Barber v. American Airlines, Inc.

CHIEF JUSTICE KILBRIDE, specially concurring:

The majority reverses the appellate court’s judgment, concluding that the trial court correctly dismissed plaintiffs class action complaint as moot under Wheatley because no motion for class certification was pending when defendant tendered full relief to plaintiff, the named class representative. 241 Ill. 2d at 457. While I agree with that outcome, I write separately to recognize authority supporting the pick-off exception and state expressly what the majority’s holding implies.

The United States Supreme Court, the Seventh Circuit Court of Appeals, and our own appellate court have all criticized the practice of a defendant “picking off’ the named plaintiff in a class action through tender of relief prior to class certification in an attempt to defeat the action. See Deposit Guaranty National Bank of Jackson, Mississippi v. Roper, 445 U.S. 326, 339 (1980) (explaining that the practice “frustrate[s] the objectives of class actions,” and has the potential to waste judicial resources); Susman v. Lincoln American Corp., 587 F.2d 866, 870 (7th Cir. 1978) (“If a tender made to the individual plaintiff while the motion for certification is pending could prevent the courts from ever reaching the class action issues, [the] opportunity [for a court to consider class certification] is at the mercy of a defendant, even in cases where a class action would be most clearly appropriate.”); Hillenbrand v. Meyer Medical Group, S.C., 308 Ill. App. 3d 381, 392 (1999) (refusing to “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”).

The pick-off exception was developed to address those objectives. The majority fails to acknowledge the justification for the exception, presumably because there is no evidence of an improper “pick off’ here. Although I agree with the majority that the appellate court erroneously expanded the exception in Arriola and subsequent decisions to apply when no motion for class certification is pending at the time of the tender, the majority nonetheless adopts an approach consistent with the exception’s underlying justification. Specifically, the majority hinges its analysis on the filing of a motion for certification, explaining 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.” 241 Ill. 2d at 456. In other words, any mootness issue should not be considered until the trial court has had the opportunity to rule on a pending class certification motion, regardless of the tender of full relief to the named plaintiff that would ordinarily render a case moot.

In my opinion, the majority, by rejecting only the erroneously broad application of the pick-off exception applied in this case (241 Ill. 2d at 459-60), has implicitly endorsed a narrower pick-off exception. As the majority instructs, when a motion for certification is pending at the time of tender of full relief, the trial court should not consider the mootness issue until after it has ruled on the motion for certification. 241 Ill. 2d at 456. Simply stated, the majority’s holding means that the pick-off exception survives but is limited to circumstances when a motion for certification has been filed, or is otherwise pending, prior to the tender of relief. When that occurs, as the majority also concludes, the trial court should rule on the plaintiffs pending motion for class certification before ruling on the defendant’s motion challenging the case on mootness grounds. See also Hillenbrand, 308 Ill. App. 3d at 392 (explaining the procedures for a trial court to follow when ruling on a pending motion for class certification).

This approach honors the rationale recognized by the courts in Roper, Susman, and Hillenbrand and is entirely consistent with this court’s decision in Wheatley. Here, because no motion for class certification had been filed when defendant refunded plaintiff the contested baggage fee, the exception does not apply and the trial court properly ruled in favor of defendant’s motion to dismiss. Accordingly, I concur with the majority’s conclusion that the appellate court’s judgment overruling the trial court must be reversed.