CIVIL

Italia Foods, Inc. v. Sun Tours, Inc.

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC Advertisers beware: Illinois courts need not wait for the green light from the General Assembly to hear claims under the federal Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 (2000).  Italia Foods, the class action plaintiff, alleged that the defendant travel agency sent Italia 28 unsolicited faxes advertising discount travel.  Italia joined forces with other unhappy recipients to seek redress under the TCPA, which Congress enacted to address telemarketing abuses through the use of fax machines and other devices. After the trial court denied a motion to dismiss, it certified three questions for interlocutory review, but the supreme court focused primarily on the first question: whether the TCPA requires the state to enact enabling legislation before private TCPA claims can proceed in Illinois state courts.  The supreme court found the statutory language, allowing private claims to proceed in state courts “if otherwise permitted by the laws or rules of court of a State,” to be ambiguous.  Guided by a 2007 appellate decision and the Supremacy Clause, the Illinois Supreme Court ruled that no state legislation was required.  See U.S. Const., art. vi, cl. 2; First Capital Mortgage Corp. v. United Federal Bank, 374 Ill. App. 3d 739 (1st Dist. 2007).  The court reasoned that the federal statutory language acknowledges supremacy clause jurisprudence compelling state courts to host lawsuits to enforce federal rights. The supreme court found that the remaining certified questions concerning assignability and timeliness missed the mark on the record before the court.  Italia, which had substituted for the prior named plaintiff, did not rely on an assignment for its claims.  The supreme court, accordingly, vacated the appellate court’s opinion addressing assignability and directed the appellate court to answer a different question: whether to apply the Illinois two-year limitations period for personal injuries or the four-year limitations period for federal civil actions. Opinion 110350 Case summary