UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAKISHA T. SMITH, 

Plaintiff, 

vs. 

STELLAR RECOVERY, INC. and 

COMCAST CORPORATION, and 

COMCAST OF DETROIT, LLC, 

Defendants. 

Case No.: 15-cv-11717 

Hon. Stephen J. Murphy, III 

Hon. Magistrate Mona K. Majzoub 

DEFENDANT, STELLAR RECOVERY, INC.’S RESPONSE TO PLAINTIFF’S NOTICE 

OF FILING SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DEFENDANT’S

MOTION FOR PARTIAL SUMMARY JUDGMENT 

COMES NOW, Defendant, Stellar Recovery, Inc. (“Stellar”), by and through its 

undersigned counsel, and hereby files this Response to Plaintiff’s Notice of Filing Supplemental 

Authority in opposition to Defendant’s Motion for Partial Summary Judgment [DE 44].

Plaintiff has called to this Court’s attention the recent opinion in Espejo v Santander 

Consumer USA, Inc, ___F Supp 3d___; 2016 U.S. Dist. LEXIS 142259 (ND Ill, Oct. 14, 2016). 

Plaintiff attempts to equate the “Aspect Telephone system” used by Santander Consumer USA, 

Inc., which was determined by the Espejo Court to constitute an automatic telephone dialing 

system (“ATDS”) under the TCPA, to the LiveVox HCI system used by Stellar in the instant case. 

[See Espejo at 15-16.] There are a number of reasons why the HCI system used by Stellar is 

markedly different than the Aspect system used by Santander in Espejo. First, the Aspect system 

uploads a list of numbers from which the system itself automatically dials, in contrast to the 

LiveVox HCI system, which requires an agent to click to dial each call manually. [Espejo at 11-

2:15-cv-11717-SJM-MKM Doc # 64 Filed 11/09/16 Pg 1 of 3 Pg ID 1761
12; see also Deposition of Kevin Stark (“Stark Dep.”), Page 20, Lines 6-7; Page 28, Lines 10-11; 

Page 56, Lines 21-25 and Page 57, Line 1]. Second, the Aspect system uses “an algorithm designed 

to efficiently match available agents to answered calls.” [Espejo Dkt. 96, at 5.] The HCI system 

has no such algorithm, nor any algorithm at all, to predict agent availability. It is managed 

manually. [Stark Dep., Page 36, Lines 9-10.] 

Espejo demonstrates that the Aspect system relies on a minimal amount of human action. 

The Aspect dialer operations team uploads a file of phone numbers, then agents log in and press 

buttons indicating their availability. The system then responds by using an algorithm to 

automatically dial numbers from the uploaded list without any further human intervention. [Espejo

at 11-12.] This is vastly different from the HCI system, where every single call is made as a direct 

result of human intervention in the form of a click by a clicker agent (and no call can be made 

without that specific human intervention for that call), along with simultaneous judgment and 

discretion by that clicker agent in monitoring the real-time dashboard to check on agent 

availability, number of calls in progress, and other metrics. [Stark Dep., Page 20, Lines 6-7; Page 

28, Lines 10-11; Page 56, Lines 21-25; Page 57, Line 1, and Page 59, Lines 17-20.]

The Espejo Court held that the Aspect system is a predictive dialer, and therefore an ATDS, 

as indicated by the FCC. [Espejo at 15-16.] The HCI system, by contrast, is in no way a predictive 

dialer, as it uses no algorithms or automatic dialing and requires an agent to initiate each call.

Consequently it is markedly distinct from the Aspect system, and cannot be considered an ATDS.

[Stark Dep., Page 20, Lines 6-7; Page 28, Lines 10-11; Page 56, Lines 21-25; Page 57, Line 1 and 

Page 60, Lines 6-12.]

For the reasons set forth above, Defendant Stellar submitsthat the Espejo case’s description 

of and holding regarding the Aspect system further demonstrates that the LiveVox HCI system is 

2:15-cv-11717-SJM-MKM Doc # 64 Filed 11/09/16 Pg 2 of 3 Pg ID 1762
not an ATDS. As a result, contrary to Plaintiff’s incorrect position, Espejo in fact supports granting 

summary judgment to Defendant Stellar.

Dated this 8

th day of November, 2016. Respectfully submitted,

/s/Alison N. Emery

Alison N. Emery

Assurance Law Group

3731 Hendricks Avenue

Jacksonville, FL 32207

904-497-4904 (phone)

904-458-8979 (fax)

alison@assurancelawgroup.com

CERTIFICATE OF SERVICE

I, Alison Emery, Counsel for Stellar Recovery, hereby certify that on November 8, 2016 I 

electronically filed the foregoing document with the Clerk of Court for the United States District 

Court, Eastern District of Michigan, Southern Division, using the ECF system which will send 

notification of such filing to the attorneys of record. 

Respectfully submitted,

/s/Alison N. Emery 

Alison N. Emery

2:15-cv-11717-SJM-MKM Doc # 64 Filed 11/09/16 Pg 3 of 3 Pg ID 1763