No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

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conducted discovery, let alone presented unique affirmative defenses, with respect to the claims of almost five million class members. The court’s treatment of State Farm’s consent defense illustrates the unfairness inherent in its ruling: the court allowed State Farm to argue consent, but — in order to avoid introducing any evidence of differences among class members — prohibited State Farm from telling the jury about the statutes that require consent. As a result, State Farm was allowed to “argue” that some class members had consented, but was precluded from presenting any evidence to support that argument. State Farm had a constitutional right to “an opportunity to present every available defense,” Lindsey, 405 U.S. at 66. The circuit court’s decision to certify a class deprived State Farm of any ability to exercise that right. For that reason alone, the judgment below should be reversed and the class decertified. See, e.g., In re Masonite Corp. Hardboard Siding Prods. Liab. Litig., 170 F.R.D. 417, 425 (E.D. La. 1<strong>99</strong>7) (refusing to certify nationwide class of consumers claiming to have received defective siding products because, among other things, “it is apparent that Masonite cannot receive a fair trial without a process that permits a thorough and discrete presentation of [its individualized] defenses”). e. Individual Issues Predominated With Respect To The Existence And Extent Of Damages. The question of whether and the extent to which class members suffered any damages also presented uniquely individual issues that could not be resolved properly except by looking at the individual facts and circumstances of each claim. By the eve of trial, it had become clear that a large portion of the class had no legitimate claim for damages. As estopped from claiming a breach of contract. R. 8414-16. -50-
explained above, class members who received OEM parts — rather than the non-OEM parts State Farm had specified — at no extra cost had no basis for claiming damages. Similarly, class members like DeFrank and Vickers, who disposed of their vehicles without any discount attributable to the presence of non-OEM parts, could not claim to have suffered any economic harm. The only way to identify who these class members were — or even how many fell into this category — was to consider each class member’s individual situation. A class may not properly be certified where, as here, not all class members suffered damages, and determining which class members incurred damages would require a case-bycase examination. A federal district court made precisely this point recently in In re Merrill Lynch, 191 F.R.D. 391 (D.N.J. 1<strong>99</strong>9), when it rejected plaintiffs’ suggestion that they be allowed to seek an aggregate damages award without having to prove which class members were injured by the defendants’ allegedly unlawful practices. The court held that an aggregate damages approach was “not acceptable as a means to arrive at some figure which can then be allocated among the proposed class members, regardless of whether each class member suffered actual loss.” Id. at 397. Rather, “‘[t]he party seeking to represent a class must establish that all members of the purported class have suffered damages.’” Id. at 395, quoting Illinois v. Ampress Brick Co., 67 F.R.D. 457, 460 (N.D. Ill. 1975) (emphasis added). Proof of the amount of damages also required an inquiry into each class member’s individual situation. Class members who paid for OEM parts out of their own pockets might have a claim for damages equal to the amounts they actually paid — assuming they could prove that the parts State Farm specified could not have been used to restore their vehicles to pre-loss condition. But without an individual examination of the facts surrounding each -51-
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No. 5-99-0830 IN THE APPELLATE COUR
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Charles Hester Enters. v. Illinois
Page 5 and 6:
In re Fibreboard Corp., 893 F.2d 70
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State v. Piedmont Funding Corp., 38
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Hansberry v. Lee, 311 U.S. 32 (1940
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1. Plaintiffs’ Body Shop Witnesse
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People v. Clayton, 302 Ill.App.3d 2
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VPHI, Inc. v. National Educ. Traini
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Okada v. MGIC Indem. Corp., 823 F.2
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Zekman v. Direct Am. Marketers, Inc
Page 21 and 22: Malooley v. Alice, 251 Ill.App.3d 5
Page 23 and 24: NATURE OF THE CASE This is an appea
Page 25 and 26: STATUTES INVOLVED Relevant portions
Page 27 and 28: to its “pre-loss condition.” DX
Page 29 and 30: OEM parts. 5/ At least two states
Page 31 and 32: paid the difference in cost out of
Page 33 and 34: epair estimate specified only OEM p
Page 35 and 36: potential class members whose names
Page 37 and 38: member’s vehicle other than those
Page 39 and 40: William Anderton, who had previousl
Page 41 and 42: categorically inferior and, in fact
Page 43 and 44: specified on their repair estimates
Page 45 and 46: Second, plaintiffs sought “instal
Page 47 and 48: parts] are inferior.” R. 12539 (
Page 49 and 50: had an adequate remedy at law if St
Page 51 and 52: loss condition. Instead of requirin
Page 53 and 54: ARGUMENT I. Class Certification Vio
Page 55 and 56: members.” Slimack v. Country Life
Page 57 and 58: of evidence State Farm would be ent
Page 59 and 60: that are incongruous with the effic
Page 61 and 62: fenders to its pre-loss condition.
Page 63 and 64: a result of Allstate’s specificat
Page 65 and 66: insurance regulators and consumer a
Page 67 and 68: have been the overwhelming predomin
Page 69 and 70: some class members and the issue of
Page 71: not sooner, that plaintiffs could n
Page 75 and 76: Even if the court had been right in
Page 77 and 78: value” of “parts at the time of
Page 79 and 80: page 7, supra. All of these statute
Page 81 and 82: (7th Cir. 1995) (decertifying class
Page 83 and 84: As the circuit court itself recogni
Page 85 and 86: the same shortcut, arguing — just
Page 87 and 88: epresentatives who appeared at tria
Page 89 and 90: — was injured by the alleged dece
Page 91 and 92: Litig., 182 F.R.D. at 225. Basic fa
Page 93 and 94: Meineke’s continued financial via
Page 95 and 96: this decision, plaintiffs were excu
Page 97 and 98: corresponding OEM part. R. 7169. In
Page 99 and 100: Mathur’s testimony was particular
Page 101 and 102: end of the day, Mathur conceded tha
Page 103 and 104: Zimny, 256 Ill.App.3d 386, 390-91 (
Page 105 and 106: the jury was focused on the wrong i
Page 107 and 108: to its pre-loss condition.” R. 12
Page 109 and 110: quality of non-OEM parts. See Baltu
Page 111 and 112: which is not surprising because the
Page 113 and 114: In this case, plaintiffs’ experts
Page 115 and 116: Bender could not swear that the non
Page 117 and 118: OEM part construction “had some d
Page 119 and 120: theory, even non-OEM parts that are
Page 121 and 122: of his training or expertise”). P
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eflected a policy of “discriminat
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“speak up for justice.” R. 1301
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12984-85. The perversion of ostensi
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Polywheels company makes both the O
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parts — was simply a made-for-lit
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In contrast, each of the 47 other s
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occurred outside Illinois. 51/ In t
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laws of the State where the policy
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This Court should follow the weight
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other states, Illinois cannot apply
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state’s law when it is not within
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headquartered in Michigan); Endo, 1
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for this Court to alter that author
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y using parts of like kind and qual
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plaintiffs’ failure to identify a
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percentage of the class (New York a
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committing fraud: if all non-OEM pa
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specification damages they had soug
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A. It Is Unconstitutional To Punish
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that will subject him to punishment
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fact benefitted from access to non-
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deterrence and therefore must be va
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517 U.S. at 576. This case is not i
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either higher premiums or the incre
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