Tillery maneuvers for retro Madison County Courts

Steve Korris May 10, 2007, 6:00am


Chief Judge Ann Callis thinks she should run the circuit court of Madison County.

Attorney Stephen Tillery of St. Louis has shown that he would like to run the circuit court of Madison County.

With bold moves in two old cases, Tillery seeks to turn back the clock to times when Madison County judges fulfilled every wish of class action attorneys.

Not only has Tillery revived his $10 billion claim against Philip Morris, but he continues seeking to wipe out the first reform Callis introduced as chief judge.

A year ago, Callis adopted a rule that only one plaintiff in a class action could exercise the automatic right to substitute a judge.

A Tillery plaintiff then moved to substitute a judge in Hubbert v. Dell, a case in which other plaintiffs previously substituted judges.

Tillery has already lost the case. Two years ago the Fifth District appellate court ruled that his plaintiffs had to arbitrate before they could sue Dell.

The Fifth District ordered the circuit court to dismiss the case, but that never happened.

Instead, Tillery chose to use the case as a vehicle to attack the rule Callis adopted.

He argues that the rule violates the Illinois Constitution.

By raising his challenge in a lost cause, he risked nothing and avoided publicity. Hardly anyone knew the Dell case remained open.

The case symbolizes the era Tillery seeks to restore – an era when a Madison County judge would admit a Washington Post article as evidence.

Tillery filed several class action complaints in 2002, alleging that computer makers exaggerated the benefits of their products.

Plaintiffs in the Dell case had bought computers online. The terms and conditions of the sale provided for binding arbitration.

Tillery argued that the arbitration clause was unconscionable. He argued that buyers did not clearly manifest their assent.

He offered as evidence a Washington Post article and a deposition from an unrelated case. Evidence also included letters from National Arbitration Forum employees to unrelated parties and NAF marketing documents.

Dell moved to enforce the arbitration clause. Dell also moved to strike the article, the deposition, the letters and the marketing

At a hearing before (now-retired) Circuit Judge Phillip Kardis, Tillery argued that arbitration was biased in Dell's favor.

Dell attorneys argued that in three years, five disputes went to arbitration and Dell lost three.

They argued that buyers could have learned more by clicking a blue hyperlink.

Kardis denied the motion to compel arbitration, finding that the terms and conditions were not part of the contract between Dell and its buyers.

He found that Dell should have displayed text on its website notifying buyers that they had bound themselves to arbitration.

He found that arbitration favored Dell "on an inordinate basis."

He denied the motion to strike Tillery's exhibits.

Dell appealed to the Fifth District in Mount Vernon.

In August 2005, three Fifth District judges reversed Kardis.

"Common sense dictates that because the plaintiffs were purchasing computers online, they were not novices when using computers," the opinion stated.

"A person using a computer quickly learns that more information is available by clicking on a blue hyperlink."

Justices also rejected a newspaper article as evidence.

"The Washington Post article was hearsay and was not admissible," the opinion stated.

They wrote that Kardis should have stricken the deposition from another case because Dell had no opportunity to cross examine the witness.

They rejected the NAF letters and documents as hearsay.

"The plaintiffs' arguments in the trial court and on appeal are couched in generalities," the justices wrote.

Tillery asked the Fifth District for a rehearing but he did not get it.

He petitioned the Illinois Supreme Court for review but he did not get it.

The Fifth District issued a mandate in March 2006, with directions to dismiss.

By then, Kardis had retired and the case had passed to Circuit Judge Don Weber.

A Tillery plaintiff moved for substitution and Weber granted it.

Under Illinois statute, any party can substitute a judge once without cause if the judge has not made a substantial ruling.

Chief Judge Edward Ferguson assigned the case to Circuit Judge Andy Matoesian.

After Callis replaced Ferguson as chief judge, she adopted a rule that a plaintiff's motion for substitution in a class action would be the only such motion allowed for the class.

Tillery plaintiff Elden Craft had already moved for substitution in the Dell case, and Matoesian granted it May 5, 2006.

Callis assigned the case to Circuit Judge Daniel Stack.

Nothing happened for nearly three months, so Dell moved to enforce the Fifth District mandate. Stack set a hearing Aug. 28, 2006.

At Stack's hearing, Tillery plaintiff Donald Braddy moved for substitution. Stack asked for briefs from both sides.

Aaron Zigler of Tillery's firm wrote to Callis the same day that he might find it necessary to challenge the constitutionality of the rule.

He wrote that it violated the Illinois Constitution's doctrine of separation of powers.

In a Sept. 15, 2006, brief, Tillery associate Stephen Swedlow of Chicago wrote that the rule could not apply because the case had not been certified as a class action.

Swedlow wrote that the case started five years ago and the rule could not apply retroactively.

He wrote that a different rule for class action plaintiffs robbed them of fundamental constitutional rights.

He wrote that the rule "drives a stake through the heart of the equal protection guarantee, and as a result it must be declared unconstitutional."

For Dell, Robert Bassett of Belleville wrote in an Oct. 4 brief that plaintiffs filed the motion to prevent the court from carrying out its mandate.

He called it an attempt to avoid enforcement of the agreement to arbitrate.

"This court does not have the authority to issue any rulings in this dispute other than dismissing or staying the case and compelling arbitration," Bassett wrote.

He wrote that the rule makes clear that class representatives cannot rotate in and out of position "to reap the potential benefits of unfettered judge shopping."

The rule applied to class actions filed in the court, he wrote.

"...[o]nce a case designated as a class action is filed in this court, then the rule applies to it."

Stack has not set a hearing on substitution.

If Tillery succeeds, the case may wind up with a judge who would dismiss it and then bring it back to life.

Circuit Judge Nicholas Byron accomplished that feat for Tillery at a hearing May 2.

Byron granted Tillery's request to ask the Fifth District if he still has jurisdiction over a class action against Philip Morris that he dismissed in December.

Byron awarded $10 billion to Tillery's class of light cigarette smokers in 2003, but the Supreme Courts of the state and the nation agreed that he exceeded his authority.

Byron dismissed the suit in obedience to a mandate of the Illinois Supreme Court, but at his hearing he elected to obey Tillery and disobey the Supreme Court.

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