Court of Appeals of Illinois, First District, Second Division
for Review of the Order of the Illinois Commerce Commission
ICC Docket No. 14-0301
JUSTICE HYMAN delivered the judgment of the court. Presiding
Justice Neville and Justice Pierce concurred in the judgment.
1 Held: Illinois Commerce Commission's dismissal
is affirmed. Petitioner's request for a declaratory
ruling for respondent to reimburse late fees assessed against
all customers for its purported failure to adhere to postmark
requirements in the Illinois Administrative Code, was time
barred and not subject to tolling.
2 Wayne Underwood filed a petition with the Illinois Commerce
Commission seeking a declaratory ruling that between July 1,
2002 and February 28, 2010, Illinois Bell Telephone Company,
Inc. (now AT & T) violated section 735.160(a) of the
Illinois Administrative Code (83 Ill. Adm. Code 735.160 (West
2014)) by failing to include the proper postmarks on its
bills. Underwood asserted that because AT & T failed to
abide by the postmark requirements, it should be required to
refund all late payments assessed against customers during
that period, more than $126 million. The Commission dismissed
the petition finding it: (i) was time barred under section
9-252 of the Public Utilities Act (220 ILCS 5/9-252 (West
2014)) and not subject to tolling; (ii) fell outside the
scope of declaratory rulings permitted under the
Commission's rules; and (iii) was a class action, which
the Commission does not have authority to hear under section
200.95 of the Illinois Administrative Code (83 Ill. Admin
Code § 200.95 (West 2014)). Underwood appeals arguing
all three of the Commission's findings were wrong.
Because we agree with the Commission that the petition was
time-barred, we affirm on that basis and do not address the
4 Underwood's petition raises issues that have been
before the courts and the Commission as far back as 1991. We
briefly discuss that history to provide context for
5 Before March 1, 2010, section 735.160(a) of the Illinois
Administrative Code addressing telephone companies'
billing procedures stated that "[t]he due date printed
on the monthly bill may not be less than twenty one days
after the date of the postmark on the bill, if mailed or the
date of delivery as shown on the bill of delivered by other
means." 83 Ill. Admin Code § 735.160(a). After
March 1, 2010, that provision was amended to state that no
postmark was required. Specifically, the rule makes a
postmark optional and instead requires telephone companies to
"retain documentation" for two years of the due
date of each bill; and the date each bill was mailed,
delivered, sent or made available to a customer. 83 Ill.
Admin Code § 735.160(a)(10, (a)(5) (eff. March 1, 2010).
The issues Underwood's petition raises and which have
been raised by others before the courts and the Commission,
relate to the pre-March 2010 postmark requirements.
6 In 1991, attorney Clinton Krislov, on behalf of a class of
AT & T customers, sued AT & T for damages arising
from its assessment of late payment charges on consumer bills
that were mailed without a dated postmark (Morrison
Litigation). Bills were generally payable within 21 days of
mailing, and the class argued that it could not determine the
due date without a postmarked envelope showing the mailing
date, as required by law. Plaintiffs argued that AT & T
sent bills to customers without postmarks and at times set
due dates less than 21 days from the date the bill was mailed
and then improperly charged late fees before the actual date
the charged accrued. Plaintiffs argued that the illegal late
fees should be refunded to all affected customers.
7 Concurrently, Krislov filed a complaint with the Commission
essentially asserting the same misconduct and seeking the
same relief. Before the Commission matter went to trial, the
class action suit settled. AT & T admitted no liability
but agreed to place a "dated mark" on the billing
envelope for as long as required by the Administrative Code.
Krislov and all class members agreed to be enjoined from
bring any future claim based on the lack of a dated mark on
the billing envelope. Krislov was authorized to monitor
compliance with the settlement agreement.
8 Several years after the settlement, AT & T changed its
marking procedures by replacing the mailing date on the
envelope with a string of numbers, which were only understood
by AT & T. In 2005, Krislov filed a motion in circuit
court to enforce the 1994 settlement agreement and for an
accounting for all late charges AT & T collected since it
changed its postmark procedure. Krislov alleged AT & T
unlawfully collected more than $126 million in late fees
during that period. The circuit court denied the motion to
enforce finding that AT & T had not violated the
settlement agreement. The appellate court reversed, holding
that AT & T had breached the settlement agreement and
remanding for further proceedings. In re Illinois Bell
Telephone LinkUp II & Late Charge Litigation, No.
1-06-1675 (May 1, 2008) (unpublished order under Supreme
Court Rule 23). (Krislov also filed a complaint with the
Commission alleging violation of the Administrative
Code's postmark requirements. The Commission dismissed
the complaint finding that the settlement agreement barred
the claim. The appellate court affirmed. Krislov v.
Illinois Commerce Comm'n, No. 1-07-2860 (2008)
(unpublished order under Supreme Court Rule 23)).
9 On remand, Krislov moved for summary judgment and asked for
an order refunding all late charges with interest, and an
order requiring AT & T to comply with the 1994 settlement
agreement. AT & T argued that Krislov failed to present
any evidence of causation or damages. The circuit court
agreed and entered an order denying the motion to enforce the
judgment and granting AT & T's motion to terminate
the litigation. The appellate court affirmed, finding that
Krislov failed to maintain his burden to show damages
proximately caused by AT & T's breach of the
settlement agreement to warrant the relief requested. In
re Illinois Bell Telephone Link Up II & Late Charge
Litigation, 2013 IL App (1st) 113349.
10 In July 2010, while the Morrison litigation was
pending, Krislov filed a putative class action in circuit
court on behalf of Samuel Cahnman (with Wayne Underwood named
as a proposed intervener), alleging that AT & T violated
section 735.160(a) of title 83 of the Illinois Administrative
Code (83 Ill. Adm. Code 735.160(a)(d), amended at 8 Ill. Reg.
5161 (eff. Apr. 13, 1984)) in omitting the dated postmark on
the exterior of its billing envelopes sent to customers and
subsequently charging late fees on the bills it considered
past due. The complaint asserted that AT&T should be
required to forfeit all late charges, totaling over $126
million dollars, assessed from July of 2002 to March of 2010.
The circuit court granted AT & T's motion to dismiss
for lack of jurisdiction finding that Cahnman was requesting
reparations of utility rates under section 9-252 of the
Public Utilities Act (220 ILCS 5/9-252 (West 2014), which is
the exclusive jurisdiction of the Commission. The appellate
court affirmed. Cahnman v. SBC Illinois d/b/a AT&T
Illinois, Illinois Bell, 2013 IL App (1st) 113350-U
(unpublished order under Supreme Court Rule 23).
11 On April 10, 2014, Krislov, on behalf of Wayne Underwood,
filed a petition with the Commission, which was later
amended, seeking the same relief as in Cahnman's class
action case, namely, a declaration that from July 2002 to
March 2010, AT & T violated the pre-March 2010 version of
section 735.160(a) of Administrative Code by failing to
include postmarks on its bills and that all AT & T