United States District Court, N.D. Illinois, Eastern Division
Practice Management Support Services, Inc., an Illinois corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
Cirque du Soleil Inc., Cirque du Soleil (US), Inc., and John Does 1-10, Defendants.
MEMORANDUM OPINION AND ORDER
M. DURKIN UNITED STATES DISTRICT JUDGE
class action lawsuit, plaintiff Practice Management Support
Services, Inc. challenges the alleged practice of defendants
Cirque du Soleil, Inc., and Cirque du Soleil (US), Inc., of
using a fax broadcasting service to advertise theatrical
shows without providing sufficient instructions about how to
opt out, in violation of the Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227. On March 12,
2018, the Court granted in part Practice Management's
motion for class certification. R. 162. A few months later,
on June 11, 2018, the Supreme Court decided China
Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2018), which
resolved a circuit split regarding the application of the
equitable tolling doctrine set forth in American Pipe
& Construction Co. v. Utah, 414 U.S. 538, 554
(1974), to untimely successive class actions. The China
Agritech Court held “that American Pipe
does not permit a plaintiff who waits out the statute of
limitations to piggyback on an earlier, timely filed class
action.” 138 S.Ct. at 1806. In light of China
Agritech, defendants have moved to decertify the class,
arguing that Practice Management's class claims in this
third successive class action are untimely. For the reasons
explained below, the Court grants defendants' motion (R.
171) and decertifies the class. Because it is decertifying
the class, the Court denies as moot Practice Management's
motion for partial reconsideration of the Court's order
granting class certification (R. 166).
the third successive class action case filed against Cirque
du Soleil entities by the same counsel (Anderson Wanca)
based on the same fax transactions. Because one of Practice
Management's arguments against decertification raises the
issue of its counsel's diligence, the Court recounts the
relevant history of this sprawling litigation here, which
began nearly three and a half years before this Court joined
August 27, 2009, Anderson Wanca filed a class action in
federal court on behalf of a different named plaintiff (G.M.
Sign) against Groupe Cirque du Soleil, Inc., Cirque du Soleil
America, Inc., and unnamed Cirque entities. G.M. Sign,
Inc. v. Cirque du Soleil, Inc., 09 C 7692, Dkt. 1-1,
Dkt. 30 (N.D. Ill.). On September 28, 2010, the court set a
February 28, 2011 deadline to add additional parties and a
March 18, 2011 class discovery cutoff. Id. Dkt. 35.
On March 21, 2011, several weeks after the deadline for
adding parties and three days after the close of fact
discovery, G.M. Sign moved for an extension of time to
complete discovery and to reopen the period to add additional
parties. Id. Dkt. 41. The court denied that motion
on April 19, 2011. Id. Dkt. 48.
before the federal court's ruling, on April 18, 2011,
Anderson Wanca filed a second class action in state court
against Cirque du Soleil, Inc. and Cirque du Soleil (US) (the
same defendants named in this case), as well as unnamed
Cirque entities. R. 47-7. Meanwhile, back in the federal
case, G.M. Sign filed a motion in August 2011-five months
after the close of discovery-to compel documents it claimed
were relevant to establishing the certification requirements.
G.M. Sign, 09 C 7692, Dkt. 68. The federal court
denied that motion for, among other reasons, inexcusable
delay. Id. Dkt. 86 at 4-5. Then, before the federal
court ruled on G.M. Sign's perfunctory, four-page motion
for class certification (id. Dkt. 83), G.M. Sign
requested that the court dismiss the case without prejudice,
in part because the court had “denied Plaintiff the
ability to add any other of the ‘Cirque' entities
as additional defendants.” Id. Dkt. 92 at 2.
The court granted the motion to voluntarily dismiss,
conditioned on G.M. Sign's payment of defendants'
fees and costs. Id. Dkt. 94. On March 28, 2012, G.M.
Sign moved to dismiss with prejudice instead of paying fees.
Id. Dkt. 99. The court granted that motion and
dismissed the case with prejudice on April 4, 2012.
Id. at Dkt. 102.
two years later, on March 20, 2014, the state court granted
summary judgment for defendants on res judicata
grounds, finding “no genuine issue of material fact as
to whether the defendants in the Lake County action[ ] are
privies of the defendants in the federal court action . . .
[for] the purposes of res judicata.” R. 47-16
at 20-21. The next day, on March 21, 2014, Anderson Wanca
filed this case in federal court, asserting the same TCPA
claim based on the same fax against the same defendants, but
this time naming Practice Management as class representative.
November 12, 2015, this Court denied defendants' motion
for summary judgment based on the four-year statute of
limitations. R. 63. The Court applied the Supreme Court's
decision in American Pipe, 414 U.S. at 554, and the
Seventh Circuit's opinion construing American
Pipe in Sawyer v. Atlas Heating & Sheet Metal
Works, Inc., 642 F.3d 560 (7th Cir. 2011), to find that
Practice Management's claims were tolled until the first
federal class action was dismissed on April 4, 2012. R. 63 at
7-14. This meant that the filing of this case fell within the
four-year statute of limitations window. Id.
Management subsequently moved for class certification, and on
March 12, 2018, this Court certified the following class:
All persons who are residents of Illinois and all entities
located in Illinois who were successfully sent a facsimile in
Illinois containing the “Cirque du Soleil” trade
name from January 29, 2009, through July 8, 2009, offering
tickets for sale to the following performances:
“Saltimbanco” at Rockford MetroCentre, Rockford,
Illinois, opening February 25, 2009; and “A New Twist
on Vaudeville” at Chicago Theatre, Chicago, Illinois,
opening November 19, 2009.
R. 162 at 46. On March 20, 2018, this Court granted
defendants' motion to stay the case pending the Supreme
Court's decision in China Agritech. R. 165. The
Supreme Court decided China Agritech on June 11,
2018 (138 S.Ct. 1800), and this Court lifted the stay on June
15, 2018. R. 170. Defendants subsequently moved to decertify
based on China Agritech. R. 171.
Federal Rule of Civil Procedure 23(c)(1)(C), “[a]n
order that grants or denies class certification may be
altered or amended before final judgment.” After
granting certification, the court “remains under a
continuing obligation to review whether proceeding as a class
action is appropriate.” Shurland v. Bacci Cafe
& Pizzeria on Ogden, Inc., 271 F.R.D. 139, 142 (N.D.
Ill. 2010). When a party moves to decertify a class,
“the party seeking class certification bears the burden
of producing a record demonstrating ...