More importantly, no Plaintiff ever heard mention of VOMT on 

any telephone call and had never heard of VOMT at all until the lawsuit was filed;6 it was Plaintiffs’ 

lawyers who decided VOMT should be included.7 

B. Procedural History 

 VOMT incorporates CCL’s recitation of the procedural history. VOMT is lumped into the 

same two causes of action asserting only theories of direct liability against every single named 

Defendant collectively. There are no allegations in the ACC which distinguish VOMT’s alleged 

wrongful conduct from any other Defendant and there are no facts in the record which support a 

finding of any theory of liability against VOMT for telephone survey calls made by the SROs – with 

whom VOMT never had any business relationship. 

C. VOMT’s business model 

VOMT was established in 2001 as an entity to place timeshare tours between a marketing 

 

5. Def. SOF, ¶¶ 52, 80. 

6. Def. SOF, ¶¶ 60-62, 66-69, 76. 

7. Def. SOF, ¶¶ 62, 66, 76. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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company and various timeshare developers.8 In September, 2003, VOMT entered into an agreement 

with The Berkley Group, Inc. (“Berkley”) to broker tour prospects from its lead generators to certain 

of Berkley’s timeshare properties.9 It was not until 2008 that VOMT began a relationship with 

CCL.10 At that time, VOMT began brokering tour prospects from CCL customers for tours at 

Berkley properties.11 It is VOMT’s understanding that CCL generated customers in a wide variety of 

ways including, but not limited to, direct mail, radio, internet, television, business incentives, 

telephone, and in other ways.12 During the course of the VOMT/CCL relationship, the number of 

tours brokered by VOMT from CCL customers was consistent.

13 The telephone calls at issue in this 

case took place between August 2011 – August 2012.14 There was no spike in the number of tour 

prospects during this time period.15

VOMT does not own, sell, operate or market any vacation property, timeshares and/or cruise 

ships.16 VOMT was not a party to any agreement with any SRO.17 The SROs do not share common 

ownership, directorships, board members, physical location or any other connection to VOMT.18 

DeJongh and the SROs never heard of VOMT and never did business with VOMT.19 VOMT was 

 

8. Def. SOF, ¶ 37. 

9. Def. SOF, ¶ 39. The agreement between VOMT and Berkley is attached as Exhibit B to the 

VOMT Dec. 

10. Def. SOF, ¶ 40; VOMT Dec., ¶ 4. 

11. See Marketing Agreement between VOMT and CCL, attached as Exhibit A to VOMT Dec. 

12. See Declaration of Daniel Lambert for CCL (“CCL Dec.”), ¶ 4, attached to Def. SOF as 

Exhibit 1. 

13. Def. SOF, ¶¶ 42-43. 

14. Def. SOF, ¶ 43. 

15. Def. SOF, ¶ 43. 

16. Def. SOF, ¶ 38. 

17. Def. SOF, ¶¶ 4-5, 45. The Supplier Agreement between CCL and Employment for America, 

and the Supplier Agreement between CCL and ESGP shall be collectively known herein as “Supplier 

Agreements”. 

18. Def. SOF, ¶ 46. 

19. Def. SOF, ¶ 51-52. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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not involved in any of the aspects of the various political surveys conducted by the SROs.20 VOMT 

did not provide any assistance, including monetary support, to the establishment of the SROs.21 The 

SROs were setup solely by DeJongh with input and funds from non-defendant third party brokers to 

conduct political surveys.22 In fact, DeJongh’s business plans for the SROs, and the formation of 

such entities, were completed before DeJongh had spoken with anyone from VOMT and called for 

the conducting of public opinion surveys and polls for political and market research purposes.23 No 

component of DeJongh’s business plan involved telemarketing for VOMT.24 Neither DeJongh nor 

any of the SROs ever worked for or held an ownership interest in VOMT.25 

VOMT did not provide any cruise or other offer to the SROs.26 VOMT had no input into the 

scripts used on the calls.27 VOMT did not transfer any funds to any of the SROs.28 VOMT was not 

involved in the contracting between the SROs and the SROs clients or between the SROs and 

CCL.29 VOMT did not, and could not, advise or affirmatively influence any SRO in its day to day 

functions or in the amount of calls the SROs conducted.30 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.31 Because VOMT did not initiate the telephone call at issue, because VOMT had 

no agency relationship with the SROs and because VOMT did not direct or control the actions of the 

SROs, VOMT cannot be liable for purported violations of the TCPA. 

 

20. Def. SOF, ¶ 48. 

21. Def. SOF, ¶ 49. 

22. Def. SOF, ¶¶ 10, 14. 

23. Def. SOF, ¶ 15. 

24. Def. SOF, ¶ 50. 

25. Def. SOF, ¶ 51. 

26. Def. SOF, ¶ 54. 

27. Def. SOF, ¶ 55. 

28. Def. SOF, ¶ 56. 

29. Def. SOF, ¶ 57. 

30. Def. SOF, ¶ 57. 

31. Def. SOF, ¶ 58. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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II. ARGUMENT: SUMMARY JUDGMENT IS PROPER UNDER ANY THEORY OF 

LIABILITY 

A. Summary Judgment Standard 

To avoid duplication, VOMT incorporates the legal standard section set forth in CCL’s 

Motion for Summary Judgment. 

B. No direct TCPA liability exists as VOMT did not make or initiate the political 

survey calls 

VOMT incorporates the legal argument and authorities set forth in CCL’s Motion for 

Summary Judgment regarding direct liability. The bottom line is that “[d]irect liability under the 

TCPA ... applies only to entities that ‘initiate’ the telemarketing calls.”32 It is undisputed that 

VOMT did not place any calls to Plaintiffs or any class members; it is also undisputed that VOMT 

did not tell anyone or any entity to place any such calls on its behalf.33 Therefore, VOMT is entitled 

to summary judgment on Plaintiffs’ claim of direct TCPA liability. 

C. No theory of vicarious liability is pleaded in the ACC or available against 

VOMT, and no such theory can be established as VOMT is not a “seller” under 

the TCPA 

1. No allegations regarding vicarious liability are set forth in the ACC to permit 

Plaintiffs to pursue such claim 

VOMT Incorporates CCL’s arguments set forth in its Motion for Summary Judgment as to 

Plaintiffs’ failure to allege vicarious liability. Omitted from the ACC is any allegation that VOMT is 

vicariously liable under a theory of agency, apparent authority, or ratification. VOMT is mentioned 

in the ACC only thirteen (13) times and other than being accused of forming a general joint venture 

 

32. Smith v. State Farm Mut. Auto. Ins. Co., 30 F. Supp. 3d 765, 771 (N.D. Ill. 2014); Golan v. 

Veritas Entm't, LLC, No. 4:14CV00069 ERW, 2014 WL 2095310, at *4 (E.D. Mo. May 20, 2014) rev'd and 

remanded, 788 F.3d 814 (8th Cir. 2015) (“[A] seller is not directly liable for a TCPA violation unless it 

initiates call.”); see also In re Joint Petition filed by Dish Network, LLC, 28 F.C.C.R. 6574, 6582 ¶ 24 (2013) 

(“FCC Dish Order”) (“[W]e clarify that a seller is not directly liable for a violation of the TCPA unless it 

initiates a call ....”).

33. Def. SOF, ¶¶ 52-58. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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or partnership with CCL and Berkley, neither of which made the telephone calls at issue, no specific 

allegations of wrongdoing or any agency theory of liability exists. The allegations of the ACC 

insufficiently and repeatedly allege throughout that “Defendants placed (or directed or allowed to be 

placed for their own benefit and on their behalf), the robo-calls....”34 Courts find this language 

insufficient to plead vicarious liability.35

2. VOMT is not a seller under the TCPA 

VOMT cannot be liable for the allegedly unlawful calls since it is not a “seller” under the 

TCPA, as it does not sell or advertise any products to consumers and no calls were placed “on 

behalf” of VOMT. In the FCC’s Dish Network Declaratory Ruling (“2013 FCC Ruling”), the FCC 

clarified when vicarious liability is available under the TCPA against a “seller”, but did not discuss 

the potential liability of a random uninvolved third-party like VOMT.36 The regulations 

implementing the TCPA define a seller as “the person or entity on whose behalf a telephone call or 

message is initiated for the purpose of encouraging the purchase or rental of, or investment in, 

property, goods, or services....”37 VOMT cannot be liable for the allegedly unlawful calls since it is 

 

34. See, e.g., DE 289, ¶21. 

35. See, e.g., Jackson v. Caribbean Cruise Line, Inc., 88 F. Supp. 3d 129, 135 (E.D.N.Y. 2015); 

Bank v. Philips Elecs. N. Am. Corp., No. 14-CV-5312 JG VMS, 2015 WL 1650926, at *2 (E.D.N.Y. Apr. 14, 

2015); Lary v. VSB Fin. Consulting, Inc., 910 So. 2d 1280, 1283 (Ala. Civ. App. 2005). 

36. In the Matter of the Joint Petition Filed by Dish Network, LLC et al., 28 F.C.C. Rcd. 6574, 

6593 (2013) (“2013 FCC Ruling”) (“[W]hile a seller does not generally initiate calls made through a thirdparty telemarketer, it nonetheless may be vicariously liable under federal common law agency-related 

principles for violations of either section 227(b) or 227(c) committed by telemarketers that initiate calls to 

market its products or services.”); see also Bridgeview Health Care Ctr. Ltd. v. Clark, 2013 WL 1154206, at 

*5 (N.D. Ill. 2013) (to show a third-party, independent contractor sent alleged fax advertisements “on behalf 

of” a defendant, a plaintiff cannot claim strict liability; it must make a case per traditional agency principles). 

37. 47 C.F.R. §64.1200(f)(9). 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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not a “seller” under the TCPA, as it does not sell or advertise any products to consumers and no calls 

were placed “on behalf” of VOMT. Receiving a “benefit”, alone, is not enough.38 

3. The record evidence demonstrates that no theory of vicarious liability exists to 

hold VOMT liable under the TCPA 

a. VOMT is not vicariously liable for the actions of the SROs 

In an effort to avoid duplication, VOMT incorporates the legal authority and argument made 

by CCL in its Motion for Summary Judgment. VOMT will only focus on the specific facts 

applicable to it and how those facts are to be analyzed in accordance with the cited legal authority. 

The undisputed material facts demonstrate that VOMT never formed any relationship, let 

alone an agency relationship, with any SRO making the telephone calls at issue in this case.39 

Plaintiffs’ theory as to VOMT appears to be that because it had agreements with CCL and Berkley to 

broker timeshare tour prospects, because VOMT had no employees (other than its two directors), 

and because Messrs. Lambert and Verrillo are involved with both VOMT and CCL, that CCL should 

be held liable for calls made by the SROs during the limited time period of August 2011 – August 

2012. But those facts establish nothing that is actually required to prove liability. VOMT is not a 

seller of anything. The owner and operator never heard of VOMT or knew of its existence.40 

VOMT was not mentioned on a single call and no Plaintiff ever heard of or came into contact with 

VOMT.41 VOMT’s agreement with CCL, an agreement that was entered into three (3) years prior to 

the telephone calls at issue, does not make VOMT liable for the calls made by the SROs – even if the 

Court were to find that the SROs were acting as agents for CCL. 

 

38. 2013 FCC Ruling, at 6593 (“[W]e do not think that an action taken for the benefit of a 

seller by a third-party retailer, without more, is sufficient to trigger the liability of a seller under 

section either section 227(c) or section 227(b).”). 

39. Def. SOF, ¶¶ 51-52. 

40. Def. SOF, ¶ 52. 

41. Def. SOF, ¶¶ 62, 66, 68, 76. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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There is not a single case that has found vicarious liability under the circumstances presented 

in this case, i.e., where the Plaintiffs have failed to make any showing of any relationship between 

the supposed third-party principal and the party making the telephone calls. In the cases cited in 

CCL’s Motion, save Kristensen, the third parties at least had some relationship with the calling 

party, albeit insufficient to establish any form of vicarious liability. Nonetheless, the case law that 

has refused to find vicarious liability under the TCPA is instructive. In Thomas,

42 Taco Bell knew, 

approved and even administered funds to the calling parties, but because it did not “direct[] or 

supervise[] the manner and means of the text messages campaign,” did not “create[] or develop[] the 

text message,” or “play[] any role in the decision to distribute the message by way of a blast text,” 

there was no liability.43 In Applestein, Fairfield Resorts had an agreement with the third party 

making the calls on its behalf and the court found that was not enough to establish liability because 

the third party retained authority over its personnel, equipment, and facilities, and had no authority to 

sell any vacation ownerships for Fairfield.44 Similarly, in Mey v. Pinnacle Sec., LLC, the defendant 

directly hired the third party making the telephone calls for the specific purpose of generating leads 

for the defendant. 45 But, because the defendant played a “passive role” in its relationship with the 

third-party lead generators and because it did not control, or even have access to, the content of the 

prerecorded calls, the court refused to find the defendant vicariously liable.46 

In Makaron v. GE Security Manufacturing, Inc., UTC had an agreement with independent 

distributors and dealers who, in turn, would resell UTC’s equipment to other end-users. UTC argued 

 

42. Thomas v. Taco Bell Corp., 879 F. Supp. 2d 1079, 1081 (C.D. Cal. 2012) aff'd, 582 F. App'x 

678 (9th Cir. 2014) 

43. Id. at 1085. 

44. Applestein v. Fairfield Resorts, No. 0004 SEPT.TERM 2007, 2009 WL 5604429 (Md. Ct. 

Spec. App. July 8, 2009). 

45. Mey v. Pinnacle Sec., LLC, No. 5:11CV47, 2012 WL 4009718, at *5 (N.D.W. Va. Sept. 12, 

2012). 

46. Id. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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it was not liable under the TCPA because it is a “manufacturer” and could not be considered a 

“seller” since alleged calls were not made on its behalf. The court analyzed the 2013 FCC Ruling 

and explained that UTC could only be deemed “a ‘seller’ under the TCPA if it turns out it has an 

applicable agency relationship with the entities that made the calls to the plaintiffs in this case. The 

court found that no actual agency exists since inter alia the contracts between UTC and its 

distributors and dealers prohibit such dealers from marketing “as” or “on behalf of” UTC. The court 

also rejected any theory of apparent authority or ratification not only because there was no agency 

relationship, but also because there was no proof of any manifestation by UTC to the plaintiffs.47

Perhaps most analogous to VOMT is Kristensen v. Credit Payment Services, Inc., where the 

plaintiffs, rather than directly suing the party who sent the text messages, sought to hold the lenders 

who allegedly purchased the leads, and the party who contracted with the entity that sent the 

messages, vicariously liable under theories such as ratification and apparent authority, as well as a 

“control and benefit” theory of vicarious liability.48 The Kristensen court granted summary judgment 

for the lenders who merely purchased the leads after finding no theory of vicarious liability subjected 

them to claims under the TCPA, as there was “no evidence that any of the defendants had either the 

legal or practical ability to control whether [the text sender] sent out unsolicited texts.”49

VOMT is further removed from the SROs here than the independent contractors outlined in 

Thomas, Applestein, Mey, Makaron, and Kristensen as at no time did VOMT have any agreement 

with the SROs, VOMT did not request, direct or instruct any of the SROs to make or initiate any 

telephone calls, and VOMT is not a seller of anything. At best, VOMT is akin to the manufacturer, 

UTC, in Makaron or the lenders in Kristensen. Either way, there is no evidence to find VOMT 

 

47. Id. at *10. 

48. Kristensen v. Credit Payment Servs. Inc., No. 2:12-CV-00528-APG, 2015 WL 4477425, at *3 

(D. Nev. July 20, 2015). 

49. Id. at *7. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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vicariously liable for the actions of the SROs – entities with which VOMT never had a relationship. 

b. VOMT is not liable under principles of agency, apparent authority, or 

ratification. 

In an effort to avoid duplication, VOMT incorporates the legal authority and argument made 

by CCL in its Motion for Summary Judgment. VOMT will only focus on the specific facts 

applicable to it and how those facts are to be analyzed in accordance with the cited legal authority. 

As set forth above, no agency relationship existed between VOMT and any SRO making the 

calls at issue. VOMT did not enter into any contract with any SRO regarding the telephone calls at 

issue in this lawsuit.50 Nor did VOMT have any relationship with the calling parties.51 VOMT had 

literally no involvement in the calls placed by the SROs; VOMT’s only involvement, if it can even 

be considered involvement, is by virtue of its long time agreement with CCL going back more than 

three years before CCL ever formed a relationship with any SRO.52 

Plaintiffs also cannot extend liability to VOMT pursuant to “apparent authority”.53 As set 

forth in Toney v. Quality Resources, Inc., for a plaintiff to plead apparent authority, the plaintiff 

“must allege that she reasonably believed that [the calling entity] called her as [the principal’s] agent 

and that her belief is traceable to a manifestation of [the agent’s] authority from [the principal].”54

There are no facts suggesting that Plaintiffs received calls from the SROs believing them to be from 

or even “on behalf of” VOMT.55 VOMT did nothing to create in Plaintiffs a reasonable belief that 

the SROs were acting on behalf of VOMT; in fact, Plaintiffs all admit they never even heard of 

 

50. Def. SOF, ¶ 53. 

51. Def. SOF, ¶¶ 52, 80. 

52. Def. SOF, ¶ 40; VOMT Dec., ¶ 4. 

53. See, e.g., Toney v. Quality Res., Inc., 75 F. Supp. 3d 727, 744 (N.D. Ill. 2014) (citing

Restatement (Third) of Agency § 2.03 cmt. c (2006)). 

54. Toney, 75 F. Supp. 3d at 744; see also Makaron, 2015 WL 3526253, at *8-*9 (apparent 

authority cannot arise unless the principal’s manifestations to a third party supply a “reasonable basis” for that

party to believe that the principal has authorized the alleged agent to do the act in question). 

55. Def. SOF, ¶¶ 60-76. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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VOMT. Finally, none of the Plaintiffs ever became a “tour prospect” such that VOMT would have 

formed any relationship with them. Indeed, none of the Plaintiffs purchased a cruise package or 

anything at all, from any Defendant. 

Similarly, Plaintiffs cannot prove that VOMT ratified the actions of the SROs.56 VOMT did 

not accept any “benefit” stemming from the SROs’ calls to these Plaintiffs, and Plaintiffs have 

neither alleged nor proved that VOMT accepted any benefit. Plaintiffs also cannot show that they 

even sought to obtain any benefit from VOMT; indeed, Plaintiffs did not try to obtain a free cruise or 

purchase anything. Not only is there no agency relationship for the reasons set forth above, but no 

Plaintiff in this lawsuit purchased anything from VOMT, or even heard about VOMT on the 

purported telephone calls.57 As Plaintiffs did not purchase anything from VOMT or engage in any 

business transaction with VOMT, they cannot allege VOMT benefited from the unlawful calls 

Plaintiffs allege they received. For this reason as well, in addition to the fact that no agency 

relationship existed between VOMT and any calling party, any attempt to impose vicarious liability 

against VOMT on a ratification theory fails. 

D. No joint venture or partnership exists between VOMT and any other Defendant 

Rather than allege the existence of a joint venture or partnership between VOMT and any 

party that initiated the alleged violative calls, Plaintiffs allege a joint venture or partnership exists 

between CCL, VOMT, and Berkley.58 Without a joint venture/partnership with the SROs that

actually made the telephone calls, there can be no basis for liability against VOMT as the non-calling 

party. VOMT’s relationship with CCL and Berkley, without the inclusion of the calling party, is 

 

56. Restatement (Third) of Agency § 4.01(2) (2006) (A principal can ratify an act by “(a) 

manifesting assent that the act shall affect the person’s legal relations, or (b) conduct that justifies a 

reasonable assumption that the person so consents.”). 

57. Def. SOF, ¶¶ 62, 66, 68, 76. 

58. DE 289, ¶¶ 32-33. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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irrelevant. Regardless, VOMT has not entered into a joint venture or partnership with either CCL or 

Berkley.59 VOMT existed several years before CCL even became an entity, and although VOMT 

has a business relationship with Berkley, VOMT and Berkley are entirely separate corporate entities 

with separate functions and officers and directors.60 In fact, the parties could actually be considered 

competitors. For this Court to find the existence of a joint venture, it must find the following 

elements: “(1) intention of the parties to create a joint venture; (2) joint control or joint right of 

control; (3) joint proprietary interests in the subject matter of the venture; (4) right of both venturers 

to share in the profits; and (5) duty of both to share in the losses.”61 A partnership, on the other 

hand, “is created ‘when persons join together their money, goods, labor, or skill for the purpose of 

carrying on a trade, profession, or business and when there is community of interest in the profits 

and losses.’”62 The existence of a partnership is fully dependent upon “whether the partners really 

and truly intended to join together for the purpose of carrying on the business and sharing in the 

profits and losses or both.”63 

Plaintiffs allege CCL, VOMT, and Berkley operate as a general joint venture/partnership 

“with respect to the sale of Berkley timeshares and vacation packages,”64 but Plaintiffs are unable to 

substantiate this allegation as no evidence exists to support this claim. Nor do Plaintiffs ever tie any 

such theory to the specific telephone calls at issue and the relationship with the SROs. Regardless, 

 

59. VOMT Dec., ¶¶ 7-11. 

60. VOMT Dec., ¶¶ 7-11. 

61. Skeen v. Carnival Corp., No. 08-22618-CIV, 2009 WL 1117432, at *3 (S.D. Fla. Apr. 24, 

2009). Florida law contains similar elements; the Florida Supreme Court has explained: 

In order to create a joint venture, a contract must contain the following elements: (1) a 

community of interest in the performance of the common purpose, (2) joint control or right 

of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the 

profits and (5) a duty to share in any losses which may be sustained. The absence of one of 

the elements precludes a finding of a joint venture. 

Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1089 (Fla. 2008). 

62. C. I. R. v. Culbertson, 337 U.S. 733, 740 (1949). 

63. Id. at 741. 

64. DE 289, ¶¶ 32-33. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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whether a joint venture or partnership exists between CCL, VOMT, and Berkley has no bearing on 

Plaintiffs’ claims as the undisputed evidence shows none of these entities initiated the telephone 

calls. Nevertheless, there is no evidence that VOMT created a joint venture or partnership with any 

party to make the calls at issue; in fact, the evidence demonstrates that no such venture or 

partnership was ever intended or created since VOMT specifically crafted its contracts with other 

parties to avoid the creation of a joint venture; neither VOMT nor the individuals who control it have 

any say in Berkley’s operations, VOMT and Berkley did not share in losses or profits, and Berkley 

does not have any control or right to control VOMT’s operations.65 VOMT is also a separate and 

distinct entity from CCL; it was incorporated seven (7) years before CCL, and maintains its own 

corporate books and records, and separate bank accounts, and there never was any intention for 

VOMT and CCL to operate as a joint venture.66 Plaintiffs cannot show the existence of any of the 

foregoing elements. Thus, summary judgment must be granted in favor of VOMT on any supposed 

joint venture or partnership theory of liability.67 

E. VOMT is entitled to Summary Judgment on telephone calls to Plaintiffs that did 

not reference a cruise or appear in Plaintiffs’ or Defendants’ phone records 

In an effort to avoid duplication, VOMT incorporates the legal authority and argument made 

by CCL in its Motion for Summary Judgment. VOMT is entitled to summary judgment as to any 

calls allegedly placed to Plaintiffs that cannot be substantiated by Plaintiffs’ call records, as required 

by the class definitions. 

 

65. VOMT Dec., ¶¶ 7-11. 

66. Def. SOF, ¶ 59; VOMT Dec., ¶¶ 20-21. 

67. To the extent Plaintiffs now claim that VOMT is liable pursuant to some sort of alterego relationship with CCL, not only is no such theory pleaded, but it is expressly refuted by the 

record evidence. See VOMT Dec., ¶¶ 7-11, and CCL Dec., ¶¶ 7-11. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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F. VOMT is entitled to Summary Judgment on calls placed to Landline 

Telephones 

In an effort to avoid duplication, VOMT incorporates the legal authority and argument made 

by CCL in its Motion for Summary Judgment. Because Regina Stone, the only named plaintiff to 

claim she received a violative call on her residential landline, is unable to substantiate with her own 

call records the alleged violative calls she claims she received, VOMT is entitled to summary 

judgment on the entire class of calls placed to Landline Telephones. 

III.STAY OF LAWSUIT PENDING OUTCOME OF SPOKEO v. ROBINS

VOMT alternatively request the Court to stay this lawsuit pending the Supreme Court’s 

impending decision in Spokeo, Inc. v. Robins,68 as set forth in VOMT and CCL’s Motion to Stay 

being filed simultaneously with this instant Motion.69 

IV. CONCLUSION 

As the foregoing arguments establish, VOMT is entitled to summary judgment on all counts. 

Alternatively, this Court should stay this lawsuit pending the ruling of the Supreme Court of the 

United States in the case of Spokeo v. Robins. 

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 

 

68. 135 S.Ct. 1892 (2015). 

69. DE 335. 
VOMT’s Memorandum in Support of 

Motion for Summary Judgment 

Case No. 1:12-cv-4069 

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954.491.1120 (Telephone) 

954.343.6958 (Facsimile) 

 -and- 

 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 Vacation Ownership Marketing Tours, 

Inc. 

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