Legal Newsline

Thursday, October 17, 2019

TCPA plaintiff consented to contact, court finds in denying class certification

By Robert Lawson | Nov 16, 2016

CHICAGO (Legal Newsline) —  The U.S. District Court for the Northern District of Illinois has denied a motion to certify Levins v. Santander Consumer USA Inc. as a class action.

James M. Morsch, an attorney for Butler Rubin Saltarelli & Boyd LLP in Chicago, said Faye Levins' Telephone Consumer Protection Act claim was "weak," as she had consented to be contacted by the defendant.

Morsch said it was likely the plaintiff recognized the weakness of the case and sought to join other claimants. He also said it remains unclear why the lawsuit was consolidated in Chicago.

"Levins' claim was very weak but, if Levins managed to secure class certification, she would be in a position to represent thousands of claimants and to use that leverage to extract a settlement out of Santander," Morsch told Legal Newsline

"I am not sure why the case was consolidated in Chicago since it was filed elsewhere, other than the fact that class counsel is located here."

The court found that Levins failed to meet the prerequisites for class certification, drawing from Levins' own testimony about "lack of clarity" in the origination of one of her phones' contact information, which was contained in activity notes from the company, Morsch said.

The court also partly granted motion for summary judgment to Santander because one of the cell phone numbers collected was done so with consent on the credit application completed by Levins. Summary judgment was not granted in dealing with consent for the phone number collected in the activity notes. 

"For Levins, it meant she was not an ideal class representative since she had consented to contact from Santander, at least to one of her phone numbers," Morsch said. 

"For Santander, it means it has to go to trial, assuming Levins prosecutes her claim despite denial of class certification, albeit on an individual claim that is dubious on the merits and represents $500 in exposure."

There is a chance that Levins will appeal. 

"But she faces a very difficult road ahead obtaining reversal of the denial of class certification from an appeals court that is generally hostile to TCPA class actions," Morsch said.

Morsch said Levins attempted to bolster her certification argument by emphasizing she could use Santander's records as class-wide proof.

"The trouble for her is that those records, according to her, were ambiguous, meaning a court would need to review each Santander record to determine whether each class member has a viable claim," he said.

"That does not make a class action since the whole benefit of class actions is to avoid the need for individualized proof."

Morsch said he found two things interesting and surprising about the case. He offered lessons to be learned from it. 

"One, the use of a fail-safe class definition which is self-defeating and, two, the unsuccessful creativity of class counsel in trying to make a class action out of a very weak individual case," he said.

Want to get notified whenever we write about U.S. District Court for the Northern District of Illinois ?

Sign-up Next time we write about U.S. District Court for the Northern District of Illinois, we'll email you a link to the story. You may edit your settings or unsubscribe at any time.

Organizations in this Story

U.S. District Court for the Northern District of Illinois