Does Defendant's Tender of Payment to Plaintiff Allow Him to Avoid Defending Class Action ?
In Gelb v. Air Con Refrigeration & Heating, Inc., 326 Ill. App. 3d 809, 814, 761 N.E.2d 265, 260 Ill. Dec. 421 (2001) (Gelb I), defendants tendered a settlement offer to the named plaintiffs, before plaintiffs had filed a motion for certification. Gelb I, 326 Ill. App. 3d at 811.
In Gelb I, the tender occurred only a month and a half after suit was filed, and defendants then moved quickly to dismiss, claiming that their tender had mooted the case. Gelb I, 326 Ill. App. 3d at 811.
In Gelb I, the Court reversed the trial court's dismissal order, finding that it was premature to dismiss on mootness grounds, without first allowing plaintiffs "a reasonable opportunity to file a motion for class certification." Gelb I, 326 Ill. App. 3d at 822.
In Gelb I, the Court found that the plaintiff was diligent where, two weeks after the complaint, he "attempted to initiate discovery" concerning the putative class members, but it was stayed. Gelb I, 326 Ill. App. 3d at 821.
Similarly, in Hillenbrand v. Meyer Medical Group. S.C., 308 Ill. App. 3d 381, 391, 720 N.E.2d 287, 241 Ill. Dec. 832 (1999), this court reversed and remanded, with directions that the trial court rule on class certification prior to ruling on any motions "based on the theory of mootness." Hillenbrand. 308 Ill. App. 3d at 392.
In Hillenbrand, defendant had tendered a settlement offer which would have made the named plaintiffs entirely whole. Hillenbrand. 308 Ill. App. 3d at 390.
After the offer, defendant moved for summary judgment claiming that "as a result of defendant's tender of payment, the plaintiffs' remaining claims were moot, leaving them without standing to represent the purported class." Hillenbrand, 308 Ill. App. 3d at 385.
The Court reversed the trial court's grant of summary judgment, stating that "to hold otherwise would allow a party to avoid ever defending a class action by simply tendering payment to the named plaintiffs." Hillenbrand, 308 Ill. App. 3d at 392.