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Class Action Defense Cases-CE Design v. Mortgage Exchange: Illinois Court Grants Defense Motion To Dismiss Appeal From Refusal To Certify Class Action For Lack Of Jurisdiction

Motion for Reconsideration of Denial of Class Action did not Toll Statutory Time Period for Appealing Court Order Appellate Court Holds

Plaintiffs filed a putative class action in Illinois state court against The Mortgage Exchange alleging violations of the federal Telephone Consumer Protection Act of 1991 (TCPA), which makes it unlawful to send unsolicited advertisements via facsimile, and the state’s Consumer Fraud and Deceptive Business Practices Act, which prohibits “unfair or deceptive acts or practices.” CE Design, Ltd. v. The Mortgage Exch., Inc., ___ N.E.2d __, Slip Opn., at 1-2 (Ill.App. July 23, 2007). On October 13, 2006, the trial court denied plaintiffs’ motion to certify the litigation as a class action holding (1) “issues such as the specific receipt of and consent to receive a facsimile transmission by each class member were not common issues,” id., at 2-3, and (2) class action treatment was not appropriate “because when Congress enacted the TCPA, it envisioned individual, small claims litigation, not private class actions with potential recoveries in the millions of dollars,” id., at 3. Plaintiffs filed a motion for reconsideration on November 13, 2006, which the trial court denied on February 22, 2007. Id. On March 26, 2007, plaintiffs filed a petition for leave to appeal the denial of their class certification motion, but the appellate court dismissed the petition for lack of jurisdiction.

Illinois law requires that petitions for leave to appeal the denial of a motion to certify a class action must be made within 30 days of the trial court order. CE Design, at 5. Plaintiffs argued that the time period was tolled during the pendency of the motion for reconsideration, id., at 5-6, but the appellate court rejected this argument, see id., at 6-8. Plaintiffs argued in the alternative that their motion for reconsideration was actually a new motion seeking certification of a class action, id., at 8, but the appellate court rejected that argument as well, see id., at 8-9. Accordingly, it dismissed the appeal for lack of jurisdiction, id., at 9.

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