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Illinois Supreme Court Holds Complete Tender Before Class Cert Moots Putative Class Action

real estate law

The Supreme Court of Illinois recently held that an effective tender made prior to a class certification motion, which satisfies the named plaintiff’s individual claim, moots her interest in the litigation and ends the matter.

In so ruling, the Court explained that the ruling of the Supreme Court of the United States in Campbell-Ewald Co. v. Gomez, 577 U.S. ___, 136 S. Ct. 663 (2016), dealt with offers of judgment, but here there was a complete tender of the amounts claimed.

A copy of the opinion in Joiner v. SVM Management, LLC is available at:  Link to Opinion.

Two tenants brought two putative class action claims and individual claims in state court against their prior landlord. The tenants did not file a class certification motion with their complaint.

Count I of the tenants’ complaint prayed for judgment in an amount to be proven at trial but not less than an amount equal to such class member’s security deposit, plus costs and attorney fees.

The day after the landlord was served with the complaint, its attorney sent the tenants’ counsel a letter indicating that he had been retained by the landlord “to tender a full, unconditional, and complete settlement of [plaintiffs’] individual claim set forth in Count I of the proposed class action complaint” along with a cashier’s check of $1,290 representing the tenants’ maximum individual recovery as prayed for in count I of the complaint.

The tenants did not deposit or cash the check.

The landlord then moved to dismiss count I pursuant to Barber v. American Airlines, Inc., 241 Ill. 2d 450 (2011), arguing that it “made a full and unconditional tender of all sums due to Plaintiffs” and moved to dismiss count II for failure to state a claim. The motion did not address count III.

The tenants responded that Barber was no longer valid law following Campbell-Ewald, and even if it were valid, that the landlord’s tender was insufficient and moved to amend count II. The tenants amended count II but failed to attach any exhibits to their amended complaint.

The trial court dismissed count I, finding that it was bound by precedent in Barber and that the landlord made an adequate tender.

The landlord moved to dismiss the amended complaint generally and count II specifically.  The trial court dismissed the first amended complaint as deficient for lacking the written instruments on which the claims were founded and dismissed count II for failure to state a claim.

The tenants appealed. The appellate court held that the landlord made a valid tender and the trial court “properly dismissed Count I as moot.” As for count II, the appellate court noted that the plaintiffs did not argue for reversal of the failure to state a claim, and affirmed dismissal and reinstated count III as the third count was not based on a written instrument.

The tenants then appealed to the Supreme Court of Illinois raising two issues (1) that Barber is no longer good law after Campbell-Ewald; and (2) that the trial court erred in dismissing all counts based on the defendant’s tender as to only the first count.

The Supreme Court of Illinois noted that the Barber rule holds that “when a defendant tenders the full amount requested by a plaintiff purporting to represent a class before the named plaintiff files a class-certification motion, the plaintiff’s claim becomes moot.” Barber, 241 Ill. 2d at 456-57.

The Court examined Wheatley, which held that when the named plaintiffs received the relief they demanded it was “clear that the interests of the named representative plaintiffs are moot because there is no longer a controversy between them and the [defendant].”  Wheatley v. Board of Education of Township High School District, 205, 99 Ill. 2d 481, 485-86 (1984).

When the Supreme Court of Illinois considered a similar situation in Barber, the Court noted that “Wheatley teaches that the important consideration in determining whether a named representative’s claim is moot is whether that representative filed a motion for class certification prior to the time when the defendant made its tender.”

Finally, the Court examined Ballard, which held “that Barber contains no explicit requirement for the class certification motion, other than the timing of its filing” and “the focus of Barber is on the timing of the plaintiff’s filing [and not the merits of] a motion for class certification.”   Ballard RN Center, Inc. v. Kohll’s Pharmacy & Homecare, Inc., 2015 IL 118644.

The Supreme Court of Illinois noted the difference between an offer (a willingness to do something) and a tender, which “is an unconditional offer of payment consisting of the actual production of a sum not less than the amount due on a particular obligation.”

The Court noted that in Campbell-Ewald the Supreme Court of the United States held that a plaintiff’s “individual claim was not made moot by the expired settlement offer,” and “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”

However, here, the Court noted the defendant “unconditionally tender[ed]” a “[c]ashier’s check in the amount of $1,290.00 representing [plaintiffs’] maximum individual recovery under 765 ILCS 715/2 as prayed for in Count I of the complaint” and “[a]ll court costs and reasonable attorney’s fees as allowed by the court that Plaintiffs incurred in pursuing Count I of the complaint.”

The Supreme Court of Illinois rejected the plaintiffs’ argument that tender was conditional because it limited recovery on costs and attorney fees to what would be “allowed by the court” and did not include payment for the costs and attorney fees.

The Court reaffirmed Wheatley, Barber, and Ballard and held that an effective tender made before a named plaintiff purporting to represent a class files a class certification motion satisfies the named plaintiff’s individual claim and moots her interest in the litigation.

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Ryan Grotz practices in Maurice Wutscher's Commercial Litigation, Consumer Credit Litigation, and Appellate groups. He has substantial experience in all phases of commercial litigation, including motion practice, written discovery, depositions, mediations, and bench and jury trials. Ryan received his Juris Doctor from the Chicago-Kent College of Law, where he was an associate editor on the Access to Justice Student Editorial Board. He was awarded his Bachelor of Business Administration degree from the University of Iowa. Ryan is licensed to practice law in Illinois and the U.S. District Court for the Northern District of Illinois. For more information, see https://mauricewutscher.com/attorneys/ryan-grotz/

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