Blow v. Bijora, Inc., Civil Action No. 11 CV 3468

• Decision Date: 04 February 2016
• Docket Number: Civil Action No. 11 CV 3468
• Parties: Nicole BLOW, an individual, on behalf of herself and all others similarly situated, Plaintiffs, v. BIJORA, INC., doing business as Akira, an Illinois Corporation, Defendants. Bijora, Inc., doing business as Akira, an Illinois Corporation, Third–Party Plaintiff, v. Opt It, Inc., an Illinois Corporation, Third–Party Defendant.
• Court: U.S. District Court — Northern District of Illinois

191 F.Supp.3d 780

Nicole BLOW, an individual, on behalf of herself and all others similarly situated, Plaintiffs,

v.BIJORA, INC., doing business as Akira, an Illinois Corporation, Defendants.

Bijora, Inc., doing business as Akira, an Illinois Corporation, Third–Party Plaintiff,

v.Opt It, Inc., an Illinois Corporation, Third–Party Defendant.

Civil Action No. 11 CV 3468

United States District Court, N.D. Illinois, Eastern Division.

Signed February 4, 2016

Katherine Maria Saldanha Olson, Dana Perminas, Messer, Stilp & Strickler, Ltd., Chicago, IL, for Plaintiffs.

James Kenneth Borcia, Ryan S. Taylor, Tressler LLP, Chicago, IL, for Defendants/Third–Party Plaintiff.

Bart Thomas Murphy, Isaac J. Colunga, Thomas J. Hayes, Ice Miller LLP, Lisle, IL, Evan D. Brown, Alexis Elizabeth Payne, Benjamin Julius Stein, InfoLawGroup LLP, Nicholas Alan Casto, Ice Miller LLP, Shannon T. Harell, Edwards Wildman Palmer LLP, Chicago, IL, Andrew L. Hoffman, Norton Rose Fulbright US LLP, New York, NY, Tanya Lee Forsheit, Baker Hostetler LLP, Los Angeles, CA, for Third–Party Defendant.

OPINION AND ORDER

CHARLES RONALD NORGLE, United States District Court Judge

Plaintiff Nicole Blow ("Blow"), on behalf of herself and all others similarly situated, sues Defendant Bijora, Inc., which does business as Akira ("Akira"), for sending her and the class text messages, allegedly in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the "TCPA") and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et seq. (the "ICFA"). Shortly after Blow filed the Third Amended Complaint against Akira on June 28, 2013, Akira impleaded Opt It, Inc. ("Opt It"), which was the company that supplied the software to facilitate the texts' transmission. The Court certified the class on March 24, 2015. Before the Court are seven motions: Blow's motion for summary judgment against Akira; Akira's motion for summary judgment against Blow; Opt It's motion for summary judgment against Akira; Akira's motion to disqualify class counsel; Akira's motion to decertify the class; Akira's motion to use a settlement agreement between Opt It and the original plaintiff in this case, Nicole Strickler; and Akira's motion for sanctions. For the following reasons, the Court finds that Blow has not produced evidence that could allow a reasonable jury to find that Akira violated the TCPA. Accordingly, Blow's motion is denied, and Akira's motion for summary judgment is granted. Akira's motion for sanctions is denied. All other pending motions are denied as moot.

I. BACKGROUND¹

In 2009, Opt It successfully solicited Akira to use Opt It's software-based text message transmission platform. Akira used this platform to send text messages to its customers regarding promotions and discounts on Akira products, as well as invitations to parties and events held at Akira's locations.

The parties do not dispute the following framework with respect to how Opt It's software platform works. First, Akira-customers' cell phone numbers are keyed into the platform. The phone numbers come from a variety of sources. Some of the numbers were provided by Akira's customers to one of Opt It's salespeople, who had set up a table in an Akira location that promoted Akira's text club. Other customers gave their numbers orally to Akira's sales people, while other customers filled out cards (an "Opt In Card") that stated, "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." See Exhibit A to Supplemental Aff. Eric Hsueh ("Hsueh Aff"), Akira's Resp. Blow's Statement Facts Supp. Mot. Summ. J., Ex. 1. Still others joined the text club by texting "Akira" to the opt-in number that was posted in Akira stores. Using these methods, Akira received over 20,000 of its customers' phone numbers. With respect to Blow, Akira received her phone number from one of its Opt In Cards—although Blow claims that she only provided her number to Akira so that Akira could tell her when a certain style of shoes was in stock. In conjunction with the Opt In Card, Blow (or at the very least, someone using Blow's phone) also texted Akira's opt-in number to join the club on October 1, 2009.

Second, the phone numbers were loaded into Opt It's list. If the customer provided the phone number to one of Opt It's or Akira's agents, that agent would manually input the customer's phone number into Opt It's platform for Akira's text messaging campaign. If the customer texted the opt-in number for Akira's text club on her own volition, then the phone number would be added to the platform directly from the user's phone.

Third, after it gathered its customer's cell phone numbers, Akira could then use Opt It's web interface to manage its text message campaign. When Akira desired to send a text message to the list, an agent of Akira was required to log into Opt It's software platform and draft the message to be sent. The software gave the agent the option of sending the message immediately or at a specified time. If Akira intended to send the message at a later date, the agent had the additional ability to delete the message or cancel its transmission at any time before the delivery time. After receiving the transmission instruction from Akira's agent, the software sent the message to the individual customers over the internet.

The parties do not contest the following characteristics regarding the software for Opt It's text message marketing platform. The platform does not include, and has never included, a random or sequential number generator. There is no way for third-party technology, such as a plugin or application, to augment the platform's functionality. The platform does not produce or create numbers on its own; rather, every single number in Akira's database is derived from either one of Akira's agents manually entering the phone number into the list or the customer sending a request message to Akira's opt-in number.

The platform does not contain an algorithm to predict when a given subscriber would read the message, and the platform only allows Akira to send all of the messages at the same time. Moreover, the platform does not make voice calls and it cannot be used to direct a call to a live operator.

Regarding the software's upgrade capacity, Brian Stafford, Opt It's Chief Executive Officer, stated in an affidavit that:

Opt It's software platform would have to be substantially modified to add new features that would permit the storing or production of numbers using a random or sequential number generator, or the connection of voice calls. Either such modification would require an experienced computer programmer to write source code for the new features and further source code to incorporate those features into Opt It's current software platform. Such modifications would likely take several months of development and testing. Either such modification would fundamentally alter the nature of Opt It's software platform.

Decl. Brian Stafford Supp. Opt It's Resp. Opp'n Pl.'s Mot. Summ. J. Pursuant to Fed. R. Civ. P. 56 ¶ 21 [hereinafter "Stafford Aff"], cited in Def.'s Statement Additional Facts Requiring Denial of Summ. J. ¶¶ 22–25. Other than raising an unsupported general dispute to this evidence, Blow does not challenge this view of Opt It's text messaging software platform. See, e.g., Pl.'s Resp. Additional Facts Requriing Denial Summ. J. ¶ 22 ("Plaintiff objects to Paragraph 22 as irrelevant. Notwithstanding said objection, Plaintiff disputes the facts of Paragraph 22.").

From September 23, 2009 until May 27, 2011, Akira sent approximately sixty text messages in the manner described above to more than 20,000 cell phones, including Blow's. These texts advertised store promotions, sales, fashion shows, events, parties, contests, and giveaways for Akira.

Blow's two-count Third Amended Complaint was filed on April 26, 2013, and alleges violations of the TCPA and the ICFA. On behalf of the class, Blow claims over $1,800,000,000 ($1,500 for each of the 1,200,000 texts sent) in statutory damages. See 47 U.S.C. § 227(b)(3). After the Court certified the class, Blow and Akira cross-filed motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56.² These motions have been fully briefed and are now before the Court.

II. DISCUSSION

A. Standard of Decision

"Summary judgment is appropriate only where there are no genuine issues of material fact and the moving parties are entitled to judgment as a matter of law." Hart v. Mannina, 798 F.3d 578, 584 (7th Cir. 2015) (citing Fed. R. Civ. P. 56(a) ); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Wells v. Coker, 707 F.3d 756, 760 (7th Cir. 2013) (internal quotation marks and citation omitted).

"In reviewing cross-motions for summary judgment, [the Court] take[s] the motions one at a time and then, as usual, construe[s] all facts and draw[s] all reasonable inferences in favor of the non- moving party." Advance Cable Co., LLC v. Cincinnati Ins. Co., 788 F.3d 743, 746 (7th Cir. 2015). "On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). But the Court "will not draw inferences that are ‘supported by only speculation or conjecture.’ " Williams v. Brooks, 809 F.3d 936, 941 (7th Cir. 2016).

B. The Merits

The TCPA "prohibits any person, absent the prior express consent of a telephone-call recipient, from ‘mak[ing] any call ... using any automatic telephone dialing system ... to any telephone number...