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                                                                                                                                                                    FIFTH DIVISION 

                                                                                                                                                                    November 4, 2005

No. 1-04-1454

           JUSTICE O'MARA FROSSARD delivered the opinion of the court:

            Plaintiffs Miriam Fisch and Jane Alexander brought this class action suit against defendantsLoews Cineplex Theatres, Inc., Loews Theatre Management Corporation, and Lowes Piper'sTheatres, Inc. (hereinafter Loews or defendants), alleging violation(s) of the Illinois Consumer Fraudand Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2000))and the Illinois Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2000)). Plaintiffs' third amended class action complaint (complaint) alleges defendants deliberately withheldand suppressed material information regarding the length of the previews shown prior to their movies.The prayer for relief in plaintiffs' complaint seeks an injunction requiring defendants to give viewersreasonable notice of either the true starting times for the feature films or the length of the previewsand advertising preceding the feature films. Defendants filed a motion to dismiss plaintiffs' complaintpursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West2000)). The trial court entered an order granting defendants' motion, and plaintiffs filed a notice ofappeal from that order. Thereafter, defendants filed a motion in this court seeking dismissal ofplaintiffs' appeal, contending that events had occurred following the completion of appellate briefingin this case which rendered their appeal moot.

                                                             BACKGROUND

            Plaintiffs' complaint alleges defendants deliberately withheld and suppressed materialinformation regarding the length of time of pre-movie content such as commercial advertisements,product promotions, and movie trailers. According to plaintiffs, defendants provided movie timesthat were intentionally vague and misleading and that forced consumers to arrive at theaters early andbecome part of an unwitting captive audience that defendants could sell to advertisers.

            The prayer for relief in the complaint states in relevant part:

"Plaintiffs *** pray for the following relief:

* * *

Provide Injunctive Relief to the Plaintiffs class, ordering[defendants] to give reasonable notice to consumers as to the truestarting times for feature films or, in the alternative, give reasonablenotice to consumers regarding the length of time of the 'pre-show'movie content so that consumers can make informed choices anddecisions as to whether they want to subject themselves to commercialadvertisements, promotions, and movie previews prior to the start offeature films. Reasonable notice might consist of Defendants' simplylisting the approximate length of time of their pre-movie content intheir newspaper advertisements e.g., 'Notice: There will be 15 minutesof "pre-show" entertainment prior to the start of the feature film,' or,in the alternative, notice might consist more fully of Defendants'providing the specific start times of the commercial advertisements,movie previews, and feature films, e.g., ‘Advertisements andPromotions from 6:00 to 6:05; previews 6:05 to 6:20; feature film at6:20.’ "

            Defendants filed a motion to dismiss plaintiffs' complaint pursuant to section 2-615 of theCode (735 ILCS 5/2-615 (West 2000)), contending that the complaint failed to state a claim uponwhich relief could be granted. Following a hearing, the trial court granted the motion to dismiss. Onappeal, plaintiffs contend that the trial court failed to apply the plain language of the Consumer FraudAct (815 ILCS 505/1 et seq. (West 2000)) to the misconduct at issue; that the trial court erred bymaking factual assumptions beyond the pleadings; that this court’s decisions in Covarrubias v.Bancomer, S.A., 351 Ill. App. 3d 737 (2004), and Smith v. Prime Cable of Chicago, 276 Ill. App.3d 843 (1995), necessitate reversal in the instant case; and that the circuit court wrongfully dismissedthe case on an outdated de minimus theory that has no relevance to the Consumer Fraud Act.

            Several months after filing their appellate brief, defendants filed a motion in this court,contending that the instant appeal is moot. They explain in the motion that on May 3, 2005 (aboutsix months after the completion of appellate briefing in this case), their parent corporation announcedthat beginning in Connecticut on May 13, 2005, and then in all other markets within a month, Loewstheater movie listings “will note that the feature presentation will start 10 to 15 minutes after thepublished showtime.” Defendants assert in the motion that numerous newspapers, including theChicago Sun-Times, reported on the announcement, and they have attached samples of such newsstories to the motion. Defendants have also attached to their supplemental brief on mootness copiesof movie listings from the July 29, 2005, editions of the Chicago Sun-Times, the Chicago Tribune,and the Chicago Daily Herald, each of which includes the printed notation “Feature presentations start10-15 minutes following published showtimes.” Defendants maintain that their policy changeeliminates entirely the possibility that plaintiffs will suffer any future injury from the complained-ofpractices.

            State Representative Jack Franks (D-Woodstock) in February of 2005 proposed House Bill1472 requiring theaters in Illinois to list one starting time for when previews and advertisements beginand another starting time for when the movie actually begins. Similar laws have been proposed inConnecticut and New York. As reported in the Chicago Sun-Times on May 3, 2005, Travis Reid,chief executive officer (CEO) for Loews Cineplex Theatres, sent a letter to State RepresentativeFranks indicating that Loews will alert moviegoers that feature presentations start 10 to 15 minutesafter published show times. The Sun-Times further reported that State Representative Franks reactedby noting, “This is good business for them, but he was also being responsive to his patrons. It’s justthe right thing to do.” B. Fischer, “When does movie really start? Now You'll Know,” Chicago Sun-Times, May 3, 2005, at 3.

ANALYSIS

            An appeal is considered moot if no actual controversy exists or if events have occurred thatmake it impossible to grant the complaining party effectual relief. In re Marriage of Peters-Farrell,216 Ill. 2d 287, 291 (2005). Mootness, as a doctrine, stems from the concern that parties to aresolved dispute lack a sufficient personal stake in the outcome to assure that there is an adversarialrelationship that sharpens the presentation of issues upon which the courts largely depend forillumination of difficult questions. Peters-Farrell, 216 Ill. 2d at 291. An action will be dismissed formootness once the plaintiff has secured what was originally sought. Katherine M. v. Ryder, 254 Ill.App. 3d 479, 486 (1993). In general, courts will not consider moot or abstract questions or renderadvisory decisions. In re Robert S., 213 Ill. 2d 30, 45 (2004). Indeed, a court should not resolve anissue simply to establish precedent or to offer guidance for future actions. People ex rel. Ulrich v.Stukel, 294 Ill. App. 3d 193, 198 (1997). However, a defendant’s voluntary cessation of allegedlyunlawful conduct cannot moot a case unless it is absolutely clear that the defendant’s wrongfulconduct could not reasonably be expected to recur. City of Chicago v. Beretta U.S.A. Corp., 337Ill. App. 3d 1, 22 (2002) (supplemental opinion), rev'd on other grds, 213 Ill. 2d 351 (2004). "Theburden is on the defendant to make this showing." Beretta, 337 Ill. App. 3d at 22.

            In the instant case, plaintiffs have secured what they sought in their prayer for relief:reasonable notice of the true starting times of movies shown at theaters operated by defendants. Plaintiffs argue that without a legal injunction, defendants could reverse this policy change at any timeand that the case therefore cannot be dismissed as moot. In support of this contention, plaintiffs relyupon Fryzel v. Chicago Title & Trust Co., 173 Ill. App. 3d 788 (1988), and Cohan v. Citicorp., 266Ill. App. 3d 626 (1993). We find plaintiffs' reliance on Fryzel and Cohan misplaced.

            In Fryzel and Cohan the reviewing courts reviewed whether the defendants opposingimposition of an injunction had satisfied their burden of establishing that the complained-of conductwas not likely to recur. Cohan, 266 Ill. App. 3d at 630; Fryzel, 173 Ill. App. 3d at 794. The courtsin both cases concluded that the defendants had not satisfied this burden based on the defendants' assertion of the right to engage in the complained-of conduct in the future. Cohan, 266 Ill. App. 3dat 630; Fryzel, 173 Ill. App. 3d at 794.

            Unlike the defendants in Fryzel and Cohan, defendants in the instant case have not asserted,insisted upon, or maintained the right to omit reasonable notice of the actual starting times from theirmovie listings in the future. Rather, defendants publicly announced that in response to suggestionsfrom customers they were implementing their new practice of disclosing the fact that featurepresentations begin 10 to15 minutes following published showtimes. Indeed, defendants publiclyannounced that this practice would be implemented not just in Chicago but across the country. Furthermore, Lowes CEO Travis Reid sent a letter to State Representative Jack Franks notifying himof Loews' implementation of this practice.

            In addition to relying upon Fryzel and Cohan, defendants rely upon United States v.Concentrated Phosphate Export Ass'n, 393 U.S. 199, 21 L. Ed. 2d 344, 89 S. Ct. 361 (1968), tosupport their contention that defendants have not satisfied their burden of establishing their allegedwrongful behavior could not reasonably be expected to recur.

            In Concentrated Phosphate, the United States government brought an antitrust action againstthe appellees, alleging that on 11 different occasions they sold and exported concentrated phosphateto the Republic of Korea in violation antitrust laws. Concentrated Phosphate, 339 U.S. at 200-01,21 L. Ed. 2d at 347, 89 S. Ct. at 362-63. On appeal, the appellees contended that the case hadbecome moot because such transactions had become uneconomical and were not likely to recur. Concentrated Phosphate, 339 U.S. at 202-03, 21 L. Ed. 2d at 348, 89 S. Ct. at 363-64. The courtrejected this contention, explaining:

"A case might become moot if subsequent events made it absolutelyclear that the allegedly wrongful behavior could not reasonably beexpected to recur. But here we have only appellees' own statementthat it would be uneconomical for them to engage in any further jointoperations. Such a statement, standing alone, cannot suffice to satisfythe heavy burden of persuasion which we have held rests upon thosein appellees' shoes." Concentrated Phosphate, 339 U.S. at 203, 21 L.Ed. 2d at 349, 89 S. Ct. at 364.

            We find Concentrated Phosphate distinguishable from the case at bar. In ConcentratedPhosphate, the government sought not an injunction requiring appellees to implement a certainpractice on a daily basis but rather an injunction prohibiting them from undertaking a certain type of transaction, namely, the sale and export of concentrated phosphate. The decision in ConcentratedPhosphate does not indicate that the appellees affirmatively stated that they would not engage in thecomplained-of transactions. Rather, it reflects only that they stated it would be uneconomical forthem to engage in such transactions.

            Here, in contrast, plaintiffs do not seek an injunction requiring defendants to refrain fromengaging in a certain type of transaction in the future. Rather, plaintiffs seek an order requiringdefendants to implement and follow a practice that they are already performing, namely, the providingof reasonable notice of the true start time of their movies. We recognize defendants have not signeda contract promising to continue this practice indefinitely. We note, however, as mentioned above,that defendants publicly announced they have undertaken this practice in response to the suggestionsof viewers and that Lowes CEO Travis Reid took the step of sending a letter to State RepresentativeJack Franks notifying him of this practice. Moreover, defendants have not asserted, insisted upon ormaintained the right to omit reasonable notice of the actual starting times from their movies listingsin the future. In light of the totality of circumstances, including the words and conduct of defendants,we conclude defendants have satisfied their burden of establishing that their alleged wrongful behaviorcould not reasonably be expected to recur. Were we to address this appeal, we would be doing soonly in order to set precedent or to provide guidance for future actions. This would beinappropriate. At this time, we cannot grant plaintiffs any effectual relief because the decision bydefendants to disclose to the public the fact that feature presentations will start 10 to 15 minutes aftertheir published showtimes has resolved the issue on appeal. Therefore, this case is moot.

            Plaintiffs argue that we may hear their appeal because it involves a significant public interest. The public interest exception to the mootness doctrine applies only if there is a clear showing that (1)the question is of a substantial public nature; (2) an authoritative determination is needed for futureguidance of public officers; and (3) the circumstances are likely to recur. Peters-Farrell, 216 Ill. 2dat 292; Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 395 (1994). This exceptionrequires a clear showing of each factor to bring the case within the public interest exception. Bonaguro, 158 Ill. 2d at 395. It may be invoked only on rare occasions when there is anextraordinary degree of public interest and concern. Duncan Publishing, Inc. v. City of Chicago, 304Ill. App. 3d 778, 783 (1999).

            We disagree with plaintiffs that the public interest exception should apply in this case. First,this case involves a private dispute between private parties. Therefore, no question of a “publicnature” exists that requires our consideration. See Mount Carmel High School v. Illinois HighSchool Ass’n, 279 Ill. App. 3d 122, 126 (1996). We do not dispute that the public may want to knowthe true starting time of a movie, but we are not convinced that this question rises to the“extraordinary degree of public concern and interest” needed to overcome the mootness doctrine. Moreover, as previously noted, each of the above criteria is required to bring a case within the publicinterest exception. Even were we to characterize the instant case as generating an extraordinarydegree of public concern and interest raising a question of a substantial public nature, we are notpersuaded the other two criteria have been satisfied for purposes of applying the public interestexception to the mootness doctrine.

            As previously noted, in addition to raising a question of substantial public nature, two othercriteria must be satisfied. The likelihood that the circumstances are to recur and the need for futureguidance of public officers must be clearly demonstrated for application of the public interestexception to the mootness doctrine. A decision in this case would not guide public officers in theperformance of their duties. See Mount Carmel, 279 Ill. App. 3d at 126. There are no public officerswho need an authoritative resolution of the question presented in order to perform their duties. Thepossibility that a decision on the subject might influence courts and legislators does not change thatfact. See Green v. Board of Municipal Employees’, Officers’ & Officials’ Annuity & Benefit Fundof Chicago, 309 Ill. App. 3d 757, 766 (1999) (issue not of substantial public interest just because“legislature passed a bill relating to the same subject”); Lerner v. Lerner, 84 Ill. App. 3d 721, 723(1980) (resolving a question to be “helpful to a court” is “not the type of ‘guidance of public officials’which warrants discussion of an otherwise moot question”).

            Finally, as noted above, defendants satisfied their initial burden of establishing that theiralleged wrongful behavior could not reasonably be expected tor recur. Plaintiffs have not offeredevidence which establishes by a clear showing that the circumstances of which they complain arelikely to recur in the future. Furthermore, plaintiffs have not established by a clear showing that thecase involves a question of a substantial public nature or that an authoritative determination is neededfor future guidance of public officers. Accordingly, the public interest exception does not apply.

CONCLUSION

            We note that in plaintiffs’ reply memorandum of law against defendants’ claims of mootnessplaintiffs argue that “the current notice that Loews is running *** is minuscule and easy to miss” and“should instead be set in bold print and should appear in the listing of each individual theater.” Whilewe find the current notice satisfies the relief plaintiffs sought by giving reasonable notice to consumersregarding the true starting times for feature films, we note that nothing in this opinion would precludelawmakers from refining the starting time requirements by, for example, addressing size andplacement of such information.

            Defendants have adopted new pre-movie content-presentation practices alerting moviegoersthat “Feature presentations start 10-15 minutes following published showtimes.” Such notice wasthe relief plaintiffs sought in the instant case. For the reasons previously discussed, we dismiss theappeal as moot.

            Dismissed.

            McNULTY, P.J., and FITZGERALD SMITH, J., concur.