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 

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’ REPLY IN SUPPORT OF

THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT

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TABLE OF CONTENTS

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

ARGUMENT....................................................................................................................................................2

I. The Undisputed Evidence Shows Each Named Plaintiff Received a Robocall 

Offering a Free Cruise in Exchange for Taking a Political Survey.....................................2

A. There is no requirement that a called party hear an illegal call .............................2

B. Plaintiffs each received and heard Defendants’ robocalls .......................................4

II. Defendants Have Failed to Adduce Any Evidence to Demonstrate that Their 

Robocalls Could be Exempt from the TCPA ............................................................................8

III. Vicarious Liability Cannot be Determined Here on Summary Judgment .....................12

A. This Court has already ruled that Plaintiffs’ pleadings sufficiently

raise vicarious liability and, in any event, there is no requirement to 

plead legal theories ............................................................................................................13

B. The question of agency is a factual issue and can be determined only if 

the underlying facts are undisputed and only one inference can be 

drawn from them ................................................................................................................14

C. There are numerous disputes about the facts related to Defendants’ 

liability as well as the “reasonable inferences” that can be drawn from those 

facts.........................................................................................................................................17

CONCLUSION..............................................................................................................................................20

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TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT

Campbell-Ewald Co. v. Gomez, 577 U.S. ____ (Jan. 20, 2016)...................................................................3, 15

Mims v. Arrow Fin. Servs. LLC, 132 S. Ct. 740 (2012) ....................................................................................3

UNITED STATES CIRCUIT COURT OF APPEALS

1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013)..........................................................19

Alioto v. Town of Lisbon, 651 F.3d 715 (7th Cir. 2011)..................................................................................13

Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994) ..........................................................................................14

CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2010)........................................................3

Cent. States Trucking Co. v. J.R. Simplot Co., 965 F.2d 431 (7th Cir. 1992)..................................................13

Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011).....................................................................................3

Chemtool, Inc. v. Lubrication Techs., Inc., 148 F.3d 742 (7th Cir. 1998)................................................... 14, 16

Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012)................................................................ 10, 11

Fenje v. Feld, 398 F.3d 620 (7th Cir. 2005).......................................................................................................6

Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013)...........................................................................9

Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741 (7th Cir. 2010) .........................................................................13

Keating v. Peterson's Nelnet, LLC, 615 F. App’x 365 (6th Cir. 2015)............................................................15

M.J. ex rel. Beebe v. United States, 721 F.3d 1079 (9th Cir. 2013)..................................................................15

Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687 (7th Cir. 2000).....................................................5, 6

Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859 (7th Cir. 1998).......................................................14

Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015)..........................................................................7

Patriotic Veterans, Inc. v. State of Indiana, 736 F.3d 1041 (7th Cir. 2013) .......................................................3

Rankow v. First Chicago Corp., 870 F.2d 356 (7th Cir.1989)..........................................................................16

Silk v. City of Chicago, 194 F.3d 788 (7th Cir. 1999)......................................................................................15

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Smith v. Lamz, 321 F.3d 680 (7th Cir. 2003) ...................................................................................................5

Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724 (7th Cir. 2014) ................................................... 16, 17

Valenti v. Qualex, Inc., 970 F.2d 363 (7th Cir. 1992).............................................................................. 16, 17

Ybarra v. Dish Network, L.L.C, 807 F.3d 635 (5th Cir. 2015) ...................................................................2, 3

UNITED STATES DISTRICT COURT

Bank v. Caribbean Cruise Line, No. 12-cv-00584 (E.D.N.Y. Aug. 26, 2013)....................................... 10, 11

Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014) .................................................3, 7

Fenje v. Feld, 301 F. Supp. 2d 781 (N.D. Ill. 2003) .........................................................................................6

Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152 (N.D. Ill. 2009) ................................................3

Hurst v. Mauger, No. 11 C 8400, 2013 WL 1686842 (N.D. Ill. Apr. 16, 2013) ........................................15

International Paper Co. v. Androscoggin Energy LLC,

No. 00-cv-6215, 2002 WL 31155069 (N.D. Ill. Sept. 26, 2002)....................................................6

Jones v. All Am. Auto Prot., Inc., 

No. 314CV00199, 2015 WL 7566685 (D. Nev. Nov. 24, 2015) .................................................15

Kolinek v. Walgreen Co., No. 13 C 4806, 2014 WL 3056813 (N.D. Ill. July 7, 2014)..............................2, 3

Kostovetsky v. Ambit Energy Holdings, LLC, 

No. 15 C 2553, 2016 WL 105980 (N.D. Ill. Jan. 8, 2016) ............................................................13

Kristensen v. Credit Payment Servs. Inc., 

No. 12-CV-00528, 2015 WL 4477425 (D. Nev. July 20, 2015)...................................................16

Liberty Mut. Ins. Co. v. Tokio Marine & Fire Ins. Co.,

No. 03 C 4765, 2004 WL 2125411 (N.D. Ill. Sept. 22, 2004)........................................................6

Makaron v. GE Sec. Mfg., Inc., 

No. CV-14-1274, 2015 WL 3526253 (C.D. Cal. May 18, 2015)..................................................16

Mey v. Pinnacle Sec., LLC, 

No. 11CV47, 2012 WL 4009718 (N.D.W. Va. Sept. 12, 2012) ...................................................15

Pulliam v. City of Chicago, No. 08 C 7318, 2010 WL 3238837 (N.D. Ill. Aug. 12, 2010) ...........................6

Siding & Insulation Co. v. Alco Vending, Inc., 

No. 1:11 CV 01060, 2015 WL 1858935 (N.D. Ohio Apr. 22, 2015)..........................................15

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Smith v. State Farm Mut. Auto. Ins. Co., 30 F. Supp. 3d 765 (N.D. Ill. 2014)...................................... 18, 19

Thomas v. Taco Bell Corp., 879 F. Supp. 2d 1079 (C.D. Cal. 2012)..............................................................15

USA Certified Merchants, LLC v. Koebel, 273 F. Supp. 2d 501 (S.D.N.Y. 2003)........................................15

Wengle v. DialAmerica Mktg., Inc., 

No. 14-cv-10655, 2015 WL 5595505 (E.D. Mich. Sept. 22, 2015) ...................................... 11, 12

Young v. Cty. of Cook, 616 F. Supp. 2d 834 (N.D. Ill. 2009) ........................................................................17

Youngblood v. Alliance Pharm., No. 95-cv-2796, 1998 WL 676800 (E.D. La. Sept. 30, 1998)..................15

STATE COURT

Applestein v. Fairfield Resorts, 

No. 0004 SEPT.TERM 2007, 2009 WL 5604429 (Md. Ct. Spec. App. July 8, 2009)..............15

RULES & STATUTES

47 C.F.R. § 64.1200 .........................................................................................................................2, 3, 8, 9, 19

47 U.S.C. § 227................................................................................................................................................2, 8

N.D. Ill. L.R. 56.1 ...........................................................................................................................................5, 6

MISCELLANEOUS

2015 TCPA Omnibus Declaratory Ruling and Order, 30 F.C.C. Rcd. 7961 (2015) .........................................2

3 C.J.S. Agency § 547 (1973)...........................................................................................................................14

In Re Richard Gilmore d/b/a Democratic Dialing (FCC File No. 12- 00004943)........................................8, 9

In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 

18 F.C.C. Rcd. 14014 (2003) .........................................................................................................9, 10

In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 

27 F.C.C. Rcd. 1830 (2012) .................................................................................................................8

In the Matter of R. and Regulations Implementing the Tel. Consumer Protec. Act of 1991, 

20 F.C.C. Rcd. 3788 (2005) ...............................................................................................................12

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INTRODUCTION

Plaintiffs and the Classes moved for partial summary judgment against Defendants Berkley 

Group, Inc. (“Berkley”), Caribbean Cruise Line (“CCL”), and Vacation Ownership Marketing 

Tours, Inc. (“VOMT”) on the only issues where the material facts are undisputed and a trial is 

unnecessary: that each of the Class representatives and the Class members received a prerecorded 

voice call on their respective cellular or landline telephone without their consent. CCL and VOMT 

concede there is no evidence of consent, but seek to avoid partial summary judgment by arguing

that: (1) Plaintiffs have not provided evidence that the robocalls used a prerecorded voice or an 

ATDS; (2) not all the calls fit within the Class Definitions; (3) Plaintiffs have not presented sufficient 

evidence that they received the robocalls at issue; and (4) all the calls are exempt because they were 

made by a political non-profit entity. CCL’s and VOMT’s claims that any of these issues are in 

dispute blinks reality.

Instead of addressing the substance of Plaintiffs’ Motion, Berkley merely adopts (in a single 

footnote) CCL’s and VOMT’s brief, and then all three Defendants repeat the flawed vicarious 

liability arguments from their own cross-motions and contend that Plaintiffs are misconstruing the 

evidence about the scope of their relationships, knowledge of and/or involvement in the 

robocalling, and profiteering from their rampant TCPA violations. If anything, Defendants’

Oppositions demonstrate why summary judgment is not appropriate on the issue of vicarious 

liability—the Parties strongly disagree on the material facts and the inferences that should be drawn 

from those material facts. As Plaintiffs have previously stated, this is not one of those rare instances 

when vicarious liability can be decided on summary judgment, and the Court should not decide this 

issue here. 

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ARGUMENT

I. The Undisputed Evidence Shows Each Named Plaintiff Received a Robocall 

Offering a Free Cruise in Exchange for Taking a Political Survey.

CCL and VOMT first argue that Plaintiffs are not entitled to partial summary judgment 

because they failed to produce evidence showing that each of the Plaintiffs heard one of 

Defendants’ robocalls. (CCL/VOMT Opp. at 6-8.)1 That is not the law. There is no requirement 

that a called party actually hear the violative robocall, but even if that was the law, each of the 

Plaintiffs has provided ample unrefuted evidence—by citing to either Defendants’ or their own 

records and testimony—demonstrating both the requisite TCPA violation and their Class 

membership.

A. There is no requirement that a called party hear an illegal call.

As an initial matter, CCL’s and VOMT’s reference to the Fifth Circuit’s decision in Ybarra v. 

Dish Network, L.L.C, 807 F.3d 635, 639 (5th Cir. 2015) to argue that “Plaintiffs must demonstrate 

that the prerecorded messages . . . actually resulted in the recording being played” (CCL/VOMT 

Opp. at 6-7), cannot withstand scrutiny. Foremost, such a requirement would completely ignore the 

explicit and binding language of the TCPA—which makes it unlawful to “make” or “initiate” calls 

“using an artificial or prerecorded voice,” 47 U.S.C. § 227 (b)(1)(A)(iii) and 47 U.S.C. § 277 (b)(1)(B), 

respectively—as well as the Federal Communications Commission’s implementing regulation, which 

similarly states that “[n]o person or entity may . . . initiate any telephone call” to a cellular telephone 

service or any residential line using a prerecorded voice. 47 C.F.R. § 64.1200 (a)(1)(iii), 47 C.F.R. § 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 CCL and VOMT focus much of their effort here on an argument that Plaintiffs have not 

demonstrated that the robocalls at issue were made using an ATDS—a fact set forth only in a footnote in 

Plaintiffs’ Motion. (See Dkt. 336 at 7, n. 2.) The uncontroverted evidence shows that these prerecorded voice 

calls, as they almost always are, were made with equipment that dialed thousands of telephone numbers at 

random from a database in a short period of time, which is more than sufficient to find the system an ATDS 

under the FCC’s recent order. See 2015 TCPA Omnibus Declaratory Ruling and Order, 30 F.C.C. Rcd. 7961, 7973-

74 (2015).

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64.1200 (a)(3) (emphasis added). Such authority is binding, and may not be ignored. See Kolinek v. 

Walgreen Co., No. 13 C 4806, 2014 WL 3056813, at *1 (N.D. Ill. July 7, 2014) (Kennelly, J.) (“under 

the Administrative Orders Review Act (more commonly called the Hobbs Act), the [FCC’s] 

interpretation [of the TCPA] is binding on federal district courts”) (citing CE Design, Ltd. v. Prism 

Bus. Media, Inc., 606 F.3d 443, 449–50 (7th Cir. 2010)); cf. Campbell-Ewald Co. v. Gomez, 577 U.S. ____, 

slip op. at 14 (Jan. 20, 2016) (noting there was “no cause to question” the FCC’s ruling regarding 

TCPA violations). 

Moreover, accepting Ybarra by reading a “received and played” requirement into the text of 

the TCPA would frustrate its underlying purpose—to prohibit “intrusive nuisance calls” Congress 

determined were an invasion of privacy—by making calls actionable only if they were actually 

answered. See Mims v. Arrow Fin. Servs. LLC, 132 S. Ct. 740, 744 (2012); see also Patriotic Veterans, Inc. v. 

State of Indiana, 736 F.3d 1041, 1050 (7th Cir. 2013) (referring to “Congress’s goal” in enacting TCPA 

“to protect the privacy of citizens against unsolicited telephone calls”). As this Court aptly 

recognized in its certification opinion, “a call remains annoying and intrusive even if the subscriber 

for the number dialed is not the one answering.” Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 

240, 246 (N.D. Ill. 2014) (Kennelly, J.). And that is why courts have consistently held that a TCPA 

violation occurs—for both call and fax violations—upon initiation, rather than requiring that a 

message actually played and/or was received. See, e.g., Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 

2d 1152, 1159 (N.D. Ill. 2009) (holding that “[o]n its face, the [TCPA] prohibit[s] the sending of 

unsolicited fax advertisements and make[s] no reference at all to receipt, much less to printing”) 

(emphasis added); Charvat v. NMP, LLC, 656 F.3d 440, 448 (6th Cir. 2011) (explaining that the 

“regulations focus on the telephone call itself . . .” and “[t]he violation of the regulation [under 

subsection 47 C.F.R. § 64.1200(d)] is therefore the initiation of the phone call without having 

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implemented the minimum procedures”) (emphasis added and citation omitted). As such, the Fifth 

Circuit’s ruling that a TCPA violation has not occurred unless an individual demonstrates that she 

answered that call and a prerecorded message actually played (as opposed to a making a showing 

that defendant made a call that contained a prerecorded message or voice) is inconsistent with the 

TCPA’s purpose and an incorrect interpretation of the law.

B. Plaintiffs each received and heard Defendants’ robocalls.

Regardless of who’s right about this aspect of TCPA jurisprudence, Plaintiffs put forth 

unrefuted evidence that (i) every one of the robocalls at issue contained a prerecorded survey 

message, and that (ii) each Plaintiff received such a call on either their landline or cellular telephone, 

or both. (Plf. SOF ¶¶ 29-33, 45-55; Plf. Resp. CCL/VOMT Add’l. SOF ¶¶ 74-82.) In addition, there 

can be no doubt (and Defendants do not dispute) that every one of the more than two million calls 

that was transferred to CCL2—such as the call Plaintiff Aranda received—contained a prerecorded 

message and that the call recipient heard the “free” cruise message. (see, e.g., Dkt. 389, Berkley Resp. 

Plfs. SOF ¶ 33 (admitting that each class member who completed the survey “was transferred to a 

live CCL sales representative and received a pitch for an upgraded vacation package,” and failing to 

refute that the survey was prerecorded); Dkt. 373, CCL/VOMT Resp. Plfs. SOF ¶ 33 (only

disputing that every call made by the ESG Defendants offered a free cruise, but not disputing that 

each class member who completed the prerecorded survey was transferred to CCL).) 

Plaintiffs have likewise demonstrated that the remaining calls—i.e., those calls made to Class 

members but not transferred to CCL—similarly contained a prerecorded message through the 

following evidence:

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 As discussed elsewhere, CCL’s records indicate that nearly two million calls were transferred to CCL 

and lasted more than thirty seconds (the metric for paying the lead broker). (Plf. SOF ¶ 41.) CCL has not 

provided records showing how many additional calls were transferred but lasted less than thirty seconds after 

the transfer. Those calls, of course, were also heard by the Class members who answered them and completed 

the survey.

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(i) direct testimony from DeJongh admitting that he utilized Voice Talent’s online 

software services to record the survey messages (see Plf. SOF ¶ 27; Berkley Resp. 

Plfs. SOF ¶ 27 (admitting that “to effectuate the survey calls, DeJongh drafted and 

recorded his prerecorded surveys using non-party Voice-Talent’s online software 

services”))

3 and confirming that ESG was a “company that solicited survey takers 

by transmitting or causing to be transmitted prerecorded survey messages using an 

autodialer”) (Plfs. SOF ¶ 29 (citing Plfs. SOF Ex. 14, DeJongh Dep. at 37); 

Berkley Resp. Plfs. SOF ¶ 29 (“noting that it is undisputed that DeJongh testified 

that he used prerecorded messages”); CCL/VOMT Resp. Plfs. SOF ¶ 29 (same));

(ii) the express language of CCL’s contract with the ESG Defendants, which states

that ESG would “solicit[] survey takers by transmitting or causing to be 

transmitted prerecorded survey messages using an autodialer”(Plfs. SOF ¶ 29

(citing Plfs. SOF Ex. 16, Supplier Agreement Between ESG and CCL at 

CCL.R.26.000001));

(iii) letters sent by ESG to government officials admitting that the “ESG conducted 

political surveys via pre-recorded messages” and that it did so using a leased dialer 

(Plfs. SOF ¶ 29 (citing Plfs. SOF Exs. 20-21));

(iv) Plaintiffs’ own experiences and testimony confirming they each heard the 

prerecorded messages (Plfs. SOF ¶¶ 45, 47-49, 51, 53); and 

(v) physical evidence of the actual prerecorded messages that played on the calls. 

(Plfs. SOF ¶ 29 (citing Plfs. SOF Ex. 14, DeJongh Dep. at 287:2-10 (identifying 

CCL.R.26.000232 as one of the prerecorded message used by ESG) and Plfs. SOF 

Ex. 19.)

Notably, none of the Defendants provides contrary or additional facts to dispute this 

evidence, and Berkley even concedes that “Dejongh [sic] testified that he used prerecorded 

messages” to make the calls. (Dkt. 373, CCL/VOMT Resp. Plfs. SOF ¶ 29; Dkt. 389, Berkley Resp. 

Plfs. SOF ¶ 29). See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“Local Rule 56.1’s enforcement 

provision provides that when a responding party’s statement fails to controvert the facts as set forth 

in the moving party’s statement in the manner dictated by the rule, those facts shall be deemed 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 In responding to Plaintiffs’ statements, Berkley does not dispute the fact that Jacob DeJongh drafted 

and “recorded his prerecorded political surveys using non-party Voice Talent’s online software services.” 

(See Dkt. 389, Berkley Resp. Plfs. SOF ¶ 27.) Responding to that same paragraph, CCL and VOMT do not 

even address the statement that DeJongh drafted and recorded his prerecorded surveys. Rather, they respond 

only to an issue that Plaintiffs did not make in that paragraph, regarding the purported role of the political 

action committees in contributing to the content of surveys. (Dkt. 373, CCL/VOMT Resp. Plfs. SOF ¶ 27). 

Thus, those facts should be deemed admitted. See Smith, 321 F.3d at 683.

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admitted for purposes of the motion) (citing Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 

689 (7th Cir. 2000) and N.D. Ill. L.R. 56.1(b)). The only argument that Defendants can muster to 

challenge this fact is that Plaintiffs’ facts cannot be presented in an admissible form. But Berkley 

does not explain why Plaintiffs’ uncontroverted evidence would be inadmissible (see Dkt. 389, 

Berkley Resp. Plfs. SOF ¶ 29) and CCL and VOMT challenge only the admissibility of a letter “sent 

‘from ESG’ to an attorney general” on the grounds that “it was never authenticated.” (See Dkt. 373, 

CCL/VOMT Resp. Plfs. SOF ¶ 29.) The Court should reject these arguments: the evidence upon 

which Plaintiffs rely includes sworn testimony and documents the ESG Defendants produced 

during discovery, all of which are appropriately considered in deciding motions for summary 

judgment. See Pulliam v. City of Chicago, No. 08 C 7318, 2010 WL 3238837, at *4 (N.D. Ill. Aug. 12, 

2010) (holding several Local Rule 56.1 paragraphs to be admitted where party failed to cite the 

specific Federal Rules of Evidence that would render the statements inadmissible); Fenje v. Feld, 301 

F. Supp. 2d 781, 809 (N.D. Ill. 2003) (“Documents produced by an opponent during discovery may 

be treated as authentic.”) (citing International Paper Co. v. Androscoggin Energy LLC, No. 00-cv-6215, 

2002 WL 31155069 *2 (N.D. Ill. Sept. 26, 2002), aff’d, 398 F.3d 620 (7th Cir. 2005)).4

Plaintiffs have also demonstrated that they each received a call with a robotic message on

their landline or cellular telephones. (Plfs. SOF ¶¶ 29-33, 45-55; Plfs. Resp. CCL/VOMT Add’l. 

SOF ¶¶ 74-82.) Specifically, Plaintiff Aranda’s cellular phone number appears in CCL’s records, so 

there is no dispute that he heard the political survey or that the “free cruise” message played. (Plfs. 

SOF ¶ 45; Plfs. Resp. CCL/VOMT Add’l. SOF ¶ 76.) Moreover, Aranda, Birchmeier, and Parkes 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 Moreover, Defendants have no valid basis to question the letter’s credibility, and they have not 

provided any justification to argue that it is not otherwise authentic. See Liberty Mut. Ins. Co. v. Tokio Marine & 

Fire Ins. Co., No. 03 C 4765, 2004 WL 2125411, at *1 (N.D. Ill. Sept. 22, 2004) (“Even if a document is not 

properly authenticated, a party is not acting in good faith in raising an objection if the party knows that the 

document is nevertheless authentic.”). Nevertheless, given the abundance of undisputed evidence 

corroborating that each call contained a prerecorded message, Defendants’ admissibility challenge is entirely 

unavailing. 

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have each provided Defendants with copies of their telephone records and specifically testified 

about their receipt of and the content of the prerecorded calls. (Plfs. SOF ¶¶ 45, 47-49, 51.)

5

Notably, in so testifying, each and every one of them recalled being offered a “free” cruise and could 

recall the survey company by name. (Id; Plfs. Resp. CCL/VOMT Add’l. SOF ¶ 76.) Stone has 

similarly provided detailed testimony evidencing her receipt of Defendants’ calls and that she heard 

their prerecorded message, along with contemporaneous records documenting the same. (Plfs. SOF 

¶ 53; Plfs. Resp. CCL/VOMT Add’l. SOF ¶ 81.) Such records—which include contemporaneous 

complaints made to the Washington Attorney General’s Office and a law firm complaining about 

the fact that she received such calls, and the fact that they were made to both her residential and 

cellular telephone numbers (Plfs. Resp. CCL/VOMT Add’l. SOF ¶ 81)—demonstrate that she was a 

victim of Defendants’ rampant TCPA violations and that her calls easily meet the requirements of 

both the Cellular Telephone and Landline Class.6 The unrebutted evidence that each Plaintiff has 

provided is more than sufficient to satisfy their burden of proof. See Mullins v. Direct Digital, LLC, 

795 F.3d 654, 669 (7th Cir. 2015) (noting that treason is the only “type of case in American law 

where the testimony of one witness is legally insufficient to prove a fact”).

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5 CCL/VOMT themselves admit that Birchmeier “answered and heard a ‘recorded message . . . from 

Political Opinions of America’ prompting him to ‘take a 30-second political survey’ in return for a free twoday cruise.” (Dkt. 373, CCL/VOMT Add’l. SOF ¶ 60.)

6 Stone explained that Defendants’ calls to her residential number did not appear on her telephone 

records because “her landline carrier ‘does not keep or have records for every incoming or outgoing call,’” 

(Dkt. 202 at 27, n.21 see also Plfs. Resp. CCL/VOMT Add’l. SOF ¶ 81)—and the Court specifically rejected 

Defendants’ argument that she was not a proper class representative because she “could not match those calls 

identified in her interrogatories to her telephone records’ and kept ‘no notes’ on the calls.” Birchmeier, 302 

F.R.D. at 252 (quoting CCL’s and VOMT’s opposition to Plaintiffs’ motion for class certification). But even 

if the Court now agrees that Stone is not a proper representative for the Landline Class, that would not entitle 

Defendants to summary judgment against the entire Landline Class, as the issues of class membership are 

separate from issues relating to the merits of Plaintiffs’ and the Classes’ claims, and the other Plaintiffs (or 

another member from the Class) could represent the Landline Classes’ claims. See Plaintiffs’ Omnibus 

Opposition, Dkt. 376 at 58-59.

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Therefore, the Court should find that Plaintiffs each received the robocalls at issue, and that 

such calls violated the TCPA. Similarly, the Classes are entitled to summary judgment on the ground 

that the calls violated the TCPA.

II. Defendants Have Failed to Adduce Any Evidence to Demonstrate that Their 

Robocalls Could be Exempt from the TCPA. 

CCL and VOMT next claim that the calls do not violate the TCPA because they fall under 

one of the statute’s limited exemptions. (CCL/VOMT Opp. at 10-14.) Notably, Defendants do not 

contend that Plaintiffs (or any of the Class members) consented to the receipt of the calls. (Dkt. 389, 

Berkley Resp. Plfs. SOF ¶¶ 46, 50, 52, 54; Dkt. 373, CCL/VOMT Resp. Plfs. SOF ¶¶ 46, 50, 52, 54.) 

Rather, their sole argument is that the calls are immune from liability under the TCPA’s “noncommercial” exemption because they were “placed by tax exempt nonprofit organizations.” 

(CCL/VOMT Opp. 10-14.) Plaintiffs agree that Congress has excused certain “non-telemarketing, 

informational calls” made to landlines from the purview of the TCPA, see In Re Rules & Regulations 

Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1841 (2012) (the “2012 FCC 

Order”) (emphasis in original), but CCL’s and VOMT’s contention that these robocalls should be 

afforded this protection is wrong. 

First, and as noted in Plaintiffs’ opening Motion, the non-commercial call exemption on 

which CCL and VOMT now rely does not apply to calls made to cellular telephones. See 2012 FCC 

Order, 27 F.C.C. Rcd. at 1841; see also 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii); In 

Re Richard Gilmore d/b/a Democratic Dialing (FCC File No. 12- 00004943), Dkt. 336, Ex. A at 3-4 

(noting that there is no exemption for political calls to cellular telephones). As such, even if 

Defendants were able to demonstrate a disputed factual issue in this regard with respect to calls 

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9

made to landlines (and they cannot), this exception would not excuse the calls made to Plaintiffs and 

members of the Cellular Telephone Class.7

The exemption similarly does not apply to Defendants’ residential landline calls, as the 

record makes clear that each of the calls contained telemarketing messages that were designed to sell 

vacation packages and increase their profits. (Plfs. SOF ¶¶ 16, 33-36, 41, 42.) See 2012 FCC Order, 

27 F.C.C. Rcd. at 1841 (noting that the exemption applies only “to the extent that [the calls] do not 

contain telemarketing messages”); 47 C.F.R. § 64.1200(f)(12) (defining “telemarketing” to mean the 

“initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, 

or investment in, property, goods, or services, which is transmitted to any person”); see also In Re 

Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14149 (2003) 

(the “2003 FCC Order”) (same). To be sure, Dan Lambert specifically referred to the robocalling 

campaign as the “next great mouse trap . . . as far as sales go” (Plfs. SOF ¶ 42), and each Defendant

obtained numerous leads and profited from the campaign. (Id.) Plaintiffs have likewise demonstrated 

that every Class member who completed a survey was offered a materially identical pitch for an 

upgraded vacation package that included a mandatory presentation at one of Berkley’s timeshare 

properties. (Plfs. SOF ¶¶ 32-36.) Given the FCC’s ruling that “a message that seeks people to help 

sell or market a business’ products, constitutes an advertisement if the individuals called are 

encouraged to purchase, rent, or invest in property, goods, or services, during or after the call,” 2003 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7 CCL and VOMT at least implicitly acknowledge the exemption does not apply to calls made to 

cellular telephones, but then assert, without support, that “there is no reason [the exemption] should not be 

applied to cellular telephones as well.” (CCL/VOMT Opp. at 13.) That is simply wrong. The plain language 

of the TCPA shows that there is no exemption for unsolicited political robocalls made to cellular telephones, 

and courts and the FCC have interpreted the statute consistent with that plain language. See Gager v. Dell Fin. 

Servs., LLC, 727 F.3d 265, 273 (3d Cir. 2013) (in debt collection case, holding that “the content-based 

exemptions” for certain types of calls made to landlines do not apply to calls made to cellular telephones); see 

also In re Richard Gilmore, Dkt. 336, Ex. A at 3-4. In any event, given that none of Defendants’ calls—whether 

made to a landline or cellular telephone—are subject to this protection anyway, their argument is irrelevant. 

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10

FCC Order, 18 F.C.C. Rcd. 14014 at 14098-99 (emphasis added), there is no question that these calls 

constitute impermissible telemarketing communications and are not entitled to any exemption. 

Nonetheless, CCL and VOMT rely on a handful of “facts” to argue that ESG’s calls were 

informational (i.e. non-commercial) in nature. These so-called facts are not true. Most importantly, 

no reasonable person could determine that DeJongh “would have conducted the surveys” absent the 

free cruise offer, as CCL and VOMT now claim. ESG’s brokers specifically testified that the calls 

would not have been possible without the free cruise incentive (Plfs. Resp. CCL/VOMT Add’l. SOF 

¶ 64), and, in fact, calls without a free cruise offer only occurred during a “test” period that only 

lasted “one day.” (Id. (citing Plf. Add’l. SOF Ex. 58, Broomfield Dep. at 58).)

8 Moreover, although 

the ESG Defendants claim to have entered into agreements with various political organizations that 

they claim controlled the content of and benefitted from the surveys, none of the contracts between 

the ESG Defendants and the PACs were entered into prior to October 2011, which was months 

after Defendants began obtaining leads as a result of the calls, in August 2011. (Id.) Nevertheless, 

even accepting Defendants’ rendition of the facts as true for purposes of summary judgment, the 

calls were at least in part designed to sell Defendants’ vacation packages, and thus violated the 

TCPA even if they were also designed to deliver some sort of political message. See 2003 FCC 

Order, 18 F.C.C. Rcd. at 14089 (explaining that an entity cannot seek to “immunize itself by simply 

inserting purportedly ‘non-commercial’ content into [an otherwise commercial] message”); see also 

Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 917 (9th Cir. 2012) (“The FCC has determined that socalled ‘dual purpose’ calls, those with both a customer service or informational component as well as 

a marketing component, are prohibited [under the TCPA].”) (citing the 2003 FCC Order, 18 F.C.C. 

Rcd. 14014 at ¶ 14095). Indeed, CCL made the exact same argument in Bank v. Caribbean Cruise Line, 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 Of course, even if certain of ESG’s calls did not include a free cruise offer, this would not mean that 

its “free” cruise calls are entitled to the exemption. 

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11

and the Eastern District of New York rejected it outright. No. 12-cv-00584, Dkt. 49 (E.D.N.Y. Aug. 

26, 2013), at 12-13 (rejecting CCL’s argument that “the robocalls’ political survey content, which is 

only part of the call, exempts the free cruise message from TCPA liability,” despite that CCL 

produced “survey research agreements,” “draft survey questions,” and “statistical compilations of 

survey answers”) (attached as Plfs. SOF Ex. 47). 

CCL and VOMT do not provide any valid basis to stray from the FCC’s prior rulings or the 

Bank and Chesbro decisions. Instead, they rely on a single opinion from the District of Michigan—

Wengle v. DialAmerica Mktg., Inc., No. 14-cv-10655, 2015 WL 5595505, *4 (E.D. Mich. Sept. 22, 

2015)—where a Michigan district court found that for-profit telemarketer DialAmerica’s calls selling 

magazine subscriptions were exempt from liability because they were made on behalf of the nonprofit organization, “SOMI.” But the facts in Wengle are drastically different and not helpful to 

Defendants. Specifically, the Wengle court rejected the plaintiff’s contention that the calls were made 

for DialAmerica’s “own commercial purpose” because, inter alia, (i) the calls “result[ed] in a business 

and contractual relationship between the customer and SOMI [the non-profit organization],” id. at *8

(emphasis in the original), (ii) the “customer pa[id] SOMI directly, [and] the funds [we]re deposited 

into a SOMI-controlled bank account,” (iii) the unrebutted evidence demonstrated that DialAmerica

was a valid telemarketing entity whose telemarketing efforts were “critical to fulfilling the [nonprofit’s] core mission,” id. at 7, and (iv) each and every call “explain[ed] that [DialAmerica wa]s a 

professional fundraiser calling ‘for’ SOMI,” “extoll[ed] [SOMI’s] good works, and stress[ed] [its] 

financial needs.” Id. at *7, 9.

9

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9 CCL and VOMT make much of the fact that the Wengle Court relied on the non-profit’s ability to 

control the content of the telemarketing calls as a basis for reaching its decision (CCL/VOMT Opp. at 12), 

but that was not a main factor on which the Wengle court relied, and in any event it does not help CCL or 

VOMT given the evidence in this case showing that they had the right to edit the scripts as well. To be sure, 

though CCL and VOMT claim the PACs had the “right” to alter the survey questions (CCL/VOMT Add’l. 

SOF 70), it is absurd to suggest that these entities exerted a similar degree of control over the calls as the nonCase: 1:12-cv-04069 Document #: 405 Filed: 01/27/16 Page 16 of 27 PageID #:9937
12

In contrast to Wengle, the overwhelming beneficiaries of the calls were Defendants’ for-profit 

companies—not the PACs with whom DeJongh claims he contracted—and a relationship between 

the PACs and the call recipients did not result. Similarly, there is no evidence that the calls were 

“crucial” to anything other than Defendants’ own commercial purpose, which was to encourage call 

recipients to purchase their vacation products. (Plfs. SOF ¶¶ 16, 33-36, 41-42; Plfs. Resp. 

CCL/VOMT Add’l. SOF ¶ 70.) Therefore, the Wengle decision does not support Defendants’ 

conclusion that the calls at issue here are exempt from the TCPA. 

As Defendants have failed to adduce any evidence demonstrating the calls are subject to any 

TCPA exemptions, Plaintiffs are entitled to summary judgment on these issues as well. 

III. Vicarious Liability Cannot be Determined Here on Summary Judgment.

Finally, Defendants devote a substantial portion of their briefs to discussing the issue of 

vicarious liability. To start, CCL and VOMT repeat their assertion that Plaintiffs have failed to 

adequately plead vicariously liability in their complaint (CCL/VOMT Opp. at 16-17), and 

Defendants then argue that issues of vicarious liability can and should be determined on this record, 

despite that Plaintiffs have not even moved for summary judgment on this ground. (CCL/VOMT 

Opp. at 15-17; Berkley Opp. at 4-8.) In addition to the fact that none of these arguments have merit, 

even a cursory review of the record makes clear that summary judgment in Defendants’ favor is not 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

profit in Wengle, given that the calls in this case began well before the contracts with the PACs were ever 

entered. (Plfs. Resp. CCL/VOMT Add’l. SOF ¶ 64.) Moreover, the Wengle Court recognized that prior to 

enacting the telemarketing program at issue, the FCC specifically rejected DialAmerica’s request to find that 

its telemarketing calls were subject to the non-commercial exemption on at least two occasion, see Wengle, 

2015 WL 5595505, at *2 (citing In the Matter of R. and Regulations Implementing the Tel. Consumer Protec. Act of 

1991, 20 F.C.C. Rcd. 3788, 3799, n.85 (2005)), which prompted DialAmerica to revise its telemarketing 

program. Importantly, in explaining why the calls in DialAmerica’s new program now qualified for the 

requested exemption, the court explained the ways in which the new program differed—all of which focused 

on the call recipients’ direct relationship with the non-profit organization. Wengle, 2015 WL 5595505, at *2. 

None of the changes discussed mentioned the non-profit’s ability to control the content of the calls, which 

presumable then, is a right the non-profits always had. Id. As such, it is clear that the non-profit organization’s 

control over the surveys’ content was not the driving force behind the court’s ultimate decision, and the 

Court should disregard Defendants’ suggestions to the contrary. 

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13

appropriate, and likely, that a review of the evidence will lead the trier of fact to come out the other 

way. 

A. This Court has already ruled that Plaintiffs’ pleadings sufficiently raise 

vicarious liability and, in any event, there is no requirement to plead legal 

theories.

CCL’s and VOMT’s main argument supporting their position that the question of vicarious 

liability can be decided on summary judgment is their contention that theories of vicarious liability 

“must actually be pleaded in the operative complaint.” (CCL/VOMT Opp. at 17.) The Seventh 

Circuit, however, has “stated repeatedly (and frequently) that a complaint need not plead legal 

theories, which can be learned during discovery.” Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 

2011). The rule is so permissive that “[e]ven citing the wrong statute needn’t be a fatal mistake, 

provided the error is corrected in response to the defendant’s motion for summary judgment and 

the defendant is not harmed by the delay in correction.” Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 

743 (7th Cir. 2010). Thus, in the agency context, “[a]ll [Plaintiffs] must plead are facts that would 

plausibly give rise to an agency relationship.” Kostovetsky v. Ambit Energy Holdings, LLC, No. 15 C 

2553, 2016 WL 105980, at *7 (N.D. Ill. Jan. 8, 2016) (Feinerman, J.).

10

This Court held years ago that Plaintiffs’ Complaint presented facts sufficient “to allege[] 

each defendant’s involvement in making the calls at issue.” (Dkt. 77 ¶ 2.) That should be the end of 

the matter. Assuming, arguendo, that the operative Complaint is not sufficiently specific with regard 

to the types of agency theories on which Plaintiffs intend to proceed, it is still irrelevant because they 

have explained their legal theories—in detail—well before the summary judgment stage. (See, e.g., 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10 This rule has no bearing on whether the existence of an agency relationship is a question of law or a 

question of fact. See Cent. States Trucking Co. v. J.R. Simplot Co., 965 F.2d 431, 433 (7th Cir. 1992) (“Although 

agency is a legal concept, whether particular ‘facts’ show an agency relationship existed is itself a ‘fact’ for 

purposes of separating the district judge’s function from our own.”) (internal alterations omitted). The jury 

should decide whether the evidence that Plaintiffs offer at trial leads to the conclusion that CCL, VOMT, and 

Berkley are vicariously liable for the calls at issue.

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Dkt. 376 at 21-22, addressing extensive history of litigation regarding vicarious liability in this 

case; see also Dkt. 346-2 at 258-276, Ex. AA to Berkley’s SOF (interrogatory responses)). Notably, 

CCL and VOMT do not even try to argue that they have been unfairly taken by surprise or harmed

by Plaintiffs’ assertion of this theory. And, put simply, Defendants cannot escape liability in this case 

by claiming that the Complaint has not adequately alleged these theories either.

B. The question of agency is a factual issue and can only be determined if the 

underlying facts are undisputed and only one inference can be drawn from 

them.

Next, Defendants take issue with Plaintiffs’ assertion that a jury must decide Defendants’ 

liability, making much of cases holding that in certain rare circumstances, questions of agency may 

be determined on summary judgment. (CCL/VOMT Opp. at 15-17; Berkley Opp. at 4-7.) 

Defendants, however, cannot dispute the general rule that “the existence and scope of an agency 

relationship are questions of fact, to be decided by the trier of fact,” Chemtool, Inc. v. Lubrication Techs., 

Inc., 148 F.3d 742, 746 (7th Cir. 1998), not at summary judgment. See Moriarty v. Glueckert Funeral 

Home, Ltd., 155 F.3d 859, 864 (7th Cir. 1998) (“determinations regarding the existence and scope of 

an agency relationship” are questions of fact, which typically must be decided at trial); see also Cabrera 

v. Jakabovitz, 24 F.3d 372, 386 & n.14 (2d Cir. 1994) (quoting 3 C.J.S. Agency § 547 (1973)) (the issue 

of agency must be determined by the jury “unless no competent evidence legally sufficient to prove 

it has been introduced or the material facts from which it is to be inferred are undisputed and only 

one conclusion can be reasonably drawn therefrom.”). In short, Plaintiffs do not contend that 

summary judgment on the question of agency is never appropriate under any circumstance. Their 

position is merely that on this record and under these circumstances, a jury could reasonably come to 

the conclusion that ESG acted as an agent (or subagent) for VOMT, CCL, and Berkley when it 

placed the unlawful telephone calls at issue.

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To counter the weight of authority supporting Plaintiffs’ position, CCL and VOMT provide 

a half-page single-spaced string citation of cases that it contends decide “issues of vicarious liability 

at summary judgment.” (CCL/VOMT Resp. at 16 & n. 68.) Many are not TCPA cases and apply 

rules of law in contexts so varied that it is difficult to see how they relate to this case at all.

11 In the 

majority of the TCPA cases CCL and VOMT reference, the plaintiffs were unable to support their 

factual assertions with any evidence that a jury could reasonably conclude that an agency relationship 

existed.12 That’s insufficient at summary judgment in any context, but it is not an issue here because 

Plaintiffs have provided more than enough evidence to allow a jury reach the conclusion that 

Defendants are vicariously liable for the calls. (See infra, Section III.C.) In the rest of the cases CCL

and VOMT cite, courts outside this circuit erred either by requiring a classical agency relationship in 

spite of the FCC’s binding order that such a relationship is not required,

13

see Gomez, slip op. at 14

(finding “no cause to question” the FCC’s ruling “that under federal common-law principles of 

agency, there is vicarious liability for TCPA violations”), or by incorrectly deciding the agency issue 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 11 See, e.g., Youngblood v. Alliance Pharm., No. Civ. 95-2796, 1998 WL 676800, at *6 (E.D. La. Sept. 30, 

1998) (applying Louisiana’s Napoleonic civil code, not the common law of agency); USA Certified Merchants, 

LLC v. Koebel, 273 F. Supp. 2d 501, 504 (S.D.N.Y. 2003) (denying a motion for reconsideration with only 

cursory discussion of the original ruling); Silk v. City of Chicago, 194 F.3d 788, 800 (7th Cir. 1999) (applying 

vicarious liability standard specific to employment discrimination, not the common law of agency); M.J. ex rel. 

Beebe v. United States, 721 F.3d 1079, 1085 (9th Cir. 2013) (holding that because “Plaintiffs’ claims . . . are based 

on a theory of vicarious liability” under Alaska law, the defendant necessarily had federal and tribal sovereign 

immunity).

12 See Hurst v. Mauger, No. 11 C 8400, 2013 WL 1686842, at *2 (N.D. Ill. Apr. 16, 2013) (“[Plaintiff] has 

primarily set forth legal arguments, legal conclusions, [his] own characterizations of the undisputed facts in 

the record, and statements unsupported by accurate citations to the record”); Keating v. Peterson's Nelnet, LLC, 

615 F. App’x 365, 372 (6th Cir. 2015) (“[A]ll evidence in the record points to the fact that [the purported 

agent] sent the unauthorized text messages to the putative plaintiff class—without the knowledge or 

acquiescence of [defendants].”) (emphasis added); Jones v. All Am. Auto Prot., Inc., No. 314CV00199, 2015 WL 

7566685, at *5 (D. Nev. Nov. 24, 2015) (“Plaintiffs provide no evidence that Royal knew or should have known 

that AAAP was violating the TCPA.”) (emphasis added); Siding & Insulation Co. v. Alco Vending, Inc., No. 1:11 

CV 01060, 2015 WL 1858935, at *1 (N.D. Ohio Apr. 22, 2015) (“[T]here was insufficient evidence on the 

record by which a jury could reasonably find for the plaintiff under any of those agency theories.”).

13 See Thomas v. Taco Bell Corp., 879 F. Supp. 2d 1079, 1086 (C.D. Cal. 2012) (no discussion of 

ratification or apparent authority); Applestein v. Fairfield Resorts, No. 0004 SEPT.TERM 2007, 2009 WL 

5604429, at *6 (Md. Ct. Spec. App. July 8, 2009) (same); Mey v. Pinnacle Sec., LLC, No. 5:11CV47, 2012 WL 

4009718, at *5 (N.D.W. Va. Sept. 12, 2012) (same).

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at summary judgment when it should have gone to trial.14 Nothing in CCL/VOMT’s string cite is 

persuasive.

Besides citing to a large number of out-of-circuit cases, CCL and VOMT wave away the 

Seventh Circuit’s dictate that agency relationships are generally fact issues by claiming that the 

Chemtool court “actually affirmed the district court’s resolution of vicarious liability issues that were 

decided at summary judgment[.]” (CCL/VOMT Resp. at 15.) They are wrong. The agency issues in 

Chemtool were decided at a bench trial, not at summary judgment. 148 F.3d at 744. That’s why the 

district judge was able to make factual findings with regard to agency—he was sitting as the trier of 

fact. Id. Plaintiffs advocate for the same process here: the agency issues should be decided by the 

trier of fact.

Berkley recognizes (in bold, italic type, no less) that Chemtool was decided at a bench trial, but 

it is no more able to distinguish the case. (Berkley Opp. at 4.) Instead, it supports its position with 

the Seventh Circuit’s statement in Valenti v. Qualex, Inc., 970 F.2d 363, 367 (7th Cir. 1992) (quoting 

Rankow v. First Chicago Corp., 870 F.2d 356, 359 (7th Cir.1989)), that courts can decide the question of 

agency in rare cases where “the relationship is ‘so clear as to be undisputed.’” (Berkley Opp. at 4-5.) 

But Valenti is nothing like this case. There, at summary judgment, the plaintiff offered nothing but a 

bare allegation that an agency relationship existed, with no citation to any evidence. Valenti, 970 F.2d 

at 368. Similarly, in Spitz v. Proven Winners N. Am., LLC—another case on which Berkley relies—the 

court noted two times that agency is typically not an appropriate question for summary judgment. 759 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14 In Makaron v. GE Sec. Mfg., Inc., No. CV-14-1274, 2015 WL 3526253, at *8 (C.D. Cal. May 18, 2015), 

the court incorrectly relied on a Ninth Circuit case applying California law to hold that ratification requires a 

pre-existing agency relationship, which it does not in the TCPA context. (See Plaintiffs’ Omnibus Opposition, 

Dkt. 376 at 41-45.) In Kristensen v. Credit Payment Servs. Inc., No. 2:12-CV-00528, 2015 WL 4477425, at *2 (D. 

Nev. July 20, 2015) the evidence in support of the plaintiff’s ratification theory was far more tenuous than it is 

here. By way of example, Berkley’s counterpart in Kristensen did not, inter alia, (i) have a twenty-something year 

long relationship with the other defendants, (ii) have the right to provide its marketers with interim 

instructions about their marketing efforts, (iii) regularly meet to discuss the prospects being provided, and/or 

(iv) expressly permit telemarketing to be used in order to generate leads.

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17

F.3d 724, 731-32 (7th Cir. 2014). Like Valenti, summary judgment was appropriate in Spitz only 

because “the undisputed facts [led] to only one reasonable inference.” Spitz, 759 F.3d at 732. As 

discussed below and at length in Plaintiffs’ Omnibus Opposition, this is not the type of rare case 

where an agency determination can be made on summary judgment.

C. There are numerous disputes about the facts related to Defendants’ liability 

as well as the “reasonable inferences” that can be drawn from those facts. 

Wrongly assuming that the notoriously fact-intensive issues of vicariously liability can 

properly be decided, Defendants endeavor to convince the Court that summary judgment in their 

favor is appropriate on the instant record. (Berkley Opp. at 4-7.)15 Defendants’ efforts here fall flat. 

As detailed more thoroughly in Plaintiffs’ Omnibus Opposition, there is ample evidence 

demonstrating why the issue of liability could not possibly be decided in any of the Defendants’ 

favor on this factual record, and likely, that just the opposite is true. 

Specifically, although CCL and VOMT deny that “they worked closely with the ESG 

Defendants” and contend that there is no evidence to support Plaintiffs’ assertion that they ratified 

the conduct or that they “gladly accepted the benefits of the campaign” (CCL/VOMT Opp. at 2),16

the record demonstrates that Defendants’ position is at best disputed, if not entirely false. 

Specifically, CCL, and by implication VOMT, contracted with ESG for the explicit purpose of 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 15 Recognizing that Plaintiffs have not moved for summary judgment on the liability issue, CCL and 

VOMT (unlike Berkley) stop short of suggesting that the undisputed facts warrant a summary judgment 

ruling in their favor. Nevertheless, presumably intending to suggest that the evidence is in their favor, CCL’s 

and VOMT’s Opposition goes to great lengths to argue that Plaintiffs have misrepresented their role in, and 

control over, the telemarketing campaign at issue. (See CCL/VOMT Opp. at 2-6.) As such, Plaintiffs briefly 

respond. 

16 CCL and VOMT also curiously take issues with the fact that Plaintiffs included facts outside of those 

dealing with the content and method of delivering the robocalls, in this instance, correctly noting that the 

calls’ legality is the only issue raised by Plaintiffs’ Motion. (CCL/VOMT Opp. at 2, 5 n. 6.) But all of the facts 

that Plaintiffs included in their Statement of Facts provide relevant background and context for the legal 

issues presented in Plaintiffs’ opening Motion or are directly necessary to decide those issues. As this Court 

has previously explained, nothing in the Local Rules “requires a summary judgment movant to cite to each 

paragraph of its statement of facts in its motion or brief,” Young v. Cty. of Cook, 616 F. Supp. 2d 834, 843-44 

(N.D. Ill. 2009) (Kennelly, J.), so Defendants’ suggestion that this is somehow improper is not well-founded.

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18

“solicit[ing] survey takers by transmitting or causing to be transmitted prerecorded survey messages 

using an autodialer” (Plfs. SOF ¶ 25; id. at ¶¶ 9-10; see also Plf. Resp. CCL/VOMT ¶¶ 36, 59; Plf. 

Resp. Berkley SOF ¶ 6, 17, 68, 75.) In addition, CCL readily accepted—and attempted to sell 

vacation packages to—the approximately 2 million calls that were transferred as a result, and CCL 

greatly profited from this process. (Plfs. SOF ¶¶ 40-42; Plf. Resp. CCL/VOMT SOF ¶ 38; Plf. Resp. 

Berkley SOF ¶ 55; Plfs. Add’l. SOF ¶¶ 55-56 (testimony showing that CCL sold nearly 60,000 

vacation packages as a result of the calls); Plfs. SOF ¶ 23 (evidencing that VOMT “paid” CCL $50 

for each lead obtained and that Berkley paid VOMT for those same leads).) 

It’s likewise clear that CCL controlled and knowingly ratified the conduct given that it was 

intimately involved in the campaign by: (i) editing the scripts used during the calls; (ii) weighing in on 

the states to which calls should be made; (iii) telling the ESG Defendants (through their affiliates) 

what content to include on their websites; (iv) directing the ESG Defendants not to make calls on 

certain holidays; (v) informing the lead broker how many calls it would accept each day; and (vi) 

instructing the ESG Defendants and the lead broker to change the name of the purported survey 

group after receiving consumer complaints. (See Plfs. Resp. CCL/VOMT Add’l. SOF ¶ 68.) CCL 

and VOMT are plainly not entitled to summary judgment on this record. 

Berkley’s suggestion that it “cannot be vicariously liable” (Berkley Opp. at 6) is equally 

wrong. Foremost, Plaintiffs vehemently disagree with Berkley’s contention that it “had no part in the 

alleged robocalling campaign.” (Id. at 2.)

17 The record demonstrates that every call was made for the 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 17 Berkley’s legal arguments—essentially that it cannot be held liable for the calls because (i) Plaintiffs 

haven’t demonstrated that Berkley had a direct relationship with ESG and because (ii) Berkley is not a “seller” 

as the FCC’s Dish Network Order requires (Berkley Opp. at 5-6, 8), are similarly unavailing. First, and as fully 

detailed in Plaintiffs’ Omnibus Opposition (see Dkt. 376 at 44-46), Plaintiffs need not demonstrate that 

Berkley had a direct relationship with ESG in order to recover on a valid agency theory. To be sure, as ESG 

was VOMT’s and CCL’s subagent, and those entities did and were authorized to work (as agents) on 

Berkley’s behalf (Plf. Add’l. SOF ¶ 12; Plf. Resp. CCL/VOMT ¶ 36; Plf. Resp. Berkley SOF ¶¶ 24, 68), 

liability can result. See Smith v. State Farm Mut. Auto. Ins. Co., 30 F. Supp. 3d 765, 775 (N.D. Ill. 2014) (principal 

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19

purpose of selling Berkley’s timeshare products (see Plf. SOF ¶¶ 33-36 (explaining that each 

individual transferred to CCL was offered a materially identical pitch for an upgraded vacation 

package that included a mandatory presentation at one of Berkley’s timeshare properties); Plfs. SOF 

¶ 36 (evidencing that even if the Class member did not agree to attend the presentation during the 

initial call, they were offered it again later, either on the telephone with CCL or during the vacation 

itself); see also Plf. Resp. Berkley Add’l. SOF ¶ 10), and it cannot reasonably be disputed that Berkley 

benefitted from the telemarketing calls. (Plfs. SOF ¶ 42; Plfs. Resp. Berkley SOF ¶ 27.).

18

Additionally, although Berkley contends otherwise, many facts in the record would permit a 

reasonable jury to infer that Berkley knowingly ratified the TCPA violations (and/or that Berkley is 

liable under classical agency and apparent authority theories as well). In short summary, and as 

explained in more detail in Plaintiffs’ Omnibus Opposition, those facts include, inter alia: (i) that 

Berkley had an exclusive contract with VOMT that expressly contemplated VOMT’s

telemarketing,

19 required VOMT to provide Berkley with a list of all of its marketing programs, and 

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may be held liable for acts committed by authorized subagents); see also 1-800 Contacts, Inc. v. Lens.com, Inc., 722 

F.3d 1229, 1251 (10th Cir. 2013) (“the absence or infrequency of direct communication from Lens.com to its 

affiliates is not conclusive on whether the affiliates were its agents. A principal can authorize its agent to 

appoint a subagent, and the subagent can then act as an agent for the principal even though the principal’s 

control is indirect”). Second, and as also set out in Plaintiffs’ Omnibus Opposition (see Dkt. 376 at 23-25), the 

idea that Berkley is not a “seller” under the TCPA is equally meritless. The TCPA defines a “seller” as “the 

person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the 

purchase or rental of, or investment in, property, goods, or services . . .” 47 C.F.R. § 64.1200(f)(9) (emphasis 

added). Thus, if the call’s purpose is to “encourag[e]” recipients to purchase, rent, or invest in property, 

goods, or services, then any company on behalf of whom that call is made is a seller, see id, as the facts plainly 

demonstrate Berkley is here. (See, e.g., Plfs. SOF ¶¶ 33-36.) 

18 Berkley’s attempt to escape liability because it was not mentioned by name on the call (Berkley Opp. 

at 4), is not well-founded either. As the FCC has made clear, “a message that seeks people to help sell or 

market a business’ products, constitutes an advertisement if the individuals called are encouraged to purchase, 

rent, or invest in property, goods, or services, during or after the call,” FCC 2003 Order at 14098-99, and even 

if the product is not specifically referenced by name. 

19 Berkley suggests that Plaintiffs intentionally miscited the contractual language between VOMT and 

CCL to incorrectly reference CCL’s intention to provide VOMT with “Prospect[s who] would be offered the 

opportunity to purchase a timeshare at the Berkley’s timeshare resorts”, and to make the contractual 

language appear more favorable to Plaintiffs’ position. (Berkley Opp. at 3 (citing Dkt. 337 at ¶ 22)). Plaintiffs’ 

mistake was entirely inadvertent, but they acknowledge it: the contract refers to “various timeshare resorts” 

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did not explicitly disclaim an agency relationship despite that every single other one of Berkley’s 

marketing contracts did (Plf. SOF ¶¶ 20, 24; Plf. Resp. Berkley Add’l. SOF ¶ 2; Dkt. 379, Plf. Add’l. 

SOF ¶¶ 11, 20-22; Dkt. 377, Plf. Resp. Berkley SOF ¶¶ 22); (ii) Berkley’s longstanding and 

interconnected relationship CCL, VOMT, and their key executives (Plfs. SOF ¶¶ 11-16; Plf. Resp. 

Berkley Add’l. SOF ¶ 2); (iii) the parties’ regular monthly meetings with Berkley’s entire Board of 

Directors, and Dan Lambert and James Verillo for CCL and VOMT (Plfs. Resp. Berkley Add’l. SOF 

¶¶ 1-2); and (iv) Berkley’s right to and practice of giving VOMT interim instructions, which its 

President Rebecca Foster testified she believed were always followed. (Plf. Resp. Berkley Add’l. SOF 

¶ 12; Dkt. 377, Plf. Resp. Berkley SOF ¶¶ 22, 68.) Moreover, Berkley does not refute that it knew of 

the calls by May 2012 at the latest, months before the calls ended; nor could it, given the various 

communications it had with the other Defendants and the numerous detailed complaints about the 

calls it received. (Berkley SOF ¶ 44; Plf. Resp. Berkley Add’l. SOF ¶ 12 (citing Plf. SOF Ex. 31.); 

Dkt. 379, Plf. Add’l. SOF ¶¶ 49-51; Dkt. 377, Plf. Resp. Berkley SOF ¶ 44.)

In the end, a juror could certainly determine that these facts, and those discussed in 

Plaintiffs’ Omnibus Opposition to Defendants’ motions for summary judgment, support a finding 

of liability in Plaintiffs’ favor against each of the Defendants, and as a result, a ruling on vicarious 

liability is simply not appropriate. 

CONCLUSION

For the reasons set forth above, the Court should grant Plaintiffs’ motion for partial 

summary judgment. 

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rather than specifically to “Berkley’s timeshare resorts.” Moreover, the mistake has little significance given the 

exclusive nature of the Parties’ relationships, i.e., every single prospect CCL provided to VOMT would then 

in fact be exclusively provided to Berkley, and so all of the “various” resorts were Berkley resorts. (Plfs. SOF 

¶ 20.) 

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Respectfully submitted by: 

/s/ Rafey S. Balabanian

Jay Edelson

Rafey S. Balabanian

Eve-Lynn J. Rapp

EDELSON P.C.

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Telephone: (312) 589-6370

Email: jedelson@edelson.com

rbalabanian@edelson.com

cdore@edelson.com

erapp@edelson.com

Class Counsel

/s/ Scott R. Rauscher

Scott R. Rauscher

Michael I. Kanovitz

Jonathan I. Loevy

LOEVY & LOEVY

312 N. May Street, Suite 100

Chicago, Illinois 60607

Telephone: (312) 243-5900

Email: scott@loevy.com

jon@loevy.com

mike@loevy.com

Class Counsel

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CERTIFICATE OF SERVICE

I, Eve-Lynn J. Rapp, hereby certify that on January 27, 2016, I caused the foregoing to 

be filed by the Court’s CM/ECF system and to be served on all counsel of record.

/s/ Eve-Lynn J. Rapp

Case: 1:12-cv-04069 Document #: 405 Filed: 01/27/16 Page 27 of 27 PageID #:9948