Nicole Blow v. Bijora, Inc.
855 F.3d 793
| 7th Cir. | 2017Background
- Akira, a Chicago retailer, used Opt It’s text‑messaging platform to send ~60 promotional texts (2009–2011) to ~20,000 customers, including Blow (class rep).
- Blow sued under the TCPA and Illinois consumer protection law alleging messages were sent using an automated telephone dialing system (autodialer), seeking ≈ $1.8 billion in statutory damages.
- Opt It supplied the platform: customer numbers were imported (manually or via opt‑in texts), employees draft messages and click to send or schedule them; Opt It’s CEO averred human action is required to send messages and that the platform lacks present random/sequential number generation.
- Akira moved for summary judgment arguing (1) Opt It’s system is not an autodialer and (2) Blow consented to receive texts; district court granted summary judgment for Akira on the autodialer ground and denied sanctions and other motions as moot.
- On appeal, the Seventh Circuit reviewed de novo and: (a) affirmed summary judgment but on the alternative ground that Blow had given express consent; (b) upheld the district court’s allowance to amend a discovery admission; and (c) affirmed denial of Rule 11 sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Opt It’s platform is an "autodialer" under the TCPA | Opt It’s platform dials from lists and can push messages automatically; qualifies as an autodialer under FCC precedent | Platform requires human drafting and a button press/scheduling; lacks present capacity to generate random/sequential numbers | Court: Issue close given FCC’s broad definition, but resolved favorably to Akira on consent; district court’s autodialer‑based grant was premature but alternative ground controls |
| Whether Akira’s amended admission (Request No.16) should be withdrawn | Akira improperly amended a discovery admission during summary judgment; Blow relied on the admission | Amendment corrected an inadvertent omission (other identical responses denied autodialer use); withdrawal promotes merits and caused no prejudice | Court: District court did not abuse discretion in allowing amendment under Rule 36(b) |
| Whether Blow gave express consent to receive promotional texts | Blow: she provided her number for discounts/verification, not for mass marketing texts; thus no consent to autodialed marketing | Akira: Blow provided number on VIP/loyalty cards and texted to opt into the program; messages were about discounts/promotions consistent with the stated purpose | Court: Blow consented; texts were reasonably related to the purpose for which she provided her number; summary judgment for Akira affirmed on consent (applies to class absent members who never provided numbers) |
| Validity of class certification and Rule 11 sanctions | Blow: class claims arise from common facts; representative adequate | Akira: individual consent issues predominate; counsel engaged in frivolous/misleading conduct warranting sanctions | Court: Class certification not an abuse of discretion given common issues (consent question common); denial of sanctions affirmed as not an abuse of discretion |
Key Cases Cited
- Campbell‑Ewald Co. v. Gomez, 136 S. Ct. 663 (Supreme Court) (texts qualify as "calls" under TCPA)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Supreme Court) (summary judgment standard)
- Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir.) (consent valid when number provided for related purpose)
- Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302 (11th Cir.) (voluntary provision of phone number can constitute prior express consent)
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir.) (courts are bound by FCC TCPA interpretations absent direct Hobbs Act challenge)
- Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360 (7th Cir.) (exacting but deferential review of class certification requirements)