IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICHOLAS MARTIN on behalf of himself and

others similarly situated,

          Plaintiff,  

                      v.

DUN & BRADSTREET, INC., and

CONVERGYS CUSTOMER MANAGEMENT

GROUP, INC.

           Defendants.   

)

)

)

)

)

)

)

)

)

1:12‐cv‐215

Magistrate Judge Denlow

(by consent)

JURY DEMANDED

Exhibits to Planitiff’s Motion for Clarification

   

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Exhibit A

Order Certifying Class  

   

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1

Alexander Burke

From: usdc_ecf_ilnd@ilnd.uscourts.gov

Sent: Tuesday, August 21, 2012 2:33 PM

To: ecfmail_ilnd@ilnd.uscourts.gov

Subject: Activity in Case 1:12-cv-00215 Martin v. Dun & Bradstreet, Inc. et al order on motion to 

certify class

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to 

this e-mail because the mail box is unattended. 

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits 

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United States District Court

Northern District of Illinois - CM/ECF LIVE, Ver 5.0.3

Notice of Electronic Filing 

The following transaction was entered on 8/21/2012 at 2:33 PM CDT and filed on 8/21/2012 

Case Name: Martin v. Dun & Bradstreet, Inc. et al

Case Number: 1:12-cv-00215

Filer:

Document Number: 37 

Docket Text: 

MINUTE entry before Honorable Morton Denlow:Status hearing held on 8/21/2012 and 

continued to 12/6/2012 at 10:00 a.m. For the reasons stated in open court, Plaintiff's motion for 

Class Certification [4] is granted without prejudice subject to the Defendants seeking to 

decertify the class on or before 12/19/2012. The class is hereby defined as all persons 

nationwide who defendant or some person on its behalf called on their cell phone using a 

device that has the capacity to dial numbers without human intervention, where defendant 

obtained the phone number from some source other than directly from the called party, where 

any call was made between and including a date two years prior to the filing of this action, 

ongoing.Mailed notice(ldg, ) 

1:12-cv-00215 Notice has been electronically mailed to: 

Isaac J. Colunga debra.dipisa@icemiller.com, isaac.colunga@icemiller.com 

Joshua Briones joshua.briones@dlapiper.com 

Perrie M. Weiner perrie.weiner@dlapiper.com 

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 3 of 132 PageID #:143
2

Bart Thomas Murphy bart.murphy@icemiller.com, jane.boyd@icemiller.com 

Thomas J Hayes thomas.hayes@icemiller.com, jan.kruse@icemiller.com 

Albert Edward Hartmann docketingchicago@dlapiper.com, albert.hartmann@dlapiper.com 

Alexander Holmes Burke alburke@gmail.com, aburke@burkelawllc.com 

1:12-cv-00215 Notice has been delivered by other means to: 

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Exhibit B

Transcript of Class Certification Ruling

   

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 1

 1 TRANSCRIBED FROM DIGITAL RECORDING 

 2 IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

 3 EASTERN DIVISION 

 4 NICHOLAS MARTIN, on behalf of ) Docket No. 12 C 215 

himself and others similarly ) 

 5 situated, ) 

 ) 

 6 Plaintiff, ) 

 ) 

 7 v. ) Chicago, Illinois 

 ) August 21, 2012 

 8 DUN & BRADSTREET, INC., and ) 10:13 o'clock a.m. 

CONVERGYS CUSTOMER MANAGEMENT ) 

 9 GROUP, INC., ) 

 ) 

10 Defendants. ) 

11 TRANSCRIPT OF PROCEEDINGS - STATUS 

BEFORE THE HONORABLE MORTON DENLOW 

12 

APPEARANCES: 

13 

For the Plaintiff: BURKE LAW OFFICES, LLC., by 

14 MR. ALEXANDER HOLMES BURKE 

155 North Michigan Avenue 

15 Suite 9020 

Chicago, Illinois 60601 

16 

For Defendant Dun &: ICE MILLER LLP, by 

17 Bradstreet: MR. ISAAC J. COLUNGA 

2300 Cabot Drive 

18 Suite 455 

Lisle, Illinois 60532 

19 

20 ALEXANDRA ROTH, CSR, RPR 

Official Court Reporter 

21 219 South Dearborn Street 

Room 1224 

22 Chicago, Illinois 60604 

(312) 408-5038 

23 

24 NOTE: Please notify of correct speaker identification. N as t o r ke e i o 

FAILURE TO SPEAK DIRECTLY INTO THE MICROPHONE MAKES F R S C I T I O A 

25 PORTIONS INAUDIBLE. P ON NA L

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 2

 1 APPEARANCES: (Continued) 

 2 For Defendant Convergys: DLA PIPER US LLP IL, by 

MR. ALBERT EDWARD HARTMANN 

 3 203 North LaSalle Street 

20th Floor 

 4 Chicago, Illinois 60601 

 5 

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 8

 9

10

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12

13

14

15

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 3

 1 (Proceedings had in open court:)

 2 THE CLERK: 12 C 215, Martin versus Dun & Bradstreet.

 3 MR. BURKE: Good morning, Judge. Alexander Burke for

 4 the plaintiff. B-u-r-k-e.

 5 MR. COLUNGA: Good morning, your Honor. Isaac

 6 Colunga, C-o-l-u-n-g-a, for the defendant Dun & Bradstreet.

 7 MR. HARTMANN: Good morning, your Honor. Albert

 8 Hartmann, H-a-r-t-m-a-n-n, for defendant Convergys.

 9 MR. BURKE: Judge, we are here this morning on status.

10 The last time we were in, your Honor entered an order

11 compelling Dun & Bradstreet to respond to my discovery. And I

12 received -- well, the discussions leading up to that order were

13 that Dun & Bradstreet received an enormous amount of data and

14 that they were culling through the data trying to figure out

15 for which calls they had consent.

16 I didn't receive any of that information in response

17 to the motion to compel. I received 500 pages of contracts and

18 insurance policies and non-responses in the form of

19 interrogatory responses.

20 They didn't tell me the information having to do with

21 my client. They did produce maybe five pages having to do with

22 my client. They didn't produce any materials about the TCPA,

23 you know, compliant materials, no dialer materials. They

24 denied that they used a dialer, even though they previously

25 told me that they -- they had used a dialer. 

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 1 I view this as total non-compliance.

 2 THE COURT: Who wants to respond?

 3 MR. COLUNGA: I'd like to respond, Judge.

 4 First of all, your Honor, Dun & Bradstreet never

 5 explained to the plaintiff that they used a dialer. The way

 6 this relationship worked is, we worked with Convergys, who had

 7 the dialers that placed the phone calls. Dun & Bradstreet

 8 doesn't have dialers.

 9 Plaintiff is correct that we did receive a large

10 amount of data that we were working through. And we were in

11 fact looking for consent. Again, plaintiff is right about

12 that.

13 I think what plaintiff is having a problem is -- is

14 with the first interrogatory that he asked for. And -- and

15 unfortunately the plaintiff is a victim of his own drafting.

16 What -- what he's asked for is identify -- for us to identify

17 all automated calls for each of the phone numbers in the class

18 that the plaintiff has described below.

19 In this class, it does require us to determine whether

20 the phone numbers that we have -- if they were provided to us

21 consensually. And so we did spend a lot of time looking to

22 determine whether there was consent to these phone calls.

23 Unfortunately, what we determined is that there is no automated

24 way for us to do that.

25 Just to tell you a little bit about some parts of Dun

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 5

 1 & Bradstreet, we have call records. And we have a database

 2 that contains information about companies, is how it works.

 3 People subscribe to our service. And you can find out a number

 4 of different facts about companies and corporations if you ask

 5 us for our information.

 6 When we update those records, we enter a note that

 7 states whether or where that update came from, the source of

 8 that particular update, in some instances. When that record is

 9 updated again, that item is deleted, and it's replaced with the

10 new item that has the update -- the note as to the updated

11 information.

12 After we determine that and after looking back through

13 this, it -- it was clear that we didn't have an automated --

14 automated way of tracking back each phone number to determine

15 the source, to comply with the plaintiff's class definition.

16 And that's why we didn't produce the -- the list that plaintiff

17 was expecting to receive.

18 MR. BURKE: Judge, in reply, I -- I would say that

19 first they haven't produced a single call record for anybody,

20 including the plaintiff. They haven't admitted, I don't think,

21 that they even called the plaintiff. 

22 Second of all, we issued these requests on February 7.

23 THE COURT: I mean, there has been a motion for class

24 certification pending since January 11, since January 11.

25 You've been here a number of times. And, you know, I -- I

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 1 don't see much has happened in terms of responding to the

 2 discovery.

 3 So what I'm inclined to do is to certify the class and

 4 then let you figure out a way to decertify it.

 5 MR. HARTMANN: Your Honor, on behalf of defendant

 6 Convergys, if I can clarify one thing. Convergys was making

 7 these calls. We have produced a record of the call to

 8 plaintiff in this instance. So -- and I think one other thing

 9 that Mr. Colunga mentioned, when he sent the discovery request

10 to Mr. Burke and that we -- we definitely second sitting down

11 to try to talk settlement because setting aside the class

12 definition which focuses on where defendant obtained the phone

13 number, the source of the number, it may be other ways to look

14 at this where we can come to some sort of classwide resolution.

15 MR. BURKE: Judge, I think certifying a class and

16 letting them try to prove consent for blocks of consumers is

17 appropriate in this case. I mean, there is no -- there is no

18 dispute that all the people were called using the same

19 mechanisms. And there is an order compelling -- and this was

20 a -- weeks and weeks ago. They had a long time to respond.

21 THE COURT: It's -- it's months and months ago, months

22 and months.

23 MR. COLUNGA: And, your Honor, the motion to certify

24 was filed with the complaint in order to stave off a pickoff

25 settlement offer to the named plaintiff. It's a guidepost. It

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 1 doesn't contain any substance.

 2 THE COURT: Well -- 

 3 MR. COLUNGA: It's --

 4 THE COURT: Well, in terms of discovery, I tried to

 5 give the defendants an opportunity to provide Mr. Burke with

 6 the necessary information so that you can determine or he can

 7 determine whether or not there is going to be a class or there

 8 is not going to be a class. Nothing has been brought forward

 9 to lead me to believe that it's not an appropriate class

10 action.

11 Certifying a class and then letting you if later you

12 want to seek to decertify seems to be the only way to get your

13 attention on this to move the case forward.

14 MR. COLUNGA: Your Honor, what -- what we might be

15 able to do is come up with a list that may not be responsive to

16 the discovery, but at least it would allow us to start with

17 numbers and start talking settlement, which I think we all want

18 to -- to do here.

19 THE COURT: Okay.

20 MR. BURKE: Judge, there is an order --

21 MR. COLUNGA: It is possible.

22 MR. BURKE: There is an order telling them to give me

23 all their evidence of the consent, and they did.

24 THE COURT: Do you want to change the class definition

25 in any way from what you have in your motion for class

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 1 certification?

 2 MR. BURKE: Not that I know of, Judge.

 3 THE COURT: Okay. I'm going to grant plaintiff's

 4 motion for class certification subject to the defendants' right

 5 to seek decertification within 120 days. Okay? So that way

 6 your -- the ball is now in your court to come forward with the

 7 information. I can't figure out any other way to get you to

 8 come forward with it. Okay? 

 9 So it's without prejudice to your right to seek

10 decertification if you find some basis for seeking it to be

11 decertified. It's my understanding that there is no dispute

12 that the phone calls were all made in the same mechanism,

13 right?

14 MR. BURKE: That's right, Judge.

15 THE COURT: Same -- the same way. So unless somebody

16 can show that there was consent, why shouldn't the class be

17 certified?

18 MR. BURKE: And, Judge, after those 20 -- 120 days,

19 would the defendant then be barred from introducing evidence of

20 consent?

21 THE COURT: Well, that's going to be left up to my --

22 that's going to be left up to my successor. But I'm just

23 trying to move this case along. Okay?

24 MR. BURKE: Thank you.

25 THE COURT: And -- and what I'll do is, I will give

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 9

 1 you -- I will set a status. This is August. I'll set a status

 2 in December.

 3 THE CLERK: 120 days is December 19.

 4 THE COURT: Well, I want to bring them in before --

 5 before that, so they have an opportunity to talk to my

 6 successor about, you know, where -- where things stand. So

 7 let's make it early December because I want to be sure that

 8 everybody has the opportunity to talk and sort through all

 9 this.

10 THE CLERK: December 6, 10:00 a.m.

11 MR. HARTMANN: Your Honor, just for the record, may I

12 note that the motion to compel discovery was directed only

13 against defendant Dun & Bradstreet, not defendant Convergys,

14 and that we weren't given an opportunity to brief the motion

15 for class certification on some of the other elements the

16 plaintiff is required to prove.

17 THE COURT: And that's why this is without prejudice.

18 So, you know, you are not in any way -- you are not in any way

19 prevented -- I want to make this clear -- from raising any of

20 those other objections or anything else you want to raise. But

21 I need the defendants to begin taking action. And if one of

22 the defenses you have is, we have these consents, then I expect

23 that Mr. Burke is going to see that.

24 If one of your other defenses is something else -- I

25 mean, obviously my preference is always to have the plaintiff

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 10

 1 go forward and -- and do it. But I just -- I just feel like

 2 Mr. Burke has been facing a stone wall here.

 3 So -- so that's going to be my order.

 4 MR. BURKE: Thank you, Judge.

 5 THE COURT: Very good. Take care.

 6 MR. HARTMANN: Thank you, your Honor. And good luck

 7 with your retirement.

 8 THE COURT: Thank you. Thank you.

 9 (Which were all the proceedings had at the hearing of the

10 within cause on the day and date hereof.)

11 CERTIFICATE 

12 I HEREBY CERTIFY that the foregoing is a true, correct

13 and complete transcript of the proceedings had at the hearing

14 of the aforementioned cause on the day and date hereof.

15 

16 /s/Alexandra Roth 8/27/2012 

__________________________________ _________________ 

17 Official Court Reporter Date 

 U.S. District Court 

18 Northern District of Illinois 

 Eastern Division 

19 

20

21

22

23

24

25

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Exhibit C

Dun & Bradstreet, Inc.  

Petition for Leave to Appeal

   

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Exhibit D

Convergys Customer Management Group, Inc.

Petition for Leave to Appeal

   

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WEST\238123454.1 

No. ______________________ 

In the 

United States Court of Appeals 

for the Seventh Circuit 

NICHOLAS MARTIN, Individually And On Behalf Of All Others Similarly 

Situated, Plaintiff, 

v. 

DUN AND BRADSTREET, INC., and CONVERGYS CUSTOMER 

MANAGEMENT GROUP INC., Defendants. 

APPEAL OF CONVERGYS CUSTOMER MANAGEMENT GROUP INC. 

Appeal from the United States District Court 

 for the Northern District of Illinois, Eastern Division. 

No. 1:12-cv-00215 

The Honorable Morton Denlow, Judge Presiding 

PETITION FOR PERMISSION TO APPEAL 

ORDER GRANTING CLASS ACTION CERTIFICATION 

Albert E. Hartmann, Counsel of Record Perrie M. Weiner 

DLA PIPER LLP (US) Joshua Briones 

203 North LaSalle Street, Suite 1900 DLA PIPER LLP (US) 

Chicago, Illinois 60601-1293 2000 Avenue of the Stars, 

312.368.2142 Suite 400 North Tower 

 Los Angeles, California 90067-4704 

 310.595.3000 

Attorneys for Petitioner-Appellant Convergys Customer Management Group Inc.

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WEST\238123454.1 

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT 

Appellate Court No: ______________ 

Short Caption: Nicholas Martin v. Dun & Bradstreet, Inc. and Convergys 

Customer Management Group Inc.

(1) The full name of every party that the attorney represents in the case: 

Convergys Customer Management Group Inc. 

(2) The names of all law firms whose partners or associates have appeared for the 

party in the case (including proceedings in the district court or before an 

administrative agency) or are expected to appear for the party in this court: 

DLA Piper LLP (US) 

(3) If the party is a corporation: (i) Identify all its parent corporations; 

Convergys Corporation 

(ii) List any publicly held company that own 10% or more of the party’s stock: 

Convergys Corporation 

Attorney’s Signature: s/Albert E. Hartmann Date: September 4, 2012 

Attorney’s Printed Name: Albert E. Hartmann 

Please indicate if you are Counsel of Record 

for the above listed party pursuant to Circuit Rule 3(d). Yes 

DLA Piper LLP (US) 

203 North LaSalle Street, Suite 1900 

Chicago, IL 60601 

312.368.2142 

F: 312.630.7317 

albert.hartmann@dlapiper.com

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT 

Appellate Court No: ______________ 

Short Caption: Nicholas Martin v. Dun & Bradstreet, Inc. and Convergys 

Customer Management Group Inc.

(1) The full name of every party that the attorney represents in the case: 

Convergys Customer Management Group Inc. 

(2) The names of all law firms whose partners or associates have appeared for the 

party in the case (including proceedings in the district court or before an 

administrative agency) or are expected to appear for the party in this court: 

DLA Piper LLP (US) 

(3) If the party is a corporation: (i) Identify all its parent corporations; 

Convergys Corporation 

(ii) List any publicly held company that own 10% or more of the party’s stock: 

Convergys Corporation 

Attorney’s Signature: s/Perrie M. Weiner Date: September 4, 2012 

Attorney’s Printed Name: Perrie M. Weiner 

Please indicate if you are Counsel of Record 

for the above listed party pursuant to Circuit Rule 3(d). No 

DLA PIPER LLP (US) 

2000 Avenue of the Stars, Suite 400 North Tower 

Los Angeles, California 90067-4704 

310.595.3000 

F: 310.595.3300 

perrie.weiner@dlapiper.com

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT 

Appellate Court No: ______________ 

Short Caption: Nicholas Martin v. Dun & Bradstreet, Inc. and Convergys 

Customer Management Group Inc.

(1) The full name of every party that the attorney represents in the case: 

Convergys Customer Management Group Inc. 

(2) The names of all law firms whose partners or associates have appeared for the 

party in the case (including proceedings in the district court or before an 

administrative agency) or are expected to appear for the party in this court: 

DLA Piper LLP (US) 

(3) If the party is a corporation: (i) Identify all its parent corporations; 

Convergys Corporation 

(ii) List any publicly held company that own 10% or more of the party’s stock: 

Convergys Corporation 

Attorney’s Signature: s/Joshua Briones Date: September 4, 2012 

Attorney’s Printed Name: Joshua Briones 

Please indicate if you are Counsel of Record 

for the above listed party pursuant to Circuit Rule 3(d). No 

DLA PIPER LLP (US) 

2000 Avenue of the Stars, Suite 400 North Tower 

Los Angeles, California 90067-4704 

310.595.3000 

F: 310.595.3300 

joshua.briones@dlapiper.com

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WEST\238123454.1 1 

Introduction 

Convergys Customer Management Group Inc. (“Convergys”) is in an untenable 

position. The district court certified a class based on a virtually non-existent record 

and without any discussion or analysis of Rule 23 of the Federal Rules of Civil 

Procedure. All that was before the district court was the complaint, an unsupported 

motion for class certification filed for the sole purpose of preventing defendants from 

“picking off” the named plaintiff with an offer of judgment, and an order granting a 

motion to compel discovery responses from Convergys’s co-defendant. Because it did 

not allow class certification briefing, the district court had no record which could 

support the “rigorous analysis” required to certify a class, and thus ignored the 

requisite analysis entirely. 

The district court—dissatisfied with Convergys’s co-defendant’s response to the 

order granting the motion to compel—certified a class to force the co-defendant to 

respond to discovery. In doing so, the district court ignored that its order penalizes 

Convergys for the actions of its co-defendant—a company not affiliated with 

Convergys and represented by separate counsel—during discovery; there is no 

suggestion that Convergys was non-compliant or in any way to blame. Reversal of 

class certification on interlocutory appeal is Convergys’s only viable method to 

ensure that the district court does not use class certification as a blunt discovery 

sanction (punishing Convergys for the discovery failures of its co-defendant) and 

instead follows Rule 23 and this Court’s unambiguous precedent by engaging in full 

and fair consideration of a complete record before certifying a class. 

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Statement of Jurisdiction 

Plaintiff Nicholas Martin (“Martin”) asserts an individual and class claim 

against defendants Dun and Bradstreet, Inc. (“D&B”) and Convergys under the 

Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). Accordingly, 

the district court has federal question jurisdiction under 28 U.S.C. § 1331. 

On August 21, 2012, the district court entered a minute order certifying a class. 

(R.37 (attached as Ex. A).)1 This Court has jurisdiction to entertain Convergys’s 

petition under Rule 23(f) of the Federal Rules of Civil Procedure and Rule 5(a) of the 

Federal Rules of Appellate Procedure. Convergys timely filed its petition within 

fourteen (14) days of the district court’s entry of its class certification order. 

Question Presented 

Can a district court, without briefing or notice, avoid conducting the required 

“rigorous analysis” of Rule 23’s class certification requirements and instead certify a 

class as a discovery sanction to “get the attention” of one co-defendant? 

Facts Necessary to Understand the Question Presented 

State of the Pleadings and the Record 

On January 11, 2012, Martin filed his one-count complaint asserting that D&B 

and Convergys—which was acting on D&B’s behalf—violated the TCPA by using an 

automatic telephone dialing system to call to Martin’s cellular phone. (R.1 ¶¶ 9-10.) 

Martin also sought certification of a class of people who allegedly received similar 

calls to cellular phones but confined his class to calls “where defendant obtained the 

 

1 Citations to “R.___” reference the district court’ docket number, followed by the page or 

paragraph number where appropriate. 

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WEST\238123454.1 3 

phone number from some source other than directly from the called party.” (R.1 ¶ 

15.) Convergys (R.25) and D&B (R.26) filed answers and affirmative defenses. 

When Martin filed his complaint, he also filed a motion for class certification 

that was not supported by any evidence relating to Convergys or D&B. (R.4.) As 

Martin acknowledged, the motion was filed to prevent “the plaintiff from being 

‘picked off’ through a Rule 68 or individual settlement offer,” and Martin intended 

to take discovery before filing a properly supported memorandum seeking class 

certification. (R.4 ¶ 7.) 

Consistent with the place-holding nature of the motion, Martin never presented 

his class certification motion to the district court. When the parties consented to try 

the case before Magistrate Judge Denlow, all pending motion dates (including the 

date for presentation of Martin’s motion for class certification) were stricken and 

the parties were ordered to re-notice any pending motions before Judge Denlow. 

(R.15.) Because its filing accomplished the stated purpose of preventing him from 

being “picked off,” Martin never re-noticed his motion for class certification. 

Martin, Convergys and D&B all intended that Martin would file a memorandum 

supporting class certification bolstered by evidence at the close of discovery, at 

which point the parties would fully brief the motion. In the Parties’ Report of 

Planning Meeting, Martin, Convergys and D&B jointly informed the district court of 

this intention: “Upon completion of discovery (as discussed above), Plaintiff expects 

to renew/supplement that motion [for class certification], at which time the parties 

and the Court will set an appropriate briefing schedule.” (R.28 at 5.) 

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WEST\238123454.1 4 

Martin’s Motion to Compel Discovery From D&B 

Consistent with the stated intention to complete discovery before filing a 

properly-supported motion for class certification, on February 29, 2012, Martin 

propounded discovery to both Convergys and D&B. (R.33 ¶ 3.) As part of discovery, 

Martin sought to identify the class, and his first interrogatory asked for a list of all 

calls to the defined class, which was again limited to calls “where defendant 

obtained the phone number from some source other than directly from the called 

party.” (R.33 at 8-9.) 

Convergys responded to Martin’s discovery. Among other things, Convergys 

explained that it had been hired by D&B to update records in D&B’s database, but 

did not have access to that database or information about the source of the records 

that it was updating for D&B. Martin did not file any motions challenging 

Convergys’s discovery responses or otherwise ask the district court to compel 

Convergys to produce additional information or supplemental responses. 

D&B also responded to Martin’s discovery requests. D&B initially responded on 

April 2, 2012, but after meet-and-confer efforts, agreed to provide supplemental 

responses. (R.33 ¶¶ 3-4.) In particular, and as Martin and D&B advised the district 

court during a status hearing, D&B agreed to provide responses to the class-based 

discovery by June 19, 2012. (R.33 ¶ 4.) When D&B indicated that it could not meet 

this deadline, Martin filed a motion to compel asking only that a date-certain for 

D&B’s discovery responses be set. (R.33.) The district court granted the motion to 

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WEST\238123454.1 5 

compel, ordered that D&B respond to all of Martin’s outstanding discovery by 

August 15, 2012, and set a status hearing for August 21, 2012. (R.36.) 

The District Court’s Sua Sponte Class Certification Order 

The parties appeared before the district court for the August 21, 2012 status 

hearing. Martin’s counsel began the hearing by describing what he viewed as D&B’s 

“total non-compliance” with the order granting the motion to compel. (Transcript of 

Aug. 21, 2012 Hearing (“Tran.”) 3:9-4:1 (attached as Ex. B).) In response, D&B’s 

counsel focused on the key issue—Martin’s request “for [D&B] to identify all 

automated calls for each of the phone numbers in the class that plaintiff has 

described” (Tran. 4:13-18)—and explained that D&B did not have an “automated 

way of tracking back each phone number to determine the source, to comply with 

the plaintiff’s class definition.” (Tran. 5:12-17.)2

After listening to D&B’s explanation, the district court commented that “I don’t 

see much has happened in terms of responding to the discovery. So what 

I’m inclined to do is certify the class and then let you figure out a way to decertify 

it.” (Tran. 5:25-6:4 (emphasis added).) When Convergys and D&B objected, the 

district court again explained that granting class certification was intended to 

prompt discovery responses from D&B: “Certifying a class and then letting you if 

later you want to seek to decertify seems to be the only way to get your 

attention on this to move the case forward.” (Tran. 7:11-13 (emphasis added); see 

also Tran. 8:5-8 (“So that way your – the ball is now in your court to come forward 

 

2 Absent an automated way to identify the source of the called numbers, the defined class is 

not ascertainable because identifying the class members would require individualized proof 

for each class member, as opposed to the common proof required for class certification. 

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WEST\238123454.1 6 

with the information. I can’t figure out any other way to get you to come 

forward with it.”) (emphasis added).) 

When Convergys explained that the motion to compel had not been directed 

against Convergys, and that Convergys was being denied the opportunity to brief 

class certification, the district court responded by again explaining that it was 

granting class certification to prompt additional discovery responses from D&B: 

And that’s why this is without prejudice. So, you know, 

you are not in any way – you are not in any way 

prevented – I want to make this clear – from raising any 

of those objections or anything else you want to raise. But 

I need the defendants to begin taking action. And if 

one of the defenses you have is, we have these consents, 

then I expect that Mr. Burke is going to see that. 

If one of your other defenses is something else – I mean, 

obviously my preference is always to have the plaintiff go 

forward and – and do it. But I just – I just feel like Mr. 

Burke has been facing a stone wall here. 

(Tran. 9:17-10:2 (emphasis added).) 

Conspicuously absent from the district court’s oral certification ruling is any 

mention of Rule 23 or the specific elements that Martin was required to establish to 

demonstrate that the proposed class could be certified. Consistent with its sua 

sponte oral ruling, the district court entered a minute order certifying the class. 

(R.37.) That order provides no additional analysis or discussion of Rule 23: 

Status hearing held on 8/21/2012 and continued to 

12/6/2012 at 10:00 a.m. For the reasons stated in open 

court, Plaintiff's motion for Class Certification [4] is 

granted without prejudice subject to the Defendants 

seeking to decertify the class on or before 12/19/2012. The 

class is hereby defined as all persons nationwide who 

defendant or some person on its behalf called on their cell 

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WEST\238123454.1 7 

phone using a device that has the capacity to dial 

numbers without human intervention, where defendant 

obtained the phone number from some source other than 

directly from the called party, where any call was made 

between and including a date two years prior to the filing 

of this action, ongoing. 

(R.37 (emphasis added).) 

Relief Sought 

Convergys requests that this Court grant it permission to appeal the district 

court’s August 21, 2012 order granting class certification under Rule 23(f) of the 

Federal Rules of Civil Procedure. On appeal Convergys will seek reversal of the 

district court’s order, decertification of the class, and a remand for proceedings 

consistent with Rule 23. 

Convergys’s Appeal Should Be Allowed And Is Authorized By Rule 

Under Rule 23(f) of the Federal Rules of Civil Procedure, this Court “may permit 

an appeal from an order granting or denying class-action certification under this 

rule if a petition for permission to appeal is filed with the circuit clerk within 14 

days after the order is entered.” Rule 23(f) review is appropriate in this case. 

As this Court explained, interlocutory review of orders granting class 

certification may be appropriate because “just as a denial of class status can doom 

the plaintiff, so a grant of class status can put considerable pressure on the 

defendant to settle, even when the plaintiff's probability of success on the merits is 

slight.” Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir. 1999). One 

risk in this situation is “that some plaintiffs or even some district judges may be 

tempted to use the class device to wring settlements from defendants whose legal 

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WEST\238123454.1 8 

positions are justified but unpopular.” Id. Accordingly, “when the stakes are large 

and the risk of a settlement or other disposition that does not reflect the merits of 

the claim is substantial, an appeal under Rule 23(f) is in order.” Id. at 835. 

That is precisely the situation faced by Convergys here. The district court used 

class certification to “wring” discovery from D&B, with Convergys being collateral 

damage. Convergys is now faced with the daunting task of decertifying a class 

which was certified without any analysis or discussion. This untenable position 

raises the stakes considerably for Convergys, which is now essentially liable to an 

unknown class of people because of the district court’s reaction to its co-defendant’s 

actions in discovery. The potentially crushing TCPA damages—which are out of all 

proportion to the alleged harm—puts “considerable pressure” on Convergys to reach 

a class-wide settlement, regardless of the merits of Martin’s case. See CE Design 

Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011) (noting 

coercive force of uncapped TCPA damages of $500 to $1,500 per violation, i.e., call or 

unsolicited facsimile, underlies need for “rigorous analysis” before certifying class). 

This is the very situation Rule 23(f) prevents by allowing interlocutory appeals to 

challenge improvident class certification orders. 

Before this Court exercises its discretion under Rule 23(f), however, Convergys 

must satisfy this Court that the district court’s grant of class certification is 

“questionable.” Blair, 181 F.3d at 835. That is an easy burden for Convergys to 

carry here. 

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Rule 23 specifically provides that a class action may be maintained “only if” all 

four (4) of Rule 23(a) prerequisites are satisfied and if the case is one of the types of 

cases identified in Rule 23(b). Fed. R. Civ. P. 23(a)-(b). Consistent with the plain 

language of Rule 23, this Court requires district courts to undertake a “rigorous 

analysis” of Rule 23’s requirements before certifying a class: “A class ‘may only be 

certified if the trial court is satisfied, after a rigorous analysis, that the 

prerequisites of Rule 23(a) have been satisfied.’” CE Design, 637 F.3d at 723, citing 

General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982). “The need for rigorous 

analysis of a motion to certify a class is for the protection not of defendants alone 

but of the class members as well.” CE Design, 637 F.3d at 723. This Court will 

“reverse the class-certification decision only when we find an abuse of discretion. If, 

however, the district court applies an incorrect legal rule as part of its decision, then 

the framework within which it has applied its discretion is flawed, and the decision 

must be set aside as an abuse.” Ervin v. OS Restaurant Servs., Inc., 632 F.3d 971, 

976 (7th Cir. 2011) (internal citations omitted). 

In this case, the district court eschewed any discussion of Rule 23’s requirements 

and instead certified the class “without prejudice” in a bare-bones order designed as 

a discovery sanction against D&B. A class certification order entered by a judge 

“before making any of the determinations ... that Rule 23 makes prerequisite to 

certification” cannot stand, and “the prerequisites cannot be bypassed” by the 

expectation of the plaintiff “eventually establishing that the prerequisites for class 

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WEST\238123454.1 10 

status have been met.” Isaacs v. Sprint Corp., 261 F.3d 679, 682 (7th Cir. 2001) 

(granting Rule 23(f) review and reversing class certification).3

It is no answer that the district court merely granted a long-pending motion for 

class certification. That motion was designed to be a place holder, and even Martin 

did not suggest that his motion contained the requisite factual and legal support to 

establish all of Rule 23’s class certification requirements. In any event, beyond 

mentioning the motion briefly during the status hearing, the district court did not 

cite to or otherwise rely upon the motion to support class certification. 

The ambiguities inherent in the defined class precipitously certified by the 

district court highlight the reason that this Court requires a “rigorous analysis” 

before certifying a class. For example, the defined class refers to the “defendant,” 

when both Convergys and D&B are defendants, thus making it impossible to 

determine which defendants’ actions—if any—form the basis for the allegedly 

common evidence which must be used to identify and define the class. Moreover, 

D&B explained to the district court that it could not trace the source of all of the 

numbers at which potential class members were called by Convergys, and thus 

could not identify the class as defined. Certification of a class specifically defined by 

 

3 The same logic applies to mandate reversal of the district court’s order, which bypasses 

Rule 23’s prerequisites under the guise of allowing Convergys and D&B time to move to 

decertify. This is especially true as “an order certifying a class usually is the district judge's 

last word on the subject ... Before deciding whether to allow a case to proceed as a class 

action, therefore, a judge should make whatever factual and legal inquiries are necessary 

under Rule 23.” Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001) 

(granting Rule 23(f) review and reversing class certification). The last word for Convergys 

on class certification should not be silence as the district court sanctions D&B for its 

discovery responses. 

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WEST\238123454.1 11 

the source of the called phone number cannot change this. Thus, the parties are left 

with a certified class which can neither be identified nor provided with notice. 

Rule 23 and this Court’s precedent do not allow both Martin and the district 

court to gloss over key issues when certifying a class and then force the defendants 

to move to decertify. Rather, the “rigorous analysis” identifies and, if possible, cures 

these very types of issues before a class is certified. And it is Martin’s burden to 

demonstrate that Rule 23 certification is appropriate. 

Conclusion 

Because the district court certified a class as a discovery sanction against D&B, 

it failed to perform the “rigorous analysis” required by this Court and Convergys 

had no meaningful opportunity to oppose certification. Rule 23 does not allow a 

bare-bones certification order which shifts the burden to Convergys to disprove the 

propriety of class certification. Absent immediate appellate review, the stakes of the 

litigation for Convergys will increase so substantially that Convergys will feel 

“considerable pressure” to settle on a class-wide basis. Therefore, this Court should 

allow Convergys to appeal the grant of class certification, reinforcing the clear law 

in this Circuit that all class certification orders require “rigorous analysis” of Rule 

23’s requirements. 

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WEST\238123454.1 12 

Dated: September 4, 2012, Respectfully submitted, 

CONVERGYS CUSTOMER 

MANAGEMENT GROUP INC. 

By: /s/ Albert E. Hartmann 

One of Its Attorneys 

Albert E. Hartmann, Counsel of Record 

DLA PIPER LLP (US) 

203 North LaSalle Street, Suite 1900 

Chicago, Illinois 60601 

312.368.2142 

F: 312.630.7317 

albert.hartmann@dlapiper.com 

Perrie M. Weiner 

Joshua Briones 

DLA PIPER LLP (US) 

2000 Avenue of the Stars, Suite 400 North Tower 

Los Angeles, California 90067-4704 

310.595.3000 

F: 310.595.3300 

perrie.weiner@dlapiper.com

joshua.briones@dlapiper.com

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Exhibit E

Plaintiff’s Motion for Class Certification

   

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1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICHOLAS MARTIN on behalf of himself and

others similarly situated,

          Plaintiff,  

                      v.

DUN & BRADSTREET, INC., and

CONVERGYS CUSTOMER MANAGEMENT

GROUP, INC.

           Defendants.   

)

)

)

)

)

)

)

)

)

JURY DEMANDED

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

Plaintiff respectfully requests that, pursuant to both Fed.R.Civ.P. 23(b)(2) and 23(b)(3),

this Court certify this Telephone Consumer Protection Act case as a class action for the

following class of similarly situated persons:

All persons nationwide who defendant or some person on its behalf called on their cell

phone using a device that has the capacity to dial numbers without human intervention,

where defendant obtained the phone number from some source other than directly

from the called party, where any call was made between and including a date two years

prior to the filing of this action, ongoing.   

Plaintiff further requests that the Court appoint plaintiff Nicholas Martin as the class

representative, and Burke Law Offices, LLC as class counsel.   

In further support of this motion, plaintiff states:

1. Defendants called plaintiff on his cell phone using a predictive dialer in January

2012. Plaintiff has no relationship with either defendant.

2. The TCPA, 47 U.S.C. §227(b) prohibits any person, including debt collection

agencies, from calling cell phones using autodialers and/or prerecorded messages; so‐called

"robocalls."    Sengenberger v. Credit Control Services, Inc., 2010 WL 1791270 (N.D.Ill. May 5,

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2

2010) (Zagel, J.).  Any telephone system that has the capacity to dial numbers without human

intervention is a “predictive dialer” and is regulated by the Act.   

3. The TCPA is a strict liability statute, and there is no "bona fide error" defense

available, CE Design Ltd. v. King Architectural Metals, Inc., __ F.3d__, 2011 WL 938900, at * 1

(7th Cir. March 18, 2011); Hicks v. Client Services, Inc., 2009 WL 2365637 (S.D.Fla. June 9, 2009)

(summary judgment entered in favor of plaintiff); Powell v. West Asset Management, Inc., 1:10‐

cv‐7852, 2011 WL 1126040 (N.D.Ill. March 24, 2011) (striking “mitigation of damages”

affirmative defense).   

4. Numerous TCPA class actions have been certified.    Three such certification

orders, Pesce v. First Credit Services, Inc., 11‐cv‐1379 (N.D.Ill. December 19, 2011) (Exhibit A);  

Balbarin v. North Star Capital Acquisition, LLC, 2010 C 1846, 2011 U.S. Dist. LEXIS 686 (N.D. Ill.

Jan. 5, 2011), and Mitchem v. Illinois Collection Service, 2009 C 7274, 2011 U.S. Dist. LEXIS 714

(N.D. Ill. Jan. 3, 2011) were §227(b) autodialer/prerecorded message cases against debt

collection agencies, and are analogous to this case.    

5. So‐called “junk fax” TCPA cases, which are regularly certified in this District, are

also analogous to this one.    The Seventh Circuit recently refused to reverse Judge Bucklo’s

certification of a TCPA “junk fax” case on any ground other than the adequacy of the

questionably truthful class representative in CE Design Ltd. v. King Architectural Metals, Inc., __

F.3d__, 2011 WL 938900 (7th Cir. March 18, 2011).  While the District Judge was instructed to

reevaluate adequacy, the Seventh Circuit stated that the merits of the case, including the

defendant’s “consent” defense “‐win or lose  ‐ might well be suitable for determination on a

classwide basis.”  Id. at *7.

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3

6. Other TCPA class certifications abound.    Sadowski v. Med1 Online, LLC, 07 C

2973, 2008 U.S. Dist. LEXIS 41766 (N.D.Ill., May 27, 2008); Hinman v. M & M Rental Ctr., 06 C

1156, 2008 U.S. Dist. LEXIS 27835 (N.D.Ill., April 7, 2008); Kavu, Inc. v. Omnipak Corp., 246 F.R.D.

642 (W.D.Wash. 2007);    Gortho, Ltd., v. Websolv, 03 CH 15615 (Cir. Ct. Cook Co., March 6,

2008); Travel 100 Group, Inc. v. Empire Cooler Service, Inc., 03 CH 14510, 2004 WL 3105679

(Cook Co. Cir. Ct., Oct. 19, 2004); Rawson v. C.P. Partners LLC, 03 CH 14510 (Cook Co. Cir. Ct.,

Sept. 30, 2005); Lampkin v. GGH, Inc., 146 P.3d 847 (Okla. Ct. App. 2006); Display South, Inc. v.

Express Computer Supply, Inc., 961 So.2d 451, 455 (La. App. 1st Cir. 2007); Display South, Inc. v.

Graphics House Sports Promotions, Inc., 992 So. 2d 510 (La. App. 1st Cir. 2008); ESI Ergonomic

Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. (App.) 94, 50 P.3d 844 (2002); Core

Funding Group, LLC v. Young, 792 N.E.2d 547 (Ind.App. 2003); Nicholson v. Hooters of Augusta,

Inc., 245 Ga.App. 363, 537 S.E.2d 468 (2000) (private class actions).  

7. Plaintiff files this motion along with the complaint in order to avoid the plaintiff

from being "picked off" through a Rule 68 or individual settlement offer, as suggested by some

court decisions.    Greisz v. Household Bank, 176 F.3d 1012 (7th Cir. 1999), and its progeny.  

While plaintiff does not believe Griesz is controlling or efficient, counsel feels it is appropriate

under the circumstances to file this motion early in the case in order to avoid the situation

entirely. Plaintiff requests that the Court set a briefing schedule sufficiently long so that plaintiff

may take additional discovery and file a memorandum of law in support of this motion.

Alternatively, the Court may enter and continue this motion.     

8. All requirements of Rule 23 of the Federal Rules of Civil Procedure have been

met.   

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4

9. Numerosity.    There is no reason to purchase or use a predictive dialer, other

than to make a large volume of calls.   

10. Furthermore, given the nature of the alleged violations, i.e. making automatically

dialed and prerecorded message telephone calls to debtors, it is reasonable to infer that the

defendant made impermissible robocalls to more than the 40 or so individuals necessary to

satisfy numerosity.   Joinder is therefore impracticable and satisfy numerosity for certification

purposes.  Fed.R.Civ.P. 23(a)(1).  Plaintiff requests time enough in briefing this motion in order

to obtain discovery on this issue.   

11. Common Questions Predominate.    There exist common questions of law and

fact, which predominate over any individual questions.  The class definition ensures that all of

class members have identical claims; both factually and legally.  Fed.R.Civ.P. 23(a)(2) & 23(b)(3).   

12. Typicality.  Similarly, the plaintiff's claims are typical of the other class members.    

All of the claims are based upon a substantially identical set of facts and circumstances.  

Fed.R.Civ.P. 23(a)(3).  The same dialers and similar messages were used for the entire class.

13. Adequacy.   Plaintiff and counsel will fairly and adequately represent the class.  

Plaintiff's interests in this litigation are aligned with those of the class, and he has hired a lawyer

experienced in class action and consumer litigation.  Exhibit B.  Fed.R.Civ.P. 23(a)(4).

14. Defendant's Actions Applicable Generally.  The defendant has acted or failed to

act on grounds generally applicable to each class member, and it is these generalized actions

around which this case revolves.   Defendant called each class member on his or her cellular

telephone using an autodialer and prerecorded message. Class‐wide Injunctive relief under the

TCPA 47 U.S.C. §227(b)(3)(A), along with corresponding declaratory relief is therefore

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5

appropriate.    Fed.R.Civ.P. 23(b)(2).    All class members, who are the incorrect party, would

benefit from the cessation of these annoying calls and defendant's opt‐out policy.   

15. Superiority.  It is desirable to have this case litigated as a class action because the

class mechanism is superior to individual actions.    Plaintiff is not aware of any other cases

alleging similar facts against these defendants; likely because the other members of the class

are not aware that their rights have been violated.    Further, a class action is necessary to

determine that defendants’ conduct is a violation of law and to redress the class members'

statutory damages.   Fed.R.Civ.P. 23(b)(3).   The issue of whether defendant’s equipment and

messages complied with the TCPA predominates over any individual issues that may arise.  

16. Because the prerequisites of Fed.R.Civ.P. 23(b)(2) and 23(b)(3) are satisfied, this

Court should certify the class.  Plaintiff requests that the Court set a briefing schedule for this

motion sufficient to permit time for service of the complaint, discovery and the filing of a

supplemental memorandum in support of this motion.   

WHEREFORE, plaintiff respectfully requests that this Court certify this case as a class

action as to the class defined herein, and appoint plaintiff Nicholas Martin as class

representative, and Burke Law Offices, LLC as class counsel.   

  

        Respectfully submitted,

        /s/Alexander H. Burke

Alexander H. Burke

BURKE LAW OFFICES, LLC 

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

(312) 729‐5288

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6

(312) 729‐5289 (fax)

ABurke@BurkeLawLLC.com

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Exhibit A

   

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VITO A. PESCE, on behalf of himself and all )

others similarly situated, )

)

Plaintiff, ) No. 11 C 1379

v. )

) Judge Robert W. Gettleman

FIRST CREDIT SERVICES, INC., d/b/a )

Accounts Receivable Technologies, )

)

Defendant. )

ORDER

Plaintiff Vito Pesce, on behalf of himself and all others similarly situated, has sued

defendant First Credit Services, Inc., d/b/a Accounts Receivable Technologies for violating the

provision of the Telephone Consumer Protection Act (“TCPA”) that makes it unlawful for “any

person . . . to make any call (other than a call . . . made with the prior express consent of the

called party) using any automatic telephone dialing system or an artificial or pre-recorded voice

. . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. §

227(b)(1)(A)(iii). Plaintiff has moved to certify a class consisting of:

all persons within the State of Illinois who, on or after January 1, 2010, and on or

before February 28, 2011, received a non-emergency telephone call from

defendant to a cellular telephone through the use of an automatic telephone

dialing system or an artificial or prerecorded voice and where defendant’s records

do not show that the person provided the number to the defendant or the original

creditor (for example, where the number was obtained through skip tracing or

captured by the defendant’s equipment from an inbound call).

 For the reasons discussed below, plaintiff’s motion is granted.

Class action suits are governed by Fed. R. Civ. P. 23. A two step analysis is required to

determine if class certification is appropriate. First, plaintiff must satisfy all four requirements of

Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. 

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Harriston v. Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). Second, the action must satisfy one

of the conditions of Rule 23(b). Joncek v. Local 714 International Teamsters Health & Welfare

Fund, 1999 WL 755051 at *2 (N.D. Ill. 1999). Plaintiff seeks certification under Rule 23(b)(3),

which requires the court to find that “questions of law or fact common to class members

predominate over any questions affecting only individual members, and that a class action is

superior to other available methods for fairly and efficiently adjudicating the controversy.” 

Defendant argues that the proposed class fails to meet the typicality requirement, and that

plaintiff is not an adequate class representative. Both of these objections are based on

defendant’s claim that it obtained plaintiff’s telephone number from GMAC, plaintiff’s original

creditor. Therefore, according to defendant, plaintiff consented to receive auto-dialed calls,

although the class definition includes only those persons who have not provided their telephone

number to defendant or the original creditor. “Where the named plaintiff’s claim may fail on

grounds unique to the named plaintiff . . . the typicality requirement for class certification may

not be satisfied.” Gilmore v. Southwestern Bell Mobile Systems, L.L.C., 2002 WL 548704 at *3

(N.D. Ill. 2002).

The record, however, does not support defendant’s characterization of the facts. 

Plaintiff’s telephone number is not found in either defendant’s or GMAC’s records. Plaintiff’s

wife’s number is listed in GMAC’s records, and her number is apparently only one digit

different from plaintiff’s. Plaintiff’s number, however, is not in any of the records and there is

nothing in those records to suggest that plaintiff consented to be called. Accordingly, the court

rejects defendant’s objections to typicality and adequacy of representation.

2

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Defendant’s other objections to class certification are equally without merit. Individual

questions do not predominate over questions common to the class. The class includes only those

persons who have been contacted on their cellular phone and who have not consented to the

calls. Defendant’s objections go to whether a person is a member of the class in the first

instance, not to the nature of the claim of properly identified class members. 

Accordingly, plaintiff’s motion for class certification is granted. The class is defined as:

all persons within the State of Illinois who, on or after January 1, 2010, and on or

before February 28, 2011, received a non-emergency telephone call from

defendant to a cellular telephone through the use of an automatic telephone

dialing system or an artificial or prerecorded voice and where defendant’s records

do not show that the person provided the number to the defendant or the original

creditor.

This matter is set for a report on status on January 4, 2012 at 9:00 a.m.

ENTER: December 19, 2011

__________________________________________

Robert W. Gettleman

United States District Judge

3

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Exhibit B

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICHOLAS MARTIN on behalf of himself and

others similarly situated,

          Plaintiff,  

                      v.

DUN & BRADSTREET, INC., and

CONVERGYS CUSTOMER MANAGEMENT

GROUP, INC.

           Defendants.   

)

)

)

)

)

)

)

)

)

JURY DEMANDED

DECLARATION OF ALEXANDER H. BURKE

I am Alexander H. Burke, manager of Burke Law Offices, LLC.   

In September 2008, I opened Burke Law Offices, LLC.  This firm concentrates on

consumer class action and consumer work on the plaintiff side.  Since the firm began, it

has prosecuted cases for consumers under the Fair Debt Collection Practices Act, Fair

Credit Reporting Act, Equal Credit Opportunity Act, Electronic Funds Transfer Act, Illinois

Consumer Fraud Act, Truth in Lending Act and the Fair Labor Standards Act, among

others.  The firm also occasionally accepts mortgage foreclosure defense or credit card

defense case.    Except for debt collection defense cases, the firm works almost

exclusively on a contingency basis.

My legal career began at Edelman, Combs, Latturner & Goodwin, LLC, in Chicago,

Illinois, where I spent nearly three years litigating exclusively consumer cases.  I estimate

that approximately sixty‐five percent of those cases were class actions.  In 2007, I joined

the Law Offices of Keith J. Keogh, Ltd., another consumer rights law firm, where my

practice was again limited almost exclusively to consumer class action.   

I make substantial efforts to remain current on the law, including class action

issues.    I attended the National Consumer Law Center Consumer Rights Litigation

Conference in 2006, 2007, 2008 and 2009, and was an active participant in the

Consumer Class Action Intensive Symposium at each of those conferences.  In October

2009, I spoke on a panel of consumer class action attorneys welcoming newcomers to

the conference.  In addition to regularly attending Chicago Bar Association meetings and

events, I am the vice‐chair of the Chicago Bar Association's consumer protection section,

and in November 2009, I moderated a panel of judges and attorneys discussing recent

events and decisions concerning arbitration of consumer claims and class action bans in

consumer contracts.   

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Some notable class actions and other cases that I have worked on include:  

Soppet v. Enhanced Recovery Co., 2011 WL 3704681(N.D.Ill.  Aug 21, 2011)(TCPA

defendant’s summary judgment motion denied); D.G. ex rel. Tang v. William W. Siegel &

Associates, Attorneys at Law, LLC, 2011 WL 2356390 (N.D.Ill. Jun 14, 2011); Powell v.

West Asset Management, Inc., 773 F.Supp.2d 898 (N.D.Ill. 2011)(debt collector TCPA

defendant’s “failure to mitigate” defense stricken for failure to state a defense upon

which relief may be granted); Fike v. The Bureaus, Inc., 09‐cv‐2558 (N.D.Ill. Dec. 3, 2010)

(final approval granted for $800,000 TCPA settlement in autodialer case against debt

collection agency); Greene v. DirecTV, Inc., 2010 WL 1506730 (N.D.Ill. April 14, 2010)

(motion to dismiss denied as to class TCPA and FCRA claims); Donnelly v. NCO Financial

Systems, Inc., 263 F.R.D. 500 (N.D.Ill. Dec. 16, 2009) Fed.R.Civ.P. 72 objections overruled

in toto, ‐‐‐ F.Supp.2d ‐‐‐‐, 2010 WL 308975 (N.D.Ill. Jan 13, 2010) (novel class action and

TCPA discovery issues decided favorably to class); Cicilline v. Jewel Food Stores, Inc., 542

F.Supp.2d 831 (N.D.Ill. 2008) (FCRA class certification granted); 542 F.Supp.2d

842 (N.D.Ill. 2008) (plaintiffs' motion for judgment on pleadings granted);  Harris v. Best

Buy Co., 07 C 2559, 2008 U.S. Dist. LEXIS 22166 (N.D.Ill. March 20, 2008) (Class

certification granted); Matthews v. United Retail, Inc., 248 F.R.D. 210 (N.D.Ill. 2008)

(FCRA class certification granted); Redmon v. Uncle Julio's, Inc., 249 F.R.D. 290 (N.D.Ill.

2008) (FCRA class certification granted); Harris v. Circuit City Stores, Inc., 2008 U.S. Dist.

LEXIS 12596, 2008 WL 400862 (N.D. Ill. Feb. 7,2008) (FCRA class certification

granted); aff’d upon objection (Mar. 28, 2008); Harris v. Wal‐Mart Stores, Inc., 2007 U.S.

Dist. LEXIS 76012 (N.D. Ill. Oct. 10, 2007) (motion to dismiss in putative class action

denied); Barnes v. FleetBoston Fin. Corp., C.A. No. 01‐10395‐NG, 2006 U.S. Dist. LEXIS

71072 (D.Mass. Aug. 22, 2006) (appeal bond required for potentially frivolous objection

to large class action settlement, and resulting in a $12.5 million settlement for

Massachusetts consumers); Longo v. Law Offices of Gerald E. Moore & Assocs., P.C., 04 C

5759, 2006 U.S. Dist. LEXIS 19624 (N.D.Ill. March 30, 2006) (class certification granted);

Nichols v. Northland Groups, Inc., case nos. 05 C 2701, 05 C 5523, 06 C 43, 2006 U.S.

Dist. LEXIS 15037 (N.D.Ill. March 31, 2006) (class certification granted for concurrent

classes against same defendant for ongoing violations); Lucas v. GC Services, L.P., case

No. 2:03 cv 498, 226 F.R.D. 328 (N.D.Ind. 2004) (compelling discovery), 226 F.R.D. 337

(N.D.Ind. 2005) (granting class certification); Murry v. America's Mortg. Banc, Inc., case

nos. 03 C 5811, 03 C 6186, 2005 WL 1323364 (N.D. Ill. May   5, 2006) (Report and

Recommendation granting class certification), aff’d, 2006 WL 1647531 (June 5, 2006);

Rawson v. Credigy Receivables, Inc., case no. 05 C 6032, 2006 U.S. Dist. LEXIS 6450 (N.D.

Ill. Feb. 16, 2006) (denying motion to dismiss in class case against debt collector for

suing on time‐barred debts).

I graduated from Colgate University in 1997 (B.A. International Relations), and

from Loyola University Chicago School of Law in 2003 (J.D.).  During law school I served

as an extern to the Honorable Robert W. Gettleman of the District Court for the

Northern District of Illinois and as a law clerk for the Honorable Nancy Jo Arnold,

Chancery Division, Circuit Court of Cook County. I also served as an extern for the United

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States Attorney for the Northern District of Illinois and was a research assistant to

adjunct professor Honorable Michael J. Howlett, Jr.

I was the Feature Articles Editor of the Loyola Consumer Law Review and

Executive Editor of the International Law Forum. My published work includes

International Harvesting on the Internet: A Consumer's Perspective on 2001 Proposed

Legislation Restricting the Use of Cookies and Information Sharing, 14 Loy. Consumer L.

Rev. 125 (2002).

I became licensed to practice law in the State of Illinois in 2003 and the State of

Wisconsin in March 2011, and am a member of the bar of the United States Court of

Appeals for the Seventh and First Circuits, as well as the Northern District of Illinois,

Central District of Illinois, Southern District of Illinois, Eastern District of Wisconsin,

Northern District of Indiana and Southern District of Indiana.  In 2009‐10, I was the vice

chair of the Consumer Protection section of the Chicago Bar Association, and was the

chair of that group for the 2010‐2011 year.  I am also a member of the Illinois State Bar

Association, the Seventh Circuit Bar Association and the American Bar Association, as

well as the National Association of Consumer Advocates.  

I declare under penalty of perjury that the foregoing is true and correct to the

best of my knowledge and belief.

Executed in Chicago, Illinois          

September 28, 2011           /s/Alexander H. Burke

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Exhibit F

Convergys Customer Management Group, Inc.

Discovery Responses

   

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1

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

NICHOLAS MARTIN, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Case No. 1:12-cv-00215 

 ) 

DUN & BRADSTREET, INC. and ) Magistrate Judge Denlow 

CONVERGYS CUSTOMER ) 

MANAGEMENT GROUP INC., ) 

 ) 

Defendants. ) 

CONVERGYS CUSTOMER MANAGEMENT GROUP INC.’S 

RESPONSE TO PLAINTIFF’S FIRST DISCOVERY REQUESTS

Defendant Convergys Customer Management Group Inc. (“Convergys”), 

under the Federal Rules of Civil Procedure, hereby responds to Plaintiff’s First 

Discovery Requests (“Requests”) as follows: 

GENERAL OBJECTIONS AND PRELIMINARY STATEMENTS 

A. Convergys’s responses set forth herein are based upon knowledge and 

information that Convergys has been able to obtain as of the date of filing these 

responses. Convergys reserves its right to supplement these responses in the event 

that any additional responsive information may come to light, or in case of 

inadvertent error or omission. 

B. Convergys objects to the Requests to the extent that they call for the 

production of confidential, proprietary, and/or trade secret information. Convergys 

will not produce confidential information except pursuant to a protective order 

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2

entered in this case, and it will not produce trade secret information unless ordered 

to do so by a court. 

C. Convergys objects to the Requests to the extent that they seek 

disclosure of the content of communications between Convergys and its legal 

counsel on the ground that such information is protected by the attorney-client 

privilege. 

D. Convergys objects to the Requests to the extent that they seek 

information or documents prepared in anticipation of litigation in this case on the 

grounds that such information and documents are protected under the workproduct doctrine. 

E. Convergys objects to the Requests to the extent that they purport to 

impose obligations beyond those provided for by the Federal Rules of Civil 

Procedure. 

F. Convergys objects to the Requests as overly broad, unduly 

burdensome, and as not limited in scope to reasonably relate to the material 

allegations in this lawsuit or reasonably calculated to lead to the discovery of 

admissible evidence to the extent that they seek information that does not pertain 

to members of the putative class defined in the Complaint in this lawsuit. 

G. Convergys objects to Plaintiff’s Requests as overly broad, unduly 

burdensome, and as not limited in scope to reasonably relate to the material 

allegations in this lawsuit or reasonably calculated to lead to the discovery of 

admissible evidence to the extent that they call for admissions, information, or 

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3

documents which do not pertain to Convergys’s activities on behalf of Defendant 

Dun & Bradstreet, Inc. (“D&B”). Unless otherwise noted, all of Convergys’s 

responses are confined and limited to its activities on behalf of D&B in order to 

update information in the D&B databases accessible to Convergys through the 

application “salesforce.com.” 

H. Convergys responds to these Requests without waiving any objections 

to relevance, privilege, or admissibility of any information provided by Convergys in 

any subsequent proceeding, or at the trial of this or any other action. 

I. Convergys objects to the Plaintiff’s definition of “you” as overly broad 

and unduly burdensome, and not limited in time or scope to reasonably relate to the 

material allegations in this lawsuit or reasonably calculated to lead to the discovery 

of admissible evidence. Accordingly, Convergys will respond to these Requests only 

to the extent that the term “you” is interpreted to mean Convergys Customer 

Management Group Inc. 

J. Convergys objects to Plaintiff’s overly broad and vague definition of the 

TCPA. Accordingly, Convergys will respond to these Requests only to the extent 

that the term “TCPA” (Telephone Consumer Protection Act) refers to 47 U.S.C. § 

227 and 47 C.F.R. § 64.1200. 

K. By its responses, Convergys does not indicate its agreement with 

Plaintiff's characterizations or express or implied assumptions, and does not make 

any admission that its conduct violated the TCPA, or that Plaintiff's interpretations 

of the TCPA are true and complete. 

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4

L. Convergys objects to Plaintiff’s definition of “Predictive Dialer” as 

vague and ambiguous due to its use of the undefined phrase “without human 

intervention.” Convergys further objects to this definition as not limited scope to 

reasonably relate to the material allegations in this lawsuit or reasonably 

calculated to lead to the discovery of admissible evidence because that term is not 

defined in 47 U.S.C. § 227 or 47 C.F.R. § 64.1200. 

M. Convergys objects to the Requests to the extent that they cover the 

time period from January 1, 2006 to present. Accordingly, Convergys will respond to 

these Requests only to the extent that they include the two years preceding the 

filing of this lawsuit. 

N. Convergys objects to the Requests to the extent that they call for the 

production of documents or information relating to documents or information 

created, gathered, or assembled by Convergys or its attorneys after the filing of this 

lawsuit. 

O. In answering a Request by referring to documents from which 

information responsive to the Request may be derived, Convergys is not stating or 

implying that only those documents identified contain such information, but only 

that a full and complete answer to the Request can be derived, at least in part, from 

the referenced documents. Further, documents identified in response to one Request 

may also have information responsive to another Request whether or not identified 

in response to that other Request. 

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5

P. All responses are made subject to and without waiver of Convergys’s 

general and specific objections. These general and specific objections are 

incorporated in full into each of the responses below. 

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6

RESPONSES TO REQUESTS FOR ADMISSION

1. Convergys called 630- 3271 at least once in 2012. 

Response: Admitted. 

2. Convergys called 630- 3271 at least once in 2011. 

Response: Denied.

3. Convergys called 630- 3271 at least once in 2010. 

Response: Denied.

4. Convergys used a predictive dialer to call more than 10,000 telephone 

numbers on behalf of defendant Dun & Bradstreet in 2011. 

Response: Based on its objection to Plaintiff’s definition of 

“predictive dialer,” and subject to and without waiving its objections, 

Convergys denies this Request. 

5. Dun & Bradstreet authorized a January 2012 call made by Convergys 

to 630- 3271. 

Response: Admitted. 

6. Plaintiff did not provide 630- 3271 to Convergys. 

Response: Admitted. 

7. Plaintiff did not provide 630- 3271 to Dun & Bradstreet. 

Response: After reasonable inquiry, the information known by or 

readily available to Convergys is insufficient to enable it to admit or deny 

this Request. 

8. Convergys used telephone equipment that had the capacity to dial 

numbers without human intervention to call 630- 3271 in January 2012. 

Response: Convergys objects to the use of the vague, ambiguous, 

and undefined phrase “without human intervention.” Based on this 

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7

objection, and subject to and without waiving its other objections, 

Convergys denies this Request.

9. You used telephone equipment that had the capacity to dial numbers 

without human intervention to call 630- 3271 in 2012. 

Response: Convergys objects to the use of the vague, ambiguous, 

and undefined phrase “without human intervention.” Based on this 

objection, and subject to and without waiving its other objections, 

Convergys denies this Request.

10. Admit that no human being pressed the digits 630- 3271 for any 

call to plaintiff from any defendant in 2012. 

Response: After reasonable inquiry, the information known by or 

readily available to Convergys is insufficient to enable it to admit or deny 

this Request.

11. Admit that telephone equipment and software dialed 630- 3271 

when you called plaintiff in 2012. 

Response: Convergys objects to Plaintiff’s use of the vague, 

ambiguous, and undefined phrase “telephone equipment and software.” 

Based on this objection, and subject to and without waiving its other 

objections, Convergys denies this Request.

12. You were aware by January 2011 of the decision In re Rules and 

Regulations Implementing the Telephone Consumer Protection Act of 1991, Request 

of ACA International for Clarification and Declaratory Ruling, CG-278, 23 FCC Rcd. 

559 (Jan. 4, 2008). 

Response: Admitted.

13. You did not have a policy of scrubbing phone numbers you called using 

a predictive dialer at any time during 2010. 

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8

Response: Subject to and without waiving its objections, Convergys 

denies this Request.

14. You did not have a policy of scrubbing phone numbers you called using 

a predictive dialer at any time during 2011. 

Response: Subject to and without waiving its objections, Convergys 

denies this Request.

15. You did not have a policy of scrubbing phone numbers you called using 

a predictive dialer at any time during January 2012. 

Response: Subject to and without waiving its objections, Convergys 

denies this Request.

16. There are more than 1,000 phone numbers in the following set. 

All persons nationwide who defendant Dun & Bradstreet, Inc. or some person 

on its behalf called on their cell phone using a device that has the capacity to 

dial numbers without human intervention, where the phone number called 

was obtained from some source other than directly from the called party, 

where any call was made between and including a date two years prior to the 

filing of this action, ongoing. 

Response: Convergys objects to the use of the vague, ambiguous, 

and undefined phrase “without human intervention.” Subject to and 

without waiving these objections, after reasonable inquiry, the 

information known by or readily available to Convergys is insufficient to 

enable it to admit or deny this Request. 

17. There are more than 1,000 phone numbers in the following set: 

All persons nationwide who Convergys Customer Management Group, Inc. or 

some person on its behalf called on their cell phone using a device that has 

the capacity to dial numbers without human intervention, where the phone 

number called was obtained from some source other than directly from the 

called party, where any call was made between and including a date two 

years prior to the filing of this action, ongoing. 

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9

Response: Convergys objects to the use of the vague, ambiguous, 

and undefined phrase “without human intervention.” Subject to and 

without waiving these objections, after reasonable inquiry, the 

information known by or readily available to Convergys is insufficient to 

enable it to admit or deny this Request. 

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10

RESPONSES TO INTERROGATORIES

1. Identify all automated calls (including attempted calls) for each of the 

phone number in the class described below, including plaintiff. A complete answer 

will include at least the following: 

a. Identifying information for the person you were trying to reach (e.g. name, 

business name, address, email, fax number, all phone numbers), 

b. Information for the calls themselves, including the phone number called, 

the date and time of the call and the result of the call (e.g. no answer, 

message left, spoke with John Doe and updated business data, etc.), and 

whom you spoke with, if anyone, and the substance of the conversation; 

c. Information regarding the dialer and equipment used, including 

identification of the equipment and software used to make the call (e.g. 

Guaranteed Contacts, Aspect, Avaya), the location for call 

origination/dialer; and 

d. Identify the source(s) where you obtained the telephone number called 

and the facts and circumstances surrounding such. 

“All cell phone numbers nationwide who you or some person on your behalf 

called on using a device that has the capacity to dial numbers without human 

intervention, where defendant obtained the phone number from some source 

other than directly from the called party, where any call was made between 

and including a date two years prior to the filing of this action, ongoing.” 

Response: Convergys objects to this Interrogatory as overly broad, 

unduly burdensome, vague, ambiguous, and as seeking information that is 

neither relevant to the parties’ claims or defense nor likely to lead to the 

discovery of admissible evidence. Convergys objects to the use of the 

vague, ambiguous, and undefined phrase “without human intervention.” 

Convergys objects to the use of the vague, ambiguous, and undefined 

phrases “directly from the called party” and “automated calls (including 

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11

attempted calls).” Subject to and without waiving its objections, Convergys 

states that it is unable to answer this Interrogatory as propounded. 

Convergys, on behalf of D&B, makes telephone calls to update the 

information contained in D&B’s databases. To make the calls on behalf of 

D&B, Convergys has access to only limited information, and Convergys 

obtains this limited information using an interface called “salesforce.com.” 

D&B maintains “salesforce.com,” and D&B decides what information 

Convergys will have access to through “salesforce.com” when making calls 

on behalf of D&B. 

One of the items of information in “salesforce.com” to which 

Convergys has access is the telephone number which Convergys will call 

on behalf of D&B. Convergys does not have access to information revealing 

the source of the telephone numbers contained in “salesforce.com,” and 

Convergys does not have any information about previous communications 

or interactions between D&B and the people/entities that Convergys calls 

on behalf of D&B. 

Under Rule 33(d), and in response to Request for Production No. 1 

below, Convergys will produce certain business records which may be 

responsive to this Interrogatory. Convergys will also produce copies of 

redacted screen captures from “salesforce.com” which show the 

fields/categories of information that Convergys has access to when it 

makes telephone calls on behalf of D&B. 

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12

After reviewing D&B’s responses to Plaintiff’s Requests, including 

this Interrogatory, Convergys will supplement its response to this 

Interrogatory accordingly. 

Investigation continues. 

2. For each person and call responsive to the previous interrogatory you 

contend you had prior express consent to call, identify all documents, data, 

materials, testimony and other things that support such contention, and explain 

how application of law to those facts suggests that prior express consent was 

present. 

Response: Convergys incorporates as if fully restated its objections 

and response to Interrogatory No. 1. 

Responding further, Convergys states that it is unable to answer this 

Interrogatory as propounded. As explained in response to Interrogatory 

No. 1., due to the business relationship between Convergys and D&B, D&B 

would have information or documents demonstrating any prior express 

consent provided by Plaintiff or any other person or entity. 

After reviewing D&B’s responses to Plaintiff’s Requests, including 

this Interrogatory, Convergys will supplement its response to this 

Interrogatory accordingly. 

Investigation continues. 

3. Identify all documents, data materials testimony or other things that 

you have possession, custody or control over, AND those that are not in your 

possession, custody or control but which you are aware of, that support or refute 

any defense you claim applies to any person responsive to interrogatory 1. 

Response: Convergys incorporates as if fully restated its objections 

and response to Interrogatories Nos. 1 and 2. 

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13

Responding further, Convergys states that it is unable to answer this 

Interrogatory as propounded. As explained in response to Interrogatories 

Nos. 1 and 2, due to the business relationship between Convergys and 

D&B, D&B would have information or documents potentially supporting 

any person or entity-specific defense. 

After reviewing D&B’s responses to Plaintiff’s Requests, including 

this Interrogatory, Convergys will supplement its response to this 

Interrogatory accordingly. 

Investigation continues.

4. Identify all of your dialers. Include the make, model, physical location, 

how they are used, and whether they were used to call plaintiff or any other person 

responsive to interrogatory 1. 

Response: Convergys objects to this Interrogatory as overly broad, 

unduly burdensome, and as not limited in scope to reasonably relate to the 

material allegations in this lawsuit or reasonably calculated to lead to the 

discovery of admissible evidence to the extent that it calls for information 

about Convergys’s dialers which were not used to make calls on behalf of 

D&B in order to update information in “salesforce.com.” 

Subject to and without waiving its objections, when making calls on 

behalf of D&B to update “salesforce.com” records, Convergys uses an 

Avaya Dialer (CDCAPD001, Release 4.2, Production Dialer). The primary 

hardware and software associated with this Avaya dialer is located in 

Convergys’s corporate headquarters, in Cincinnati, OH. Convergys used 

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14

this Avaya dialer in connection with its call—on behalf of D&B—to phone 

number 630- 3271 on January 10, 2012. 

5. If you contend that an “automatic telephone dialing system” was not 

used to call any class member (including plaintiff), identify all documents, data, 

testimony and other things that support or refute this contention (whether in your 

possession, custody or control or not), and explain application of law to fact as to 

how they might support the contention. 

Response: Convergys objects to this Interrogatory to the extent that 

it calls for information about “any class members” as unduly burdensome 

and not readily susceptible to response as Convergys cannot identify the 

“class” as defined by Plaintiff. Convergys objects to Plaintiff’s use of the 

undefined phrase “automatic telephone dialing system.” 

Subject to and without waiving its response, Convergys does not 

contend that it did not use an “automatic telephone dialing system,” as 

defined in 47 U.S.C. § 227(a)(1) and 47 C.F.R. § 64.1200(f)(1), to call—on 

behalf of D&B—the phone number 630- 3271 on January 10, 2012. 

6. Identify all categories and sources of Electronically Stored Information, 

including backups and other difficult to obtain categories, relating to plaintiffs and 

the class members. 

Include all relevant information, including at least: a description of the 

substance of the data, physical location, format, accessibility, person who is 

responsible for such data (or who has personal knowledge regarding the data) and 

bates number, if any. If the data has not been produced, explain why. 

Response: Convergys objects to this Interrogatory as unduly 

burdensome, overly broad, and as seeking information that is neither 

relevant to the parties’ claims or defenses nor likely to lead to the 

discovery of admissible evidence. Convergys objects to this Interrogatory 

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 82 of 132 PageID #:222
15

to the extent that it calls for information about “class members” as unduly 

burdensome and not readily susceptible to response as Convergys cannot 

identify the “class” as defined by Plaintiff. 

Subject to and without waiving its objections, Convergys has access 

to the “salesforce.com” information relating to its call—on behalf of D&B—

to phone number 630- 3271 on January 10, 2012. 

Under Rule 33(d), and in response to Request for Production No. 1 

below, Convergys will produce business records which may be responsive 

to this Interrogatory. 

Investigation continues.

7. Identify every claim you are aware of that you used an automatic 

telephone dialing system as defined in the TCPA, implementing regulations and 

orders. Include, for example, formal and informal claims including demand letters, 

threatening emails and letters, regulatory complaints with the FCC or FTC, and 

lawsuits, including particularly class actions. Include citation to bates numbers. 

(See document request 9). 

Response: Convergys objects to the use of the vague, ambiguous, 

and undefined term “claim.” Subject to and without waiving its objections, 

Plaintiff’s lawsuit is the only instance of which Convergys is aware that a 

person or entity has accused Convergys of violating 47 U.S.C. § 227(b)(1)(A) 

or 47 C.F.R. § 64.1200(a)(1). 

8. With respect to each expert, retained or nonretained, whom you will or 

may call upon to give evidence or testimony in connection with this case, please 

state: (a) his name, address, telephone number, occupation, and current 

employment; (b) the subject matter of his expertise; (c) his educational background, 

academic degrees, employment history, employment experience, and any other 

matters which you contend qualify him as an expert; (d) the substance of all facts 

and opinions to which he could testify if called as a witness; (e) a summary of the 

grounds for each such opinion. 

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16

Response: Convergys objects to this Interrogatory as premature as 

Convergys has not yet determined which expert or experts it will or may 

call upon to give evidence or testimony in connection with this case. 

Convergys will provide the expert disclosures required by the Federal 

Rules of Civil Procedure in accordance with any scheduled entered by the 

Court in this lawsuit. Convergys objects to this Interrogatory to the extent 

that it calls for production beyond that required by the Federal Rules of 

Civil Procedure.

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17

RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

1. All documents, records, data, recordings and other materials relating 

to plaintiff or 630- 3271, or which are indexed, filed or retrievable under any of 

them, or any number, symbol, designation or code (such as an account number or 

Social Security number) associated with any of them. 

Response: Subject to and without waiving its objections, Convergys 

will produce screen captures from “salesforce.com” relating to its call—on 

behalf of D&B—to phone number 630- 3271 on January 10, 2012. 

Investigation continues. 

2. All documents that concern or relate to any person or phone number 

responsive to interrogatory 1. 

Response: Convergys incorporates its responses and objections to 

Interrogatories 1, 2, and 3 as if fully restated herein. 

Subject to and without waiving its objections, Convergys states that 

it is unable to answer this Request as propounded. As explained in 

response to Plaintiff’s Interrogatories, Convergys is unable to identify the 

“class” as defined by Plaintiff. Due to the business relationship between 

Convergys and D&B, D&B would have information or documents which 

may be used to identify the putative class, to the extent that such 

identification is possible or that such documents exist. 

After reviewing D&B’s responses to Plaintiff’s Requests, including 

this Request, Convergys will supplement its response to this Request 

accordingly. 

Investigation continues. 

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18

3. All documents referenced or referred to in your response to any 

interrogatory, including but not limited to interrogatory 1. 

Response: Convergys incorporates its responses and objections to 

Plaintiff’s Interrogatories as if fully stated herein. 

Subject to and without waiving its objections, Convergys will 

produce documents which Convergys offered to produce in response to 

any Interrogatory.

4. All documents that describe your dialers (e.g. manuals, training 

materials, emails, instructional videos, intranet how-to) or relate to whether they 

have the capacity to dial numbers without human intervention. 

Response: Convergys objects to this Request as overly broad, 

unduly burdensome, and as not limited in scope to reasonably relate to the 

material allegations in this lawsuit or reasonably calculated to lead to the 

discovery of admissible evidence to the extent that it calls for information 

about Convergys’s dialers which were not used to make calls on behalf of 

D&B in order to update information in “salesforce.com.” 

Subject to and without waiving its objections, Convergys will 

produce the following documents relating to its Avaya Dialer 

(CDCAPD001, Release 4.2, Production Dialer) identified in response to 

Interrogatory No. 4: 

 Avaya, “Using Avaya Proactive Contact Supervisor,” 

Release 4.2 (May 2010) 

 Avaya, “Avaya Proactive Contact - Answer Machine 

Detection and SIT Screening” 

Investigation continues. 

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19

5. All documents that support or refute any affirmative defense in this 

case or relating to prior express consent to receive calls made with an automatic 

telephone dialing system or prerecorded or artificial voice, for each class member 

including plaintiffs. 

Response: Convergys incorporates its responses and objections to 

Interrogatories 1, 2, and 3 as if fully restated herein. 

Subject to and without waiving its objections, Convergys states that 

it is unable to answer this Request as propounded. As explained in 

response to Plaintiff’s Interrogatories, Convergys is unable to identify the 

“class” as defined by Plaintiff. Due to the business relationship between 

Convergys and D&B, D&B would have information or documents which 

may be responsive to this Request, if any. 

After reviewing D&B’s responses to Plaintiff’s Requests, including 

this Request, Convergys will supplement its response to this Request 

accordingly. 

Investigation continues.

6. All documents, data or other materials you reviewed or referenced in 

responding to any discovery request in this case. 

Response: Convergys objects to this Request as vague and 

ambiguous and not reasonably susceptible to response. Convergys also 

objects to this Request to the extent that it seeks production of documents 

or information to which Convergys has asserted an objection to producing. 

Subject to and without waiving its objections, to the extent that Convergys 

has offered to produce documents in response to one of Plaintiff’s 

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 87 of 132 PageID #:227
20

Requests, Convergys will also produce the identified documents in 

response to this Request. 

7. A copy of any sworn testimony relating to your dialers, or policies, 

practices or procedures relating to the use of dialers. A full response would include, 

for example, deposition testimony, declarations and affidavits. 

Response: Convergys objects to this Request as overly broad, 

unduly burdensome, and as not limited in scope to reasonably relate to the 

material allegations in this lawsuit or reasonably calculated to lead to the 

discovery of admissible evidence to the extent that it calls for information 

about Convergys’s dialers which were not used to make calls on behalf of 

D&B in order to update information in “salesforce.com.” 

Subject to and without waiving its objections, as it is presently 

informed, Convergys is not aware of any documents responsive to this 

Request. 

Investigation continues. 

8. All agreements between the parties that concern the use of a dialer. 

Response: Convergys objects to this Interrogatory as overly broad, 

unduly burdensome, and as not limited in scope to reasonably relate to the 

material allegations in this lawsuit or reasonably calculated to lead to the 

discovery of admissible evidence to the extent that it calls for information 

about agreements between Convergys and D&B which do not relate to 

Convergys’s activities to update information in “salesforce.com.” 

Convergys objects to the vague, ambiguous, and undefined phrase 

“concern the use of a dialer.” 

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21

Subject to and without waiving its objections, Convergys will 

produce copies of the following documents: 

 Lead Management Services Agreement by and between 

Convergys and D&B (April 28, 2010) 

 Statement of Work Number 1 by and between Convergys 

and D&B (January 1, 2011) 

 Business Process Outsourcing Services Agreement by 

and between Convergys and D&B (August 25, 2010) 

Investigation continues. 

9. All documents concerning every claim you are aware of that you used 

an automatic telephone dialing system as defined in the TCPA, implementing 

regulations and orders. Include, for example, formal and informal claims including 

demand letters, threatening emails and letters, regulatory complaints with the FCC 

or FTC, and lawsuits, including particularly class actions. 

Response: Convergys objects to the use of the vague, ambiguous, 

and undefined term “claim.” Subject to and without waiving its objections, 

as it is presently informed, Convergys is not aware of any documents 

responsive to this Request. 

Investigation continues.

10. All insurance policies that could possibly afford any coverage with 

respect to the matters complained of in this case together with all correspondence 

discussing, accepting or declining coverage or reserving rights with respect thereto. 

 Response: Convergys objects to this Request as calling for a legal 

conclusion. Subject to and without waiving its objections, Convergys will 

produce a copy of the following insurance policies which may be 

responsive to this Request: 

 Primary Policy entitled “Technology, Media & 

Professional Liability Insurance” issued by Beazley 

Group (policy number QK1102774) 

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22

 First Excess Policy issued by Continental Casualty 

Company (policy number 169902255-09) 

 Second Excess Policy issued by Chartis Specialty 

Insurance Company (policy number 02-842-61-39) 

 Third Excess Policy issued by Aspen Insurance UK 

Limited (policy number QK1103547) 

 Fourth Excess Policy issued by RLI Insurance Company 

(policy number EPG0009820) 

 Fifth Excess Policy issued by Lexington Insurance 

Company (policy number 015438182) 

 Sixth Excess Policy issued by ACE American Insurance 

Company (policy number XEO G24456389 005) 

 Investigation continues. 

11. All documents received from third parties that relate to this case, 

without regard to time. Responsive materials would include, for example, responses 

to subpoenas. 

Response: As it is presently informed, Convergys is not aware of any 

documents responsive to this Request. 

Investigation continues. 

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 90 of 132 PageID #:230
23

Date: April 5, 2012 Respectfully submitted, 

CONVERGYS CUSTOMER 

MANAGEMENT GROUP INC. 

By: /s/ Albert E. Hartmann 

One of Its Attorneys 

Perrie M. Weiner (admitted pro hac vice) 

Joshua Briones (admitted pro hac vice) 

DLA PIPER LLP (US) 

2000 Avenue of the Stars, Suite 400 North Tower 

Los Angeles, California 90067-4704 

T: 310.595.3000 

F: 310.595.3300 

Email: perrie.weiner@dlapiper.com 

Email: joshua.briones@dlapiper.com 

Albert E. Hartmann (ARDC # 06256064) 

DLA PIPER LLP (US) 

203 North LaSalle Street, Suite 1900 

Chicago, Illinois 60601 

T: 312.368.2142 

F: 312.630.7317 

Email: albert.hartmann@dlapiper.com

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Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 92 of 132 PageID #:232
CERTIFICATE OF SERVICE

I, Albert E. Hartmann, an attorney, hereby certify that on April 5, 2012, I 

caused a copy of the above and foregoing to be served upon: 

Alexander H. Burke 

Burke Law Offices, LLC 

155 N. Michigan Avenue 

Suite 9020 

Chicago, IL 60601 

ABurke@BurkeLawLLC.com 

Counsel for Plaintiff 

Bart T. Murphy 

Ice Miller LLP 

2300 Cabot Drive 

Suite 455 

Lisle, IL 60532 

Bart.Murphy@icemiller.com 

Counsel for Defendant Dun & Bradstreet, Inc. 

by email delivery and by addressing and mailing a copy of same, via U.S. Mail, 

postage prepaid, to said counsel, from 203 N. LaSalle St., Chicago, Illinois 60601. 

s/ Albert E. Hartmann 

Albert E. Hartmann 

WEST\229625373.5 

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 93 of 132 PageID #:233
Exhibit G

Transcript of Proceedings at initial status conference

March 13, 2012

   

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 1

 1 TRANSCRIBED FROM DIGITAL RECORDING 

 2 IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

 3 EASTERN DIVISION 

 4 NICHOLAS MARTIN, on behalf of ) Docket No. 12 C 215 

himself and others similarly ) 

 5 situated, ) 

 ) 

 6 Plaintiff, ) 

 ) 

 7 v. ) Chicago, Illinois 

 ) March 13, 2012 

 8 DUN & BRADSTREET, INC., and ) 10:27 o'clock a.m. 

CONVERGYS CUSTOMER MANAGEMENT ) 

 9 GROUP, INC., ) 

 ) 

10 Defendants. ) 

11 TRANSCRIPT OF PROCEEDINGS - STATUS 

BEFORE THE HONORABLE MORTON DENLOW 

12 

APPEARANCES: 

13 

For the Plaintiff: BURKE LAW OFFICES, LLC., by 

14 MR. ALEXANDER HOLMES BURKE 

155 North Michigan Avenue 

15 Suite 9020 

Chicago, Illinois 60601 

16 

For Defendant Dun &: ICE MILLER LLP, by 

17 Bradstreet: MR. ISAAC J. COLUNGA 

2300 Cabot Drive 

18 Suite 455 

Lisle, Illinois 60532 

19 

20 ALEXANDRA ROTH, CSR, RPR 

Official Court Reporter 

21 219 South Dearborn Street 

Room 1224 

22 Chicago, Illinois 60604 

(312) 408-5038 

23 

24 NOTE: Please notify of correct speaker identification. N as t o r ke e i o 

FAILURE TO SPEAK DIRECTLY INTO THE MICROPHONE MAKES F R S C I T I O A 

25 PORTIONS INAUDIBLE. P ON NA L

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 2

 1 APPEARANCES: (Continued) 

 2 For Defendant Convergys: DLA PIPER US LLP IL, by 

MR. ALBERT EDWARD HARTMANN 

 3 203 North LaSalle Street 

20th Floor 

 4 Chicago, Illinois 60601 

 5 

 6 

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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 3

 1 (Proceedings had in open court:)

 2 THE CLERK: 12 C 215, Martin versus Dun & Bradstreet.

 3 MR. BURKE: Good morning, Judge. Alexander Burke,

 4 B-u-r-k-e, for the plaintiff.

 5 MR. COLUNGA: Good morning, your Honor. Isaac

 6 Colunga, C-o-l-u-n-g-a, on behalf of the defendant Dun &

 7 Bradstreet.

 8 MR. HARTMANN: Good morning, your Honor. Albert

 9 Hartmann, H-a-r-t-m-a-n-n, on behalf of the defendant

10 Convergys.

11 THE COURT: Okay. I see Mr. Burke has filed a motion

12 to certify the class. So what do you need to do before you are

13 ready to proceed with that motion?

14 MR. BURKE: I would need some class discovery. I've

15 already issued some very limited discovery requests. I think I

16 have passed eight interrogatories and something like 12

17 document requests, some -- and some requests for admission.

18 I would hope to maybe file a memorandum in support of

19 that motion in, say, 60 days.

20 THE COURT: Okay. And what would you need to do in

21 opposition to the motion, in the way of discovery? I mean, I'm

22 going to focus on that aspect of it first. Either we're going

23 to have a class action or we're not going to have a class

24 action.

25 MR. COLUNGA: Your Honor, I think there -- there is

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 4

 1 two issues. And I'll let counsel take over with respect to one

 2 of them. But one of them, what we see is, in a case like this,

 3 there is an awful lot of electronically stored information

 4 discovery that pertains to that. And we're in the process

 5 right now of obtaining as much as we can. We still have to

 6 review it. We have to organize it and then produce it.

 7 I do feel that 60 days might be cutting it a little

 8 short. However, there is -- there is an issue with respect to

 9 bifurcation. And I think counsel can speak to that as well

10 that might -- might help expedite things.

11 MR. HARTMANN: Yes, your Honor. In the status report,

12 we were thinking -- the defendants were thinking along the

13 lines that you were -- we focused on the class issues.

14 Initially do discovery on the elements that Mr. Burke will need

15 to certify a class, unless the defendants concede that, say,

16 for example, numerosity. Focus that, get the class

17 certification resolved. And then if there is any merits based

18 discovery left, do that at the end. But also conceding that

19 after discussing with Mr. Burke in a Rule 26(f) conference, if

20 the defendants are going to have to serve defenses such as

21 consent, we would have to provide discovery on that in --

22 THE COURT: All right.

23 MR. HARTMANN: -- 60 days --

24 THE COURT: The consent issue really requires you to

25 look at each particular customer? Is that what it involves?

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 5

 1 MR. HARTMANN: Yes, your Honor.

 2 MR. COLUNGA: That's right, your Honor. We're still

 3 identifying, you know, the numbers, the precise numbers, and

 4 the customers themselves. We also still need to identify the

 5 communication that they allegedly received. Or I'm sorry, the

 6 call.

 7 MR. BURKE: Judge, this is not like some other auto-

 8 dialer cases, like the ones against debt collection agencies.

 9 I mean, the plaintiff has no relationship with Dun & Bradstreet

10 or Convergys. They obtained this phone number from some

11 source. I don't know where they got it. But it seems hard to

12 imagine that there is consent here.

13 THE COURT: What -- what was the nature of the call

14 itself?

15 MR. BURKE: It was a call that was made in order to

16 build Dun & Bradstreet's database, as far as we can tell.

17 THE COURT: To build --

18 MR. BURKE: Dun & Bradstreet is like a company that

19 provides sort of credit reports for businesses.

20 THE COURT: Right.

21 MR. BURKE: And so they were trying to learn about my

22 client's business when they made this phone call. Convergys is

23 a company that Dun & Bradstreet hired to build its database.

24 During the phone call, the operator told my client

25 that they used an autodialer. And really the autodialer issue

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 6

 1 is -- as I see it, that's the only merits issue here. I don't

 2 think that it's going to be a messy issue.

 3 Typically in this kind of case the only thing I need

 4 to do in order to prove that they used an autodialer under the

 5 TCPA is ask a few questions in a deposition. Sometimes I even

 6 get --

 7 THE COURT: Right.

 8 MR. BURKE: -- interrogatory.

 9 THE COURT: You can do it through an interrogatory

10 request to admit. I mean --

11 MR. BURKE: Although they usually deny the request for

12 admission even though I tried to carefully craft them. So, you

13 know, and I understand --

14 THE COURT: Are you getting -- are you getting better

15 at crafting them?

16 MR. BURKE: I'm trying, Judge. I think that I've

17 gotten better, especially in my interrogatories. They're very

18 pointed. And, you know, for a very large case, you know, I'm

19 not sure I'm going to need any more interrogatories than the

20 nine or so that I've issued.

21 THE COURT: Mr. Burke is getting good at this stuff.

22 He's got his own law firm now. I mean, I knew him when he was

23 just at Edelman & Combs, just young associate getting --

24 getting his feet wet here.

25 MR. BURKE: It was good experience, Judge. You know,

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 7

 1 I'm having a good time with this autodialer stuff.

 2 You know, the plaintiff opposes bifurcation. You

 3 know, the -- the liability issue that defendants are referring

 4 to, I think, is just this whether they were using an auto-

 5 dialer. I think that that -- that issue meshes with the class

 6 issues because I'm going to have to prove that everyone used --

 7 THE COURT: And --

 8 MR. BURKE: -- the same dialer.

 9 THE COURT: -- also meshes with the issue whether

10 you're going to settle the thing or not settle the thing. So

11 as long as a discovery is somewhat limited in scope, as Mr.

12 Burke has described, as it relates to merits, I'm not going to

13 bifurcate the discovery. You can go ahead and do both class

14 and merits. And, you know, I want to keep -- keep the class

15 discovery moving forward.

16 So let me see you in about 60 days.

17 MR. COLUNGA: If -- perhaps, your Honor, if we can set

18 a status in 60 days. But I do feel that we may need more time

19 to that too --

20 THE COURT: Well, I'll find out. I mean, you know,

21 I'm looking for you to be working closely together to move it

22 forward. But let me see you on a status in 60 days.

23 I mean, you know, what -- what I think sometimes is

24 helpful is to just take examples of -- I mean, yes, I mean,

25 while you may want the entire discovery, just pulling out

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 101 of 132 PageID #:241
 8

 1 representative situations and seeing whether they -- they work

 2 for you is also helpful. So you may have a period of time that

 3 you asked for, two years back.

 4 MR. BURKE: Right, it's two years.

 5 THE COURT: So, I mean, if you can give him on a

 6 rolling basis a couple of months and let him analyze it, he's

 7 going to tell you whether he's got a case or doesn't have a

 8 case, if they're representative. So you take one month from

 9 the first year, one month from the second year, and something

10 along those lines.

11 MR. BURKE: I -- I think that's something we can work

12 out. I mean, you know, the way I've defined the class is, it

13 does not include anyone who gave their phone number to either

14 defendant. And giving your phone number is consent. And I'm

15 not aware of any other action or inaction that can constitute

16 consent.

17 So from my perspective, there should be no one in the

18 class who consented.

19 MR. COLUNGA: Beyond consent, there may be individuals

20 in the class as it's currently defined, I believe, who -- where

21 the phone call did not go to a cell phone. And we still need

22 to confirm that. Whether --

23 THE COURT: That's why I'm saying, you know, spend

24 some time just, you know, breaking out a month from each year

25 quickly. Get it to Mr. Burke. Let him analyze it. See where

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 9

 1 you're going with the thing. And then he'll realize whether or

 2 not you're going to have defenses or whether he's got a slam

 3 dunk.

 4 MR. COLUNGA: That's right, your Honor. And I should

 5 say, your Honor, we are working well together. This is -- this

 6 might be a little quibble before you. But we -- we can work

 7 this out.

 8 MR. BURKE: You know, one other thing, Judge, that may

 9 be worth mentioning is that I recall that one of the

10 affirmative defenses had to do with releases for some of the

11 class members as to other cases. And I'm not aware of any

12 other cases that this -- that might relate to this case. And I

13 think I issued discovery about this.

14 Am I thinking of the wrong case?

15 MR. HARTMANN: No, that -- that was actually my -- it

16 was more preemptive. Just it -- I'm not aware of any other

17 cases specifically. But to the extent there is something out

18 there, I wanted to --

19 THE COURT: So why don't we see you in 60 days. And I

20 want progress made both on, you know, the class certification

21 issue and -- and the merits issue. Let's see where we stand.

22 THE CLERK: May 15, 10:00 a.m.

23 MR. BURKE: Great. Thank you.

24 THE COURT: Thank you. Thank you all.

25 MR. COLUNGA: Your Honor, I apologize, we also have a

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 103 of 132 PageID #:243
 10

 1 status report that we had issued, the plaintiff had filed, with

 2 respect to the several -- the dates.

 3 MR. BURKE: I suggested October 15 as the discovery

 4 cutoff. And maybe we should just talk about that in May.

 5 THE COURT: Yeah, let's talk about it in May. See, I

 6 mean, you'll have a better handle on to see whether you have

 7 the difficulties you anticipate or not.

 8 MR. BURKE: Okay.

 9 THE COURT: Okay?

10 MR. COLUNGA: Thank you, your Honor.

11 MR. HARTMANN: Thank you.

12 THE COURT: Thank you.

13 (Which were all the proceedings had at the hearing of the

14 within cause on the day and date hereof.)

15 CERTIFICATE 

16 I HEREBY CERTIFY that the foregoing is a true, correct

17 and complete transcript of the proceedings had at the hearing

18 of the aforementioned cause on the day and date hereof.

19 

20 /s/Alexandra Roth 8/30/2012 

__________________________________ _________________ 

21 Official Court Reporter Date 

 U.S. District Court 

22 Northern District of Illinois 

 Eastern Division 

23 

24

25

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Exhibit H

Transcript of Proceedings at Plaintiff’s Motion to Compel  

July 9, 2012

Case: 1:12-cv-00215 Document #: 39 Filed: 09/07/12 Page 105 of 132 PageID #:245
 1

 1 TRANSCRIBED FROM DIGITAL RECORDING 

 2 IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

 3 EASTERN DIVISION 

 4 NICHOLAS MARTIN, on behalf of ) Docket No. 12 C 215 

himself and others similarly ) 

 5 situated, ) 

 ) 

 6 Plaintiff, ) 

 ) 

 7 v. ) Chicago, Illinois 

 ) July 9, 2012 

 8 DUN & BRADSTREET, INC., and ) 9:21 o'clock a.m. 

CONVERGYS CUSTOMER MANAGEMENT ) 

 9 GROUP, INC., ) 

 ) 

10 Defendants. ) 

11 TRANSCRIPT OF PROCEEDINGS - STATUS 

BEFORE THE HONORABLE MORTON DENLOW 

12 

APPEARANCES: 

13 

For the Plaintiff: BURKE LAW OFFICES, LLC., by 

14 MR. ALEXANDER HOLMES BURKE 

155 North Michigan Avenue 

15 Suite 9020 

Chicago, Illinois 60601 

16 

For Defendant Dun &: ICE MILLER LLP, by 

17 Bradstreet: MR. ISAAC J. COLUNGA 

2300 Cabot Drive 

18 Suite 455 

Lisle, Illinois 60532 

19 

20 ALEXANDRA ROTH, CSR, RPR 

Official Court Reporter 

21 219 South Dearborn Street 

Room 1224 

22 Chicago, Illinois 60604 

(312) 408-5038 

23 

24 NOTE: Please notify of correct speaker identification. N as t o r ke e i o 

FAILURE TO SPEAK DIRECTLY INTO THE MICROPHONE MAKES F R S C I T I O A 

25 PORTIONS INAUDIBLE. P ON NA L

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 2

 1 APPEARANCES: (Continued) 

 2 For Defendant Convergys: DLA PIPER US LLP IL, by 

MR. ALBERT EDWARD HARTMANN 

 3 203 North LaSalle Street 

20th Floor 

 4 Chicago, Illinois 60601 

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 1 (Proceedings had in open court:)

 2 THE CLERK: 12 C 215, Martin versus Dun & Bradstreet,

 3 Inc.

 4 MR. BURKE: Good morning, Judge. Alexander Burke for

 5 the plaintiff.

 6 THE COURT: Go ahead and spell your last name for the

 7 record.

 8 MR. BURKE: B-u-r-k-e.

 9 MR. HARTMANN: Good morning, your Honor. Albert

10 Hartmann, H-a-r-t-m-a-n-n, for defendant Convergys.

11 MR. BURKE: Judge, counsel for Dun & Bradstreet, which

12 is the subject of this motion, isn't here yet. I just was

13 looking on my phone. I don't have his cell phone number.

14 Perhaps we should pass -- pass it for a few minutes

15 and try to give him a call.

16 THE COURT: Okay.

17 MR. HARTMANN: I -- I may have an e-mail he sent me.

18 THE COURT: So why don't you try.

19 MR. HARTMANN: Thank you.

20 THE COURT: See what you can do.

21 (Other matter heard before this Court, after which the

22 following further proceedings were had herein:)

23 THE CLERK: 12 C 215, Martin versus Dun & Bradstreet,

24 Inc.

25 MR. BURKE: Good morning, Judge. Alexander Burke,

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 1 B-u-r-k-e, for the plaintiff.

 2 MR. HARTMANN: Good morning, your Honor. Albert

 3 Hartmann, H-a-r-t-m-a-n-n, for defendant Convergys.

 4 MR. COLUNGA: Good morning, your Honor. Isaac

 5 Colunga, on behalf of the defendant Dun & Bradstreet.

 6 Your Honor, I apologize for running late this morning.

 7 It was in my calendar for 10:00 a.m. I apologize to the Court

 8 and to counsel as well.

 9 THE COURT: Okay. So where do things stand?

10 MR. COLUNGA: Your Honor, plaintiff -- we spoke --

11 plaintiff's counsel and Dun & Bradstreet spoke a few weeks ago

12 with respect to where Dun & Bradstreet was with producing the

13 documents that plaintiff had requested. I understand that

14 plaintiff needed to file this motion to compel since there

15 were -- the Court has yet to set any discovery deadlines. I

16 think what -- what plaintiff is requesting is some deadlines so

17 that we can have some clarity and get -- have a little bit more

18 focus with respect to what the defendants need to produce.

19 I think I explained to the Court the last time we were

20 here that we have a lot of information that we're sifting

21 through. And the defendant is attempting to comply with. You

22 know, the interrogatory the plaintiff produced to us requires a

23 little bit more than just dumping a pile of documents on the

24 plaintiff.

25 We are going through the documents deliberately. We

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 1 are looking at them for not only where the cell phone numbers

 2 came from. But if you recall, Judge, this is a TCPA case

 3 involving the -- allegedly involving calls made to cell phone

 4 numbers. So we're looking at not only cell phone numbers, but

 5 we're also looking to whether there was consent to call those

 6 numbers. That's part of plaintiff's class definition, and

 7 that's part of the plaintiff's request with respect to the

 8 documents that we produced.

 9 And it's -- it's taking a lot of time, unfortunately.

10 And -- and that's -- that's where we are.

11 THE COURT: But that doesn't answer the question. I

12 mean, you know, Mr. Burke has asked for a date certain by which

13 you are going to give him an answer. So what's -- you know,

14 can you give him a date certain by which you're going to

15 respond to the discovery? 

16 I appreciate it's taking a lot of time. I mean, it

17 would be different if you told me, okay, Judge, we're engaged

18 in rolling discovery. So as I go through things, I'm passing

19 it on to Mr. Burke. I didn't hear that.

20 MR. COLUNGA: That's correct, we -- we have not.

21 Convergys has made a production of documents, but Dun &

22 Bradstreet has not produced yet either rolling or in one lump.

23 We're not -- we are amenable to that -- to that kind

24 of arrangement. I think that there are documents that we can

25 probably produce right now to Mr. Burke, not necessarily with

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 1 respect to the phone numbers or consent, but I believe Mr.

 2 Burke is requesting insurance policies. We may have copies of

 3 those documents that we can produce and a few other documents

 4 that he's requested.

 5 But so with respect to dates, that's what we're

 6 getting at. I think --

 7 THE COURT: Well, here is what we're getting at. What

 8 we're getting at is, when a party issues discovery to another

 9 party and the other party doesn't respond, a party shouldn't

10 have to go in on a motion to find out what's going on. That's

11 what we're getting at. Okay? 

12 So Mr. Burke is entitled to know what's going on, when

13 he's going to get something. I found Mr. Burke to be not

14 unreasonable if he knows that things are happening. But if he

15 gets nothing and no responses, it doesn't work.

16 MR. COLUNGA: You're right, Judge. But I think in

17 this situation, we -- we have been in touch. We have been

18 communicating. Mr. Burke -- Mr. Burke, as you said, has been

19 very reasonable. I -- I've made these explanations along the

20 way.

21 But what Mr. Burke wanted, and I understand, is -- is

22 a date, a date certain that we perhaps give him something with

23 respect to the production. And when we last spoke, I was

24 unable to do that. And that's what prompted the motion to

25 compel.

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 1 Tomorrow, I have a very focused call with the client.

 2 And I believe, I am confident, that after this phone call I can

 3 give Mr. Burke a date certain, the date that he's looking for.

 4 If we can, if the Court is open to this, I would request just a

 5 short date, perhaps a deadline, so that I -- perhaps I can talk

 6 to Mr. Burke. And we can come up with a schedule of dates

 7 that -- that we -- we can comply with.

 8 THE COURT: Well, what -- what's outstanding? What's

 9 outstanding? There is a document request?

10 MR. BURKE: All documents are outstanding. All -- all

11 interrogatory responses essentially are outstanding. We've got

12 some -- some, you know, objections and we've got some, you

13 know, placeholder objections and very little substantive

14 responses to our interrogatories.

15 We've got nothing as to, you know, consent as to the

16 plaintiff. I don't have any documents having to do with my

17 guy. Essentially -- 

18 THE COURT: That's usually an important issue --

19 MR. COLUNGA: It is.

20 THE COURT: -- you know, with respect to the

21 plaintiffs. You know, efforts should be being made to deal

22 with that specifically.

23 You know, I'm going to help focus the discussion with

24 your client tomorrow; and that is, all outstanding discovery is

25 to respond -- to be responded to on or before August 15, unless

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 1 otherwise agreed to by plaintiff's counsel. So the plaintiff's

 2 motion to compel is granted. All outstanding discovery by

 3 defendant Dun & Bradstreet, Inc., is to be complied with by,

 4 you know, August 15, unless otherwise agreed to by plaintiff's

 5 counsel.

 6 So I want to -- you know, I don't know what else to

 7 do.

 8 MR. COLUNGA: I -- I understand, Judge.

 9 THE COURT: Do we have another date in the case,

10 another status date?

11 MR. HARTMANN: I believe we have an August date.

12 THE COURT: Let me just check here. Yeah, we got a

13 status on August 7. So why don't we -- why don't we continue

14 that status date to let's say August -- August 16, the day

15 after the --

16 MR. BURKE: Judge, could I -- could I ask for perhaps

17 like the 21st?

18 THE COURT: If you are on vacation.

19 MR. BURKE: I am. I'm scheduled to be in Wisconsin.

20 THE COURT: Okay. We will let you go on vacation.

21 THE CLERK: You won't be here, Judge.

22 THE COURT: Okay. I'll be on vacation. Okay.

23 Linda, when am I back?

24 THE CLERK: The 21st or the 23rd.

25 THE COURT: The 21st or 23rd, is that okay? Will you

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 1 be back, Mr. Burke?

 2 MR. BURKE: Yes.

 3 THE COURT: Does that work for the other attorneys?

 4 MR. COLUNGA: Yes.

 5 MR. HARTMANN: Yes.

 6 MR. COLUNGA: That works for me, your Honor. I'm not

 7 allowed to take vacation.

 8 THE COURT: Good. You've been well trained. No.

 9 THE CLERK: Which date?

10 THE COURT: How about the 21st, 21st at 10:00 o'clock.

11 So we'll vacate the -- vacate the August 7 date. And, okay. 

12 MR. BURKE: Than you, Judge.

13 MR. COLUNGA: Thank you, your Honor.

14 (Which were all the proceedings had at the hearing of the

15 within cause on the day and date hereof.)

16 CERTIFICATE 

17 I HEREBY CERTIFY that the foregoing is a true, correct

18 and complete transcript of the proceedings had at the hearing

19 of the aforementioned cause on the day and date hereof.

20 

21 /s/Alexandra Roth 8/30/2012 

__________________________________ _________________ 

22 Official Court Reporter Date 

 U.S. District Court 

23 Northern District of Illinois 

 Eastern Division 

24 

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Exhibit I

Dun & Bradstreet, Inc.  

Supplemental Discovery Responses

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