In the
United States Court of Appeals
For the Seventh Circuit
Nos. 16‐1484 & 16‐1608
NICOLE BLOW, individually and on
behalf of all others similarly situated,
Plaintiff‐Appellant, Cross‐Appellee,
v.
BIJORA, INC., doing business as
AKIRA,
Defendant‐Appellee, Cross‐Appellant.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 3468 — Charles R. Norgle, Judge.
ARGUED OCTOBER 28, 2016 — DECIDED MAY 4, 2017
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. In May 2011, Nicole Strickler
brought this class‐action lawsuit against Chicago‐based retailer
2 Nos. 16‐1484 & 16‐1608
Bijora, Inc., doing business as Akira.1 Strickler was later
replaced as named plaintiff by Nicole Blow, who alleged that
Akira’s practice of sending promotional text messages violates
the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227, and the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505/1‐12, and sought approximately
$1.8 billion in damages. The district court ultimately certified
a class of individuals with a series of Illinois telephone area
codes who had received automated texts from Akira in the
preceding four years. After Strickler filed her third amended
complaint, Akira impleaded the company that supplied its
software for the text transmissions, Opt It, Inc. Opt It then
settled its claims with Strickler, who was replaced by Blow as
the named plaintiff in the suit against Akira. On Blow and
Akira’s cross motions for summary judgment, the district court
ultimately granted summary judgment in favor of Akira after
concluding that Blow had failed to demonstrate that Akira
used an automatic telephone dialing system in violation of the
TCPA. Blow appeals, and Akira cross‐appeals, challenging the
class certification and renewing its request for sanctions
against Blow’s counsel for alleged misconduct and frivolous
filings. As detailed below, we affirm the judgment of the
district court, although on different grounds.
I.
In 2002, Eric Hseuh founded Chicago‐based apparel retailer
Akira. The boutique women’s clothing and accessory store has
1
We follow the defendant’s lead and refer to it by its recognized business
name, Akira.
Nos. 16‐1484 & 16‐1608 3
continued to expand since that time and now boasts over
twenty retail locations in the Chicagoland area. In 2009,
Chicago‐based software company Opt It, Inc. approached
Akira and offered its text marketing services to the clothing
chain. Akira hired Opt It to use its software text‐messaging
platform to connect with Akira customers and inform them of
promotions, discounts, and in‐store special events such as
parties. Using a variety of methods, Akira gathered its custom‐
ers’ cell phone numbers for Opt It to key into its messaging
platform. Specifically, Akira customers could opt in to its “Text
Club” by providing their cell phone numbers to Akira repre‐
sentatives inside stores, by texting the word “Akira” to an opt‐
in number posted in Akira stores, or by filling out an “Opt In
Card.” The card stated that, “Information provided to Akira is
used solely for providing you with exclusive information or
special offers. Akira will never sell your information or use it
for any other purpose.”
Opt It’s software platform used a fairly straightforward
system to deliver text messages to Akira customers. First,
customers’ cell phone numbers were loaded onto Opt It’s text
messaging system platform. Those numbers given directly to
an Akira employee were manually entered into the system,
and the numbers customers texted directly to the opt‐in
number were automatically added to Opt It’s platform. Akira
could then manage its promotional text messaging system
using Opt It’s web interface, where an Akira employee could
log in and draft a message to be sent to its text club customers.
The Akira employee drafting the message then had the option
to send the message immediately or set a future date and time
for the message to be sent to all of the saved numbers. If Akira
4 Nos. 16‐1484 & 16‐1608
decided to change or cancel a message intended for future
delivery, it could access the system and alter the message
before it was sent or delete it altogether.
Akira gathered cell phone numbers for over 20,000 custom‐
ers for its text club messages. From September 23, 2009 until
May 27, 2011, Akira sent some sixty text messages advertising
store promotions, parties, events, contests, sales, and give‐
aways to those 20,000 customers, including appellant Nicole
Blow.
Blow was chosen as class representative after problems
arose with her two predecessors. The original named plaintiff,
Nicole Strickler, worked as an attorney for the law firm filing
the complaint, Messer & Stilp, Ltd.2 Strickler’s connection with
the firm emerged after the class had been certified, and Messer
had filed a second amended complaint asserting claims against
Akira and Opt It. Opt It then moved to disqualify the firm
based on its failure to disclose that Strickler worked there.
Strickler, through Messer, ultimately settled with Opt It and
dismissed her claims against it. Meanwhile, Akira had moved
to adopt Opt It’s motion to disqualify Messer, which requested
time to find a substitute class representative. It solicited two
additional plaintiffs from the class, Nicole Blow and Jennifer
Glasson. When it came to light that Glasson had never received
Akira’s texts, Glasson voluntarily dismissed her claims and
Blow continued as the sole named plaintiff.
Blow’s two count third‐amended complaint alleges that
Akira violated the TCPA’s prohibition against using an
2
Now Messer, Stilp & Strickler, Ltd.
Nos. 16‐1484 & 16‐1608 5
automatic telephone dialing system to make calls without the
express consent of the recipient. On behalf of the class, Blow
claims over $1.8 billion in statutory damages, a figure that
includes treble damages for alleged willful and knowing
violations of the TCPA. See 47 U.S.C. § 227(b)(3). Both parties
moved for summary judgment. Akira also moved, among
other things, to decertify the class and for sanctions against
Blow under Federal Rule of Civil Procedure 11. After conclud‐
ing that the software platform Opt It used to send text mes‐
sages was not an autodialer as prohibited by the TCPA, the
district court granted summary judgment to Akira. That
conclusion rendered the remainder of Akira’s pending motions
moot, with the exception of the motion for sanctions, which the
court denied. Blow appeals the district court’s grant of sum‐
mary judgment to Akira, and Akira cross‐appeals the district
court’s denial of its motions for class decertification and for
sanctions under Rule 11.
II.
We consider first the district court’s grant of summary
judgment to Akira. We review the district court’s decision on
cross‐motions for summary judgment de novo. E.g., Selective
Ins. Co. v. Target Corp., 845 F.3d 263, 266 (7th Cir. 2016).
Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). The ordinary
standards for summary judgment remain unchanged on cross‐
motions for summary judgment: we construe all facts and
inferences arising from them in favor of the party against
whom the motion under consideration is made. Calumet River
Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150, AFL‐
6 Nos. 16‐1484 & 16‐1608
CIO, 824 F.3d 645, 647–48 (7th Cir. 2016). Because we are
considering whether the district court appropriately granted
summary judgment to Akira, we resolve all factual disputes in
Blow’s favor. If Blow “fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial,” summary judgment must be granted. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
As relevant here, the TCPA prohibits making “any call”
without the prior express consent of the recipient “using any
automated telephone dialing system” (“autodialer”) to “any
telephone number assigned to a paging service [or] cellular
telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii); see also
Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663, 666–67 (Jan. 20,
2016). It is uncontested that text messages to a cellular phone
constitute “calls” within the purview of § 227(b)(1)(A)(iii).
Campbell‐Ewald, 136 S. Ct. at 667; see also In Re Rules & Regs
Implementing the TCPA, 18 FCC Rcd, 14014, 14115 ¶ 165 (2003)
(confirming that § 227(b)(1)’s prohibition against autodialing
“encompasses both voice calls and text calls to wireless
numbers including, for example, short message service (SMS)
calls”). Congress conferred on the Federal Communications
Commission (“FCC”) the authority to “prescribe regulations to
implement” the TCPA. 47 U.S.C. § 227(b)(2); see also id. § 201(b)
(“The Commission may prescribe such rules and regulations
as may be necessary in the public interest to carry out the
provisions of this chapter.”). Violations of the TCPA may be
redressed by a private right of action for damages, § 227(b)(3),
which consist of either $500 for each violation or recovery for
“actual monetary loss” resulting from the violation, “which‐
Nos. 16‐1484 & 16‐1608 7
ever is greater,” id. at § 227(b)(3)(B). The TCPA authorizes
treble damages if the defendant “willfully and knowingly
violated” the Act. Id. at § (b)(3); Campbell‐Ewald, 136 S. Ct. at
667. Based on these provisions, Blow seeks $1,500 for each of
the 1,200,000 texts sent for a total of over $1.8 billion in statu‐
tory damages.
The district court’s conclusion that Akira was entitled to
summary judgment was premised on its determination that
Akira, through Opt It, had not used an autodialer to send the
promotional text messages to Blow and the other class mem‐
bers. Before considering whether Opt It’s platform was an
autodialer, we must confront Blow’s argument that Akira
“admitted” in the district court to using an autodialer. This
argument arises from one of Akira’s responses to a request for
admission by Blow.
Between the complaint and requests for admission in
discovery, Blow sought on six occasions to have Akira admit
that Opt It sent text messages using an autodialer. As relevant
here, Blow submitted four nearly identical requests for
admission as follows:
13. There are more than 40 individuals with cellular
telephones with Illinois area codes (217, 224, 309,
312, 331, 464, 618, 630, 708, 773, 779, 815, 847, or
872) to whom, on or after a date four years prior
to the filing of this action and on or before a date
20 days following the filing of this action, Defen‐
dant or Defendant’s Agent sent text messages
utilizing an Auto Dialer, which marketed Defen‐
dant’s products and/or services.
8 Nos. 16‐1484 & 16‐1608
RESPONSE: Admit except unknown if Opt It used
an ‘Auto Dialer.’
14. There are more than 100 individuals with cellu‐
lar telephones with Illinois area codes (217, 224,
309, 312, 331, 464, 618, 630, 708, 773, 779, 815,
847, or 872) to whom, on or after a date four
years prior to the filing of this action and on or
before a date 20 days following the filing of this
action, Defendant or Defendant’s Agent sent text
messages utilizing an Auto Dialer, which mar‐
keted Defendant’s products and/or services.
RESPONSE: Admit except unknown if Opt It used
an ‘Auto Dialer.’
Request for admission number fifteen was identical except
it identified “more than 500 individuals” in the first sentence,
and again Akira replied with “Admit except unknown if Opt
It used an ‘AutoDialer.’” Admission number sixteen too was
identical but for the initial number of listed individuals and
this time, as shown below, Akira omitted from its response the
phrase “except unknown if Opt It used an ‘AutoDialer.’”:
16. There are more than 1,000 individuals with
cellular telephones with Illinois area codes (217,
224, 309, 312, 331, 464, 618, 630, 708, 773, 779,
815, 847, or 872) to whom, on or after a date four
years prior to the filing of this action and on or
before a date 20 days following the filing of this
action, Defendant or Defendant’s Agent sent text
messages utilizing an Auto Dialer, which mar‐
keted Defendant’s products and/or services.
Nos. 16‐1484 & 16‐1608 9
RESPONSE: Admit.
When Akira was preparing its response to Blow’s statement
of undisputed material facts in support of summary judgment,
it realized that the phrase “unknown if Opt It used an ‘Auto‐
Dialer’” had been omitted from its fourth response to Blow’s
request for admission. Specifically, when Blow moved for
summary judgment, she sought to rely on Akira’s supposed
“admission” that Opt It used an autodialer. Upon discovering
its error, Akira moved for leave to serve an amended response
correcting the mistake. The district court granted Akira’s
motion and allowed Akira to amend its response to bring it in
line with its preceding—and otherwise identical—responses.
Blow argues on appeal that the district court erred by
allowing Akira to amend its response to the request for
admission. Specifically, Blow claims that Akira had many
opportunities to notice the alleged error in its discovery
response. She argues that Akira’s belated motion to amend its
response—made during briefing on summary
judgment—prejudiced her because by that point she had relied
on what she characterizes as Akira’s “judicial admission” that
it used an autodialer to send texts.
Federal Rule of Civil Procedure 36, which governs Requests
for Admission, states that a “party may serve on any other
party a written request to admit, for purposes of the pending
action only, the truth of any matters within the scope of
[Federal Rule of Civil Procedure] 26(b)(1) relating to: (A) facts,
the application of law to fact, or opinions about either; and (B)
the genuineness of any described documents.” Rule 36 further
provides that “[i]f a matter is not admitted, the answer must
10 Nos. 16‐1484 & 16‐1608
specifically deny it or state in detail why the answering party
cannot truthfully admit or deny it.” Fed. R. Civ. P. 36(a)(4). The
rule also specifies that matters admitted are conclusively
established “unless the court, on motion, permits the admis‐
sion to be withdrawn or amended.” Id. 36(b). Such a with‐
drawal or amendment is appropriate if it “would promote the
presentation of the merits of the action” and if the party who
obtained the admission will not be prejudiced by a withdrawal
or amendment. Id.
We review a court’s decision to allow the withdrawal or
amendment of an earlier admission only for an abuse of
discretion. See Banos v. City of Chicago, 398 F.3d 889, 892 (7th
Cir. 2005); Perez v. Miami‐Dade Cty., 297 F.3d 1255, 1265 (11th
Cir. 2002). We find no abuse of discretion here. The district
court reasonably concluded after considering the entirety of
the litigation and the discovery responses surrounding Akira’s
supposed “admission” that Akira had inadvertently failed to
add the phrase “except unknown if Opt It used an ‘Auto
Dialer’” in its response to Request for Admission No. 16. It
follows from this conclusion that allowing the amendment
would support a decision on the merits rather than on an
inadvertent omission by Akira.
The district court also did not abuse its discretion by
concluding that Blow was not prejudiced by Akira’s amend‐
ment. She claims that she “relied” on the alleged admission
that Akira or Opt It sent texts using an autodialer. But none of
the parties’ exchanges during discovery would have supported
such a reliance. Moreover, as the district court noted in its
decision denying Blow’s motion to reconsider after the grant
of summary judgment, when the district court allowed Akira’s
Nos. 16‐1484 & 16‐1608 11
amendment, Blow never moved at that time to reopen discov‐
ery or otherwise demonstrated how she was prejudiced by the
court’s decision. And as the party seeking summary judgment,
Blow bore the burden of demonstrating that Akira or its agent
Opt It did in fact use an autodialer, so it was not prejudice to
require her to prove the elements of her claim. See Perez, 297
F.3d at 1266 (“The prejudice contemplated by the Rule is not
simply that the party who initially obtained the admission will
now have to convince the fact finder of its truth. Rather, it
relates to the difficulty a party may face in proving its case,
e.g., caused by the unavailability of key witnesses, because of
a sudden need to obtain evidence with respect to the questions
previously answered by the admission.”) (internal quotations
and citation omitted). It would have been unreasonable for
Blow to believe Akira had admitted to using an autodialer in
one response to a request for admission despite denying the
use of an autodialer in every other response to Blow’s filings.
Thus, the district court did not abuse its discretion in allowing
Akira to amend its response on request No. 16 to bring it in
line with its nearly identical responses to requests Nos. 13–15.
On the merits, the question of whether Akira, through Opt
It, used an autodialer is less straightforward. The TCPA
defines an autodialer as “equipment which has the capacity (A)
to store or produce telephone numbers to be called, using a
random or sequential number generator; and (B) to dial such
numbers.” 47 U.S.C. § 227(a)(1); see also 47 C.F.R. § 64.1200(f)(2)
(FCC adopting the TCPA’s autodialer definition). The statute’s
reference to a “random or sequential number generator” stems
from telemarketers’ practice of using autodialing equipment to
either dial random 10‐digit strings of numbers or call numbers
12 Nos. 16‐1484 & 16‐1608
in large sequential blocks. Thus, the FCC initially interpreted
the TCPA autodialer ban as targeting equipment that placed
many calls by randomly or sequentially generating numbers to
be dialed.
As technology and telemarketing methods have evolved
and expanded, however, so has the FCC’s definition of an
autodialer. In 2003, the FCC explained that although in “the
past, telemarketers may have used dialing equipment to create
and dial 10‐digit numbers arbitrarily, the evolution of the
teleservices industry has progressed to the point where using
lists of numbers is far more cost effective.” In re Rules & Regs
Implementing the TCPA, 18 FCC Rcd. 14014, 14092 (2003) (“2003
FCC Order”). In continuing to expand the definition of an
autodialer, the FCC observed that it was “clear from the
statutory language and the legislative history that Congress
anticipated that the FCC, under its TCPA rulemaking author‐
ity, might need to consider changes in technologies.” Id. Thus
in 2003 and again in 2008, the FCC determined that “predictive
dialers,” which dial numbers from customer calling lists, fell
within the meaning and statutory definition of an autodialer
and the intent of Congress. See id. at 14093; see also In re Rules
& Regs Implementing the TCPA, 23 FCC Rcd. 559, 566 (2008)
(“affirm[ing] that a predictive dialer constitutes an automatic
telephone dialing system and is subject to the TCPA’s restric‐
tions on the use of autodialers”). And in 2012, it reiterated this
conclusion, noting that the TCPA covered systems with the
“capacity to store or produce and dial those numbers at
random, in sequential order, or from a database of numbers.” In
re Rules & Regs Implementing the TCPA, 27 FCC Rcd 15391,
15392 n.5 (2012) (emphasis added).
Nos. 16‐1484 & 16‐1608 13
This expansive reading of the TCPA in light of evolving
technology continued in 2015 when a divided panel of the FCC
released an order responding to numerous petitions by
companies and trade associations seeking relief or clarification
of the TCPA’s requirements. Specifically, the FCC further
broadened the definition of an autodialer under the TCPA by
concluding that equipment’s “capacity” to dial random or
sequential numbers is not limited to its “present ability.” The
FCC rejected requests to limit the definition of an autodialer to
equipment with the “‘current capacity’ or ‘present ability’ to
generate or store random or sequential numbers or to dial
sequentially or randomly at the time a call is made.” In re Rules
& Regs Implementing the TCPA, 30 FCC Rcd. 7961, 7972 (2015)
(“2015 FCC Order”). Observing that Congress intended a
“broad definition of autodialer,” the FCC concluded that “the
capacity of an autodialer is not limited to its current configura‐
tion but also includes its potential functionality.” Id. at 7974.
It is against this backdrop that we consider Akira’s claim
that it is entitled to summary judgment because Opt It’s
platform is not an “autodialer” under the TCPA. Akira relies
on the affidavit of Opt It’s CEO Brian Stafford to support its
argument that the platform it used was not an autodialer.
Stafford explained the process described above—that Opt It
obtained a spreadsheet of customer phone numbers from
Akira and imported those numbers into its system and that
telephone numbers texting the message “Akira” to the short
code Akira provided were automatically added to Opt It’s text
messaging list. As the software architect for the first version of
Opt It’s software platform, Stafford reiterated, as the district
court found, that a human must take action to send a message
14 Nos. 16‐1484 & 16‐1608
through the platform. The messages are drafted by humans,
who decide when the message will be sent, and press a button
to either send the messages or schedule a future sending.
Stafford also explained that the Opt It platform lacked the
ability to store or produce numbers using a random or sequen‐
tial number generator and that its platform would have to be
substantially modified to do so. Stafford also opined that such
modifications would fundamentally alter the nature of Opt It’s
software platform.
Although Stafford’s affidavit establishes that Opt It’s
platform lacks the present capacity to use a random or sequen‐
tial number generator for storing or producing numbers, it falls
short of entitling Akira to summary judgment on this issue
given the FCC’s conclusion that equipment need not possess
the “current capacity” or “present ability” to use a random or
sequential number generator. 2015 FCC Order at 7972.
Citing cases that predate the FCC’s most recent rulings,
Akira argues that Opt It’s software must be able to dial random
or sequential numbers at the time the call is made and also
function entirely “without human intervention.” As for the
first argument, the FCC explicitly rejected such a requirement
in its 2015 Order. See 2015 Order at 7074 (term “capacity” in the
TCPA “does not exempt equipment that lacks the ‘present
ability’ to dial randomly or sequentially.”) As the FCC rulings
have recognized, technology has developed such that dialing
from lists of numbers is more cost‐effective than using random
or sequential numbers. The FCC has now long recognized that
“predictive dialers,” which have “the capacity to store or
produce numbers and dial those numbers at random, in
sequential order, or from a database of numbers,” 2003 FCC Order
Nos. 16‐1484 & 16‐1608 15
at 14091(emphasis added), are autodialers under the TCPA. In
concluding as much, the FCC noted that “the principal feature
of predictive dialing software is a timing function, not number
storage or generation.” Id. (emphasis added). Thus, “the basic
function of such dialing equipment … [is] the capacity to dial
numbers without human intervention.” In Re Rules & Regs
Implementing the TCPA 23 FCC Rcd. 559, 566 (2008).
The parties dispute whether Opt It’s software is in fact
capable of dialing numbers without human intervention. The
district court relied on Stafford’s affidavit to conclude that Opt
It’s software is not an autodialer because human involvement
is required at nearly every step in the platform’s text message
transmission process. But as Blow points out, the district
court’s use of the word “nearly” demonstrates that human
involvement is in fact unnecessary at the precise point of action
barred by the TCPA: using technology to “push” the texts to an
aggregator that sends the messages out simultaneously to
hundreds or thousands of cell phone users at a predetermined
date or time. Indeed, the FCC has recognized as much by
sweeping automated dialing systems that dial numbers from
a preprogrammed list, created by humans, within the reach of
the TCPA’s prohibition on autodialed calls without prior
consumer consent. Given the expansive definition of an
autodialer adopted by the FCC, we agree with Blow that
summary judgment on this issue for Akira was premature.
Because, as discussed below, we conclude that summary
judgment in favor of Akira was nevertheless appropriate on
another ground, we need not address Akira’s alternate
autodialer arguments, including its assertion that the FCC
Orders are not controlling—an argument that in any event is
16 Nos. 16‐1484 & 16‐1608
not appropriately raised here. The Communications Act, which
the TCPA amended, provides that any “proceeding to enjoin,
set aside, annul, or suspend any order of the Commission”
must be brought under the Hobbs Act. 47 U.S.C. § 402(a). The
Hobbs Act provides the federal courts of appeals with
“exclusive jurisdiction to enjoin, set aside, suspend (in whole
or in part), or to determine the validity” of FCC orders.
28 U.S.C. § 2342(1). Thus absent a direct appeal to review the
2015 FCC Order’s interpretation of an autodialer, we are bound
to follow it. See CE Design, Ltd. v. Prism Bus. Media, Inc., 606
F.3d 443, 448–50 (7th Cir. 2010) (holding that 2008 FCC ruling
had force of law); see also Murphy v. DCI Biologicals Orlando,
LLC, 797 F.3d 1302, 1308 (11th Cir. 2015) (same as to 1992 FCC
ruling interpreting prior express consent). Remarkably, neither
party mentions just such a direct appeal currently pending in
the D.C. Circuit, where multiple companies filed petitions
under the Hobbs Act challenging the 2015 FCC Order and its
definition of an autodialer in particular. See ACA Int’l v. FCC,
No. 15‐1211 (D.C. Cir., argued Oct. 19, 2016); see also Ankorn v.
Kohl’s Corp., No. 15‐1303, 2017 WL 395707 at *2–3 (N.D. Ill. Jan.
30, 2017) (granting stay in TCPA class action case pending
decision in ACA Int’l and noting that “numerous courts across
the country have granted similar motions to stay in TCPA
cases while the D.C. Circuit case is pending”).
Instead, we turn to Akira’s argument (not reached by the
district court) that it is entitled to summary judgment inde‐
pendent of the autodialer question because Blow consented to
the text messages. See, e.g., Holmes v. Village of Hoffman Estates,
511 F.3d 673, 681 (7th Cir. 2007) (“Because our review is de
novo, we may affirm the judgment on any basis that is sup‐
Nos. 16‐1484 & 16‐1608 17
ported by the record before us.”). As described above, the
TCPA’s prohibition on using an autodialer applies only
“absent the express consent” of the recipient. 47 U.S.C.
§ 227(b)(1)(A)(iii); see also In re Rules & Regs Implementing the
TCPA, 7 FCC Rcd 8752, 8769 ¶ 29 (Oct. 16, 1992) (“1992 Order”)
(“The TCPA allows autodialed and prerecorded message calls
if the called party expressly consents to their use.”). Express
consent is an affirmative defense on which the defendant bears
the burden of proof. See In re Rules & Regs Implementing the
TCPA, 23 FCC Record 559, 565 (2008); see also Van Patten v.
Vertical Fitness Group, LLC, 847 F.3d 1037, 1044 (9th Cir. 2017).
In its initial rulemaking after the TCPA’s passage, the FCC
explained in its 1992 Order that “persons who knowingly
release their phone number have in effect given their invitation
or permission to be called at the number which they have
given, absent instructions to the contrary.” 7 FCC Record at
8769, ¶ 31. In elaborating, the FCC explained that “tele‐
marketers will not violate our rules by calling a number which
was provided as one at which the called party wishes to be
reached. Id. It further specified in 2012 that texts and calls that
include or introduce an advertisement or constitute telemarket‐
ing require express written consent. See 47 C.F.R.
§ 64.1200(a)(2). In its 2015 Order, the FCC added little to its
existing pronouncements on consent, except to clarify that the
existence of a consumer’s wireless number in another person’s
wireless phone, standing alone, does not demonstrate consent
to autodialed texts. It also clarified that consent could be
revoked “at any time and through any reasonable means.”
30 FCC Rcd at 7989–90, ¶ 47.
18 Nos. 16‐1484 & 16‐1608
The record demonstrates that Blow gave her cell phone
number to Akira on several different occasions. First, Blow
signed up sometime in 2009 or 2010 for what she characterized
in her deposition as a “frequent buyer card.” This card could
be used to earn Akira gift certificates when certain spending
thresholds were reached. (Blow dep. p. 29–30, l. 16–24; p. 30 l.
16–20) Akira also produced an “AKIRA VIP” Card and an
“AKIRA CLIENT LIST” card with Blow’s name and cell phone
number. Both of the cards contained the following disclaimer:
“INFORMATION PROVIDED TO AKIRA IS USED SOLELY
FOR PROVIDING YOU WITH EXCLUSIVE INFORMATION
AND SPECIAL OFFERS. AKIRA WILL NEVER SELL YOUR
INFORMATION OR USE IT FOR ANY OTHER PURPOSE.”
There are also notes reflecting Blow’s request for a sales
associate to call her when a particular pair of shoes arrived
back in stock. Finally, the record establishes, and Blow admits,
that she texted “AKIRA” to short code 46786 on October 1,
2009 in order to opt into Akira’s text program.
Blow received a total of 60 texts from Akira between
September 23, 2009 and May 27, 2011. The first text Akira sent
Blow in September 2009 included instructions on how to be
removed from Opt It’s text messaging list as follows: “To
unsubscribe reply STOP to 46786.” Likewise, the text sent in
response to her October text opting into the text club contained
instructions as to how to unsubscribe, as did a text sent in July
2010. Blow never followed the instructions in these texts or
otherwise attempted to opt out of receiving texts from Akira.
Blow cursorily argues that she never consented to Akira’s
texts because she “provided her phone number to [Akira] to
receive discounts” but not to receive “mass marketing text
Nos. 16‐1484 & 16‐1608 19
messages.” We are unpersuaded that there is a distinction of
legal significance between the two in terms of Blow’s consent:
the alleged “mass marketing” texts were in fact the very
“exclusive information and special offers” described on Blow’s
Akira VIP and client cards. For example, the first text Blow
received from Akira on September 23, 2009 welcomes Blow to
Akira’s text club and invites her to watch for “exclusive
PROMOTIONS, EVENTS & DISCOUNTS from AKIRA
Chicago.” She received four additional texts from Akira before
she herself opted into its text club.
Blow’s attempt to parse her consent to accept some promo‐
tional information from Akira while rejecting “mass market‐
ing” texts construes “consent” too narrowly. We agree with the
Ninth Circuit’s recent conclusion that “an effective consent is
one that relates to the same subject matter as is covered by the
challenged calls or text messages.” Van Patten, 847 F.3d at
1044–45. In Van Patten, the Ninth Circuit concluded that the
plaintiff had given prior express consent to be contacted on his
cell phone number when he provided that number in connec‐
tion with his application for a gym membership. Id. at 1044.
Although he had cancelled his gym membership when he
received the challenged texts, the court concluded that the
texts, which were part of a campaign to get former and inactive
gym members to return, related to the reason the plaintiff had
supplied his number in the first place: to apply for a gym
membership. Id. at 1046. Thus, although the court rejected the
defendant’s contention that when a consumer provides her cell
phone number to the caller she is consenting to any and all
contact, it reasonably concluded that if the contact is related to
the reason the number was provided, consent is valid. Id.
20 Nos. 16‐1484 & 16‐1608
Likewise, the 11th Circuit rejected a plaintiff’s argument that
he had not expressly consented to texts from a blood and
plasma seller when he provided his cell phone number on a
“New Donor Information Sheet” that he filled out before he
was paid for blood and plasma donations. Murphy, 797 F.3d at
1304. Nowhere did the form he filled out with his cell phone
number inform the plaintiff that he would receive a promo‐
tional text from the defendant offering him a “come back
special” to donate again. Nevertheless, the court in Murphy
concluded that by “voluntarily providing his cell phone
number” to the defendant, the plaintiff gave his prior express
consent to be contacted. Id. at 1308.
We have even less trouble concluding that Blow consented
here, where she admittedly provided her cell phone number
not on a generic form, but specifically in order to receive
discounts. Both cards in the record containing Blow’s name
and cell phone number clearly state that her information
would be used to provide exclusive information and special
offers. Of the sixty texts Blow received, one welcomed her to
the text club, forty‐one contained a promotional or discount
offer, and the remaining eighteen announced special events
such as fashion shows, events that fit comfortably within the
aforementioned “exclusive information” described on the
cards. Because the texts she received were reasonably related
to the purpose for which she provided her cell phone number,
we agree that Blow provided prior express consent for the text
messages.
The district court cases Blow cites do not support a contrary
conclusion. Blow makes much of the district court’s observa‐
tion in Zeidel v. YM LLC USA that “providing one’s phone
Nos. 16‐1484 & 16‐1608 21
number does not constitute carte blanche consent to receive
automated marketing messages of any kind,” No. 13‐6989, 2015
WL 1910456, at *3 (N.D. Ill. Apr. 27, 2015); see also Toney v.
Quality Res., Inc., 75 F. Supp. 3d 727, 737 (N.D. Ill. Dec. 1, 2014)
(“Consent for one purpose does not equate to consent for all
purposes.”). We agree, and do not hold as much here. As
discussed above, here Blow’s consent was in fact tied to the
type of messages she received from Akira. The other case cited
by Blow, Kolinek v. Walgreen Co., was decided on a motion to
dismiss, and the district court was obligated to accept as true
the plaintiff’s assertion that he provided his cell phone number
to the pharmacy at Walgreen’s “solely for verification pur‐
poses,” but then received automated robocalls reminding him
to refill his prescription, No. 13‐4806, 2014 WL 3056813 at *1
(July 7, 2014). The rule the district court judge reached in
Kolinek was that the FCC “considers the scope of a consumer’s
consent to receive calls to be dependent on the context in
which it is given.” Id. at *3; see also Thrasher‐Lyon v. CCS
Commercial, No. 11‐04473, 2012 WL 3835089 (N.D. Ill. Sept. 4,
2012) (denying defendant’s motion for summary judgment on
issue of consent because plaintiff had given out number as
“best way to reach her” to insurance company, which was not
consent for robocalls from a third‐party collection agency), a
rule in complete harmony with the one we apply today. In
short, although the district court decisions are of course non‐
binding precedent, there is nothing in the cases Blow cites that
is inconsistent with our conclusion that giving her cell number
to Akira for a VIP discount card and later texting directly to
22 Nos. 16‐1484 & 16‐1608
opt in to the text club amount to express consent to texts about
Akira discounts, in‐store promotions, and special events.3
Because the class was certified before the entry of summary
judgment, Akira maintains that summary judgment against
Blow on this issue applies to the class as a whole. Blow has
failed to respond to this contention. E.g., Crespo v. Colvin, 824
F.3d 667, 674 (7th Cir. 2016) (perfunctory and undeveloped
arguments are waived). Paradoxically in light of the grant of
summary judgment in its favor and its argument as to consent,
as discussed below, Akira itself has cross‐appealed seeking to
de‐certify the class on the issue of consent. In the district court,
Blow claimed and the district court agreed that the question
was not whether members of the class had provided their
information to Akira, but rather whether the provision of that
information indeed amounted to consent. As discussed above,
we now hold that it does. Absent any argument by Blow that
there remains a subset of the class who provided no consent at
all or whose consent was more limited than hers, the entry of
summary judgment is appropriate as to the class as well, but
would not be effective as to any class members who could
3
This is so notwithstanding Blow’s suggestion that her consent was limited
to information about a particular pair of shoes. While she may have
specified when she gave her cell phone number on that occasion that she
wanted information about shoes, it is clear that she provided her cell phone
number without express limitation to Akira on multiple other occasions.
Blow has failed to provide evidence that the additional provision of her
number to find out about a pair of shoes was intended in any way to limit
or revoke consent associated with the other occasions she provided her
number.
Nos. 16‐1484 & 16‐1608 23
demonstrate that they never provided their phone number to
Akira to receive information about discounts or promotions.
That leaves the issues Akira raises in its cross‐appeal. First,
there is Akira’s argument that the class was improperly
certified. Without citing a single Seventh Circuit case, Akira
argues generally that Blow failed to demonstrate that common
issues predominate in the case because individualized inqui‐
ries are necessary to determine whether each class member
consented to the texts. Given that this argument directly
undermines Akira’s argument as to Blow’s consent and its
power to bind the class members, it is a perplexing position to
take, to say the least.
The prerequisites for a class action are established in
Federal Rule of Civil Procedure 23(a), which sets forth the
following four requirements:
(1) the class is so numerous that joinder of all mem‐
bers is impracticable (numerosity)
(2) there are questions of law or fact common to the
class (commonality)
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class (typicality); and
(4) the representative parties will fairly and ade‐
quately protect the interests of the class (adequacy of
representation). In addition to these requirements,
the class must satisfy one of four conditions listed in
Rule 23(b).
24 Nos. 16‐1484 & 16‐1608
As relevant here, Rule 23(b)(3), applicable for purported
classes seeking monetary damages, requires an additional
showing (1) that the questions of law or fact common to the
members of the proposed class predominate over questions
affecting only individual class members; and (2) that a class
action is superior to other available methods of resolving the
controversy. Fed. R. Civ. P. 23(a); see also Bell v. PNC Bank, Nat’l
Ass’n, 800 F.3d 360, 373 (7th Cir. 2015).
We review the district court’s decision certifying the class
only for an abuse of discretion. Bell, 800 F.3d at 374. Although
our review is deferential, it is exacting: “‘A class may only be
certified if the trial court is satisfied, after a rigorous analysis,
that the prerequisites’” have been met. Bell, 800 F.3d at 373
(quoting CE Design, Ltd. v. King Architectural Metals, Inc., 637
F.3d 721, 723 (7th Cir. 2011).
Akira attacks the district court’s certification only on the
question of commonality, arguing that determining whether
each plaintiff had consented to the texts from Akira would
require a series of mini‐trials . As discussed above, the district
court considered and rejected this argument, pointing out that
the commonality prerequisite was established because the class
members’ claims arise from the same factual circumstances
and are evaluated under the same statute. See Keele v. Wexler,
149 F.3d 589, 594 (7th Cir. 1998) (“Common nuclei of fact are
typically manifest where … the defendants have engaged in
standardized conduct towards members of the proposed
class.”). And in determining whether Blow was an adequate
representative of the class, the district court noted that Blow
produced over 20,000 pages of customer loyalty cards in
discovery, creating a common issue of whether the customer
Nos. 16‐1484 & 16‐1608 25
loyalty cards operated to provide consent to Akira’s texts, as
opposed to a need to engage in a series of mini‐trials as to
which plaintiffs are subject to the defense of consent. Neither
party challenges this conclusion on appeal, and we are thus
hard‐pressed to find an abuse of discretion in the district
court’s conclusion that the commonality requirement for class
certification was satisfied. See Bell, 800 F.3d at 379 (“The fact
that the plaintiffs might require individualized relief or not
share all questions in common does not preclude certification
of a class.”). To repeat, if there is a subset of Akira customers
who did not fill out customer loyalty cards or opt into the text
club, they would of course not be bound by the entry of
summary judgment against Blow.
Finally, Akira challenges the district court’s rejection of its
motion for sanctions against Blow’s counsel for alleged
frivolous filings and instances of bad faith over the course of
the litigation. We review the denial of sanctions under Rule 11
for an abuse of discretion, e.g., Cooney v. Casady, 735 F.3d 514,
518 (7th Cir. 2013). A district court abuses its discretion when
“no reasonable person” would agree with the decision of the
court. Id. Under Rule 11, sanctions are proper when a party or
attorney signs a pleading or motion that is not well‐grounded
in fact and warranted by existing law. Fed. R. Civ. P. 11.
Additionally, an attorney who vexatiously multiplies the
proceedings may be responsible under 28 U.S.C. § 1927 for
excess fees and costs arising from the improper conduct.
We see no abuse of discretion in the district court’s conclu‐
sion that the litigational conduct of Blow’s counsel did not rise
to the level of impropriety that would warrant sanctions. Akira
claims Blow’s counsel knew she expressly consented to receive
26 Nos. 16‐1484 & 16‐1608
the texts and was therefore pressing a claim that was not
supported by existing law. Akira also attacks counsel’s failure
to disclose that Strickler, the original named plaintiff, was a
member of the law firm representing her. This latter behavior
certainly gives us pause, and we would hope Strickler and
Messer would exercise better judgment in the future than
using an attorney from their own firm as the named plaintiff in
a class action. Despite our misgivings about the firm’s judg‐
ment, we do not think the district court abused its discretion by
concluding sanctions were not warranted. And although we
ultimately reject Blow’s claim that her consent did not extend
to the various types of texts that Akira sent, we would not go
so far as to conclude that her position was so baseless as to
warrant sanctions.
III.
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment against Blow.