Powell v. Collecto, Inc.

MOTION

N.D. Ill.November 12, 2010

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DOMINGINHO POWELL on behalf of himself and others similarly situated, Plaintiff, v. COLLECTO, INC. d/b/a COLLECTION COMPANY OF AMERICA d/b/a EOS CCA, Defendant. ) ) ) ) ) ) ) ) ) 1:10‐cv‐3709 Judge Kendall JURY DEMANDED PLAINTIFF'S REVISED MOTION AND INCORPORATED MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION Plaintiff respectfully requests that this Court certify this case as a class action as explained below, and designate plaintiff Dominginho Powell as class representative and Burke Law Offices, LLC as class counsel. In support of this motion, plaintiff states: I. INTRODUCTION The defendant debt collection agency called plaintiff on his cellular telephone at least five times in an attempt to collect a debt allegedly owed to AT&T by a person named Sharmaine Hunter. Apparently, Collecto was calling plaintiff erroneously; the calls to plaintiff were “wrong number” telephone calls. The message Collecto left for plaintiff went something like this: ...84‐0290, to remove this phone number from our records. If you are Sharmaine xxxxxxx, please continue to listen to this message. By continuing to listen to this message, you acknowledge you are Sharmaine Hunter. There will now be a three second pause. [pause] This is EOCCA [sic]. This is an attempt to collect a debt, and any information obtained will be used for that purpose. Please contact us about an important personal business matter at 877‐384‐0290. Again, the telephone number is 877‐384‐0290 and the account number that is needed when calling is xxxxxxxxx. Thank you.1 1 The message transcription here appears to be partial; cut off in the beginning. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 1 of 53 PageID #:73 2 Plaintiff called the number mentioned in the above prerecorded message to request that his phone number be removed from defendant’s records. Plaintiff informed defendant that they had been calling the “wrong number.” Defendant made the notation “IC CBR WRG#” in its collection notes at that time. Exhibit D at 4. It is defendant’s policy and practice to make such a notation every time a person calls in and notifies Collecto that it has called the wrong number, and the class includes only persons whose collection notes indicate such a call was made. Burns Depo at 13‐17 (explaining collection notes); 61‐62 (explaining wrong number abbreviations). The Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A)(iii) (“TCPA”), prohibits any person from calling the cellular telephone of another person, unless the recipient has provided “prior express consent” to receive such calls. The TCPA is strict liability, and there is no “bona fide error” defense, as exists with other laws. Plaintiff thus brought this case pursuant to the TCPA on behalf of himself and other persons with who received “wrong number” calls on their cell phones from defendant pursuant to both Fed.R.Civ.P. 23(b)(2) and 23(b)(3). Both proposed classes are defined as: All persons with Illinois, Indiana and Wisconsin phone numbers who defendant or some person on its behalf called on their cell phone using an automatic telephone dialing system and/or prerecorded or artificial voice message, where defendant was notified that defendant was calling the incorrect person, where any prerecorded message was left for the subject phone number at any time between and including June 15, 2006, and June 15, 2010. For the following reasons, the motion should be granted. II. Both Classes Should be Certified. Class actions are favored as an effective means of adjudicating numerous small, similar claims. As the United States Supreme Court has observed, “[c]lass actions serve an important Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 2 of 53 PageID #:74 3 function in our system of civil justice.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981). One such “function of the class suit is to provide a procedure for vindicating claims which, taken individually, are too small to justify individual legal action but which are of significant size and importance if taken as a group.” Brown v. Brown, 6 Wash. App. 249, 253, 492 P.2d 581 (1971); see also Phillips Petroleum v. Shutts, 472 U.S. 797, 809, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (“Class actions . . . permit the plaintiffs to pool claims which would be uneconomical to litigate individually. [In such a case,] most of the plaintiffs would have no realistic day in court if a class action were not available.”); Murray v. GMAC Mortg. Corp., 434 F.3d 948, 953 (7th Cir. 2006)(maximum statutory damage claims of $1,000 per class member are well‐suited for class treatment). This is particularly true in cases involving consumer protection issues. As stated in Eshaghi v. Hanley Dawson Cadillac Co., 214 Ill. App.3d 995, 574 N.E.2d 760, 764‐66 (Ill. App. 1991) (citation omitted): In a large and impersonal society, class actions are often the last barricade of consumer protection. . . . To consumerists, the consumer class action is an inviting procedural device to cope with frauds causing small damages to large groups. The slight loss to the individual, when aggregated in the coffers of the wrongdoer, results in gains which are both handsome and tempting. The alternatives to the class action ‐‐ private suits or governmental actions ‐‐ have been so often found wanting in controlling consumer frauds that not even the ardent critics of class actions seriously contend that they are truly effective. The consumer class action, when brought by those who have no other avenue of legal redress, provides restitution to the injured and deterrence to the wrongdoer. Class certification prevents multiplicity of litigation, allows class members to share the costs of litigation when individual suits may be economically prohibitive, and frees defendants from the prospect of identical future suits and the risk of inconsistent results. Smith v. Behr Process Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 3 of 53 PageID #:75 4 Corp., 113 Wn. App. 306, 318, 54 P.3d 665 (2002). Class actions also serve the important purpose of educating individuals about their rights. Ergonomic Solutions, LLC v. United Artists, 50 P.3d 844, 848 (Ariz. App. 2002); Demetropoulos v. Bank One Milwaukee, Inc., 915 F. Supp. 1399, 1419 (N.D. Ill. 1996). This Court should certify the proposed Class to achieve the purposes of Fed.R.Civ.P. 23 and to ensure that thousands of class members obtain a legally enforceable remedy that otherwise might not be available given the small damages provided by the statutes. To obtain class certification, it is not necessary for the plaintiff to establish that he will prevail on the merits of the action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“[T]he question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”) (internal quotation marks and citation omitted). The determination of class certification turns not on the ultimate merits of the case, but rather on whether the party seeking certification meets its burden of showing that all the certification requirements are met. General Tele. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). “Rule 23 establishes two main requirements for class certification. First, the action must satisfy all four elements of Rule 23(a): numerosity, commonality, typicality and adequacy of representation. Second, the proposed class must satisfy at least one of the three provisions under Rule 23(b).” Maxwell v. Arrow Financial Services, LLC, No. 03 C 1995, 2004 WL 719278, *2 (N.D. Ill., March 31, 2004). A. Both classes Satisfy All of the Requirements of Fed.R.Civ.P. 23(a). As explained below, the requirements of Rule 23(a) have been satisfied. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 4 of 53 PageID #:76 5 1. Fed.R.Civ.P. 23(a)(1): The class is sufficiently numerous. Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” “Courts have found this element satisfied when the putative class consists of as few as 10 to 40 members,” and “the court is permitted to make common sense assumptions in order to find support for numerosity” where the plaintiff has shown “some evidence or reasonable estimate of the number of class members.” Maxwell, 2004 WL 719278, *2 (internal quotation marks and citations omitted); Williams v. Chartwell Fin. Servs., 204 F.3d 748, 760 (7th Cir. 2000). “Although there is no magic number at which a class becomes certifiable, courts have held that a class of forty is generally sufficient to satisfy Rule 23(a)(1).” Jackson v. NAFS, Inc., 227 F.R.D. 284, 287 (N.D.Ill. 2005) citing Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n9 (7th Cir. 1969). “Courts in this Circuit have held that alleged FDCPA violations via a form letter sent by a large commercial defendant is sufficient to satisfy numerosity. [citing cases ].” Wahl v. Midland Credit Mgmt., 243 F.R.D. 291, 296 (N.D.Ill. 2007). Here, although defendant has steadfastly refused to permit plaintiff to review its records in order to determine the precise number of class members, Collecto has admitted that there are more than 40 persons in the class. Exhibit A. Although plaintiff estimates the true number as well into the thousands given that defendant makes between 10 and 15 million calls per year, Burns Depo, Exhibit B, at 82:4‐8, the admitted 40 class members is sufficient to satisfy numerosity. Heastie v. Community Bank of Greater Peoria, 125 F.R.D. 669 (N.D. Ill. 1989). Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 5 of 53 PageID #:77 6 2. Fed.R.Civ.P. 23(a)(2): There are Common Questions of Law or Fact. Rule 23(a)(2) of the Federal Rules of Civil Procedure requires that there be a common question of law or fact. “However, not all factual or legal questions raised in a lawsuit need be common as long as a single issue is common to all class members.” Evans v. Evans, 818 F. Supp. 1215, 1219 (N.D.Ind. 1993). “Factual variation among class members' grievances will not defeat class certification. Instead, it is sufficient for Plaintiffs to demonstrate that the claims arise from a common nucleus of operative fact.” Wallace v. Chi. Hous. Auth., 224 F.R.D. 420, 427 (N.D.Ill. 2004). “Common nuclei of fact are typically manifest where, like in the case sub judice, the defendants have engaged in standardized conduct towards members of the proposed class by mailing to them allegedly illegal form letters or documents.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); see also Day v. Check Brokerage Corp., 240 F.R.D. 414, 418 (N.D.Ill. 2007); Warcholek v. Medical Collections Sys., 241 F.R.D. 291, 294 (N.D.Ill. 2006). “This Court has previously held that the requisite common nucleus of operative fact exists in FDCPA cases when the controversy arises from standard form debt collection letters. [citing N.D.Ill. cases]. Like [those cases], this case involves a standard form letter, and the Court would have to resolve a question common to all potential members of [the] Class.” Wahl, 243 F.R.D. at 297. “Commonality under Rule 23(a)(2) is not a demanding requirement: It calls only for the existence of at least one issue of fact or law common to all class members." Eldred v. Experian Info., Inc., 233 F.R.D. 508, 511 (N.D.Ill. 2005). “The commonality requirement has been characterized as a ‘low hurdle’ easily surmounted.” Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D.Ill. 1992). Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 6 of 53 PageID #:78 7 For example, in an FDCPA suit, “[t]o establish commonality, it is sufficient that plaintiff allege that all class members received the same collection letter.” Swanson v. Mid Am., Inc., 186 F.R.D. 665, 668 (M.D. Fla. 1999). “The plaintiff’s and the class’ claims arise from the defendant having sent the same debt collection letters resulting in the same alleged violations of the act. . . Therefore, the proposed class members share common questions of law and fact . . ” Silva v. National Telewire Corp., 2000 WL 1480269 *2‐3; 2000 U.S.Dist.LEXIS 19386,*7‐8 (D.N.H. Sep. 22, 2000). The common issue in this case is that Collecto called each of the class members with the same illegal equipment, and none of the class members consented to receive such calls. Thus, the commonality requirement is met. CE Design v. Beaty Const., Inc., 2009 WL 192481, at *9‐10 (N.D.Ill. Jan. 26, 2009); CE Design Ltd. v. Cy's Crabhouse North, Inc., 259 F.R.D. 135, 143 (N.D.Ill. 2009); G.M. Sign, Inc. v. Finish Thompson, Inc., 2009 WL 2581324 (N.D.Ill. Aug. 20, 2009). 3. Fed.R.Civ.P. 23(a)(3): Plaintiff's Claims are Typical. Under Rule 23(a)(3), a plaintiff's claim is typical if “it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” Maxwell, 2004 WL 719278, *4 (internal quotation marks and citation omitted). Here, there is no question that plaintiff’s claims are typical. Plaintiff was subjected to precisely the same illegal practice as each member of the proposed class. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 7 of 53 PageID #:79 8 4. Fed.R.Civ.P. 23(a)(4): Plaintiff and Counsel will Adequately Represent the Class. Rule 23(a)(4) requires that “both the class representative and counsel for the named plaintiff must be able to zealously represent and advocate on behalf of the class as a whole.” Maxwell, 2004 WL 719278, *5. The class representatives must not have “antagonistic or conflicting claims with other members of the class,” and must have a “sufficient interest in the outcome of the case to ensure vigorous advocacy.” Id. (internal quotation marks and citation omitted). Here, plaintiff’s interests are aligned with the interests of other class members. If appointed, plaintiff will be a “zealous advocate[s] as the named representative[s] on behalf of the class.” Id. Similarly, plaintiff’s attorney has broad experience in class litigation and other complex litigation, Exhibit C, Declaration of Alexander H. Burke, including being found to be suitable class counsel by Judge Dow in one of the only TCPA autodialer/cell phone class action settlements in the country. Fike v. The Bureaus, Inc., 1:09‐cv‐2558, docket item 113 (June 6, 2010) (preliminary approval order). B. The Damages Class Satisfies the Requirements of Rule 23(b)(3). As explained below, the class asking for damages meets the standards for certification under Rule 23(b)(3). 1. Fed.R.Civ.P. 23(b)(3) Common Issues Predominate. Rule 23(b)(3) is met when “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” FED.R.CIV.P. 23(b)(3). Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 8 of 53 PageID #:80 9 The predominance requirement is met when a common factual link between the class members and defendants under which the law requires a remedy exists. Smith v. Nike Retail Servs. Inc., 234 F.R.D. 648, 666 (N.D. Ill. 2006); 7A Charles Alan Wright, et al., Federal Practice and Procedure § 1778, at 528 (2d ed. 1986) (Predominance is met “when common questions represent a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is a clear justification for having the dispute on a representative rather than on an individual basis”). “Generally, when a class challenges a uniform policy or practice, the validity of the policy or practice tends to be the predominant issue in the ensuing litigation.” CE Design Ltd., 259 F.R.D. at 142 (citing General Telephone Co. of Sw. v. Falcon, 457 U.S. 147, 159 n.15 (1982)). The predominance requirement is thus generally satisfied where a “common nucleus of operative facts” exists. Maxwell, 2004 WL 719278, *5. While the common issues must predominate, they “need not be exclusive.” Maxwell, 2004 WL 719278, *5; see also, Pleasant v. Risk Management Alternatives, Inc., No. 02 C 6886, 2003 WL 22175390, at *5 (N.D. Ill. Sept. 19, 2003) (certifying class where “the central factual inquiry will be common to all” the class members); Kremnitzer, 202 F.R.D. at 242 (finding predominance met in class action where “[l]iability in this case is predicated on the same legal theory and the same alleged misconduct[.]”). Class certification is not defeated if there is some possibility that “separate proceedings of some character will be required to determine the entitlements of the individual class members to relief.” Carnegie v. Household Int’l Inc., 376 F.3d 656, 661 (7th Cir. 2004). Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 9 of 53 PageID #:81 10 In the most concrete terms possible, Rule 23(b)(3) requires that the resolution of the common issues will significantly move all of the claims forward. This is unquestionably the case here, because defendant has wronged each class member in the same way. The only determinations needed after certification will be (1) whether the equipment used by Collecto is proscribed by the TCPA, and (2) damages. The key ‐‐ and essentially only ‐‐ issues in this case are common ones. 2. Fed.R.Civ.P. 23(b)(3) This Class Action Is A Superior Method For The Adjudication Of The Controversy. Under Rule 23(b)(3), plaintiff must also show that the class action vehicle is superior to other available methods of adjudicating this controversy. Certifying a class is the “superior” method when the “‘class action would achieve economies of time, effort, and expense, and promote … uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’” Amchem Prods. v. Windsor, 521 U.S. 591, 615 (1997) (quoting Adv. Comm. Notes, 28 U.S.C. App., at 697); Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 183 (N.D.Ill. 1992) (“Equally important, judicial economy and efficiency, as well as consistent judgments, are achieved by certifying the class.”). Here, because of the costs associated with bringing the claims made in this case, few if any class members could, or would, pursue their rights individually. This is particularly true here because the TCPA, unlike many other consumer protection statutes, is not fee‐shifting. Furthermore, to plaintiff’s knowledge there is no related litigation that has been brought by any class member. Indeed, the most reasonable assumption is that few, if any, of the other class members know of the violation of their rights. Finally, there are no potential difficulties in managing a class action here, and the use of the class action form will save considerable judicial Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 10 of 53 PageID #:82 11 resources. Every one of these factors militates for a finding of superiority. See, e.g., Maxwell, 2004 WL 719278, *6; Sadler v. Midland Credit Mgmt., 06 C 5045, 2009 U.S. Dist. LEXIS 26771 (N.D. Ill. March 31, 2009)(impossibility of computer search to determine identities of class member does not preclude certification where administrative review, even where arduous, will reveal class members); Ramirez v. Palisades Collection, LLC, 250 F.R.D. 366, 370 (N.D.Ill. 2008); Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620, 624 (N.D. Ill. 2007). C. The Fed.R.Civ.P. 23(b)(2) Injunctive Class Should be Certified Because Defendant's Actions Are Applicable Generally. Rule 23(b)(2) allows for class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). The TCPA, 47 U.S.C. §227(b)(3)(A), expressly authorizes the issuance of an injunction. In this case, a class‐wide injunction is appropriate because each of the class members has been subjected to the same illegal practice of defendant’s using proscribed technology to call. Defendant’s procedures are admittedly imperfect, and permit numerous illegal calls to slip through the cracks. Not only this, but Collecto’s practice is to continue calling even in cases where it has all of the information necessary to determine that its calls are illegal. The records of Collecto’s dealings with plaintiff thus demonstrate why an injunction is necessary to stop future violations. The collection notes show that Collecto continued to call plaintiff using the proscribed technology even though it obtained actual knowledge on April 19, 2010, that the phone number it was calling was a cell phone, and obtained actual knowledge that plaintiff’s Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 11 of 53 PageID #:83 12 cell phone did not belong to the debtor it was trying to reach on May 29, 2010, when it left a message with a third party. Exhibit D, collection notes, at 3; Burns Depo, Exhibit B, at 53. Class‐wide Injunctive relief under the TCPA 47 U.S.C. §227(b)(3)(A), along with corresponding declaratory relief is therefore appropriate. Fed.R.Civ.P. 23(b)(2). All class members, who are the incorrect party, would benefit from the cessation of these annoying calls and defendant's opt‐out policy. CONCLUSION WHEREFORE, plaintiff respectfully requests that this Court certify this case as a class action pursuant to Fed.R.Civ.P. 23(b)(2) and 23(b)(3), as to the following class: All persons with Illinois, Indiana and Wisconsin phone numbers who defendant or some person on its behalf called on their cell phone using an automatic telephone dialing system and/or prerecorded or artificial voice message, where defendant was notified that defendant was calling the incorrect person, where any prerecorded message was left for the subject phone number at any time between and including June 15, 2006, and June 15, 2010. Plaintiff also requests that this Court designate Domingonho Powell as class representative, and Burke Law Offices, LLC as class counsel. Respectfully submitted, /s/Alexander H. Burke Alexander H. Burke BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 (312) 729‐5288 (312) 729‐5289 (fax) ABurke@BurkeLawLLC.com Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 12 of 53 PageID #:84 Exhibit A Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 13 of 53 PageID #:85 1 Alex Burke From: jvlahakis@hinshawlaw.com Sent: Wednesday, November 10, 2010 2:23 PM To: Alex Burke Subject: Re: Powell Yes, 40 post cell scrub. From: aburke Sent: 11/11/2010 12:20 AM GMT To: James Vlahakis Subject: Re: Powell 40 persons where the number was a cell phone number, or just 40 persons? In other words, is this after a scrub was performed? Sent via BlackBerry by AT&T From: jvlahakis@hinshawlaw.com Date: Wed, 10 Nov 2010 18:14:55 -0600 To: Subject: Re: Powell Alex: I am writing to you to update you regarding Defendant’s efforts to determine whether more than 40 persons called Defendant to notify Defendant that it “was calling the incorrect person” as you have alleged in your complaint and class certification motion. As a general matter, we disagree with your contention that Defendant has failed to properly address this issue. I will detail Defendant's various objections and efforts to undertake this task tomorrow. For the purposes of this letter, I should note that in agreeing to search of its records for the sole purpose of determining whether more than 40 putative class members existed, we reserved the right to argue that class certification was not appropriate, including the argument that an individual review of all records would be required to identify each putative class member. We also reserved the right to argue that additional verification of data was necessary to determine the identify of the owner of subject cell phone to make sure that a debtor did not call collector to falsely state that Defendant was calling the wrong person. We also explained to you that the subject message was not used during the duration of the proposed class. Subject to the above statements, which I shall detail in our forthcoming letter, it appears that more than 40 persons called Defendant during the class period to inform Defendant that it “was calling the incorrect person." Having said that, we believe that your proposed class should not be certified under FRCP 23 and FRCP 1. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 14 of 53 PageID #:86 2 Sorry for the delay, I hope you enjoy your vacation. -James _____________________ James C. Vlahakis Hinshaw & Culbertson, LLP 222 N. LaSalle, Suite 300 Chicago, IL 60601 312-704-3715 312-704-3001 [fax] aburke@burkelawllc.com 11/10/2010 05:16 PM Please respond to aburke@burkelawllc.com To jvlahakis@hinshawlaw.com cc Subject Re: Powell That sounds fine. I think, but will have to see it before I commit. Sent via BlackBerry by AT&T From: jvlahakis@hinshawlaw.com Date: Wed, 10 Nov 2010 17:13:48 -0600 To: Subject: Re: Powell Understood. FYI, I'm sending the requested material in the form of a letter. _____________________ James C. Vlahakis Hinshaw & Culbertson, LLP 222 N. LaSalle, Suite 300 Chicago, IL 60601 312-704-3715 312-704-3001 [fax] aburke@burkelawllc.com 11/10/2010 05:12 PM Please respond to aburke@burkelawllc.com To jvlahakis@hinshawlaw.com cc Subject Re: Powell Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 15 of 53 PageID #:87 Exhibit B Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 16 of 53 PageID #:88 1 (Pages 1 to 4) Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION - - - - - - - - - - - - - - x DOMINGINHO POWELL, on behalf of himself and others similarly situated Plaintiff Case No.: V. 1:10-cv-3709 COLLECTO, INC. d/b/a COLLECTION COMPANY OF AMERICA d/b/a EOS CCA Defendants - - - - - - - - - - - - - - x 30(b)(6) Notice to Collecto, Inc. Deposition of John F. Burns, Jr. October 14, 2010, 9:45 a.m. Hinshaw & Culbertson, LLP One International Place Boston, Massachusetts Reporter: Deborah Roth, RPR/CSR Page 2 1 PRESENT: 2 3 On Behalf of the Plaintiff: 4 Alexander Burke, Esq. 5 155 N. Michigan Avenue, Suite 9020 6 Chicago, Illinois 60601 7 312 729 5288 8 aburke@burkelawllc.com 9 10 On Behalf of the Defendants: 11 James C. Vlahakis, Esq. 12 Hinshaw & Culbertson, LLP 13 222 North LaSalle, Suite 300 14 Chicago, Illinois 60601 15 312 704 3000 16 jvlahakis@hinshawlaw.com 17 18 19 20 21 22 23 24 Page 3 1 INDEX 2 WITNESS: John F. Burns, Jr. 3 EXAMINATION PAGE 4 By Mr. Burke 4 5 6 EXHIBITS PAGE 7 EX 1 Final Notice of Deposition 8 8 EX 2 FAC System Manual 13 9 EX 3 Screen Shot (four pages) 18 10 EX 4 Call Search Report 36 11 EX 5 Calling a Consumer's Cell 12 Phone Number 67 13 14 15 16 17 18 19 20 21 22 23 24 Page 4 1 P-R-O-C-E-E-D-I-N-G-S 2 JOHN F. BURNS, JR., 3 having been satisfactorily 4 identified by the production of his 5 Massachusetts driver's license, and duly sworn 6 by the Notary Public, was examined and 7 testified as follows: 8 EXAMINATION 9 BY MR. BURKE: 10 Q. Good morning. 11 A. Good morning. 12 Q. My name is Alex Burke, and I represent 13 the plaintiff in an action called Powell 14 versus Collecto, Inc. 15 Could you state your name for the 16 record, please? 17 A. My name is John Francis Burns, Jr. 18 Q. And, Mr. Burns, have you ever given a 19 deposition before? 20 A. Yes, I have. 21 Q. How many times? 22 A. Approximately six times. 23 Q. Then you know the drill. 24 A. Yes, I do. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 17 of 53 PageID #:89 2 (Pages 5 to 8) Page 5 1 Q. Please give verbal answers. If you 2 don't understand a question, please speak up 3 and let me know, and I'll try to rephrase it 4 or make it understandable to you; but if you 5 answer a question, I'll understand that you 6 understood the question and answered 7 completely and truthfully, okay? 8 A. Yes. 9 Q. Is there any reason why you wouldn't be 10 able to testify completely and truthfully 11 today? Medication? Anything else like that? 12 A. No. 13 Q. Great. Where are you employed, 14 Mr. Burns? 15 A. I am employed at Collecto Incorporated 16 that does business under the trade name of 17 EOS CCA. 18 Q. Is it also known as Collection Company 19 of America? 20 A. It formerly was known under that name. 21 Q. Are there any other names that Collecto 22 Inc. is known as? 23 A. The company has subsidiary entities 24 that operate under other names. Page 6 1 Q. What are those names? 2 A. U.S. Asset Management, ACA Healthcare 3 Management Services, Receivables Resources, 4 California Service Bureau, True North, LLC. 5 Q. Is that it? 6 A. Pretty much, yeah. 7 Q. Okay. What is your job at -- let me 8 back up for a second. 9 During this deposition, when I 10 refer to "Collecto," please understand that to 11 mean Collecto, Incorporated, and EOS CCA, 12 okay? 13 A. Yes. 14 Q. Great. What's your job at Collecto? 15 A. My position is vice president of 16 corporate services. 17 Q. What are your duties as vice president 18 of corporate services? 19 A. I have oversight over the compliance, 20 risk management area, human resources, 21 facilities, asset purchasing. 22 Q. How many people, roughly, do you have 23 underneath you then? 24 A. 15 or 16. Page 7 1 Q. And when you say oversight of 2 compliance, do you mean compliance with, for 3 example, the FTC TCPA? 4 A. Compliance includes licensing, 5 approving of operational tactics and 6 strategies. It includes the response to 7 consumer inquiries, complaints. If there's 8 litigations that are filed against the 9 company, compliance would be responsible for 10 responding to those. 11 Q. What about the Telephone Consumer 12 Protection Act, are you responsible for 13 Collecto's compliance with that law? 14 A. Yes. 15 Q. Is there anyone else who is lateral to 16 you at the company that's also responsible for 17 compliance with the TCPA? 18 A. All employees are responsible for 19 compliance to the TCPA. 20 Q. Right. But you're a compliance 21 officer, right? 22 A. That's correct. 23 Q. Okay. Are there any other compliance 24 officers that are responsible for ensuring Page 8 1 compliance with the TCPA? 2 A. Any other compliance officers? Yes. 3 There's a person who is the vice president of 4 compliance and risk management. 5 Q. Who is that? 6 A. Susan Giordano. 7 EXHIBIT NO. 1 MARKED 8 (A discussion was held off the record.) 9 BY MR. BURKE: 10 Q. I have handed you what has been marked 11 as Exhibit 1. Do you see it? 12 A. Yes. 13 Q. Have you seen this document before? 14 A. Yes, I have. 15 Q. There are four topics on Exhibit 1. 16 Would you please read them to yourself and let 17 me know if you're competent to testify as to 18 each of these four topics. 19 A. Yes, I am. 20 Q. As to each of the four? 21 A. Yes. 22 Q. Great. 23 MR. VLAHAKIS: And, Alex, let the 24 record reflect that we did receive yesterday a Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 18 of 53 PageID #:90 3 (Pages 9 to 12) Page 9 1 re-notice of deposition with a fifth topic 2 which states, "What human intervention is 3 involved when defendant's dialers are used to 4 call debtors?" 5 Mr. Burns is qualified and willing 6 to testify to that topic should you want to go 7 into that today; and if you want to get him on 8 the record to say he is qualified to answer 9 that, rather than me saying so, feel free to 10 do so; and if you've got time, I would like to 11 have that one done. 12 I do feel that may fall under 13 Topic 3, arguably, as well. He would be 14 prepared to give answers regardless of whether 15 it has been highlighted in that manner. 16 Q. Are you also competent to testify as to 17 what human intervention is used when the 18 dialers are dialing numbers? 19 A. Yes. 20 Q. Great. 21 MR. VLAHAKIS: Thanks, Alex. 22 MR. BURKE: Thank you. 23 Q. What is the highest level of education 24 you've obtained? Page 10 1 A. I attended graduate business school. 2 Q. Where did you attend business school? 3 A. At Babson College. 4 Q. Is that in Massachusetts? 5 A. Yes. It's in Wellesley, Massachusetts. 6 Q. Any other postgraduate degrees? 7 A. No. 8 Q. Where did you go to college? 9 A. I went to Colombia College in New York 10 City. 11 Q. What was your major at Colombia? 12 A. Anthropology. 13 Q. How long have you been in the debt 14 collection business? 15 A. I've been in the business, with my 16 current employer, since 1995. Prior to that, 17 but not immediately prior to that, I worked 18 for a company called Dun & Bradstreet that was 19 also in the debt collection business, and I 20 was there for a period of three years. 21 Q. When you began at Collecto, what was 22 your position? 23 A. Vice president of corporate services. 24 Q. The same as now? Page 11 1 A. Yes. 2 Q. 15 years. Very good. Have your duties 3 changes over that time? 4 A. Yes. 5 Q. Generally how have the duties evolved? 6 A. After the first year of my employment, 7 I was also designated as the senior financial 8 officer and kept that position up until 9 probably five years ago, five or six years 10 ago. 11 I left the company for about a year, 12 came back in the role of interim chief 13 financial officer, and subsequently have 14 relinquished those responsibilities to a new 15 VP of finance. 16 Q. Are you familiar with the computer 17 systems that Collecto uses to keep track of 18 its debt collection activities? 19 A. Pretty much. 20 Q. For example, the FACS system? 21 A. Yes. 22 Q. What is the FACS system? 23 A. It's a collection program, software 24 program that was developed by Ontario Page 12 1 Corporation that is used by many collection 2 agencies to keep track of their accounts and 3 to run programs and to sort data and to 4 interface with other vendors that provide 5 various ancillary services to the collection 6 effort. 7 Q. How long has Collecto been using the 8 FACS system? 9 A. Collecto has been using the FACS system 10 for 18 years. 11 Q. Are there any other systems that 12 Collecto uses for the purpose of tracking its 13 debt collection activities? 14 A. Not really. 15 Q. For example -- so you say "not really." 16 Why not just an unequivocal "no"? 17 A. There are other systems that interface 18 with FACS. So that if a dialer system such as 19 a Soundbite is an interface with FACS, you're 20 going through FACS to access it. So that's 21 why I answered the way I did. 22 Q. I see. So would it be accurate to say 23 that the base computer system is FACS, and 24 then there are other systems that sort of feed Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 19 of 53 PageID #:91 4 (Pages 13 to 16) Page 13 1 into it? 2 A. Yes. 3 EXHIBIT NO. 2 MARKED 4 Q. The court reporter has marked Exhibit 2 5 that you have in front of you. Do you see 6 that? 7 A. Yes. 8 Q. Is this the -- what is this document? 9 A. It appears to be the information that 10 is used in the training of the operations 11 staff at our company. 12 Q. The operations staff? Does that 13 include the collectors themselves? 14 A. Yes. 15 Q. Okay. Turning to Page 4, on the top of 16 that page it says, "Effective Notes." Do you 17 see that? 18 A. Yes. 19 Q. Are you familiar with notetaking by 20 debt collectors? 21 A. Yes. 22 Q. What are the notes that debt collectors 23 take? What does that mean, notes? 24 A. It's mostly information that pertains Page 14 1 to the account that might have been 2 transmitted to the collector via a phone 3 conversation with the consumer or any other 4 person that might have been contacted relative 5 to an account. It's basically a summary of 6 the information that has occurred on the 7 account. 8 Q. So it would include, for example, 9 summaries of telephone conversations; is that 10 right? 11 A. Yes. 12 Q. And it would also -- notes would also 13 include records of telephone calls; is that 14 right? 15 A. Yes. Some notes are entered by an 16 individual collector, some are entered through 17 various processes that are done in the 18 processing of the data on the file. 19 So it might indicate that it's from 20 our IT group rather than specifically from a 21 collector. So there's different people that 22 could answer information on the account from 23 different sources. 24 Q. So, for example, if a dialer dials a Page 15 1 number, it would be the dialer that enters the 2 entry on the notes; is that right? 3 A. The phone call or the phone attempt 4 would be entered into the notes, that's 5 correct. 6 Q. Similarly, a letter that would be sent 7 would be automatically placed into the notes? 8 A. Yes. 9 Q. And if there was an incoming call, that 10 would go into the notes and then there would 11 be some notation of the conversation; is that 12 right? 13 MR. VLAHAKIS: I object to the 14 form. 15 A. Usually, yes. 16 Q. Would you explain to me the process by 17 which a note might be taken when there's an 18 incoming call? 19 A. The person receiving the call would ask 20 the caller to identify themselves and to 21 identify which account they might be calling 22 on; and then they would attempt to get the 23 account on the screen and locate it, so 24 whatever information was being communicated by Page 16 1 the person calling in could be put into the 2 note on the system. 3 Q. And are there instructions about what 4 the collector is supposed to write down about 5 the conversation into the collection notes? 6 A. Yes. 7 Q. What are those instructions? 8 A. It depends on what the information is. 9 There's -- you know, the document you handed 10 me is part of the training material, and it's 11 telling people what dispositions to put on 12 accounts, to put -- giving them examples of 13 how to make notes. So it's part of the 14 training, the initial training. It's part of 15 the ongoing training. 16 Q. So would you say that this passage 17 regarding "Effective Notes" on Page 4 of 18 Exhibit 2, where it says, "Effective notes 19 will describe the debtor's situation briefly 20 but in detail," would you say that that's an 21 accurate description of what the notes 22 regarding a conversation with a debtor are 23 supposed to be like? 24 A. Yeah. The goal is to put in Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 20 of 53 PageID #:92 5 (Pages 17 to 20) Page 17 1 information that pertains to the account that 2 assists us in how to manage the account. 3 Q. Now, I understand from looking at this 4 Exhibit 2 that abbreviations are part of the 5 normal notetaking process; is that right? 6 A. That's correct. 7 Q. If you'd turn to Page 3, there's a 8 master code sheet. Do you see that? 9 MR. VLAHAKIS: Go back one 10 (indicating). 11 A. Yes. 12 Q. What is this master code sheet, do you 13 know? 14 A. It appears to be various code numbers 15 or abbreviations that are in the FACS system 16 to assist the person in identifying proper 17 coding to be used. 18 Q. And then there's a column that's 19 entitled "Collector Notes." Do you see that 20 on the right-hand side? 21 A. Yes. 22 Q. Would that refer to notes that -- 23 abbreviations that collectors are supposed to 24 use when they're talking to debtors and making Page 18 1 notes about the conversations? 2 A. Yes. It would give the collector a 3 reference to look at. 4 Q. Okay. A reference to look at in order 5 to use an abbreviations for the notes, right? 6 A. Right. It's a training document. So 7 when the person is learning how to utilize the 8 system, it shows them codes that they could 9 use to abbreviate the topics that are 10 identified with that. 11 Q. Are collectors supposed to use these 12 codes? 13 A. It's not a firm requirement, but 14 they're directed to use these if at all 15 possible. 16 Q. Okay. 17 EXHIBIT NO. 3 MARKED 18 Q. I have handed you what has been marked 19 as Exhibit 3. Do you see that? 20 A. Yes. 21 Q. Are you familiar with this document? 22 A. Yes. 23 Q. What is it? 24 A. It's a screen print of the notes of an Page 19 1 account that was in the name of Sharmaine 2 Hunter. 3 Q. Is this a screen print or a printout of 4 the FACS system? 5 A. This is a printout of the information 6 on the FACS system. 7 Q. Okay. What I would like to do is go 8 through this Exhibit 3 and talk about some of 9 the notations that are made on this exhibit, 10 okay? 11 A. Yes. 12 Q. It appears that this Sharmaine Hunter 13 account was an AT&T account; would that be 14 accurate? 15 A. Yes. 16 Q. So beginning at the top of the first 17 page, there's a line that says, "List," and 18 then "4/12/10" and then "Srv:04/07/10," and 19 then "Ltrs:1." Do you see that? 20 A. Yes. 21 Q. What does that line mean? 22 A. It identifies the date that the account 23 was listed with us. The service date would be 24 the chargeoff by the client. The letters Page 20 1 would be the number of letters that were sent 2 on the account. The time would be the time in 3 the system that the account's been worked. 4 Q. In days? 5 A. No. No. In minutes. 6 Q. Okay. 7 A. And then the calls would be the number 8 of phone attempts that were made on the 9 account. 10 Q. Any number? 11 A. Yes. 12 Q. What is "Con"? 13 A. "Con" is the number of contacts, when 14 the phone call connected with the consumer. 15 Q. With a live person? 16 A. Yes, with the... 17 Q. With the debtor? 18 A. Yes. 19 Q. Okay. And it appears that this is a 20 $110.24 debt that was being collected? 21 A. That's correct. 22 Q. Can you tell from looking at these 23 notes what phone numbers were provided by AT&T 24 to collect on? Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 21 of 53 PageID #:93 6 (Pages 21 to 24) Page 21 1 A. Yes. 2 Q. What were those numbers? 3 A. (773) 367-7272 and (773) 468-3732, 4 (773) 367-7431, (773) 815-3583 and 5 (773) 367-7431. 6 Q. Now, I'm guessing here -- and let me 7 know if I'm right -- the first two numbers 8 came from the top of the page, and then the 9 last three came from inside the notes; would 10 that be accurate? 11 A. Yes. 12 Q. So the first number, the 7272 number, 13 there is a notation before that number. Does 14 that notation mean anything about the status 15 of that number? 16 A. Are you referring to the CBR? 17 Q. Yes. 18 A. That's just another field for a "can be 19 reached" number that may have been given by 20 the customer to our client as an additional 21 phone number to contact. 22 Q. Is that field blank? 23 A. That field is blank. 24 Q. So "Ph" is just phone number? Page 22 1 A. Correct. 2 Q. And then what's the number below that, 3 the 3732? There's an "Rp Ph." What is that? 4 A. That's the responsible party. 5 Q. And I notice, it looks like that phone 6 number is included in the account number that 7 was received from AT&T. Do you see that? 8 A. Yes. 9 Q. So would it be accurate to say that 10 that phone number was the AT&T phone number 11 that was part of the account? 12 A. That may be the case. 13 Q. All right. Now turning down to the 14 notes, I see a lot of stuff happened on 15 April 12, 2010. 16 A. Yes. 17 Q. Including a bunch of stuff at 9:56. 18 Would you please go through the 9:56 items? 19 A. The 9:56 items are just basically 20 information from the client that was on the 21 account, additional information. 22 Q. Why are those phone numbers not 23 populated into the data on the top of the FACS 24 screen here? Page 23 1 A. They weren't provided as the number, 2 calling numbers on the account. They were 3 numbers that had been associated with the 4 account but were not in the fields that would 5 be the "call to" numbers. 6 Q. What is the second line there, 7 "N NA FOOD STAMPS"? 8 A. A reference that the client had in 9 their notes that we just copied over into our 10 notes. I'm not exactly sure what it means. 11 It could mean that the individual was a 12 Welfare recipient or something to that effect. 13 Q. Going down to 10:20 a.m. on April 12th, 14 there are a bunch of notes. Would you go 15 through those line by line and tell me what 16 they mean? 17 A. The first one, where it says, 18 "Stopped 0 letters" means that there is a hold 19 on sending letters by the individuals doing 20 that function at that time. 21 The next code is "lr # 1," 22 et cetera, which is basically a request being 23 made by the data processing people to have a 24 letter sent on the account, which is usually Page 24 1 determined by various aspects of the account 2 that would indicate that a letter would be 3 sent. 4 The "NCOA HAS BEEN PERFORMED," NCOA 5 is a change-of-address scan that's done before 6 letters are sent out to see if the address is 7 a valid address, where mail would be received. 8 So we wouldn't send out a letter to a -- to 9 something that was not a good address. 10 The "2SCR" is a request through a 11 sub-vendor, Experian, for a credit score that 12 would determine what tactics might be used on 13 the account once the account started to be 14 worked on, and the next notation is "Scheduled 15 a disposition change" on a future date. 16 Q. Now, on the far left, there is a 17 designation "WGR" for each of those entries 18 that we looked at. What does that mean? 19 A. That's just an IT designation. There's 20 different people in our IT department that run 21 different functions. So that's just the 22 individual who has the responsibility for, you 23 know, doing that aspect of that. 24 Q. For the stuff we just went over, would Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 22 of 53 PageID #:94 7 (Pages 25 to 28) Page 25 1 WGR have looked at this particular debtor's 2 file and made these designations, or would 3 that be done in like a batch? 4 A. It's all done in a batch. He wouldn't 5 look at any individual accounts. It's just an 6 automated process. 7 Q. On April 13th at 3:13, it looks like 8 the disposition change was removed; is that 9 right? 10 A. Yes. 11 Q. Then what happened? 12 A. Then the next code is "3BEG BEGIN 13 COLLECTION," which means that the hold on the 14 account to do the scrub was basically 15 released. 16 Q. Does Collecto ever scrub phone numbers? 17 A. Yes. 18 Q. Does it scrub all -- well, let's back 19 up. 20 Going forward, when I ask questions 21 about the policies, practices or procedures of 22 Collecto, please understand that I'm asking 23 about the time frame of June 15th, 2006 and 24 ending June 15, 2010. So even if I ask a Page 26 1 question in the present tense, please answer 2 for that time period. 3 MR. VLAHAKIS: What are the dates 4 again? 5 MR. BURKE: June 15th, 2006 to 6 June 15th, 2010. 7 MR. VLAHAKIS: One thing, John, if 8 there's -- maybe we can start off smaller and 9 get bigger: Over a certain period of time, we 10 did this; and going forward, we are doing 11 this. For this particular client, we do A, B 12 and C, and for different clients we do X, Y 13 and Z. What is done here? What is your 14 general practice? 15 I think that's a broad time frame. 16 Things may have changed, but maybe things 17 haven't changed. Has it always been the same? 18 I don't know. 19 MR. BURKE: Right. I want accurate 20 responses. So if things have changed, please 21 let me know. So I will ask that scrub 22 question again, and then we can work our way 23 to get as accurate a response as possible. 24 MR. VLAHAKIS: What was done here Page 27 1 on this particular account that he knows of 2 and expand that out to what is done on this 3 campaign, what may be done with this client 4 and what may be done broadly. It's up to you. 5 THE WITNESS: Should I make a 6 statement? 7 MR. BURKE: No. I will ask another 8 question. 9 BY MR. BURKE: 10 Q. Has Collecto always scrubbed telephone 11 numbers? 12 A. No. 13 Q. About when did Collecto begin scrubbing 14 telephone numbers? 15 A. I can't give you an exact date, but it 16 may be eight years ago. 17 Q. And do you know why eight years ago 18 Collecto began scrubbing telephone numbers? 19 A. Because the technology became available 20 that allowed us to do that. 21 Q. In order to find a more accurate number 22 for the debtor? 23 A. Yes. 24 Q. Any other reason that it was initiated Page 28 1 18 years ago? 2 MR. VLAHAKIS: He said eight. 3 Q. Eight years ago? 4 A. As new technologies become available to 5 us, we evaluate them and utilize them if they 6 are advantageous to use. 7 Q. If it's efficient and feasible? 8 A. There are a lot of things done today on 9 collections that were not available eight or 10 ten years ago. 11 Q. Like scrubbing? 12 A. Like scrubbing. 13 Q. Now, eight years ago when Collecto 14 began scrubbing, did they scrub every number 15 they called? 16 A. I'm not sure. 17 Q. At some point did Collecto begin 18 scrubbing telephone numbers to determine 19 whether they were cell phones? 20 A. Yes. 21 Q. When did that first happen? 22 A. That was probably -- I'm not going to 23 be able to put into specific dates changes in 24 certain policies because many of these things Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 23 of 53 PageID #:95 8 (Pages 29 to 32) Page 29 1 are constantly evolving and the technology 2 evolves. 3 So when that technology was 4 available, which might be two or three years 5 ago, that may have been done, but I can't be 6 giving you an accurate answer because that 7 information -- I was not, in the preparation 8 of this, to have an historical account of 9 every change that happened in our policies 10 relative to tactics used on accounts. So I 11 can give you a best guess, but I can't give 12 you an accurate exact answer. 13 Q. What's your best guess? 14 A. Rephrase the question. Ask the 15 question again. 16 Q. When did Collecto first begin scrubbing 17 for cell phones? 18 A. I would say three years ago. 19 Q. Why did Collecto begin scrubbing for 20 cell phones three years ago? 21 A. I can't tell you the exact reason. 22 Q. Was it because of the TCPA? 23 A. That could have been one of the issues. 24 Q. Can you think of any other reasons why Page 30 1 Collecto would begin scrubbing for cell 2 phones? 3 A. Yes. It would begin scrubbing for cell 4 phones so it could get contact numbers to call 5 the consumers to collect the accounts. It 6 would be good business practice to call the 7 correct number. 8 Q. Can you define what a scrub is for me, 9 please? 10 A. It's giving the account information to 11 an outside vendor who performs a task in which 12 they have a specialized service. 13 Q. And what is that specialized service? 14 A. It could be identifying whether the 15 phone number is a cell phone or not. It could 16 be identifying whether the person has filed a 17 bankruptcy. It could be determining whether 18 the person is now deceased and whether there's 19 a death notice that has been recorded. It 20 could be to locate phone numbers that are 21 attached to it. It could be to identify a 22 credit score. Any number of things along 23 those lines. 24 Q. So when I'm asking about cell phone Page 31 1 scrubs, I'm asking for any determination that 2 a phone number is a cell phone number, okay? 3 A. Yes. 4 Q. When Collecto began scrubbing for cell 5 phone numbers two to three years ago, did it 6 begin scrubbing all the numbers that it 7 called, or did it begin with just scrubbing 8 certain phone numbers before it called them? 9 MR. VLAHAKIS: I object to the 10 form. When you say "called," are you saying 11 manual calls? Calls with dialers? 12 MR. BURKE: Just calls generally 13 for this question. 14 A. The answer is no. 15 Q. Was there a process by which certain 16 numbers were scrubbed before they were called? 17 A. At what point in time? 18 Q. When it first began using the cell 19 phone scrub. 20 A. Yes. There was a process. 21 Q. What was that process? 22 A. I can't give you the exact explanation 23 of the process three years ago, but my best 24 guess would be that it related to certain Page 32 1 clients and certain batches of business that 2 we had, but not to all clients or all 3 business. 4 Q. Does Collecto -- I'll start that 5 question over. 6 Has Collecto ever had processes 7 whereby it is attempting to comply with the 8 TCPA? 9 A. Yes. 10 Q. When did Collecto first begin to comply 11 with the TCPA? 12 A. It's always attempted to comply with 13 the TCPA. 14 Q. Do you know when Collecto first learned 15 that the TCPA may apply to its collections? 16 A. I don't recall that date. 17 Q. What are the policies, practices and 18 procedures that were in place in June of 2006 19 that comply with the TCPA? 20 A. I can't answer for that specific date. 21 Q. Generally for 2006? 22 A. Whatever information we had relative to 23 compliance would have been discussed by the 24 compliance staff and would have been related Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 24 of 53 PageID #:96 9 (Pages 33 to 36) Page 33 1 to the operations staff for their procedures. 2 Q. So what were the procedures? 3 A. I can't recall what they were four 4 years ago in June of 2006. 5 MR. VLAHAKIS: I want to object to 6 the scope on this, because when you're asking 7 for this in the dep notice, you don't identify 8 as going back that far. The only time where 9 you discuss a time frame is in Topic 4. 10 Q. How about for 2007, do you know what 11 the policies, practices and procedures for 12 compliance to the TCPA were during any time in 13 2007? 14 A. I can't recall. 15 Q. How about 2008, do you know what the 16 policies, practices and procedures for 17 Collecto compliance to the TCPA were in 2008? 18 A. I don't recall the exact information. 19 Q. How about 2009, do you know what the 20 policies, practices and procedures that 21 Collecto had in place in 2009 for compliance 22 to the TCPA were? 23 A. That's closer to our current date. So 24 I would say that the practices and processes Page 34 1 and procedures from that period of time to the 2 current period of time have not varied. 3 Q. What are those policies, practices and 4 procedures that have not varied between 2009 5 and the present? 6 A. That we -- the policies, practices and 7 procedures is that the staff is trained to -- 8 not to contact the consumers unless there has 9 been prior consent given on the phone number, 10 that's a cell phone number. 11 Q. So how was that policy implemented? 12 What did Collecto do in order to avoid 13 contacting consumers on their cell phone using 14 its dialer or prerecorded messages during that 15 time frame to the present? 16 A. What did it do? 17 Q. Yes. 18 A. Followed the practice of calling the 19 numbers that had been supplied by our client 20 as being a valid number; and if the number had 21 otherwise been collected through a skip- 22 tracing mode, they would run it through a 23 scrub for phone numbers prior to putting the 24 numbers into a dialer pool, and the trainers Page 35 1 who train the operations staff will explain 2 the TCPA in training and the importance of 3 following the practice of that. 4 Additionally, if information is 5 obtained where a phone number is deemed to be 6 a bad number, there may not have been 7 permission granted, and it was determined that 8 that was the case, they would code the number 9 in the account so we would not re-call the 10 account and cause an issue. 11 Q. How would the bad numbers be coded in 12 the FACS system? 13 A. Following the number, the capital 14 letter B is placed on that number. 15 Q. Would there also be a notation in the 16 collection notes? 17 A. There can be, yes. 18 Q. Is there a notation in these collection 19 notes as to that there was a wrong number? 20 A. Yes. 21 Q. Maybe on Page 4 on 6/14/2010. 22 A. Yes. That would appear to be a note 23 indicating that we got a wrong number. 24 Q. Could you decipher the note there, Page 36 1 please. 2 A. Incoming call, can be reached, wrong 3 number. 4 Q. And that call, incoming call came at 5 3:07 p.m. on 6/14/2010? 6 A. Yes. 7 MR. VLAHAKIS: What time zone, if 8 you know? 9 THE WITNESS: That's our time zone. 10 The account is in Chicago. It would 11 be their time zone. It's the zone in which 12 the account is being worked. 13 EXHIBIT NO. 4 MARKED 14 Q. Would you turn to Page 4 of Exhibit 4, 15 please. 16 First of all, do you know what 17 Exhibit 4 is? 18 A. No. 19 Q. Okay. We'll move on. 20 Directing your attention again to 21 the first page of Exhibit 3, the account 22 notice. You can put Exhibit 4 aside. 23 At 3:13 p.m. on April 13th it says, 24 "FILE RETURNED FROM EXPERIAN." Do you see Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 25 of 53 PageID #:97 10 (Pages 37 to 40) Page 37 1 that? 2 A. Yes. 3 Q. What does that mean? 4 A. That means that one of the tactics that 5 was being done on the account had been 6 completed and the file had been returned. 7 Q. And what did Experian perform for 8 Collecto in this case? 9 A. Most likely, it was the credit score. 10 Q. Does Collecto use Experian for 11 scrubbing also? 12 A. Yes. 13 Q. What would it look like if Experian had 14 scrubbed the data for the debtor? 15 A. If there was information, it would 16 appear in a certain file. 17 Q. So would the information show up in the 18 notes after the file was returned from 19 Experian? 20 A. I don't believe so. 21 Q. So going down to the line below that, 22 it looks like a phone call was made; is that 23 accurate? 24 A. Yes. Page 38 1 Q. Okay. Was the phone call on 2 April 12th, 2010 at 5:20 p.m.? 3 A. April 12th, 5:20 p.m.? I don't see 4 that. 5 MR. VLAHAKIS: (Indicating). 6 THE WITNESS: Oh, okay. Down here 7 (indicating). 8 Q. Would that be accurate? 9 A. That note, I think, relates to the 10 disposition change, not an actual call. 11 Q. Okay. Was there a call? 12 A. The next line, where it says "Call 13 Details," and it identifies a number, and it 14 says, "ATTEMPTED ANSWER MACHINE HUNG UP." 15 Q. Okay. So in the call details, there's 16 a phone number there. Is that the phone 17 number that was called? 18 A. Yes. 19 Q. In parentheses, you just read it. What 20 does that mean? 21 A. It would indicate to me that there was 22 an attempt. There was an answering machine. 23 So no message was left. 24 Q. And was this call made using one of Page 39 1 Collecto's dialers? 2 A. Yes. 3 Q. Let's talk about the dialers for a 4 minute. 5 I understand that Collecto utilizes 6 three different types of dialers; is that 7 correct? 8 A. Yes. 9 Q. The Noble, the GC, and the Soundbite 10 dialer; is that right? 11 A. That's right. 12 Q. I understand that the Soundbite dialer 13 is offsite; is that right? 14 A. Yes. 15 Q. And the Noble dialer is also offsite? 16 A. Yes. 17 Q. And the GC dialer is onsite? 18 A. Yes. 19 Q. Can you tell which of those dialers 20 were used to make this phone call? 21 A. Yes. 22 Q. Which one? 23 A. That was the Noble. 24 Q. How can you tell? Page 40 1 A. The WGR is the code for the person that 2 runs the Noble programs. 3 Q. And I think you testified earlier that 4 that's an IT person? 5 A. Yes. 6 Q. Does WGR run any dialer other than the 7 Noble? 8 A. I'm not aware of that. 9 Q. So would this call have been made as 10 part of a dialing campaign? 11 A. Most likely, yes. 12 Q. How can we tell definitively whether it 13 was or was not? 14 A. I guess you could say every dialing 15 effort is called a campaign. So I guess the 16 answer would be yes. 17 Q. Well, then what's your definition of a 18 dialing campaign? 19 A. The automated messaging being done for 20 one or more consumers. 21 Q. So the process whereby numbers are 22 loaded into the dialer as a batch and the 23 dialer calls those numbers; is that right? 24 A. Yes. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 26 of 53 PageID #:98 11 (Pages 41 to 44) Page 41 1 Q. When a batch of numbers is entered into 2 the dialer, does the dialer automatically dial 3 those numbers? 4 A. Yes. 5 Q. Is that true for all three dialers: 6 the Noble, the GC and the Soundbite? 7 A. The Soundbite, if it identifies the 8 number as a cell phone, would not call that 9 number. 10 Q. Okay. But the process by which the 11 numbers are entered in and then are dialed by 12 the dialer itself is essentially the same for 13 all three dialers, right? 14 A. The process to enter them in is 15 similar, yes. 16 Q. So what I am asking here is whether any 17 human being uses his fingers to dial these 18 phone numbers or whether the machine 19 automatically dials the numbers? 20 A. No. It's automatically dialed, if it 21 is in a dialer campaign. 22 Q. So on that first call that we were 23 talking about earlier, I think you said that 24 Collecto did not leave a message; is that Page 42 1 right? 2 A. That's correct. 3 Q. Okay. It looks like another call 4 happened a couple lines down to a different 5 phone number, correct? On Page 1 still. 6 A. Which line is that? 7 Q. (Indicating). 8 A. Yes. 9 Q. What happened with that call? 10 A. The note says: Attempted possible 11 disconnect. 12 Q. Okay. So does that mean that the 13 dialer tried to call and something made the 14 dialer think there was a disconnected number? 15 A. Yes. It didn't ring through or didn't 16 have the normal answering, no answering 17 machine. 18 Q. So there was no message left by 19 Collecto at that time? 20 A. Yes. There would be no connection, 21 with no answering machine or any individual. 22 So there would be no way to leave a message. 23 Q. The last line on Page 1, it looks like 24 there was a bankruptcy scrub performed; is Page 43 1 that right? 2 A. Yes. 3 Q. To see whether the debtor had been in 4 bankruptcy; is that right? 5 A. It would identify whether the 6 individual on the account who is identified as 7 the accountholder had filed bankruptcy within 8 a certain period of time. 9 Q. Turning to Page 2, please. It looks 10 like there was a deceased scrub performed? 11 A. Yes. 12 Q. To check to see if Ms. Hunter had died? 13 A. If there was a record of that 14 individual having passed away, yeah. 15 Q. And that's all automated; isn't it? 16 A. Yes. 17 Q. Now, next to both of those scrubs on 18 the far left-hand corner are the initials 19 "nj." Do you see that? 20 A. Uh-huh, yes. 21 Q. Is that an employee? 22 A. That "nj" stands for night job. 23 Q. So given that it was a night job, I'm 24 guessing that it was automated; is that right? Page 44 1 A. Yes. 2 Q. Going down to April 19th at 8:58 a.m., 3 it looks like there was another call to the 4 7272 number. 5 A. There was an attempt in the dialer. 6 Q. Okay. 7 A. But the "WIRELESS NOT ATTEMPTED" would 8 indicate to me that the dialer picked it up as 9 a cell phone number and did not complete the 10 call. 11 MR. VLAHAKIS: You're talking about 12 4/19? 13 MR. BURKE: 4/19 or 4/16. 14 MR. VLAHAKIS: Right. 15 BY MR. BURKE: 16 Q. Now, there are two dates associated 17 with that -- those two lines, those two rows. 18 On the left column, it says, "4/19/10," but in 19 the first row it says the call date is 20 4/16/2010. 21 Would it be accurate to say that 22 the call date was 4/16 and the date it was 23 loaded into the system was 4/19? 24 A. I don't think so. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 27 of 53 PageID #:99 12 (Pages 45 to 48) Page 45 1 Q. Can you tell which dialer recognized 2 that this was a wireless number and decided 3 not to call? 4 A. That was the Soundbite. 5 Q. Because of the "MGR"? 6 A. Right. 7 Q. What does "MGR" mean? 8 A. Manager. 9 Q. So would it be accurate to say that 10 every call that was attempted with the 11 designation "MGR" is a Soundbite call? 12 A. Yes. 13 Q. Going down to 4/22/2010 -- 14 MR. VLAHAKIS: Alex, do you want to 15 ask what "ACR" means? 16 MR. BURKE: Sure. 17 Q. Back up to 4/19, one last question. 18 At the end of the second row, 19 there's an "ACR" designation. Do you see 20 that? 21 A. Yes. 22 Q. What does that mean? 23 A. That's the designation of the route 24 that the account is located in, the collector Page 46 1 route. 2 Q. What does that mean? 3 A. The business is from a client such as 4 AT&T, and there's hundreds of thousands of 5 accounts. So one collector is not going to 6 work them all. They're going to be placed in 7 individual routes. So the ACR is a 8 designation of a route. So there might be 9 5,000 accounts in that route. 10 Q. And then as the dialer works a batch or 11 a campaign, if somebody answers a call, the 12 call is routed to a collector; is that right? 13 A. Yes. If the dialer -- the collectors 14 are plugged into the dialers and the dialers 15 are calling out, and if a contact is made with 16 an individual, then that comes back to a 17 specific collector. 18 Q. So is that what you're talking about 19 with the route? 20 A. Right. That's just saying that this -- 21 for purposes of paying bonuses to employees 22 and identifying who is selecting what. Each 23 employee has a certain code. So the ACR is a 24 router or a code for that route. Page 47 1 Q. For a collector? 2 A. In this particular case, this is what 3 they refer to as a house route. So it's not 4 associated with a specific collector. 5 You know, typically small balance 6 accounts of this type aren't associated with a 7 collector. Any collector could take the call. 8 A larger account with higher 9 balances that might be a more complex case 10 would typically be held with specific 11 collectors. 12 Q. So ACR is the house route? 13 A. Yes, one of them. 14 Q. Moving down, it looks like there is 15 another call on 4/22/2010 at 5:57 -- 16 A. Uh-huh, yes. 17 Q. -- a.m.; is that right? 18 A. The note that you have, the line that 19 says, "Call Dated: 4/21/10"? 20 Q. Yes. 21 A. I think that call date refers to a date 22 in the system where it was set up for the next 23 possible call, so that it doesn't represent 24 the actual call. Page 48 1 The next line, "Call details, 2 attempted answering machine, hung up," that 3 would be the line that is the actual call. 4 Q. So what's the date and the time on the 5 left side then? 6 A. You're talking about the entry that's 7 "WGR" with the call date 4/21/10, 1:01 p.m.? 8 Q. No. I'm just trying to figure out what 9 happened at 5:57 a.m. 10 MR. VLAHAKIS: Are you asking if 11 the call took place at 1:01 p.m., and the data 12 was entered in on 5:57 at a different date? 13 MR. BURKE: Yes. I am trying to 14 determine what the times and dates are. What 15 happened at these times and dates. 16 Q. So what happened on 4/22/2010 at 5:57 17 a.m.? 18 A. I'm not sure. Where do you see "a.m."? 19 Q. Well, if you look at all the dates, all 20 the times in that column, lots of them have 21 "P," and that one doesn't. So I'm 22 understanding that to be a.m. 23 A. Okay. 24 MR. VLAHAKIS: Are you asking if Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 28 of 53 PageID #:100 13 (Pages 49 to 52) Page 49 1 the call above that, Alex, it says 4/21/10, 2 1:01 p.m., are you asking if the call was made 3 if on 4/22 but it has been logged into the 4 computer at 5:57 in the morning? 5 MR. BURKE: Let's go off the record 6 for a second. 7 (A discussion was held off the record.) 8 BY MR. BURKE: 9 Q. All right. Looking at the call that 10 was attempted or that's listed at 4/22/2010 at 11 5:57 a.m., do you see that? 12 A. Yes. 13 Q. Okay. Can you tell me what happened at 14 5:57 a.m. on 4/22? 15 A. The note relative to the call attempt 16 was entered into the FACS system at that time. 17 Q. Would it be accurate to say that the 18 call date to the right of that where it says 19 4/21/2010 at 1:01 p.m. is when the call was 20 attempted? 21 A. Yes. 22 Q. And there was prior testimony that you 23 gave that may be inconsistent with this, but I 24 think maybe we had a misunderstanding. Page 50 1 A. Yes. I may have misunderstood the 2 question, but that is the case with the prior 3 one, also. 4 Q. Okay. So for the FACS system, 5 generally, when it says "Call Date" with any 6 of the three dialers, does that date and time 7 correspond with the date and time that the 8 call was attempted? 9 A. Yes. 10 Q. Or clarifying further, at least that 11 the call was sent to the dialer, because, for 12 example, with the Soundbite dialer in the 13 previous one, it was sent to the dialer on 14 4/16/2010 at 7:00 Central Daylight Time, but 15 there was no call attempted because it was 16 scrubbed? 17 A. That's correct. 18 Q. And it was too early? 19 A. Correct. 20 Q. Okay. Going down to May 3rd at 6:01 21 a.m. 22 MR. VLAHAKIS: Could we go off the 23 record? 24 MR. BURKE: Sure. Page 51 1 (A discussion was held off the record.) 2 BY MR. BURKE: 3 Q. Okay. Looking at 5/3, it looks like 4 there was call on 5/2 at 4:51 p.m. Do you see 5 that? 6 A. Yes. 7 Q. To the 7272 number? 8 A. Yes. 9 Q. There's a notation in parentheses. Can 10 you please decipher that for me? 11 A. Left message on machine. 12 Q. Now, was that an automated message? 13 A. Yes. It would appear it is, yes. 14 Q. How can you tell it was an automated 15 message? 16 A. Because the entry was done by WGR, 17 which is the Noble dialer, not done by an 18 individual. 19 Q. Skipping down four lines, it looks like 20 there was another call or another designation 21 for a call to the 7272 number by the Soundbite 22 dialer, but it was again aborted because of 23 the wireless scrub; is that correct? 24 A. Yes. Page 52 1 Q. So no call was made or attempted? 2 A. That's correct. 3 Q. Would it be accurate to say that 4 happened again on 5/12/2010, just a few lines 5 from the bottom? 6 A. Yes. 7 Q. Or actually on 5/11/2010 is the call 8 date, right? 9 A. Yes. 10 Q. Okay. Again, on 5/19 there's another 11 Soundbite designation where the scrub picked 12 up the cell and decided not to call on 5/18 at 13 10:48, right? 14 A. Yes. 15 Q. And down to the next "WGR" destination, 16 the Noble, it looks like the Noble dialer left 17 a message on plaintiff's machine on 5/22/2010 18 at 1:41 p.m.; is that right? 19 A. Yes. 20 Q. And it was an automated message? 21 A. Yes. 22 Q. The same thing on -- moving down, the 23 entry line is 6/1/2010, it looks like there 24 was a call on 5/29/2010 at 11:11? Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 29 of 53 PageID #:101 14 (Pages 53 to 56) Page 53 1 A. Yes. 2 Q. And it says, the notation for the 3 message is a little different. Would you 4 decipher that for me, please? 5 A. Left message with third party. 6 Q. What does that mean? 7 A. It means that somebody, not the 8 consumer, answered the phone and a message was 9 left. 10 Q. Now, how did the dialer know that it 11 wasn't the consumer? 12 A. Wait a second. What line is that 13 again? 14 Q. That's on 6/1. 15 A. Because it unattended messaging. If 16 somebody picks up the call, there is a message 17 that is still left. 18 I don't know. Let me think this 19 through. 20 It may be where the party hung up. 21 It asked, "If you are not Sharmaine Hunter, 22 please hang up the call." That's would be my 23 best understanding of how that could have 24 occurred. Page 54 1 Q. You mentioned unattended messaging a 2 moment ago. Would you explain in your own 3 words what unattended messaging is? 4 A. A phone call made by a dialer where a 5 message is left for the consumer that has the 6 account to call back to the office to discuss 7 the account. 8 Q. So "unattended" would mean that it was 9 a recorded message? 10 A. Yes. 11 Q. For an unattended message, would there 12 be anyone on Collecto's end of the call, a 13 human being, or is it just the recording? 14 A. It's a recording. 15 Q. Only? 16 A. Unattended, yes. That would be the 17 definition of "unattended" is that there is no 18 -- right. 19 Q. It looks like there is another call. 20 The line is 6/7/2010. The call date is 21 6/6/2010 at 2:00 p.m. Do you see that? 22 A. Uh-huh. 23 Q. Yes. 24 A. Yes. Page 55 1 Q. It appears that there may have been a 2 different dialer that dialed it: ANM. Do you 3 see that? 4 A. Yes. I see that, yes. 5 Q. Is that a different dialer? 6 A. I don't know the answer to that 7 question. 8 Q. We haven't seen the GC dialer yet. 9 Could that be the GC dialer? 10 A. No. 11 Q. What's the designation for the GC 12 dialer? 13 A. GC. 14 Q. Please don't write on those exhibits. 15 A. No. I have my own copy. 16 Q. Okay. 17 MR. VLAHAKIS: Alex, let me make a 18 suggestion. To see what those initials are, 19 let's maybe have the deponent look through the 20 notes and see where that pops up again, which 21 then may explain those initials. 22 MR. BURKE: Sure. 23 Q. Would you take a moment to just -- 24 A. It's the only entry -- Page 56 1 MR. VLAHAKIS: No, (indicating). 2 THE WITNESS: I don't have that on 3 my page. 4 MR. VLAHAKIS: Can we go off the 5 record. 6 (A discussion was held off the record.) 7 BY MR. BURKE: 8 Q. Okay. So for that one, we don't know 9 whether it was a dialer or what, but we do 10 know that there was a call on the date of 11 6/6/2010 at 2:00 p.m., right? 12 A. Yes. 13 Q. And we know that there was a message 14 left on the machine; is that right? 15 A. Yes. 16 Q. Okay. 17 MR. VLAHAKIS: Alex, what kind of 18 message? 19 Q. Do you know what kind of message was 20 left? 21 A. A TCPA-compliant message. 22 Q. Can you tell from these notes if it was 23 an unattended message or a live message? 24 A. I cannot, based on those initials, ANM. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 30 of 53 PageID #:102 15 (Pages 57 to 60) Page 57 1 The other entry with ANM is -- would mostly be 2 done through an individual, but I can't 3 answer. I'm not certain. So I'm not going to 4 guess. 5 Q. Okay. 6 MR. VLAHAKIS: Do you want us 7 during a break to find out? 8 MR. BURKE: Yes. Let's find out 9 what happened. 10 Q. It looks like on 6/8 -- 11 MR. VLAHAKIS: Could we take a 12 break so I could ask you something outside? 13 MR. BURKE: Sure. 14 (A recess was taken from 15 11:03 to 11:12 a.m.) 16 BY MR. BURKE: 17 Q. Could you please explain what the 18 initials ANM on 6/7/2010 are? 19 A. ANM is Andrew Morgan, who works on our 20 IT staff at the office and manages the 21 functions of one of the dialers. So that 22 entry would be based on the information in the 23 dialer. 24 Q. So this was also a dialer call and then Page 58 1 also an unattended message? 2 A. Yes. 3 Q. Do we know which dialer he works with? 4 A. I'm not sure, but I would assume it's 5 Noble. 6 Q. In any event, it's not the Soundbite, 7 right? 8 A. Right. 9 Q. It looks like, moving down on 6/7/08, 10 we have the Soundbite entry, and there was no 11 call attempted; is that correct? 12 A. Yes. 13 Q. Now, it looks to me like there are two 14 entries for that non-attempt, first at 13:53 15 and 13 seconds. Do you see that? 16 A. Yep. 17 Q. And then the second one has a "UA" 18 designation at the beginning of the 19 parentheses. Do you know what that means? 20 A. I don't, offhand. 21 Q. Okay. 22 MR. VLAHAKIS: Do you want John to 23 find out at the break? 24 MR. BURKE: If you can remember Page 59 1 that, that would be great. 2 MR. VLAHAKIS: Just the UA? 3 MR. BURKE: Yes. 4 BY MR. BURKE: 5 Q. Okay. Go on to Page 4. We have our 6 incoming call with the wrong number. 7 On the left-hand column there is an 8 "AP3." Is that a collector that received that 9 call or a live person? 10 A. That's a live person, yeah. 11 Q. Do you know who that person is? 12 A. Peggy Moriarty. 13 Q. Can you spell "Moriarty"? 14 A. M-O-R-I-A-R-T-Y, Moriarty. 15 Q. Is she a collector on the floor? 16 A. She was at that time. 17 Q. Is she not -- do you know where she is 18 now? 19 A. I don't. 20 Q. Is she employed by Collecto? 21 A. No. 22 Q. How many collectors does Collecto 23 typically have working the dialer on a typical 24 weekday? Page 60 1 A. I wouldn't have any way to know that 2 number. 3 Q. More than five? 4 A. Yes. Oh, yeah. 5 Q. You think more than a hundred? 6 A. Yes. 7 Q. More than 500? 8 A. No. 9 Q. Somewhere in the 100 to 500 range? 10 A. Would be a guess. 11 Q. Okay. 12 A. Yeah. 13 MR. VLAHAKIS: I object to the 14 form, as beyond the scope; and if you want a 15 closer number, because I think that's a broad 16 range, we could try to get that for you. 17 MR. BURKE: I'm just trying to get 18 a general idea. 19 MR. VLAHAKIS: Okay. 20 Q. Do you know how often debtors or 21 non-debtors call in -- I will start over. 22 Do you know generally how often 23 Collecto gets incoming calls telling it that 24 it's been calling the wrong number? Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 31 of 53 PageID #:103 16 (Pages 61 to 64) Page 61 1 A. No. 2 Q. Do you know how many phone calls 3 Collecto makes roughly per month with its 4 dialers? 5 A. I don't have that number, no. 6 Q. A million calls? 7 A. It could be, yeah. 8 Q. A lot of calls? 9 A. Oh, yeah. 10 Q. I notice that the designation in the 11 notes here are "WRG" and the pound sign or 12 number sign? 13 A. Uh-huh, yeah. 14 Q. It is different than the wrong number 15 suggestion in Exhibit 2, Page 3, for wrong 16 number, which is "WN." Can you explain that? 17 A. The training materials give the 18 collection staff guidance as to how to enter, 19 but there is a general discussion about making 20 sure that the information is accurate, making 21 sure that it can be understood, and the 22 collectors are not required to use only those 23 codes on that script. It's given to them as a 24 training tool. Page 62 1 Q. But the collectors are instructed to 2 use comprehensible abbreviations, right? 3 A. They should, yes. 4 Q. So when you look at an individual 5 debtor's FACS collection notes, you should be 6 able to tell if there was an incoming call 7 that notified Collecto that there was a wrong 8 number being called; is that right? 9 A. Yes. 10 Q. Moving down from the wrong number on 11 6/26/10, it says "3GPH." Do you see that? 12 A. On what date? 13 Q. 6/26. 14 A. Yep. 15 Q. Do you know what that means? 16 A. The "3GPH" would be "good phone 17 number." 18 Q. Do you know what the good phone number 19 was here? 20 A. No. 21 Q. Is there any way to tell? 22 A. No. I think the collector would look 23 in the notes or windows above to see if there 24 is a number that is there. Page 63 1 Q. In our four pages of notes here, do we 2 have those phone numbers that the collectors 3 would look up in the other window? 4 A. The entries in the notes, the other 5 call to numbers could be identified as 6 potential numbers. 7 Q. Are there different windows for this 8 debtor that we don't have here in these four 9 pages? 10 A. I'm not certain. I would assume this 11 would be all of the information on that 12 particular account, but I can't tell you if 13 there is an Experian window that might not 14 show on here, or any other attached type of 15 thing, but all of the notes and all of the 16 information should be on these notes. 17 Q. For example, there is a file return 18 from Experian on 4/13. 19 A. Yes. 20 Q. But I don't see the file or a credit 21 score. 22 A. Yep. I'm not exactly sure where that 23 information would appear. It may be -- it may 24 be a lookup that could be done separately, but Page 64 1 it's not on this. 2 Q. On 6/26 they found a good phone number. 3 On 6/28, it looks like CB put in an 4 instruction to begin collection; is that 5 right? 6 A. Yep. 7 Q. Now, the entry for the good phone 8 number is an automated entry, that's NG? 9 A. Uh-huh. 10 Q. Right? 11 A. Yes. 12 Q. So would that be a scrub that was 13 performed at that point? 14 A. It may be that, you know, changing one 15 number to a bad category could latch onto 16 another number to be called. 17 Q. What is the "SWEEP23GPH" there on the 18 6/26 entry? 19 A. I think "sweep" just indicates it was a 20 general tactic run on all of the accounts. 21 A sweep is normally just that there 22 is a certain tactic run, maybe to identify 23 good numbers, and then anything that has a 24 number in it is put into a certain Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 32 of 53 PageID #:104 17 (Pages 65 to 68) Page 65 1 disposition, indicating that there is a number 2 that could be called, and that would be any 3 number that doesn't have -- you know, hasn't 4 been identified as a bad number. 5 Q. So going back to our discussion about 6 the policies, practices and procedures for 7 avoiding violations of the TCPA between and 8 during January -- I'll start over. 9 Going back to our discussions of 10 the policies, practices and procedures that 11 Collecto had in place in 2009 to the present 12 regarding compliance with the TCPA. You 13 testified earlier that there were policies, 14 practices and procedures in three categories: 15 You testified that there are instructors at 16 Collecto that are instructed to only call 17 numbers that are supplied by the client with 18 the dialer; second is that if the number is 19 obtained through a skip trace or other means, 20 then there is a scrub performed; and you 21 testified that if there's a bad number, then 22 there's a code placed in the notes: B. 23 Is that correct? 24 A. Yes. Page 66 1 Q. Is there anything else during that time 2 period that Collecto did to ensure compliance 3 with the TCPA? 4 MR. VLAHAKIS: I object to the form 5 of the question. 6 A. Yes. 7 Q. Okay. What? 8 A. The training of the staff is an ongoing 9 process, and new staff are trained at various 10 intervals of time, managers are trained at 11 various intervals of time, and information 12 pertaining to compliance is distributed with 13 -- you know, to the staff at various points in 14 time, so the operations people are aware of, 15 you know, those areas that impact our business 16 and areas where we need to be compliant. So 17 it's an ongoing process. 18 Q. Are those training materials written? 19 A. Some of them are. 20 Q. Are there oral presentations that are 21 -- that have been made about compliance with 22 the TCPA? 23 A. Yes. 24 Q. Who has given those presentations? Page 67 1 A. Most likely the trainers that we have 2 or operations managers. 3 Q. Do you know whether they used notes or 4 other written materials to provide that 5 training? 6 A. Yes. 7 Q. Did they? 8 A. Yes. 9 Q. What written materials did they use? 10 A. They used a sheet that is called 11 "Calling a Consumer's Cell Phone Number." 12 Q. Is there anything else written that any 13 person instructing, regarding compliance with 14 the TCPA, has used? 15 A. The information in the FACS manual is 16 also -- in the manual, the FACS manual, 17 there's a section on phone flags. 18 MR. VLAHAKIS: You're looking for 19 it. That wasn't within the initial 20 production. 21 EXHIBIT NO. 5 MARKED 22 Q. I'm handing you what has been marked as 23 Exhibit 5. Is this document entitled "Calling 24 a Consumer's Cell Phone Number," is that the Page 68 1 document you referred to in your last answer? 2 A. Yes. 3 Q. And this is a one-page document? 4 A. Yes, it is. 5 Q. In the second paragraph it says 6 something about implied consent. 7 "If our client provides a cell 8 phone number to us because the consumer listed 9 it as a reference number at the time of the 10 transaction." Do you see that? 11 A. Yes. 12 Q. Would it be accurate to say that 13 Collecto relies on its clients -- I'll start 14 over. 15 Cell phone numbers are sometimes 16 provided to Collecto from Collecto's clients, 17 right? 18 A. That's correct. 19 Q. Does Collecto know when it receives a 20 phone number from its client whether the 21 consumer listed it as a reference number at 22 the time of the transaction? 23 MR. VLAHAKIS: I object to the form 24 of the question. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 33 of 53 PageID #:105 18 (Pages 69 to 72) Page 69 1 A. We don't know what time it was 2 provided, but we know it was provided at some 3 point on the account. 4 Q. By the consumer to the client? 5 A. The assumption is if the number is 6 being provided to us with the account, the 7 only way the client is going to get that 8 information is getting it from the consumer. 9 Q. How does Collecto know that the numbers 10 it receives from its clients were given 11 directly from the consumer to the client? 12 A. We have no absolute way of knowing 13 that, but the clients will tell us the only 14 way they're going to get the numbers is from 15 the consumer. So based on their statement to 16 us, we assume what they're telling us is 17 accurate. 18 Q. Which statement to you are you 19 referring to? 20 A. That the numbers that they enter have 21 been obtained from the consumer, either at the 22 time the account was set up, the transaction 23 was done, or at a subsequent time when the 24 information was provided for a contact number Page 70 1 by the consumer. So if there was a need for 2 communications, the information would be 3 available in the account. 4 Q. Is this something that the client tells 5 Collecto directly, or is it an assumption that 6 Collecto makes through receipt of these 7 numbers? 8 A. No. The customers tell us that these 9 were the calling numbers on the account. They 10 represent to us that these are good numbers to 11 call. 12 Q. So with respect to the Sharmaine Hunter 13 account, was there a representation from AT&T 14 that the 7272 number was listed by the 15 consumer as a reference number at the time of 16 the transaction? 17 A. Yes. 18 Q. Where did that happen? 19 A. Where did that happen? We confirmed 20 this with AT&T, and their manager, Mary 21 Fornaire, said, "At the point of new service 22 or any time during the lifetime of this 23 account the process is to ask the customer for 24 a current number to reach them outside of the Page 71 1 home number. If the AT&T rep gets such a 2 number, the rep updates the customer account. 3 I cannot state explicitly what 4 occurred in this account, but the rep would 5 not have known about this number without 6 asking for it and getting it from the 7 consumer." 8 Q. What is the date of that communication 9 that you just read from? 10 A. Tuesday, October 12, 2010. 11 Q. Now, is there anything -- that's the 12 day before yesterday? 13 A. Yes. 14 Q. Okay. Is there anything before that 15 email that made Collecto believe that the 16 phone numbers it was receiving from AT&T were 17 provided as a reference number by the debtor 18 at the time of the transaction? 19 MR. VLAHAKIS: I object to the 20 form. 21 Are you asking just with regard to 22 this Sharmaine Hunter account or the 23 representation that he testified to that our 24 client tells us they have this information Page 72 1 generally? 2 MR. BURKE: Let's talk about 3 Sharmaine first. 4 Q. So is there anything other than this 5 email that Collecto relied upon in calling 6 this cell phone number a bunch of times? 7 A. Well, Collecto relies on the fact that 8 it has a relationship with AT&T for many years 9 and has handled several of hundreds of 10 thousands of accounts for AT&T, and the 11 practices and the processes and procedures are 12 very common and familiar with us. 13 So this has been standard practice 14 for any number of years that we've been doing 15 business with AT&T, maybe 10 years. So there 16 is nothing new or different about the 17 Sharmaine Hunter account than any of the other 18 three million accounts they might have given 19 to us. 20 Their practice internally of putting 21 information on the accounts is pretty much a 22 standard-industry-type practice. So we rely 23 upon their information because it's never been 24 their intent to provide us with bad phone Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 34 of 53 PageID #:106 19 (Pages 73 to 76) Page 73 1 numbers. 2 Q. There's a difference between a bad 3 phone number and a phone number that was 4 provided by the consumer, right? 5 MR. VLAHAKIS: I object to the 6 form. 7 A. No. 8 MR. VLAHAKIS: It's vague and 9 confusing. 10 A. They could be the same. 11 Q. They could be the same, but they're not 12 necessarily the same, right? 13 A. That's true. 14 Q. So would it be accurate to say that 15 Collecto relies upon this information received 16 from the clients, but it might not necessarily 17 be the case that the phone number was provided 18 by the consumer as a reference number at the 19 time of the transaction? 20 A. We have no knowledge of that. 21 All we know is that the number was 22 provided to AT&T. They entered it on the 23 account, and they sent us the number with the 24 account. Page 74 1 Q. You don't know for sure that the number 2 was provided to AT&T, right? 3 MR. VLAHAKIS: I object to the form 4 of the question. It misstates what he said. 5 He gave two scenarios earlier. One 6 was when it was set up, and one later when 7 it's time to communicate with the consumer 8 that that number is being provided to the 9 client. 10 MR. BURKE: My question stands. 11 Would you please read it? 12 (The record was read: Q. You 13 don't know for sure that the 14 number was provided to AT&T, 15 right?) 16 A. Yes. 17 Q. You do know? 18 A. No, I don't know for sure, because I 19 can't know anything for sure. How can I be 20 sure you're Alex Burke? I have no way of 21 verifying that. You didn't show me your ID. 22 Am I certain that the number came 23 from AT&T? Yes, I am, because it's on their 24 screen and system. Page 75 1 They provided us with that number. 2 In the past history of handling accounts, 3 they've always given us accurate and good 4 numbers. 5 If that information is inaccurate, 6 or they were given incorrect information, 7 which is the possible reason why this 8 occurred, then it's a possibility, but we 9 don't know. We can only speculate. 10 MR. VLAHAKIS: Can we go off the 11 record? 12 MR. BURKE: I'm in the middle of 13 this. 14 MR. VLAHAKIS: Off the record, 15 though. 16 (A discussion was held off the record.) 17 BY MR. BURKE: 18 Q. Do you think it's possible Sharmaine 19 gave the wrong phone number to AT&T? 20 A. I think it's possible, certainly. 21 Q. I mean, based on the email that you 22 read, it seems like AT&T doesn't know for sure 23 where the number came from itself? 24 A. Unless the person sending the message Page 76 1 was the person that wrote the information 2 down, I don't think she's going to say with a 3 hundred percent degree of certainty that that 4 was the case. 5 So it's -- you know, all she knows 6 is what is in their system, and the reps take 7 the information from the consumer, and the 8 consumer is applying for service, and they 9 entered that information on the system. 10 If the rep put a wrong digit in it, 11 or the person made up the number to give to 12 AT&T, which is, you know, a possibility, then, 13 you know, that may have been why the number 14 appeared there. 15 You know, my guess is that the 16 consumer made up a number, and it happened to 17 be your client's number. 18 Q. So we just don't know? 19 A. We don't know for a hundred percent, 20 sure. All we know is AT&T had this number in 21 their system, and that is the number they 22 gave, representing that this is a valid number 23 that we could contact the consumer at. 24 Q. And just going back, the representation Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 35 of 53 PageID #:107 20 (Pages 77 to 80) Page 77 1 that this is a valid number that the consumer 2 gave to AT&T, that representation is based on 3 a course of dealing; is that right? 4 A. Well, based on our past experience of 5 dealing with them, and then it was reconfirmed 6 when we contacted their manager, the OCA 7 manager for AT&T who gave us her information 8 once she looked up the account. 9 Q. Go ahead. 10 A. She verified what the information was 11 that they gave us. 12 Q. I mean, but she hedged a little bit. 13 She said something like I can't tell you 14 explicitly, right? 15 A. She used waffle words, as I refer to 16 them. 17 Q. Yes. 18 A. So, you know, like anything else, we 19 can say things with a high degree of 20 certainty. Unless you do it yourself, you 21 can't say with absolute certainty. 22 She wasn't the person who did it. 23 She's speaking as a manager would, in all 24 probability, or most likely, in using the Page 78 1 waffle words that, you know, where she could 2 say, well, I told you that the probability is 3 there, but that's one-tenth of one percent 4 that it didn't happen the way things normally 5 happen. 6 Q. So as I understand it, the process that 7 Collecto had during '09 and to the present for 8 sifting out debtors where it was a wrong 9 number is that they have a process by which 10 they designate wrong numbers in the collection 11 notes; is that right? 12 A. Yeah. That is one process, yes. 13 Q. Are there any other processes by which 14 wrong numbers are designated? 15 A. Some of the skip trace. If new numbers 16 are identified as being valid to a consumer, 17 the other numbers may be deleted from the 18 record so the numbers are not called. 19 We may contact the consumer who says 20 here's my best number to reach me. So that 21 number is put into the system as a focus 22 point, and the prior numbers that may have 23 been provided by the client may have been 24 deleted, you know, which is particularly true Page 79 1 with phone services, because people, you know, 2 once they stop paying their bills, they tend 3 not to use the phone service, and there's 4 going to be a new number to contact them. 5 Q. So doesn't the process of -- I will 6 start that question over again. 7 I understand that the automated 8 script for the automated messages that 9 Collecto uses says something like if you're 10 the wrong person, please call us and let us 11 know; is that right? 12 A. That's correct. 13 Q. Is it your understanding that some 14 people do that sometimes, call Collecto and 15 tell them that's it's the wrong number? 16 A. Yes. 17 Q. Do you have any idea how often that 18 happens? 19 MR. VLAHAKIS: Objection. 20 Foundation. 21 A. I don't know how often it happens. 22 Q. Would it be reasonable to assume that 23 it happens more than 10 times a day out of a 24 million calls? Page 80 1 MR. VLAHAKIS: Objection. This is 2 beyond the scope of the deposition. We were 3 not noticed that you were attempting to have a 4 deponent to speak for Collecto in 5 hypothesizing about the amount of times 6 someone may call in response to the voicemail 7 message that you just described. 8 A. I have no way of knowing the number. I 9 don't really want to guess at a number because 10 I'm not supposed to guess. 11 Q. If a consumer calls Collecto after 12 having received a call from the dialer, isn't 13 it already too late when they receive the 14 message that says please call us to be taken 15 off our list? They already received the call, 16 right? 17 A. They received a message, that's 18 correct, and if the information is incorrect 19 or we have the incorrect person when they call 20 in, then we want to note that in the account 21 so we don't make the same call again. 22 Q. So it is -- it's not a perfect system, 23 but it's a system that if somebody calls in it 24 will stop them from getting more calls; is Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 36 of 53 PageID #:108 21 (Pages 81 to 84) Page 81 1 that right? 2 MR. VLAHAKIS: I object to the 3 form. 4 A. The system is perfect, but, you know, 5 the people that are involved in the system, 6 you know, may not follow the system. 7 Q. Well, take, for example, Domi Powell, 8 the plaintiff in this case. He didn't give 9 his phone number, hypothetically, he didn't 10 given his phone number to AT&T. He never 11 consented to be called. He got a few calls, 12 and he called and requested to be taken off, 13 but the damage was already done, he got the 14 calls, right? 15 MR. VLAHAKIS: I object to the 16 form. 17 A. I don't see what the damage is. There 18 is no damage. 19 Q. He got the calls. I'm not asking you 20 to concede that there was damage. 21 A. I receive wrong phone numbers, also. 22 Why? He got wrong phone numbers not intended 23 for him, which happens to most people. 24 Q. And given the way the system is set up, Page 82 1 that probably happens -- that probably has 2 happened more than once in the last four 3 years; would you agree? 4 A. Probably has happened more than once. 5 I would imagine with our 10 to 15 million 6 phone calls per year that there is a 7 possibility that that might have happened more 8 than once. 9 Q. Okay. Other than the testimony that 10 you've already given today -- I will start 11 that question over. 12 We have talked about some of these 13 issues, but I'm going to ask this question 14 straight on. 15 As to persons that Collecto called 16 using its dialer, any of its three dialers, 17 between June 15th of 2006 and June 6th of 18 2010, where the person at any time notified 19 Collecto that the calls were in error or asked 20 to stop the calling because of the wrong 21 number, please explain to me any prior express 22 consent that Collecto claims any of those 23 persons provided to receive cellular phone 24 calls on their cell phones using the dialers Page 83 1 or the prerecorded messages? 2 MR. VLAHAKIS: I object to the 3 form. You're asking him to add to whatever he 4 discussed, or you're asking him to summarize 5 it? 6 THE WITNESS: Summarize it. 7 MR. VLAHAKIS: You lost me halfway 8 through it. We got Topic 4 here. 9 MR. BURKE: I want to stick with 10 this. 11 BY MR. BURKE: 12 Q. We have discussed a bunch of compliance 13 procedures and policies and maybe they apply. 14 Maybe they don't. I'm asking the direct 15 question on the fourth topic, provide the 16 prior express consent evidence. 17 MR. VLAHAKIS: I object. The 18 phrase "prior express consent," which is not 19 defined in this topic, if you want to define 20 it or ask my client if he has an understanding 21 of what you mean, that might be better to 22 launch into this. 23 Q. Let's just use "consent." Explain to 24 me how those, any of those people on Topic 4 Page 84 1 consented to receive autodialed or prerecorded 2 messages calls? 3 A. Okay. In order for us to work an 4 account we have to have information provided 5 by our client, who is the creditor. 6 The creditor assembles information 7 in their data file provided by the consumer 8 which is necessary to open up and set up an 9 account. 10 When the account is placed for 11 collection, the information that the creditor 12 has is transmitted to us as a way of us being 13 able to contact the consumer via the mail or 14 phone in order to effectuate a collection of 15 the account. 16 The information from the client was 17 obtained from the consumer; and based on the 18 fact that the client is providing us with 19 numbers that they have been provided from the 20 consumer, then we assume that the consumer 21 willingly provided them with the numbers, and, 22 in fact, agreed that that would be a contact 23 number for any information or any action or 24 any communication that would be required on Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 37 of 53 PageID #:109 22 (Pages 85 to 88) Page 85 1 the account. 2 So the consumer provides the 3 information to our client, and then based on 4 that -- and that information conveyed to us, 5 we then enter that into our system for 6 purposes of contacting the account, and we 7 would assume that if the consumer did not want 8 to be contacted and did not want to give 9 consent, they would not have provided the 10 number, or they would have contacted the 11 client and told them that the number was no 12 longer valid or they no longer wanted to be 13 contacted at that number, and that's the way 14 our business operates. 15 That's the way I'm sure every other 16 collection agency operates, and that's the 17 only information that we can rely upon is the 18 representation from our clients that these are 19 good and valid numbers for their customers. 20 Q. I have two followup questions. One has 21 to do with the portion of this question that 22 says that these are wrong numbers, and the 23 second has to do with our discussion earlier 24 about -- that there's maybe an understanding Page 86 1 but there's no explicit statement one way or 2 another about whether the numbers were 3 provided by the consumer to the client. So 4 let's hit the wrong number portion of this 5 first. The topic excludes any persons for 6 whom the number was correct. 7 Does Collecto contend that it had 8 prior expressed consent from persons who were 9 called, where those persons did not provide 10 the phone number to the client? 11 MR. VLAHAKIS: I object to the 12 form. You lost me on that one. 13 A. Yeah, I would have to hear that 14 question again. 15 MR. VLAHAKIS: Why don't you ask 16 how this relates to your client and expand it 17 out? 18 MR. BURKE: No. Read it back. 19 (The record was read Q: I have 20 two followup questions. One has 21 to do with the portion of this 22 question that says that these 23 are wrong numbers, and the 24 second has to do with our Page 87 1 discussion earlier about -- that 2 there's maybe an understanding 3 but there's no explicit 4 statement one way or another 5 about whether the numbers were 6 provided by the consumer to the 7 client. So let's hit the wrong 8 number portion of this first. 9 The topic excludes any persons 10 for whom the number was correct. 11 Does Collecto contend that it 12 had prior expressed consent from 13 persons who were called, where 14 those persons did not provide 15 the phone number to the client?) 16 MR. VLAHAKIS: I object to the form 17 of the question. Incomplete hypothetical. 18 Let me see if I understand -- 19 MR. BURKE: Please, no. 20 MR. VLAHAKIS: Do you understand 21 the question? 22 THE WITNESS: Yes. 23 MR. VLAHAKIS: Okay. 24 A. Collecto works for various clients, and Page 88 1 Collecto is an agent for those clients, 2 working to do receivables management, 3 collection work for the clients. 4 When the client provides us with the 5 information in their file, we assume that the 6 information that they have provided to us is 7 their best knowledge of what the correct 8 information is on an account. 9 They represent to us that they're 10 providing us with their accurate information 11 from their files; and under that 12 representation, we proceed forward, until we 13 find that the information may not be accurate. 14 If the information is not accurate, 15 then we take the steps to correct that so that 16 the people who may be contacted incorrectly or 17 inappropriately will then be deleted from our 18 records, and the problem will be corrected. 19 So we act, you know, on behalf of 20 our clients and contact their customers at 21 their direction based on the information that 22 they provided to us. 23 Q. Does Collecto contend for those 24 incorrect or improper phone calls that were Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 38 of 53 PageID #:110 23 (Pages 89 to 92) Page 89 1 made to people within this category were made 2 with the prior expressed consent of the 3 recipient? 4 MR. VLAHAKIS: I object to the form 5 of the question. We're assuming -- it's an 6 incomplete hypothetical. I understand your 7 situation where your client -- 8 MR. BURKE: It's not a 9 hypothetical. It's a real question. 10 MR. VLAHAKIS: I understand you 11 showed us bills showing that your client had 12 that phone number that was owned by his mom or 13 whatever, and the assumption is that that call 14 happened in that time period and did not go to 15 the right person. 16 Topic 4 is sort of expanding that 17 scenario to an assumption that this happened 18 on other occasions, where somebody has called 19 in, and exactly like your client's scenario, 20 and we're assuming that there's proof that the 21 person is calling in and saying I'm John Doe, 22 and you called for Jane Doe. I'm not that 23 person. 24 I'm not sure, absent further Page 90 1 evidence, we can assume that the person 2 calling in saying it's the wrong number is 3 truly the scenario that your client is in. I 4 don't dispute your recitation of the fact that 5 your client is the wrong person. 6 MR. BURKE: Your objection has to 7 do with some application to this case. My 8 question is my question. I just want an 9 answer to my question. 10 THE WITNESS: Repeat his question 11 again. 12 (The record was read: Q. 13 Does Collecto contend for 14 those incorrect or improper 15 phone calls that were made 16 to people within this 17 category were made with the 18 prior expressed consent of 19 the recipient?) 20 A. In the context of the client providing 21 us with the information on the consumer and 22 the -- and the information being valid as to 23 it being provided to them, you know, we assume 24 that consent has been granted, because the Page 91 1 client is providing us with the numbers which 2 they would only obtain from the consumer. 3 MR. VLAHAKIS: This question was 4 different, though. 5 You're asking -- Alex, can I 6 simplify -- does Collecto believe that it had 7 express consent from anybody that has called 8 Collecto and said you have the wrong number, 9 and it's the recipient of the call, which may 10 be different than the consumer that they were 11 calling. Is that what you are saying? 12 MR. BURKE: I think the answer was 13 fine. 14 MR. VLAHAKIS: Okay. 15 Q. Why does Collecto use a dialer? 16 A. In order to increase the number of 17 contacts it makes with the customers. 18 Q. To collect debt more efficiently? 19 A. The more people you speak to the more 20 likely you are to make collections. 21 Q. Is Collecto entitled to use a dialer? 22 MR. VLAHAKIS: I object to the 23 form. Beyond the scope of the deposition 24 notice. Calls for a legal conclusion as well. Page 92 1 A. Are we entitled? I mean, I don't 2 understand your question. Could you rephrase 3 it? 4 Q. Yes. A dialer is specific 5 technological equipment that is regulated, and 6 it's possible to make a phone call without a 7 dialer. 8 So my question is, is there 9 entitlement that Collecto has to use a dialer? 10 A. I don't think there is an entitlement. 11 It's just a legal right, like any other 12 business entity that's a valid corporation, 13 that there's no laws or regulations that 14 preclude Collecto or any other collection 15 agency or any number of creditors, the U.S. 16 government, state, local governments that use 17 automated dialers as part of the communication 18 process with their customers, clients or 19 residents. 20 Q. Is Collecto required to use a dialer? 21 MR. VLAHAKIS: I object to the form 22 of the question. 23 A. Required by whom? 24 Q. By anybody. Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 39 of 53 PageID #:111 24 (Pages 93 to 96) Page 93 1 MR. VLAHAKIS: Beyond the scope. 2 Q. That you know of? 3 A. You know, the clients that we have will 4 inquire as to what our processes are, and 5 they, based on the representation as to what 6 our processes are, will make a decision as to 7 whether they want to hire us or somebody else. 8 So industry norm is that an agency 9 trying to contact consumers is going to 10 utilize a dialer to enhance and improve their 11 results. 12 Q. If Collecto scrubbed every phone call 13 before it made the phone call to a cell, do 14 you think that it would be able to avoid 15 calling wrong numbers using its dialer? 16 MR. VLAHAKIS: I object to the 17 scope. Beyond the scope of the 30(b)(6) 18 notice. 19 A. It may reduce the number. It won't 20 eliminate the number. 21 Q. Let's go back to the second prong of 22 what I mentioned a few minutes ago about the 23 understanding between Collecto and its clients 24 as to consent, specifically referring to the Page 94 1 fourth topic and your answer to the question 2 about the fourth topic. 3 I think you testified earlier that 4 there was no explicit understanding between 5 Collecto and its clients about where the phone 6 numbers come from that the clients transmit to 7 Collecto; is that correct? 8 MR. VLAHAKIS: I object to the 9 form. 10 A. No. 11 Q. Explain. 12 A. Well, you said "explicit 13 understanding." There is no explicit 14 understanding where the numbers come from. 15 There is an understanding that numbers were 16 provided by the customer of our client, and 17 that the information is obtained when they set 18 up the account, you know, with the -- our 19 client. 20 Q. Does Collecto take steps to ensure that 21 this is the case for each client? 22 A. Once we've started working the business 23 of a client, if there's some aspect of their 24 business that is not valid, where information Page 95 1 that they are providing is not valid for some 2 reason, we would then communicate back to the 3 client to straighten out if it was something 4 that came -- you know, if there was charges or 5 something in there that shouldn't be part of 6 the file, we would communicate back to the 7 client. Our business with AT&T has been 8 ongoing for 10 years or more. It's not 9 anything new or different. It's the same 10 process. 11 Q. Did AT&T ever, except for this email on 12 Tuesday, tell Collecto explicitly these are 13 all numbers, phone numbers that we got from 14 our clients, from our customers? 15 MR. VLAHAKIS: I object to the 16 form. Beyond the scope of the 30(b)(6) 17 notice. 18 A. You're asking me if there was a point 19 in time when AT&T, which is a corporation, 20 told us that these were the numbers? 21 We have been instructed by them that 22 these are the numbers that they have in their 23 system that are valid numbers for the 24 consumer, at least at the time that they put Page 96 1 the information in their system. 2 There is no guarantee that numbers 3 don't change or people move and numbers get, 4 you know, repositioned with somebody else, but 5 you know, the information they provide us is 6 that what they believe they have in their 7 records is accurate information. 8 Q. The critical distinction is not whether 9 it's accurate information. The critical 10 distinction is whether the customer gave the 11 client that number, that's what my question 12 is. 13 MR. VLAHAKIS: Objection. Asked 14 and answered. 15 THE WITNESS: Yeah. 16 Q. You can answer again. 17 A. The client tells us that the source of 18 the numbers that are in the file were provided 19 by the consumer, that's what the client tells 20 us. 21 Q. When did AT&T tell you that? 22 A. When did they tell us that? 23 Q. Yes. 24 A. I can't give you the exact date and Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 40 of 53 PageID #:112 25 (Pages 97 to 100) Page 97 1 time. 2 Q. When did any other -- who would know 3 the exact date and time when AT&T told 4 Collecto that? 5 A. There wouldn't be a person that I could 6 think of that might have that knowledge as to 7 when that specific information is provided. 8 It may be part of the contract that they are 9 going to provide us with information, valid 10 information, but I can't give you the specific 11 date and time. 12 It's been the ongoing practice for 13 more than 10 years with this client. So it 14 isn't a new revelation. It isn't something 15 they just thought up. It's been standard 16 practice for numerous years. 17 Q. I'm not quibbling that they gave you 18 numbers that they thought were valid. I'm 19 asking what direct knowledge Collecto has as 20 to whether the customers gave these phone 21 numbers to AT&T or any other creditor -- 22 A. We have no direct knowledge. 23 Q. Going back to the B designation in the 24 collection notice, you testified earlier that Page 98 1 the B is used to designate the wrong numbers; 2 is that correct? 3 A. Yes. 4 Q. Are there other designations that the B 5 is used for? 6 A. No. 7 Q. It's not used to designate a 8 disconnected number? 9 A. If it's a bad number, it could be used 10 for that. 11 Q. Okay. That's what I'm trying to figure 12 out, what it's used for. 13 A. Uh-huh. 14 Q. So is the B used for disconnected 15 numbers? 16 A. It's used for any bad number, which 17 could include disconnected. 18 MR. VLAHAKIS: This is what he's 19 reading off of (indicating). 20 Q. So other than disconnected numbers, 21 unreachable numbers or wrong numbers, is there 22 any reason that the B designation would be 23 used? 24 A. I can't think of one. Page 99 1 Q. Well, as to this issue, you're 2 testifying for the corporation -- 3 MR. VLAHAKIS: Objection. Beyond 4 the scope of the 30(b)(6) notice. 5 Q. So I'm asking -- 6 MR. VLAHAKIS: I know what you are 7 asking. It's not particularly identified as a 8 topic to say please have Collecto identify any 9 and all reasons for calling the wrong number, 10 including your clarification of the 11 interrogatory answer, I believe it's 4 or 3. 12 You talk about in Topic 2 the 13 notetaking process for incoming calls, 14 including requests not to be called and 15 defendant's policies, practices and procedures 16 in deciding what numbers to call and not call, 17 that's Topic 3. 18 I don't see it there, the prior 19 consent. I don't see it there. 20 MR. BURKE: Okay. 21 MR. VLAHAKIS: I am willing after 22 this deposition to go through that with you 23 pursuant to 37.2 in more detail so we can 24 clarify that question. Page 100 1 MR. BURKE: I want a final answer 2 on that question. 3 MR. VLAHAKIS: Fair enough. Save 4 it for another day. 5 (Witness and counsel confer.) 6 MR. VLAHAKIS: Oh, this reminds me, 7 Alex, that you may want to go through this 8 (indicating). 9 MR. BURKE: Let's go off the 10 record; is that okay? 11 MR. VLAHAKIS: Yes. 12 (A discussion was held off the record.) 13 BY MR. BURKE: 14 Q. I'm looking at the third topic on 15 Exhibit 1. We've talked about some policies, 16 practices and procedures about what numbers 17 Collecto calls and does not call using its 18 dialers and prerecorded messages. 19 As I understand it, phone numbers 20 that Collecto receives from a skip trace 21 service are scrubbed before they're called on 22 the autodialer; is that correct? 23 A. That's correct. 24 Q. Are there any other phone numbers or Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 41 of 53 PageID #:113 26 (Pages 101 to 104) Page 101 1 types of phone numbers, categories, that are 2 scrubbed before they're called using the 3 dialer? 4 A. Yes. I think I previously testified to 5 the fact that a scrub is used for bankrupt 6 accounts, deceased accounts. 7 Q. Scrub for a cell phone? 8 A. No. Other than the Soundbite, that's 9 the... 10 Q. So numbers that come from skip traces 11 are sent to Soundbite to scrub for cell 12 phones, right? 13 A. Yes. 14 Q. Are there any other types of phone 15 numbers that are sent to the Soundbite dialer 16 in order to scrub for cell phones? 17 MR. VLAHAKIS: I object to the 18 form. 19 A. I don't understand your question. 20 MR. VLAHAKIS: In this case, it was 21 this campaign. 22 A. All the numbers are sent to Soundbite, 23 and Soundbite determines those that are cell 24 phone numbers. Page 102 1 Q. Okay. 2 A. So... 3 Q. Once the Soundbite dialer determines a 4 certain number is a cell phone number, it 5 makes that notation in the notes; doesn't it? 6 A. Yes. 7 Q. Okay. But then sometimes, as with what 8 happened with Mr. Powell, the cell phone 9 number is called after a determination that 10 the number is a cell phone number by a 11 different dialer; is that correct? 12 A. Yes. 13 Q. Would it be accurate to say that all 14 phone numbers are called using all the 15 dialers, generally, until B is placed on the 16 number? 17 MR. VLAHAKIS: Can you ask it 18 again? 19 (The record was read: Q. 20 Would it be accurate to say that 21 all phone numbers are called 22 using all the dialers, 23 generally, until B is placed on 24 the number?) Page 103 1 MR. VLAHAKIS: I object to the 2 form. 3 A. No. 4 Q. Okay. Explain why that's not accurate? 5 A. Because all numbers are not necessarily 6 put into the dialer. Only selected pools are 7 put into the dialer. 8 Q. And how are those pools selected? 9 A. There's criteria that's established 10 relative to the accounts. So that, for 11 example, if the account was a very low balance 12 account, it might not be called, because it's 13 an account that's not -- there's not a value 14 to working the account. 15 If any other information that were 16 to come back that the -- you know, that the 17 account was not a valid account, then it might 18 be excluded from the pool. 19 I mean, there's a circumstance where 20 low credit scores would indicate persons that 21 are unable to pay, with numerous collection 22 accounts, would get low credit accounts. 23 They would be excluded from the 24 program. They try to selectively tailor the Page 104 1 accounts contacted to be accounts that have a 2 prior probability of actually being able to 3 pay the account. 4 Q. So when a pool is put together, I would 5 imagine like a manager or somebody, not just a 6 debt collection person on the phone, some sort 7 of manager puts the pool together based on 8 criteria; is that right? 9 A. That's correct. 10 Q. The pool probably says, all right, take 11 these -- people that fall into this criteria 12 based on the credit scores and other criteria, 13 call all these people's primary phone based, 14 you know, on this particular criteria; is that 15 accurate? 16 A. That's accurate, yeah. 17 Q. And then the three dialers work in 18 concert on that particular request, is that 19 right, or do the dialers have separate 20 campaign pools? 21 A. They have separate pools. 22 Q. Okay. So one pool might go to the 23 Soundbite, and the Soundbite dialer is the 24 only dialer who calls having to do with that Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 42 of 53 PageID #:114 27 (Pages 105 to 108) Page 105 1 pool unless they happen to be part of another 2 pool that's part the Noble dialer? 3 A. The accounts can start out in one pool, 4 and they re-modify the pool to exclude 5 accounts before it is sent to another type of 6 a dialer. 7 So the account doesn't stay in one 8 category throughout the life of the account. 9 It can be moved to different categories, 10 depending upon, you know, what the tactics 11 are. 12 Q. Because with Mr. Powell, he started at 13 the Noble dialer, and then he went to the 14 Soundbite, and then back and forth between 15 Noble and Soundbite? 16 A. Yeah. 17 Q. So would that be the same campaign, or 18 are those separate campaigns for the two 19 dialers? 20 A. Separate campaigns. 21 Q. Is there a way to tell what campaign he 22 was part of, these calls were part of? 23 A. I don't know. 24 MR. VLAHAKIS: That's beyond the Page 106 1 scope as well. 2 Q. Other than -- I will start over and 3 explain where I'm going with this. 4 I understand that phone numbers 5 that Collecto receives from a skip trace 6 company are typically scrubbed by the 7 Soundbite dialer before they're called, right? 8 A. Yes. 9 Q. Are telephone numbers that are received 10 from a skip trace ever called by the Noble or 11 the GC dialer? 12 MR. VLAHAKIS: I object to the form 13 of the question. Beyond the scope. 14 A. I'm not certain. 15 Q. Okay. How does Collecto figure out 16 which telephone numbers it should call using 17 its dialer and which telephone numbers it 18 should call not using its dialers? 19 A. The numbers that are in the top line of 20 the account that are in those fields, the 21 "can be reached" number is usually the 22 targeted number for the purposes of the 23 dialer, because that's been determined to be 24 the best calling number. Page 107 1 If a different number is obtained, 2 it would be entered into that field so that 3 the call would be directed. 4 Q. Now, is that the case regardless of 5 whether the number was received from the 6 client or whether it was received from a skip 7 trace? 8 MR. VLAHAKIS: I object to the form 9 of the question. 10 A. Yeah, I'm not sure. Because the skip 11 trace numbers go into another field, and it 12 may be the case where the dialer can pick up 13 something from that field if it's programmed 14 correctly. I don't know what the actual 15 programming is. 16 MR. VLAHAKIS: (Indicating). 17 THE WITNESS: That's not in every 18 case, though, sorry. 19 Q. Are phone calls ever manually dialed? 20 A. Yes. 21 Q. How does that look in the notes when 22 that happens? 23 A. The collector's initials would be in 24 there, and then the number dialed would be Page 108 1 entered. 2 Q. Now, we have a case here where -- 3 Page 3 of Exhibit 3, on 6/7/10, do you see 4 that? 5 A. Uh-huh. 6 Q. Yes? 7 A. Yes. 8 Q. We've got someone's initials? 9 A. Yep. It was one of the dialer 10 managers. 11 Q. Right. A dialer manager. 12 Who are the other persons, the 13 dialer managers whose initials might appear to 14 show that it was a dialer that made the call, 15 do you know? 16 A. I think you've got most of them on 17 here. You know, you got the WGR and MGR. 18 MR. VLAHAKIS: Are you asking him 19 if he knows who those people are? 20 MR. BURKE: No. I want to know 21 what designations there may be. 22 A. And I found out that that other ANM is 23 16, 17 people in the IT department. So I 24 don't always know who all of them are. The Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 43 of 53 PageID #:115 28 (Pages 109 to 112) Page 109 1 nj, the DEB, those are all IT-related. 2 MR. BURKE: All right. I have 3 nothing more at this time. Because I got some 4 of these documents after I had left, I'm going 5 to leave the deposition open with the 6 possibility of reconvening, if appropriate. I 7 hope it's not appropriate or necessary. 8 MR. VLAHAKIS: Fair enough. Did 9 you go into that Topic 5 at all? 10 MR. BURKE: Yes. 11 MR. VLAHAKIS: We will reserve 12 signature. 13 (The deposition was adjourned at 12:52 p.m.) 14 15 16 17 18 19 20 21 22 23 24 Page 110 1 CERTIFICATE 2 COMMONWEALTH OF MASSACHUSETTS ) 3 COUNTY OF SUFFOLK ) 4 I, Deborah Roth, a Registered 5 Professional Reporter and Notary Public duly 6 commissioned and qualified in and for the 7 Commonwealth of Massachusetts, do hereby 8 certify: 9 That John F. Burns, Jr., the witness 10 whose deposition is hereinbefore set forth, 11 was duly identified and sworn by me, and that 12 the foregoing transcript is a true record of 13 the testimony given by such witness to the 14 best of my ability. 15 I further certify that I am not 16 related to any of the parties in this matter 17 by blood or marriage, and that I am in no way 18 interested in the outcome of this matter. 19 IN WITNESS WHEREOF, I have 20 hereunto set my hand and affixed my notarial 21 seal this 15th day of October, 2010. 22 _________________________ 23 Deborah Roth, RPR 24 My Commission Expires: January 23, 2015 Page 111 1 The Deposition of John F. Burns, Jr., was taken in the matter, on the date, and 2 at the time and place set out on the title page hereof. 3 It was requested that the deposition be taken by the reporter and that same be 4 reduced to typewritten form. It was agreed by and between counsel 5 and the parties that the Deponent will read and sign the transcript of said deposition. 6 DEPOSITION ERRATA SHEET Re: Esquire Deposition Solutions 7 File No.: 180300 Case Caption: Powell v. Collectco 8 Deponent: John F. Burns, Jr. Deposition Date: 10/14/10 9 To the Reporter: I have read the entire transcript of my 10 Deposition taken in the captioned matter or the same has been read to me. I request that 11 the following changes be entered upon the record for the reasons indicated. I 12 have signed my name to the Errata Sheet and the appropriate Certificate and authorize you 13 to attach both to the original transcript. Page No. ______ Line No. _____ Change to: 14 _____________________________________ Reason for change: 15 _____________________________________ Page No. ______ Line No. _____ Change to: 16 _____________________________________ Reason for change: 17 _____________________________________ Page No. ______ Line No. _____ Change to: 18 _____________________________________ Reason for change: 19 _____________________________________ Page No. ______ Line No. _____ Change to: 20 _____________________________________ Reason for change: 21 _____________________________________ Page No. ______ Line No. _____ Change to: 22 _____________________________________ Reason for change: 23 _____________________________________ Page No. ______ Line No. _____ Change to: 24 _____________________________________ Page 112 1 _____________________________________ Page No. ______ Line No. _____ Change to: 2 _____________________________________ Reason for change: 3 _____________________________________ Page No. ______ Line No. _____ Change to: 4 _____________________________________ Reason for change: 5 _____________________________________ Page No. ______ Line No. _____ Change to: 6 _____________________________________ Reason for change: 7 _____________________________________ Page No. ______ Line No. _____ Change to: 8 _____________________________________ Reason for change: 9 _____________________________________ Page No. ______ Line No. _____ Change to: 10 _____________________________________ Reason for change: 11 _____________________________________ Page No. ______ Line No. _____ Change to: 12 _____________________________________Page No. ______ Line No. _____ Change to: 13 _____________________________________ Reason for change: 14 _____________________________________ Page No. ______ Line No. _____ Change to: 15 _____________________________________ Reason for change: 16 _____________________________________ Page No. ______ Line No. _____ Change to: 17 _____________________________________ Reason for change: 18 _____________________________________ Signed under the pains and penalties of 19 perjury this _________day of _________________, 2010. 20 _____________________ John F. Burns, Jr. 21 Subscribed and sworn to before me this ____day of ____________, 2010. 22 ______________________ Notary Public My Commission 23 Expires:___________ 24 Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 44 of 53 PageID #:116 Exhibit C Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 45 of 53 PageID #:117 Case 1:10-cv-03709 Document 4 Filed 06/15/10 Page 7 of 9Case: 1:10-cv-037 9 Document #: 31 Filed: 11/12/10 Page 46 of 53 PageID #:118 Case 1:10-cv-03709 Document 4 Filed 06/15/10 Page 8 of 9Case: 1:10-cv-037 9 Document #: 31 Filed: 11/12/10 Page 47 of 53 PageID #:119 Case 1:10-cv-03709 Document 4 Filed 06/15/10 Page 9 of 9Case: 1:10-cv-037 9 Document #: 31 Filed: 11/12/10 Page 48 of 53 PageID #:120 Exhibit D Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 49 of 53 PageID #:121 07/19/10 12:36 PM PO STATUS DEBTOR MULTIPLE ACCOUNTS EOS CCA SELECTED Acct: Disposition:9999 INACTIVE Wait: 09/16/10 Name:HUNTER SHARMAINE Rp: , Adr1: City:CHICAGO St: IL Zip: POE: Cty: St: Ssn: Cbr: Ph:773- 7272B Ssn: Rp Ph:773~ -3732B Lgl: POE Ph: Canc:RCL Born: Zip: COF: Sal: Clnt: at&t, List:04/12/10 Srv:04/07/10 Ltrs:1 Time:16 Calls:14 Con:O Org: Bal: 0.00 RM# Acct Name / Client Chk# / Lst Srv Lpy Col Disp Bal PJI Check Reason PRN INT BAD CHK DIR ADV AIN CC ATY MS1 1 HUNTER,SHARMAINE / /at&t / / / / Returned 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 PAYMENTS No payments. NOTES WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 WGR 04/12/10 sys 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 WGR 04/13/10 BCM 04/13/10 nj 04/13/10 nj 04/13/10 nj 04/14/10 9:56 9:56 9:56 9:56 9:56 10:20 10:20 10:20 10:20 10:20 3:13 3:13 3:13 3:13 3:13 3:13 3:13 6:41 6:41 6:41 6:41 6:41 1:49P 5:22P 5:22P 6:51P CHGO, IL FLR FILE RETURNED FROM EXPERIAN Call Date: 04/12/10 5:20 PM Call Dtls: 773- 7272 (ATTEMPTED ANS MACHINE HUNG UP AT) - ACR Call Date: 04/12/10 5:20 PM Call Dtls: 773- -3732 (ATTEMPTED POSS DISC AT) - ACR Is #1 PAGE 1 Drivers License # Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 50 of 53 PageID #:122 07/19/10 12:36 PM PD nj nj nj DEB DEB DEB DEB MGR MGR nj nj DEB DEB DEB DEB WGR WGR WGR nj nj nj nj nj nj DEB DEB DEB DEB WGR WGR nj nj MGR MGR nj nj WGR nj nj nj nj WGR DEB DEB DEB DEB MGR MGR nj nj 04/14/10 04/14/10 04/14/10 04/15/10 04/15/10 04/15/10 04/15/10 04/19/10 04/19/10 04/19/10 04/19/10 04/21/10 04/21/10 04/21/10 04/21/10 04/22/10 04/22/10 04/22/10 04/22/10 04/22/10 04/30/10 04/30/10 04/30/10 04/30/10 05/02/10 05/02/10 05/02/10 05/02/10 05/03/10 05/03/10 05/03/10 05/03/10 05/04/10 05/04/10 05/04/10 05/04/10 05/05/10 05/07/10 05/07/10 05/07/10 05/07/10 05/10/10 05/10/1.0 05/10/10 05/10/10 05/10/10 05/12/10 05/12/10 05/12/10 05/12/10 6:51P 6:51P 6:51P 12:46P 12: 4 6P 12:46p 12:46P 8:58 8:58 5:32P 5:32P 2:01 2:01 2:01 2:01 5:57 5:57 5:57 5:41P 5:41P 12:48P 12:48P EOS CCA SELECTED Call Date: 04/16/2010 07:00:00 CDT Call Dtls: 773- 7272 (WIRELESS NOT ATTEMPTED AT) - ACR Updated udw 777,22 with et DATESTMP index 347719982 ( Call Date: 04/21/10 1:01 PM Call Dtls: 773- 7272 (ATTEMPTED ANS MACHINE HUNG UP AT) - ACR date to 05/05/10 et ADVDATE index 350185756 date to 05/05/10 et ADVDATE index 350185757 12:29P (R-13126778) 6:01 Call Date: 05/02/10 4:51 PM 6:01 Call Dtls: 773- 7272 (LM ON MACH AT) - ACR 5:28P Updated udw 777,22 with et DATESTMP index 350307112 5:28P (A-13126778) 9:58 Call Date: 05/03/2010 07:00:00 CDT 9:58 Call Dtls: 773- 7272 (WIRELESS NOT ATTEMPTED AT) - ACR 5:20P 8:51 Call Date: 05/11/2010 11:16:42 CDT 8:51 Call Dtls: 773- 7272 (WIRELESS NOT ATTEMPTED AT) - ACR 5:33P DATESTMP index 352483103 5:33P (A-13126778) PAGE 2 Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 51 of 53 PageID #:123 07/19/10 12:36 PM PD nj nj nj nj DEB DEB DEB DEB MGR MGR nj nj MGR MGR nj nj nj nj nj nj WGR WGR nj nj nj nj nj nj WGR WGR nj nj nj nj nj nj ANM ANM nj nj MGR MGR nj nj MGR MGR MGR nj nj nj 05/14/10 05/14/10 05/14/10 05/14/10 05/17/10 05/17/10 05/17/10 05/17/10 05/19/10 05/19/10 05/19/10 05/19/10 05120/10 OS/20/10 OS/20/10 OS/20/10 OS/21/10 OS/21/10 OS/21/10 OS/21/10 OS/24/10 OS/24/10 OS/24/10 OS/24/10 OS/28/10 OS/28/10 OS/28/10 OS/28/10 06/01/10 06/01/10 06/01/10 06/01/10 06/04/10 06/04/10 06/04/10 06/04/10 06/07/10 06/07/10 06/07/10 06/07/10 06/08/10 06/08/10 06/08/10 06/08/10 06/09/10 06/09/10 06/09/10 06/09/10 06/09/10 06/11/10 EOS CCA SELECTED 12:39P 6:06 Call Date: 05/18/2010 10:48:35 CDT 6:06 Call Dtls: 773- 7272 (WIRELESS NOT ATTEMPTED AT) - ACR 5:16P Updated udw 777,22 with et DATESTMP index 354335045 5: 16P (A-13126778) 9:43 Call Date: 05/18/2010 10:48:35 CDT 9:43 Call Dtls: 773- 7272 (WIRELESS NOT ATTEMPTED AT) - ACR 5:13P U 777,22 with et DATESTMP index 354713255 5:13P 12:50P 4:24 Call Date: OS/22/10 1:41 PM EST EST 4:24 Call Dtls: 773- 7272 (LM ON MACH AT) - ACR 5:25P Updated udw 777,22 with et DATESTMP index 355518967 5:25P 12:47P Changed wait date to 05/31/10 et ADVDATE index 356963902 12:47P (R-13126778) 6:17 Call Date: OS/29/10 11:11 AM EST EST 6:17 Call Dtls: 773- 7272 (LM W 3RD PARTY AT) - ACR 4:53P Updated udw 777,22 with et DATESTMP index 357259669 4: 53P 1:14P (R-13126778) 8:46 Call Date: 06/06/10 2:00 PM EST EST 8:46 Call Dtls: 773- 7272 (LM ON MACH AT) - ACR 5:22P Upd 777,22 with et DATESTMP index 358443247 5:22P (A- 9:39 Call Date: 06/07/2010 13:53:13 CDT 9:39 Call Dtls: 773- 7272 (WIRELESS NOT ATTEMPTED AT) - ACR 5:07P Updated udw 777,22 with et DATESTMP index 358740044 5: 07P (A-13126778) 10:30 Call Date: 06/07/2010 13:53:13 COT 10:30 Call Dtls: 773- 7272 (UA-WIRELESS NOT ATTEMPTED AT) _ 10:30 ACR 5:15P PAGE 3 Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 52 of 53 PageID #:124 -------~ 07119/10 EOS CCA PAGE 4 12:36 PM PD SELECTED nj 06/11/10 12: 38P nj 06/11/10 12:38P (R-13126778) AP3 06/14/10 3:07P IC CBR WRG* nj 06/18/10 12:41P Changed wait nj 06/18/10 12:41P ** END OF REPORT ** Case: 1:10-cv-03709 Document #: 31 Filed: 11/12/10 Page 53 of 53 PageID #:125