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Underwood v. Illinois Commerce Commission

Court of Appeals of Illinois, First District, Second Division

September 12, 2017

WAYNE UNDERWOOD, Petitioner-Appellant,
v.
ILLINOIS COMMERCE COMMISSION and ILLINOIS BELL TELEPHONE COMPANY, INC., Respondents-Appellees.

         Petition 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.

          ORDER

          HYMAN JUSTICE.

         ¶ 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 other issues.

         ¶ 3 BACKGROUND

         ¶ 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 Underwood's claim.

         ¶ 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 customers ...


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