RN Center, Inc. filed a three-count class action complaint alleging that on
March 3, 2010, Kohll’s Pharmacy & Homecare, Inc., sent plaintiff an
unsolicited fax advertisement. The complaint alleged that defendant’s conduct:
(1) violated the Telephone Consumer Protection Act of 1991 (Protection Act) (47
U.S.C. § 227; (2) violated the Consumer Fraud and Deceptive Business Practices
Act (Fraud Act) (815 ILCS 505/2; and (3) constituted common-law conversion of
plaintiff’s ink or toner and paper. Each of the three counts included class
complaint alleged that plaintiff did not have a prior business relationship
with defendant and plaintiff did not authorize defendant to send fax
advertisements to plaintiff. The complaint further alleged that defendant’s fax
advertisement did not provide the requisite “opt out notice.”
with its complaint, plaintiff also filed a motion for class certification
pursuant to section 2-801 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-801 et seq.
June 28, 2012, defendant filed a motion seeking summary judgment solely on
count I of plaintiff’s complaint that sought recovery under the Protection Act.
In its motion, defendant alleged that on three separate occasions defendant
tendered plaintiff an unconditional offer of payment exceeding the total
recoverable Protection Act damages. Plaintiff rejected all three tenders.
Defendant further alleged that plaintiff did not file a motion for class
certification despite the case being open for over two years.
circuit court denied defendant’s motion for summary judgment. The court
reasoned that defendant did not make its tender on count I before plaintiff
filed its motion for class certification.
Therefore, the claim was not moot under Barber v. American Airlines, 241 Ill.2d 450 (2011). Barber held that a class action may be
dismissed as moot when the defendant tenders relief to the named plaintiff
prior to the filing of a motion for class certification.
with defendant’s argument that plaintiff’s motion for class certification was
merely a “shell” motion, the circuit court concluded that “Barber requires only that a motion for class certification be
filed. It does not require that it meet any certain standard.”
April 15, 2013, the circuit court granted plaintiffs amended motion for class
certification. On interlocutory appeal, the appellate court
affirmed the circuit court’s order certifying the class on counts II and III
but reversed the court’s class certification on count I. The appellate
court agreed with defendant’s contention that plaintiff’s initial motion for
class certification, filed concurrently with its class action complaint, was a
“shell” motion that was insufficient under Barber.
appeal to the Illinois Supreme Court, plaintiff argued that the appellate court
erroneously construed Barber to
require the motion for class certification filed with its class action
complaint to contain sufficient factual allegations and evidentiary materials
adduced through discovery to avoid mootness when a defendant tenders relief to
the named class representative. Plaintiff urged the court to reject that
interpretation and, instead, adopt the procedure employed by the federal
courts. Plaintiff maintained that while
federal courts in Illinois also require the filing of a class certification
motion with the complaint, they expressly recognized that information about the
size of the class and nature of defendant’s practices will have to be obtained
during discovery and supplied later.
Barber, the court focused on mootness
principles applicable to class actions. Barber,
at 456 (citing Wheatley v. Board of
Education of Township High School District 205, 99 Ill. 2d 481 (1984)).
Specifically, the court explained that:
“[T]he important consideration in determining
whether a named representative’s claim is moot is whether that representative
filed a motion for class certification prior to the time when the defendant
made its tender. [citations omitted.] Where the named representative has done
so, and the motion is thus pending at the time the tender is made, the case is
not moot, and the circuit court should hear and decide the motion for class
certification before deciding whether the case is mooted by the tender.
[Citation omitted.] The reason is that a motion for class certification, while
pending, sufficiently brings the interests of the other class members before
the court ‘so that the apparent conflict between their interests and those of
the defendant will avoid a mootness artificially created by the defendant by
making the named plaintiff whole.’" Barber,
court further explained in Barber,
however, that the situation is different when the tender is made before the
filing of a motion for class certification. In that situation, the interests of
the other class members are not before the court, and the case may properly be
dismissed. Barber, 241 111. 2d at
457. Thus, dismissal of the plaintiff’s class action was proper in Barber because there was no motion for
class certification pending when the defendant refunded the contested $40
baggage fee to the plaintiff, thereby mooting her claim. Barber, at 457.
court in Barber rejected the
so-called “pick off’ exception that had developed in the Illinois appellate
court. The “pick off’ exception lacked a valid legal basis and also
contradicted applicable mootness principles when the named plaintiff in a class
action is granted the requested relief. Barber,
contained no explicit requirement for the class certification motion, other
than the timing of its filing. In other words, Barber does not impose any sort of threshold evidentiary or factual
basis for the class certification motion.
Plaintiff’s motion for class certification was not a “shell” motion
that lacked content. To the contrary, plaintiff’s motion for class
certification identified defendant, the applicable dates, and the general
outline of plaintiff’s class action allegations. More specifically, plaintiffs
motion sought certification of three separate classes of individuals with fax
numbers who received fax advertisements from defendant during a specific time
period and were not provided the requisite “opt out” notice. The motion also
referenced the description of the classes in plaintiff’s concurrently-filed
class action complaint, a pleading that provided additional factual
allegations. Thus, plaintiff’s motion was not a frivolous “shell” motion when
it contained a general outline of plaintiff’s class membership, class action
allegations, and effectively communicated the fundamental nature of the
putative class action.
assuming that plaintiff’s motion for class certification was insufficient for
purposes of class certification under section 2-801 of the Code. Barber did not hold that the motion for
class certification must be meritorious. To the contrary, the focus of Barber was on the timing of the filing of
a motion for class certification—there was no mention of the ultimate merits of
on the timing of the filing of the motion for class certification rather than
on its ultimate merit is also consistent with the approach taken in the Seventh
Circuit Court of Appeals.
Seventh Circuit has also thoroughly addressed the competing interests of the
defendant and the named plaintiff on the issue of a tender mooting the class
action. Rejecting the class action defendant’s concern that a plaintiff may
have an incentive to move for class certification prematurely without the fully
developed facts or discovery required to obtain certification, the court
“If the parties have yet to fully
develop the facts needed for certification, then they can also ask the district
court to delay its ruling to provide time for additional discovery or investigation.
In a variety of other contexts, we have allowed plaintiffs to request stays
after filing suit in order to allow them to complete essential activities.
[Citations omitted.] *** We remind district courts that they must engage in a ‘rigorous
analysis’—sometimes probing behind the pleadings—before ruling on
certification. [Citation omitted.] Although discovery may in some cases be
unnecessary to resolve class issues [citation omitted], in other cases a court
may abuse its discretion by not allowing for appropriate discovery before
deciding whether to certify a class.
approach was entirely consistent with Barber
and correctly afforded the trial court discretion to manage the development of
the putative class action on a case-by-case basis.
did not impose any explicit requirements on the motion for class certification,
and plaintiff’s motion for class certification in this case was sufficient for
purposes of Barber. In cases when
additional discovery or further development of the factual basis is necessary,
those matters will be left to the discretion of the trial court.
important consideration in determining whether a named representative’s claim
is moot is whether that representative filed a motion for class certification
prior to the time when the defendant made its tender. Defendant’s tender of
relief, partial or otherwise, after plaintiff filed its class certification
motion could not render moot any part of plaintiffs pending action under Barber. The appellate court erred in reaching the
opposite conclusion, and the court reversed that part of its decision.
Ballard RN Center,
Inc. v. Kohll’s Pharmacy and Homecare, Inc., 2015 IL 118644.
· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311