                        Docket No. 110092.


                             IN THE
                     SUPREME COURT
                                OF
                THE STATE OF ILLINOIS




ANDREA BARBER, Appellee, v. AMERICAN AIRLINES, INC.,
                    Appellant.

                  Opinion filed March 24, 2011.



     JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
     Justices Thomas, Garman, Karmeier, Burke, and Theis concurred
in the judgment and opinion.
     Chief Justice Kilbride specially concurred, with opinion.



                            OPINION

    Plaintiff Andrea Barber filed a class action complaint against
defendant American Airlines for breach of contract. The circuit court
granted defendant’s motion to dismiss, and plaintiff appealed. A
divided panel of the appellate court reversed and remanded. 398 Ill.
App. 3d 868. For the reasons set forth below, we reverse the
judgment of the appellate court.

                        I. BACKGROUND
   Plaintiff purchased a ticket to travel on defendant’s flight 4414
from Chicago to White Plains, New York, on August 11, 2008. Prior
to boarding, plaintiff checked two suitcases for transport to White
Plains and was charged a $40 checked baggage fee. Defendant
subsequently canceled the flight. Plaintiff elected not to take another
flight and instead requested cancellation of her ticket and a refund of
the ticket price and the $40 baggage fee. Defendant refunded the price
of the airline ticket, but allegedly refused to refund the $40 baggage
fee. According to plaintiff’s complaint, defendant’s counter agent
advised her it was not defendant’s policy “to refund fees paid by ticket
holders for transportation of luggage in conjunction with a passenger
flight when that flight is canceled by Defendant and the passenger
does not accept another flight.”
     On August 15, 2008, four days after her flight was cancelled,
plaintiff filed her class action complaint against defendant in the circuit
court of Cook County. There is no indication in the record that, prior
to filing this complaint, plaintiff made any additional effort to contact
defendant seeking a refund or to investigate whether the information
allegedly provided by defendant’s counter agent was accurate. Count
I of plaintiff’s complaint, which is for breach of contract, alleges
defendant’s “failure to transport her two suitcases was a breach of
contract and Plaintiff was entitled to a refund.” Count II, the class
action count, seeks recovery on behalf of similarly situated persons.
Plaintiff served defendant with the complaint on August 21, 2008.
     Defendant subsequently determined that plaintiff was entitled to
a refund of the $40 baggage fee. On September 4, two weeks after
being served with the complaint, defendant contacted plaintiff’s
counsel and offered to refund the $40 fee. Defendant also stated it
would consider paying the court costs plaintiff had incurred to date.
Plaintiff’s counsel declined the offer, and advised that the case would
proceed as a class action. On September 25, defendant refunded the
$40 fee to plaintiff’s credit card, the original form of payment. By
letter dated September 29, defendant’s counsel informed plaintiff’s
counsel of the refund. On the same day, September 29, plaintiff sent
defendant an interrogatory seeking the identity of other potential class
members.
     On October 30, 2008, defendant filed an objection to plaintiff’s
interrogatory. Defendant also moved to dismiss plaintiff’s complaint
pursuant to section 2–619 of the Code of Civil Procedure (735 ILCS
5/2–619(a)(9) (West 2006)), on the grounds that plaintiff’s contract

                                   -2-
claim was meritless and her complaint was moot because defendant
had refunded the $40 fee to her. In an agreed order, the circuit court
set a briefing schedule for defendant’s motion to dismiss and entered
and continued defendant’s objection to plaintiff’s interrogatory. On
January 28, 2009, nearly three months after defendant’s objection to
the interrogatory, plaintiff moved to compel defendant to answer,
requesting defendant be ordered to answer prior to the hearing on
defendant’s motion to dismiss. About one month later, on February
26, the circuit court denied the motion to compel and ordered the
motion to dismiss to be heard on March 10 as scheduled.
    On March 10, 2009, after reviewing the parties’ briefs and hearing
oral argument, the circuit court granted defendant’s motion and
dismissed the complaint on mootness grounds. Plaintiff never filed a
motion for class certification.
    On appeal, the appellate court majority reversed and remanded,
concluding plaintiff’s claim was not moot. 398 Ill. App. 3d 868. The
dissent disagreed, relying on this court’s decision in Wheatley v.
Board of Education of Township High School District 205, 99 Ill. 2d
481 (1984). 398 Ill. App. 3d at 888 (Cahill, P.J., dissenting). We
allowed defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff.
Feb. 26, 2010)) and allowed the Pacific Legal Foundation to file a
brief amicus curiae in support of defendant (Ill. S. Ct. R. 345 (eff.
Sept. 20, 2010)).

                             II. ANALYSIS
    Defendant argues the appellate court erred in reversing the
dismissal of plaintiff’s complaint. Defendant contends that under
Wheatley, if a defendant tenders the named plaintiff the relief
requested before a motion for class certification is filed, the underlying
cause of action must be dismissed as moot. Here, defendant tendered
the $40 baggage fee to plaintiff and refunded that amount to her credit
card, and plaintiff never filed a motion for class certification.
According to defendant, the circuit court correctly granted its section
2–619 motion to dismiss plaintiff’s complaint as moot, and the
appellate court’s reversal was directly contrary to Wheatley.
    Plaintiff counters that defendant’s tender was an unfair attempt to
“pick off” her claim in order to avoid a class action, and the appellate

                                   -3-
court correctly rejected the attempt. In reaching its conclusion, the
appellate court applied what it termed a “pick off” exception. Under
this exception, a plaintiff who fails to move for class certification prior
to a defendant’s tender may nevertheless pursue class certification if
the plaintiff has exercised reasonable diligence in that regard. Plaintiff
argues she met the requirements of this exception, and the appellate
court’s judgment should be affirmed.
     A motion to dismiss pursuant to section 2–619 admits the legal
sufficiency of the plaintiff’s complaint, but asserts an affirmative
defense or other matter that avoids or defeats the plaintiff’s claim.
DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). A section 2–619
dismissal is reviewed de novo. Parks v. Kownacki, 193 Ill. 2d 164,
175 (2000).

                             A. Wheatley
    In Wheatley, this court applied mootness principles in the context
of a class action. We note that the appellate court majority did not
discuss Wheatley’s application to this case, although the dissenting
justice did. In our view, Wheatley controls the resolution of this case,
and therefore merits thorough discussion.
    The plaintiffs in Wheatley were two teachers who had been
dismissed by the defendant board of education at the end of the school
year. The plaintiffs filed a class action complaint on behalf of
themselves and 57 other teachers who had also been dismissed. Nearly
one month after the complaint was filed, the two named plaintiffs
accepted the board’s offer of re-employment. The board moved to
dismiss the complaint on mootness grounds, and the circuit court
granted the motion.
    This court affirmed, holding that the claims of the named plaintiffs
beca me moot when the board granted the relief
requested–reinstatement. Wheatley, 99 Ill. 2d at 485, 487. There was
no longer a controversy between the named plaintiffs and the board.
They could not meet the class action requirement that the named
representative of a putative class have a valid claim against the
defendant. The court stated:
        “Because the claims of the named representatives here have
        been resolved, they are not proper parties who would fairly

                                   -4-
         and adequately protect the interest of the class they purport to
         represent. 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.
     This court rejected any notion that the action should be allowed
to continue because relief could still be granted for teachers who were
not offered re-employment. The court explained that the plaintiffs
“never moved for or received class certification prior to the trial
court’s granting of the Board’s motion to dismiss.” Wheatley, 99 Ill.
2d at 485-86. The court added that no remaining member of the class
sought to substitute himself as a named representative. Wheatley, 99
Ill. 2d at 487.
     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. Wheatley, 99 Ill. 2d at 485-86;
see, e.g., Cohen v. Compact Power Systems, LLC, 382 Ill. App. 3d
104, 109-10 (2008). 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. Hillenbrand v. Meyer Medical Group, S.C., 308 Ill. App. 3d
381, 392 (1999) (citing Susman v. Lincoln American Corp., 587 F.2d
866, 870 (7th Cir. 1978)). The reason is that a motion for class
certification, while pending, sufficiently brings the interests of the
other class members before the court “so that the apparent conflict
between their interests and those of the defendant will avoid a
mootness artificially created by the defendant by making the named
plaintiff whole.” Susman, 587 F.2d at 869.
     The situation is different where the tender is made before the filing
of a motion for class certification. Wheatley, 99 Ill. 2d at 485-86.
There, the interests of the other class members are not before the
court (see Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012,
1015 (7th Cir. 1999)), and the case may properly be dismissed. Yu v.
International Business Machines Corp., 314 Ill. App. 3d 892, 899
(2000) (stating, in affirming dismissal of suit as moot: “While it is true
that, if a motion for class certification is pending at the time tender is

                                   -5-
made, the case is not moot, here, tender was made prior to plaintiff
filing the motion for class certification ***.”); see also Arriola v. Time
Insurance Co., 323 Ill. App. 3d 138, 151 (2001) (dismissing class
action claims as moot, where defendant tendered relief and plaintiff
never filed motion for class certification).
     In the case at bar, it is undisputed that, at the time defendant
tendered the baggage fee refund to plaintiff, no motion for class
certification was pending. Plaintiff never filed a motion for class
certification. Under Wheatley, therefore, her claim was moot, and the
circuit court correctly dismissed it. Notwithstanding the foregoing,
plaintiff urges us to adopt the “pick off” exception which the appellate
court below employed in allowing plaintiff’s claim to proceed.

               B. The “Pick Off” Exception to Wheatley
     As the dissenting justice below correctly observed, this exception
to Wheatley has gradually evolved in our appellate court. 398 Ill. App.
3d at 889 (Cahill, P.J., dissenting). The exception’s origin can be
traced to Arriola, where, as in the case at bar, the defendant tendered
relief to the named plaintiff, who never filed a motion for class
certification. Arriola relied on Wheatley in holding that a class action
cannot be sustained if the defendant tenders full damages to the named
plaintiff before the plaintiff moves for class certification. Arriola, 323
Ill. App. 3d at 151. The court then implied, in dicta, that if the named
plaintiff had moved for class certification early in the litigation, the
result could have been different. Arriola, 323 Ill. App. 3d at 151-52.
The court quoted Susman: “ ‘If the class action device is to work, the
courts must have a reasonable opportunity to consider and decide a
motion for certification.’ ” Arriola, 323 Ill. App. 3d at 152 (quoting
Susman, 587 F.2d at 870). Arriola interpreted this language as
implicitly holding that a class action plaintiff must be given a
“reasonable opportunity” to move for class certification before the
case can be dismissed. Arriola, 323 Ill. App. 3d at 152. Arriola has
since been cited for the proposition that a class action suit should not
be dismissed where the defendant tendered full payment to the named
plaintiff before the plaintiff had a “reasonable opportunity” to move
for certification of the class. See Gelb v. Air Con Refrigeration &
Heating, Inc., 326 Ill. App. 3d 809, 821 (2001); Bruemmer v.
Compaq Computer Corp., 329 Ill. App. 3d 755, 763-64 (2002);

                                   -6-
Cohen v. Compact Power Systems, LLC, 382 Ill. App. 3d 104, 110-14
(2008); Akinyemi v. JP Morgan Chase Bank, N.A., 391 Ill. App. 3d
334, 340-42 (2009).
     We agree with the dissenting justice that the exception to
Wheatley developed through this line of cases “has no basis in the
law.” 398 Ill. App. 3d at 889 (Cahill, P.J., dissenting). Susman did not
hold, as Arriola suggested, that a named plaintiff in a class action suit
is entitled to a reasonable opportunity to move for class certification.
The court in Susman was concerned with the trial court’s opportunity
to rule on class certification once a motion to dismiss has been filed.
Susman, 587 F.2d at 870. The court’s holding was limited “to the
fairly narrow situation where a motion for certification has been
pursued with reasonable diligence and is pending when a tender is
made.” (Emphasis added.) Susman, 587 F.2d at 871 n.4.
     Plaintiff cites public policy concerns in allowing a defendant to
prevent class action litigation by “picking off” the named plaintiff
before there is an opportunity to protect the interests of absent class
members by moving for certification. However, there is no prohibition
against settlements with class members as long as the rights of
nonsettling class members are not affected. Jankousky v. Jewel Cos.,
182 Ill. App. 3d 763, 767-68 (1989) (noting that public policy favors
and encourages settlements). There is no indication here that
defendant’s refund to plaintiff affected the rights of others who did not
receive similar refunds. Presumably, the remaining class members can
either pursue class litigation or bring their claims individually. Indeed,
this class action could have survived if one of the remaining class
members had substituted himself as the named representative. See
Wheatley, 99 Ill. 2d at 487.
     In sum, the “pick off” exception applied by the appellate court
below directly contradicts Wheatley, which upheld a dismissal for
mootness where the named plaintiffs were granted the relief requested
but never moved for class certification. We hereby reject this “pick
off” exception. 1 The circuit court below correctly dismissed plaintiff’s


     1
     Under Wheatley, which we reaffirm, a named plaintiff who files a
motion for class certification prior to a defendant’s tender may avoid a
mootness determination, at least until after the circuit court rules on the

                                   -7-
class action claim as moot. See Wheatley, 99 Ill. 2d at 485-86. We
reverse the judgment of the appellate court reversing that dismissal.
     We note, in addition, that Gelb, on which the appellate court
relied, is the only Illinois appellate decision we are aware of, other
than the decision below, which specifically holds that a plaintiff’s
claim is not moot when a tender is made before the filing of a motion
for class certification. Gelb directly contradicts Wheatley, and Gelb is
hereby overruled.
     While the ultimate holdings of Arriola, Bruemmer, Cohen, and
Akinyemi are in conformity with Wheatley, each of these four
appellate decisions contains language essentially acknowledging and
recognizing the “pick off” exception expressly rejected above. This
language is a clear departure from Wheatley and is therefore incorrect
and should not be cited.

                        III. CONCLUSION
    For the foregoing reasons, the judgment of the appellate court is
reversed.

    Appellate court judgment reversed;
    circuit court judgment affirmed.



    CHIEF JUSTICE KILBRIDE, specially concurring:
    The majority reverses the appellate court’s judgment, concluding
that the trial court correctly dismissed plaintiff’s class action complaint
as moot under Wheatley because no motion for class certification was
pending when defendant tendered full relief to plaintiff, the named
class representative. Slip op. at 6. While I agree with that outcome, I
write separately to recognize authority supporting the pick-off
exception and state expressly what the majority’s holding implies.
    The United States Supreme Court, the Seventh Circuit Court of
Appeals, and our own appellate court have all criticized the practice


motion for class certification.

                                   -8-
of a defendant “picking off” the named plaintiff in a class action
through tender of relief prior to class certification in an attempt to
defeat the action. See Deposit Guaranty National Bank of Jackson,
Mississippi v. Roper, 445 U.S. 326, 339 (1980) (explaining that the
practice “frustrate[s] the objectives of class actions,” and has the
potential to waste judicial resources); Susman v. Lincoln American
Corp., 587 F.2d 866, 870 (7th Cir. 1978) (“If a tender made to the
individual plaintiff while the motion for certification is pending could
prevent the courts from ever reaching the class action issues, [the]
opportunity [for a court to consider class certification] is at the mercy
of a defendant, even in cases where a class action would be most
clearly appropriate.”); Hillenbrand v. Meyer Medical Group, S.C.,
308 Ill. App. 3d 381, 392 (1999) (refusing to “allow a party to avoid
ever defending a class action suit by simply tendering payment to the
named plaintiffs, in each class action filed against it, prior to the trial
court’s ruling on their motion for class certification”).
    The pick-off exception was developed to address those objectives.
The majority fails to acknowledge the justification for the exception,
presumably because there is no evidence of an improper “pick off”
here. Although I agree with the majority that the appellate court
erroneously expanded the exception in Arriola and subsequent
decisions to apply when no motion for class certification is pending at
the time of the tender, the majority nonetheless adopts an approach
consistent with the exception’s underlying justification. Specifically,
the majority hinges its analysis on the filing of a motion for
certification, explaining 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.”
Slip op. at 5. In other words, any mootness issue should not be
considered until the trial court has had the opportunity to rule on a
pending class certification motion, regardless of the tender of full relief
to the named plaintiff that would ordinarily render a case moot.
    In my opinion, the majority, by rejecting only the erroneously
broad application of the pick-off exception applied in this case (slip
op. at 7-8), has implicitly endorsed a narrower pick-off exception. As
the majority instructs, when a motion for certification is pending at the
time of tender of full relief, the trial court should not consider the

                                   -9-
mootness issue until after it has ruled on the motion for certification.
Slip op. at 5. Simply stated, the majority’s holding means that the
pick-off exception survives but is limited to circumstances when a
motion for certification has been filed, or is otherwise pending, prior
to the tender of relief. When that occurs, as the majority also
concludes, the trial court should rule on the plaintiff’s pending motion
for class certification before ruling on the defendant’s motion
challenging the case on mootness grounds. See also Hillenbrand, 308
Ill. App. 3d at 392 (explaining the procedures for a trial court to
follow when ruling on a pending motion for class certification).
     This approach honors the rationale recognized by the courts in
Roper, Susman, and Hillenbrand and is entirely consistent with this
court’s decision in Wheatley. Here, because no motion for class
certification had been filed when defendant refunded plaintiff the
contested baggage fee, the exception does not apply and the trial court
properly ruled in favor of defendant’s motion to dismiss. Accordingly,
I concur with the majority’s conclusion that the appellate court’s
judgment overruling the trial court must be reversed.




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