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

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that a class action be a “fair” way to adjudicate the controversy. The court’s assertion that many small claims would go unredressed if class certification were denied is not enough to meet the “fairness” requirement of § 2-801(4). A class action is not fair if, in order to make the case manageable on a classwide basis, the court is forced to engage in the kind of shortcuts evident in this case — altering the plaintiffs’ burden of proof, ignoring the applicable law, and allowing the plaintiffs to use “aggregate” proof as a substitute for evidence that any individual member of the class actually suffered an economic loss. See Fibreboard, 893 F.2d at 712 (rejecting argument that the practical difficulties of trying claims individually justify a group trial in which individual plaintiffs are excused from proving the elements of their claim). In any event, this is not a case where the only alternative to a class action is a large number of individual trials. All of the evidence suggests that the number of State Farm policyholders who were dissatisfied with non-OEM parts is very small: the number of complaints (to either State Farm or regulators) about non-OEM parts has been minimal; in the two class actions that were settled, only a small fraction of the class members who could have claimed damages bothered to do so. See Ashenfelter Affidavit, Exh. Box 9, Tab 1. Any policyholder who is dissatisfied with a repair can invoke the Guarantee without incurring any litigation expenses. And anyone who remains dissatisfied and successfully brings suit under a state consumer fraud statute is likely to be able to recover attorneys’ fees as well. Thus, there was no overwhelming need for class certification in this case, either to protect the courts from being inundated with lawsuits or to protect injured consumers who otherwise would have no ability to obtain redress. See Castano, 84 F.3d at 748; Ford Paint -68-
Litig., 182 F.R.D. at 225. Basic fairness requires that State Farm have a right to defend its conduct based on the facts and circumstances of each transaction. A class action is a fair and efficient way of adjudicating the controversy if all of the transactions are essentially identical because, in that situation, plaintiffs are put to their proof with respect to all members of the class and the defendant will have a full and fair opportunity to present all of its defenses. But in a case like this, where the relevant facts of the millions of individual transactions at issue vary greatly, trying the case as a class action inevitably minimizes the plaintiffs’ burden of proof and deprives the defendant of the right to present its best defense. Such a result is not “fair.” On the contrary, it is so clearly unfair that it constitutes a deprivation of the defendant’s basic right to due process under the Illinois and the United States Constitutions. D. The Circuit Court Erred In Concluding That The Class Representatives Fairly And Adequately Represented The Class. The Illinois class action statute also requires a proper determination that the named plaintiffs will “fairly and adequately protect the interest of the class.” 735 ILCS 5/2-801(3). This provision requires, among other things, that there be no significant conflicts between the named class representatives and the class members, or among the class members themselves. See Miner, 87 Ill.2d at 14; see also Magro, 67 Ill.2d at 161 (“The general rule is that a class action cannot be maintained unless all members of the class have a common interest in the questions involved and the results of the suit.”). Similarly, the federal due process clause requires that the class be free from significant conflicts of interest. Hansberry v. Lee, 311 U.S. 32, 44-45 (1940). In its class certification order, the circuit court held that there were no conflicts of -69-
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No. 5-99-0830 IN THE APPELLATE COUR
Page 3 and 4:
Charles Hester Enters. v. Illinois
Page 5 and 6:
In re Fibreboard Corp., 893 F.2d 70
Page 7 and 8:
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
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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 and 86: the same shortcut, arguing — just
Page 87 and 88: epresentatives who appeared at tria
Page 89: — was injured by the alleged dece
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
Page 137 and 138: laws of the State where the policy
Page 139 and 140: 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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