MOUNT VERNON – Madison County Circuit Judge Nicholas Byron can proceed with a 48-state class action against telephone company Sprint, the Fifth District appellate court has decided.

The Fifth District sent its mandate to Madison County March 18.

Though Illinois judges can't apply Illinois consumer fraud law nationwide, the Fifth District held that Byron can apply Kansas law nationwide.

Sprint has headquarters in Kansas and its contracts state that Kansas law will govern disputes.

Byron certified a class action in May 2005, on a claim of the Lakin Law Firm that Sprint imposed an improper fee on Jessica Hall when she terminated her cellular phone contract.

Sprint petitioned the Fifth District for leave to appeal, and in September 2005 the Fifth District denied the petition.

Sprint petitioned the Illinois Supreme Court for leave to appeal, and in January 2006 the Supreme Court ordered the Fifth District to grant an appeal.

The Supreme Court directed the Fifth District to review Sprint in light of Avery v. State Farm, a decision from 2005 that knocked the props out from under national class actions in Illinois.

Upon review in light of Avery, Fifth District Justices Bruce Stewart, Melissa Chapman and James Donovan agreed that Avery didn't matter.

They viewed Sprint in light of a 1981 Illinois Supreme Court decision in Miner v. Gillette, a class action over butane lighters.

In Miner, Stewart wrote, "The Illinois Supreme Court allowed the Illinois plaintiff to maintain a nationwide class action in Illinois even though the defendant was a Delaware corporation with its headquarters in Massachusetts."

"…[R]esponses to the ad in question were directed to Minnesota; no aspect of the promotion took place in Illinois regarding non-Illinois residents.

"…[U]nfulfilled requests came from persons in every state of the United States, the District of Columbia, Puerto Rico, and Canada.

"…[O]nly 12,000 of the 180,000 unfulfilled requests came from persons in Illinois.

"We will not presume that Miner has been overruled, absent a clear statement to that effect by the Illinois Supreme Court, and nothing in Avery or Gridley amounts to that clear statement.

"If the early termination fee is an illegal penalty, then Sprint has no right to charge or collect it and should pay it back."

Hall signed a contract for two cell phone numbers at Radio Shack in Granite City in June 2003.

In October 2003, Sprint cut off her service for nonpayment.

In December 2003, at a Sprint PCS store in Fairview Heights, she paid under protest the account balance of $265.61 plus $150 for early termination.

The Lakin firm sued Sprint on her behalf in February 2004, claiming breach of contract, statutory fraud, unjust enrichment and relief from unlawful penalties.

Stewart wrote, "The only issue in this case is the validity of the early termination fee, and by the parties' own choice, that issue is governed by Kansas law.

"The fact that Kansas law might not otherwise apply is irrelevant, because the parties chose to apply Kansas law."

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