Chicago plaintiff's attorney Myron Cherry
Class action lawsuits would be more difficult to bring in Illinois under a proposed rule a committee of the state Supreme Court is scheduled to consider on Monday.
Rule 225 would require that a judge determine a class-action lawsuit is the "superior" method to resolve a dispute before certifying the case. It would also suggest that a class action be rejected if it substantially involves parties in other states or the laws of other states.
Critics of the Madison and St. Clair County courts complain they certify too many class-action lawsuits, including ones with little connection to the state.
There is no deadline on when the committee must make a recommendation to the state Supreme Court. The court could accept or reject the recommendation.
"The thrust of the rule is to adopt best practices," said Chicago attorney Michael Pope, who helped draft Rule 225. "Some of the best judges in the state are doing these things now. For those judges who aren't or who don't have the benefit of that experience, we thought the rule should be made clear, that a class action should be a superior way to proceed. Also, that one of the factors they should look at is whether the action involves Illinois law, or Illinois parties, or would affect the people of Illinois."
"There are cases certified in Madison County that aren't certified elsewhere," said Gretchen Schaefer, spokeswoman for the American Tort Reform Association, in Washington, D.C. "It sounds like your state Supreme Court is taking a look at that, and we're happy they are. Also, this is a problem that has clearly spilled over into St. Clair County."
The Illinois State Bar Association last month decided to oppose the proposed rule after hearing arguments from supporters and opponents, including Chicago attorney Myron Cherry.
Cherry called the proposal "a grandstand play" by business groups that could end up doing them more harm than good.
"We're told this is conforming to best practice. That makes no sense," Cherry said, because Illinois judges already must determine whether a class-action lawsuit involves common questions of law and fact before certifying the case. They must also determine whether all or part of a cause of action arose in the state or involves an Illinois plaintiff or defendant.
Rule 225 also seeks to limit discovery until after a class action is certified, which Cherry said could backfire on those who want to rein in class-action lawsuits.
"They believe if you slow down discovery of the merits (of the case), you will stop class actions," Cherry said. "But it will force judges to make decisions that are more beneficial to plaintiffs. If you're pleading, all you have to do is say the right words, because the judge will assume what you say is true. If they stay discovery, all they're requiring the plaintff's lawyer to do is say the right words."
Cherry said the requirement that there be a "substantial" connection to Illinois before a class-action lawsuit may be certified is subjective and open to wide interpretation. He said even if one party out of thousands is in Illinois, that ought to be enough to bring the action here.
Defense attorney Jeff Lennard of Chicago, who often defends businesses involved in class actions, worked with Pope to draft the rule. He has about one dozen class action cases pending in Madison County.
"We have been confronted with arguments that even though courts all over the country have ruled on these matters, Illinois' rules are different," Lennard said. "Our first goal was to put that argument by the wayside. And there have been situations where we've had different rulings in different parts of the state. We're hoping to bring some uniformity."
Lennard said one of the most significant issues has been multi-state class actions.
"Jurisprudence out of the federal courts and many state courts is that states must be extremely wary of these multi-state certifications," Lennard said. "Illinois should not be pronouncing rules and consumer relationships in 49 other states. We raise that as a factor to be taken into account."
Laura Kotelman, senior counsel for the Property Casualty Insurers Association of America in Des Plaines, also raised the multi-state issue as a concern.
"Some lawyers are using the Illinois courts to make national law," she said. "Most jurisdictions already follow much of what is in Rule 225. This would bring consistency."
She said 38 other states already treat class actions as outlined in Rule 225.
"We believe the rule would benefit consumers and businesses because of the burdens that are placed on them by the current court system," Kotelman said.