UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

HENRY ESPEJO, individually and on ) 

behalf of all others similarly situated, ) 

 ) 

 Plaintiff, ) 

 ) Case No. 11 C 8987 

 v. ) 

 ) Judge Charles P. Kocoras 

SANTANDER CONSUMER USA, ) 

INC., an Illinois corporation ) 

 ) 

 Defendant. ) 

 

FAYE LEVINS, individually and on ) 

behalf of all others similarly situated, ) 

 ) 

 Plaintiff, ) 

 ) Case No. 12 C 9431 

 v. ) 

 ) Judge Charles P. Kocoras 

SANTANDER CONSUMER USA, ) 

INC., an Illinois corporation ) 

 ) 

 Defendant. ) 

 

MEMORANDUM OPINION AND ORDER 

CHARLES P. KOCORAS, U.S. District Judge: 

Now before the Court are Defendant Santander Consumer USA, Inc.’s Motions 

for Summary Judgment in Case Nos. 11-cv-8987 and 12-cv-9431, and Plaintiff Faye 

Levins’ Motion for Class Certification in Case No. 12-cv-9431. For the reasons 

below, Santander’s Motion for Summary Judgment in Case No. 11-cv-8987 is denied, 

Santander’s Motion for Summary Judgment in Case No. 12-cv-9431 is granted in part, 

and Levins’ Motion for Class Certification in Case No. 12-cv-9431 is denied. 

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BACKGROUND 

These consolidated class actions raise claims against Defendant Santander 

Consumer U.S.A., Inc. (“Santander”) by two Plaintiffs (Henry Espejo and Faye Levins) 

for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et 

seq. Espejo’s class action was originally filed against Santander in this district on 

December 19, 2011, by a different plaintiff (Tercia Pereira) alleging violations of the 

TCPA individually and on behalf of a putative nationwide class and sub-class. See

Dkt. 1 in Case No. 11-cv-8987 (“8987 Dkt.”). By stipulation of the parties, an 

amended complaint followed on August 8, 2012, substituting Espejo as the plaintiff in 

that case, individually and as the new representative of the same nationwide class and 

sub-class. See 8987 Dkts. 27-30. 

Meanwhile, on June 5, 2012, a different plaintiff (Arica Bonner) filed a separate 

action against Santander in the Northern District of Alabama, alleging violations of the 

TCPA and other claims. See Dkt. 1 in Case No. 12-cv-9431 (“Dkt.”). An amended 

complaint followed there as well, adding Levins and seven other plaintiffs, again 

individually and on behalf of a putative nationwide class. See Dkt. 4. Following the 

dismissal of five of those plaintiffs, the action was transferred to this district by consent 

of the remaining parties, and then reassigned to this Court as related to Espejo’s action 

in December 2012. See Dkts. 15, 25, 29, 33, 36-37. All other plaintiffs and claims in 

Levins’ action were then voluntarily dismissed (see Dkts. 78, 82, 90), leaving only 

Levins’ and Espejo’s TCPA claims, individually and on behalf of putative nationwide 

classes and subclasses in both cases. 

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Both Plaintiffs claim that Santander dialed their respective cell phone numbers to 

contact them regarding their outstanding auto loans in violation of the TCPA. 

According to Espejo and Levins, such calls by Santander violated the TCPA because 

they were made using an automatic telephone dialing system (“ATDS”) without first 

obtaining Espejo’s or Levins’ consent to contact them at those numbers. See Dkt. 123, 

at 1. Santander disputes both assertions—that it lacked consent to contact Espejo and 

Levins at the cell phone numbers at issue, and that it used an ATDS system to do 

so−and now seeks summary judgment in its favor on the TCPA claims against it in both 

actions on both of these grounds. See Dkt. 94. Levins, in turn, seeks certification of 

her alleged nationwide class and subclass pursuant to Fed. R. Civ. P. 23(b)(3). See 

Dkt. 100. For the following reasons, Santander’s motion for summary judgment is 

granted as to one of Levins’ three telephone numbers (the 6954 number); Santander’s 

motions for summary judgment are otherwise denied; and Levins’ motion for class 

certification is also denied. 

DISCUSSION 

I. Santander’s Motions for Summary Judgment 

As both sides agree, Santander’s liability under the TCPA depends on whether: 

(1) it had obtained each Plaintiff’s consent to be contacted at the cellphone numbers at 

issue, and (2) it used an ATDS to make those calls. Dkt. 96, at 6, 12; Dkt. 123, at 6. 

As explained below, each Plaintiff’s consent is disputed with respect to one or more of 

the numbers at issue, and Santander has failed to show that its “Aspect Telephone 

System” is not an ATDS under current law. Summary judgment is thus precluded.

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A. Consent 

There is no dispute that Santander contacted Levins at three different cellphone 

numbers (ending in 6954, 9678, and 6074) to inquire about her outstanding auto loan. 

Dkt. 124, ¶ 34. It is also undisputed that Levins had previously consented to being 

contacted at the 6954 number, by listing that number on her credit application. Id. at 

¶¶ 35-37. Santander’s motion for summary judgment on Levins’ TCPA claim is 

therefore granted as to the 6954 number. Contrary to Santander’s insistence, however, 

Levins’ consent to be contacted at the remaining two numbers is plainly disputed. 

As to Levins’ 9678 number, both sides agree that Santander placed four calls to 

that number (on May 4, 7, 10, and 14, 2012) before Levins gave Santander her consent 

for that number on May 14, 2012. Dkt. 124, ¶¶ 38-39. As to these four calls, 

Santander has failed to show “the prior express consent of the called party” required by 

47 U.S.C. § 227(b)(1)(A). The parties also agree that Santander placed nineteen calls 

to Levins’ 6074 number between June 20 and August 11, 2009, but again dispute 

whether these calls were made “without her permission.” Dkt. 138, ¶ 6. For its part, 

Santander points to an agent’s “activity notes” of a call it received from this number on 

March 27, 2009, which include the notation “IVR1’s Home.” Id. at ¶ 3. According to 

Santander, such a notation indicates that “Levins had informed the agent that this 

‘home’ telephone number was a good number on which to contact her.” Dkt. 124, 

¶ 44. But Levins contends that later activity notes dated August 12, 2009, stating that 

“verifications were required for Faye Levins and were completed” on that date, indicate 

her first consent for Santander to use her 6074 number. Dkt. 123, at 3. 

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To support this contention, Levins points to Santander’s admission that an 

indication that “verification was performed” in an agent’s activity notes “signifies that a 

customer confirmed to the Santander associate that the customer’s contact information 

is correct.” Dkt. 138, ¶ 5. From this, Levins argues that Santander’s activity notes 

suggest that no “verification” for her 6074 number was performed before August 12, 

2009—when “verifications were required for Faye Levins and were completed”—since 

Santander’s earlier March 27 activity notes state that “no verifications were required,” 

suggesting that none were performed at that earlier time. Dkt. 123, at 3, 8-9 (asserting 

an “utter lack of clarity on this issue”). Santander attempts to defuse this factual 

dispute by explaining that “verifications only were required when an account was a 

certain number of days past due,” and “[e]ven though ‘no verifications were required’ 

on March 27, 2009, the notes indicate that the agent did ask her on that call whether the 

6074 number was a ‘home’ number and whether it was a good number to contact her.” 

Dkt. 138, ¶ 3. But the documents are inconclusive on this point. In short, the Court 

cannot conclude on summary judgment, where reasonable inferences must be drawn in 

Levins’ favor (or on class certification, where such individualized consent issues 

similarly predominate, as discussed below) that Santander’s records conclusively 

establish the fact or timing of the called party’s consent to be contacted in the future. 

The record regarding Espejo’s consent to be contacted at his 1411 number is 

similarly controverted. Santander claims (and Espejo disputes) that on November 4, 

2009, “Mr. and Mrs. Espejo together made a call to Santander using the 1411 telephone 

number,” “Mrs. Espejo agreed that Santander could talk to Mr. Espejo about her debt,” 

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and “Santander obtained Mr. Espejo’s confirmation that the 1411 telephone number 

was the appropriate telephone number at which to reach him.” Dkt. 124, ¶¶ 13-17. 

Santander bases this latter contention of Espejo’s consent to be contacted at his 1411 

number on the following deposition testimony about his conversations with Santander: 

Q. Did they ever say in sum and substance, is this a good contact number for 

you, Mr. Espejo? 

A. Oh, for me? 

Q. Yes. 

A. Yeah, they would ask me, Can we call you on this number? 

Q. What did you say? 

A. I said yes. I mean, it's my number. 

Dkt. 126-5, at 74; Dkt. 124, ¶ 16 (citing same). 

Espejo argues that this testimony is “vague and inconclusive.” Dkt. 123, at 

10-11. He points out that it is “unclear when this conversation occurred,” and insists 

that “he was only affirming that the -1411 number was his phone number, not that 

Santander could call him on it,” id., as he later clarified in the same deposition: 

Q. Do you remember counsel asking you a question about whether someone 

from Santander had said, Can we contact you on that number? Do you 

remember him asking you that? 

A. Yes. 

Q. Do you remember what you said in response to that? 

A. No, they can’t contact me on that number. Two different questions. 

* * * 

Q. When they asked you, is this your contact number, you answered “yes”? 

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A. Yes, this is Henry Espejo. 

Q. You meant that that was your number? 

A. Yes. That was my number. 

Q. When they asked you, Can we contact you on this number, did you say 

“yes”? 

A. No. 

Q. Would you have said “yes”? 

A. No. 

Q: Did you ever want Santander to contact you on that phone number? 

A: No. 

Q. So you misunderstood his question, then, if you said “yes” to that? 

A. Yes, yes. I would – that’s what I meant, you know. 

Dkt. 126-5, at 137-38; Dkt. 124, ¶ 16 (citing same). 

Once again, Santander attempts to defuse this factual dispute, this time arguing 

that Espejo’s later deposition answers to his own lawyer’s questions, after first “taking 

a break with his lawyer,” are not “credible.” Dkt. 136, at 10-11. But credibility 

determinations are for a factfinder. McCann v. Iroquois Mem. Hosp., 622 F.3d 745, 

752 (7th Cir. 2010) (“The court may not weigh the evidence or decide which testimony 

is more credible.”) Nor is there any “evidentiary ban on conflicting testimony.” 

Cocroft v. HSBC Bank USA, N.A., 796 F.3d 680, 687 (7th Cir. 2015). Where (as here) 

“the change is plausible and the party offers a suitable explanation such as confusion, 

mistake, or lapse in memory, a change in testimony affects only its credibility, not its 

admissibility.” McCann, 622 F.3d at 751 (citations, internal quotation marks omitted). 

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And in any event, as Espejo correctly argues, the testimony on which Santander 

relies so heavily is non-specific as to the date on which Espejo supposedly consented to 

being called on his 1411 number. See Dkt. 126-5, at 74 (“Did they ever say . . . ?”). It 

therefore fails to establish “the prior express consent” that the statute requires. See 47 

U.S.C. § 227(b)(1)(A). Nor does it address Espejo’s additional testimony claiming 

that he repeatedly asked Santander not to call him on that number. See Dkt. 126-5, at 

97, 143-44. And while Santander similarly dismisses these claims as incredible, 

uncorroborated, and inconsistent with its records (Dkt. 96, at 10; Dkt. 136, at 10-12; 

Dkt. 138, ¶ 17), these criticisms once again go to its weight—which a factfinder must 

assess—not its admissibility or sufficiency to create a factual dispute. 

B. ATDS

Santander’s alternative ground for summary judgment asserts, not the consent of 

the called parties, but the equipment it used to call them. Santander argues that its 

“Aspect Telephone System” does not constitute the ATDS (automatic telephone dialing 

system) required to trigger liability under the TCPA for two reasons: (1) it “lacked the 

capacity to dial numbers stored or produced by a random or sequential number 

generator – an express statutory requirement of an ATDS,” and (2) it “relied on 

customer service agents clicking buttons to dial Espejo’s and Levins’ cell phone 

numbers from a manually assembled list – human intervention that takes Santander’s 

telephone system outside the ATDS definition.” Dkt. 96, at 1. According to 

Santander, both features are independently “fatal to Plaintiffs’ TCPA claims.” Id. 

The Court disagrees. 

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As for the “human intervention” required by Santander’s Aspect system, its own 

description of that system reveals that there is little to speak of. According to 

Santander, its “dialer operations team” “uploads” a “file” containing a 

“criteria-generated list” of telephone numbers derived from factors “such as account 

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

due.” Dkt. 96, at 5. And “when agents log-in and press buttons indicating their 

availability,” the Aspect system’s “dialer” “responds to these agent-initiated signals by 

dialing numbers from the uploaded list, using an algorithm designed to efficiently 

match available agents to answered calls.” Id. Thus, according to Santander’s own 

description, its Aspect “dialer”—not the agents—makes the calls “by dialing numbers 

from the uploaded list.” That “some act of human agency occurs at some point in the 

process” does nothing to place Santander’s automated “dialer” beyond the TCPA’s 

reach, since a person “will always be a but-for cause of any machine’s action.” See In 

re Collecto, Inc., 14-MD-02513-RGS, 2016 WL 552459, at *4 (D. Mass. Feb. 10, 

2016) (emphasis in original); Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2753, 2014 WL 

7005102, at *5 n.10 (N.D. Ill. Dec. 11, 2014)). As the Johnson court explained, 

Every ATDS requires some initial act of human agency – be it 

turning on the machine or pressing “Go.” It does not follow, 

however, that every subsequent call the machine dials – or 

message it sends – is a product of that human intervention. There 

is some evidence to suggest that [defendant’s system] can pull 

numbers and dial them without a person ordering a specific 

system message. . . . That is sufficient to defeat Yahoo!’s motion 

for summary judgment. 

Johnson, 2014 WL 7005102, at *5. So too here. 

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Santander’s second ground for distinguishing its Aspect “dialer”—that it “lacked 

the capacity to dial numbers stored or produced by a random or sequential number 

generator”—is also insufficient. Indeed, there is no dispute that Santander’s Aspect 

“dialer” functions as a “predictive dialer,” which the Federal Communications 

Commission has ruled constitutes an ATDS for purposes of the TCPA, regardless of 

whether it uses “a random or sequential number generator” as recited in the TCPA. 

See Dkt. 96, at 12-13; Dkt. 123, at 12-15; Dkt. 136, at 13-15; Dkt. 138, ¶¶ 23-24. As a 

sister court recently explained: 

The TCPA defines an autodialer as “equipment which has the 

capacity—(A) to store or produce telephone numbers to be called, 

using a random or sequential number generator; and (B) to dial 

such numbers.” 47 U.S.C. § 227(a)(1). In 2003, the FCC 

explained that while previous autodialers generated random 

numbers to call, “the evolution of the teleservices industry has 

progressed to the point where using lists of numbers is far more 

cost effective.” In Re Rules & Regulations Implementing the Tel. 

Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14092 

(2003). So a predictive dialer, which “has the capacity to store or 

produce numbers and dial those numbers at random, in sequential 

order, or from a database of numbers,” id. at 14091, “constitutes 

an automatic telephone dialing system and is subject to the 

TCPA’s restrictions on the use of autodialers,” 23 F.C.C. Rcd. at 

566. In other words, an autodialer “has the specified capacity to 

generate numbers and dial them without human intervention 

regardless of whether the numbers called are randomly or 

sequentially generated or come from calling lists.” In the 

Matter of Rules & Regulations Implementing the Tel. Consumer 

Prot. Act of 1991, 27 F.C.C. Rcd. 15391, 15932 n.5 (2012). 

Wright v. Nationstar Mortg., LLC, No. 14 C 10457, 2016 WL 4505169, at *10 (N.D. Ill. 

Aug. 29, 2016) (emphasis added). Santander nevertheless asks the Court to disregard 

these FCC rulings, but Seventh Circuit authority squarely precludes such a departure. 

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Even Santander concedes that the Hobbs Act requires this Court to “give weight” 

to these FCC rulings. Dkt. 96, at 13; see also 28 U.S.C. §§ 2341 et seq. The Seventh 

Circuit has reinforced this requirement, admonishing that the Hobbs Act “reserves to 

the courts of appeals the power ‘to enjoin, set aside, suspend (in whole or in part), or to 

determine the validity of’ all final FCC orders.” C.E. Design Ltd. v. Prism Bus. Media, 

Inc., 606 F.3d 443, 446, 449 n.5 (7th Cir.2010) (citing 28 U.S.C. § 2342(1) and 47 

U.S.C. § 402(a)). District courts within this circuit have heeded this warning in cases 

challenging the very FCC rulings that Santander contests here,1

 including in a case 

against Santander itself, where the court described its argument urging rejection of this 

FCC interpretation as “perilously close to violating Fed. R. Civ. P. 11.” Nelson v. 

Santander Consumer USA, 931 F. Supp. 2d 919, 928 (W.D. Wisc. 2013). The Nelson

court went on to hold that Santander’s Aspect dialer is an ATDS within the scope of the 

TCPA, although that decision was later vacated by stipulation of the parties. See id;

2013 WL 5377280, at *1 (W.D. Wis. June 7, 2013). Santander now resists the same 

holding here, pointing to a more recent appeal of various FCC rulings, including 

“whether a ‘predictive dialer’ still must have the requisite ‘capacity’ to use a random or 

sequential number generator to be considered an ATDS under the statute.” Dkt. 136, 

at 14 (citing ACA Int’l v. FCC, Appeal No. 15-1211 (D.C. Cir. filed July 10, 2015). 

 

1 See, e.g., Schumacher v. Credit Protection Ass’n, No. 4:13-cv-00164, 2015 

WL 5786139, at *6-8 and n.5 (S.D. Ind. Sept. 30, 2015) (“In general, a district court 

gives great weight, if not controlling weight, to final decisions of the FCC 

implementing and interpreting the TCPA.” (quoting Sterk v. Path, Inc., 46 F. Supp. 3d 

813, 819 (N.D. Ill. 2014) (citing CE Design)); Johnson, 2014 WL 7005102, at *3 (“the 

TCPA and Hobbs Act bind me to the FCC’s interpretation”); Griffith v. Consumer 

Portfolio Serv., Inc., 838 F. Supp. 2d 723, 726 (N.D. Ill. 2011) (same).

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Given the both Hobbs Act and Seventh Circuit authority requiring district courts 

to adhere to final FCC rulings, this Court joins those in this circuit and elsewhere in 

holding that a predictive dialer such as Santander’s Aspect system falls within the scope 

of the TCPA. See, e.g., Schumacher, 2015 WL 5786139, at *6-8 (citing cases). This 

holding disposes of all calls discussed above, including the four calls to Levins’ 9678 in 

May 2012, which both sides agree were made with Santander’s Aspect dialer manually, 

rather than using its “predictive dialer” mode. Dkt. 124, ¶ 39; Dkt. 136, at 2, 9-10. 

Under the FCC’s controlling interpretation, the pivotal inquiry is whether the dialing 

system had the “capacity” to dial numbers automatically, regardless of whether the calls 

were made manually or using the system’s autodialer or predictive dialer features. See 

Johnson, 2014 WL 7005102, at *5-6; see also Robinson v. Green Tree Servicing, LLC, 

No. 13 CV 6717, 2015 WL 4038485, at *3-4 (N.D. Ill. June 26, 2015) (denying 

summary judgment on TCPA claim for calls allegedly made manually on Aspect 

predictive dialer which had the “requisite capacity to act as an ATDS” as construed by 

the FCC); see also 47 U.S.C. § 227(a)(1) (an ATDS “has the capacity . . . to dial such 

numbers”). That FCC interpretation is dispositive here. 

Anticipating this result, Santander urges the Court to stay this action until the 

D.C. Circuit decides the appeal in ACA Int’l. See Dkt. 96, at 13 n.3. Santander notes 

that a “number of federal courts recently have granted motions to stay based on the 

pendency of the ACA Int’l appeal.” Id. (citing cases). But Plaintiffs oppose any such 

stay, complaining that Santander “has not shown how a stay serves judicial economy or 

impacts the balance of hardships to the parties.” Dkt. 123, at 15 n.7. 

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While some courts have taken such a wait-and-see approach, others in this 

district and elsewhere have come to the opposite conclusion, noting that the delay 

caused by a stay awaiting the D.C. Circuit’s decision “could be substantial,” and 

therefore opting to allow progress in the case, particularly on issues unrelated to that 

appeal. See, e.g., Konopca v. Ctr. For Excellence in Higher Educ., Inc., No. 15-5340, 

2016 WL 4644461, at *2-3 (D.N.J. Sept. 6, 2016) (citing cases). This Court takes the 

latter approach and opts to resolve Plaintiff Levin’s Motion for Class Certification, 

which the Court denies for reasons unrelated to the ACA Int’l appeal, as explained 

below. The Court notes, however, that oral argument in that appeal is scheduled to 

take place soon, on October 19, 2016. Accordingly, in the event the parties here are 

unable to resolve Plaintiffs’ remaining individual claims, the Court will defer a trial on 

those claims until the D.C. Circuit issues its decision in ACA Int’l, and will revisit any 

issues affected by that decision as needed, at any time before the trial in this case. 

II. Levins’ Motion for Class Certification

Of the multiple plaintiffs joined at the outset of these consolidated actions, only 

Levins seeks class certification. See Dkt. 100. And of Levins’ multiple claims and 

telephone numbers, she seeks class certification only as to her TCPA and only as to the 

calls Santander allegedly made to her 6074 number “prior to her ‘verifying’ it as a 

number at which she could be reached.” Dkt. 123, at 2 n.2. Levins maintains that 

Santander’s records show at least thousands of others (potentially hundreds of 

thousands) who Santander similarly called before “verifying” their consent to be 

reached at their respective numbers. Id.; Dkt. 103, at 1-2, 16-17. 

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“Because a class action is an exception to the usual rule that only a named party 

before the court can have her claims adjudicated, the class representative must be part 

of the class and possess the same interest and suffer the same injury.” Bell v. PNC 

Bank, Nat. Ass’n, 800 F.3d 360, 373 (7th Cir. 2015). “The general gate-keeping 

function of Federal Rule 23(a) ensures that a class format is an appropriate procedure 

for adjudicating a particular claim by requiring that the class meet the following 

requirements”: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of 

representation. Id. The class must also satisfy at least one of the four conditions in 

Rule 23(b)—in this case, Rule 23(b)(3)’s requirements “that the 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.” See Dkt. 100 (invoking Rule 23(b)(3)). 

“Because Rule 23(a) provides a gate-keeping function for all class actions, 

ordinarily we would begin there and only turn our attention to Rule 23(b) after we were 

certain that all of Rule 23(a)’s requirements had been met.” Bell, 800 F.3d at 374. 

But in many cases (as here), the requirements of Rule 23(a) and (b) “overlap,” and the 

analyses they require therefore “merge.” Id. (“commonality and predominance 

overlap in ways that make them difficult to analyze separately; consequently much of 

our discussion applies to both issues”); CE Design, Ltd. v. King Architectural Metals, 

Inc., 637 F.3d 721, 724 (7th Cir. 2011) (“In many cases, including this one, the 

requirement of typicality merges with the further requirement that the class 

representative ‘will fairly and adequately protect the interests of the class.’”). 

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The class must also meet Rule 23’s “implicit requirement of ‘ascertainability,’” 

meaning that it “must be definite enough that the class can be ascertained.” Mullins v. 

Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015) (quoting Oshana v. Coca-Cola 

Co., 472 F.3d 506, 513 (7th Cir. 2006)). And a class may be certified only if the trial 

court “‘is satisfied, after a rigorous analysis, that the prerequisites’ for class 

certification have been met.” Bell, 800 F.3d at 373 (quoting CE Design, 637 F.3d at 

723). Importantly, the burden is on the plaintiff “to demonstrate, by a preponderance 

of the evidence, that they have met each requirement of Rule 23.” Id. at 376. For the 

following reasons, the Court concludes that Levins has not met that burden, and her 

motion for class certification therefore must be denied. 

A. Ascertainability and Numerosity 

Levins seeks certification of the following class and subclass: 

TCPA Class: All individuals called by Santander or on its 

behalf, using the Aspect dialer system between December 19, 

2007 and the present, on a cellular telephone number to which the 

individual was the subscriber, and which was not (a) listed in any 

application for credit or financing submitted to Santander or any 

of its originating creditors, (b) otherwise volunteered by the 

individual directly to Santander orally or in writing prior to the 

time of Santander’s first call to that number, as reflected in 

Santander’s records, or (c) verified prior to being called for the 

first time by Santander, as reflected in Santander’s records. 

Number Trapping Subclass: All members of the TCPA Class 

called by Santander or on its behalf, on a cellular telephone 

number that Santander captured through calls made to its IVR 

system (as indicated by its identification in Santander’s records

with the notation ‘IVR’ followed by an Arabic numeral (e.g., 

IVR1, IVR2, etc.)). 

Dkt. 103, at 11 (emphasis added). 

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As reflected in these class definitions, Levins would identify the members of her 

proposed class and subclass through “Santander’s records.” Indeed, Levins relies on 

Santander’s records to establish every Rule 23 requirement she must meet. As she 

puts it, “Santander’s own records provide the information necessary to identify Class 

and Subclass members, and establish that Rule 23’s requirements for class certification 

are satisfied,” since “the records show that the Class likely consists of hundreds of 

thousands of members (‘numerosity’), all of whom were in an identical evidentiary 

position (given that Santander’s records establish for each of them the number(s) at 

which they were called, how the number was called, and whether Santander was 

authorized to call them at that number) (‘commonality’ and ‘predominance’).” Dkt. 

103, at 1-2. But these are the same records that Levins and Espejo challenge to save 

their claims from summary judgment. See, e.g., Dkt. 124, ¶¶ 11, 15, 43-44. This poses 

problems for Levins’ proposed class with respect to each Rule 23 requirement she must 

meet, beginning with ascertainability and Rule 23(a)(1)’s numerosity requirement. 

Whereas Levins’ proposed class expressly relies on Santander’s records to 

demonstrate whether and when class members “volunteered” their cellphone numbers 

or “verified” their consent to be contacted at such numbers “prior to being called for the 

first time by Santander,” these are the very facts that both Levins and Espejo disputed 

could be discerned from Santander’s records, in opposition to its motions for summary 

judgment.2

 Levins herself insists there is an “utter lack of clarity” in Santander’s 

 

2 See, e.g., Dkt. 124, ¶ 11 (relying upon deposition testimony to dispute cited 

activity notes (see Dkt. 98-1, ¶ 13) indicating that Maria Espejo identified 1411 number 

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records regarding when she first consented to being contacted at her 6074 number, 

disputing that Santander’s activity notes demonstrate her prior consent. See supra Part 

I-A (citing Dkt. 123, at 3, 8-9). According to Levins (citing the deposition testimony 

of a Santander witness), “there’s no way from looking at the notes” to “tell how this 

conversation went.” Dkt. 124, ¶¶ 15, 43-44; Dkt. 125, ¶ 28; Dkt. 123, at 9. 

The parties also dispute the content of Santander’s activity notes in other 

respects, advancing contradictory interpretations of what they say and what they don’t. 

For instance, Santander maintains that “nothing” in its activity notes “indicates that 

Levins ever made a request to stop all calls to any of her cell phone numbers,” Dkt. 124, 

¶ 47, whereas Levins contends that an entry stating that she “kept hollering” at an agent 

indicates a lack of consent to be contacted at her 9678 number, though Santander insists 

the entry “does not say anything contrary to Santander obtaining consent.” Dkt. 138, 

¶ 8. And then there are Espejo’s allegations about what is missing from Santander’s 

records—namely, his alleged revocations of any consents previously provided. See, 

e.g., Dkt. 124, ¶¶ 18-19 (asserting Espejo’s do-not-call requests not reflected in 

“Santander’s contemporaneous records”). Plaintiffs even dispute whether Santander 

had a “policy requiring agents to record ‘do-not-call’ requests,” and whether “the 

existence (alone) of such a policy” would “be dispositive of whether the agent followed 

that policy during or after the call in question.” Dkt. 124, ¶ 19. 

 

as her home number and verified it as an appropriate number on which to contact her); 

id. at ¶ 15 (disputing that designation “IVR1’s Home” in activity notes “means that 

verifications occurred”); id. at ¶¶ 43-4-4 (disputing activity notes indicating that Levins 

identified 6074 number as her home number and an appropriate number to contact her).

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Plaintiffs themselves thus challenge the content, clarity, accuracy, and 

completeness of the very records on which Levins would base class certification, on the 

very points needed to determine class membership. And while some of these 

arguments concern calls other than those made to Levins’ 6074 number (“the only calls 

upon which Levins bases her request for class certification,” Dkt. 123, at 2 n.2), they 

nevertheless demonstrate that Levins’ proposed class definition—predicated on the 

same records she dismisses for their “utter lack of clarity”—is unascertainable. 

Nor has Levins met Rule 23(a)’s numerosity requirement. Levins attempts to 

meet this requirement with evidence that “almost three million individuals were called 

by Santander or on its behalf, on numbers not provided in the loan applications.” Dkt. 

103, at 17. From this, she reasons that “it is overwhelmingly likely that thousands of 

individuals—and certainly more than forty—fit the proposed Class and Subclass 

definitions.” Id. But the volume of calls placed to numbers not listed in loan 

applications hardly quantifies class membership, which also asks whether the number 

was “otherwise volunteered” or “verified” before Santander called it, “as reflected in 

Santander’s records,” id. at 11—records which Plaintiffs concede cannot be used to 

make that determination. Nor has Levins attempted to identify any group of 

individuals (forty, or even less than that) who meet her class definition, further 

demonstrating that such a determination cannot be based on Santander’s records alone. 

Levins attempts to address this shortcoming by contending that “Santander has 

not challenged numerosity.” Id. at 18. But the concession she cites was made in the 

case brought by Espejo (who does not seek class certification) with respect to a 

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different class definition which did not rely on Santander’s records. See 8987 Dkt. 30, 

¶ 19; 8987 Dkt. 117, at 11. Here by contrast, Levins relies upon Santander’s records 

not only to define her class, but also to argue that it amounts to more than an improper 

“fail-safe” class, i.e., “one that is defined so that whether a person qualifies as a member 

depends on whether the person has a valid claim.” See Messner v. Northshore Univ. 

HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). As Santander correctly argues, such 

a class definition “is improper because a class member either wins or, by virtue of 

losing, is defined out of the class and is therefore not bound by the judgment.” See id; 

see also Dkt. 119, at 15 (citing Messner). 

Levins argues that her proposed class is more than a mere “fail-safe” because it is 

“defined by objective criteria (as determined by reference to Santander’s own internal 

records of the calls at issue)” and “is not pegged to ultimate success on the merits of the 

TCPA claims alleged here.” Dkt. 139-1, at 3 n.1. But Plaintiffs’ own challenges to 

Santander’s records demonstrate that they provide no such “objective” criteria. Class 

membership would thus require a determination of consent—i.e., whether the called 

party’s number was “volunteered” or “verified” before Santander used it—as is liability 

under the TCPA, which likewise requires a call without “the prior express consent of 

the called party.” See 47 U.S.C. § 227(b)(1)(A). Accordingly, Levins’ proposed 

class fails not only because it is indefinite and she has failed to identify any group of 

members who fall within it, but also because disputes concerning Santander’s records, 

such as Plaintiffs mount here, would also require a liability determination to determine 

class membership, rendering it an impermissible “fail-safe” class. 

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B. Commonality and Predominance

Rule 23(a)(2) further requires “questions of law or fact common to the class,” of 

which “even a single common question will do.” Wal-Mart Stores, Inc. v. Dukes, 564 

U.S. 338, 359 (2011) (brackets omitted). Levins proposes three. The first—whether 

“Santander’s dialing equipment falls within the definition of an ATDS” (Dkt. 103, at 

19)—has the potential for class treatment, assuming the same equipment and processes 

discussed above were used to call all class members. But see Dkt. 119, at 19 n.5 

(asserting that “Santander has several processes for making calls”) and Dkt. 108, at 4 

n.2 (referring to other equipment used prior to 2009). But Levins’ other two proposed 

questions are nonstarters, and none of Levins’ three proposed questions would 

predominate in the litigation, as necessary to satisfy Rule 23(b)(3). 

For instance, Levins’ second proposed question—“whether Santander’s 

standardized conduct resulted in an injury that entitles each Class Member to statutory 

damages under the TCPA” (Dkt. 103, at 21)—asks merely whether all class members 

“suffered a violation of the same provision of law.” Wal-Mart, 564 U.S. at 350. Such 

“superficial” common questions “are not enough.” Jamie S. v. Milwaukee Public 

Schs., 668 F.3d 481, 497 (7th Cir. 2012) (citing Wal-Mart). That is because a 

“bottom-line liability” allegation of this sort fails to establish a common legal or factual 

question “that can be answered all at once” and thereby “resolve a central issue in all 

class members’ claims.” Jamie S., 668 F.3d at 497.3

 

3 This is not to say that this “bottom-line liability question” poses jurisdictional 

concerns under the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, 136 S. 

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Finally, Levins herself argues that her remaining proposed question—“whether 

Santander lacked consent to place the calls at issue” (Dkt. 103, at 20)—is not a question 

at all. As Levins puts it, “membership in the Class is closed to any person for whom 

Santander has evidence of prior express consent,” since “the Class definition excludes 

all persons who provided their cellular telephone number to Santander on their 

financing documents, or by other means, as well as all persons who verified their 

telephone numbers prior to being called on them.” Dkt. 103, at 20-21. The argument 

assumes, of course, that the issue of consent is resolved at the determination of class 

membership based on “Santander’s records,” which is precisely what renders the class 

unascertainable and an impermissible fail-safe, as explained above. But it also 

assumes that, having been so resolved, the issue no longer qualifies as a common 

question that unites the class. Thus, as Santander argues, either consent “is not 

relevant to the commonality showing,” or “consent is at issue, in which case 

commonality fails for lack of common evidence.” Dkt. 119, at 19. 

 

Ct. 1540, 1548 (2016), as Santander suggests. See Dkt. 119, at 20. Both before and 

after Spokeo, courts “have consistently held that allegations of nuisance and invasion of 

privacy in TCPA actions are sufficient to state a concrete injury under Article III.” 

Hewlett v. Consol. World Travel, Inc., No. 2:16-713, 2016 WL 4466536, at *2 (E.D. 

Cal. Aug. 23, 2016) (collecting cases); Aranda v. Caribbean Cruise Line, Inc., -- F. 

Supp. 3d --, 2016 WL 4439935, at *5-6 (N.D. Ill. Aug. 23, 2016) (“the receipt of 

unsolicited telemarketing calls that by their nature invade the privacy and disturb the 

solitude of their recipients” satisfies the “concrete injury” requirement of Spokeo). 

This Court concurs with those decisions. Nor does Spokeo require each class member 

to demonstrate this injury individually (thereby precluding class certification), since the 

same concrete injury of this statutory violation is sufficient under Article III for one and 

all. See Aranda, 2016 WL 4433995, at *6. But while Article III may be satisfied by 

alleging a TCPA injury, this Court holds that Rule 23 requires a more uniting “common 

question” than the bare allegation that each class member “suffered a violation of the 

same provision of law.” See Wal-Mart, 564 U.S. at 350; Jamie S., 668 F.3d at 497. 

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Even putting aside the ascertainability and fail-safe issues raised by Levins’ 

proposed class definition, any unconsented calls suggested on the face of Santander’s 

records that might be deemed sufficient for class membership would invariably lead to 

individualized factual disputes regarding whether consent was nevertheless previously 

obtained. As Santander argues, even if Levins’ proposed class definition were 

accepted, “it cannot prevent Santander from asserting consent even in the face of 

records that do not ‘reflect’ consent.” Dkt. 119, at 30. Once again, Plaintiffs’ 

arguments in opposition to Santander’s motions for summary judgment amply 

demonstrate that inevitability and how such questions would predominate (indeed, 

consume) the litigation. Although both Plaintiffs claim to have received calls to their 

respective numbers without their prior consent, Santander points to disparate 

documents and testimony to argue that each had consented beforehand. See supra Part 

I-A. The same sort of individualized “mini-trials” would be necessitated in a class 

action for countless class members. These are precisely the individualized consent 

issues that have led other courts to deny class certification of TCPA claims.4

As these cases explain, this result is compelled especially where (as here) the 

defendant produces evidence of a practice of obtaining prior consent from the parties it 

contacts. See, e.g., Jamison, 290 F.R.D. at 106-07 (“issues of individualized consent 

 

4 See, e.g., Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 106-07 (N.D. Ill. 

2013) (denying certification where court would have “to conduct a series of mini-trials” 

regarding consent) (citing cases); Gannon v. Network Tele. Servs., Inc., No. CV 12–

9777, 2013 WL 2450199, at *2–3 (C.D. Cal. June 5, 2013) (denying certification where 

“some of the recipients may have consented”), aff’d, 628 Fed. App’x 551 (9th Cir. 

2016); G.M. Sign, Inc. v. Brink’s Mfg. Co., No. 09 C 5528, 2011 WL 248511, at *8 

(N.D. Ill. Jan. 25, 2011) (denying certification due to individualized consent issues). 

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predominate when a defendant sets forth specific evidence showing that a significant 

percentage of the putative class consented to receiving calls on their cellphone” (citing 

cases)). Santander has produced such evidence here. See Dkt. 98-1, at Tab 1, ¶¶ 5-6 

(attesting to Santander’s policies regarding verification of contact information and 

recording do-not-call requests); Dkt. 119, at 6-7 (describing “written policies” requiring 

“using the dialer to call a person only when he or she had first given permission to be 

contacted at that number,” and various means used to obtain, verify, and record 

consent). Even Plaintiffs concede that Santander “has policies in place to verify 

contact information” (Dkt. 124, ¶ 15), and that such “verification” reflected in the 

activity notes of Santander’s call logs “indicates that a consumer has confirmed that his 

or her contact information is correct.” See Dkt. 125, ¶ 5. 

Indeed, Levins’ proposed class definition depends upon established policies for 

obtaining and recording consent, as it assumes that Santander’s “very detailed” call 

records “determine the individuals who were called without consent.” See Dkt. 103, at 

8 (“Santander’s records identify whether verifications of contact information were 

made on a call”), 11 (class definition), 29 (“one need only look to Santander’s 

records—which are very detailed—to determine the individuals who were called 

without consent.”). But contrary to Levins’ suggestion, these “very detailed” records 

amplified the factual disputes regarding Plaintiffs’ consents in the instant case (see 

supra Part I, A), and would inevitably produce similar factual disputes for a multitude 

of class members. Because these individualized issues (rather than any common issue) 

would predominate, class certification under Rule 23(b)(3) must be denied. 

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C. Typicality and Adequacy of Representation

Similar issues thwart Levin’s showings of typicality and adequacy of 

representation under Rule 23(a). Typicality requires “enough congruence between the 

named representative’s claim and that of the unnamed members of the class to justify 

allowing the named party to ligate on behalf of the group.” Spano v. The Boeing Co., 

633 F.3d 574, 586 (7th Cir. 2011). “Even though some factual variations may not defeat 

typicality, the requirement is meant to ensure that the named representative’s claims 

have the same essential characteristics as the claims of the class at large.” Oshana, 472 

F.3d at 514 (internal quotation marks omitted). Thus, where a representative’s claim 

“involves facts that distinguish her claim from the claims of her fellow class members,” 

typicality is lacking. Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). 

“The same concerns arise again when we consider adequacy of representation,” 

Spano, 633 F.3d at 586, since “the usual practical significance of lack of typicality, as 

again explained in CE Design, is that it undermines the adequacy of the named plaintiff 

as a representative of the entire class.” Randall v. Rolls Royce Corp., 637 F.3d 818, 

824 (7th Cir. 2011). “The presence of even an arguable defense peculiar to the named 

plaintiff or a small subset of the plaintiff class may destroy the required typicality of the 

class as well as bring into question the adequacy of the named plaintiff’s 

representation.” C.E. Design, 637 F.3d at 726 (internal quotation marks omitted). 

“The fear is that the named plaintiff will become distracted by the presence of a possible 

defense applicable only to [her] so that the representation of the rest of the class will 

suffer.” Id. This is the problem Levins faces.

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As a class representative, Levins insists that Santander’s call records are “very 

detailed” and capable of resolving the issue of consent in favor of all class members. 

Dkt. 103, at 8, 29. Levins candidly admits that the purpose of this assertion is to 

eliminate any “individual issues regarding consent,” since (she says) all such disputes 

would be obviated by her class definition. Id. at 28-30. As discussed above, the 

argument fails because Santander and a multitude of class members would nevertheless 

raise individualized consent disputes. But even assuming a class whose members rely 

on Santander’s call records to demonstrate their lack of consent, Levins is plainly at 

odds with it. That is because, to save her own claim from summary judgment, Levins 

argues, against the interests of such class members, that Santander’s call records 

“contain many inconsistencies” that prevent the Court from determining whether she 

consented to the use of her 6074 number (the basis for her class claim) before Santander 

called it, because “there’s no way from looking at the notes” to determine whether 

Levins had consented on the earlier date that Santander contends. Dkt. 124, ¶¶ 43-44. 

Levins “cannot be an adequate representative” of a class of “unconsenting” call 

recipients if she “is subject to a defense that couldn’t be sustained against other class 

members” on the very issue of consent. C.E. Design, 637 F.3d at 725. Worse still, to 

the extent “the Classes consist of only those individuals who (as reflected in and 

established in Santander’s call records never provided any indicia of consent to be 

called” (Dkt. 103 at 29), Levins is not even a member of it. That, too, disqualifies her 

as a class representative. See Bell, 800 F.3d at 373 (“the class representative must be 

part of the class and possess the same interest and suffer the same injury”). 

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D. Superiority

In addition to requiring that questions common to all class members predominate 

over those “affecting only individual members,” Rule 23(b)(3) further requires “that a 

class action is superior to other available methods for fairly and efficiently adjudicating 

the controversy.” Fed. R. Civ. P. 23(b)(3). Such “superiority” must be assessed in 

terms of class members’ interests in proceeding individually, the extent and nature of 

existing litigation, the desireability of litigating the claims in the instant forum, and 

manageability concerns, id., which in turn requires a court to consider “the costs and 

benefits of the class device.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 663-64 

(7th Cir. 2015). Regarding this last factor, the Court is mindful that “refusing to certify 

on manageability grounds alone should be the last resort.” Id. But the significant 

manageability concerns raised here, especially in light of Levin’s failure to make a case 

for certification under Rule 23(a), similarly militate against certification. 

As discussed extensively above, Levins’ proposed class definition is derailed by 

its lack of definitive criteria regarding the consent (or non-consent) of putative class 

members to be called by Santander. But there are other administrative difficulties 

posed by this definition wholly apart from its indefiniteness, including the need to 

review several million call records to determine (1) the equipment and calling method 

used, (2) whether the number called was a cell phone number, (3) whether the 

individual called was the subscriber to that cell phone account; (4) whether that cell 

phone number was provided to Santander in a disqualifying credit document; (5) 

whether the individual’s loan was subject to an arbitration agreement; (6) whether the 

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individual already filed a TCPA action; and (7) whether the individual’s TCPA claim 

has been arbitrated, adjudicated, waived, or otherwise released. See Dkt. 103, at 11; 

Dkt. 119, at 22-25. Santander convincingly argues that identifying such individuals 

from the millions of call records for the class period (December 2007-present) would be 

exceedingly time-consuming and difficult, if at all possible. Dkt. 119, at 22-25. 

Levins contends that “each of Santander’s manageability challenges can be 

disregarded” (Dkt. 139-1, at 22), but her logic is faulty. For instance, Levins argues 

that there is no need to determine which calls were made using the Aspect dialer’s 

manual mode (id. at 19), but fails to address the need to eliminate Santander’s use of 

other equipment altogether. See Dkt. 108, at 4 n.2 (acknowledging use of other 

equipment prior to 2009); Dkt. 139-1, at 21 (acknowledging need to “eliminate the 

accounts for individuals who were not called by the Aspect dialer”). Similarly, Levins 

argues that “stated concern[] about reviewing financing documents . . . does not even 

apply to the Subclass” (id. at 20), but the Subclass incorporates all of the limitations of 

the TCPA Class, which Levins has not abandoned in any event. See Dkt. 103, at 11. 

And even Levins concedes the difficulty that would be encountered in obtaining and 

reviewing the cell phone records necessary to identify which called numbers were cell 

phone numbers and which called individuals were the subscribers to the cell phone 

accounts associated with those numbers, assuming those records can be acquired in the 

first place. See Dkt. 139-1, at 20-21 and n.12 (conceding that Santander’s “records are 

insufficient to identify which telephone numbers were cellular at the time they were 

called,” but contending that “wireless carriers maintain historical subscriber data”). 

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Levins also concedes another factor for determining superiority—the incentive 

of individual class members to bring solo actions. See Mullins, 795 F.3d at 658. 

Even Levins admits that “courts throughout the country have recognized” that “the 

TCPA has built-in incentives for aggrieved plaintiffs to litigate individually—such as 

the opportunity to collect statutory damages.” Dkt. 103, at 31 (brackets omitted). 

This principle is demonstrated also by individual TCPA actions brought against 

Santander itself. See Dkt. 119, at 26. Combined with the substantial difficulties 

involved in identifying putative class members, the admitted and demonstrated 

incentive of individuals to sue on their own behalf compels the conclusion that class 

treatment—to address merely whether the Aspect dialer is an ATDS—is neither 

necessary nor superior to individual actions which have done, and can do, the same. 

CONCLUSION

For the foregoing reasons, Defendant Santander Consumer USA, Inc.’s Motion 

for Summary Judgment in Case No. 11-cv-8987 (Dkt. 167 in that case) is denied; 

Santander’s Motion for Summary Judgment in Case No. 12-cv-9431 (Dkt. 94 in that 

case) is granted in part as explained above, and otherwise denied; and Plaintiff Faye 

Levins’ Motion for Class Certification in Case No. 12-cv-9431 (Dkt. 100 in that case) is 

denied. This matter is set for status on November 1, 2016, at 9:30 a.m. 

 

 _____________________________________ 

Dated: October 14, 2016 Charles P. Kocoras 

 United States District Judge 

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