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Akira Prevails in Defense of Junk Text Class Action — Chicago Class Action Defense Attorneys

The Seventh Circuit Court of Appeals found the owner of the Akira retail chain didn’t violate federal and state law when it sent promotional text messages to customers who had provided their phone numbers. Nicole B. filed a class‐action lawsuit against Chicago‐based Bijora, Inc., which operates the Akira clothing stores, alleging that Akira’s practice of sending promotional text messages to customers violated the federal Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act.

Akira, which has over 20 stores in the Chicagoland area, used third-party text‐messaging software to inform its customers of promotions, discounts, and in‐store special events. Customers could opt in to its “Text Club” by providing their cell phone numbers to Akira representatives inside stores, texting “Akira” to a number posted in stores, or filling out an “Opt In Card.”

Akira collected cell numbers for over 20,000 customers and between 2009 and 2011, sent some 60 text messages advertising store promotions, parties, events, contests, sales, and giveaways to those customers, including Nicole B.

Nicole alleged that Akira violated TCPA’s prohibition against using an automatic telephone dialing system to make calls without the prior express consent of the recipient. The suit sought $1,500 for each of the 1.2 million texts sent, for a total of over $1.8 billion in statutory damages.

Summary judgment was granted on the trial court’s determination that Akira and its software provider had not used an autodialer to send the messages because human involvement was required in the platform’s text message transmission process.

In Blow v. Bijora, Inc., Nos. 16‐1484 & 16‐1608 (7th Cir. 2017), the Seventh Circuit noted that the FCC’s definition of an autodialer has evolved with technology and telemarketing methods, and instead addressed Akira’s defense that Nicole had consented to the text messages.

Quoting the FCC, the court explained that “persons who knowingly release their phone number have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

The court observed that Nicole gave her cell number to Akira when she signed up for a “frequent buyer card” to earn gift certificates, and also when she requested a sales associate to call her when a pair of shoes arrived in stock. Additionally, she texted “AKIRA” to code 46786 to opt into Akira’s text program. She never followed the instructions in the texts that described how to opt out of receiving them.

“[Nicole] argues that she never consented to Akira’s texts because she provided her phone number to [Akira] to receive discounts but not to receive mass marketing text messages. We are unpersuaded that there is a distinction of legal significance between the two in terms of [her] consent: the alleged “mass marketing” texts were in fact the very “exclusive information and special offers” described on her Akira VIP and client cards.”

Nicole’s attempt to “parse” her consent to accept some promotional information from Akira while rejecting mass marketing texts construed “consent” too narrowly, the court wrote. “We agree with the Ninth Circuit’s recent conclusion that an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages” (quoting Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017)).

Nicole consented because she admittedly provided her number not on a generic form, but specifically in order to receive discounts, the court concluded. “Both cards containing [her] name and cell phone number clearly state that her information would be used to provide exclusive information and special offers.”

Because the texts she received were reasonably related to the purpose for which she provided her cell number, the court agreed with Akira that Nicole provided prior express consent for the text messages.

In Blow v. Bijora, Inc., Nos. 16‐1484 & 16‐1608 (7th Cir. 2017), the Seventh Circuit noted that the FCC’s definition of an autodialer has evolved with technology and telemarketing methods, and instead addressed Akira’s defense that Nicole had consented to the text messages.

Quoting the FCC, the court explained that “persons who knowingly release their phone number have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

The court observed that Nicole gave her cell number to Akira when she signed up for a “frequent buyer card” to earn gift certificates, and also when she requested a sales associate to call her when a pair of shoes arrived in stock. Additionally, she texted “AKIRA” to code 46786 to opt into Akira’s text program. She never followed the instructions in the texts that described how to opt out of receiving them.

“[Nicole] argues that she never consented to Akira’s texts because she provided her phone number to [Akira] to receive discounts but not to receive mass marketing text messages. We are unpersuaded that there is a distinction of legal significance between the two in terms of [her] consent: the alleged “mass marketing” texts were in fact the very “exclusive information and special offers” described on her Akira VIP and client cards.”

Our Schaumburg, Illinois consumer rights private law firm handles individual and class action gift card, data breach, privacy rights, deceptive advertising, predatory lending, unfair debt collection, lemon law and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocatesthe National Consumer Law Center, and local law school consumer programs. The Chicago consumer lawyers at DiTommaso Lubin Austermuehle are proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Naperville and Arlington Heights consumer attorneys provide assistance in data breach, privacy violation, fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases our Chicago consumer lawyers have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Deerfield and Elk Grove Village consumer protection, gift card and data breach attorneys who can assist in consumer fraud, consumer rip-off, lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.  You can also call our toll free number at (877) 990-4990.