Ballard RN Center, Inc. v. Kohll's Pharmacy & Homecare, Inc.
48 N.E.3d 1060
Ill.
2015

Background

  • Ballard RN Center filed a three-count class-action complaint (TCPA violation, Illinois Consumer Fraud Act, and conversion) alleging Kohll’s sent an unsolicited fax to Ballard and thousands of others, and concurrently filed a motion for class certification.
  • The fax contained a removal/opt-out notice that Ballard alleged did not comply with the TCPA’s opt-out requirements; discovery later showed over 4,000 faxes were transmitted on Kohll’s behalf.
  • Before class certification was decided, Kohll’s tendered payment to Ballard on multiple occasions (Ballard refused), and sought summary judgment that the TCPA claim (count I) was moot under Barber v. American Airlines because tender occurred prior to a certification motion.
  • Ballard argued its contemporaneous motion for class certification (filed with the complaint) prevented mooting under Barber and that Kohll’s tender addressed only count I (so could not moot the whole suit).
  • The trial court denied Kohll’s summary-judgment motion and certified the class on all three counts; the appellate court affirmed certification on counts II and III but reversed certification on count I, concluding Ballard’s initial certification filing was a deficient “shell” motion under Barber.
  • The Illinois Supreme Court reversed the appellate court in part: it held Barber’s timing rule requires only that a motion for class certification be filed before tender (no heightened evidentiary threshold), so Kohll’s tender after Ballard filed its motion did not moot count I; the court affirmed certification on counts II and III and remanded.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Barber requires a threshold evidentiary or factual basis for a certification motion to prevent a tender from mooting the class claim Ballard: Barber requires only that a certification motion be filed before tender; no heightened factual/evidentiary showing is required — further development can occur via discovery Kohll’s: Barber implicitly requires a substantive motion (not a ‘shell’); otherwise plaintiffs could evade pick-off by filing contentless motions Held: Barber focuses on timing, not merits; a contemporaneous certification motion (even if not yet supported by full discovery) suffices to prevent mootness; trial courts retain discretion to require further development.
Whether a contemporaneous “shell” or placeholder motion should be treated as ineffective to avoid mooting Ballard: its motion identified defendant, class description, dates and relied on the complaint — not a contentless shell Kohll’s: initial motion was a shell lacking factual allegations/evidence and thus did not bring class interests before the court Held: A frivolous or contentless pleading would not suffice, but Ballard’s motion was not a shell; Barber does not demand the motion be meritorious, only filed before tender.
Whether a defendant’s partial tender (payment on a single count of a multicount complaint) can moot that count under Barber Ballard: Barber’s timing rule prevents any tender after a pending certification motion from mooting any part of the action; partial tender cannot selectively moot Kohll’s: tendered full relief on count I and that should moot count I even if other counts survive Held: Because Ballard filed its certification motion before tender, Kohll’s subsequent tender could not render count I moot under Barber; the court did not need to resolve the adequacy of a partial tender.
Whether appellate court’s judgment should be affirmed on alternative class-certification grounds urged by Kohll’s Ballard: trial and appellate courts already considered and rejected Kohll’s arguments on numerosity, predominance, and adequacy Kohll’s: Certification should be denied on other grounds (individualized issues, Ballard inadequate) Held: Illinois Supreme Court declined to affirm on those alternative grounds because Kohll’s presentation was insufficiently developed and those issues had been decided against it below; the court did not reach merits of those alternative arguments.

Key Cases Cited

  • Barber v. American Airlines, Inc., 241 Ill. 2d 450 (2011) (Illinois Supreme Court holding a defendant’s tender moots a class claim only if made before a motion for class certification is filed)
  • Susman v. Lincoln American Corp., 587 F.2d 866 (7th Cir. 1978) (motion for certification brings unnamed class members' interests before the court for mootness purposes)
  • Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011) (discussion of timing rule and discovery considerations for certification motions)
  • Espenscheid v. DirectSat USA, LLC, 688 F.3d 872 (7th Cir. 2012) (reiterating that tender after a certification motion is filed does not moot the action absent dilatory conduct)
  • Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544 (7th Cir. 2003) (same principle regarding post-filing tenders and mootness)
  • Wheatley v. Board of Education of Township High School District 205, 99 Ill. 2d 481 (1984) (Illinois mootness principles applied to class actions)
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