CE Design Ltd. v. Speedway Crane, LLC
2015 IL App (1st) 132572
Ill. App. Ct.2015Background
- CE Design, an engineering firm, purchased highlighted advertising listings (including its fax number) in the Blue Book, a vetted regional commercial-construction directory, for the 2005–2006 editions.
- Speedway Crane, also a Blue Book customer, obtained CE Design’s fax number from the Blue Book and sent a one-page faxed advertisement to CE Design on June 27, 2005.
- CE Design sued in 2008 as a putative class action under the TCPA (47 U.S.C. § 227 (2004)) and state-law claims for conversion and consumer fraud, alleging it had not given prior express permission to receive fax advertisements.
- Speedway moved for summary judgment arguing CE Design consented by publishing its fax in the Blue Book and alternatively that an established business relationship (EBR) existed; it also made a mootness/tender-offer argument later rejected by the trial court.
- The trial court granted summary judgment to Speedway on the TCPA and the state-law counts; the appellate court affirmed, holding CE Design gave prior express permission by participating as a Blue Book customer and also had an EBR with other Blue Book customers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CE Design gave prior express permission to receive fax advertisements | Listing fax in Blue Book invited only inbound business seeking CE Design’s services, not unsolicited ads; express consent requires direct words/actions | By voluntarily publishing fax in the Blue Book (a specialized trade directory), CE Design understood it would be contacted and therefore gave express permission to receive faxes, including ads | Court: Objective standard; as a Blue Book customer who voluntarily submitted and highlighted its fax, CE Design gave prior express permission to receive faxed ads |
| Whether an Established Business Relationship (EBR) existed between CE Design and Speedway | No prior two-way dealings between the parties, so no EBR under TCPA | CE Design had an EBR with the Blue Book and reasonably should expect contacts from other Blue Book customers (including Speedway) given the directory’s purpose | Court: An EBR existed by extension from CE Design’s relationship with the Blue Book to other Blue Book customers, so no TCPA violation |
| Whether the trial court improperly relied on Travel 100 precedent | Travel 100 is distinguishable because CE Design was not told directly that info could be used for marketing | Travel 100 is analogous: voluntary inclusion in an industry database/directory to improve commercial contacts supports finding of consent | Court: Travel 100 controls—facts sufficiently similar; trial court reliance was proper |
| Whether the defendant’s mootness/tender offer argument entitled it to relief | CE Design rejected the tendered payment; claimed case not moot | Tender did not moot because class-certification/notice posture problematic | Cross-appeal dismissed as defendant obtained full relief in trial court; not prejudiced by denial of mootness motion |
Key Cases Cited
- Travel 100 Group, Inc. v. Mediterranean Shipping Co., 383 Ill. App. 3d 149 (Ill. App. 2008) (holding voluntary inclusion in an industry database/directory can constitute prior express permission to receive faxed advertisements)
- CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443 (7th Cir. 2010) (broad construction of established-business-relationship concept in trade-publication context)
- CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011) (noting trade directories like the Blue Book connect industry participants and facilitate marketing contacts)