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.
Charles P. Kocoras, United States District Judge.
before the Court is Defendant Santander Consumer USA,
Inc.'s (“Santander”) renewed motion for
summary judgment pursuant to Federal Rule of Civil Procedure
56.1 and motion for reconsideration. For the following
reasons, the Court denies the Defendants' motions.
underlying facts in this case are detailed in our prior
opinion,  and the Court provides only a brief
restatement based on undisputed facts from the record.
Plaintiffs Henry Espejo (“Espejo”) and Faye
Levins (“Levins”) (collectively,
“Plaintiffs”) each brought class action suits
against Defendant Santander for violations of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227 et seq., actions which have since been
consolidated. These claims arose when Santander utilized its
Aspect Telephone System (“Aspect”) to make calls
to the Plaintiffs regarding outstanding auto loans. Santander
utilizes Aspect in combination with a customer account
management system called “My Supervisor.” The
company uses “My Supervisor” to generate a
customer list and then uploads the list into Aspect.
has a dialer feature that dials phone No. from a customer
list using an algorithm to efficiently match available
customer service agents to answered calls. The dialer only
makes calls once a customer service agent logs-in and presses
a button to indicate that they are available.
April 21, 2016, Santander filed a motion for summary
judgment, partially on the grounds that Aspect's dialer
feature did not constitute an automatic telephone dialing
system (“ATDS”), which is an essential element of
the Plaintiffs' TCPA claim. That same day, Santander
moved the Court to stay the proceedings until the D.C.
Circuit issued its ruling in ACA International v. Federal
Communications Commission, 885 F.3d 687 (D.C. Cir. 2018), a
consolidated action that considered the validity of the
Federal Communications Commission (“FCC”)
rulemaking regarding the TCPA. On October 14, 2016, the Court
denied Santander's motions, but stated that it would
“revisit any issues affected by [the ACA
International] decision as needed, at any time before
the trial in this case.”
March 16, 2018, the D.C. Circuit issued its ruling in ACA
International. Based on the decision, Santander renewed
its motion for summary judgment on and moved the Court to
reconsider its initial denial.
considering a motion for summary judgment, the Court
construes all facts and draws all reasonable inferences in
favor of the non-movant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Summary judgment is
appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine issue of material fact arises where a
reasonable jury could find, based on the evidence of record,
in favor of the non-movant. Anderson, 477 U.S. at
248. In ruling on a motion for summary judgment, the Court
considers the “record as a whole.” Morgan v.
Harris Trust & Sav. Bank of Chi., 867 F.2d 1023,
1026 (7th Cir. 1989).
court denies a motion for summary judgment, “the
denial…has no res judicata effect, and the district
court may, in its discretion, allow a party to renew a
previously denied summary judgment motion….”
Whitford v. Boglino, 63 F.3d 527, 531 (7th Cir.
1995). “A renewed or successive summary judgment motion
is appropriate especially if one of the following grounds
exists: (1) an intervening change in controlling law; (2) the
availability of new evidence or an expanded factual record;
and (3) need to correct a clear error or prevent manifest
injustice.” Id. (internal quotation marks
motion for reconsideration is appropriate where “the
Court has patently misunderstood a party, or … [there
has been] a controlling or significant change in the law or
facts since the submission of the issue to the Court.”
Bank of Waunakee v. Rochester Cheese Sales, Inc.,
906 F.3d 1185, 1191 (7th Cir. 1990).
contextualize the contested issues in this case, the Court
must walk through the relevant statutory, administrative, and
judicial history of the TCPA. As pertinent here, the TCPA
prohibits using an ATDS to call a telephone number assigned
to a cellular telephone service. 47 U.S.C. §
227(b)(1)(A)(iii). The TCPA defines an ATDS 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). Given the
FCC's “authority to promulgate regulations
implementing the TCPA, ” the FCC issued an order in
1992 that “adopted, without elaboration, the statutory
definition of [an] ATDS.” Pinkus v. Sirius XM
Radio, Inc., 319 F.Supp.3d 927, 929 (N.D. Ill. 2018).
2003, the FCC expressed concern that “[t]he marketplace
for telemarketing has changed significantly in the last
decade.” In Re Rules & Regulations Implementing
the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd.
14014, 14021 (2003). Specifically, the FCC noted the advent
of the predictive dialer, which is “an automated
dialing system that uses a complex set of algorithms to
automatically dial consumers' telephone numbers in a
manner that ‘predicts' the time when a consumer
will answer the phone and a telemarketer will be available to
take the call.” Id. at 14022 n.31.
the widespread adoption of predictive dialer technology, it
has been disputed whether such systems fit within the
definition of an ATDS. The FCC summarized the debate, saying:
Most industry members that commented on the issue of
autodialed calls argue that predictive dialers do not fall
within the statutory definition of “automatic telephone
dialing system, ” primarily because, they contend,
predictive dialers do not dial numbers “randomly or
sequentially.” Rather, they state that predictive
dialers store pre-programmed numbers or receive numbers from
a computer database and then dial those numbers in a manner
that maximizes efficiencies for call centers. Most consumers
and consumer groups maintain that predictive dialers are
autodialers; that to distinguish technologies on the basis of
whether they dial randomly or use a database of numbers would
create a distinction without a difference. They argue that
for the recipient of the call, there is no difference whether
the number is dialed at random or from a database of numbers.
Id. at 14090-91. Essentially, the disagreement turns
on whether an ATDS needs to dial numbers produced
“randomly or sequentially” or whether those
numbers can be automatically dialed from a pre-existing list.
clarify which of the competing views was correct, the FCC
promulgated additional rules regarding the definition of an
ATDS in 2003 (“2003 Order”). The FCC determined
that a predictive dialer did fall within the definitional
scope of an ATDS, stating:
We believe the purpose of the requirement that equipment have
the “capacity to store or produce telephone numbers to
be called” is to ensure that the prohibition on
autodialed calls not be circumvented. Therefore, the
Commission finds that a predictive dialer falls within the
meaning and statutory definition of “automatic
telephone dialing equipment” and the intent of
Id. at 14092-93. In adopting the consumer
groups' position, the FCC established that a dialing
system is still considered an ATDS even if it dials phone
numbers from a preexisting list. The FCC affirmed this
position in its 2008 rules and regulations (“2008
Order”). In the Matter of Rules & Regulations