Ballard RN Center, Inc. v. Kohll's Pharmacy & Homecare, Inc. , 2014 IL App (1st) 131543 ( 2015 )

Illinois Official Reports
Appellate Court
Ballard RN Center, Inc. v. Kohll’s Pharmacy & Homecare, Inc.,
2014 IL App (1st) 131543Appellate Court BALLARD RN CENTER, INC., f/k/a Ballard Nursing Center, Inc.,
Caption Plaintiff-Appellee, v. KOHLL’S PHARMACY AND HOMECARE,
INC., Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-13-1543
Filed November 6, 2014
Held In an class action alleging a violation of the Telephone Consumer
(Note: This syllabus Protection Act based on defendant’s transmission of unsolicited faxes
constitutes no part of the in count I, requesting relief under the Consumer Fraud Act in count II,
opinion of the court but and seeking recovery for conversion based on defendant’s use of ink
has been prepared by the and paper that belonged to the recipients of the faxes in count III, the
Reporter of Decisions trial court properly reversed the class certification as it pertained to
for the convenience of count I, since defendant’s tender of a check for $2,500 covering any
the reader.) damages plaintiff suffered as a result of the violation of the Act
mooted plaintiff’s claims under count I; however, the trial court was
affirmed in all other respects, including its decisions on the elements
of commonality, adequacy of representation, and appropriateness, and
on remand, the trial court was directed to revisit the issue of class
certification in view of the fact that only counts II and III remain.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-17229; the
Review Hon. Neil Cohen, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.
Counsel on Amir H. Tahmassebi and Lucas Sun, both of Konicek & Dillon, P.C.,
Appeal of Geneva, for appellant.
Daniel A. Edelman, Cathleen M. Combs, James O. Latturner, and
Julie Clark, all of Edelman, Combs, Latturner & Goodwin, LLC, of
Chicago, for appellee.
Panel JUSTICE BILL TAYLOR delivered the judgment of the court, with
opinion.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the
judgment and opinion.
OPINION
¶1 In this interlocutory appeal, defendant Kohll’s Pharmacy & Homecare, Inc. (Kohll’s),
appeals the trial court’s decision to grant class certification to plaintiffs.
¶2 On March 3, 2010, plaintiff Ballard RN Center, Inc. (Ballard), allegedly received an
unsolicited one-page fax from Kohll’s which advertised corporate flu shot services. Ballard
filed suit against Kohll’s, seeking statutory damages under the Telephone Consumer
Protection Act (47 U.S.C. § 227 (2006)) (TCPA) and the Illinois Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 2010)), and
also damages for conversion of ink and paper. Ballard additionally filed a motion for class
certification, requesting that the court certify a class of all parties who, on or about March 3,
2010, were sent unsolicited advertising faxes by Kohll’s. Discovery showed that on March 3,
2010, Kohll’s sent the fax at issue to a total of 4,760 fax numbers and successfully transmitted
it to 4,142 of them.
¶3 The trial court granted Ballard’s motion and certified the class on April 15, 2013. Kohll’s
appeals this certification order. For the reasons that follow, we affirm in part and reverse in
part.
¶4 I. BACKGROUND
¶5 On April 20, 2010, Ballard filed its complaint, which was styled “Complaint–Class
Action.” The complaint alleges that on March 3, 2010, Ballard received an unsolicited fax
from Kohll’s, although Ballard had no prior relationship with Kohll’s and had not authorized
the sending of fax advertisements from Kohll’s. It alleges that the fax did not provide an “opt
out notice” as required by the TCPA even when faxes are sent with consent or pursuant to an
established business relationship. It further asserts, on information and belief, that the fax from
Kohll’s was part of a mass broadcasting of faxes and Kohll’s had transmitted similar
unsolicited fax advertisements to at least 40 other persons in Illinois.
¶6 A copy of the fax is attached to the complaint. The fax is a one-page document advertising
“Corporate Flu Shots.” At the bottom of the page, under the heading “Removal From List
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Request,” the fax states, “If you have received this information in error or if you are requesting
that transmissions cease in the future, please notify the sender to be removed as the recipient of
future transmissions.” It then provides contact information by fax, phone, and email.
¶7 Ballard’s complaint seeks relief in three counts. Count I seeks relief under the TCPA,
which prohibits the use of any telephone facsimile machine, computer, or other device to send
an unsolicited advertisement to a telephone facsimile machine (47 U.S.C. § 227(b)(1)(c)
(2006)) and provides that a private plaintiff can bring suit for violation of the TCPA for $500 in
statutory damages, with treble damages for willful or knowing violations. Count II seeks relief
under the Consumer Fraud Act (815 ILCS 505/2 (West 2010)), alleging that Kohll’s
unsolicited fax advertising constituted “unfair acts and practices” in the course of trade and
commerce. Finally, count III, for conversion, alleges that by sending unsolicited faxes, Kohll’s
converted to its own use ink and paper that belonged to Ballard and the class members.
¶8 On the same day that Ballard filed its complaint, it also filed a “Motion for Class
Certification.” In that motion, Ballard requested that the court certify the following classes:
“All persons and entities with facsimile numbers (1) who, on or after April 20,
2006, or such shorter period during which faxes were sent by or on behalf of defendant
Kohll’s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant
Kohll’s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and
who were not provided an ‘opt out’ notice that complies with federal law. (Count I)
All persons and entities with Illinois fax numbers (1) who, on or after April 20,
2007, or such shorter period during which faxes were sent by or on behalf of defendant
Kohll’s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant
Kohll’s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and
who were not provided an ‘opt out’ notice that complies with federal law. (Count II)
All persons and entities with Illinois fax numbers (1) who, on or after April 20,
2005, or such shorter period during which faxes were sent by or on behalf of defendant
Kohll’s Pharmacy & HomeCare, Inc., (2) were sent faxes by or on behalf of defendant
Kohll’s Pharmacy & HomeCare, Inc., promoting its goods or services for sale (3) and
who were not provided an ‘opt out’ notice that complies with federal law. (Count III)”
The motion contains no factual allegations in support of class certification. It states that
“[p]laintiff will file a supporting Memorandum of Law in due course”; however, it appears that
no such memorandum was ever filed.
¶9 On June 28, 2012, Kohll’s filed for partial summary judgment on count I of Ballard’s
complaint. In its motion, Kohll’s alleged that, on three separate occasions, Kohll’s tendered an
unconditional offer of payment consisting of a sum that covered all damages Ballard might be
entitled to under the TCPA. According to Kohll’s, Ballard’s counsel summarily rejected this
tender while giving no legal basis as to why additional damages were due under the TCPA.
Kohll’s further asserted that Ballard had not yet filed a motion for class certification. Based
upon these allegations, Kohll’s argued that Ballard’s TCPA claim was moot under Barber v.
American Airlines, Inc., 241 Ill. 2d 450, 455 (2011), which holds that a named representative’s
claim is moot in a class action when the defendant tenders the amount of damages the plaintiff
seeks before the representative files a motion for class certification.
¶ 10 Attached to Kohll’s motion are three letters sent by Kohll’s to Ballard. The first, dated
June 29, 2011, includes a check for $1,600; the second, dated June 5, 2012, includes a check
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for $1,500; the third, dated June 28, 2012, includes a check for $2,500. All three of these offers
were rejected by Ballard and the checks returned to Kohll’s.
¶ 11 Ballard filed a response to Kohll’s motion for summary judgment in which it
acknowledged that Kohll’s had correctly stated the holding of Barber but denied that Barber
applied to its case, since Ballard had filed a motion for class certification concurrently with the
filing of its complaint on April 20, 2010.
¶ 12 Kohll’s filed a reply in which it argued that the April 20, 2010, motion was an incomplete
“shell” motion that was legally insufficient to satisfy Barber. In this regard, Kohll’s pointed
out that Ballard had never presented that motion to the court or set a hearing date. Kohll’s also
stated that Ballard filed the April 20, 2010, motion before discovery had been conducted and
therefore had no knowledge of the class.
¶ 13 On November 29, 2012, the trial court denied Kohll’s motion for partial summary
judgment, stating that Kohll’s did not make its tender prior to the filing of Ballard’s class
certification motion. It reasoned that “Barber requires only that a motion for class certification
be filed. It does not require that it meet any certain standard.”
¶ 14 Ballard then filed an amended motion for class certification, stating, “Having conducted
discovery, Plaintiff has revised and limited the Class Definition from that included in its
original motion for Class Certification ***.” According to Ballard, discovery showed that
Kohll’s had contracted with a list service provider known as Red Door Marketing to purchase
thousands of fax numbers of businesses located throughout the United States. Discovery also
showed that Kohll’s sent its “Corporate Flu Shots Blast Fax” to 4,760 fax numbers on the list,
and 4,142 of those fax transmissions were successful. A Westfax invoice for services
performed on March 3, 2010, indicates exactly which transmissions were successful. Based
upon these facts, Ballard submitted the following proposed class definition: “(a) all parties (b)
who, on or about March 3, 2010, (c) were sent advertising faxes by Defendant (d) and with
respect to whom Defendant cannot provide evidence of consent or a prior business
relationship.”
¶ 15 On April 15, 2013, the trial court granted Ballard’s motion and certified the above class.
Kohll’s now appeals this certification order. See Ill. S. Ct. R. 306(a)(8) (eff. Feb. 16, 2011)
(allowing permissive interlocutory appeals from orders granting class certification).
¶ 16 II. ANALYSIS
¶ 17 On appeal, Kohll’s argues that class certification was improper under section 2-801 of the
Code of Civil Procedure (735 ILCS 5/2-801 (West 2010)), which sets forth the prerequisites
for the maintenance of a class action. Under section 2-801, an action may only be maintained
as a class action if the following conditions are met: (1) numerosity (the class is so numerous
that the joinder of all members is impracticable); (2) commonality (there are common
questions of law and fact among the members of the class that predominate over individual
issues); (3) adequacy of representation (the representative party will fairly and adequately
protect the interest of the class); and (4) appropriateness (a class action is a fair and efficient
way to adjudicate the controversy). Id. The plaintiff bears the burden of establishing these
prerequisites, and the court must find them present before it sanctions the maintenance of an
action as a class action. McCabe v. Burgess, 75 Ill. 2d 457, 463-64 (1979). We review the trial
court’s decision to certify a class for an abuse of discretion. Avery v. State Farm Mutual
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Automobile Insurance Co., 216 Ill. 2d 100, 125-26 (2005); Walczak v. Onyx Acceptance Corp.,
365 Ill. App. 3d 664, 673 (2006).
¶ 18 In this appeal, Kohll’s does not challenge the element of numerosity, but it does challenge
the elements of commonality, adequacy of representation, and appropriateness. We consider
Kohll’s arguments in turn.
¶ 19 A. Commonality
¶ 20 Kohll’s first contention is that the trial court abused its discretion in finding that common
questions of law and fact predominate over individual issues. Kohll’s identifies two issues of
fact which, it argues, are not common to all class members but must be determined on an
individual basis. First, Kohll’s argues that it has not been demonstrated that all class members
did not consent to the fax in question. Second, Kohll’s speculates that some of the unsolicited
fax transmissions may have been diverted to computers and never physically printed. If that
were the case, according to Kohll’s, the sending of the faxes would not be a TCPA violation,
and it also would not constitute conversion, insofar as no paper and ink would have been used.
¶ 21 “The test for predominance is not whether the common issues outnumber the individual
ones, but whether common or individual issues will be the object of most of the efforts of the
litigants and the court.” Smith v. Illinois Central R.R. Co., 223 Ill. 2d 441, 448-49 (2006). As
long as common questions predominate, the existence of individual issues will not defeat class
certification. Miner v. Gillette Co., 87 Ill. 2d 7, 19 (1981) (citing Steinberg v. Chicago Medical
School, 69 Ill. 2d 320, 340-41 (1977) (“No doubt there will be situations where there may be
questions peculiar to certain members of the class. However, once there is a determination that
there exists a question of fact or law common to the class and that this predominates the
question affecting only individual members, the statute is satisfied.”)). For this reason,
“commonality and typicality are generally met where, as here, a defendant engages in a
standardized course of conduct vis-a-vis the class members, and plaintiffs’ alleged injury
arises out of that conduct.” Hinman v. M&M Rental Center, Inc., 545 F. Supp. 2d 802, 807
(N.D. Ill. 2008) (in fax blast case, holding that “[t]he possibility that some of the individuals on
the list may separately have consented to the transmissions at issue is an insufficient basis for
denying certification”).1 Moreover, “ ‘the hypothetical existence of individual issues is not a
sufficient reason to deny the right to bring a class action.’ ” Miner, 87 Ill. 2d at 20 (where
plaintiff’s claim was predicated upon a series of essentially identical transactions by thousands
of class members, and the individual questions postulated by defendant were “mere
hypotheticals,” such hypotheticals did not bar the action (quoting Harrison Sheet Steel Co. v.
Lyons, 15 Ill. 2d 532, 538 (1959))).
¶ 22 In this case, there are significant common issues of fact and law pertaining to all class
members. The record shows that Kohll’s contracted with a list service provider known as Red
Door Marketing to purchase thousands of fax numbers of businesses, and it then engaged a
third party to send the fax at issue to over 4,000 numbers on this list. Thus, the manner in which
Kohll’s identified these recipients will not require individualized inquiry. It is apparent that
1
Hinman dealt with class certification under Rule 23 of the Federal Rules of Civil Procedure (Fed.
R. Civ. P. 23). Section 2-801 is patterned after Rule 23, and federal decisions interpreting Rule 23 are
persuasive authority with regard to the question of class certification in Illinois. Avery v. State Farm
Mutual Automobile Insurance Co., 216 Ill. 2d 100, 125 (2005).
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Kohll’s “engage[d] in a standardized course of conduct vis-a-vis the class members, and
plaintiffs’ alleged injury arises out of that conduct” (Hinman, 545 F. Supp. 2d at 806). See
Kavu, Inc. v. Omnipak Corp., 246 F.R.D. 642, 647 (W.D. Wash. 2007) (commonality
requirement was satisfied where defendant “engaged in a common course of conduct” by
purchasing recipients’ fax numbers from a database and then sending the same fax
transmission to all recipients within a short period of time). Common questions include
whether the fax was an “advertisement” under the TCPA and whether Kohll’s acts were willful
or knowing. See Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684 (7th Cir. 2013) (“Class
certification is normal in litigation under § 227, because the main questions, such as whether a
given fax is an advertisement, are common to all recipients.”).
¶ 23 Notwithstanding the foregoing, Kohll’s contends that outstanding issues of consent should
prevent class certification, since it is possible that some of the class members either consented
to receive advertisements from Kohll’s or had an existing business relationship with Kohll’s. If
that were the case, according to Kohll’s, there would be no TCPA violation with respect to
those class members. Ballard disagrees, arguing that consent and existing business relationship
are not defenses in this case because Kohll’s failed to provide an opt-out notice that fully
complies with section 227(b)(2)(D) of the TCPA.
¶ 24 To resolve this issue, we need to take a closer look at the statutory language in question.
The TCPA prohibits the sending of an “unsolicited advertisement” to a “telephone facsimile
machine” unless the sender has consent or an established business relationship with the
recipient and the advertisement contains an opt-out notice “meeting the requirements under
paragraph (2)(D).” 47 U.S.C. § 227(b)(1)(C)(iii) (2006). The statute itself does not expressly
require that an opt-out notice be included in solicited or consented-to fax advertisements.
However, the most pertinent regulation in this case extends the opt-out notice requirement to
solicited fax advertisements, stating: “A facsimile advertisement that is sent to a recipient that
has provided prior express invitation or permission to the sender must include an opt-out notice
that complies with the requirements in paragraph (a)(4)(iii) of this section.” 47 C.F.R.
§ 64.1200(a)(4)(iv) (2013). Under this regulation, courts have held that, even where the TCPA
permits fax advertisements because of consent or an established business relationship, such
faxes must still contain opt-out information that complies with federal regulations. Ira
Holtzman, 728 F.3d at 683 (stating that “[defendant’s] faxes did not contain opt-out
information, so if they are properly understood as advertising then they violate the Act whether
or not the recipients were among [defendant’s] clients”); Nack v. Walburg, 715 F.3d 680, 685
(8th Cir. 2013) (“the regulation as written requires the senders of fax advertisements to employ
the above-described opt-out language even if the sender received prior express permission to
send the fax”).
¶ 25 The requirements for a valid opt-out notice are as follows:
“A notice contained in an advertisement complies with the requirements under this
paragraph only if–
(A) The notice is clear and conspicuous and on the first page of the
advertisement;
(B) The notice states that the recipient may make a request to the sender of the
advertisement not to send any future advertisements to a telephone facsimile
machine or machines and that failure to comply, within 30 days, with such a
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request meeting the requirements under paragraph (a)(4)(v) of this section is
unlawful;
(C) The notice sets forth the requirements for an opt-out request under
paragraph (a)(4)(v) of this section;
(D) The notice includes–
(1) A domestic contact telephone number and facsimile machine number
for the recipient to transmit such a request to the sender; and
(2) If neither the required telephone number nor facsimile machine number
is a toll-free number, a separate cost-free mechanism including a Web site
address or email address ***.” (Emphasis added.) 47 C.F.R.
§ 64.1200(a)(4)(iii) (2013).
See also 47 U.S.C. § 227(b)(2)(D)(ii) (2006) (an opt-out notice is only valid if the notice states
that it is unlawful not to comply with a list removal request “within the shortest reasonable
time, as determined by the Commission”).
¶ 26 In the present case, Kohll’s provided an opt-out notice on its fax, but that opt-out notice did
not fully comply with the requirements listed above. Kohll’s opt-out notice stated, “If you have
received this information in error or if you are requesting that transmissions cease in the future,
please notify the sender to be removed as the recipient of future transmissions.” It also
provided contact information by fax, phone, and email. However, it did not state that failure to
comply with a list removal request within 30 days was unlawful, as required by subsection (b)
quoted above. Thus, we agree with Ballard that the opt-out notice provided by Kohll’s did not
strictly comply with federal law, and, as such, the fax would appear to be a TCPA violation
even if Kohll’s had consent or a prior business relationship with some of the class members.
See 47 C.F.R. § 64.1200(a)(4)(iv) (2013).
¶ 27 Moreover, in any event, we note that Kohll’s does not positively assert that it had consent
or an established business relationship with any of the parties to whom it sent the fax; it only
speculates that such factors might potentially exist. Nothing in the record indicates that either
Kohll’s or anyone acting on its behalf obtained consent from, or had an established business
relationship with, any of the recipients of its fax blast. On the contrary, when asked in
interrogatories about the issue of consent, Kohll’s stated: “We don’t know if consent was
received. We purchased the list [of fax numbers] from Red Door Marketing ***. Red Door
Marketing was the entity who processed information relating to the advertising faxes that
existed. We are unaware of the lists that Red Door maintains.” Based upon this statement, it
would appear that Kohll’s arguments with regard to consent are merely speculative and not
grounded in facts. “ ‘[T]he hypothetical existence of individual issues is not a sufficient reason
to deny the right to bring a class action.’ ” Miner, 87 Ill. 2d at 20 (quoting Harrison Sheet Steel,
15 Ill. 2d at 538); see Hinman, 545 F. Supp. 2d at 806 (requirement of commonality is typically
met where a defendant engages in a standardized course of conduct toward all class members
and the alleged injury arises from that conduct). Thus, we cannot say that the trial court abused
its discretion in finding that the merely hypothetical issues of consent raised by Kohll’s were
insufficient to preclude class certification. See id. at 807 (in “fax blast” case, hypothetical
possibility that some recipients might have consented to the transmissions at issue was
insufficient to prevent class certification); see also Display South, Inc. v. Express Computer
Supply, Inc., 2006-1137, p. 10 (La. App. 1 Cir. 5/4/07); 961 So. 2d 451 (in TCPA case,
rejecting defendant’s argument that possibility of existing business relationship with fax
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recipients should preclude class certification, since “the fact that some plaintiffs may offer a
defense does not prohibit certification of a class”).
¶ 28 Kohll’s second contention with regard to commonality is that some of the class members
may have received the fax transmission in the form of an email instead of physically printing it
out. Kohll’s argues that any such class members would not have a valid claim under the TCPA,
since a computer is not a “telephone facsimile machine” within the meaning of the TCPA.
Kohll’s additionally argues that such class members would not have a valid claim for
conversion of ink and paper.
¶ 29 With regard to the TCPA, the relevant statutory language is as follows:
“(b) Restrictions on the use of automated telephone equipment.
(1) Prohibitions.
It shall be unlawful for any person within the United States ***
***
(C) to use any telephone facsimile machine, computer, or other device
to send an unsolicited advertisement to a telephone facsimile machine ***.”
(Emphasis added.) 47 U.S.C. § 227 (2006).
The TCPA defines a “telephone facsimile machine” as
“equipment which has the capacity (A) to transcribe text or images, or both, from paper
into an electronic signal and to transmit that signal over a regular telephone line, or (B)
to transcribe text or images (or both) from an electronic signal received over a regular
telephone line onto paper.” 47 U.S.C. § 227(a)(3) (2006).
As Ballard points out, the statute does not make physical printing an element of the offense; it
only requires that an unsolicited advertisement be sent to a “telephone facsimile machine.” As
for whether a computer constitutes a “telephone facsimile machine” within the meaning of the
TCPA, we note that, in the hypothetical scenario envisioned by Kohll’s, the computers at issue
must have been set up in order to receive electronic signals over a telephone line, so that they
could convert Kohll’s fax into an email. We also note that, in the context of the modern office,
most computers are connected to printers which can transcribe text or images received via
email onto paper. A strong argument could be made that a computer that is used to receive fax
transmissions is a telephone facsimile machine for TCPA purposes, at least with regard to any
fax transmissions that it actually receives.
¶ 30 In support of its argument that a computer is not a telephone facsimile machine, Kohll’s
relies primarily on Aronson v. Bright-Teeth Now, LLC, 2003 PA Super 187, in which the court
held that the sending of unsolicited commercial emails was not a violation of the TCPA.
However, Aronson is distinguishable from the instant case because it did not involve fax
transmissions in any form. The Aronson plaintiff received six “spam” emails from the
defendant and brought suit under the TCPA, seeking $9,000 in statutory damages. Id. ¶ 2.
Under these facts, the court held that plaintiff’s computer was not a telephone facsimile
machine and plaintiff did not have a valid TCPA claim. Id. The Aronson court did not purport
to address the scenario proposed by Kohll’s in this case, where a computer is set up to receive
fax transmissions in lieu of a traditional fax machine and, in fact, does receive those
transmissions.
¶ 31 More persuasive is the Seventh Circuit decision in Ira Holtzman, 728 F.3d 682. In that
case, defendant was sued under the TCPA for sending over 8,000 unsolicited advertising faxes.
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Id. at 683. The trial court certified a class of the faxes’ recipients and subsequently granted
summary judgment for plaintiffs. Id. at 684. On appeal, the court rejected defendant’s
argument that each recipient would have to prove that he actually printed the fax in question or
otherwise suffered monetary loss. The court explained:
“[Defendant] is wrong on the law. The statute provides a $500 penalty for the
annoyance. [Citation.] Even a recipient who gets the fax on a computer and deletes it
without printing suffers some loss: the value of the time necessary to realize that the
inbox has been cluttered by junk.” (Emphasis in original.) Id. (citing 47 U.S.C.
§ 227(b)(3)(B) (2006)).
Likewise, in the instant case, class members who received Kohll’s fax by email would not
automatically be barred from recovery under the TCPA.
¶ 32 Moreover, even if we were to agree with Kohll’s that a computer used to receive faxes is
not a telephone facsimile machine, the mere unsupported possibility that some class members
might have received Kohll’s fax by email is an insufficient basis for denying class certification.
As discussed earlier, as long as common issues predominate over individual ones, class
certification is proper notwithstanding the hypothetical existence of individual issues. Miner,
87 Ill. 2d at 20 (where plaintiff’s claim was predicated upon a series of essentially identical
transactions by thousands of class members, and the individual questions postulated by
defendant were “mere hypotheticals,” such hypotheticals did not bar the action); Harrison
Sheet Steel Co., 15 Ill. 2d at 538 (“Where it appears that the common issue is dominant and
pervasive, something more than the assertion of hypothetical variations of a minor character
should be required to bar the action.”). In this case, where Kohll’s contracted with a third party
to send a “fax blast” to over 4,000 numbers on a purchased list, we cannot say that the trial
court abused its discretion in finding that the requirement of commonality has been met. See
Ira Holtzman, 728 F.3d at 684 (class certification is “normal” in TCPA actions because “the
main questions *** are common to all recipients”); Hinman, 545 F. Supp. 2d at 806 (element
of commonality was met in TCPA case because defendant “engage[d] in a standardized course
of conduct vis-a-vis the class members”).
¶ 33 B. Appropriateness
¶ 34 Kohll’s next contends that the trial court abused its discretion in finding that a class action
lawsuit is a fair and efficient way to adjudicate this controversy, where the putative class
consists of parties who received a one-page fax over three years ago. Kohll’s additionally
argues that class certification is inappropriate for TCPA actions generally because Congress, in
enacting the TCPA, did not intend for class action lawsuits to be used as a means of
enforcement.
¶ 35 In deciding whether a class action lawsuit is an appropriate way to adjudicate a
controversy, courts consider whether it (1) serves the economies of time, effort, and expense,
(2) prevents possible inconsistent results, and (3) otherwise accomplishes the ends of equity
and justice. Gordon v. Boden, 224 Ill. App. 3d 195, 203 (1991); Society of St. Francis v.
Dulman, 98 Ill. App. 3d 16, 19 (1981). Courts’ consideration of these factors often mirrors the
analysis of the other section 2-801 elements, particularly the elements of numerosity and
commonality. Clark v. TAP Pharmaceutical Products, Inc., 343 Ill. App. 3d 538, 552 (2003)
(citing Steinberg, 69 Ill. 2d at 339); Gordon, 224 Ill. App. 3d at 203. Where a class is numerous
and common questions of fact and law predominate, it is more efficient to address the common
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issues in a single action instead of litigating each individual case separately. Clark, 343 Ill.
App. 3d at 552; see Fakhoury v. Pappas, 395 Ill. App. 3d 302, 316 (2009) (“Certainly having
one common complaint rather than thousands of separate complaints considering the same
issue promotes the economics of time, effort, expense and uniformity over requiring thousands
of complaints.”).
¶ 36 In this case, as discussed above, Kohll’s sent a “fax blast” to over 4,000 fax numbers on a
purchased list. Courts have regularly recognized that class action lawsuits are an appropriate
way of resolving TCPA cases involving blast faxing using purchased lists, because it serves the
ends of judicial economy and uniformity. For instance, in Hinman, 545 F. Supp. 2d at 804, the
defendant sent one-page fax “flyers” en masse to companies whose fax numbers were on a
purchased list. The Hinman court certified a class of the fax recipients, explaining that class
certification was appropriate because “resolution of the issues on a classwide basis, rather than
in thousands of individual lawsuits (which in fact may never be brought because of their
relatively small individual value), would be an efficient use of both judicial and party
resources.” Id. at 807; see also CE Design Ltd. v. Cy’s Crabhouse North, Inc., 259 F.R.D. 135(N.D. Ill. 2009) (certifying class in TCPA suit where defendant contracted with a third party to
send a fax broadcast to several thousand fax numbers); Targin Sign Systems, Inc. v. Preferred
Chiropractic Center, Ltd., 679 F. Supp. 2d 894 (N.D. Ill. 2010) (same); Lampkin v. GGH, Inc.,
2006 OK CIV APP 131, ¶ 33, 146 P.3d 847 (trial court abused its discretion in denying class
certification in TCPA case; class action was superior method of adjudicating controversy
because, if the class members pursued their claims individually, it would “unduly and
unnecessarily clog the judicial system of this state” (internal quotation marks omitted)); Kavu,
246 F.R.D. 642; Display South, Inc., 2006-1137 (La. App. 1 Cir. 5/4/07); 961 So. 2d 451.
¶ 37 Kohll’s nevertheless argues that certification is inappropriate under the facts of this case,
where the putative class consists of parties who received a one-page fax over three years ago.
Kohll’s argues that this is problematic for three reasons. First, potential plaintiffs may not
recall whether or not they received such a fax. Second, and relatedly, it is possible that parties
who did not actually receive a fax but were on the fax blast list will lie about receipt in order to
recover monetary damages. Third, according to Kohll’s, the only way to include potential
plaintiffs in the class will be to send out unsolicited faxes to the numbers listed on the alleged
“fax blast” list to notify them of the existence of the litigation. Kohll’s acknowledges that such
faxes would not violate the TCPA, since they are not advertisements, but it argues that the
irony of sending such faxes is “inescapable.”
¶ 38 With regard to Kohll’s first two objections, we find that the problems of proof are not
nearly as dire as Kohll’s suggests. On the contrary, the record reflects that, after Kohll’s hired
Westfax to send the fax transmissions at issue, Westfax sent Kohll’s an invoice for services
and a detailed report indicating exactly which 4,760 numbers the fax was sent to and which of
those transmissions were successful. Because the 4,142 successful transmissions are
specifically identified, Kohll’s concerns about proof would seem to be misplaced. See Ira
Holtzman, 728 F.3d at 684 (“To the extent [defendant] contends that each recipient must prove
that his fax machine or computer received the fax, he is right on the law but wrong on the facts.
The record establishes which transmissions were received and which were not.”).
¶ 39 As for Kohll’s concern about having to send unsolicited faxes to class members to notify
them that they are part of the class, although the irony of the situation is not lost on us, we do
not find this to be a sufficient reason to deny class certification. This same problem would tend
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to arise in all TCPA class action lawsuits involving fax blasts sent to purchased lists, and, as
noted, courts routinely certify classes in such cases. See, e.g., Hinman, 545 F. Supp. 2d at 807.
We also note that Ballard asserts that it has the ability to determine a name and address
associated with the “vast majority” of the class members’ fax numbers, which, if true, would
presumably remove the need to contact them via unsolicited faxes.
¶ 40 Kohll’s final argument is that class certification is inappropriate for TCPA actions in
general because Congress, in enacting the TCPA, did not intend for class action lawsuits to be
used as a means of enforcement. As noted, the TCPA provides for statutory damages of $500
per violation, with treble damages for willful or knowing violations. 47 U.S.C. § 227(b)(3)
(2006). Kohll’s argues that, under this statutory scheme, its potential liability in a class action
lawsuit would be a crippling sum that would dwarf the actual harm incurred by the class
members, a result that Congress surely did not intend.
¶ 41 However, the legislative history of the TCPA belies the assertion that class action lawsuits
in TCPA cases are against congressional intent. The TCPA was first enacted in 1991. In 2005,
Congress amended the TCPA by enacting the Junk Fax Prevention Act of 2005 (JFPA) (47
U.S.C. § 609 (2006)). At the time the JFPA was enacted, there had been numerous class action
lawsuits certified under the TCPA. See, e.g., ESI Ergonomic Solutions, LLC v. United Artists
Theatre Circuit, Inc., 50 P.3d 844 (Ariz. Ct. App. 2002); Core Funding Group, LLC v. Young,
792 N.E.2d 547 (Ind. Ct. App. 2003). Nevertheless, Congress did not take any action to
prohibit or narrow the scope of class action lawsuits under the TCPA.2 It is therefore apparent
that the legislature has acquiesced in courts’ construction of the statute allowing for class
action lawsuits. See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995) (where legislature
acquiesces in judicial interpretation of statute, that interpretation “become[s] part of the fabric”
of the statute and departure from that interpretation is tantamount to an amendment of the
statute itself).
¶ 42 Moreover, we note that “[a]n award that would be unconstitutionally excessive may be
reduced [citation], but constitutional limits are best applied after a class has been certified.”
Murray v. GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir. 2006) (citing State Farm
Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) (reversing excessively
high damages award as a violation of due process)). Whether a reduction in damages to comply
with due process is required, and how much, is in itself a classwide issue that should be
resolved identically as to each class member. It is not a reason to deny class certification in the
first instance. Murray, 434 F.3d at 954.
¶ 43 Therefore, for the foregoing reasons, we do not find that the trial court abused its discretion
in finding a class action lawsuit to be a fair and efficient way to adjudicate this controversy.
2
Many laws that authorize statutory damages also limit the aggregate award to any class. For
example, the Fair Debt Collection Practices Act says that total recovery may not exceed “the lesser of
$500,000 or 1 per centum of the net worth of the debt collector.” 15 U.S.C. § 1692k(a)(2)(B)(ii) (2006).
The Truth in Lending Act has an identical cap. 15 U.S.C. § 1640(a)(2)(B) (2006) (substituting
“creditor” for “debt collector”). However, Congress has chosen not to implement such a limit on
actions under the TCPA.
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¶ 44 C. Adequacy of Representation: Whether Ballard Is a “Pawn” of Its Counsel
¶ 45 Kohll’s next contends that Ballard is not an adequate class representative because it is
merely a “pawn” of its counsel, the law firm Edelman and Combs. In support, Kohll’s argues
that the deposition of Eli Pick, the former owner of Ballard and its corporate representative,
shows that were it not for Ballard’s attorneys, Ballard would have settled the litigation or
accepted Kohll’s tender. Ballard states that Kohll’s allegations in this regard are “wholly
unsupported, offensive and inappropriate” and further argues that there is no real evidence of
impropriety which would disqualify Ballard as representative.
¶ 46 The purpose of the adequate representation requirement is to ensure that all class members
will receive proper, efficient, and appropriate protection of their interests in the proceedings.
Cruz v. Unilock Chicago, Inc., 383 Ill. App. 3d 752, 778 (2008) (quoting P.J.’s Concrete
Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 1004 (2004)); see also
Ramirez v. Smart Corp., 371 Ill. App. 3d 797, 810 (2007). To be an adequate class
representative, the putative class action plaintiff must be a member of the class. Id. The
plaintiff must not be seeking relief that is potentially antagonistic to nonrepresented members
of the class (Client Follow-Up Co. v. Hynes, 105 Ill. App. 3d 619, 625 (1982)), and it must
have the desire and ability to prosecute the claim vigorously on behalf of itself and the other
class members (Hall v. Sprint Spectrum L.P., 376 Ill. App. 3d 822, 833 (2007)). It is this last
requirement which Kohll’s contends is missing in the instant case. Kohll’s argues that the
testimony of Pick shows that Ballard lacks any true interest in prosecuting the claim aside from
the desire of its counsel. We turn now to examine this testimony.
¶ 47 In his deposition, Pick testified that he worked for Ballard from 1978 until his retirement in
May 2011, and he was the executive director of Ballard from 1991 onward. He stated that he
recalled seeing Kohll’s fax on his company fax machine. He picked it up and forwarded it to
his law firm, Edelman and Combs, because it was an unsolicited fax and he had previously had
discussions with Edelman and Combs about what to do with unsolicited faxes.
¶ 48 Pick stated that in his capacity as executive director of Ballard, he had filed “more than six”
lawsuits alleging violations of the TCPA, although he could not remember the exact number.
He stated that the decision to file these lawsuits was his “in conjunction with the review with
counsel.” He additionally stated that the ultimate decision belonged to him.
¶ 49 Pick testified that his goal in taking such action was twofold. First, he said, “I forwarded
unsolicited faxes [to Edelman and Combs] so that I would stop receiving unsolicited faxes.”
He explained that he noticed a pattern that when Edelman and Combs contacted the companies
that sent him unsolicited faxes, he never received additional faxes from those companies.
Second, he said, “I wanted to recover the expenses that I had lost as a result of an unsolicited
fax.”
¶ 50 Counsel for Kohll’s asked Pick what expenses Ballard incurred as a result of an unsolicited
fax. Pick stated that the expenses consisted of paper, ink, and staff time to pick up the fax. He
estimated that the expense incurred from Kohll’s unsolicited fax amounted to “A few dollars.”
Counsel for Kohll’s then asked, “I understand there’s class allegations, but you would agree
with me that $2,500 would more than adequately cover any damage done to Ballard Nursing
Center itself?” Pick replied, “I would agree that $2,500 exceeded the cost that I incurred, yes.”
However, he went on to state, “Ballard was named as part of a class, so I don’t know about the
costs of everybody else who is involved in this.”
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¶ 51 Kohll’s contends that this deposition testimony shows that Pick’s only interest in the
litigation was to recover expenses in receiving unwanted faxes, and, if not for his lawyers, he
would have accepted Kohll’s $2,500 settlement offer. We disagree. Initially, we note that,
contrary to Kohll’s contention, Pick did not say that he only sought to recover expenses; he
also said that he wanted to deter companies from sending additional unwanted faxes to Ballard.
More importantly, although Pick admitted that $2,500 would cover Ballard’s own costs in
receiving the unsolicited fax, he also expressed concern regarding the costs of the other class
members who also received faxes from Kohll’s. Pick also stated unequivocally that he was the
one who made the ultimate decision to pursue litigation, though he made his decision after
consultation with counsel. Based upon this testimony, we cannot say that Ballard is a mere
“pawn” of its lawyers or that it lacks the desire and ability to prosecute the claim vigorously on
behalf of itself and the other class members.
¶ 52 The sole authority that Kohll’s cites on this point is the unpublished federal district court
decision of In re AEP ARISA Litigation, No. C2-03-67, 2008 WL 4210352, at *2 (S.D. Ohio
Sept. 8, 2008), where the court found the named plaintiff not to be an adequate representative
because he was “merely a pawn of the class lawyers.” See Fed. R. App. P. 32.1(a) (unpublished
federal judicial decisions that were issued on or after January 1, 2007, may be cited in federal
court). This case is readily distinguishable on its facts. The plaintiff in that case brought a class
action lawsuit against his employer, alleging mismanagement of its employee retirement
savings plan. AEP ARISA, 2008 WL 4210352, at *1. At a deposition, he revealed that he had
not spoken with his lawyers since he initially contacted them three years earlier; he had never
received a copy of the complaint and was largely ignorant of its contents; he had never
received any status updates about the progress of the case; and he apparently did not even
realize that he had agreed to serve as a class representative, based upon his statement that
“ ‘I’m just a member of a class.’ ” Id. at *3-4. On these facts, the court found that he was not an
adequate class representative. Id. at *5. However, the court also stressed that “the burden on a
named plaintiff to establish that he or she is an adequate class representative is not high” and
that “[w]ith even a minimal amount of consultation with his lawyer, [plaintiff] likely would
have passed muster.” Id. In the present case, Pick did not display any such ignorance as to the
nature of his case or his role in it. Additionally, as noted, Pick stated that he, not his lawyers,
made the ultimate decision to pursue litigation, and the rest of his deposition gives no reason
for us to doubt that assertion. Thus, we cannot say that the trial court abused its discretion in
rejecting Kohll’s argument that Pick’s deposition shows Ballard to be an inadequate class
representative.
¶ 53 D. Adequacy of Representation: Whether Ballard’s Claim Is Moot
¶ 54 Kohll’s finally contends that Ballard’s claim has been mooted by Kohll’s tender of
damages, such that Ballard is no longer an adequate class representative. As noted previously,
on June 29, 2011, Kohll’s tendered a check for the sum of $1,600 to Ballard. Ballard refused to
accept that check. Kohll’s subsequently tendered a check for $1,500 on June 5, 2012, and a
check for $2,500 on June 28, 2012; both checks were similarly refused. Based upon these facts,
Kohll’s argues that Ballard’s claim is now moot under Barber, 241 Ill. 2d at 456-57, which
held that a named representative’s claim is moot when the defendant tenders the relief
requested prior to the filing of a motion for class certification. See also Wheatley v. Board of
Education of Township High School District 205, 99 Ill. 2d 481, 484-86 (1984) (holding
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same). Kohll’s acknowledges that Ballard filed a “Motion for Class Certification”
contemporaneously with its complaint on April 20, 2010, before any tender was made. Kohll’s
nevertheless contends, as it did before the trial court, that this was an incomplete “shell”
motion that is insufficient to satisfy Barber. In response, Ballard makes three arguments: first,
that any motion for class certification, regardless of its content or lack thereof, is sufficient to
satisfy Barber; second, that Ballard’s claims should not be considered moot where Ballard
pursued certification with “sufficient diligence”; and third, that Kohll’s tenders were
insufficient to cover the full amount sought by Ballard in this action.
¶ 55 An issue is moot where no actual controversy exists between the parties or where
circumstances render the court unable to grant effectual relief. West Side Organization Health
Services Corp. v. Thompson, 79 Ill. 2d 503, 506-07 (1980). Because Kohll’s mootness
argument relies principally on our supreme court’s decision in Barber, we begin with a
discussion of that case.
¶ 56 In Barber, a passenger brought a class action lawsuit against an airline for charging her a
baggage fee for a flight that had been canceled. Barber, 241 Ill. 2d at 452-53. Before the
plaintiff had filed any class certification motion, the defendant refunded the baggage fee to her.
Id. at 453. The trial court dismissed plaintiff’s claim as moot, and the Barber court affirmed.
Id. at 454, 460. The court stated the rule with regard to class certifications as follows:
“[T]he important consideration in determining whether a named representative’s claim
is moot is whether that representative filed a motion for class certification prior to the
time when the defendant made its tender. [Citations.] Where the named representative
has done so, and the motion is thus pending at the time the tender is made, the case is
not moot, and the circuit court should hear and decide the motion for class certification
before deciding whether the case is mooted by the tender.” Id. at 456-57.
The court explained that the reason for this rule is that “a motion for class certification, while
pending, sufficiently brings the interests of the other class members before the court ‘so that
the apparent conflict between their interests and those of the defendant will avoid a mootness
artificially created by the defendant by making the named plaintiff whole.’ ” Id. at 457(quoting Susman v. Lincoln American Corp., 587 F.2d 866, 870 (7th Cir. 1978)).
¶ 57 Although Barber does not explicitly set forth requirements for a valid motion for class
certification, such requirements are implicit in the reasoning behind its holding. If the purpose
of a motion for class certification is to “sufficiently bring[ ] the interests of the other class
members before the court” (Barber, 241 Ill. 2d at 457), then, in order to satisfy Barber, a
motion must contain sufficient factual allegations so that it does, in fact, bring the interests of
the other class members before the court. Otherwise, the court has no basis upon which to
determine whether an actual controversy exists between the other class members and the
defendant, as would avoid mooting the issue. See West Side, 79 Ill. 2d at 506-07.
¶ 58 This reading of Barber is consistent with our supreme court’s general approach to class
certification motions. In Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 453 (2004), the
court stated that a class certification motion “is typically brought by a putative class action
plaintiff, who asks the court, based on evidentiary materials adduced through discovery, to
find that the case can proceed as a class action.” (Emphasis added.) See also P.J.’s Concrete
Pumping Service, 345 Ill. App. 3d at 1001 (“Class certification issues are typically factual and
should be decided with the benefit of discovery.”). Because of this, the showing that a plaintiff
must make in a class certification motion is higher than the showing that he must make to
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withstand a motion to strike class allegations under section 2-615 (750 ILCS 5/2-615 (West
2012)). Weiss, 208 Ill. 2d at 453. It would appear from this distinction that the Weiss court did
not contemplate a class certification motion filed contemporaneously with the complaint and
with no factual allegations in support of certification. Rather, it seems that the Weiss court
anticipated that the parties would be allowed some time for discovery before the filing of any
class certification motion.
¶ 59 Moreover, if a putative class action plaintiff could circumvent the holding of Barber
merely by filing a contentless “shell” motion for class certification contemporaneously with its
complaint, then it would effectively eviscerate the Barber decision. See Toothman v. Hardee’s
Food Systems, Inc., 304 Ill. App. 3d 521, 534 (1999) (“We will not interpret supreme court
precedent in such a way that any portion of the decision becomes meaningless.”). Accordingly,
based upon the foregoing, we reject Ballard’s contention that any motion for class certification,
regardless of its contents or lack thereof, is sufficient to satisfy Barber.
¶ 60 Turning now to the facts of the present case, we find that Ballard’s April 20, 2010, “Motion
for Class Certification” was insufficient to “bring[ ] the interests of the other class members
before the court” under Barber. Barber, 241 Ill. 2d at 457. That motion was filed
contemporaneously with the complaint, before any discovery had taken place and before
Ballard had any knowledge of the class. Indeed, at that point in the litigation, Ballard had no
evidence that other class members even existed, other than speculation based on the nature of
the one-page fax it received. Its motion was entirely devoid of any factual allegations in
support of class certification. Although it stated that “[p]laintiff will file a supporting
Memorandum of Law in due course,” Ballard never filed any such motion. It additionally
never presented its motion to the court or set a hearing date on that motion, and, in fact, the
court did not rule upon the issue of certification until nearly three years later. Under these facts,
we find that, at the time Kohll’s made its tender of $2,500, Ballard had not yet filed a motion
for class certification within the meaning of Barber.
¶ 61 Ballard’s second contention is that its claims should not be considered moot because it
pursued class certification with “sufficient diligence.” It asserts that, despite repeated delay
and refusal to cooperate on the part of Kohll’s, Ballard diligently pursued and obtained the
discovery necessary to present the court with a proper motion for class certification in
November 2012. However, the Barber court explicitly rejected the notion that a plaintiff’s
diligence in pursuing class certification will prevent its claim from being mooted if a valid
tender is made prior to a motion for class certification. Barber, 241 Ill. 2d at 459. In that case,
the plaintiff alleged that defendant’s tender was an unfair attempt to “pick off” her claim in
order to avoid a class action. Id. at 455. She argued that the court should apply a “pick off”
exception, under which a plaintiff who fails to move for class certification prior to a
defendant’s tender may nevertheless pursue class certification if the plaintiff has exercised
reasonable diligence in that regard. Id. The Barber court disagreed, stating that the “pick off”
exception “has no basis in the law” and instructing that language in prior appellate decisions
relying on the “pick off” exception not be cited. (Internal quotation marks omitted.) Id. at 458;
see Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 21 (reiterating Barber’s
rejection of the “pick off” rule). Accordingly, we must reject Ballard’s contention that its
alleged diligence prevents its claim from being mooted by Kohll’s tender.
¶ 62 Ballard’s final contention is that the sums tendered by Kohll’s were insufficient to cover
the full relief requested by Ballard in its complaint. In its three-count complaint, Ballard sought
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statutory damages under the TCPA (count I), actual damages and attorney fees as permitted for
violation of the Consumer Fraud Act (count II), and damages for conversion (count III).
Ballard does not contest that the $2,500 tendered by Kohll’s is sufficient to satisfy count I, but
it argues that the amount does not satisfy counts II and III, particularly the Consumer Fraud
Act’s provision of attorney fees for prevailing plaintiffs. See Clayton v. Planet Travel
Holdings, Inc., 2013 IL App (4th) 120717, ¶ 26 (award of attorney fees is allowable under
Consumer Fraud Act).
¶ 63 Kohll’s does not challenge this assertion. Indeed, at oral argument before this court,
counsel for Kohll’s conceded that its tender only pertained to count I of the complaint and did
not cover counts II and III. This is consistent with Kohll’s stance before the trial court, since,
after tendering payment to Ballard, Kohll’s moved for partial summary judgment on count I of
the complaint but did not seek summary judgment on the other two counts.
¶ 64 Based upon the foregoing, we agree with Ballard that Kohll’s tender only mooted Ballard’s
claims with respect to count I of its complaint, which leaves Ballard as an adequate class
representative with regard to counts II and III. We therefore reverse the trial court’s class
certification insofar as it pertains to count I, but we affirm in all other respects. Upon remand,
we direct the trial court to revisit the issue of class certification in light of the fact that only
counts II and III remain.
¶ 65 Affirmed in part and reversed in part; cause remanded with directions.
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