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Consumer Class Actions: 6. Commonality/Typicality—Section 801(2)

The Illinois statute does not have the typicality requirement of Fed. R. Civ. P. 23(a)(3); however, Illinois law mirrors Fed. R. Civ. P. 23(b)(3) (and 23(a)(2)) with respect to commonality. There must be common elements of law or fact. In a class action, it is appropriate to litigate questions of law and fact common to all members of a class and, after determination of common questions, to determine in an ancillary proceeding questions that may be peculiar to individual class members. McCabe v. Burgess, 57 Ill. App. 3d 450, 373 N.E.2d 327 (4th Dist. 1978).

Consumer Class Actions: 7. Adequate Representation—Section 801(3)

“The purpose of the adequate representation requirement is to ensure that all class members will receive proper, efficient, and appropriate protection of their interests in the presentation of the claim.” P.J.’s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 1004, 803 N.E.2d 1020 (2nd Dist. 2004). The test of adequate representation is whether the interests of the named parties are the same as the interests of those who are not named. Cruz v. Unilock Chi., Inc., 383 Ill. App. 3d 752, 778, 892 N.E.2d 78, 103 (2nd Dist.

Consumer Class Actions: 8. Fair and Efficient Adjudication of Controversy—Section 801(4)

Illinois law considers whether a class action can best secure economies of time, effort and expense; promote uniformity; or accomplish other ends of equity and justice that class actions seek to obtain. Gordon v. Boden, 224 Ill. App. 3d 195, 586 N.E.2d 461 (1st Dist. 1991). Illinois law considers class actions appropriate when separate suits could result in the establishment of inconsistent standards of conduct for persons opposing a class or when a separate suit could affect the rights of other members of the class. Rodriguez v. Credit System Specialists, Inc., 17 Ill.

Consumer Class Actions: 9. Notice to the Class—Section 803

As to notice, the Illinois statute provides that “upon a determination that an action may be maintained as a class action, or any time during the conduct of the action, the court in its discretion may order such notice that it deems necessary to protect the interest of the class and the parties.” 735 ILCS 5/2-803. This is not an absolute requirement of notice. Rather, whether notice is to be given at all, and the kind of notice to be given, are matters of discretion for the trial court.

Consumer Class Actions: 10. Exclusion—Section 804

Under 735 ILCS 5/2-804, putative class members have the right to opt-out of (i.e., be excluded from), the class and accordingly the possibility of a counterclaim against particular class members does not defeat class certification. Walczak, 365 Ill. App. 3d at 681. Emphasizing the finality of the option, the Appellate Court has held that putative class members who fail to opt-out are bound by any ensuing settlement agreement, thus, res judicata bar new claims. Currie v. Wisconsin Central, LTD, 961 N.E.2d 296, 309 (1st Dist. 2011).

Consumer Class Actions: 12. Dismissal or Compromise of Class Cases—Section 806

735 ILCS 5/2-806 requires “that any action brought as a class action shall not be compromised or dismissed except with the approval of the court and, unless excused for good cause shown, upon notice as the court may direct.” This assures that the cost of representation is shared by all class members. Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 393–94, 24 L. Ed. 2d 593, 607 (1970).

Consumer Class Actions: 13. Residual Funds in a Common Fund—Section 807

Illinois law has long recognized the doctrine of fluid recovery (cy pres) and permitted its use in class action cases where it was not feasible to distribute all of the funds to identifiable class members. Gordon v. Boden, 224 Ill. App. 3d 195, 586 N.E.2d 461 (1st Dist. 1991). In further recognition of this doctrine, the Illinois Legislature has recently codified and expanded this practice through its enactment of 735 ILCS 5/2-807.

Consumer Class Actions: 14. Venue

In Boxdorfer v. DaimlerChrysler Corp., 339 Ill. App. 3d 335, 790 N.E.2d 391 (5th Dist. 2003), the Illinois Appellate Court held that where “all the alleged acts of a failure to disclose defects on the part of the defendant did not take place in Madison County, but, rather, took place in Michigan, where the cars had been designed, manufactured and sold by the defendant” that venue for a consumer fraud claim was not proper in Madison County and, thus, transferred the case to Sangamon County; the location of the defendant’s registered agent. In Rensing v.

Consumer Class Actions: 15. Attorneys’ Fees

The Illinois Supreme Court has long recognized the common fund method of determining attorneys’ fees (which provides for the recoupment of attorney fees as a percentage on the common fund).

Consumer Class Actions: 16. Standing to Object

An objector need not intervene as a pre-condition to appeal an order approving a class action settlement. Rosen v. Ingersoll-Rand Company, et al., 372 Ill. App. 3d 440, 865 N.E.2d 451 (1st Dist. 2007) (citing with approval Devlin v. Scardelletti, 536 U.S. 1, 14, 122 S. Ct. 2005, 153 L. Ed. 2d 27 (2002)). However, non-intervening parties may waive their standing to object to the settlement by failing to comply with reasonable requirements set forth in the Notice. Rosen, 372 Ill. App. 3d at 448.

Consumer Class Actions: 17. Decertification of a Class Action

In Mashal v. The City of Chicago, 981 N.E.2d 951, 367 Ill. Dec. 223 (Ill. 2012), the Illinois Supreme Court addressed the 735 ILCS 5/2-802 (a) provision, which permits courts to “amend” certification orders “before a decision on the merits.” In an issue of first impression, the Court found that: “a ‘decision on the merits’ is a complete determination of liability on a claim based on the facts disclosed by the evidence, and which establishes a right to recover in at least one class member, but which is something short of a final judgment.” Id. at *P44.

Consumer Class Actions: ILLINOIS CLASS ACTION STATUTES

735 Ill Comp. Stat. 5/2-801. Prerequisites for the maintenance of a class action.68 An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:

(1) The class is so numerous that joinder of all members is impracticable.

Consumer Class Actions: 1. Comparison with Rule 23 of the Federal Rules of Civil Procedure

Rule 23 of the Indiana Rules of Trial Procedure is similar to Rule 23 of the Federal Rules of Civil Procedure prior to the 2003 amendments to the federal rules.75 In addition, Indiana Trial Rule 23(C)(1) requires that, absent a waiver, the court must conduct a hearing in making a determination as to class certification.76 While Indiana’s Rule 23 lacks the interlocutory appeal mechanism of Federal Rule 23(f), a 2008 amendment to Rule 14(C) of the Indiana Rules of Appellate Procedure permits a party t

Consumer Class Actions: 3. Recent Law Review Articles

David S. Schwartz, Mandatory Arbitration and Fairness, 84 Notre Dame L. Rev. 1247, 1262, 1318–20 (2008) (discussing the abuse of mandatory arbitration clauses as an attempt to limit class actions).

Jessica Erickson, Corporate Misconduct and the Perfect Storm of Shareholder Litigation, 84 Notre Dame L. Rev. 75 (2008) (discussing securities class actions and derivative suits arising out of the same allegations of corporate wrongdoing).

Consumer Class Actions: 4. Recent Decisions Involving Class Actions

a. Indiana Decisions

Gierek v. Anonymous 1, 212 N.E.3d 208 (Ind. Ct. App. 2023). Patients who had undergone surgeries brought class action alleging that hospital failed to properly sterilize surgical equipment for numerous patients. The Court of Appeals held that although the Medical Malpractice Act (“MMA”) applied to the patients’ claims, which required pre-suit review by a medical malpractice panel, the trial court nonetheless had jurisdiction to determine the issue of class certification as a “preliminary question” under the MMA before panel review.

Consumer Class Actions: INDIANA RULES OF TRIAL PROCEDURE

Rule 23. Class Actions77

(A) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

Consumer Class Actions: INDIANA RULES OF APPELLATE PROCEDURE

Rule 14. Interlocutory Appeals78

* * *

(C) Interlocutory Appeals from Orders Granting or Denying Class Action Certification. The Court of Appeals, in its discretion, may accept jurisdiction over an appeal from an interlocutory order granting or denying class action certification under Ind. Trial Rule 23.

Consumer Class Actions: 1. Introduction

Prior to July 1, 1980, the Iowa rule regarding class actions was essentially the same as old Rule 23(a) of the Federal Rules of Civil Procedure, which existed in the federal courts until the substantial revision in 1966 of the federal rule.79 Hence, prior to July 1, 1980, Iowa state courts were still dealing with the old true, hybrid, spurious class action analysis.

Consumer Class Actions: IOWA RULES OF PRACTICE AND PROCEDURE

Rule 1.261 Commencement of a class action.80

One or more members of a class may sue or be sued as representative parties on behalf of all in a class action if both of the following occur:

(1) The class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable.

(2) There is a question of law or fact common to the class.

Consumer Class Actions: 1. Comparison with Rule 23 of the Federal Rules of Civil Procedure

Kansas Statutes Annotated (K.S.A.) § 60-223 of the Kansas Rules of Civil Procedure is modeled after Rule 23 of the Federal Rules of Civil Procedure.99 Shutts v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied, 434 U.S. 1068, rehearing denied, 435 U.S. 961 (1978); Steele v. Security Benefit Life Ins., 226 Kan. 631, 638, 602 P.2d 1305 (1979); Bigs v. City of Wichita, 271 Kan. 455, 478, 23 P.3d 855 (2001).

Consumer Class Actions: 2. Summary of Case Law Interpreting K.S.A. § 60-223

a. Rule 23(a) Requirements

i. Numerosity. There is no set number of class members required. Shupbach v. Continental Oil Co., 193 Kan. 401, 405, 394 P.2d 1, 5 (1964) (allegation of 23 class members sufficient); Sternberger v. Marathon Oil Co., 257 Kan. 315, 344, 894 P.2d 778, 807 (1995) (38 subclass members); but see Combs v. Devon Energy Prod. Co., LP, 303 P.3d 1278, at *7 (Kan. App. 2013) (denying class certification for 25 or less class members), rev. denied (Dec. 27, 2013).

Consumer Class Actions: 3. Miscellaneous Comments

a. Annihilating Damages

Class actions cannot be avoided by claiming classwide damages would annihilate the defendant because “the threat of catastrophic judgment should not protect parties that violate the law on a large scale.” Critchfield Physical Therapy v. Taranto Grp., 293 Kan. 285, 302, 263 P.3d 767, 781 (2012).

b. Communication with Putative Class Members