EXHIBIT B

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Only the Westlaw citation is currently available.

United States District Court,

N.D. Illinois, Eastern Division.

Henry ESPEJO, individually and on behalf

of all others similarly situated, Plaintiff,

v.

SANTANDER CONSUMER USA, INC.,

an Illinois corporation, Defendant.

Faye Levins, individually and on behalf

of all others similarly situated, Plaintiff,

v.

Santander Consumer USA, Inc.,

an Illinois corporation, Defendant.

No. 11 C 8987

|

No. 12 C 9431

|

Signed 06/12/2019

Attorneys and Law Firms

Christopher Lillard Dore, Jay Edelson, Sydney M. Janzen,

Edelson PC, Chicago, IL, Frank Davis, Davis & Norris, LLP,

Birmingham, AL, for Plaintiff.

Abraham J. Colman, Pro Hac Vice, Felicia Yu, Pro Hac

Vice, Reed Smith LLP, Los Angeles, CA, Amy L. Starinieri

Gilbert, Sarah Ann Zielinski, McGuireWoods LLP, Michael

David Richman, Reed Smith LLP, Chicago, IL, Ashley L.

Shively, Reed Smith LLP, David S. Reidy, Marc A. Lackner,

McGuireWoods LLP, San Francisco, CA, for Defendant.

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

*1 Now before the Court is Defendant Santander Consumer

USA, Inc.’s (“Santander”) renewed motion for summary

judgment pursuant to Federal Rule of Civil Procedure 56.1

and motion for reconsideration. For the following reasons, the

Court denies the Defendants' motions.

BACKGROUND

The underlying facts in this case are detailed in our prior

opinion, 1 and the Court provides only a brief restatement

based on undisputed facts from the record.

Plaintiffs Henry Espejo (“Espejo”) and Faye Levins

(“Levins”) (collectively, “Plaintiffs”) each brought class

action suits against Defendant Santander for violations of the

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.

§ 227 et seq., actions which have since been consolidated.

These claims arose when Santander utilized its Aspect

Telephone System (“Aspect”) to make calls to the Plaintiffs

regarding outstanding auto loans. Santander utilizes Aspect

in combination with a customer account management system

called “My Supervisor.” The company uses “My Supervisor”

to generate a customer list and then uploads the list into

Aspect.

Aspect has a dialer feature that dials phone numbers from a

customer list using an algorithm to efficiently match available

customer service agents to answered calls. The dialer only

makes calls once a customer service agent logs-in and presses

a button to indicate that they are available.

On April 21, 2016, Santander filed a motion for summary

judgment, partially on the grounds that Aspect’s dialer

feature did not constitute an automatic telephone dialing

system (“ATDS”), which is an essential element of the

Plaintiffs' TCPA claim. That same day, Santander moved

the Court to stay the proceedings until the D.C. Circuit

issued its ruling in ACA International v. Federal

Communications Commission, 885 F.3d 687 (D.C. Cir. 2018),

a consolidated action that considered the validity of the

Federal Communications Commission (“FCC”) rulemaking

regarding the TCPA. On October 14, 2016, the Court denied

Santander’s motions, but stated that it would “revisit any

issues affected by [the ACA International] decision as needed,

at any time before the trial in this case.”

On March 16, 2018, the D.C. Circuit issued its ruling in ACA

International. Based on the decision, Santander renewed its

motion for summary judgment on and moved the Court to

reconsider its initial denial.

LEGAL STANDARD

In considering a motion for summary judgment, the Court

construes all facts and draws all reasonable inferences in favor

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of the non-movant. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). A genuine issue of material

fact arises where a reasonable jury could find, based on the

evidence of record, in favor of the non-movant. Anderson,

477 U.S. at 248. In ruling on a motion for summary judgment,

the Court considers the “record as a whole.” Morgan v. Harris

Trust & Sav. Bank of Chi., 867 F.2d 1023, 1026 (7th Cir.

1989).

*2 When a court denies a motion for summary judgment,

“the denial ... has no res judicata effect, and the district court

may, in its discretion, allow a party to renew a previously

denied summary judgment motion....” Whitford v. Boglino,

63 F.3d 527, 531 (7th Cir. 1995). “A renewed or successive

summary judgment motion is appropriate especially if one

of the following grounds exists: (1) an intervening change

in controlling law; (2) the availability of new evidence or an

expanded factual record; and (3) need to correct a clear error

or prevent manifest injustice.” Id. (internal quotation marks

omitted).

A motion for reconsideration is appropriate where “the Court

has patently misunderstood a party, or ... [there has been] a

controlling or significant change in the law or facts since the

submission of the issue to the Court.” Bank of Waunakee v.

Rochester Cheese Sales, Inc., 906 F.3d 1185, 1191 (7th Cir.

1990).

DISCUSSION

To contextualize the contested issues in this case, the Court

must walk through the relevant statutory, administrative, and

judicial history of the TCPA. As pertinent here, the TCPA

prohibits using an ATDS to call a telephone number assigned

to a cellular telephone service. 47 U.S.C. § 227(b)(1)(A)

(iii). The TCPA defines an ATDS 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). Given

the FCC’s “authority to promulgate regulations implementing

the TCPA,” the FCC issued an order in 1992 that “adopted,

without elaboration, the statutory definition of [an] ATDS.”

Pinkus v. Sirius XM Radio, Inc., 319 F.Supp.3d 927, 929

(N.D. Ill. 2018).

In 2003, the FCC expressed concern that “[t]he marketplace

for telemarketing has changed significantly in the last

decade.” In Re Rules & Regulations Implementing the

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

14021 (2003). Specifically, the FCC noted the advent of

the predictive dialer, which is “an automated dialing system

that uses a complex set of algorithms to automatically dial

consumers' telephone numbers in a manner that ‘predicts’

the time when a consumer will answer the phone and a

telemarketer will be available to take the call.” Id. at 14022

n.31.

Since the widespread adoption of predictive dialer

technology, it has been disputed whether such systems fit

within the definition of an ATDS. The FCC summarized the

debate, saying:

Most industry members that

commented on the issue of autodialed

calls argue that predictive dialers

do not fall within the statutory

definition of “automatic telephone

dialing system,” primarily because,

they contend, predictive dialers do

not dial numbers “randomly or

sequentially.” Rather, they state

that predictive dialers store preprogrammed numbers or receive

numbers from a computer database

and then dial those numbers in a

manner that maximizes efficiencies

for call centers. Most consumers

and consumer groups maintain that

predictive dialers are autodialers; that

to distinguish technologies on the basis

of whether they dial randomly or use

a database of numbers would create a

distinction without a difference. They

argue that for the recipient of the

call, there is no difference whether the

number is dialed at random or from a

database of numbers.

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Id. at 14090–91. Essentially, the disagreement turns on

whether an ATDS needs to dial numbers produced

“randomly or sequentially” or whether those numbers can be

automatically dialed from a pre-existing list.

To clarify which of the competing views was correct, the FCC

promulgated additional rules regarding the definition of an

ATDS in 2003 (“2003 Order”). The FCC determined that a

predictive dialer did fall within the definitional scope of an

ATDS, stating:

*3 We believe the purpose of the requirement that

equipment have the “capacity to store or produce telephone

numbers to be called” is to ensure that the prohibition

on autodialed calls not be circumvented. Therefore, the

Commission finds that a predictive dialer falls within the

meaning and statutory definition of “automatic telephone

dialing equipment” and the intent of Congress.

Id. at 14092–93. In adopting the consumer groups' position,

the FCC established that a dialing system is still considered

an ATDS even if it dials phone numbers from a pre-existing

list. The FCC affirmed this position in its 2008 rules and

regulations (“2008 Order”). In the Matter of Rules &

Regulations Implementing the Tel. Consumer Prot. Act of

1991, 23 F.C.C. Rcd. 559, 566 (2008).

Less than a decade later, the FCC issued additional rules and

regulations “to reiterate and simplify the relevant portions

of the TCPA” (“2015 Order”). In the Matter of Rules

& Regulations Implementing the Tel. Consumer Prot. Act

of 1991, 30 F.C.C. Rcd. 7961, 7971 (2015). First, the FCC

sought to clarify the meaning of the term “capacity” in the

ATDS definition. It stated, “the TCPA’s use of ‘capacity’

does not exempt equipment that lacks the ‘present ability’

to dial randomly and sequentially.” Id. at 7974. Rather,

“the capacity of an autodialer is not limited to its current

configuration but also includes its potential functionalities.”

Id. In other words, a device that could be modified into an

autodialer falls within the TCPA’s prohibitions. Second, the

FCC reiterated that a predictive dialer is considered an ATDS.

Id. at 7972. It noted that one function of an ATDS is the

ability to dial numbers without human intervention. Id. at

7975. However, the FCC declined the opportunity to clarify

that if a device lacked the ability to dial numbers without

human intervention, it would not be deemed an ATDS. Id.

at 7976. The FCC also stated that a second function of an

ATDS is the ability to “dial random or sequential numbers”

or numbers from a customer list. Id. at 7971–72.

Instead of providing the desired clarity regarding the ATDS

definition, the FCC’s 2015 Order sparked confusion amongst

those seeking to use predictive dialers. As a result, “a large

number of regulated entities challenged the FCC’s definition

of an ATDS in the D.C. and Seventh Circuits, and the petitions

were consolidated in the D.C. Circuit” in the case ACA

International. Marks v. Crunch San Diego, LLC, 904 F.3d

1041, 1046 (9th Cir. 2018). First, the D.C. Circuit rejected

the FCC’s “expansive interpretation of ‘capacity’ ” because

it could be construed to encompass smartphones. ACA

Int'l, 885 F.3d at 696. The Court emphasized that “[i]t is

untenable to construe the term ‘capacity’ ... in a manner that

brings within the definition’s fold the most ubiquitous type of

phone equipment known, used countless times each day for

routine communications by the vast majority of people in the

country.” Id. at 698. Accordingly, the D.C. Circuit held that

the FCC’s interpretation “cannot be sustained, at least given

the Commission’s unchallenged assumption that a call made

with a device having the capacity to function as an autodialer

can violate the statute even if the autodialer features are not

used to make the call.” Id. at 695.

Second, the D.C. Circuit overturned the FCC’s interpretation

of a predictive dialer as an ATDS because the espoused

functional requirements were inconsistent. Id. at 702–

03. The Court expressed its puzzlement over the FCC’s

contradictory guidance, stating:

*4 So which is it: does a device

qualify as an ATDS only if it

can generate random or sequential

numbers to be dialed, or can it so

qualify even if it lacks that capacity?

The 2015 ruling, while speaking to

the question in several ways, gives

no clear answer (and in fact seems

to give both answers). It might be

permissible for the Commission to

adopt either interpretation. But the

Commission cannot, consistent with

reasoned decisionmaking, espouse

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both competing interpretations in the

same order.

Id. The Court articulated a similar dismay over the FCC’s

human intervention standards. The Court noted, “[a]ccording

to the Commission, then, the ‘basic function’ of an autodialer

is to dial numbers without human intervention, but a device

might still qualify as an autodialer even if it cannot dial

numbers without human intervention. Those side-by-side

propositions are difficult to square.” Id. at 703. Due to

these inconsistencies, the D.C. Circuit held that the FCC’s

guidance on the meaning of an ATDS failed “the requirement

of reasoned decisionmaking.” Id. at 700 (internal quotation

marks omitted).

* * *

In the wake of ACA International, Santander renewed

its motion for summary judgment, arguing that the legal

principles the Court relied on in its initial denial “have

been entirely upended.” While the parties have no material

factual disputes, they diverge on the legal implications of

the ACA International decision. Specifically, the parties take

conflicting stances regarding: (1) whether ACA International

confined its decision to the FCC’s 2015 Order, or whether

the decision also overruled the FCC’s 2003 and 2008 Orders;

and (2) If ACA International did overrule the prior FCC

Orders, whether the Court should interpret the definition of

an ATDS to include predictive dialers. The Court addresses

each argument in turn.

I. Impact of ACA International on the FCC’s 2003, 2008,

and 2015 Orders

In ACA International, the D.C. Circuit invalidated portions

of the FCC’s 2015 Order that concerned the definition of an

ATDS. Id. at 700. However, both the parties and courts across

the country are split as to whether ACA International also

invalidated the FCC’s 2003 and 2008 Orders.

The Plaintiffs maintain that ACA International is confined

to the FCC’s 2015 Order due to the jurisdictional limitations

imposed by the Hobbs Act, 28 U.S.C. § 2342(1). This

statute grants the court of appeals exclusive jurisdiction to

determine the validity of all final orders by the FCC. Id.

However, the court can only review FCC orders challenged

within sixty days of its entry. 28 U.S.C. § 2344. Therefore,

the Plaintiffs and slightly less than half of the district courts

to consider this question believe that ACA International only

impacted the expanded ATDS interpretations found in the

FCC’s 2015 Order, leaving the 2003 and 2008 Orders intact

because they were outside the period of reviewability. 2 With

the FCC’s 2003 and 2008 Orders undisturbed, the Plaintiffs

contend, “it remains the law that all predictive dialers qualify

as ATDSs.” Pinkus v. Sirius XM Radio, Inc., 319 F. Supp.

3d 927, 931–32 (N.D. Ill. 2018).

*5 Santander, on the other hand, argues that the D.C. Circuit

considered this argument and squarely rejected it. In ACA

International, the Court wrote:

[T]he Commission maintains that the court lacks

jurisdiction to entertain petitioners' challenge concerning

the functions a device must be able to perform. The

agency reasons that the issue was resolved in prior

agency orders—specifically, declaratory rulings in 2003

and 2008 concluding that the statutory definition of an

ATDS includes “predictive dialers,” dialing equipment that

can make use of algorithms to “assist[ ] telemarketers in

predicting when a sales agent will be available to take

calls.” According to the Commission, because there was

no timely appeal from those previous orders, it is too late

now to raise a challenge by seeking review of a more recent

declaratory ruling that essentially ratifies the previous ones.

We disagree. While the Commission's latest ruling purports

to reaffirm the prior orders, that does not shield the agency's

pertinent pronouncements from review.

ACA Int'l, 885 F.3d at 701 (internal citations omitted).

Two circuit courts have directly addressed this question and

aligned with Santander’s position. The Second Circuit held

that ACA International “invalidated [the FCC’s orders] and

thereby removed any deference we might owe to the views of

the FCC expressed in it.” King v. Time Warner Cable Inc.,

894 F.3d 473, 477 (2d Cir. 2018). The Ninth Circuit agreed,

finding that “[t]he D.C. Circuit concluded that the parties'

2015 rulemaking petition to the FCC reopened consideration

of the definition of ATDS established in the FCC’s 2003 order,

as well as its subsequent rulings.” Marks, 904 F.3d at 1047.

Moreover, a marginal majority of the district courts to opine

on this issue have adopted the position that ACA International

invalidated the interpretation of an ATDS found in the FCC’s

2003, 2008, and 2015 Orders. 3 The Court agrees with this

position.

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*6 Given this stance, the Court is not bound by the FCC’s

views on the definition of an ATDS. As such, “only the

statutory definition of ATDS as set forth by Congress in 1991

remains.” Marks, 904 F.3d at 1050.

II. The ATDS Definition and Predictive Dialers

Absent FCC guidance, the Court must look to the statutory

definition of an ATDS to consider the remaining issues in

this case. Relying on this definition, the parties disagree

as to the functionality required for a type of equipment to

constitute an ATDS. Specifically, the parties take differing

views regarding the generation of telephone numbers and the

acceptable amount of human intervention.

A. Telephone Number Generation Requirement

i. Plain Meaning

First, the parties dispute whether a type of equipment can

be considered an ATDS if it does not have the ability to

generate random or sequential telephone numbers, but rather

automatically dials numbers from a pre-existing list. To

determine the proper interpretation of an ATDS, the Court

first looks to the language of the statute. United States

v. Miscellaneous Firearms, Explosives, Destructive Devices

& Ammunition, 376 F.3d 709, 712 (7th Cir. 2004). If the

language is unambiguous, the Court applies the plain meaning

of the statute. Id. However, if the language is ambiguous, the

Court may look to other tools of statutory interpretation. Id.

The TCPA defines an ATDS 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). There

are two prevailing interpretations of this language.

The Plaintiffs side with the school of thought adopted by the

Ninth Circuit, 4 which asserts that the ATDS definition covers

predictive dialers because it anticipates the use of pre-existing

customer lists. This position asserts that the statutory phrase

“using a random or sequential number generator” modifies

the term “produce” not the term “store.” Marks, 904 F.3d

at 1050. The underlying rationale is that “a number generator

is not a storage device; a device could not use ‘a random or

sequential number generator’ to store telephone numbers.”

Id. Therefore, it does not make sense to apply the adverbial

“using” phrase to the term “store.” Further, because the statute

uses the disjunctive “or,” the equipment does not need to

“produce” telephone numbers to be called if it can “store”

telephone numbers to be called. Accordingly, “the statutory

definition of ATDS is not limited to devices with the capacity

to call numbers produced by a ‘random or sequential number

generator,’ but also includes devices with the capacity to dial

stored numbers automatically.” Id. at 1052. Therefore, the

Ninth Circuit determined that “the term automatic telephone

dialing system means equipment which has the capacity—(1)

to store numbers to be called or (2) to produce numbers to be

called, using a random or sequential number generator—and

to dial such numbers.” Id.

Santander subscribes to the competing school of thought,

adopted by the Third Circuit, 5 which asserts that the

ATDS definition necessarily excludes predictive dialers

because they do not have the capacity to generate numbers

randomly or sequentially. This position notes that “store” and

“produce” are both transitive verbs that require an object,

which in this case is the phrase “telephone numbers to be

called.” Pinkus, 319 F. Supp. 3d at 937. “Despite the

disjunctive ‘or’ linking ‘store’ and ‘produce,’ ‘store’ is not

a grammatical orphan, rather, like ‘produce,’ it is tied to

the object, ‘telephone numbers to be called.’ ” Id. at

937–38. Moreover, this interpretation emphasizes that the

adverbial “using” phrase follows both verbs, so it cannot

grammatically modify only “produce.” Id. at 937. Rather,

“[g]iven its placement immediately after ‘telephone numbers

to be called,’ the phrase ‘using a random or sequential number

generator’ is best read to modify ‘telephone numbers to

be called,’ describing the quality of the numbers an ATDS

must have the capacity to store or produce.” Id. at 938.

Therefore, “the phrase ‘using a random or sequential number

generator’ necessarily conveys that an ATDS must have the

capacity to generate telephone numbers, either randomly or

sequentially, and then to dial those numbers.” Id.

*7 Based solely on the statutory text, either of these

interpretations are reasonable. Therefore, the Court joins the

Ninth and D.C. Circuits in finding the ATDS definition to

be facially ambiguous. Marks, 904 F.3d at 1051 (“After

struggling with the statutory language ourselves, we conclude

that it is not susceptible to a straightforward interpretation

based on the plain language alone. Rather, the statutory text

is ambiguous on its face.”); ACA Int'l, 885 F.3d at 702–

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03 (“So which is it: does a device qualify as an ATDS

only if it can generate random or sequential numbers to be

dialed, or can it so qualify even if it lacks that capacity? ...

It might be permissible for the Commission to adopt either

interpretation.”).

ii. Statutory Structure and Context

As the Seventh Circuit instructs, “because we see ambiguity,

we look at the entire text and structure of the statute to

determine its meaning. Interpretations inconsistent with that

structure and context should be rejected.” Miscellaneous

Firearms, 376 F.3d at 712. Based on this analysis the Ninth

Circuit noted, “[t]he structure and context of the TCPA as

originally enacted indicate that Congress intended to regulate

devices that make automatic calls.” Marks, 904 F.3d at

1051.

The Court based its conclusion on the provisions of the

TCPA that allow an ATDS to call designated categories of

numbers. Id. For example, the TCPA permits the use of an

ATDS to “make any call ... with the prior express consent of

the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). “To take

advantage of this permitted use, an autodialer would have

to dial from a list of phone numbers of persons who had

consented to such calls, rather than merely dialing a block of

random or sequential numbers.” Marks, 904 F.3d at 1051.

Similarly, the TCPA exempts the use of an ATDS to make

calls “solely to collect a debt owed to or guaranteed by the

United States.” 47 U.S.C. § 227(b)(1)(A)(iii). As the Ninth

Circuit reasoned:

Like the exception allowing the use of an autodialer to

make calls “with the prior express consent of the called

party,” the debt collection exception demonstrates that

equipment that dials from a list of individuals who owe a

debt to the United States is still an ATDS but is exempted

from the TCPA’s strictures.

Marks, 904 F.3d at 1052. These exemptions illustrate

that Congress intentionally defined an ATDS to have the

capability to make calls from a pre-existing list, rather

than exclusively calling numbers generated randomly or

sequentially.

To further demonstrate this point, the TPCA includes a treble

damages clause in the event that a defendant committed a

willful and knowing violation of the statute. 47 U.S.C.

§ 227(b)(3). It is difficult to square how a defendant could

commit a willful and knowing violation of the TCPA if the

employed ATDS is dialing numbers randomly or sequentially.

Instead, it logically follows that a willful or knowing violation

would involve placing calls to pre-determined phone numbers

which the defendant knew were restricted under the TCPA.

These structural and contextual features of the TCPA lead the

Court to believe that the “language in the statute indicates that

equipment that made automatic calls from lists of recipients

was also covered by the TCPA.” Marks, 904 F.3d at 1051.

iii. Legislative Intent

Next, the Court turns to the legislative history to decipher

which definitional interpretation of an ATDS Congress

intended. The enactment of the TCPA was motivated by

the exponential increase in automated telemarketing calls.

H.R. Rep. 102-317, at 2 (1991). As Senator Fritz Hollings

protested, “[c]omputerized calls are the scourge of modern

civilization. They wake us up in the morning; they interrupt

our dinner at night; the force the sick and elderly out of bed;

they hound us until we want to rip the telephone right out of

the wall.” 137 Cong. Rec. S16,205 (daily ed. Nov. 7, 1991)

(statement of Sen. Hollings). Senator Hollings was not alone

in that feeling, as “[m]any consumers [were] outraged [by] the

proliferation of intrusive, nuisance calls to their homes from

telemarketers.” H.R. Rep. 102-317, at 2.

*8 In response to these concerns, Senator Hollings proposed

“a bill to amend the Communications Act of 1934, in order

to ‘protect the privacy interests of residential telephone

subscribers by placing restrictions on unsolicited, automated

telephone calls to the home and to facilitate interstate

commerce by restricting certain uses of facsimile (fax)

machines and automatic dialers.’ ” S. Rep. No. 103-178, at 2

(1991). This bill was enacted and is now the statute known

as the TPCA.

While the call targets have expanded from residential

lines to cellular telephone lines, the pervasiveness of

automated telemarketing calls has remained constant.

Likewise, consumers continue to face a barrage of privacy

invasions from automated telemarketing calls. As the FCC

previously noted, “for the recipient of the call, there is

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no difference whether the number is dialed at random or

from a database of numbers.” In Re Rules & Regulations

Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C.

Rcd. 14014, 14091 (2003).

Given Congress’s particular contempt for automated calls

and concern for the protection of consumer privacy, the

legislative history of the TCPA supports the Ninth Circuit’s

position that the ATDS definition includes autodialed calls

from a pre-existing list of recipients. To hold otherwise would

exempt a “widely used” automated dialing technology from

the purview of the TCPA, leaving consumers without recourse

for the precise problems Congress already addressed. Id.

at 14090.

Because the Court adopts the interpretation of the ATDS

definition that permits dialing pre-existing customer lists,

Santander’s Aspect system is not exempt from the TCPA as

a matter of law. Indeed, because Aspect automatically dials

numbers from a set customer list, it falls within the definition

of an ATDS.

B. Human Intervention Requirement

Next, the parties dispute the acceptable amount of human

intervention for equipment to be deemed an ATDS. Santander

suggests that a predictive dialer requiring any amount of

human intervention cannot constitute an ATDS. The Plaintiffs

take an opposing view, asserting that minimal human

intervention is inevitable and does not place a particular

equipment beyond the TCPA’s reach. The Plaintiffs further

suggest that ACA International should not alter the Court’s

previous decision regarding human intervention because

courts continue to assess the acceptable level on a case-bycase basis. The Court agrees with the Plaintiffs and reaffirms

its previous decision with respect to human intervention.

To reiterate, “[e]very 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.” Johnson v. Yahoo!, Inc., No. 14 CV

2028, 2014 WL 7005102, at *5 (N.D. Ill. Dec. 11, 2014);

See also Marks, 904 F.3d at 1052–53 (“Common sense

indicates that human intervention of some sort is required

before an autodialer can begin making calls, whether turning

on the machine or initiating its functions. Congress was

clearly aware that, at the very least, a human has to flip the

switch on an ATDS.”). Therefore, as a matter of functional

practicality, some degree of human intervention is inevitable

in any ATDS.

Moreover, the statutory language reveals what Congress

anticipated would be automatic—the dialing. “By referring

to the relevant device as an ‘automatic telephone dialing

system,’ Congress made clear that it was targeting equipment

that could engage in automatic dialing, rather than equipment

that operated without any human oversight or control.”

Marks, 904 F.3d at 1052 (citing ACA Int'l, 885

F.3d at 703 (“ ‘[A]uto’ in autodialer—or, equivalently,

‘automatic’ in ‘automatic telephone dialing system’—would

seem to envision non-manual dialing of telephone numbers.”)

(internal citations omitted)). Because predictive dialers

engage in the automatic dialing of telephone numbers, the

initial functionality of the machine need not be completely

free of all human intervention.

*9 Santander’s Aspect system requires human intervention

to the extent of uploading a pre-existing customer list and

clicking a button to indicate a customer service agent’s

availability. From there, Aspect’s dialer responds to the

customer service agent’s availability and begins dialing

numbers from the list based on a programmed algorithm.

“Thus, according to Santander’s own description, its Aspect

dialer—not the agents—makes the calls by dialing numbers

from the uploaded list.” 1:11-cv-8987, Dkt. 215. This falls

within the acceptable and inevitable amount of human

intervention for an ATDS.

CONCLUSION

For the aforementioned reasons, the Court denies the

Defendant’s motions. It is so ordered.

All Citations

Slip Copy, 2019 WL 2450492

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Footnotes

1 1:11-cv-8987, Dkt. 215.

2

Duran v. La Boom Disco, Inc., 369 F. Supp. 3d 476, 488 (E.D.N.Y. 2019) (finding that ACA International’s

invalidation of the FCC’s 2015 Order did not invalidate the analogous portions of the FCC’s 2003 and 2008

Orders); Reyes v. BCA Fin. Servs., Inc., 312 F. Supp. 3d 1308, 1320 (S.D. Fla. 2018) (same); Ramos

v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262, 1272 (S.D. Fla. 2018) (same); Maes v. Charter

Commc'n, 345 F. Supp. 3d 1064, 1065 (W.D. Wis. 2018) (same); Ammons v. Ally Fin., Inc., 326 F. Supp.

3d 578, 587 (M.D. Tenn. 2018) (same); Jiminez v. Credit One Bank, N.A., No. 17 CV 2844, 2019 WL 1409425,

at *5 (S.D.N.Y. Mar. 28, 2019) (same); Wilson v. Quest Diagnostics Inc., No. CV 2:18-11960, 2018 WL

6600096, at *3 (D.N.J. Dec. 17, 2018) (same); Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., No. 15-

CV-06314, 2018 WL 3707283, at *6 (N.D. Cal. Aug. 3, 2018) (same); Somogyi v. Freedom Mortg. Corp., No.

CV 17-6546, 2018 WL 3656158, at *4 (D.N.J. Aug. 2, 2018) (same); Sieleman v. Freedom Mortg. Corp., No.

CV 17-13110, 2018 WL 3656159, at *3 (D.N.J. Aug. 2, 2018) (same); Pieterson v. Wells Fargo Bank, N.A.,

No. 17-CV-02306, 2018 WL 3241069, at *3 (N.D. Cal. July 2, 2018) (same); O'Shea v. Am. Solar Sol., Inc.,

No. 3:14-CV-00894, 2018 WL 3217735, at *2 (S.D. Cal. July 2, 2018) (same); McMillion v. Rash Curtis &

Assocs., No. 16-CV-03396, 2018 WL 3023449, at *3 (N.D. Cal. June 18, 2018) (same); Castrellon v. Fitness

Club Mgmt., LLC, No. CV 17-08825, 2018 WL 5099741, at *5 (C.D. Cal. June 6, 2018) (same); Maddox

v. CBE Grp., Inc., No. 1:17-CV-1909, 2018 WL 2327037, at *4 (N.D. Ga. May 22, 2018) (same); Swaney

v. Regions Bank, No. 2:13-CV-00544, 2018 WL 2316452, at *1 (N.D. Ala. May 22, 2018) (same).

3

Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927, 932 (N.D. Ill. 2018) (“ACA International invalidated

not only the 2015 Declaratory Ruling's interpretation of the statutory term ATDS, but also the 2008 Declaratory

Ruling's and 2003 Order's interpretation of that term.”); Johnson v. Yahoo!, Inc., 346 F. Supp. 3d 1159, 1161

(N.D. Ill. 2018) (same); Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d 606, 621 (N.D.

Iowa 2019) (same); Sessions v. Barclays Bank Delaware, 317 F. Supp. 3d 1208, 1212 (N.D. Ga. 2018)

(same); Herrick v. GoDaddy.com LLC, 312 F. Supp. 3d 792, 799 (D. Ariz. 2018) (same); Gary v. TrueBlue,

Inc., 346 F. Supp. 3d 1040, 1043 (E.D. Mich. 2018) (same); Keyes v. Ocwen Loan Servicing, LLC, 335 F.

Supp. 3d 951, 960 (E.D. Mich. 2018) (same); Fleming v. Associated Credit Servs., Inc., 342 F. Supp. 3d

563, 574 (D.N.J. 2018) (same); Richardson v. Verde Energy USA, Inc., 354 F. Supp. 3d 639, 648 (E.D.

Pa. 2018) (same); Adams v. Ocwen Loan Servicing, LLC, 366 F. Supp. 3d 1350, 1354 (S.D. Fla. 2018)

(same); Yates v. Checkers Drive-In Restaurants, Inc., No. 17-CV-9219, 2019 WL 1437906, at *2 (N.D. Ill. Apr.

1, 2019) (same); Gadelhak v. AT&T Servs., Inc., No. 17-CV-01559, 2019 WL 1429346, at *4 (N.D. Ill. Mar.

29, 2019) (same); Folkerts v. Seterus, Inc., No. 17 C 4171, 2019 WL 1227790, at *6 (N.D. Ill. Mar. 15, 2019)

(same); Melvin v. Ocwen Loan Servicing LLC, No. 8:18-CV-1911-T-36SPF, 2019 WL 1980605, at *3 (M.D.

Fla. May 3, 2019) (same); Larson v. Harman Mgmt. Corp., No. 16-CV-00219, 2018 WL 6459964, at *2 (E.D.

Cal. Dec. 10, 2018) (same); Roark v. Credit One Bank, N.A., No. CV 16-173, 2018 WL 5921652, at *3 (D.

Minn. Nov. 13, 2018) (same); Evans v. Pennsylvania Higher Educ. Assistance Agency, No. 3:16-CV-82, 2018

WL 6362637, at *2 (N.D. Ga. Oct. 11, 2018) (same); Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-

CV-340, 2018 WL 4217065, at *6 (M.D. Fla. Sept. 5, 2018) (same); Washington v. Six Continents Hotels,

Inc., No. 216CV03719, 2018 WL 4092024, at *3 (C.D. Cal. Aug. 24, 2018) (same); Gary v. TrueBlue, Inc.,

No. 17-CV-10544, 2018 WL 3647046, at *6 (E.D. Mich. Aug. 1, 2018) (same).

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4 Marks, 904 F.3d at 1052.

5

See Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018) (“Ultimately,

[Appellant] cannot point to any evidence that creates a genuine dispute of fact as to whether the Email SMS

Service had the present capacity to function as an autodialer by generating random or sequential telephone

numbers and dialing those numbers.”).

End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.

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Facebook, Inc. v. Duguid, --- S.Ct. ---- (2020)

 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

2020 WL 3865252

Only the Westlaw citation is currently available.

Supreme Court of the United States.

FACEBOOK, INC.

v.

Noah DUGUID, et al.

No. 19-511

|

July 9, 2020

Case below, 926 F.3d 1146.

Opinion

*1 The petition for a writ of certiorari is granted limited to

Question 2 presented by the petition.

All Citations

--- S.Ct. ----, 2020 WL 3865252 (Mem)

End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.

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