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Class Action Defense Cases–Du Bouse v. Bayer: Illinois Appellate Court Dismisses Appeal From Class Action Certification Order For Lack Of Jurisdiction Because Defense Failure To Monitor Court Docket Did Not Expand Jurisdictional Appeal Period

30-Day Time Period for Appealing Court Orders Granting or Denying Class Action Treatment is Jurisdictional and Cannot be Evaded by Trial Court Nunc Pro Tunc Order Deeming Order Entered on a Later Date Illinois State Appellate Court Holds

Plaintiff filed a consumer fraud class action in Illinois state court against Bayer AG and others alleging common law fraud and violations of the Consumer Fraud and Deceptive Business Practices Act. De Bouse v. Bayer AG, ___ N.E.2d __ (June 11, 2007) [Slip Opn., at 1]. After granting plaintiff’s motion to certify the lawsuit as a class action, defense attorneys moved for summary judgment, id. The trial court denied the motion but certified three questions for appellate review, id. Defense attorneys then sought leave to appeal the class certification order, and the appellate court consolidated the two appeals, id., at 1-2. Plaintiffs moved to dismiss the appeal for lack of jurisdiction, id., at 2; the appellate court granted the motion.

The appellate court explained that the class certification hearing was held in July 2005 and taken under submission. On September 1, 2005, the court granted class action status, and the order was filed the following day. Du Bouse, at 2. “There is no indication that the order was served personally or by mail on counsel of record.” Id. The parties appeared in court on September 27 and December 29, 2005, in connection with the summary judgment motion, and on January 11, 2006 for purposes of a status conference, id., at 2-3. It was not until January 25, 2006, that defense attorneys moved “to vacate or amend the class certification order nunc pro tunc on the grounds that they had not received notice of the entry of the order granting class certification, that the circuit court clerk failed to serve a copy of the order on all parties and failed to note any service in the file…, and that they made diligent efforts to monitor the court file once the motion had been taken under advisement by the court.” Id., at 3. Defense attorneys argued that they had been monitoring the court file but first learned of the class certification order on January 11, 2006, and that the failure to serve notice of the order “severely prejudiced” defendants’ right to appeal. Id. The trial court agreed and granted motion, ordering the class certification order be deemed filed as of January 11, 2006, id., at 3-4. Defendants sought leave to appeal the class certification order on February 10, 2006, id., at 4.

In dismissing the appeal from the class certification order for lack of jurisdiction, the appellate court noted that orders granting or denying class action treatment must be filed within 30 days of entry of order, and that this time period is jurisdictional and may not be extended by court order. Du Bouse, at 4 (citations omitted). Because the class certification order was entered on September 2, 2005, the application for leave to appeal had to be filed no later than October 3, 2005, id. Accordingly, though the court carefully considered defense arguments urging the court to consider the appeal from the class certification order, see id., at 5-9, the appellate court concluded that defendants’ failure to file by October 3 compelled dismissal of the appeal for lack of jurisdiction, id., at 10. The Court explained at page 9,

Each party had a responsibility to closely and adequately monitor the progress of its case and the court’s rulings in order to ensure that the much-anticipated petition for leave to file the interlocutory appeal was timely filed. That was not accomplished here. The circuit clerk’s failure to mail copies of the order of September 2, 2005, to the parties does not excuse the untimely filing of the petition for leave to appeal. The nunc pro tunc order was not a valid means by which the circuit court could reenter the exact same order and thereby start a new 30-day period in which to file an interlocutory appeal. [¶] The record clearly shows that the order granting class certification was a part of the court file and available for public inspection. It was also noted in a docket entry.

We do not address here that portion of the appellate court opinion concerning the summary judgment issues. That discussion may be found at pages 10-14 of the court’s opinion.

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