Illinois Supreme Court Explains Rule on “Picking Off” Plaintiffs in Class Actions
On October 22, 2015, in Ballard RN Center, Inc. v. Kohll’s Pharmacy & Homecare, Inc., 2015 IL 118644, the Illinois Supreme Court clarified mootness issues in class actions.
In April 2010, Ballard RN Center, Inc. (Ballard) sued Kohll’s Pharmacy & Homecare, Inc., (Kohll’s) for violations of the federal Telephone Consumer Protection Act (TCPA) for sending unsolicited fax advertisements. Ballard sought to represent a class of similarly-situated individuals and businesses that also received unsolicited fax advertisements from Kohll’s. Simultaneously with filing the lawsuit, Ballard filed a motion for class certification, stating it would file a supporting memorandum after obtaining discovery necessary to flesh out its satisfaction of the certification requirements.
Kohll’s subsequently filed a motion for summary judgment. Kohll’s argued Ballard’s TCPA claim was moot because Kohll’s had tendered a check to Ballard for more than the amount it could hope to recover prior to a “complete” motion for class certification being filed. Ballard, however, refused the offer and returned the check. Kohll’s argued that Ballard’s failure to submit and pursue a “complete” motion for class certification rendered Ballard’s TCPA claim moot under the Illinois Supreme Court’s decision in Barber v. American Airlines, Inc., 241 Ill. 2d 450 (2011). Ballard countered that the motion for class certification filed at the same time as the complaint was sufficient to avoid mootness under Barber, because any delay in proceeding on class certification was “a direct result” of Kohll’s “obfuscation of discovery.”
The circuit court denied Kohll’s motion for summary judgment on the TCPA claim, concluding that Kohll’s did not send the checks to Ballard until after Ballard filed its motion for class certification and, therefore, the claim was not moot under Barber. The appellate court reversed, finding Barber implicitly required a motion for class certification to “contain sufficient factual allegations” to “bring the interest of the other class members before the court.”
The Illinois Supreme Court subsequently concluded its precedent in Barber did not “impose any sort of threshold evidentiary or factual basis” for class certification motions—only a timing requirement. The court also found that Ballard’s motion for certification was sufficient and not a “frivolous shell motion,” because it “contains a general outline of plaintiff’s class membership, class action allegations, and effectively communicates the fundamental nature of the putative class action.”
The Ballard decision is important because it eliminates opportunities for defendants to moot class actions by tendering relief when plaintiffs have filed only a basic motion for class certification. Thus, plaintiffs in Illinois will likely file motions for class certification concurrently with their complaints which in turn will hinder defendants’ ability to successfully challenge the sufficiency of such motions.