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 

FAYE LEVINS, 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 

OPPOSITION TO PLAINTIFF LEVINS’ MOTION FOR CLASS CERTIFICATION 

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 Reidy 

pro hac vice 

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. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 1 of 38 PageID #:2525
TABLE OF CONTENTS

Page

 -iI. INTRODUCTION ............................................................................................................. 1

II. FACTUAL AND PROCEDURAL BACKGROUND....................................................... 4

A. Of the Thirteen Original Named Plaintiffs, Only Faye Levins Seeks 

Certification of a TCPA Class Against Santander. ................................................ 4

B. Santander Obtains Prior Express Consent Before Placing Calls To 

Individuals, Including By Verifying the Numbers Directly. ................................. 5

1. Santander Follows a Robust TCPA Compliance Program. ....................... 5

2. Santander Maintains Procedures To Obtain Consent from 

Consumers and To Document that Consent in Individual Account 

Notes. ......................................................................................................... 7

C. Santander’s Records Show Levins Gave Consent To Receive Calls from 

Santander and Is Therefore Excluded from Her Own Class Definition; 

Espejo Is Excluded for the Same Reason. ............................................................. 9

D. The Parties Engaged in Extensive Fact and Expert Discovery Including the 

Production of 400 Santander Account Files for Plaintiffs’ Review .................... 11

III. ARGUMENT ................................................................................................................... 13

A. Levins Attempts To Certify An Improper Fail-Safe Class. ................................. 15

B. Levins Cannot Serve as a Class Representative Because She Is Not a 

Member of the Class She Seeks To Certify. ........................................................ 16

C. Levins Cannot Establish Commonality as Required by Rule 23(a)(2) ................ 18

D. Levins’ Proposed Class Is Patently Unmanageable and Inferior To 

Individual Actions, and Levins Fails To Establish that Common Issues 

Would Predominate in a Class Trial. ................................................................... 20

1. Levins Cannot Establish that a Class Action Would Be Superior To 

Individual TCPA Cases............................................................................ 22

2. Individual Issues Would Predominate over Common Questions in 

a Class-Wide Trial of this Action ............................................................ 28

IV. CONCLUSION ................................................................................................................ 31

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 2 of 38 PageID #:2526
 -iTABLE OF AUTHORITIES 

 Page(s) 

Cases 

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997) ...........................................................................................................18, 21 

Balthazor v. Central Credit Services, Inc., 

2012 U.S. Dist. LEXIS 182275 (S.D. Fla. Dec. 27, 2012) ......................................................19 

Blades v. Monsanto Co., 

400 F.3d 562 (8th Cir. 2005) ...................................................................................................19 

Califano v. Yamasaki, 

442 U.S. 682 (1979) .................................................................................................................13 

Chicago Teachers Union, Local No. 1 v. Board of Educ. of City of Chicago, 

797 F.3d 426 (7th Cir. 2015) ...................................................................................................14 

Comcast Corp. v. Behrend, 

133 S.Ct. 1426 (2013) ....................................................................................................4, 13, 14 

Connelly v. Hilton Grand Vacations Co., 

LLC, 294 F.R.D. 574 (2013)........................................................................................14, 15, 29 

Conrad v. Gen. Motors Acceptance Corp., 

283 F.R.D. 326 (N.D. Tex. 2012) ............................................................................................29 

Dafforn v. Rousseau Assocs., Inc., 

No. F 75-74, 1976 WL 1358 (N.D. Ind. July 27, 1976) ..........................................................15 

Driver v. Appleillinois, LLC, 

No. 06–cv–6149, 2013 WL 5818899 (N.D.Ill. Oct. 29, 2013) ................................................15 

Forman v. Data Transfer, Inc., 

164 F.R.D. 400 (E.D. Pa. 1995) ...............................................................................................26 

Gannon v. Network Tele. Servs., Inc., 

No. 12–9777, 2013 WL 2450199 (C.D. Cal. June 5, 2013) ..............................................22, 29 

Gen Tel. Co. Sw. v. Falcon, 

457 U.S. 147 (1982) .................................................................................................................14 

Gene and Gene LLC v. BioPay LLC, 

541 F.3d 318 (5th Cir. 2008) ...................................................................................................29 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 3 of 38 PageID #:2527
 -iiGenenbacher v. CenturyTel Fiber Co. II, 

244 F.R.D. 485 (C.D. Ill. 2007) ...............................................................................................16 

Gomez v. St. Vincent Health, Inc., 

649 F.3d 583 (7th Cir.2011) ....................................................................................................18 

Hayes v. Wal-Mart Stores, Inc., 

725 F.3d 349 (3d Cir. 2013).....................................................................................................28 

In re Hydrogen Peroxide Antitrust Litig., 

552 F.3d 305 (3d Cir. Pa. 2008)...................................................................................21, 25, 28 

Indiana State Emp. Ass’n, Inc. v. Indiana State Highway Comm’n, 

78 F.R.D. 724 (S.D. Ind. 1978) ................................................................................................15 

Jamie S. v. Milwaukee Pub. Sch., 

668 F.3d 481 (7th Cir. 2012) ...................................................................................................14 

Jamison v. First Credit Servs., 

290 F.R.D. 92 (N.D. Ill. Mar. 28, 2013) ............................................................2, 28, 29, 30, 31 

John Roe I v. Bridgestone Corp., 

492 F. Supp. 2d 988 (S.D. Ind. 2007) ......................................................................................15 

Johnson v. Yahoo!, Inc., 

No. 14 CV 2028, 2016 WL 25711 (N.D. Ill. Jan. 4, 2016)......................................................18 

Kaye v. Amicus Mediation & Arbitration Grp., Inc., 

300 F.R.D. 67 (D. Conn. 2014)................................................................................................18

Kurczi v. Eli Lilly & Co., 

160 F.R.D. 667 (N.D. Ohio 1995) ...........................................................................................27 

London v. Wal-Mart Stores, Inc., 

340 F.3d 1246 (11th Cir. 2003) ...............................................................................................27 

Lucas v. Vee Pak, Inc., 

68 F. Supp. 3d 870 (N.D. Ill. 2014) .........................................................................................15

Marcus v. BMW of N. Am., LLC, 

687 F.3d 583 (3d Cir. 2012).....................................................................................................28 

Messner v. Northshore Univ. Healthsystem, 

669 F.3d 802 (7th Cir. 2012) .............................................................................................15, 19 

Mullins v. Direct Digital, LLC, 

795 F.3d 654 (7th Cir. 2015) ........................................................................................... passim

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 4 of 38 PageID #:2528
 -iiiOshana v. Coca-Cola Co., 

472 F.3d 506 (7th Cir. 2006) ...................................................................................................17 

Panwar v. Access Therapies, Inc., 

No. 12-00619, 2015 WL 329013 (S.D. Ind. Jan. 22, 2015) .....................................................15 

In re Potash Antitrust Litig., 

667 F. Supp. 2d 907 (N.D. Ill. 2009) .................................................................................16, 17 

Randleman v. Fid. Nat. Title Ins. Co., 

646 F.3d 347 (6th Cir. 2011) ...................................................................................................15 

In the Matter of Rhone-Poulenc Rorer, Inc., 

51 F.3d 1293 (7th Cir. 1995) ...................................................................................................27 

Simer v. Rios, 

661 F.2d 655 (7th Cir. 1981) .............................................................................................15, 21 

Spano v. The Boeing Co., 

633 F.3d 574 (7th Cir. 2011) ...................................................................................................15 

Spokeo, Inc. v. Robins, 

578 U.S. __, 136 S.Ct. 1540 (2016) .........................................................................................20 

Szabo v. Bridgeport Mach., Inc., 

249 F.3d 672 (7th Cir. 2001) ...................................................................................................14 

Versteeg v. Bennett, Deloney & Noyes, P.C., 

271 F.R.D. 668 (D. Wyo. 2011) ..............................................................................................29 

Vigus v. S. Illinois Riverboat/Casino Cruises, Inc., 

274 F.R.D. 229 (S.D. Ill. 2011) ...............................................................................................26 

Wal-Mart Stores, Inc. v. Dukes, 

131 S. Ct. 2541 (2011) .....................................................................................13, 14, 18, 19, 20 

Warnick v. Dish Network LLC, 

301 F.R.D. 551 (D. Colo. 2014) ..............................................................................................22

Statutes 

47 U.S.C. § 227. .............................................................................................................1, 14, 16, 30 

Other Authorities 

137 Cong. Rec. 30,821-30822 (1991) ............................................................................................26 

2003 TCPA Order, 

18 FCC Rcd at 14092 ...............................................................................................................20 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 5 of 38 PageID #:2529
 -ivFed. R. Civ. P. 23 ................................................................................................................... passim

McLaughlin on Class Actions § 4:39 (12th ed. 2015) ...................................................................27

TCPA Omnibus Declaratory Ruling and Order, FCC 15-72 at ¶ 17 .............................................20

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 6 of 38 PageID #:2530
1 

I. INTRODUCTION 

Defendant Santander Consumer USA Inc. (“Santander”), a specialized consumer finance 

company focused in large part on vehicle finance, has millions of customers and uses the 

telephone to communicate with them. It does so pursuant to a robust program to ensure 

compliance with the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). (See 

infra, Sec. II.B.) Plaintiff Levins’s Motion for Class Certification (Dkt. 100) (“Motion”) seeks to 

certify a class as to some undescribed and unquantified fragment of these millions of calls, which 

Levins speculates may exist despite Santander’s TCPA compliance efforts. 

Levins’ Motion fails for a number of reasons. Foremost, it fails to identify a single 

individual who fits within the proposed class or subclass, and fails to offer any methodology for 

identifying such class members short of a file-by-file review of 5.5 million customer accounts. 

Although we do not know who is in the class, we do know that Henry Espejo (“Espejo”) and 

Levins herself—the only two remaining plaintiffs—are excluded. 

Levins makes no mention of Espejo in her motion, apparently conceding after four years 

of litigation that any TCPA claims he might have cannot fit within any class she can advance. As 

for Levins, she at least asserts that some small portion of the “hundreds” of TCPA violations she 

claims actually fall within the class she seeks to certify. But, in doing so, Levins ignores her own 

class definition, which excludes calls for which consent is “reflected in Santander’s records.” 

(Motion ¶ 4.) Because those records show that Levins consented to these calls, her claims related 

to the few calls she asserts are still in the putative class also fall outside her own class definition. 

As such, she is not an adequate representative. (See infra, Sec.s II.C & III.B.) For this reason 

alone, her Motion must be denied. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 7 of 38 PageID #:2531
2 

Moreover, courts have consistently rejected certification of TCPA classes where consent 

is likely to be a significant issue, particularly where the defendant “sets forth specific evidence 

showing that a significant percentage of the putative class consented to receiving calls on their 

cellphone.” Jamison v. First Credit Servs., 290 F.R.D. 92, 106-07 (N.D. Ill. Mar. 28, 2013). 

Santander makes precisely such a showing here. (See infra, Section II.B.) Santander’s robust 

TCPA compliance program to obtain and document consent is demonstrated by Levins’ own 

account notes, which show she provided consent. Because consent is documented at the account 

level, however—in credit applications, call recordings, individualized account notes and other 

miscellaneous documents—any attempt to identify a class of individuals who did not give 

consent necessarily implicates an individualized exercise, rendering class treatment 

inappropriate. Jamison, 290 F.R.D. at 106-07. 

Levins ignores these insurmountable difficulties and contends that to certify a class all a 

court may require is that the class be “clearly” defined, its membership be identifiable by 

“objective criteria,” and that the data necessary to do so reside with the defendant; nothing more. 

(Mem. in Support of Pl. Levins’s Mot. for Class Cert. (Dkt. 103) (“Pl.’s Mem.”) at 14-16.) That 

is not the law in this Circuit or any other. As the Seventh Circuit has made clear, a court must 

consider “the likely difficulties in managing a class action” when determining whether the 

proposed class “is superior to other available methods for fairly and efficiently adjudicating the 

controversy.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015). 

Here, Levins has not met her burden to show that the proposed class is either manageable 

or superior, nor can she. Whether the putative class is defined as all customers who received 

calls, some without consent, or, as Levins proposes, only those customers who did not consent, 

the practical result is the same—literally millions of account records will have to be reviewed 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 8 of 38 PageID #:2532
3 

and individual determinations regarding consent will have to be made as to each call made to 

each number called. Identifying which of the calls were made to cell phones, and then 

identifying the subscribers to those phones (as required by Levins’ class definition), only adds 

further complexity to an already impossible task. 

This is not a question of whether Levins can or should be required to identify putative 

class members with precision pre-certification but whether she could ever identify them and, if 

so, at what cost. After four years of litigation and discovery, Levins offers no methodology for 

the review of the millions of customer records implicated, what this monumental task might 

require, or, more importantly, any credible indication of how many class members this 

unprecedented task might yield. Not surprisingly, Levins’ Motion fails even to mention her 

expert, Serge Jorgensen, who was specifically designated to fashion a methodology for 

identifying class members but failed to do so. (See infra, Sec. II.D.) By contrast, Santander 

demonstrates here that this effort would cost millions of dollars, take years, and likely only prove 

that the overwhelming majority, if not all, of its customers gave consent to be called—consistent 

with Santander’s compliance program. (See infra, Sec. II.B.)

This is not a situation where putative class members would be deprived of a viable 

recourse absent certification because the value of claims is so low that “only a lunatic or fanatic” 

would litigate individually. See, Mullins, 795 F.3d at 665. TCPA violations are subject to 

penalties of from $500 to $1,500 per call, turning single-plaintiff TCPA litigation into a cottage 

industry. Indeed, Levins’ own lawyers in this case have filed dozens of such individual TCPA 

cases, including against Santander. (See infra, Sec. III.D.2.) Indeed, Espejo and Levins appear 

to be pursuing individual TCPA claims that fall outside the class definition. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 9 of 38 PageID #:2533
4 

Rule 23’s requirements are not easily satisfied. It is Levins’ burden to show that a class 

action is proper here. See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). Because 

Levins fails to meet that burden, her Motion should be denied. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

A. Of the Thirteen Original Named Plaintiffs, Only Faye Levins Seeks 

Certification of a TCPA Class Against Santander. 

Santander is a specialized consumer finance company focused in large part on vehicle 

finance. (06/10/16 Declaration of Wayne Nightengale (attached as Ex. 4) at ¶ 2.) To service these 

loans, Santander must communicate with its customers by telephone. (Id.) 

In this and the other related matters pending before this Court, thirteen individual 

plaintiffs alleged that certain of Santander’s telephone communications did not comply with the 

TCPA. (06/09/16 Decl. of Henry Pietrkowski (attached as Ex. 12) at ¶ 2.) Four years later, only 

Levins and Espejo remain, the others having been dismissed; and only Levins moves for class 

certification. (Id.) 

On November 11, 2015, at Santander’s insistence and this Court’s direction, Levins and 

Espejo finally disclosed what was to be their “final” class definitions, consisting of four 

subclasses, which purported to include the claims of both Espejo and Levins. (Id. at ¶ 2 and Ex. 

A.) However, by this Motion, Levins seeks to certify a different Class and Subclass, dropping 

two of her “final” proposed subclasses and altering the remaining two, as follows: 

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 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 10 of 38 PageID #:2534
5 

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. 100, at ¶ 4; Ex. 12 at ¶ 6.) 

Levins excludes from the classes any “individuals who executed a financing application 

or agreement containing an arbitration clause with Santander or any of its originating creditors,” 

“individuals who provided Santander with releases or waivers of their TCPA claims,” and 

“individuals who have filed any lawsuit or arbitration against Santander asserting a TCPA 

claim.” (Dkt. 100 at 2 n.1; Ex. 12 at ¶ 6.) 

B. Santander Obtains Prior Express Consent Before Placing Calls To 

Individuals, Including By Verifying the Numbers Directly. 

1. Santander Follows a Robust TCPA Compliance Program. 

Santander employs the Aspect Telephone System to receive inbound calls and make 

outbound calls. (10/22/14 Dep. of Wayne Nightengale (attached as Ex. 10) at 42:8-18.) This 

system offers various dialing modes or features for making outbound calls. (Ex. 4 at ¶ 6.) For 

some of the calls Santander attempted during the putative class period, Santander used the dialer 

feature of the Aspect Telephone System. (Id.) In particular, the dialer would initiate calls to 

telephone numbers from a daily-provided list of criteria-selected telephone numbers when 

associates pressed computer screen buttons to indicate their availability to receive new calls. (Id.) 

Santander also manually dials telephone numbers using the Aspect Telephone System, with 

Santander associates either typing in the 10 digit telephone numbers, or bringing the customer or 

other account-related numbers up on their computer screens and clicking those numbers. (Id. at 

¶ 7.) Pursuant to her class definition, however, Levins only takes issue with the calls Santander 

made using the “Aspect dialer” feature of Santander’s system. (Pl.’s Mem. at 11; see also Dkt. 

100 at ¶ 4 (“using the Aspect dialer system”.)

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 11 of 38 PageID #:2535
6 

Santander has made significant investments in system staffing and technology to ensure 

that its servicing activities comply with federal and state consumer debt collection and 

communication rules. (Ex. 4 at ¶ 8; see also 08/17/15 Dep. of Michelle Rodgers (attached as Ex. 

11) at 24:16-24, 34:8-11, 35:6-15, 50:15 to 51:1; 57:2-14 (Santander has a TCPA policy); 28:24 

to 29:14 (Santander performs review and update of policies on at least an annual basis); 32:5-16 

(Santander receives updates to TCPA regulation from counsel and regulatory publications).) All 

employees, for instance, receive annual training on how to comply with the TCPA and other 

relevant consumer protection laws. (Ex. 11 at 20:21-25, 37:8-10; 07/21/15; Dep. of Joseph Burda 

(attached as Ex. 5) at 27:9 to 28:12, 35:7-18; Ex. 10 at 129:13 to 130:6.) 

Santander also maintains written TCPA policies that it updates periodically, as 

regulations change, the company adopts new documentation requirements, or counsel provides 

additional guidance. (Ex. 10 at 128:3-15; Ex. 11 at 58:12-25, 60:8-23, 68:3-5; see also, Ex. 12 at 

Ex. D: SCUSA TCPA Policy Publication Dates: April 2012 (SCUSA/E 11035-38), 12/27/12 

(SCUSA/E11039-42), Jan. 2014 (SCUSA/E 11030-34), Sept. 2014 (SCUSA/E 00803-7) and 

02/1/0/15 (SCUSA/E 55365-74).) Those written policies emphasize Santander’s policy of using 

the dialer to call a person only when he or she first has given permission to be contacted at that 

number. (Ex. 12 at Ex. D: SCUSA/E 0805-806, 11032-33, 11037, 11042, 55369-70.) Quality 

assurance teams also perform account reviews and grade phone calls between Santander’s agents 

and its customers to ensure adherence to policies and procedures as well as compliance with 

regulatory rules. (Ex. 10 at 33:4-22; Ex. 11 at 83:12 to 84:16; 07/17/15 Dep. of Mark Nerios 

(attached as Ex. 9) at 141:6-23.) Failure to follow TCPA policies can result in disciplinary 

action, including termination for intentional violations. (Ex. 10 at 132:25 to 134:4.) Thus, 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 12 of 38 PageID #:2536
7 

Santander has in place a compliance scheme that assures it receives its customers express 

consent prior to using its dialer to contact their cell phone numbers. (Ex. 4 at ¶ 8.) 

2. Santander Maintains Procedures To Obtain Consent from Consumers 

and To Document that Consent in Individual Account Notes. 

Credit applications and other loan files serve as a primary source from which Santander 

obtains its customers’ express consent to receive calls, and these files are stored individually in 

scanned pdf format. (10/29/14 Decl. of Wayne Nightengale (attached as Ex. 1) at ¶ 10; Ex. 9 at 

26:17 to 27:3.) Santander also obtains consent during calls with customers. (Ex. 9 at 51:7 to 

52:8.) Santander associates are trained to confirm in each in-bound call whether the number on 

which the caller contacted Santander is a good number to contact the caller regarding the 

customer account identified. (04/21/16 Decl. of Wayne Nightengale (attached as Ex. 3) at ¶ 5; 

Ex. 9 at 37:22 to 41:2, 49:15 to 52:8.) Santander also periodically verifies contact information 

with its customers, confirming the telephone numbers on which the customers want Santander to 

contact them. (Ex. 9 at 46:1-16, 60:15-23; 12/02/15 Decl. of Wayne Nightengale (attached as Ex. 

2) at ¶ 9.)1

 Santander further employs software that prompts agents to verify contact information, 

again confirming the telephone numbers are good numbers on which to contact the person 

associated with the telephone number. (Ex. 3 at ¶ 5.) 

Santander maintains customer information on the “My Supervisor” or “My Sup” host 

system—a graphic interface that sits on top of a commercially available customer account 

management system. (Ex. 10 at 52:25 to 53:9.) Company employees enter some, but not 

necessarily all, telephone numbers contained in credit applications and loan files into this host 

system when setting up customer accounts. (Ex. 9 at 29:14-21; Ex. 12 at 90:23 to 91:7) 

Associates further record the oral consent they receive when talking with callers in the activity 

 

1

 “Verification” can mean confirming that a number is a good contact for a customer, or simply 

reaffirming a contact number that Santander already has consent to call. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 13 of 38 PageID #:2537
8 

notes maintained in My Sup, (Ex. 1 at ¶ 18; Ex. 10 at 74:8-22), and the computer systems update 

the activity notes when the company receives consent in written form such as in emails or chat 

transcripts. (Ex. 4 at ¶ 15.) Like the other forms of oral and written consent Santander receives, 

the company’s associates also record verifications in the activity notes. (Ex. 2 at ¶ 10.) Lastly, in 

recent years, Santander also audio records orally provided consent, a process documented in its 

2015 revision to its TCPA policies. (Ex. 11 at 71:8 to 72:12; Ex. 12 at Ex. D: SCUSA/E 55370.)2 

Santander also obtains consent to call telephone numbers that it sources through what 

Levins refers to as “number trapping.” (See Pl.s Mem. at 6.) Santander’s telephone system 

identifies the telephone numbers its customers or other persons related to customer accounts use 

to call Santander. (Ex. 3 at ¶ 5.) When Santander receives an in-bound call, it’s “Interactive 

Voice Response System,” or “IVR,” prompts the caller to enter or provide an account number, 

social security number and other identifying information. (Ex. 10 at 94:25 to 95:12.) If not 

previously entered into My Sup, Santander’s IVR system will identify the number as “IVR1.” 

(Ex. 9 at 41:6-24, 117:12-16; Ex. 4 at ¶¶ 29-30.) 

When the IVR system then transfers the call to an associate, that associate, in accordance 

with Santander’s training, asks the caller to identify the type of phone (e.g., “home,” “cell”), and 

confirm that the identified number is a good number on which to contact the caller. (Ex. 9 at 

37:22 to 40:10; 49:15 to 50:4.) If so, the associate updates Santander’s activity notes to show the 

phone as, for example, “IVR-HOME,” thus signifying both the type of phone, and the express 

consent, associated with that phone number. (Id.; Ex. 4 at ¶ 29.) (As discussed below, this is 

 

2

 Plaintiff falsely contends that Santander by policy only accepted written consent to make cell phone 

calls until 2014, (Pl.’s Mem. at 17), misconstruing Santander’s policy of requiring written consent prior to 

making marketing calls as opposed to the collections calls at issue here. (See Ex. 4 at ¶ 15.) In 

fact, Santander accepted verbal consent to call cell phone numbers regarding collections matters, as 

demonstrated by its verbal verification process, which Plaintiff includes as part of her proposed class 

definition. (See Pl.’s Mem. at 11.) 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 14 of 38 PageID #:2538
9 

what occurred in Levins’ case.) Significantly, until that such identification and express consent is 

received, Santander does not use its dialer to contact the IVR-sourced phone. (Ex. 4 at ¶ 30.) 

Additionally, if the person associated with the telephone number indicates he or she does not 

want Santander to use the IVR number in the future, the associate enters a “do-not-call” code and 

the Santander software prevents further outbound calls to that number. (Ex. 4 at ¶ 29; Ex. 3 at 

¶ 6.)3

Thus, if necessary, Santander can prove express consent to call a particular cell telephone 

number by reference to the activity notes, scanned copies of financing documents including loan 

applications, audio records and other miscellaneous documents associated with the account on a 

file-by-file basis. (Ex. 1 at ¶ 18.) As discussed further below, Santander cannot conduct this 

review automatically across a large portfolio of accounts. (Ex. 4 at ¶ 23.) 

C. Santander’s Records Show Levins Gave Consent To Receive Calls from 

Santander and Is Therefore Excluded from Her Own Class Definition; 

Espejo Is Excluded for the Same Reason. 

When Levins missed payments on her 2009 car loan (07/14/15 Deposition of Faye Levins 

(attached as Ex. 8) at 52:11-53:12; Ex. 12 at Ex. E: SCUSA/B 43-46, 50; Ex. 3 at ¶ 24.) 

Santander contacted Levins at three cell phone numbers ending in 6954, 9678 and 6074. (Pl. 

Faye Levins’ First Supp. Ans. To Def.’s First Set of Interrogatories, Resp. to Interrog. 3 

(attached as Ex. 13); Ex. 3 at ¶ 23.) 

Santander’s records show that it obtained the 6954 number from Levins’ January 31, 

2009 credit application, where she identified the 6954 number as both her “home” and “cell” 

 

3

 The same can be said of the so-called “skip traced” numbers. Santander employs third party external 

databases, such as Lexis-Nexis’ Accurint, to find telephone numbers associated with its customers and 

records the skip work in the activity notes for the relevant accounts. (Ex. 10 at 91:8 to 92:7; 125:15 to 

126:5; Ex. 9 at 80:20 to 81:7.) Until Santander receives and records the telephone number user’s express 

consent to Santander’s use of that number as a good contact number, however, Santander will not use its 

dialer to call that telephone number. (Ex. 4 at ¶ 8.) 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 15 of 38 PageID #:2539
10 

phone numbers. (Ex. 8 at 30:5-13, 31:1-6; Ex. 12 at Ex. E: SCUSA/B 00053-54; Ex. 9 at 26:17 

to 27:9.) The credit application contained Levins’ written prior express consent to receive calls 

and text messages to numbers listed on the application. (Ex. 8 at 34:17 to 35:80; Ex. 12 at Ex. E: 

SCUSA/B 00053-54.) 

Levins provided Santander with oral 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. (Ex. 8 at 113:8-12, 114:8-

15; audio recording of the May 14, 2012 phone call (Ex. 12 at Ex. F: SCUSA/B00076).) 

With regard to the 6074 telephone number, Santander’s activity notes for Levins’ account 

for that March 27, 2009 call reflect the following information: 

IB CUSTOMER PTP DPD:10 INCOMING CALL FROM (xxx) xxx-6074 

(IVR1'S HOME). SPOKE WITH FAYE LEVINS. PROMISE ONE: 358.73 ON 

3/27/2009 BY SPEED PAY CON# 8939237 REVIEW DATE:3/28/2009 

(Ex. 4 ¶ 34; Ex. 12 at Ex. D: SCUSA/E 48564.) 

Translated into plain English, this note records Santander’s receipt of an inbound (“IB”) 

call from the 6074 telephone number and a live conversation between Santander’s associate and 

Levins about her 10 days past due (“DPD:10”) account. (Ex. 4 at ¶ 34) Levins promised to pay 

(“PTP”) a payment of $358.73, which she immediately made over the phone using “SPEED 

PAY.” (Id.) Importantly, Santander’s March 27, 2009 activity notes designate the 6074 telephone 

number as “IVR1’S HOME.” (Id. at ¶ 35.) As set forth above (see Section II.B.2), the 

designation of Levins’ IVR number as a “home” or “cell” number indicates that the agent who 

spoke to Levins not only identified the 6074 number as her “home” telephone number, but also, 

pursuant to Santander’s procedures, confirmed 6074 as a good number on which to contact her. 

(Id.) The “IVR1’S HOME” entry in the activity notes therefore confirms that Levins gave 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 16 of 38 PageID #:2540
11 

Santander express consent to contact her at the 6074 number the very first time that she spoke 

with an agent using that number on March 27, 2009. (Id. at ¶ 36.) 

Similarly, Henry Espejo also gave consent to be called in relation to his wife’s Santander 

account. As reflected in the activity notes for Mrs. Espejo’s account, on November 4, 2009, both 

Mr. and Mrs. Espejo together called Santander using a number ending -1411. (Ex. 12 at Ex. D: 

SCUSA/E 0799-800; Ex. 3 at ¶ 15.) During that call, Mrs. Espejo agreed that Santander could 

talk to Mr. Espejo about her debt (i.e., as recorded in Maria Espejo’s activity notes, 

“PERMANENT NOTE (0109) OKTT HENRY ESPEJO”). (Ex. 12 at Ex. D: SCUSA/E 00799-

800; Ex. 3 at ¶ 15.) (Note: “OKTT” = ‘OK to talk to.’) Santander also obtained Mr. Espejo’s 

confirmation that the 1411 telephone number was the appropriate telephone number at which to 

reach him, as Mr. Espejo confirmed in deposition testimony. (Ex. 9 at 51:7 to 52:8; 12/02/14 

Dep. of Henry Espejo (attached as Ex. 6) at 74:5-12; Ex. 12 at Ex. D: SCUSA/E 00800.) 

D. The Parties Engaged in Extensive Fact and Expert Discovery Including the 

Production of 400 Santander Account Files for Plaintiffs’ Review. 

 During the course of discovery, Plaintiffs sought and obtained Santander’s production of 

a 400-account sample of activity notes and associated financing documents (Ex. 2, ¶¶ 3-4). 

Levins also designated Serge Jorgensen, her sole expert, to “determine if it would be feasible to 

use data [in Santander’s records to] develop a process to automatically review that data to . . . 

identify members of a potential class.” (11/18/15 Deposition of Serge Jorgensen (attached as Ex. 

7) at 18:2-19:2.) Levins makes no mention in her Motion of the 400 sample accounts or 

Jorgensen. 

Jorgensen confirmed that the only material he reviewed for his expert opinions were the 

Plaintiffs’ Complaints and the 400 sample account files. (Id. at 48:3-49:23.) In an attempt to 

develop a methodology for identifying class members, Jorgensen performed cursory searches of 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 17 of 38 PageID #:2541
12 

400 sets of sample activity notes, but could not establish a valid methodology for meeting 

Levins’ then-proposed class definitions. Jorgensen’s searches of the activity notes focused on 

whether Santander’s records showed that a cell phone number had been “verified.” (Id. at 

141:11-18.) Jorgensen chose the word “verified” because it “jumped out” at him; he could not 

say whether Santander used any other terms besides “verified” to denote authorization or 

consent. (Id. at 142:9-143:2.) Even where Jorgensen claimed to isolate five accounts where cell 

phones were called without being “verified,” he did nothing to validate those results by manually 

reviewing the activity notes but rather testified that his “intent” was “not to provide an analysis 

of [the] calls” but simply to run the queries. (Id. at 156:11-158:6.) Jorgensen admitted that he did 

not understand the codes Santander used in its records and therefore simply ignored them. (Id. at 

94:18-95:13, 121:10-122:9, 122:22-124:9.) 

Further, Jorgensen conceded that to identify any potential class members, he would need 

input from “Santander technical teams to develop a set of queries and a set of analysis around all 

of the data here.” (Id. at 173:3-11.) Ultimately, Jorgensen’s opinion amounted to a statement that 

he could search records for instances of the word “verified” in proximity to the word “cell.” (See 

id. at 156-158).

Santander designated a rebuttal expert, Sonya Kwon of Navigant Consulting, who 

identified numerous errors and inconsistencies in Jorgensen’s analysis and approach. (See Ex. 12 

at Ex. B, Expert Report of Sonya Kwon (“Kwon Rep.”).) In particular, Kwon demonstrated that 

Jorgensen’s search results could not be replicated, and that Jorgensen did not understand the data 

he analyzed, relied on unfounded assumptions, made methodology errors, and failed to consider 

all of the data available to him. (Id. at ¶¶ 8, 11-14, 17-24, 26-34, 36.) In short, Kwon’s testimony 

undermined any assertion that Jorgensen could present, or had presented, a viable methodology 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 18 of 38 PageID #:2542
13 

for identifying class members. On cross examination, even Jorgensen readily admitted he had not 

developed a process that specifically identified persons in any of the four proposed class 

definitions Plaintiffs’ counsel disclosed on November 11, 2015. (Ex. 7 at 213:11 to 214:1.) 

On December 8, 2015, Santander also disclosed an expert witness, Dr. Debra Aron, who 

opined that “identifying accurately all telephone numbers that satisfy the criteria of the TCPA 

Class or its Subclasses as defined by Plaintiffs requires, at a minimum, knowing the identity of 

the named telephone account subscriber . . . on the date of the call to that number.” (See Ex. 12 at 

Ex. C (“Aron Report”) at 5.) Dr. Aron stated that she had seen “no evidence that the identity of 

the subscriber or primary user of a called telephone number at the time of a specific call to that 

number in the past, can be obtained by a current review of Santander’s historical records,” and 

indeed that “identifying the intended called party would require an account-by-account review.” 

(Id.) Dr. Aron ultimately concluded that, “Plaintiffs have not offered any methodology for 

identifying the telephone numbers belonging to the classes they have defined nor any uniformly 

reliable means of identifying the individuals associated with those telephone numbers at the time 

the calls were placed.” (Id. at 6.) Although Levins sought and was given an opportunity to 

designate a rebuttal witness to respond to these conclusions (Dkt. 84, 87), Levins left Dr. Aron’s 

report unrebutted. 

III. ARGUMENT 

A class action is “an exception to the usual rule that litigation is conducted by and on 

behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 

(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979)). It is the plaintiff’s burden 

to show that a class action is a proper vehicle for this lawsuit. See Comcast Corp. v. Behrend, 

133 S.Ct. 1426, 1432 (2013). To certify a class action, the plaintiff “must affirmatively 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 19 of 38 PageID #:2543
14 

demonstrate his compliance with” all of the requirements of Rule 23(a): (1) numerosity, (2) 

commonality, (3) typicality, and (4) adequacy of representation. Dukes, 564 U.S. at 345; Gen 

Tel. Co. Sw. v. Falcon, 457 U.S. 147, 161 (1982); Chicago Teachers Union, Local No. 1 v. 

Board of Educ. of City of Chicago, 797 F.3d 426, 433 (7th Cir. 2015). Plaintiff must further 

establish that (1) the questions of law or fact common to the class members predominates over 

questions affecting only individual members, and (2) that a class action is the superior method of 

adjudication. Fed.R.Civ.P. 23(b)(3). 

These requirements are not easily satisfied. A putative class representative must 

“affirmatively demonstrate” compliance with Rule 23 through “evidentiary proof”—mere 

allegations are insufficient. Comcast, 133 S.Ct. at 1432; see also Falcon, 457 U.S. at 160 

(“actual, not presumed, conformance with Rule 23(a) remains ... indispensable.”); Szabo v. 

Bridgeport Mach., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). And the court must apply a strict 

burden of proof and conduct a “rigorous analysis” to conserve judicial resources, protect 

defendants, and safeguard the interests of absent class members whose claims the named 

plaintiffs seek to litigate. Falcon, 457 U.S. at 161; see also, Jamie S. v. Milwaukee Pub. Sch., 

668 F.3d 481, 493 (7th Cir. 2012). 

Levins asserts claims against Santander for violation of the TCPA. 47 U.S.C. § 227. The 

TCPA, in relevant part, makes it unlawful for any person “to make any call (other than a call 

made for emergency purposes or made with the prior express consent of the called party) using 

any automatic telephone dialing system” (“ATDS”) or an “artificial or prerecorded voice” to 

“any telephone number assigned to a...cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii); 

see also Connelly v. Hilton Grand Vacations Co., LLC, 294 F.R.D. 574, 577 (S.D. Cal. 2013). 

For purposes of certifying a TCPA class, then, Levins must demonstrate that “individual 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 20 of 38 PageID #:2544
15 

adjudication of the pivotal element of prior express consent is unnecessary.” See Connelly, 294 

F.R.D. at 577. 

A. Levins Attempts To Certify An Improper Fail-Safe Class. 

Rule 23 implicitly requires that a plaintiff clearly define her proposed class using 

objective criteria. Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015). A district 

court must understand at the class certification stage “the burdens that [identification of the class] 

might entail” so that “the court can decide whether the class device simply would be an 

inefficient way of trying the lawsuit....” Simer v. Rios, 661 F.2d 655, 670 (7th Cir. 1981). 

Further, the court must ensure “that those who will be bound by the judgment are clearly 

identifiable.” Driver v. Appleillinois, LLC, No. 06–cv–6149, 2013 WL 5818899, at *8 (N.D. Ill. 

Oct. 29, 2013); see also Spano v. The Boeing Co., 633 F.3d 574, 584 (7th Cir. 2011). 

“Fail-safe” classes fail the ascertainability test because they improperly base class 

membership on the defendant’s liability, which results in either a class member “win[ning], or by 

virtue of losing, [being] defined out of the class and ... therefore not bound by the judgment.” 

Mullins, 795 F.3d at 660 (citing Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 825 

(7th Cir. 2012)).4

 

Levins proposes an improper fail-safe class here because she excludes those persons 

whose claims will fail on the grounds they provided express consent (through credit applications 

or other oral or written communications). (Motion at ¶ 4.) Levins has thus defined the class in 

 

4

 Fail-safe classes exist where the class definition refers to the defendant’s purported “illegal” or 

“impermissible” conduct (see Dafforn v. Rousseau Assocs., Inc., No. F 75-74, 1976 WL 1358, at *1 (N.D. 

Ind. July 27, 1976); Panwar v. Access Therapies, Inc., No. 12-00619, 2015 WL 329013, at *3 n.3 (S.D. 

Ind. Jan. 22, 2015)), concerns the plaintiff’s “entitle[ment] to relief” (Randleman v. Fid. Nat. Title Ins. 

Co., 646 F.3d 347, 352 (6th Cir. 2011)), “is in essence framed as a legal conclusion” (see Indiana State 

Emp. Ass’n, Inc. v. Indiana State Highway Comm’n, 78 F.R.D. 724, 725 (S.D. Ind. 1978)), 

“incorporate[s] elements of the merits of the[] claims” (John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 

988, 992 n.1 (S.D. Ind. 2007)), or “beg[s] the question of liability” (Lucas v. Vee Pak, Inc., 68 F. Supp. 3d 

870, 880 (N.D. Ill. 2014)). 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 21 of 38 PageID #:2545
16 

terms of the merits—i.e., lack of “prior express consent.” 47 U.S.C. § 227(b)(1)(A)(iii). Under 

her class definition, a cell phone subscriber called by Santander might obtain the benefit of an 

adjudication that Santander did not place a call using an ATDS; however, if the same individual 

provided consent or their TCPA claim otherwise falls outside Levins’ ornate class definition, that 

putative class member suddenly drops from the class with no res judicata benefit to Santander. 

In other words, a member of Levins’ class would either “win, or by virtue of losing, be defined 

out of the class.” See Mullins, 795 F.3d at 660. Levins’ proposed class definition therefore is 

improper as a matter of law. 

Levins’ class definition mirrors the definition rejected on fail-safe grounds in 

Genenbacher v. CenturyTel Fiber Co. II, 244 F.R.D. 485, 487-88 (C.D. Ill. 2007). There, the 

plaintiff defined his class as owners of property on which the defendant installed fiber optic 

cable without obtaining an easement or the owner’s consent. Id. at 487. Noting that the defendant 

should receive a judgment in its favor if it proved either an easement or consent, the Court found 

the plaintiff’s class definition would prevent the entry of “judgment against that particular owner 

because the owner would no longer fit the class definition.” Id. at 488. In other words, class 

members who gave consent would be defined out of the class, denying the defendant the benefit 

of res judicata—just as Levins’ definition would do here. Id. Levins’ class fails for the same 

reason. 

B. Levins Cannot Serve as a Class Representative Because She Is Not a Member 

of the Class She Seeks To Certify.

The typicality prerequisite under Rule 23(a)(3) requires that the court must find the 

claims or defenses of the representative parties are typical of the claims or defenses of the class. 

See Fed.R.Civ.P. 23(a)(3). As applied here, this means to have “standing as a class 

representative, the plaintiff must be part of the class....” See In re Potash Antitrust Litig., 667 F. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 22 of 38 PageID #:2546
17 

Supp. 2d 907, 924 (N.D. Ill. 2009), aff’d upon reh’g en banc sub nom. Minn-Chem, Inc. v. 

Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). Levins is not an adequate representative because she 

is not a member of the class she seeks to certify. 

For purposes of her class certification motion, Levins purports to litigate only nineteen 

calls to her 6074 number out of the “hundreds” of calls she complains she received “despite 

numerous requests to stop” (see Pl.’s Mem., at 10-11), leaving those other calls to be pursued 

individually, if at all. However, Levins excludes from her class definition individuals who gave 

consent before Santander called their cell phone numbers “as reflected in Santander’s 

records.” (Motion at ¶ 4.) As set forth above, those records show that Santander’s associate 

spoke to Levins when she called in and the 6074 number was “captured” and, pursuant to 

Santander’s procedures, confirmed that it was her home number and a good number at which to 

contact her. (See Ex. 4, ¶¶ 33-36; see also Sec. II.C. supra.) Accordingly, Santander’s records 

“reflect” that Levins consented to Santander calling her 6074 number and, as such, Levins falls 

outside her own class definition. 

The typicality requirement ensures that the named representative’s claims “have the same 

essential characteristics as the claims of the class at large.” Oshana v. Coca-Cola Co., 472 F.3d 

506, 514 (7th Cir. 2006) (internal quotations omitted). Levins fails to establish this prerequisite 

to certification. See Fed.R.Civ.P. 23(a)(3). Because Levins’ TCPA claim falls outside the class 

definition, she does not share “the same essential characteristics as the claims of the class” and 

cannot meet the typicality requirement. 

 Levins is also inadequate to serve as a class representative under Rule 23(a)(4), which 

requires that “the representative parties will fairly and adequately protect the interest of the 

class.” Fed.R.Civ.P. 23(a)(4). While the adequacy and typicality requirements “tend[] to merge,” 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 23 of 38 PageID #:2547
18 

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997), the focus is on “the adequacy of 

the named plaintiffs as representatives of the proposed class’s myriad members, with their 

differing and separate interests.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 

2011). 

Here, Levins will be preoccupied defending Santander’s Motion for Summary Judgment 

and, even if she can survive that motion, litigating her own consent claims by disputing the 

meaning or “accuracy” of Santander’s records. This incentive is at odds with the class, whose 

members are per se bound to accept the meaning of those records—based on Levins’ class 

definition. See Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2016 WL 25711, at *5 (N.D. Ill. Jan. 4, 

2016) (holding that one of the named plaintiff’s claims was not typical and that she would not be 

an adequate representative because the defendant had evidence of consent to text her); Kaye v. 

Amicus Mediation & Arbitration Grp., Inc., 300 F.R.D. 67, 79 (D. Conn. 2014) (holding that 

plaintiff’s claims were typical only of those class members whose phone numbers were obtained 

by the defendant in the same way plaintiff’s phone number was obtained because for the other 

subclasses generalized proof was lacking). 

Levins’ claims are not typical of the class and she cannot adequately represent the class, 

because she does not fall within the class definition and is subject to an individualized defense. 

On these grounds alone, her Motion fails and must be denied. See Fed.R.Civ.P. 23(a)(3), (4). 

C. Levins Cannot Establish Commonality as Required by Rule 23(a)(2).

Commonality requires a plaintiff to show that “there are questions of law or fact common 

to the class.” Fed.R.Civ.P. 23(a)(2); Dukes, 564 U.S. at 349. The plaintiff must demonstrate that 

the class members have suffered the same injury—not “merely that they have all suffered a 

violation of the same provision of law.” Dukes, 564 U.S. at 350. The class claim must rest upon a 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 24 of 38 PageID #:2548
19 

common contention, and that contention “must be of such a nature that is capable of classwide 

resolution—which means that determination of its truth or falsity will resolve an issue that is 

central to the validity of each one of the claims in one stroke.” Id. “If, to make a prima facie 

showing on a given question, the members of a proposed class will need to present evidence that 

varies from member to member, then it is an individual question.” Messner, 669 F.3d at 815 

(quoting Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)). 

None of Levins’ proposed “common” questions can satisfy the commonality requirement. 

Levins argues that “whether Santander can demonstrate consent is a common question.” (See 

Pl.’s Mem., at 20.) Levins admits, however, that “the only individuals in the class are those for 

whom Santander has no evidence or other indicia of prior express consent.” (Id.) Thus, absence 

of consent is a common characteristic of the class members, but is not a common question, the 

truth or falsity of which “will resolve an issue that is central to the validity of each one of the 

claims in one stroke.” Dukes, 564 U.S. at 350. Of course, this highlights the circular nature of 

Levins’ proposed definition: Levins argues that consent is a common question, while at the same 

time her class definition seeks to avoid a trial involving individualized consent determinations. 

Either consent is not a question to be answered at trial (in which case it is not relevant to the 

commonality showing required under Rule23(a)(2)) or consent is at issue, in which case 

commonality fails for lack of common evidence. See Dukes, 564 U.S. at 350; Balthazor v. Cent. 

Credit Servs., Inc., No. 10-62435-CIV, 2012 WL 6725872, at *5 (S.D. Fla. Dec. 27, 2012) 

(holding that the plaintiff “fail[ed] to establish commonality because consent is an individualized 

issue”).5

 Levins cannot have it both ways. 

 

5

 Levins also contends that whether “Santander’s dialing equipment falls within the definition of an 

ATDS is a common question.” As set forth in Santander’s Motion for Summary Judgment, however, 

Santander has several processes for making calls, which invoke different levels of human intervention 

during the call process. (See SOF 49-54.) The degree of human intervention is a relevant factor in 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 25 of 38 PageID #:2549
20 

Levins also argues that “whether the Class suffered the same injuries is a common 

question,” but this argument fails as well. As the Supreme Court recently confirmed in Spokeo, 

Inc. v. Robins, 578 U.S. __, 136 S.Ct. 1540, 1548 (2016), to give rise to Article III standing a 

plaintiff must demonstrate an injury-in-fact that is particularized—i.e., specific to the plaintiff—

and concrete—i.e., real, not abstract. As set forth in more detail below, the evidence necessary to 

prove such an injury for Levins will not be same evidence used to establish injury for other class 

members, such as those who never received the calls. And Levins seeks treble damages alleging 

Santander acted willfully but makes no showing that willfulness resulted from some common 

conduct that would allow for a willfulness determination “in one stroke.” Dukes, 564 U.S. at 

350; Fed.R.Civ.P. 23(a)(2); (see infra, Section III.E.2.)

D. Levins’ Proposed Class Is Patently Unmanageable and Inferior To 

Individual Actions, and Levins Fails To Establish that Common Issues 

Would Predominate in a Class Trial.

In addition to meeting the requirements of Rule 23(a), Levins bears the burden of 

showing that “questions of law or fact common to members of the class predominate over any 

questions affecting only individual members and that a class action is superior to other available 

methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3) 

(emphasis added). A proposed class meets this standard only if it “achieve[s] economies of time, 

effort, and expense, and promote[s] . . . uniformity of decision as to persons similarly situated, 

without sacrificing procedural fairness or bringing about other undesirable results.” Amchem, 

521 U.S. at 615 (citing Fed.R.Civ.P. 23 Advisory Comm. Notes). 

 

determining whether equipment qualifies as an ATDS (See 2003 TCPA Order, 18 FCC Rcd at 14092 

(basic functions of an autodialer are to “dial numbers without human intervention.”). “How the human 

intervention element applies to a particular piece of equipment is specific to each individual piece of 

equipment, based on how the equipment functions and depends on human intervention, and is therefore a 

case-by-case determination.” See TCPA Omnibus Declaratory Ruling and Order, FCC 15-72 at para. 17. 

As to any given call, therefore, the answer to the question of whether the call was made using an ATDS 

will not rely on evidence common to the class. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 26 of 38 PageID #:2550
21 

As stated by the Seventh Circuit in Mullins, where a proposed class definition presents 

difficulties in how a court will ascertain class members, “plaintiff’s failure to address the district 

court’s concerns adequately may well cause the plaintiff to flunk the superiority requirement of 

Rule 23(b)(3).” Mullins, 795 F. 3d at 672. The first part of Rule 23(b)(3), i.e., the predominance 

inquiry, tests “whether proposed classes are sufficiently cohesive,” Amchem, 521 U.S. at 623, by 

asking whether “[i]ssues common to the class...predominate over individual issues.” In re 

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008). A court looks at “the 

substantive elements of plaintiffs’ cause of action and inquires into the proof necessary for the 

various elements.” Simer, 661 F.2d at 672. “If proof of the essential elements of the cause of 

action requires individual treatment, then class certification is unsuitable.” Hydrogen Peroxide, 

552 F.3d at 311. Unlike commonality, predominance is significantly more demanding, requiring 

more than a common claim. Amchem, 521 U.S. at 623-24. 

Rule 23(b)(3)’s superiority prong further requires a court to take “a close look at the case 

before it is accepted as a class action” to ensure that proceeding as a class “would achieve 

economies of time, effort, and expense.” Amchem, 521 U.S. at 615; Fed.R.Civ.P. 23(b)(3). In 

determining whether a class action is the superior method of adjudication, courts should 

consider: (1) the interest of class members in individually controlling the prosecution of separate 

actions; (2) the extent and nature of any litigation already commenced by class members; (3) the 

desirability or undesirability of concentrating the litigation in the particular forum; and (4) the 

difficulties likely to be encountered in the management of the class action. Fed.R.Civ.P. 

23(b)(3). Moreover, any difficulties likely to be encountered in the management of the class must 

be compared to the benefits offered by “other available methods” of adjudicating the claims. See 

Mullins, 795 F.3d at 663; Fed.R.Civ.P.23(b)(3). 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 27 of 38 PageID #:2551
22 

As numerous courts have found, the necessity of conducting an account-by-account 

review to identify the class members renders the class unmanageable. See Warnick v. Dish 

Network LLC, 301 F.R.D. 551, 557-58 (D. Colo. 2014) (holding that “the proposed class is not 

administratively feasible because identifying the class members is not a manageable process and 

would require extensive individual factual inquiry”); see also Gannon v. Network Tele. Servs., 

Inc., No. 12–9777, 2013 WL 2450199, at *4 (C.D. Cal. June 5, 2013), aff’d, 628 F. App’x 551 

(9th Cir. 2016) (holding that the manageability issues associated with ascertaining the proposed 

TCPA class, which excluded individuals who consented to the texts, prevented a finding of 

predominance and superiority). 

1. Levins Cannot Establish that a Class Action Would Be Superior To 

Individual TCPA Cases. 

a. Identification of Class Members Is Unmanageable. 

During the putative class period (i.e., December 2007 to present), Santander made at least 

one outbound call to roughly 5.5 million customer accounts. (Ex. 4 at ¶ 5.) 

To determine whether and how many dialer calls Santander made to telephone numbers 

associated with those accounts presents the first road block in determining membership in 

Levins’ proposed class. Santander has made both manual and dialer calls to telephone numbers 

during the class period, recording the calls in its My Sup records on an account basis. (Id. at 

¶¶ 7-8.) During the early part of this eight-year period, Santander identified calls in those records 

simply as “outgoing” calls with no reference to the type of call made. (Id. at ¶ 9.) In later years, 

Santander records reflect call-type information in the activity notes. (Id.) Thus, to determine 

those to whom an Aspect dialer system call was made implies a substantial undertaking in and of 

itself, and even then will not result in a clear identification of all such telephone numbers. (Id.) 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 28 of 38 PageID #:2552
23 

To determine whether an individual provided a given number in a credit application or 

financing or other miscellaneous documents, would require yet another manual, page-by-page 

review of those documents. (Id. at ¶¶ 13-14.) A further account-by-account review of the online 

activity notes associated with each of the 5.5 million customer accounts would be required to 

determine whether Santander had documented consent to call a number in a telephone call or 

other written communication. (Id. at ¶¶ 15-16.) Santander’s records also do not provide any way 

to accurately determine if the telephone number called is a cell phone number: although the 

records reflect “cell” information, that designation indicates only that a customer or caller 

identified a number as a “cell” phone. (Id. at ¶¶ 10-11.) But customers often describe cell phones 

as “home” or “work” numbers, or fail to inform Santander when they port landlines to cell phone 

service. (Id. at ¶ 10.) Associates recording this information also use terms such as “mobile” or 

“MBL” to describe cell phone numbers, thus further complicating any effort to weed out non-cell 

phone numbers. (Id.) 

Santander’s records do not identify telephone account subscribers either. (Id. at ¶ 12.) 

Levins’ proposed class claims could not be adjudicated until a further determination was made as 

to the identity of the subscriber to each number at issue, at the time each call at issue was made, 

and which calls were made following consent (so that those individuals could be excluded from 

the class). (Aron Report at 5.)6 Indeed, the Espejo call history illustrates this problem. Although 

Mr. Espejo is the plaintiff, the calls at issue in that case were placed in connection with Mrs. 

Espejo’s account, and a review of that account therefore would be required to identify Mr. 

Espejo. A similar review of every class member’s account would be required to determine those 

 

6

 Plaintiffs’ prior classes included both “primary users” and “subscribers” to phone numbers at issue—but 

Levins’ new definition is limited to named “subscribers” only. Dr. Aron’s analysis applies with even 

more force here, however, where Levins fails to propose any means of identifying the named subscriber 

to a given telephone number at the time a call was made to that number, or of confirming that the called 

party and subscriber were the same individual in order to fit within Levins’ class definition. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 29 of 38 PageID #:2553
24 

instances where the called party was someone other than the named account-holder. And, as 

described by Dr. Aron, even that individualized review would not reveal whether the called party 

was the named “subscriber” to the number called—a requirement of Levins’ new class 

definition—particularly at a given point in the past when a call was placed to that number. (See

id. at 5-6.) 

As Levins further wants to eliminate numbers subject to arbitration agreements or 

releases, Levins or this Court would further have to look at such provisions in the financing 

documents, as well as later executed agreements such as loan modifications, and then match 

those telephone numbers to the numbers called, in order to begin to ascertain class membership. 

(Ex. 4 at ¶¶ 21-22.) Customers with arbitration provisions would be excluded from the class, but 

calls to other individuals in connection with the account require further review, as the Espejos’ 

case proves. 

Plaintiff contends that “almost three million individuals were called by Santander or on 

its behalf, on numbers not provided in the loan applications.” (Pl.’s Mem. at 17.) However, the 

general approximations cited by Plaintiff do not eliminate the requirement to manually review 

each account on a call-by-call basis to determine whether the customer (1) had provided their 

cell phone numbers in connection with the debt transaction, (2) had otherwise provided 

Santander with oral or written consent to call that number, (3) was the “subscriber” on the 

account for the called number, (4) had a contract containing an arbitration clause, (5) filed his or 

her own individual TCPA lawsuit, or (6) previously released any claims against Santander. 

Lastly, simply because Santander identifies a number in the Activities Notes as an IVRcaptured number does not mean Santander did not have permission to call that number. (Ex. 4 at 

¶¶ 27-30.) As with Levins, consent may be obtained at the same time the number is “captured,” 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 30 of 38 PageID #:2554
25 

assuring that subsequent calls are made with consent. Indeed, associates record such consent to 

call IVR-sourced numbers in various ways in the Activity Notes (e.g., home, work, cell). Also, 

the fact that a number is “captured” does not confirm that no consent exists for that number in 

account documentation maintained outside My Sup. (Id. at ¶ 30.) Again, each account would 

need to be reviewed to determine whether Santander, in accordance with its policies, obtained 

consent to call an IVR-sourced phone number before using that number to make a dialer call.

Thus, identifying the telephone numbers for which Santander had consent to call, and are 

otherwise excluded from Levins’ putative class, is an extraordinarily involved and layered 

process, and Levins proposes no methodology for such an undertaking. When Santander 

undertakes such a review in response to individual TCPA claims, such reviews can take 

experienced Santander personnel from 6 to 8 hours per account. (Id. at ¶ 23.) Doing so with 

regard to 5.5 million accounts, would cost tens of millions of dollars, and take years to 

accomplish. (Id.) 

Levins for her part fails to propose any methodology for identifying individuals and 

phone calls implicated by her class definitions. Having abandoned Mr. Jorgensen, her proposed 

expert on this issue, Levins merely argues that the “path to certification here lies in Santander’s 

own records,” suggesting the Court will find the “source” of each phone number and “whether 

the number called was verified by the customer prior to being called” in such records. (Pl.’s 

Mem., at 1.) But that says nothing about how Levins plans to extract such information from the 

millions of records she would have to review to identify her putative class, or how she expects 

the Court to undertake the work either. Such an unsupported “assurance to the court that [Levins] 

intends or plans to meet the requirements [of Rule 23] is insufficient.” See Hydrogen Peroxide

552 F.3d at 318. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 31 of 38 PageID #:2555
26 

Under the circumstances here, and because Levins has no plan and can put forward no 

plan, the analysis set forth in Mullins dictates that her class cannot be certified. Mullins, 795 

F.3d at 663-64. 

b. Individuals Have the Necessary Incentive to Bring TCPA Claims. 

The fact that members of a putative class have sufficient incentive to bring individual 

claims further undermines a request for class certification under the Rule 23(b)(3) superiority 

analysis. Vigus v. S. Illinois Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 238 (S.D. Ill. 2011). 

The nature of the TCPA’s statutory damages scheme—$500 for every negligent violation and 

$1,500 for every willful violation—gives individual plaintiffs ample incentive to bring their own 

individual claims. Indeed, courts have recognized that “[t]he statutory remedy is designed to 

provide adequate incentive for an individual plaintiff to bring suit on his own behalf.” Forman v. 

Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D. Pa. 1995); see also Vigus, 274 F.R.D. at 238 

(noting that punitive class members in TCPA actions would have a superior remedy in more 

speedy venues such as, for example, a small claims court). And the legislative history of the 

TCPA demonstrates that Congress provided the substantial statutory damages so that consumers 

could bring claims on an individual basis. 137 Cong. Rec. 30,821-30822 (1991) (statements from 

the TCPA’s sponsor explaining the intent that consumers to bring the claims in small claims 

court so that they could appear without an attorney). Thus, the TCPA was designed with ample 

incentive for consumers to pursue individual actions. 

Both the Edelson and Davis & Norris firms represent parties who either have filed or are 

currently pursuing individual TCPA cases against Santander, including the Espejo, Humphreys

and Johnson-Morris matters brought before this Court. (Pietrkowski Decl. at ¶ 16.) The Edelson 

firm also has represented consumers in at least nine TCPA individual arbitrations initiated 

against Santander. (Id. at ¶ 17.) Similarly, the Davis & Norris firm has filed at least 11 other 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 32 of 38 PageID #:2556
27 

individual TCPA lawsuits against Santander, and has initiated more than 200 TCPA consumer 

arbitrations against Santander. (Id. at ¶¶ 18-19.)7

 Levins does not address any of these parallel 

cases, let alone explain how a class action is superior given the pursuit of literally hundreds of 

individual TCPA actions against Santander by the same Plaintiff’s counsel in this case. 

c. The Potential Class Remedies Lack Proportionality. 

Yet another factor weighing against superiority is the lack of proportionality of 

Santander’s potential liability to the harm suffered by putative class members. Although the 

defendant’s economic harm is not an element of the alleged statutory violation, courts can 

consider such harm when analyzing superiority. See London v. Wal-Mart Stores, Inc., 340 F.3d 

1246, 1255 n.5 (11th Cir. 2003). As class actions can be used to create “blackmail settlements,” a 

district court should consider the enormous size of the potential liability in conjunction with Rule 

23(b)(3)’s factors. In the Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298-99 (7th Cir. 

1995). 

Here, just to identify the a putative class Levins seeks to certify will result in the 

irrational expenditure of resources and material disruption of Santander’s business, with no 

showing that this monumental undertaking will yield enough class members to even begin to 

justify the burdens associated with their identification. 8 The unmanageability of a trial requiring 

 

7

 Counsels’ role in these cases raises questions about those firms’ fitness to serve as class counsel here. 

See Fed.R.Civ.P. 23(a)(4). In considering certification “[c]ourts have consistently held that counsel 

cannot simultaneously represent a class and prosecute either individual or class claims against the same 

defendants in a different proceeding, even if there is partial overlap among the plaintiffs or class members 

in the cases.” 1 McLaughlin on Class Actions § 4:39 (12th ed. 2015) (footnote omitted). In considering 

the competence of class counsel, such parallel representation is also relevant because where counsel 

represents individual plaintiffs in a parallel action, potential class members are at risk that counsel will 

“trade off the interests of certain of its clients to the detriment of other clients.” Kurczi v. Eli Lilly & Co., 

160 F.R.D. 667, 679 (N.D. Ohio 1995) (holding that class counsel were not adequate to represent class 

where prosecuting parallel individual actions). 

8

 Indeed, just as Levins fails to identify a methodology for identifying individuals who fit her class 

definition, she similarly fails to prove by a preponderance of the evidence that the class is “so numerous 

that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). (Levins’ suggestion that Santander 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 33 of 38 PageID #:2557
28 

the presentation of consent evidence related to potentially millions of calls only further adds to 

the in terrorem effect of Levins’ proposed class. Such a proportionately unfair procedure cannot 

satisfy the requirements of Rule 23(b)(3). 

2. Individual Issues Would Predominate over Common Questions in a 

Class-Wide Trial of this Action. 

The individualized determinations necessary to identify membership in Levins’ putative 

class, and whether they have a viable claim, would overwhelm any proposed class trial. “A 

critical need is to determine how the case will be tried.” Hydrogen Peroxide 552 F.3d at 319 

(quoting Fed.R.Civ.P. 23 Adv. Comm. Note, 2003 Amendments) (internal quotations omitted). 

In a TCPA case, where “the defendant sets forth specific evidence showing that a 

significant percentage of the putative class consented to receiving calls on their cellphone,” 

consent presents an individualized question that will overwhelm any common issue presented. 

See Jamison v. First Credit Servs., 290 F.R.D. 92, 106-07 (N.D. Ill. Mar. 28, 2013) (citing 

cases). In Jamison, the defendant submitted an affidavit attesting to the defendant’s common 

practice of obtaining verbal consent, and recording “preferred” contact numbers in unsearchable 

“notes” field of defendant’s account records system. Id. at 107. Such evidence, in turn, 

demonstrated that the defendant had “elicited consent to call a large percentage of potential class 

members on their cellphones,” and thus the need “to conduct a series of mini-trials to determine 

the population of the class and to determine liability.” Id. Given the absence of any “way to 

 

has somehow conceded numerosity is unavailing where the discovery at issue was with respect to a class 

definition Levins has since abandoned in favor of one that clearly puts numerosity at issue.) Levins posits 

that the class “likely” consists of “hundreds of thousands of members” (Pl.’s Mem. at 1), or that it is 

“overwhelmingly likely” to consist of “thousands” of individuals. (Id. at 17.) Neither of these assertions is 

supported by any evidence. “Mere speculation as to the number of class members—even if such 

speculation is “a bet worth making”—cannot support a finding of numerosity.” Hayes v. Wal-Mart Stores, 

Inc., 725 F.3d 349, 357 (3d Cir. 2013) (holding that numerosity was not established where the defendant’s 

records failed to show the number of transactions with “the specific problem involved in this litigation”); 

see also Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 596 (3d Cir. 2012) (district court’s speculation 

that “common sense indicates that there will be at least 40” was an abuse of discretion). 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 34 of 38 PageID #:2558
29 

employ generalized proof to show consent, or lack thereof,” the court held that the plaintiff had 

failed to demonstrate that individual issues predominated of common ones. Id. 

Various other courts have come to the same result. See, e.g., Gene and Gene LLC v. 

BioPay LLC, 541 F.3d 318, 329 (5th Cir. 2008) (reversing trial court’s decision to certify class 

because the issue of consent was an individual issue that predominated over common issues 

where the source of the fax numbers varied, so consent could not be proven in a generalized 

manner); Connelly, 294 F.R.D. at 578 (finding that the predominance requirement was not 

satisfied because the defendant had obtained the cell phone numbers it called from a variety of 

different sources); Gannon, 2013 WL 2450199, at *2–3 (finding the issue of consent prevented 

the predominance requirement from being met); Conrad v. Gen. Motors Acceptance Corp., 283 

F.R.D. 326, 330 (N.D. Tex. 2012) (denying certification because consent was an individual issue 

as it was obtained in a variety of ways and there was no generalized method of proof); Versteeg 

v. Bennett, Deloney & Noyes, P.C., 271 F.R.D. 668, 674 (D. Wyo. 2011) (denying class 

certification because “the TCPA claims will require extensive individual fact inquiries into 

whether each individual gave ‘express consent’ by providing their wireless number to the 

creditor during the transaction that resulted in the debt owed[.]”). Indeed, Levins fails to cite a 

single TCPA case where a class was certified despite individual consent issues being presented. 

Identifying the cell numbers called, the subscribers of those numbers, and whether 

Santander had consent to call those numbers—consent Santander routinely obtains pursuant to its 

robust TCPA compliance system—would require individualized analysis of each customer’s 

account records as detailed in the prior section. Simply put, there is no practical difference 

between trials of class members to determine whether they are entitled to relief, on the one hand, 

and individualized determinations necessary to identify who is in the class (and, therefore, 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 35 of 38 PageID #:2559
30 

entitled to relief), on the other. The Court further will need to permit Santander the opportunity 

to cross-examine individual class members who may provide testimony confirming their prior 

express consent, much as Espejo’s deposition testimony confirmed his oral consent to be called. 

Under these circumstances, the issue of consent to receive a specific call at a specific time is an 

individual issue that precludes class certification. 

Moreover, although Levins’ proposed class definition would foreclose individuals, 

including Levins, from challenging the accuracy of Santander’s records, it cannot prevent 

Santander from asserting consent even in the face of records that do not “reflect” consent. Given 

Santander’s compliance program, a dialer call reflected in its records as being made without 

consent could happen only if there was a failure to adhere to Santander’s requirements that 

consent be obtained and recorded before dialer calls are made. However, it is no more likely the 

call was made without consent than consent was obtained but not recorded in Santander’s 

records as required. To address which of the two possibilities applied would implicate the right 

to examine putative class members on the issue of consent. 

Furthermore, the prospect of adjudicating statutory damages awards would also require a 

determination of whether each call constituted a negligent or willful violation of the statute—

particularly since a finding of willfulness trebles the award. See 47 U.S.C. 227(b)(3). The issue 

of willfulness cannot be adjudicated without mini-trials here because Santander had a policy of 

obtaining consent, and each class member therefore would bear the burden of proving that 

Santander willfully disregarded the requirements of the TCPA with respect to the calls made to 

them. Jamison, 290 F.R.D. at 107. If nonconsensual calls were identified, there is no reason to 

expect that they would uniformly flow from some particular scenario. Certainly Levins makes no 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 36 of 38 PageID #:2560
31 

showing to that effect and, to the contrary, there is every reason to conclude that such scenarios 

would vary. 

Finally, Santander’s defense based on lack of Article III standing also implicates 

individualized treatment. Whether a call that does not connect, is blocked, is not answered or 

answered only by an answering machine implicates a potentially individualized analysis as to 

whether such calls constitute the actual, concrete injury necessary for Article III standing.

Taken together, the potential for “mini-trials” on these issues alone is enough to defeat 

certification. Jamison, 290 F.R.D. at 106-07. For all of these reasons, Levins fails to demonstrate 

that her proposed classes meet the requirements of Rule 23(b)(3). Fed.R.Civ.P. 23(b)(3). 

IV. CONCLUSION 

Levins’ Motion demonstrates nothing more than the fact that her proposed class is wholly 

implausible. By constructing a fail-safe shield around consent, and relying on the facts “as 

reflected in Santander’s records,” Levins has pleaded herself out of her own class. She further 

would have this Court engage in millions of individualized mini-trials on the issue of consent 

either to identify class members in the first instance, or to adjudicate their claims on the merits. 

Either way, Levins proposes no methodology for this mammoth undertaking, and even abandons 

the “expert” who was supposed to provide the roadmap. The fact that a class trial is not feasible 

stands in contrast to the benefits of individual TCPA actions that Levins’ attorneys are pursing, 

and have pursued, on behalf of onetime-class representative Henry Espejo and multiple others, 

and, to at least with regard to some calls, that Levins continues to proceed with here as individual 

claims. 

Levins’ Motion fails to establish the prerequisites for certification under Rule 23(a), or 

otherwise satisfy the requirements of Rule 23(b). The Motion should be denied. 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 37 of 38 PageID #:2561
32 

Dated: June 13, 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 

Case: 1:11-cv-08987 Document #: 191 Filed: 06/13/16 Page 38 of 38 PageID #:2562