Illinois Supreme Court Makes it a bit Easier To “Pick Off” Plaintiffs in Consumer Class Action Suits
In this month’s FlashPoints, we examine the Illinois Supreme Court’s recent holding in Barber v. American Airlines, Inc., No. 110092, 2011 WL 1076752 (Ill. Mar. 24, 2011), in which the court overturned the First District’s ruling that a consumer class action defendant could not moot a named plaintiff’s claim by refunding a disputed payment and, thus, “picking off” or mooting the plaintiff’s claim. While numerous appellate court rulings had included language suggesting that a “pick off” would not be permissible unless a plaintiff had a “reasonable opportunity” to bring a motion for class certification, the Supreme Court found that reasonable opportunity is not an issue and that a plaintiff who has not filed a motion for class certification can have her claim mooted if the defendant fully resolves the plaintiffs claim by, for instance, refunding a disputed $40 fee.
Barber v. American Airlines, Inc.
The Barber case is based on an interesting set of facts that will sound familiar to many highly travelled attorneys. Andrea Barber purchased a ticket to travel on August 11, 2008, on American Airlines’ flight 4414 from Chicago to White Plains, NY. She paid $40 to check two bags for the flight. American Airlines canceled the flight (a similar fate to one suffered by this author, except that he was already in White Plains, trying to get back to Chicago, and forced to hire a car to drive him to LaGuardia airport lest he remain in White Plains for two more days). Instead of re-booking, Ms. Barber requested cancellation of her ticket and a refund of the ticket price and the $40 baggage-check fee. The airline appears to have immediately refunded the ticket price, but not the baggage-check fee. In fact, the counter agent allegedly informed Ms. Barber that it was not American Airlines’ policy to refund baggage-check fees when American cancels the flight and the customer does not re-book. Not waiting very long to see about resolving the matter short of a lawsuit, Ms. Barber hurried to the halls of justice and filed her class action complaint in the circuit court of Cook County four days later. The complaint was served on the airline on August 21, 2008.
Two weeks later, American Airlines refunded to Ms. Barber’s credit card the $40 fee that formed the basis for her complaint. The airline even offered to reimburse Ms. Barber for her court costs incurred up to that time. Ms. Barber’s counsel refused that offer and stated that they would proceed with the class action. Additionally, on September 29, 2008, Ms. Barber’s counsel served a discovery request on the airline seeking the identities of other potential class members. The airline objected to that request and never responded, and the court denied a motion to compel shortly before eventually dismissing the case.
On October 30, 2008, the airline filed its motion to dismiss arguing that Ms. Barber’s claim was mooted by the airline’s refund of her $40 fee. The circuit court granted that motion on March 10, 2009, and dismissed Ms. Barber’s case. On appeal, the First District appellate court reversed and remanded the case finding that American Airlines’ refund of the disputed sum amounted to an impermissible “pick-off” of the plaintiff from her potential class action suit in order to avoid a larger suit. Barber v. American Airlines, Inc., 398 Ill.App.3d 868, 925 N.E.2d 1240, 339 Ill.Dec. 119 (1st Dist. 2010). The court reasoned that to permit the airline to avoid the case based on such a “pick-off” “would allow a party to avoid ever defending a class action suit by simply tendering payment to the named plaintiffs, in each class action filed against it, prior to the trial court’s ruling on their motion for class certification.” 925 N.E.2d at 1252, citing Hillenbrand v. Meyer Medical Group, S.C., 308 Ill.App.3d 381, 720 N.E.2d 287, 296, 241 Ill.Dec. 832 (1st Dist. 1999). The appellate court recognized that the “‘general rule’ is that ‘if the defendant tenders to the plaintiff [in a class action suit] the relief requested before the class is certified, the underlying cause of action must be dismissed as moot as there is no longer an actual controversy pending.’ ” Barber, supra, 925 N.E.2d at 1251, citing Akinyemi v. JP Morgan Chase Bank, N.A., 391 Ill.App.3d 334, 908 N.E.2d 163, 170, 330 Ill.Dec. 311 (1st Dist. 2009). But the appellate court did not uphold the circuit court case because it interpreted the “pick-off” exception to the general rule to prevent a plaintiff’s class action from being mooted if either the plaintiff had filed a motion for class certification, or if the plaintiff had not been allowed “a reasonable opportunity to file a motion for [class] certification.” Barber, supra, 925 N.E.2d at 1255. The appellate court explained that its ruling was based, in part, on its concern that holding otherwise “ ‘would be to encourage plaintiffs to file class certification motions with the complaint,’ and thereby force trial courts to rule on certification before any meaningful settlement discussion of discovery had taken place.” 925 N.E.2d at 1254, citing Gelb v. Air Con Refrigeration & Heating, Inc., 326 Ill.App.3d 809, 761 N.E.2d 265, 275, 260 Ill.Dec. 421 (1st Dist. 2001).
In dissent, Presiding Justice Cahill explained that she would not have overturned the circuit court’s decision. In Justice Cahill’s view, the case most directly on point was Wheatley v. Board of Education of Township High School District 205, 99 Ill.2d 481, 459 N.E.2d 1364, 77 Ill.Dec. 115 (1984). That case did not provide for the “reasonable opportunity” exception that the majority had based its holding on and, Justice Cahill argued, the majority’s holding had “no basis in the law.” Barber, supra, 925 N.E.2d at 1259. In Justice Cahill’s view, if the plaintiff had not filed her motion for class certification, her claim was mooted and she was not entitled to avail herself of the “pick-off” exception. 925 N.E.2d at 1260.
The Illinois Supreme Court allowed the airline’s petition for leave to appeal and overruled the appellate court in Barber v. American Airlines, Inc., No. 110092, 2011 WL 1076752 (Ill. Mar. 24, 2011). The Supreme Court found that, as Judge Cahill posited in the appellate court dissent, Wheatley v. Board of Education of Township High School District 2005, supra, was the controlling case. Barber, supra, 2011 WL 1076752 at **2 – 3. Moreover, it found that that the “pick off” exception adopted by the appellate court was too broad. Instead, the court held that:
In the case at bar, it is undisputed that, at the time defendant tendered the baggage fee refund to plaintiff, no motion for class certification was pending. Plaintiff never filed a motion for class certification. Under Wheatley, therefore, her claim was moot, and the circuit court correctly dismissed it. 2011 WL 1076752 at *4.
Having held that the only necessary consideration in determining whether the “pick-off” exception applied was whether a motion for class certification was pending, the court went on to bolster Justice Cahill’s determination that the exception adopted by the appellate court “has no basis in the law” by pointing out why the appellate court’s decision applied improperly reasoned cases. Id. In fact, the court took the additional step of expressly overturning one of the cases relied on by the appellate court, Gelb, supra, because the court found that case to also directly contradict the Supreme Court’s holding in Wheatley, supra.
After the Supreme Court’s ruling, there can be no doubt that, absent a pending motion for class certification, a defendant can eliminate a putative class action by giving the named plaintiff the claimed relief before such a motion can be filed. Thus, class action plaintiffs with claims that can be cheaply paid off will need to quickly move for class certification or risk losing their case at the very initial stages.