Shook Wins Appellate Victory in TCPA Suit Against "Professional Class Plaintiff"

Appellate Court of Illinois, First District

Shook attorneys obtained a significant victory in a Telephone Consumer Protection Act (TCPA) class action when the Appellate Court of Illinois, First District, affirmed summary judgment in favor of a client sued for damages related to the sending of allegedly unsolicited faxes. Not only did the ruling apply on a class-wide basis against a previously certified class of nearly 2,000 individuals and entities, but the win was against CE Design, described by the Appellate Court as a “professional class plaintiff” known for filing dozens of TCPA complaints nationwide. Shook Partner Matt Sitzer, with Associate Patrick Castle, represented defendant Ernida in the appeal.

In 2005, Ernida, a small kitchen supply company, sent a fax to CE Design—then an engineering, architectural and surveying consulting firm—after finding its listing in the “Blue Book,” a directory of commercial construction businesses in Illinois whose stated purpose was to “bring buyers and sellers together within the commercial construction industry.” Unlike Ernida, who had a small, free listing in the directory, CE Design had purchased a featured directory advertisement highlighting its name and contact information in color and bold print– and chose to include its fax number. In 2008, CE Design filed suit against Ernida pursuant to the TCPA, alleging the 2005 fax was unsolicited.

Before Shook entered the case, the trial court had granted summary judgment to CE Design and certified the class. Shook persuaded the court to allow a renewed motion for summary judgment but  stay its ruling until the Appellate Court issued an opinion in a nearly identical case, CE Design v. Speedway Crane, involving the same plaintiff and a fax sent by a different defendant.

In Speedway, the Appellate Court of Illinois considered CE Design’s appeal of summary judgment in favor of Speedway Crane, a construction crane rental company who sent a fax advertisement to CE Design after seeing its listing in the Blue Book. First, the court noted that the Federal Communications Commission had said that in the context of membership in a trade organization, consent to receive unsolicited faxes had to be treated on a case-by-case basis; also, that the main consideration for determining consent in the context of industry and trade directories was whether a business “understood” that by supplying its fax number to the directory, it was agreeing to receive unsolicited faxes. Because of the complicated process involved in applying for inclusion in the Blue Book, the court held that the process itself demonstrated “prior express permission to receive faxed advertisements from other Blue Book ‘customers.’” In fact, CE Design’s owner had testified that “the whole point of us being in the Blue Book was to have [people] contact us.” Second, the court found that because both companies were Blue Book affiliates, they had an established business relationship which negated any lack of consent under the TCPA.

Following the Speedway ruling, the trial court granted summary judgment to Ernida, holding that CE Design’s Blue Book advertising “would lead a reasonable person to the objective conclusion that CE Design expected (and hence consented) to receive faxes from Blue Book users like Ernida, and therefore that CE Design gave its prior express invitation or permission to receive Ernida’s June 2005 fax.” CE Design appealed, arguing that Speedway didn’t apply because while both parties in that case were Blue Book “customers” who had purchased special advertising, Ernida was merely a “user” with a free listing.

The Appellate Court gave CE Design’s argument short shrift, saying it was not a “meaningful distinction” and that the critical point was whether the defendant was a Blue Book industry business. The court held: “By purchasing an advertising program and including its contact information in the Blue Book, an industry trade directory, plaintiff affirmatively invited and expressly consented to contact from businesses in the commercial construction industry, such as defendant’s. By voluntarily providing its fax number, plaintiff consented to contact by facsimile transmissions. The fax sent by defendant was not unsolicited, and defendant did not violate the TCPA as a matter of law.”

CE Design Ltd. v. Ernida LLC, 2017 Ill. App. 1st, 161129 (unpublished opinion issued Aug. 31, 2017); CE Design Ltd. v. Ernida LLC, No. 08-24965 (Ill. Cir. Ct., Cook Cty., summary judgment entered March 25, 2016); CE Design Ltd. v. Speedway Crane LLC, 2015 Ill. App. 1st 132572 (opinion issued June 18, 2015). The version of the TCPA that was in effect in June 2005 was subsequently overridden by the July 2005 passage of the Junk Fax Prevention Act; the Illinois courts reviewed both this matter and Speedway under the 2004 version of the TCPA and the FCC interpretation applicable to it.