### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 16

- 3472
C AFFERTY , C LOBE S , M ER I WETHER & S PRENGEL , LLP , on behalf

of itself and all others similarly situated, Plaintiff

- Appell ant ,

v.
XO C OMMUNICATIONS S ERVICE S , LLC , D efendant

- Appell ee

.

____________________ Appeal from t he United States District Court for the Northern District of Illinois, Eastern Division

.

No. 16 C 2331

— Milton I. Shadur , Judge

.

____________________
A RGUED F EBRUARY 7, 2017

— D ECIDED M ARCH 8, 2017

____________________

Before B AUER , P OSNER , and S YKES , Circuit Judges

. P OSNER , Circuit Judge

. The plaintiff, a law firm, seeks both individual and class relief against XO Communications, a large provider of telecommunications services to business
customers , suc h as the plaintiff, and wholesalers

. The plai ntiff’s contract with XO provided that the contract would be automatic ally renew ed at the end of the customer’s current service term “for a sim i lar term and at the same rates ” set2 No. 16

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forth in the contract. A custom er who didn’t want to renew was required to so notify XO at l e ast 30 days prior to the e xpiration date in the contract ; if it failed to do so , the contract would renew automatically

. The contract also provided that XO would notify the customer of the autom atic

- renewal fe ature of the contract (which it did from time to time) , thus reminding the customer that if it d e cided not to renew the contract it would have to so notify XO at least 30 days before expir a tion. The contract further stated that if the custom er terminated the contract after the deadline it would have to pay XO a termination fee based on the revenue that XO would have received from the customer over the remai n ing months of the contract had it not been terminated prem aturely and thus in violatio n of the contract. XO’s monthly invoices contain a prominent r e minder of the automatic

renewal feature of the contract

. The plaintiff’s contract with XO had an initial term of three years and renewed automatically (that is, upon the end of the co n tract ter m, the plaintiff not having terminated) three times. But shortly after the third renewal began the plaintiff reneged because it was moving to a different loc ation, one not serviced by XO. By thus violating the contract the plaintiff owed XO a term i nation f ee. All this is straightforward, leaving one to wonder how it

c ould give rise to this lawsuit, let alone to this appeal, which complains only about the district judge’s denial of leave to the plaintiff to file a third amended complaint, a ru l ing to which t he plaintiff takes violent exception. The mult i ple complaints in this case alleged breach of contract, viol a tion of Illinois consumer protection statutes, unjust enric h ment, and unco n scionability, among other things. But the plaintiffNo. 16

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has no case , as all i ts claims pivot on its contention that XO’s monthly reminders of the automatic

- renewal fe a ture of the contract should have include d, but didn’t, the date of the automatic renewal , or that XO should have otherwise not i fied the plaintiff of the renewal date before the contract r e newed

. But as the automatic renewal comes at the end of the cu stomer’s term of service , it is child’s play for the customer to keep track of the deadline (30 days before the end of the term) for declining

— without any penalty

— to renew the co ntract

. R emember too that the customer r e ceives a monthly reminder that the contract will renew if the cu s tomer doesn’t terminate it in compliance with its terms

— terms that include the dea d line that the plaintiff missed

. Its complaint about having to pay a termination fee for violating the contract falls with its challenge to XO’s not a dvising it of the date of the contract’s automatic renewal. B ecause the plaintiff, having failed to keep track of the renewal date, terminated the contract after the co ntract had been r enewed , thereby violating the terms of the contract , it was r equired to pay the termination fee of some $9,000 (it’s paid some, but not all of it) , based as we said on the loss to XO of the rev e nues that the contract would have generated f or it had the plaintiff not violated the contract . The contract had been renew ed, and thus was in force, because the plaintiff, apparently losing track of its terms, had failed to terminate it before the renewal took e f fect. The plaintiff’s argument comes down to a baseless asse rtion that the renewal clause in the contract “assigned r esponsibility to XO to track customers’ renewal dates and to give them fair warning that the window of o p portunity to avoid renewal of their Agreement s was closing.” No, the r e-4 No. 16

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newal clause doesn’t say that and doesn’t have to , since every customer is informed that the contract aut o matically renew s at the end of the customer’s term of service unless that renewal is cancelled by the customer at least 30 day s b e fore the end of the term

. The p laintiff’s other stat u tory and common

- law claims , all based on its having to pay a term i nation fee for failing to cancel the contract before the dea d line , fail for the same reason

. It’s not as if the plaintiff were some hapless consumer bamboozl ed by a huge company. Accor d ing to the plaintiff’s website ( www. cafferty clobes. com/home , visited March 3 , 2017 ), “ Cafferty Clobes Meriwether & Sprengel LLP, whichhas offices in Chicago, Philadelphia, and Ann Arbor, combines the diverse talents of attor neys with a wide range of litigation experience. Since its founding in 1992, the firm hasfocused on representing plaintiffs, such as investors, employees, consumers and companies, in complex civil litigation throughout the country. The firm and its attorn eys havehelped recover billions of dollars for the benefit of represented plaintiffs and classes, and in some cases, have secured the reform of corporate practices alleged to be unlawful or abusive. The skill and experience of our attorneys has been recog nized on repeated occasions by courts that have appointed these attorneys to leadership positions in complex multidistrict or consolidated litigation.” Had this substantial enterprise kept track of the date of its contract with XO (more precisely the date of its latest renewal of the contract ) , it would not have incurred the modest termination fee that it seeks to recover by this suit. Of course its real aim, doubtless, was , in the words of its website , to “ recover billions of dollars for the benefit of rep-No. 16

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resented plaintiffs and classes .” It can’t have brought this suit just to recover a $9,000 termination fee (less, actually, because it hadn’t paid the entire fee); it must have hoped that a class would be certified , although a different law firm

— Lite DePal ma Greenberg, LLC

— would be representing the class in the litigation

. Ultimately t he district judge dismissed the case and entered judgment for XO

. The plaintiff appeals the dismissal, complaining of not having been given an opportunity to be heard . But it had multiple options : it could have filed a motion, expanded its arguments at the hearing, or raised its procedural concerns with the district judge. It complains of the judge’s denial of leave to file a third amended complaint. But given the insufficiency of the first and second amended complaints , the denial of leave to file a third is reviewed under the same standard as a dismissal (see Runnion v. Girl Scouts of Greater Chicago , 786 F.3d 510, 524 (7th Cir. 2015) ) , and is therefore affirmed, ending the litigation

.