IN THE UNITED STATES DISTRICT COURT 

FOR THE 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. 

Case No.: 1:11-cv-08987 

Honorable Charles P. Kocoras 

ARICA BONNER, et al., on behalf of 

themselves and all others similarly situated, 

 Plaintiffs, 

v. 

SANTANDER CONSUMER USA INC., 

Defendant. 

Case No.: 12-cv-09431 

Honorable Charles P. Kocoras 

DEFENDANT SANTANDER CONSUMER USA INC.’S 

MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGEMENT 

James A. Rolfes 

(Bar No. 6200271) 

jrolfes@reedsmith.com

Henry Pietrkowski 

(Bar No. 6230048) 

hpietrkowski@reedsmith.com

REED SMITH LLP 

10 South Wacker Drive 

Chicago, IL 60606 

(312) 207-1000 

Abraham J. Colman 

pro hac vice 

acolman@reedsmith.com 

REED SMITH LLP 

355 South Grand Avenue 

Los Angeles, CA 90071 

(213) 457-8000 

Marc A. Lackner 

pro hac vice

mlackner@mcguirewoods.com

David S. Reidy 

dreidy@mcguirewoods.com 

MCGUIRE WOODS LLP 

505 Sansome Street, Suite 700 

San Francisco, CA 94111 

(415) 844-1974 

Attorneys for Defendant Santander Consumer USA, Inc.

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION............................................................................................................. 1 

II. FACTS ............................................................................................................................... 2 

A. Mr. Espejo Gave Express Consent to Receive Calls to His 1411-ended 

Cell Phone Number. .............................................................................................. 2 

B. Levins Provided Express Consent to Receive Calls at All Three of Her 

Cell Phone Numbers. ............................................................................................ 4 

C. Santander’s Telephone System. ........................................................................... 5 

III. SUMMARY JUDGMENT STANDARD ........................................................................ 6 

IV. ARGUMENT ..................................................................................................................... 6 

A. Santander Had Plaintiffs’ Prior Express Consent to Contact the 

Telephone Numbers at Issue. ............................................................................... 6 

B. Santander Did Not Employ an ATDS. .............................................................. 11 

1. Santander’s Use of a Dialer Depends on Human Intervention........... 11 

2. Santander’s Telephone System Does Not Employ a Random or 

Sequential Number Generator. .............................................................. 12 

V. CONCLUSION ............................................................................................................... 14 

 

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 ii 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Abplanalp v. United Collection Bureau, Inc., 

No. 3:15-CV-203-RJC-DCK, 2016 WL 81498 (W.D.N.C. Jan. 7, 2016) ...............................13 

ACA International v. Federal Communications Commission, 

Case No. 15-1211.....................................................................................................................13 

Acton v. Intellectual Capital Mgmt., Inc., 

No. 15-CV-4004(JS)(ARL), 2015 WL 9462110 (E.D.N.Y. Dec. 28, 2015) ...........................13 

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986) ...................................................................................................................6 

Boyce v. Carter, 

No. 12 C 5372, 2014 WL 4436384 (N.D. Ill. Sept. 8, 2014) ...................................................10 

Buslepp v. Improv Miami, Inc., 

No. 12-60171-CIV., 2012 WL 4932692 (S.D. Fla. Oct. 16, 2012) .........................................11 

Celotex Corp. v. Catrett, 

477 U.S. 317 (1986) ...................................................................................................................6 

Chattanond v. Discover Fin. Servs., LLC, 

No. 2:15-cv-08549-RSWL-JC (C.D. Cal. Feb. 26, 2016) .......................................................13 

Derby v. AOL, Inc., 

No. 15-cv-00452-RMW, 2015 WL 3477658 (N.D. Cal. June 1, 2015) ..................................12 

Fontes v. Time Warner Cable Inc., 

Case No. CV14-2060-CAS, 2015 WL 9272790 (C.D. Cal. Dec. 17, 2015) ...........................13 

Gensel v. Performant Techs., Inc., 

No. 13 C 1196, 2015 WL 6158072 (E.D. Wis. Oct. 20, 2015)................................................13 

Glauser v. GroupMe, Inc., 

No. C 11-2584 PJH, 2015 WL 475111 (N.D. Cal. Feb. 4, 2015) ......................................11. 12 

Gragg v. Orange Cab Co., 

995 F. Supp. 2d 1189 (W.D. Wash. 2014) ...............................................................................11 

Greene v. DirecTV, Inc., 

No. 10 C 117, 2010 WL 4628734 (N.D. Ill. Nov. 8, 2010) .......................................................7 

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 iii 

Hedberg v. Ind. Bell Tel. Co., 

47 F.3d 928 (7th Cir. 1995) .......................................................................................................6 

Hill v. Homeward Residential, Inc., 

No. 2:13-cv-388, 2014 WL 4105580 (S.D. Ohio Aug. 19, 2014) .............................................9 

Jeffreys v. City of New York, 

426 F.3d 549 (2d Cir. 2005).....................................................................................................10 

Kolinek v. Walgreen Co., 

No. 13 C 4806, 2014 WL 3056813 (N.D. July 7, 2014) ............................................................8 

Luna v. Shac, LLC, 

2015 WL 4941781 (N.D. Cal. Aug. 19, 2015) ........................................................................11 

Mackiewicz v. Nationstar Mortgage, LLC, 

Case No.6:15-CV-00465 (M.D. Fla. Nov. 10, 2015) ..............................................................13 

Marks v. Crunch San Diego, LLC, 

No. 14-cv-00348-BAS-BLM, 2014 WL 5422976 (S.D. Cal. Oct. 23, 2014) ..........................12 

McKenna v. WhisperText, 

No. 5:14-cv-00424-PSG, 2015 WL 428728 (N.D. Cal. Jan. 30, 2015) ...................................12 

Moore v. Firstsource Advantage, LLC, 

07–CV–770, 2011 WL 4345703 (W.D.N.Y. Sept.15, 2011).....................................................8 

Payton v. Kale Realty, LLC, 

No. 13 C 8002, 2016 WL 703869 (N.D. Ill. Feb. 22, 2016) ..............................................6, 7, 8 

Reardon v. Uber Techs., Inc., 

115 F. Supp. 3d 1090, 1097 (N.D. Cal. 2015) .......................................................................7, 8 

In re Rules and Regs. Implementing Tel. Consumer Protection Act of 1991, 

23 FCC Rcd. 559 (Jan. 4, 2008).................................................................................................7 

In re Rules and Regulations Implementing the Telephone Consumer Protection 

Act of 1991, 

Report and Order, 7 FCC Rcd 8752 (Oct. 16, 1992) .............................................................7, 8 

Sharp v. Allied Interstate Inc., 

No. 12–CV–068S, 2014 WL 1224656 (W.D.N.Y. Mar. 25, 2014) ...........................................8 

Spierer v. Rossman, 

798 F.3d 502 (7th Cir. 2015) .....................................................................................................6 

Springer v. Durflinger, 

518 F.3d 479 (7th Cir. 2008) .....................................................................................................6 

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 iv 

Thrasher-Lyon v. CCS Comm. LLC, 

11 C 04473, 2012 WL 3835089 (N.D. Ill. Sept. 4, 2012)..........................................................8 

Zeidel v. YM LLC USA, 

No. 13-cv-6989, 2015 WL 1910456 (N.D. Ill. April 27, 2015) .................................................8 

Statutes 

47 U.S.C. § 227(a)(1) .....................................................................................................................12 

47 U.S.C. § 227(b)(1)(A) .................................................................................................................6 

Other Authorities 

23 F.C.C. Rcd 559, 2008 WL 65485 ...........................................................................................7, 8 

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I. INTRODUCTION 

 Plaintiffs Henry Espejo and Faye Levins claim that, without their express consent, 

Defendant Santander Consumer USA Inc. dialed their cell phone numbers using an “automatic 

telephone dialing system” (or “ATDS”), thus violating Telephone Consumer Protection Act (47 

U.S.C. § 227, et seq.) (“TCPA”).1

 But Plaintiffs’ testimony, Santander’s business records, and in 

Levins’ case, a tape-recorded conversation, all provide conclusive proof Santander obtained the 

requisite express consent prior to dialing Plaintiffs’ cell phone numbers. This express consent 

provides a complete defense to Plaintiffs’ TCPA claims. 

 And even if Santander had not obtained this consent, Plaintiffs’ TCPA claims still would 

fail because Santander did not employ an ATDS to make calls to either Plaintiff. The company’s 

telephone equipment lacked the capacity to dial numbers stored or produced by a random or 

sequential number generator – an express statutory requirement of an ATDS – and 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. Both the human intervention, and the lack of random or sequential number 

generation capacity, are fatal to Plaintiffs’ TCPA claims. 

 As neither Espejo nor Levins can present a genuine issue of material fact as to the 

consent they provided, or the type of telephone equipment Santander used, their TCPA claims 

fail as matter of law. Santander, therefore, requests that the Court enter summary judgment 

against Espejo and Levins and in favor of Santander under Federal Rule of Civil Procedure 

56(a). 

 

1

 Although the Bonner matter (12-cv-09431) initially included the claims of five plaintiffs, all plaintiffs other than 

Levins voluntarily dismissed their claims. (Dkt. Nos. 15, 25 and 78.) Additionally, Levins voluntarily filed a 

stipulation to dismiss her contract and Fair Debt Collections Practice Act claims leaving only her TCPA claim. (Dkt. 

90.) 

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II. FACTS 

A. Mr. Espejo Gave Express Consent to Receive Calls to His 1411-ended Cell 

Phone Number. 

Maria Espejo Identifies the 1411-ended Telephone Number 

as Her Home Telephone. 

 In June 2007, Maria Espejo, the wife of Plaintiff Henry Espejo, purchased a Toyota 

Corolla from Kendall Toyota in Miami, Florida, obtaining $15,742.22 in financing from 

Sovereign Bank. (Def.’s Local R. 56.1 Statement of Material Facts (“SOF”), filed 

contemporaneously herewith, ¶ 6.) When Sovereign later engaged Santander, a specialized 

consumer finance company that provides vehicle financing (SOF 7), as the third-party servicer 

on this loan, Mrs. Espejo began making monthly loan payments to Santander. (SOF 8.) Starting 

in mid-2009, however, Mrs. Espejo experienced financial difficulties that led to her using a 

1411-ended telephone number to call Santander in June, September and October 2009, to discuss 

payment options for her loan. (SOF 9-12.) In one of those calls, Mrs. Espejo identified the 1411 

telephone number as her “home” number and verified the number as an appropriate number on 

which to contact her regarding her loan. (SOF 11.) 

Henry Espejo Identifies the 1411-ended Telephone Number 

as a Good Number at Which to Call.

 On November 4, 2009, Mr. and Mrs. Espejo together made a call to Santander using the 

1411 telephone number. (SOF 13.) During that call, Mrs. Espejo agreed that Santander could talk 

to Mr. Espejo about her debt. (SOF 14.) In accordance with Santander’s policy of verifying 

contact information (SOF 15), Santander then obtained Mr. Espejo confirmation that the 1411 

telephone number was the appropriate telephone number at which to reach him, as Mr. Espejo 

confirmed in the following testimony: 

Q. Did [the Santander agents] ever say in sum and substance, is this a 

good contact number for you, Mr. Espejo? 

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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. 

(SOF 16.) At no point prior to the call with Mr. and Mrs. Espejo on November 4, 2009, did 

Santander make an outbound call to the 1411 telephone number. (SOF 17.) 

Santander’s Records Reflect Espejo’s Calls with Santander 

 In his Amended Complaint (Espejo Dkt. 30), Mr. Espejo claims that Santander violated 

the TCPA by calling his 1411-ended cell phone without his consent dozens of times as part of 

Santander’s effort to collect his wife’s debt, an estimate he later changed to “at least 500” after 

receiving Santander’s records in discovery. (SOF 25.) Those records, which Santander maintains 

on its “My Supervisor” or “My Sup” customer account management system (SOF 26), include a 

notation at the account level for each time the company attempts to dial a customer-related 

telephone number, receives a customer call, or otherwise communicates with a customer. (SOF 

27.) The information collected includes: the date and time of the call; whether the call is inbound 

to, or outbound from, Santander; and if answered, how the Santander agent “dispositioned” the 

call (i.e., events that occurred on the phone call such as the customer service provided, customer 

payment promised or message left). (SOF 28.) Of the Santander-initiated calls to the 1411 

telephone number reflected in those records, Mr. Espejo answered a call to the 1411 telephone 

number only four times, with the remaining calls either not reaching the number, receiving a 

busy signal or connecting to an answering machine. (SOF 29.) In contrast, the Santander records 

show Mr. Espejo or his wife used the 1411 telephone number to call Santander 25 times, with 

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Mr. Espejo speaking on behalf of his wife in 23 of those calls to discuss payment 

accommodations for Mrs. Espejo’s debt. (SOF 30.) 

B. Levins Provided Express Consent to Receive Calls at All Three of Her Cell 

Phone Numbers. 

 Plaintiff Faye Levins purchased a 2007 Chevrolet Impala from Adamson Ford in 

Birmingham, Alabama on January 31, 2009 (SOF 31), financing $12,100 of the purchase price 

with Drive Financial Services, a company that subsequently merged into Santander. (SOF 32.) 

When Levins later missed payments on her loan, Santander contacted her by telephone, 

including at three cell phone numbers ending in 6954, 9678 and 6074. (SOF 34.) 

 Santander obtained the first of these numbers, i.e. 6954, from Levins’ January 31, 2009 

credit application, where she identified the 6954 telephone number as both her “home” and 

“cell” phone number. (SOF 35.) As Levins remembers reading at the time, her credit application 

expressly stated that: 

By providing my cell phone number, I give my prior express consent to receive 

calls and text messages from the creditor or its third party debt collector at that 

number, including calls and messages made by using an autodialer or prerecorded 

message. 

 

(SOF 36.)2

 Levins provided Santander express consent to call her second phone number ending 

in 9678 in a May 14, 2012 tape-recorded call on which she identified her 9678 number as a 

current cell phone number that Santander could use to contact her. (SOF 38.) 

 Levins provided her third cell phone number ending in 6074 “probably in 2009 or 2010” 

(SOF 40), and, thereaafter, repeatedly verified this cell phone information to Santander’s agents 

as a valid number at which to contact her. (SOF 41.) Levins also voluntarily provided the 6074 

telephone number on her MoneyGram and Western Union payment applications to Santander 

 

2

 Because Levins’ consent to receive calls at the 6954 telephone number is so obvious, Levins’ counsel has 

stipulated that the 6954 telephone number is not a basis for her TPCA claim. (SOF 37.) 

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from May 2010 to January 2011. (SOF 42.) In addition, at least one Santander agent identified 

Levins’ 6074 number in Santander’s activity notes as “IVR1 Home” (SOF 43 ) – a designation 

the agent could make only if Levins had informed the agent that this “ home” telephone number 

was a good number on which to contact her. (SOF 44). Thus, like Mr. Espejo, Levins provided 

express consent for Santander to call all of her cell phone numbers. 

C. Santander’s Telephone System.

 Santander employed the Aspect Telephone System when making its outbound calls to 

Espejo and Levins. (SOF 48.) To make “manual” calls on this system, an account agent 

physically either mouse clicks on a number contained on a My Sup computer screen or types in 

the 10-digit number using a computer keypad. (SOF 49.) Santander also uses criteria (such as 

account behavior scores, account balances, new loan status, days past due and amounts past due) 

to identify a list of customer telephone numbers stored in My Sup for potential telephone calls 

using the outbound “dialer” feature of the Aspect Telephone System. (SOF 50.) The company’s 

dialer operations team manually uploads the file containing this criteria-generated list to the 

Aspect Telephone System. (SOF 51.) Customer service agents then log into My Sup and press 

buttons on their computer screens to request calls. (SOF 52.) The Aspect Telephone 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. (SOF 53.) Only 

when agents log-in and press buttons indicating their availability will the dialer make outbound 

calls. (SOF 54.) Pursuant to these procedures, Santander used the Aspect Telephone System 

dialer feature to make calls to the 1411, 6954, 9678 and 6074 cell phone numbers. (SOF 55.) 

Plaintiffs believe all of these dialer assisted calls violate the TCPA. 

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III. SUMMARY JUDGMENT STANDARD 

Summary judgment is appropriate if the evidence, viewed in the light most favorable to 

the nonmovant, shows that there is no genuine issue of material fact and that the movant is 

entitled to judgment as a matter of law. The party seeking summary judgment initially must 

inform the court of “the pleadings, depositions, answers to interrogatories, and admissions on 

file, together with affidavits, if any,” that demonstrate an absence of genuine material fact issues. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted); Spierer v. Rossman, 798 

F.3d 502, 508 (7th Cir. 2015). To defeat a motion for summary judgment, the party opposing the 

motion must show that there is a genuine issue of material fact. “By its very terms, this standard 

provides that the mere existence of some alleged factual dispute between the parties will not 

defeat an otherwise properly supported motion for summary judgment; the requirement is that 

there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–

48 (1986). “If no reasonable jury could find for the party opposing the motion, it must be 

granted.” Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). It is, in other words, 

“‘the put up or shut up moment in a lawsuit,’” where a party must show evidence sufficient to 

“convince a trier of fact to accept its version of events,” and “hunches” as to what happened will 

not survive. Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (quoting Steen v. Myers, 

486 F.3d 1017, 1022 (7th Cir. 2007)). 

IV. ARGUMENT 

A. Santander Had Plaintiffs’ Prior Express Consent to Contact the Telephone 

Numbers at Issue. 

 Under the TCPA, a caller may use an ATDS to call a cell telephone if the consumer 

called has provided the caller with “prior express consent” to call that number. Payton v. Kale 

Realty, LLC, No. 13 C 8002, 2016 WL 703869, at *9 (N.D. Ill. Feb. 22, 2016). As the statute 

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itself specifically provides, only calls to cell telephones “made with[out] the prior express 

consent of the called party” are subject to the Act’s ATDS prohibition. See 47 U.S.C. 

§ 227(b)(1)(A). Prior express consent, in other words, provides a complete defense to a TCPA 

claim. Reardon v. Uber Techs., Inc., 115 F. Supp. 3d 1090, 1097 (N.D. Cal. 2015); Greene v. 

DirecTV, Inc., No. 10 C 117, 2010 WL 4628734, at *3 (N.D. Ill. Nov. 8, 2010) (where defendant 

shows consent, TCPA claims fail as a matter of law). 

 A determination of what constitutes prior express consent starts with the guidance 

provided in the Federal Communications Commission (“FCC”) 1992 order interpreting the 

TCPA. See Payton, 2016 WL 703869, at *9; Reardon, 115 F. Supp. 3d at 1097. In that order, the 

FCC held: 

[P]ersons who knowingly release their phone numbers have in effect given their 

invitation or permission to be called at the number which they have given, absent 

instructions to the contrary. 

In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 

Report and Order, 7 FCC Rcd 8752 , 8769 , ¶ 31 (Oct. 16, 1992). Sixteen years later, in 2008, the 

FCC reiterated this interpretation, and further found that “autodialed and prerecorded message 

calls to wireless numbers provided by the called party in connection with an existing debt are 

made with the ‘prior express consent’ of the called party.” In re Rules and Regs. Implementing 

Tel. Consumer Protection Act of 1991, 23 FCC Rcd. 559, ¶ 9 (Jan. 4, 2008) (“2008 FCC Order”). 

As the FCC further stated, “the provision of a cell phone number to a creditor, e.g., as part of a 

credit application, reasonably evidences prior express consent by the cell phone subscriber to be 

contacted at that number regarding the debt,” a result consistent with Congress’ intent that the 

Act’s restrictions “‘do[ ] not apply when the called party has provided the telephone number of 

such a line to the caller for use in normal business communications.’” 23 F.C.C. Rcd 559, 564, 

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2008 WL 65485 (quoting H.R. Rep. 102-317, at 17); see also In the Matter of Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 

8771- 72, ¶ 36 (FCC clarifies that “all debt collection circumstances involve a prior or existing 

business relationship”). In addition, courts have held that express consent obtained after 

consummating a credit transaction, can also satisfy the statutory requirement. See, e.g., Sharp v. 

Allied Interstate Inc., No. 12–CV–068S, 2014 WL 1224656, at *2 (W.D.N.Y. Mar. 25, 2014); 

Moore v. Firstsource Advantage, LLC, 07–CV–770, 2011 WL 4345703 (W.D.N.Y. Sept.15, 

2011). 

 Given this FCC guidance, courts across the country have held as a general rule that 

providing a cellular number constitutes prior express consent to dial that telephone number no 

matter what the purpose of the call. Payton, 2016 WL 703869, at *9 (citing cases); Reardon, 115 

F. Supp. 3d at 1097 (court notes that the “vast majority of cases” hold that a “telephone customer 

who provides her number to another party consents to receive calls or texts from that party”). 

Recently, however, a few courts in this district, relying in part on further 2014 FCC guidance, 

have limited the scope of the consent provided “to the purpose for which it was originally 

granted.” Zeidel v. YM LLC USA, No. 13-cv-6989, 2015 WL 1910456, at *3 (N.D. Ill. April 27, 

2015); see also Payton, 2016 WL 703869, at *9; Kolinek v. Walgreen Co., No. 13 C 4806, 2014 

WL 3056813, at * 4 (N.D. July 7, 2014). That a consumer gives his consent in the context of a 

debt transaction, however, allows subsequent calls regarding that debt to fall within even this 

more limited scope. See Thrasher-Lyon v. CCS Comm. LLC, 11 C 04473, 2012 WL 3835089, at 

*3 (N.D. Ill. Sept. 4, 2012) (FCC found that giving phone information constituted express 

consent in creditor/debtor context). As stated by one court: 

The thrust of the FCC’s Rulings is that a person need not specifically consent to 

be contacted using an autodialer or artificial or prerecorded voice. Rather, a 

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person who knowingly provides his telephone number to a creditor in connection 

with a debt is agreeing to allow the creditor to contact him regarding his debt, 

regardless of the means. 

Hill v. Homeward Residential, Inc., No. 2:13-cv-388, 2014 WL 4105580, at *5 (S.D. Ohio Aug. 

19, 2014) (citation omitted). 

 Here Mr. Espejo gave his prior express consent to call his 1411 cell telephone number in 

connection with Santander’s collection efforts on his wife’s debt on November 4, 2009. (SOF 

16.) At no time prior to that date did Santander attempt to call the 1411 telephone number. (SOF 

17.) Levins also provided prior express consent on all three of her cell phone numbers, either 

through her credit application (for 6954), (SOF 35), in a tape recorded conversation (for 9678) 

(SOF 38), and as admitted by Levins and corroborated by relevant documents and Santander’s 

records (for 6074). (SOF 40-44.) As both Mr. Espejo and Levins gave prior express consent to 

contact them at their cell phone numbers before Santander made any dialer calls to those 

numbers, their TCPA claims must fail. 

 Plaintiffs’ vague claims of revocation at their depositions do not alter this result. As an 

initial matter, both Espejo and Levins confirmed they told Santander their cell telephone 

numbers were good numbers at which to contact them – consent corroborated by Santander’s 

contemporaneous business records. (SOF 11, 16, 35-36, 38, 40-44.) Mr. Espejo, however, 

claimed to have revoked that consent in conversations with Santander, purportedly when 

Santander initiated calls to his cell phone number. (SOF 18.) But Santander’s contemporaneous 

records do not reflect any such request from Mr. Espejo even though Santander’s policies require 

agents to record “do not call” requests. (SOF 19.) In fact, contrary to his suggestion that he told 

Santander “a lot of times” not to call him, Santander’s records reflect that he only picked up a 

Santander-initiated call four times over the relevant three-year period, and then spoke only about 

getting a deferment for his wife or making a promise to pay on her behalf. (SOF 20-21.) All 

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other conversations with Mr. Espejo (both before and after these four calls) took place on 

inbound calls to Santander where he sought accommodations for his wife. (SOF 22.) As Espejo 

acknowledged, not only did he fail to revoke his prior express consent on such in-bound calls, 

but he also confirmed his cell phone number as a good contact number. (SOF 24.) Given the 

multiple times in which Espejo called using the 1411-ended number, the express consent he gave 

on those calls, and the absence of any record evidence of revocation on the four calls he 

answered, Espejo’s revocation claims lack any credibility. 

 Levins similarly claimed to have asked Santander to stop calling her, but admitted that 

she cannot remember any of the details related to those requests except that she asked a 

supervisor to “address[ ] the issue of why are you calling so many times” after payment 

arrangements had been made. (SOF 45.) In fact, as Levins clarified, she expected Santander 

would resume contacting her at the telephone numbers she had provided if she missed another 

car payment. (SOF 46.) Moreover, nothing in Santander’s account notes supports her contention 

that she ever made a request to stop all further calls. (SOF 47.) 

 A court can properly enter summary judgment where (1) nothing in the record supports a 

plaintiff’s allegations other than the plaintiff’s own contradictory and incomplete testimony and 

(2) “‘no reasonable person could believe [plaintiff’s] testimony.;” Jeffreys v. City of New York, 

426 F.3d 549, 555 (2d Cir. 2005) (citation omitted); see also Boyce v. Carter, No. 12 C 5372, 

2014 WL 4436384, at *13 (N.D. Ill. Sept. 8, 2014)(follows Jeffries). Here, neither Espejo nor 

Levins can provide any detail regarding their purported revocation (e.g., the dates and content of 

such revocation) nor any contemporaneous corroboration of revoking their admitted 

identification of their cell phone numbers as good numbers at which to contact them. Because 

neither Espejo nor Levins presents anything other than vague, contradictory and uncorroborated 

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statements about purportedly asking for Santander to stop calling their cell phone numbers, they 

do not create an issue of material fact that precludes summary judgment here. 

B. Santander Did Not Employ an ATDS. 

1. Santander’s Use of a Dialer Depends on Human Intervention. 

 To succeed on a TCPA claim, a plaintiff must show as an element of the claim that the 

defendant used an ATDS to call plaintiff’s cell phone. See Buslepp v. Improv Miami, Inc., No. 

12-60171-CIV., 2012 WL 4932692, at *2 (S.D. Fla. Oct. 16, 2012). As the FCC stated in the 

2008 FCC Order, the capacity to dial numbers without human intervention is a basic and 

defining function of an ATDS. Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 

475111, at *6 (N.D. Cal. Feb. 4, 2015). Thus, where the application making a call does so in 

reaction to a human activity, the application does not meet the definition of “autodialer” under 

the Act or the FCC’s subsequent TCPA interpretations. See id. (granting summary judgment 

against plaintiff’s TCPA claim where defendant sent texts to a list of telephone numbers 

assembled by a human); Luna v. Shac, LLC, 2015 WL 4941781, at *5 (N.D. Cal. Aug. 19, 2015) 

(granting defendant summary judgment on TCPA claim where system sent texts to a humandeveloped list of cell telephone numbers when the sender clicked “send” on a website). 

 Here, Santander compiles a list of numbers using criteria that change every day and 

manually lodes that list into its dialer for potential calls during the day. (SOF 50-51.) The dialer 

then dials numbers on those lists but only when agents click buttons on their computer screens to 

request a call. (SOF 54.) Santander’s dialing system thus relies on human intervention in the 

same way as the cab company in Gragg v. Orange Cab Co., 995 F. Supp. 2d 1189 (W.D. Wash. 

2014). In that case, the cab company’s computerized dispatch system sent a text message to its 

customer’s cell phone when its driver pressed a button to accept a ride request. The court held 

the cab company did not employ an ATDS because the system could “dial and transmit the 

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dispatch notification only after the driver has physically pressed ‘accept’” – thus making “human 

intervention ... essential.” Id. at 1194. 

 Other courts have similarly held that dialing systems that require a user to affirmatively 

start the dialing process, even if to multiple numbers at the same time, employ human 

intervention and thus do not qualify as ATDS. See McKenna v. WhisperText, No. 5:14-cv-00424-

PSG, 2015 WL 428728, at *3 (N.D. Cal. Jan. 30, 2015) (application that sent multiple text 

invitations only at the user’s affirmative direction involved human intervention); Derby v. AOL, 

Inc., No. 15-cv-00452-RMW, 2015 WL 3477658, at *3 (N.D. Cal. June 1, 2015) (text messages 

sent when customers directed defendant to send messages involved human intervention). Still 

other courts have found essential human intervention where the dialing scheme depended upon 

human curation of the list of numbers called and a manual upload of phone numbers onto the 

calling platform. See Marks v. Crunch San Diego, LLC, No. 14-cv-00348-BAS-BLM, 2014 WL 

5422976, at *3 (S.D. Cal. Oct. 23, 2014); see also Glauser v. GroupMe, Inc., 2015 WL 475111, 

at *6 (human intervention involved where defendant sent welcome texts to groups of numbers 

provided by users). As Santander’s use of the dialer relies on human intervention to both 

manually load curated lists and to initiate the dialing of those numbers, it is not an ATDS. 

2. Santander’s Telephone System Does Not Employ a Random or 

Sequential Number Generator. 

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) (emphasis added). Like most modern dialers, 

Santander’s telephone system does not have the capacity to generate and dial numbers via a 

“random or sequential number generator.” The FCC, however, has defined “capacity” 

expansively to include the “future capacity” to generate and dial random or sequential numbers 

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through changes in hardware or software –i.e., all “potential functionalities.” (See July 10, 2015 

FCC Ruling at ¶ 11 and ¶ 16 (App. 227-28).) As a result, the “rotary-dial phone” is the only type 

of equipment the FCC concedes cannot be converted into an autodialer. 

 Not surprisingly, the FCC’s incredibly overbroad and vague definition of what constitutes 

an ATDS generated a swift appeal to the D.C. Circuit Court of Appeals. In ACA International v. 

Federal Communications Commission, Case No. 15-1211, the petitioner challenges the FCC’s 

Ruling as arbitrary and capricious, an abuse of discretion, and inconsistent with various 

constitutional provisions. (See ACA Amended Petition at 3 (App. 264).) The petitioner further 

challenges earlier FCC decisions regarding whether “predictive dialers” fall within the ATDS 

definition, claiming those interpretations also exceed the FCC’s statutory authority and go 

beyond Congress’s intent under the TCPA. (Id.) While cognizant that this Court – unlike the 

ACA International appellate court – must give weight to the FCC orders pursuant to the Hobbs 

Act, Santander adopts the arguments made by the ACA International petitioner. Arbitrary 

determinations inconsistent with Congressional intent and which exceed the FCC’s statutory 

authority should be rejected.3

 

 

3

 The argument that the “capacity” definition includes hypothetical future capabilities and, more particularly all 

predictive dialers, no matter what the equipment’s random or sequential number generating capacity, is central to the 

TCPA claims Espejo and Levins make here. Thus, the outcome of the ACA International petition will have a direct 

and substantial impact in this case. A number of federal courts recently have granted motions to stay based on the 

pendency of the ACA Int’l appeal. See, e.g., Chattanond v. Discover Fin. Servs., LLC, No. 2:15-cv-08549-RSWLJC, (C.D. Cal. Feb. 26, 2016) (App.272-82); Abplanalp v. United Collection Bureau, Inc., No. 3:15-CV-203-RJCDCK, 2016 WL 81498, at *2-3 (W.D.N.C. Jan. 7, 2016); Acton v. Intellectual Capital Mgmt., Inc., No. 15-CV4004(JS)(ARL), 2015 WL 9462110 (E.D.N.Y. Dec. 28, 2015); Fontes v. Time Warner Cable Inc., Case No. CV14-

2060-CAS (CWx), 2015 WL 9272790 (C.D. Cal. Dec. 17, 2015); Mackiewicz v. Nationstar Mortgage, LLC, Case 

No.6:15-CV-00465 (M.D. Fla. Nov. 10, 2015) (App. 283-85); Gensel v. Performant Techs., Inc., No. 13 C 1196, 

2015 WL 6158072 (E.D. Wis. Oct. 20, 2015). To the extent that this Court’s decision on whether Santander uses an 

ATDS depends on the FCC’s overbroad “capacity” interpretation, the Court should stay its ruling until the D.C. 

Circuit’s decision on this critical issue. 

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V. CONCLUSION 

 Both Espejo and Levins gave express consent for Santander to call their cell phone 

numbers, a complete defense to their TCPA claims. That Santander did not employ an ATDS to 

call these numbers only further undermines Plaintiffs’ TCPA claims. The Court, therefore, 

should grant summary judgment against Mr. Espejo and Ms. Levins and in favor of Santander. 

Dated: April 21, 2016 Respectfully submitted, 

SANTANDER CONSUMER USA, INC., 

Defendant 

By: s/ James A. Rolfes ____ 

 One of Its Attorneys 

James A. Rolfes 

(Bar No. 6200271) 

jrolfes@reedsmith.com

Henry Pietrkowski 

(Bar No. 6230048) 

hpietrkowski@reedsmith.com

REED SMITH LLP 

10 South Wacker Drive 

Chicago, IL 60606 

(312) 207-1000 

Abraham J. Colman 

pro hac vice 

acolman@reedsmith.com 

REED SMITH LLP 

355 South Grand Avenue 

Los Angeles, CA 90071 

(213) 457-8000 

Marc A. Lackner 

pro hac vice

mlackner@mcguirewoods.com

David S. Reidy 

dreidy@mcguirewoods.com 

MCGUIRE WOODS LLP 

505 Sansome Street, Suite 700 

San Francisco, CA 94111 

(415) 844-1974 

 

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CERTIFICATE OF SERVICE 

I, James A. Rolfes, state that on April 21, 2015, I electronically filed the foregoing with 

the Clerk of the Court using the ECF system, which will send notification to all parties. 

 /s/ James A. Rolfes 

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