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

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common issues of fact or law predominate, the circuit court’s decision to certify a nationwide consumer fraud class should be reversed. 2. The Circuit Court Abused Its Discretion In Concluding That Common Issues Of Fact Predominated With Respect To Plaintiffs’ Consumer Fraud Claims. Even if only Illinois law were applied, however, there are too many individual issues of fact for the ICFA claim to meet the predominance requirement. In order to prove a claim for damages under ICFA, a plaintiff must be able to identify a material misrepresentation of fact that proximately caused the plaintiff to suffer an economic loss. 815 ILCS 505/2 & 505/10a. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 501 (1<strong>99</strong>6). In this case, proof of the elements of proximate cause and damages would require an inquiry into the individual facts and circumstances surrounding each transaction. Thus, common issues of fact would not predominate over individual issues even with respect to an Illinois-only class. The Supreme Court’s decision in Zekman v. Direct Am. Marketers, Inc., 182 Ill.2d 359 (1<strong>99</strong>8), underscores the need to review the individual facts of each case in order to make a determination as to whether the alleged deception was the proximate cause of any harm. There, the Court upheld summary judgment in favor of the defendants because the plaintiff’s deposition testimony revealed that he had not been deceived into making telephone calls to a “900” number, but rather had fully understood the true facts at the time he made the calls. In this case, whether any individual class member was deceived by whatever statements were made by State Farm about the quality of non-OEM parts would depend on the facts and circumstances surrounding the individual transaction. For example, it was apparent from the trial testimony that none of the five class -64-
epresentatives who appeared at trial had been deceived by anything State Farm said (or did not say) about non-OEM parts. Two of the class representatives (Avery and Shadle) paid extra for OEM parts rather than accept the non-OEM parts specified on their repair estimates. R. 6117, 6191. The other three all testified that they had protested the use of non- OEM parts because they believed them to be inferior, but nevertheless allowed them to be installed because they did not want, or could not afford, to pay the difference. R. 5718, 5728-30 (Covington); R. 6345-47 (Vickers); R. 4507N-P (DeFrank). Even if these plaintiffs had breach of contract claims against State Farm, none of them could claim to have been deceived into taking any action based on the belief that non-OEM parts were as good as OEM parts. Instead, as in Zekman, the testimony of these plaintiffs affirmatively rebuts any claim of deception: none of them believed non-OEM parts were in fact “quality replacement parts”; thus, none of them could claim to have been harmed by the alleged deception. In order to show that some harm was proximately caused by the alleged deception, plaintiffs would have to prove that a policyholder accepted non-OEM repair parts based at least in part on deceptive statements by State Farm with respect to their quality. They would also have to show that the parts that were actually installed did not in fact live up to State Farm’s description and that the class member suffered some actual damages as a result of the parts’ shortcomings. As with plaintiffs’ breach of contract claim, the only way to properly prove either proximate causation or damages would be to introduce evidence concerning the individual facts and circumstances of each repair — what the policyholder read, what was said by both State Farm and the bodyshop mechanics, what decisions the policyholder made and why those decisions were made, whether the vehicle was restored to -65-
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No. 5-99-0830 IN THE APPELLATE COUR
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Charles Hester Enters. v. Illinois
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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
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Malooley v. Alice, 251 Ill.App.3d 5
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NATURE OF THE CASE This is an appea
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STATUTES INVOLVED Relevant portions
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to its “pre-loss condition.” DX
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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 and 72: not sooner, that plaintiffs could n
Page 73 and 74: explained above, class members who
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: the same shortcut, arguing — just
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
Page 123 and 124: eflected a policy of “discriminat
Page 125 and 126: “speak up for justice.” R. 1301
Page 127 and 128: 12984-85. The perversion of ostensi
Page 129 and 130: Polywheels company makes both the O
Page 131 and 132: parts — was simply a made-for-lit
Page 133 and 134: In contrast, each of the 47 other s
Page 135 and 136: 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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No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

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