Bonner et al v. Santander Consumer USA Inc

Filing 159

MEMORANDUM Opinion and Order: Defendant Santander Consumer USA, Inc.'s Motion for Summary Judgment in Case No. 11-cv-8987 (Dkt. 167 in that case) is denied; Santander's Motion for Summary Judgment in Case No. 12-cv-9431 (Dkt. 94 in t hat case) is granted in part as explained in the Memorandum Opinion and Order entered herewith, and otherwise denied; and Plaintiff Faye Levins' Motion for Class Certification in Case No. 12-cv-9431 (Dkt. 100 in that case) is denied. This matter is set for status on November 1, 2016, at 9:30 a.m. Signed by the Honorable Charles P. Kocoras on 10/14/2016. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HENRY ESPEJO, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SANTANDER CONSUMER USA,
INC., an Illinois corporation
Defendant.
FAYE LEVINS, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SANTANDER CONSUMER USA,
INC., an Illinois corporation
Defendant.

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Case No. 11 C 8987
Judge Charles P. Kocoras

Case No. 12 C 9431
Judge Charles P. Kocoras

MEMORANDUM OPINION AND ORDER
CHARLES P. KOCORAS, U.S. District Judge:
Now before the Court are Defendant Santander Consumer USA, Inc.’s Motions
for Summary Judgment in Case Nos. 11-cv-8987 and 12-cv-9431, and Plaintiff Faye
Levins’ Motion for Class Certification in Case No. 12-cv-9431. For the reasons
below, Santander’s Motion for Summary Judgment in Case No. 11-cv-8987 is denied,
Santander’s Motion for Summary Judgment in Case No. 12-cv-9431 is granted in part,
and Levins’ Motion for Class Certification in Case No. 12-cv-9431 is denied.

BACKGROUND
These consolidated class actions raise claims against Defendant Santander
Consumer U.S.A., Inc. (“Santander”) by two Plaintiffs (Henry Espejo and Faye Levins)
for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et
seq. Espejo’s class action was originally filed against Santander in this district on
December 19, 2011, by a different plaintiff (Tercia Pereira) alleging violations of the
TCPA individually and on behalf of a putative nationwide class and sub-class. See
Dkt. 1 in Case No. 11-cv-8987 (“8987 Dkt.”). By stipulation of the parties, an
amended complaint followed on August 8, 2012, substituting Espejo as the plaintiff in
that case, individually and as the new representative of the same nationwide class and
sub-class. See 8987 Dkts. 27-30.
Meanwhile, on June 5, 2012, a different plaintiff (Arica Bonner) filed a separate
action against Santander in the Northern District of Alabama, alleging violations of the
TCPA and other claims. See Dkt. 1 in Case No. 12-cv-9431 (“Dkt.”). An amended
complaint followed there as well, adding Levins and seven other plaintiffs, again
individually and on behalf of a putative nationwide class. See Dkt. 4. Following the
dismissal of five of those plaintiffs, the action was transferred to this district by consent
of the remaining parties, and then reassigned to this Court as related to Espejo’s action
in December 2012. See Dkts. 15, 25, 29, 33, 36-37. All other plaintiffs and claims in
Levins’ action were then voluntarily dismissed (see Dkts. 78, 82, 90), leaving only
Levins’ and Espejo’s TCPA claims, individually and on behalf of putative nationwide
classes and subclasses in both cases.
2

Both Plaintiffs claim that Santander dialed their respective cell phone numbers to
contact them regarding their outstanding auto loans in violation of the TCPA.
According to Espejo and Levins, such calls by Santander violated the TCPA because
they were made using an automatic telephone dialing system (“ATDS”) without first
obtaining Espejo’s or Levins’ consent to contact them at those numbers. See Dkt. 123,
at 1. Santander disputes both assertions—that it lacked consent to contact Espejo and
Levins at the cell phone numbers at issue, and that it used an ATDS system to do
so−and now seeks summary judgment in its favor on the TCPA claims against it in both
actions on both of these grounds. See Dkt. 94. Levins, in turn, seeks certification of
her alleged nationwide class and subclass pursuant to Fed. R. Civ. P. 23(b)(3). See
Dkt. 100. For the following reasons, Santander’s motion for summary judgment is
granted as to one of Levins’ three telephone numbers (the 6954 number); Santander’s
motions for summary judgment are otherwise denied; and Levins’ motion for class
certification is also denied.
DISCUSSION
I.

Santander’s Motions for Summary Judgment
As both sides agree, Santander’s liability under the TCPA depends on whether:

(1) it had obtained each Plaintiff’s consent to be contacted at the cellphone numbers at
issue, and (2) it used an ATDS to make those calls. Dkt. 96, at 6, 12; Dkt. 123, at 6.
As explained below, each Plaintiff’s consent is disputed with respect to one or more of
the numbers at issue, and Santander has failed to show that its “Aspect Telephone
System” is not an ATDS under current law. Summary judgment is thus precluded.
3

A.

Consent

There is no dispute that Santander contacted Levins at three different cellphone
numbers (ending in 6954, 9678, and 6074) to inquire about her outstanding auto loan.
Dkt. 124, ¶ 34. It is also undisputed that Levins had previously consented to being
contacted at the 6954 number, by listing that number on her credit application. Id. at
¶¶ 35-37. Santander’s motion for summary judgment on Levins’ TCPA claim is
therefore granted as to the 6954 number. Contrary to Santander’s insistence, however,
Levins’ consent to be contacted at the remaining two numbers is plainly disputed.
As to Levins’ 9678 number, both sides agree that Santander placed four calls to
that number (on May 4, 7, 10, and 14, 2012) before Levins gave Santander her consent
for that number on May 14, 2012. Dkt. 124, ¶¶ 38-39. As to these four calls,
Santander has failed to show “the prior express consent of the called party” required by
47 U.S.C. § 227(b)(1)(A). The parties also agree that Santander placed nineteen calls
to Levins’ 6074 number between June 20 and August 11, 2009, but again dispute
whether these calls were made “without her permission.” Dkt. 138, ¶ 6. For its part,
Santander points to an agent’s “activity notes” of a call it received from this number on
March 27, 2009, which include the notation “IVR1’s Home.” Id. at ¶ 3. According to
Santander, such a notation indicates that “Levins had informed the agent that this
‘home’ telephone number was a good number on which to contact her.” Dkt. 124,
¶ 44. But Levins contends that later activity notes dated August 12, 2009, stating that
“verifications were required for Faye Levins and were completed” on that date, indicate
her first consent for Santander to use her 6074 number. Dkt. 123, at 3.
4

To support this contention, Levins points to Santander’s admission that an
indication that “verification was performed” in an agent’s activity notes “signifies that a
customer confirmed to the Santander associate that the customer’s contact information
is correct.” Dkt. 138, ¶ 5. From this, Levins argues that Santander’s activity notes
suggest that no “verification” for her 6074 number was performed before August 12,
2009—when “verifications were required for Faye Levins and were completed”—since
Santander’s earlier March 27 activity notes state that “no verifications were required,”
suggesting that none were performed at that earlier time. Dkt. 123, at 3, 8-9 (asserting
an “utter lack of clarity on this issue”). Santander attempts to defuse this factual
dispute by explaining that “verifications only were required when an account was a
certain number of days past due,” and “[e]ven though ‘no verifications were required’
on March 27, 2009, the notes indicate that the agent did ask her on that call whether the
6074 number was a ‘home’ number and whether it was a good number to contact her.”
Dkt. 138, ¶ 3. But the documents are inconclusive on this point. In short, the Court
cannot conclude on summary judgment, where reasonable inferences must be drawn in
Levins’ favor (or on class certification, where such individualized consent issues
similarly predominate, as discussed below) that Santander’s records conclusively
establish the fact or timing of the called party’s consent to be contacted in the future.
The record regarding Espejo’s consent to be contacted at his 1411 number is
similarly controverted. Santander claims (and Espejo disputes) that on November 4,
2009, “Mr. and Mrs. Espejo together made a call to Santander using the 1411 telephone
number,” “Mrs. Espejo agreed that Santander could talk to Mr. Espejo about her debt,”
5

and “Santander obtained Mr. Espejo’s confirmation that the 1411 telephone number
was the appropriate telephone number at which to reach him.” Dkt. 124, ¶¶ 13-17.
Santander bases this latter contention of Espejo’s consent to be contacted at his 1411
number on the following deposition testimony about his conversations with Santander:
Q.

Did they ever say in sum and substance, is this a good contact number for
you, Mr. Espejo?

A.

Oh, for me?

Q.

Yes.

A.

Yeah, they would ask me, Can we call you on this number?

Q.

What did you say?

A.

I said yes. I mean, it's my number.

Dkt. 126-5, at 74; Dkt. 124, ¶ 16 (citing same).
Espejo argues that this testimony is “vague and inconclusive.” Dkt. 123, at
10-11. He points out that it is “unclear when this conversation occurred,” and insists
that “he was only affirming that the -1411 number was his phone number, not that
Santander could call him on it,” id., as he later clarified in the same deposition:
Q.

Do you remember counsel asking you a question about whether someone
from Santander had said, Can we contact you on that number? Do you
remember him asking you that?

A.

Yes.

Q.

Do you remember what you said in response to that?

A.

No, they can’t contact me on that number. Two different questions.
*

Q.

*

*

When they asked you, is this your contact number, you answered “yes”?
6

A.

Yes, this is Henry Espejo.

Q.

You meant that that was your number?

A.

Yes. That was my number.

Q.

When they asked you, Can we contact you on this number, did you say
“yes”?

A.

No.

Q.

Would you have said “yes”?

A.

No.

Q:

Did you ever want Santander to contact you on that phone number?

A:

No.

Q.

So you misunderstood his question, then, if you said “yes” to that?

A.

Yes, yes. I would – that’s what I meant, you know.

Dkt. 126-5, at 137-38; Dkt. 124, ¶ 16 (citing same).
Once again, Santander attempts to defuse this factual dispute, this time arguing
that Espejo’s later deposition answers to his own lawyer’s questions, after first “taking
a break with his lawyer,” are not “credible.” Dkt. 136, at 10-11. But credibility
determinations are for a factfinder. McCann v. Iroquois Mem. Hosp., 622 F.3d 745,
752 (7th Cir. 2010) (“The court may not weigh the evidence or decide which testimony
is more credible.”) Nor is there any “evidentiary ban on conflicting testimony.”
Cocroft v. HSBC Bank USA, N.A., 796 F.3d 680, 687 (7th Cir. 2015). Where (as here)
“the change is plausible and the party offers a suitable explanation such as confusion,
mistake, or lapse in memory, a change in testimony affects only its credibility, not its
admissibility.” McCann, 622 F.3d at 751 (citations, internal quotation marks omitted).
7

And in any event, as Espejo correctly argues, the testimony on which Santander
relies so heavily is non-specific as to the date on which Espejo supposedly consented to
being called on his 1411 number. See Dkt. 126-5, at 74 (“Did they ever say . . . ?”). It
therefore fails to establish “the prior express consent” that the statute requires. See 47
U.S.C. § 227(b)(1)(A). Nor does it address Espejo’s additional testimony claiming
that he repeatedly asked Santander not to call him on that number. See Dkt. 126-5, at
97, 143-44. And while Santander similarly dismisses these claims as incredible,
uncorroborated, and inconsistent with its records (Dkt. 96, at 10; Dkt. 136, at 10-12;
Dkt. 138, ¶ 17), these criticisms once again go to its weight—which a factfinder must
assess—not its admissibility or sufficiency to create a factual dispute.
B.

ATDS

Santander’s alternative ground for summary judgment asserts, not the consent of
the called parties, but the equipment it used to call them. Santander argues that its
“Aspect Telephone System” does not constitute the ATDS (automatic telephone dialing
system) required to trigger liability under the TCPA for two reasons: (1) it “lacked the
capacity to dial numbers stored or produced by a random or sequential number
generator – an express statutory requirement of an ATDS,” and (2) it “relied on
customer service agents clicking buttons to dial Espejo’s and Levins’ cell phone
numbers from a manually assembled list – human intervention that takes Santander’s
telephone system outside the ATDS definition.”

Dkt. 96, at 1.

According to

Santander, both features are independently “fatal to Plaintiffs’ TCPA claims.” Id.
The Court disagrees.
8

As for the “human intervention” required by Santander’s Aspect system, its own
description of that system reveals that there is little to speak of.

According to

Santander, its “dialer operations team” “uploads” a “file” containing a
“criteria-generated list” of telephone numbers derived from factors “such as account
behavior scores, account balances, new loan status, days past due and amounts past
due.” Dkt. 96, at 5. And “when agents log-in and press buttons indicating their
availability,” the Aspect system’s “dialer” “responds to these agent-initiated signals by
dialing numbers from the uploaded list, using an algorithm designed to efficiently
match available agents to answered calls.” Id. Thus, according to Santander’s own
description, its Aspect “dialer”—not the agents—makes the calls “by dialing numbers
from the uploaded list.” That “some act of human agency occurs at some point in the
process” does nothing to place Santander’s automated “dialer” beyond the TCPA’s
reach, since a person “will always be a but-for cause of any machine’s action.” See In
re Collecto, Inc., 14-MD-02513-RGS, 2016 WL 552459, at *4 (D. Mass. Feb. 10,
2016) (emphasis in original); Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2753, 2014 WL
7005102, at *5 n.10 (N.D. Ill. Dec. 11, 2014)). As the Johnson court explained,
Every ATDS requires some initial act of human agency – be it
turning on the machine or pressing “Go.” It does not follow,
however, that every subsequent call the machine dials – or
message it sends – is a product of that human intervention. There
is some evidence to suggest that [defendant’s system] can pull
numbers and dial them without a person ordering a specific
system message. . . . That is sufficient to defeat Yahoo!’s motion
for summary judgment.
Johnson, 2014 WL 7005102, at *5. So too here.
9

Santander’s second ground for distinguishing its Aspect “dialer”—that it “lacked
the capacity to dial numbers stored or produced by a random or sequential number
generator”—is also insufficient. Indeed, there is no dispute that Santander’s Aspect
“dialer” functions as a “predictive dialer,” which the Federal Communications
Commission has ruled constitutes an ATDS for purposes of the TCPA, regardless of
whether it uses “a random or sequential number generator” as recited in the TCPA.
See Dkt. 96, at 12-13; Dkt. 123, at 12-15; Dkt. 136, at 13-15; Dkt. 138, ¶¶ 23-24. As a
sister court recently explained:
The TCPA defines an autodialer as “equipment which has the
capacity—(A) to store or produce telephone numbers to be called,
using a random or sequential number generator; and (B) to dial
such numbers.” 47 U.S.C. § 227(a)(1). In 2003, the FCC
explained that while previous autodialers generated random
numbers to call, “the evolution of the teleservices industry has
progressed to the point where using lists of numbers is far more
cost effective.” In Re Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14092
(2003). So a predictive dialer, which “has the capacity to store or
produce numbers and dial those numbers at random, in sequential
order, or from a database of numbers,” id. at 14091, “constitutes
an automatic telephone dialing system and is subject to the
TCPA’s restrictions on the use of autodialers,” 23 F.C.C. Rcd. at
566. In other words, an autodialer “has the specified capacity to
generate numbers and dial them without human intervention
regardless of whether the numbers called are randomly or
sequentially generated or come from calling lists.” In the
Matter of Rules & Regulations Implementing the Tel. Consumer
Prot. Act of 1991, 27 F.C.C. Rcd. 15391, 15932 n.5 (2012).
Wright v. Nationstar Mortg., LLC, No. 14 C 10457, 2016 WL 4505169, at *10 (N.D. Ill.
Aug. 29, 2016) (emphasis added). Santander nevertheless asks the Court to disregard
these FCC rulings, but Seventh Circuit authority squarely precludes such a departure.
10

Even Santander concedes that the Hobbs Act requires this Court to “give weight”
to these FCC rulings. Dkt. 96, at 13; see also 28 U.S.C. §§ 2341 et seq. The Seventh
Circuit has reinforced this requirement, admonishing that the Hobbs Act “reserves to
the courts of appeals the power ‘to enjoin, set aside, suspend (in whole or in part), or to
determine the validity of’ all final FCC orders.” C.E. Design Ltd. v. Prism Bus. Media,
Inc., 606 F.3d 443, 446, 449 n.5 (7th Cir.2010) (citing 28 U.S.C. § 2342(1) and 47
U.S.C. § 402(a)). District courts within this circuit have heeded this warning in cases
challenging the very FCC rulings that Santander contests here,1 including in a case
against Santander itself, where the court described its argument urging rejection of this
FCC interpretation as “perilously close to violating Fed. R. Civ. P. 11.” Nelson v.
Santander Consumer USA, 931 F. Supp. 2d 919, 928 (W.D. Wisc. 2013). The Nelson
court went on to hold that Santander’s Aspect dialer is an ATDS within the scope of the
TCPA, although that decision was later vacated by stipulation of the parties. See id;
2013 WL 5377280, at *1 (W.D. Wis. June 7, 2013). Santander now resists the same
holding here, pointing to a more recent appeal of various FCC rulings, including
“whether a ‘predictive dialer’ still must have the requisite ‘capacity’ to use a random or
sequential number generator to be considered an ATDS under the statute.” Dkt. 136,
at 14 (citing ACA Int’l v. FCC, Appeal No. 15-1211 (D.C. Cir. filed July 10, 2015).
See, e.g., Schumacher v. Credit Protection Ass’n, No. 4:13-cv-00164, 2015
WL 5786139, at *6-8 and n.5 (S.D. Ind. Sept. 30, 2015) (“In general, a district court
gives great weight, if not controlling weight, to final decisions of the FCC
implementing and interpreting the TCPA.” (quoting Sterk v. Path, Inc., 46 F. Supp. 3d
813, 819 (N.D. Ill. 2014) (citing CE Design)); Johnson, 2014 WL 7005102, at *3 (“the
TCPA and Hobbs Act bind me to the FCC’s interpretation”); Griffith v. Consumer
Portfolio Serv., Inc., 838 F. Supp. 2d 723, 726 (N.D. Ill. 2011) (same).
1

11

Given the both Hobbs Act and Seventh Circuit authority requiring district courts
to adhere to final FCC rulings, this Court joins those in this circuit and elsewhere in
holding that a predictive dialer such as Santander’s Aspect system falls within the scope
of the TCPA. See, e.g., Schumacher, 2015 WL 5786139, at *6-8 (citing cases). This
holding disposes of all calls discussed above, including the four calls to Levins’ 9678 in
May 2012, which both sides agree were made with Santander’s Aspect dialer manually,
rather than using its “predictive dialer” mode. Dkt. 124, ¶ 39; Dkt. 136, at 2, 9-10.
Under the FCC’s controlling interpretation, the pivotal inquiry is whether the dialing
system had the “capacity” to dial numbers automatically, regardless of whether the calls
were made manually or using the system’s autodialer or predictive dialer features. See
Johnson, 2014 WL 7005102, at *5-6; see also Robinson v. Green Tree Servicing, LLC,
No. 13 CV 6717, 2015 WL 4038485, at *3-4 (N.D. Ill. June 26, 2015) (denying
summary judgment on TCPA claim for calls allegedly made manually on Aspect
predictive dialer which had the “requisite capacity to act as an ATDS” as construed by
the FCC); see also 47 U.S.C. § 227(a)(1) (an ATDS “has the capacity . . . to dial such
numbers”). That FCC interpretation is dispositive here.
Anticipating this result, Santander urges the Court to stay this action until the
D.C. Circuit decides the appeal in ACA Int’l. See Dkt. 96, at 13 n.3. Santander notes
that a “number of federal courts recently have granted motions to stay based on the
pendency of the ACA Int’l appeal.” Id. (citing cases). But Plaintiffs oppose any such
stay, complaining that Santander “has not shown how a stay serves judicial economy or
impacts the balance of hardships to the parties.” Dkt. 123, at 15 n.7.
12

While some courts have taken such a wait-and-see approach, others in this
district and elsewhere have come to the opposite conclusion, noting that the delay
caused by a stay awaiting the D.C. Circuit’s decision “could be substantial,” and
therefore opting to allow progress in the case, particularly on issues unrelated to that
appeal. See, e.g., Konopca v. Ctr. For Excellence in Higher Educ., Inc., No. 15-5340,
2016 WL 4644461, at *2-3 (D.N.J. Sept. 6, 2016) (citing cases). This Court takes the
latter approach and opts to resolve Plaintiff Levin’s Motion for Class Certification,
which the Court denies for reasons unrelated to the ACA Int’l appeal, as explained
below. The Court notes, however, that oral argument in that appeal is scheduled to
take place soon, on October 19, 2016. Accordingly, in the event the parties here are
unable to resolve Plaintiffs’ remaining individual claims, the Court will defer a trial on
those claims until the D.C. Circuit issues its decision in ACA Int’l, and will revisit any
issues affected by that decision as needed, at any time before the trial in this case.
II.

Levins’ Motion for Class Certification
Of the multiple plaintiffs joined at the outset of these consolidated actions, only

Levins seeks class certification. See Dkt. 100. And of Levins’ multiple claims and
telephone numbers, she seeks class certification only as to her TCPA and only as to the
calls Santander allegedly made to her 6074 number “prior to her ‘verifying’ it as a
number at which she could be reached.” Dkt. 123, at 2 n.2. Levins maintains that
Santander’s records show at least thousands of others (potentially hundreds of
thousands) who Santander similarly called before “verifying” their consent to be
reached at their respective numbers. Id.; Dkt. 103, at 1-2, 16-17.
13

“Because a class action is an exception to the usual rule that only a named party
before the court can have her claims adjudicated, the class representative must be part
of the class and possess the same interest and suffer the same injury.” Bell v. PNC
Bank, Nat. Ass’n, 800 F.3d 360, 373 (7th Cir. 2015). “The general gate-keeping
function of Federal Rule 23(a) ensures that a class format is an appropriate procedure
for adjudicating a particular claim by requiring that the class meet the following
requirements”: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of
representation. Id. The class must also satisfy at least one of the four conditions in
Rule 23(b)—in this case, Rule 23(b)(3)’s requirements “that the questions of law or fact
common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” See Dkt. 100 (invoking Rule 23(b)(3)).
“Because Rule 23(a) provides a gate-keeping function for all class actions,
ordinarily we would begin there and only turn our attention to Rule 23(b) after we were
certain that all of Rule 23(a)’s requirements had been met.” Bell, 800 F.3d at 374.
But in many cases (as here), the requirements of Rule 23(a) and (b) “overlap,” and the
analyses they require therefore “merge.”

Id. (“commonality and predominance

overlap in ways that make them difficult to analyze separately; consequently much of
our discussion applies to both issues”); CE Design, Ltd. v. King Architectural Metals,
Inc., 637 F.3d 721, 724 (7th Cir. 2011) (“In many cases, including this one, the
requirement of typicality merges with the further requirement that the class
representative ‘will fairly and adequately protect the interests of the class.’”).
14

The class must also meet Rule 23’s “implicit requirement of ‘ascertainability,’”
meaning that it “must be definite enough that the class can be ascertained.” Mullins v.
Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015) (quoting Oshana v. Coca-Cola
Co., 472 F.3d 506, 513 (7th Cir. 2006)). And a class may be certified only if the trial
court “‘is satisfied, after a rigorous analysis, that the prerequisites’ for class
certification have been met.” Bell, 800 F.3d at 373 (quoting CE Design, 637 F.3d at
723). Importantly, the burden is on the plaintiff “to demonstrate, by a preponderance
of the evidence, that they have met each requirement of Rule 23.” Id. at 376. For the
following reasons, the Court concludes that Levins has not met that burden, and her
motion for class certification therefore must be denied.
A.

Ascertainability and Numerosity

Levins seeks certification of the following class and subclass:
TCPA Class: All individuals called by Santander or on its
behalf, using the Aspect dialer system between December 19,
2007 and the present, on a cellular telephone number to which the
individual was the subscriber, and which was not (a) listed in any
application for credit or financing submitted to Santander or any
of its originating creditors, (b) otherwise volunteered by the
individual directly to Santander orally or in writing prior to the
time of Santander’s first call to that number, as reflected in
Santander’s records, or (c) verified prior to being called for the
first time by Santander, as reflected in Santander’s records.
Number Trapping Subclass: All members of the TCPA Class
called by Santander or on its behalf, on a cellular telephone
number that Santander captured through calls made to its IVR
system (as indicated by its identification in Santander’s records
with the notation ‘IVR’ followed by an Arabic numeral (e.g.,
IVR1, IVR2, etc.)).
Dkt. 103, at 11 (emphasis added).
15

As reflected in these class definitions, Levins would identify the members of her
proposed class and subclass through “Santander’s records.” Indeed, Levins relies on
Santander’s records to establish every Rule 23 requirement she must meet. As she
puts it, “Santander’s own records provide the information necessary to identify Class
and Subclass members, and establish that Rule 23’s requirements for class certification
are satisfied,” since “the records show that the Class likely consists of hundreds of
thousands of members (‘numerosity’), all of whom were in an identical evidentiary
position (given that Santander’s records establish for each of them the number(s) at
which they were called, how the number was called, and whether Santander was
authorized to call them at that number) (‘commonality’ and ‘predominance’).” Dkt.
103, at 1-2. But these are the same records that Levins and Espejo challenge to save
their claims from summary judgment. See, e.g., Dkt. 124, ¶¶ 11, 15, 43-44. This poses
problems for Levins’ proposed class with respect to each Rule 23 requirement she must
meet, beginning with ascertainability and Rule 23(a)(1)’s numerosity requirement.
Whereas Levins’ proposed class expressly relies on Santander’s records to
demonstrate whether and when class members “volunteered” their cellphone numbers
or “verified” their consent to be contacted at such numbers “prior to being called for the
first time by Santander,” these are the very facts that both Levins and Espejo disputed
could be discerned from Santander’s records, in opposition to its motions for summary
judgment.2 Levins herself insists there is an “utter lack of clarity” in Santander’s
See, e.g., Dkt. 124, ¶ 11 (relying upon deposition testimony to dispute cited
activity notes (see Dkt. 98-1, ¶ 13) indicating that Maria Espejo identified 1411 number
2

16

records regarding when she first consented to being contacted at her 6074 number,
disputing that Santander’s activity notes demonstrate her prior consent. See supra Part
I-A (citing Dkt. 123, at 3, 8-9). According to Levins (citing the deposition testimony
of a Santander witness), “there’s no way from looking at the notes” to “tell how this
conversation went.” Dkt. 124, ¶¶ 15, 43-44; Dkt. 125, ¶ 28; Dkt. 123, at 9.
The parties also dispute the content of Santander’s activity notes in other
respects, advancing contradictory interpretations of what they say and what they don’t.
For instance, Santander maintains that “nothing” in its activity notes “indicates that
Levins ever made a request to stop all calls to any of her cell phone numbers,” Dkt. 124,
¶ 47, whereas Levins contends that an entry stating that she “kept hollering” at an agent
indicates a lack of consent to be contacted at her 9678 number, though Santander insists
the entry “does not say anything contrary to Santander obtaining consent.” Dkt. 138,
¶ 8. And then there are Espejo’s allegations about what is missing from Santander’s
records—namely, his alleged revocations of any consents previously provided. See,
e.g., Dkt. 124, ¶¶ 18-19 (asserting Espejo’s do-not-call requests not reflected in
“Santander’s contemporaneous records”). Plaintiffs even dispute whether Santander
had a “policy requiring agents to record ‘do-not-call’ requests,” and whether “the
existence (alone) of such a policy” would “be dispositive of whether the agent followed
that policy during or after the call in question.” Dkt. 124, ¶ 19.
as her home number and verified it as an appropriate number on which to contact her);
id. at ¶ 15 (disputing that designation “IVR1’s Home” in activity notes “means that
verifications occurred”); id. at ¶¶ 43-4-4 (disputing activity notes indicating that Levins
identified 6074 number as her home number and an appropriate number to contact her).
17

Plaintiffs themselves thus challenge the content, clarity, accuracy, and
completeness of the very records on which Levins would base class certification, on the
very points needed to determine class membership.

And while some of these

arguments concern calls other than those made to Levins’ 6074 number (“the only calls
upon which Levins bases her request for class certification,” Dkt. 123, at 2 n.2), they
nevertheless demonstrate that Levins’ proposed class definition—predicated on the
same records she dismisses for their “utter lack of clarity”—is unascertainable.
Nor has Levins met Rule 23(a)’s numerosity requirement. Levins attempts to
meet this requirement with evidence that “almost three million individuals were called
by Santander or on its behalf, on numbers not provided in the loan applications.” Dkt.
103, at 17. From this, she reasons that “it is overwhelmingly likely that thousands of
individuals—and certainly more than forty—fit the proposed Class and Subclass
definitions.” Id. But the volume of calls placed to numbers not listed in loan
applications hardly quantifies class membership, which also asks whether the number
was “otherwise volunteered” or “verified” before Santander called it, “as reflected in
Santander’s records,” id. at 11—records which Plaintiffs concede cannot be used to
make that determination.

Nor has Levins attempted to identify any group of

individuals (forty, or even less than that) who meet her class definition, further
demonstrating that such a determination cannot be based on Santander’s records alone.
Levins attempts to address this shortcoming by contending that “Santander has
not challenged numerosity.” Id. at 18. But the concession she cites was made in the
case brought by Espejo (who does not seek class certification) with respect to a
18

different class definition which did not rely on Santander’s records. See 8987 Dkt. 30,
¶ 19; 8987 Dkt. 117, at 11. Here by contrast, Levins relies upon Santander’s records
not only to define her class, but also to argue that it amounts to more than an improper
“fail-safe” class, i.e., “one that is defined so that whether a person qualifies as a member
depends on whether the person has a valid claim.” See Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). As Santander correctly argues, such
a class definition “is improper because a class member either wins or, by virtue of
losing, is defined out of the class and is therefore not bound by the judgment.” See id;
see also Dkt. 119, at 15 (citing Messner).
Levins argues that her proposed class is more than a mere “fail-safe” because it is
“defined by objective criteria (as determined by reference to Santander’s own internal
records of the calls at issue)” and “is not pegged to ultimate success on the merits of the
TCPA claims alleged here.” Dkt. 139-1, at 3 n.1. But Plaintiffs’ own challenges to
Santander’s records demonstrate that they provide no such “objective” criteria. Class
membership would thus require a determination of consent—i.e., whether the called
party’s number was “volunteered” or “verified” before Santander used it—as is liability
under the TCPA, which likewise requires a call without “the prior express consent of
the called party.” See 47 U.S.C. § 227(b)(1)(A). Accordingly, Levins’ proposed
class fails not only because it is indefinite and she has failed to identify any group of
members who fall within it, but also because disputes concerning Santander’s records,
such as Plaintiffs mount here, would also require a liability determination to determine
class membership, rendering it an impermissible “fail-safe” class.
19

B.

Commonality and Predominance

Rule 23(a)(2) further requires “questions of law or fact common to the class,” of
which “even a single common question will do.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 359 (2011) (brackets omitted). Levins proposes three. The first—whether
“Santander’s dialing equipment falls within the definition of an ATDS” (Dkt. 103, at
19)—has the potential for class treatment, assuming the same equipment and processes
discussed above were used to call all class members. But see Dkt. 119, at 19 n.5
(asserting that “Santander has several processes for making calls”) and Dkt. 108, at 4
n.2 (referring to other equipment used prior to 2009). But Levins’ other two proposed
questions are nonstarters, and none of Levins’ three proposed questions would
predominate in the litigation, as necessary to satisfy Rule 23(b)(3).
For instance, Levins’ second proposed question—“whether Santander’s
standardized conduct resulted in an injury that entitles each Class Member to statutory
damages under the TCPA” (Dkt. 103, at 21)—asks merely whether all class members
“suffered a violation of the same provision of law.” Wal-Mart, 564 U.S. at 350. Such
“superficial” common questions “are not enough.” Jamie S. v. Milwaukee Public
Schs., 668 F.3d 481, 497 (7th Cir. 2012) (citing Wal-Mart).

That is because a

“bottom-line liability” allegation of this sort fails to establish a common legal or factual
question “that can be answered all at once” and thereby “resolve a central issue in all
class members’ claims.” Jamie S., 668 F.3d at 497.3

This is not to say that this “bottom-line liability question” poses jurisdictional
concerns under the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, 136 S.
3

20

Finally, Levins herself argues that her remaining proposed question—“whether
Santander lacked consent to place the calls at issue” (Dkt. 103, at 20)—is not a question
at all. As Levins puts it, “membership in the Class is closed to any person for whom
Santander has evidence of prior express consent,” since “the Class definition excludes
all persons who provided their cellular telephone number to Santander on their
financing documents, or by other means, as well as all persons who verified their
telephone numbers prior to being called on them.” Dkt. 103, at 20-21. The argument
assumes, of course, that the issue of consent is resolved at the determination of class
membership based on “Santander’s records,” which is precisely what renders the class
unascertainable and an impermissible fail-safe, as explained above.

But it also

assumes that, having been so resolved, the issue no longer qualifies as a common
question that unites the class. Thus, as Santander argues, either consent “is not
relevant to the commonality showing,” or “consent is at issue, in which case
commonality fails for lack of common evidence.” Dkt. 119, at 19.
Ct. 1540, 1548 (2016), as Santander suggests. See Dkt. 119, at 20. Both before and
after Spokeo, courts “have consistently held that allegations of nuisance and invasion of
privacy in TCPA actions are sufficient to state a concrete injury under Article III.”
Hewlett v. Consol. World Travel, Inc., No. 2:16-713, 2016 WL 4466536, at *2 (E.D.
Cal. Aug. 23, 2016) (collecting cases); Aranda v. Caribbean Cruise Line, Inc., -- F.
Supp. 3d --, 2016 WL 4439935, at *5-6 (N.D. Ill. Aug. 23, 2016) (“the receipt of
unsolicited telemarketing calls that by their nature invade the privacy and disturb the
solitude of their recipients” satisfies the “concrete injury” requirement of Spokeo).
This Court concurs with those decisions. Nor does Spokeo require each class member
to demonstrate this injury individually (thereby precluding class certification), since the
same concrete injury of this statutory violation is sufficient under Article III for one and
all. See Aranda, 2016 WL 4433995, at *6. But while Article III may be satisfied by
alleging a TCPA injury, this Court holds that Rule 23 requires a more uniting “common
question” than the bare allegation that each class member “suffered a violation of the
same provision of law.” See Wal-Mart, 564 U.S. at 350; Jamie S., 668 F.3d at 497.
21

Even putting aside the ascertainability and fail-safe issues raised by Levins’
proposed class definition, any unconsented calls suggested on the face of Santander’s
records that might be deemed sufficient for class membership would invariably lead to
individualized factual disputes regarding whether consent was nevertheless previously
obtained.

As Santander argues, even if Levins’ proposed class definition were

accepted, “it cannot prevent Santander from asserting consent even in the face of
records that do not ‘reflect’ consent.” Dkt. 119, at 30. Once again, Plaintiffs’
arguments in opposition to Santander’s motions for summary judgment amply
demonstrate that inevitability and how such questions would predominate (indeed,
consume) the litigation. Although both Plaintiffs claim to have received calls to their
respective numbers without their prior consent, Santander points to disparate
documents and testimony to argue that each had consented beforehand. See supra Part
I-A. The same sort of individualized “mini-trials” would be necessitated in a class
action for countless class members. These are precisely the individualized consent
issues that have led other courts to deny class certification of TCPA claims.4
As these cases explain, this result is compelled especially where (as here) the
defendant produces evidence of a practice of obtaining prior consent from the parties it
contacts. See, e.g., Jamison, 290 F.R.D. at 106-07 (“issues of individualized consent
See, e.g., Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 106-07 (N.D. Ill.
2013) (denying certification where court would have “to conduct a series of mini-trials”
regarding consent) (citing cases); Gannon v. Network Tele. Servs., Inc., No. CV 12–
9777, 2013 WL 2450199, at *2–3 (C.D. Cal. June 5, 2013) (denying certification where
“some of the recipients may have consented”), aff’d, 628 Fed. App’x 551 (9th Cir.
2016); G.M. Sign, Inc. v. Brink’s Mfg. Co., No. 09 C 5528, 2011 WL 248511, at *8
(N.D. Ill. Jan. 25, 2011) (denying certification due to individualized consent issues).
4

22

predominate when a defendant sets forth specific evidence showing that a significant
percentage of the putative class consented to receiving calls on their cellphone” (citing
cases)). Santander has produced such evidence here. See Dkt. 98-1, at Tab 1, ¶¶ 5-6
(attesting to Santander’s policies regarding verification of contact information and
recording do-not-call requests); Dkt. 119, at 6-7 (describing “written policies” requiring
“using the dialer to call a person only when he or she had first given permission to be
contacted at that number,” and various means used to obtain, verify, and record
consent). Even Plaintiffs concede that Santander “has policies in place to verify
contact information” (Dkt. 124, ¶ 15), and that such “verification” reflected in the
activity notes of Santander’s call logs “indicates that a consumer has confirmed that his
or her contact information is correct.” See Dkt. 125, ¶ 5.
Indeed, Levins’ proposed class definition depends upon established policies for
obtaining and recording consent, as it assumes that Santander’s “very detailed” call
records “determine the individuals who were called without consent.” See Dkt. 103, at
8 (“Santander’s records identify whether verifications of contact information were
made on a call”), 11 (class definition), 29 (“one need only look to Santander’s
records—which are very detailed—to determine the individuals who were called
without consent.”). But contrary to Levins’ suggestion, these “very detailed” records
amplified the factual disputes regarding Plaintiffs’ consents in the instant case (see
supra Part I, A), and would inevitably produce similar factual disputes for a multitude
of class members. Because these individualized issues (rather than any common issue)
would predominate, class certification under Rule 23(b)(3) must be denied.
23

C.

Typicality and Adequacy of Representation

Similar issues thwart Levin’s showings of typicality and adequacy of
representation under Rule 23(a). Typicality requires “enough congruence between the
named representative’s claim and that of the unnamed members of the class to justify
allowing the named party to ligate on behalf of the group.” Spano v. The Boeing Co.,
633 F.3d 574, 586 (7th Cir. 2011). “Even though some factual variations may not defeat
typicality, the requirement is meant to ensure that the named representative’s claims
have the same essential characteristics as the claims of the class at large.” Oshana, 472
F.3d at 514 (internal quotation marks omitted). Thus, where a representative’s claim
“involves facts that distinguish her claim from the claims of her fellow class members,”
typicality is lacking. Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009).
“The same concerns arise again when we consider adequacy of representation,”
Spano, 633 F.3d at 586, since “the usual practical significance of lack of typicality, as
again explained in CE Design, is that it undermines the adequacy of the named plaintiff
as a representative of the entire class.” Randall v. Rolls Royce Corp., 637 F.3d 818,
824 (7th Cir. 2011). “The presence of even an arguable defense peculiar to the named
plaintiff or a small subset of the plaintiff class may destroy the required typicality of the
class as well as bring into question the adequacy of the named plaintiff’s
representation.” C.E. Design, 637 F.3d at 726 (internal quotation marks omitted).
“The fear is that the named plaintiff will become distracted by the presence of a possible
defense applicable only to [her] so that the representation of the rest of the class will
suffer.” Id. This is the problem Levins faces.
24

As a class representative, Levins insists that Santander’s call records are “very
detailed” and capable of resolving the issue of consent in favor of all class members.
Dkt. 103, at 8, 29. Levins candidly admits that the purpose of this assertion is to
eliminate any “individual issues regarding consent,” since (she says) all such disputes
would be obviated by her class definition. Id. at 28-30. As discussed above, the
argument fails because Santander and a multitude of class members would nevertheless
raise individualized consent disputes. But even assuming a class whose members rely
on Santander’s call records to demonstrate their lack of consent, Levins is plainly at
odds with it. That is because, to save her own claim from summary judgment, Levins
argues, against the interests of such class members, that Santander’s call records
“contain many inconsistencies” that prevent the Court from determining whether she
consented to the use of her 6074 number (the basis for her class claim) before Santander
called it, because “there’s no way from looking at the notes” to determine whether
Levins had consented on the earlier date that Santander contends. Dkt. 124, ¶¶ 43-44.
Levins “cannot be an adequate representative” of a class of “unconsenting” call
recipients if she “is subject to a defense that couldn’t be sustained against other class
members” on the very issue of consent. C.E. Design, 637 F.3d at 725. Worse still, to
the extent “the Classes consist of only those individuals who (as reflected in and
established in Santander’s call records never provided any indicia of consent to be
called” (Dkt. 103 at 29), Levins is not even a member of it. That, too, disqualifies her
as a class representative. See Bell, 800 F.3d at 373 (“the class representative must be
part of the class and possess the same interest and suffer the same injury”).
25

D.

Superiority

In addition to requiring that questions common to all class members predominate
over those “affecting only individual members,” Rule 23(b)(3) further requires “that a
class action is superior to other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3). Such “superiority” must be assessed in
terms of class members’ interests in proceeding individually, the extent and nature of
existing litigation, the desireability of litigating the claims in the instant forum, and
manageability concerns, id., which in turn requires a court to consider “the costs and
benefits of the class device.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 663-64
(7th Cir. 2015). Regarding this last factor, the Court is mindful that “refusing to certify
on manageability grounds alone should be the last resort.” Id. But the significant
manageability concerns raised here, especially in light of Levin’s failure to make a case
for certification under Rule 23(a), similarly militate against certification.
As discussed extensively above, Levins’ proposed class definition is derailed by
its lack of definitive criteria regarding the consent (or non-consent) of putative class
members to be called by Santander. But there are other administrative difficulties
posed by this definition wholly apart from its indefiniteness, including the need to
review several million call records to determine (1) the equipment and calling method
used, (2) whether the number called was a cell phone number, (3) whether the
individual called was the subscriber to that cell phone account; (4) whether that cell
phone number was provided to Santander in a disqualifying credit document; (5)
whether the individual’s loan was subject to an arbitration agreement; (6) whether the
26

individual already filed a TCPA action; and (7) whether the individual’s TCPA claim
has been arbitrated, adjudicated, waived, or otherwise released. See Dkt. 103, at 11;
Dkt. 119, at 22-25. Santander convincingly argues that identifying such individuals
from the millions of call records for the class period (December 2007-present) would be
exceedingly time-consuming and difficult, if at all possible. Dkt. 119, at 22-25.
Levins contends that “each of Santander’s manageability challenges can be
disregarded” (Dkt. 139-1, at 22), but her logic is faulty. For instance, Levins argues
that there is no need to determine which calls were made using the Aspect dialer’s
manual mode (id. at 19), but fails to address the need to eliminate Santander’s use of
other equipment altogether. See Dkt. 108, at 4 n.2 (acknowledging use of other
equipment prior to 2009); Dkt. 139-1, at 21 (acknowledging need to “eliminate the
accounts for individuals who were not called by the Aspect dialer”). Similarly, Levins
argues that “stated concern[] about reviewing financing documents . . . does not even
apply to the Subclass” (id. at 20), but the Subclass incorporates all of the limitations of
the TCPA Class, which Levins has not abandoned in any event. See Dkt. 103, at 11.
And even Levins concedes the difficulty that would be encountered in obtaining and
reviewing the cell phone records necessary to identify which called numbers were cell
phone numbers and which called individuals were the subscribers to the cell phone
accounts associated with those numbers, assuming those records can be acquired in the
first place. See Dkt. 139-1, at 20-21 and n.12 (conceding that Santander’s “records are
insufficient to identify which telephone numbers were cellular at the time they were
called,” but contending that “wireless carriers maintain historical subscriber data”).
27

Levins also concedes another factor for determining superiority—the incentive
of individual class members to bring solo actions. See Mullins, 795 F.3d at 658.
Even Levins admits that “courts throughout the country have recognized” that “the
TCPA has built-in incentives for aggrieved plaintiffs to litigate individually—such as
the opportunity to collect statutory damages.” Dkt. 103, at 31 (brackets omitted).
This principle is demonstrated also by individual TCPA actions brought against
Santander itself. See Dkt. 119, at 26. Combined with the substantial difficulties
involved in identifying putative class members, the admitted and demonstrated
incentive of individuals to sue on their own behalf compels the conclusion that class
treatment—to address merely whether the Aspect dialer is an ATDS—is neither
necessary nor superior to individual actions which have done, and can do, the same.
CONCLUSION
For the foregoing reasons, Defendant Santander Consumer USA, Inc.’s Motion
for Summary Judgment in Case No. 11-cv-8987 (Dkt. 167 in that case) is denied;
Santander’s Motion for Summary Judgment in Case No. 12-cv-9431 (Dkt. 94 in that
case) is granted in part as explained above, and otherwise denied; and Plaintiff Faye
Levins’ Motion for Class Certification in Case No. 12-cv-9431 (Dkt. 100 in that case) is
denied. This matter is set for status on November 1, 2016, at 9:30 a.m.

Dated: October 14, 2016

_____________________________________
Charles P. Kocoras
United States District Judge
28