BALLARD RN CENTER, INC., Appellant, v. KOHLL‘S PHARMACY AND HOMECARE, INC., Appellee.
Docket No. 118644
SUPREME COURT OF THE STATE OF ILLINOIS
October 22, 2015
2015 IL 118644
JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 This appeal involves our decision in Barber v. American Airlines, Inc., 241 Ill. 2d 450 (2011), holding 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. Specifically, we are asked to decide whether Barber requires any sort of threshold evidentiary or factual basis for the motion for class certification, and whether Barber permits a “partial” tender on a single count of a multicount class action complaint to render that single count moot.
¶ 2 In this case, plaintiff concurrently filed a three-count “junk fax” class action complaint and a motion for class certification prior to defendant‘s tender of relief
¶ 3 For the following reasons, we reverse in part and affirm in part the appellate court‘s judgment.
BACKGROUND
¶ 4 On April 20, 2010, plaintiff, Ballard RN Center, Inc., filed a three-count class action complaint in the circuit court of Cook County, alleging that on March 3, 2010, defendant, 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) (
¶ 5 The complaint specifically 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” required by the Protection Act when faxes are sent with consent or pursuant to an established business relationship. The complaint asserted, on information and belief, that the fax was part of a “mass broadcasting of faxes” and defendant transmitted similar unsolicited fax advertisements to at least 40 other persons in Illinois.
¶ 6 Plaintiff attached a copy of the one-page fax advertisement to its complaint. The fax advertises defendant‘s “Corporate Flu Shots” and provides estimates of the costs associated with employees missing work because of illness. It also provides a toll-free contact number for a “free quote” and an associated website. At the bottom
¶ 7 Concurrent with its filing of the complaint on April 20, 2010, plaintiff also filed a motion for class certification pursuant to
“All persons and entities with facsimile numbers (1) who, on or after April 20, 2006, or such shorter period during which faxes were sent by or on behalf of defendant Kohll‘s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant Kohll‘s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and who were not provided an ‘opt out’ notice that complies with federal law. (Count I)
All persons and entities with Illinois fax numbers (1) who, on or after April 20, 2007, or such shorter period during which faxes were sent by or on behalf of defendant Kohll‘s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant Kohll‘s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and who were not provided an ‘opt out’ notice that complies with federal law. (Count II)
All persons and entities with Illinois fax numbers (1) who, on or after April 20, 2005, or such shorter period during which faxes were sent by or on behalf of defendant Kohll‘s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant Kohll‘s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and who were not provided an ‘opt out’ notice that complies with federal law. (Count III).”
¶ 8 Plaintiff‘s class certification motion further asserted that “[s]everal courts have certified class actions under the [Protection Act],” and cited as examples a number of decisions from state and federal courts in Illinois and other states. The motion provided that plaintiff would file a supporting memorandum of law “in due course.”
¶ 10 Defendant attached to its motion for summary judgment three letters that it mailed to plaintiff offering tender of relief. The first, dated June 29, 2011, included a check for $1,600; the second, dated June 5, 2012, included a check for $1,500; the third, dated June 28, 2012, included a check for $2,500. Plaintiff rejected all three offers and returned the checks.
¶ 11 On September 7, 2012, plaintiff filed a response to defendant‘s motion for summary judgment. Contrary to defendant‘s contention, plaintiff argued that its action was not moot under Barber because plaintiff timely filed a motion for class certification concurrently with its class action complaint on April 20, 2010. Plaintiff further argued that defendant tendered relief only on count I of plaintiff‘s three-count complaint and, thus, did not offer the complete relief required to moot the action.
¶ 12 Regarding defendant‘s observation that plaintiff‘s action was pending for over two years, plaintiff contended that it “diligently pursued the discovery necessary to present the Court with briefing on the class certification issue,” and that “[a]ny delay in proceeding on class certification is a direct result of [d]efendant‘s obfuscation of discovery in this case.” Plaintiff noted that it filed two motions to compel discovery, a motion to compel inspection to identify relevant third parties and potential class members, and also propounded discovery on third parties. Plaintiff indicated that it engaged in efforts to enforce discovery through March 2012.
¶ 13 On October 9, 2012, defendant filed a reply in support of its motion for summary judgment. Citing Barber, defendant argued that summary judgment in its
¶ 14 On November 19, 2012, plaintiff filed an amended motion for class certification, seeking to certify a class of “(a) all parties (b) who, on or about March 3, 2010, (c) were sent advertising faxes by defendant and (d) with respect to whom defendant cannot provide evidence of consent or a prior business relationship.” Plaintiff asserted that its action satisfied the prerequisites for a class action under ¶ 15 Plaintiff further asserted that questions of law and fact common to the class predominated over any questions affecting only individual members, including: (1) whether defendant engaged in a pattern of sending unsolicited fax advertisements; (2) whether defendant thereby violated the federal Protection Act; (3) whether defendant thereby converted plaintiffs’ toner and paper; and (4) whether defendant thereby engaged in unfair and deceptive acts and practices in violation of the Fraud Act. Plaintiff also asserted that it would fairly and adequately protect the interests of the class and that a class action is an appropriate method for the fair and efficient adjudication of the controversy. ¶ 16 On November 29, 2012, the circuit court denied defendant‘s motion for summary judgment on count I of plaintiff‘s complaint. The court reasoned that defendant did not offer tender on count I before plaintiff filed its motion for class certification and, therefore, the claim was not moot under Barber. Disagreeing with defendant‘s argument that plaintiff‘s motion for class certification was merely a ¶ 17 On March 14, 2013, defendant filed a response in opposition to plaintiff‘s motion for class certification, arguing that plaintiff‘s motion should be denied because plaintiff failed to establish that a class action should proceed under ¶ 18 On April 15, 2013, the circuit court granted plaintiffs amended motion for class certification. The court found that numerosity was satisfied because over 4,000 fax advertisements were sent and that common class questions predominated because defendant was alleged to have acted wrongly in the same general way to all class members. The court also found that plaintiff was an adequate class representative and that a class action was an appropriate method for resolution of the claims. Defendant appealed. ¶ 19 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. 2014 IL App (1st) 131543, ¶ 64. 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 our decision in Barber. 2014 IL App (1st) 131543, ¶ 60. ¶ 20 While acknowledging that Barber did not expressly set forth requirements for a valid motion for class certification, the appellate court nonetheless concluded that “implicit” in Barber was a requirement that “a motion must contain sufficient factual allegations so that it does, in fact, bring the interests of the other class members before the court.” 2014 IL App (1st) 131543, ¶ 57. Explaining its interpretation of Barber, the appellate court stated that “[o]therwise, the court has no basis upon which to determine whether an actual controversy exists between the other class members and the defendant, as would avoid mooting the issue.” 2014 IL ¶ 21 On the adequacy of defendant‘s tender of relief on Count I, the appellate court noted that plaintiff did not contest defendant‘s assertion that the $2,500 tendered by defendant was sufficient to satisfy count I and that defendant conceded at oral argument that its tender only pertained to count I. 2014 IL App (1st) 131543, ¶¶ 62-63. Consequently, the court concluded that defendant‘s tender operated to moot only count I of plaintiffs complaint but not counts II and III. The court then reversed the trial court‘s class certification on count I but affirmed its certification on counts II and III. 2014 IL App (1st) 131543, ¶ 64. ¶ 22 We allowed plaintiffs petition for leave to appeal. ¶ 23 On appeal, plaintiff argues 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 urges this court to reject that interpretation and, instead, adopt the procedure employed by the federal courts. Specifically, plaintiff maintains that “[w]hile 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.” Plaintiff further argues that the appellate court improperly construed Barber to permit a class action defendant to moot selectively a single count of a multicount complaint by making “partial” tender on that count. ¶ 24 Defendant responds that the appellate court correctly concluded that plaintiff‘s initial motion for class certification was a “shell” or “placeholder” motion with ¶ 25 Defendant also devotes a significant portion of its brief to arguing that the appellate court‘s decision should be “affirmed on other grounds.” Specifically, defendant argues that the appellate court erroneously found that class certification was an appropriate method of resolution of this case, erroneously concluded that common issues of fact and law predominated over individual defenses, and erroneously determined that plaintiff was an adequate representative. ¶ 26 To resolve the issues presented in this appeal, we must determine whether the appellate court properly interpreted our decision in Barber. Because the contested issues present questions of law, our review is de novo. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 27. ¶ 27 We first consider whether the appellate court properly interpreted Barber to require the motion for class certification filed with a 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 plaintiff. To answer this question, we must review our decision in Barber. ¶ 28 In Barber, the plaintiff filed a class action complaint against the defendant airline company based on the defendant‘s alleged refusal to refund a prepaid $40 baggage fee after her scheduled flight was cancelled. The plaintiff‘s two-count complaint alleged a single count of breach of contract and a single class action count seeking recovery on behalf of similarly situated persons. The plaintiff, however, did not file a motion for class certification. Barber, 241 Ill. 2d at 452-53. ¶ 29 Less than a month after the plaintiff‘s complaint was filed, the defendant in Barber offered to refund the $40 baggage fee, but the plaintiff refused to accept the ¶ 30 On appeal to this court, the defendant in Barber argued that the appellate court majority erred in reversing the trial court‘s dismissal of the plaintiff‘s complaint. The defendant argued that the underlying cause of action must be dismissed as moot when a class action defendant tenders the named plaintiff the relief requested before a motion for class certification is filed. Because the defendant tendered the contested $40 baggage fee to the plaintiff and refunded that amount to her credit card, the defendant argued that the trial court properly dismissed the plaintiffs class action complaint as moot. Barber, 241 Ill. 2d at 454-55. ¶ 31 In response, the Barber plaintiff argued that defendant‘s tender was an unfair attempt to “pick off” her claim as class representative to defeat the proposed class action. The plaintiff argued that the appellate court properly rejected the defendant‘s attempt to defeat the class action under the so-called “‘pick off exception” that had developed in the Illinois appellate court. Barber, 241 Ill. 2d at 455. ¶ 32 Turning to the merits of the parties’ arguments in Barber, this court focused on mootness principles applicable to class actions. Barber, 241 Ill. 2d at 456 (citing Wheatley v. Board of Education of Township High School District 205, 99 Ill. 2d 481 (1984)). Specifically, this 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.] 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.] 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 We 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 Ill. 2d at 457. Thus, this court concluded that 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 named plaintiff, thereby mooting her claim. Barber, 241 Ill. 2d at 457. ¶ 33 Lastly, this court in Barber rejected the so-called “pick off” exception that had developed in the Illinois appellate court. We concluded that 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, 241 Ill. 2d at 460. ¶ 34 Having carefully reviewed Barber, it is clear that Barber contains 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. ¶ 35 Nevertheless, the appellate court here discerned an “implicit” requirement for the class certification motion, concluding that Barber required the motion for class certification to “contain sufficient factual allegations so that it does, in fact, bring the interests of the other class members before the court.” 2014 IL App (1st) 131543, ¶ 57. The appellate court also concluded that the motion should contain “evidentiary materials adduced through discovery.” (Emphasis omitted.) 2014 IL App (1st) 131543, ¶ 58. The appellate court expressed concern that “if a putative class action plaintiff could circumvent the holding of Barber merely by filing a contentless ‘shell’ motion for class certification contemporaneously with its complaint, then it would effectively eviscerate the Barber decision.” 2014 IL App (1st) 131543, ¶ 59. ¶ 36 While we agree in principle with the appellate court‘s suggestion that a “contentless ‘shell’ motion,” or otherwise frivolous pleading, would be insufficient ¶ 37 Even assuming that plaintiff‘s motion for class certification was insufficient for purposes of class certification under ¶ 38 Focusing 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. It is settled that we may consider federal case law for guidance on class action issues because the Illinois class action statute is patterned on ¶ 39 Consistent with Barber, the Seventh Circuit holds that tender of relief to the named plaintiff before a motion for class certification is filed renders the action moot but a tender made after a certification motion is filed does not. Espenscheid v. DirectSat USA, LLC, 688 F.3d 872, 874 (7th Cir. 2012); see also Damasco, 662 F.3d at 896 (citing Barber and recognizing that this court‘s approach on the issue is the same as the Seventh Circuit). More specifically, the court has explained “‘the mooting of the named plaintiff‘s claim in a class action by the defendant‘s satisfying the claim does not moot the action so long as the case has been certified as a class action, or ... so long as a motion for class certification has been made and not ruled on, unless ... the movant has been dilatory.‘” Espenscheid, 688 F.3d at 874 (quoting Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544, 546-47 (7th Cir. 2003)). ¶ 40 Relevant to the controversy here, the Seventh Circuit has also thoroughly addressed the competing interests of the defendant and the named plaintiff on the issue of 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 explained that: “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.] *** We remind district courts that they must engage in a ‘rigorous analysis‘—sometimes probing behind the pleadings—before ruling on certification. [Citation.] Although discovery may in some cases be unnecessary to resolve class issues [citation], in other cases a court may abuse its discretion by not allowing for appropriate discovery before deciding whether to certify a class [citations].” Damasco, 662 F.3d at 896-97. We believe this approach is entirely consistent with our decision in Barber and correctly affords the trial court discretion to manage the development of the putative class action on a case-by-case basis. See Smith, 223 Ill. 2d at 447 (citing Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 125-26 (2005) (noting that “[d]ecisions regarding class certification are within the discretion of the trial court“)). In addition, it also properly balances the competing interests of the named plaintiff and defendant in class actions. ¶ 41 Accordingly, because Barber did not impose any explicit requirements on the motion for class certification, let alone a heightened evidentiary or factual basis for the motion, we conclude that plaintiffs 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, as occurred here, those matters will be left to the discretion of the trial court. ¶ 42 Here, plaintiff undisputedly filed its motion for class certification before defendant‘s purported tender of relief on count I. As we explained in Barber, “the 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.” Barber, 241 Ill. 2d at 456. Simply put, defendant‘s tender of relief, “partial” or otherwise,2 after plaintiff filed its class certification motion could not render moot any part of plaintiff‘s pending action under Barber. See Barber, 241 Ill. 2d at 456-47 (explaining why mootness does not apply when a motion for class certification is pending when the defendant tenders relief to the named representative). The appellate court erred in reaching the opposite conclusion, and we reverse that part of its decision. ¶ 43 Lastly, defendant, as the appellee, argues that “[t]he decision of the appellate court to deny class certification should be affirmed on other grounds.” We note, however, that the circuit court ruled in favor of plaintiff on all three counts and ¶ 44 While the appellate court reversed the trial court‘s order certifying the class on count I on the basis of its interpretation of Barber, we have already resolved that issue in plaintiffs favor. See supra ¶¶ 31-48. Nonetheless, defendant argues in its alternative argument to affirm the appellate court‘s judgment that the court “erred” when it found that class certification was an appropriate method of resolution. Defendant further argues that the appellate court “erred” in determining that common issues of fact and law predominate over individual defenses regarding the Protection Act claim (count I) and conversion claim (count III). Contrary to the appellate court‘s conclusion, defendant also argues that class certification should have been denied because plaintiff is an unacceptable “tainted” class representative. ¶ 45 Notably, like the circuit court, the appellate court found in favor of plaintiff on all of these class certification issues. 2014 IL App (1st) 131543, ¶¶ 20-32, 43, 52. In other words, defendant‘s contentions in its alternative argument to affirm the appellate court‘s judgment have been considered, and rejected, by both the circuit court and appellate court. More to the point, as plaintiff correctly observes in its reply brief, “[a]lthough no other issues related to the appellate court‘s ruling were raised in the petition for leave to appeal, [defendant] asks the court to hold that class certification was improper for other reasons.” As plaintiffs observation demonstrates, defendant, as the appellee, effectively seeks reversal of the circuit court‘s judgment on these class certification issues despite both the trial court and appellate court having considered those certification issues on their merits and resolving them in plaintiffs favor. ¶ 46 Defendant, however, fails to advance clearly its argument that the appellate court‘s judgment “should be affirmed on other grounds.” Moreover, defendant‘s alternative argument omits citation to the record for a number of its claims, in contravention of ¶ 47 For these reasons, we reverse the part of the appellate court‘s judgment that reversed the circuit court‘s order certifying the class on count I and affirm the remaining parts of its judgment. We affirm the circuit court‘s judgment and remand the matter to the circuit court for further proceedings. ¶ 48 Appellate court judgment reversed in part and affirmed in part. ¶ 49 Circuit court judgment affirmed. ¶ 50 Cause remanded.ANALYSIS
CONCLUSION