in the united states district court for the ...classaction.kccllc.net/documents/cbh0001/cbh_ccl...

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GERARDO ARANDA GRANT BIRCHMEIER, STEPHEN PARKES, and REGINA STONE, on behalf of themselves and classes of others similarly situated,

Plaintiffs, v. CARIBBEAN CRUISE LINE, INC., ECONOMIC STRATEGY GROUP, ECONOMIC STRATEGY GROUP, INC. ECONOMIC STRATEGY LLC, THE BERKLEY GROUP, INC., and VACATION OWNERSHIP MARKETING TOURS, INC., Defendants.

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Case No. 1:12-cv-04069

Related to: Case No. 1:13-cv-00903

Case No. 1:12-cv-00908 Honorable Matthew F. Kennelly

DEFENDANT CARIBBEAN CRUISE LINE, INC.’S AMENDED ANSWER AND

AFFIRMATIVE DEFENSES TO PLAINTIFFS’ AMENDED CONSOLIDATED

COMPLAINT [D.E. 289]

Defendant Caribbean Cruise Line, Inc. (“CCL”) hereby submits its Amended Answer and

Affirmative Defenses to Plaintiffs’ Amended Consolidated Complaint (“Complaint”) [D.E. 289].

ANSWER1

INTRODUCTION

1. CCL does not dispute that Plaintiffs have brought this action against CCL, but

denies that Plaintiffs have any lawful grounds for asserting such action and otherwise denies the

allegations contained in Paragraph 1 of the Complaint. By way of further answer, CCL denies

1. CCL denies each and every allegation, matter, statement and thing contained in

the Complaint except as may be hereinafter admitted, qualified or otherwise explained.

Case: 1:12-cv-04069 Document #: 301 Filed: 05/27/15 of 29 PageID #:5813

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that it made or initiated any unsolicited telemarketing “robo-calls” to Plaintiffs’ cellular

telephones or otherwise violated the Telephone Consumer Protection Act (“TCPA”). In fact,

Plaintiffs’ Complaint asserts that the political survey calls were conducted by a different entity,

Political Opinions of America (“POA”), a completely separate entity over which CCL does not

possess ownership, direction, or control. Further, CCL had no direction or control over the

manner or means of the political survey calls conducted by POA, nor did CCL direct or control

the particular procedures POA would follow in conducting its political surveys.

2. CCL denies the allegations contained in Paragraph 2 of the Complaint.

3. CCL denies the allegations contained in Paragraph 3 of the Complaint. By way of

further answer, CCL denies that it made or initiated any unsolicited telemarketing “robo-calls” to

Plaintiffs’ cellular and/or residential telephones or otherwise violated the TCPA.


further answer, Paragraph 4 sets forth Plaintiffs’ interpretation of “federal law,” to which CCL

refers for its proper citation, interpretation, and effect.


further answer, CCL denies that it made or initiated any unsolicited telemarketing “robo-calls” to

Plaintiffs’ cellular and/or residential telephones or otherwise violated the TCPA.

6. CCL admits that Plaintiffs’ Complaint seeks to recover statutorily set damages as

well as treble damages but denies that Plaintiffs are entitled to any form of damages. CCL

denies the remaining allegations in Paragraph 6 of the Complaint. By way of further answer,

CCL denies that it made or initiated any unsolicited telemarketing “robo-calls” to Plaintiffs’

cellular and/or residential telephones or otherwise violated the TCPA.


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JURISDICTION AND VENUE

7. CCL admits the allegations contained in Paragraph 7 of the Complaint to the

extent that they allege that this Court has federal question subject matter jurisdiction in actions

alleging violations of the TCPA, but otherwise denies any remaining allegations in Paragraph 7

and denies that it has violated the TCPA or engaged in any other wrongdoing vis-à-vis the

Plaintiffs that would give rise to a legal action.

8. CCL admits that Plaintiffs allege that venue is proper in this District Court, but

otherwise denies or is without knowledge as to the veracity of the allegations contained in

Paragraph 8 of the Complaint and therefore denies the same.

PARTIES AND OTHER ENTITIES

9. CCL is without knowledge or information sufficient to form a belief as to the

truth of the allegations contained in Paragraph 9 of the Complaint, and they are therefore denied.

By way of further answer, CCL denies that it made or initiated any unsolicited telemarketing

“robo-calls” to Plaintiff Aranda’s cellular and/or residential telephones or otherwise violated the

TCPA. CCL had no direction or control over the manner or means of the political survey calls

conducted by POA; nor did CCL direct or control the particular procedures POA would follow in

conducting its political surveys.


truth of the allegations contained in Paragraph 10 of the Complaint, and they are therefore

denied. By way of further answer, CCL denies that it made or initiated any unsolicited

telemarketing “robo-calls” to Plaintiff Birchmeier’s cellular and/or residential telephones or

otherwise violated the TCPA. CCL had no direction or control over the manner or means of the

political survey calls conducted by POA; nor did CCL direct or control the particular procedures


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POA would follow in conducting its political surveys.




telemarketing “robo-calls” to Plaintiff Parkes’s cellular and/or residential telephones or







telemarketing “robo-calls” to Plaintiff Stone’s cellular and/or residential telephones or otherwise

violated the TCPA. CCL had no direction or control over the manner or means of the political

survey calls conducted by POA; nor did CCL direct or control the particular procedures POA

would follow in conducting its political surveys.

13. CCL admits only that it is a Florida corporation with its principle place of

business in Ft. Lauderdale, Florida, but denies the truth of the remainder of the allegations

contained in Paragraph 13 of the Complaint. By way of further answer, Plaintiffs references but

does not attach annual reports and a purported settlement agreement and, to the extent they exist,

are authentic or having any bearing whatsoever to this proceeding, CCL refers to these

documents for their proper interpretation and effect.

14. CCL admits that, upon information and belief, Defendant Economic Strategy

Group was a political action committee, but otherwise denies or is without knowledge as to the


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remaining allegations in Paragraph 14 and therefore denies the same. By way of further answer,

CCL refers to the documents relied on by Plaintiffs cited to in Paragraph 14 of the Complaint for

the documents’ proper interpretation and effect.


truth of the allegations contained in Paragraph 15 of the Complaint, and therefore denies the

same.



same.



same.



same.

GENERAL FACTUAL BACKGROUND

19. CCL denies the allegations contained in Paragraph 19 of the Complaint. By way

of further answer, CCL denies that it made or initiated any unsolicited telemarketing “robo-calls”

to Plaintiffs’ cellular and/or residential telephones or otherwise violated the TCPA. CCL had no

direction or control over the manner or means of the political survey calls conducted by POA;

nor did CCL direct or control the particular procedures POA would follow in conducting its

political surveys.



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political surveys.






political surveys.






political surveys.






political surveys.


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24. CCL admits that after a “call recipient” completed a political survey conducted by

POA, which is a completely separate independent entity over which CCL does not possess

ownership, direction or control, a “call recipient” may have requested to be connected to a live

CCL operator. CCL had no direction or control over the manner or means of the political survey

calls conducted by POA; nor did CCL direct or control the particular procedures POA would

follow in conducting its political surveys. CCL denies the remaining allegations contained in

Paragraph 24 of the Complaint.


of further answer, Plaintiff’s claims are barred as against VOMT and Berkley as neither

VOMT’s nor Berkley’s name was referenced, stated, declared, and/or mentioned during any of

the telephone call as reflected in the Script used by CCL for POA calls that were transferred to

CCL after an individual pressed a button on their telephone consenting to be connected to CCL.2

The Script was the only script used by CCL for POA calls that were transferred to CCL. CCL

representatives were required to use the Script, not allowed to deviate from it and did not offer or

discuss any other terms and conditions other than those set forth in the Script.


27. CCL refers to the website Plaintiffs cite in Paragraph 27 of the Complaint for the

website’s proper interpretation and effect, and not Plaintiffs’ alleged interpretation thereof.

Moreover, the allegations in Paragraph 27 are irrelevant to the telephone calls that Plaintiffs

allege in the Complaint.


of further answer, Plaintiff’s claims are barred as against VOMT and Berkley as neither

2 See Exhibit A, Caribbean Cruise Line Script (“Script”).


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VOMT’s nor Berkley’s name was referenced, stated, declared, and/or mentioned during any of

the telephone call as reflected in the Script used by CCL for POA calls that were transferred to

CCL after an individual pressed a button on their telephone consenting to be connected to CCL.

The Script was the only script used by CCL for POA calls that were transferred to CCL. CCL

representatives were required to use the Script, not allowed to deviate from it and did not offer or

discuss any other terms and conditions for the free cruise other than those set forth in the Script.




same.



same.




FACTS RELATING TO NAMED PLAINTIFFS






political surveys.


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truth of the allegations contained in Paragraph 36 of the Complaint because CCL did not make

the telephone call described therein, nor is CCL alleged to have made the telephone call received

by Plaintiff Aranda, and as such, the allegations in Paragraph 36 are therefore denied. By way of

further answer, CCL had no direction or control over the manner or means of the political survey

calls conducted by POA, nor did CCL direct or control the particular procedures POA would

follow in conducting its political surveys.




by Plaintiff Birchmeier, and as such, the allegations in Paragraph 37 are therefore denied. By

way of further answer, CCL had no direction or control over the manner or means of the political




truth of the allegations contained in Paragraph 38 of the Complaint, because CCL did not make

the telephone calls described therein, nor is CCL alleged to have made the telephone call

received by Plaintiff Parkes, and as such, the allegations in Paragraph 38 are therefore denied. By

way of further answer, CCL had no direction or control over the manner or means of the political


would follow in conducting its political surveys, including POA’s procedures for removing a

consumer from a call list.



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by Plaintiff Stone, and as such, the allegations in Paragraph 39 are therefore denied. By way of

further answer, CCL had no direction or control over the manner or means of the political survey

calls conducted by POA; nor did CCL direct or control the particular procedures POA would

follow in conducting its political surveys.


of further answer, CCL denies that it made or initiated any unsolicited telemarketing “calls” to

Plaintiffs’ cellular and/or residential telephones or otherwise violated the TCPA. CCL had no

direction or control over the manner or means of the political survey calls conducted by POA,


political surveys.

CLASS ALLEGATIONS

41. CCL admits that Plaintiffs purport to bring this action as a class action and

attempt to define a “Cellular Telephone Class,” but CCL denies that a class can be certified as

well as the remaining allegations contained in Paragraph 41 of the Complaint. By way of further

answer, CCL denies that it made or initiated any unsolicited telemarketing calls to Plaintiffs’

cellular and/or residential telephones or otherwise violated the TCPA. CCL had no direction or

control over the manner or means of the political survey calls conducted by POA, nor did CCL

direct or control the particular procedures POA would follow in conducting its political surveys.

42. CCL admits that Plaintiffs purport to bring a class action and attempt to define a

“Landline Telephone Class,” but CCL denies that a class can be certified as well as the

remaining allegations contained in Paragraph 42 of the Complaint. By way of further answer,


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CCL denies that it made or initiated any unsolicited telemarketing calls to Plaintiffs’ cellular

and/or residential telephones or otherwise violated the TCPA. CCL had no direction or control

over the manner or means of the political survey calls conducted by POA; nor did CCL direct or

control the particular procedures POA would follow in conducting its political surveys.

43. CCL admits that Plaintiffs purport to exclude certain people from their class

definitions, but otherwise denies the allegations contained in Paragraph 43 of the Complaint.


(a) CCL denies the allegations contained in Paragraph 44(a) of the Complaint.

(b) CCL is without knowledge or information sufficient to form a belief as to

the truth of the allegations contained in Paragraph 44(b) of the Complaint, and they are therefore

denied.

(c) CCL is without knowledge or information sufficient to form a belief as to

the truth of the allegations contained in Paragraph 44(c) of the Complaint, and they are therefore


telemarketing calls to Plaintiffs’ cellular and/or residential telephones or otherwise violated the

TCPA. CCL had no direction or control over the manner or means of the political survey calls

conducted by POA, nor did CCL direct or control the particular procedures POA would follow in

conducting its political surveys.


(a) CCL denies the allegations contained in Paragraph 45(a) of the Complaint.


calls to Plaintiffs’ cellular and/or residential telephones or otherwise violated the TCPA. CCL

had no direction or control over the manner or means of the political survey calls conducted by


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POA; nor did CCL direct or control the particular procedures POA would follow in conducting

its political surveys.

(b) CCL denies the allegations contained in Paragraph 45(b) of the Complaint.






(c) CCL denies the allegations contained in Paragraph 45(c) of the Complaint.






(d) CCL denies the allegations contained in Paragraph 45(d) of the Complaint.






(e) CCL denies the allegations contained in Paragraph 45(e) of the Complaint.




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(f) CCL denies the allegations contained in Paragraph 45(f) of the Complaint.











political surveys.


48. CCL admits that the Court entered the Order (D.E. 241) on August 11, 2014, and

that the Order (D.E. 241) speaks for itself and refers to that Order for its content, interpretation

and effect. CCL denies any remaining allegations contained in Paragraph 48 of the Complaint.

COUNT I – VIOLATION OF THE TCPA 47 U.S.C. §227(b)(1)(A)(iii) – ON BEHALF OF

PLAINTIFFS AND THE CELLULAR TELEPHONE CLASS AGAINST ALL

DEFENDANTS

49. CCL incorporates and realleges its responses to Paragraphs 1 through 48 of the

Complaint as if fully set forth herein.


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50. CCL is without knowledge or information sufficient to determine what “Agents”

Plaintiff is alleging in Paragraph 50 of the Complaint, but CCL denies all of the allegations

contained in Paragraph 50 of the Complaint as to CCL. By way of further answer, CCL denies

that it made or initiated any unsolicited telemarketing calls to Plaintiffs’ or the other members of

the Cellular Telephone Class’ cellular telephones or otherwise violated the TCPA. CCL had no



political surveys.


Plaintiff is alleging in Paragraph 51 of the Complaint, but denies all of the allegations contained

in Paragraph 51 of the Complaint as to CCL. By way of further answer, CCL denies that it made

or initiated any unsolicited telemarketing “robo-calls” to the cellular telephones of the named

Plaintiffs or any other members of the Cellular Telephone Class as defined by Plaintiffs, or






to the cellular telephones of the named Plaintiffs or any other members of the Cellular

Telephone Class defined by Plaintiffs, or otherwise violated the TCPA. CCL had no direction or

control over the manner or means of the political survey calls conducted by POA; nor did CCL

direct or control the particular procedures POA would follow in conducting its political surveys.



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of further answer, CCL denies that it made or initiated any unsolicited telemarketing calls to the

cellular telephones of the named Plaintiffs or any other members of the Cellular Telephone Class

defined by Plaintiffs, or otherwise violated the TCPA. CCL had no direction or control over the

manner or means of the political survey calls conducted by POA; nor did CCL direct or control

the particular procedures POA would follow in conducting its political surveys.

54. CCL admits that Plaintiffs purport to seek an injunction under the TCPA, but

denies that Plaintiffs are entitled to an injunction and further denies the allegations contained in

Paragraph 54 of the Complaint.


56. CCL admits that Plaintiffs purport to seek to treble the amount of damages

recoverable under the TCPA, but denies that Plaintiffs are entitled to treble damages and further

denies the allegations contained in Paragraph 56 of the Complaint.

COUNT II – VIOLATION OF THE TCPA 47 U.S.C. §227(b)(1)(B) – ON BEHALF OF

PLAINTIFF STONE AND THE LANDLINE TELEPHONE CLASS AGAINST ALL

DEFENDANTS

57. CCL incorporates and realleges its responses to Paragraphs 1 through 56 of the

Complaint as if fully set forth herein.


Plaintiff is alleging in Paragraph 58 of the Complaint, but denies the allegations contained in

Paragraph 58 of the Complaint as to CCL. By way of further answer, CCL denies that it made or

initiated any unsolicited telemarketing calls to the landline telephones of Plaintiff Stone or the

any other members of the Landline Telephone Class as defined by Plaintiffs, or otherwise

violated the TCPA. CCL had no direction or control over the manner or means of the political



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Plaintiff is alleging in Paragraph 59 of the Complaint, but CCL denies the allegations contained

in Paragraph 59 of the Complaint as to CCL. By way of further answer, CCL denies that it made

or initiated any unsolicited telemarketing “robo-calls” to the landline telephones of Plaintiff

Stone or any other members of the Landline Telephone Class as defined by Plaintiffs, or






to Plaintiff Stone or the other members of the Landline Telephone Class as defined by Plaintiffs,

or otherwise violated the TCPA. CCL had no direction or control over the manner or means of

the political survey calls conducted by POA; nor did CCL direct or control the particular

procedures POA would follow in conducting its political surveys.

61. CCL admits that Plaintiff Stone, on behalf of herself and the other members of the

Landline Telephone Class, purports to seek statutory damages under the TCPA, but denies that

Plaintiff Stone, or any other member of the Landline Telephone Class defined by Plaintiffs is

entitled to statutory damages, and further denies all remaining allegations contained in Paragraph

61 of the Complaint.

62. CCL admits that Plaintiff Stone, on behalf of herself and the other members of the

Landline Telephone Class, purports to seek an injunction under the TCPA, but denies that

Plaintiff Stone or any other member of the Landline Telephone Class defined by Plaintiffs is


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entitled to an injunction, and further denies all remaining allegations contained in Paragraph 62

of the Complaint.


of further answer, CCL denies that it made or initiated any unsolicited telemarketing calls to

Plaintiff Stone or the other members of the Landline Telephone Class defined by Plaintiffs, or




64. CCL admits that Plaintiff Stone and the other members of the Landline Telephone

Class purport to seek to treble the amount of damages recoverable under the TCPA, but denies

that Plaintiff Stone or any other member of the Landline Telephone Class defined by Plaintiffs is

entitled to treble damages, and further denies all remaining allegations contained in Paragraph 64

of the Complaint.

PRAYER FOR RELIEF

CCL denies that Plaintiffs are entitled to any relief as set forth in their “Prayer for

Relief,” including the subsections 1-4 therein.

AFFIRMATIVE DEFENSES

Plaintiffs allege that “Defendants” have illegally contacted thousands of class members

on their cellular and/or residential telephones to offer them a complimentary cruise package from

CCL in exchange for taking a political survey conducted by Political Opinions of America

(“POA”).3 Specifically, Plaintiffs allege that they received unsolicited telephone calls from POA

3. See DE 289 (the “Complaint”) at ¶1.


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on their cellular and/or landline telephones where they were offered a free cruise in exchange for

taking a political survey.4

However, CCL did not make or initiate any political survey calls, nor did it “cause” any

such political survey calls to be made or initiated by POA, to Plaintiffs, or anyone. CCL had a

contractual relationship with Economic Strategies Group (“ESG”), a survey research

organization whose operating unit is POA. ESG is a survey research company with contractual

relationships with political groups under which ESG appears to collect specifically tailored

information for those political groups through political surveys and polling. CCL was only

involved with ESG through a contractual relationship because ESG approached CCL seeking to

provide incentives for the individuals who participated in the political surveys. CCL had no

direction or control over the manner or means of the political survey calls conducted by POA,


political surveys. CCL did not create or develop any political surveys and did not otherwise

communicate with any of the political groups on whose behalf the political surveys were being

conducted.

The agreement between ESG and CCL puts to rest any further contention that the entities

are one and the same or that CCL has any right to direct or control the actions of ESG. For

example, the agreement states that ESG “is an organization that conducts public opinion surveys

and polls for political and market research purposes,”5 that ESG “solicits survey takers by

transmitting or causing to be transmitted prerecorded survey messages . . .,”6 that ESG “desires

to incentivize and thus increase survey participation by providing survey takers certain

4. See Complaint at ¶¶ 9-12. 5. See Exhibit B, Contract between ESG and CCL (the “ESG Agreement”). 6. Id.


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complimentary products and/or services,”7 that ESG is “seeking third-party entities . . . to make

available incentives or promotional items for use by [ESG] in its survey,”8 that ESG prepares the

script for the political survey campaign and its only obligation is to provide a copy of any such

script to CCL,9 that ESG is precluded from engaging in the very conduct alleged by Plaintiffs

herein,10 that all title to all data gathered in performing the political surveys remains the property

of the SRO,11 that “[n]either party is an agent of the other party . . .,” that all intellectual property

shall remain the property of ESG,12 and that the political survey call campaign shall not be

considered a “work for hire.”13

Accordingly, CCL is a separate and distinct entity from ESG and CCL had nothing to do

with ESG’s operations or the political groups with whom ESG contracts. CCL did not direct or

control the manner and/or means of ESG’s business, or the political surveys it conducts. More

specifically, CCL never had any direction or control regarding: (1) the political surveys

themselves; (2) how telephone calls are made to conduct the political surveys; (3) when

telephone calls are made to conduct the political surveys; or (4) to whom telephone calls are

made to conduct political surveys.14

Accordingly, and incorporating the foregoing, CCL states that it intends to rely upon and

otherwise preserve those and the following defenses in defense of Plaintiffs’ Complaint, and

7. Id. 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. 13. Id. 14. In any event, POA’s calls do not constitute telephone solicitations because they

were not made for the purpose of encouraging the purchase of property, goods, or services See 47 U.S.C. § 227(a)(4); Friedman v. Torchmark Corp., No. 12-CV-2837-IEG BGS, 2013 WL 1629084, *5 (S.D. Cal. Apr. 16, 2013).


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respectfully reserves the right to assert other defenses if facts learned in discovery warrant

amendment of CCL’s Affirmative Defenses. Accordingly, CCL further asserts the following

Affirmative Defenses:

FIRST AFFIRMATIVE DEFENSE

Plaintiffs fail to state a plausible claim upon which relief can be granted under any theory

of action under the TCPA because CCL did not make or initiate the telephone calls to Plaintiffs.15

SECOND AFFIRMATIVE DEFENSE

The alleged political survey calls are exempt from an action under the TCPA because the

calls qualify as research, market surveys, and/or political polling which do not involve

solicitation.16

15. 47 U.S.C. § 227(b)(1)(A). Compare this Subsection to Subsection 227(c)(5)

(allowing an “on behalf of” liability claim for solicitations to those on the national Do Not Call list). Subsection 227(c)(5) is the only section within the entire text of the TCPA where Congress chose to use the words “on behalf of”. Subsection 227(c) is not at issue in this case. See also

Ashland Hosp. Corp. v. International Brotherhood of Electrical Workers Local 575, 807 F. Supp. 2d 633 (E.D. Ky. 2011) (dismissing a complaint brought against an entity that did not make the alleged violative calls); Thomas v. Taco Bell Corp., SACV 09-01097-CJC, 2012 WL 3047351 at * 4 (C.D. Cal. June 25, 2012) (finding that Section 227(b) imposes liability only on the “maker” of the call); Mey v. Pinnacle Security, LLC, Civil Action No. 5:11CV47, 2012 WL 4009718, *4 (N.D. W. Va. Sep. 12) (finding that Section 227(b)(3) imposes liability only on the “maker” of the call); Zerson v. PT Ins. Group, No. 11 C 7919, 2012 WL 5936286 (N.D. Ill. Nov. 27) (analyzing a junk fax TCPA claim pursuant to § 227(b)(1)(C) and refusing to impose liability on the entity that did not send the alleged violative fax despite paying a third party to send the fax on its behalf); Zhu v. Dish Network, LLC, 808 F.Supp.2d 815 (E.D. Va. 2011) (concluding that the VTPPA did not impose liability on the provider whose independently controlled telemarketers violated the statute); Lary v. VSB Financial Consulting, Inc., 910 So. 2d 1280 (Ala. Civ. App. 2005) (concluding that liability may be affixed upon a person who “makes” a telephone call or “uses” a fax machine and refusing to impose liability upon a company’s promoter where there was no evidence of direct involvement in the decision to send, or in the sending of, the allegedly prohibited facsimiles); Charvart v. Echostar Satellite, LLC, 676 F. Supp. 2d 668 (S.D. Ohio 2009) appeal pending, 630 F.3d 459 (2010); Charvart v. Farmers

Insurance Columbus (2008), 178 Ohio App. 3d 118, 2008-Ohio-4353, 897 N.E.2d 167. 16. In 1992, the FCC exercised its authority granted by Congress under section

227(b)(2)(B) and adopted a rule to exempt all prerecorded calls made for a noncommercial


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THIRD AFFIRMATIVE DEFENSE

Plaintiffs have failed to state a plausible cause of action for class relief pursuant to

Federal Rule of Civil Procedure 23, in that, inter alia, the claims Plaintiffs assert cannot be

common or typical of the claims of the putative class, nor is class relief superior to other

available methods for fairly and efficiently adjudicating the claims Plaintiffs asserts warrant class

treatment. Further, the proposed class is so broad that it encompasses anyone who has ever

received a call from POA on their cellular and/or residential telephone, which then requires an

individualized showing for each call to see if the party was ever connected to CCL regarding a

complimentary cruise.17

FOURTH AFFIRMATIVE DEFENSE

Plaintiffs fail to satisfy all conditions precedent and necessary to maintaining their

claims.

FIFTH AFFIRMATIVE DEFENSE

Plaintiffs’ damages, if any, and none being admitted, were not caused by CCL, but by

another person or entity, including Plaintiffs, for whom CCL is not responsible and over whose

activities CCL exercises no control and/or has no right to control.

purpose. See 47 C.F.R. § 64.1200(a)(2)(ii). In creating the exemption, the FCC stated that “[w]e find that the exemption, for non-commercial calls from the prohibition on prerecorded messages to residences includes calls conducting research, market surveys, political polling or similar activities which do not involve solicitation as defined by our rules.” Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991, Rep. and Order, 7 FCC Rcd. 8752 (1992).

16. Here, determining whether the class definitions satisfy Rule 23 requires addressing the central issue of liability to be decided in the case. See Comcast Corp. et al. v.

Behrend et al., Case No. 11-864, 133 S.Ct. 1426, 185 L.Ed.2d 515 (March 27, 2013). Determining a membership in the class would essentially require a mini-hearing on the merits of each case, which courts have held to be improper. See Forman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995) quoting Hagen v. Winnemucca, 108 F.R.D. 61, 63 (D. Nev. 1985); and Dunn v. Midwest Buslines, Inc., 94 F.R.D. 170, 171-72 (E.D. Ark. 1982).


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SIXTH AFFIRMATIVE DEFENSE

CCL is not liable for the acts of the third party(ies) making and/or initiating the call(s)

and recovery, if any, should be from the third party(ies) that made and/or initiated the telephone

call(s), not CCL.18

SEVENTH AFFIRMATIVE DEFENSE

CCL is not liable for acts of a third party(ies) that made the alleged telephone call(s)

because such party was, at all relevant times, separate and distinct from CCL and CCL has no

ownership, direction or control of any such party(ies).19

EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred by the doctrine of collateral estoppel.

NINTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred by the doctrine of waiver because, among other things,

after completing the political survey, Plaintiffs and potential class members expressly consented

to being connected to one of CCL’s representatives in order to obtain their free cruise.20

TENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred by the exceptions provided under the TCPA, including,

but not limited to, the political purpose exception.21

18. See Mais v. Gulf Coast Collection Bureau, Inc., No. 11-61936-CIV, 2013 WL

1899616, *12 (S.D. Fla. May 8, 2013); Applestein v. Fairfield Resorts, No. 0004, Sept. Term, 2007, 2009 WL 5604429 (Md. Ct. Spec. App. July 8, 2009); see also Taco Bell Corp., 2012 WL 3047351 at * 4; Mey, 2012 WL 4009718 at *4.

19. See supra fn 14; 17. 20. Thrasher-Lyon v. Illinois Farmers Ins. Co., 861 F. Supp. 2d 898, 904-05 (N.D. Ill.

2012)) 21. See supra fn 15.


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ELEVENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred by their consent to be called on their cellular and/or

residential telephones.22

TWELFTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred by the applicable statute of limitations.

THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred because Plaintiffs did not suffer any actual damages.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred for failure to join necessary and indispensable parties.

FIFTEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims for treble damages are barred because CCL did not engage in knowing

or willful misconduct.

SIXTEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred because the imposition on CCL of statutory damages and/or

exemplary/punitive damages under the TCPA would violate the Due Process provisions of both

the United States Constitution and the Florida Constitution.

SEVENTEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred because CCL did not make or initiate the alleged

political survey calls that are the subject of the Complaint, did not authorize any individual or

entity to make the alleged calls on its behalf, did not control the manner and/or means by which

22. See supra fn 19.


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the alleged calls were made, and did not ratify the actions of any third party making the alleged

calls.23

EIGHTEENTH AFFIRMATIVE DEFENSE

CCL complied with all applicable statutory, regulatory, and common law requirements

and accordingly, Plaintiffs’ claims are barred by CCL’s compliance with all applicable state,

federal, and local laws and regulations.

NINETEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred because the TCPA violates CCL’s First Amendment right to

free speech. Specifically, the TCPA improperly inhibits the exercise of constitutionally

protected speech.

TWENTIETH AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred because the TCPA, within the context of a class action, is

violative of CCL’s constitutional rights under the Eighth Amendment prohibition against

excessive fines and cruel and unusual punishment.

TWENTY-FIRST AFFIRMATIVE DEFENSE

Maintenance of this action as a class action is inconsistent with the legislative intent of

the TCPA in that the United States Congress intended that claims under the TCPA proceed as

individual actions.24

23. See supra fn 14; 17. 23. The TCPA’s legislative history supports a conclusion that class actions were not

intended, but rather that Congress envisioned the statute as providing a private right of action to

consumers receiving the specifically prohibited communications, allowing them to pursue the

statutory damages of $500 in small claims court without an attorney. In holding that a class

action could not proceed under the TCPA, one federal district court determined that “the

statutory remedy is designed to provide adequate incentive for an individual plaintiff to bring suit


25

TWENTY-SECOND AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred by the Doctrine of Unclean Hands.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred by the Doctrine of Estoppel.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

To the extent Plaintiffs seek to hold CCL liable under the TCPA for telephone calls it did

not make and/or initiate, the TCPA does not provide for any such liability, including, but not

limited to, strict “on behalf of” liability.25

TWENTY-FIFTH AFFIRMATIVE DEFENSE

To the extent Plaintiffs seek to hold CCL liable under any theory of vicarious liability, no

such claims have been pleaded nor does the law provide for such a remedy.26

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiffs have failed to mitigate their damages, if any, based in part on Plaintiffs’ failure

to notify that calls were made to their cellular and/or residential telephones and failure to request

that the calls cease.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred by the doctrine of ratification.

on his own behalf...A class action would be inconsistent with the specific and personal remedy

provided by Congress to address the minor nuisance of unsolicited facsimile advertisements. See

Forman, 164 F.R.D. 400, at 404-05.

25. See supra fn 14; 17. 26. See supra fn 14; 17.


26

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred because CCL did not use an automatic telephone dialing

system as defined under the TCPA.27

TWENTY-NINTH AFFIRMATIVE DEFENSE

The calls for which Plaintiffs complain do not constitute telephone solicitations because

they were not made for the purpose of encouraging the purchase of property, goods, or services.28

THIRTIETH AFFIRMATIVE DEFENSE

The calls for which Plaintiffs complaint were political surveys and are exempt from the

general prohibitions on automated commercial calls because they do not include or introduce an

unsolicited advertisement or constitute a telephone solicitation.29

THIRTY-FIRST AFFIRMATIVE DEFENSE

The calls for which Plaintiffs complain are not governed by the TCPA because the calls

were made by a tax exempt nonprofit organization like POA and the SROs.

THIRTY-SECOND AFFIRMATIVE DEFENSE

Plaintiffs’ claims may be barred by any or all of the affirmative defenses contemplated by

Rule 8(c) of the Federal Rules of Civil Procedure. To the extent Plaintiffs’ claims may be barred

by one or more of the affirmative defenses not specifically cited above, CCL incorporates all

such defenses set forth in, or contemplated by, Rule 8(c).

27. See 47 U.S.C. §227(b)(1)(A)(iii); Kramer v. Autobytel, Inc., 759 F. Supp. 2d

1165, 1171 (N.D. Cal. 2010). 28. See 47 U.S.C. § 227(a)(4); Friedman, 2013 WL 1629084 at *5. 29. See supra fn 27.


27

THIRTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff’s claims are barred against VOMT as VOMT’s name was not referenced, stated,

declared, and/or mentioned during any of the telephone calls.30 The Script was the only script

used for the telephone calls described in the Complaint.

RESERVATION

CCL reserves the right to amend this Answer up and through the time of trial to assert

any additional affirmative defenses, when and if, during the course of its investigation, discovery

or preparation for trial, it becomes appropriate to assert such affirmative defenses.

WHEREFORE, Defendant, Caribbean Cruise Line, Inc., respectfully requests that this

Court enter judgment against Plaintiffs and in favor of CCL, dismiss this action with prejudice,

deny Plaintiffs’ request for class certification, award CCL its reasonable attorneys’ fees and costs

incurred in defending this action, and for such other relief this Court deems just and proper.

Dated: May 27, 2015 GREENSPOON MARDER, P.A.

/s/Jeffrey Backman

RICHARD W. EPSTEIN (Fla. Bar No. 229091) (Admitted Pro Hac Vice) [email protected] REBECCA F. BRATTER (Fla. Bar No. 0685100) (Admitted Pro Hac Vice) [email protected] JEFFREY A. BACKMAN (Fla. Bar. No. 662501) (Admitted Pro Hac Vice) [email protected] GREENSPOON MARDER, P.A. 200 E. Broward Blvd. Suite 1800

30. See Exhibit A.


28

Ft. Lauderdale, FL 33301 954-491-1120

954-343-6958 (facsimile) - and-

Timothy A. Hudson TABET DiVITO & ROTHSTEIN, LLC 209 S. LaSalle Street, Suite 700 Chicago, Illinois 60604 Telephone: (312) 762-9450 Facsimile: (312) 762-9451 Firm No.: 38234 [email protected]

Attorneys for Defendant

Caribbean Cruise Line, Inc.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true and correct copy of the foregoing was electronically filed with the Clerk of the Court via CM/ECF thereby notifying the following parties of record below on this 27th day of May, 2015. Jonathan I. Loevy Email: [email protected] Michael I. Kanovitz Email: [email protected] Arthur R. Loevy Email: [email protected] Scott R. Rauscher Email: [email protected] Loevy & Loevy 312 North May Street Suite 100 Chicago, IL 60607

Brian J. Wanca George Lang Ryan M. Kelly Anderson & Wanca 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 (847) 368-1500 Email: [email protected] Email: [email protected] Email: [email protected]

Brian P. O'Meara Email: [email protected] Forde Law Offices, LLP 111 West Washington Street Suite 1100 Chicago IL 60602

Christopher Lillard Dore Eve -Lynn J. Rapp Jay Edelson Rafey S. Balabanian Edelson LLC 350 North LaSalle Street Suite 1300 Chicago, IL 60654 (312) 589-6370


29

22610457v1

Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]

David Bradley Helms Lewis Rice & Fingersh 600 Washington Avenue Suite 2500 St. Louis, MO 63101 (314) 444-7852 Email: [email protected]

M. Peebles Harrison Rose Harrison & Gilreath, P.C. 700 Blue Jay Street Suite 1 Kill Devil Hills, NC 27948 252-480-1414 Fax: 252-480-1765 Email: [email protected]

John S. Steward Steward Law Firm LLC 5201 Hampton Ave St Louis, MO 63109 (314) 353-1001 Fax: (314) 862-9895 Email: [email protected]

Nathan D. Leming Steven P. Sanders , Sr. WILLIAMS AND VENKER 100 N. Broadway 21st Floor St. Louis, MO 63102 314 345-5000 Fax: 314 345-5055 Email: [email protected] Email: [email protected]

Max G. Margulis Margulis Law Group 28 Old Belle Monte Dr. Chesterfield, MO 63017 (636) 536-7022 Fax: 636-536-6652 Email: [email protected]

Joseph V. Neill 5201 Hampton Avenue St. Louis, MO 63109 (314) 353-1001

Scott David Owens Scott D. Owens, Esq. 664 E Hallandale Beach Blvd Ft Lauderdale, FL 33309 954-589-0588 Fax: 954-337-0666 Email: [email protected]

/s/ Jeffrey A. Backman JEFFREY A. BACKMAN


Case: 1:12-cv-04069 Document #: 301-1 Filed: 05/27/15 Page 1 of 10 PageID #:5842

in the united states district court for the ...classaction.kccllc.net/documents/cbh0001/cbh_ccl...

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