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