IN THE UNITED STATES DISTRICT COURT FOR THE

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

GERARDO ARANDA, 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’ AND THE CLASSES’ COMBINED MEMORANDUM IN 

OPPOSITION TO DEFENDANTS’ MOTION TO DECERTIFY AND

CCL AND VOMT’S SECOND MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

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

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

I. Plaintiffs and Class Members Suffered Concrete Injuries When They Received

Unlawful Prerecorded Voice Calls...................................................................................3

A. Spokeo confirmed that Congress can identify intangible harms 

redressable in federal court...................................................................................4

B. Congress’s judgment and the common law confirm that a violation of the 

TCPA is a concrete injury.....................................................................................6

C. The TCPA is not procedural in nature ................................................................9

II. Defendants’ Post Hoc Justifications for their Unlawful Calls Do Not Remedy 

Class Members’ Injuries ................................................................................................14

III. CCL/VOMT Cannot Obtain Summary Judgment......................................................15

IV. The Core of Defendants’ Decertification Argument Has Nothing to Do 

With Spokeo ....................................................................................................................16

CONCLUSION ...........................................................................................................................19

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TABLE OF AUTHORITIES

United States Supreme Court Cases

Campbell-Ewald v. Gomez, 

136 S. Ct. 663 (2016).......................................................................................................2, 8

Linda R.S. v. Richard D.,

410 U.S. 614 (1973).............................................................................................................5

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)................................................................................................... passim

Mims v. Arrow Fin. Servs. LLC, 

132 S. Ct. 740 (2012).................................................................................................7, 8, 10

Nashville, C. & St. L. Ry. Co. v. Wallace,

288 U.S. 249 (1933).............................................................................................................7

Simon v. Eastern Ky. Welfare Rights Organization,

426 U.S. 26 (1976).............................................................................................................17

Spokeo, Inc. v. Thomas Robins,

 136 S. Ct. 1540 (2016)............................................................................................... passim

Summers v. Earth Island Inst.,

 555 U.S. 488 (2009).............................................................................................................9

Tyson Foods, Inc. v. Bouaphakeo,

 136 S. Ct. 1036 (2016)..................................................................................................18, 19

Wal-Mart Stores, Inc. v. Dukes,

 564 U.S. 338 (2011)...........................................................................................................16

United States Circuit Court of Appeals Cases

Bhd. Of Maint. of Way Employees Div./IBT v. Norfolk S. Ry. Co.,

745 F.3d 808 (7th Cir. 2014) .............................................................................................16

Church v. Accretive Health, Inc.,

No. 15-15708, 2016 WL 3611543 (11th Cir. July 6, 2016).....................................6, 10, 13

In re Nickelodeon Consumer Privacy Litig.,

No. 15-1441, 2016 WL 3513782 (3d Cir. June 27, 2016)...................................................6

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Kyles v. J.K. Guardian Sec. Servs., Inc.,

222 F.3d 289 (7th Cir. 2000) ...............................................................................................5

Murray v. Conseco, Inc.,

467 F.3d 602 (7th Cir. 2006) .............................................................................................16

Palm Beach Gold Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A.,

781 F.3d 1254 (11th Cir. 2015) .........................................................................................13

Sterk v. Redbox Automated Retail, LLC,

770 F. 3d 618 (7th Cir. 2014) ....................................................................................4, 5, 17

Westinghouse Elec. Corp. v. N.L.R.B.,

809 F.2d 419 (7th Cir. 1987) .............................................................................................13

United States District Court Cases

Aranda v. Caribbean Cruise Line, Inc.

No. 12 C 4069, 2016 WL 1555576 (N.D. Ill. Apr. 18, 2016)..............................................1

Birchmeier v. Caribbean Cruise Line, Inc.,

302 F.R.D. 240 (N.D. Ill. 2014)...............................................................................1, 15, 19

Booth v. Appstack, Inc.,

No. C13-1533JLR, 2016 WL 3030256 (W.D. Wash. May 25, 2016)...................10, 11, 13

Fox v. Riverview Realty Partners,

No. 12 C 9350, 2014 WL 1613022 (N.D. Ill. Apr. 22, 2014)............................................18

Gubala v. Time Warner Cable, Inc., 

2016 WL 3390415 (E.D. Wis. June 17, 2016)...................................................................12

Khan v. Children’s National Health System,

2016 WL 2946165 (D. Md. May 19, 2016).................................................................12, 13

Kolinek v. Walgreen Co.,

311 F.R.D. 483 (N.D. Ill. 2015).........................................................................................15

Lane v. Bayview Loan Servicing, LLC,

No. 15 C 10446, 2016 WL 3671467 (N.D. Ill. July 11, 2016)..........................2, 13, 17, 18

Matmanivong v. Nat’l Creditors Connection, Inc.,

79 F. Supp. 3d 864 (N.D. Ill. 2015).....................................................................................5

Mey v. GOT Warranty, Inc., 

No. 5:15-cv-101, 2016 WL 3645195 (N.D.W.V. June 30, 2016) .................................7, 14

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Parish v. Sheriff of Cook Cty.,

No. 07 C 4369, 2016 WL 1270400 (N.D. Ill Mar. 31, 2016)............................................16

Rogers v. Capital One Bank (USA), N.A.,

ˆ No 1:15-CV-4016-TWT, 2016 WL 3162592 (N.D. Ga. June 7, 2016).......................11, 13

Smith v. Ohio State University,

2016 WL 3182675 (S.D. Ohio June 8, 2016) ....................................................................11

Thomas v. FTS USA, LLC, 

2016 WL 3661960 (E.D. Va. June 30, 2016) ................................................................1, 12

Wall v. Michigan Rental,

2016 WL 3418539 (E.D. Mich. June 22, 2016).................................................................11

Miscellaneous Authority

15 U.S.C. § 1681............................................................................................................................12

47 U.S.C. § 227............................................................................................................................1, 8

47 U.S.C. § 551..............................................................................................................................12

137 Cong. Rec. 30, 821-30 (1991)...................................................................................................8

H.R. Rep. 98-934 ...........................................................................................................................12

In re Rules & Regs. Implementing the Tel. Consumer Prot. Act

 30 FCC Rcd. 7961 (2015)....................................................................................................8

Pub. L. 102-243, 105 Stat. 2394 (1991)...........................................................................................8

Restatement (Second) of Torts (1979)...........................................................................................14

Rules Enabling Act of 1934, 

 28 U.S.C. § 2072...............................................................................................................16

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy

 4 Harv. L. Rev. 193 (1890).................................................................................................6

U.S. Const. art. III.................................................................................................................. passim

William Rubenstein, Alba Conte & Herbert Newberg, 

Newberg on Class Actions (4th ed. 2011)......................................................................................17

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INTRODUCTION

This case is not about a mere technical or procedural violation of the law. Defendants 

Caribbean Cruise Line, Inc. and Vacation Ownership Marketing Tours, Inc. (together, 

“CCL/VOMT”), and Defendant Berkley, Inc. engaged in one of the most extensive unsolicited 

telemarketing robocall schemes this country has ever seen, all in an effort to sell vacation 

products to Class members who never asked to buy them. The Court has already certified two 

Classes of consumers who received the calls and granted partial summary judgment in favor of 

one of the Classes, holding that prerecorded voice calls to cellular phones violated the Telephone 

Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). See Birchmeier v. Caribbean Cruise 

Line, Inc., 302 F.R.D. 240, 243 (N.D. Ill. 2014); Aranda v. Caribbean Cruise Line, Inc., No. 12 

C 4069, 2016 WL 1555576 (N.D. Ill. Apr. 18, 2016). 

Now, just weeks before trial, Defendants contend that the Classes were improperly 

certified based on the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, 136 U.S. 1540 

(2016). They now claim Class members’ receipt of these invasive calls in violation of the TCPA 

is no longer sufficient to confer Article III standing, and, as an individual inquiry is now 

necessary to determine whether each Class member suffered a “concrete” harm, certification of 

the Classes is no longer appropriate. CCL/VOMT further argue, in their second (and separate) 

motion for summary judgment, that the entire case must be dismissed for lack of subject-matter 

jurisdiction. The Court should have no problem quickly rejecting Defendants’ arguments. 

Using Spokeo in an effort to decertify the Classes or grant summary judgment to the 

Defendants is a complete misfit. First, Spokeo does not represent a sea change in standing 

doctrine. See Thomas v. FTS USA, LLC, 2016 WL 3661960, at *4-*5 (E.D. Va. June 30, 2016) 

(“Contrary to Defendants’ position, Spokeo did not change the basic requirements of standing.”); 

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see also Lane v. Bayview Loan Servicing, LLC., No. 15 C 10446, 2016 WL 3671467, at *3, 5

(N.D. Ill. July 11, 2016) (noting that the Seventh Circuit’s existing jurisprudence on Article III 

standing as it relates to violations of a federal debt collection statute is “consistent with Spokeo”). 

Instead, the Spokeo majority merely clarified that courts must separately analyze the “concrete” 

and “particularized” prongs of the Article III standing inquiry and set forth some guidance on 

how to determine whether an injury is concrete—even when it is not tangible or palpable. 

Because Congress identified receipt of a prerecorded voice call as an intangible injury, a plaintiff 

that received such a call unquestionably has standing to seek redress in federal court. Indeed, 

when the Supreme Court specifically addressed Article III standing in a TCPA case during the 

same term as Spokeo, none of the four separate opinions raised the concern that an unlawful 

phone call was not a sufficient injury to confer standing. See Campbell-Ewald Co. v. Gomez, 136 

S. Ct. 663, 669, 672 (stating the rule that parties must have a “concrete interest” in the litigation 

and holding that the plaintiff had such an interest); id. at 679 (“All agree that at the time Gomez 

filed suit, he had a personal stake in the litigation.”) (Roberts, C.J., dissenting). 

Moreover, despite the Spokeo petitioner’s attempts to inject considerations related to 

class actions into the Spokeo litigation, the Supreme Court did not render a decision that even 

touched upon Rule 23 or class certification, and it did not hold that Article III standing requires 

individual inquiries. Simply put, Defendants have no support for their position that every single 

absent Class member must have standing to bring a claim on his or her own. But the question is 

irrelevant here anyway, because each Class member would have standing to assert an individual 

claim.

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There is no question that Plaintiffs have standing to seek relief on behalf of themselves 

and the Classes. The Classes were appropriately certified, and it’s now time for the case to 

proceed to trial in September.

ARGUMENT

I. Plaintiffs and the Other Class Members Suffered Concrete Injuries When They 

Received Unlawful Prerecorded Voice Calls.

Defendants’ Motions both rely on the flawed premise that Spokeo requires plaintiffs to 

demonstrate that they have suffered an injury that “exists separate and apart from a statutory 

violation.” (CCL/VOMT Second Mot. for Summary Judgment at 8; Mot. to Decertify at 7.) 

That’s just wrong. The fact that a person received a call in violation of the TCPA is enough, on 

its own, to authorize that person to sue in federal court. As the Supreme Court made clear, if an 

individual suffers an intangible harm that Congress has identified as such, that person has 

suffered a concrete injury that is “real” and that “actually exist[s],” which “meet[s] minimum 

Article III requirements.” Spokeo, 136 S. Ct. at 1548-49. Receipt of unsolicited, prerecorded

voice telemarketing calls is just such an injury. Congress designed the TCPA to remedy the 

invasion of privacy that it found inherent to the receipt of prerecorded voice calls—an injury 

closely related to privacy interests that have been recognized at common law for centuries. 

Unlike the statute at issue in Spokeo, the provisions of the TCPA that Defendants violated here 

are entirely substantive, and not at all procedural in nature. Therefore, the Supreme Court’s 

concerns about authorizing lawsuits for “bare procedural violations” do not come into play. Id. at 

1549. As each Class member received a call, and each call was unlawful, every Class member 

has standing to sue Defendants.

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A. Spokeo confirmed that Congress can identify intangible concrete harms 

redressable in federal court.

Article III of the Constitution extends the judicial power of federal courts to “Cases” and 

“Controversies,” U.S. Const. art. III, § 2, and requires the litigant invoking the federal courts’ 

jurisdiction to have “standing,” the first element of which being that the litigant has suffered “an 

injury in fact.” Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 623 (7th Cir. 2014). 

Spokeo reiterated the long-standing rule that “[t]o establish injury in fact, a plaintiff must show 

that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” 136 S. Ct. at 1548 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘Concrete’ is not ... 

necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to 

recognize, we have confirmed in many of our previous cases that intangible injuries can 

nevertheless be concrete.” Id. at 1549. 

Importantly, and contrary to Defendants’ inaccurate statements of law that a statutory 

violation alone cannot be sufficient, the Supreme Court expressly held that the violation of a 

statutory right—in and of itself—may be a concrete injury so long as the right protects a 

legislatively identified interest. Compare Spokeo, 136 S. Ct. at 1549 (“[T]he violation of a 

procedural right granted by statute can be sufficient in some circumstances to constitute injury in 

fact.... [A] plaintiff in such a case need not allege any additional harm beyond the one Congress 

has identified.”) (emphasis in original) with CCL/VOMT Second Mot. for Summary Judgment at 

8 (“Spokeo thus makes clear that a plaintiff must prove that he or she has suffered a real-world, 

concrete injury that actually exists separate and apart from a statutory violation.”) and Mot. to 

Decertify at 2 (“[T]he allegation of a mere statutory violation—without more—cannot satisfy 

Article III’s standing requirements”).)

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In short, Spokeo’s holding reaffirms the Seventh Circuit’s governing rule, that “Congress 

has the power to ‘enact statutes creating legal rights, the invasion of which creates standing, even 

though no injury would exist without the statute.’” See Kyles v. J.K. Guardian Sec. Servs., Inc., 

222 F.3d 289, 294 (7th Cir. 2000) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 

(1973)); Sterk, 770 F.3d at 623 (same); Matmanivong v. Nat’l Creditors Connection, Inc., 79 F. 

Supp. 3d 864, 870 (N.D. Ill. 2015) (Kennelly, J.) (same).

To be sure, a plaintiff does not “automatically satisfy the injury-in-fact requirement 

whenever a statute grants a person a statutory right and purports to authorize that person to sue to 

vindicate that right.” Spokeo, 136 S. Ct. at 1549. But the relevant issue is not, as Defendants 

assert, “whether each [C]lass member suffered a concrete injury in fact as a result of an alleged 

violation of the TCPA.” (See Mot. to Decertify at 11) (emphasis added).) Rather, the inquiry is 

whether Congress has exercised its “power to define injuries and articulate chains of causation 

that will give rise to a case or controversy where none existed before.’” Spokeo, 136 S. Ct. at 

1549 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring in part and concurring in the 

judgment)); see also id. at 1553 (Thomas, J., concurring) (“Congress can create new private 

rights and authorize private plaintiffs to sue based simply on the violation of those private 

rights.”). Where the injury is the invasion of a right tethered to—not “divorced from”—the harm 

Congress identified, then Spokeo poses no bar to standing. See id. at 1549 (majority opinion).

The issue, then, is whether Congress has created such a right with the TCPA—not, as 

Defendants would have it (and as Spokeo unsuccessfully argued to the Supreme Court), whether 

Class members suffered an additional harm resulting from the telephone calls. Even though 

receiving a prerecorded voice “may not have resulted in tangible economic or physical harm that 

courts often expect, the Supreme Court has made clear an injury need not be tangible to be 

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concrete.” Church v. Accretive Health, Inc., No. 15-15708, 2016 WL 3611543, at *3 (11th Cir. 

July 6, 2016) (concluding that “[t]he invasion of Church’s right to receive the disclosures is not 

hypothetical or uncertain; Church did not receive information to which she alleges she was 

entitled,” which was sufficient to confer standing). That intangible harm, like violations of other 

privacy rights identified by Congress, is “concrete in the sense that it involves a clear de facto

injury[.]” In re Nickelodeon Consumer Privacy Litig., — F.3d —, No. 15-1441, 2016 WL 

3513782, at *7 (3d Cir. June 27, 2016) (concluding in a federal statutory privacy case that 

“[n]one of [the] pronouncements” in Spokeo “call[] into question whether the plaintiffs in this 

case have Article III standing”). That’s enough to establish Article III standing.

B. Congress’s judgment and the common law confirm that a violation of the 

TCPA is a concrete injury.

By virtue of the TCPA, Plaintiffs and the other Class members have a legally protected

privacy interest in their right not to receive certain types of telephone calls. When Plaintiffs and 

Class members received such calls, that right was violated, and they suffered a classic intangible 

harm: invasion of privacy. In assessing whether a statute that allows recovery for an intangible 

harm adequately defines a concrete injury, both history and Congress’s judgment play important 

roles. Spokeo, 136 S. Ct. at 1549. Considerations of both factors establish that Congress created a 

substantive concrete privacy interest when it passed the TCPA, which was invaded when 

Plaintiffs and the other Class members received the unlawful calls at issue. No more is required 

to establish Article III injury in fact.

As far as history is concerned, an individual’s interest in privacy has long been 

recognized at common law. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 

4 Harv. L. Rev. 193, 220 n.1 (1890) (noting that, at the end of the 19th Century, the common law 

had already recognized a privacy interest for a century and a half). The TCPA furthers this 

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common law privacy interest by providing a federal cause of action to stop telemarketers from 

“escaping state-law prohibitions on intrusive nuisance calls.” Mims v. Arrow Fin. Servs., LLC, 

132 S. Ct. 740, 744 (2012); see also Mey v. GOT Warranty Inc., No. 5:15-cv-101, 2016 WL 

3645195, at *3 (N.D.W.V. June 30, 2016) (“In essence, the TCPA can be seen as merely 

liberalizing and codifying the application of this common law tort to a particularly intrusive type 

of unwanted telephone call.”).

And, “[e]ven if invasion of privacy were not a harm recognized as redressable through a 

common law tort claim, it would meet the requirement of concreteness as interpreted by Spokeo

because Congress so clearly identified it as a legally cognizable harm.” Mey, 2016 WL 3645195,

at *4. “The judiciary clause of the Constitution ... did not crystallize into changeless form the 

procedure of 1789 as the only possible means for presenting a case or controversy otherwise 

cognizable by the federal courts.” Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 264 

(1933). Congress therefore can create “new rights of action that do not have clear analogs in our 

common law tradition.” Lujan, 504 U.S. at 580 (Kennedy, J., concurring in part and concurring 

in the judgment). To do so, it must “identify the injury it seeks to vindicate and relate the injury 

to the class of persons entitled to bring suit.” Id. 

Here, the Congressional findings—which Defendants wholly ignore despite Spokeo’s 

direction that this is the required inquiry—accompanying the TCPA repeatedly stress the same 

privacy-protecting aim that the Supreme Court recognized in Mims:

(5) Unrestricted telemarketing, however, can be an intrusive invasion of privacy

....

(6) Many consumers are outraged over the proliferation of intrusive, nuisance 

calls to their homes from telemarketers.

* * * *

(9) Individuals’ privacy rights, public safety interests, and commercial freedoms 

of speech and trade must be balanced in a way that protects the privacy of 

individuals and permits legitimate telemarketing practices.

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(10) Evidence compiled by the Congress indicates that residential telephone 

subscribers consider automated or prerecorded telephone calls, regardless of the 

content or the initiator of the message, to be a nuisance and an invasion of 

privacy.

* * * *

(12) Banning such automated or prerecorded telephone calls to the home, except 

when the receiving party consents to receiving the call or when such calls are 

necessary in an emergency situation affecting the health and safety of the 

consumer, is the only effective means of protecting telephone consumers from 

this nuisance and privacy invasion.

Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) (found as a note to 47 U.S.C. § 227) (emphasis 

added). See also 137 Cong. Rec. 30, 821–30, 822 (1991) (statement of Senator Hollings) 

(“Computerized calls are the scourge of modern civilization. They wake us up in the morning; 

they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until 

we want to rip the telephone right out of the wall.”); In re Rules & Regs. Implementing the Tel. 

Consumer Prot. Act, 30 FCC Rcd. 7961 ¶ 1 (2015) (“Month after month, unwanted robocalls and 

texts ... top the list of consumer complaints received by the [FCC].”) (footnote omitted). Having 

found that prerecorded voice telemarketing calls “can be an intrusive invasion of privacy” and 

that “many consumers [were] outraged over the proliferation of intrusive, nuisance telemarketing 

calls to their homes,” Congress “provided complementary means of enforcing the [TCPA],” 

which includes a private right of action for consumers who received unlawful calls. Mims, 132 S. 

Ct. at 745-46 (2012).

Nothing in the Spokeo decision suggests that plaintiffs alleging statutory causes of action 

need to demonstrate any harm other than the one identified by Congress, a body that is “well 

positioned” to identify intangible harms and whose judgment is “instructive and important.” 

Spokeo, 136 S. Ct. at 1549. Indeed, as noted above, the Supreme Court addressed Article III 

standing in a TCPA case during the same term as Spokeo, and none of the four separate opinions

in that case raised the concern that a TCPA violation was not a sufficient injury. See CampbellCase: 1:12-cv-04069 Document #: 441 Filed: 07/21/16 Page 13 of 26 PageID #:10513
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Ewald, 136 S. Ct. at 669, 672 (stating the rule that parties must have a “concrete interest” in the 

litigation and holding that the plaintiff had such an interest); id. at 679 (“All agree that at the 

time Gomez filed suit, he had a personal stake in the litigation.”) (Roberts, C.J., dissenting).

In sum, Congress found that prerecorded voice telemarketing calls constitute an invasion 

of privacy, and in passing the TCPA, it defined receipt of such a call as an injury. Cf. Spokeo, 

136 S. Ct. at 1549 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring in part and 

concurring in the judgment)). Thus, Plaintiffs and the other Class members do not need to 

“allege any additional harm beyond the one Congress has identified”—the invasion of privacy 

resulting from the unlawful calls. See id. (emphasis in original). They have Article III standing, 

this Court has jurisdiction, and class certification remains proper.

C. The TCPA is not procedural in nature.

Defendants note that in the context of a federal statutory cause of action, “a bare 

procedural violation” that is “divorced” from the harm Congress was trying to remedy does not 

result in concrete injury. (Mot. to Decertify at 6 (quoting Spokeo, 136 S. Ct. at 1549).) That’s 

true but irrelevant here. The violations at issue in this case are directly tethered to, not divorced 

from, the harm that Congress identified. 

Although Defendants make no attempt to explain how a violation of the TCPA is 

“procedural,” a procedural statute, by definition, typically does not tell the regulated entity what

to do (or what not to do). It tells the regulated entity how (or how not) to do something. Cf. 

Spokeo, 136 S. Ct. at 1550 (using “fail[ure] to provide [a] required notice” as an example of a 

“bare procedural violation”); Lujan, 504 U.S. at 572 (describing “procedural requirement for a 

hearing prior to denial of [a] license application” and “procedural requirement for an 

environmental impact statement before a federal facility is constructed”); Summers v. Earth 

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Island Inst., 555 U.S. 488, 496 (2009) (treating denial of “the ability to file comments on some 

Forest Service actions” as “procedural injury”). Ensuring that a connection exists between a 

procedural right and a statutorily protected interest is necessary because “‘procedural rights’ are 

special.” Lujan, 504 U.S. at 572 n.7. A plaintiff may vindicate a procedural right without altering 

the substantive result, i.e., the government may issue a revised environmental impact statement 

and still decide to build a federal facility next door. Id. But unless the disregard of the procedural 

requirement impairs a separate concrete interest of the plaintiff’s, a suit to enforce a procedural 

right is little more than a suit to ensure the defendant follows the law. Id.; Spokeo, 136 S. Ct. at 

1551 (Thomas, J., concurring) (noting that Article III’s common-law history “required a further 

showing of injury for violations of ‘public rights’—rights that involved duties owed to the whole 

community, considered as a community”) (citation omitted).

That is not the case here. The portion of the TCPA that prohibits prerecorded voice calls 

does not require telemarketers to adopt certain procedures. Instead, it prohibits specific actions 

directed toward individual consumers, not because the consequences of those actions were 

undesirable, but because the practices were “invasive of privacy” in and of themselves. See 

Mims, 132 S. Ct. at 744 (“The [TCPA] bans certain practices invasive of privacy[.]”) (emphasis 

added); see also Booth v. Appstack, Inc., 2016 WL 3030256, at *5 (W.D. Wash. May 25, 2016) 

(concluding that receiving junk telephone calls in violation of the [TCPA] is concrete and not 

procedural in nature). This kind of substantive statutory right cannot, by its nature, implicate the 

“bare procedural violation” problem that Spokeo addresses. See, e.g., Church, 2016 WL 

3611543, at *3 n.2 (finding the “bare procedural violation” language in Spokeo “inapplicable” 

where “Congress provided [the plaintiff] with a substantive right [to receive certain information 

in a debt collection letter] . . . and [the plaintiff] has alleged that [the defendant] violated that 

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substantive right”); Booth, 2016 WL 3030256, at *5 (citing Spokeo, 136 S. Ct. at 1549-50); 

Rogers v. Capital One Bank (USA), N.A., No. 1:15-CV-4016-TWT, 2016 WL 3162592, at *2 

(N.D. Ga. June 7, 2016) (holding that violations of the TCPA are concrete injuries); see also 

Spokeo, 136 S. Ct. at 1552 (Thomas, J., concurring) (“[T]he concrete-harm requirement does not 

apply as rigorously when a private plaintiff seeks to vindicate his own private rights. Our 

contemporary decisions have not required a plaintiff to assert an actual injury beyond the 

violation of his personal legal rights to satisfy the ‘injury-in-fact’ requirement.”).

Ignoring these cases, Defendants point to the small handful of district courts applying 

Spokeo to arguably procedural statutes that have found that plaintiffs don’t have standing where 

they can’t allege the injury that a legislature intended to remedy when it required compliance 

with the procedure. (Mot. to Decertify at 6-7; CCL/VOMT Second Mot. for Summary Judgment 

at 9-11.) None of these cites inform the issues in dispute here. For example, in Wall v. Michigan

Rental, 2016 WL 3418539 (E.D. Mich. June 22, 2016), the plaintiffs’ claim arose under RICO, 

and the alleged predicate statutory violations involved a Michigan law that regulated a landlord’s 

use of security deposits. Id. at *3. The court reasoned that the plaintiffs lacked standing because 

“there is no assertion that [d]efendants spent the deposits, used them for their own benefit, or 

posed a risk of doing so—the sort of harms the statute was intended to prevent.” Id. In other 

words, because the alleged predicate statutory violations bore no connection to the interests 

protected by the predicate statute, the plaintiffs lacked standing. 

Smith v. Ohio State University, __ F. Supp. 3d __, 2016 WL 3182675 (S.D. Ohio June 8, 

2016), is to the same effect. Smith arose, like Spokeo, under the Fair Credit Reporting Act. The 

alleged statutory violation there was simply that although defendant sought and obtained 

plaintiffs’ authorization to run a credit report in connection with the plaintiffs’ job applications, it 

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failed to do so in separate form as required by the FCRA. Id. at *1. That one-off procedural 

violation had no connection to the interest protected by the Act—ensuring “fair and accurate 

credit reporting.” 15 U.S.C. § 1681(a)(1). Without any other harm (the plaintiffs not only gave 

their authorization, they got the jobs they applied for), there was no concrete injury. Id. at *4. 

Further, at least one other district court has come to the conclusion that failure to provide a 

required disclosure under FCRA is both a violation of a “clearly substantive” protection and a 

concrete injury. See Thomas, 2016 WL 3653878, at *7-11.

Gubala v. Time Warner Cable, Inc., 2016 WL 3390415 (E.D. Wis. June 17, 2016) is no 

more applicable. There the plaintiff—who employed questionable pleading tactics—presented a 

claim for unlawful retention of personally identifiable information under the Cable Act, 47 

U.S.C. § 551(e). The court dismissed the claim on the grounds that the plaintiff had not alleged 

“a concrete injury as a result of the defendant’s retaining his personally identifiable information.” 

2016 WL 3390415, at *4. The court did not engage in the analysis dictated by Spokeo, but its 

holding is arguably consistent with Spokeo: the Cable Act, among other things, is intended “to 

protect the privacy of cable subscribers.” H.R. Rep. 98-934, at 30. That interest is invaded by the 

disclosure of protected information, but retention on its own does not necessarily invade that 

interest. Gubala does include some dicta on what a plaintiff would need to show to establish

injury in a disclosure action, but this can safely be disregarded. The court was neither presented 

with a disclosure claim, nor did it attempt to engage in the analysis set forth in Spokeo to 

determine whether violation of the statutory right to nondisclosure invaded the statutory interest 

of preserving the privacy of certain information. See Gubala, 2016 WL 3390415, at *4.

Next, the court in Khan v. Children’s National Health System, __ F. Supp. 3d __, 2016 

WL 2946165 (D. Md. May 19, 2016), was presented with a different question entirely: whether a 

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data breach, on its own, creates injury-in-fact. Id. at *3-*6. But the claims in that case were under 

the common law and general consumer protection statutes and the plaintiffs were unable to point 

to any findings of the Maryland General Assembly or D.C. City Council that suggested that 

those legislative bodies had identified a harm with respect to data breaches specifically. Here, on 

the other hand, Congress has identified Defendants’ exact conduct as harmful and “important 

enough for a lawsuit.” Lane, 2016 WL 3671467, at *3. Thus, Khan, like the other district court 

cases Defendants rely upon, is thus entirely inapplicable.

Finally, Defendants, in lengthy footnotes (repeated in both briefs), also attempt to 

distinguish the district court cases that have found the TCPA to grant substantive, not procedural, 

rights. (See Mot. to Decertify at 10-11, n.3; CCL/VOMT Second Mot. for Summary Judgment 

11-12, n.46). Setting aside that it is inappropriate to evade page limits “by moving gobs of text 

into single-spaced footnotes,” Westinghouse Elec. Corp. v. N.L.R.B., 809 F.2d 419, 425 n.1 (7th 

Cir. 1987), Defendants are unable to persuasively distinguish the cases. First, they argue that 

Rogers v. Capital One Bank is incorrect because it relies on Palm Beach Golf Center-Boca, Inc. 

v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015), which, according to 

Defendants, is “flatly contradicted by Spokeo.” (Mot. to Decertify at 10-11 n.3; CCL/VOMT 

Second Mot. for Summary Judgment at 11-12 n.46.) But the Eleventh Circuit disagrees and has 

made clear that it still considers Palm Beach to be good law. See Church, 2016 WL 3611543, at 

*3. Second, they suggest that Booth v. Appstack, Inc. held that the plaintiffs suffered an injury 

because they pleaded that they had to waste time answering telemarketing calls. (Mot. to 

Decertify at 10-11 n.3; CCL/VOMT Second Mot. for Summary Judgment 11-12 n.46.) Not so. 

The Booth court merely recognized that the wasted time is one reason “Congress agreed [that] 

such an injury is sufficiently concrete to confer standing.” 2016 WL 3030256, at *5. Other 

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district courts have reached the same conclusion: the TCPA confers a substantive right, the 

violation of which is sufficient on its own to confer standing. See, e.g., Mey, 2016 WL 3645195, 

at *3. Because Defendants’ calls violated the TCPA, everyone who received one has standing to 

sue, and no individual inquires warrant the decertification of the Classes.

II. Defendants’ Post Hoc Justifications for their Unlawful Calls Do Not Remedy Class 

Members’ Injuries.

Defendants also contend that Plaintiffs and the other Class members lack standing 

because some spoke to a representative “to consider the free cruise offer” and were therefore 

uninjured. (Mot. to Decertify at 11; CCL/VOMT Second Mot. for Summary Judgment at 11.) 

Essentially, Defendants are taking the position that every single Class member lost the right to 

sue for a TCPA violation because a small portion of the Class purchased a vacation or timeshare.

That position is flatly contradicted by the law. 

Defendants provide only vague citations to Spokeo (see Mot. to Decertify at 11 (citing 

Spokeo for the proposition that “[e]vents that leave individuals unaffected or better off do not 

meet the ‘usual meaning’ of a ‘real’ injury”)), even though Spokeo does not contain such a 

holding or support such a statement. It appears that they may be invoking the rule from 

Restatement (Second) of Torts § 920, which allows tortfeasors who harm the plaintiff but also 

“confer[] a special benefit to the interest of the plaintiff that was harmed” to consider “the value 

of the benefit conferred . . . in mitigation of damages.” But Defendants cannot cite a single case 

where such a rule has been applied in the standing context, nor can they demonstrate that it has 

ever been accepted in this Circuit. Further, the comments to the Restatement explain that it 

doesn’t even apply when the purported benefit relates to a different interest than the original 

injury. For example, “one who has harmed another’s reputation by defamatory statements cannot 

show in mitigation of damages that the other has been financially benefited from their 

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publication.” Id. cmt. b. Thus, even if that rule had been adopted in this Circuit and even if it had 

anything to do with standing (let alone in a way that changed after Spokeo), it wouldn’t apply to 

this situation because a free cruise or timeshare does not relate to the privacy interest that was 

harmed when Plaintiffs and Class members received an unlawful phone call in the first instance.

In short, the injuries at issue here are invasive telephone calls. Birchmeier, 302 F.R.D. at

251 (“Here there is a common injury, resulting from receipt of the allegedly offending calls[.]”); 

see also, Kolinek v. Walgreen Co., 311 F.R.D. 483, 491 (N.D. Ill. 2015) (“Each class member 

suffered the same alleged injury, namely, receipt of at least one prerecorded prescription refill 

reminder call to the class member’s cellular telephone without the recipient’s prior express 

consent.”) (Kennelly, J.). That invasion of privacy cannot be undone after it happens. And, while 

perhaps Defendants feel as though an offer of a so-called “free” cruise is enough to remedy an

unlawful phone call, Congress has determined otherwise and its judgment must be respected. 

The TCPA sets out precisely the appropriate remedy for consumers who suffer such an invasion, 

and Plaintiffs seek that remedy in this suit, both on their own behalf and on behalf of the Classes.

III. CCL/VOMT Cannot Obtain Summary Judgment.

CCL/VOMT—notably not joined by Berkley—have separately moved for summary 

judgment in addition to decertification based on their assertion that, in light of Spokeo, the Court 

no longer has subject matter jurisdiction. Their arguments range from merely wrong, (see 

CCL/VOMT Mot. for Summary Judgment at 8 (arguing that Spokeo requires additional resulting 

harm where Congress has defined a substantive right), to downright incomprehensible. (See id. at 

11 (arguing that Plaintiffs lack standing to bring their claims on an individual basis because other 

Class members arranged for a “free cruise”).) Here, again, CCL/VOMT’s arguments are entirely 

wrong. 

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First, and as explained in detail above, Plaintiffs and Class members all have standing 

here as a result of Defendants’ uniform violation of the TCPA. (See supra, Section I.)

Further, even if Plaintiffs did not have standing, CCL/VOMT couldn’t get the relief 

they’re seeking. A court without jurisdiction cannot grant summary judgment, it can only dismiss 

without prejudice. Bhd. of Maint. of Way Employees Div./IBT v. Norfolk S. Ry. Co., 745 F.3d 

808, 812 (7th Cir. 2014); Murray v. Conseco, Inc., 467 F.3d 602, 605 (7th Cir. 2006) (“‘No 

jurisdiction’ and ‘with prejudice’ are mutually exclusive.”).1 Accordingly, CCL/VOMT’s second 

summary judgment motion should be denied.

IV. The Core of Defendants’ Decertification Argument Has Nothing to Do With Spokeo.

Finally, although Defendants cast their decertification motion as relating to Spokeo, their 

argument has effectively nothing to do with that case. Specifically, their core argument is that the 

Classes must be decertified because to do otherwise would deprive Defendants of their right to 

“litigate [their] statutory defenses to individual claims.” (Mot. to Decertify at 8 (quoting WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011).) Defendants do not, however, identify any 

such defenses that they believe are relevant, let alone any such defenses that somehow arose 

because of Spokeo. Indeed, the only statute Defendants raise predates not only this case, but also 

the TCPA (and even touch-tone telephones). (Mot. to Decertify at 7 (citing Rules Enabling Act 

of 1934).) See Parish v. Sheriff of Cook Cty., No. 07 C 4369, 2016 WL 1270400, at *1 (N.D. Ill. 

Mar. 31, 2016) (“[I]n the absence of materially changed or clarified circumstances, or the 

occurrence of a condition on which the initial class ruling was expressly contingent, courts 

should not condone a series of rearguments on the class issues by . . ..the opponent of the class.”) 

 1 In any event, even if this case were to be dismissed, such dismissal would be without 

prejudice, and Plaintiffs would immediately refile in state court.

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(quoting 3 W. Rubenstein, A. Conte & H. Newberg, Newberg on Class Actions § 7:47 (4th ed. 

2011)). Further, Spokeo didn’t mention statutory defenses to individual claims, nor does it have 

anything to do with class actions or class certification. See Spokeo, 136 S. Ct. at 1547 n.6 (“That 

a suit may be a class action . . . adds nothing to the question of standing[.]”) (quoting Simon v. 

Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, n. 20 (1976)). There is no reason to 

relitigate class certification now.

Defendants next attempt to tie their attempt to reargue class certification to Spokeo by 

asserting that the defenses they intend to raise are supported by that decision. To that end, they 

cite Spokeo for the propositions that:

[1] Class members who suffered no financial loss and who either benefited from the time 

spent on the phone or (at minimum) had no quarrel with the conversation do not have a 

“concrete interest that is affected” by the allegedly improper phone call. 

***

[2] Events that leave individuals unaffected or better off do not meet the “usual meaning” 

of a “real” injury.

(Mot. to Decertify at 10) (citations omitted). But Spokeo doesn’t even come close to saying 

either of those things. 

First, despite the Spokeo Petitioner’s argument that an injury must be “palpable” for 

Article III purposes, see Reply Brief for Petitioner, Spokeo, Inc. v. Robins, No. 13-1339, 2015 

WL 5731782, at *5 (U.S.), the Supreme Court specifically recognized that intangible (i.e. not 

financial) injuries “can nevertheless be concrete.” Spokeo, 136 S. Ct. at 1549; see also Lane,

2016 WL 3671467, at *3 (“[E]ven though actual monetary harm is a sufficient condition to show 

concrete harm, it is not a necessary condition.”). Defendants’ conclusion that Class members 

must show financial injury is therefore directly at odds with binding authority. See Spokeo, 136 

S. Ct. at 1549; Sterk, 770 F.3d at 623 (“[Defendant] appears to confuse the separate issue of 

whether plaintiffs have suffered financial harm as a result of the disclosure with Article III’s 

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injury-in-fact requirement for purposes of constitutional standing to bring suit in the first 

place.”). Second, Spokeo contains not a single mention of the supposed rule that individuals who 

are left subjectively “better off” lack standing. Defendants invented it out of whole cloth to 

support arguments that they decided not to make at class certification and, as explained above, 

the argument lacks merit.

Spokeo similarly contains no support for Defendants’ contention that all Class members 

must individually prove that they have standing. (See Mot. to Decertify at 7-8.) The governing 

rule in the Seventh Circuit is that “it is necessary . . . only for one named class plaintiff to have 

standing for the class to be certified,” so “[t]he Court will not deny class certification based on 

the arguable lack of standing of certain unnamed class members.” Fox v. Riverview Realty 

Partners, No. 12 C 9350, 2014 WL 1613022, at *3-4 (N.D. Ill. Apr. 22, 2014) (Kennelly, J.). 

Defendants suggest that Spokeo and Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), 

overrule the relevant Seventh Circuit authority sub silentio, but neither Spokeo nor Tyson address 

this issue. Cf. Lane, No. 15 C 10446, 2016 WL 3671467, at *5 (“It is worth noting too that the 

prior Seventh Circuit decisions addressing the concreteness of FDCPA injuries survived Spokeo, 

which established some general principles but did not contain a holding specific enough to 

overrule Seventh Circuit law on the FDCPA.”). Even the portion of Chief Justice Roberts’s 

concurring opinion in Tyson cited by Defendants didn’t relate to class certification, but to the 

distribution of a damage award in a case where some class members suffered no invasion of a 

legal right at all. See Tyson, 136 S. Ct. at 1052-53. That hardly supports the conclusion that the 

Court must inquire into whether each individual absent Class member was or “w[as] not irritated 

or annoyed by the call,” as Defendants claim. (See Mot. to Decertify at 9-10.) In any event, the 

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Court need not reach that issue here, because, as explained in detail above, every Class member 

was injured and would have standing to bring an individual claim.

In the end, the Court has already concluded that “[h]ere there is a common injury, 

resulting from receipt of the allegedly offending calls.” Birchmeier, 302 F.R.D. at 251. 

Defendants do not, and indeed cannot, cite to any portion of Spokeo that changes that conclusion, 

and their attempt to religitate class certification with no new evidence under the guise of Spokeo

should be summarily rejected. As long as receipt of a call in violation of the TCPA is a concrete 

injury (and as described in detail above, it is), then Plaintiffs and all the other Class members 

have standing.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Decertify and CCL/VOMT’s Second 

Motion for Summary Judgment should be denied, and the case should proceed to trial.

Respectfully submitted,

GERARDO ARANDA, GRANT BIRCHMEIER, 

STEPHEN PARKES, and REGINA STONE, on 

behalf of themselves and the Classes,

Dated: July 21, 2016 By: /s/ Eve-Lynn J. Rapp

Jay Edelson

Eve-Lynn J. Rapp

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Telephone: (312) 589-6370

Email: jedelson@edelson.com

jedelson@edelson.com

erapp@edelson.com

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Rafey S. Balabanian

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, CA 94107

Tel: 415.212.9300

Fax: 415.373.9435

rbalabanian@edelson.com

Counsel for Plaintiffs and the Classes 

Scott R. Rauscher

Michael Kanovitz

Jonathan I. Loevy

LOEVY & LOEVY

312 N. May Street, Suite 100

Chicago, Illinois 60607

Telephone: (312) 243-5900

Email: scott@loevy.com

mike@loevy.com

jon@loevy.com

Counsel for Plaintiffs and the Classes 

Scott D. Owens

LAW OFFICES OF SCOTT D. OWENS, ESQ.

664 East Hallandale Beach Boulevard

Hallandale, Florida 33009

Telephone: (954) 306-8104

Email: scott@scottdowens.com

Counsel for Stone

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CERTIFICATE OF SERVICE

I, Eve-Lynn J. Rapp, an attorney, hereby certify that on July 21, 2016, I served the above 

and foregoing Plaintiffs’ and the Classes Combined Memorandum in Opposition to 

Defendants’ Motion to Decertify and CCL and VOMT’s Second Motion for Summary 

Judgment, by causing the true and accurate copies of such paper to be transmitted to all counsel 

of record via the Court’s CM/ECF electronic filing system on this the 21st day of July 2016.

/s/ Eve-Lynn J. Rapp

 

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