UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

GRANT BIRCHMEIER and STEPHEN 

PARKES, 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, and

unknown individual defendants, 

 Defendants.

___________________________________

DAVID WRIGHT, individually an on 

behalf of all others similarly situated,

Plaintiff,

v.

THE BERKLEY GROUP, INC., a Florida 

Corporation, and VACATION 

OWNERSHIP MARKETING TOURS, 

INC., a Florida corporation,

Defendants.

___________________________________

SUSAN VIGUS, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

CARIBBEAN CRUISE LINE, INC., a 

Florida corporation, and THE BERKLEY 

GROUP, INC., a Florida Corporation, 

 Defendants.

___________________________________

Case No. 1:12-cv-04069

Case No. 1:13-cv-00903

Case No. 1:13-cv-00908

PLAINTIFFS WRIGHT’S, BIRCHMEIER’S, AND PARKES’

MOTION AND MEMORANDUM OF LAW 

IN SUPPORT OF APPOINTMENT OF INTERIM CO-LEAD CLASS COUNSEL

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TABLE OF CONTENTS

FACTUAL AND PROCEDURAL BACKGROUND ................................................................ 2

I. THE PROCEDURAL POSTURE OF THE RELATED ACTIONS............................ 2

II. THE ALLEGATIONS AT ISSUE IN THE RELATED ACTIONS PENDING 

BEFORE THE COURT.................................................................................................... 2

III. PROPOSED INTERIM CO-LEAD CLASS COUNSEL HAVE ENGAGED 

IN SIGNIFICANT LITIGATION AND DISCOVERY TO DATE, AND ARE 

NOW WORKING COOPERATIVELY TO CONTINUE THE EXPEDIENT 

LITIGATION OF THIS CASE. ...................................................................................... 4

ARGUMENT................................................................................................................................. 6

I. PROPOSED INTERIM CO-LEAD CLASS COUNSEL EASILY MEET 

AND EXCEED THE STANDARDS OF RULE 23(g). .................................................. 6

A. Proposed Interim Co-Lead Class Counsel Have Led an Extensive 

Investigation Into Defendants’ Alleged Violations of the TCPA. ..................... 7

B. Counsel’s Experience Prosecuting Class Actions and Other Complex 

Litigation—as Well as Their Intimate Knowledge of the TCPA—

Supports Their Appointment as Interim Co-Lead Class Counsel.................... 8

1. Jay Edelson has notable experience handling TCPA class actions 

and other complex litigation. ..................................................................... 8

2. Scott Rauscher and the law firm of Loevy & Loevy also have 

significant experience prosecuting class actions and other complex 

litigation.................................................................................................... 10

C. Proposed Interim Co-Lead Class Counsel’s Superior Knowledge of 

the Applicable Law is Indisputable. .................................................................. 12

D. Proposed Interim Co-Lead Class Counsel have Already Devoted, and 

Will Continue to Devote, Significant Resources to the Litigation. ................. 12

E. Proposed Interim Co-Lead Class Counsel’s Leadership Here Also 

Weighs in Favor of Their Appointment as Interim Co-Lead Counsel........... 13

CONCLUSION............................................................................................................................ 14

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TABLE OF AUTHORITIES

Cases

In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006)................... 6

Rules & Statues

Fed. R. Civ. P. 23 ................................................................................................................... passim

Other

Advisory Cmty. Notes to the 2003 Amendments to Fed. R. Civ. P. 23(c)(2)(B) ........................... 7

Advisory Cmty. Notes to the 2003 Amendments to Fed. R. Civ. P. 23(g)..................................... 6

MANUAL FOR COMPLEX LITIGATION (Fourth) § 21.11 (2004) .................................................... 6, 7

Rule 23 Practice Commentary......................................................................................................... 6

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With three putative class actions having been related before this Court,1 Jay Edelson, 

counsel for Plaintiff David Wright, and Scott Rauscher of Loevy & Loevy, counsel for Plaintiffs 

Grant Birchmeier and Stephen Parkes, (collectively, “Proposed Interim Co-Lead Class 

Counsel”), now jointly move, pursuant to Fed. R. Civ. P. 23(g), for appointment as interim colead class counsel of the Related Actions. As evidenced by their work and leadership to date, Mr. 

Edelson and Mr. Rauscher readily meet and exceed the requirements for appointment as interim 

co-lead class counsel: (i) they have performed a wide-ranging investigation into the claims at 

issue here; (ii) they have extensive experience prosecuting class actions of similar size, scope 

and substance, and have been at the forefront of class litigation alleging violations of the 

TCPA—acting as lead class counsel in some of the largest cases and settlements, and obtaining 

seminal decisions regarding the TCPA’s application in others; (iii) their experience has led to an 

unmatched understanding of the legal and factual underpinnings of TCPA class actions 

generally, and these cases in particular; and (iv) they have devoted substantial resources to the 

investigation and prosecution of the claims here, and will continue to do so. Further, they have 

been on the front lines of these cases from their inception—filing on behalf of their clients and 

the putative class nearly five months before the Vigus Matter. Thus, it is their efforts that have 

paved the way for this litigation to date.

 1 See Wright v. The Berkley Group, Inc. et al., No. 1:13-cv-00903 (N.D. Ill.) (the “Wright

Matter”); Birchmeier v. Caribbean Cruise Line, Inc. et al., No. 1:12-cv-04069 (N.D. Ill.) (the 

“Birchmeier Matter”), and Vigus v. Caribbean Cruise Line, Inc., et al., 1:13-cv-00908 (N.D. Ill.) 

(the “Vigus Matter”) (collectively, the “Related Actions”). On February 20, 2013 and March 4, 

2013, and nine months after litigation against Defendants initially commenced, two nearidentical copy-cat lawsuits were also filed in the United States District Court for the Northern 

District of Illinois. See Vessal v. Caribbean Cruise Line, Inc. et al., No. 1:13-cv-01368 (N.D. Ill. 

Feb. 20, 2013); see also Volpe v. Caribbean Cruise Line, et al., No. 1:13-cv-01646 (N.D. Ill. 

March 4, 2013). Counsel for the plaintiff in that case, however, has not been in communication 

with Plaintiffs’ counsel here or otherwise participated in coordinating the litigation in any way, 

nor has that matter been related to the cases before this Court.

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For all of these reasons and as discussed further below, the Court should appoint Messrs.

Edelson and Rauscher as interim co-lead class counsel in the Related Actions.

FACTUAL AND PROCEDURAL BACKGROUND

I. THE PROCEDURAL POSTURE OF THE RELATED ACTIONS.

The Related Actions were each previously pending in separate district courts throughout 

the country—the Birchmeier Matter in this Court, the Wright Matter in the Southern District of 

Florida, and the Vigus Matter in the Eastern District of Missouri. The Birchmeier and Wright

Matters were filed within days of each other, with the Vigus Matter filed several months later. As 

the first and second filed cases, the litigation in the Birchmeier and Wright Matters had 

progressed the furthest. In addition, over the course of the last two months, led by the efforts of 

plaintiff’s counsel in the Wright Matter, all three groups of plaintiffs, without objection from the 

defendants in the Related Actions, decided to coordinate their efforts and move to transfer the 

three cases to this Court for eventual consolidation.2

II. THE ALLEGATIONS AT ISSUE IN THE RELATED ACTIONS PENDING 

BEFORE THE COURT.

Plaintiffs in each of the Related Actions allege that Defendants The Berkley Group, Inc. 

(“Berkley”), Vacation Ownership Marketing Tours, Inc. (“VOMT”), Caribbean Cruise Line, Inc. 

 2 On February 14, 2013, counsel for Plaintiffs Wright, Birchmeier, Parkes and Vigus, as 

well as counsel for each Defendant (with the exception of ESG) appeared before the Court on 

Plaintiffs Wright’s and Vigus’s separately filed Motions to Relate and Consolidate. (Birchmeier, 

Dkts. 82 & 84.) At that time, the Court found that both the Wright and Vigus Matters were 

“related” to the Birchmeier Matter, and entered an order requesting that the Executive 

Committee reassign both matters to this Court. The Court indicated, however, that although it 

agreed that the Related Actions should be consolidated, it could not take such action until all the 

Related Actions were presiding on its calendar. Accordingly, as the Executive Committee has 

now reassigned both the Wright and Vigus Matters to this Court’s calendar (see Wright, Dkt. 73; 

Vigus, Dkt. 50), it is respectfully requested that the Court consolidate each of the cases so they 

may now preside as a single matter. 

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(“Caribbean”), and Economic Strategy Group, Inc. (“ESG”)3—working cooperatively—have 

made thousands of unsolicited telemarketing robocalls to consumers nationwide—promoting 

vacation packages under the guise of conducting “political surveys”—in violation of the TCPA. 

(Wright, Dkt. 32 ¶¶ 1, 15, 25; Birchmeier, Dkt. 24 ¶¶ 1, 17-19; Vigus, Dkt. 2 ¶¶ 1, 3, 5, 17.) 

Specifically, Plaintiffs allege that Defendants are responsible for placing calls to consumers in 

which a recording identifying the caller as Political Opinions of America (“POA”) informs 

consumers that they will receive a “free cruise” in exchange for answering a series of political 

survey questions. (Wright, Dkt. 32 ¶¶ 1, 15, 25, 38; Birchmeier, Dkt. 24 ¶¶ 1, 17, 22; Vigus, Dkt. 

2 ¶¶ 1, 3, 5, 17.) Upon completion of the survey, call recipients are transferred to a live 

operator—supposedly representing Defendant Caribbean—who then attempts to up-sell the 

consumer into paying additional fees for unrelated vacation products and services. (Wright, Dkt. 

32 ¶ 25; Birchmeier, Dkt. 24 ¶ 20; Vigus, Dkt. 2 ¶¶ 1, 3, 5, 17.) Regardless of the outcome of the 

pitch, however, the consumers never actually receive the free cruises that they were promised.

(Wright, Dkt. 32 ¶ 25.)

As Plaintiffs never provided their cell phone numbers or their consent to any of the 

Defendants to call their cell phones at any time (Wright, Dkt. 32 ¶¶ 1, 3, 14, 27, 34; Birchmeier, 

Dkt. 24 ¶¶ 4, 17-19, 24; Vigus, Dkt. 2 ¶¶ 5, 6), Plaintiffs separately initiated suit against one or 

more of the named-Defendants, or a combination thereof, in various district courts throughout 

the country. (Wright, Dkt. 1; Birchmeier, Dkt. 1; Vigus, Dkt. 2.)4

 3 The Birchmeier Matter, which names Economic Strategy Group as a party-defendant, 

also names Economic Strategy Group, Inc. and Economic Strategy Group LLC, as defendants in 

that case. Because these entities appear to be the same, all of these entities are referred to 

collectively as “ESG”.

4 Originally, the Related Actions did not name the exact same Defendants, but once 

discovery in the respective actions commenced, it soon became clear that all of the Defendants 

are interrelated and have worked cooperatively in making or directing the calls at issue to be 

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III. PROPOSED INTERIM CO-LEAD CLASS COUNSEL HAVE ENGAGED IN 

SIGNIFICANT LITIGATION AND DISCOVERY TO DATE, AND ARE NOW 

WORKING COOPERATIVELY TO CONTINUE THE EXPEDIENT 

LITIGATION OF THIS CASE.

Proposed Interim Co-Lead Class Counsel have led the charge against Defendants for their 

alleged illegal robo-calling scheme. Specifically, the Birchmeier Matter was originally filed in 

this Court on May 24, 2012 against Defendants Caribbean and Political Opinions of America, 

and later amended on July 7, 2012 to add ESG, the corporation that purportedly operated as 

Political Opinions of America. (Birchmeier, Dkts. 1, 24.) The Birchmeier Plaintiffs then 

successfully defeated Defendants Caribbean’s and ESG’s motions to dismiss, obtaining a 

favorable ruling for the putative Class, in which the Court rejected “defendants’ contention that 

liability attaches under the TCPA only to the party that actually placed the call.” (Birchmeier, 

Dkt. 77 at 2.) Likewise, the Wright Matter was filed in the Southern District of Florida, on May 

25, 2012—just one day after Birchmeier—against Defendant Berkley. (Wright, Dkt. 1.) After 

Berkley answered, and it became clear that additional parties were involved in Defendants’ 

alleged scheme, Wright amended to name VOMT as a party-Defendant. (Wright, Dkt. Nos. 1, 

32.) 

Thereafter, the parties in both cases engaged in written discovery, including the exchange 

of several sets of written discovery requests and hundreds of pages of documents related to 

 

made. Specifically, Defendant Berkley, who has been named in the Wright and Vigus Matters, is 

a Florida corporation involved in the design, development, marketing, operation and sale of 

vacation timeshare properties, as well as other travel products such as cruise packages.

Defendant VOMT who has been named in the Wright Matter, is the primary marketing vendor 

for Berkley, and is in the business of providing lead generation, through its own efforts, and 

those of its “affiliated companies”, to increase sales for Berkley. Caribbean, which has been 

named in the Vigus and Birchmeier Matters, is one of the “affiliated companies” who has a 

contractual relationship with VOMT to provide various lead generation and marketing services. 

Finally, ESG, as named and identified in the Birchmeier action, is nothing more than a sham 

political organization, utilized by Caribbean to sell “free” cruises to unsuspecting consumers. 

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Defendants’ “political survey” robo-calls, as well as noticed various depositions of Defendants’

key corporate representatives. (See Declaration of Jay Edelson ¶ 6, attached as Exhibit 1; see 

also Declaration of Scott Rauscher ¶¶ 6-14, attached as Exhibit 2.) The Plaintiffs in the

Birchmeier and Wright Matters also actively sought to take the depositions of Defendants’ key 

witnesses, but ultimately decided to a temporary stay of depositions as transfer, relation and 

consolidation of the cases remained pending.

The Plaintiffs in the Birchmeier and Wright Matters began coordinating efforts when Mr. 

Rauscher contacted the attorneys at Edelson to discuss their respective cases. (Edelson Decl. ¶¶

8-9; Rauscher Decl. ¶ 17.) Thereafter, Messrs. Edelson and Rauscher met at Edelson LLC’s 

Chicago office, and Mr. Edelson proposed that the two groups, along with the plaintiffs in the 

Vigus Matter, coordinate their efforts to better serve the Class. (Edelson Decl. ¶ 9; Rauscher 

Decl. ¶ 18.) The attorneys at Edelson LLC’s then reached out to counsel for Vigus, as well as to 

each of Defendants’ counsel, and took the lead in coordinating the transfer of the Wright and 

Vigus Matters to the Northern District of Illinois for eventual relation and consolidation with the 

Birchmeier Matter. (Edelson Decl. ¶ 10.) 

After both Wright and Vigus moved to relate and consolidate their cases (Birchmeier, 

Dkt. 82 & 84), on February 14, 2012, counsel for all Parties appeared before the Court, at which 

time the Court granted Wright’s and Vigus’s respective motions. (Wright, Dkt. 73; Vigus, Dkt. 

50.) The Court then indicated that it would set a status conference for March 13, 2013 (the date 

of a currently scheduled status conference in the Birchmeier matter) after the cases were 

officially related, to give the various Plaintiffs’ groups time to self-order, and the parties time to 

come up with a new proposed case schedule. Proposed Interim Co-Lead Class Counsel have 

done just that and, at this stage, in order to move forward with the litigation as effectively and 

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efficiently as possible, now move for appointment of Jay Edelson of Edelson LLC and Scott

Rauscher of Loevy and Loevy as interim co-lead class counsel. (Edelson Decl. ¶ 12; Rauscher 

Decl. ¶ 19.) 

ARGUMENT

I. PROPOSED INTERIM CO-LEAD CLASS COUNSEL EASILY MEET AND 

EXCEED THE STANDARDS OF RULE 23(g).

Rule 23(g)(3) provides for the appointment of interim counsel before determining 

whether to certify the action as a class action. “In cases...where multiple overlapping and 

duplicative actions have been transferred to a single district for coordination or pretrial 

proceedings, designation of interim class counsel is encouraged, and indeed is probably essential 

for efficient case management.” In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 

57 (E.D.N.Y. 2006) (citing MANUAL FOR COMPLEX LITIGATION (Fourth) § 21.11 (2004) [“MCL 

4th”]) (Appointment of interim class counsel “is necessary to protect the interest of the class 

members” because it “clarifies responsibility for protecting the interests of the class during 

precertification activities, such as making and responding to motions, conducting any necessary 

discovery, moving for class certification, and negotiation settlement.”); see also Rule 23 Practice 

Commentary (“pre-certification discovery, dispositive motions, or settlement negotiations...may 

have a critical bearing on the interests of the putative class members” and may necessitate the 

appointment of interim lead class counsel).

The Court must consider each of Rule 23(g)(1)(A)’s four factors in deciding whether the 

interim class counsel will be able to fairly and adequately represent the interests of the class, 

including: (i) the work Counsel has done identifying and/or investigating potential claims in the 

actions, (ii) Counsel’s experience handling class actions, other complex litigation, and claims of 

the type asserted in the actions, (iii) Counsel’s knowledge of the applicable law, and (iv) the 

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resources Counsel will commit to representing the proposed class. Fed R. Civ. P. 23(g)(1)(A)(i)-

(iv); see also Advisory Cmty. Notes to the 2003 Amendments to Fed. R. Civ. P. 23(g). No single 

factor is determinative; rather, each of them must be considered, along with “any other matter 

pertinent to counsel’s ability to fairly and adequately represent the interests of the class[,]” like 

proposed interim lead counsel’s ability to work cooperatively with opposing counsel and whether 

they command the respect of their colleagues. MCL 4th § 10.224; see also Advisory Cmty. 

Notes to the 2003 Amendments to Fed. R. Civ. P. 23(c)(2)(B).

As explained further below, Proposed Interim Co-Lead Class Counsel easily satisfy each 

of the factors set forth under Rule 23(g)(1)(A).

A. Proposed Interim Co-Lead Class Counsel Have Led an Extensive 

Investigation Into Defendants’ Alleged Violations of the TCPA.

First, Rule 23(g)(1)(A)(i) requires the Court to consider the investigation and 

identification of the claims at issue that Proposed Interim Co-Lead Class Counsel has performed. 

Given that they’ve been at the vanguard of class litigation involving alleged violations of the 

TCPA (as detailed below), it should come as no surprise that Counsel have also led an extensive 

investigation and analysis into the class’s claims against the Defendants here. (Edelson Decl. ¶ 4; 

Rauscher Decl. ¶¶ 3-16.) That investigation began by reviewing numerous complaints made by 

potential class members and analyzing those individuals’ common experiences in light of 

Defendants’ practices. (Id.) Then, with that information in hand, Counsel proceeded with the 

filing of the Birchmeier and Wright Matters, and have since engaged in formal discovery with 

Defendants—including collectively serving and responding to numerous sets of written 

discovery requests, issuing third-party subpoenas, and reviewing internal documents related to 

the robo-calls at issue. (Edelson Decl. ¶¶ 5-6; Rauscher Decl. ¶¶ 3-16.) Proposed Interim CoLead Class Counsel have used that discovery to continually evaluate and assess Plaintiffs’ and 

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the class’s claims as well as any potential defenses Defendants may raise. (Edelson Decl. ¶ 6; 

Rauscher Decl. ¶ 14.) Likewise, Proposed Interim Co-Lead Counsel have now coordinated their 

litigation efforts and exchanged additional information related to the experiences of their 

respective clients and the proposed class members, and they will continue to do so as this 

litigation continues. (Edelson Decl. ¶ 8; Rauscher Decl. ¶¶ 16, 19.)

As a result of all of these efforts, there can be little doubt that Proposed Interim Co-Lead 

Class Counsel have expended substantial effort and resources investigating and bringing the 

class’s claims before the Court. Thus, Rule 23(g)(1)(A)’s first factor is satisfied.

B. Counsel’s Experience Prosecuting Class Actions and Other Complex 

Litigation—as Well as Their Intimate Knowledge of the TCPA—

Supports Their Appointment as Interim Co-Lead Class Counsel.

Rule 23(g)(1)(A)’s second factor requires the Court to examine Proposed Interim CoLead Class Counsel’s experience handling class actions, other complex litigation, and claims 

similar to those asserted here. Counsel readily satisfies this factor as well. 

1. Jay Edelson has notable experience handling TCPA class actions 

and other complex litigation.

Mr. Edelson, founder and managing partner of Edelson LLC, is a well-respected member 

of the plaintiffs’ class action bar. (See Firm Resume of Edelson LLC, attached to the Edelson 

Declaration as Exhibit 1-A.) He has been recognized as a leader in the fields of consumer 

technology, privacy, and telecommunications class actions by state and federal courts throughout 

the country, legislatures, national and international media groups, and his peers. (Edelson Decl. ¶

13; Ex. 1-A.) Indeed, his reputation for leadership in class action litigation has led courts 

nationwide to routinely appoint him lead counsel in numerous high-profile cases. See, e.g., In re: 

JP Morgan Chase Bank Home Equity Line of Credit Litig., No. 10-cv-03647, Dkt. 37 (N.D. Ill. 

July 16, 2010) (appointing Jay Edelson as co-lead counsel); In re Netflix Privacy Litig., No. 11-

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cv-00379-EJD, Dkt. 59 (N.D. Cal. Aug. 12, 2011) (appointing Jay Edelson as co-lead counsel 

and holding that his firm’s “significant and particularly specialized expertise in electronic 

privacy litigation and class actions, renders them superior to represent the putative class.”); In re 

Facebook Privacy Litig., 10-cv-02389-JW, Dkt. No. 69 (N.D. Cal. Dec. 10, 2010) (same).

(Edelson Decl. ¶ 15; Ex. 1-A.)

Particularly relevant here, Mr. Edelson and his firm have been at the forefront of 

litigation related to alleged violations of the TCPA, and they have successfully obtained several 

of the most influential opinions applying the TCPA to new and evolving cellular technology. 

(Edelson Decl. ¶ 14; Ex. 1-A.) For example, Mr. Edelson was appointed co-lead counsel in the 

seminal case of Satterfield v. Simon & Schuster, Inc., which extended coverage of the TCPA to 

cellular text messaging. 569 F.3d 946, 949 (9th Cir. 2009) (reversing the lower court and 

agreeing that text message advertisements sent on behalf of publishing house Simon & Schuster 

constituted “calls” under the TCPA). Likewise, he acted as lead counsel in Lozano v. Twentieth 

Century Fox Film Corp., 702 F. Supp. 2d 999 (N.D. Ill. 2010), where this District upheld the 

constitutionality of the TCPA in the face of a First Amendment challenge, as well as in Kramer 

v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010), where the Northern District of 

California held that the TCPA’s “prior express consent” requirement was not unconstitutionally 

vague. (Edelson Decl. ¶ 16; Ex 1-A.)

Moreover, Mr. Edelson and the other attorneys at his law firm have been appointed lead 

class counsel in some of the largest TCPA class actions and settlements in history, including 

several in this District. See, e.g., Lozano, 702 F. Supp. 2d 999 (appointed lead class counsel and 

obtained $16 million settlement); Weinstein, et al. v. The Timberland Co., No. 06-cv-0454 (N.D. 

Ill. 2008) (predecessor firm appointed co-lead class counsel and obtained $7 million class 

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settlement); In re: Jiffy Lube Int’l, Inc. Text Message Spam Litig., No. 3:11-md-2261 (S.D. Cal. 

2011) (appointed lead class counsel in text spam MDL and obtained $35 million class 

settlement); Kramer, 759 F. Supp. 2d 1165 (appointed lead class counsel and obtained $12 

million class settlement). (Edelson Decl. ¶ 17; Ex 1-A.)

Mr. Edelson also regularly speaks on consumer privacy and technology issues, has cochaired national symposiums on class actions, and served as an adjunct professor of class actions 

at Chicago-Kent College of Law, Illinois Institute of Technology. (Edelson Decl. ¶ 18; Ex. 1-A.)

2. Scott Rauscher and the law firm of Loevy & Loevy also have significant 

experience prosecuting class actions and other complex litigation.

Mr. Rauscher and his law firm of Loevy & Loevy have a similar track record of litigating 

large class actions that have resulted in substantial relief to class members’ throughout the 

country, including Loevy & Loevy’s representation of the plaintiff classes in Young v. County of 

Cook, No. 06 C 552, 2007 WL 1238920 (N.D. Ill. Apr. 25, 2007), which resulted in a $55 

million settlement before this Court, and Flood v. Dominguez, No. 08-cv-153 (N.D. Ind.), which 

resulted in a court-approved $7.2 million settlement. (Rauscher Decl. ¶¶ 20-21; see also Loevy & 

Loevy Firm Resume, a true and accurate copy of which is attached to the Rauscher Declaration 

as Exhibit 2-A.). Attorneys from Loevy & Loevy have also been appointed as class counsel in a 

number of other cases, including Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005) (civil 

rights), and Solon v. Midwest Medical Records, Inc., et al., No. 04 CH 7119, a consumer class 

action currently pending in Cook County Circuit Court (Chancery Division). (Rauscher Decl. ¶

22; Ex. 2-A.)

Mr. Rauscher has substantial experience in a wide-range of complex commercial 

litigation, including TCPA, consumer fraud, and qui tam cases on behalf of plaintiffs since 

joining Loevy & Loevy, and securities fraud class actions, mergers & acquisitions litigation, and 

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general commercial litigation on the defense side with his previous law firm. (Rauscher Decl. ¶

23; Ex. 2-A.) Of particular relevance to this Motion, Mr. Rauscher is one of the attorneys at 

Loevy & Loevy representing plaintiffs and the certified class in Solon v. Midwest Medical 

Records Association, et al., as well as one of the attorneys at the firm representing Plaintiff in 

Thrasher-Lyon v. CCS, No. 11-cv-4473 (N.D. Ill.), a putative TCPA class action in which 

plaintiff was granted partial summary judgment on an issue of first impression regarding the 

statutory definition of “prior express consent.”.

5 (Id.)

Additionally, Mr. Rauscher’s firm, Loevy & Loevy has an extraordinary record of 

achieving successful results for their clients, and it is particularly well-known for its winning of 

complex cases at trial. (Rauscher Decl. ¶ 24; Ex. 2-A.). Indeed, Loevy & Loevy has won dozens 

of jury trials, and has secured verdicts and settlements on behalf of its clients in excess of $250 

million, including a recent $25 million verdict for Thaddeus Jimenez, who spent years in prison 

after he was wrongfully convicted, and a $12 million verdict on behalf of Ray Fox, who was left 

with severe disabilities after prison officials failed to provide him with adequate medical care.

(Id.)

In the end, there should be no doubt that Messrs. Edelson and Rauscher are well equipped 

to handle complex class actions and claims of the sort asserted in the Related Actions. Rule 

23(g)(1)(A)’s second factor has thus been satisfied. 

C. Proposed Interim Co-Lead Class Counsel’s Superior Knowledge of the 

Applicable Law is Indisputable.

 5 The motion for partial summary judgment was granted while Plaintiff’s motion for class 

certification was pending, and that motion has not yet been ruled on. The Seventh Circuit has 

accepted an interlocutory appeal of the summary judgment decision, and the district court case is 

currently stayed pending the outcome of that appeal.

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The third factor courts consider under Rule 23(g)(1)(A) is proposed class counsel’s 

knowledge of the applicable law—here, the TCPA. As explained in Section I.B supra, Proposed 

Interim Co-Lead Class Counsel have an enormous amount of experience prosecuting TCPA 

claims on a class-wide basis, and through their involvement in several seminal TCPA cases, have 

had a significant hand in shaping the development of applicable law. This knowledge and 

experience ensures that Counsel possess a superior understanding of the underlying law at issue 

and therefore, are more than capable of prosecuting the putative class’s claims. Accordingly, the 

third factor under Rule 23(g)(1)(A) also weighs in favor of appointing Proposed Interim Co-Lead 

Class Counsel.

D. Proposed Interim Co-Lead Class Counsel have Already Devoted, and Will 

Continue to Devote, Significant Resources to the Litigation.

Finally and in satisfaction of Rule 23(g)(1)(A)’s fourth factor, Proposed Interim Co-Lead 

Class Counsel have devoted (and will continue to devote) significant resources toward the 

successful prosecution of these cases through all phases. To date (and as described above), 

Counsel’s collective expenditures of time and other resources have included reviewing thousands 

of individual putative class members’ complaints about Defendants’ alleged conduct, evaluating 

the facts giving rise to the claims asserted and possible defenses, successfully obtaining a ruling 

denying Defendants’ motions to dismiss, propounding and responding to several sets of written 

discovery requests, and reviewing hundreds of pages of relevant internal documents produced by 

Defendants. (Edelson Decl. ¶¶ 4-5; Rauscher Decl. ¶¶ 6-15.)

Further, from the outset of these matters, Proposed Interim Co-Lead Class Counsel has 

engaged Defendants’ counsel in an ongoing dialogue regarding the parties’ respective views of 

the relevant facts, law and overall direction of the litigation. (Edelson Decl. ¶ 6; Rauscher Decl. 

¶¶ 4, 13.) This dialogue has thus far resulted in a significant (and candid) exchange of 

Case: 1:12-cv-04069 Document #: 88 Filed: 03/08/13 Page 15 of 20 PageID #:436
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information, and ultimately in obtaining Defendants’ agreement to transfer each of the Related 

Actions to a single district so that they could proceed in the most efficient manner possible. 

(Edelson Decl. ¶ 7; Rauscher Decl. ¶ 18.) Counsel has also actively communicated with counsel 

for all the named-Plaintiffs in the Related Actions and otherwise cooperated amongst themselves 

in litigating, strategizing, and preparing for the potential resolution of the cases. (Edelson Decl. 

¶ 11; Rauscher Decl. ¶ 19.)

For all of these reasons, it’s undeniable that Proposed Interim Co-Lead Class Counsel has 

devoted the resources necessary to successfully prosecute these matters on behalf of the putative 

class. Therefore, the Court should find that Rule 23(g)(1)(A)’s final factor is satisfied as well.

E. Proposed Interim Co-Lead Class Counsel’s Leadership Here Also 

Weighs in Favor of Their Appointment as Interim Co-Lead Counsel.

In addition to the four factors enumerated in Rule 23(g)(1)(A), the Court is also permitted 

to consider any other matters that could be “pertinent to counsel’s ability to fairly and adequately 

represent the interests of the class.” Fed. R. Civ. 23(g)(1)(B). Here, as previously discussed, 

Proposed Interim Co-Lead Class Counsel have spearheaded the litigation efforts against 

Defendants, each filing suit immediately, and well before the other actions related to Defendants’ 

illegal robo-calls. (Edelson Decl. ¶ 5; Rauscher Decl. ¶ 3.) Moreover, Proposed Interim Co-Lead 

Class Counsel’s leadership—in coordinating the transfer and relation (and eventual 

consolidation) of the Related Actions—should not go unnoticed. (Edelson Decl. ¶¶ 8-10;

Rauscher Decl. ¶¶ 16.) Proposed Interim Co-Lead Class Counsel have also successfully 

coordinated numerous telephonic and in person meetings, consistently exchanged information 

obtained from Defendants in their respective cases, and continue to confer weekly about the 

filing of a master consolidated complaint, scheduling issues, engaging in discovery, and moving 

forward with Plaintiffs’ anticipated motion for class certification. (Edelson Decl. ¶ 11; Rauscher 

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Decl. ¶ 16-19.) Ultimately, it is this sort of proactive and cooperative approach that Rule 23(g) is 

meant to encourage, that will best serve the putative class, and that will help shepherd these cases 

to a successful disposition. 

CONCLUSION

For these reasons, Plaintiffs David Wright, Grant Birchmeier, and Steven Parkes, 

respectfully request that the Court enter an Order (i) appointing Jay Edelson of Edelson LLC, 

and Scott Rauscher of Loevy & Loevy, as interim co-lead class counsel in the Related Actions, 

and (ii) providing such other and further relief as the Court deems reasonable and just.

Respectfully submitted,

DAVID WRIGHT, individually and on behalf of 

all others similarly situated,

Dated: March 8, 2013 By: /s/ Jay Edelson

One of Plaintiff’s Attorneys

Jay Edelson

Rafey S. Balabanian

Christopher L. Dore

Eve-Lynn J. Rapp

EDELSON LLC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Telephone: (312) 589-6370

Facsimile: (312) 589-6378

rbalabanian@edelson.com

cdore@edelson.com

erapp@edelson.com

Scott D. Owens 

LAW OFFICES OF SCOTT D. OWENS, ESQ.

664 E. Hallandale Beach Blvd.

Hallandale, Florida 33009

Telephone: 954-306-8104

scott@scottdowens.com

Attorneys for Plaintiff David Wright

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15

GRANT BIRCHMEIER & STEPHEN 

PARKES, individually and on behalf of all others 

similarly situated,

Dated: March 8, 2013 By: /s/ Scott R. Rauscher_________________

One of Plaintiff’s Attorneys

Scott R. Rauscher, Esq. 

Jonathan I. Loevy, Esq. 

Arthur R. Loevy, Esq. 

Michael I. Kanovitz, Esq. 

LOEVY & LOEVY

312 N. May Street, Suite # 100 

Chicago, IL 60607

(312) 243-5900

scott@loevy.com

jon@loevy.com

loevylaw@loevy.com

mike@loevy.com

Attorneys for Plaintiffs Grant Birchmeier & 

Stephen Parkes

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CERTIFICATE OF SERVICE

I, Jay Edelson, an attorney, hereby certify that on March 8, 2013, I served the above and 

foregoing Plaintiffs Wright’s, Birchmeier’s, and Parkes’ Motion and Memorandum of Law in 

Support of Appointment of Interim Co-Lead Class Counsel, by causing a true and accurate 

copy of such paper to be filed and transmitted to all counsel of record in this Action via the 

Court’s CM/ECF electronic filing system, and the following counsel of record in each of the 

Related Actions, on this the 8th day of March 2013, by electronic mail: 

David L. Hartsell Richard Epstein

dhartsell@mcguirewoods.com richard.epstein@gmlaw.com

Brian P. O’Meara Jeffrey Backman

bomeara@mcguirewoods.com jeffrey.backman@gmlaw.com

McGuire Woods LLP Rebecca F. Bratter

77 West Wacker Drive, rbratter@gmlaw.com

Chicago, Illinois 60601 GREENSPOON MARDER, P.A.

Telephone: (312) 849-8100 Suite 1400 Trade Centre South

Facsimile: (312) 849-3690 100 W. Cypress Creek Road, Suite 700

Fort Lauderdale, FL 33309

M. Peebles Harrison Tele: (954) 734-1853

peebles@outerbankslaw.com Fax: (954) 213-0140

Rose Harrison & Gilreath, P.C.

7000 Blue Jay St., Suite 1 Attorneys for Defendants Vacation Ownership 

P.O. Box 405 Marketing Tours, Inc. & Caribbean Cruise Line, 

Kill Devil Hills, NC 27948 Inc.

Telephone: (252) 480-1414

Facsimile: (242) 480-1765

Attorneys for Defendant The Berkley Group, Inc.

John S Steward 

glaw123@aol.com 

Steward Law Firm LLC

1717 Park Avenue 

St Louis, MO 63109 

Telephone: (314) 353-1001 

Facsimile: (314) 862-9895 

Joseph V. Neill 

5201 Hampton Avenue 

St. Louis, MO 63109 

(314) 353-1001 

Max G. Margulis 

maxmargulis@margulislaw.com

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Margulis Law Group

28 Old Belle Monte Dr. 

Chesterfield, MO 63017 

(636) 536-7022 

Facsimile: (636) 536-6652 

Brian J Wanca 

buslit@andersonwanca.com

George Lang 

glang@andersonwanca.com

Ryan M. Kelly 

rkelly@andersonwanca.com

Anderson & Wanca 

3701 Algonquin Road, Suite 760 

Rolling Meadows, IL 60008 

Telephone: (847) 368-1500 

Attorneys for Plaintiff Susan Vigus 

/s/ Jay Edelson

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