Wood River attorney Peter Maag seeks preliminary approval of a class action settlement in a 2015 lawsuit involving a disputed $1 vendor processing fee for Firearm Owner’s Identification (FOID) card applications.
Maag filed the motion on Aug. 6 on behalf of plaintiff Gary Patrick Sterr and a class of FOID card owners. The motion did not contain specific details about the proposed settlement agreement, but said class members would receive a “substantial benefit.”
Maag seeks an order certifying the class for settlement purposes as “persons who applied for a FOID card from March 15, 2015 through and including the date of final judgment and paid a fee in excess of $10 when applying for said FOID card.”
He also seeks an order appointing Sterr as class representative and himself along with Thomas Maag as class counsel. He asks the court to approve the notice plan, establish a deadline and schedule for filing documents relating to the settlement agreement and set a date for the final approval hearing.
Maag wrote that “in order to preliminarily approved a class action settlement, the circuit court must decide if it should preliminarily approve certification of the settlement class to allow for the notification of absent class members of their rights under the settlement agreement.”
Maag argues that the case is certifiable as a class action for settlement purposes because the class is so large that joinder of all members is impracticable, there are questions of law common to the class and the representative and attorneys will fairly and adequately protect the interests of the class.
“These proposed payments and this settlement are fair and adequate when considering the facts and circumstances of the case and the value of the prospective relief sought,” Maag wrote.
Maag filed the suit in Madison County Circuit Court on Oct. 15, 2015, for Sterr and “all persons who applied for a FOID card from March 15, 2015, through and including the date of final judgment and paid a fee in excess of $10.00 when applying for said FOID card.”
In the complaint, Maag wrote that Sterr filed an application for a FOID card on Oct. 6, 2015, and was charged the extra dollar as a convenience fee through the Illinois E-pay program for processing applications online. He argues that statute 430 ILCS 65/5 expressly states that the FOID fee is $10.
By charging an additional $1, he claims the state is unilaterally imposing a 10 percent surcharge on FOID cards without statutory authority.
He further claims it is impossible to get a FOID card without paying the extra fee on top of the $10 mandatory cost (except for certain members of the military who are exempt all together) because the Firearms Services Bureau stopped accepting paper applications that allowed people to mail $10 checks or money orders.
"Defendants have charged a minimum of ten thousand people, and possibly substantially more, well into the hundreds of thousands or millions of class members," Maag wrote.
For example, he wrote that in 2011, the state received 321,000 FOID applications.
Maag notes that in order to lawfully possess a firearm in Illinois, "it is generally required to have in a person's possession a currently valid" FOID card.
In June 2017, Ruth granted class certification after concluding that the prerequisites for maintenance of a class action are met and certification is appropriate for the “fair and efficient adjudication of the controversy.”
Ruth later granted Maag’s motion to amend the complaint and add a request for injunctive relief. Maag seeks to bar the “defendant from charging any fee, for a FOID card application or renewal, over and above the total of $10.00 allowed by statute, unless defendant offers one or more reasonable mechanisms for the applicant to obtain a FOID card with only a $10 payment, without payment of additional fees and costs.”
In their objection to the motion for leave to amend the complaint, defendants Chief Firearm Services Bureau Gregory Hacker, Treasurer Michael Frerichs and Attorney General Kwame Raoul argued that an amended complaint would require them to file new summary judgment requests to address the new form of relief. Their previous summary judgment requests were supposed to be heard in March, but nothing further has been entered on the docket.
While the defendants’ summary judgment requests were filed in November, Maag’s summary judgment request as to the unlawfulness of the challenged FOID card fee has been pending for more than three years. Maag’s motion was filed in October 2017 and was taken under advisement in January 2019.
The defendants allege that adding injunctive relief would prejudice the parties and delay resolution of the proceedings.
“If plaintiff were allowed leave to amend, then this case starts from the beginning - with defendants being given the opportunity to move to dismiss, challenge class certification as to the new forms of relief, engage in any discovery relevant to the new allegations, and refile for summary judgment with the latest claim in mind.
The defendants argue that the request should be denied because the plaintiff has failed to establish facts supporting any cause of action, and the requested amendment “does not cure that deficiency.”
“Furthermore, the addition of injunctive relief, at this late state of the litigation, would prejudice defendants and significantly delay the proceedings.
“Plaintiff had multiple opportunities to amend at much earlier stages of the litigation, and does not explain why he choose (sic) to amend at this late stage,” the motion states.
Madison County Circuit Court case number 15-L-1337