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,

v.

Elizabeth Valente, et al.,

Defendants.

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Case No. 1:12-cv-05746

Hon. Judge Andrea R. Wood

Hon. Mag. Judge Mary M. Rowland

PLAINTIFF’S RESPONSE IN OPPOSITION TO THE CRUISE LINES’

MOTION TO STRIKE AND EXCLUDE PLAINTIFF’S EXPERT

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TABLE OF CONTENTS

Page

I. BACKGROUND .................................................................................................................2

II. LEGAL STANDARD..........................................................................................................8

III. ARGUMENT ....................................................................................................................10

A. Mr. Hansen’s substantial, relevant experience qualifies him as an expert. ...........10

B. Mr. Hansen’s findings result from the proper application of reliable principles 

and methods to sufficient facts and data................................................................13

1. Robodial Call List Analysis.......................................................................13

2. Analysis of RMG’s “Opt-in” Leads and Consent......................................21

3. Cell Phone/Landline Analysis....................................................................23

C. Mr. Hansen did not misrepresent his qualifications...............................................23

1. Daley’s “supplemental” report fails to comply with Rule 26(b)(2)...........24

2. Defendants’ attacks on Mr. Hansen’s experience are baseless..................25

3. Defendants’ ad hominin attacks on Hansen and others are irrelevant to 

Hansen’s qualifications as an expert..........................................................29

IV. CONCLUSION..................................................................................................................32

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TABLE OF AUTHORITIES

Page(s)

Cases

Bell v. PNC Bank, Nat. Ass’n, 

800 F.3d 360 (7th Cir. 2015) .................................................................................................... 31

Daubert v. Merrill Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993).................................................................................................................. 10

Elcok v. Kmart Corp., 

233 F.3d 734 (3rd Cir. 2000) .................................................................................................... 30

Hartman v. EBSCO Indus., Inc., 

758 F.3d 810 (7th Cir. 2014) ...................................................................................................... 9

Holmes v. Godinez, 

311 F.R.D. 177 (N.D. Ill. 2015)................................................................................................ 10

Jones v. Lincoln Elec. Co., 

188 F.3d 709 (7th Cir. 1999) .................................................................................................... 28

Meganathan v. Signal Int’l L.L.C., 

No. 13-497, 2015 WL 11109846 (E.D. Tex. June 26, 2015).................................................... 30

Mims v. Arrow Fin. Servs., LLC, 

132 S. Ct. 740 (2012).................................................................................................................. 3

Mullins v. Direct Digital, LLC,

795 F.3d 654 (7th Cir. Ill. 2015)............................................................................................... 14

Nimely v. City of New York, 

414 F.3d 381 (2d Cir. 2005)...................................................................................................... 29

Rink v. Cheminova, 

400 F.3d 1286 (11th Cir. 2005) ................................................................................................ 30

Sherman v. Yahoo! Inc., 

No. 13-41 (S.D. Cal. Feb. 20, 2015) (DE 113)......................................................................... 28

Smith v. Ford Motor Co., 

215 F.3d 713 (7th Cir. 2000) .......................................................................................... 9, 10, 29

United States v. Offill, 

666 F.3d 168 (4th Cir. 2011) ...................................................................................................... 9

United States v. Williams, 

No. 06-00079, 2009 WL 424583 (D. Haw. Feb. 20, 2009)...................................................... 30

White v. State Farm Fire & Cas. Co., 

No. 07-1871, 2010 WL 760612 (W.D. La. Mar. 2, 2010)........................................................ 31

Xanadu Mar. Trust v. Meyer, 

21 F. Supp. 2d 1104 (N.D. Cal. 1998)...................................................................................... 25

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Statutes

47 U.S.C. § 227(b)(1)(A).......................................................................................................... 3, 21

47 U.S.C. § 227(b)(1)(B).......................................................................................................... 3, 21

Cal. Bus. & Prof. Code § 606 ....................................................................................................... 25

Pub. L. No. 102-243, at § 2 (1991)................................................................................................. 3

Rules

Fed. R. Civ. P. 11.......................................................................................................................... 25

Fed. R. Evid. 702 ................................................................................................................ 9, 10, 30

Fed. R. Evid. 703 ...................................................................................................................... 9, 10

Regulations

47 C.F.R. § 64.1200(a)(2) (2008)................................................................................................... 3

47 C.F.R. § 64.1200(a)(1)(iii) (2008) ............................................................................................. 3

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This case challenges the propriety of more than 600,000 telemarketing calls made by

Resort Marketing Group (“RMG”) and promoting the goods and services of Carnival, 

Norwegian, and Royal Caribbean cruise lines (“Cruise Defendants”) via prerecorded message, a 

form of telemarketing strictly regulated by the Telephone Consumer Protection Act (“TCPA”), 

47 U.S.C. § 227. 

Plaintiff has proffered Jeffrey Hansen as an expert witness to testify as to the number and 

quality of calls that were part of RMG’s prerecorded Cruise Defendant telemarketing campaigns 

that included calls to Mr. Charvat (“Charvat Campaigns”), including whether the calls were 

made to cell or landline telephones, and the validity of the online “evidence” Defendants 

proffered in support of their contention that they had consent to make the calls at issue. 

These subjects are of the type that expert testimony will assist the trier of fact. 

Submission of testimony regarding what hundreds of thousands of rows of call data means, how 

the online lead generation process works, and cross-checking data against lists of cell phone 

number are each precisely the type of testimony that answers questions about this case; 

testimony that lay witnesses cannot provide. 

Moreover, Mr. Hansen is well-qualified to provide the proffered testimony. He has over 

16 years of first-hand experience maintaining and operating a variety of automatic telephone 

dialing systems in telemarketing and other contexts, and he has extensive experience conducting 

data analysis, including specifically as to autodialers and the SQL databases in which the 

robocall data at issue in this case was produced. Mr. Hansen’s specialized expertise and 

experience make him uniquely qualified to testify in this case. 

The Cruise Lines’ Daubert motion is riddled with tabloid-quality innuendo, must of 

which is “supported” by a supplemental declaration from the Cruise Defendants’ expert, who is 

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now being proffered as an “expert” as to Mr. Hansen’s life experiences. Indeed, throughout this 

litigation, the Cruise Lines have resorted to unfounded ad hominem attacks to distract the Court 

from the weakness of their position.

1

This motion brings more of the same. Rather than focusing on the substance of Plaintiff’s 

expert’s methodology, they try to smear Mr. Hansen’s character and integrity. These assertions 

have no basis in reality, nor are they relevant to whether this Court should exclude Mr. Hansen’s

opinion. The “facts” submitted about Mr. Hansen rely on conjecture made by Defendants’ 

opinion witness about what might have happened. This goes far beyond appropriate advocacy, 

and demonstrates a pernicious failure by defense counsel to appropriately vet the basis for their 

offensive contentions about Plaintiff, members of his family, his expert, his expert’s friends and 

business associates, and seemingly anyone else supporting views contrary to their position.

The Cruise Defendants’ Daubert motion should be denied. 

I. BACKGROUND

Plaintiff Philip Charvat seeks redress on behalf of himself and a class of consumers

whom RMG illegally called in an attempt to sell the goods or services of Carnival Corporation & 

PLC (“Carnival”), Royal Caribbean Cruises, Ltd. (“Royal Caribbean”), and NCL (Bahamas), 

Ltd. (“Norwegian”) (collectively, “Cruise Defendants”), in violation of the Telephone Consumer 

Protection Act, 47 U.S.C. § 227.

 1 Cruise Defendants have called Plaintiff’s daughter a liar, derogatively referred to Mr. Charvat as 

a serial litigant, and in the absence of any credible evidence, deemed self-serving statements an ex-con 

made after looking up Mr. Charvat on the internet a sufficiently reliable basis for arguing that Plaintiff 

somehow “tricks” companies into violating the TCPA—though even that individual later testified that the 

lead data Defendants say represents Plaintiff’s consent to be called was fabricated. DE 512-1, Pascale 

Dep. at 94. And despite this suit’s basis in unwanted phone calls, Defendants surreptitiously conducted a 

telephone “survey” of 90,000 class members from whom they hid its purpose and adversarial nature, and 

now seek to use such consumers’ spur-of-the-moment recollections of a telemarketing call from years ago 

as substantive “evidence” to defeat certification.

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Congress enacted the TCPA in 1991, in response to voluminous consumer complaints 

about unwanted, computerized calls to private homes and other abuses of telephone technology. 

Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012). Congress recognized that, while 

many states had enacted their own laws against invasive telemarketing practices, federal 

legislation was needed because telemarketers, by operating interstate, were escaping these statelaw prohibitions. Mims, 132 S. Ct. at 745. In line with Congress’ specific finding that “[b]anning 

such automated or prerecorded telephone calls ... is the only effective means of protecting 

telephone consumers from this nuisance and privacy invasion,” Pub. L. No. 102-243, at § 2(12) 

(1991), the TCPA and its implementing regulations broadly prohibit prerecorded telemarketing 

calls made without the called party’s “prior express consent,” and empower consumers to stop 

these unwanted calls through an injunction and statutory damages. 47 U.S.C. §§ 227(b)(1)(A),

(1)(B), (3); 47 C.F.R. §§ 64.1200(a)(1)(iii), (a)(2) (2008). 

In this case, Defendant RMG began using prerecorded telemarketing messages to solicit 

the purchase of Cruise Defendants’ cruises in 2010.2 RMG’s prerecorded messages informed the 

called party that he or she had won a cruise, and instructed the consumer to press a number on 

their phone for further information, at which point an RMG representative would attempt to get 

them to make a booking for which Cruise Defendants would pay RMG a commission.

3 RMG 

used an Asteria “Omega” dialer to make these prerecorded telemarketing calls for the Cruise 

Defendants.4 Described as “more than an auto dialer” by the RMG employee who managed it, 

 2 DE 521-2 at 433 (Hansen Rep. Ex. L, Valente Dep. at 112:1-5). 3 DE 428-3 (Borst Decl. ¶¶ 6-7, 10, 22). This included payment of “port fees” or “taxes” RMG 

charged the consumer but ended up keeping for itself if the consumer failed to follow through on their 

reservation. DE 521-2 at 420, 434 (Valente Dep. at 59:9-65:5, 117:6-10).

4 DE 521-2 at 413 (Valente Dep. at 33:7-9), and 33-34 (Smith Dep. at 12:13-15, 14:10-15).

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Defendant’s Asteria dialer also had the capacity to dial predictively at different rates to keep a 

certain number of representatives on the phone.5

RMG’s prerecorded telemarketing calls were not made as a result of the called party

providing his or her phone number to RMG or Cruise Defendants, or even with the consumer 

giving permission to anyone for RMG or Cruise Defendants to call his or her phone.6 Rather, 

they were made using phone numbers and other consumer data (“leads”) that RMG purchased

from third-party data brokers including Caldwell Lists who, in turn, purchased the data from 

another broker, TDC Marketing who, in turn, purchased the data from additional third-party, 

Steven Katz, who himself purchased the data from additional unknown levels of third parties.7

Although they did not authenticate the lead data or pursue discovery down the chain beyond

TDC Marketing, Defendants contend that this data was initially created when the consumer 

provided his or her information to one of thousands of unrelated, third-party websites8

—each of 

varying degrees of legitimacy—which then sold the consumer’s data to a data broker or other 

third party and, ultimately, to RMG. TDC Marketing’s Rule 30(b)(6) deponent testified that there 

 5 DE 521-2 at 34 (Smith Dep. at 14:21-15:11). 6 Indeed, RMG’s owner and Rule 30(b)(6) deponent, Elizabeth Valente, testified that the leads her 

company purchased were only generically for “consumers who wanted to be called for discount travel.” 

DE 521-2 at 450 (Valente Dep. at 178); see also DE 521-2 at 517 (Rader Dep. at 56-57 (confirming that 

“opt in” leads used by RMG were consumers who wanted to receive calls about “travel” generally and not 

specifically telemarketing calls promoting the goods or services of the Cruise Defendants)). 7 DE 521-2 at 673 and 680 (Lachnicht Dep. at 36, 61-62 (Caldwell List does not generate the lead 

information itself. It buys it from a third party and then re-sells the data) (Caldwell List does not know if 

the data sold to RMG was legitimate)); DE 521-2 at 797-98 and 802 (Mongiovi Dep. at 182 (“I did not 

create or compile the data sold to RMG, I purchased it from Katz); 183 (when asked if the data sold to 

RMG was authentic Mongiovi responded “110% I cannot say”); 177, 197-198 (any of the middlemen in 

the chain from the original source could have manipulated the data)). 8 DE 521-2 at 845-914 (RMG e-mail listing purported website lead sources).

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could be 100 intermediaries between a data compiler and the original source of the data,

9 any of 

which could have altered the data (to the extent it wasn’t fabricated at the outset).

10

Indeed, in 2010, a consultant warned RMG that many of the websites associated with 

Caldwell Lists’ leads likely obtained consumer contact information using “tracking cookies and 

adware which can capture and collect a user’s web surfing blueprint,” as well as “data mining 

techniques,” rather than from the consumer directly.11 Nonetheless, RMG continued to make 

calls using leads procured through Caldwell Lists, including for years after receiving a citation 

from the FCC regarding unwanted telemarketing calls and itself confronting Caldwell Lists about 

its belief that the leads were fraudulent.12 As Judge Rowland has noted, evidence in this case 

indicates that “data compilers freely sell leads to each other without regard to their provenance or 

accuracy.”13 This is true; in fact, the principal of SMA Communications, LLC—which owns the 

ENewsOffers.com website through which three leads in RMG’s database associated with 

Plaintiff Charvat purportedly derived14—admitted that he could find no evidence of such leads in 

his business’ records, and that RMG’s data for Plaintiff had to have been fabricated.

15

Plaintiff retained his expert, Jeffrey Hansen, to analyze RMG’s data for the calls at issue, 

in addition to the reliability of RMG’s lead data and the applicability of any established business 

 9 DE 521-2 at 798 and 802 (Mongiovi Dep. at 182–83, 197–98). 10 Indeed, that same individual and the owner of Caldwell Lists themselves discussed altering the 

lead data. DE 470 at 2 n. 4 (“If [the data is from the same website,] is there anyway [sic] to make them 

look different? I’m such a sleaze bag, I know! :)”) (emphasis added).

11 DE 521-2 at 918-20 (Hansen Rep. Ex. Q). 12 DE 463-5, 3d Am. Compl., Ex. 5 (FCC citation); see also DE 455-11 (containing string of emails organized chronologically between RMG and Caldwell List from March through July 2011, 

discussing the suspected fraudulent nature of the RMG leads). 13 DE 470 at 2 (citing examples).

14 DE 521-6 at 47 (Daley Orig. Rep. at 42).

15 DE 512-1, Pascale Dep. at 87-1-94:21 (“Somebody that was between where the lead was 

purchased had to have played games or entered false information on that record ... before the sale of the 

record.”).

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relationship between Defendants and the persons called to this case.16 To that end, he was 

provided with RMG’s Dialer Database, consisting of records of approximately 432,832,770 calls

across two backups made in 2012 and 2014, respectively.

17 Mr. Hansen processed the data, 

including by comparing it to a Cell Block Identifier list in order to identify wireless numbers, 

and then further comparing the data to ported numbers lists through Neustar—which maintains a 

national database of telephone number assignments through the FCC—to ensure that the data 

accurately captured instances in which a landline had been ported to a cell phone, or vice versa, 

and thus whether the number was assigned to a cell phone or landline when called. 

Plaintiff Charvat made recordings of three of the calls he received from RMG, dated June 

11, 2011, September 8, 2011, and July 9, 2012. By running a search through the data to identify 

the calls to Plaintiff Charvat, Mr. Hansen identified three campaigns (out of thousands) that were 

associated with these three calls: “0610 TS2 Mix B223” and “0901 TS2 Eastern B223” (each 

associated with a “Sound” labelled “28”), and “0620 TS2 Eastern B223” (associated with 

“Sound” labelled “61”). Mr. Hansen reviewed the correlating Sound 28 and 61 audio files in an 

“IVR Directory” produced by RMG relating to its calls, which revealed that both audio files

consisted of a prerecorded message promoting cruises on behalf of Cruise Defendants—just like 

Plaintiff Charvat’s own recordings of the calls he received.18 By running a Boolean search for 

 16 Exhibit 1, Hansen Rep. at 6-8.

17 Exhibit 1, Hansen Rep. at 7; Exhibit 2, Hansen Dep. at 165:18-24.

18 Audio recordings are attached as Exhibit 7. The s28.wav file produced by RMG—and associated 

with its 2012 database backup—plays the following message:

Hello and congratulations. You filled out a contest entry form for a Carnival, Norwegian 

Cruise Line, or Royal Caribbean cruise, and you were selected. Press 1 now to be 

transferred to a Travel Services cruise agent, or press 2 to be added to our Do Not Call 

List. Press 1 now.

Similarly, the s61.wav file—which is associated with its 2014 database backup—plays the following:

Congratulations. You filled out a contest entry form for a Carnival, NCL, or Royal 

Caribbean cruise, and you were selected today. Press 1 now to claim your cruise and 

speak to a booking agent, or press 2 to decline this offer and be added to our Do Not Call 

List. Press 1 now.

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records with the same Campaign Name, Campaign ID, and Sound as these three calls to Plaintiff, 

Mr. Hansen was able to identify and join the call log and sound data for all calls from the same 

campaigns in which Plaintiff was called. He then removed any call records that did not result in 

an audio file being played—i.e., where the call disposition indicated anything other than 

“HUMAN,” “TRANSFERRED,” or “MACHINE,”—to create a Class List comprising 668,942 

total calls to 388,966 individual class members, each of whom received an analogous 

prerecorded call from RMG telemarketing Cruise Defendant cruises. Because of his earlier 

analysis, Mr. Hansen was able to further break the Class List down to consumers associated with 

103,055 cell phone numbers and 286,184 landlines.20 This narrow class represents just a fraction 

of the millions of prerecorded Cruise Defendant telemarketing calls RMG made through 

thousands of other campaigns, both before and after this suit was filed.21

Mr. Hansen was also able to confirm that, to the extent Defendants identify consumers 

with whom they had a valid established business relationship—pursuant to the TCPA’s 

exemption for such calls to landlines made prior to October 16, 2013—the rows of data 

associated with such persons can simply be removed from the Class List.22 Any consumers for 

whom Defendants are able to establish had actually consented for them or RMG to call their 

phone can, similarly, be easily removed from the Class List.23

Mr. Hansen also reviewed the lead data RMG used to make its calls to Plaintiff and the 

other class members, consisting of many thousands of data files containing over 70 million 

 20 Exhibit 1, Hansen Rep. at 14. A small number of class members (273) received telemarketing 

calls on their landlines that were then ported over to a cell line, and then received another telemarketing 

call from RMG, resulting in the difference in the number of class members and the number of associated 

unique phone numbers. Id. at 12.

21 Exhibit 1, Hansen Rep. at 13-15.

22 Exhibit 1, Hansen Rep. at 15-16.

23 Exhibit 1, Hansen Rep. at 21-22.

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consumer phone numbers RMG purchased through third-party data brokers.24 After reviewing 

the lead data and associated website sources, and considering not only his own experience within 

the telemarketing industry, testimony from RMG’s principal and employees, testimony from two 

tiers of data brokers from which RMG obtained its leads, and other documentary evidence 

regarding the nature of Defendants’ lead data, Mr. Hansen concluded that the generic lead data 

RMG used to call Plaintiff and the class was flawed, unreliable, and did not represent the 

associated consumer’s agreement to be called by Defendants.25 No responsible telemarketer 

would have relied on this data, especially given RMG’s own suspicion that the data had been 

manipulated or fraudulently obtained.26 Indeed, given the sheer amount of data—over 70 million 

records purportedly derived from 6,000 various websites, many of whom plainly have nothing to 

do with Defendants or even travel generally, and which RMG’s own consultant determined 

likely obtained leads using “tracking cookies and Adware which can capture and collect a user’s 

web surfing blueprint” as well as “data mining techniques”—Mr. Hansen agreed that data RMG 

used to make the calls at issue had likely been obtained by using some type of spyware.27

Given Mr. Hansen’s vast experience with telemarketing, automatic telephone dialing 

systems, and data analysis, Plaintiff disagrees that his findings are unreliable or will be unhelpful 

for the trier of fact. Respectfully, Defendants’ motion should be denied.

II. LEGAL STANDARD

“The rubric for evaluating the admissibility of expert evidence considers whether the 

expert was qualified, whether his methodology was scientifically reliable, and whether the 

 24 Exhibit 1, Hansen Rep. at 16.

25 Exhibit 1, Hansen Rep. at 16-22.

26 Exhibit 1, Hansen Rep. at 22; see, e.g., DE 455-11 at 5 (“Beth [Valente] believes and I am 

starting to as well- that they take random IP addresses and just add them to records and that their might be 

duplicates with different peoples names?”).

27 Exhibit 1, Hansen Rep. at 20-22.

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testimony would have assisted the trier of fact in understanding the evidence or in determining 

the fact in issue.” Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014). Rule 702

of the Federal Rules of Evidence states:

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge 

will help the trier of fact to understand the evidence or to 

determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the 

facts of the case.

More specifically, Rule 703 of the Federal Rules of Evidence reads:

An expert may base an opinion on facts or data in the case that the expert 

has been made aware of or personally observed. If experts in the particular 

field would reasonably rely on those kinds of facts or data in forming an 

opinion on the subject, they need not be admissible for the opinion to be 

admitted. But if the facts or data would otherwise be inadmissible, the 

proponent of the opinion may disclose them to the jury only if their 

probative value in helping the jury evaluate the opinion substantially 

outweighs their prejudicial effect. 

Rule 702 allows expert testimony “on scientific matters, technical matters, or matters involving 

other specialized knowledge so long as the testimony will assist the trier of fact to understand the 

evidence or to determine a fact in issue.” United States v. Offill, 666 F.3d 168, 175 (4th Cir. 

2011) (emphasis in original) (internal quotation marks omitted). “[T]he court’s gatekeeping 

function focuses on an examination of the expert’s methodology. The soundness of the factual 

underpinnings of the expert's analysis and the correctness of the expert's conclusions based on 

that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on 

summary judgment.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). Additionally,

“[u]nlike an ordinary witness . . . an expert is permitted wide latitude to offer opinions, including

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those that are not based on firsthand knowledge or observation.” Daubert v. Merrill Dow

Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993) (citing Fed. R. Evid. 702, 703). 

III. ARGUMENT

Despite Defendants’ improper and irrelevant attempts to smear Plaintiff’s expert’s 

reputation, Jeffrey Hansen is an IT, e-discovery, and computer forensics professional with 

decades of real-world experience. His expert analysis has been utilized in dozens of TCPA cases, 

and he has particularized experience with autodialers, and even used the same brand of dialer as 

Defendant RMG in this case. Defendants do not dispute that he is proficient in the SQL database 

language in which RMG’s data was produced and analyzed in this case. Because Mr. Hansen 

properly applied reliable methods to reach his conclusions offered in this action, which will 

assist the trier of fact, Defendant’s motion should be denied.

A. Mr. Hansen’s substantial, relevant experience qualifies him as an expert.

Mr. Hansen has relevant experience and specialized knowledge that will assist the trier of 

fact in understanding the dialer data produced by RMG in this action, how it can be used to 

establish a certifiable class, and the validity of the “opt-in” lead data RMG purchased to obtain 

consumers’ phone numbers to call.

“[A]n expert witness may be qualified by ‘knowledge, skill, experience, training, or 

education.’” Holmes v. Godinez, 311 F.R.D. 177, 210 (N.D. Ill. 2015) (quoting Fed. R. Evid. 

702). “There is no requirement that an expert hold any particular credentials to give expert 

opinion testimony.” Holmes, 311 F.R.D. at 210. Rather, “a court should consider a proposed 

expert’s full range of practical experience as well as academic or technical training when 

determining whether that expert is qualified to render an opinion in a given area.” Smith, 215 

F.3d at 718.

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Mr. Hansen has substantial, particularized experience relevant to this matter, including 

both as to data analysis and dialer-based calling and telemarketing. His business, Hansen Legal 

Technologies, Inc., has focused for the past three years on the analysis of data and autodialing 

equipment in litigation.

28 Before that, Mr. Hansen co-owned Hansen & Levey Forensics from 

2007 to 2013, which provided similar computer forensics and e-discovery services.29 Since 2000, 

he has also owned a company, Pns724, through which he has maintained a telemarketing call 

center client’s dialers, data, and do-not-call and telemarketing lists for more than a decade, along 

with providing complete IT solutions for hundreds of businesses and individuals.

30

Mr. Hansen has “set up and maintained all aspects of predictive dialers and autodialers, 

from predictive dialers operating with just three telephone lines, to outbound call centers capable 

of generating over one million calls per hour[,]” and apart from using predictive and autodialers

himself, he has trained others.

31 In fact, he has prior experience with the particular brand of 

dialer used to make the calls at issue in this case.32 In contrast, Defendants’ opinion witness 

Peggy Daley had zero experience with autodialers or telemarketing before this case.33

Beyond having managed dialers in the context of telemarketing, Mr. Hansen has 

substantial experience in processing and analyzing data, both generally and in connection with 

autodialers. Mr. Hansen is fluent in Structured Query Language (“SQL”), a programming 

 28 Exhibit 2, Hansen Dep. at 66:14-16; 67:19-68:6.

29 Exhibit 1, Hansen Rep. at 4 and C.V. at 1-2. [Mr. Hansen’s C.V. was attached as Exhibit A to his 

report. This is included with Exhibit 1 to this motion, but due to the voluminous size of his report, the 

other exhibits are cited as filed attached to Defendants’ motion.]

30 Exhibit 2, Hansen Dep. at 75:20-77:6; Exhibit 1, Hansen Rep., C.V. at 2.

31 Exhibit 1, Hansen Rep. at 3.

32 Exhibit 1, Hansen Rep. at 7 (“I have worked with many dialing systems and software similar to 

the Asteria software used with the Dialer Database. I have also worked, in the past, with Asteria software 

in a context unrelated to this case.”); Exhibit 2, Hansen Dep. at 60:9-15; 102:2-15 (noting he made 

hundreds of thousands of calls via an Asteria dialer).

33 Ms. Daley testified that her only other experience with an autodialer was in Johnson v. Navient 

Solutions, Inc., No. 15-716 (S.D. Ind.), in which she had been retained just over “the last month or two” 

before her April 6, 2016 deposition in this case. Exhibit 3, Daley Dep. at 14:16-15:20. A review of that 

case’s electronic docket reveals that a “wrong number” TCPA class was certified. Johnson DE 122.

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language used to communicate with databases, and which he used to analyze the data presented 

in this matter through the PostgreSQL and MySQL database engines. Not only has Mr. Hansen 

continually used SQL for more than a decade, but he in fact instructed others on SQL, as well.34

He has used his specialized skills and knowledge to provide consulting or expert services in 

dozens of TCPA matters, and has been consistently upheld as a qualified expert by other 

courts.35

This specialized knowledge and experience will assist the trier of fact in understanding 

the evidence at issue. Defendant RMG in this case produced two large PostgreSQL telemarketing 

dialer databases containing records of its calls to over 430 million phone numbers.36 Mr. 

Hansen—who, unlike Defendants’ proffered expert—has substantial experience in both the 

operation of automatic telephone dialing systems and the analysis of associated data—was 

particularly capable of processing and analyzing this data in the context of TCPA class litigation, 

breaking the data down to (1) identify a Class List of 389,239 consumers who received a total of 

668,942 prerecorded telemarketing calls from RMG for the Cruise Defendants’ goods or 

services, and (2) confirm that any consumer in the Class List for whom a valid “prior express 

consent” or established business relationship defense does apply can be easily excluded. Through 

his experience in himself having vetted and purchased lead lists for use in autodialing, Mr. 

 34 Exhibit 2, Hansen Dep. at 127:1-25-128:2.

35 See, e.g., Booth v. Appstack, Inc., No. 13-1533, 2016 WL 3030256, at *12 (W.D. Wash. May 25, 

2016) (relying on Hansen's analysis similar to this case to conclude “conclude[] that the TCPA Class has 

demonstrated that Appstack made 601,207 calls to cell phones”); Whitaker v. Bennett Law, PLLC, No. 

13-3145, 2014 WL 5454398, at *4 (S.D. Cal. Oct. 27, 2014) (granting class certification in TCPA action, 

citing Hansen declaration in noting that plaintiff “has shown a reasonable basis to believe that a class 

actually exists, and that the class could be specifically determined via discoverable access to [defendant’s] 

technologies and data”); Gaines v. Law Office of Patenaude & Felix, A.P.C., No. 13-1556, 2014 WL 

3894345, at *1 (S.D. Cal. July 2, 2014) (relying on Hansen declaration in compelling production of 

defendant's call data in TCPA action, including in reference to fact that data could be “compared to 

commercially available cell block identifiers”).

36 Exhibit 1, Hansen Rep. at 7; Exhibit 2, Hansen Dep. at 165:18-24.

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Hansen’s determination that the lead data RMG used in its telemarketing was flawed and 

unreliable, such that no responsible telemarketer would have relied on it, is also relevant to the 

Court’s understanding and determination of the extent to which this data RMG purchased 

through multiple levels of unknown third-parties is reliable and serves to truly evidence the 

consumer’s prior express consent to be called. Hansen Rep. at 16-22. Thus, because Mr. Hansen 

has substantial specialized knowledge and experience with autodialers and data analysis that will 

assist the trier of fact in this action, he qualifies as an expert.

B. Mr. Hansen’s findings result from the proper application of reliable 

principles and methods to sufficient facts and data.

Because Mr. Hansen properly applied reliable principles and methods to analyze RMG’s 

call and lead data in this action, his opinions as an expert should be considered.

1. Robodial Call List Analysis

At base, this Court has been presented with two conflicting expert opinions. On the one 

hand, Mr. Hansen has concluded that it is most likely that the calls RMG made to class members 

included prerecorded telemarketing messages for Cruise Defendants. He supports this conclusion 

through review of defendants’ data, corroborated by Plaintiff’s recordings of RMG’s calls to his 

phone, consumer complaints and an FCC citation about Cruise Line calls during the class period 

in relation to the same caller ID number used to call Plaintiff, RMG’s former president’s 

declaration affirming the calls’ purpose, the testimony of RMG’s representatives confirming the 

frequent use of its calls using cruises as an incentive, RMG’s discovery responses confirming 

that prerecorded messages referencing Cruise Defendants were played in relation to these 

campaigns, and evidence that millions of other calls RMG made through thousands of other

campaigns similarly included prerecorded cruise messages. All of this, in addition to the fact that 

the only prerecorded messages contained in RMG’s Interactive Voice Response (“IVR”) 

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Directory which the Dialer Database attributes to the three campaigns in which Plaintiff Charvat 

was called included, yet again, an analogous message promoting Cruise Defendants. The 

evidence is overwhelming.

On the other hand, Defendants’ proffered expert, Ms. Daley, contends that Mr. Hansen’s 

conclusion is unreasonable because the audio files for these campaigns could have been changed 

play a non-Cruise Line message. Ms. Daley relies upon non-descript testimony from RMG 

employees that this occurred (and overlooking evidence that, to the extent this was the case, it 

was minimal and/or done purposefully as a litigation tactic against class certification),37 and 

overstating the unsurprising conclusion that the three campaigns’ dialing plan changed in some 

undeterminable way over the course of the several-year class period. Ms. Daley’s conclusions on 

these points are undisputed: it might be theoretically possible that Travel Services might have 

substituted some non-Cruise Line robocall in place of its Cruise Line calls for some period. But 

aside from the theoretical possibility that this might have happened, there exists no 

contemporaneously-created evidence of such. 

Mr. Hansen’s methodology on this point was reliable. Defendants’ first argument—that 

Mr. Hansen improperly assumed that all of the calls to the class were identical without first 

confirming his assumptions with Asteria, considering certain evidence regarding RMG’s use of 

its dialer, or listening to the recordings—misstates both Mr. Hansen’s methodology and his 

findings. 

 37 See Exhibit 4, 0787274 (e-mail from more than a year into the litigation stating, “Like I 

emphasized the other day, the new case that just came down helps us if we can find out how diverse our 

calling was in these respects,” with a response from Valente that it was “very diverse,” albeit only 

because “sometimes we would start as a cruise and if they were afraid of water - we would move them to 

a condo package - we did not keep track of when that happened”), and 0801637 (Valente e-mail stating 

more than a year into this litigation, “I am also thinking I might have you run the dailer [sic] with a hotel 

or condo Vegas - message once a day – so we can say we are doing both”). A defendant’s failure to 

maintain records identifying the class, especially when done with ill intent, does not foreclose 

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

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First, Defendants’ characterization of Mr. Hansen’s opinion is incorrect. Mr. Hansen does 

not dispute that the specific audio recordings played to the class changed over time; indeed, 

Plaintiff himself recorded calls from RMG with slight variances of the same message. Rather, 

what matters—and what Mr. Hansen was able to determine to a reasonable degree of certainty in 

the fields of data analysis and telemarketing—is that the calls to Plaintiff and the class were (1) 

prerecorded, and (2) made for the purpose of attempting to sell the goods or services of Cruise 

Defendants. Every single call to Plaintiff played a variance of the same prerecorded message 

suggesting he had won a cruise for Cruise Defendants, the two audio files identified in the Dialer 

Database associated with the campaigns tied to three calls for which Plaintiff had a recording 

(and dozens of others) play a variance of the same prerecorded message suggesting the consumer 

had won a cruise for Cruise Defendants, hundreds of consumer complaints about the same caller 

ID number RMG used to call Plaintiff identified calls soliciting Cruise Defendant cruises, 

RMG’s former president confirmed the purpose behind the calls, and RMG’s own discovery 

responses confirm that these campaigns “would have referenced the Cruise Line Defendants in a 

pre-recorded message played during the telephone calls.”38 The overwhelming bulk of evidence 

establishes that the calls made to Plaintiff and the class played prerecorded telemarketing 

messages for Cruise Defendants. Variances in phrasing—for example, referencing a “booking 

agent” instead of a “Travel Services cruise agent” as the person to whom the caller will be 

transferred after “pressing 1”—are immaterial, and do not change the fact that these were all 

prerecorded telemarketing calls for Cruise Defendants.

Second, although he had hands-on experience working with an Asteria dialer (in addition 

to other dialers) before having been hired to testify here, Mr. Hansen did consult with Asteria, 

which built RMG’s dialer to ensure that the data was properly interpreted and analyzed. He 

 38 DE 521-2 at 100-101 (RMG Supp. Resp. to Interrog. No. 4).

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obtained table keys that associated the Dialer Database’s tables with corresponding column 

headings. Mr. Hansen conferred with Tim Ringenbach—the same Asteria representative with 

whom Defendants’ expert consulted—to double-check his understanding of the data. Plaintiff’s 

counsel conferred with Mr. Ringenbach about the Dialer Database, as well, relaying the results 

of such communication to Mr. Hansen. And unlike Defendants’ expert, Mr. Hansen had 

previously used an Asteria dialer to make hundreds of thousands of calls, and has substantial 

experience working with dialer data generally; as such, he had much more relevant, first-hand 

knowledge to work from than Ms. Daley from the outset.

Third, Mr. Hansen did consider all relevant evidence regarding RMG’s use of its dialer. 

Defendants’ motion chides Mr. Hansen for not having reviewed the depositions transcripts of 

Elizabeth Valente and other RMG representatives—which ignores his report and testimony, 

including that he was present by phone at Jamie Smith’s deposition39—and then argues that 

because Valente and her associates purportedly offered a variety of incentives other than cruises 

and “frequently changed the incentives offered during the course of an ongoing campaign,” Mr. 

Hansen’s opinion that the calls to Plaintiff and the class were prerecorded telemarketing calls for 

Cruise Defendants is flawed. But as Defendants themselves go on to admit, no evidence 

identifying when or what changes were purportedly made exists.

40 In truth, Ms. Valente testified 

that she didn’t even know what a Campaign ID was and had only “a very general idea of what 

the campaigns were,”41 and the RMG employee who primarily managed the dialer, Jamie Smith, 

was unable to identify anything suggesting that any of the campaigns relevant to this action had 

 39 Exhibit 1, Hansen Rep. at Ex. B (Smith deposition), Ex. L (Valente deposition), Ex. M (Rader 

deposition); Exhibit 2, Hansen Dep. at 466:2-3.

40 DE 526, Defs.’ Mot. at 25.

41 DE 521-2 at 428 (Valente Dep. at 92).

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been stopped or altered for any reason.42 The audio files within RMG’s IVR Directory contain 

dozens of prerecorded messages referencing Cruise Defendants.

43

And finally, Defendants’ contention that Mr. Hansen’s opinion is unreliable because he 

never listened to any of the prerecorded messages at issue is demonstrably false because, as Mr. 

Hansen testified and stated in his report, he did listen to all of the IVR Directory recordings.44 As 

Mr. Hansen’s report confirms, the two “sound” files from RMG’s IVR Directory applicable to 

the three campaigns in which Plaintiff was called, s28 and s61, both contain a prerecorded 

message promoting the goods or services (i.e., cruises) of the Cruise Defendants—just like the 

calls Plaintiff Charvat recorded for such campaigns, and just like dozens of other prerecorded 

messages in RMG’s IVR Directory.45 It is entirely irrelevant that, over the course of several 

years, slight variances or improvements were made to the particular audio recording played in 

the three campaigns in which Plaintiff and the class were called; the point is that the underlying 

message itself did not change: All of the applicable recordings involve analogous prerecorded 

messages promoting Cruise Defendants’ cruises, regardless of whether one starts off saying 

“hello and congratulations” while another begins with “congratulations.” 

Ms. Daley assumes too much, both overstating the amount of change to the dial plans 

across RMG’s thousands of campaigns,46 and going out of her way to assume not only that any 

 42 DE 521-2 at 57 (Smith Dep. at 106:2-107:10). 43 See, e.g., Exhibit 7. 44 Exhibit 1, Hansen Rep. at 10 n. 3 and 11 n. 4; Exhibit 2, Hansen Dep. at 226:5-21 (indicating that 

he had transcripts of the three calls to Plaintiff for which Mr. Charvat made recordings, testifying that “I 

do have the sound files that were played,” and clarifying, when defense counsel was asking whether he 

was aware of recordings specific to a particular call to a consumer other than Plaintiff, that defense 

counsel was “asking the question leaving out any recordings in the IVR directory that was produced”).

45 See Exhibit 1, Hansen Rep. at 10 n. 3 and 11 n. 4; compare Footnote 18 (s28 and s61), supra, 

with Hansen Rep. at 9 n. 2 (Plaintiff’s recordings of the calls he received), all similarly suggesting the 

consumer had won a cruise for Cruise Defendants. Audio recordings are available at Exhibit 7. 46 Ms. Daley suggests that there were over 900 edits to 22 of the 29 dial plans in the Dialer Database 

over the 2-year period between backups (of which only one is relevant to the calls at issue), but this 

appears to discount the fact that the change to one function (e.g., “answering machine detect”) 

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modification must have been to the “sound” played as opposed to any other possible function, 

but that any change to the “sound” tied to a dial plan must also represent a change to the 

substance of the message to anything other than a cruise solicitation. Nothing in the Dialer 

Database supports Ms. Daley’s assumptions. Her reliance on differences between the various dial 

plans in the two Dialer Database backups to attempt to “prove” that sound files were changed 

over time is irrelevant: It doesn’t matter that a “sound” tied to a dial plan for a campaign was 

changed because there is no way to tell what those changes were, or if they were changes to the 

“sound” at all. And Ms. Daley’s position isn’t helped in either case by the fact that RMG’s IVR 

Directory is filled with dozens of Cruise Defendant-related “sound” recordings, with a striking 

paucity of other call types. In the absence of actual proof to the contrary, one must logically 

accept the overwhelming bulk of the evidence establishing that these three campaigns involved 

prerecorded Cruise Defendant calls.

Ms. Daley herself admits that, since RMG’s Dialer Database only provides a snapshot of 

each dial plan at the date of the backup, “the dialplan tables only show the most recent set of 

instructions input by the users. They do not contain any record of past activity.”47 She incorrectly 

assumes that any edit to Dial Plan 11 relevant to the class’ campaigns must have been a change 

to the “sound” function, as opposed to, say “amd” (answering machine detect). And she guesses 

that because only the “sound” integer appears to have changed across the two backups, all

changes must have been to “sound”—overlooking the fact that some functions, including the 

“amd” function determining whether the dialer will detect an answering machine, are simple 

on/off commands that could easily be switched back and forth repeatedly and still end in the 

 

corresponding to a single dial plan state (e.g., “47”) will force a change in the row count for the other 

functions tied to that dial plan state (e.g., “sound”, “hangup on answering machine detect”, etc.), such that 

there were likely exponentially fewer edits than she believes.

47 DE 521-4 at 6 (Daley Supp. Rep. at 4).

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same result at the date of each backup. A singular reliance on the fact that “things changed” in

the dial plan over time, and that Ms. Valente and her associate say they changed the message 

sometimes on an unidentified, limited basis, ignores the overwhelmingly weight of the evidence 

that RMG’s calls to Plaintiff and the class played prerecords soliciting Defendants’ cruises. 

Mr. Hansen conducted a thorough analysis of RMG’s call data, which was produced 

through two large backup48 PostgreSQL databases containing records of over 430 million calls.49

He joined these two tables in PostgreSQL, and then imported the data into MySQL, a similar 

SQL-based database management system.50 While much of the data was self-evident or could be 

ascertained through Mr. Hansen’s past experience—e.g., a table named “call log” would contain 

call log information—he also consulted with Tim Ringenbach of Asteria Solutions Group to 

ensure that the data was correctly interpreted. Hansen Dep. at 131:14-134:10. Mr. Hansen then 

compared the phone numbers contained in RMG’s dialer database with a Cell Block Identifier 

list, in order to segregate cell phone numbers from landline numbers.51 Because it was possible 

that some numbers might have been ported from landline to cell phone, or vice versa, Mr. 

Hansen also compared the data with the Neustar ported number lists to determine which numbers 

were called after being ported.52 In this way, Mr. Hansen was able to identify which numbers 

were assigned to a cellular telephone service at the time RMG called it.53

 48 One database is a backup dated May 5, 2012, while the other is dated March 8, 2014. Exhibit 2, 

Hansen Dep. at 129; DE 521-6 at 20 (Daley Orig. Rep. at 15). 49 Exhibit 1, Hansen Rep.at 7-8; Exhibit 2, Hansen Dep. at 165:18-24. 50 Exhibit 2, Hansen Dep. at 128, 130-131 (indicating that data would not have been affected in any 

way as a result of analyzing it in MySQL, because the data was “exported ... from Postgres in a format 

that is intended for the exchange of data between databases”).

51 Exhibit 1, Hansen Rep. at 9.

52 The FCC has retained Neustar to maintain a database tracking telephone number assignments. 

Exhibit 1, Hansen Rep. at 9.

53 Exhibit 1, Hansen Rep. at 9.

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Plaintiff Charvat recorded three of the calls he received from RMG on behalf of Cruise 

Defendants.54 To further isolate relevant data of calls to persons who received similar 

prerecorded Cruise Defendant telemarketing calls, Mr. Hansen ran a query for calls to Mr. 

Charvat and other consumers obtained through public records requests complaining about the 

prerecorded cruise calls at issue in this case, using records for which Mr. Charvat had an 

associated call recording to narrow the relevant campaigns down to just three out of more than a 

thousand campaigns identified in the Dialer Database, each associated with its own Campaign 

ID: 422, 610, and 1410. He also reviewed a directory produced by RMG of the prerecorded 

messages used in relation to its calls, which associates a designated “sound”—e.g., “28” or 

“61”—with a particular audio file.55 By running a Boolean query for all records containing the 

same campaign name, campaign ID, and associated sound file as those in the records associated 

with the three calls for which Plaintiff had a call recording, Mr. Hansen was able to isolate and 

join the call log and associated sound data for all calls for these three campaigns—thereby 

creating a Class List containing the number called, call date, call disposition, (e.g., “machine” or 

“human,”), and associated campaign sound file name (e.g., “422 s28.wav”), for all calls in each 

of the three campaigns in which Plaintiff Charvat was called.56

Based on his experience with telemarketing and dialer campaigns, review of transcripts 

of the depositions of, among others, RMG’s owner Elizabeth Valente and its dialer manager 

Jamie Smith, numerous consumer complaints all similarly concerning prerecorded telemarketing 

calls for Cruise Defendants by RMG, and the audio files and data, Mr. Charvat was able to 

conclude to a degree of scientific certainty that each of the numbers identified in the Class List 

received, like Plaintiff, a prerecorded telemarketing call advertising Cruise Defendants’ goods or 

 54 Exhibit 1, Hansen Rep. at 9 n. 2.

55 Exhibit 1, Hansen Rep. at 8.

56 DE 521-3 at 562; Exhibit 1, Hansen Rep. at 8-13.

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services. Based RMG’s two “s28” and “s61” audio files attributable to the calls to the consumers 

identified in the Class List 

2. Analysis of RMG’s “Opt-in” Leads and Consent

Because Mr. Hansen’s experience in the telemarketing industry and specialized 

knowledge as an IT professional will assist the trier of fact in evaluating the validity of the lead 

data RMG purchased for use in its calling campaigns, Defendant’s motion should be denied.

A defendant may avoid liability under the TCPA if it can prove that it made an otherwise 

prohibited call with the called party’s “prior express consent.” 47 U.S.C. § 227(b)(1)(A), 

(b)(1)(B). In this case, there is no dispute that RMG obtained the phone numbers it called from 

data it purchased through unknown levels of third-party data brokers.57 Although unable to 

determine how this data ultimately reached RMG—in the end, working through three levels of 

intermediary data brokers before giving up—Defendants contend that this data was ultimately 

created when the consumer submitted his or her information to one of thousands of unrelated, 

third-party websites. Defendants contend this data represents the consumer’s consent to be called 

based on “privacy policies and consent provisions for every one of those possible sources.”58

Mr. Hansen’s findings prove otherwise; not only is RMG’s lead data flawed and 

unreliable, but it was likely obtained via spyware or similar means.59 To reach this conclusion, 

Mr. Hansen was provided with and reviewed RMG’s lead data, which was produced through 

thousands of data files containing over 70 million numbers.60 He also considered deposition 

testimony from RMG representatives indicating that leads were not intended to be specific to 

RMG or Cruise Defendants, but only to consumers “who wanted to be called for discount 

 57 DE 521-6, Daley Rep. at 40 (over 99% of class member phone numbers match to data in RMG’s 

“opt-in” lead lists).

58 DE 526, Defs.’ Mot. at 29.

59 Exhibit 1, Hansen Rep. at 22.

60 Exhibit 1, Hansen Rep. at 16.

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travel”61—and noted that, beyond the extreme volume of data, any reasonable telemarketer 

would have realized that a significant portion of the websites from which these leads purportedly 

came (e.g., LordOfTheRings-Essentials.com) have nothing to do with that purpose.62

Mr. Hansen also reviewed deposition testimony from RMG’s own lead broker, Peter 

Lachnicht of Caldwell Lists, as well as his sub-broker, Tom Mongiovi of TDC Marketing, who 

confirmed that they were not the original source of the data sold to RMG, and could make no 

representation about its validity.63 There was also ample evidence Mr. Hansen considered, from 

both testimony and internal RMG e-mails, which indicated that RMG itself believed the lead data 

it purchased to be fraudulent.64 Indeed, a consultant warned RMG back in 2010 that website 

from which its leads were purportedly sourced likely obtained the data through “tracking cookies 

and Adware” as well as “data mining techniques.”65 With this investigation and his own 

knowledge and experience in the telemarketing industry, Mr. Hansen agrees.66

Mr. Hansen’s conclusion that the lead data submitted . In fact, when Plaintiff’s counsel 

asked Ms. Daley if she was going to testify about the validity of RMG’s lead data, she notably 

demurred.67

 61 DE 521-2 at 450 (Valente Dep. at 178), and 517 (Rader Dep. at 56-57 (confirming that “opt in” 

leads used by RMG were consumers who wanted to receive calls about “travel” generally)).

62 Exhibit 1, Hansen Rep. at 20 n. 22; DE 521-2 at 845-921 (RMG e-mail listing purported website 

lead sources). 63 Exhibit 1, Hansen Rep. at 18-19.

64 Exhibit 1, Hansen Rep. at 19; see, e.g., DE 521-2 at 546 (Rader Dep. at 171-72 (Valente 

suspected Caldwell List data had been changed to insert new websites, and expressed suspicion to Rader 

that Caldwell List data was fraudulent)), and 548 (Rader Dep. at 178-79 (Valente “freaked out” because 

she thinks the Caldwell List data is “bogus,” and was nervous that Caldwell List was “making stuff up”)).

65 Exhibit 1, Hansen Rep. at 21; DE 521-2 at 918-21. 66 Exhibit 1, Hansen Rep. at 20-22.

67 Exhibit 3, Daley Dep. at 224:2-4 (“I am not here to testify about the validity of the consents that 

are, purport to be contained within the lead lists.”).

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3. Cell Phone/Landline Analysis

Daley admits that she is not a telemarketing expert,68 and she identifies no basis for 

claiming that she is an expert in determining whether a phone number is assigned to a cell phone. 

Defendants therefore cannot use the newfound opinion in her untimely “supplemental” report 

that “cellular telephone reverse lookup processes are unreliable” as a valid means of opposing 

class certification or excluding Hansen—i.e., someone who actually has first-hand experience 

identifying cell phones from lists of numbers. Even as a lay testimony, Daley’s presentation of 

hearsay information from third-sources is unreliable, and not her “personal knowledge.” Courts 

and the FCC have repeatedly confirmed the use of wireless and ported number lists as a valid 

means of confirming whether a number is assigned to a cell phone, and Daley’s improper 

assertions to the contrary should be disregarded.69

C. Mr. Hansen did not misrepresent his qualifications.

The bulk of Defendants’ motion serves as a hit piece on Mr. Hansen’s reputation, not as a 

substantive argument regarding the viability of his methodology. Using a “supplemental” report 

submitted for the first time with their motion, Defendants and their opinion witness, Margaret A. 

“Peggy” Daley, make repeated false accusations denigrating Mr. Hansen’s integrity and 

 68 Exhibit 3, Daley Dep. at 102-103 (“I’m not being offered as a telemarketing expert.”).

69 See Booth v. Appstack, Inc., No. 13-1533, 2016 WL 3030256, at *12 and n. 13 (W.D. Wash. May 

25, 2016) (concluding that “Plaintiffs sufficiently confirmed and demonstrated that the recipient devices 

were indeed cellular devices” in case in which Mr. Hansen used similar method to determine which 

numbers from class list were assigned to cell phones at time of call, noting that any discrepancy “can be 

adequately addressed at the claims stage”); Malta v. Fed. Home Loan Mortgage Corp., No. 10-1290, 

2013 WL 444619, at *6 (S.D. Cal. Feb. 5, 2013) (citing approvingly process for identifying calls to cell 

phones using “compar[isons] to the known cell phone lists (including ported number lists)”); Thrasher v. 

CMRE Fin. Servs., Inc., No. 14-1540, 2015 WL 1138469, at *2 (S.D. Cal. Mar. 13, 2015) (compelling 

production of call data, finding that “CMRE can produce the record as it is kept (in a searchable format), 

and Plaintiff’s expert will ‘scrub’ the list by comparing the outbound dial list to a list of known cell block 

identifiers and will be able to quickly determine how many of the numbers called are cell phone 

numbers”); In re Rules & Regs. Implementing the TCPA, CG Docket No. 02-278 at ¶ 72 (“We generally 

agree ... that there are solutions in the marketplace to better inform callers of reassigned wireless 

numbers[.]”).

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reputation—from grasping, negative inferences about his professional experience, to attacking 

former business associates who have nothing to do with this case. Such matter has no bearing on 

Mr. Hansen’s standing as an expert, and instead demonstrates untenable bias on the part of Ms. 

Daley, who has started to create a cottage industry for herself by soliciting firms whose 

opponents have retained Mr. Hansen’s services.70 Because Defendants’ and Ms. Daley’s 

offensive accusations are not only false and irrelevant, but fail to meet procedural compliance in 

any regard, they should be disregarded by this Court. 

1. Daley’s “supplemental” report fails to comply with Rule 26(b)(2).

Defendants’ expert report was due on February 19, 2016.71 On February 20, 2016, Cruise 

Defendants produced Peggy Daley’s Rule 26(a)(2)(B) report, indicating that she had been 

retained “to review the data produced in this case, which purports to document the telephone 

calls made by RMG, as well as RMG’s opt-in leads database and the cruise line defendants’ 

customer data.”72 Plaintiff’s counsel deposed Ms. Daley on that basis on April 6, 2016. Yet now, 

as an exhibit to their class certification response brief, Defendants submit for the first time a new 

report from Ms. Daley, opining “as a professional investigator and Certified Fraud Examiner that 

Mr. Hansen has exaggerated his credentials and presents misleading statements regarding his 

professional qualifications.”73 Ms. Daley was neither timely disclosed under Rule 26(a)(2), nor 

was the supplemental report timely produced such that Plaintiff was able to cross-examine her on 

her “findings.” These reasons alone warrant this Court rejecting the report’s assertions.

 70 Exhibit 5, Lee v. Global Tel*Link Corp., No. 15-2495 (C.D. Cal.), Daley Dep. at 59 (Aug. 12, 

2016) (admitting that her staff has emailed defense counsel in other TCPA cases advertising that Daley 

“has done a good job in discrediting [Hansen’s] work”).

71 DE 431.

72 DE 521-6 at 12 (Daley Orig. Rep. at 7). 73 DE 521-4 at 9 (Daley Supp. Rep. at 7).

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2. Defendants’ attacks on Mr. Hansen’s experience are baseless.

The failure of Peggy Daley’s shoddy online research to verify every facet of the past 26 

years of Mr. Hansen’s professional life does not make him a liar. Nor does couching Ms. Daley 

as a newly-designated “private investigation” expert grant Defendants license to make specious 

accusations. Indeed, “it is a grave breach of professional ethics ... to present expert testimony 

knowing or suspecting it to be false and misleading in the absence of full disclosure of the 

manner in which the test was conducted.”74 Mr. Hansen did not misstate his qualifications, and 

the Court should reject any assertion otherwise. 

Defendants repeatedly use negative inferences to suggest that, because they couldn’t 

verify Mr. Hansen’s sworn statements about his own life, he must be lying. But beyond the 

obvious conflict of interest, Ms. Daley’s willingness to assert anything to support her position 

regardless of its truth has been proven.75 For example, among similar contentions in another 

pending action, Lee v. Global Tel*Link Corp., No. 15-2495 (C.D. Cal.), Daley suggested that 

Hansen misrepresented having worked at the FBI-sponsored San Diego Regional Computer 

Forensics Lab (“RCFL”) in 2006 because he “struggled to remember” his director’s name at his 

deposition and “[r]esearchers working at my direction have attempted to identify and locate this 

individual, but no person matching this description has been identified.”76 After being confronted 

at her own deposition with evidence that a simple Google search would have returned numerous 

 74 Xanadu Mar. Trust v. Meyer, 21 F. Supp. 2d 1104, 1106 (N.D. Cal. 1998) (citing Cal. Bus. & 

Prof. Code § 6068(d)); see also Fed. R. Civ. P. 11(b) (by submitting a written motion, an attorney 

certifies that, inter alia, “it is not being presented for any improper purpose, such as to harass, [and that] ... 

the factual contentions have evidentiary support”).

75 E.g., Exhibit 5, Daley Lee Dep. at 219 (admitting that, despite representing that Hansen was 

“misleading” the court, she did not know for a fact that hundreds of Hansen’s students didn’t obtain

certifications; rather, her conclusions against him are based on Daley being “suspicious”).

76 Lee v. Global Tel*Link Corp., No. 15-2495 (C.D. Cal.) (DE 85 ¶ 111).

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first-page results for this person,77 she contacted the individual and confirmed that he “recalled a 

volunteer program and recalled the name Jeffrey Hansen.”78 Unbelievably, Daley here has not 

only attached an affidavit to her supplemental report referencing her co-worker’s communication 

with a different RCFL employee who apparently couldn’t remember Hansen from ten years ago,

but affirmatively attempts to diminish the director’s confirmation of remembering Hansen on the 

basis that he couldn’t find out anything further “to confirm whether Mr. Hansen’s statements 

were accurate.”80

Cruise Defendants continue this false narrative that Hansen didn’t volunteer at the RCFL,

submitting a subpoena response from the Department of Justice indicating that it could find no 

record of Hansen’s time there.81 But the unsurprising fact that the government doesn’t have a 

record of someone volunteering at one of its labs a decade ago doesn’t change the reality that 

Hansen did work there, or that Daley’s blind reliance on third-party researchers to “verify” his 

report was disproven by first-page results of a Google search.82 This is exactly the kind of faulty 

logic and lack of candor that permeates Defendants’ motion, among the following:

• No Misrepresentations. Defendants recklessly claim that Hansen “misrepresented” his 

qualifications, but do not identify any instance where this really happened.83

• Hansen’s Data Analysis Experience. Defendants claim that Hansen’s employment history 

is unrelated to data analysis, and argue that this makes him an improper opinion witness. 

However, Mr. Hansen has used SQL database language (utilized by both sides’ experts to 

 77 Despite attesting to the conclusions in her reports under penalty of perjury, it is apparent that 

Daley doesn’t do her own research. Exhibit 5, Daley Lee Dep. at 233-34 (when Daley was presented with 

this evidence, she admitted, “I’m not sure what happened when the staff did the search”).

78 Lee v. Global Tel*Link Corp., No. 15-2495 (C.D. Cal.) (DE 94-1 ¶ 5).

80 DE 521-4, Daley Supp. Rep. ¶¶ 57-58 and Ex. 19, Skertic Aff. ¶¶ 3-8.

81 Defendants falsely claim that Hansen misrepresented his time at the RCFL because he only 

worked there as a volunteer, and not an employee. This itself misrepresents Hansen’s testimony, which 

clearly acknowledged that he worked at the RCFL as a volunteer for most of 2006, providing his services 

in exchange for the experience. Exhibit 2, Hansen Dep. at 92:13-93:22.

82 If this is the quality of evidence which Daley finds acceptable, it raises serious concerns about her 

qualifications to provide any expert opinion in this action.

83 Exhibit 2, Hansen Dep. at 95-98.

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analyze the data in this case) in his work since 2000, and taught this language to others as 

an instructor at Laptop Training Solutions (“LTS”).

84 He has used SQL consistently in 

the two iterations of his own e-discovery and computer forensics business since 2007,

including on numerous occasions in relation to the analysis of dialer data.86

• Telemarketing Experience. Defendants argue that Hansen has insufficient telemarketing 

experience to qualify as an expert. 

o Asteria Dialer. Cruise Lines argue that Hansen only “looked” at an Asteria dialer, 

when in fact he used it to make hundreds of thousands of calls.87

o Multiple Telemarketing Assignments. Cruise Lines claim Hansen only worked 

for one telemarketer, HomeyTel, despite his unrefuted and truthful testimony that 

he also provided assistance to other telemarketers.88 Hansen not only set up and 

maintained a call center using different types of dialers, he also maintained call 

lists and Do Not Call lists “used to place hundreds of millions of calls over a five 

year period.”89 The Court, of course, should take Mr. Hansen’s sworn testimony

at face-value instead of relying on Daley’s conclusions that Hansen’s operations 

were minimal, based upon specious internet and public record searches.

90 Hansen 

was there then; Daley was not. Moreover, Defense counsel had the opportunity to 

cross-examine Hansen further on these issues, but decided for whatever reason, 

not to do so.

o Correct Testimony Regarding Politics. They falsely claim that he inflated having 

conducted dialing campaigns for 50-100 friends who ran for political office, 

despite that Hansen’s testimony really said he robodialed for a few people, but 

that he knows lots of political people.91

o Improper Mis-Assocation. They reference campaigns in which Hansen had 

limited or no involvement to suggest that Hansen himself was involved in 

activities that resulted in consumer complaints.

92

o Guilt by Association. And they submit irrelevant, unflattering information 

obtained from public records or online about the owner of HomeyTel in an 

improper attempt to discredit Hansen by association.

 84 Exhibit 2, Hansen Dep. at 126-128.

86 Exhibit 1, Hansen Rep. at 2-3 (discussing data warehousing experience), C.V. at 1-2; DE 522, 

Hansen Lee Dep. at 211-13. 87 Exhibit 2, Hansen Dep. at 102.

88 Exhibit 2, Hansen Dep. at 98-99. They also misrepresent the length of his work with HomeyTel, 

which included years of relevant work before its owner formally incorporated. DE 526 at 18. 89 Exhibit 1, Hansen Rep., C.V. at 2.

90 Exhibit 2, Hansen Dep. at 69 (“Over the last 15 years, I’ve handled every aspect of autodialers.”), 79 (“And, of course, there was multiple redoing those. As he grew, the dialers were changed, 

the computers were changed to something more efficient.”), 104 (explaining that he’s worked with 

“numerous auto-dialers,” including products from TelData, Net-Dot Solutions, Asteria, VICIdial, and 

others); see also DE 522, Hansen Lee Dep. at 120 and 179:4-13. 91 DE 522, Hansen Lee Dep. at 122-23. 92 E.g., Exhibit 2, Hansen Dep. at 392-394 (indicating that he only compiled the dial lists for some 

campaigns, but didn’t make the audio recording played). 

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• Teaching Experience. Defendants mix and match aspects of Hansen’s work at LTS to 

give the impression that he overstated his teaching experience there, stating “Hansen 

admitted ... that only 12 students were ever trained.” This is false. As Hansen’s C.V. and 

report explain, he instructed roughly 1,000 students in numerous computing areas, 

“including Microsoft Certified Systems Engineer (NT4.0, Win2000 MCSE, 2003 

MCSE), Cisco (CCNA), A+, N+, Linux+, I-Net+, Security+, MOUS and Web Page 

Design (HTML, Javascript, DHTML, Flash 4, Flash 5, Fireworks3, Photoshop 5)

resulting in hundreds of certified students.”93 He also specifically taught students about 

spyware.94 That a smaller number of students obtained one particular certification is not 

inconsistent.

• Formal Degree is Not Necessary. Entirely ignoring Mr. Hansen’s vast real-world 

experience and the fact that he has successfully run his own computer forensics and ediscovery business for the greater part of a decade, Defendants use Daley’s own 

supposition and “exemplar job postings” she found online to suggest that because Hansen 

was not formally educated beyond high school, he is un-hirable in his field and thus 

unqualified—an argument a court in another TCPA case involving Hansen unequivocally 

rejected as “gratuitously derogatory,” noting that “geniuses of all kinds have boasted no 

college degree.” 95 A formal degree is not necessary for a Fed.R.Civ.P. 26(a)(2) to pass 

Daubert muster. Jones v. Lincoln Elec. Co., 188 F.3d 709, 724 (7th Cir. 1999)

(acknowledging that “Rule 702 provides that a witness can be qualified as an expert 

without formal training or education by virtue of his or her experience”).

• Number of Years’ Experience. Defendants quote a reference in Mr. Hansen’s report 

discussing his 26 years of experience in the “electronic and information technology 

fields,” and then immediately ignore the “electronic” part of the quotation to claim that 

Hansen lies about having 26 years of IT experience because in 1990 he was working as a 

television/VCR tech. Hansen’s declaration on this point was true: he has been working in 

“electronic and information technology fields” for 26 years.96

• Technological Experience in the Navy. They minimize Hansen’s years of service as a 

sailor and employee of a U.S. Navy contractor, which was not limited to merely 

“connecting fiber optic cables to vessels in port,” but in fact involved a wide range of IT 

networking and computer issues which more than qualified him to set up and maintain 

automatic telephone dialing systems in the private sector, from forensic-type work, work 

identifying and addressing security threats, and network troubleshooting and management 

for large-scale Department of Defense networks, for which he currently maintains a 

secret-level security clearance.97

• No Publications. Defendants argue that he “has never authored any technology 

publications” and “does not belong to any relevant industry trade groups” or “received ... 

 93 Exhibit 1, Hansen Rep., C.V. at 2.

94 Exhibit 2, Hansen Dep. at 455:10-459:11.

95 Exhibit 6, Sherman v. Yahoo! Inc., No. 13-41 (S.D. Cal. Feb. 20, 2015) (DE 113 at p. 10 n. 14).

96 Exhibit 1, Hansen Rep., C.V. at 1-3. 97 Exhibit 1, Hansen Rep., C.V. at 2-3.

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industry awards,” but fail to explain how or to what extent these are required in Hansen’s 

field.98 Given Hansen’s extensive experience and the straightforward basis for his 

conclusions, they simply are not necessary here. Smith, 215 F.3d at 720.

• Hansen’s Certifications. They similarly claim that certifications on Hansen’s C.V. are 

old, entry-level, or expired, but do not establish why the inclusion in his C.V. of 

certifications Hansen obtained early on in his career warrants exclusion, and do not 

identify any certifications or continuing education he is purportedly required to have or 

renew. 

• Worked Two Jobs. Defendants suggest it is incredulous that anyone could possibly work 

two jobs (describing Hansen’s own business as a “side job”), and falsely suggest that 

Hansen is working substantively “out of his van”—misrepresenting testimony from an 

unrelated case in which Hansen indicated that he will take advantage of downtime in his 

contracting job to read transcripts or other case materials.99

3. Defendants’ ad hominin attacks on Hansen and others are irrelevant 

to Hansen’s qualifications as an expert.

Where credibility is an issue for the trier of fact, Defendants untimely conjecture that 

Hansen misstates his experience, or their attempt to find “dirt” on him and his acquaintances, 

cannot serve as a valid basis for exclusion.

Determining the weight and credibility of a witness’s testimony belongs to the jury, and 

thus “expert opinions that constitute evaluations of witness credibility, even when such 

evaluations are rooted in scientific or technical expertise, are inadmissible under Rule 702.”

Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005). In weighing the admissibility of 

expert evidence, “the district court functions as a ‘gatekeeper’ whose role is to keep experts 

within their proper scope, lest apparently scientific testimony carry more weight with the jury 

than it deserves.” Smith, 215 F.3d at 718 (citation omitted). A proffered opinion that is 

 98 Publication must not be that important, given that Daley’s C.V. identifies only thirteen articles 

over the past 17 years, including such in-depth work as a “10 steps” list for an online lawyer magazine 

(http://www.insidecounsel.com/2014/09/02/10-steps-to-protecting-your-trade-secrets-from-the) and a 13-

question Q&A response about her employer (http://www.metrocorpcounsel.com/articles/10235/duffphelps-integrating-e-discovery-and-investigations-expertise). DE 521-6 at 57-8 (Daley Orig. Rep. Ex. A). 99 DE 522, Lee v. Global Tel*Link Corp., No. 15-2495 (C.D. Cal. July 18, 2016) (Hansen Dep. at 

95).

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irrelevant—i.e., that would not “help the trier of fact to understand the evidence or to determine a 

fact in issue”—is thus inadmissible. Fed. R. Evid. 702(a). 

Here, Daley spends a considerable amount of her supplemental report contending not 

only that Hansen misstates his experience, but asserting extraneous unflattering “facts” as an 

apparent way to embarrass Mr. Hansen or discredit him through association. This includes, for 

example, implying that Hansen somehow acted improperly in being employed by LTS over a 

decade ago because it was sued and went bankrupt, discussing Hansen’s friend’s unsuccessful 

bid for election as a judge, suggesting that this unrelated third party improperly “gave the 

impression to motorists that [he] was already a sitting judge running for re-election[,]” and 

“allegedly made similarly misleading claims in other media that embellished his credentials[,]”

and discussing complaints about Hansen’s client’s telemarketing, and this individual’s arrest 

history and public dispute with an elected official. Daley includes a lighthearted post on 

Hansen’s Facebook page without the underlying context, about which she could not possibly be 

aware, to attempt to portray Hansen in an unflattering, biased light. None of these or similar

assertions have any bearing on Hansen’s experience or qualifications as an expert, and they 

purport to attack Hansen’s integrity. This is not the proper scope of an expert report, which, in 

this case, attempts to take over the trier or fact’s role of weighing the witness’s credibility.100

 100 See Rink v. Cheminova, 400 F.3d 1286, 1293, n.7 (11th Cir. 2005) (“[A] district court cannot 

exclude an expert because it believes the expert lacks personal credibility because of prior bad acts or 

other prior instances of untruthfulness.”); Elcok v. Kmart Corp., 233 F.3d 734, 751 n.8 (3rd Cir. 2000); 

(ruling that an expert witness’s “general credibility” “could neither be considered by the District Court 

when performing its Rule 702 analysis, nor by this Court in reviewing that analysis[;] ... the District 

Court should not consider Copemann’s likely credibility as a witness when assessing the reliability of his 

methods”); United States v. Williams, No. 06-00079, 2009 WL 424583, at *11 (D. Haw. Feb. 20, 2009)

(“The parties must bear in mind that the principle of Daubert and Kumho is not for a court to make 

credibility determinations or to assess an expert’s conclusions.”); Hausman v. Holland Am. Line-USA, 

No. 13-937, 2015 WL 9839747, at *3 (W.D. Wash. Aug. 21, 2015) (denying motion to exclude expert 

testimony because of “credibility issues” and allegedly “inaccurate[] claims [about] a biomechanical 

engineering background”); Meganathan v. Signal Int’l L.L.C., No. 13-497, 2015 WL 11109846, at *11 

(E.D. Tex. June 26, 2015) (“Whether the school where she obtained her Ph.D. in clinical psychology is 

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And even as lay testimony, because Daley’s specious conjecture is pulled from numerous 

third-party sources about which she has no personal knowledge, it is inadmissible in either case.

Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 371 (7th Cir. 2015) (“[E]vidence given by affidavit 

could suffice to resolve disputes before deciding whether to certify a class[,] ... [the] affidavit 

must be based on personal knowledge.”) (emphasis added).

In short, Defendants use of suggestive language and false inferences to smear Hansen’s 

reputation and character is improper and should be disregarded. They tried a similar tactic 

before—basing a request for invasive discovery on the scurrilous affidavit of an ex-con who, 

despite having no relation to Plaintiff or this case, conducted an “investigation” into Mr. Charvat 

on the internet. Just as Judge Rowland denied that motion,101 the Court should similarly reject 

Defendants’ latest unfounded mudslinging here. 

As a network and IT professional, Mr. Hansen has extensive experience with computers 

and information technology. He has conducted numerous technology-based forensic 

examinations, provided complete IT solutions for hundreds of businesses, including network 

design, configuration, forensics, and data recovery, and has taught others about numerous 

network and computing issues, including spyware. Mr. Hansen conducted a years’ worth of 

volunteer work building forensics machines and installing and configuring systems for the FBIsponsored San Diego Regional Computer Forensics Laboratory and, aside from his own 

business, he also works for Hewlett-Packard maintaining fiber-optic networks for the U.S. Navy, 

 

accredited by the American Psychological Association, or whether her license to be a family counselor in 

California is still valid, does not impact whether she is qualified as an expert on trafficking. To the extent 

that Signal believes that these alleged misstatements affect the weight the jury should ascribe to her 

testimony, it can raise such issues on cross-examination.”); White v. State Farm Fire & Cas. Co., No. 07-

1871, 2010 WL 760612, at *6 (W.D. La. Mar. 2, 2010) (“[T]he Court will not exclude Mr. Norman’s 

testimony based on State Farm’s allegations that he embellished, exaggerated or misrepresented his 

credentials and/or qualifications.”).

101 DE 470.

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with a secret-level security clearance. His work as an IT professional and computer forensics 

professional has also provided him with specialized insight into the telemarketing and lead 

generation industry—including more than a decade of experience setting up and maintaining an 

outbound call center using a variety of dialers, in addition to purchasing lead data and ensuring 

DNC compliance. In short, he is very experienced in not only telemarketing, but all manners of 

issues affecting telephone and computer networks generally.

IV. CONCLUSION

WHEREFORE, for the foregoing reasons, Plaintiff Philip Charvat respectfully requests 

that the Court deny Cruise Defendants’ motion to strike Jeffrey Hansen’s expert report and 

exclude his opinions and testimony.

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.

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125 Summer St., Suite 1030

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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