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Andrea Barber v. American Airlines

March 24, 2011


The opinion of the court was delivered by: Justice Freeman

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

Chief Justice Kilbride specially concurred, with opinion.


Plaintiff Andrea Barber filed a class action complaint against defendant American Airlines for breach of contract. The circuit court granted defendant's motion to dismiss, and plaintiff appealed. A divided panel of the appellate court reversed and remanded. 398 Ill. App. 3d 868. For the reasons set forth below, we reverse the judgment of the appellate court.


Plaintiff purchased a ticket to travel on defendant's flight 4414 from Chicago to White Plains, New York, on August 11, 2008. Prior to boarding, plaintiff checked two suitcases for transport to White Plains and was charged a $40 checked baggage fee. Defendant subsequently canceled the flight. Plaintiff elected not to take another flight and instead requested cancellation of her ticket and a refund of the ticket price and the $40 baggage fee. Defendant refunded the price of the airline ticket, but allegedly refused to refund the $40 baggage fee. According to plaintiff's complaint, defendant's counter agent advised her it was not defendant's policy "to refund fees paid by ticket holders for transportation of luggage in conjunction with a passenger flight when that flight is canceled by Defendant and the passenger does not accept another flight."

On August 15, 2008, four days after her flight was cancelled, plaintiff filed her class action complaint against defendant in the circuit court of Cook County. There is no indication in the record that, prior to filing this complaint, plaintiff made any additional effort to contact defendant seeking a refund or to investigate whether the information allegedly provided by defendant's counter agent was accurate. Count I of plaintiff's complaint, which is for breach of contract, alleges defendant's "failure to transport her two suitcases was a breach of contract and Plaintiff was entitled to a refund." Count II, the class action count, seeks recovery on behalf of similarly situated persons. Plaintiff served defendant with the complaint on August 21, 2008.

Defendant subsequently determined that plaintiff was entitled to a refund of the $40 baggage fee. On September 4, two weeks after being served with the complaint, defendant contacted plaintiff's counsel and offered to refund the $40 fee. Defendant also stated it would consider paying the court costs plaintiff had incurred to date. Plaintiff's counsel declined the offer, and advised that the case would proceed as a class action. On September 25, defendant refunded the $40 fee to plaintiff's credit card, the original form of payment. By letter dated September 29, defendant's counsel informed plaintiff's counsel of the refund. On the same day, September 29, plaintiff sent defendant an interrogatory seeking the identity of other potential class members.

On October 30, 2008, defendant filed an objection to plaintiff's interrogatory. Defendant also moved to dismiss plaintiff's complaint pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9) (West 2006)), on the grounds that plaintiff's contract claim was meritless and her complaint was moot because defendant had refunded the $40 fee to her. In an agreed order, the circuit court set a briefing schedule for defendant's motion to dismiss and entered and continued defendant's objection to plaintiff's interrogatory. On January 28, 2009, nearly three months after defendant's objection to the interrogatory, plaintiff moved to compel defendant to answer, requesting defendant be ordered to answer prior to the hearing on defendant's motion to dismiss. About one month later, on February 26, the circuit court denied the motion to compel and ordered the motion to dismiss to be heard on March 10 as scheduled.

On March 10, 2009, after reviewing the parties' briefs and hearing oral argument, the circuit court granted defendant's motion and dismissed the complaint on mootness grounds. Plaintiff never filed a motion for class certification.

On appeal, the appellate court majority reversed and remanded, concluding plaintiff's claim was not moot. 398 Ill. App. 3d 868. The dissent disagreed, relying on this court's decision in Wheatley v. Board of Education of Township High School District 205, 99 Ill. 2d 481 (1984). 398 Ill. App. 3d at 888 (Cahill, P.J., dissenting). We allowed defendant's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)) and allowed the Pacific Legal Foundation to file a brief amicus curiae in support of defendant (Ill. S. Ct. R. 345 (eff. Sept. 20, 2010)).


Defendant argues the appellate court erred in reversing the dismissal of plaintiff's complaint. Defendant contends that under Wheatley, if a defendant tenders the named plaintiff the relief requested before a motion for class certification is filed, the underlying cause of action must be dismissed as moot. Here, defendant tendered the $40 baggage fee to plaintiff and refunded that amount to her credit card, and plaintiff never filed a motion for class certification. According to defendant, the circuit court correctly granted ...

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