In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-3472

CAFFERTY, CLOBES, MERIWETHER & SPRENGEL, LLP, on behalf

 of itself and all others similarly situated,

Plaintiff-Appellant,

v.

XO COMMUNICATIONS SERVICES, LLC,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 2331 — Milton I. Shadur, Judge.

____________________

ARGUED FEBRUARY 7, 2017 — DECIDED MARCH 8, 2017

____________________

Before BAUER, POSNER, and SYKES, Circuit Judges.

POSNER, 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, such as the plaintiff, and wholesalers. The plaintiff’s contract with XO provided that the contract would be 

automatically renewed at the end of the customer’s current 

service term “for a similar term and at the same rates” set 
2 No. 16-3472

forth in the contract. A customer who didn’t want to renew 

was required to so notify XO at least 30 days prior to the expiration 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 automatic-renewal feature of the contract (which it did from time to time), thus 

reminding the customer that if it decided not to renew the 

contract it would have to so notify XO at least 30 days before 

expiration. The contract further stated that if the customer 

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 remaining 

months of the contract had it not been terminated prematurely and thus in violation of the contract. XO’s monthly 

invoices contain a prominent reminder of the automaticrenewal 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 contract term, the plaintiff not having terminated)

three times. But shortly after the third renewal began the 

plaintiff reneged because it was moving to a different location, one not serviced by XO. By thus violating the contract

the plaintiff owed XO a termination fee.

All this is straightforward, leaving one to wonder how it 

could 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 ruling to 

which the plaintiff takes violent exception. The multiple 

complaints in this case alleged breach of contract, violation 

of Illinois consumer protection statutes, unjust enrichment, 

and unconscionability, among other things. But the plaintiff 
No. 16-3472 3

has no case, as all its claims pivot on its contention that XO’s 

monthly reminders of the automatic-renewal feature of the 

contract should have included, but didn’t, the date of the automatic renewal, or that XO should have otherwise notified 

the plaintiff of the renewal date before the contract renewed.

But as the automatic renewal comes at the end of the customer’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 contract. Remember too that the customer receives a monthly 

reminder that the contract will renew if the customer doesn’t

terminate it in compliance with its terms—terms that include 

the deadline 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 advising it of the date of the contract’s automatic renewal. Because the plaintiff, having failed to keep track of the renewal 

date, terminated the contract after the contract had been renewed, thereby violating the terms of the contract, it was required 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 revenues that the contract would have generated for it 

had the plaintiff not violated the contract. The contract had

been renewed, and thus was in force, because the plaintiff, 

apparently losing track of its terms, had failed to terminate it 

before the renewal took effect.

The plaintiff’s argument comes down to a baseless assertion that the renewal clause in the contract “assigned responsibility to XO to track customers’ renewal dates and to 

give them fair warning that the window of opportunity to 

avoid renewal of their Agreements was closing.” No, the re-
4 No. 16-3472

newal clause doesn’t say that and doesn’t have to, since every customer is informed that the contract automatically renews at the end of the customer’s term of service unless that 

renewal is cancelled by the customer at least 30 days before 

the end of the term. The plaintiff’s other statutory and common-law claims, all based on its having to pay a termination 

fee for failing to cancel the contract before the deadline, fail 

for the same reason.

It’s not as if the plaintiff were some hapless consumer 

bamboozled by a huge company. According to the plaintiff’s 

website (www.caffertyclobes.com/home, visited March 3, 

2017), “Cafferty Clobes Meriwether & Sprengel LLP, which 

has offices in Chicago, Philadelphia, and Ann Arbor, combines the diverse talents of attorneys with a wide range of 

litigation experience. Since its founding in 1992, the firm has 

focused on representing plaintiffs, such as investors, employees, consumers and companies, in complex civil litigation throughout the country. The firm and its attorneys have 

helped 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 recognized 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. 16-3472 5

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 DePalma Greenberg, LLC—would be representing the class in the litigation.

Ultimately the 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.