Section 2-802(a) of the Illinois Code of Civil Procedure provides that an order certifying a class action “may be conditional and may be amended before a decision on the merits.” 735 ILCS 5/2-802(a).
But what’s a “decision on the merits”? In its third unanimous decision of the day, the Illinois Supreme Court answered that question this morning, giving an appropriately broad construction to trial courts’ power to decertify. The Court affirmed the decision of the First District, Sixth Division in Mashal v. The City of Chicago [pdf]. Our preview of Mashal, discussing the facts and lower court rulings, is here. For our report on the oral argument before the Supreme Court, click here.
Mashal involves allegations that the City of Chicago made a practice of issuing “fly-by” traffic tickets – tickets served by mail, rather than being handed to the driver or placed on the vehicle – to taxi drivers. Plaintiff filed a putative class action in 2000, arguing that the practice violated both the Chicago Municipal Code and the state Vehicle Code. A class was certified in 2002.
Two substantive orders followed. In 2005, the Circuit Court granted plaintiff partial summary judgment finding that fly-bys are indeed illegal. The order did not address whether the City in fact had a practice of issuing fly-bys, or whether fly-bys had been issued to any particular class member. At the same time, the court denied the City’s motion for summary judgment, rejecting a number of affirmative defenses. The following year, the trial court granted the City partial summary judgment, finding that all claims which accrued before September 13, 1995 were time-barred.
In 2008, the Circuit Court granted the City’s motion to decertify the class, holding that in the wake of the 2005 order holding that fly-bys were illegal, common questions no longer predominated. In that order, the court stated that the City was entitled to a trial for each and every one of perhaps as many as 16,000 tickets, given the City’s insistence that it had never issued a “true” fly-by – in every case, either service had been frustrated by the driver, or the wind or some other agency (sometimes the driver) had removed the ticket from the vehicle.
After the Circuit Court denied a motion to certify questions for interlocutory appeal, the Supreme Court intervened with a supervisory order directing the Circuit Court to certify four issues: what was a decision on the merits, and did any of the three substantive orders – partial summary judgment for plaintiff, denial of summary judgment for the City, or the statute of limitations order – qualify as one, thus terminating the court’s power to decertify?
With respect to the foundational question, the Supreme Court relied on Federal law under Rule 23 to affirm the Appellate Court:
A ‘decision on the merits’ is a complete determination of liability on a claim based on the facts disclosed by the evidence, and which establishes a right to recover in at least one class member, but which is something short of a final judgment.
The Court found that its definition was consistent with the purposes and policies underlying the class action provisions of the Code. The authority to decertify exists, the Court wrote, because “it may be beneficial to the orderly administration of justice” to decertify “if clearly changed circumstances or more complete discovery warrant it.” Giving Circuit Courts “the flexibility to revisit certification – before liability is determined – best serves the objectives of the class certification provisions.”
The Court next applied its definition to the orders at issue. The Circuit Court’s partial summary judgment finding that fly-bys were illegal was not a “decision on the merits”; the order neither determined that the City was liable to anyone, nor that the City in fact had a practice of issuing such tickets. Nor was the denial of the City’s initial motion for partial summary judgment, rejecting the City’s affirmative defenses, a “decision on the merits,” since it didn’t foreclose the City from defending each individual claim on the merits, one by one. Finally, citing Downing v. Chicago Transit Authority, the Court held that motions dismissing claims on statute of limitations grounds cannot by definition be a “decision on the merits” for purposes of the statute.