                                                                           FIFTH DIVISION
                                                                           April 4, 2008



No. 1-07-0814



IRWIN COHEN, on Behalf of Himself and All Others            )       Appeal from the
Similarly Situated,                                         )       Circuit Court of
                                                            )       Cook County.
       Plaintiff-Appellant,                                 )
                                                            )
v.                                                          )       No. 06 CH 11824
                                                            )
COMPACT POWER SYSTEMS, LLC, a California                    )
Limited Liability Corporation, ENTERPRISE SYSTEMS, )
INC., d/b/a ESI Enterprises, Inc., an Illinois Corporation, )
NEXTEL WEST CORPORATION, and MR. CELL                       )
WIRELESS, an Illinois Corporation,                          )       The Honorable
                                                            )       James R. Epstein,
       Defendants-Appellees.                                )       Judge Presiding.


       PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

       Plaintiff-appellant Irwin Cohen (Cohen), on behalf of himself and all others similarly

situated, filed a class action complaint against defendants-appellees Compact Power Systems,

LLC (Compact), Enterprise Systems, Inc. (Enterprise), Nextel West Corp. (Nextel West) and Mr.

Cell Wireless (Mr. Cell) regarding his purchase of certain batteries. Compact and Nextel West

filed motions to dismiss. The trial court granted Compact's motion, finding that Cohen's cause of

action was moot and dismissing the cause as to all defendants. Cohen appeals, contending that

the trial court erred when it granted Compact's motion. He asks that we reverse and vacate the

court's order and remand the cause for further proceedings, including trial. For the following

reasons, we affirm.
No. 1-07-0814

                                         BACKGROUND

       On February 22, 2006, Cohen went to Mr. Cell, an authorized retailer of Nextel products,

to purchase a cellular telephone. While at this store, Cohen saw a display for Cellboost brand

batteries for portable devices, a non-Nextel product. Each of the battery packages advertised a

coupon offer of "Buy 1 Get 1 Free! -- limited time mail in offer," with the coupon sealed inside.

Cohen purchase three of these Cellboost battery packages. Later, upon opening them, Cohen

discovered that the coupons inside had an expiration date of January 31, 2006, approximately one

month before he bought them. On June 14, 2006, alleging that he would not have bought the

batteries if they had not been offered with the coupon, Cohen filed a class action complaint

against Compact (the battery manufacturer), Enterprise (the battery distributor), Mr. Cell and

Nextel Retail Stores, LLC, alleging unfair conduct, deceptive business practices, unjust

enrichment and conversion.

       On July 5, 2006, Compact sent a letter to Cohen explaining that since at least that date, it

had been informing its customers via its Web site and an 800 telephone number, both of which

were listed on the Cellboost battery coupons, that it would be honoring all of the expired coupons

through January 2007. Compact attached a printout of its Web site to the letter to reflect this

policy. On July 26, 2006, Compact filed its appearance in the cause. On July 31, 2006, Compact

made a settlement offer to Cohen of all his alleged damages, informing him again of its policy to

honor the expired coupons. As the terms of its offer, Compact sent Cohen a check for $27.70

(the cost of three Cellboost batteries plus 5% interest) and, as an alternative, an offer to provide

him with three Cellboost batteries in lieu of payment; the offer made clear that Compact would


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No. 1-07-0814

continue honoring the expired coupons. Cohen rejected the offer and returned the check to

Compact.

        In August 2006, Nextel Retail Stores, LLC, filed a motion to dismiss, asserting that

Cohen had named the wrong Nextel entity in his suit and that he failed to allege facts sufficient

to establish an agency relationship between Nextel Retail Stores, LLC, and Mr. Cell. On

September 5, 2006, Cohen obtained leave to file an amended complaint by October 3, 2006.

Before he filed his amended complaint, Compact renewed its settlement offer and Cohen again

rejected it.

        On October 3, 2006, Cohen filed an amended class action complaint to name the proper

Nextel entity: Nextel West; all other portions of the complaint remained the same. On October

31, 2006, Compact filed a motion to dismiss the cause pursuant to both sections 2-615 and 2-619

of the Illinois Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2006)), asserting,

respectively, that Cohen failed to adequately plead each count in the amended complaint and that

his cause was moot because Compact had made tender offers prior to his filing for class

certification. Nextel West also filed a section 2-619 motion to dismiss, asserting that since Mr.

Cell is an independent contractor, Nextel West could not be liable for Mr. Cell's sale of the non-

Nextel batteries.

        Following a hearing, the trial court granted Compact's section 2-619 motion on February

27, 2007, finding Cohen's cause to be moot because Compact had made a tender offer to Cohen

and all putative class members through its July 5, 2006, letter giving them the full relief

requested in the amended complaint before Cohen had filed for class certification. The trial court


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No. 1-07-0814

further concluded that "there was no attempt to thwart the class action" since Compact not only

tendered the offer at that time in the full amount of relief requested in the amended complaint,

but also informed Cohen that the coupons would continue to be honored for all putative class

members until at least January 2007.1 Because the trial court dismissed all of the named

defendants pursuant to its finding, the court did not address Nextel West's motion to dismiss.

       Cohen has never filed a motion for class certification in this cause.

                                               ANALYSIS

       On appeal, Cohen contends that the trial court improperly granted Compact's section 2-

619 motion to dismiss his amended class action complaint as moot. Cohen asserts that the court

erred when it based its decision on the fact that Compact made a tender to him before he filed a

motion for class certification and that he was not afforded a reasonable opportunity in which to

file such a motion. We disagree.

       A motion to dismiss pursuant to section 2-619 admits the legal sufficiency of the

complaint and affirms all well-pled facts and their reasonable inferences, but raises defects or

other matters either internal or external from the complaint that would defeat the cause of action.

See Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995); Jenkins v.

Concorde Acceptance Corp., 345 Ill. App. 3d 669, 674 (2003). While a trial court should not

grant such a motion unless it is clear that there is no way a plaintiff may recover (see Ostendorf

v. International Harvester Co., 89 Ill. 2d 273, 280 (1982)), dismissing a cause pursuant to section


       1
           Compact indicates in its brief on appeal that it further extended its offer via its Web site

to honor the expired coupons until January 8, 2008.

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No. 1-07-0814

2-619 efficiently allows for the disposal of issues of law or easily proved facts early in the

litigation process. See Coles-Moultrie Electric Cooperative v. City of Sullivan, 304 Ill. App. 3d

153, 158 (1999). We review an appeal from the grant of a section 2-619 motion on a de novo

basis in order to determine whether the trial court correctly found no genuine issue of material

fact existed and judgment as a matter of law was proper. See Kedzie & 103rd Currency

Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993); accord Spirit of Excellence, Ltd. v.

Intercargo Insurance Co., 334 Ill. App. 3d 136, 145 (2002); accord Zedella v. Gibson, 165 Ill. 2d

181, 185-86 (1995).

       A cause of action "is moot if no actual controversy exists or where events occur which

make it impossible for the court to grant effectual relief." Wheatley v. Board of Education of

Township High School District 205, 99 Ill. 2d 481, 484-85 (1984); accord Gelb v. Air Con

Refrigeration & Heating, Inc., 356 Ill. App. 3d 686, 699 (2005) (Gelb II); Yu v. International

Business Machines Corp., 314 Ill. App. 3d 892, 898 (2000).

       In order for a class action to proceed, the named representative of the putative class who

has filed the complaint--i.e., the plaintiff--must possess a valid claim against the defendant.2 See


       2
           We note for the record that at the outset of its brief on appeal, Nextel West presents a

concise argument asserting that this case can be resolved on the ground that Compact offered full

relief to the entire putative class involved herein, citing Armstrong v. Ward, 529 F.2d 1132 (2d

Cir. 1976). In Armstrong, eight prisoners filed a class action suit against the commissioner of

correctional services to prevent the transfer of inmates from one prison to another. Before they

moved for class certification, the commissioner began returning inmates to the original prison

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No. 1-07-0814

Wheatley, 99 Ill. 2d at 486 (this is a statutory prerequisite before a suit can be sanctioned and

maintained as a class action). The defendant is not prohibited from offering a settlement or

tender to the named plaintiff or putative class members prior to class certification. See Arriola v.

Time Insurance Co., 323 Ill. App. 3d 138, 145 (2001). In fact, the defendant may do so even if

this renders the class action no longer maintainable (see Arriola, 323 Ill. App. 3d at 145 (that is,

even if this causes an insufficient number of remaining class members)), and regardless of

whether the defendant had the intent to prevent class formation with such tender (see Bruemmer

v. Compaq Computer Corp., 329 Ill. App. 3d 755, 763 (2002), citing Arriola, 323 Ill. App. 3d at


and certified that all reassignments to the other prison would be stopped and the prison closed.

The Armstrong court held that since relief was tendered and covered the entire class that became

certified, the cause should be dismissed as moot. See Armstrong, 529 F.2d at 1135-36.

        While this strengthens Nextel West's argument, we note that no other party to this appeal

addresses the effect of a tender to an entire class and that Nextel West has not cited any Illinois

state cases as support. Moreover, the majority of Nextel West's brief addresses situations where

tender is offered to the named plaintiff in a class action. In addition, it is clear that the instant

case falls in this latter category, as the record reveals only that Compact's July 5, 2006, letter

(which the trial court here indicated was the operative tender offer) was mailed directly to

Cohen--it is unclear who else, if anyone, received it. Thus, for these reasons and since we have

the authority to sustain the decision of a trial court on any ground which is called for by the

record (see City of Chicago v. Holland, 206 Ill. 2d 480, 492 (2003)), we choose to proceed by

examining the effect of tender to named plaintiffs rather than to the entire class.

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No. 1-07-0814

150). The plaintiff, meanwhile, is not allowed to perpetuate controversies by merely refusing the

defendant's tender. See Hillenbrand v. Meyer Medical Group, S.C., 308 Ill. App. 3d 381, 389

(1999); accord Gelb II, 356 Ill. App. 3d at 700; Bruemmer, 329 Ill. App. 3d at 761.

       Therefore, the general rule has developed that if the defendant tenders to the named

plaintiff the relief requested before the class is certified, the underlying cause of action must be

dismissed as moot as there is no longer an actual controversy pending. See Kostecki v.

Dominick's Finer Foods, Inc., 361 Ill. App. 3d 362, 376-77 (2005) (this is the "general rule"

regarding class actions and tenders); accord Gelb II, 356 Ill. App, 3d at 700 (proper tender before

certification "mandates dismissal"); Bruemmer, 329 Ill. App. 3d at 763; Arriola, 323 Ill. App. 3d

at 150; Hillenbrand, 308 Ill. App. 3d at 391; see, e.g., Yu, 314 Ill. App. 3d at 899 (where the

plaintiff was aware of tender after filing complaint but before filing motion for class certification,

case must be dismissed). Consequently, should the defendant then file a motion to dismiss the

cause, the trial court may rule upon that motion even before it has examined the issue of class

certification. See Wheatley, 99 Ill. 2d at 486; accord Gelb II, 356 Ill. App. 3d at 700; see also

Bruemmer, 329 Ill. App. 3d at 764 ("[a] motion to dismiss for failure to state a cause of action

may be acted upon in a class action before determination of certification issues," and the "class

action complaint should be dismissed at the pleading stage if the complaint fails to meet the

statutory requirements for class certification").

       Cohen stresses throughout his brief on appeal that while Compact tendered full relief to

him via its checks for the amount of the three batteries plus interest and its offers to send him

three free batteries, he consistently refused to accept tender of any sort. Although this may be


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No. 1-07-0814

true, it has no relevance to the instant cause; as we have noted above, it is not as if the named

plaintiff's rejection of the defendant's tender resolves the cause in the plaintiff's or the putative

class' favor. First, we have already discussed that named plaintiffs cannot perpetuate

controversies by rejecting tender. Second, our courts have on several occasions dismissed class

actions in their entirety even though the named plaintiff rejected the defendant's tender offer.

See, e.g., Bruemmer, 329 Ill. App. 3d 755 (class action dismissed as moot even though the

plaintiff did not accept tender); Arriola, 323 Ill. App. 3d 138 (same); see also Wheatley, 99 Ill. 2d

481.

        The key here lies not, as Cohen seems to insist, in whether he accepted Compact's tender.

Rather, whether Cohen filed a motion to certify a class in this cause is the "important

consideration" in determining the effect, if any, Compact's tender had on his class claim. Arriola,

323 Ill. App. 3d at 148 ("whether a motion to certify a class has been filed is an important

consideration in determining the effect a tender offer has on a class action suit"); accord

Bruemmer, 329 Ill. App. 3d at 762-63; Gelb v. Air Con Refrigeration & Heating, Inc., 326 Ill.

App. 3d 809, 814 (2001) (Gelb) ("[u]ltimately, however, a determination of whether defendants'

tender has supplied plaintiff with all he requested is not the deciding factor ***. Rather, we

believe the crux of the matter is to be resolved through an examination of when, in the life span

of this suit at the trial level, such tender was made"). This is because motions to certify the class

are required, by both statute and case law, to be made by the named plaintiff "expeditiously" and

   " '[a]s soon as practicable,' " particularly in those cases where the named plaintiff's claim may

become moot. Arriola, 323 Ill. App. 3d at 148-49 (quoting 735 ILCS 5/2-802(a) (West 1998),


                                                   8
No. 1-07-0814

and also quoting Nelson v. Murphy, 44 F.3d 497, 500 (7th Cir. 1995) (the requirement is

" 'imperative not only so that the parties know whose interests are at issue but also so that

representative plaintiffs with live claims may be substituted for those whose claims have become

moot' ")); accord Bruemmer, 329 Ill. App. 3d at 764; Gelb, 326 Ill. App. 3d at 821. Essentially,

"a plaintiff must pursue a motion for class certification with reasonable diligence." Bruemmer,

329 Ill. App. 3d at 763, citing Arriola, 323 Ill. App. 3d at 151-52, and Gelb, 326 Ill. App. 3d at

821.

       When a motion for class certification is filed after the defendant makes tender to the

named plaintiff, or when the named plaintiff never files this motion, the question becomes

whether, under the circumstances, the plaintiff exercised the required reasonable diligence in

pursuing his class action claim. See Bruemmer, 329 Ill. App. 3d at 762; Arriola, 323 Ill. App. 3d

at 150-51; Gelb, 326 Ill. App. 3d at 821; see, e.g., Hillenbrand, 308 Ill. App. 3d 381. A review of

the circumstances may indicate that the timing of the defendant's tender was an attempt to

unfairly "pick off" the class action representative without offering him a full opportunity to

develop the suit. See Gelb, 326 Ill. App. 3d at 814; accord Arriola, 323 Ill. App. 3d at 152 (the

plaintiff must have a reasonable opportunity to file a motion for certification); Gelb II, 356 Ill.

App. 3d at 700 (denying such opportunity to the plaintiff would allow a defendant to avoid any

class action suit by tendering payments to the plaintiff before a court ruling on a motion for

certification). In these instances, the plaintiff's class action complaint should not be dismissed as

moot. See, e.g., Gelb, 326 Ill. App. 3d 809; Hillenbrand, 308 Ill. App. 3d 381. However, on the

other hand, a review of the circumstances may prove that the named plaintiff simply was not


                                                  9
No. 1-07-0814

diligent in pursuing the class action claim. See Arriola, 323 Ill. App. 3d 151-52; accord

Bruemmer, 329 Ill. App. 3d at 764. In these instances, the plaintiff's class action complaint

should be dismissed as moot. See, e.g., Bruemmer, 329 Ill. App. 3d at 755; Arriola, 323 Ill. App.

3d 138. Ultimately, the plaintiff's due diligence must be determined on a case-by-case basis. See

Bruemmer, 329 Ill. App. 3d at 763; accord Gelb, 326 Ill. App. 3d at 822; see also Arriola, 323 Ill.

App. 3d at 150-52 (examining the circumstances of several cases and comparing them to that

case to determine whether the plaintiff was diligent in filing for class certification).

       In the instant case, the record is clear, and Cohen does not dispute, that, as of the current

status of this cause, a motion for class certification has yet to be filed. Plainly put, Cohen has

never moved for class certification at any point during the pendency of this cause. Thus, we are

called upon to examine the circumstances present in the instant case to determine whether, under

these, Cohen has exercised reasonable diligence in pursuing his class action suit.

       Cohen relies heavily on Gelb, claiming that the facts there are "analogous" to the instant

case and, thus, his cause should not be dismissed as moot. In Gelb, an employee brought a class

action suit against certain corporations claiming they conspired to violate state minimum wage

laws. The corporate defendants tendered full relief to the named plaintiff before he filed a

motion for class certification; the plaintiff, in fact, like Cohen, never filed such a motion during

the pendency of the cause. Following tender, the defendants moved to dismiss the action and the

trial court granted their motion, finding that the tender mooted the plaintiff's claim. Upon

review, however, the Gelb court reversed, holding that the cause was not moot. See Gelb, 326

Ill. App. 3d at 822.


                                                  10
No. 1-07-0814

       In conducting its case-by-case examination of the circumstances presented, the Gelb court

noted that the defendants had filed their motion to dismiss only 56 days after the plaintiff had

filed the complaint, and the trial court ruled on this motion and dismissed the cause only 111

days from the initiation of the suit. See Gelb, 326 Ill. App. 3d at 821. The Gelb court also noted

that during this time, the plaintiff served discovery upon the defendants directly aimed at

obtaining the identities of putative class members and other information necessary to file a

motion for class certification, but that the trial court ordered all discovery to be stayed, thereby

effectively preventing the plaintiff from filing this motion. See Gelb, 326 Ill. App. 3d at 812,

821. Based on this, the Gelb court reasoned that the plaintiff had not been afforded a reasonable

opportunity to file his motion for certification and that this outweighed any concern regarding

whether the defendants had made a full tender or whether a motion for class certification was

ever filed. See Gelb, 326 Ill. App. 3d at 822. Thus, finding that this fact situation revealed that

the plaintiff had not had enough time in which to even begin to act diligently in pursuing his

claim (let alone file the necessary motion for class certification) before a motion to dismiss had

been filed, the Gelb court concluded that the class action should not be dismissed as moot. See

Gelb, 326 Ill. App. 3d at 821-22.

       In stark contrast lies the case of Arriola. There, the plaintiff-insured brought a class

action suit against the defendant insurance company regarding its subrogation policy. Before the

plaintiff could file a motion for class certification, the defendant tendered payment to him and all

putative class members. The plaintiff refused to accept the tender, but never filed a motion for

class certification. The defendant moved to dismiss the cause, and the trial court granted its


                                                  11
No. 1-07-0814

motion. Following remand on other grounds, the trial court certified an issue to the appellate

court regarding class status. Tackling the issue on review, the Arriola court addressed the effects

of unaccepted tender and the failure to file a motion for class certification upon a class action

suit. Finding the latter to be significant, the Arriola court next examined whether, based upon the

circumstances presented, the plaintiff's failure to file that motion mooted the cause. See Arriola,

323 Ill. App. 3d at 148. With particularity, the Arriola court noted that the motion to dismiss was

not filed until 14 months after the complaint, that the trial court waited more than 20 months

before dismissing the cause, and significantly, that the plaintiff had not pursued the motion for

certification in any way during this time. See Arriola, 323 Ill. App. 3d at 151. Finding that the

trial court would have had a good deal of time in which to consider a motion for class

certification "had one been filed," the Arriola court held that the cause was moot because the

facts indicated that the plaintiff had not exercised reasonable diligence in filing the motion

although he had a reasonable opportunity to do so. Arriola, 323 Ill. App. 3d at 151 ("[the]

plaintiff must have filed a motion for class certification and pursued it with reasonable diligence.

We hold that [the] plaintiff did not do this. Therefore, *** this matter as a class action became

moot"); see Bruemmer, 329 Ill. App. 3d at 764 (trial court's decision to dismiss class action as

moot a year and a half after it was filed was proper where the defendant moved to dismiss 5

months after it was filed and before the plaintiff moved for class certification--having waited

some 16 months to do so--since it was clear that the plaintiff "failed to demonstrate reasonable

diligence" in moving for class certification); see Wheatley, 99 Ill. 2d at 486 (class action was

moot where, in addition to the plaintiffs' acceptance of tender, the reviewing court noted that the


                                                 12
No. 1-07-0814

plaintiffs never moved for class certification although they were required to do so "as soon as

practicable").

       The instant cause here is clearly more factually similar to Arriola than to Gelb. Although

Cohen was charged with the duty to file a motion for class certification expeditiously and to do

so with reasonable diligence, he did not. This is quite significant particularly because Compact

made tender upon Cohen through its July 5, 2006, letter detailing it would honor all expired

coupons. Thus, Cohen was on notice that his claim as the named representative may become

moot. Following this letter, Compact sent Cohen a check for the batteries and an alternative

offer to give him batteries two months after Cohen filed his class action, and did so again a

month later. Compact then waited two more months, or five months after plaintiff had filed his

complaint, to move to dismiss the cause, and the trial court did not grant the motion until eight

months after the complaint had been initiated. Yet, in all this time, Cohen did not move for class

certification--he never did so.

       Cohen makes much of the fact that the trial court had granted him leave to file an

amended complaint until October 3, 2006. He argues that because Compact made its second

tender before he had the opportunity to do so and that Compact moved to dismiss only 28 days

after he filed this amended complaint, Compact attempted to thwart the class action and he

simply was not given a reasonable opportunity to file his motion for class certification, identical

to the assertions of the plaintiff in Gelb. This is wholly inaccurate.

       The plaintiff in Gelb faced a timeline of only 56 days before the defendant moved to

dismiss and only 111 days before the trial court granted that motion. Yet, in this "time-crunch,"


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No. 1-07-0814

he affirmatively initiated discovery to find information necessary to filing a motion for class

certification; he was effectively prevented from doing so by the trial court. In contradistinction,

Cohen had five months before Compact moved to dismiss and over eight months before the trial

court granted that motion. In this entire time, which was undeniably much longer than that

experienced by the plaintiff in Gelb, Cohen did nothing to even pursue a motion to certify the

class in his cause. That he was allowed to file an amended complaint is of no significance here.

Until the amended complaint was filed, his original complaint stood as the basis of the suit. And,

when he did file the amended complaint, all portions of it remained the same; the only change

was in the caption which finally named Nextel West as a proper defendant. Cohen was never

prevented, as was the plaintiff in Gelb, from filing his motion for class certification or from

conducting the discovery necessary to file it. What is more, the trial court here specifically found

that nothing in the timeline of this cause or in the behavior of Compact indicated that Compact

had attempted to "pick off" Cohen as the named representative or thwart the class action suit.

       From all this, it is clear to us that in the eight-month life span of this case, the trial court

would have had plenty of time in which to consider a motion for class certification, had one been

filed. Cohen, however, never did so. There is nothing in the record here to indicate that this

exemplified any sort of reasonable diligence on Cohen's part. Therefore, having concluded that

Cohen did not act diligently in pursuing the class action, we find, in accordance with the legal

principles announced herein, that when Compact tendered Cohen's recoverable damages, Cohen's

right to proceed in this matter as a class action became moot. Consequently, as Cohen was no

longer a proper class representative, he could not seek relief on behalf of any other putative class


                                                  14
No. 1-07-0814

member and, as no remaining class member ever moved to substitute himself as a named

representative in this suit, the class action claim here was properly dismissed as moot. See, e.g.,

Bruemmer, 329 Ill. App. 3d at 764; Arriola, 323 Ill. App. 3d at 151; see also Wheatley, 99 Ill. 2d

at 486-87 (once representative's claim is resolved, he is no longer member of class as his interests

are no longer consistent with class and, where no other member of class seeks to be

representative, class action requirements cannot be met and action cannot be maintained).

       As this disposition pertains to the class action suit as a whole, and thus to all defendants

involved herein, it is not necessary to consider the additional or alternative contentions on appeal

presented by Compact regarding its section 2-615 motion to dismiss and by Nextel West

regarding its corporate relationship with Mr. Cell.3

                                            CONCLUSION

       Accordingly, for all the foregoing reasons, we affirm the judgment of the trial court

dismissing Cohen's class action complaint as moot.

       Affirmed.


       3
           As a final note, Cohen cursorily asserts in his brief that the trial court made an improper

evidentiary finding that Compact posted its offer to honor the coupons on its Web site before the

class action claim was filed. Cohen insists that no such Web page existed until after he filed the

suit. Regardless of the truth of the matter, the court's colloquy in the record makes clear that the

Web site posting was not the basis for its decision. Rather, the court stated that it was the actual

letter Compact sent to Cohen on July 5, 2006, stating that it would honor his coupons, that was

the tender of import here upon which it decided to dismiss the cause.

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No. 1-07-0814

      GALLAGHER and O'MARA FROSSARD, JJ., concur.




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             No. 1-07-0814
__________________________________________________________________________________________________________________________

                                 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                             (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form                     Irwin Cohen, on Behalf of Himself and All Others Similarly Situated,

                                                    Plaintiff-Appellant,

                           v.

                           Compact Power Systems, LLC, a California Limited Liability Corporation, Enterprise
                           Systems, Inc., d/b/a ESI Enterprises, Inc., an Illinois Corporation, Nextel West Corporation,
                           and Mr. Cell Wireless, an Illinois Corporation,

                                                    Defendants-Appellees.
_____________________________________________________________________________________________
                                            No.   1-07-0814
 Docket No.
                                          Appellate Court of Illinois
COURT                                     First District, FIFTH Division
 Opinion
  Filed                                      April 4, 2008
                                         (Give month, day and year)
 __________________________________________________________________________________________
                   PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE
                   COURT:

 JUSTICES                                                  GALLAGHER and O'MARA FROSSARD, JJ.                    concur.

                                     Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook                               Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding.                                      The Hon. JAMES R. EPSTEIN, Judge presiding.
__________________________________________________________________________________________________________________________
                         Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r
FOR APPELLANTS                                                       NONE if not represented.
John Doe, of Chicago

For APPELLEES, :         APPELLANT: LAW OFFICES OF MARK D. BELONGIA, LLC, Chicago, IL Mark D. Belongia and Nathaniel R. Sinn
 _________________________________                                 __
Smith and Smith of
Chicago,                 APPELLEE COMPACT POWER SYSTEMS, LLC: MUCH SHELIST DENENBERG AMENT & RUBENSTEIN,
                         P.C., Chicago, IL Anthony C. Valiulis and Melinda J. Morales

                           APPELLEE NEXTEL WEST CORPORATION: GOLDBERG, KOHN, BELL, BLACK, ROSENBLOOM &MORITZ,
                           LTD., Chicago, IL Frederic R. Klein, Roger A. Lewis and Priya M. Bhatia
 __________________________________________________________________________________________________
(Joseph Brown, of counsel)
Add attorneys for third-
party appellants and/or
appellees.




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No. 1-07-0814




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