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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GRANT BIRCHMEIER, et al.,

Plaintiffs,

vs.

CARIBBEAN CRUISE LINE, INC.,

et al.,

Defendants.

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Docket No. 12 C 4069

Chicago, Illinois

September 26, 2013

1:35 p.m.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE MATTHEW F. KENNELLY

APPEARANCES:

For the Plaintiff: LOEVY & LOEVY

BY: MR. SCOTT R. RAUSCHER

312 North May Street, Suite 100

Chicago, Illinois 60607

EDELSON LLC

BY: MS. EVE-LYNN J. RAPP

350 North LaSalle Street

Suite 1300

Chicago, Illinois 60654

For the Defendant: GREENSPOON MARDER, P.A.

BY: MR. JEFFREY BACKMAN

200 East Broward Boulevard

Suite 1500

Fort Lauderdale, Florida 33301

MC GUIRE WOODS, LLP

BY: MR. BRIAN P. O'MEARA

77 West Wacker Drive

Suite 4100

Chicago, Illinois 60601

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ROSE, HARRISON & GILREATH, P.C.

BY: MR. M. PEEBLES HARRISON

700 Blue Jay Street

Suite 1

Kill Devil Hills, NC 27948

LAURA M. BRENNAN - Official Court Reporter

219 South Dearborn Street - Room 2102

Chicago, Illinois 60604

(312) 435-5785

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(The following proceedings were had in open court:)

THE CLERK: Case 12 C 4069, Birchmeier v. Caribbean

Cruise Line.

THE COURT: Start on this side and go across.

MR. HARRISON: Peebles Harrison for the Berkley

defendant.

MR. O'MEARA: Brian O'Meara, also here on behalf of

The Berkley Group defendant.

MR. BACKMAN: Jeff Backman for Caribbean Cruise Line

and Vacation Ownership Marketing Tours.

MS. RAPP: Eve-Lynn Rapp for plaintiffs.

MR. RAUSCHER: Scott Rauscher for plaintiffs.

THE COURT: Is that everybody we're expecting?

MR. BACKMAN: Yes, your Honor.

THE COURT: Okay. So I guess the two motions are

related to each other, but on one of them, I've got three

briefs. I don't know that I have ever had three briefs on a

motion to extend time before, but whatever, and not short

ones.

So I think I have a handle on the issues. Does

anybody want to say anything that you haven't already told me?

I guess it's your motion. Do you want to say anything else?

MR. RAUSCHER: We don't have anything to add, your

Honor.

THE COURT: You filed the last thing. Do you all

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want to say anything else?

MR. BACKMAN: Yes, your Honor, just briefly.

Jeff Backman for Caribbean Cruise Line, which is the

entity that filed the paperwork in opposition to the motion

for enlargement.

The only thing I really want to clarify is that it's

not a distinction between political versus nonpolitical survey

calls. It's a distinction between the defendants that are

named in this lawsuit and the way in which the complaint is

pleaded.

The complaint is pleaded in a manner which basically

alleges that conspiracy among the various defendants whereby

this Economic Strategy Group POA group of defendants that's

referenced, made the calls on behalf of everybody else and

that they weren't real political surveys, and it was this real

telemarketing scheme that was created by us on our side, and

we set up this POA as kind of a front to make the calls.

That's where the distinction lies, and that's where

the discovery has been. We have given them everything that we

have with respect to calls being made by the ESG group of

defendants. And the references you see are POA, which was a

d/b/a set up for one of the ESG defendants.

So it's not whether it's political or nonpolitical.

It's all been provided if it related to these defendants in

this case. What they're now seeking --

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THE COURT: I've got to tell you, this is a

completely different argument from the one you made in your

15-page response to this motion. It's completely different.

So I want to hear what Mr. Rauscher has to say about

that.

MR. BACKMAN: Sure.

THE COURT: But I don't want to make all these other

people wait. So you guys have a seat. I'm going to deal with

all the other cases, and I will deal with you last.

MR. BACKMAN: Thank you, your Honor.

(Brief recess.)

THE CLERK: Case 12 C 4069, Birchmeier v. Caribbean

Cruise Line.

THE COURT: All right. Get in your spots again, and

I will have you give your names again, and we will sort of

pick up where we left off.

MR. HARRISON: Peebles Harrison for the defendant The

Berkley Group.

MR. O'MEARA: Brian O'Meara here, also on behalf of

defendant The Berkley group.

MR. BACKMAN: Jeff Backman for Caribbean Cruise Line

and Vacation Ownership Marketing Tours.

MS. RAPP: Eve-Lynn Rapp for the plaintiffs.

MR. RAUSCHER: And Scott Rauscher for the plaintiffs.

THE COURT: Okay. So the argument that Mr. Backman

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was articulating, just to sort of pick up and get to where we

left off, was that what's critical here is not the political

pretext calls versus nonpolitical pretext calls distinction;

it's the proposition that the complaint basically alleged a

joint effort, a group of people or a group of entities doing

something, and what you're asking for now goes beyond that.

Did I basically get it right?

MR. BACKMAN: That's fair, your Honor.

THE COURT: Was there more that you wanted to say

beyond that because I kind of cut you off in the middle?

MR. BACKMAN: That's the premise with respect to

their motion to compel and the discovery they're seeking.

It's more of a futility argument as it relates to their

request for an extension.

THE COURT: Right.

MR. BACKMAN: The only thing that I would add,

because I know it's 15 pages, but really these cases have been

going on since May of 2012 when it was originally filed.

THE COURT: Right.

MR. BACKMAN: And we made clear in Exhibit A, some

discovery responses to discovery requests that were served

prior to consolidation, we made clear that our position with

respect to survey calls and telephone calls was limited to POA

and this group of defendants.

THE COURT: Well, honestly, just to be fair about

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that, the way you articulate it in your response, you're right

that you said that -- and you documented that you made your

fairly consistent objection going back to day one. But it was

political versus nonpolitical. I mean, it's really not what

you're articulating now, and I'm not faulting you for that.

I mean, there is no rule necessarily that says that

you can't come in with another argument if you think there's a

better one.

I mean, I do have a question. You know, this was

kind of a known issue at least as of the time that I was

asked, you know, in the middle of your deposition back in the

early part of August or whenever it was -- it may have even

been late July -- you know, that there was a dispute about the

scope of discovery. And I'm pretty sure I suggested on the

phone then, and then I said it again at the August 7th status,

somebody better come in here on a motion. And, I mean,

nothing happens until somebody apparently doesn't think they

have enough time to file the class cert motion.

What went awry? Why didn't I get this motion before?

MR. RAUSCHER: Your Honor, at the time we asked for

that, we thought we got what we wanted from the ruling, which

was you're allowed to ask questions about the nonpolitical.

THE COURT: I was only ruling on the questions. I

wasn't ruling on the whole panoply of document discovery

because it wasn't in front of me. I didn't know what it was.

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MR. RAUSCHER: Understood.

We had some outstanding discovery requests. It's not

--

As we learn more, we are continuing to seek

discovery. It's not always been clear to us how defendants

categorize certain calls, and so we have some outstanding

discovery requests that basically said give us all documents

and information relating to automated survey calls offering a

cruise in exchange for taking a call. They respond to those

requests a couple weeks after we got the ruling. They say,

we're not giving these to you. That was, I think,

August 16th.

We sent them back a "meet and confer" letter the very

same day and said, please let us know if you're going to

change your position. Obviously, I am paraphrasing.

THE COURT: Right.

MR. RAUSCHER: We said, let us know if you're going

to change your position. And if you're not, then I think it

was five days, we're going to seek Court intervention.

They sent us back an email saying, we're going to

need more time to consider your position with the hope of

resolving this without Court intervention.

THE COURT: Okay. So basically what you are telling

me is that you were hopeful of getting it worked out.

MR. RAUSCHER: Right.

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THE COURT: Fine, all right.

So respond to the point of Mr. Backman, the one he

made today.

MR. RAUSCHER: Right.

The violation here, the TCPA violation, occurs when

an illegal call is made by or on behalf of the defendants who

are standing here today.

THE COURT: Well, but his point is your complaint

doesn't say the defendants violated the TCPA by making illegal

calls, period, end of discussion. His point is that you have

this whole scenario that is painted here that says, well,

there is this whole group of people and one is acting as sort

of the front person for the other and it's all this big scam

basically, or sham, or scam, or both of the above.

MR. RAUSCHER: And I think that adds a flavor to the

complaint. It adds some detail. It adds detail that we knew

as we were drafting the complaint and we described it. We do

list some other names that we thought they may have been using

in paragraph 17. But the classes define -- the classes are

defined in a way that doesn't limit.

It says: All persons in the United States to whom

one or more telephone calls were made by or on behalf of or

for the benefit of defendants purportedly offering a

free cruise in exchange for taking an automated survey.

THE COURT: Okay. So you have done --

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In terms of discovery so far, and I know that some of

these entities have similar names, and I assume the ones with

similar names are sort of affiliated with each other, the ones

that have economic and strategy in their names, but do you

have any --

And I'm not saying that is a determinative factor;

it's just a question. Do you have any sense that these

entities or some of them were involved in other what you would

call sort of improper pretext type calls, surveys, whatever it

was, on behalf of CCL?

MR. RAUSCHER: The ESG? I'm sorry. Which, just so I

--

THE COURT: Any of them that you named in the

complaint. I'm just trying to get at what -- you know,

whether there is some reason to believe that, you know, for

want of a better word, that the conspiracy goes beyond the

political type pretext calls.

MR. RAUSCHER: We certainly know that defendants have

used multiple different people to make different types of

robocalls.

THE COURT: When you say "defendants," which one?

MR. RAUSCHER: Well, as we understand it, learning

through discovery, at least the way it worked with the

political type calls, CCL Caribbean had a contract with the

ESG defendants.

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THE COURT: Okay.

MR. RAUSCHER: The ESG defendants then hired someone

to do the robocalling. There's a lot more detail we could, of

course, get into. But it appears that CCL, according to Ms.

Poole's deposition testimony, also had a contract with at

least one other person, a different type of lead broker, and

as we learned --

THE COURT: Lead broker, is that what you think ESG

was?

MR. RAUSCHER: I think ESG worked through a lead

broker.

THE COURT: Through a lead broker, okay.

MR. RAUSCHER: And we learned recently Mr. --

THE COURT: A lead broker is somebody who gets leads,

in other words.

MR. RAUSCHER: Correct.

And we learned recently that Ms. Vigus -- we took the

deposition of the person who supposedly ran the ESG companies.

He is supposedly responsible for creating the recordings. We

played them, at least partial recordings.

THE COURT: Oh, yes, you referred to this in the

motion. He said it didn't look like anything --

MR. RAUSCHER: Right. Defendants, I think,

acknowledge that -- or at least CCL would acknowledge that

they were involved in other robocall survey campaigns.

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THE COURT: Yes. But, I mean, the question here is

whether that is part of this case or not, I think.

MR. RAUSCHER: We think it certainly is. We think

it's alleged in the complaint although we have more detail

about what the POA type calls are. POA, they can call it a

d/b/a; it's just a name that used on the survey.

THE COURT: POA is?

MR. RAUSCHER: Political opinions of America.

THE COURT: Okay.

MR. RAUSCHER: And they used different names. It

looks like when they got complaints, they may have changed the

name that they were using. But when we alleged the classes

more broadly, and then we learned that Ms. Vigus actually got

a different call, and CCL is not saying, wait, we didn't make

any; we didn't hire anyone to make any of those type of calls.

THE COURT: So how do you pronounce her name?

MR. RAUSCHER: Vigus.

THE COURT: Vigus. Did Ms. Vigus get her calls

during the same general time frame that the other plaintiffs

did?

MR. RAUSCHER: It was during the same general time

period.

THE COURT: On Birchmeier there's a specific date.

On Parkes it's more general; on Vigus it's more general; on

Stone it's pretty specific.

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MR. RAUSCHER: I think on paragraph -- it was in

2012. I could look at discovery responses, but it was the

same general time period.

THE COURT: And so what you're saying is that as far

as Vigus is concerned, at least the way things seem to have

shaken out so far, it wasn't a sort of political type survey

that she was asked to do in return for getting a cruise ticket

or whatever.

MR. RAUSCHER: Correct. It appears that she got some

other type of automated survey call. It's still offering the

free cruise.

THE COURT: So, Mr. Backman, I want to sort of ask

you a question about sort of the second part of your argument.

You referred to this as a futility argument.

I've got to tell you, I mean, when you say

"futility," you don't mean futility in terms that one would

normally argue; for example, when somebody wants to file an

amended complaint, the defendant comes in and says, no, it's

futile because it's a nonviable legal theory. What you're

basically saying here is, I'm assuming -- you will correct me

if I'm wrong -- is that there's no way the plaintiff could

ever -- the plaintiffs could ever get a class certified that

would cover all of the various types of calls that they're

conceivably contending were made.

MR. BACKMAN: While I do believe that's true, that's

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not why I was using that word. I was using that word only

related to the request for enlargement of time. In posing

that, I'm saying it would be futile to give them an additional

60 days --

THE COURT: Why?

MR. BACKMAN: -- because they shouldn't get any of

this discovery anyway because it doesn't relate to the

allegations in their complaint.

THE COURT: I get what you are saying. And I

wouldn't --

MR. BACKMAN: It may be a poor choice of words.

THE COURT: I wouldn't refer to it as a futility

argument. Now I understand.

MR. BACKMAN: That was my only point. I would like a

briefing schedule.

THE COURT: No, I'm going to give it.

Does anybody else want to weigh in on this at all?

MR. O'MEARA: No.

THE COURT: Okay. Go ahead, Mr. Backman.

MR. BACKMAN: Sure.

With respect to the allegations in the complaint,

your Honor, paragraph 1, paragraph 3, paragraphs 26 through 29

where the specific named plaintiff calls were made, they all

reference POA. Even Ms. Stone, what she says is, it was POA

and/or Independent Survey Group, and she uses a different

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name.

And then they asked Mr. DeJongh, who is affiliated

with the ESG defendants and -- if he knew about Independent

Survey Group, and he said no. And so now they're trying to

use that as an angle to get some sort of expanded class here.

But if you look at their class definition, they refer

to the defendants and they group them all together. So it's a

different entity that was making additional calls.

THE COURT: How I do know it was a different entity?

MR. BACKMAN: Well, Mr. DeJongh said he doesn't know

anything about Independent Survey Group, and in their new

discovery requests that they're seeking to compel documents

for, they reference a particular -- they reference particular

entities and they reference a particular type of call. None

of their plaintiffs describe this foghorn call that they are

asking about in their discovery requests.

And Mr. DeJongh --

THE COURT: I should say this. I've gotten the

foghorn call, I have, on my cell phone. I mean, it's been a

while ago, maybe a year. And when you said that, you pick up

the phone and there's this long foghorn, and I don't remember

what happens after that because I have hung up by that point.

But just so you know, that's now out there.

MR. BACKMAN: That is a specific request that they

make in their discovery.

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THE COURT: I will opt out of any class.

MR. BACKMAN: And that is the additional document

they want.

And I will also tell you, your Honor, there are

lawsuits pending against Caribbean Cruise Line relating to

that foghorn call.

THE COURT: To the foghorn call, okay.

MR. BACKMAN: And it's not --

THE COURT: I haven't gotten any class notices,

though, so it hasn't gotten far enough along.

MR. BACKMAN: So my point, though, Judge, is that

their background and their factual allegations leading to

liability against Caribbean, VOMT and Berkley is all based

upon the fact, according to them, that the ESG group of

defendants was set up as a front.

And if you look at paragraphs 33(b) and 35, which are

in their class allegations, 33(b) is part of their numerosity

allegation, and they specifically reference call --

THE COURT: POA.

MR. BACKMAN: POA.

And look at 35. That's their typicality argument,

and the last sentence says specifically all the claims are

typical because they all receive calls from POA. So if they

didn't get a call from POA, it's not part of this case.

THE COURT: How do we deal with what evidently seems

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to be the case with regard to Ms. Vigus then?

MR. BACKMAN: Are you asking me?

THE COURT: Yes.

MR. BACKMAN: If they feel that they have a case,

then they have to file a case against the right defendants and

allege the right allegations and put us on notice.

But that's not what this case is about. That's not

what we have been litigating for a year and a half. We're

done. We're finishing the plaintiff depos tomorrow. We're

ready.

And I would also point out for your Honor that on

September 6th, they asked for an extension, the plaintiffs,

and they didn't mention this.

THE COURT: Yes, I was kind of wondering about that,

but, you know, it's not that terribly significant.

MR. BACKMAN: My final point, your Honor, would be

that if you are to grant it, I don't think 60 days is enough

time.

I think we're talking about --

THE COURT: No, I certainly agree with that.

MR. BACKMAN: Okay.

THE COURT: What else would you like to tell me, Mr.

Rauscher?

MR. RAUSCHER: I think I want to clear up some of the

factual things that Mr. Backman was just talking about. I'm

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sorry.

THE COURT: Okay.

MR. RAUSCHER: Plaintiff Stone alleges names of

different groups in her thing, but I don't know that that is

relevant to Ms. Vigus receiving a different call. I don't

know if he was confusing it or describing it.

Plaintiffs don't think she got a couple different

names. The document certainly suggests, despite Mr. DeJongh's

memory, that Independent Survey Group was another name listed.

THE COURT: Okay.

MR. RAUSCHER: And I'm not sure that -- I don't

think, it's our position, that the fact that Caribbean may

have hired multiple different people to carry out robocall

campaigns changes anything in this complaint. It's vicarious.

There is vicarious liability.

And as far as some of the specific points he just

mentioned about our allegations about hundreds of complaints

appear online related to receiving unwanted robocalls from

POA, that's true. That's what we wrote in our complaint.

It's still true although we think the numbers are

substantially larger. But as discovery has continued and we

learn more detail, we continue to try to seek discovery to

relevant issues.

THE COURT: So, you know, as a general rule, over the

years, you know, defendants used to complain, and actually

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still do a lot, about how the complaint's allegations aren't

specific enough, and then, you know, Bell Atlantic v. Twombly

got decided and Ashcroft v. Iqbal, and, you know,

plaintiffs tend to make more specific or specified or

particularized complaints now. And I suppose that every now

and then I get a motion or I get a request or an argument,

something along the lines that's been made here, that, well,

okay, it's specific, now they're stuck with that.

And generally I sort of tend not to agree with that,

and the reason I don't agree with it is that I think that

people are -- you know, oftentimes, and maybe more often than

not, the more specified specific allegations in the complaint

are reasonably interpreted as illustrative rather than sort of

encompassing. I have a hard time saying that about this

complaint. You know, it's --

And I understand what I did on the motion, or during

the deposition, and I will turn to that in a second. But, you

know, I agree with you that the class definition, as it's

alleged in the complaint here, is pretty general, and it's not

tied down to, you know, political calls. But, you know, the

thrust of the complaint as a whole is sort of this group

activity where, you know, you say that they collectively

launched a robocalling campaign and they were acting -- you

know, one is acting as the front for the other, and, you know,

that's not just in one place. It's really, you know,

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scattered throughout the complaint. It comes up again and

again.

And I don't know how to account for Ms. Vigus, and I

don't know that I agree with the notion that she would have to

have a whole separate lawsuit even if she wasn't part of this.

I mean, you could have other claims. But I think the way you

have got your complaint right now, I think you have sort of

staked your claim, if you will, in this joint activity, and so

it's really not so much --

And I think actually that Mr. Backman is right about

this. It's really not so much the political versus the nonpolitical. It's the group activity element of this.

Now, I don't know -- I have no way of knowing because

I haven't done any of the discovery; I haven't seen any of the

discovery; and I don't know what the underlying facts are.

It's at least conceivable that some of the non-Caribbean

Cruise Line defendants, in other words, the other defendants,

may have engaged in other activity on behalf of the Caribbean

Cruise Line.

And I guess I'm not prepared to say that if you had,

for example, sort of a -- if you can imagine, Caribbean Cruise

Lines being the company that wants to sell its cruises and

they're doing it in various ways, and there's this one

particular branch of it that consists of the ESG folks, The

Berkley Group and VOMT, but then maybe there's another head of

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it where, you know, there's some subset of that same group of

people -- I don't know that I'm prepared to say that that

would not be fairly encompassed within this.

In other words, I don't know that there has to be a

sort of one-to-one match of each of the entities involved in

this, but I think that the requests that you have made here,

which really don't tie it down to any sort of that kind of

relationship at all -- in other words, you basically just

asked Caribbean Cruise Lines, just give us all of your stuff

for all of your phone marketing campaigns or telemarketing

campaigns -- I think it's too broad.

So I'm not going to grant the motion to compel. It's

denied. It's conceivable that you could come up with a

narrower version of this that would pass muster. And so I'm

just going to leave it to you to decide whether to try to do

that.

As far as, you know, the extension of time is

concerned, I mean, as of right now, you have a denied motion

to compel. So I'm willing to give you --

You know, your brief is due. When is it currently

due?

MR. RAUSCHER: It was due.

THE COURT: I mean, I will give you a little bit of

time to do it. We're not talking about 60 days. So it was

due by --

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What did I extend it to? It was originally the 6th

of September, and I didn't write down when I extended it to.

MR. RAUSCHER: It was due the 20th.

MR. BACKMAN: It was due the 20th.

THE COURT: The 20th, okay. So it was like a week

ago.

So I will give you two weeks from today. So the

deadline for the class cert motion is extended to the 10th of

October.

You know, how many of you are coming from out of

town?

I know you are.

MR. HARRISON: Yes.

THE COURT: You're coming from out of town, too. How

far out of town?

MR. BACKMAN: Fort Lauderdale.

THE COURT: Oh, okay.

So all I'm going to do on that date is set a

schedule. So I'm going to make it 9:00 o'clock, and we can do

it by phone so that I don't make people come up here just to

set a schedule. And, I mean, I suppose I could just set the

schedule, you know, do the same thing I did now, but, you

know, it's conceivable that it might, once you see the motion,

that your thinking on that might change.

So let's say a phone conference at 9:00 o'clock, if

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this date works okay, on the 16th. Oh, not good.

Can you do 9:00 o'clock on the 15th of October?

Would that work okay?

MR. BACKMAN: Certainly.

THE COURT: So you will have the motion by then, in

other words.

So here's what I will need you to do on that.

There's two options, and I know we have a lot of people here.

One option is you get everybody on the phone and then call in.

Another option is that you have a call-in number, and I just

need to make sure I have it like the afternoon before. So I

will leave it up to you to figure out which is the best way to

do it.

MR. BACKMAN: I have local counsel who could come,

your Honor.

THE COURT: Okay. All right.

MR. RAUSCHER: Your Honor, we have an October --

THE COURT: So the motion to extend is granted in

part, and the motion to compel is denied.

What did you want to say, Mr. Rascia?

MR. RAUSCHER: We have an October 7 status, I

believe.

THE COURT: Oh, that's vacated. Thanks for telling

me.

MR. RAUSCHER: And then is there -- I think Ms.

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Vigus, I'm sure, is going to want to come in and have

something to say if she's not going to be part of it.

THE COURT: You were Birchmeier and Parkes, right?

MR. RAUSCHER: That's the Anderson Wanca group.

THE COURT: That's the Anderson Wanca people. Well,

maybe she can --

Well, I mean, I would just tell her to get some sort

of a motion on file. Like I say, I mean, I didn't adopt the

view that she would have to file a whole separate lawsuit.

But, I mean, I don't know enough to say exactly what she would

have to do at this point. So they will do what they need to

do when they need to do it, file some sort of a motion to do

something. I don't know.

MR. RAUSCHER: Okay.

THE COURT: That's what they get paid big bucks for.

All right, take care. Thanks.

MR. RAUSCHER: Thank you.

MR. BACKMAN: Thanks for your time, your Honor.

MS. RAPP: Thank you, your Honor.

(Which were all the proceedings had in the above-entitled

cause on the day and date aforesaid.)

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C E R T I F I C A T E

I hereby certify that the foregoing is a true and

correct transcript of the above-entitled matter.

/s/ Laura M. Brennan September 27, 2013

 

Laura M. Brennan

Official Court Reporter Date

Northern District of Illinois

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