By now, most attorneys who handle class action litigation are familiar with the defense strategy commonly known as “mooting.”(This terminology is, frankly, imprecise, but we will save the semantics discussion for another day.) The cautious plaintiffs’ attorney will file a cursory motion for class certification with the complaint to minimize the likelihood of mooting.The defense attorney will serve an offer of judgment for full relief as soon as possible and immediately move to dismiss. But in light of conflicting circuit court decisions, the legal landscape is unclear on the ultimate effect of these maneuvers. Luckily, we’re here to help.
Continue Reading

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)).
Continue Reading