United States District Court, N.D. Illinois, Eastern Division
HENRY ESPEJO, individually and on behalf of all others similarly situated, Plaintiff,
SANTANDER CONSUMER USA, INC., an Illinois corporation Defendant. FAYE LEVINS, individually and on behalf of all others similarly situated, Plaintiff,
SANTANDER CONSUMER USA, INC., an Illinois corporation Defendant.
MEMORANDUM OPINION AND ORDER
Charles P. Kocoras, Judge
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.
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.
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.
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.
Santander's Motions for Summary Judgment
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.
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.
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.
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
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, ”
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?
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).
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
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?
Q. Do you remember what you said in response to that?
A. No, they can't contact me on that number. Two
* * *
Q. When they asked you, is this your contact number, you