Federal Civil Practice

Dist. Ct. erred in approving proposed settlement of class action concerning defendant’s marketing of its 12-inch footlong sandwich, where most, but not all of defendant's bread rolls were at least 12 inches long. Proposed settlement gave class members no monetary damages, while giving class counsel up to $525,000 in fees, and settlement of injunctive portion of claim acknowledged that even with certain production measures in place, some sandwich rolls would inevitably fall short of 12 inches due to natural variability in baking process. Also, record showed that size of roll did not affect quantity of food each customer received both before and after filing of instant lawsuit. As such, Dist. Ct. should not have approved proposed settlement where class members received zero monetary benefits while class counsel received fees, and class action itself should have been dismissed, where it sought only worthless benefits for class members.

Dist. Ct. did not err in denying proposed class representative’s motion to certify class action in claim that defendant deceptively marketed over-the-counter remedy called Oscillococcinum, where representative alleged that finished product was nothing more than placebo. Record showed that defendant was subject to prior class action involving instant product, which resulted in settlement that required defendant to provide refunds for class members and to offer future customers ability to obtain refunds within 14 days of purchase of product. As such, Dist. Ct. could properly find that proposed class representative was inadequate, since: (1) instant lawsuit would provide little benefit beyond defendant’s existing refund guarantee; and (2) instant representative lacked standing to pursue any injunctive relief under Ill. Consumer Fraud Act, since representative himself would not have been duped by defendant’s alleged misleading claims about its product. Dist. Ct. erred, though, in finding that representative’s individual claim was rendered moot, where defendant attempted to use Rule 67 by paying sum of money to court’s registry that was more than what representative could have obtained on claim in lawsuit, since: (1) instant unaccepted settlement offer did not moot plaintiff’s case; and (2) court cannot accept instrument made payable to third-party into court’s registry, as defendant attempted to do in instant case.

Dist. Ct. erred in dismissing for lack of jurisdiction plaintiff’s section 1983 action, alleging that section 1025/15 of Illinois Unclaimed Property Act, 765 ILCS 1025/15, which denied property owners any interest or other return on their money on property returned to them by State under said Act, violates Takings Clause of 5^th Amendment, where Dist. Ct. based its ruling on Williamson County, 473 US 172, since plaintiffs had not previously sought relief in state court prior to filing instant action. Williamson County does not support instant jurisdictional ruling or requirement that plaintiff seek relief in state court prior to filing instant action, especially where seeking relief in state court would be futile given fact that, under Illinois case law, plaintiff would likely lose where section 1025/15 had been found to be valid. Moreover, plaintiff would likely prevail in federal court, where 7^th Cir. had previously found with respect to similar Indiana statute in Cerajeski, 735 F.3d 577, that state may not take custody of property and retain income that property earns when returning property to owner. However, plaintiff could not proceed under section 1983, since: (1) defendant (Ill. State Treasurer) was sued in his official capacity; (2) lawsuit against Treasurer is really lawsuit against Illinois; and (3) state is not “person” that is suable under section 1983.

Dist. Ct. erred in dismissing for lack of standing plaintiffs-husband and wife’s class action seeking for themselves and others full refunds, as well as cost of charging station paid for defendant’s Volvo electric car that plaintiffs claimed did not operate as advertised, where Dist. Ct. had based dismissal on fact that defendant had offered plaintiffs full refund for their electric car prior to plaintiffs filing instant lawsuit. While plaintiff-husband lacked standing to seek refund for car since only wife’s name was on purchase agreement, plaintiff-wife had standing to pursue instant action, where wife had not accepted defendant’s offer to settle case. As such, plaintiff-wife, unlike her husband, had personal injury-in-fact to support her standing to sue to recover cost of electric car. Ct. further noted that unaccepted settlement offer made prior to filing lawsuit is legal nullity, especially where wife could have sought additional remedies, and defendant had no right to preemptively force her to accept instant offer.

Dist. Ct. erred in denying defendant-police officer’s motion for summary judgment in plaintiff’s section 1983 action alleging that defendant violated his 4^th Amendment rights by conducting stop and frisk of plaintiff without reasonable suspicion. While Dist. Ct. found that defendant’s investigatory stop of plaintiff outside of auto parts store violated plaintiff’s 4^th Amendment rights, Ct. of Appeals found that defendant was entitled to qualified immunity because he had reasonable suspicion to stop and eventually frisk plaintiff, where: (1) defendant was aware of report that car containing plaintiff was circling store parking lot near closing time, which he believed constituted act of “casing” said store; (2) defendant was aware that same store had been robbed within last two months at closing time; (3) driver of plaintiff’s car leaned into adjacent car’s window in act that defendant believed was disguising gun; and (4) plaintiff also acted like he was disguising weapon by failing to extend his arm after directed to do so. Also, plaintiff failed to establish that defendant’s actions clearly violated his 4^th Amendment rights, since cases cited by plaintiff for such proposition were distinguishable from instant factual setting.

Dist. Ct. did not err in denying defendant’s motion to disqualify plaintiff’s attorney in instant Fair Credit Reporting Act (FCRA) action because said attorney had previously defended defendant in similar FCRA lawsuits in over 250 cases that spanned four-year period and concerned over 4,000 billed hours. Dist. Ct. could properly find that Rule 1.9 of Indiana Rule of Professional Conduct applied with respect to instant disqualification request, and that Rule 1.9 did not require disqualification of plaintiff’s attorney, where: (1) instant lawsuit did not involve same transaction or dispute as prior cases in which plaintiff’s attorney had worked for defendant; and (2) attorney’s representation of plaintiff in instant lawsuit did not involve substantial risk that attorney would use confidential information that attorney may have gained while working for defendant to materially advance plaintiff’s claims, where said attorney had not represented defendant for over 10 years. Moreover, attorney’s general knowledge of client’s policies and practices will not ordinarily preclude subsequent representation in case opposing client. (Partial dissent filed.)

Dist. Ct. did not err in granting defendant-prison mailroom official’s motion for summary judgment in section 1983 action alleging that defendant had denied plaintiff due process by destroying plaintiff’s property without prior notice after plaintiff had failed to remove his property from prison within 30 days after his release from prison as required under prison policy. Any failure to notify plaintiff of prison’s policy was not fault of instant defendant, and said defendant was not vicariously liable for any other prison official’s alleged mistake in failing to notify plaintiff of said policy. Moreover, plaintiff only had state-court action to seek recovery for any negligent destruction of his property, since any negligent bureaucratic error does not violate Due Process Clause.

Ct. of Appeals lacked jurisdiction to review Dist. Ct.’s denial of defendants-police officials and dentists’ motion for summary judgment, where defendants asserted that they were entitled to qualified immunity in plaintiff’s section 1983 action, alleging that defendants violated his due process rights by fabricating expert opinions regarding bite marks on murder victim’s body that were used to support guilty verdict that was vacated 23 years later after DNA evidence ruled out plaintiff as culprit. Dist. Ct. found that questions of fact precluded entry of summary judgment as to whether defendants had fabricated evidence, especially where record suggested that gross errors were made with dentists’ review of physical evidence and plaintiff’s dental impressions, and where, according to plaintiff, one dentist colluded with police officials prior to officials interviewing plaintiff. Moreover, under Johnson, 515 U.S.304, interlocutory determinations of evidentiary sufficiency at summary judgment stage are not immediately appealable merely because they happen to arise in qualified immunity cases. Also, defendants-dentists were not entitled to absolute immunity, where plaintiff’s complaint focused on defendants’ actions during murder investigation, as opposed to their trial testimony. (Dissent filed.)

Dist. Ct. erred in giving erroneous instruction to jury regarding investigatory Terry stops in plaintiff’s section 1983 action alleging that defendants used excessive force and engaged in malicious prosecution as to plaintiff’s arrest on charge of resisting arrest during incident where plaintiff was stopped on belief that he carried open beer can while plaintiff was leaving train station, when one defendant (plainclothes police officer) grabbed plaintiff and forced him to ground. Instruction informed jury only on law regarding investigatory Terry stops, but not on frisks associated with said stops, and plaintiff was entitled to have jury know that one defendant’s attempted frisk of him, which defendants conceded produced instant use of force, was unjustified. Also, Dist. Ct. misinformed jury, in response to its question, that plainclothes police officer was not required to identify himself before conducting Terry stop, because record showed that said officer did not have reasonable suspicion that plaintiff was armed and dangerous. As such, plaintiff was entitled to new trial. However, Dist. Ct. did not err in admitting evidence that plaintiff possessed marijuana at time of incident, since said evidence, although unknown to defendant at time he used force against plaintiff, tended to corroborate said defendant’s account of plaintiff’s behavior.

Dist. Ct. did not err in granting defendants’ motion for summary judgment in plaintiff’s section 1983 action alleging that defendants’ placement of him on Wisc. registry for sexual offenders based on his California conviction that required his lifetime registry as sex offender as long as he lived in California denied him due process because he did not receive prior notice or opportunity to be heard on issue. Under Connecticut Dept. of Public Safety, 538 US 1, plaintiff was not entitled to any due process prior to being placed on Wisc. registry, where: (1) plaintiff’s registration status in California was dependent upon his conviction in that state; and (2) plaintiff’s California registration status was obtained pursuant to procedurally safe-guarded criminal proceeding. Moreover, plaintiff’s self-initiated and informal exchange between his attorney and Wisc. officials that occurred after his placement on registry in attempt to correct any error was sufficient to comport with requirements of due process.