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Italia Foods, Inc v. Sun Tours

June 3, 2011

ITALIA FOODS, INC., APPELLEE,
v.
SUN TOURS, INC., D/B/A HOBBIT TRAVEL ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice Freeman

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

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.

I. BACKGROUND

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.

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 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.*fn1

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).*fn2

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?"

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. 3d at 1072. We allowed defendants' petition for leave to appeal (Ill. S. Ct. R. 315(a)).

II. ANALYSIS

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).

A. Illinois Circuit Court Jurisdiction Over TCPA Claims 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.

" '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.

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. 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).

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). ...


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