favor of settlement of cases i would dispute that there is such a powers we have a class action statute we have cases such as the shoddy which hold that a class action is the desire desirable means of resolving multiple modest claims and we've got haven't either of those places a requirement in effect of a precision to me and to which the defendant can respond by offering to settle the cases does not exist or more importantly in this case a partial lender has nothing to do with settlement it allows by definition it presumes that part of the case will continue that has and schedules were established with your motions to dismiss and we're going to discovery then we'll get into class certification and that's what happened in this case discovery proceeded discovery was very difficult to get i don't think there was any discovery that we got in this case without having to file a motion to oh we didn't get the transmission logs without compelling production inspection pens actual computer hard drives which turned was dismissed right the class allegations and on this record but it was having to admit it that the complaint was sufficient you look at the complaint and the motion they between them contain all of the necessary information to justify  classification which is raised by calls in response to our petition and this is under an abuse of discretion so i don't think there is any question that the record in this case shows that there was a blast yes it's generic  with specific person it's not sent within coles usual train here it references a website created for the specific purpose of this promotion it was obviously something that is just by looking at the  i defendants main argument appears they had allowed quite the same action imposes excessive damages circuit court decision him versus us the answer to that is simply that the remedy and the problem may please the court my name is a mere thomas p i represent course pharmacy i want to start with the point that justice thomas brought up with respect to the time you heard counsel talk about that he had to do some extensive discovery so here  dates the cases filed in may of two thousand and ten and there's almost two years of discovery the computer where they claim to have received the lists they received all those documents on march no later than march twenty sixth of two thousand and  twelve what i would call the original or the real motion for class certification was filed on november nineteenth of two thousand and twelve we're talking about almost a period of eight months that they had the information that they claimed they needed in order to appropriately file a motion for november nineteenth two thousand and twelve no further discovery with respect from at least my clients in the list was needed so they had everything as of march twenty sixth two thousand and one which i think is correct that's why given the benefit of doubt even given those two years text messages which i guess the general assembly has abolished as of yet and in that case the supreme court's going to look at a similar issue as we have here in other words whether tender damages to a plaintiff in a class action prior to class certification moves the controversy and takes it beyond article three the reason that i bring it up isn't because this court is in any way bound by what the u s supreme court is going to do it's not this court's only bound by itself in the general assembly assembly but i bring it up because the majority of the cases relied upon by the plaintiffs in this case are seventh circuit cases ninth circuit cases eleventh circuit cases that are all going to be under review sometime this year i guess this court is a little bit ahead of the folks in washington since we're sitting here today arguing in any event best case scenario for the plaintiff those cases are upheld and we're where we are today but i bring it up because i don't think that we should be focused on those federal cases that that they cite we should be focused on the supreme court case that this court decided in barbour we should be focused on section eight zero one and the requirements under the illinois statute for classes you have yes i could address and now your honor yeah so the all the cases that they cite deal with we're not talking about split counts they're all dealing with one one count one direct cause of action here they they chose to file three separate cause of actions that have three separate elements of damage so they haven't cited a single case that says you can't by tendering damage for a statutory claim moot that claim and so to say that it's a little bit of a red herring to say that the for instance the mcmahon case the scott case that they cite all those dealt with one single cause of action they didn't deal with what we have here where they chose to file a count for a account for conversion and account for i think it was a consumer fraud act so because they chose to split up their remedies it there's nothing there's not one case that says you can't just like you can file a motion for summary judgment on one count or another seek to moot that count that would be how to address that justice t s so the focus needs to be on you know those two things what this court's going to do in barber they don't want and then the policy and i want to talk just for a moment about the policy the effects it's going to have if this court affirms the effects of it reverses and then humbly what i think is a solution to the concerns posed by the plaintiffs to the concerns posed by the defendants and to the concerns posed by this court and barbara when it said it wants to protect the rights of the class members i'm not going to stand here before you and say that if you affirm the appellate court it's not going to have an effect on t c p class actions i certainly think it well i think we're going to see more settlements i think cases are going to get resolved quicker because damages are going to be tender sooner i don't necessarily think that's bad policy it's not we're promoting a settlement which as noted in barber by justice freeman that's a good thing the other thing is it doesn't in any way prohibit other plaintiffs from coming forward and i go again i go to a barber justice freemans thomas he said and i think it's worth quoting speaking of the refund quote there is no indication that defendants refund the plaintiffs affected the rights of others who did not receive similar refunds presumably the remaining class members can either pursue class litigation or bring claims separately same thing here so by allowing a case a plaintiff to be paid early on it in no way affects the rights of other plaintiffs and th and that's the end that's really a bigger policy problem than what we'll have if we allow settlements to occur early and that's a bigger concern in my eyes from a policy which so what's the solution as far as a policy goes how can we  create a balance between protecting the class interests and promoting setup and i think what we need to do is there has to be some type of threshold when these class motions are filed in other words if you look at plaintiff motion for class certification with respect to count one it just says all those who received a fax after i believe it's two thousand and five doesn't say anything about section eight a one doesn't talk about the numerosity doesn't talk about common questions of  fact doesn't talk about whether it's the appropriate point if i'm talking about the original motion it doesn't consider any of these so if we're going to allow for a class a motion to be file with the complaint let's at least meet the threshold requirement let's at least have some some facts and some law i mean in this case we know for example that the fax went out in april of two thousand and ten so why not file a class not motion for class certification saying that on this state ballot received a fax we expect the this month additional people resteal some think it was something aside from everybody who received a fax after the year two thousand and five that doesn't give us any indication or any evidence that there's any reason to move forward and allow discovery which again i'll point out occurred in this case so i think that if this court is it wants to look at barbour and say well we need somehow to protect the class rights and a lot and allowing them to file any motion i don't think is the way to do it right away what's the remedy for those others they can file other cases but from a policy perspective that's why i think we need to bring forward some type of threshold that wasn't articulated in barber because i don't think quite frankly anybody foresaw this to be an issue if you look at the damasio case there was no motion for class certification filed but when i read that case i read it to mean there has to be something to bring before this court some type of evidence in your motion that indicates we should allow you to move forward  this in this motion for classification we don't have anything like so i think the solution to that policy concerning justice thomas is it definitely i'm not going to say it's not a concern as much as i'd like to for my client we need to make some type of  some factual support under a don't one so there has to be some evidence that these faxes were sent to more than one individual there has to be some evidence that there were common issues of law in fact now i don't know your question just i said well how do we say what's enough and what isn't enough and i think that's something that has to be left alternately to the trial court to make that decision this court can set forth the standard that you need to present me to meet a threshold i'll be at some to some evidence that we can even consider a motion or a one that wasn't done here i think that has to be discretionary i don't think we can we can make a a fine line ruling or find one rule as to what that is that's the best i can answer that your counsel speaking of threshold issues i know you treat the tender issue really is a secondary issue but if we resolve the tender issue that it doesn't move things out because that resolve  issues at least in this case it is far is the remaining counts yes yes yes i just hope i know it doesn't i mean this this case was i think you've got to look at it two ways one from you know counsel correct that if i'm going to stand up here in argue  settlement you know it gets rid of cases well it's not doing that in this case it's a larger policy argument so absolutely if the tender issue is resolved in the favor of coles case isn't resolved but i can tell you it moves it into the right direction because now we're talking about and it was a calculated decision to file summary judgment under just one count now we're talking about conversion and damages that are are easily the case and i think could be easily resolved so i don't know if they as well for the sake of argument what i was asking his if it's resolved in explain how that version because the way that i see the complaint is there's three separate counts seeking in this in this instance there's three separate damage remedies so if you're talking about for example a common law legal malpractise in breach  in most instances the facts are going to be similar the damages are going to be the same or breach of contract and breach of fiduciary duty in this case you're talking about distinct damages for each count and so if i see the tender it completely covers it's a complete and the last point i want to make justices goes to again protecting the class rights and i do think that's important i think it's an important policy consideration and the appellate court i'm quoting up partially with justice freeman s says if the purpose of a motion for class certification is to sufficiently bring the interests of the other class members before the court then a motion must contain sufficient factual allegations so that it does in fact bring the interest of other class members before the court we don't have that here that if you look at the motion in it's in the record it's very it's very cryptic to the point where i don't think it could be recognized under barbour as bringing the interests of the class numbers for and this is all a just finally is this is all aside from the fact that we're talking about an eight month gap between the time they had the information and the time that the class motion was filed so i think this court could  appellate court but at the same time address some of the issues that have been raised with respect to the filing of child motions and and allowing tenders before any discovery has been done there's any further questions otherwise  two counts generally consumer fraud in common law fraud against or local dealers a tender was made on the common law fraud which you were each case held that such a tender is not sufficient can do anything so it involve requested in good faith and with a reasonable basis all of the necessary allegations in this case are in the complaint so what the defense defends position basically is is there you have to either copy all the allegations into the motion or it's not sufficient or then you can't read the truth together i who won thirty four with this court case that repetition of allegations is not favored it certainly doesn't serve any useful purposes of form over substance or out in this case it's quite clear that just from looking at the facts and the allegations in the complaint that it is a blast it's generic it's not individually not have to contain evidence or fails it says it has the quotation is fully developed and discovered the facts necessary to obtain certification of support that is assumed mccabe present filing the motion with a have somebody wants to resolve a case you can always discuss settlement but generally the walk to work doesn't get signed what planes are going to proceed against that's what the argument amounts