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.
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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.
4. CCL denies the allegations contained in Paragraph 4 of the Complaint. By way of
further answer, Paragraph 4 sets forth Plaintiffs’ interpretation of “federal law,” to which CCL
refers for its proper citation, interpretation, and effect.
5. CCL denies the allegations contained in Paragraph 5 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.
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.
10. CCL is without knowledge or information sufficient to form a belief as to the
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.
11. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 11 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 Parkes’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.
12. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 12 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 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.
15. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 15 of the Complaint, and therefore denies the
same.
16. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 16 of the Complaint, and therefore denies the
same.
17. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 17 of the Complaint, and therefore denies the
same.
18. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 18 of the Complaint, and therefore denies the
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.
20. CCL denies the allegations contained in Paragraph 20 of the Complaint. By way
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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.
21. CCL denies the allegations contained in Paragraph 21 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.
22. CCL denies the allegations contained in Paragraph 22 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.
23. CCL denies the allegations contained in Paragraph 23 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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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.
25. CCL denies the allegations contained in Paragraph 25 of the Complaint. By way
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.
26. CCL denies the allegations contained in Paragraph 26 of the Complaint.
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.
28. CCL denies the allegations contained in Paragraph 28 of the Complaint. By way
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.
29. CCL denies the allegations contained in Paragraph 29 of the Complaint.
30. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 30 of the Complaint, and therefore denies the
same.
31. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 31 of the Complaint, and therefore denies the
same.
32. CCL denies the allegations contained in Paragraph 32 of the Complaint.
33. CCL denies the allegations contained in Paragraph 33 of the Complaint.
34. CCL denies the allegations contained in Paragraph 34 of the Complaint.
FACTS RELATING TO NAMED PLAINTIFFS
35. CCL denies the allegations contained in Paragraph 35 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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36. CCL is without knowledge or information sufficient to form a belief as to the
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.
37. CCL is without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 37 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 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
survey calls conducted by POA; nor did CCL direct or control the particular procedures POA
would follow in conducting its political surveys.
38. CCL is without knowledge or information sufficient to form a belief as to the
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
survey calls conducted by POA; nor did CCL direct or control the particular procedures POA
would follow in conducting its political surveys, including POA’s procedures for removing a
consumer from a call list.
39. CCL is without knowledge or information sufficient to form a belief as to the
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truth of the allegations contained in Paragraph 39 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 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.
40. CCL denies the allegations contained in Paragraph 40 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.
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.
44. CCL denies the allegations contained in Paragraph 44 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
denied. 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.
45. CCL denies the allegations contained in Paragraph 45 of the Complaint.
(a) CCL denies the allegations contained in Paragraph 45(a) 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
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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.
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.
(c) CCL denies the allegations contained in Paragraph 45(c) 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.
(d) CCL denies the allegations contained in Paragraph 45(d) 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.
(e) CCL denies the allegations contained in Paragraph 45(e) 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
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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.
(f) CCL denies the allegations contained in Paragraph 45(f) 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.
46. CCL denies the allegations contained in Paragraph 46 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.
47. CCL denies the allegations contained in Paragraph 47 of the Complaint.
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
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.
51. CCL is without knowledge or information sufficient to determine what “Agents”
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
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.
52. CCL denies the allegations contained in Paragraph 52 of the Complaint. 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 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.
53. CCL denies the allegations contained in Paragraph 53 of the Complaint. By way
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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.
55. CCL denies the allegations contained in Paragraph 55 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.
58. CCL is without knowledge or information sufficient to determine what “Agents”
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
survey calls conducted by POA; nor did CCL direct or control the particular procedures POA
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would follow in conducting its political surveys.
59. CCL is without knowledge or information sufficient to determine what “Agents”
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
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.
60. CCL denies the allegations contained in Paragraph 60 of the Complaint. By way
of further answer, CCL denies that it made or initiated any unsolicited telemarketing “robo-calls”
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.
63. CCL denies the allegations contained in Paragraph 63 of the Complaint. By way
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
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.
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,
nor did CCL direct or control the particular procedures POA would follow in conducting its
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
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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.
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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.
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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.
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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
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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
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