In re ABBOTT LABORATORIES, INC., Petitioner. In re Abbott Laboratories, Inc., Respondent.
Nos. 12-8020, 12-8021, 12-8022, 12-8023, 12-8024, 12-8025, 12-8026, 12-8027
United States Court of Appeals, Seventh Circuit
Submitted June 7, 2012. Decided Oct. 16, 2012.
698 F.3d 568
Ultimately, the undisputed facts reveal that Pat Kelliher worried that the unidentified, threatening caller might commit a crime against her husband and that fear was reasonable. Thus, her recording satisfies the fear of crime exemption under the Illinois eavesdropping statute, and summary judgment for the defendants is proper.
C. Because the Fear of Crime Exemption Applies, No Continued Use Violations Occurred.
In addition to making recordings without consent, the eavesdropping act also prohibits “us[ing] or divulg[ing] any information which [a person] knows or reasonably should know was obtained through the use of an eavesdropping device.”
Section 5/14-3, which contains the fear of crime exemption, explains that the “following activities shall be exempt from the provisions of this Article.” Thus, the exemptions apply to all parts of the eavesdropping act, including the prohibition on using and divulging recorded information. Ms. Carroll offers no Illinois authority-and wе have found none-permitting the disregard for the plain text of the statute that her argument requires. Senator Dillard‘s floor statements, which reveal one statutory purpose of allowing private individuals to collect evidence to assist a future criminal prosecution, are not to the contrary. See 1996 Ill. Att‘y Gen. Op. No. 036 (quoting Senate Debates, 88th Ill. Gen. Assem., Apr. 21, 1994, at 139-40 (statement of Sen. Kirk Dillard)). Nothing in this statement and-more importantly, nothing in the text-limits the fear of crime exemption to the particular use of re-playing the recording to assist in a criminal prosecution. Consequently, beсause the fear of crime exemption applies to all parts of the eavesdropping act and because Pat Kelliher‘s recording falls within this exemption, Jim Kelliher and other Merrill Lynch employees did not violate the eavesdropping act when they re-played the recording of Ms. Carroll‘s call for Carroll‘s supervisors at Merrill Lynch.9
III. Conclusion
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment for defendants.
Michael W. Rathsack, Attorney, Chicago, IL, for Respondents.
Before KANNE, WOOD, and TINDER, Circuit Judges.
The parties petition us to resolve two conflicting district court decisions and decide whether a motion to consolidate and transfer related state court cases to one circuit court through trial constitutes a proposal to try the cases jointly, thus triggering the “mass action” provision of the Class Action Fairness Act (“CAFA“),
Between August 2010 and November 2011 several hundred plaintiffs filed ten lawsuits in Illinois state court against Abbott Laboratories for personal injuries they allege were caused by Depakote, a prescription medication Abbott developed and markets.1 Plаintiffs filed their lawsuits in St. Clair County, Madison County, and Cook County. In December 2011 plaintiffs moved the Supreme Court of Illinois to consolidate and transfer their cases to St. Clair County, pursuant to Illinois Supreme Court Rule 384. Abbott opposed the motion, and as of this date, the Supreme Court has not ruled. Rule 384(a) says:
Motion to Consolidate-Transfer. When civil actions involving one or more common questions of fact or law are pending in different judicial circuits, and the supreme court determines that consolidation would serve the convenience of the parties and witnesses and would promote the just and efficient conduct of such actions, the supreme court may, on its own motion or on the motion of any party filed with the supreme court, transfer all such actions to one judicial circuit for consolidated pretrial, trial, or post-trial proceedings.
Plaintiffs asked for consolidation of their lawsuits in St. Clair County because the cases “present common questions of fact concerning Abbott‘s development, testing, manufacturing, and marketing of Depakote, as well as common questions of law regarding Abbott‘s liability for same” and “[c]onsolidation will eliminate duplicative discovery and pretrial litigation, prevent inconsistent pretrial and trial rulings, and thereby promote judicial efficiency.” In the memorandum in support of their motion, plaintiffs said they were requesting consolidation of the cases “through trial” and “not solely for pretrial proceedings.”2
Judge Murphy in the Southern District ruled on plaintiffs’ motions to remand first, granting the motions on April 17, 2012. He held that Abbott‘s arguments were foreclosed by our decision in Anderson v. Bayer, 610 F.3d 390 (7th Cir.2010), and concluded that the language in the motion to consolidate did not propose a joint trial. He said, “it appears that Plaintiffs contemplate consolidated discovery and pretrial proceedings, but not a joint trial of the hundreds of claims asserted in the ten subject cases. This is consistent with the Court‘s experience, in which so-called ‘mass tort’ cases are never tried in their entirety, and instead ‘bellwether’ claims selected by the parties are tried individually in order to answer difficult issues of causation or liability common to all the claims and/or to value the remaining claims in the case for purposes of settlement.” Judge Darrah disagreed, and on May 9, 2012, denied plaintiffs’ motion to remand. He said the motion to consolidate “clearly intends to move the Illinois Supreme Court to consolidate the 10 complaints for аll purposes, including (as they specifically indicate) for purposes of conducting a trial.” Abbott petitioned us to review Judge Murphy‘s decision, and plaintiffs petitioned for review of Judge Darrah‘s decision. The parties now seem to agree that interlocutory review is warranted but disрute whether plaintiffs’ cases constitute a mass action.
Section 1332(d)(11)(B)(i) defines a mass action as “any civil action ... in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the
Plaintiffs argue that they did not propose a joint trial because thеir motion to consolidate did not address how the trials of the various claims in the cases would be conducted, other than proposing that they all take place in the Circuit Court of St. Clair County. Their motion and memorandum do not propose that one or more of the cases bе tried jointly or that all parties would be bound by the findings of one trial. Rather, plaintiffs contend, their motion simply requests that the cases be coordinated through trial. If the motion is granted the transferee trial court would decide how to administer the cases, including how any trial would be conducted. In plaintiffs’ view, for the mass action provision to apply they would need to take the further step of requesting a joint trial or an exemplar trial that would affect the remaining cases.
We have addressed CAFA‘s mass action provision several times, but never in the context of a motion to consolidate. Judge Murphy concluded that Abbott‘s position was foreclosed by our decision in Anderson, 610 F.3d 390. There, plaintiffs filed five separate but mostly identical complaints in state court. Bayer argued that plaintiffs were attempting to circumvent CAFA‘s mass action provision by artificially splitting their claims into five cases. We looked at CAFA‘s statutory language and held that the complaints did not constitute a mass action because plaintiffs never proposed to try their claims jointly. Id. at 393; see Tanoh v. Dow Chem. Co., 561 F.3d 945, 953 (9th Cir.2009) (reaching similar conclusion). As long as plaintiffs had not proposed a joint trial, “[t]he mass actiоn provision gives plaintiffs the choice to file separate actions that do not qualify for CAFA jurisdiction.” Anderson, 610 F.3d at 393. Under the reasoning of Anderson, plaintiffs were not in danger of having their cases removed when they filed eleven similar complaints in state court. But when they moved the Supreme Court of Illinois to consolidate their cases through trial-reasonably construed by Abbott as a proposal for a joint trial-Anderson no longer controlled.
Plaintiffs argue that they never specifically asked for a joint trial, but a proposal for a joint trial can be implicit. In Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759 (7th Cir.2008), plaintiffs filed a complaint identifying 144 plaintiffs, but argued that because the complaint did not propose a joint trial, the suit was not a mass action. Id. at 761. We held that one complaint implicitly proposes one trial and thus the suit was a mass action. Id. at 762.
And in Koral v. Boeing, Co., 628 F.3d 945, 947 (7th Cir.2011), we examined whether a statement in response to a motion to dismiss could be considered a proposal for a joint trial. Boeing moved to dismiss plaintiffs’ 29 lawsuits based on forum non conveniens, arguing that it would be inconvenient for its employees in Washington to travel to Illinois to testify in 29 trials. Id. at 946. Plaintiffs’ attorney responded that there likely would be only one exemplar trial to determine liability. Boeing then removed the cases to fedеral court, arguing that counsel‘s statement was a proposal to try the cases jointly. We disagreed and said, “We think the plaintiff‘s statement falls just short of a proposal, as it is rather a prediction of what might happen if the judge decided to hold a mass trial.” Id. at 947.
Plaintiffs may not have explicitly asked that their claims be tried jointly, but the language in their motion comes very close. As noted above, plaintiffs requested consоlidation of their cases “through trial” and “not solely for pretrial proceedings.” They further asserted that consolidation through trial “would also facilitate the efficient disposition of a number of universal and fundamental substantive questions applicable to all or most Plaintiffs’ cases without the risk of inconsistent adjudication in those issues between various courts” (emphasis added). We agree with Abbott that it is difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases. In either situation, plaintiffs’ claims would be tried jointly. Although plaintiffs assert that the transferee court will decide how their cases proceed to trial, “[i]t does not matter whether a trial covering 100 or more plaintiffs actually ensues; the statutory question is whether one hаs been proposed.” Bullard, 535 F.3d at 762.
Plaintiffs further argue that even if their motion to consolidate was a proposal for a joint trial, removal was improper because their motion was not filed in the right court. They point out that in Koral we said a proposal for a joint trial “must be to the court in whiсh the suits are pending.” 628 F.3d at 947. They argue that because their motion for consolidation was filed in the Supreme Court of Illinois and not in any circuit court in which their cases were pending, removal as a mass action was improper. Section
We REVERSE Judge Murphy‘s order granting plaintiffs’ motions to remand and AFFIRM Judge Darrah‘s order denying plaintiffs’ motion tо remand.