Italia Foods, Inc. v. Sun Tours, Inc. ( 2011 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
Italia Foods, Inc. v. Sun Tours, Inc., 2011 IL 110350
Caption in Supreme ITALIA FOODS, INC., Appellee, v. SUN TOURS, INC., d/b/a Hobbit
Court: Travel, et al., Appellants.
Docket No. 110350
Filed June 3, 2011
Rehearing denied September 26, 2011
Held Under the federal Telephone Consumer Protection Act of 1991, the
(Note: This syllabus Illinois General Assembly did not have to enact enabling legislation
constitutes no part of before a private action could be brought under the Act in state court,
the opinion of the court since, under the “acknowledgment approach” followed by the majority of
but has been prepared jurisdictions, state courts must, as a matter of supremacy clause
by the Reporter of jurisprudence, remain open to litigants with federal causes of action and
Decisions for the are not free to refuse enforcement.
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Second District; heard in that
Review court on appeal from the Circuit Court of Lake County, the Hon. Mitchell
L. Hoffman, Judge, presiding.
Judgment Certified question answered; cause remanded.
Counsel on Michael D. Richman and Henry Pietrkowski, of Reed Smith LLP, of
Appeal Chicago, and Charles W. Smith, of Smith & Laluzerne, Ltd., of
Waukegan, for appellants.
Michael T. Reagan, of Ottawa, Phillip A. Bock and Robert M. Hatch, of
Bock & Hatch, LLC, of Chicago, and Brian J. Wanca and David M.
Oppenheim, of Anderson + Wanca, of Rolling Meadows, for appellee.
Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke,
and Theis concurred in the judgment and opinion.
OPINION
¶1 The circuit court of Lake County certified several questions of law for interlocutory
appeal (Ill. S. Ct. R. 308 (eff. Feb. 1, 1994)). The appellate court concluded that its answers
to the following two questions were dispositive. First, does the federal Telephone Consumer
Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2000)) require that the Illinois General
Assembly enact legislation to enable Illinois state courts to hear and enforce private TCPA
claims? The second certified question asks essentially whether the TCPA claim in this case
is assignable under Illinois law. The appellate court answered the first question in the
negative and the second question in the affirmative. 399 Ill. App. 3d 1038. We allowed leave
to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). For the following reasons, we agree with
the appellate court’s answer to the first question, vacate the court’s discussion of
assignability, and remand the cause to the appellate court for further proceedings.
¶2 I. BACKGROUND
¶3 In June 2003, Eclipse Manufacturing Company filed its original class action complaint
against defendant Sun Tours, Inc., doing business as Hobbit Travel. In February 2004,
Eclipse filed a first amended complaint adding defendant Paul Grosso, who is Sun Tours’
president and sole shareholder. Eclipse alleged that in July and August 2002 defendants sent
via facsimile, i.e., “faxed,” Eclipse four unsolicited advertisements for discount travel. In
August 2007, Eclipse’s president and sole shareholder, Robert Hinman, filed the second
amended complaint replacing Eclipse as the named plaintiff. Hinman alleged that the same
four facsimiles (faxes) were sent to him and not to Eclipse. He also alleged that in November
2005, he sold Eclipse’s stock, but expressly retained the right to pursue the TCPA claim
based on its assignment from Eclipse to Hinman.
¶4 Defendants moved to dismiss the second amended complaint. Defendants contended,
inter alia, that Hinman’s claims were time-barred because he brought them over five years
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after he allegedly received the four faxes. In January 2008, over defendants’ objection, the
circuit court granted Italia Foods, Inc., leave to file the instant third amended complaint, in
which Italia substituted itself for Hinman. Italia alleged that from June 2005 through April
2007 defendants sent Italia 28 unsolicited faxes of discount travel advertisements. Further,
defendants faxed the same and similar advertisements to more than 39 other recipients
without first receiving their permission or invitation. Italia claimed that defendants: (1)
violated the TCPA, and (2) committed common law conversion.1
¶5 Defendants filed a combined motion to dismiss pursuant to section 2-619.1 of the Code
of Civil Procedure (735 ILCS 5/2-619.1 (West 2008)). Defendants asserted that private
TCPA claims are not cognizable in Illinois state courts. 735 ILCS 5/2-615 (West 2008).
Defendants also contended that TCPA claims are not assignable as a matter of Illinois law.
Id. Defendants alternatively sought dismissal arguing that Italia’s TCPA claim was time-
barred. 735 ILCS 5/2-619 (West 2008).2
¶6 The circuit court denied defendants’ motion. However, the court certified the following
questions for interlocutory review pursuant to Supreme Court Rule 308 (Ill. S. Ct. R. 308
(eff. Feb. 1, 1994)):
“I. Does the language and purpose of the federal Telephone Consumer Protection
Act (‘TCPA’) require that the Illinois General Assembly enact enabling legislation
before private TCPA claims can be brought and enforced in Illinois state courts?
II. Are the TCPA claims alleged in this case ‘statutory penalties’ under Illinois
law? And if so:
(a) Are those claims assignable under Illinois law?
(b) Does Illinois’ two year statutory penalty limitations period [citation] apply
to such claims, as opposed to [the federal limitations period for civil actions]?
III. If the claim is not assignable, then should absent class members’ putative
claims against defendants be treated as tolled when no class representative with
proper standing represented the putative class for a 27-month period?”
¶7 The appellate court allowed defendants’ application for leave to appeal (Ill. S. Ct. R. 308
(eff. Feb. 1, 1994)). The court answered the first question in the negative. 399 Ill. App. 3d
at 1043-63. As to the second certified question, the appellate court concluded that the TCPA
claim in this case is assignable under Illinois law and that, based on the admitted facts, the
court need not answer subsection (b) concerning the appropriate statute of limitations. 399
Ill. App. 3d at 1063-72. Lastly, because the appellate court concluded that the TCPA claim
in this case is assignable, the court did not address the third certified question. 399 Ill. App.
1
The original and first amended complaints included a third count claiming a violation of
the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2002)).
However, the circuit court granted defendants’ motion to dismiss this count with prejudice, and Italia
does not appeal therefrom.
2
Defendants also raised sections 2-615 and 2-619 challenges to Italia’s common law
conversion claim.
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3d at 1072. We allowed defendants’ petition for leave to appeal (Ill. S. Ct. R. 315(a)).
¶8 II. ANALYSIS
¶9 Because this appeal concerns questions of law certified by the circuit court pursuant to
Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 1, 1994)), our review is de novo.
Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007). Our review is de novo also
because this appeal arose in the context of an order denying a section 2-619.1 motion to
dismiss. See Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009);
McGee v. Snyder, 326 Ill. App. 3d 343, 347 (2001).
¶ 10 A. Illinois Circuit Court Jurisdiction Over TCPA Claims
¶ 11 The first certified question asks whether the TCPA requires the Illinois General
Assembly to enact legislation to enable Illinois state courts to hear and enforce private TCPA
claims. Defendants contend that the General Assembly is required to so act. It is undisputed
that the legislature has not enacted legislation authorizing TCPA suits in Illinois state courts.
Therefore, defendants ask this court to direct that Italia’s TCPA claim be dismissed with
prejudice. This issue is a matter of statutory construction, which we analyze within a settled
framework.
¶ 12 “ ‘Our task is to give effect to the will of Congress, and where its will has been expressed
in reasonably plain terms, that language must ordinarily be regarded as conclusive.’ ”
Negonsott v. Samuels, 507 U.S. 99, 104 (1993) (quoting Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 570 (1982)); accord County of Du Page v. Illinois Labor Relations Board, 231
Ill. 2d 593, 603-04 (2008) (stating “plain language” canon of statutory construction); In re
Detention of Lieberman, 201 Ill. 2d 300, 307-08 (2002) (same). “The definition of words in
isolation, however, is not necessarily controlling in statutory construction. A word in a statute
may or may not extend to the outer limits of its definitional possibilities.” Dolan v. United
States Postal Service, 546 U.S. 481, 486 (2006). Thus, in construing a statute, a court must
not focus exclusively on a single sentence or phrase, but must view the statute as a whole.
The court may consider the reason for the law, the problems sought to be remedied, and the
purposes to be achieved. See United States National Bank of Oregon v. Independent
Insurance Agents of America, Inc., 508 U.S. 439, 454-55 (1993); County of Du Page, 231
Ill. 2d at 604; Williams v. Staples, 208 Ill. 2d 480, 487 (2004); Lieberman, 201 Ill. 2d at 308.
¶ 13 According to its legislative history, Congress enacted the TCPA to address telemarketing
abuses attributable to the use of automated telephone calls to devices including telephones,
cellular telephones, and fax machines. Telephone Consumer Protection Act of 1991, Pub.
L. No. 102-243, 1991 U.S.C.C.A.N. (105 Stat. 2394) 1969-70. When the TCPA was enacted,
over 40 states had legislation restricting unsolicited telemarketing. However, those state
measures had limited effect because states lack jurisdiction over interstate calls. Id. at 1970.
The purposes of the TCPA “are to protect the privacy interests of residential telephone
subscribers by placing restrictions on unsolicited, automated telephone calls to the home and
to facilitate interstate commerce by restricting certain uses of [fax] machines and automatic
dialers.” Id. at 1968; see Portuguese American Leadership Council of the United States, Inc.
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v. Investors’ Alert, Inc., 956 A.2d 671, 673-74 (D.C. 2008); R.A. Ponte Architects, Ltd. v.
Investors’ Alert, Inc., 857 A.2d 1, 9, 11-12 (Md. 2004); Schulman v. Chase Manhattan Bank,
710 N.Y.S.2d 368, 369 (N.Y. App. Div. 2000).
¶ 14 The TCPA provides three methods of enforcement. First, a state attorney general may
bring a civil action on behalf of a state’s residents. 47 U.S.C. § 227(f)(1). Second, the Federal
Communications Commission (FCC) may bring a civil action for violations of the TCPA.
Id. §§ 227(f)(3), (f)(7). Federal district courts have exclusive jurisdiction over TCPA claims
brought by state attorneys general and the FCC. Id. § 227(f)(2). Third, individuals may bring
actions on their own behalf in state courts. Id. §§ 227(b)(3), (c)(5).3
¶ 15 The TCPA provides in relevant part: “It shall be unlawful for any person within the
United States, or any person outside the United States if the recipient is within the United
States *** to use any telephone facsimile machine, computer, or other device to send, to a
telephone facsimile machine, an unsolicited advertisement.” Id. § 227(b)(1)(C). Subsection
(b)(3) provides as follows:
“(3) Private right of action.
A person or entity may, if otherwise permitted by the laws or rules of court
of a State, bring in an appropriate court of that State–
(A) an action based on a violation of this subsection or the regulations
prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation,
or to receive $500 in damages for each such violation, whichever is greater,
or
(C) both such actions.” (Emphasis added.) Id. § 227(b)(3).
If the court finds that the defendant “willfully or knowingly violated” this section, the court
has the discretion to award an amount up to three times the amount specified above. Id.4
¶ 16 The first certified question concerns the congressional intent underlying the phrase “if
otherwise permitted by the laws or rules of court of a State.” Id. § 227(b)(3). Defendants
contend that this statutory language requires that the Illinois General Assembly enact
legislation to enable Illinois circuit courts to hear private TCPA claims. Because the
legislature has not enacted such a law, defendants argue that circuit courts may not hear these
claims. On the other hand, Italia contends that Illinois circuit courts may hear private TCPA
3
The majority of federal courts that have considered the issue have held that they lack
jurisdiction to hear private TCPA actions. 399 Ill. App. 3d at 1046 n.4; Portuguese American
Leadership Council, 956 A.2d at 675 n.3. However, several courts of appeal have held that federal
courts may hear private TCPA claims when subject matter jurisdiction is based on diversity. 399 Ill.
App. 3d at 1046 n.4 (collecting cases).
4
The TCPA also includes a subsection that protects residential telephone subscribers’
privacy rights against telephone solicitations. This subsection also establishes a private right of
action, which likewise applies “if otherwise permitted by the laws or rules of court of a State.” Id.
§ 227(c)(5).
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claims with no need for enabling legislation.
¶ 17 Where, as here, resolution of a question of federal law turns on a statute and
congressional intent, we look first to the statutory language and then to the legislative history
if the statutory language is ambiguous. See Toibb v. Radloff, 501 U.S. 157, 162 (1991).
“Ambiguity is a creature not of definitional possibilities but of statutory context.” Brown v.
Gardner, 513 U.S. 115, 118 (1994). A statute is ambiguous if it is capable of being
reasonably understood in two or more different ways. See Solon v. Midwest Medical Records
Ass’n, 236 Ill. 2d 433, 440 (2010); Williams, 208 Ill. 2d at 489-90; Khan v. United States,
548 F.3d 549, 556 (7th Cir. 2008).
¶ 18 In the present case, we conclude that the statutory phrase “if otherwise permitted by the
laws or rules of court of a State” is ambiguous. Many courts from across the country have
been faced with construing this statutory language. These decisions indicate that it is unclear
what, if any, state legislative action is required in order for state courts to hear private TCPA
claims. Courts have used one of three interpretative approaches in construing this statutory
language. See, e.g., MLC Mortgage Corp. v. Sun America Mortgage Co., 2009 OK 37, ¶ 11,
212 P.3d 1199; Consumer Crusade, Inc. v. Affordable Health Care Solutions, Inc., 121 P.3d
350, 353 (Colo. App. 2005).
¶ 19 1. “Acknowledgment” Approach
¶ 20 The “acknowledgment” approach construes the phrase “if otherwise permitted by the
laws or rules of court of a State” to merely acknowledge that states have the right to structure
their own court systems; that neutral state laws and court rules concerning state court
jurisdiction and procedure apply to TCPA claims; and that state courts are not obligated to
change their procedural rules to accommodate TCPA claims. Consumer Crusade, 121 P.3d
at 354; Ponte, 857 A.2d at 11; Schulman, 710 N.Y.S.2d at 372. Under the “acknowledgment”
approach, state enabling legislation is not necessary for parties to assert private TCPA claims
in state courts (MLC Mortgage, 2009 OK 37, ¶ 12; Condon v. Office Depot, Inc., 855 So. 2d
644, 647 (Fla. Dist. Ct. App. 2003)), and no state can refuse to entertain that claim because
it is a federal cause of action. Consumer Crusade, 121 P.3d at 354; Ponte, 857 A.2d at 9.
¶ 21 Several years ago, our appellate court construed the “if otherwise permitted” clause
according to the acknowledgment approach. In First Capital Mortgage Corp. v. Union
Federal Bank of Indianapolis, 374 Ill. App. 3d 739 (2007), the parties agreed that the court
“should interpret the phrase as an acknowledgment that state courts need not change
procedural rules to accommodate claims under the [TCPA],” and the court held that private
TCPA claims were cognizable in Illinois circuit courts. Id. at 741-72; see MLC Mortgage,
2009 OK 37, ¶ 12 n.21 (citing case for Illinois being “acknowledgment state”). In the present
case, the appellate court, after exhaustive analysis, reached the same conclusion (399 Ill.
App. 3d at 1050-53, 1056-61), which Italia urges us to uphold. We agree with the conclusion
reached by our appellate court in First Capital Mortgage and the present case, and adopt the
acknowledgment approach to construing the statutory phrase “if otherwise permitted by the
laws or rules of court of a State.”
¶ 22 “The ‘acknowledgment’ approach is grounded in the Supremacy Clause of the United
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States Constitution.” MLC Mortgage, 2009 OK 37, ¶ 12; see Condon, 855 So. 2d at 647. The
supremacy clause provides: “This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof *** shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. The United States Supreme Court
has explained:
“Federal law is enforceable in state courts not because Congress has determined
that federal courts would otherwise be burdened or that state courts might provide a
more convenient forum–although both might well be true–but because the
Constitution and laws passed pursuant to it are as much laws in the States as laws
passed by the state legislature. The Supremacy Clause makes those laws ‘the supreme
Law of the Land,’ and charges state courts with a coordinate responsibility to enforce
that law according to their regular modes of procedure.” Howlett v. Rose, 496 U.S.
356, 367 (1990).
Therefore: “The obligation on State courts to hear Federal causes of action is not self-
imposed by enabling legislation, but arises under the supremacy clause.” Mulhern v.
MacLeod, 808 N.E.2d 778, 780 (Mass. 2004).
¶ 23 Corollaries follow from the supremacy clause. First, absent a valid excuse, a state court
may not deny a federal right when the parties and the controversy are properly before it.
Howlett, 496 U.S. at 369. The supremacy clause forbids state courts to disassociate
themselves from federal law because they disagree with its substance or because they refuse
to recognize the superior authority of federal law. Id. at 371. By virtue of the United States
Constitution, state courts must remain open to litigants with federal causes of action “ ‘on
the same basis that they are open to litigants with causes of action springing from a different
source.’ ” Id. at 372 (quoting Miles v. Illinois Central R.R. Co., 315 U.S. 698, 703-04
(1942)).
¶ 24 Second, a state court may refuse jurisdiction of a federal claim based on “a neutral state
rule regarding the administration of the courts.” Howlett, 496 U.S. at 372.
“The requirement that a state court of competent jurisdiction treat federal law as the
law of the land does not necessarily include within it a requirement that the State
create a court competent to hear the case in which the federal claim is presented. The
general rule, ‘bottomed deeply in belief in the importance of state control of state
judicial procedure, is that federal law takes the state courts as it finds them.’
[Citations.] The States thus have great latitude to establish the structure and
jurisdiction of their own courts. [Citations.] In addition, States may apply their own
neutral procedural rules to federal claims, unless those rules are pre-empted by
federal law.” Id.
However, when a state court has jurisdiction “adequate and appropriate under established
local law to adjudicate” a federal claim, the court is “not free to refuse enforcement.” Testa
v. Katt, 330 U.S. 386, 394 (1947).
¶ 25 The United States Supreme Court has declared: “These principles are fundamental to a
system of federalism in which the state courts share responsibility for the application and
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enforcement of federal law.” Howlett, 496 U.S. at 372-73. We conclude that the statutory
phrase “if otherwise permitted by the laws or rules of court of a State” simply acknowledges
this supremacy clause jurisprudence. See, e.g., Ponte, 857 A.2d at 9-10 (collecting cases).
¶ 26 Our construction of the “if otherwise permitted” clause finds support in the TCPA’s
legislative history. In introducing the bill containing the private cause of action now codified
at 47 U.S.C. § 227(b)(3), Senator Hollings explained as follows:
“The [bill] contains a private right-of-action provision that will make it easier for
consumers to recover damages from receiving these computerized calls. The
provision would allow consumers to bring an action in State court against any entity
that violates the bill. The bill does not, because of constitutional constraints, dictate
to the States which court in each State shall be the proper venue for such an action,
as this is a matter for State legislators to determine. Nevertheless, it is my hope that
States will make it as easy as possible for consumers to bring such actions, preferably
in small claims court. The consumer outrage at receiving these calls is clear. Unless
Congress makes it easier for consumers to obtain damages from those who violate
this bill, these abuses will undoubtedly continue.
Small claims court or a similar court would allow the consumer to appear before
the court without an attorney. The amount of damages in this legislation is set to be
fair to both the consumer and the telemarketer. However, it would defeat the
purposes of the bill if the attorneys’ costs to consumers of bringing an action were
greater than the potential damages. I thus expect that the States will act reasonably
in permitting their citizens to go to court to enforce this bill.” (Emphasis added.) 137
Cong. Rec. 30,821-22 (1991) (quoted in Portuguese American Leadership Council,
956 A.2d at 677, and Ponte, 857 A.2d at 13-14).
Senator Hollings’ explanation of the TCPA’s private cause of action makes clear that the “if
otherwise permitted” clause simply reflects supremacy clause jurisprudence. “The
substantive issue of whether the federal cause of action should be entertained in the
appropriate state court was not a matter left to state legislators.” (Emphasis in original.)
Ponte, 857 A.2d at 14. Rather, Congress “expected state legislation to address issues like
venue.” Condon, 855 So. 2d at 648.
¶ 27 Indeed, we observe that Illinois Supreme Court Rules 281 through 289 establish
procedures specifically for small claims actions–the type of proceeding Senator Hollings
envisioned for private TCPA claims. These are neutral state rules regarding the
administration of the courts (see Howlett, 496 U.S. at 372) to which the statutory language
“if otherwise permitted by the laws or rules of court of a State” expressly refers.
¶ 28 2. “Opt In” Approach
¶ 29 Defendants urge us to utilize the “opt in” approach in construing the statutory phrase “if
otherwise permitted by the laws or rules of court of a State.” Under the “opt in” approach,
the TCPA did not create an immediately enforceable cause of action. Rather, Congress
intended to deprive state courts of jurisdiction over private TCPA causes of action unless and
until a state takes affirmative steps, either by legislation or court rule, to “opt in” the TCPA,
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i.e., to exercise jurisdiction over private TCPA claims. See, e.g., MLC Mortgage, 2009 OK
37, ¶ 14; Consumer Crusade, 121 P.3d at 353. We reject defendants’ contention because the
“opt in” approach “runs afoul” of the supremacy clause. See Condon, 855 So. 2d at 647.
¶ 30 Initially, the very definition of the “opt in” approach gives pause. There is a conceptual
tension between the rule of presumed enforceability derived from the supremacy clause and
an interpretation of the TCPA that would require the Illinois General Assembly to enact
legislation to enable Illinois circuit courts to hear private TCPA actions. See Portuguese
American Leadership Council, 956 A.2d at 676-77.
¶ 31 Further, this presumption of enforceablility is bolstered by Illinois constitutional law.
This court has repeatedly recognized that the Illinois Constitution, not the legislature, confers
jurisdiction on Illinois circuit courts. Pursuant to article VI, section 9, of our constitution, the
circuit courts have jurisdiction over all justiciable matters. Ill. Const. 1970, art. VI, § 9;
People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34, 40 (2011); People v. Davis, 156 Ill. 2d 149,
156 (1993). Therefore, the premise of the “opt in” approach–that the Illinois General
Assembly is required to enact legislation to “enable” Illinois circuit courts to hear the
justiciable matter created by Congress, i.e., TCPA actions–is especially problematic.
¶ 32 We reject defendants’ arguments in support of the “opt in” approach. Defendants argue
that the plain language of the statutory phrase “if otherwise permitted by the laws or rules of
court of a State” explicitly contemplates enabling legislation. However, as we earlier
concluded, this statutory phrase merely reflects congressional recognition of supremacy
clause jurisprudence. See, e.g., Mulhern, 808 N.E.2d at 780-81 (“The TCPA was crafted to
accommodate State interests, while respecting the structure, jurisdiction, and procedural rules
of State courts.”). Defendants further argue that the earlier discussed legislative history “is
inconclusive and does not change the plain and ordinary meaning of the statutory language.”
However, as we earlier concluded, the legislative history demonstrates that Congress made
a deliberate choice to confer jurisdiction immediately in state courts in order to facilitate
enforcement of the act by individual consumers. See Schulman, 710 N.Y.S.2d at 371.
¶ 33 We observe that defendants cite to The Chair King, Inc. v. GTE Mobilnet of Houston,
Inc., 184 S.W.3d 707 (Tex. 2006), in support of the “opt in” approach. The Oklahoma
Supreme Court has described the result of Chair King as follows:
“In contrast to the reasoning of the overwhelming majority of jurisdictions, only
one state has unequivocally espoused the ‘opt in’ theory. In [Chair King], the Texas
Supreme Court held that the TCPA did not create an immediately enforceable private
right of action for unsolicited faxes and that such a cause of action would not be
recognized in Texas courts until the Legislature amended the state’s business and
commerce code to provide for such a suit by private parties. Such a provision was
added ***. Therefore, there are now no states who have considered the issue of
enforcement under the TCPA which do not allow such actions in their respective
courts.” (Emphasis in original.) MLC Mortgage, 2009 OK 37, ¶ 15.
This result obtains for a good reason. Given supremacy clause principles, the plain language
of 47 U.S.C. § 227(b)(3) and its legislative history, we doubt that Congress intended to
require the states to adopt additional laws or court rules to enable TCPA claims to be heard
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in state courts. See Consumer Crusade, 121 P.3d at 353. We agree with the decisions of
those courts that have rejected the “opt in” interpretation of the “if otherwise permitted”
clause of 47 U.S.C. § 227(b)(3). See Mulhern, 808 N.E.2d at 779.
¶ 34 3. “Opt Out” Approach
¶ 35 The appellate court discussed a third interpretative approach to the statutory phrase “if
otherwise permitted by the laws or rules of court of a State.” The “opt out” approach
construes the statutory language as creating an immediately enforceable private TCPA claim
in state courts without the need for state enabling legislation. However, according to this
theory, a state may “opt out” of the TCPA through legislation or court rule that specifically
refuses to entertain private TCPA claims. 399 Ill. App. 3d at 1047-50; see MLC Mortgage,
2009 OK 37, ¶ 13; Consumer Crusade, 121 P.3d at 354; Ponte, 857 A.2d at 10.
¶ 36 In the present case, none of the parties argue that we adopt the “opt out” approach, or
even point to any statute or court rule that purports to “opt out” of the TCPA. Therefore, we
need not and do not discuss the merits of this interpretative approach. See, e.g., Mulhern, 808
A.2d at 782.
¶ 37 For the foregoing reasons, we conclude that the TCPA “forms part of the law enforceable
in Illinois courts” (First Capital Mortgage, 374 Ill. App. 3d at 741) without the need for the
Illinois General Assembly to enact enabling legislation. 399 Ill. App. 3d at 1063.
¶ 38 B. Assignability of Instant TCPA Claim
¶ 39 The second certified question asks essentially whether the TCPA claim in the present
case is assignable under Illinois law and, if so, what is the appropriate statute of limitations.
The appellate court held that the instant TCPA claim is assignable. The court rejected two
contentions by defendants against assignability. First, the court concluded that the TCPA is
a remedial and not a penal statute. 399 Ill. App. 3d at 1064-68. Second, the court concluded
that corporations may bring TCPA claims to protect the property interests that the statute
protects. 399 Ill. App. 3d at 1068-72.
¶ 40 Before this court, defendants assign error to these conclusions. For the following reasons,
we hold that the appellate court’s analysis led the court to discuss an issue that it need not
have discussed, and to fail to answer a question that it should have answered.
¶ 41 In the instant third amended complaint, Italia does not merely rely on the same TCPA
violations that Eclipse alleged in the original complaint. Italia does not allege that it acquired
its TCPA claim through assignment from Eclipse or Hinman. Rather, the third amended
complaint alleges a TCPA claim based on junk faxes that Italia itself received from
defendants. Thus, the appellate court’s discussion of assignability in the context of the third
amended complaint does not affect the outcome of this litigation, but is only advisory.
Generally, Illinois courts do not decide moot questions, render advisory opinions, or consider
issues where the result will not be affected regardless of how those issues are decided. In re
Alfred H.H., 233 Ill. 2d 345, 351 (2009); Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d
456, 469 (2003).
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¶ 42 Accordingly, the appellate court need not and should not have discussed this issue. We
vacate that portion of the appellate court’s opinion (399 Ill. App. 3d at 1064-72) that
discussed the issue of assignability. See, e.g., Golden Rule Insurance, 203 Ill. 2d at 469;
Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 157 (2002).
¶ 43 Applicable Statute of Limitations
¶ 44 As part of the second certified question, defendants also asked what was the applicable
statute of limitations for the instant TCPA claim, the Illinois two-year limitations period for
actions including personal injuries and statutory penalties (735 ILCS 5/13-202 (West 2002))
or the four-year limitations period for federal civil actions (28 U.S.C. § 1658 (2000)). The
appellate court concluded that it need not answer this question. 399 Ill. App. 3d at 1072.
¶ 45 The appellate court should have answered this question. Italia filed the third amended
complaint in January 2008. Italia alleged that defendants sent it 28 junk faxes from June
2005 through April 2007. Thus, application of either the federal four-year limitations period
(28 U.S.C. § 1658) or the Illinois two-year limitations period (735 ILCS 5/13-202 (West
2002)) would render a different outcome for some of Italia’s alleged TCPA violations.
Accordingly, we remand the cause to the appellate court to answer this and any other
remaining questions consistent with this opinion. See, e.g., Carter v. SSC Odin Operating
Co., 237 Ill. 2d 30, 51 (2010); Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463,
503 (2009).
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, we answer the first certified question in the negative.
Regarding the second certified question, we vacate the appellate court’s discussion of
assignability. The cause is remanded to the appellate court for further proceedings consistent
with this opinion.
¶ 48 Certified question answered;
¶ 49 cause remanded.
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