IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Philip Charvat on behalf of himself and others )

similarly situated, )

Plaintiff, ) Case No. 1:12-cv-5746

)

v. ) Judge Wood

) Mag. Judge Rowland

Elizabeth Valente, Resort Marketing Group, Inc., )

Carnival Corporation & PLC, Royal Caribbean ) 

Cruises, Ltd., NCL (Bahamas) Ltd. )

Defendants. )

PLAINTIFF’S REPLY TO DEFENDANTS’

OPPOSITION TO MOTION FOR CLASS CERTIFICATION 

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TABLE OF CONTENTS

Page(s)

I. INTRODUCTION .........................................................................................................1

II. ARGUMENT.................................................................................................................3

A. Defendants’ Self-Serving Recitation Of The Merits Of This Case Is Hotly 

Disputed And Will Be Resolved At Trial..........................................................3

B. Mr. Charvat Is An Ideal Class Representative...................................................4

1. The Claim That Mr. Charvat “Invites” Telemarketing Calls Is 

Without Merit.........................................................................................6

a. The Lead Data Relied Upon By The Cruise Defendants Is 

Fraudulent ..................................................................................7

C. The Cruise Defendants’ Challenge To The Expert Methodology Of Jeffrey 

Hansen Is Meritless And Does Not Warrant The Denial Of Class 

Certification .....................................................................................................10

D. Mr. Charvat Has Constitutional Standing To Represent The Class.................14

E. The Class Is Objectively Ascertainable In Satisfaction Of Rule 23 ................15

F. Mr. Charvat’s Claims Are Typical Of The Class Claims In Satisfaction Of 

Rule 23.............................................................................................................17

G. Individual Issues Relating To Consent Can Be Resolved Using Common 

Proof.................................................................................................................17

H. Individual Issues Do Not Predominate And Will Be Litigated Using 

Common Proof.................................................................................................22

I. The Cruise Defendants Are Liable Under A Theory Of Actual Agency ........23

1. The Cruise Defendants Are Liable Under A Theory Of Apparent 

Authority..............................................................................................24

2. The Cruise Defendants Are Liable Under A Theory Of Ratification..25

J. Whether Class Members Have An EBR With The Defendants Will Be 

Litigated Using Common Proof.......................................................................27

K. The Resolution Of This Dispute Via Class Action Is Superior To 

Individual Claims.............................................................................................28

II. CONCLUSION............................................................................................................29

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TABLE OF AUTHORITIES

Page(s)

Cases

Abante Rooter and Plumbing, Inc. v. Birch Communications, Inc.,

2016 U.S. Dist. LEXIS 8526 (N.D GA. Jan. 7, 2016).............................................................14

Abdeljalil v. Gen. Elec. Capital Corp.,

2015 WL 1346850 (S.D. Cal. Mar. 26, 2015) .........................................................................17

Aguilar v. Wawona Frozen Foods,

2016 U.S. Dist. LEXIS 51171 (E.D. Cal 2016).......................................................................29

Amgen Inc. v. Conn. Ret. Plans & Trust Funds,

133 S. Ct. 1184 (2013)...............................................................................................................4

Aranda v. Caribbean Cruise Line, Inc.,

2016 U.S. Dist. LEXIS 111828 (N.D. Ill. Aug. 23, 2016)...................................................2, 15

Aranda v. Caribbean Cruise Line, Inc.,

2016 U.S. Dist. LEXIS 51704 (N.D. Ill. Apr. 18, 2016) ...........................................................2

Baird v, Sabre, Inc.,

995 F. Supp. 2d 1100 (C.D.Cal. 2014) ....................................................................................22

Birchmeier v. Caribbean Cruise Line, Inc.,

302 F.R.D. 240 (N.D. Ill. 2014).................................................................................2, 3, 17, 30

Booth v. Appstack, Inc.,

2016 U.S. Dist. LEXIS 68886 (W.D. Wash. May 25, 2016)...................................................15

In re Caribbean Cruise Line, Inc.,

2014 U.S. App. LEXIS 25084 (7th Cir. Ill. Oct. 10, 2014).......................................................2

CE Design v. King Architechtural Metals, Inc.,

637 F.3d 721 (7th Cir. 2011) .....................................................................................................6

Chamberlain v. Ford Motor Co.,

402 F.3d 952 (9th Cir. 2005) ...................................................................................................29

Chapman v. Wagener Equities, Inc.,

747 F.3d 489 (7th Cir. Ill. 2014)..............................................................................................28

Charvat and Desai v. ADT Security Services, Inc.,

No. 11-1925 (N.D. Ill.) ..............................................................................................................4

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Charvat, et. al. v. Monitronics International Inc., et. al.,

1:13-md-02493-JPB-MJA (Dkt. No. 420) (N.D. W. Va. May 29, 2015)..................................6

Charvat v. AEP Energy, Inc.,

1:14-cv-03121 (N.D. Ill 2015)...................................................................................................4

Charvat v. Crawford,

155 Ohio App. 3d 161 (Ohio Ct. App. 2003) ............................................................................5

Charvat v. Echostar Satellite, LLC,

630 F.3d 459 (6th Cir. 2010) .....................................................................................................5

Charvat v. Elizabeth Valente, et. al.

2015 U.S.Dist. LEXIS 73942 (ND Ill. June 8, 2015)..............................................................23

Charvat v. Farmers Ins. Columbus, Inc.,

178 Ohio App. 3d 118 (Ohio Ct. App. 2008) ............................................................................5

State ex. rel. Charvat v. Frye,

114 Ohio St. 3d 76 (Ohio 2007).................................................................................................5

Charvat v. GVN Mich., Inc.,

561 F.3d 623 (6th Cir. 2009) .....................................................................................................5

Charvat v. National Guardian Life Insurance Company,

No. 3:15-cv-00043 (W.D.Wis. 2016) (Peterson, J) ...................................................................4

Charvat v. NMP, LLC,

656 F.3d 440 (6th Cir. 2011) .....................................................................................................5

Charvat v. Ryan,

116 Ohio St. 3d 394 (Ohio 2007)...............................................................................................5

Charvat v. Elizabeth Valente, et. al.

110 F. Supp. 3d 894 (N.D. Ill. 2015).........................................................................................5

Fitzhenry v. Career Educ. Corp.,

2016 U.S. Dist. LEXIS 26244 (N.D. Ill. Mar. 1, 2016)...........................................................15

Mey v. Got Warranty, Inc.,

No. 15-101 (N.D. W. Va. June 30, 2016)................................................................................15

Mullins v. Direct Digital, LLC,

795 F.3d 654 (7th Cir. 2015) .............................................................................................13, 17

Murray v. GMAC Mortgage Corp.,

434 F.3d 948 (7th Cir. 2006) .....................................................................................................5

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Owens Ins. Co. v. European Auto Works, Inc.,

695 F.3d 814 (8th Cir. 2012) ...................................................................................................15

Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc.,

821 F.3d 992 (8th Cir. 2016) ...................................................................................................17

Satterfield v. Simon & Schuster,

569 F.3d 946 (9th Cir. 2009) ...................................................................................................23

Stoops v. Wells Fargo Bank, NA.,

No. 15-83, 2016 U.S. Dist. LEXIS 82380 (W.D. Pa. June 24, 2016)................................14, 15

Telephone Science Corporation v. Asset Recovery Solutions, LLC,

2016 U.S. Dist. LEXIS 104234 (N.D. Ill. Aug. 8, 2016)...................................................14, 15

Woods v. City of Chicago,

234 F.3d 979 (7th Cir. 2000) ...................................................................................................19

Regulatory Cases

In the Matter of The Joint Petition Filed By Dish Network,

28 FCC Rccd 6574 (Apr. 17, 2013).........................................................................................28

In re Rules & Regs. Implementing the TCPA,

27 FCC Rcd 1830 (2012).........................................................................................................22

In the Matter of Rules and Regulations Implementing the Telephone Consumer 

Protection Act of 1991,

FCC 03-153, -- FCC Rcd. --, 2003 WL 2157853, 2003 FCC LEXIS 3673 

(July 3, 2003) .....................................................................................................................20, 21

Statutes

47 U.S.C. § 227..............................................................................................................................15

47 U.S.C. § 227(a)(4).....................................................................................................................28

Ohio Rev. Code § 2933.52...............................................................................................................1

Rules

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

Fed. R. Civ. P. 23(b)(3)....................................................................................................................4

Fed. R. Evid. 803(6).......................................................................................................................19

Fed. R. Evid. 901(b).......................................................................................................................19

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Regulations

47 C.F.R. § 64.1200(a)(2)(iv)........................................................................................................27

47 C.F.R. § 64.1200(f)(4) ..............................................................................................................29

Other Authorities

Rest. (Third) of Agency .....................................................................................................24, 25, 26

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I. INTRODUCTION

In opposition to Plaintiff’s Motion for Class Certification (Dkt. No. 492), the Cruise 

Defendants1 have submitted a trial brief that asserts myriad merits arguments as to why the 

Cruise Defendants should, in their view, prevail at trial. See (Dkt. No. 520) (“Opp. Brief at __”.)

The Cruise Defendants’ purported merits arguments have nothing to do with class certification. 

The class Mr. Charvat seeks to certify consists of 388,966 putative class members who received 

668,942 illegal pre-recorded telemarketing calls from the defendant Resort Marketing Group 

“RMG”) promoting the products of the Cruise Defendants. The phone numbers of the class 

members appear in three telemarketing campaigns that included calls to Mr. Charvat.2 That each 

of the proposed class members received pre-recorded messages is confirmed by an admission by 

the telemarketer in the case --RMG-- as well as by the fact that Mr. Charvat recorded the illegal 

pre-rerecorded calls at issue and the scripted recorded message promoted the goods or services of 

the Cruise Defendants.3 The illegal telemarketing calls received by Mr. Charvat and class 

members were identical in all important aspects: they used the same pre-recorded message; were 

sent through the same voice broadcasting software, and were all found in the dialer database 

maintained by RMG and produced in discovery. The damages sought by all class members are 

statutory and identical, as such, no individual inquiries as to damages is required. The scope of 

the conduct at issue is large, and the individual damages are too small to incentivize individuals 

to sue. The central issue in this litigation- whether the Cruise Defendants are vicariously liable 

for the actions of RMG- presents common questions of law and fact that favor certification of the 

 1 The defendants are all defending this case cooperatively via a joint defense agreement.

2 The class case consists of consumers whose phone numbers were found in Campaigns 422, 505 

and 610, the same campaigns that included the calls to Mr. Charvat (the “Charvat Campaigns”). 

3 Plaintiff resides in Ohio. Under Ohio law he may record any telephone call in which he is a 

party without the consent or notice to the other parties [See: Ohio Rev. Code § 2933.52]

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class. For all of these reasons, Mr. Charvat has satisfied the requirements of Rule 23 and this 

matter should proceed to trial as a certified class. 

The Court should also note at the outset, the overwhelming similarities between this case 

and another TCPA class action against a cruise line, Birchmeier v. Caribbean Cruise Line, Inc., 

Case No. 12-C-4069, which is proceeding in this District before Judge Kennelly (“Birchmeier”). 

Identical to this case, Birchmeier features a class of consumers seeking redress under the TCPA 

due to their receipt of prerecorded telemarketing calls promoting the goods and services of the 

defendant, Caribbean Cruise Line. Like the Cruise Defendants here, Caribbean Cruise Line also 

claimed that the telemarketing calls were physically made by an independent third party over 

which it did not exercise control. Many of the same defenses raised by the Cruise Defendants 

here were raised as purported barriers to class certification and were carefully considered and 

rejected by Judge Kennelly. See Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 

250-251 (N.D. Ill. 2014) (rejecting various defenses to class certification and citing vicarious 

liability as a common question supporting certification), petition for rehearing denied, In re 

Caribbean Cruise Line, Inc., 2014 U.S. App. LEXIS 25084 (7th Cir. Ill. Oct. 10, 2014) and 

Aranda4 v. Caribbean Cruise Line, Inc., 2016 U.S. Dist. LEXIS 51704 ** 27-40 (N.D. Ill. Apr. 

18, 2016) (court denies defendant’s motion for summary judgment recognizing vicarious liability 

theories are fact intensive and should be resolved at trial); and Aranda v. Caribbean Cruise Line, 

Inc., 2016 U.S. Dist. LEXIS 111828, *19-20 (N.D. Ill. Aug. 23, 2016) (motion to decertify the 

class denied on grounds relating to Spokeo). As Judge Kennelly held when certifying the class in 

Birchmeier:

In this case, plaintiffs have alleged that defendants chose to violate the TCPA on 

a very large scale by targeting a million or more people with inappropriate calls. 

 4 Featuring a new plaintiff, this is the same lawsuit as Birchmeier.

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Individual litigation of the claims of each individual would not be a superior or 

efficient way to resolve the claims.

Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. at 255. Just like Birchmeier, this lawsuit 

features cruise lines hiring a third party telemarketing outfit that engaged in pre-recorded 

telemarketing on massive scale to consumers nation-wide. As recognized by Judge Kennelly in 

Birchmeier, the most efficient manner to resolve such a matter is through the class action 

vehicle.

II. ARGUMENT

A. Defendants’ Self-Serving Recitation Of The Merits Of This Case Is Hotly Disputed 

And Will Be Resolved At Trial

The Cruise Defendants’ brief begins with an allegation that Mr. Charvat has omitted 

“critical facts” from his class certification submission and that his evidence of vicarious liability 

is “threadbare.” Opp. Brief at 1-3.5 Mr. Charvat’s Memorandum of Law in Support of Motion 

for Class Certification (Dkt. No. 492) (“Plaintiff’s Class Memo at __”), of course, focused on the 

only relevant issue before the Court: whether this case should be certified to proceed as a class. 

Although Mr. Charvat looks forward to presenting the merits of this case to a jury at trial, the 

time to debate the merits is not now. The Supreme Court has cautioned that although the class 

certification analysis is to be rigorous per Wal-Mart Stores, Inc. v. Dukes, 

Rule 23 grants courts no license to engage in free-ranging merits inquiries at the 

certification stage. Merits questions may be considered to the extent--but only to 

the extent--that they are relevant to determining whether the Rule 23 prerequisites 

for class certification are satisfied. See id., at ___, n. 6, 131 S. Ct. 2541, 180 L. 

Ed. 2d 374, at 391(a district court has no “authority to conduct a preliminary 

inquiry into the merits of a suit” at class certification unless it is necessary “to 

determine the propriety of certification” (quoting Eisen v. Carlisle & Jacquelin, 

417 U.S. 156, 177, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974))); Advisory 

 5 The parties to this litigation all agreed with Judge Rowland’s recommendation that merits 

discovery as to the plaintiff’s vicarious liability claims would wait until after the Court ruled on 

class certification. See (Dkt. No. 391) (“The parties and the Court agree that merits discovery 

will be required post-class certification...”). 

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Committee's 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U.S.C. 

App., p. 144 (“[A]n evaluation of the probable outcome on the merits is not 

properly part of the certification decision.”)

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-1195 (2013). The Court 

further stressed that “the focus of Rule 23(b)(3) is on the predominance of common questions.” 

Id., 133 S.Ct. at 1195.

The Cruise Defendants, however, have taken a different tack. In their opposition, they

have submitted sixty (60) pages of briefing along with seventy-two (72) exhibits. The Cruise 

Defendants do not even begin to discuss whether Mr. Charvat has satisfied Rule 23 until page 

twenty three (23) of their opposition. Mr. Charvat’s reply to the Cruise Defendants’ opposition

will continue to focus on why this case should be certified as a class and allowed to proceed to 

trial on the merits.6

B. Mr. Charvat Is An Ideal Class Representative7

Throughout their Opp. Brief, but specifically at pages 11-13, and 19-20, the Cruise 

Defendants attack Mr. Charvat claiming he is a “serial litigant” who “invites” telemarketing calls

 6 If the Court, however, believes it is appropriate to assess the merits of Mr. Charvat’s factual 

claims, ample evidentiary support is already before the Court. See Plaintiff’s Joint Motion for 

Reconsideration of Judge Rowland’s Order Granting In Part Plaintiff’s Motion to Compel (Dkt. 

No. 315); Plaintiff’s Motion to Amend to File Third Amended Complaint (Dkt. No. 308); 

Plaintiff’s Reply to Cruise Defendants’ Opposition to Motion to Amend (Dkt. No. 353); Third 

Amended Complaint, and its attachments (Dkt. No. 463). Mr. Charvat explained in these 

submissions, with reference to record evidence, that each of the Cruise Defendants authorized 

RMG to market on their behalf using their trade names and, in fact, reimbursed RMG for 

marketing expenses. These submissions also document the fact that for eighteen months after the 

class litigation was filed, RMG continued to telemarket via prerecorded message for the Cruise 

Defendants and the Cruise Defendants did nothing. Instead, they continued to reap the benefits 

of RMG’s illegal acts. 

7 On three prior occasions, Mr. Charvat was appointed by courts in the Seventh Circuit as class 

representative in TCPA class actions. See Charvat and Desai v. ADT Security Services, Inc., No. 

11-1925 (Dkt. No. 243) (N.D. Ill.) (Bucklo, J.); Charvat v. AEP Energy, Inc., 1:14-cv-03121 

(Dkt. No. 41) (N.D. Ill) (Zagel, J.); Charvat v. National Guardian Life Insurance Company, No. 

3:15-cv-00043 (Dkt. No. 70) (W.D.Wis.) (Peterson, J).

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and is, therefore, an inadequate class representative.

8 Since the outset of this case, Mr. Charvat 

has made no secret of the fact that he is a telemarketing activist and is responsible for many 

important appellate telemarketing decisions recognizing and clarifying the broad protections 

afforded consumers under the TCPA.

9 In 2007, for example, the Ohio Supreme Court recognized

Mr. Charvat’s wide success as a TCPA litigant stating:

Although ... Charvat has filed numerous lawsuits under the TCPA in recent years, 

there is no evidence that any of these cases have been frivolous. In fact, the 

evidence establishes that Charvat has been successful in all but one of nearly 60 

lawsuits filed in the Franklin County Municipal and Common Pleas Courts.

See State ex. rel. Charvat v. Frye, 114 Ohio St. 3d 76, 80 (Ohio 2007). The Cruise Defendants 

fail to explain why Mr. Charvat’s experience with TCPA litigation disqualifies him from serving 

as the class representative. Activists such as Mr. Charvat, who are well educated and experienced 

in litigation, are ideal class plaintiffs. See Murray v. GMAC Mortgage Corp., 434 F.3d 948, 955 

(7th Cir. 2006) (recognizing “repeat litigants” as uniquely competent class representatives).10

 8 The Cruise Defendants attack on Mr. Charvat is nothing new. Long ago, this Court assessed 

and rejected the claim that Mr. Charvat’s prior TCPA experience disqualified him from serving 

as a class representative. See Charvat v. Travel Servs., 110 F. Supp. 3d 894, 898 (N.D. Ill. 2015). 

To discourage Mr. Charvat from pursuing this case, the defendants also have asserted a frivolous 

“wiretap” counterclaim against Mr. Charvat, have falsely accused Mr. Charvat of perpetrating a 

“fraud on the court” by “inviting” telemarketing calls, and have accused his daughter, Allison, of 

being a “liar.” The Cruise Defendants have also now launched an assault, not only on the expert 

opinion of Mr. Charvat’s expert, Jeff Hansen, but on his character as well. 

9 See Charvat v. Echostar Satellite, LLC, 630 F.3d 459, 461 (6th Cir. 2010) (“Philip Charvat has 

not been shy in taking on the role of a private attorney general under the Telephone Consumer 

Protection Act” and collecting cases); Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011); 

Charvat v. GVN Mich., Inc., 561 F.3d 623 (6th Cir. 2009); Charvat v. Farmers Ins. Columbus, 

Inc., 178 Ohio App. 3d 118, (Ohio Ct. App. 2008); Charvat v. Ryan, 116 Ohio St. 3d 394 (Ohio 

2007); Charvat v. Crawford, 155 Ohio App. 3d 161, 2003 Ohio 5891, 799 N.E.2d 661 (Ohio Ct. 

App. 2003).

10 The Cruise Defendants also claim that the income derived by Mr. Charvat from his TCPA 

advocacy over the past twenty years should disqualify him serving as a class representative. 

Again, this Court previously considered and rejected this exact argument. See Charvat v. Travel 

Servs., 110 F. Supp. 3d 894, 898 (N.D. Ill. 2015). Further, it is worth nothing that Mr. Charvat 

has repeatedly refused to place his own financial over the interests of other class members. See 

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“For an assault on the class representative's credibility to succeed, the party mounting the assault 

must demonstrate that there exists admissible evidence so severely undermining plaintiff's 

credibility that a fact finder might reasonably focus on plaintiff's credibility, to the detriment of 

the absent class members' claims.” CE Design v. King Architectural Metals, Inc., 637 F.3d 721, 

728 (7th Cir. 2011). As explained below, the Cruise Defendants have not offered a single shred of 

admissible, authentic or reliable evidence to challenge Mr. Charvat’s adequacy as a class 

representative.

1. The Claim That Mr. Charvat “Invites” Telemarketing Calls Is Without 

Merit

In addition to labeling Mr. Charvat as a “serial litigant,” the Cruise Defendants accuse 

Mr. Charvat of “inviting” telemarketing calls by “planting” his contact information on the 

Internet. Opp. Brief at 11-13. These desperate allegations do not withstand close scrutiny.

11

 

e.g., Charvat, et. al. v. Monitronics International Inc., et. al., 1:13-md-02493-JPB-MJA (Dkt. 

No. 420) (N.D. W. Va. May 29, 2015) (offers of judgment of $50,000 made to Mr. Charvat 

individually rejected as no offer made to other members of the class).

11 At page 12 of its Opp. Brief, and in purported “support” of its allegation that Mr. Charvat 

“invites” telemarketing calls, the Cruise Defendants assert that a Ohio state judge “ordered” Mr. 

Charvat to place his home telephone number on the National Do Not Call Registry. At his 

deposition, Mr. Charvat explained that he initiated a lawsuit against the Columbus Dispatch, a 

newspaper in Columbus, Ohio which continued to telemarket to him despite his repeated 

requests that such calls cease, and despite two prior TCPA suits over earlier calls. In that lawsuit, 

Mr. Charvat alleged that the Dispatch was liable for multiple violations of the TCPA. 

Unfortunately, Mr. Charvat’s counsel was unable to continue the case due to a health emergency. 

Without counsel, Mr. Charvat decided to dismiss the case against the Dispatch. Counsel for the 

Dispatch, however, filed a sanctions motion against Mr. Charvat claiming his damages theory 

was frivolous. Mr. Charvat disagreed with this assertion, but to resolve the sanctions issue, Mr. 

Charvat voluntarily agreed to place his residential number on the Do Not Call Registry in 

exchange for the dismissal of the sanctions threat. Counsel for the Dispatch insisted that the 

terms of the settlement be reduced to an Order. Mr. Charvat agreed and the Order, referred to by 

the Cruise Defendants, was entered. Mr. Charvat, thereafter, placed his residential numbers on 

the Do Not Call Registry. See Exhibit 1, Deposition of Phil Charvat at pg. 186-190, 363-366. 

The insinuation from counsel that a Court found wrongdoing on behalf of Mr. Charvat, given the 

above context, is demonstrably false and, in no way supports the Cruise Defendants’ allegation 

that Mr. Charvat “invites” telemarketing calls or is otherwise inadequate to represent the class.

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a. The Lead Data Relied Upon By The Cruise Defendants Is Fraudulent

In support of their allegation that Mr. Charvat “invites” telemarketing calls, the Cruise 

Defendants have referenced a lead that contained Mr. Charvat’s contact information, that was 

produced by RMG in discovery, and which was purportedly originally obtained from a web site 

called www.123freetravel.com.

12 For the first four years of this litigation, it was never disputed 

that this was the lead relied upon by RMG to call Mr. Charvat via pre-recorded message.

13 In his 

initial memorandum, Mr. Charvat set forth the many reasons why this lead was inadmissible, 

unreliable, fraudulent and in no way evidenced Mr. Charvat’s alleged consent to receive 

telemarketing calls from RMG.

14 In their Opp. Brief, the Cruise Defendants make no effort to 

address the authenticity, reliability or sufficiency of this lead.

Instead, after Mr. Charvat demonstrated that the lead from www.123freetravel.com was 

likely fraudulent, the Cruise Defendants again changed course. They then had their expert, 

Margaret Daley, search through all of the many millions of leads purchased by RMG from 

various data brokers for more data relating to Mr. Charvat. Ms. Daley then found three additional 

leads that contained Mr. Charvat’s contact information all of which were purportedly obtained 

from a web site called www.enews.com. Ms. Daley then argued in her expert report that it was 

possible, despite the testimony of RMG to the contrary, that Mr. Charvat consented to receive 

telemarketing calls from RMG, by providing his contact information to www.enews.com.

15

Apparently in an effort to authenticate the leads from www.enews.com and detailed in 

the Daley Report, the Cruise Defendants then contacted SMA Communications, the entity that 

 12 See Report of Margaret Daley, at Ex 1, pg. 42 to the Opp. Brief (“Daley Report)

13 See Plaintiff’s Class Cert Memo at Ex 1, Tab L, Deposition of Elizabeth Valente at pg. 185) 

(Charvat was called based on lead from www.123freetravel.com).

14 Class Cert. Memo, at pages 9-15.

15 See Daley Report, Ex 1 to Opp. Brief, at pg. 42.

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owned www.enews.com. The Cruise Defendants then spoke with Anthony Pascale,

16 one of the 

owners of SMA Communications, and asked Mr. Pascale to search the SMA database for any 

leads relating to Mr. Charvat. Mr. Pascale did so and discovered a number of leads that 

purportedly matched Mr. Charvat’s contact information and detailed these leads in an affidavit 

that has been submitted to this Court (the “Pascale Declaration”).17 Curiously, however, the 

Pascale Declaration made no reference to the leads from www.enews.com, the leads referred to 

in the Daley Report and offered by the Cruise Defendants as purported evidence that Mr. Charvat 

“invites” telemarketing calls to his home and consented to receive pre-recorded telemarketing 

calls from RMG on behalf of the Cruise Defendants.

18

At his recent deposition,

19 Mr. Pascale admitted that although SMA was still in the 

possession of all leads directly obtained from www.enews.com via consumer’s visits to web-sites 

going back ten years, and that he searched the SMA database for all leads relating to Mr. 

Charvat, Mr. Pascale did not discover any leads relating to Mr. Charvat and obtained from 

www.enews.com.20 When asked to explain how leads from www.enews.com and allegedly 

 16 See Deposition of Anthony Pascale, Opp. Brief at Exhibit 37, pg. 87, lines 1-8. Mr. Pascale 

admitted at his deposition that he is a convicted felon who served twenty months in jail relating 

to a two million dollar insurance fraud. Id. at 28-29. 

17 The authenticity and relevance of these leads was addressed and rebutted at length in Mr. 

Charvat in his Opposition to the Cruise Defendants Motion to Compel Inspection of Computer 

Systems (Dkt. No. 455). In a thorough and well-reasoned decision, Judge Rowland examined 

these leads and rejected the Cruise Defendants’ claim that these leads somehow supported the 

allegation that Mr. Charvat “invites” telemarketing calls to his home. See Order on Cruise Lines 

Defendant’s Motion to Compel (Dkt. No. 470) (rejecting defendants argument noting the leads 

relied upon were purchased from third parties and were not reliable, and further recognizing that 

unauthenticated data, of the sort relied upon by the defendants, and purportedly discovered on 

the Internet is speculative). 

18 Ms. Daley’s chart, that appears at p. 42 of the Daley Report, is attached at Exhibit 2.

19 Mr. Pascale was deposed after the Plaintiff’s Motion for Class Certification was filed. It was 

only at this deposition did Mr. Charvat’s counsel learn that the leads from www.enews.com were 

fraudulent. 

20 Id. at. 89, lines 3-8. 

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relating to Mr. Charvat, could have ended up in RMG’s possession, and prominently featured at

page 42 of the Daley Report, Mr. Pascale testified that, in his opinion, the leads in the RMG 

database relating to Mr. Charvat and www.enews.com, were fraudulent and had been 

manufactured by disreputable lead brokers.21 

Although the Cruise Defendants were the ones who initially contacted Mr. Pascale, asked 

him to search SMA’s database for data relating to Mr. Charvat, and used the results of that 

search to attack Mr. Charvat, Mr. Pascale testified that he was never told by defense counsel that 

their consent defense was based, in large part, on leads relating to Mr. Charvat that purportedly 

originated at www.enews.com. Mr. Pascale further testified that if he had been made so aware, 

he would have disclosed in his declaration that leads relating to Mr. Charvat’s alleged visits to 

www.enews.com did not exist.22

Accordingly, Mr. Charvat has now affirmatively demonstrated that (1) 

www.123freetravel.com is a scam; (2) the lead from this web-site has not been authenticated, (3) 

the lead is likely fraudulent, and (4) the lead does not constitute Mr. Charvat’s prior express 

consent to receive pre-recorded telemarketing calls from RMG on behalf of the Cruise 

Defendants. See Plaintiff’s Class Cert. Memo at 9-15. Similarly, it is now undisputed that the 

leads from www.enews.com23 are also fraudulent and in no way demonstrate that Mr. Charvat 

somehow “invited” the calls at issue as alleged, or that Mr. Charvat consented to receive the 

telemarketing calls at issue. Mr. Charvat is a dedicated telemarketing activist and an experienced 

TCPA litigant. He will be an ideal class representative. That he has endured such a ceaseless 

 21 Id. at. 93-94 (“Somebody that was between where the lead was purchased had to have played 

games or entered false information on that record”). 

22 Id. at. 90-93. The Declaration of Mr. Pascale was attached to the Opp. Brief at Exhibit 37.

23 Despite the fact that the Cruise Defendants now know that these leads are fraudulent, no effort 

has been made to withdraw or revise the Daley Report in regards to its representations as to the 

leads from www.enews.com. 

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attack on his character (and that of his family), in his efforts to represent the class, and to hold 

the Cruise Defendants accountable for their misconduct, is irrefutable proof that he is an 

adequate class representative.

C. The Cruise Defendants’ Challenge To The Expert Methodology Of Jeffrey Hansen 

Is Meritless And Does Not Warrant The Denial Of Class Certification

The Cruise Defendants claim that the class should not be certified because the opinion of 

Mr. Charvat’s telemarketing expert, Jeff Hansen, is unreliable, and fails to account for the 

“possibility” that class members received pre-recorded messages that promoted something other 

than the Cruise Defendants. Opp. Brief at 15. Mr. Hansen’s ultimate opinion, however, that each 

consumer included in the Charvat Campaigns received a pre-recorded telemarketing call from 

RMG promoting the Cruise Defendants, is well supported by the evidence. 

In discovery, Mr. Charvat asked RMG to identify what individual telemarketing 

campaigns contained in the Dialer Database promoted the goods or services of the Cruise 

Defendants. Initially, RMG resisted this request and refused to answer. After Judge Rowland 

ordered RMG to identify “all pre-recorded telemarketing calls initiated by RMG relating to 

Cruise Defendants,” RMG admitted that:

the only telephone calls contained within the Asteria database for which RMG 

can state with any degree of certainty would have referenced the Cruise Line 

Defendants in a pre-recorded message played during the telephone calls are those 

calls contained within Campaigns 422, 505, 610 and 1410.24

RMG explained that it was able to confirm that the Charvat Campaigns promoted the Cruise 

Defendants via pre-recorded message because Mr. Charvat recorded the calls.25 As a result, 

 24 It is not disputed that Campaigns 422, 505 and 610 are the “Charvat Campaigns.” Mr. Charvat 

only recently discovered his recording for Campaign 1410 and reserves the right to add this 

campaign to the class post certification,

25 See Exhibit 3, RMG’s Supplemental Response to Plaintiff’s First Set of Interrogatories at pg. 

2-3 (RMG admits that the Charvat Campaigns all promoted the goods or services of the Cruise 

Defendants via pre-recorded message).

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RMG has admitted that the putative class members were sent pre-recorded messages that 

promoted the goods and services of the Cruise Defendants.26 Accordingly, the Cruise Defendants 

claim that it was possible that RMG might have stopped the Charvat Campaigns and switched 

the recording from promoting the Cruise Defendants to something else is without merit and, 

under no circumstances can support a basis to prevent this matter from proceeding to trial as a 

certified class.

In their attack on Mr. Hansen’s opinion, the Cruise Defendants focus on a section of the 

Hansen Report in which he examined the particular numbers assigned to the recordings used in 

the RMG telemarketing campaigns that included calls to Mr. Charvat. Mr. Hansen noted that 

these campaigns indicated that recordings labeled s28 or s61 were used in the Charvat 

 26 The fiction that RMG, more often than not, stopped its telemarketing campaigns mid-stream 

and changed the substance of the promotion, is belied by the facts. RMG’s former President, 

Richard Borst testified at his deposition that the only goods or services ever promoted by RMG 

via pre-recorded message were the goods or services of the Cruise Defendants. See Opp. Brief at 

Ex. 3, Deposition of Richard Borst at pg. 108 (only aware of pre-records being used to promote 

cruise packages); RMG’s Vice President of Marketing, Jason Rader, identified at his deposition a 

“chronology“ of pre-recorded messages” used by RMG during the time frame from May of 2010 

to April of 2013. The chronology evidences the fact that, during this period of time, RMG only 

promoted the goods or services of the Cruise Defendants. See Class Cert. Memo at Ex 1, Tab M, 

Deposition of Jason Rader, at pg. 31. A copy of the chronology is attached at Exhibit 4. Further, 

RMG’s IT Manager, Jamie Smith, the individual charged with physically initiating RMG’s 

telemarketing campaigns testified that although it was possible to interrupt a campaign and to 

switch out a recording, such was not a frequent occurrence. See Class Cert. Memo at Ex 1, Tab 

B, Deposition of Jamie Smith at pg. 97. Mr. Smith also testified he was not aware of any 

evidence to indicate that the recordings used in the Charvat Campaigns were ever switched midcampaign. Id. at 106-107. Finally, in support of her claim that RMG “regularly” stopped the 

campaigns mid-stream and switched recordings, Ms. Daley, at pg. 17, fn 41, of the Daley Report, 

cites to the Declaration of Ms. Valente. Ms. Valente, attested, however, that RMG changed the 

recordings and switched the promotion, however, only “several times a month.” See Opp. Brief 

at Ex. 7, Declaration of Elizabeth Valente at pg. 3, ¶18. Ms. Daley, however, noted in her report 

that between October of 2010 and March of 2014, RMG initiated 2,477 telemarketing 

campaigns, which, on average comes to fifty-eight telemarketing campaigns a month. See Opp. 

Brief at Ex. 1, Daley Report at pg. 21. Obviously, even assuming RMG stopped individual 

telemarketing campaigns “several” times a month and switched the pre-recorded message from a 

promotion for the Cruise Defendants to something else, such was the exception and not the rule.

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Campaigns. He then located these numbered recordings in the audio directory of the Dialer 

Database, and noted that the substance of the recordings promoted the goods or services of the 

Cruise Defendants. Because all of the consumers in the Charvat Campaigns received a prerecorded message labeled either s28 of s61, such supported Mr. Hansen’s conclusion that all the 

consumers in the Charvat Campaigns received the same pre-recorded message as Mr. Charvat.

See Report of Jeffrey Hansen, Ex. 1 to Class Cert. Memo. at pg 9-12.

The Cruise Defendants, however, contend that Mr. Hansen erred when he assumed that 

the Dialer Database accurately historically identified which numbered recording was played 

during a particular campaign. In her report, Ms. Daley explains that the historical database in the 

RMG Dialer Database was “purged” by RMG on May 5, 2012.27 Apparently due to this “purge” 

RMG rendered it impossible to forensically determine, from the evidence in the Dialer Database 

alone, the exact pre-recorded message assigned to a particular campaign. The Cruise Defendants 

then reason that because it is impossible to “forensically” prove which recording was used in 

which campaign, Mr. Charvat cannot prove that all class members received pre-recorded 

messages promoting the Cruise Defendants and, accordingly, class certification should be 

denied. This claim fails for two reasons. 

First, although it may arguably not be possible to “forensically” prove which recording 

was used with the Charvat Campaigns, due to RMG’s “purge” of its records, the Cruise 

Defendants ignore the fact that Mr. Hansen’s opinion, that all class members received prerecorded telemarketing calls identical to Mr. Charvat, did not solely rely upon the number 

assigned to the recording by the RMG Dialer Database. Mr. Hansen primarily relied on the fact 

that Mr. Charvat recorded the calls and that these recordings undeniably evidence the promotion 

 27 See Opp. Brief at Ex 1, at pg. 15.

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by RMG via pre-recorded message, of the goods or services of the Cruise Defendants. The 

methodology relied upon by Mr. Hansen is set forth in detail in Plaintiff’s Class Cert Memo at

17-19. Nowhere in that explanation does Mr. Charvat contend that Mr. Hansen identified the 

class by relying on the number (s28 or s61) assigned to a particular recording found in the Dialer 

Database. Rather, Mr. Hansen identified the class because they were included in Charvat 

Campaigns, and the substance of the recording used in the Charvat Campaigns was evidenced by 

the recordings made by Mr. Charvat. 

Second, the Cruise Defendants should not benefit from the fact that their telemarketing 

agent, RMG, conveniently “purged” its records making it difficult or impossible to “forensically” 

determine which pre-recorded message was utilized in individual telemarketing campaigns. See 

Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) (recognizing that a defendant facing 

class certification should not benefit from their failure to maintain records to identify the class). 

It would be particularly inequitable for the defendants to benefit from RMG’s “purge” in this 

regard where the FCC Citation explicitly placed RMG on notice that its telemarketing was in 

violation of the TCPA in March of 2011. It also would be inequitable for Carnival, in particular, 

from benefit from RMG’s “purge” of its data when Carnival new, for years prior to the purge 

that RMG was telemarketing via pre-recorded message, using Carnival’s famous trade name, in 

violation of the TCPA. 

In sum, Mr. Hansen has opined that all of the consumers in the Charvat Campaigns 

received pre-recorded messages from RMG promoting the Cruise Defendants. His opinion is 

supported by ample evidence. RMG has admitted that the Charvat Campaigns promoted the 

Cruise Defendants, the evidence overwhelmingly supports the conclusion that the Charvat 

Campaigns promoted the Cruise Defendants, and the defendants’ creative claim that RMG 

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“might” have stopped the Charvat Campaigns mid-stream and switched out the recording is mere 

speculation utterly inappropriate for resolution at the class certification stage.

D. Mr. Charvat Has Constitutional Standing To Represent The Class

At page 20 of its Opp. Brief, the Cruise Defendants argue that class certification should 

be denied because Mr. Charvat purportedly did not suffer an “injury in fact” due to his receipt of 

illegal pre-recorded telemarketing calls and, as such, does not have constitutional standing to 

represent the class as a result of the Supreme Court’s recent decision in Spokeo v. Robins. The 

Cruise Lines’ attempt to apply the decision in Spokeo to the TCPA is a tactic that other courts 

have referred to as a “Hail Mary pass.” See Abante Rooter and Plumbing, Inc. v. Birch 

Communications, Inc., 2016 U.S. Dist. LEXIS 8526 *8 (N.D GA. Jan. 7, 2016). 

Spokeo, however, concerned a violation of the Fair Credit Reporting Act and not the 

TCPA. The Cruise Lines offer no support whatsoever for their contention that an allegation of 

receipt of illegal telemarketing calls in violation of the TCPA does not constitute an “injury in 

fact” for Article III standing purposes by someone who has not purchased their telephone for the 

sole purpose of receiving call.28 That is because there is no support for this position. See

Fitzhenry v. Career Educ. Corp., 2016 U.S. Dist. LEXIS 26244 * 12 (N.D. Ill. Mar. 1, 2016) 

(noting that defendants standing argument against an experienced TCPA litigant is premised on 

 28 The two cases cited by the Cruise Defendants, Stoops v. Wells Fargo Bank, NA., No. 15-83,

2016 U.S. Dist. LEXIS 82380 (W.D. Pa. June 24, 2016), and Telephone Science Corporation v. 

Asset Recovery Solutions, LLC, 2016 U.S. Dist. LEXIS 104234 (N.D. Ill. Aug. 8, 2016), are 

easily distinguishable. In Stoops, the plaintiff filed an individual TCPA lawsuit seeking to 

recover for calls made to thirty five (35) cell phones she obtained solely for the purpose of 

attracting telemarketing calls that she described as a TCPA “business.” The phones at issue in 

Stoops were not the plaintiff’s residential or cell phone used for personal business. Similarly, in 

Telephone Science, the plaintiff was a corporation created solely to attract telemarketing calls. In 

dismissing this case, Judge St. Eve found that a corporation created solely to attract 

telemarketing calls was not the type of plaintiff that fell within the “zone of interests” that 

Congress sought to protect in enacting the TCPA. Id. at 46-48. Here, there is no dispute that the 

calls made to Mr. Charvat were made to his residential telephone, a number that he and his 

family have used for personal matters for over twenty-five years.

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the presumption that TCPA violations present no concrete injuries to those who receive 

unwanted telemarketing communications, a position for which defendant “provides no authority 

for this assertion”). Here, Mr. Charvat has alleged that he, and putative class members, received 

illegal telemarketing calls from RMG that invaded their right to privacy, the exact harm that 

Congress sought to prevent in enacting the TCPA. See 47 U.S.C. § 227 (Congressional 

Findings); see also Owens Ins. Co. v. European Auto Works, Inc., 695 F.3d 814, 819-20 (8th Cir. 

2012) (“[T]he ordinary meaning of the term ‘right of privacy’ easily includes violations of the 

type of privacy interest protected by the TCPA.”). Just recently, Judge Kennelly denied a 

defendants request that he de-certify a TCPA class on the basis that the plaintiff did not sustain 

sufficient injury in act. See Aranda v. Caribbean Cruise Line, Inc., 2016 U.S. Dist. LEXIS 

111828, *19-20 (N.D. Ill. Aug. 23, 2016) (plaintiff had a right to be free from unsolicited 

telemarketing calls, just as a homeowner has a right to be free from trespass). See also Booth v. 

Appstack, Inc., 2016 U.S. Dist. LEXIS 68886 *15-17 (W.D. Wash. May 25, 2016) (rejecting 

claim that a TCPA plaintiff has not sustained a sufficient injury in fact to have standing to 

enforce the TCPA); Mey v. Got Warranty, Inc., No. 15-101, DE#128 at 5-17 (N.D. W. Va. June 

30, 2016) (denying motion to dismiss TCPA class action after finding that unwanted phone calls 

cause concrete harm” sufficient to confer Article III standing). 

As the telemarketing calls at issue were undisputedly made to Mr. Charvat’s residential 

telephone line in violation of his right to privacy, Mr. Charvat has constitutional standing to 

represent the putative class.

E. The Class Is Objectively Ascertainable In Satisfaction Of Rule 23

The Cruise Defendants claim at page 24 of their Opp. Brief that the class cannot be 

certified because the class is not ascertainable. In support, the Cruise Defendants’ contend that 

Mr. Charvat seeks to certify a class of phone numbers. They then reason that since an unknown 

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number of phone numbers of class members have since been disconnected or re-assigned over 

the past four years, the class should not be certified. Essentially, the Cruise Defendants reason 

that since they successfully delayed the certification of this case for four years, they should now 

be rewarded because the phone numbers of some class members may have been disconnected or 

re-assigned. This argument fails for two reasons. 

First, as the Cruise Defendants are well aware, the leads produced by RMG in discovery 

did not just identify the phone numbers of the class members, but the leads also identified their 

name and address.29 Accordingly, the claim that Mr. Charvat’s identification of the class is based 

solely on phone numbers is demonstrably false. To the extent this data needs to be updated to 

reflect the current address of class members, such is a simple administrative process regularly 

conducted by claims administrators post certification. 

Second, even if all Mr. Charvat had to identify the class was phone numbers, the class 

would still satisfy any applicable ascertainability challenge.30 “A class is ascertainable if it 

identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient 

to allow a member of that group to identify himself or herself as having the right to recover 

based on the description.” Abdeljalil v. Gen. Elec. Capital Corp., 2015 WL 1346850, at *2 (S.D. 

 29 At Exhibit 5 to his Motion for Class Certification, Mr. Charvat attached a sample of the lead 

data relied upon by RMG to call consumers. As evidenced by this example, RMG is in the 

possession of the names and addresses of consumers it called via pre-recorded message, in 

addition to their phone numbers. 

30 To the extent that notice by United States mail to the addresses in the lead lists were not 

practicable, the Seventh Circuit has directed that courts use “alternative means such as notice 

through third parties, paid advertising, and/or posting in places frequented by class members.” 

Moreover, the law of our Circuit is that “[g]iven the significant harm caused by immunizing 

corporate misconduct [such as reckless poor recordkeeping] a district judge has discretion to 

allow class members to identify themselves with their own testimony and to establish 

mechanisms to test those affidavits as needed.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 

665 (7th Cir. 2015); see also Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 

997 (8th Cir. 2016) (reversing denial of certification in TCPA case, holding that a list of 

telephone numbers to which faxes were sent is sufficiently ascertainable under Rule 23). 

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Cal. Mar. 26, 2015) (certifying a TCPA class of phone numbers); Birchmeier 302 F.R.D. at 250 

(N.D. Ill. 2014) (rejecting a claim that phone numbers were insufficient basis to identify class).31

F. Mr. Charvat’s Claims Are Typical Of The Class Claims In Satisfaction Of Rule 23

The Cruise Defendants contend that certification should be denied in this case because 

Mr. Charvat, who received illegal pre-recorded telemarketing calls on his residential phone, does 

not purportedly have “standing” to represent consumers who received the same pre-recorded 

calls on their cell phones. See Opp. Brief at 25. This argument warrants little discussion as this 

exact claim was previously made by the Cruise Defendants and rejected by this Court in its 

recent Order granting Mr. Charvat’s Motion to File a Third Amended Complaint. See 

Memorandum and Order at 6-7 (Dkt. No. 454) (March 17, 2016) (Wood, J.) (rejecting claim that 

Mr. Charvat did not have standing to represent consumers who received pre-recorded 

telemarketing calls on their cell phones).

G. Individual Issues Relating To Consent Can Be Resolved Using Common Proof

At page 43 of its Opp. Brief, the Cruise Defendants contend that issues relating to 

whether consumers granted RMG their prior express consent to receive pre-recorded messages 

from RMG on behalf of the Cruise Defendants creates individual issues rendering this matter 

inappropriate for resolution via class action. In support, the Cruise Defendants contend that 

consumers granted their prior express consent to RMG in a variety of ways, including, (a) in 

 31 In an effort to manufacture facts to challenge class certification, the Cruise Defendants 

conducted a “survey.” Without telling the Court or counsel to Mr. Charvat, the Cruise 

Defendants hired a third party, called 90,000 class members, and asked them questions as to the 

merits of this case. Notably, the Cruise Defendants did not explain to the class members what the 

calls were about, that they related to pending litigation, and that the consumer’s rights were at 

issue. The Cruise Defendants then noted how many numbers were disconnected or had been 

reassigned. Opp. Brief at 26; Def. Ex. 49. Putting aside the appropriateness of this tactic, Mullins

and its progeny eviscerate these arguments by clarifying that names and addresses need not be 

known to certify, and that poor recordkeeping should not permit systematic violations to occur 

with impunity.

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response to a consumer’s e-mail solicitation, (b) in response to a consumer’s inquiry to a RMG 

web site, (c) in response to a contest run by RMG, (d) via a trade show interaction, (e) via a 

telephone inquiry, and (f) via a referral from a club member. The Cruise Defendants then cite to 

cases that have denied class certification where the plaintiff was unable to prove a lack of 

consent using common proof. 

The factual premise upon which this argument is based, however, that RMG obtained 

consent from consumers in a variety of ways, is demonstrably false. The class in this case is 

limited to the Charvat Campaigns, which are the three telemarketing campaigns that included

pre-recorded calls to Mr. Charvat and other putative class members. In her expert report, Ms. 

Daley examined the consent defense relating to the members of the class and admitted that over 

99% of class members were contacted by RMG because their data was purchased from lead 

brokers.32 Although RMG may have obtained phone numbers used for telemarketing campaigns 

not relevant to this case from a wide variety of sources, as to the proposed class who appear in 

the Charvat Campaigns, the only basis for “prior express consent” offered by RMG and the 

Cruise Defendants are the leads purchased by RMG from third party data brokers.

Further, as to the lead data actually used by RMG to call class members, Mr. Charvat

does intend to prove, via common proof, that these leads cannot, as a matter of law, carry the 

Cruise Defendants’ burden of proving “prior express consent.” First, the Cruise Defendants have 

failed to make any effort to authenticate any of the lead data upon which they rely.

33 RMG,

admittedly purchased the lead data from a network of data brokers, unknown in number, and 

 32 See Opp. Brief at Ex. 1, Daley Report at pg. 40 (identifying percent of proposed class with 

who match to “lead lists sources” at 99.31%).

33 At pg. 44 of its Opp. Brief the Cruise Defendants claim that some class members consented to 

receive pre-recorded calls from RMG via travel websites like Expedia, Orbitz, Priceline and 

Travelocity. The Cruise Defendants never made any effort, however, to authenticate these leads.

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relied upon those brokers to sell it authentic data. RMG cannot attest to the authenticity or 

reliability of the data. Only the original source of this data can attest to its authenticity.34 The 

time, however, for the Cruise Defendants to authenticate this data has now closed.35 As the leads 

offered by the Cruise Defendants as purported proof class members’ “prior express consent” to 

receive pre-recorded telemarketing calls from RMG are inadmissible, the Cruise Defendants 

defense fails based on common proof. Second, not only have the Cruise Defendants failed to 

establish that the lead data relied upon by RMG was authentic, reliable and admissible, but Mr. 

Charvat has affirmatively demonstrated that these leads are fraudulent and that RMG knew the 

leads it was relying upon to call consumers ere fraudulent.

36 

Finally, in order to telemarket to class members by pre-recorded message, RMG must 

have first obtained consumers’ “prior express consent.” “Prior express consent” exists where a 

consumer has (a) clearly stated that the telemarketer may call, and (b) clearly expressed an 

understanding that the telemarketer’s subsequent call will be made for the purpose of 

 34 See Fed. R. Evid. 901(b) (a party may authenticate a matter through the testimony of a witness 

who has knowledge that the matter is what its proponents claim it to be). To be authentic as a 

business record under Fed. R. Evid. 803(6), a document must have sufficient trustworthiness to 

be considered reliable. See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). To 

demonstrate such trustworthiness and reliability, a party must offer testimony of a person who 

can speak from personal knowledge about the record and be qualified to introduce the record as 

evidence at trial. Id.

35 Third party discovery relating to defendants affirmative defenses closed on September 1, 2015. 

(Dkt. No. 368).

36 The Cruise Defendants claim that to assess their consent defenses, the Court will have to 

examine “thousands” of web sites. Opp Brief at pg 42, fn 45. The Cruise Defendants own expert 

witness, however, has admitted that the contact data for 61,548 class members were obtained 

from www.123freetravel.com. See Opp. Brief at Ex. 1, Daley Report at pg. 43. The data for 

another 21,980 class members was obtained from a web site called www.simplyforfree.com. See 

Daley Report at Exhibit U, Website Analysis. Accordingly, even if the leads relied upon by the 

Cruise Defendants were authentic, admissible and not fraudulent, the Court could assess the 

validity of the defendants’ “prior express consent” defenses as to 83,528 class members with 

reference to two web sites. 

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encouraging the purchase of goods or services. In the Matter of Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, 27 F.C.C.R. 1830 ¶ 7 (FCC 

2012). A telemarketer who claims it had consent to send a pre-recorded message to a particular 

consumer bears the burden of proof, and must maintain records that prove such a claim. The 

FCC has cautioned that a telemarketer claiming consent “must be prepared to provide clear and 

convincing evidence of the existence of such a relationship.” In the Matter of Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC 03-153 at 

¶112, -- FCC Rcd. --, 2003 WL 2157853, 2003 FCC LEXIS 3673 (July 3, 2003) (emphasis 

added). The FCC has also noted:

In the event a complaint is filed, the burden of proof [as to whether prior express 

consent was obtained] rests on the sender to demonstrate that permission was 

given. We strongly suggest that senders take steps to promptly document that 

they received such permission. 

Id. at ¶46. Most recently, in February of 2012, the Federal Communications Commission 

reiterated that, specifically in the context of pre-record message telemarketing:

Finally, should any question about the consent arise, the seller will bear the burden 

of demonstrating that a clear and conspicuous disclosure was provided and that 

unambiguous consent was obtained. 

See In the Matter of Rules and Regulations Implementing the Telephone Consumer 

Protection Act of 1991, 27 FCC Rcd 1830 at ¶112; 2012 FCC LEXIS 794 (Feb. 12, 2012).

The Cruise Defendants claim the above recitation of the law as to prior express consent is 

“too narrow.” Opp. Brief at pg. 40. In support, the Cruise Defendants cite to a selective provision 

of a 1992 FCC Order in which the FCC recognized:

Persons who knowingly release their phone numbers have in effect given their 

invitation or permission to be called at the number which they have given, absent 

instructions to the contrary. Hence, telemarketers will not violate our rules by 

calling a number which was provided as one at which the called party wises to be 

reached.

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Opp. Brief at 40, citing In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 

F.C.C.R. 8752, ¶ 31 (Oct. 16, 1992) (the “1992 FCC Order”). .

Accordingly, the Cruise Defendants apparently reason that once a consumer gives 

anyone their phone number, that number can be bought and sold and passed between an 

unknown number of intermediaries, and used by any telemarketer to call that consumer for any 

reason whatsoever. Under the Cruise Defendants’ view of the law, even a phone number 

obtained on a scam web-site like www.123freetravel.com, can be sold to data brokers and 

telemarketers without limit. When a consumer complains, the telemarketer can point to the 

original lead obtained from a web-site with no affiliation whatsoever with the telemarketer, or 

with the goods being sold, as purported proof of that consumer’s “prior express consent” to 

receive pre-recorded telemarketing calls. Of course, this is not the law. Omitted from the Cruise 

Defendants’ recitation of the FCC’s position in this regard is the comment found in the 

paragraph immediately preceding the quoted excerpt, in which the FCC clarifies that:

“any telephone subscriber who releases his or her telephone number has, in effect, 

given prior express consent to be called by the entity to which the number was 

released.”37

1992 FCC Order, ¶ 30.

Here, of course, there is no allegation that consumers provided their prior express consent 

to RMG, the entity that made the calls at issue. In fact, RMG has admitted that the leads it 

 37 In fact, even Baird v. Sabre, a case relied upon by the Cruise Defendants in support of their 

interpretation of “prior express consent” has explicitly recognized that “myriad federal courts 

have relied on the 1992 FCC Order to conclude that plaintiffs who provided a business with their 

telephone number and then received a text message from the business had no claim under the 

act.” See Baird v, Sabre, Inc., 995 F. Supp. 2d 1100, 1102-03 (C.D.Cal. 2014)(collecting cases). 

See In re Rules & Regs. Implementing the TCPA (“FCC 2012 Order”), 27 FCC Rcd 1830 ¶ 7

(2012) (“prior express consent” requires that the consumer “clearly stated that the telemarketer 

may call”) (emphasis added). 

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purchased from third data brokers did not evidence consumers’ requests to be called by RMG or 

by any of the Cruise Defendants.38

The Cruise Defendants’ contention that establishing prior express consent will create 

individual inquires and mini trials fails both factually and as a matter of law. Mr. Charvat will 

offer common proof at trial that will demonstrate that 1) the lead data upon which all of the 

defendants rely is inadmissible; 2) the lead data upon which all of the defendants rely is 

fraudulent, and 3) even if these leads were admissible and authentic, they cannot serve as a basis 

for “prior express consent” because none of the leads at issue were provided directly to RMG, 

none of the leads relied upon even by the defendants even make reference to RMG or to any of 

the Cruise Defendants, and none of the leads relied upon evidence a consumer’s “clearly and 

unmistakably stated” consent to receive telemarketing calls from RMG. See Satterfield v. Simon 

& Schuster, 569 F.3d 946, 966 (9th Cir. 2009). Mr. Charvat’s challenges to the Cruise 

Defendants’ consent claims each will be based on common proof that will succeed or fail in an 

identical fashion for all class members.

H. Individual Issues Do Not Predominate And Will Be Litigated Using Common Proof

At pages 46-54 of their Opposition Brief, the Cruise Defendants lay out their trial 

arguments as to why they are not vicariously liable for the actions of RMG under agency theories 

of ratification or apparent agency. Of course, whether the Cruise Defendants are vicariously 

liable for the actions of RMG is a merits issue appropriate for resolution at summary judgment 

 38 At his deposition, Mr. Rader, RMG’s Vice President for Marketing, testified that the leads 

RMG used to call class members were for consumers who expressed an interest in discount 

travel and did not specifically request to be called by any of the Cruise Defendants. See Class 

Cert. Memo at Ex 1, Tab M at pg. 56-57. Ms. Valente also testified that she could point to no 

specific web-site from which lead data purportedly originated from which consumers consented 

to receive pre-recorded telemarketing calls from RMG. See Class Cert. Memo at Ex 1, Tab L, 

Deposition of Elizabeth Valente at pg. 150. 

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and trial.39 Even at this stage of the litigation, however, and without the benefits of full merits 

discovery as to vicarious liability, Mr. Charvat has ample evidence of the Cruise Defendants’ 

liability, under a variety of different theories, all susceptible to class-wide proof.

I. The Cruise Defendants Are Liable Under A Theory Of Actual Agency 40

That a defendant may not accept the benefits of illegal telemarketing and avoid its 

consequences was made clear by the FCC in May of 2013, when it issued its long awaited order 

regarding the vicarious liability of Dish Network for alleged telemarketing practices of various Dish 

authorized dealers. See In re DISH Network, LLC, 28 FCC Rcd 6574 (F.C.C. 2013) (“FCC Ruling 

at __”). The FCC declared that entities may be held vicariously liable under broad federal common 

law principles of agency for violations of the TCPA committed by third-party telemarketers. The 

FCC specifically held:

[W]e see no reason that a seller should not be liable under [sections 227(b) and 

227(c) of the TCPA] for calls made by a third party telemarketer when it has 

authorized that telemarketer to market its goods or services. In that circumstance, the 

seller has the ability, through its authorization, to oversee the conduct of its 

telemarketers, even if that power to supervise is unexercised.

FCC Ruling at ¶ 47. The FCC went on to conclude that where a third party is authorized to market 

on behalf of a seller, and where the seller has the ability to oversee the conduct of its telemarketer, 

the seller may be vicariously liable if the telemarketer acts in violation of the TCPA. Id. Finally, 

the FCC has also made clear that where a principal authorizes a third party to market on its 

behalf, it cannot turn a “blind eye” to the conduct of its agent. See FCC Ruling at ¶ 47 (a seller 

 39 It is particularly inappropriate to expound at length as to the merits of Mr. Charvat’s vicarious 

liability claims where the parties agreed to defer full merits discovery until after class 

certification. See (DE# 391). 40 In a Memorandum and Order dated June 8, 2015, Judge Rowland thoughtfully and accurately 

summarized the law relating to Mr. Charvat’s various theories of vicarious liability as to the 

Cruise Defendants. See Charvat v. Elizabeth Valente, et al., 2015 U.S.Dist. LEXIS 73942 (ND 

Ill. June 8, 2015) (Rowland, J.) "

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who authorizes another to market on its behalf, has the ability, through its authorization, to oversee 

the conduct of its telemarketers, even if that power to supervise is unexercised). 

These exact circumstances are present in this case and as alleged in the Third Amended 

Complaint (DE# 463). As detailed therein, all of the Cruise Defendants authorized RMG to 

telemarket on their behalf and, in fact, reimbursed RMG for marketing expenses. Indeed, it is not 

disputed that RMG continued to telemarket on behalf of the Cruise Defendants for eighteen months 

after this class action lawsuit was filed. At no time did any of the Cruise Defendants, take any 

action against RMG. 

1. The Cruise Defendants Are Liable Under A Theory Of Apparent Authority

Apparent agency is present when a seller cloaks its telemarketer with the appearance of 

being its agent, even if “behind the scenes” no agency relationship exists. Rest. (Third) of 

Agency § 7.03(2)(b). 

A principal is subject to vicarious liability for a tort committed by an agent in 

dealing or communication with a third party on or purportedly on behalf of the 

principal when actions taken by the agent with apparent authority constitute the 

tort or enable the agent to conceal its commission. 

Restatement (Third) of Agency § 7.08. Apparent authority is the power held by an agent or other 

actor to affect a principal’s legal relations with third parties when a third party reasonably 

believes the actor has authority to act on behalf of the principal and that belief is traceable to the 

principal’s manifestations. Restatement (Third) of Agency § 2.03. 

Accordingly, where a third party is authorized to telemarket on behalf of the principal; 

where the third party freely uses the logo and trade name of the principal; where the third party 

has access to the principal’s computer databases and confidential pricing information; where the 

principal has authority to review telemarketing scripts; where the principal has the authority to 

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supervise the telemarketing at issue and fails to do so, are all factors that a court may consider in 

assessing an apparent agency theory of TCPA liability. 

Applied to the facts uncovered to date, and as alleged through the Third Amended 

Complaint, all of these elements are present and support a finding of apparent agency. All of the 

Cruise Defendants allowed RMG to market on their behalf using their trade names. The Cruise 

Defendants even reimbursed RMG, for its marketing costs, helped train RMG’s personnel and 

were all familiar with RMG’s telemarketing operation. Carnival, in particular, provided RMG 

with access to a password protected web site so RMG could book consumers directly into 

Carnival’s booking engine. Carnival also reviewed and approved the telemarketing scripts used 

by RMG and had the authority, power and control to review all marketing content used by RMG. 

All of these facts are based on common proof and will support a finding of apparent agency by a 

jury in regard to the relationship between RMG and each of the Cruise Defendants.

2. The Cruise Defendants Are Liable Under A Theory Of Ratification

Finally, in the context of the TCPA, the FCC has also recognized that a “seller may be 

liable for the acts of another under traditional agency principles if it ratifies those acts by 

knowingly accepting their benefits.” FCC Ruling ¶ 34 & n. 104 (citing Rest. (Third) of Agency § 

4.01, cmt. d). Applying this principle specifically in the telemarketing context, the FCC 

explained that “ratification may occur through conduct justifiable only on the assumption that the 

person consents to be bound by the act’s legal consequences.” Id. For this reason, a seller may be 

bound by the unauthorized conduct of a telemarketer if the seller “is aware of ongoing conduct

encompassing numerous acts by [the telemarketer]” and the seller “fail[s] to terminate,” or, in 

some circumstances, “promot[es] or celebrat[es] the telemarketer.” (Id.) 

Ratification does not require an agency relationship or actual authority. “Ratification is 

the affirmance of a prior act done by another, whereby the act is given effect as if done by an 

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agent acting with actual authority.” Id. § 4.01(1). No agency relationship is necessary for a 

principal to be liable under a ratification theory. Id. cmt. B. One cannot avoid ratification liability 

by claiming ignorance. Willful ignorance in the face of ample notice of the need to investigate 

repeated allegations of illegal telemarketing, coupled with accepting the benefits of that illegal 

conduct, is more than enough to create a material issue of fact on vicarious liability. As the 

Restatement explains, “Ratification is the consequence of a choice freely made by the principal. 

The principal may choose to ratify the action of an agent or other actor without knowing 

material facts. A factfinder may conclude that a principal has made such a choice when the 

principal is shown to have had knowledge of facts that would have led a reasonable person to 

investigate further, but the principal ratified without further investigation.” Rest. (Third) of 

Agency § 4.06, cmt. d (emphasis added). 

That is exactly the circumstance here. For years prior to the filing of the class complaint, 

Carnival, for example, knew that RMG was engaged in illegal telemarketing via pre-recorded

message and turned a “blind eye.” Further, all of the Cruise Defendants knew, at least as of the 

time of the filing of the Class Complaint, that RMG was engaged in illegal telemarketing via prerecorded message. In response, the Cruise Defendants did nothing. Instead, and although they 

had the power to supervise and discipline RMG, they continued to pay RMG for new referrals 

thereby accepting the benefits of RMG continued illegal telemarketing. After the Class 

Complaint was initially filed in July of 2012, the defendants all entered into a joint defense 

agreement pursuant to which the defendants coordinated their defense to this case, coordinated 

their joint attack on the class plaintiff, all during which the illegal conduct was allowed to 

continue unabated for an additional eighteen months. This conduct all supports a theory of 

liability premised on ratification and based on common proof.

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J. Whether Class Members Have An EBR With The Defendants Will Be Litigated 

Using Common Proof

The Cruise Defendants argue at page 55 of their Opposition Brief that the TCPA’s 

prohibition against prerecorded calls does not apply to calls made to any person with whom the 

caller had an established business relationship (“EBR”) at the time the call was made. See 47 

C.F.R. § 64.1200(a)(2)(iv). Mr. Charvat does not dispute that an EBR affirmative defense may 

apply in this case as to RMG. That is why he requested in discovery, and Judge Rowland 

ordered, the Cruise Defendants and RMG to identify those class members with whom they 

claimed an EBR. In response, the defendants disclosed that only two hundred and twenty six 

(226) class members had an EBR with RMG at the time of the telemarketing calls at issue.41

Given the size of the class, assessing the applicability of RMG’s EBR defense as to 226 class 

members is a relatively simple, matter the resolution of which will not predominate over class 

common issues. If this case is certified, Mr. Charvat’s counsel will examine RMG’s claim of 

EBR and if it appears to have merit, these consumers can be removed from the class. See 

Chapman v. Wagener Equities, Inc., 747 F.3d 489, 492 (7th Cir. Ill. 2014) (Posner, J.) (whether

an individual consumer has a valid claim is the issue to be determined after the class is certified). 

As to the Cruise Defendants, Ms. Daley also identified 9,507 class members who 

purportedly had an EBR with one of the Cruise Defendants at the time they were called by RMG. 

Mr. Charvat, however, does not agree that the Cruise Defendants are entitled to claim an EBR 

defense in this case. The EBR exemption is limited and applies only to the “caller” who 

“initiates” a telemarketing call. See 47 U.S.C. § 227(a)(4) (defining “telephone solicitation” and 

recognizing the limitation of the EBR exemption to the caller who initiates the call). In this case, 

RMG and not the Cruise Defendants initiated the calls at issue. Accordingly, the EBR 

 41 See Daley Report, Ex 1 to Opp. Brief, at pg. 34.

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exemption applies only to RMG and not to the Cruise Defendants. Any doubt in this regard was 

clarified by FCC which has recognized that:

“a person or entity ‘initiates’ a telephone call when it takes the steps necessary to 

physically place a telephone call, and generally does not include persons or 

entities, such as third-party retailers, that might merely have some role, however 

minor, in the causal chain that results in the making of a telephone call.

See In the Matter of The Joint Petition Filed By Dish Network, 28 FCC Rcd 6574 * 29-30 (Apr.

17, 2013) (emphasis added). As the Cruise Defendants did not “initiate” the calls at issue, they 

cannot claim an EBR exemption. Finally, the Court need not resolve this discrete legal question 

at this stage of the litigation. Whether the Cruise Defendants are entitled to assert an EBR 

defense is a common question that actually supports class certification and resolution at a later 

date.42

K. The Resolution Of This Dispute Via Class Action Is Superior To Individual Claims43

At page 56 of its Opp. Brief, the Cruise Defendants express their preference that the 

instant dispute be resolved by consumers in small claims court one claim at a time. Of course, 

the Cruise Defendants would prefer that this dispute be resolved in such a fashion. That way, the

 42 At a minimum, the Cruise Defendants claim that over 9,000 class members should be excluded 

because of an EBR is exaggerated. In her report, Ms. Daley noted that that close to 5,000 class 

members explicitly asked the Cruise Defendants to STOP CALLING. See Opp. Brief at Ex. 1, 

Daley Report at pg. 45 (table documenting class members Do Not Call requests to the Cruise 

Defendants). A Do Not Call request terminates an EBR exemption to the TCPA. 47 C.F.R. § 

64.1200(f)(4) (2006) (§64.1200(f)(5) in the current regs). Incredibly, Carnival, still asserts EBR 

claims as to 1,870 class members despite the fact, due to poor record keeping, it cannot tell if the 

DNC requests made prior to or after the pre-recorded calls at issue. See Opp. Brief at Ex. 1, 

Daley Report at pg. 45, footnote 121.

43 At page 58 of their Opp. Brief, the Cruise Defendants claim that class certification should be 

denied because Mr. Charvat has failed to propose a trial plan. The Federal Rules, however, do 

not require the submission of a trial plan as a condition of class certification. See Aguilar v.

Wawona Frozen Foods, 2016 U.S. Dist. LEXIS 51171, *3 (E.D. Cal 2016); Chamberlain v. Ford

Motor Co., 402 F.3d 952, 961, n.4 (9th Cir. 2005)(“We decline Ford'ssuggestion that the district

court'sfailure to adopt a trial plan... was an abuse of discretion.”). The Court could anticipate that 

Mr. Charvat could promptly submit a detailed trial plan within sixty days of the Court’s ruling on 

class certification.

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Cruise Defendants will never be held to account for their massive collective violations of 

telemarketing law. The Cruise Defendants also claim that resolving this case via class action is 

not superior due to the large potential damages at stake. The Cruise Defendants, however, are a 

poor candidate for sympathy considering the factual background and circumstances around this 

litigation. The size of the damages in this case was solely due to the fact that the Cruise 

Defendants authorized RMG to telemarket on their behalf, failed to supervise RMG, took no 

action when they knew that RMG was violating the law and, in fact, allowed RMG to continue to 

telemarket on their behalf for eighteen months after this class action was filed. Having ignored 

RMG’s illegal conduct for years, while simultaneously accepting and benefitting from such 

illegal conduct, the Cruise Defendants are hardly in a position to now claim that it is not fair to 

hold them to account for their actions. See Birchmeier 302 F.R.D. at 256 (N.D. Ill. 2014) (court 

rejects defendant’s plea of ruinous potential damages is not a basis upon which the Court would 

deny class certification).

III. CONCLUSION

As Mr. Charvat has satisfied all of the requirements of Rule 23 of the Federal Rules of 

Civil Procedure, the Court should certify this case as a class and allow it to proceed to trial. After 

four long years of litigation, it is time to hold the defendants to account for their massive 

collective violation of the law and of the privacy rights of class members.

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Respectfully submitted,

Dated: September 28, 2016 PHILIP CHARVAT, on behalf of 

himself and others similarly situated,

By: /s/ Alexander H. Burke

Alexander H. Burke

Daniel J. Marovitch

BURKE LAW OFFICES, LLC

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

Telephone: (312) 729-5288

Facsimile: (312) 729-5289

aburke@burkelawllc.com

dmarovitch@burkelawllc.com

Edward A. Broderick

BRODERICK LAW, P.C.

99 High St., Suite 304

Boston, MA 02110

Telephone: (617) 738-7080

Facsimile: (617) 830-0327

ted@broderick-law.com

Matthew P. McCue

LAW OFFICE OF MATTHEW P. MCCUE

1 South Ave., 3rd Floor

Natick, MA 07160

Telephone: (508) 655-1415

Facsimile: (508) 319-3077

mmccue@massattorneys.net

Counsel for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on September 28, 2016, I electronically filed the foregoing with the 

Clerk of the Court, using the CM/ECF system, which will send a notice of electronic filing to all 

counsel of record.

 /s/ Alexander H. Burke

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