3290478769_22af7fdd34_zThe plaintiff files a skeletal class certification motion the same day as his putative class complaint. Subsequently, the defendant tenders a check to the plaintiff representing everything the plaintiff could recover for his action. Is the plaintiff’s class claim moot? That’s the question that the Illinois Supreme Court agreed to decide in the closing days of its January term in Ballard RN Center, Inc. v. Kohll’s Pharmacy and HomeCare, Inc., a decision of the First District, Division 4.

The plaintiff’s complaint alleged that he received an unsolicited fax advertisement from the defendant. The fax purportedly lacked the required “opt out” notice; the plaintiff had no prior relationship with the sender, and had not given general permission for such faxes to be sent. The complaint asserted that the fax sent to plaintiff was part of a mass broadcast of fax advertisements which had been received by at least forty other persons in Illinois. Plaintiff purported to state one claim for violation of the Telephone Consumer Protection Act, one for violation of the Illinois Consumer Fraud Act, and one for conversion.

On the same day that the plaintiff filed its complaint, plaintiff filed a motion seeking certification of three classes. The motion contained no factual allegations justifying certification, and stated that plaintiff would file a memorandum of law “in due course.”

Defendant moved for partial summary judgment on Count I, the TCPA claim, alleging that on three separate occasions, it had made an unconditional tender of a sum covering all damages the plaintiff could possibly recover under the Act. The defendant argued that plaintiff had not filed a sufficient motion for class certification to satisfy the standard of Barber v. American Airlines, and his TCPA claim was therefore moot. The trial court denied the motion for summary judgment, holding that Barber merely requires the filing of some sort of motion for class certification; there are no particular prerequisites for the motion. The court subsequently certified a class, and defendant appealed.

The Appellate Court found that commonality appeared to exist, as there were significant common issues of fact and law pertaining to all class members. The court declined to hold that evidence of consent among class members was sufficient to defeat certification, or that recipients whose faxes were routed straight to a computer, and thus had never printed the blast fax out, might present different issues. The court further found that a class action was appropriate, rejecting the defendants’ view that there was something fundamentally wrong with notifying class members by unsolicited faxes that they were members of a class arising from sending of unsolicited faxes.

Nevertheless, plaintiff’s TCPA claim was moot, the Appellate Court held. Barber held that payment to the class representative doesn’t moot a class claim when the class representative has filed a motion for certification sufficient to bring the interests of the class before the court. Accordingly, the Appellate Court held, a motion sufficient to satisfy Barber had to include sufficient factual allegations to bring the absent class members’ interests before the court. The plaintiff’s motion hadn’t done that, the court found; the plaintiff had merely filed a “shell” motion, and if a shell motion was sufficient to block Barber mootness, then Barber means nothing.

The Appellate Court reversed class certification as to the TCPA claim, but affirmed in all other respects.

We expect Ballard RN to be decided in eight to ten months.

Image courtesy of Flickr by Michelle Kinsey Bruns (no changes).