2015 IL App (1st) 132999 No. 1-13-2999 April 21, 2015
SECOND DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE ex rel. SCHAD, ) Appeal from the Circuit Court DIAMOND AND SHEDDEN, P.C., ) Of Cook County. ) Plaintiff-Appellant, ) ) No. 11 L 8553 v. ) ) The Honorable QVC, INC., ) Thomas R. Mulroy, ) Judge Presiding. Defendant-Appellee, ) ) ) (The State of Illinois, ) ) Intervenor-Appellee). )
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justices Pierce and Liu concurred in the judgment and opinion.
OPINION
¶1 A decision of the Illinois Supreme Court inspired the law firm of Schad, Diamond &
Shedden, P.C. (Schad), to look for retailers who sold merchandise over the Internet without
collecting use taxes on shipping and handling charges. In 2011, Schad filed a qui tam action No. 1-13-2999
against QVC, Inc., under the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2010)),
alleging that QVC falsely claimed that it collected and remitted to the State of Illinois all
required use taxes. The circuit court granted the State leave to intervene. The State moved
to dismiss the complaint. Schad sought discovery to support its allegation that the State
settled the claim against QVC. The circuit court allowed limited discovery before granting
the motion to dismiss the complaint. The circuit court also denied Schad's petition for a
relator's share of the taxes QVC subsequently paid to the State, plus attorneys' fees, expenses
and costs.
¶2 In this appeal, we hold that the circuit court did not abuse its discretion when it limited
Schad's discovery to a deposition of the QVC official responsible for compliance with State
tax laws. Because Schad did not present glaring evidence that the State acted in bad faith
when it dismissed the qui tam action, we affirm the dismissal. We also affirm the decision
not to award Schad a share of taxes QVC subsequently paid to the State, as the taxes do not
count as proceeds of the lawsuit. Therefore, we affirm the circuit court's judgment.
¶3 BACKGROUND
¶4 In 1995, the State claimed that its law required QVC to collect and remit to the State use
taxes on merchandise delivered to customers in Illinois. The State agreed not to seek use
taxes from QVC for sales completed before the agreement, in exchange for QVC's promise to
collect and pay to the State use taxes on all sales after the date of the agreement of
merchandise delivered to customers in Illinois. In 2006, the State audited QVC to determine
whether it had complied with the 1995 agreement. QVC sent the State documents showing
its sales of merchandise delivered to Illinois and the remittance of use taxes collected for
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those sales. The documents explicitly listed the shipping and handling charges for the
merchandise and showed that QVC did not collect use taxes on the shipping and handling
charges. On its tax chart, QVC also showed that it treated shipping and handling charges as
nontaxable. On November 2, 2006, the State sent to QVC a letter informing QVC that the
State completed its audit and found QVC's returns "in order." The State required no
adjustments to the returns.
¶5 In 2009, the Illinois Supreme Court decided, in Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d
351 (2009), that purchasers who use items in Illinois purchased from sellers outside of
Illinois, under specified conditions applicable to many purchases made over the Internet,
must pay use taxes on shipping and handling charges paid for delivery of the merchandise.
In August 2011, Schad filed a qui tam action against QVC, alleging that QVC failed to
collect use taxes on shipping and handling charges. The State declined to intervene in the
case, thereby authorizing Schad to prosecute the action on its own. See 740 ILCS
175/4(b)(4)(B) (West 2010). Schad served its complaint on QVC in November 2011. Less
than two weeks later, QVC started collecting and remitting to the State use taxes on shipping
and handling charges. QVC did not seek to collect or remit use taxes for purchases made
before November 21, 2011.
¶6 QVC filed a motion to dismiss Schad's qui tam action based on the 2006 audit. After the
State received the motion, the State filed a motion to intervene in Schad's qui tam suit. The
circuit court granted the motion to intervene. In December 2012, the State moved to dismiss
the lawsuit against QVC. Schad opposed the motion to dismiss and filed a motion for leave
to discover all communications between the State and QVC after August 2011 concerning
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use tax collection and the State's decision to dismiss the qui tam case. In the motion for
discovery, Schad alleged that the State must have settled the cause of action against QVC,
exchanging dismissal of the qui tam lawsuit for QVC's promise to start collecting use taxes
on shipping and handling charges. Schad also sought leave to ask the State why it chose to
dismiss the action, what information led the State to the dismissal, and "whether QVC stated
it would stop collecting tax on sales to Illinois residents if the State did not move to dismiss
this action."
¶7 On April 30, 2013, Schad filed a petition for an award of a relator's share of amounts
QVC paid to the State. Schad cited section 4 of the Illinois False Claims Act (740 ILCS
175/4 (West 2010)) as the legal basis for the petition.
¶8 Thomas Pileggi, QVC's director of state taxes, said in an affidavit that QVC had no
discussions with the State about the litigation before QVC decided to start collecting taxes on
shipping and handling charges. Pileggi also said that QVC had not entered into an agreement
with the State to settle the qui tam lawsuit.
¶9 The circuit court allowed Schad to depose Pileggi, but the court disallowed any further
discovery regarding Schad's allegation that the State and QVC settled the qui tam action. In
the deposition, Pileggi explained his responsibility for collection of Illinois's use tax, and he
said that after he received the complaint Schad filed, he sought advice from QVC's attorneys.
On the advice of counsel, Pileggi decided that QVC would start collecting use tax on
shipping and handling charges for merchandise delivered to Illinois. He agreed that before
Schad filed suit, QVC had not considered collecting use tax on shipping and handling
charges, but QVC changed its practice less than two weeks after receiving the complaint.
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Pileggi swore that he had no conversation with State officials, and the State made no promise
to dismiss the lawsuit before QVC started collecting the tax. He also swore that QVC did not
threaten to stop collecting use taxes on all merchandise QVC delivered to Illinois purchasers.
¶ 10 By order dated May 22, 2013, the circuit court granted the State's motion to dismiss
Schad's complaint. The court retained jurisdiction to consider Schad's right to a relator's
share of QVC's tax payments to Illinois. In its final order, entered August 21, 2013, the
circuit court held that the use tax on shipping and handling that QVC collected and sent to
the State after November 21, 2011, did not qualify as "proceeds" of Schad's lawsuit within
the meaning of the Illinois False Claims Act. The court denied Schad's petition for a share of
QVC's payments of use taxes. Schad now appeals.
¶ 11 ANALYSIS
¶ 12 In this appeal, Schad argues that the trial court committed three errors. Schad claims that
(1) the court should have granted Schad's request for further discovery related to the alleged
settlement; (2) the court should not have granted the State's motion to dismiss Schad's
complaint against QVC; and (3) the court should have awarded Schad a relator's share of
taxes QVC paid to the State.
¶ 13 The Illinois False Claims Act sets the parameters for Schad's rights in this action. We
find a useful delineation of the applicable principles in State ex rel. Beeler, Schad &
Diamond v. Burlington Coat Factory Warehouse Corp., 369 Ill. App. 3d 507 (2006). The
Burlington Coat court said:
"[A] person is liable to the state for civil penalties and triple damages for any damage
the state sustains as a result of fraud perpetrated by that person on the state, such as for
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knowingly making or using false records or statements to conceal, avoid or decrease an
obligation to pay or transmit money or property to the state. 740 ILCS 175/3(a)(7)
(West 2002). The Attorney General may bring a civil action in the name of the state for
violation of the Act. 740 ILCS 175/4(a) (West 2002). A private person, referred to as a
'relator,' may also bring a civil action in the name of the state for a violation of the Act,
for that person and for the state. 740 ILCS 175/4(b)(1) (West 2002). Such an action is
referred to as a 'qui tam' action. 740 ILCS 175/4(c) (West 2002). Once a relator files a
qui tam action, the state may intervene, proceed with the action and take over conduct
of the action; or it may decline to intervene, thus giving the relator the right to conduct
the action. 740 ILCS 175/4(b)(4) (West 2002). A relator is considered 'a party to the
action' and, if a suit is successful, is awarded a percentage of the proceeds or settlement.
740 ILCS 175/4(c)(1), (d) (West 2002)." Burlington Coat, 369 Ill. App. 3d at 510.
¶ 14 The Illinois False Claims Act expressly empowers the State to "dismiss the action
notwithstanding the objections of the person initiating the action if the person has been
notified by the State of the filing of the motion and the court has provided the person with an
opportunity for a hearing on the motion." 740 ILCS 175/4(c)(2)(A) (West 2012). The
Burlington Coat court explained:
"[R]eading the provision in context with the other provisions of the Act, it is clear
that the state has complete control over a qui tam action and, accordingly, almost
unlimited discretion to voluntarily dismiss such an action.
***
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*** '[Q]ui tam plaintiffs, acting as statutorily designated agents for the state, may
proceed only with the consent of the Attorney General, and remain completely
subordinate to the Attorney General at all times.' [Citation.]
*** Even if it declines to conduct an action, the state can control a relator's
discovery in the case. 740 ILCS 175/4(c)(4) (West 2002).
*** Although a relator may 'conduct' a qui tam action on the state's behalf, the
Attorney General retains authority to 'control' the litigation. [Citation.] And, since the
Act does not provide otherwise, part of that control necessarily entails dismissing an
action over a relator's objections after the relator has been given an opportunity to
address the dismissal in a hearing.
The Act is silent as to what the hearing should entail, what the court should
consider during the hearing or whether the court even has the power to deny the
Attorney General's request for dismissal of an action. ***
At its core, the issue here is whether the decision to proceed with a qui tam action
should be made by the executive branch or by the judicial branch. Only the Attorney
General is empowered to represent the state in litigation in which it is the real party in
interest. [Citation.] Legislation can add to the powers of the Attorney General but it
cannot reduce the Attorney General's common law authority to direct the legal affairs of
the state. [Citation.] If we interpret section 4(c)(2)(A) of the Act to require judicial
review of the Attorney General's decision to dismiss an action, *** we give the court 7 No. 1-13-2999
veto power over the state's decision to dismiss, essentially usurping the Attorney
General's power to direct the legal affairs of the state and putting that power into the
hands of the court. The section 4(c)(2)(A) requirement that the relator be given a
hearing on the state's decision to voluntarily dismiss a case necessarily gives the court
approval of that dismissal decision. It does not, however, require that the court second-
guess the state's decision to dismiss by conducting an inquiry into the state's
motivations. We hesitate to say that the court's role in a section 4(c)(2)(A) hearing is
solely to 'rubber-stamp' the state's decision to dismiss a qui tam action over the relator's
objections. However, the presumption is that the state is acting in good faith and,
barring glaring evidence of fraud or bad faith by the state, it is the state's prerogative to
decide which case to pursue, not the court's." Burlington Coat, 369 Ill. App. 3d at 512-
17.
¶ 15 If the State settles a qui tam action, the Illinois False Claims Act empowers the court to
determine whether "the proposed settlement is fair, adequate, and reasonable under all the
circumstances." 740 ILCS 175/4(c)(2)(B) (West 2012).
¶ 16 Discovery
¶ 17 Schad argues that the circumstances indicate that the State probably settled the claim
against QVC. Schad sought discovery to prove the settlement. The circuit court limited
Schad's discovery to the deposition of Pileggi, who testified that QVC did not settle the qui
tam action. We review the circuit court's decision to allow no further discovery for abuse of
discretion. Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 110 (1991).
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¶ 18 The deposition of Pileggi allowed Schad to question the QVC official responsible for the
decision to start collecting use taxes on shipping and handling charges, and probe for the
reasons QVC changed its tax collection practices after Schad filed the qui tam action. Pileggi
explained that he based the decision to change tax collection practices on the advice of
QVC's attorneys, who told him about the effect of the Kean decision on use taxes. Schad
presented no grounds to believe that Pileggi lied in his deposition or that someone else
actually negotiated with the State and ordered Pileggi and QVC to start collecting the taxes
based on a settlement with the State.
¶ 19 Schad effectively seeks to have the court sanction extended discovery so that Schad can
seek evidence to contradict Pileggi and show that QVC settled the case with the State less
than two weeks after Schad served its complaint on QVC. In light of the State's right to
control discovery in qui tam actions (Burlington Coat, 369 Ill. App. 3d at 514), we cannot
say that the circuit court abused its discretion when it limited Schad's discovery to the
deposition of Pileggi. See Evers v. Edward Hospital Ass'n, 247 Ill. App. 3d 717, 735 (1993).
¶ 20 Dismissal
¶ 21 As the Burlington Coat court explained, the State has primary responsibility for
conducting the qui tam action and the State has authority to dismiss the case over the relator's
objection. Burlington Coat, 369 Ill. App. 3d at 513-14. When the State so dismisses the
action, "the presumption is that the state is acting in good faith and, barring glaring evidence
of fraud or bad faith by the state, it is the state's prerogative to decide which case to pursue,
not the court's." Burlington Coat, 369 Ill. App. 3d at 517. Thus, Schad bears the burden of
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presenting "glaring evidence of fraud or bad faith by the state." Burlington Coat, 369 Ill.
App. 3d at 517.
¶ 22 Schad does not claim that it has presented the requisite glaring evidence. Instead, it
claims only that if the court had allowed further discovery, it might have presented such
evidence. The State responds that it acted in good faith when it dismissed the action on the
basis of the 2006 audit. At the end of that audit, the State approved QVC's tax collection
practices, even though QVC expressly and repeatedly told the State that QVC was not
collecting use taxes on shipping and handling charges.
¶ 23 The Illinois False Claims Act provides, "In no event may a person bring an action under
subsection (b) [permitting qui tam suits] which is based upon allegations or transactions
which are the subject of a civil suit or an administrative civil money penalty proceeding in
which the State is already a party." 740 ILCS 175/4(e)(3) (West 2012). The rule bars qui tam
actions that duplicate the State's civil suits or administrative actions. Little v. Shell
Exploration & Production Co., 690 F.3d 282, 287 (5th Cir. 2012). The State concluded that
its 2006 audit, in which it reviewed QVC's tax collection procedures, constituted an
administrative civil money penalty proceeding to which the State was a party. See
Foundation for Fair Contracting, Ltd. v. G&M Eastern Contracting & Double E, LLC, 259
F. Supp. 2d 329, 336-37 (D.N.J. 2003). The State concluded that the 2006 audit barred the
qui tam action.
¶ 24 Schad contends that the State acted in bad faith, because the dismissal ignored the
holding of People ex rel. Levenstein v. Salafsky, 338 Ill. App. 3d 936 (2003). In Levenstein,
Levenstein filed a qui tam action, alleging that Salafsky, a dean at the University of Illinois at
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Chicago (UIC), knowingly presented false claims to the University and thereby induced the
University to overpay for land it bought and the construction and furnishing of a building on
that land. Levenstein, 338 Ill. App. 3d at 939. Salafsky moved to dismiss the complaint on
grounds that Levenstein had already sued Salafsky in federal court. But the federal lawsuit
concerned Levenstein's employment as a member of the UIC faculty. In the federal lawsuit,
Levenstein charged Salafsky with mishandling sexual harassment charges brought against
Levenstein, and with the imposition of an inordinately harsh sanction for Levenstein's alleged
misconduct. In the federal lawsuit, Levenstein claimed that Salafsky used the sexual
harassment charges to retaliate against Levenstein for his investigations into the financing of
the land and building at issue in the qui tam action. The Levenstein court held that "Section
4(e)(3) requires that the allegations of fraud be 'the subject' of the prior suit, not merely that
they be somehow implicated. Common usage dictates that the 'subject' of the federal suit is
whether Salafsky and the other defendants violated Levenstein's civil rights when they
disciplined him for alleged sexual harassment." Levenstein, 338 Ill. App. 3d at 947.
¶ 25 Here, the 2006 audit concerned QVC's practices for collecting use taxes on items shipped
to Illinois. The State considered and approved all of QVC's practices, including its explicit
practice of not charging use taxes on shipping and handling charges for merchandise shipped
to Illinois. Under the reasoning of Levenstein, the use tax on shipping and handling charges
apparently counts as part of the subject of the audit.
¶ 26 We need not here decide whether the 2006 audit qualifies as an administrative civil
money penalty proceeding within the meaning of the Illinois False Claims Act, and we need
not decide whether, in the 2006 audit, the State's failure to discuss the possibility of taxing
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the shipping and handling charges makes those charges not "the subject" of the audit. We
only conclude that the State did not act in bad faith when it decided, six years after it
completed an audit in which it approved QVC's explicit practice of not charging use tax on
shipping and handling charges, that it would not seek to penalize QVC for acting in accord
with the procedures the State approved. Schad has not met its burden of presenting glaring
evidence the State acted in bad faith when it moved to dismiss the qui tam action against
QVC, and the evidence in the record indicates that further discovery would not prove the
State acted in bad faith. Following Burlington Coat, we find that the circuit court properly
granted the State's motion to dismiss the qui tam action over Schad's objection.
¶ 27 Relator's Share of Proceeds
¶ 28 Schad contends that even if the circuit court properly dismissed its complaint, the Illinois
False Claims Act requires the State to pay Schad fees for its help in producing income for the
State. Section 4(d) of the Illinois False Claims Act provides:
"(1) If the State proceeds with an action brought by a person under [the False
Claims Act], such person shall *** receive at least 15% but not more than 25% of the
proceeds of the action or settlement of the claim ***.
(2) If the State does not proceed with an action under this Section, the person
bringing the action or settling the claim shall receive an amount which the court decides
is reasonable for collecting the civil penalty and damages. The amount shall be not less
than 25% and not more than 30% of the proceeds of the action or settlement ***." 740
ILCS 175/4(d) (West 2012).
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¶ 29 Because the State intervened in the action, we find that subsection (d)(1) applies, rather
than subsection (d)(2). See Scachitti, 215 Ill. 2d at 506. The evidence does not support an
inference that QVC and the State settled the claim. We decide only whether the State
received "proceeds of the action" within the meaning of section 4(d) of the Illinois False
Claims Act.
¶ 30 Illinois courts have relied on federal courts' interpretation of the federal False Claims Act
(31 U.S.C. § 3730 (2012)) for guidance in construing the Illinois False Claims Act. See State
ex rel. Beeler, Schad & Diamond, P.C. v. Target Corp., 367 Ill. App. 3d 860, 865 (2006);
State ex rel. Beeler Schad & Diamond, P.C. v. Ritz Camera Centers, Inc., 377 Ill. App. 3d
990, 997-98 (2007). The federal act, like the Illinois act, provides for qui tam actions
brought by citizens seeking to reveal fraud against the government, and for the government
to have the right to intervene in and control such actions. Like section 4(d)(1) of the Illinois
False Claims Act, section 3730(d)(1) of the federal act provides that if the government
intervenes, the relator "shall *** receive at least 15 percent but not more than 25 percent of
the proceeds of the action or settlement of the claim, depending upon the extent to which the
person substantially contributed to the prosecution of the action." 31 U.S.C. § 3730(d)(1)
(2012).
¶ 31 Federal courts have interpreted the federal act to restrict recovery under section
3730(d)(1) to prevailing parties. Miller v. Holzmann, 575 F. Supp. 2d 2, 7-9 (D.D.C. 2008);
United States ex rel. Miller v. Bill Harbert International Construction, Inc., 786 F. Supp. 2d
110, 116 (D.D.C. 2011). The Bill Harbert court held that for the relator in that qui tam
action to recover under section 3730, he needed to prove that he "obtained some form of
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relief from the court." Bill Harbert, 786 F. Supp. 2d at 116. The Holzman court said,
"because relator's claims against Anderson were dismissed in their entirety, relator may not
recover attorneys' fees, costs, or expenses from Anderson under the [federal False Claims
Act]." Holzman, 575 F. Supp. 2d at 9.
¶ 32 Here, as in Holzman, the court dismissed Schad's claims against QVC in their entirety.
The court did not order QVC to pay any civil penalty or damages, or provide any relief for
the misconduct alleged in the complaint. Therefore, we hold that Schad does not qualify as a
prevailing party, and the payments QVC started to make after Schad filed this lawsuit do not
count as "proceeds" of this lawsuit.
¶ 33 Schad claims that due to the timing of QVC's decision to start collecting use taxes on
shipping and handling charges, the court should construe all of QVC's tax payments on
shipping and handling as proceeds of Schad's lawsuit and award Schad at least 15% of the
use taxes QVC collects for and pays to the State on shipping and handling charges. We find
Schad's broad interpretation of the proceeds of a lawsuit insupportable. In its complaint,
Schad sought damages including use taxes, interest and penalties that QVC allegedly owed
and had not paid to the State at the time Schad filed the lawsuit, plus additional penalties for
filing falsified forms with the State. The State has not and will not recover any use taxes that
QVC allegedly owed at the time Schad filed its lawsuit, and the State recovered no interest or
civil penalties from QVC. Instead, QVC started collecting use taxes on shipping and
handling charges on sales made after the date on which Schad served its complaint on QVC.
"[T]he term 'prevailing party' does not include a party who has achieved the desired result
because the lawsuit brought about a voluntary change in the defendant's conduct, but has
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failed to secure a judgment on the merits or a court-ordered consent decree." Melton v.
Frigidaire, 346 Ill. App. 3d 331, 336 (2004). We cannot construe the payment QVC
voluntarily started to make on sales after the filing of this lawsuit as part of the proceeds of
this lawsuit. We affirm the decision not to award Schad a relator's share of payments made
by QVC to the State after November 21, 2011.
¶ 34 CONCLUSION
¶ 35 The circuit court did not abuse its discretion by restricting Schad's discovery to the
deposition of the QVC officer responsible for the decision to begin paying use taxes on
shipping and handling charges. Schad did not meet its burden of showing that the State acted
in bad faith when it dismissed the qui tam action Schad filed against QVC. Use taxes on
shipping and handling charges for sales of items ordered after Schad served its complaint on
QVC do not qualify as proceeds of the lawsuit, and therefore the circuit court correctly
dismissed Schad's claim for a relator's share of the taxes QVC collected and paid to the State
after November 21, 2011. Accordingly, we affirm the circuit court's judgment.
¶ 36 Affirmed.