Three months after Madison County Circuit Judge David Hylla announced a ruling in a class action against Cingular Wireless and told attorneys to write the ruling as an order, they haven't written it.
Instead, plaintiff attorneys at the Lakin Law Firm and defense attorneys at Thompson Coburn have accused each other of distorting Hylla's words.
Lakin lawyers think Hylla upheld an arbitrator's award, and Thompson Coburn lawyers think he retained authority to review the award.
Judges at hearings often direct attorneys to write orders, but normally both winner and loser understand what the order should say.
This time they don't have a clue.
The Lakins sued Cingular in 2002 on behalf of Donna Kinkel, claiming Cingular overcharged her and a class of similar customers.
Cingular invoked an arbitration clause in Kinkel's contract, and the Illinois Supreme Court instructed Hylla to refer the dispute to an arbitrator.
The arbitrator stunned Cingular, however, by awarding class arbitration far beyond the limits that Cingular attorneys thought the Supreme Court described.
Cingular moved to vacate the award and brought the motion to a hearing Feb. 7.
Hylla opened the hearing by asking Cingular attorney Roman Wuller, "This case centers on the issue of waiver of class arbitration, right?"
"The Illinois Supreme Court did find that with respect to the Cingular contracts governed by Illinois law that had the pre-July 2003 arbitration provision, that the provision in there that said no class certification was unenforceable," Wuller said.
He said plaintiffs asked the arbitrator to consider contracts with a post-July 2003 provision, and the arbitrator suggested he could.
For the later contracts, he said, the Supreme Court did not find that class wide prohibition was unenforceable.
He said plaintiffs wanted to certify a nationwide class, though the Supreme Court did not address contracts governed by laws of other states.
"An arbitrator has the whole universe to consider when he starts out, and he has at this point just said that class arbitration is possible," Hylla said.
Wuller said including contracts from other states and post-July 2003 contracts in Illinois would ignore or strike down waiver provisions.
"It is the plaintiff's position that that hasn't been done yet," Hylla said.
Wuller said, "The problem with that argument is, that assumes then that the arbitrator has jurisdiction to make those findings."
Hylla said, "An arbitrator has to, by the nature of his job, interpret those provisions."
Wuller said an arbitrator can't ignore or strike down provisions.
"That is why we all went all the way up to the Illinois Supreme Court," he said, "to get a ruling on those."
Hylla said, "In some cases, possibly this one, an arbitrator's interpretation of a clause could become very close to ignoring that clause or striking it down."
Wuller said the provision in this instance was unambiguous.
"The Illinois Supreme Court made its ruling and it was careful to limit its ruling the way it did," he said. "Clearly, they did not go outside the state of Illinois."
Hylla said, "When I sent this to the arbitrator as I was directed by the Supreme Court, what I envisioned was that the arbitrator would then decide whether these disputes should be arbitrated on an individual basis or a class wide basis."
He asked Wuller what the award should have entailed.
Wuller said, "We don't dispute that he has the authority to determine whether this should be a simple arbitration as to Donna Kinkel's claim or a class wide arbitration as to Illinois contracts that have the same arbitration provision as Ms. Kinkel."
He said the arbitrator wrote that he had jurisdiction to consider the plaintiff's requests.
"Their requests, to me, then puts into issue things that he does not have jurisdiction, and we want to make sure that our position is protected here, that we do not believe he has jurisdiction," Wuller said.
Hylla said, "But he didn't say that. He didn't say he was going to consider a nationwide class or that he was going to consider post-July 2003 contracts."
Wuller quoted the award: "I also find that respondent's argument that this decision must be limited based upon a purported limited arbitrator jurisdiction lacks any judicial or arbitral authority and must be rejected."
Hylla said, "He has to look outside of this little box to see if that waiver clause even exists in these other cases before he can eliminate them from the class, doesn't he?"
Wuller said, "If you were to enter a ruling that says he can look outside as long as he does not strike down any contracts that had that class wide prohibition, then that ruling would be fine with us."
For Kinkel, Gerald Walters of the Lakin firm said Hylla's standard of review was higher than an appellate court.
Hylla said, "Before you get to standard of review, I think the problem is whether there is a case in controversy before me yet."
"As I see it, he hasn't done anything that I think could be a final and appealable order, for lack of better terminology," Hylla said.
Walters said, "They are asking for an advisory opinion."
His associate Daniel Cohen said the only opportunity for judicial review should be after a final award.
Hylla told Wuller, "You may very well be able to stop an inclusion of any cases outside of Illinois or outside of pre-July 2003 cases, but I can't tell you that yet because I haven't seen all those contracts and I doubt the arbitrator has."
Wuller said, "The arbitrator has no authority whatsoever to make that determination, yet that is what they have asked him and he in that last sentence says he has jurisdiction to do that."
Hylla said, "I don't read that in that last sentence. I mean he doesn't say that explicitly."
"At this stage of the proceedings before the arbitrator, I don't believe there is any need for me to step in yet, okay, and that is my ruling," Hylla said.
"If somebody wants to commit that to writing before you leave today, I'll sign an order if you think that's necessary."
Walters said, "As far as we are concerned the order should be, motion denied, award confirmed."
Wuller disagreed. "I think it has to reflect your finding that in
fact you find that our position at this point is premature," he said.
"Otherwise it looks like you overruled our objection, and you have not done that," he said.
Hylla said, "I agree. You draft the order. You guys review it. If you don't like his order, give me another proposed order."
Wuller drafted an order declaring that Hylla refused to resolve Cingular's objection.
Walters didn't like Wuller's order, so he drafted one that confirmed the award and declared that the arbitrator did not exceed his jurisdiction.
Hylla hasn't adopted either one.
Walters moved April 21 to strike Cingular's request for review of the award.
The motion was pending at press time.