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Quick take on Thursday's Illinois Supreme Court opinion in "junk fax" case

Ballard RN Center, Inc. v. Kohll's Pharmacy & Homecare, Inc.

By Michael T. Reagan, Law Offices of Michael T. Reagan

In this “junk fax” class action case, the court held that a motion for class certification filed contemporaneously with the complaint was sufficient to bar a claim of mootness by defendant, which tendered the full amount recoverable under the Telephone Consumer Protection Act after the complaint, and class certification motion, were filed. In partially reversing the appellate court and in affirming the circuit court, the supreme court centered its analysis on its opinion in Barber v. American Airlines, Inc., 241 Ill.2d 450 (2011).

In Barber, plaintiff’s class action was properly dismissed because there was no motion for class certification pending when the defendant refunded the $40 baggage fee which was at issue, thereby mooting the class plaintiff’s claim. An underpinning of the reasoning in Barber was that in the absence of a motion for certification, the interests of the other class members were not then before the court.  

Here, defendant argued, in part, that the motion for class certification was a “shell” motion that lacked content. The supreme court disagreed, saying that the motion contained a general outline of the action, and effectively communicated the fundamental nature of the putative class action.

Sharpening the court’s point more, this opinion states that Barber did not hold that the pending motion for class certification must be meritorious. The court agreed in principle that a motion for certification which lacked content or was otherwise frivolous might be insufficient to preclude a mootness finding, but that was not so here.

The court declined to address plaintiff’s argument that the tender of sums sufficient to satisfy the TCPA was only an arguably insufficient partial tender because it could not possibly have mooted the Consumer Fraud Act and common law fraud claims. Consideration of that issue was not necessary because of the court’s rejection of the mootness claim. “Illinois courts do not render advisory opinions or consider issues that have no impact on the outcome regardless of how the issue is decided.”

Posted on October 22, 2015 by Chris Bonjean
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