In Barber v. American Airlines, Inc., the Illinois Supreme Court held that a class action complaint may be rendered moot if the defendant tenders full relief to the plaintiff before a class certification motion is filed – what’s been called a “pick-off” of the putative class representative.
But what qualifies as a “class certification motion” sufficient to prevent a pick-off? May the plaintiff file a summary motion, merely repeating the allegations in the complaint, and promising to file a supporting memorandum eventually? In Ballard RN Center, Inc. v. Kohll’s Pharmacy and Homecare, Inc., the Illinois Supreme Court unanimously held that such a filing is enough to prevent a pick-off. Our detailed summary of the underlying facts and lower court holdings in Ballard is here. Our report on the oral argument is here.
In April 2010, the plaintiff filed a three-count putative class complaint, alleging that the defendant had sent it an unsolicited fax advertisement. The plaintiff alleged that the advertisement had violated the Telephone Consumer Protection Act (“TCPA”), the Consumer Fraud and Deceptive Business Practices Act, and constituted conversion.
On the same day it filed the complaint, the plaintiff filed a motion for class certification. The motion (1) described the proposed classes; (2) cited several cases certifying classes under the TCPA; and (3) referenced the complaint. The motion stated that the plaintiff would file a supporting memorandum “in due course.”
The defendant filed a motion for partial summary judgment on the claim under the TCPA, alleging that it had tendered the plaintiff on three different occasions checks which exceeded the highest total amount it could conceivably recover under the TCPA. Citing Barber, the defendant argued that the TCPA claim was moot, given that the plaintiff had still not followed up on its filing-day motion with a supporting memorandum. While the motion for summary judgment was pending, the plaintiff filed an amended motion for class certification, arguing that its claim satisfied the various requirements for certification. The Circuit Court granted certification. The Appellate Court reversed with respect to the TCPA claim, holding that the plaintiff’s initial motion had been a shell insufficient to trigger Barber.
The Supreme Court reversed. Although the defendant argued that any holding that plaintiff’s motion was sufficient would effectively eviscerate Barber, the Supreme Court held that Barber contained no particular requirement for a class certification motion – all that was required was that it be filed before the defendant’s tender. “While we agree in principle with the appellate court’s suggestion that a ‘contentless shell motion’ or otherwise frivolous pleading, would be insufficient to preclude a mootness finding under Barber,” the Court said, “we disagree with the court’s determination that plaintiff’s motion for class certification here was a ‘shell’ motion that lacked content . . . [I]t is simply inaccurate to characterize plaintiff’s motion as a frivolous ‘shell’ motion.” Besides, the Court noted, even if the original certification motion was “insufficient for purposes of class certification,” nothing in Barber said that a certification motion had to be meritorious to prevent a pick-off. The Court endorsed the approach taken by the Seventh Circuit in Damasco v. Clearwire Corp. In Damasco, the court rejected pick-offs filed after the filing of a class certification motion, noting that a plaintiff may file a motion at the outset of discovery and ask the district court to delay ruling. The Supreme Court noted in a footnote that the Seventh Circuit had overruled Damasco on August 6, 2015, after briefing and oral argument in Ballard RN were complete. The Court made no mention of Gomez v. Campbell-Ewald, the case currently pending before the United States Supreme Court involving the issue of whether pick-offs can moot a TCPA class complaint filed in Federal court.
Ballard may signal a decline in the use of offers of judgment to shut down putative class actions in state court at the outset. Most putative class complaints contain a description of the proposed class and at least conclusory allegations about why the case supposedly satisfies the prerequisites for certification. It seems likely, following Ballard, that most plaintiffs will routinely accompany their putative class complaint with a one or two-page motion simply copying those allegations and promising a supporting memorandum at some indeterminate point in the future. Defendants will likely respond by seeking to extend Barber by pointing out that a motion which brings nothing to issue, merely parroting the complaint while offering no supporting reasoning or legal authorities (which would generally be regarded as a waiver in the appellate courts), cannot fairly be said to bring the interests of a putative class before the court.