MADISON - ST. CLAIR RECORD

Retired Madison County Circuit Judge Phillip Kardis would have applied laws of 18 states in a class action trial, but his successor Circuit Judge Don Weber admits he can't juggle like that.

Weber said at a May 4 hearing that he was inclined to hear claims of Illinois consumers only in a suit Christopher Booher filed against United Life Insurance in 2001.

Weber said he barely knows Illinois law.

Booher claims 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.

Kardis certified Booher to represent plaintiffs in Illinois and 17 other states.

Kardis retired before the case came to trial. All his cases passed to Weber.

After the hearing Weber said he felt he should follow Kardis' ruling unless there was a specific reason not to. He said, "The specific reason not to could be Avery."

United Life attorney James Garrison said, "The Avery court specifically says that in order to pursue a private cause of action, the circumstances related to the dispute occur primarily and substantially in Illinois."

He said plaintiff never showed a common question of fact or law among class members. He had no information about any similarity between Booher's claim and any other claim, he said.

"Astoundingly to me, Judge Kardis certified the case in the total absence of any evidence of similarity of claims," he said.

"We don't know anything about anybody other than Mr. Booher in regard to what communications they had which – you know, it is a misrepresentation case.

"We don't even know what Mr. Booher claims to have known at the time he entered into the transaction."

Garrison told Weber he did not have to give any deference to Kardis' decision. He said it was abundantly clear Kardis made a wrong decision.

Plaintiff attorney Dan Cohen of the Lakin Law Firm said, "We are simply asking that this court do what I think Judge Kardis indicated he could and would do – and that is apply the laws of the various states to the residents of those states."

He said, "We don't see anything in Avery that changes anything, and we don't see anything in Avery that by any means creates a bias against a multi-state class."

Weber said, "You want this court, for example, to apply the Maine Consumer Fraud Act against an Iowa corporation for acts that they do in Maine?"

Cohen said, "That is correct."

He said, "This case is not about oral misrepresentations. It varied. This is about uniform written misrepresentations."

Weber asked what would happen if Four Flags told Booher they would keep part of the money and Booher said that was fine.

Cohen said if that happened, Booher might not be an adequate class representative.

Weber said the motion to decertify presented a yes or no question. He asked the attorneys if they thought he had discretion to limit the class to Illinois residents.

Cohen told Weber he had the power to sustain Kardis' order, broaden it or narrow it.

Garrison told Weber he could decertify completely or change the order.

Weber said the defense argued that an Illinois court violates due process of the U.S. Constitution when it binds citizens of other states.

Cohen said, "In a multi-state scenario in which each class member is getting to have their own state's law applied, but that state law is being applied in an Illinois court, I don't believe that Illinois law, Avery or any decision of any court anywhere holds that that would be a deprivation of due process."

Weber said, "What you want me to say is that I think it's going to be fine for Don Weber sitting here in Madison County, Illinois, who barely knows Illinois law, to apply the law of 50 other states."

Garrison said, "States enact statutes that are applicable to their citizens for their own reasons, and who is Illinois to step in and make separate judgments in regard to what those decisions were made, perhaps in Maine or Iowa or California?"

Weber asked how many Illinois plaintiffs there would be. Garrison said, "I can't tell you sitting here right now."

Weber said, "Would it be over a thousand? Would it be bigger than a bread basket?"

Garrison said, "I am just very reluctant to say without having checked." He said it would depend on the time period.

Weber said, "Wouldn't the time period be the statute of limitations?"

Garrison said Kardis established a 10-year period, going back to 1991.

Weber gave Garrison a week to estimate the number of Illinois class members.

Weber said, "I might not have done some things Judge Kardis did but I can't say that he was totally out of line doing it, and I'm going to give him a certain amount of deference on that."

"My inclination also is to limit this to Illinois," he said.

He said he would issue a written order.

Earlier that day, Weber had heard a motion to dismiss a proposed Lakin Law Firm class action, Jeffrey Hicks vs. UPS.

Hicks claims he paid $14.80 for overnight package delivery but UPS did not deliver overnight. Hicks claims damages of $5.30, the difference between the overnight charge and the regular charge.

Weber said that according to UPS, Hicks could have asked for a refund of the full amount.

Lakin attorney Gerald Waters said, "Only if we comply with the hoops they make you jump through."

Weber said, "Don't they want to give you more? That's why this is counter-intuitive."

Walters, speaking for Hicks, said, "I was damaged top the extent of $5.30."

Weber said he would issue a written order.