First District Illinois Appellate Waffles Between De Novo and Abuse of Discretion Standards In Interlocutory Appeal

Blockbuster was sued in class action cases that alleged the company imposed improper penalties on customers who kept videos or DVDs longer than the prepaid period. In a Texas case, which had a class similar to the Illinois case, Blockbuster settled after the class was certified. Later, the Illinois court entered a provisional order certifying a national class.

Blockbuster moved to decertify the Illinois class based on new case law authority. The Illinois trial court denied the motion, but certified its order for appeal under Illinois Supreme Court Rule 308 (allowing interlocutory appeal of an order that involves “a question of law as to which there is substantial ground for difference of opinion and [when] … an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

This case is interesting because of the confused standard of review analysis. The First District Illinois Court of Appeals stated that the standard of review for a Rule 308 appeal is de novo. But then the appellate court identified the issue as: “[W]hether it was an abuse of discretion for the trial court to apply judicial estoppel to bar Blockbuster from challenging the propriety of certifying a national litigation class due to its previous position in a similar class action in which it agreed to class certification for settlement purposes.” So is it “de novo” or “abuse of discretion”?

In this case, anyway, the appellate court stuck with the “abuse of discretion” standard. The court ruled “that the circuit court abused its discretion when it imposed the equitable doctrine of judicial estoppel to bar Blockbuster from challenging certification of a national litigation class in Illinois …”

This time, the difference between the standards of review probably did not matter. Blockbuster appealed, and showed abuse of discretion to the appellate court’s satisfaction. But should Blockbuster have been held to the stricter standard? And what if it’s the other way around next time? Should the consumer have to show abuse of discretion by the trial court? Or should the appellate court review the question de novo – i.e., without giving discretion to the trial court’s ruling.

Read the whole case, Cohen v. Blockbuster Entertainment, 1-06-2863 (9/26/07), by clicking here.