the file a case are called the docket for wednesday november seventeenth two thousand and ten is agenda number twenty case number one one zero zero nine two andrea barber versus american airlines  council please proceed media please chief justice fellow justices and opposing counsel lettings mike mcallen it's an honor for me to be here before you today on behalf of american airlines as you know the case arises from an apparent ticket dispute at o'hare airport when a counter agent at american airlines allegedly beef used to refund a forty dollars baggage fee after his partner's flight was canceled issue today is whether american airlines tender of that forty dollars before any class a motion for class certification was filed rendered disc case moot we submit that it did and we would ask this court to reverse the appellate court order to the country for three reasons first the decision by the appellate court is a fundamental departure from the law that was set forth in wheatley and virtually  in a class action lawsuit second the law created by the barber opinion will have some adverse consequences in the future and third the court here in comparing our case in order to try to to make the points or hopefully crystallize the points that we've made in our brief i think it's maybe helpful to take a step back real quickly to the wheatley decision in one thousand nine hundred four because it was in wheatley where the court held that the teachers had accepted that offer of employment the rest of the case was moot and the courts specifically recognized in that case that it was an interest that the requirement that the named representative have a life stake in the outcome was subsumed in sections two and three of the class action statute and if you fast forward through the years up to two thousand to try to crystallize the general rule here if you look at considered the case in the hew versus i b m where the tender was made before the class was certified and it was a well set rule by the year two thousand based on those decisions a common thread was that a defendant can moot a case by making a tender unless there was a motion for class certification on file that was pursued with reasonable diligence that was the uncontested standard in the state of illinois through at least two thousand in fact has been repeated in several cases since then as recently as last december in the lewis versus gere donal's case that we discussed in the very so i would lump that into the believe your honor after suit was filed i believe that we tendered on september fourth via the affidavit found a page forty four on the record there's an affidavit that we submitted that showed it was on september sixth i believe  september fourth in the complaint was filed august fifteen served august twenty one so about fifteen days thank you so if you contrast that general rule that i just mention class seem to outweigh some of those other interests and if you look at gal and you look at some of the cases that follow the try to create this exception to the general rule there are several one is grammar versus compaq computer cohen versus compact power systems economics versus j p morgan all those cases are in the briefs but as you can see there is language in those cases and what i would call the exception that's emerged in the last ten years which suggests that a plaintiff must have time not only to get the motion on file but to person to do the discovery necessary to get that motion on file won't know why has therefore seems to have changed with the exception and here's the problem that we see number one is you know what's wrong with this strain or this exception that's kind of emerged well we would submit that if the court were to follow this far rule and many of the cases that follow with it i think you can essentially take the weekly decision it's no longer good law the exception has completely swallowed the rule the touchstone for the wheatley decision is that the person the interested class members must have some life stake you cannot have a general rule that says that a defendant can moot a case before a class motion is file yet on the other hand have an exception that says but the plaintiff has a reasonable amount of time to do the discovery necessary and even get the motion on file they are completely irreconcilable concepts  the exception has completely swallowed the rule this previously established for lack of a better word safe harbor or free time that the defendant might have to make a tender to make things whole before the motion is filed no longer exists because there's a subjective land of reasonable this that someone can pursue discovery and get a motion on file that's the first problem we see the second problem we see is in this particular case even look at the facts of this case we tendered fifteen days after the lawsuit was filed that was before any class motion was filed it was before any of the requests for discovery had been made and it was before the statutory period of time for us to even respond to the complaint if that if when could we make a tender if that's not going to move the case there is i can't think of a situation where we would be able to take advantage of if that's the right phrase of the weekly rule that allows us to make a tender before class motion path if we can't do it in this case another problem is you know someone might say well this case is like a haven versus auto house and your answer defendants is just take care of the problem before the lawsuits filed well here's the problem with that and i refer to this perhaps as a gotcha rule under the barbara decision in the bell decision this law will become completely intolerant of mistakes made by entry level employees it would require perfection at almost every level of the corporation under this law in barbour and i used the word entry level employee not with disrespect but this is a front line employee dealing with customers at the airport if an employee like that  es bad advice or improper advice i can't correct it the company cannot correct it under this law management didn't even know about this dispute until lawsuits filed we had no chance to try to cure this that's why we have different levels in organizations that's why we have managers on duty that's why we have customer service departments under this law one mistake by an entry level employee gotcha like and with complaint august fifteenth four days later and the payment was tendered september fourth that's correct  thank you a third problem is worse yet under this decision all they someone has to do is allege they were given advice contrary to what the company's policies were another thing this will lead to we think is an increase in litigation as a result of this why in this case with only four days having elapsed there was never a chance to give the customer service process a chance to work we tried to refund this in accord with our published policy to provide refunds which was uncontested at the trial court level when that was done the answer to that when we tried to tender this fifteen days if a suit was filed no fanks we're going to sue you so it just seems that on this one time communication that was had with this is how we end up in the suit that we're at today the case is a lot like the raymond vs harry's case that that the amicus cites you know basically it says if in the course of business like this especially us in this customer service industry to have a chance to let that process work in this case it was uncontested we had that policy to make the refunds and we did our best to try to comply with it and as a matter of fact if you look at the affidavit i believe it's on page forty four of the record and that affidavit the a fine says that she received notice as the corporate office manager on september fourth and called the plaintiffs that day if the barber decision is allowed to stand we would suggest that it would invite litigation and make the trial courts the customer service department in the state of illinois in our judiciary system is the problem under the building there's no li a life claim ok if if it is ok to make a tender before the motion is filed makes makes perfect sense to me once you have the motion filed and you tender afterwards the courts then say it's the filing of the class motion that is enough to bring the interests of the absent class members home to the court before that class members and they said the way that we can do that is if you mark the filing of the motion for class certification that's strikes the balance up until that point if there's a tender prevails the case is moot after that point you defendants you can't stop you can't you can go ahead and sell your case but you can't moot the case for the remaining class members that answer  question thank you in this case you know and the rationale also just to follow up on that point real quick the purported absent class members aren't prejudiced by that because successive lawsuits by similarly situated persons are not barred if anyone else felt harmed they can file suit and there's another remedy and that is to substitute there was two hundred seven days i think from the time of filing to the time a decision and five months from the time the motion to dismiss was filed to the time it was ultimately dismissed there was never an attempt to file a motion to substitute another member what i'd like to do next is just move to the last part of the argument here and that is to say that even if for some reason that barbara court was correct in following which  explained we don't think that they were they misapplied geld and the court was wrong in relying on it for these reasons the specific quotes that the lower court mention was  a couple on page eighty four the opinion of barber court said in comparing our case to the geld case and to refresh you in jail was the one where there was a stay of discovery and they held court felt that that was unfair to pursue  the most of the class or vacation in the barber opinion the court's assuming the case apart plaintiff served discovery to obtain identities of the putative class members only a month after having served defendant with a class action complaint and the quote from the barber decision is but has been gelled it was stated the court also said by seeking discovery and promptly filing a motion to compel she exercise requested require diligence i completely disagree it is not support of the record here's what the records supports we filed our motion to dismiss this case in october of two thousand and eight on november seventh and that's it  record page eighty eight there is a one page order on that day and i'm that day everyone appeared to court and if you look at the top of the order it is an agreed were the agreed order set briefing schedule for the motion to dismiss at the very end of the agreed order it says defendant's objections to the discovery are entered and continued and agreed order is not a stay it's the way we do things in the trenches in a courthouse when the parties reach an agreement and even go see the judge it was in agreed order to set the briefing schedule plaintiff agreed to that order there is no indication unlike in gallo where of the trial court tried to muscle let through where we american tried to obstruct that right to move forward with the discovery so i would suggest that that was the first opportunity excuse  first opportunity to pursue the discovery if they felt that they needed a second opportunity the summer sixteenth two thousand and eight record page fifty six take a look at the response they filed to our motion to dismiss nowhere in their response to our motion to dismiss is there anything mentioned about how they will be prejudiced by not having that discovery answered there was nothing mention there was no rule ninety one b affidavit attached saying we need more discovery in order to be able to respond to this motion a third opportunity record page eighty nine january sixteenth two thousand  when the november seventh briefing schedule was set it set a status state of the motion for january sixteenth of two thousand and the motion is completely brief now the parties go before the court on january sixteenth before judge  it works in cook county where we have with a motion judge is fully briefed ok i'm going to set the hearing date now for march which is what she did nothing mentioned at the january sixteenth conference there's nothing in the record to show anybody needed any discovery whatsoever in order to respond to this motion or to file a class motion it wasn't until three weeks after the motion was completely briefed and two weeks after the motion was set pursue it over the course of several months so the difference between this and gelman is that there was no stay i am not here to cast any aspersions on what counsel for plainest at the trial level that's not my point in fact it looks like they made  decision not to pursue the discovery while the motion was pending their choice when they then filed the motion to compel hey the other area that the trial court at that appellate court said here and i'm reading from page court said on february twenty sixth two thousand and nine the trial court informed plaintiff it was placing the issue meaning the motion to compel on hold while the motion to dismiss was pending that is just not accurate there is nothing in this record where the trial court put on hold their motion to compel it didn't happen if you look at the order that was entered i believe that record is page ninety one which is the order from february twenty sixth that motion to compel  there's no response brief that we filed there isn't even a transcript of that hearing so the appellate court we believe was wrong in making those statements that it did to and finally there was no indication here that there was court before idea of begin my plan argument i'd like to make a couple of comments about the opening argument to decide as it is suggested that  a tender if made a day before the motion for class certification is made then the case is moot and if it's made a day after the class certification it isn't to me is much too arbitrary for our judicial system i don't that's not that's not the real issue in this case that right lin but it doesn't really make a lot of sense as as we proceed and civil proceedings the second thing i want to note is that the consul criticized the fact that there wasn't another member substituted after they made the tender well think about that for a minute who was that substitute member that's what the into rockets or it was about other any other members they didn't know there was no way to determine who a substitute member would be while the case may be public it's not public in the sense that anybody who had a similar experience with knows so there was no ability no opportunity to do that third i'd like to mention that about the shredded she in the motion to compel what the record shows is that other things the court answered in order entering and continuing the objection now i have to ask rhetorical a because i don't know the answer to it if if  an order is entered by a judge is that appropriate for consul for the other side to follow a motion to compel when the objects in this been entered in continued it's offered at best i think that the real question in this case is whether or not a representative plaintiff in a class in a putative class action case who is diligently porth pursuing the case can suffer dismissal of that case and the two circumstances that occurred here where the defendant withheld the information necessary to present a good faith motion for class certification by refusing they posted just that the complaint which had been on file for some time by the time that was done to soft interest the american airlines was served with the complaint on august twenty first oh wait their appearance was due in september twentieth but wasn't filed on september twenty fifth so it would be one month four days between the ton but they were served with the complaint and the time that they chose to credit the credit card without telling us they told us a few days after that and  before i heard that there was a telephone call on september the fourth between plaintiff's counsel and somebody from american airlines who said according to the records something like i'm sorry i'm not putting it precisely but something like that will we'll give you the forty dollars and we'll we'll take we'll consider whether or not we will give you the court costs that were involved and that was refu well i appreciate that bet is generally true though when you have when you have in an undefined class as you have here remember this this isn't like wheatley for example which i don't even know how that's a actions only fifty nine people but they named the fifty nine people who signed the contract and and they knew who the fifty nine people were and when they made the offer it if it did it everybody except that i think it's a four or five people it's not that kind of situation that we have here what could be the offer that they're making was that was the suit filed to collect the forty dollars you know the suit was filed as a consumer about what they went into with that there's a there's a ticket contract on that says that you your money gets refund them it doesn't specifically refer to baggage but it it puts the puts the baggage claim on the ticket together and says you  money gets an immediately refund if you have ever messengers degree in computer science to find this so called policy and i would also suggest to the quart that a policy is not simply stated it's followed and we have no idea at the time that the complaint is filed whether or not any policy of refunds is in fact file is follow a consumer against a corporation or what why is that the way it is why do you think it should be for two reasons first the arbitrariness of the rule that that that the defendant is as is asking this court to do that that line the course to follow and second in the instance of the damage to your luggage or your baggage i have to look to see what the what the contract is but if you have reason to believe that the airline takes the position that they can damage your luggage and not pay you for it then you seems to me that you have reason to believe that there may be others who are similarly situated and you can move forward on that but you'd have to find out wouldn't you you'd have to find out whether or not they're not going to tell you for all we know there were twenty suits filed across the country about this and each one they decided to pick off the plane to find some bases we don't know that and we can't afford to certify class that may not exist we have to find out if it american airlines is is talking to the choir about there are great concerns about what's going to happen but what exactly is it that they're concerned about are they concerned that there is a class of people and that if they don't if they don't have the opportunity to pick off the representative of a member of the putative class then the class will be identified and they'll have to change what is their policy but what exactly is says six months or a year or some specific time it's a determination by the trial court as to whether or not the plaintiff's counsel has acted with diligence i mean the gill court the go court the due diligence should be on a case by case basis that the interests of the absent members of the class should be considered that it was concerned with the integrity of the process and so that there should be allowed a reasonable opportunity i noted in my this is my notes so again it's not precise but in the last sentence of the guild court's opinion and says we reversed so the the terminations of class certification may be made in appropriate time on ice think in in more direct response to your honor's question i think that it is wholly appropriate to leave that in the hands of the trial judge  and the then the plaintiff who is asking to be the representative of the class is acting in a diligent fashion then the case ought to be allowed to proceed they ought not to to to be in the position to pick off the plane to under those circumstances the fact that with the complaints will be filed the class certification motion that's the only way the plaintiffs can protect themselves if you have and that of courses is not reasonable it's not rational it it creates a situation that nobody really wants because that class certification motion isn't going to be as developed as it as it should be now there are cases where in my view the discovery is not necessary in wheatley it certainly doesn't necessary got fifty nine people who signed the same contract and all fifty nine product and you are saying that there's something about the sale of that product that is wrong the tortious or breach of contract or whatever the basis of the class action is you have a pretty good idea you can say to the court  that the four thousand of these units were sold and therefore we have numerosity in all three and all four thousand of those that contain the warranty that said such and such and therefore they have common questions of fact and so for the next kind of situation i think that the the the claim of of discovery would be rejected by the trial or i think properly so but in a case like the one that is before you and the one that just is common mentioned with the damaged two who luggage you don't know and therefore in order to be able to properly develop and present your motion you need discovery and if you are pursuing that not so much the size your honor it does have to be a certain size to numerosity requirement order to be certified as a class but i say to determine whether or not there is a  class whether or not there is a class may require discovery in certain cases as it did in this case so you can't treat all cases the same and as bright line rule is would be unfair irrational and  in this in this case bear in mind that this court's rules this court's rules do not allow anybody to initiate discovery until thirty days after all defendants have appeared or are required to appear thirty days after american airlines was served they did but two weeks after they found health but i guess nobody brought brought that up but certainly we should be punished for following the rules so eight days after he was the absolute minimum time to file and continuing the objection so where's the lack of diligence and then some time after that the motion to dismiss was filed if the concept of a class action includes includes it's not exclusively but includes consumer protection because there's no other way then that is that is unfairly throwing the baby out with the bath we we look at or should we look at it isn't relevant as counsel for american would argue that the refund was made actually within the timeframe of their policy which you say is difficult to follow is that important as opposed to whether the refund was made simply to pick off your client if there was a if there was a contract and the cut and they were within the contract terms i would answer your question affirmatively but there was no such thing and remember that the that even though consul argued about starting a entry level that's where yours that's where she got her ticket refunded that's the person who doesn't you don't go to the corporate president and ask for your ticket to be refunded when your flight is cancelled you were instruct d by the airline to go to the reservation clerk so she went to the reservation clerk and got her ticket refunded but when she asked for her baggage claim back she didn't get that because he said it's our policy to not refund  suggest it's the opposite i would suggest it's the arbitrariness of what the barber court has said first of all i think what barbara did was it's confused and i think i've heard it today in her counterargument and that is that you should have this reasonable diligence in pursuing discovery no that's not what the general rule was that we talked about this morning the general rule is a reasonable period of time to to pursue the class motion for certification once file that's what the problem here is that has morphed into a reasonable period of time to do discovery that's the problem with the exception that's emerged lepel mention that they're there to the effect that their hands were tied because we hold the keys to the remaining class members i disagree for this reason number one if we look at the hildebrand case and the bremmer versus compaq computer cases in there both of those cases say the plaintiffs do not have a right to seek discovery of the identity of the class members it's right in both of those decisions the second part about that is they alleged in their complaint record page eighteen that they had to sufficient numerosity in their complaint well seven months went by and no substitute number was given what and even going back to article three it requires a continuing controversy amongst ad first parties who retain the requisite stake in the outcome of litigation that's something that at least even a law school will learn is the first thing you do here by what's now proposed we have to take a wait and see approach on the concept of just a should billet and moodiness let's wait and see if they pursue this was diligence will what's that mean if you have new parties added to the case down the road if you have stays in discovery or motions to compel or jurisdictional arguments raised by some defendant who has been served there's a whole mess of things that can wrinkle or make arbitrary does what is proposed here about reasonable period of time to pursue discovery there was a mention that you need a master's degree to find the policy but i'd submit that really is as far as what we're here for today isn't important because and i never really quite understood this about the case because it's not like we had a policy not to pay you back the policy that we had that was uncontested it was not in the contract of carriage it was in the published policy on our website which is uncontested that we will pay you back as we wanted to do and they didn't want to take the money if a different perhaps if we had a policy when i get buried somewhere that we don't pay back when our flight gets mentioned well so what are we so concerned about well i think this case is a perfect example of what we're concerned about someone went to the courthouse four days after an apparent ticket dispute at o'hare airport and file a class action lawsuit and here we are two and a half years later still be getting this issue on a case that we believe was mooted when the tender was made if you're going to say that they should have this wait and see approach doesn't that also fly in face of the established precedent that we have in this state that says you cannot perpetuate the controversy by denying the tender that's in all of the cases certainly that i've seen in a case and was made very clear in some of the decisions back after we only it says when you're made a reasonable turn you can't deny it and say i'll see you in court just to perpetuate that controversy and that's exactly what will be nullified if we follow the barber rule there was a mention of a pickoff and the only thing i'd like to say about that is you know there's in reading some of these cases there's almost a i mean is in a bad way the kind of a cynical attempt that whenever you can make a tender it's for some evil motive well you know that the this period of time here this is a situation where in a service industry we tried to do something within the established time period and let the customer service department do its job i think that if you're going to look at these kinds of cases i think it's a mistake to just assume that just because someone made a tender and had some evil cynical motion even vote that's perfectly allowable under our law under wheatley and all the cases that follow it  even say you can make a tender up to the time of the motions filed even if your intention is to thwart the class it's not what happened here even though that's perfectly allowed all we try to do here is right or wrong by a person that was at the gate and for the reasons i stated the opening argument i think that the wa laid down by barbara give us a chance to do that in the future mr lepel is correct they can take your money to book a flight they can give refunds we're all human and sometimes people make mistakes and as i mentioned earlier that's why we have to have a time to cure and it seems that if you're going to have this kind of a law the law should allow companies like american companies like power companies whoever they are have a chance to let the customer service department take its course and let things try to work themselves out pursuant to either contracted remedies between the parties or publicly established policies for refunds like we had in this case last thing i'd mentioned is there was some talk about the motion to compel and after that earth propriety the denial of the motion to compel is that up on this appeal that was never raised in any of the lower courts below so the propriety of that denial is not before the court today for all the reasons i've discussed american behalf american airlines thanks for taking the time to listen to me today and we'd ask that the court reverse the appellate court order in this case they can thank you case number one one zero zero nine two andrea barber versus american airlines ake gen