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 situated, ) Case No. 12-cv-4069 

 ) 

 Plaintiffs, ) Judge Matthew F. Kennelly 

 ) 

v. ) 

 ) 

CARIBBEAN CRUISE LINE, INC., ) 

ECONOMIC STRATEGY GROUP, ) 

ECONOMIC STRATEGY GROUP, INC., ) 

ECONOMIC STRATEGY GROUP, LLC, ) 

THE BERKLEY GROUP, INC. AND ) 

VACATION OWNERSHIP MARKETING ) 

TOURS, INC., ) 

 ) 

 Defendants. ) 

__________________________________________) 

DEFENDANTS’ REPLY IN SUPPORT OF THEIR OBJECTIONS 

TO THE SPECIAL MASTER’S AWARD OF CALLS 

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Introduction 

The two most notable features of Plaintiffs’ opposition brief are its repeated failure to 

dispute the key factual premises that demonstrate Defendants’ Objections should be granted and 

its reliance on positions that directly conflict with the controlling provisions of the Settlement 

Agreement. For example, as to Defendants’ objection to the award of almost $9 million to five 

corporate claimants based upon the 97 numbers, Plaintiffs do not dispute that there is nothing in 

the supposed “source documents” for the 97 numbers that enables anyone to ascertain when these 

numbers were used to make political cruise calls (the “in-service dates and times”). Without that, 

it is impossible to determine that a call in a Class Member’s phone records pertains to the calling 

campaign at issue unless the Class Member could competently speak to the content of these calls. 

But Plaintiffs do not dispute that the five corporate claimants have failed to provide such an 

averment, as the person who signed the claim forms on behalf of all five corporate claimants never 

heard a single call claimed. Thus, while this single individual seeks millions of dollars on behalf 

of five corporate claimants, it is uncontested that he does not know the content of any of the calls. 

Similarly, Plaintiffs do not dispute that the five corporate claimants failed to aver to the 

content of calls from the 49 Bandwidth.com numbers. Unable to do so, they argue that such an 

averment is unnecessary here. But the record in this case is clear that, where a Class Member 

seeks to recover based upon outbound telephone numbers that were associated with other calling 

campaigns (as was the case with the 49 Bandwidth.com numbers), the Settlement Agreement 

requires that the Class Member provide the underlying phone record and aver to the content of the 

calls claimed from these numbers. 

Finally, as to the 39,222 Option One Class Members who failed to respond to Defendants’ 

challenges, Plaintiffs ask that this Court simply disregard the express provisions of Section 5.5 of 

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the Settlement Agreement that mandate that non-responding Option One Class Members are to be 

awarded one call. Plaintiffs cite no legal authority to support their position and, instead, request 

that this Court re-write the terms of the Settlement Agreement. In sum, there is no basis for 

eschewing the controlling provisions of the Settlement Agreement and these non-responding 

Option One Class Members should be awarded one call. 

Argument 

I. Plaintiffs Have Failed To Meet Their Burden To Show That There Is A Basis 

For Using The 97 Numbers To Award Calls. 

Plaintiffs’ opposition brief demonstrates why there is no basis for using the 97 numbers to 

award calls. To begin, Plaintiffs do not dispute that the five corporate claimants, which seek to 

recover almost $9 million of the settlement fund based upon the 97 numbers, failed to aver to the 

content of calls from the 97 numbers. Plaintiffs likewise concede that there is nothing in the 

supposed “source documents” for the 97 numbers that enables anyone to determine the in-service 

dates and times for when these telephone numbers were supposedly used for political cruise calls. 

Given that undisputed limitation of Plaintiffs’ “source documents,” there is no way to discern 

whether a call in a Class Member’s phone records from one of the 97 numbers was a political 

cruise call or a call from an unrelated calling campaign. And because of that reality, it is not 

surprising that Plaintiffs gave up trying to use the 97 numbers to establish class membership when 

Defendants pointed out these deficiencies in Plaintiffs’ “source documents” during class 

certification briefing. See Dkt. # 778, pp. 7-8. Yet Plaintiffs have provided nothing further to 

support the use of the 97 numbers and, as such, cannot meet their burden to show that there is a 

reliable basis for using the 97 numbers to award calls. 

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A. Plaintiffs Concede That The Five Corporate Claimants Did Not Aver To The 

Content Of Any Calls From The 97 Numbers. 

Plaintiffs do not – and cannot – dispute that, contrary to Robert Sepulveda’s sworn 

representation, he does not know the content of a single call claimed by the five corporate 

claimants from the 97 numbers. As such, Plaintiffs concede that Mr. Sepulveda is not competent 

to aver to the content of the thousands of calls claimed by these corporate claimants. Accordingly, 

there is no question that the five corporate claimants have failed to provide the sworn averment 

that the claim forms and Settlement Agreement specifically require. See Dkt. # 778-1, Claim 

Forms (requiring Option Two Class Members to aver that the number of calls they claim “used a 

prerecorded or robotic voice offering a free cruise in exchange for taking a public opinion and/or 

political survey”); Dkt. # 778-2, Settlement Agreement, § 1.36. 

Since Plaintiffs cannot escape the fact that the five corporate claimants failed to provide 

the required averment as to the content of the calls they claim, Plaintiffs incorrectly argue that, 

under the Settlement Agreement, no such averment was required. See Dkt. # 789, pp. 3-4. That 

argument is based upon a mis-reading of the Settlement Agreement and ignores this Court’s Class 

Certification decision. 

Section 1.36 of the Settlement Agreement provides that where a Class Member’s telephone 

is not on the Class List, the Class Member must provide its “own records [to] prove that they 

received the calls – such as their telephone records, bills and/or recordings of the calls” and “submit 

an affidavit or claim form if necessary to describe the content of the call.” See Dkt. # 778-2, 

Settlement Agreement, § 1.36. Plaintiffs incorrectly suggest that the “if necessary” language in 

Section 1.36 means that, where Class Members submit phone records, they do not have to provide 

a sworn averment. But that reads out the use of “and” in Section 1.36, which makes clear that 

these requirements are in the conjunctive (not the disjunctive). 

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Moreover, Plaintiffs’ construction of Section 1.36 ignores this Court’s Class Certification 

decision, which explains why the “if necessary” language was added to Section 1.36 of the 

Settlement Agreement. In its Class Certification decision, this Court specifically noted that the 

evidence showed that the 8 Missouri AG numbers were used exclusively for the calling campaign 

at issue here. See Dkt. # 241, pp. 14-15. But as to the 49 Bandwidth.com numbers, this Court 

noted that the “list obtained from Bandwidth.com does not reference the content of the calls made 

from those numbers.” Id. at p. 15. As this Court further explained, “[f]or this reason, plaintiffs 

propose ‘corroborat[ion of] class members’ own records’ with an affidavit or claim form process.” 

Id. Thus, the “if necessary” language in Section 1.36 distinguishes between telephone numbers 

such as the 8 Missouri AG numbers and telephone numbers such as the 49 Bandwidth.com 

numbers and the 97 numbers. The 8 Missouri AG numbers do not require further corroboration 

(i.e., a sworn averment as to the content of the call) because they were exclusively used to make 

the political cruise calls at issue. On the other hand, the 49 Bandwidth.com numbers and the 97 

numbers were not exclusively used for the political cruise call campaign and, therefore, an 

averment as to the content of the call is necessary. As we discuss below at page 6, Plaintiffs’ own 

source documents for the 97 numbers affirmatively demonstrate that these numbers were used by 

unrelated third parties and for campaigns that have nothing to do with political cruise calls. 

B. Plaintiffs Cannot Show That Individual Option Two Class Members Averred To 

Calls Based Upon The 97 Numbers. 

Plaintiffs do not dispute that the Class Action Settlement Website in this case only listed 

the 8 Missouri AG numbers and the 49 Bandwidth.com numbers (the “list of 57 numbers”). See

Dkt. # 778-6, List of 57 Numbers. Nor have they identified any communication or notice to Class 

Members showing that individual Option Two Class Members were apprised of the 97 numbers 

prior to filing their claims in this case. 

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 As Defendants explained in their Objections, because individual Option Two Class 

Members were not apprised of the 97 numbers prior to submitting their claim forms, they did not 

– and frankly could not – claim calls based on instances where the 97 numbers were in their 

telephone records. Defendants used the example of one Option Two Class member, Bryan Reo, 

to demonstrate that individual Option Two Class Members did not claim calls from the 97 

numbers, but nonetheless, pursuant to the Special Master’s Award, they have been credited with 

calls from the 97 numbers. See Dkt. # 778, pp. 6-7. In their opposition brief, Plaintiffs do not 

contest that Mr. Reo only claimed the number of calls based upon the 57 numbers that KCC posted 

on the Class Action Settlement Website. And Plaintiffs simply cannot explain how Mr. Reo or 

other individual Option Two Class Members somehow averred to the content of calls they never 

claimed from the list of 97 numbers. 

In an effort to make it appear that Mr. Reo and other individual Option Two Class Members 

could have averred to the content of calls from the 97 numbers when they submitted their claim 

forms, Plaintiffs “unequivocally” state that “during the challenge period, Mr. Reo was provided 

with th[e] [97 numbers].” See Dkt. # 789, p. 3 (emphasis added). But the challenge period started 

months after Mr. Reo and other individual Option Two Class Members submitted their sworn 

claim forms. As such, the fact that he (or other individual Option Two Class Members) received 

the 97 numbers after they submitted claim forms confirms that the sworn averment provided with 

their claim form necessarily did not speak to the content of calls from numbers that these Class 

Members were not aware of when they submitted their claim forms. 

C. Plaintiffs Have Not Met Their Burden To Demonstrate That There Is A Reliable 

Basis For Using The 97 Numbers To Award Calls. 

As an initial matter, Plaintiffs offer zero response to the fact that there is nothing in the 

“source documents” that enables anyone to establish the in-service dates and times for when the 

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97 numbers were supposedly used for political cruise calls. Despite the total lack of evidence 

concerning the in-service dates and times for these numbers, Plaintiffs unilaterally asked KCC to 

credit calls based upon these numbers for the entire one-year Class Period. But there is no basis 

for doing so. 

First, the list of 57 numbers that this Court specifically approved during the Class 

Certification process and which KCC posted on the Class Action Settlement Website all have 

specific in-service dates and times within the Class Period. Some were used for several days; 

others were used for several weeks or months. See Dkt. # 778-6, List of 57 Numbers. None of the 

57 numbers were used for the entirety of the Class Period. Id. Yet for the 97 numbers, which have 

no in-service dates and times, Plaintiffs ironically demand that these numbers should somehow be 

used to award calls for the entire one-year Class Period. 

Second, Plaintiffs’ own “source documents” confirm that, during the Class Period, the 97 

numbers were reported to have been used for calling campaigns unrelated to the political cruise 

call campaign. As Defendants detailed in their Objections (and which Plaintiffs’ do not dispute), 

Plaintiffs’ source documents show that the 97 numbers were used by an array of other companies 

unrelated to Defendants, including, among others, Capital One, Service Magic, Wells Fargo, 

WalMart, the Sierra Club, NCO Financial, and Card Member Services. See Dkt. # 778, pp. 11-12. 

Third, as Defendants detailed in their Objections (and which again Plaintiffs do not 

dispute), Plaintiffs’ “source documents” only provide information related to the 97 numbers for 

very limited time periods that span a matter of days, weeks and no more than one month. See Dkt. 

# 778, p. 11. And Plaintiffs offer no explanation how these isolated reports in their “source 

documents” that spanned no more than one month provide any basis to use the 97 numbers to 

award calls for the entire one-year Class Period. 

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In short, because Plaintiffs have failed to provide any basis to identify the in-service dates 

and times for the 97 numbers, they cannot meet their burden under the Settlement Agreement to 

award calls based upon the 97 numbers.1

 

In their opposition brief, Plaintiffs argue that they provided the Special Master with a 

summary chart showing that “each of the 97 numbers” was used for the calling campaign. See 

Dkt. # 789-2, Summary Chart. That is not correct. The chart that Plaintiffs supplied to the Special 

Master merely identified the Bates-number of the page(s) where the 97 numbers were referenced 

in the “source documents.” Id. But the Bates-number references provided by Plaintiffs do not 

support their claim that each of the 97 numbers were used for the political cruise call campaign. 

For example, the chart that Plaintiffs provided to the Special Master cited RS 000265 as the sole 

support for both 253-382-9966 and 972-281-0500. Id. The only reference on that page to those 

two telephone numbers is from a caller (Kim D from Texas) who reported that she received calls 

from these and other numbers that consisted of “2 seconds of breathing.” See Dkt. No. 778-10, 

RS 000265. There is no reference to the Defendants or political cruise calls. Id. 

Moreover, even where the pages cited by Plaintiffs refer to the calling campaign at issue 

here, there are references to people receiving calls from these same numbers from unrelated calling 

campaigns such as credit card companies and other unrelated third parties. See Dkt. # 778, p. 10, 

citing Exh. 7, Pltfs.’ Source Documents, at RS 000214-15. For example, even though the bloggers 

in Plaintiffs’ Source Documents report having received more than 150 calls from “Rachel” at 

                                                 

1

 Recognizing the inherent unreliability of the “source documents” for the 97 numbers, Plaintiffs argue 

that these deficiencies should be excused because they contend that the evidentiary standard for the 

claims administration stage of class actions is lower than other stages of the case. See Dkt. # 789, p. 7. 

But like many of Plaintiffs’ other arguments, this contention ignores the controlling language of the 

Settlement Agreement that specifies that, if a Class Member’s claim form is challenged, the Class 

Member has the “ultimate burden” to “demonstrate the number of calls, greater than one (1).” See Dkt. # 

778-2, Settlement Agreement, § 5.4. 

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“Card Services” from (425) 390-8922 (id.), Plaintiffs nevertheless suggest that the source 

documents somehow justify awarding $500 to each Class Member every time this phone number 

showed up in a Class Member’s phone records. 

Plaintiffs’ new chart – Exhibit 5 to their opposition brief – likewise fails to show that there 

is a reliable basis for using the 97 numbers to award calls. Exhibit 5 to Plaintiffs’ opposition seeks 

to address 29 of the 97 numbers that Defendants pointed out had no support in Plaintiffs’ “source 

documents.” While Plaintiffs attempt to connect these 29 telephone numbers to the calling 

campaign at issue, the references to political cruise calls in Exhibit 5 relate to other telephone 

numbers, not the 29 numbers identified at pages 8-9 of Defendants’ Objections. For instance, at 

page 2 of Exhibit 5, Plaintiffs concede, as they must, that the person reporting (253) 246-8515, 

(253) 246-8573 and (253) 246-8564 claims receiving 69 calls from these telephone numbers 

regarding purchasing a security system (not a political cruise call). See Dkt. # 789-6, p. 2. 

Plaintiffs argue that because this report was made in the “context” of a blog report about a different 

number – (253) 382-9912 – that included references to political cruise calls (as well as calls from 

other telemarketing campaigns) that there is somehow a basis to conclude that the three numbers 

reported to be used to sell security systems should be deemed to be telephone numbers used to 

make political cruise calls. Perhaps recognizing the flimsy nature of that contention, Plaintiffs try 

to argue that the above-referenced numbers are “related” to numbers associated with Pacific 

Telecom. Id. But the pages that they cite from the “source documents” do not indicate that those 

three numbers were being used by Pacific Telecom. See Dkt. # 789-4, pp. 256, 288-89. And, as 

we discuss below, even if these numbers were connected to Pacific Telecom, that does not mean 

they were used for political cruise calls as the Federal Trade Commission (“FTC”) found that 

Pacific Telecom numbers were being used to sell home security systems. See infra pp. 8-9. 

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And while Plaintiffs suggest that references in their “source documents” to “Pacific 

Telecom” (or “Pacifictel”) can be linked to Defendants (see Dkt. # 789, p. 6), Plaintiffs ignore that 

the very FTC lawsuit they point to shows that Pacific Telecom/Pacifictel was leasing telephone 

numbers and providing caller-ID services to many other telemarketing companies who were 

conducting calling campaigns unrelated to the political cruise call campaign.2 See Exh. A, 

05/18/2018 First Amended Complaint in FTC v. CCL, Inc., Case No. 15-CV-60423-WJZ, ¶¶ 16, 

94-95, 101-102. As the FTC complaint alleges, this included calling campaigns for credit card 

interest rate reduction programs, extended automobile warranties, home security systems, carpet 

cleaning services, travel services, debt consolidation and mortgage services. Id. at ¶¶ 101-02. And 

Plaintiffs’ own source documents are replete with references to these other calling campaigns. See 

Dkt. # 778, pp. 11-12. As such, there is no way to determine if references to Pacific 

Telecom/Pacifictel in Plaintiffs “source documents” relate to the political cruise call campaign at 

issue or the myriad of other calling campaigns that Pacific Telecom/Pacifictel was involved with 

according to the FTC. See Exh. A, ¶¶ 101-02. 

II. Plaintiffs Do Not Satisfy Their Burden To Show That The 49 Bandwidth.com 

Numbers Can Be Used As A Basis To Award Calls To The Five Corporate 

Claimants. 

Defendants have objected to the award of calls to the five corporate claimants based on 

calls from the 49 Bandwidth.com numbers because these corporate claimants did not provide a 

sworn averment as to the content of the calls received from these numbers. See Dkt. # 778, p. 13. 

                                                 

2

 Plaintiffs also suggest that references to “Independent Survey Group” in their “source documents” can 

be used to establish that the number was used to make political cruise calls. But the FTC complaint in 

FTC, et al. v. CCL, Inc. et al, demonstrates that “Independent Survey Group” (or “IND SUR GROUP”) 

was a caller-ID name that Pacific Telecom gave to its many telemarketing clients to disguise the source of 

calls. See Exh. A, at ¶ 117. Accordingly, there is no way to determine if the report of calls from 

“Independent Survey Group” or “IND SUR GROUP” were related to the political cruise call campaign or 

some other unrelated calling campaign that other telemarketers were using then. 

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Plaintiffs initially argue, as they do with respect to the 97 numbers, that no averment is necessary 

to support an award based upon the 49 Bandwidth.com numbers. They next argue that they “do 

not agree” that there is evidence that the 49 Bandwidth.com numbers were used for calling 

campaigns other than the political cruise call campaign. Neither argument has merit. 

As discussed above, when Option Two Class Members seek to recover based upon their 

own phone records (as is the case with respect to the 49 Bandwidth.com numbers), Section 1.36 

of the Settlement Agreement requires those Class Members to also provide a sworn averment as 

to the content of the call to establish that the call was, in fact, a political cruise call. See Dkt. # 

778-2, Settlement Agreement, § 1.36. The one exception is where outbound phone numbers, such 

as the 8 Missouri AG numbers, were exclusively used for the political cruise call campaign. See 

supra at p. 4. Because of that exception, Section 1.36 uses the “if necessary” language to qualify 

the circumstances where an averment is necessary (i.e., where the outbound numbers were not

exclusively used to make political cruise calls). 

In recognition that a sworn averment is required as to the content of the calls if the 49 

Bandwidth.com numbers were not exclusively used to make the political cruise calls, Plaintiffs 

attempt to dispute that the 49 Bandwidth.com numbers were used for other calling campaigns 

unrelated to Defendants. See Dkt. # 789, p. 8. But they offer no evidence to support that claim; 

rather, Plaintiffs simply argue that they “did not and do not agree with Defendants’ position” that 

the 49 Bandwidth.com numbers were used for other calling campaigns. Id. Contrary to their 

unsupported assertion, the sworn testimony in this case, including from Jacob DeJongh and Scott 

Bromfield (the individuals who utilized the 49 Bandwidth.com numbers), is that the 49 

Bandwidth.com numbers were, in fact, used for other calling campaigns unrelated to Defendants 

30-40% of the time. See Dkt. # 188, p. 7, fn. 25. Plaintiffs have failed to provide any evidence to 

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refute that sworn testimony from Messrs. Broomfield and DeJongh. Given Plaintiffs’ failure to do 

so, Plaintiffs have no basis to argue that the 49 Bandwidth.com numbers were exclusively used for 

the political cruise call campaign. As such, they cannot escape that, pursuant to Section 1.36 of 

the Settlement Agreement, the five corporate claimants were required to aver to the content of calls 

from the 49 Bandwidth.com numbers. And, as we discussed above, Plaintiffs do not dispute that 

the five corporate claimants have failed to provide the necessary averment given that Mr. 

Sepulveda did not hear a any of the calls from the 49 Bandwidth.com numbers and thus, does not 

know if a single call out of the thousands of calls claimed from the 49 Bandwidth.com numbers 

was a political cruise call.3

 

III. Plaintiffs Cannot Explain How Option One Class Members Who Failed To 

Respond To Challenges Should Nonetheless Get Credit For More Than One Call 

In Contravention Of The Express Provisions Of Section 5.5 Of The Settlement 

Agreement. 

 Section 5.5 of the Settlement Agreement provides that, if a challenged Option One Class 

Member “does not timely submit the supplemental documentation or testify before the Special 

Master, the Special Master shall sustain the Defendants’ challenge and the Settlement Class 

Member will have an Approved Claim for one (1) call.” See Dkt. # 778-2, Settlement Agreement, 

§ 5.5. (emphasis added). As set forth in Defendants’ Objections, 39,222 Option One Class 

Members failed to respond to Defendants’ challenges to their claims. See Dkt. # 778, p. 14. 

Because Plaintiffs cannot dispute the controlling language of Section 5.5 or that these Option One 

Class Members failed to respond to Defendants’ challenges as required by Section 5.5, Plaintiffs 

                                                 

3

 Plaintiffs additionally argue that the five corporate claimants are not required to provide a sworn 

averment as to the content of calls claimed from these numbers because “each has at least one call on the 

Class List.” See Dkt. # 789, p. 8. Plaintiffs offer no support for that contention. Nor could they, as they 

have never shown that the thousands of phone numbers claimed by the five corporate claimants were on 

the Class List. 

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ignore the plain language of Section 5.5 and falsely suggest that Defendants have challenged 

Option One claims even where they lacked a factual basis for doing so. 

Plaintiffs’ misleading argument ignores that Defendants compared each Option One claim 

to the Class List to determine whether a challenge was appropriate. Defendants’ expert, Anya 

Verkhovskaya, first performed a detailed analysis of the Class List and identified duplicate and 

triplicate loading of phone numbers, calls outside of the Class Period, and non-call data contained 

in the Class List.4

 After performing that analysis, Defendants crossed-checked the Option One 

claims against the corrected Class List and identified which claims to challenge. That cross-check 

is set forth in Exhibit N to Defendants’ expert report, which identifies the factual bases for each 

Option One claim that Defendants have challenged, including the fact that an Option One Class 

Member’s phone number did not appear in the Class List three times. See Dkt. # 761-28 through 

761-39. If a Class Member’s phone number appeared in the corrected Class List less than three 

times, then Defendants lodged a challenge. If a Class Member’s phone number appeared in the 

corrected Class List three times, then Defendants did not lodge a challenge. In fact, Defendants 

did not challenge 2,691 Option One claims. See Dkt. # 702-1, A. Verkhovskaya Declaration, ¶ 2. 

Nevertheless, Plaintiffs misleadingly posit that Defendants challenged Option One claims even 

where the Class List supported the award of three calls. But that is not the case, as Defendants did 

not challenge Option One claims where the corrected Class List supported the award of three calls. 

Moreover, Plaintiffs are unable to explain how the carefully negotiated challenge 

provisions of Section 5.5 of the Settlement Agreement can somehow be cast aside. In the event of 

                                                 

4

 These technical issues are currently before the Special Master and Plaintiffs have acknowledged, at least 

in large part, that recovery should be reduced. See Dkt. # 778-22, 06/07/2019 letter to Special Master; see 

also Dkt. # 697, p. 15, fn. 11 (“In the majority of those instances, Plaintiffs agree with Defendants’ 

challenges and that the Class Members’ recovery should be appropriately reduced.”) (emphasis in 

original). 

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a challenge, Section 5.5 requires that the Class Member must either “submit supplemental 

documentation to prove each call claimed or schedule a telephonic hearing with the Special Master 

where the Settlement Class Member must testify as to the basis for each separate call claimed.” 

See Dkt. # 778-2, Settlement Agreement, § 5.5. There is no carve out in Section 5.5 or any other 

provision of the Settlement Agreement that excepts certain Option One Class Members from 

complying with this provision, including Option One Class Member that may have received two 

calls. To the contrary, Section 5.5 makes clear that, where an Option One Class Member fails to 

submit supplemental documentation or request a hearing in response to a challenge, the Option 

One Class Member shall be awarded one call. Id. 

Every Option One Class Member had an opportunity to respond to a challenge by providing 

supplemental documentation or requesting a hearing with the Special Master. And many Option 

One Class Members followed that contractually required procedure. In fact, almost 4,000 Option 

One Class Members submitted declarations averring to the exact number of calls received and 

requesting a telephonic hearing. See Dkt. # 763, p. 15. Moreover, an additional group of Option 

One Class Members provided documentation other than declarations and another 20 claimants 

simply requested telephonic hearings. Id. Defendants did not object to the Award to these 

thousands of Option One Class Members who, in compliance with Section 5.5, responded in one 

form or another to the challenges and were credited with more than one call. See Dkt. # 778-3, 

Award, p. 3. While thousands of Option One Class Members responded to a challenge and were 

awarded additional calls, other Option One Class Members chose not to do so. In those instances, 

the Settlement Agreement is clear as to how to handle the Class Members who chose not to respond 

to a challenge – they get credit for one call. 

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 While the language in the Settlement Agreement should be the end of the inquiry on this 

issue, Plaintiffs reaffirmed the agreement that non-responding Option One Class Members would 

receive one call. Specifically, when negotiating the language of the Challenge Notice, Plaintiffs 

agreed that the Challenge Notice should advise Class Members that, “[a]lthough Defendants’ 

records do not necessarily evidence the number of calls you received because their records are 

incomplete, because a party has challenged your claim, you are required to submit proof that you 

received the number of claimed telephone calls if you want to recover for more than one call.” 

See Dkt. # 791-1, Exh. C, Email from Plaintiffs’ counsel to KCC (emphasis added). Accordingly, 

Plaintiffs were well-aware that, if a Class Member failed to respond to a challenge, then that Class 

Member would get credit for one call. If Plaintiffs desired to set a lower standard for responding 

to a challenge or divide Option One Class Members into different categories, then they could have 

included appropriate language in the Settlement Agreement. Plaintiffs failed to do so and now, as 

in other instances, Plaintiffs attempt to inject additional language into the Settlement Agreement 

that is contrary to the express terms of the Settlement Agreement. But basic principles of contract 

construction do not permit Plaintiffs’ after-the-fact bid to re-write the ramifications of not 

following the Settlement Agreement’s bargained-for challenge process. 

 Plaintiffs additionally argue that, even though the 39,222 Option Class Members identified 

in Defendants’ Objections admittedly did not submit supplemental documentation or request a 

hearing with the Special Master, the provisions of Section 5.5 should be deemed satisfied because 

Class Counsel advanced arguments on their behalf based on data from the Contact Center 

Compliance (“CCC”). See Dkt. # 789, p. 9. The Settlement Agreement, however, does not provide 

that the specific requirements of Section 5.5 can be satisfied by Class Counsel providing a 

generalized response to challenges on behalf of tens of thousands of Option One Class Members. 

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Defendants made specific challenges to each Option One claim and notice of those 

challenges was sent. Per the express terms of the Settlement Agreement, once challenged, the 

“Settlement Class Member” was required to “either submit supplemental documentation to prove 

each call claimed or schedule a telephonic hearing with the Special Master where the Settlement 

Class Member must testify as to the basis for each separate call claimed.” See Dkt. # 778-2, 

Settlement Agreement, § 5.5. But Class Counsel’s reliance on CCC data to artificially inflate the 

call count for Option One Class Members is much different. Instead of the Class Member 

submitting supplemental documentation and/or requesting telephonic hearings, Class Counsel, 

likely without Option One Class Members’ knowledge, submitted a mass response referencing 

CCC data, which is simply a list of millions of phone numbers. The CCC data, however, does not 

contain any dates or times and it does not identify a single call placed or received by anyone. Class 

Counsel’s reliance on millions of unspecified phone numbers from CCC falls far short of the 

required “supplemental documentation to prove each call claimed.” See Dkt. # 778-2, Settlement 

Agreement, ¶ 5.5. Moreover, the CCC issue was extensively briefed before the Special Master 

who agreed that CCC data was unreliable and found that the “relationship to the calling campaign 

is attenuated at best and extremely diluted even if slightly relevant.” See Dkt. # 778-3, Award, p. 

4. Plaintiffs should not be permitted to backdoor that argument here. 

Based on the foregoing, Defendants request that, pursuant to Section 5.5 of the Settlement 

Agreement, this Court instruct KCC to award one call to each Option One Class Member who 

failed to respond to Defendants’ challenges. See Dkt. # 778-21. 

Conclusion 

WHEREFORE Defendants respectfully request that this Court grant the Objections 

asserted herein and reduce the Special Master’s Award accordingly. 

Case: 1:12-cv-04069 Document #: 799 Filed: 07/10/19 Page 16 of 18 PageID #:50824
16 

Dated: July 10, 2019 Respectfully Submitted, 

 

By: /s/ Richard J. Prendergast 

One of Defendants’ Attorneys 

Richard J. Prendergast, Esq. 

Michael T. Layden, Esq. 

RICHARD J. PRENDERGAST, LTD. (#11381) 

111 W. Washington St., Suite 1100 

Chicago, Illinois 60602 

(T) (312) 641-0881 

(F) (312) 641-3562 

rprendergast@rjpltd.com 

mlayden@rjpltd.com

Kevin M. Forde, Esq. 

Brian P. O’Meara, Esq. 

Forde Law Offices LLP 

111 West Washington Street 

Suite 1100 

Chicago, IL 60602 

(T) 312.465.4780 

(F) 312.641.1288 

bomeara@fordellp.com 

www.fordellp.com

M. Peebles Harrison (Pro Hac Vice) 

Rose, Harrison & Gilreath, P.C. 

700 Blue Jay Street, Suite 1 

Post Office Box 405 Kill Devil Hills, 

North Carolina 27948 

Phone: (252) 480-1414 

Fax: (252) 480-1765 

peebles@outerbankslaw.com 

Counsel for Defendant The Berkley Group, Inc.

and 

By: /s/ Jeffrey A. Backman 

Richard W. Epstein (Florida Bar No. 229091) 

Richard.Epstein@gmlaw.com 

Case: 1:12-cv-04069 Document #: 799 Filed: 07/10/19 Page 17 of 18 PageID #:50824
17 

Jeffrey A. Backman (Florida Bar No. 662501) 

Jeffrey.Backman@gmlaw.com 

GREENSPOON MARDER, P.A. 

200 E. Broward Blvd., Suite 1500 

Fort Lauderdale, Florida 33301 

954.491.1120 (Telephone) 

954.343.6958 (Fax) 

Admitted Pro Hac Vice 

Timothy Hudson, Esq. 

TABET DIVITO & ROTHSTEIN LLC 

209 South LaSalle Street, 7th Floor 

Chicago, Illinois 60604 

312.762.9476 (Telephone) 

312.762.9451 (Fax) 

thudson@tdrlawfirm.com 

Counsel for Defendants Caribbean Cruise Line, Inc. and 

Vacation Ownership Marketing Tours, Inc. 

Case: 1:12-cv-04069 Document #: 799 Filed: 07/10/19 Page 18 of 18 PageID #:50824