Illinois Supreme Court Rules That Tender of Complete Relief to Class Representative Before Class Certification Motion Moots Putative Class Action


A hot topic in class action jurisprudence is whether tender of complete relief to the proposed class representative prior to seeking class certification moots the case. In recent years, defendants have increasingly sought to end class litigation by offering plaintiffs (suing on behalf of putative classes of similarly situated persons) complete relief on their individual claims. Federal courts have struggled to define the extent to which a Rule 68 offer of judgment can be used to "pick off" a plaintiff suing in a representative capacity. Some federal courts have indicated that, in situations where class representatives (and counsel) do not act expeditiously in seeking class certification, an offer of judgment under Rule 68 will deprive plaintiffs of standing. By contrast, other courts have expressed reluctance to allow defendants to moot class claims by "picking off" the class representative and have observed that allowing offers of judgment to moot class actions will result in races to the courthouse with plaintiffs trying to file (largely boilerplate) motions for class certification before defendants tender offers of relief.

A recent decision from the Illinois Supreme Court provides some clarity to the issue, at least on the state level. In Barber v. American Airlines, Inc., No. 110092, slip op. (Ill. Mar. 24, 2011), the Illinois Supreme Court ruled that a defendant may moot a proposed class representative's claims by tendering complete relief prior to the filing of a motion for class certification. In so holding, the court highlighted a distinction between offers of complete relief made before class certification is sought and those made after such a motion is filed. The distinction is based on the court's observation that a "motion for class certification, while pending, sufficiently brings the interests of the other class members before the court 'so that the apparent conflict between their members and those of the defendant will avoid a mootness artificially created by the defendant by making the named plaintiff whole.'" Barber, No. 110092, slip op. at *5 (citing Susman v. Lincoln Am. Corp., 587 F.2d 866, 870 (7th Cir. 1978)). The motion for class certification, the Barber court reasoned, creates at least a theoretical class of persons whose claims are not affected by the offer of complete relief to the representative plaintiff and thus the tender is ineffectual.

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