Appeals court removes class representative from junk fax action, says named plaintiff is 'tool' of lawyer

By Dan Churney | Jan 21, 2016

Advance Funds Network is being sued for allegedly sending unwanted fax message soliciting services.   Shutterstock

In a sharply worded 2-1 decision, the Illinois First District Appellate Court in Chicago overturned a lower court decision and barred a plaintiff from serving as representative in a class-action suit involving allegedly unsolicited faxes, describing the plaintiff as a "tool" of his lawyer.

“(The plaintiff) is precisely the class representative a court wants to detect and avoid,” said the author of the Jan. 19th appellate opinion, Justice Michael B. Hyman.

However, dissenting Justice John B. Simon objected that the majority opinion marked a “significant departure from the precedential status quo.”

In 2011, Carl F. Byer, who runs Byer Clinic & Chiropractic in Arlington Heights, filed for a class action suit in Cook County Circuit Court against Eniva USA, Eniva International, Eniva IC Disc and Michael Kapraun, a chiropractor in Montrose, Mich. Eniva eventually went bankrupt and dropped from the case, leaving Kapraun the lone defendant.

Byer alleged Eniva and Kapraun violated the U.S. Telephone Consumer Protection Act by sending unsolicited faxes about Kapraun's anti-aging vitamin product to thousands of recipients in March and September 2006. Cook County Judge Leroy Martin Jr. voiced reservations about certifying the case as a class action suit, because of concern whether Byer was a bona fide representative for members of such a class.

Martin described some of Byer’s answers during a deposition as “troubling,” but nonetheless said he was “unwilling to go so far as to say that in this instance the class representative is a pawn of class counsel.”

Appellate justices Michael Hyman and P. Scott Neville had no such reservations, however, when they addressed Kapraun's appeal.

“Byer’s testimony depicts Byer as uninformed, lackadaisical and inattentive about the facts, the litigation, and his role as the class representative. Why even bother to appoint a class representative who unveils himself or herself as a tool of class counsel?” Hyman said, with Neville’s concurrence.

Justice Hyman pointed out Byer, in his deposition, exhibited a lack of knowledge of the suit, in that Byer said he did not remember how he came to be a plaintiff, understood he had no duties to any class members and did not know what claims were made in the suit or the amount of damages sought. Further, Byer said he believed he was pursuing the case individually, not as part of a group and could not recall whether he initiated contact with the attorney in the suit – Brian J. Wanca, of Rolling Meadows – or if Wanca solicited him.

In reply to the question whether he had read the complaint before it was filed, Byer replied, “I just glanced at it or something of that order.”

Hyman zeroed in on Byer’s statement he allegedly had not signed an agreement or understanding with Wanca regarding attorney fees. Hyman pointed out the Illinois Rules of Professional Conduct require a contingent fee agreement be in writing and signed by the client, spelling out how fees are to be calculated.

“The deposition testimony reveals a passive figurehead,” Hyman observed.

In dissent, Justice Simon contended the majority opinion “erects a higher barrier for attaining class certification than has previously been recognized in Illinois” and “unnecessarily muddies the waters” as to what is demanded of a plaintiff to represent a class action.

Simon argued that when Byer’s deposition is considered in its entirety, there is no doubt he is “motivated, willing and able to serve as class representative.” Simon summed up that Byer has a “baseline knowledge” of his responsibilities in the suit, which satisfies the “low” threshold required to represent a class action.

Hyman countered that Simon failed to “appreciate that a superficial class representative is no class representative at all.” In addition, Hyman pointed out that Simon’s position that the “need for plaintiff’s testimony is minor,” constitutes a view that will “erode public confidence in class actions and undermine the integrity of the entire framework that governs class actions.”

All the justices did agree on another issue, albeit a moot one. They ruled even if Byer qualified as a representative, Byer could not represent a class action for both the March and September 2006 fax transmissions, as Byer admitted he only received the March fax. Besides, justices said the two transmissions made up two separate and allegedly wrong acts, not one continuing wrong.

The case has been remanded to circuit court, but the next hearing date has not been scheduled.

Kapraun is defended by Gardiner, Koch and Hines, of Chicago.

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Anderson + Wanca Gardiner Koch Weisberg & Wrona

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