Class Certification Reversed Due To An Inadequate Plaintiff

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July 1, 2013
Eric Samore
SmithAmundsen Class Action Alert

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Class Certification Reversed Due To An Inadequate Plaintiff

After securing an order from the Illinois Supreme Court directing the Appellate Court to vacate its denial of interlocutory appeal and to hear the appeal, the SmithAmundsen class action group achieved a significant victory. On remand, the Illinois Appellate Court not only vacated the trial court’s order of certification, but it also found that the plaintiff did not have a cause of action under the Telephone Consumer Protection Act (“TCPA”) as a matter of law. The Illinois Appellate Court agreed with SmithAmundsen’s argument that the defendant was not liable for the acts of the third party in violation of the TCPA, because the third party broadcaster exceeded the scope of its authority.

In the case, the broadcaster faxed the advertisement to the plaintiff, a large crane company, contrary to the defendant’s express instruction to limit the broadcast to companies which serviced small electric motors. More than 100 hundred lawsuits were generated out of fax broadcasts performed by this particular broadcaster who has been called a “modern-day typhoid mary” in the small business communities in which she operated. (Machesney v. Lar-Bev of Howell, 2013 WL 1721150). This is the first time that a court has ruled that the defendant who hired the broadcaster was not liable as a matter of law for the broadcast, because the broadcaster exceeded its authority. Eric Samore, Michael Resis, Molly Arranz, and Erin Walsh handled the appeal. UESCO Industries Inc. v. Poolman of Wisconsin, 2013 Ill App (1st) 112566.

Individual Offer Terminated Class Litigation

SmithAmundsen’s class action team recently extended an individual offer to end a class action. Specifically, the plaintiff’s motion for class certification had been denied on grounds that individualized fact questions predominated. However, this order (and any order denying certification) has no effect on the plaintiff’s individual claim, and does not terminate the litigation. A few days after the denial of certification, SmithAmundsen made an offer for all of the individual relief that the named plaintiff could recover under the TCPA--$1,501 plus costs and an injunction. The plaintiff promptly filed a motion to reconsider the denial of certification and sought new discovery and sought to introduce new affidavits and evidence in support of its position that certification should have been granted. Thereafter, SmithAmundsen moved to dismiss on grounds that the lawsuit was mooted by its offer because offer: (1) was made when no class claims were pending; (2) preceded the motion for reconsideration; and, (3) encompassed all of the relief of plaintiff could recover individually. The trial court agreed, and dismissed the lawsuit with prejudice. Eric Samore, Al Bower, and Warren Wilkosz, argued for defendant. GM Sign v. Swiderski Electronics Inc, No. 03 CH 454, McHenry County, Illinois. (Note that this case was previously the subject of an insurance coverage opinion by the Illinois Supreme Court in Valley Forge Ins. Co. v. Swiderski Electronics, Inc, 223 Ill 2d 352 (2006)).

Florida Class Action Dismissed For Lack of Standing

SmithAmundsen won summary judgment in Lake County, Florida, dismissing the plaintiff’s class action lawsuit for lack of standing. The court agreed with SmithAmundsen’s argument that under Florida law the plaintiff could not cure its initial lack of standing through an Amendment to a Purchase Agreement executed 6 months after the lawsuit was filed. Eric Samore, Al Bower, and Yesha Sutaria, represented defendant. Aero Financial Inc. v. Bob Wines Nursery, Lake County, Florida 2010-CA-313.