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G.M. Sign, Inc. v. Swiderski Elecs., Inc.

Court of Appeals of Illinois, Second District

August 12, 2014

G.M. SIGN, INC., Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff-Appellant,
v.
SWIDERSKI ELECTRONICS, INC., JOSEPH SWIDERSKI III, and DAVID M. SCHWARTZ, Defendants-Appellees

Appeal from the Circuit Court of McHenry County. No. 03-CH-454. Honorable Thomas A. Meyer, Judge, Presiding.

SYLLABUS

In a putative class action alleging that defendants violated the Telephone Consumer Protection Act by sending unsolicited facsimile advertisements in violation of the Act, the trial court erred in dismissing the action with prejudice on the ground that defendants' settlement offer, which plaintiff did not accept within the 12-day time limit, rendered the claim moot, since the 12-day time limit made the offer conditional, the law requires a tender to be unconditional to moot plaintiff's claim, and, in the instant case, the time limit had expired and was no longer effective at the time the trial court ruled on defendants' motion to dismiss; therefore, the dismissal of plaintiff's claim was reversed and the cause was remanded.

Brian J. Wanca, David M. Oppenheim, Glenn L. Hara, and George K. Lang, all of Anderson & Wanca, of Rolling Meadows, and Phillip A. Bock and Robert M. Hatch, both of Bock & Hatch, LLC, of Chicago, for appellant.

Eric L. Samore and Michael Resis, both of SmithAmundsen LLC, of Chicago, for appellees.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice McLaren concurred in the judgment and opinion.

OPINION

JORGENSEN, JUSTICE.

Page 358

[¶1] In this putative class action, plaintiff, G.M. Sign, Inc., alleges that defendants, Swiderski Electronics, Inc., Joseph Swiderski III, and David M. Schwartz (collectively Swiderski), sent unsolicited facsimile advertisements in violation of the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2012)). The trial court denied G.M. Sign's motion for class certification, finding that Swiderski had a policy of sending fax advertisements only to recipients with whom it had an existing business relationship (EBR) (47 U.S.C. § 227(b)(1)(C) (2012)), that common questions did not predominate over questions specific to individual class members, and that a class action was not an appropriate method by which to adjudicate the claims.

[¶2] Swiderski offered to fully settle G.M. Sign's individual claims, conditioned on its acceptance within 12 days. On the twelfth day, G.M. Sign moved to reconsider the denial of class certification. The trial court reopened discovery for Swiderski to depose six declarants who had sworn that they had no EBR with it. Rather than conduct discovery, Swiderski moved to dismiss the case as moot based on the tender of its settlement offer, which was made after certification had been denied and while no motion for reconsideration was pending. The trial court granted Swiderski's motion and dismissed the case with prejudice. It also denied G.M. Sign's oral motion requesting 30 days to find a new class representative to replace it and for a 30-day injunction precluding Swiderski from making tender offers to the six declarants. The court did not rule on the specific claims in G.M. Sign's motion to reconsider the denial of class certification, but denied the motion as moot given its dismissal of the case.

[¶3] G.M. Sign appeals, challenging the trial court's denial of the motion for class certification and its dismissal of the case. We reverse the dismissal of G.M. Sign's claims, vacate the denial of its motion to reconsider the certification denial, and remand for a ruling on the motion to reconsider. Because the motion to reconsider remains pending, we do not address the certification denial. We also vacate as premature the court's ruling on G.M. Sign's request for time to seek a substitute class representative and its related request for an injunction.

[¶4] I. BACKGROUND

[¶5] " This is a junk fax case, and like most such cases, the facts are not especially juicy." CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 444 (7th Cir. 2010). On June 19, 2003, Ernie Rizzo, d/b/a Illinois Special Investigations, filed a class-action complaint against Swiderski Electronics. On February 21, 2008, G.M. Sign, a wholesale sign manufacturer, replaced

Page 359

Rizzo as class representative[1] in a first amended complaint, and Joseph Swiderski III and David M. Schwartz were added as defendants. G.M. Sign alleged that Swiderski sent it unsolicited fax advertisements (junk faxes or unsolicited faxes) in violation of the TCPA (count I) and that it spoliated evidence (count II). G.M. Sign specifically alleged that on or about August 13, 2003, Swiderski Electronics[2] faxed an advertisement to it and that G.M. Sign had not invited or permitted it to do so. G.M. Sign further alleged that, on information and belief, Swiderski had faxed the same or similar advertisements to G.M. Sign and other recipients without first receiving the recipients' express invitation or permission.

[¶6] Swiderski denied the allegations and raised several affirmative defenses, including an EBR. Swiderski claimed that it did not send any advertising or marketing materials to any individual or entity that had not previously contacted it for information relating to its goods and services or purchased goods or services from it.

[¶7] In a second amended motion filed on December 30, 2011, G.M. Sign moved the trial court to certify (735 ILCS 5/2-801 (West 2012)) the following class:

" All persons who were successfully sent a facsimile between August 11, 2003[,] and August 14, 2003[,] from Swiderski Electronics Inc. including the language 'Your Source ...

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