in i think you basically know our procedure fifteen minutes in if we ask a lot of questions and we'll give you some leeway we're going to allow days to respond to these i look at them and to be honest with you they were more helpful to the appellee than they were to use so i don't know why you filed them your honor justice taylor justice smith and justice house's amir thomas pm here on behalf of the appellate counsel as the court knows the issue the central issue before it is whether it was proper to allow class certification of this t claim the facts or the allegations are simple they allege that an improper solicited fax was sent to the plaintiff they sought class certification after discovery and the circuit court granted that class certification i wan focus on just three points justices are the first to relate with the requirements under section two dash eight a one for class certification namely that class certification must be fair and efficient and then the second one as to whether or not there are common issues of long fact and the third point i want to make your honour's relates to whether or not there was even a controversy to certify in this instance and it i'm going to be i guess a little b here in saying that i think the issue of whether class certification in t c p a cases in illinois is appropriate is somewhat one of first impression certainly there have been certifications of classes and t c b a claims but i don't think  justice if i can back up first i would start with the statute and with what the legislature intended under the statute i would say in this instance to directly answer your question yes under the tea c p a if somebody wants to bring a claim they need to bring it individually on behalf of themselves and that's when you go and that's what leads me to the statute itself and if you look at the history of the first the statute the language if you look at the language justices there is no provision for class certification it doesn't contemplate it it doesn't talk about any limits on damages and i tend to if you look at the history of the t c p a seems to be created from the f t c v a i mean it seems to be that same type of statute to prevent a nuisance to prevent these annoyances they're improper under the law but there's a limit and if you look at when the legislature enacted the f t c v a they undoubtedly contemplated class actions because there's a provision in the f t c v a for class actions and then recognizing the possible in balance between the omission of the excuse me the act in this case and the potential damage if a class is certified without any type of limits what congress did with the f t c v a just this is they limited that they said ok if you're going to have a class action we saying that we think it may be appropriate but we're going to say five hundred thousand or one percent and now we get to the t c p a which is the same type of stature in so far as it's an active two to stop annoyance a minor damages and the supreme court recently talked about the t c p itself and the legislative intent in the standard mutual case and it basically says this supreme court said under its findings the t c p is inactive for that purpose annoyance these minor problems and it's not meant to punish and it's not meant to punish so if you look at the statute itself there is no provision for class certification and so to allow class certification in a case like this where you have over forty one hundred faxes sacked at five hundred dollars each tax you're looking at over two million dollars in damages and that would disrupt the balance of congress i think intended when they enacted the t c p a and that was to compensate people for things that the damages should be that because of the establishment itself so the fact that there's a violation of one by one on one person doesn't necessarily mean that the statute allows for you to go out and find four hundred th people that may have received that fax to basically just pile on additional damages that i think under the t c p a were intended that would that would be created in balance just as taylor of the fact that they wanted to not to punish but to give some type of exemplary damage for the scent sending up a fax to the person who was in no way who did it spending who did expend paper that person if they want to take the time to go and get their five hundred bucks they're entitled to that under the coterminous case simultaneously or should there not be a period should it not be allowed in till discovery is done and it's not i'm pointing out you have to address that because that's the whole issue here case the livingston gaze i want you to address those three issues sure and i'd start with i'd start with bob or the fact that there's no guy don't think there's any question in this case that the tender was made prior to an actual motion for class certification being made and i think what this court needs to work at is the content of the initial it as justice smith you called it somewhat of a bogus class certification motion and i think it goes directly to to barbara and barbara the supreme court said that hey if you make a tender before a valid motion for class certification is made a proper motion for class certification then that tender is accepted in the case is over there's no case in controversy the cases that you mention just smith fall under barbour and yeah and so i would think that if the chords allow us what happened here and read this and i don't want to attack the law firm but what this law firm has started to do after barbara came down just this house is they started to file these motions for class certification and judge judge cohen in his opinion said it doesn't matter they filed the motion for class certification they satisfied barber and the case moves forward if you allow this to happen if you allow class actions to be filed with bogus motions for class certifications what you're doing is you're creating a situation where there doesn't need to be any actual case and controversy with the initial point if because the initial pla has filed a motion for a class certification the attorney knows now they're going to have as much time as they want if you go into the reasoning just a smith a judge calling because the motion was already on file they would have as much time as they want to do whatever discovery they need sell you i would say in this in it in front because i just asked for a dismissal of the t c p a claim the tender would be complete now counsel makes the argument that there's additional damages under the consumer fraud act and the conversion claim we didn't seek to dismiss those claims just a smidge so i think all you look at is whether or not the tender was complete under the t c p a claim and the twenty five hundred dollars which is and put forth in our we talk about in our brief more than  cover even if you talk about the trip of damages and any additional costs or fees so you know challenging or no your honor i would concede to count two or three i'm not challenging i'm challenging the certification of the class with respect to count one and i think what we do as i said is we create a situation if we allow the shell motions to be filed where the supreme court imbiber that decision no longer has any any effect there's an analysis done with out and i think that if we're going to do an analysis of that justice house i mean you're talking about a lot of problems with whether or not there is the same legal and factual issues because the consumer fraud act is obviously a different animal and they can affect businesses buy your issue is to count one can say what should have been since it appears under ada one there are no real set standards other than reference to the barber in the three cases you cited what would you say would you say there has to be a minimum period of time or the discovery is to be done before certification an be considered i think what barber says is that the pick off can can happen at any point in time so and also it does allow for a reasonable time if i would say does there need to be some type of stature saying you have six months eight months a year i don't think you can do that  under just because each case is different justice so my position would be since there's nothing under two dash eight zero one when the class certification motion must be filed i mean they get a reasonable time to conduct certain discovery and that took place here so what you consider is a reasonable period see that's what i'm saying is i question that this is defective on a just as i think that if the statute was clear i agree then we would be we wouldn't be standing here today on this very issue i can't disagree with that what my suggestion justice smith would be to put some type of time period in that stature dotty asli i'm not in the position to do that but this court and i'm probably maybe shouldn't say this seems to conduct justice a little quicker than our legislature sometimes so i would say that if the statute was clear we would have a better understanding of what time period would be allowed for a class certification motion needed to be filed but certainly there's an issue with judge cohen's decision here whereby he basically said listen they had the class motion on file you tender doesn't matter doesn't matter if you did it a year six months two years their motion was on file and that is improper under the barbour case justice cases to be certified for classes i understand it's been done but i don't think it's been looked at in the in the vacuum of rather not the legislature intended to allow class or to fiction so on that and i think justice smith you hit it right the strongest point here that we have is the fact that a tender was made with no class certification ocean on file thank you thank you substance of the of a class motion so you don't feel or should be a specific period of time in the state should you which somebody would hear you or the a limitation is imposed that eliminate litigation and this i don't know whether the communication between your client and the defendant is there but theoretically a complaint could be the first notice that anything is amiss and here by you f there were sufficient information to proceed on a class basis and that initial class motion showed that it included the facts which on its face shows that there's an infra nuff information to proceed on behalf of a class website that is dedicated for receipt of responses it has an eight hundred number that's dedicated for receipt of responses to the facts and it just would not make sense to create an advertisement like this and fa it several states away to somebody who we know did not have a relationship and we know did not consent unless it is done on a some sort of scale that is rob at least forty people with the exception of your objection to judgment motion did not even address the pending class certification motion they were seemingly unaware that it had or have or i you know i know where where i did not acknowledge that there is a class motion pending at the imbalance the actual tenders did not address in fact specifically indicate that they wish to proceed on the remaining counts this is inappropriate their fans are not permitted to rewrite the complaint and address the co that they wish to believe have merit pay those off and then proceed on the counts that they don't think plaintiff will be able to convey on it's not a tender the site offers complete relief facts prevention act came about at that time congress wrote for ways to further enforce provide additional information of the statute it's not find that class actions were an issue and was aware at the time that class actions were occurring what it did was issue a study finding that additional force in was needed and k cases was inappropriate it did not it did not do so plaintiff has shown in the case below that defendant used a third party brought a list of strangers and scientists advertisements to them the judge properly certified a class consisting of that group tender had been incomplete now the defendant's arguments concerning individual issues all individual in fact to show why their common as to the individual arguments info i believe that shows that he is actually representing the class he's decided to forego his pay oftentimes in order to continue with the claims of this curative class of his class members or at the time of the deposition the putative class numbers the fact that he has had numerous cases only shows experience it does not show any adequacy is no indication the plaintiff has been upon he's only received access plaintiff in this case to has done nothing always done is have a fax machine and operate his business off in order to continue with the class claims so that the group may recover that this case involves this mass spec saying which defendant has admitted to it's conceded that it purchased the list from the third party but it's not have a relationship with anyone on the group what they won in the group and on the west it is not contest the transmission reports which show specifically which of the group received the fax says and it does not contest that it had no relationship with any of the parties there's no just reason to disturb the trial courts i'm finding have certification in this in this case the court has nothing further  generating more litigation these type of cases if you don't have any evidence at the outset after year after two years after three years that there are these additional plaintiffs out there that have been harmed or injured then what you're doing is you're searching and trying to find and neck leads me to end that's not what the c p a was designed to do and that leads me to what justice smith indicated on the time limit i think section two dash eight zero one and again maybe this is my ignorance and you with me to say it has some issues with it so what are we left with we're left with barber and all barber says if there's a tender made and it covers the damages as i think it did in count one and i'm certainly entitled to file a motion on one count for summ judgment based on a tender there's nothing that says i can affect the case law supports that i can and that count should be dismissed and then justice taylor picking up on the point that you made as or give me all the ideas here you know that the plaintiff i not out to protect from what i can tell the class how to generate additional litigation and he's certainly not out just to get his damages because if that was the case he would have accepted the twenty five hundred which he admitted covered his expenses and moved on