Ballard RN Ctr., Inc. v. Kohll's Pharmacy & Homecare, Inc.

48 N.E.3d 1060

BALLARD RN CENTER, INC., Appellant

v.KOHLL'S PHARMACY AND HOMECARE, INC., Appellee.

No. 118644.

Supreme Court of Illinois.

Oct. 22, 2015.

Rehearing Denied Jan. 28, 2016.

Daniel A. Edelman, Cathleen M. Combs, James O. Latturner, and Dulijaza (Julie) Clark, of Edelman Combs Latturner & Goodwin LLC, of Chicago, for appellant.

Daniel F. Konicek and Amir R. Tahmassebi, of Konicek & Dillon, P.C., of Geneva, for appellee.

Brian J. Wanca, David Oppenheim and Jeffrey A. Berman, of Anderson & Wanca, of Rolling Meadows, and Phillip A. Bock and Robert M. Hatch, of Chicago, for amicus curiae G. M. Sign, Inc.

Patrick D. Cloud, of Heyl, Royster, Voelker & Allen, of Edwardsville, for amicus curiae Illinois Association of Defense Trial Counsel.

OPINION

Justice KILBRIDE delivered the judgment of the court, with opinion.

¶ 1 This appeal involves our decision in Barber v. American Airlines, Inc., 241 Ill.2d 450, 350 Ill.Dec. 535, 948 N.E.2d 1042 (2011), holding that a class action may be dismissed as moot when the defendant tenders relief to the named plaintiff prior to the filing of a motion for class certification. Specifically, we are asked to decide whether Barber requires any sort of threshold evidentiary or factual basis for the motion for class certification, and whether Barber permits a “partial” tender on a single count of a multicount class action complaint to render that single count moot.

¶ 2 In this case, plaintiff concurrently filed a three-count “junk fax” class action complaint and a motion for class certification prior to defendant's tender of relief on one of the counts. Rejecting defendant's interpretation of Barber on the sufficiency of plaintiff's class certification motion, the circuit court certified the class on all three counts of plaintiff's complaint. On interlocutory appeal, the appellate court affirmed class certification on two of the counts but reversed certification on the single count that defendant tendered relief. 2014 IL App (1st) 131543, ¶ 64, 387 Ill.Dec. 255, 22 N.E.3d 137.

¶ 3 For the following reasons, we reverse in part and affirm in part the appellate court's judgment.

¶ 4 BACKGROUND

¶ 5 On April 20, 2010, plaintiff, Ballard RN Center, Inc., filed a three-count class action complaint in the circuit court of Cook County, alleging that on March 3, 2010, defendant, Kohll's Pharmacy & Homecare, Inc., sent plaintiff an unsolicited fax advertisement. The complaint alleged that defendant's conduct: (1) violated the Telephone Consumer Protection Act of 1991 (Protection Act) (47 U.S.C. § 227 (2006) ) (count I); (2) violated the Consumer Fraud and Deceptive Business Practices Act (Fraud Act) (815 ILCS 505/2 (West 2010) ) (count II); and (3) constituted common-law conversion of plaintiff's ink or toner and paper (count III). Each of the three counts included class allegations indicating that plaintiff was filing the action on behalf of a class estimated at over 40 individuals. The complaint sought actual damages, statutory damages, injunctive relief, and attorney fees.

¶ 6 The complaint specifically alleged that plaintiff did not have a prior business relationship with defendant and plaintiff did not authorize defendant to send fax advertisements to plaintiff. The complaint further alleged that defendant's fax advertisement did not provide the requisite “opt out notice” required by the Protection Act when faxes are sent with consent or pursuant to an established business relationship. The complaint asserted, on information and belief, that the fax was part of a “mass broadcasting of faxes” and defendant transmitted similar unsolicited fax advertisements to at least 40 other persons in Illinois.

¶ 7 Plaintiff attached a copy of the one-page fax advertisement to its complaint. The fax advertises defendant's “Corporate Flu Shots” and provides estimates of the costs associated with employees missing work because of illness. It also provides a toll-free contact number for a “free quote” and an associated website. At the bottom of the fax, under the heading “Removal From List Request,” it advises that “[i]f you have received this information in error or if you are requesting that transmissions cease in the future, please notify the sender to be removed as the recipient of future transmissions.” The instructions provide two contact telephone numbers and an email address for removal requests.

¶ 8 Concurrent with its filing of the complaint on April 20, 2010, plaintiff also filed a motion for class certification pursuant to section 2–801 of the Code of Civil Procedure (Code) (735 ILCS 5/2–801 et seq. (West 2010)). Referencing the description in plaintiff's class action complaint, the motion sought certification of the following classes:

“All persons and entities with facsimile numbers (1) who, on or after April 20, 2006, or such shorter period during which faxes were sent by or on behalf of defendant Kohll's Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant Kohll's Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and who were not provided an ‘opt out’ notice that complies with federal law. (Count I)

All persons and entities with Illinois fax numbers (1) who, on or after April 20, 2007, or such shorter period during which faxes were sent by or on behalf of defendant Kohll's Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant Kohll's Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and who were not provided an ‘opt out’ notice that complies with federal law. (Count II)

All persons and entities with Illinois fax numbers (1) who, on or after April 20, 2005, or such shorter period during which faxes were sent by or on behalf of defendant Kohll's Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant Kohll's Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and who were not provided an ‘opt out’ notice that complies with federal law. (Count III).”

¶ 9 Plaintiff's class certification motion further asserted that “[s]everal courts have certified class actions under the [Protection Act],” and cited as examples a number of decisions from state and federal courts in Illinois and other states. The motion provided that plaintiff would file a supporting memorandum of law “in due course.”

¶ 10 On June 28, 2012, defendant filed a motion seeking summary judgment solely on count I of plaintiff's complaint that sought recovery under the federal Protection Act. In its motion, defendant alleged that on three separate occasions defendant tendered plaintiff an unconditional offer of payment exceeding the total recoverable Protection Act damages. Plaintiff, however, rejected all three tenders. Defendant further alleged that plaintiff did not file a motion for class certification despite the case being open for “over two years.” Citing this court's decision in Barber, defendant argued that plaintiff's Protection Act claim in count I of its complaint was rendered moot by the three tenders because this court held that a class action is moot when a defendant offers tender before the plaintiff files a motion for class certification.

¶ 11 Defendant attached to its motion for summary judgment three letters that it mailed to plaintiff offering tender of relief. The first, dated June 29, 2011, included a check for $1,600; the second, dated June 5, 2012, included a check for $1,500; the third, dated June 28, 2012, included a check for $2,500. Plaintiff rejected all three offers and returned the checks.

¶ 12 On September 7, 2012, plaintiff filed a response to defendant's motion for summary judgment. Contrary to defendant's contention, plaintiff argued that its action was not moot under Barber because plaintiff timely filed a motion for class certification concurrently with its class action complaint on April 20, 2010. Plaintiff further argued that defendant tendered relief only on count I of plaintiff's three-count complaint and, thus, did not offer the complete relief required to moot the action.

¶ 13 Regarding defendant's observation that plaintiff's action was pending for over two years, plaintiff contended that it “diligently pursued the discovery necessary to present the Court with briefing on the class certification issue,” and that “[a]ny delay in proceeding on class certification is a direct result of [d]efendant's obfuscation of discovery in this case.” Plaintiff noted that it filed two motions to compel discovery, a motion to compel inspection to identify relevant third parties and potential class members, and also propounded discovery on third parties. Plaintiff indicated that it engaged in efforts to enforce discovery through March 2012.

¶ 14 On October 9, 2012, defendant filed a reply in support of its motion for summary judgment. Citing Barber, defendant argued that summary judgment in its favor on count I was proper because defendant tendered full damages on the Protection Act claims in count I and “no appropriate or even complete motion for class certification is pending.” Defendant contended that “the linchpin of [plaintiff's] entire argument is an incomplete motion that has not been pursued for over two years.” Alternatively, defendant asserted that plaintiff's motion for class certification should be denied as insufficient under section 2–801 of the Code (735 ILCS 5/2–801 et seq. (West 2010)).

¶ 15 On November 19, 2012, plaintiff filed an amended motion for class certification, seeking to certify a class of “(a) all parties (b) who, on or about March 3, 2010, (c) were sent advertising faxes by defendant and (d) with respect to whom defendant cannot provide evidence of consent or a prior business relationship.” Plaintiff asserted that its action satisfied the prerequisites for a class action under section 2–801 of the Code. Specifically, plaintiff contended that its action satisfied the numerosity requirement because discovery revealed that defendant contracted with third parties to purchase...