Proposed Rule 225: A new David & Goliath

Who will you find to represent the consumer with a claim of minimal value?

What recourse does a consumer have when fighting corporate giants?

Class actions ensure that the “little guy” has access to the courts. Indeed, class actions provide one of the only legal remedies for the small claimant to bring his case against large and powerful corporate defendants. Successful class actions provide immediate relief to previously wronged consumers and also act as a deterrent of future, improper conduct.

Recognizing the fact that they have been caught stealing from consumers or otherwise defrauding them, business interests have pooled their resources and proposed new Illinois Supreme Court Rule 225.

These business interests include the Illinois Chamber of Commerce, Illinois Business Roundtable, Illinois Manufacturers Association and several corporations. Rule 225’s supporters claim it will provide guidelines for Illinois courts and curb perceived abuses of the class action process.

In reality, the proposed Rule will unfairly protect businesses from their misdeeds. Under the veil of Rule 225, corporations will no longer be held accountable to an entire class of wronged consumers.

Rule 225 was designed to impose unnecessary hurdles and technicalities in an effort to eliminate class certifications – whether meritorious or not. Rather than giving “guidance” to Illinois courts, Rule 225 tilts the playing field in favor of defendants.

For example, under Rule 225, plaintiffs’ counsel will be not be able to conduct any discovery into the real merits of the claim. The Court is required to bar any discovery related to the facts of the case.

However, proposed Rule 225 then requires plaintiffs’ counsel to propose a complex trial plan and respond to pending motions. It is unrealistic to believe that such a trial plan could be offered without any information about the size of the class, the frequency of the corporate misconduct or the manageability of the proof.

Nowhere in Illinois jurisprudence would a trial court require a plaintiff to offer this kind of proof without discovery on the merits of the claim. Rule 225 ties the hands of plaintiffs who cannot otherwise throw a stone at Goliath.

To curry support, proponents of Proposed Rule 225 claim that corporate defendants settle claims because they simply can’t risk trial. That is, they can’t trust you, the jurors – people in our community - to determine whether the case has merit or not. This notion is simply untrue.

The only two class action cases which have been tried in recent memory resulted in defendant verdicts. If defendants are settling non-meritorious case the blame lies with the defendants who are too weak to risk exposure of their corporate greed.

In addition to the legal hurdles which Rule 225 poses for plaintiff’s counsel, this Rule actually eliminates the discretion of the trial court – judges elected by you - with requirements that significantly favor defendants. This Rule is even more onerous than the Rule which all defendants live by in a federal court, which are often referred to as the “gold standard” by critics of Illinois class action management.

On Jan. 24, 2005, the Illinois Supreme Court Rules Committee considered the proposal. The Illinois State Bar Association, composed of lawyers throughout the state of Illinois, voiced its opposition to the business-sponsored proposal. Notably, the Illinois State Bar Association is a voluntary association of legal professionals and includes members from both the defense bar and the plaintiff bar.

Big business claimed, however, that proponents were “merely trying to limit frivolous lawsuits that don't involve Illinois law or Illinois residents.”

Rule 225 is not designed to separate those cases considered by corporate America to be frivolous. Instead, it is designed to make it more difficult and more expensive for every class action to proceed – even those with merit. The Rule imposes hurdles for plaintiffs’ counsel and technicalities for the presiding judge.

Meanwhile, defendants gain tactical advantages and hyper-technical reasons to appeal. This Rule will actually foster more appeals, keeping our Appellate Courts busy in the future.

As a result of Rule 225’s unnecessary and biased hurdles, small claimants will be left without recourse and without justice. By rejecting Proposed Rule 225, our Supreme Court will recognize that victims of corporate wrongdoing are entitled to their day in Court.

Access to the civil justice system should not be hampered by obstacles imposed the wrongdoers themselves.