IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

CHARLES C. PATTERSON, on his behalf 

of himself and others similarly situated 

Plaintiff

v.

CAPITAL MANAGEMENT SERVICES, 

LP and CAPITAL ONE BANK (USA), N.A

Defendants

)

)

)

)

)

)

)

)

)

)

12-cv-1061

Chief Judge Holderman

Mag. Judge Finnegan

RESPONSE IN OPPOSITION TO MOTION TO DISMISS

In opposition to Defendant Capital One Bank (USA), N.A.’s (“Capital One” or 

“Defendant”) Motion to Dismiss, Plaintiff states:

I. Summary of Opposition

As to Capital One, Plaintiff’s Amended Complaint seeks statutory damages under 

the Telephone Consumer Protection Act (“TCPA”) with respect to unwanted automated 

telephone calls that defendants placed to Plaintiff’s cellular telephone number.

1

 Under 

binding Supreme Court and 7th Circuit precedent, plaintiffs have standing to seek 

statutory damages provided by consumer protection statutes even when they have not 

alleged actual damages. Furthermore, the Supreme Court recently ruled that federal 

courts do indeed have subject matter jurisdiction over TCPA claims seeking only 

statutory damages. Constrained by this precedent, the true basis for Defendant’s 

argument that Plaintiff lacks standing is wishful thinking that an upcoming Supreme 

 1

 The Amended Complaint also asserts a claim in Count Two against Capital 

Management Services, LP under the Fair Debt Collection Practices Act (“FDCPA”). 

Capital One does not address the FDCPA claim in its motion to dismiss because that 

claim is not filed against Capital One. 

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 1 of 8 PageID #:116
2

Court decision will render a contrary ruling in a case that doesn’t even involve the TCPA. 

The Court should not dismiss Plaintiff’s complaint on a hypothetical that is contrary to 

binding precedent.

II. Federal Courts have Subject Matter Jurisdiction over TCPA Claims Seeking 

Statutory Damages Even in the Absence of Alleged Actual Damages.

In Mims v. Arrow Financial Services, LLC, the U.S. Supreme Court recently 

considered a challenge to subject matter jurisdiction over claims seeking statutory 

damages under the TCPA. 132 S. Ct. 740 (2012). Unlike the Plaintiff here, Mims did not

allege that he suffered any damages whatsoever in his pleading.2 See Exhibit 1 – Mims 

Complaint. Yet the Supreme Court ruled unanimously that the District Court did indeed 

have subject matter jurisdiction over his TCPA claim even though Plaintiff only sought 

statutory damages. Mims, 132 S. Ct. at 753. Indeed, the Mims Court explicitly addressed 

the prospect of federal courts being inundated with TCPA claims seeking only $500 in 

statutory damages without concern. Id; See also Soppet v. Enhanced Recovery Co., LLC, 

2012 U.S. App. LEXIS 9560 (7th Cir. 2012) (Seventh Circuit affirming denial of 

defendant’s motion for summary judgment in TCPA claim seeking statutory damages 

only with no allegation of actual damages); Exhibit 2 – Soppet Complaint.

Although the question of standing was not directly at issue in Mims or Soppet, 

Federal courts are “bound to evaluate [their] own jurisdiction, as well as the jurisdiction 

of [any] court below, sua sponte if necessary.” International Union of Operating 

Engineers v. Ward, 563 F.3d 276, 282 (7th Cir. 2009), citing Bender v. Williamsport 

Area Sch. Dist., 475 U.S. 534, 541 (1986) (other citations omitted). Neither the Mims nor 

 2 The pleading in this action on the other hand does allege, as Defendant acknowledges, 

that defendants caused Plaintiff “actual damages” by calling his cellular telephone and 

further alleges that all wireless customers, like Plaintiff, “are charged for incoming calls 

whether they pay in advance or after the minutes are used.” Am. Compl. ¶¶33, 8. 

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 2 of 8 PageID #:117
3

Soppet Courts expressed any concern over standing to seek statutory damages under the 

TCPA without actual damages. As such, the adjudications in Mims and Soppet strongly 

indicate that a plaintiff has standing to seek statutory damages under the TCPA even in 

the absence of alleged actual damages.3

III. Plaintiff has Standing because Defendant Violated his Federally Protected 

Rights and he is Entitled to Statutory Damages as Compensation 

The Supreme Court has long recognized that “the... injury required by Art. III 

may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates 

standing.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992), citing Warth v. 

Seldin, 422 U.S. 490, 500 (1975); see also Havens Realty Corp. v. Coleman, 455 U.S. 

363, 373 (1982). There is no question that Congress has the authority to “elevat[e] to the 

status of legally cognizable injuries concrete, de facto injuries that were previously 

inadequate at law.” See Lujan, 504 U.S at 578. In doing so Congress need only “identify 

the injury it seeks to vindicate and relate the injury to the class of persons entitled to 

bring suit” so as to preclude mere “citizen suits to vindicate the public’s nonconcrete 

interest in the proper administration of the laws.” Massachusetts v. EPA, 549 U.S. 497, 

516-17 (2007), citing Lujan, 504 U.S. at 580. That is exactly what Congress has done 

with the TCPA, which is at issue here.

Congress enacted the TCPA after finding that unwanted automated calls were a 

“nuisance and an invasion of privacy, regardless of the type of call” and that banning 

such calls was “the only effective means of protecting telephone consumers from this 

nuisance and privacy invasion.” Pub. L. No. 102-243, §§ 2(10-13), (Dec. 20, 1991), 

 3

 See also Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 915 

(7th Cir. 2011) (noting that the TCPA’s statutory damages provision applied to Plaintiff’s 

receipt of two faxes in violation of the TCPA was draconian, but “is what it is.”)

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 3 of 8 PageID #:118
4

codified at 47 U.S.C. § 227. To that end, the TCPA grants new rights to consumers by 

prohibiting various types of conduct causing such injuries and allowing persons whose 

new statutory rights have been violated the ability to recover statutory damages in 

compensation for that injury.

4 47 U.S.C. §227(b)(3). The TCPA, therefore, elevates

“concrete, de facto injuries that were previously inadequate at law” (e.g., invasions of 

privacy) “to the status of legally cognizable injuries” as well as “identif[ies] the injury it 

seeks to vindicate and relate[s] the injury to the class of persons entitled to bring suit” 

See Lujan, 504 U.S at 578; Massachusetts, 549 U.S. at 516-17. Plaintiff is among that 

class of persons because he actually received the calls that were prohibited by the statute. 

Plaintiff suffered a concrete injury and has not filed a mere “citizen suit” based on some 

abstract interest in enforcing the TCPA. 

The law in this Circuit is clear: a plaintiff alleging a violation of his or her rights 

granted under a federal statute has Article III standing to seek statutory damages provided 

for in that statute. In Crabill v. Trans Union, LLC, the 7th Circuit considered a claim 

under the Fair Credit Reporting Act and held that the plaintiff’s lack of “actual damages” 

did not preclude other remedies under the act. 259 F.3d 662, 664 (7th Cir. 2001). The 

Crabill court explained further:

“Many statutes, notably consumer‐protection statutes, authorize the award of 

damages (called "statutory damages") for violations that cause so little measurable 

 4

 Courts have long vindicated invasions of legal rights through statutory damages. 

See T. Sedgwick, A Treatise on the Measure of Damages 571 (1847) (“there is a large 

class of cases where the legislature has endeavored to put a stop to all inquiry into the 

actual damages by fixing an arbitrary sum as the measure of relief.”). The first Copyright 

Act, for example, required infringers to “pay the sum of fifty cents for every sheet” 

without requiring proof of loss. Act of May 31, 1790, Ch. 15 §2, 1 Stat. 124, 124-125. 

Numerous modern statutes, including the TCPA, follow suit. See also e.g., Electronic 

Communications Privacy Act, 18 U.S.C. §2707(c); Fair Credit Reporting Act, 15 U.S.C. 

§1681n(a); Truth in Lending Act, 15 U.S.C. §1640(a). 

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 4 of 8 PageID #:119
5

injury that the cost of proving up damages would exceed the damages themselves, 

making the right to sue nugatory... The award of statutory damages could also be 

thought a form of bounty system, and Congress is permitted to create legally 

enforceable bounty systems for assistance in enforcing federal laws, provided the 

bounty is a reward for redressing an injury of some sort (though not necessarily an 

injury to the bounty hunter).” 259 F.3d at 665-66.5

With respect to the TCPA, statutory damages are indeed a “reward for redressing an 

injury of some sort” because Congress prohibited conduct that it specifically found to be 

injurious: namely, unwanted automated calls, which it found to be a “nuisance and an 

invasion of privacy, regardless of the type of call” and that banning such calls was “the 

only effective means of protecting telephone consumers from this nuisance and privacy 

invasion.” Pub. L. No. 102-243, §§ 2(10-13), (Dec. 20, 1991), codified at 47 U.S.C. § 

227. 

Other circuit courts have also held that a plaintiff alleging a violation of his or her 

rights under a federal statute has Article III standing to seek the statutory damages 

provided for in that statute even in the absence of actual damages.

6 See e.g., Beaudry v. 

TeleCheck Services, Inc., 579 F.3d 702, 705 (6th Cir. 2009)(finding article III standing 

 5

 The ultimate ruling of the Crabill case was that a plaintiff in a FCRA case cannot base 

his standing solely on a claim for attorney’s fees and costs (statutory damages were not 

available for Crabill’s FCRFA claim). Id at 666. As such, Defendant’s citation to

Crabill to support a dismissal of Plaintiff’s claim is unfounded.

6

 Defendant cites several inapposite cases in support of its contention that “a mere 

violation of a federal statute” does not satisfy the injury in fact requirement; none of these 

cases involved a statute, like the TCPA, that provides statutory damages as compensation 

for the injuries Congress sought to prevent through the statute. See e.g., Summer v. Earth 

Island Inst, 129 S. Ct. 1142 (2009); Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 

269 (2008); Raines v. Byrd, 521 U.S. 811 (1997); Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998). Similarly, none of these cases involve a claim made by a plaintiff 

who was directly subjected to the Defendant’s allegedly prohibited conduct, like Plaintiff 

here who alleges that he directly received telephone calls from defendants that were 

specifically prohibited by the TCPA. Instead, the cases cited by Defendant largely 

concern claims made by special interest groups that merely sought to “vindicate the 

public’s nonconcrete interest in the proper administration of the laws.” See 

Massachusetts, 549 U.S. at 516-17. 

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 5 of 8 PageID #:120
6

even where no economic harm ensued in a case under the Fair Credit Reporting Act 

because the injury alleged was the invasion of plaintiff’s statutory right to accurate 

reports, not the economic consequences of the violation); Alston v. Countrywide 

Financial Corporation, 585 F.3d 753, 762-63 (3rd Cir. 2009), citing Havens Realty Corp., 

455 U.S. at 373 (holding, in a case brought under the Real Estate Settlement Procedures 

Act, that “a plaintiff need not demonstrate that he or she suffered actual monetary 

damages, because ‘the actual or threatened injury required by Art. III may exist solely by 

virtue of statutes creating legal rights, the invasion of which creates standing.’”)

Burdened by binding precedent from the Supreme Court, the 7th Circuit, and other 

Circuits, Defendant’s true basis for seeking dismissal is its hope that the Supreme Court 

will overrule such precedent in an upcoming decision in First American Financial 

Corporation v. Edwards, No. 10-708, which concerns a claim brought under the Real 

Estate Settlement Procedures Act (“RESPA”). This Court must follow precedent and 

cannot dismiss a complaint simply because it is possible that such precedent may be 

overturned. 

Yet even if the Supreme Court were to find that the plaintiff in Edwards lacks 

Article III standing, such a ruling would not merit a dismissal of this action. In a sense, 

the Plaintiff in Edwards could not have possibly suffered any damages at all. Edwards 

sued his title insurance company under RESPA for paying illegal kickbacks in exchange 

for exclusive referral agreements. Typically, such RESPA kickback cases result in the 

plaintiff paying higher fees than he would have otherwise because of the kickback. Yet 

Edwards lived in a state where title insurance fees are fixed, regardless of whether any 

kickback happened, and thus could not have conceivably suffered the injury that the 

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 6 of 8 PageID #:121
7

statute was created to address. In the case before this Court, on the other hand, there is 

no such anomaly. The TCPA was created to address invasions of privacy. Defendant not 

only conceivably did, but actually did, invade Plaintiff’s privacy by placing automated 

calls to his cellular telephone without his permission in violation of those statutes.7

 As 

this 6th Circuit recognized in Beaudry, “this nexus between the individual plaintiff and 

the legal violation thus suffices to sustain this statutorily created right.” 579 F.3d at 707, 

citing Havens Realty Corp., 455 U.S. at 373. Thus, even if the Supreme Court grants 

Defendant’s wish, such a decision in Edwards would inevitably be rightly distinguished 

from this case.

This Court should not ignore binding precedent and dismiss this case simply 

because the Supreme Court might issue a decision in the future that would call into 

question a plaintiff’s standing in a RESPA case with questionable applicability to the 

TCPA. The law is clear: Plaintiff has standing to pursue his claims under the TCPA. 

Defendant’s Motion to Dismiss should be denied.8

 

 7

 The Amended complaint does allege, as Defendant acknowledges, that defendants 

caused Plaintiff “actual damages” and further alleges that all wireless customers, like 

Plaintiff, “are charged for incoming calls whether they pay in advance or after the 

minutes are used.” Am. Compl. ¶¶33, 8. To the extent that Plaintiff is required to allege 

any particular injuries-in-fact beyond a violation of his statutorily granted legal rights 

under the TCPA, which was enacted to address the de facto injury of invasion of privacy, 

Plaintiff has done so through these allegations. Plaintiff could also amend his pleading to 

explicitly allege that defendants invaded his privacy if the Court finds that such an 

allegation would resolve this motion. 

8

 In the alternative, Defendant requests, without any supporting argument, that this Court 

stay this case pending the outcome of the Edwards case. Not surprisingly, plaintiff 

believes whatever the outcome of Edwards, it will not impact this case because, as 

explained above, the Edwards case is entirely distinguishable. If this Court stays this 

case, this lawsuit will have simply lingered on this Court’s docket without progression for 

naught. An order requiring that this case not progress is not in the interest of justice or 

judicial economy. 

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 7 of 8 PageID #:122
8

III. Conclusion

Defendant’s Motion to Dismiss should be denied. 

Respectfully submitted,

/s/ Timothy J. Sostrin

One of Plaintiff’s attorneys

Keith J. Keogh

Craig Shapiro

Timothy J. Sostrin

Keogh Law, Ltd.

101 North Wacker Drive, Suite 605

Chicago, Illinois 60606

312.726.1092 (office)

312.726.1093 (fax)

TSostrin@KeoghLaw.com

CERTIFICATE OF SERVICE

I hereby certify that on May 22, 2012, I electronically filed the foregoing 

Response via the Court’s CM/ECF System, which will perfect service upon the 

following:

Aaron Van Oort

Faegre Baker Daniels, LLP

Aaron.vanoort@FaegreBD.com

James Schultz

Sessions Fishman Nathan & Israel

jschultz@sesions-law.biz

/s/ Timothy J. Sostrin

Case: 1:12-cv-01061 Document #: 31 Filed: 05/22/12 Page 8 of 8 PageID #:123