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Seventh Circuit affirms summary judgment for Akira in $1.8 billion TCPA action

By Record News | May 9, 2017


CHICAGO – Nicole Blow, who sued clothing retailer Akira for $1.8 billion because it sent text messages to her, granted consent for Akira to send the messages, Seventh Circuit appellate judges ruled on May 4. 

They affirmed summary judgment for Akira, finding the messages reasonably related to the purpose for which she provided her cellular telephone number. 

“The record demonstrates that Blow gave her cell phone number to Akira on several different occasions,” Justice Ilana Rovner wrote. 

“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,” she wrote. 

Justices Kenneth Ripple and Michael Kanne concurred. 

Eric Hseuh founded Akira in 2002, according to the Seventh Circuit opinion, and his company currently operates more than 20 stores in the Chicago area. 

Blow sought to represent a class of 20,000 customers alleging that Akira violated federal telephone law – the Telephone Consumer Protection Act (TCPA) - and Illinois consumer law. 

The Chicago firm of Messer and Stilp filed the action in 2011, on behalf of Akira shopper Nicole Strickler. 

After District Judge Charles Norgle certified an Illinois class, Akira learned that Strickler worked as a lawyer at Messer and Stilp. 

The firm pulled her out, and replaced her with Jennifer Glasson and Blow. 

The firm pulled Glasson out after Akira learned she never received a message. 

Akira moved for decertification of the class, summary judgment, and sanctions. 

Norgle granted summary judgment to Akira, but not on the question of consent. 

He found federal law didn’t apply because Akira didn’t act as an auto dialer. 

He denied sanctions, and he didn’t rule on decertification of the class. 

On appeal, Blow claimed Norgle prematurely decided the question of auto dialing. 

Akira filed a cross appeal on sanctions and class decertification. 

Seventh Circuit judges heard argument last September, and decided that Norgle reached the right decision by the wrong route. 

They disagreed with him on auto dialing, finding he ruled prematurely. 

Instead, they ruled that he should have granted summary judgment on consent. 

Rovner wrote that Blow texted Akira’s name to a short code on Oct. 1, 2009, to opt into the retailer’s text program. 

The ruling states that Blow signed up for what she characterized in her deposition as a frequent buyer card. 

Background information also indicates that Blow could earn gift certificates by reaching spending thresholds. 

Akira produced two cards for Blow, carrying disclaimers that it would use information solely to provide exclusive information and special offers. 

In the ruling, Rovner quoted notes reflecting that Blow asked a sales associate to call her when a particular pair of shoes arrived in stock. 

Rovner wrote that Blow received 60 messages through May 2011. Three messages included instructions on unsubscribing.

“Blow never followed the instructions in these texts or otherwise attempted to opt out of receiving tests from Akira,” she wrote. 

Rovner assured Akira shoppers who hadn’t filled out loyalty cards or opted into the text club that judgment against Blow would not bind them. 

The panel of judges affirmed Norgle’s denial of sanctions. 

Rovner wrote that Akira claimed counsel knew Blow expressly consented to receive messages and that counsel therefore pressed a claim the law didn’t support. 

Although the court rejected Blow’s claim that her consent did not extend to the texts Akira sent, “we would not go so far as to conclude that her position was so baseless as to warrant sanctions,”  Rovner wrote. 

“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 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.” 

Rovner added a footnote that the firm is now Messer, Stilp and Strickler.

Attorney Dana Perminas of the firm represented Blow at the Seventh Circuit. 

Attorney James Borcia, of the Tressler firm in Chicago, represented Arika.    

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Akira U.S. Court of Appeals for the Seventh Circuit