Voters will decide if new and improved courthouse is real or not

Steve Gonzalez Sep. 15, 2006, 12:35am

Judge Callis

Don Weber

Charles Romani

John Knight

On election day Madison County voters will be faced with an unofficial referendum: is court reform real or masterful spin?

Looking to secure another six years on-the-job, Judges Ann Callis, Charles Romani and John Knight are doing what judges seeking retention in Madison County have never had to do before: campaign.

It used to be that judges only had to win the hearts and minds of political leaders who supported them. But not anymore.

The highly visible, PR savvy trio seems to be heeding lessons learned from the costly and hard-fought Illinois Supreme Court battle of 2004 by confronting Madison County's tarnished image as a plaintiff haven. New court rules implemented since Callis took over as chief judge are being touted as reform. Since May Callis has crafted a number of administrative orders that clamp down on judge "shopping," out-of-state lawyers and cases filed under seal.

But the changes that are having the greatest impact on what used to be the most attractive venue in the nation for class action plaintiffs have more to do with corrections made outside Madison County: federal legislation that makes it harder to file class action lawsuits in state courts and Illinois Supreme Court decisions that drained the life out of class action litigation.

This week the Record examines the status of Madison County's class action litigation and why judges are beginning to dispose of cases.

Magnetic court

For perspective, no other state court of its size can boast greater class action numbers than Madison County's. There have been 400 suits seeking class action status filed in Madison County since 2000.

Allegations run the gamut from consumer overpayment to insurance company underpayment. In many cases, disputes of less than $30 are litigated as class actions. The grandaddy of all Madison County cases -- a $10.1 billion bench verdict against Philip Morris -- claimed the tobacco company duped them into believing "light" cigarettes were safer. The decision was overturned by the Illinois Supreme Court last year.

The filing peak occurred in 2003 when 105 cases came to Madison County. This year, only two have been filed, attributable to the passage of the Class Action Fairness Act in February 2005 which shifted litigation out of state courts and into federal courts.

Today, only 175 active class action cases remain in Madison County. Many sit idle.

So far this year, Madison County judges have disposed of 35 class action cases, largely due to two important decisions issued last year by the Illinois Supreme Court, "Avery and "Gridley."

For example:

  • "It is well settled that a class cannot be certified unless the named plaintiffs have a cause of action," Weber wrote in May citing Avery v. State Farm dismissing a case against National City Mortgage over a $20 fax fee class action case brought by the Lakin Law Firm.

    Donald and Patricia Agney had accused the lender of charging an unreasonable fee for faxes in refinancing their loan in 1999.

    Their existing loan had an interest rate of 9.5% and their newer loan through National City had a lower rate of 8.49%.

  • In June, Byron decertified a class action that he certified in 2004 against insurer GEICO, in obedience to last year's Illinois Supreme Court decision in Avery vs. State Farm.

    Plaintiffs Myron Billups and Patricia Singleton alleged five years ago that GEICO cheated them on total loss payouts for wrecked vehicles.

    "I don't think that ought to be the law but unfortunately I am not a Supreme Court justice," Byron said. "And I do follow our Supreme Court whether I agree with them or not."

    Lakin said GEICO purchased software knowing it would save millions. He said GEICO tried to dupe consumers.

    Byron told Lakin his firm prevailed in most class actions, but the Supreme Court drastically changed the concept of complex class actions.

    He told Lakin, "If you want that kind of action I think, move across to Missouri. Well, I don't know if Missouri is any better at this point but Pennsylvania, Maryland, New York, other places probably would do better.

  • Relying on "Avery" and "Gridley," Judge Weber turned a nationwide class action case filed in Madison County into an Illinois-only action in May.

    Weber amended the class certification order in Booher v. United Life Insurance signed by former judge Phillip Kardis in April 2003.

    Christopher Booher claims that United Life cheated him when he bought credit insurance on an auto loan at Four Flags Motors, by secretly kicking back a portion of the insurance payment to Four Flags.

    In his order Weber wrote, "Contrary to the position of the plaintiff, the court believes that the Supreme Court did modify Illinois class action law when it announced its Avery decision."

    "It cautioned the trial courts in class action cases from entertaining multi-state claims," Weber wrote.

    "In Gridley, the Supreme Court reversed a Fifth District Appellate Court order written by then Justice Maag remanding the case back to the trial court for further discovery on the certification issue."

    "Both Avery and Gridley appear to impose new and significant obstacles to certifying the class and then conducting discovery to limit the class and to class certification of multi-state class actions in general," Weber wrote.

    More impact

    The election of Lloyd Karmeier to the Illinois Supreme Court in 2004 also figures prominently in how Madison County's courthouse is being reshaped. Karmeier appointed Weber, a Republican, to an all-Democratic circuit bench last year.

    When he was first appointed, Weber had more than 50 cases assigned to him. Weber took over for retired Circuit Judge Phillip Kardis who retired in September 2005.

    Soon after he was on the job, plaintiff attorney's filed substitution of judge motions 32 times prompting Weber to rule that in class action cases, plaintiff's are allowed one substitution as a matter of right in an effort to put an end to lawyers finding more named plaintiffs for the purpose of getting an additional substitution.

    Circuit judges in Madison County agreed with Weber's order and on May 2, Callis ordered that class plaintiffs in cases filed in the Third Circuit are allowed only one substitution of judge as of right.

    In Illinois any party to a lawsuit can substitute a judge once without cause.

    The decisions

    The following Illinois Supreme Court decisions have factored in the disposal of more than 35 Madison County class actions:


    In August 2005, the Illinois Supreme Court threw out a billion dollar verdict ruling that a Williamson County Circuit Court erred in certifying a nationwide class, Avery v. State Farm.

    Avery alleged that State Farm breached its contracts with policy holders by repairing vehicles with inferior parts and it violated the Illinois Consumer Fraud Act by concealing that practice.

    In 1999, a jury had awarded the plaintiff $456 million on the contract claims. The judge, in a simultaneous trial, awarded $600 million in punitive damages and $130 million in disgorgement on the fraud claim.

    In 2001, the 5th Appellate Court disallowed the disgorgement, but otherwise affirmed, leaving State Farm liable for $1.056 billion.

    Because of different language in different policies, the circuit court erred in certifying a nationwide class on the contract claims.

    On the fraud claim, the Supreme Court ruled the circuit court erred again in certifying a nationwide class because there was only one plaintiff whose vehicle was assessed and repaired in Illinois.

    The individual testified, and according to the Supreme Court, "failed to establish causation or that he suffered actual damages, therefore there could be no class action on this count," according to a Supreme Court press release. The opinion was written by former Chief Justice McMorrow.

    According to the Supreme Court, the trial judge allowed a claim for breach of contract when there was no contract, allowed a fraud claim when there was no fraud, certified a class action when there was no class and awarded damages when there were no damages.

    In a 6-0 decision, the Illinois Supreme Court reversed lower court rulings and remanded a Louisiana man's case against State Farm Insurance back to Madison County with directions to dismiss the complaint based on forum non conveniens.

    "We find that the circuit court abused its discretion in denying State Farm's motion to dismiss based upon forum non conveniens," wrote Chief Justice Robert Thomas in November 2005.

    Christopher Gridley filed a class action complaint in Madison County on June 19, 2000, on behalf of himself and a proposed nationwide class against State Farm Mutual Automobile Insurance Company. Gridley's complaint alleged unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act in connection with State Farm's sale of salvage vehicles.

    A resident of Louisiana, Gridley filed suit as representative of a class of "all persons in the United States who purchased an automobile which was previously declared a 'total loss' by State Farm, and for which State Farm failed to obtain a salvage title."

    Gridley alleged that State Farm had a practice of obtaining "clean" titles on vehicles that it had previously declared "total losses" and that it marketed those vehicles at automobile auctions with clean titles.

    State Farm moved to dismiss the complaint based upon the doctrine of forum non conveniens arguing that Louisiana and not Illinois was the most convenient forum.

    However on June 1, 2001, Circuit Judge Philip Kardis denied the motion leading to an appeal to the Fifth District which remanded the cause for entry of a detailed discovery order that would produce information relevant to the issues raised in the forum non conveniens motions.

    "Balancing all the relevant factors, it is clear that those factors strongly favor dismissal in favor of a Louisiana forum with regard to the remaining unjust enrichment claim," Thomas wrote in the court's opinion.

    "Further, as the United States Supreme Court has recognized, requiring extensive investigation prior to deciding a forum non conveniens motion would defeat the purpose of the forum non conveniens motion."

    Former Appellate Court Justice Gordon E. Maag, who was not retained in 2004 and lost his race for the Illinois Supreme Court to Lloyd Karmeier in the same election, authored the decision remanding the case filed by Gridley to Madison County on State Farm's forum appeal.


    While Madison County judges have not cited the decimation of Price v. Philip Morris, as the basis for disposing class action suits, it remains powerful.

    In December 2005, the Illinois Supreme Court overturned the $10.1 billion bench verdict.

    In a 4-2 decision, the court relied on a section of the Illinois Consumer Fraud Act, which exempts conduct allowed by U.S. regulatory bodies.

    The court held that the Federal Trade Commission authorized tobacco companies to characterize cigarettes as "light" or "low tar and nicotine."

    Madison County Circuit Judge Nicholas Byron issued the verdict in 2003, citing the defendant duped smokers into believing light cigarettes were safer than regular ones.

    Byron called the conduct "outrageous and evil."

    The class action lawsuit was brought by lead plaintiff Sharon Price, an East Alton police dispatcher. She claimed she started smoking in 1966 and switched to Cambridge Lights in 1986.

    Plaintiffs presented evidence that "light" or "low tar" cigarettes promoted at that time were no safer than regular cigarettes and, in fact, could be more harmful. They also presented evidence that defendant was aware of this.

    The court awarded the estimated 1.14 million members of the plaintiff class compensatory and punitive damages, attorney fees, and prejudgment interest totaling $10.1 billion.

    In a dissenting opinion, Justice Charles Freeman wrote, "Today marks the second time in just six months that this court has completely reversed a multibillion dollar verdict in favor of a corporate defendant."

    "The manner in which these two, highly publicized cases have been decided by this court leads me to several troubling conclusions."

    "There is little doubt in my mind that these decisions will send a chill wind over consumer protection. That said, I am not blind to the very real problems that exist in the world of class action lawsuits."

    Ann Knef contributed to this report

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