The Appellate Strategist
Argument Report: When Should a Court Lose the Power to Decertify?
Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Mashal v. City of Chicago. Mashal presents an issue of potentially enormous importance to class action practice in the Illinois state courts: when does the Circuit Court lose the power to decertify the class under Section 2-802 of the Code of Civil Procedure? To watch the video of the argument, click here.
For a detailed discussion of the facts and rulings below in Mashal, click here. The case arises from the City of Chicago's practice of issuing "fly-by" traffic citations to taxi drivers -- citations which were received by mail, rather than being personally served or placed on the vehicle. The City conceded that it issued such citations occasionally, principally when drivers either fled or became aggressive; the plaintiffs alleged that the practice was far more widespread than that. A class was certified in 2002. In 2005, partial summary judgment was entered, finding that the practice was illegal. The following year, the City obtained its own partial summary judgment, eliminating claims before 1995 on statute of limitations grounds.
According to Section 2-802, a court may amend a class certification order at any time "before a decision on the merits." The statute doesn't define what "decision on the merits" means. In 2007, the City decided to find out, moving to decertify the Mashal class on the grounds that the partial summary judgment on the legality of the practice eliminated the only common issue. The Circuit Court granted the motion to decertify, and the case rose to the Appellate Court on various certified questions. The Appellate Court held that "decision on the merits" meant something similar to the types of judgments and orders given res judicata effect -- a complete resolution of the liability claim.
Counsel for the plaintiffs argued that the need for individualized determinations didn't mean that a "decision on the merits" hadn't yet occurred, since every class action involves such determinations. Justice Thomas asked counsel to address the City's argument that the partial summary judgments were a decision on the merits. Counsel responded that if a decision resolving nothing more than the legality of the practice involved in the case became a vehicle for decertification, that exception would swallow the class action statute. Such a rule was antithetical to the underlying reason for class actions: that litigating the claims one by one was impractical. Justice Theis asked whether the Circuit Court's decision rejecting the City's affirmative defenses was a decision on the merits, and counsel responded that that order could have been appealed if Rule 304(a) language had been granted. Justice Theis then suggested that "decision on the merits" and "final judgment" arguably sounded like the same thing, and asked counsel to explain his distinction. Counsel responded that a final judgment was a complete resolution of a claim, granting relief. A decision on the merits didn't need to be final; the order concluding that issuance of fly-by tickets violates the law was enough. Justice Thomas asked counsel whether counsel was saying that every order resolving affirmative defenses was a "decision on the merits," or only the defenses resolved in the particular order at issue. Counsel responded that the particular defenses involved in the court's order made the decision one on the merits.
Counsel for the defendant responded that the reason for setting the cutoff for decertification at the decision on the merits was to keep the option open until all possibly common issues have been decided. Justice Garman asked whether some determination of liability to a class member or members was required. Counsel responded "yes", and in the case at bar, such a determination was impossible given the need to determine whether each class member had received a "fly-by" citation. Justice Burke pointed out that the City had admitted to issuing such citations; counsel responded that the City had admitted the practice as a general matter, but the taxi driver class members had not linked themselves to the limited group who received such citations. Justice Thomas asked counsel to address plaintiffs' argument that there was no rebuttal to the proposition that the class members had received fly-by citations. Counsel answered that such affidavits were not admissible, and in fact there were many reasons to question the class members' credibility. Counsel argued that deposition testimony was needed to determine the credibility of all class members. Justice Garman wondered why issues like credibility and individual liability weren't part of ancillary proceedings. Counsel responded that under the circumstances presented, liability would have to be determined class member by class member, and this was the time to conclude, once and for all, whether class prerequisites were met.On rebuttal, Justice Karmeier asked counsel for the plaintiffs to respond to the City's argument that plaintiffs' reading of the statute would eliminate courts' ability to reevaluate whether common issues continued to predominate. Counsel answered that it was necessary to set a cut-off point. Although not all summary judgments would bar decertification, this one -- holding that defendant's conduct was unlawful -- would. Justice Thomas asked how the Court should take into account the fact that individual plaintiffs would have to proceed with small liability cases, given that the rule announced by the Court would be used even outside the class action context. Counsel responded that the Court's ruling would be limited in impact -- even res judicata involved subtle differences that might limit the scope of the Court's decision. At any rate, counsel argued that this consideration should not affect the Court, since the legislature could step in and change any rule it didn't approve of.