                                       2020 IL 124671



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS




                                    (Docket No. 124671)

     CHANDRA JOINER et al., Appellants, v. SVM MANAGEMENT, LLC, Appellee.


                              Opinion filed February 21, 2020.



        JUSTICE GARMAN delivered the judgment of the court, with opinion.

        Chief Justice Burke and Justices Thomas, Kilbride, Karmeier, Theis, and
     Neville concurred in the judgment and opinion.



                                         OPINION

¶1       Plaintiffs Chandra Joiner and William Blackmond rented an apartment from
     defendant SVM Management, LLC. They paid a security deposit to defendant to
     secure against potential unpaid rent or other damages. After they moved out,
     defendant returned their security deposit but failed to pay interest on that deposit,
     as required by the Security Deposit Interest Act (Deposit Act) (765 ILCS 715/0.01
     et seq. (West 2016)). Plaintiffs brought two class-action claims and an individual
     claim but did not file a class-certification motion with their complaint. Defendant
     responded by tendering plaintiffs’ requested damages and attorney fees on one
     count and later moving to dismiss the other two. Plaintiffs refused that tender, and
     defendant later argued that its tender made that cause of action moot pursuant to
     our decisions in Barber v. American Airlines, Inc., 241 Ill. 2d 450 (2011), and
     Ballard RN Center, Inc. v. Kohll’s Pharmacy & Homecare, Inc., 2015 IL 118644.
     Plaintiffs ask us to revisit those decisions in light of evolving federal precedent and
     the United States Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 577
     U.S. ___, 136 S. Ct. 663 (2016).


¶2                                        BACKGROUND

¶3       Plaintiffs rented an apartment in a large residential apartment complex from
     defendant with a lease term beginning on October 1, 2014. They entered into a one-
     year written lease and gave defendant a security deposit of $1290. The parties later
     extended that lease for a second year before plaintiffs moved out on September 30,
     2016. On or about October 11, 2016, defendant returned plaintiffs’ full security
     deposit. Defendant did not, however, pay security interest on that deposit at any
     time.

¶4       Soon after, plaintiffs brought a three-count complaint in the circuit court of
     Cook County. In count I, they alleged, on behalf of themselves and others similarly
     situated (Class A), that defendant violated the Deposit Act by failing to pay interest
     on its tenants’ security deposits. In count II, they alleged, on behalf of themselves
     and others similarly situated (Class B), that defendant violated the Uniform
     Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2016)) by way of
     various allegedly unlawful lease and rider provisions. 1 Finally, in count III, they
     alleged, individually, that defendant violated the Rental Property Utility Service
     Act (765 ILCS 735/0.01 et seq. (West 2016)) by failing to provide the required


         1
           Plaintiffs’ count II in the first complaint was somewhat ambiguously labeled. It cited the
     Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2016)) and appeared under
     a heading referring to the “Uniform Trade Practices Act,” but the text adjacent to the citation
     indicated the claim was brought under the “Illinois Consumer Fraud and Deceptive Practices Act.”
     See also 815 ILCS 505/1 et seq. (West 2016) (Consumer Fraud and Deceptive Business Practices
     Act).




                                                  -2-
     notices or disclosures relating to plaintiffs’ payment of a common-area utility,
     namely that one or more parking lot lights were connected to plaintiffs’ electrical
     meter. Attached to the complaint were the lease and five riders.

¶5       Defendant moved for an extension of time to answer or otherwise plead, which
     the circuit court granted. Before that extension expired and before defendant
     answered or pled, plaintiffs propounded written discovery and noticed a deposition.
     Defendant moved to stay discovery and, at the same time but in a separate motion,
     to dismiss counts I and II of the complaint. Defendant moved to dismiss count I
     pursuant to this court’s decision in Barber, 241 Ill. 2d 450, arguing that it “made a
     full and unconditional tender of all sums due to Plaintiffs under Count I.” It moved
     to dismiss count II under section 2-615 of the Code of Civil Procedure (Code) (735
     ILCS 5/2-615 (West 2016)), arguing that plaintiffs failed to state a cause of action
     under the Uniform Deceptive Trade Practices Act. The motion to dismiss did not
     attack nor address count III. Plaintiffs responded, arguing, as they do here, that
     Barber and Ballard were no longer valid law and, even if they were valid, that
     defendant’s tender was insufficient. They did not address the arguments regarding
     count II and instead noted that they would amend their complaint. Plaintiffs also
     opposed defendant’s motion to stay discovery.

¶6       The court granted plaintiffs leave to amend count II of their complaint and
     stayed discovery pending the hearing on defendant’s motion to dismiss count I.
     Plaintiffs amended count II of their complaint to allege violations of the Consumer
     Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2016)).
     They did not attach the lease, the riders, or any other exhibit to the amended
     complaint.

¶7       At the hearing on the motions to dismiss and to stay discovery, defense counsel
     argued for a stay on the counts that he alleged had not been adequately pled. He
     admitted that, “with respect to Count III, it states a cause of action, we can do
     discovery on Count III.” The court quashed a subpoena to a third party as overbroad
     and stayed discovery “except for any discovery that may be related to class
     certification.” It then took the motion to dismiss under advisement pending an oral
     ruling eight days later and stayed all discovery until that date. In its oral ruling, the
     court dismissed count I, finding that it was bound by this court’s precedents in
     Barber and Ballard and that defendant made an adequate tender. Regarding the




                                               -3-
       attorney fees and the stay order, the court stated that it would “keep everything in
       place until [it] rule[d] on the [plaintiffs’ motion for Rule 308(a) certification (Ill. S.
       Ct. R. 308(a) (eff. Jan. 1, 2015))].”

¶8         The Rule 308 motion was continued to the next status hearing, as was the
       discovery stay, over plaintiffs’ objection. The court’s order also noted that it would
       address the discovery stay and the disposition of the tender monies and potential
       attorney fees related to count I at the status hearing. It further noted that nothing in
       that or any previous order was “intended by the court or Plaintiffs as a waiver of
       Plaintiffs’ appeal rights or rights to the tender monies.”

¶9         Defendant moved to dismiss the amended complaint generally and count II
       specifically. It alleged that, in that amended complaint, plaintiffs referred to three
       documents—a security deposit receipt, a lease, and a lease extension—but failed to
       attach those documents. It argued that the court should strike plaintiffs’ amended
       complaint for failing to attach its exhibits. It also alleged that plaintiffs failed to
       plead a cause of action in count II. The court denied the motion for Rule 308
       certification and, noting that plaintiffs elected to stand on their pleadings, set a
       hearing date for the second motion to dismiss.

¶ 10      The day before the hearing on the second motion to dismiss, plaintiffs filed a
       motion for presentment of supplemental authority or for reconsideration. They
       argued, as they do to this court, that the federal Court of Appeals for the Seventh
       Circuit and the United States Supreme Court had reversed the decision and rationale
       on which this court’s decisions in Barber and Ballard were based. They argued that
       “nearly every state in the country” embraced this change in the law.

¶ 11       At the hearing, the court dismissed the first amended complaint as deficient for
       lacking the written instruments on which the claims were founded pursuant to
       section 2-606 of the Code. 735 ILCS 5/2-606 (West 2016). It also dismissed count
       II for failing to state a claim for violation of the Consumer Fraud and Deceptive
       Business Practices Act. The motion for reconsideration was set for hearing and later
       denied. Plaintiffs elected to stand on their pleadings, and the court dismissed the
       entire cause with prejudice, making it final and appealable.

¶ 12       Before the appellate court, plaintiffs argued, like they do here, that our decision
       in Barber was no longer good law in light of Campbell-Ewald and, if Barber was




                                                 -4-
       still good law, that the circuit court erred in holding that Barber permitted dismissal
       of all counts when defendant only tendered on one count. They also argued that the
       circuit court erred by preventing plaintiffs from conducting discovery on the basis
       of defendant’s tender and that it erred in dismissing the remaining causes of action.

¶ 13       The appellate court found that defendant made a valid tender before noting that
       only we can overturn this court’s precedent. 2019 IL App (1st) 172336-U, ¶ 28.
       Therefore, it held, Barber was still good law in Illinois, and “the circuit court
       properly dismissed Count I as moot.” Id. ¶ 30. It next held that the circuit court did
       not abuse its discretion in staying discovery. Id. ¶ 35. It examined the sufficiency
       of the pleadings regarding count II, noted that plaintiffs did not argue for reversal
       of the circuit court’s section 2-615 dismissal for failure to state a claim, and
       affirmed dismissal. Finally, it found that count III was not based on a written
       instrument, such that the claim was insufficient without the instrument attached,
       and reinstated count III. Id. ¶ 49. We granted plaintiffs leave to appeal. Ill. S. Ct. R.
       315 (eff. July 1, 2018).


¶ 14                                        ANALYSIS

¶ 15       Although plaintiffs use some of the verbatim arguments they used in support of
       the prevention of discovery issue below, before this court they frame their argument
       as two issues instead of four: that Barber is no longer good law and that the circuit
       court erred in dismissing all counts based on defendant’s tender as to only the first
       count. We agree that, to decide this case, we must reexamine Barber and Ballard
       in light of the approach now used by the Seventh Circuit and the United States
       Supreme Court.

¶ 16       We disagree, however, that the circuit court dismissed all counts based on the
       tender. Rather, only count I was dismissed on the tender. In a separate order, count
       II was dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West
       2016)) for failing to state a claim, and the entire first amended complaint was
       dismissed pursuant to section 2-606 of the Code (id. § 2-606) for failing to attach
       the written document on which the claims were based. Plaintiffs argued below that
       courts were to construe pleadings liberally, that the claims were statutory and thus
       not based on a written instrument, that the exhibits had been attached to the original
       complaint, and thus that the circuit court’s application of section 2-606 was in error.



                                                 -5-
       Their only argument regarding the substance of count II was four words: “the
       pleadings were specific.”

¶ 17       The appellate court, noting plaintiffs’ failure to develop argument on the matter,
       nonetheless assessed the merits of the argument and affirmed the circuit court in
       dismissing count II. 2019 IL App (1st) 172336-U, ¶ 42. The appellate court found
       that count III was not based on a written instrument and, noting the defendant had
       so conceded in the circuit court, held that it adequately pled a cause of action. Id.
       ¶ 49.

¶ 18        To the extent plaintiffs, by way of an unsupported and undeveloped issue
       statement, argue that dismissal of counts II and III was premised on defendant’s
       tender, the circuit court’s orders belie that argument. Plaintiffs do not explicitly
       argue that the appellate court erred in affirming the circuit court’s dismissal of count
       II. They do not argue that count II was meritorious or sufficiently pled. At no point
       do they argue that discovery would have allowed them to buttress the substance of
       count II. They do not address the circuit court’s section 2-615 dismissal or the
       appellate court’s finding that “plaintiffs failed to allege with the required
       particularity and specificity how a purported clause in a lease rider that both parties
       agreed to was illegal, offended public policy, was oppressive[,] or caused
       substantial injury to consumers.” Id. ¶ 42.

¶ 19       Rather, they argue that the discovery stay prevented them from moving “for
       class certification in the first place, even if only on the non-tendered counts.” They
       do not argue, however, that without discovery they were unable to “identif[y]
       defendant, the applicable date or dates, and the general outline of plaintiff’s class
       action allegations.” Ballard, 2015 IL 118644, ¶ 38. That information, which we
       held was sufficient to sustain a finding that a class-certification motion was not a
       “ ‘contentless “shell” motion’ or otherwise frivolous pleading” (id.), is readily
       apparent from plaintiffs’ complaint. Discovery was not necessary for plaintiffs to
       move for class certification.

¶ 20       Plaintiffs’ request for relief asks us to “reverse the judgment of the Circuit Court
       of Cook County and this [sic] First Appellate District in its entirety.” To the extent
       plaintiffs seek review of the dismissal of count II, which was dismissed as failing
       to state a cause of action, we find that they forfeited such an argument. To the extent
       they request that we reverse the appellate court’s reinstatement of count III—which



                                                -6-
       reinstatement was in their favor—they have not argued that issue either, and we
       decline to consider it.

¶ 21      Having addressed the issues that are not before us, we turn to those that were
       argued and that we consider. Count I was dismissed under section 2-615 of the
       Code. 735 ILCS 5/2-615 (West 2016). Our review, therefore, is de novo. Kean v.
       Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009).


¶ 22                                     The Barber Rule

¶ 23        This court has long held that, when a defendant tenders the full amount
       requested by a plaintiff purporting to represent a class before the named plaintiff
       files a class-certification motion, the plaintiff’s claim becomes moot. Barber, 241
       Ill. 2d at 456-57; Wheatley v. Board of Education of Township High School District
       205, 99 Ill. 2d 481, 485-86 (1984). Plaintiffs ask us to revisit that rule.

¶ 24       In Wheatley, two plaintiffs brought a purported class-action complaint against
       a school board after it discharged them and 57 other teachers. Wheatley, 99 Ill. 2d
       at 483. The school board offered, and the named plaintiffs accepted, reemployment.
       Id. at 483-84. The board then argued that the action should have been “dismissed
       because the interests of the named representative plaintiffs are moot.” Id. at 484.
       The court noted that “[a]n issue is moot if no actual controversy exists or where
       events occur which make it impossible for the court to grant effectual relief.” Id. at
       484-85. The court held that, by accepting reemployment, the named plaintiffs
       received the relief they demanded. Id. at 485. Under those circumstances, it held, it
       was “clear that the interests of the named representative plaintiffs are moot because
       there is no longer a controversy between them and the Board.” Id. “Because the
       claims of the named representatives here have been resolved, they are not proper
       parties who would fairly and adequately protect the interest of the class they purport
       to represent.” Id. at 486. The court then reversed the appellate court and affirmed
       the circuit court’s dismissal of the complaint. Id. at 487. That decision was based
       on the principle of mootness, not on the holdings of any other courts.

¶ 25       We considered a similar situation in Barber, 241 Ill. 2d 450. In that case, the
       plaintiff filed a purported class action against American Airlines for breach of
       contract. Id. at 452. She alleged that she purchased a plane ticket and was charged




                                               -7-
       $40 to check two bags. Id. Her flight was cancelled, but the $40 baggage fee was
       not refunded. Id. The plaintiff filed her suit a few days later, and the defendant
       contacted the plaintiff’s counsel and offered to refund the $40. Id. at 453. It also
       stated that it would consider paying the plaintiff’s court costs. Id. When counsel
       declined, the defendant refunded the $40 to the plaintiff’s credit card, which she
       had used to pay the fee. Id. The plaintiff had not filed a class-certification motion.
       Id. at 454. The defendant moved to dismiss on the grounds that the claim was
       meritless and that the complaint was moot. Id. The circuit court granted the motion,
       and the appellate court reversed. Id.

¶ 26       We reaffirmed Wheatley (id. at 459 n.1), noting that “Wheatley teaches that the
       important consideration in determining whether a named representative’s claim is
       moot is whether that representative filed a motion for class certification prior to the
       time when the defendant made its tender” (id. at 456 (citing Wheatley, 99 Ill. 2d at
       485-86)). “Where the named representative has done so, and the motion is thus
       pending at the time the tender is made, the case is not moot, and the circuit court
       should hear and decide the motion for class certification before deciding whether
       the case is mooted by the tender.” Id. at 456-57. We reasoned that, when such a
       motion has been filed and is pending, the interests of the other class members are
       before the court. Id. at 457. We then noted that “[t]he situation is different where
       the tender is made before the filing of a motion for class certification” because “the
       interests of the other class members are not before the court.” (Emphasis in
       original.) Id. Before rejecting the “ ‘pick off’ exception” that had developed in the
       appellate court (id. at 459), we held that “[u]nder Wheatley, therefore, [plaintiff’s]
       claim was moot, and the circuit court correctly dismissed it” (id. at 457). Although
       we cited some decisions of the Seventh Circuit, which at the time held consistently
       with this court’s decision in Wheatley, our decision was based on the reasoning and
       holding of Wheatley.

¶ 27       In Ballard, the plaintiff filed a three-count complaint purporting to represent a
       class estimated at over 40 people. Ballard, 2015 IL 118644, ¶ 5. Concurrently with
       its complaint, the plaintiff filed a motion for class certification. Id. ¶ 8. The
       defendant in that case tendered a check to the plaintiff three different times
       representing an unconditional offer of payment exceeding the total recoverable
       under count I of the complaint, each of which the plaintiff rejected, returning the
       checks. Id. ¶ 11. The circuit court denied the defendant’s motion for summary




                                                -8-
       judgment on count I, reasoning that the defendant had not tendered the claim before
       the plaintiff filed its motion for class certification and that the claim was therefore
       not moot under Barber. Id. ¶ 17. The appellate court reversed, holding that a motion
       for class certification “ ‘must contain sufficient factual allegations so that it does,
       in fact, bring the interests of the other class members before the court.’ ” Id. ¶ 21
       (quoting Ballard RN Center, Inc. v. Kohll’s Pharmacy & Homecare, 2014 IL App
       (1st) 131543, ¶ 57).

¶ 28       After reciting the facts and the parties’ arguments, we examined our decision in
       Barber. Id. ¶¶ 29-33. We held that, “[h]aving carefully reviewed Barber, it is clear
       that Barber contains no explicit requirement for the class certification motion, other
       than the timing of its filing.” Id. ¶ 36. We agreed with the appellate court that a
       “ ‘contentless “shell” motion,’ or otherwise frivolous pleading, would be
       insufficient to preclude a mootness finding under Barber” but held that the motion
       filed by the plaintiff in that case was sufficient because it “identified defendant, the
       applicable date or dates, and the general outline of plaintiff’s class action
       allegations.” Id. ¶ 38. Only after we found that “the focus of Barber is on the timing
       of the plaintiff’s filing [and not the merits of] a motion for class certification” (id.
       ¶ 39) did we note that such focus was “also consistent with the approach taken in
       the Seventh Circuit Court of Appeals” (id. ¶ 40).


¶ 29                    Federal Precedent Regarding Moot Class Actions

¶ 30       In examining the consistency between our decision in Ballard and those of the
       federal courts, we cited Damasco v. Clearwire Corp., 662 F.3d 891, 896-97 (7th
       Cir. 2011). Ballard, 2015 IL 118644, ¶ 42. That case, which was a purported class
       action removed to federal court from an Illinois state court, likewise cited Barber.
       Damasco, 662 F.3d at 896. The defendant in Damasco, before removal to federal
       court, offered to settle the case by paying the named plaintiff and up to 10 other
       people the maximum statutory damages for each text message received plus court
       costs. Id. at 893. That court held that “[a]fter [the defendant] made its offer, [the
       plaintiff’s] federal case was over.” Id. at 896.

¶ 31       While we were considering Ballard, the Seventh Circuit overruled Damasco.
       Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). In Chapman, the
       plaintiff, purporting to represent a class, filed a complaint alleging violations of the



                                                -9-
       Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227 (2012)). Chapman,
       796 F.3d at 784. The defendant made an offer of judgment for the named plaintiff’s
       maximum statutory damage award, an injunction, and costs under federal Rule 68
       (Fed. R. Civ. P. 68), which offer was to expire 14 days after the district court ruled
       on the motion for class certification. Chapman, 796 F.3d at 786. The district court
       denied certification of two proposed classes, and the plaintiff sought to recover on
       his personal claim. Id. at 785. The offer lapsed, and the district court found the
       plaintiff’s personal claim moot. Id. at 786.

¶ 32       On appeal, the Chapman court acknowledged that “many courts, [the Seventh
       Circuit] included, have applied the label ‘moot’ when a plaintiff declines an offer
       that would satisfy his entire demand.” Id. It overruled that precedent, however,
       including Damasco (id. at 787), reasoning that, “[i]f an offer to satisfy all of the
       plaintiff’s demands really moots a case, then [the case] self-destructs” (id. at 786).
       Further reasoning that “a district court cannot enter judgment in a moot case,” the
       court held although other consequences may exist for rejecting such an offer of
       judgment, it did not make the case moot. Id. at 786-87.

¶ 33       The Chapman court relied heavily on Justice Kagan’s dissent in Genesis
       Healthcare Corp. v. Symczyk, 569 U.S. 66, 79-87 (2013) (Kagan, J., dissenting,
       joined by Ginsburg, Breyer, and Sotomayor, JJ.), which the Chapman court held
       showed “that an expired (and unaccepted) offer of a judgment does not satisfy the
       Court’s definition of mootness, because relief remains possible.” Chapman, 796
       F.3d at 786. In Genesis Healthcare, the plaintiff filed a collective action complaint
       alleging violations of the Fair Labor Standards Act of 1938 (29 U.S.C. § 210 et seq.
       (2012)). Genesis Healthcare, 569 U.S. at 69 (majority opinion). The defendant
       answered the complaint and simultaneously served an offer of judgment for
       “$7,500 for alleged unpaid wages, in addition to ‘such reasonable attorneys’ fees,
       costs, and expenses … as the Court may determine.’ ” Id. The plaintiff failed to
       accept the offer before it expired, which would have fully satisfied her individual
       claim, and the district court granted the defendant’s motion to dismiss for lack of
       subject-matter jurisdiction. Id. at 70. That Court assumed without deciding that the
       plaintiff’s claims became moot upon the offer and held only that, because her claim
       was moot, she had “no personal interest in representing putative, unnamed
       claimants, nor any other continuing interest that would preserve her suit from
       mootness.” Id. at 78.




                                               - 10 -
¶ 34       Justice Kagan dissented. Id. at 79-87 (Kagan, J., dissenting, joined by Ginsburg,
       Breyer, and Sotomayor, JJ.). She compared a settlement offer with a contract offer
       and would have held that a rejected settlement offer, like a rejected contract offer,
       was “a legal nullity, with no operative effect.” Id. at 81. She posited that, “[a]fter
       the offer lapsed, just as before, [the plaintiff] possessed an unsatisfied claim, which
       the court could redress by awarding her damages.” Id. Justice Kagan stated that
       “[i]t is [the plaintiff’s] choice, and not the defendant’s or the court’s, whether
       satisfaction of her individual claim, without redress of her viable classwide
       allegations, is sufficient to bring the lawsuit to an end.” Id. at 86. Thus, she would
       have reached the mootness issue and “correct[ed] the Third Circuit’s view that an
       unaccepted settlement offer mooted [the plaintiff’s] individual claim.” Id. at 87.

¶ 35       The Supreme Court later expressly adopted Justice Kagan’s analysis in the
       majority opinion of Campbell-Ewald, 577 U.S. at ___, 136 S. Ct. at 670. In that
       case, the plaintiff brought a putative class action under the TCPA against the
       defendant for sending unsolicited text message advertisements to the plaintiff and
       others. Id. at ___, 136 S. Ct. at 667. The defendant, via Rule 68 (Fed. R. Civ. P.
       68), offered to settle the claim for the maximum statutory penalty for each text
       message that the plaintiff could show that he received, plaintiffs’ costs excluding
       attorney fees, and entry of an injunction prohibiting defendant from sending future
       messages. Campbell-Ewald, 577 U.S. at ___, 136 S. Ct. at 667-68. The injunction,
       however, denied liability, the allegations in the complaint, and the existence of
       grounds for the injunction. Id. at ___, 136 S. Ct. at 668. The plaintiff did not accept
       the offer and allowed it to lapse. Id. at ___, 136 S. Ct. at 668. The defendant moved
       to dismiss, arguing that the claim, including the class claim, for which the plaintiff
       had not yet filed a motion for certification, became moot upon the offer of complete
       relief. Id. at ___, 136 S. Ct. at 668. The district court denied the motion, finding
       that, because the plaintiff was not dilatory in filing the class-certification motion, it
       related back to the filing of the complaint. Id. at ___, 136 S. Ct. at 668. The district
       court granted summary judgment on other grounds. Id. The Court of Appeals for
       the Ninth Circuit reversed the grant of summary judgment but affirmed that a live
       controversy existed. Id. at ___, 136 S. Ct. at 668.

¶ 36      The Supreme Court, citing its own precedent, noted that “[a] case becomes
       moot *** ‘only when it is impossible for a court to grant any effectual relief
       whatever to the prevailing party.’ ” Id. at ___, 136 S. Ct. at 669 (quoting Knox v.




                                                - 11 -
       Service Employees International Union, Local 1000, 567 U.S. 298, 307 (2012)).
       “ ‘As long as the parties have a concrete interest, however small, in the outcome of
       the litigation, the case is not moot.’ ” Id. at ___, 136 S. Ct. at 669 (quoting Chafin
       v. Chafin, 568 U.S. 165, 172 (2013)). The Campbell-Ewald Court held that “[u]nder
       basic principles of contract law, [the defendant’s] settlement bid and Rule 68 offer
       of judgment, once rejected, had no continuing efficacy.” Id. at ___, 136 S. Ct. at
       670. The Court noted that the defendant continued to deny liability. Id. at ___, 136
       S. Ct. at 669. It also noted Rule 68’s “built-in sanction: ‘If the [ultimate] judgment
       . . . is not more favorable than the unaccepted offer, the offeree must pay the costs
       incurred after the offer was made’ ” Id. at ___, 136 S. Ct. at 671 (quoting Fed. R.
       Civ. P. 68(d)). The Court distinguished cases cited by the defendant in that the
       plaintiff in those cases received the funds, while “the settlement offer Campbell
       extended to Gomez expired, Gomez remained emptyhanded; his TCPA complaint,
       which Campbell opposed on the merits, stood wholly unsatisfied.” Id. at ___, 136
       S. Ct. at 672. Thus, that Court concluded, the plaintiff’s “individual claim was not
       made moot by the expired settlement offer,” and “a would-be class representative
       with a live claim of her own must be accorded a fair opportunity to show that
       certification is warranted.” Id. at ___, 136 S. Ct. at 672. The Court expressly
       declined to decide whether the result “would be different if a defendant deposits the
       full amount of plaintiff’s individual claim in an account payable to the plaintiff, and
       the court then enters judgment for the plaintiff in that amount.” Id. at ___, 136 S.
       Ct. at 672.


¶ 37                     The Difference Between an Offer and a Tender

¶ 38       Justice Thomas concurred with the result in Campbell-Ewald but disagreed with
       the reasoning. Id. at ___, 136 S. Ct. at 674 (Thomas, J., concurring). He reviewed
       the history of Rule 68 and the common law of tenders. Id. at ___, 136 S. Ct. at 674-
       76. He pointed out that Rule 68 authorizes a defendant to “ ‘serve on an opposing
       party an offer to allow judgment on specified terms’ ” and allows the plaintiff to
       accept or reject that offer. Id. at ___, 136 S. Ct. at 676 (quoting Fed. R. Civ. P.
       68(a)). “ ‘[A]n unaccepted offer is considered withdrawn,’ ” he continued, and
       “[w]ithdrawn offers (unlike common-law tenders) cannot be used in court as an
       admission against defendants.” Id. at ___, 136 S. Ct. at 676 (quoting Fed. R. Civ.
       P. 68(b)). A tender, at common law, required that the defendant actually and




                                               - 12 -
       unconditionally produce the claimed damages at the time of tender. Id. at ___, 136
       S. Ct. at 675 (citing Matthew Bacon, A New Abridgment of the Law 314-15, 321
       (1856)). “[A] tender of the amount due was deemed ‘an admission of liability’ on
       the cause of action to which the tender related ***.” Id. at ___, 136 S. Ct. at 675
       (quoting Alva R. Hunt, A Treatise on the Law of Tender, and Bringing Money Into
       Court § 400, at 448 (1903)). Although the common law required that, to be
       effective, a tender needed to be made before a suit was filed, “19th-century state
       statutes expanded the common-law-tender regime” to allow, inter alia, “defendants
       to offer a tender ‘during the pendency of an action,’ as well as before it
       commenced.” Id. at ___, 136 S. Ct. at 675 (quoting Taylor v. Brooklyn Elevated R.
       Co., 23 N.E. 1106, 1107 (N.Y. Sup. Ct. 1890)). A mere offer, however, “remained
       insufficient to end a lawsuit.” Id. at ___, 136 S. Ct. at 676. Justice Thomas therefore
       would have held that, “[b]ecause Campbell-Ewald only offered to pay Gomez’s
       claim but took no further steps [such as making payment], the court was not
       deprived of jurisdiction.” Id. at ___, 136 S. Ct. at 676.

¶ 39       We, too, note the difference between an offer and a tender. An offer is “a
       statement that one is willing to do something for another person or to give that
       person something.” Black’s Law Dictionary (11th ed. 2019). A tender, however,
       “is defined as ‘[t]he actual proffer of money, as distinguished from the mere
       proposal or proposition to proffer it.’ ” McLean v. Yost, 273 Ill. App. 3d 178, 180
       (1995) (quoting Black’s Law Dictionary 1315 (5th ed. 1979)). This definition
       comports with case law in this state and common understanding of the term. See,
       e.g., Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 27
       (“ ‘Tender’ is an unconditional offer of payment consisting of the actual production
       of a sum not less than the amount due on a particular obligation ***.’ ” (quoting
       Arriola v. Time Insurance Co., 323 Ill. App. 3d 138, 146 (2001))).

¶ 40       Our Code of Civil Procedure contains no offer of judgment rule. Rather, our
       legislature enacted section 5-126 of the Code, which provides that a defendant must
       “tender what he or she shall conceive sufficient amends for the injury done or to
       pay the unliquidated damages or demands” to shift costs to the plaintiff. (Emphasis
       added.) 735 ILCS 5/5-126 (West 2016). Under the federal rule, conversely, a
       defendant need only “offer to allow judgment” and can do so “on specified terms.”
       Fed. R. Civ. P. 68(a). The federal rule expressly contemplates a plaintiff’s choice
       to accept or decline such an offer. Id. Our rule does not. Because our rule




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       contemplates a tender rather than an offer, it does not consider the effect of a failure
       to accept but only the effect of a plaintiff achieving or failing to achieve a greater
       award at trial. At least one panel of our appellate court has even held that, “[t]o
       perfect a tender under section 5-126 of the Code, the amount must be deposited
       with the clerk of the court.” McLean, 273 Ill. App. 3d at 180.

¶ 41        In Ballard, we noted that, although the Seventh Circuit had overruled Damasco
       while our decision was pending, it did so “ ‘to the extent [Damasco and other cases]
       hold that a defendant’s offer of full compensation moots the litigation.’ ” (Emphasis
       in original.) Ballard, 2015 IL 118644, ¶ 40 n.1 (quoting Chapman, 796 F.3d at 787).
       The plaintiff in Ballard filed its class-certification motion contemporaneously with
       its complaint; no opportunity arose for the defendant to offer, tender, or otherwise
       moot the action before the class members’ interests were before the court. Id. ¶ 8.
       We emphasized the word offer, however, because the Chapman court contemplated
       an offer, as distinguished from a tender.

¶ 42       This court’s decisions regarding mooting class actions before filing of the class-
       certification motion have only dealt with tenders. In Wheatley, the named plaintiffs
       were reemployed, which was the remedy they sought. Wheatley, 99 Ill. 2d at 483-
       84. In Barber, the airline irrevocably refunded the named plaintiff’s fees to the
       credit card she used to pay them. Barber, 241 Ill. 2d at 453. Although
       inconsequential to our decision, the defendant in Ballard included a check for the
       amount offered as tender. Ballard, 2015 IL 118644, ¶ 11.

¶ 43       As described above, an offer is different than a tender. As described in Rule 68,
       an offer of judgment can be on any terms so long as those terms include the costs
       accrued. Fed. R. Civ. P. 68(a). Such an offer can deny liability. See Fed. R. Civ. P.
       68(c) (contemplating an offer after liability has been determined); Campbell-
       Ewald, 577 U.S. at ___, 136 S. Ct. at 668. Because an offer of judgment can be on
       any terms—including, for example, an amount equal to or an amount less than that
       claimed due, with or without an admission of liability—the plaintiff is free to accept
       or reject the offer (Fed. R. Civ. P. 68(a)) but will incur a penalty if she does not
       obtain a more favorable judgment (Fed. R. Civ. P. 68(d)). In this way, an offer of
       judgment is really an offer to settle. See Campbell-Ewald, 577 U.S. at ___, 136 S.
       Ct. at 668 (describing the defendant’s Rule 68 offer of judgment as a “settlement




                                                - 14 -
       offer”). Settlements are construed by courts as contracts, hence the decisions in
       Campbell-Ewald and Chapman.

¶ 44       A tender, conversely, is only effective if it is for the entire amount owed. Lake
       County Forest Preserve District v. Vernon Hills Development Corp., 92 Ill. 2d 72,
       79 (1982) (citing Sweetland v. Tuthill, 54 Ill. 215, 216 (1870)); Gatreaux, 2011 IL
       App (1st) 103482, ¶ 27; Campbell-Ewald, 577 U.S. at ___, 136 S. Ct. at 675
       (Thomas, J., concurring). The defendant must actually produce the tender; a mere
       offer or promise is insufficient. McLean, 273 Ill. App. 3d at 180; Campbell-Ewald,
       577 U.S. at ___, 136 S. Ct. at 676 (Thomas, J., concurring). In making an effective
       tender, the defendant admits liability. Sweetland, 54 Ill. at 217; McLean, 273 Ill.
       App. 3d at 180; Campbell-Ewald, 577 U.S. at ___, 136 S. Ct. at 675 (Thomas, J.,
       concurring). The Campbell-Ewald majority noted that the situation might be
       different if the defendant had tendered the damages instead of merely offering them.
       Campbell-Ewald, 577 U.S. at ___, 136 S. Ct. at 672 (majority opinion).

¶ 45       A sufficient tender therefore provides the plaintiff with the relief she seeks, not
       just a promise to provide that relief, as well as an admission of liability. Because an
       effective tender is unconditional, no return consideration is given. A lack of
       consideration means that the tender does not form a contract and a tender should
       not be construed as a contract. Plaintiffs’ argument that Campbell-Ewald’s holding
       is not limited to Rule 68 but is based on contract law is therefore unavailing.

¶ 46       “An issue is moot if no actual controversy exists ***.” Wheatley, 99 Ill. 2d at
       484. When a defendant admits liability and provides the plaintiff with all relief
       requested—as she does with a tender—no controversy exists. Before a named
       plaintiff files her motion for class certification, only her claims are before the court.
       Ballard, 2015 IL 118644, ¶ 34; Barber, 241 Ill. 2d at 457. “Once a representative
       plaintiff is granted the desired relief, he is no longer a member of the class because
       his interests are not consistent with the interests of the other class members.”
       Wheatley, 99 Ill. 2d at 486-87. We reaffirm Ballard, Barber, and Wheatley and
       distinguish Campbell-Ewald and Chapman. When a defendant tenders the relief
       sought by a named plaintiff prior to a motion for class certification, it does not force
       the plaintiff to accept a settlement against her will, as plaintiffs argue, but admits
       liability and satisfies plaintiff’s demand. A live controversy therefore no longer
       exists, and the court must dismiss the case if no other plaintiff steps into the named




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       plaintiff’s shoes to represent the class.


¶ 47                                 SVM’s Purported Tender

¶ 48       Plaintiffs’ request for relief in count I asked the court to “certify this cause as a
       class action and enter judgment in their favor and against Defendant SVM, in an
       amount to be proven at trial but not less than an amount equal to such class
       member’s security deposit, plus costs, attorney fees, and whatever other relief this
       Court deems valid and just under the circumstances.” The statute under which they
       sued provides that a landlord who willfully fails or refuses to pay interest on a
       security deposit shall “be liable for an amount equal to the amount of the security
       deposit, together with court costs and reasonable attorney’s fees.” 735 ILCS 715/2
       (West 2014). The day after defendant was served with the complaint, its attorney
       sent plaintiffs’ counsel a letter indicating that he had been retained by defendant “to
       tender a full, unconditional, and complete settlement of [plaintiffs’] individual
       claim set forth in Count I of the proposed class action complaint.” With that letter,
       defendant “unconditionally tender[ed]” a “[c]ashier’s check in the amount of
       $1,290.00 representing [plaintiffs’] maximum individual recovery under 765 ILCS
       715/2 as prayed for in Count I of the complaint” and “[a]ll court costs and
       reasonable attorney’s fees as allowed by the court that Plaintiffs incurred in
       pursuing Count I of the complaint.” The letter did not ask whether plaintiffs
       accepted the tender but instead advised counsel to “[p]lease let me know if you
       have any questions or if you can provide me information related to your court costs
       and attorney’s fees incurred thus far in pursuing Count I of the complaint.”
           “ ‘ “ ‘Tender’ is an unconditional offer of payment consisting of the actual
       production of a sum not less than the amount due on a particular obligation.” ’ ”
       Gatreaux, 2011 IL App (1st) 103482, ¶ 27 (quoting Arriola, 323 Ill. App. 3d at 146,
       quoting Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d
       1023, 1032 (1999)). The tender was unquestionably an offer of payment. Plaintiffs’
       argument that the tender failed because the check was made out to plaintiffs’
       counsel is unconvincing. Certainly it was reasonable for defendant’s attorney to
       trust plaintiffs’ counsel to forward the funds to plaintiffs, his clients.

¶ 49       Plaintiffs argue that the tender was insufficient because it did not dispose of the
       entire case. They argue that defendant’s tender as to count I and the discovery stay




                                                   - 16 -
       effectively mooted count II (on behalf of Class B) and count III. We first note that
       count III, the individual count, was reinstated by the appellate court below and can
       proceed on remand. Regarding count II, plaintiffs cite, inter alia, P.J.’s Concrete
       Pumping Service v. Nextel West Corp., 345 Ill. App. 3d 992, 1001 (2004) (“[A]
       plaintiff bringing a class action suit need only allege a viable individual cause of
       action, indicate that the claim is being brought as a class action, and include factual
       allegations broad enough to establish the possible existence of a class action. ***
       Class certification issues are typically factual and should be decided with the
       benefit of discovery.”). Before getting to discovery regarding the class, a named
       plaintiff must allege an individual cause of action. As we discussed above, count II
       was dismissed for failing to state a cause of action. Plaintiffs forfeited argument
       that the dismissal was in error. No need exists to engage in discovery regarding a
       potential class when the plaintiff has failed to allege a cause of action.

¶ 50       The Code specifically permits a party to attack the entirety of a complaint or a
       “portion thereof” and allows the court “to terminate the litigation in whole or in
       part.” 735 ILCS 5/2-615(a), (d) (West 2016). A litigant is not required to admit or
       deny all counts of a complaint in other circumstances, and we do not require it when
       a defendant tenders a named plaintiff’s claim when the plaintiff alleges a class
       action. Such a defendant does so at her own risk; if the claim is meritorious and the
       class certified, she has missed his opportunity to tender the named plaintiff’s
       individual demand.

¶ 51       Plaintiffs do not appear to argue that the $1290 did not satisfy the maximum
       allowable statutory award. Instead, they argue that the tender was conditional
       because it limited recovery on costs and attorney fees to what would be “allowed
       by the court” and did not include payment for the costs and attorney fees. Relatedly,
       they argue that the tender was less than the amount due because it did not include
       an amount for costs and attorney fees or even a request for the amount of fees so
       that defendant could pay them.

¶ 52       “[I]f suit has been commenced,” a tender must include “the costs of suit up to
       the time of making tender.” 735 ILCS 5/5-126 (West 2016). The statute giving rise
       to plaintiffs’ cause of action provides that a liable landlord shall be liable for the
       tenant’s “court costs and reasonable attorney’s fees.” (Emphasis added.) 765 ILCS
       715/2 (West 2014). “It has been the rule in this state for many years that courts will




                                               - 17 -
       not be bound by the opinion of attorneys as to what constitutes reasonable
       attorneys’ fees.” Richheimer v. Richheimer, 59 Ill. App. 2d 354, 365 (1965). “ ‘In
       all cases where an award of attorney fees is appropriate, only those fees which are
       reasonable will be allowed, the determination of which is left to the sound
       discretion of the trial court.’ ” (Emphasis in original.) Wildman, Harrold, Allen &
       Dixon v. Gaylord, 317 Ill. App. 3d 590, 595 (2000) (quoting Mars v. Priester, 205
       Ill. App. 3d 1060, 1064 (1990)). “It is well established that a party seeking to
       recover attorney fees from another party bears the burden of presenting sufficient
       evidence from which the trial court can render a decision as to their
       reasonableness.” Prior Plumbing & Heating Co. v. Hagins, 258 Ill. App. 3d 683,
       688 (1994).

¶ 53        We first note that plaintiffs’ argument that defendant “could have stated ‘please
       forward your current bill to our office for payment in full’ ” is disingenuous.
       Defendant’s attorney’s letter clearly asks counsel to “[p]lease let me know *** if
       you can provide me information related to your court costs and attorney’s fees.”
       Counsel, in his rejection letter, expressly “reject[ed] [defendant’s] request for our
       billing records for purposes of your co-called [sic] tender.” Plaintiffs cite no
       authority for the proposition that a defendant who makes a tender prior to
       adjudication must somehow know and include costs and attorney fees in the tender,
       nor can we find any such authority. Rather, we find it sufficient and appropriate for
       a defendant to tender the amount claimed in the demand along with a request for
       the demanding party’s costs and fees. Because the statute provides for shifting of
       “reasonable attorney’s fees” (emphasis added) (765 ILCS 715/2 (West 2014)) and
       reasonableness of attorney fees is an issue decided by the court and not counsel
       (Richheimer, 59 Ill. App. 2d at 365), a court may find that the plaintiff’s fee request
       is unreasonable and that the defendant need not pay the entirety of it. In requesting
       that the plaintiff notify the tendering party of its costs and fees along with actual
       payment of the maximum statutory damages, a tendering party effectively tenders
       complete relief, assuming that the defendant promptly pays the costs and fees upon
       stipulation or court order as to reasonableness.

¶ 54       In their reply brief, plaintiffs argue that the cashier’s check was not a sufficient
       means of tender. They argue that defendant should have either created a bank
       account in plaintiffs’ names or deposited the funds with the court pending a hearing
       on attorney fees and entry of judgment. Although plaintiffs do not cite the case, this




                                                - 18 -
       would comport with the appellate court’s decision in McLean, 273 Ill. App. 3d at
       180. Depositing the tender with the court is the better practice, especially inasmuch
       as it avoids plaintiffs’ argument that defendant has successfully kept its tender after
       plaintiffs’ rejection.

¶ 55       Defendant’s attorney had the check with him at oral argument before this court
       and has in no way intimated that defendant intends to keep the check or not pay
       plaintiffs’ reasonable attorney fees. Such an argument would have had at least a
       colorable basis in our law. See Gorham v. Farson, 119 Ill. 425, 443 (1887) (“Where
       a creditor, in advance of an offer to pay, or in response to such an offer, informs the
       party under obligation to pay, that he will not accept the amount actually due, in
       discharge of the indebtedness, the party under obligation is relieved of the duty of
       tendering the amount actually due.”).

¶ 56       We hold that future tenders made to satisfy a demand, if made after filing of
       suit, should be made to the court. If the tender fully satisfies the plaintiff’s demand
       absent costs and attorney fees, the court could then hold a hearing on costs and, if
       applicable, attorney fees before dismissing the case contingent upon payment of
       costs and fees. Particular to this case, we hold that defendant must pay the tendered
       funds to the circuit court pending a hearing on costs and attorney fees and dismissal.


¶ 57                                      CONCLUSION

¶ 58       We reaffirm Wheatley, Barber, and Ballard and hold that an effective tender
       made before a named plaintiff purporting to represent a class files a class-
       certification motion satisfies the named plaintiff’s individual claim and moots her
       interest in the litigation. We distinguish the United States Supreme Court’s decision
       in Campbell-Ewald and the Seventh Circuit’s decision in Chapman in that those
       cases deal with an offer of judgment under the Federal Rules of Civil Procedure,
       which we find to be an offer of settlement, as opposed to a tender that completely
       satisfies a plaintiff’s demand.

¶ 59       On remand, defendant is to deposit the tender with the circuit court. The court
       is to determine plaintiffs’ costs and reasonable attorney fees before dismissing
       count I contingent upon payment of those costs and fees. Count II remains




                                               - 19 -
       dismissed with prejudice, and count III is reinstated.


¶ 60      Affirmed and remanded with directions.




                                              - 20 -
