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Espejo v. Santander Consumer USA, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 14, 2016

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.

          MEMORANDUM OPINION AND ORDER

          Charles P. Kocoras, 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.

         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.

         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.

         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, ” 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 ...

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