honour's from july fifth two thousand and two through february twenty eighth two thousand and ten illinois bell collected one hundred twenty six million one hundred seventy eight thousand eight hundred sixty five dollars in late charges from consumers that it had no right to collect it didn't do that by open mere oversight in fact we were we had initially because the case started off in the one nine hundred ninety seven was resolved  was to enter summary judgment for the class on the breach of contract and who were the damages now the damages are clearly the amount that they were that bell charged which they had no it sorry but he arguably you need to show some causation that the breach caused damages the breach was theirs sending out bills without a date a dated mark on the arm below and there recover their charging the class fur or the late charges when they have no authority to charge them it is from the breach that they charge that the breach is that they charged the class late charges on bills they had no authority to charge late charges on the case and the contract go back to the regulation which clearly says the company may assess a late payment charge in accordance with tariffs approved by the commission against the amount which is considered past due under this section that's the administrative code set with that feeling are we with the i c c regulation we're dealing with and forcing the settlement agreement that was entered into fifteen years earlier so we're dealing with the saddam an agreement in the breach thereof right and the members of the class by this bridge effect in both of you agree as i read the record that some customers of eight paid the bill late because they didn't have the money they didn't want to pay the bill they couldn't pay the bill decided not to pay the bill for whatever reason were out of town and paid it late for the late payment thieved was for reasons other than reaching the saddam agreed in he in my mind is saying so how are we going to a stamp wish the amount of money to be refunded returned to those damaged by the bridge and you said you don't have to go that far it's a complete the payments had no due date for late charges a late charge that's because of the regulation not because of the settlement well the settlement agreement incorporates the regulation because it obligates bell to date stamped those ready the administrative code provision says you can or you can only charge a late charge way or the utility has done following the required statutory procedure in order to impose it and in order to impose it they have to have a date a date david mark on me on follow up if they don't do that they don't have the right to correct it the agreement clearly incorporated as long as the regulations were unchanged and they were not until eventually two thousand and ten this was not oversight the e mails show i mean it's it's fun to read e mails with your name in the mail show they intentionally did this knowing it violated both the regulation the administrative code provision and the greenman they should have gotten a waiver everybody acknowledged in the emails whether it's the i because my nan payment was not because of the breach or due to the breach it was because i decided not to pay it i just save for it i got a windfall you vet belsen title meant to charge that to charge you a late fee arises only from the administrative code if they don't comply with the code they don't have a right to charge a debt and under the agreement they breached the agreement arm by intentionally omitting the date stamp to save twenty three one twenty six one thousand seven hundred on your bill and so to do that they don't have the right to collect a late fee from you they might have the right to turn off your phone service they might have a right to call you and complain you haven't paid your bill but they don't have a right to charge late charges unless they complied with the administrative code think it but there's two things  saying it incorporated such that it becomes a basis for determination of damage but that is that that if you could enrichment is an appropriate contract remedy i mean the fact that you're not entitled to take my money means you have to give it back that's the griefs that's the damndest otherwise that's the whole purpose of the exercise there is none other than to say cheese we'd like you to do this the fact is thomas recognizes that there is a difference between an illegal charge and an excessive charge judge palmer had to stretch to make reparations quite well that's the second case but judge power had to stretch to make it into a reparations case where tinker led to evers to chance was that barry asserted that well more so hasn't paid as a lay hasn't paid late acknowledging what the issue is but getting off ok we'll stay on this issue this issue is if there is a breach of this agreement right what is the purpose of the agreement to enforce and be postal service checked if they don't to work to require people to to go up individually to proving it there it means there is no requirement that bell comply with the does that's what they say putting them everybody back position because the fact is that there's a disconnect to say that the  had no right to impose as a result of their breach it was a result of my intentional decision that there's no no now granted granted and i think in your initial litigation the claim was if the if the bills one hour without the postmark i may have only had twenty days to pay my bill is supposed twenty one and therefore was improper and but it seems to me that you presented the trial court with only one method measure of damages and that was complete forfeiture which would result logically to a going to pay on time for reasons other than the postmark or dated one day i am getting a windfall because i benefited by something they did that had nothing to do with causing me damages i owed the money you didn't owe the money you didn't owe the late charge the owner under a regulation that is not what we're going on here we're going under a settlement we contract between class in eighteen c that basically provided after the payment of the three million dollars in fees and a refund of forty five cents if they didn't opt out of the class th complied with the second part or third part fifteenth part of the settlement agreement was that in the future eighteen t was going to put this mark in the envelope with no provision if the court finds on its own motion or on the motion of the plaintiff the bell has not made a good faith effort to comply with this paragraph or with its obligations under the settlement agreement the court may enter such further orders as the court may determine the necessary yes but that then is your other that's the other that's not this this case is a breach of patrick this is not a case where they violate where it's only that what they agree with said is you lose the regulation that you must f expert testimony a way of analyzing the late charges deciding perhaps i'm making this up i didn't really give a lot of thought that i reviewed the late charges which you had you got i mean you said one hundred twenty six million dollars or so and perhaps they could have been analyzed and broken down by late charges paid for being two days late i basically three months late two years lee and then perhaps an expert may have said that you know based upon this analysis those paying thirty days after billing in my judgment were for reasons other than the noncompliance with this agreement and those paying within five days of the due date could reasonably be connected to a breach of this agreement and they had amounted to ten percent of the payments in there for reasonable damages to those who paid within two days or five days but there's a period of case i understanding in your theory of the case brought the court is we do not have to prove damages to the individual due to the breach we only have to prove a breach and therefore the the  ad which was collected at your theory in judge palmer he had no other alternative so to me in looking at all that transpired over these four or five years that you were battling it out with him in a professional way of course was basically a summary judgment proposition that you've established the breach i'll assume for the purposes of this discussion a breach established you get judgement on liability but you don't get awarded damages because no damages have been proven to the courts satisfaction because you want to forfeiture and i don't think that's ball measure of images that that was his theory that was his view of it we don't agree because of the context the two fold context one is that they were never untitled during the whole period they were never intitled to collect to impose a late charge because their billing process didn't comply the breach number two that was by bridge and it was an intentional br the e mails show that they knew that they were going to violate the administrative code in the settlement and introduced to do it hoping that nobody would catch it in contract law is it correct that if you and you didn't really request any more time to present him with an alternate theory of recovery that the litigation should be terminated because were we going to go with those we were glad that he entered  summary judgment for them obviously but we think it is a it is a straight issue of law rather they come that we knew they violated the contract we knew they violated the regs we knew they had no authority to collect this incorporated the provisions of the code because it said that as long as the bells commitment bell agrees that it will place a dated mark readable by the customer and showing the natural date of mailing each customer a bill one for a bell ma understand the concept that we're viewing he says two separate things but there is no doubt that the agreement incorporated the regulation was i had the enforcement the monitoring authority for as long as the rate and the regulation stayed the same until they finally because they they finally got around they finally decided they couldn't legally do this without changing the regulation and they and they got it changed and they you know as a separate case they screwed it through so i wouldn't find out until after the fact then you know this again is beside the point it's beside the point but let's stick with what the point is and in our view and this is really very crux of case one if you will that they were intentionally violating the agreement and the regulation meant that they did they were says that's why the agreement says may determine are necessary an appropriate of we're going to give you all three in the one hundred fifty days to get their act together and comply with this settlement agreement and if the court finds that they have been in good faith within one hundred  fifty days amended or stamping procedures it really doesn't really doesn't it but the reason that we didn't do it that way well it doesn't matter under the contract you have a nine reliance clause you have additional attorneys whose rotating such comprise is if we discovered within a week or two after the first bills came out and the bay changed where the practice immediately so that nobody wound up paying a late charge that said that i would that there would be legal fees for a just injunctive relief from foresman that's the only implication from that in other respects there's no there's no moving factor contracts are written broadly to enforce to accomplish their purpose and the limitation that this was only for prospect of enforcement is is not in the contract and it's not a fair reading except from that that last tail end clause which would include a provision that would give attorneys he's even if no monetary recovery was obtained that's and that's not an ambiguity that's just how contracts are written to provide for whatever enforcement the court each if you want money you have to prove damages and you have to show a nexus cause asian damages caused by the breach or so his argument is that indy still and i agree with incorporate the ministry of code yourself past and future conduct you can't make claims under this regulation you can't make these kind of strict liability claims or the regulation you are you have a recourse under the agreement specific performance if you like and if the look i'm not putting out a mistake we're not saying that anyone paid late because the david mark wasn't wasn't on the surface the envelope that was that was this concession and there was simply a disagreement about what contract law required and i think we all agree that contract law requires more than just a breach and then you get a black plate chack you have to have causation and damages now my points head opportunities are put on a day in which states to have the opportunity that's power entered it entered a judgment on the issue a breach for them we put on the bill in the window of the envelope if someone had said will that cause me to do something that caused me some loss they could have come forward and put on the evidence they never get they had time they had when they had warnings from the circuit court for the first eight people pay bills late because they forgot the bill that was the bill they were impulse purchase for the fruit and this is clear too from the evidence that for the first eight years of the settlement eighteen she was putting dated marks on the envelope there was no dispute about compliance people were still paying la evidence showed and the circuit court found that eighty gives customers twenty one days from the date of mainly to the due date systems are set up in fact so it's computer controlled start to finish eighteenth he can't even put out a bill with law of the cage corrupt we agreed to list forget the breach you know what i was trying to do it your i was to explain why there could be no showing of damages because there are you know first off we know that there's other reasons why people pay late evidence shows late payments going down not up well isn't the issue in this case not whether there could be no showing of the images it's whether the weight of the cited this is the theory of the images i'm it's inappropriate because the contract doesn't say first off the contract doesn't say that's the remedy and second contract law doesn't say that's the remedy contract law says you have to have a nexus de mint did you have to show i was economically harm i had economic loss and it was caused by the breach something you know the you know because this mark of the david mark was in the window something happened i could and really i can't conceive of a set of circumstances under which what but it caused me to pay a late fee and then you would say ok ben you put on your case and we sail on how many people can put on a case whatever we have we argue about the evidence no such showing here my point which basically decided i'm not going to try to put on a damages case i'm not going to put on a specific performance case i'm  don't have to sit there putting a meter mark on every single bill we do it up in bulk by a manifest process get one end of the post all the post office truck is on site it's out and it's under a computer control make sure we give people enough time to pay them to about that one and i may get but i may have to get back to you on one i'm sure i can find them because in context the breach of an agreement and the damages resulting from that relate to the agreement itself and what is the purpose of that agreement but say so or example i have a trick with you to build a building for you for one hundred million dollars and i contract to wife or fit everything or you have to establish oh my turning the building over to a month later the image in context it might be caught in that not just by the late because there can be let me pose you it's a breach of well but the breach relates to the purpose of the contract if i deliver you a building which is which has it's best to send it and i have paid you a bunch of money you know would have to establish the image you just can't say you're late give me everything in the context of that we're lation ship it is the norm to be sure that you get delayed because you want to move from a building ok what's the charge they go back and i am certain that we can find two cases where a party has breach and then a penalty provision because that's what a that's well a charge is is a penalty provision for pay right that i've put up and i say wait a second there was no provision in the contract that says you can't you can collect the late you can't but you can collect a late charge you may not have a right to collect it you may have to give it back to me and i'm sure i can find contracts that  you took my money and you weren't entitled to it so i get it back if there's no if there wasn't a bill a provision that would entitle you to grab my money for being late you may not have a right to keep it and you may just have to give that back they're still and here's the reason why because the date in its place gives a united states postal service what it did indeed have that's the date that it was sent and so and that's the purpose of the reg of the misread co provision so that a customer can look at the ime flow see the mailing didn't see the due date and subtract twenty one days and see if they got that they can still do that no they can't do that under your scenario but they under your scenario that they could do that they would not be charged they would they would be willing to look illegally collecting late charges because they only given fifteen days but the customers would have the ability their view and judge palmer's view is you still have to it gives them the presumption of authority to correct any late charges they were they were a regulated utility bill just get to put on whatever charges they want whenever they want it and get the presumption from that customers get the presumption customers get the protection of the administrative but the last thing i want to address in my in my colleague's argument is the effect of the release the release was a standard release that was never intended to bind people for to preclude them from getting a recovery of bell breached in the future is this it's standard in class action cases to have th parties to have a class release the defendant from all claims that arose during the class period because the class is reza defined and so they the class that had these claims released illinois bell from those claims but this provided for a future in force and maybe we can go to the next case please ok so the two cases only a rose separately because judge palmer said well you know you bill said morrison who is a class representative in late charges hadn't paid a late charge after nine hundred ninety three and so he didn't have standing i would differ but you know we tried to go along with the judge raises something that whether we agree with it or disagree with it we if we can comply with it we can move that aside we do so was the response to judge palmer suggestion what you need is somebody who paid a late charge after two thousand i think he said after two thousand and five but it was after two thousand and two so ok so cameron was up and that was appropriate underwood pops up and says i wasn't a phone customers and i did ninety one i paid a late judge after two thousand and five i have standing while this issue was and so and he should have been allowed to intervene while they were briefing that issue i presume they were going to come out against it but whatever schaeffer comes down and says that  if something is reparations it goes to the commerce commission now we had already we'd already been there from when they called this bluff back in the first case so i filed a case in the commer commission comic summation and that's where we got the discovery that showed the breach ok so we have this we have this case and the issue is now the issue becomes because they scheffler and they say this is really reparation so that if you were if you have standing this is now reparation question even though in the settlement and this is i guess why they want to keep the two of them probably because in the litigation ok however you got there this kahneman case you know what it is basically the issue of whether your claim for damages is one for reparation whereas at other conduct that is not within the exclusive jurisdiction of the i c c isn't it basically it yes ok so tell us why the claim for underwater town is something that the an overcharge and an illegal charge is the difference between damages the damage claim which belongs to the circuit court and the reparation claim which we long for the i c c judge palmer had to reach to come to the conclusion that this is a reparations claim because he acknowledged in his order that what they're saying is that there was not compliance with what would enable authorized bell to impose this charge so we can can we can consider it an overcharge or a discredit charge that is excessive or discriminatory excessive refers to quantity this is not an issue nobody's challenging the great nobody's challenging the the amount that we're challenging is the legality of the practice and certainly you know we came up with nobody even then come up with an argument that it was discriminatory i mean we're not no you know stay away from it because it's not it and but that's the problem is if we reach to get to this if we try to get pack everything into reparations then we're taking we're taking us outside where the i c c has exclusivity and you know at best there might be an argument for you know they could have made a an argument for primary jurisdiction that you have to refer to the i c c for their opinion and that's not really their argument to mr fuller is very clear that if it's a reparations case it's long to the i c c exclusive right so the claim which for which there was explicit circuit court jurisdiction so is it is it how do you address the argument that it is part of their terror it's a charge it's a rape or that you know that something that conflicts with the administrative code perforation they can't they can't change the legality of everything by just sticking it in a tariff i mean they a terrorist is made for a rate they want to tariffs and go it made that change may have been authorized we're not content we're not we're not challenging the amount they have a right to you know that that procedure that's how it procedure works like it or not it's not they could only charge a flat monthly rate and they put in their test that they were charging a per call rate that they were chechnyan per call charge in addition they would not they would have a date that was at least twenty one days after the date of the postmark on the bill run full if they can not by terrorists change that and make their own directed clearly by the administrative code they can't by tariffs just make their own laws on everything they can't you know that it's and that's not and then this is or doesn't show for say that the  that many bases and tankers to evers to chance in my view but they'd stretching scheffler to that extent i think stretches the bend then thomas would be wrong because thomas says they're using this to collect their bills and they have this is what they do to collect bills from people who went bankrupt and this is how they're collecting bills and so you're collecting bill so it's all covered by reparations thomas says that's not right that the difference between at least for thomas purposes and that would govern us to do is where it is that an assertion that the charge is illegal not excessive not just discriminatory with an illegal charge and the charges were illegal they were contesting the charges they were contesting pursuit through collection mechanisms right charge you know is a charge what they were it was a practice that they were using to collect their bills practices which are well here different if they had if they had if and if they were throwing on a late charge as well that they did not have a right that they were not authorized to collect that would still be and there were legal charge here bell hasta it has to  wrong that they shouldn't have been able to collect the amount that they did because they were under the services all during that time or during a lot of the time and so should have been that much things challenging the how much the the quantity charged late fees well too much is a quantity issue if if my service is out thirty percent of the time or if there's you know if ten percent of my street lights don't get the power i'm being charged too much when i get you know my rate charge because i'm being charged of being charged my rate for the whole thing whatever my deal is because of inadequate service which is exclusively within the purview of the a c c right here is a charge that they legally were not entitle to impose and that's a different we're not it's not a quantity issue it is a  qualitative it is a it is a pre pre requisites issue have they done what is necessary to impose the charge at all we think it's clear that they haven't now and we think that that is certainly in context appropriately done as a damages case and if they can bring me says a class case before the i c c anyway but whatever in order to have an effective remedy this is one for which the effective remedy is to allow the case to proceed in court while i believe that the two cases should never have really been separated i understand our difference in view this is and has always been dating back to an initial violation a settlement which we thought resolved it and would resolve it for all t but then it turned out to rush back well or surprise that they were doing it and we brought it so they were attention anyway we would ask that the court reversed both cases send them back with instructions to enter summary judgment for the class for a recovery of the one hundred twenty six million dollars that bell recovered during a time when it was out parading commerce commission regulation up until march two thousand and ten now they're seeing their view is it's an absolute condition has to be an official postal service postmark on all bills or no late fees this is a strict liability of discretion no facts and circumstances no showing of palm they're not in they have no intention of making any showing of harm and we don't because we don't think that they can there's no allegation of any causal connection noya legation that having a post mark or not having a postmark has anything to do with anyone paying late and no allegation that they're that the absence of a post of official postmark and just having our david mark in the middle in the window as the post service allows cause every single late payment over eight years although all across the state no allegation of harm no allegation that anyone didn't have enough time to pay their bills the evidence has shown that they had plenty of time twenty one days and their systems are set up so the big always get twenty one days that's why judge palmer was right to dismiss it's a classic reparations claim in the words of the statute it's a claim concerning quote a rape or other charge in the words of a chef or it's a claim for problems with that argument your honor the first is he's looking at the late charge in isolation the late charge is not something that we impose in isolation it is part of the rate structure for phone service it's part and parcel that you don't get a late charge unless you provide phone service though you can set up your rate structure you have to suffer to restructure to address the fact that some people are going to pay later than others one way you could do it is have just everybody pays more another way to do it which is what we did is some people if you that right and that's squarely a reparations claim that's the basically look you did not follow the commission's work wireless for opposing the charge we disagree about what that means but about that that's the merits but you didn't follow what the commission sets strict liability i there's no there's no showing of harm here no showing of causation here it is it's truly a strict liability view of what you are entitled to charge you charge me too much what is relationship between the administrative code  can impose a late charge now if my plan my point was saying well i think that they can't file a tariff if it conflicts with the regulation but that's an issue the commission has to sort out the commission is the only body they can have the terror terror is the law and the commission is the you're saying this is our rate structure so when you say when you put the conditions and practices for assessing late charges into a chair that shows you that it's part of the rate structure and what schaeffer tells us is that you have two prongs one is are you complaining about the charge which they are doing were you complaining about something that's directly related to the charge and that's again the late charge is directly related to the phone bill you don't get assessed a late charge an evacuee you can only get a sessile a charge if you buy the phone service and the amount is based on what you pay for the phone so a set is so that if you look at the case that of adler versus illinois congressman they say look if if something you know the net case it was a tax or saying look this is directly related to the phone bill it's part of the condo it's not something separate so what you are doing is you're seeking reparations for part of your phone bill that again you know this is a case where they have my point to say i paid fifty five i should pay fifty it's squarely a claim about the amount in addition you know this idea well i should have been charged on there are several cases that hold that that's reparations came face is still a dispute you're still saying it's excessive if you get charged by and you say it should be zero you're still saying the five is excessive we have cases in there multiple that say if it's if if you're plaining about the whole thing that's still a reparations case in the village of bigger evergreen park which you mention i did you know your child free for forty for light bulbs they didn't work that is too bad that's a that's a reparations claim that goes to the commission want to refund or wrap aeration of the charge no proof of harm no proof of causation or damages it's a pure strict liability thing based on the commissions their view of the commission's regulation all they are alleging is they think a twenty charge too much for their and against the late charges are not only first be our charge in and of themselves but they are directly related to our rate structure for phone service is part and possible in the terrace of the documents that govern our relationship they lay out the conditions for the late charges so that tells you yes this is part of the rate structure and in addition it gives you an out of turn to basis for a firm is because you can't bring an action in circuit court if the tariff speaks to that is the tariff speaks to your claim which this does it says this this sussed lay charges and we compete is no allegation that we did not comply with our tariff then that's another basis for saying look if you're if you're just complaining about the tariff you think there's something wrong with the chair you've got to go to the commission so there's two routes and they both take us for this is a case where the commission should decide this question if you look at the reparation stature it specifically gives the commission discretion if the they find an excessive charge they me award reparations because they understand the industry they understand the rate structure instead of the side effects they should have discretion to decide if in the first instance if reparations are appropriate in a particular case and in this case they roll the regulation they understand how it fits within the tariffs and the rate structure they understand their intent what and what the in what they wrote and they get deference from the courts when it comes to interpreting their own regulations moreover they just looked at this regulation they understood that many carriers like it not just eighteen she used these modern mailing methods and they're fully aware my points position he filed a complaint with them in two thousand and six they decided that he released those planes or the settlement agreement but they told th we can take this matter up on our own motion and they did they didn't say that the regulation absolutely required postmarks as a condition of any late fees strict liability refund automatic normal girl showing of harm they didn't say there should be mass or futures they didn't get it just the opposite they clarified the regulation and the words of the staff reporter very clearly say look we don't agree with you know my opponent's position but in the interest of clarity we  think you should we revised language that's page two with the staff report which is in our supplemental pendants this regulation was in effect for decades and the commission has never adopted my opponent's position and no one but my point has ever asked them to hope caused thereby or resulting therefrom my points have conceded there's no showing of i'm here there's no showing of causation or damages they want strict liability refund those are that squarely the type of claim that goes has they try to stick those things into an amended complaint but there's still no allegation of backs throwing any kind of causal nexus between the absence of a postmark and official us postmark as opposed to a dated mark by us in the window thomas my points are taking two words out of context out of it sition thomas doesn't have anything to do with this case there was no complain about late fees or any charges on the bill they were asking to have them refunded because they didn't pay that big what they were complaining about was kind of after the bill disconnecting service collection letters after the bills were just charged in bankruptcy we're talking here about charges on phone bills not collection letters after words this connection  discharging big prosy it's based on a commission regulation judge palmer look at shuffler he looked at thomas he was right when he held the substance of this clase is a classic reparations case claim and another word about commission there are multiple class actually cases that have been been called reparations places and referred to the commission this is one scheffler is another there's no damages claim here we know there can't be there's no allegation of causation or damages caused there case you're correct you are right i apologize but what i what i meant to say was simply look if you look at the essence of the claim but the essence of the claim is i want to refund i paid to i paid fifty five on my phone bill i should pay fifty the essence of the claim is not damages because we know there's no allegation of causation or anything or anything like that with that bit we take that we take it straight from the complaint and what is was theory of the cases everything else i have nothing else unless you have any further questions here thank you  know i might be another example because foreigner was a case where the the prisoners calls were cut off so they had to keep making first calls and get charged for the first minute that that he had to pay a first call charge because they were coming off this calls short meant that they were illegally charging him for first call again again again again that there  it conflicts with the administrative cope they might within the within the framework of whatever the administrative code permits them to do i guess they can put in a tariff that you know establishes certain rates and whatever they can do that but they cannot really define everything so that everything becomes double speak to whatever bell really wants to do and i think the thing that is most troubling is that even there that they would have said this was primary jurisdiction so that primary jurisdiction means that you could refer it out to the to the i c c which is centrally what judge i forget what the gentleman's name was at the time in this case it's been referring it over means that the court has jurisdiction to begin with but can refer it over for primary jurisdiction on the issue of compliance which you not or would not but they can't argue now that there was never there was not jurisdiction because that contradicts their view of it going back to the beginning that sort of like the men the whole concept that you can't keep changing your your defense as things go on to for whatever happens to come your way we think that in context both cases show bell's intentional violation of the administrative code provision and the settlement agreement and that they should not profit from that intentional violation and that they should have to return one hundred twenty six million i'll give you the exact figure if you want but it's in there anyway we would ask that you reverse and remand with directions to enter judgment for the pla