Lakin attorney argues 'Avery' being used as thin excuse

Steve Korris Nov. 9, 2005, 11:29am

Gary Peel

Circuit Judge Nicholas Byron

For three months class action defense lawyers have celebrated an Illinois Supreme Court decision that wiped out a $1.2 billion verdict in Avery vs. State Farm.

Now a prominent member of the plaintiff’s bar argues that the decision did not change the law and that defense attorneys seek to use it as “a thin excuse.”

Gary Peel, of the Lakin Law Firm in Wood River, wrote in an Oct. 28 pleading that the Court simply corrected a trial judge’s error and rejected a plaintiff’s weak case.

Peel asked Madison County Circuit Judge Nicholas Byron to deny reconsideration of an order that certified Paul and Ladonna Wratchford as representatives of a national class in a suit against Accredited Home Lenders.

The Wratchfords claim that Accredited improperly added a $20.90 courier fee to the mortgage on their home in Wood River.

Accredited has argued that it charged the fee on all mortgages, to cover “transmittal and administrative services.”

Byron certified the Wratchfords as representatives of a national class in January.

In September, after the Supreme Court overturned the Avery verdict, Accredited attorney Kevin Babb of Edwardsville asked Byron to reconsider. Babb noted “striking parallels” between the Wratchford case and Avery.

Babb wrote that under Avery, the court could not define a class in a way that precluded a defendant from introducing material evidence.

He wrote that under Avery, the Wratchfords could not establish a method of identifying class members without individual inquiries, nor could they prove damages under Avery, he wrote.

Babb also wrote that under Avery, the court could not certify a class action because no question of fact or law predominated.

In response, Peel urged Byron to reject Babb’s interpretation.

“Avery involved primarily contract claims, but this case does not involve any contract claims,” Peel wrote. He added that the Wratchfords sought recovery for consumer fraud and unjust enrichment.

Peel stated that a portion of the decision that Babb quoted on class definition applied only to an error in jury instructions. That error, he wrote, has no bearing on class definition.

“To the extent that Avery says anything relevant to the current action, it only supports the court’s previous decision to grant plaintiff’s motion for class certification,” Peel wrote.

“In contrast to Avery, this case involves a uniform fee described in a uniformly false manner to every single class member. Nothing in Avery suggests that it is inappropriate to certify a class based on such a set of facts.

“Defendant is using Avery as a thin excuse to reargue its formerly rejected argument that the ‘courier fee’ was reasonable because it was for ‘transmittal and administrative services’ that might have exceeded $20.90 for some customer.”

“Defendant cannot cure its fraud now by simply changing the representation it used from false to true.”

Any analogy between Avery and the Wratchford case would fail, Peel wrote.

A plaintiff in Avery admitted that State Farm’s supposed deceit cost him nothing, he wrote, adding that the plaintiff admitted that State Farm did not deceive him.

“The problem with defendant’s argument is that defendant did not charge class members for ‘transmittal and administrative services.’ Defendant charged class members for ‘courier fees.’ They are not the same thing,” Peel wrote.

Peel concluded by arguing that, “Defendant has failed to show either that Avery has changed the standard for nationwide certification or that nationwide certification was improper in the present case in light of the standards set forth in Avery.”

Byron has set a Nov. 23 deadline for Babb to reply to Peel.

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