In a decision subject to surprisingly little commentary by TCPA pundits, the Illinois Court of Appeals handed a significant victory to TCPA defense lawyers in November 2014 on the issue of “mooting” a putative class representative’s individual claim. See Ballard RN Ctr., Inc. v. Kohll’s Pharm. & Homecare, Inc., 2014 IL App. (1st) 131543 (2014). Despite the fact that the plaintiff had filed a motion for class certification before an offer of full and complete individual relief by the defendant, the court found that the plaintiff’s individual TCPA claim was still “mooted” because the motion for class certification that the plaintiff had filed was cursory and devoid of facts. Id. at P59.
According to the court, “[I]f a putative class action plaintiff could circumvent the holding of Barber merely by filing a contentless ‘shell’ motion for class certification contemporaneously with its complaint, then it would effectively eviscerate the Barber decision.” Id. (referring to Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011) (holding that class representative’s claim is moot when defendant offers full and complete relief before filing of motion for class certification)).
Since the Seventh Circuit reasoned in 2011 in Damasco that putative class representatives could avoid mooting by simply filing a class certification motion with their complaints, see Damasco v. Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011), such contemporaneous filing of class certification motions has become commonplace not only in the Seventh Circuit, but also across the United States because plaintiff’s counsel fears “mooting” of the putative class representative’s claims. These early class certification motions are typically cursory, fact-free, and not intended to elicit a quick opposition and ruling on class certification. In fact, shortly after the filing of such motions, plaintiff’s lawyers often ask that the motions be entered and continued pending full class certification discovery.
The Ballard decision may be the first in the country to squarely reject such cursory motions as capable of preserving a class representative’s Article III constitutional standing. And the Ballard reasoning makes sense. Why should such a cursory motion create collective standing on behalf of an entire putative class where a complaint with cursory class allegations would not? The U.S. Supreme Court has never found that such a cursory motion can create collective Article III standing.
Although the Ballard decision technically is precedent only in class action cases in Illinois state courts, Illinois’ class action standards are analogous to the federal standards, and the Ballard decision should serve as persuasive authority in federal courts (as well as states beyond Illinois that essentially follow the federal standards) that cursory motions for class certification filed contemporaneously with complaints are insufficient to preserve an individual case or controversy whether the individual plaintiff has been offered full and complete individual relief.