Northside Chiropractic, Inc. et al v. Yellow Book Sales and Distribution Co., Inc.

Filing 169

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 8/29/2012:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NORTHSIDE CHIROPRACTIC, INC.,
and MICHAEL DUBICK, for themselves
and others similarly situated,

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Plaintiff,
v.
YELLOWBOOK, INC., formerly known
as Yellow Book Sales and Distribution
Company, Inc.,
Defendant.

No. 09 CV 04468
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Dr. Michael Dubick, as a proposed class representative, has sued
Defendant Yellowbook, Inc.1 Dubick seeks damages based on common law breach of
contract and on the Illinois Consumer Fraud and Deceptive Business Practices Act, 815
ILCS 505/1, et seq. Dubick has filed a motion for class certification [R. 120]. For the
reasons explained below, the motion is denied.
I.
In August 2005, Dr. Michael Dubick, an officer and shareholder of Northside
Chiropractic, was approached by sales representatives from Yellowbook, a company
that publishes telephone directories. R. 147 ¶ 21. The salespeople brought with them
a clipping of an advertisement for Northside they found in the Lakeview Telephone

1

Citation to the docket is “R.” followed by the docket entry. The Court has subject matter
jurisdiction under the Class Action Fairness Act because the parties are of diverse citizenship
and the matter in controversy exceeds $5 million. 28 U.S.C. § 1332(d).

Directory, and promised Dubick that Yellowbook could print a far superior
advertisement. Id. ¶¶ 21-23. The Lakeview advertisement included:
(a)

Dr. Dubick’s name.

(b)

Dr. Dubick’s picture.

(c)

The logo for Northside Chiropractic.

(d)

The statements “Evening and Weekend Hours,” “Insurance & Credit
Cards Welcome,” and “Convenient Safe Location.”

(e)

The statements “Patients who regularly visit Northside Chiropractic feel
healthier,” and “Dr. Dubick delivers a compassionate, personal approach
to your health.”

(f)

A testimonial from a customer named “Joan R.” stating: “Dr Dubick is
concerned about his patients. He really listened and cared.”

(g)

A zip code.

Id. ¶ 33. See also R. 153, Exh. B.
Throughout the negotiations, the salespeople made several promises to Dubick.
First, they promised that the Yellowbook advertisements would be identical or
substantially similar to the Lakeview Directory advertisement. Id. ¶ 24. Dubick
responded by explaining to the salespeople that he was in the process of updating his
headshot. R. 147 ¶ 24. The salespeople promised that they would obtain the new
headshot before publishing the Northside advertisement. Id. ¶ 28. They also promised
that Yellowbook would forward proofs of the advertisement (that is, the test mock-up
of the ad) to Dubick before publication. Id.
Second, the salespeople promised Dubick that for the quoted price, Yellowbook
would publish the Northside advertisement in two separate locations: under the
2

“Chiropractors” heading and under the “Massage Therapeutic” heading.2 Id. ¶ 25. An
Internet listing would also be included. Id. The salespeople promised that publishing
the advertisement under these headings would produce greater revenues than the
Lakeview advertisement. Id.
Third, the salespeople promised that if Dubick purchased a Yellowbook
advertisement, he would gain dramatic increases in revenue. Id. ¶ 27. To help
persuade Dubick, the salespeople used a “Return On Investment” calculation. R. 120
¶ 6. The investment-return calculation is based off of Northside’s business information
(solicited from Dubick) and relies on certain assumptions and projections that
ostensibly prove that a Yellowbook advertisement will pay for itself overnight. Id. The
salespeople also claimed that if Dubick failed to buy an advertisement, he would suffer
substantial economic harm. R. 147 ¶ 27. The salespeople used a so-called “reverse”
calculation to show that Dubick would lose massive business opportunities if he failed
to buy a Yellowbook advertisement. R. 120 ¶ 6.
Based on these promises, Dubick agreed to buy advertising with Yellowbook. R.
147 ¶ 30. Dubick was then presented with a contract, R. 153, Exh. C, that supposedly
embodied all the promises the salespeople made during the negotiations. Id. The front
of the contract listed Dubick’s order information and provided a space for Dubick’s
signature. R. 153, Exh. C. The back of the contract contained a 2,500 word “Terms and

2

Although not explicitly stated in the Amended Complaint, R. 147, it appears that one
of the headings was free of charge, as part of the Early Decision Incentive Reward by
Yellowbook. R. 120 ¶ 4.

3

Conditions” section. Id; see also R. 120 ¶ 4(f). This section included the following five
provisions:
“Publisher will endeavor to furnish proofs of new and revised display print
advertisements, but failure to do so will not relieve Customer of its obligations
under this agreement.” R. 153, Exh. C at 2 § 7(A).
“Publisher will determine all headings that appear in its directories . . .
Publisher does not guarantee the position of an advertisement under a
particular heading. Failure to publish an advertisement in a particular position
shall not be the basis for a claim or adjustment to the amount owed by
Customer.” Id. § 7(C).
“In no event will Publisher . . . be liable to Customer for any other damages
including . . . claims based on breach of contract . . . or rights arising from
statutory enactment.” Id. § 7(E).
“Customer acknowledges that publisher shall retain any deposit, which will be
applied to any future print services or Internet Services purchased by Customer,
within two years from the date of this agreement. At the end of such two-year
period, Customer will forfeit any right to apply the deposit to future print
services or Internet Services.” Id. § 8.
“The signer of this agreement does, by his execution personally and individually
undertake and assume the full performance hereof including payments of
amounts due hereunder.” Id. § 15(F).
The salespeople did not explain these five provisions, nor did they explain any
of the other Terms and Conditions. R. 147 ¶ 29. Instead, the salespeople implored
Dubick to pay a deposit in order to reserve space in Yellowbook. Id. ¶ 28. According to
Dubick, these five provisions negated elements of his verbal agreement with the
salespeople. R. 120 ¶ 4(g). Unaware of these provisions, Dubick signed the contract and
paid a deposit of $549 (equal to the cost of one month of advertising) to reserve his
advertisement. R.147 ¶¶ 29-30.

4

The advertisement was eventually published without Dubick submitting any
proofs of the ad back to Yellowbook. R. 147 ¶ 31. The parties dispute whether
Yellowbook requested proofs from Dubick, Id., R. 137 at 7-8, but there is no dispute
that Dubick was unhappy with what was eventually published in Yellowbook. The
Yellowbook advertisement was missing elements that were included in the Lakeview
advertisement. R.147 ¶ 33. Specifically, it was missing Dubick’s name and picture;
Northside’s logo and zip code; the customer testimonial; and other statements that
were included in the Lakeview advertisement. Id. Moreover, Yellowbook apparently
published the advertisement under the “Massages - Non-Therapeutic” (emphasis
added) heading instead of the “Massages - Therapeutic” heading. Id. ¶ 34. Nontherapeutic services are less reputable, according to Dubick, and therefore, the
incorrect listing caused damage to Northside’s image and reputation. Id. Dubick
believes that the erroneous placement, along with the deficient advertisement, caused
Northside to suffer substantial business losses. Id. ¶¶ 37-38.
In June 2009, Dubick and Northside filed this class-action lawsuit against
Yellowbook in the Circuit Court of Cook County. R. 1, Exh. A. Yellowbook removed the
case to federal district court shortly afterwards. R. 1. Dubick has since amended the
complaint, R. 147, and has filed a motion for class certification, R. 120. That motion is
now fully briefed before this Court.

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II.
Courts usually should decide the question of class certification before turning
to the merits of a given action. See Weismueller v. Kosobucki, 513 F.3d 784, 786–87 (7th
Cir.2008). To be entitled to class certification, a plaintiff must satisfy each requirement
of

Rule

23(a)—numerosity,

commonality,

typicality,

and

adequacy

of

representation—as well as one subsection of Rule 23(b). See Harper v. Sheriff of Cook
Co., 581 F.3d 511, 513 (7th Cir.2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th
Cir.2006). “Failure to meet any of the Rule’s requirements precludes class
certification.” Harper, 581 F.3d at 513 (quotation marks omitted) (quoting Arreola v.
Godinez, 546 F.3d 788, 794 (7th Cir.2008)).
“A class may be certified only if ‘the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been satisfied.” Creative Montessori
Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 916 (7th Cir.2011) (emphasis added
by Creative Montessori ) (quoting Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551
(2011)). The named plaintiff bears the burden of showing that each requirement is
satisfied. See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th
Cir.1993). The Court “must make whatever factual and legal inquiries are necessary
to ensure that requirements for class certification are satisfied before deciding whether
a class should be certified, even if those considerations overlap the merits of the case.”
Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir.2010) (citing Szabo v.
Bridgeport Machs., 249 F.3d 672, 676 (7th Cir.2001)); see also Dukes, 131 S.Ct. at 2551
(class certification analysis “[f]requently ... will entail some overlap with the merits of
6

the plaintiff's underlying claim”). The Court has “broad discretion to determine
whether certification of a class-action lawsuit is appropriate.” Chavez v. Ill. State
Police, 251 F.3d 612, 619 (7th Cir. 2001).
III.
A.
The threshold question is whether Dubick’s proposed class is ascertainable. A
plaintiff must show that the class is indeed identifiable as a class and definite enough
that it can be ascertained. Oshana v. Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006).
In the class certification motion, Dubick describes the putative class as those who:
(a)

after being beguiled and misled by Yellowbook sales personnel with false
promises and material misrepresentations;

(b)

were fraudulently induced to make purchases of Yellowbook print display
advertising, with placement of advertising in one or more Yellowbook
directories distributed within the State of Illinois;

(c)

signed sales agreements or contracts containing terms substantially
similar to those signed by the named Plaintiffs;

(d)

made complaints or claims concerning Yellowbook’s failure to properly
publish and provide the requested advertising services that conformed to
advertising requirements that were agreed upon by such persons and
Yellowbook; and

(e)

were denied full refunds, or appropriate compensation for the damages
sustained as a result of Yellowbook’s failures and misconduct.

R. 120 ¶ 10. The question this Court faces at the outset is whether this class definition,
comprised of the five parts quoted above, describes an ascertainable class.
Yellowbook argues no, for three reasons. First, the Court cannot possibly
identify those who are “beguiled and misled,” R. 120 ¶ 10(a), without examining
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individual subjective beliefs and expectations of the class members. R. 137 at 21.
Second, oral contracts, R. 120 ¶ 10(d), between customers and Yellowbook’s sales
representatives are never identical but instead “vary like snowflakes.” R. 137 at 22.
Third, ascertaining the customers who were denied “appropriate” compensation, R. 120
¶ 10(e), would require thousands of individualized and subjective inquiries. R. 137 at
22.
Dubick responds by arguing that the class is ascertainable if the Court draws
“reasonable inferences” against Yellowbook. R. 148 at 15-21. He argues that these
inferences are justified for three reasons. First, Dubick argues that discovery was
limited in a way such that he was only able to obtain a small percentage (1.5%) of all
potential claims, and thus the claims in the record are unrepresentative and are
skewed in favor of Yellowbook. Id. at 16. Second, Dubick objects to Yellowbook’s
method of categorizing customer complaints because the categories mask and obscure
many of the more serious complaints. Id. at 17-19. Third, Dubick believes that
Yellowbook can provide, but refuses to do so, the contact information of all complaining
customers who did not receive full refunds. Id. at 20.
The Seventh Circuit has held that “there is a ‘definiteness’ requirement implied
in Rule 23(a),” Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.
1977), that is, the proposed class must describe an ascertainable class. Indeed, each of
the threshold prerequisites for class-action certification in Rule 23(a)(1) refers to a
“class,” and thus each prerequisite cannot be evaluated if the class is itself not
ascertainable. See Fed. R. Civ. 23(a)(1) (numerosity of the “class”), (a)(2) (law or fact
8

questions common to the “class”), (a)(3) (typicality of claims or defenses of the “class”),
(a)(4) (adequacy of proposed class representatives to protect the interests of the
“class”).
Beyond being required for evaluation of the Rule 23(a) prerequisites, the
ascertainability requirement serves several purposes. First, it alerts the parties and
the Court to the burdens that identification of the class might entail, which is relevant
to whether the proposed class action is manageable. Simer v. Rios, 661 F.2d 655, 670
(7th Cir. 1981). “In this way the court can decide whether the class device simply would
be an inefficient way of trying the lawsuit for the parties as well as for its own
congested docket.” Id. Second, ascertaining a definite class ensures that parties
actually harmed by the defendants’ conduct will be the recipients of the relief
eventually awarded. Id. Additionally, a class definition cannot turn on “a future
decision on the merits” (such as customers who were “beguiled and misled” by false
representations, R. 120 ¶ 10(a)) because there would be no way to identify the class
members until the case is resolved on the merits:
Using a future decision on the merits to specify the scope of the class makes it
impossible to determine who is in the class until the case ends, and it creates
the prospect that, if the employer should prevail on the merits, this would
deprive the judgment of preclusive effect: any other former worker could file a
new suit, given that the losing “class” lacked any members.
Bolden v. Walsh Constr. Co., – F.3d –, 2012 WL 3194593, at *2 (7th Cir. Aug. 13, 2012).
Here, the Court agrees with Yellowbook that Dubick’s proposed class definition
does not generate an ascertainable set of class members, at least not one that can be
identified without a future decision on the merits. The prime example of this flaw is
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Paragraph (a) of the proposed class definition, that is, those customers who were
“beguiled and misled by Yellowbook sales personnel with false promises and material
misrepresentations.” The customers described in Paragraph (a) are those customers
who were, by definition, defrauded. Thus, Paragraph (a) uses a future decision on the
merits—was the particular customer defrauded—to specify the scope of the class.3 That
way of specifying the class’s scope is prohibited.4
There is another problem with the class definition, this time in Paragraph (e),
which seeks to include customer who “were denied full refunds, or appropriate
compensation for the damages sustained as a result of Yellowbook’s failures and
misconduct.” R. 120 ¶ 10. Using a term like “appropriate” in a class definition is a redflag that, once again, a ruling on the merits is being used to determine the scope of the
class. In order to determine whether a particular customer was in the class, the Court
would have to make a highly individualized inquiry that depends on what terms were
agreed upon, whether and how Yellowbook breached that contract, and what
Yellowbook specifically offered to the customer.
Contrary to Dubick’s argument, the flawed class definition cannot be cured by
simply drawing reasonable factual inferences against Yellowbook.5 The flaws are
3

The same flaw is found in Paragraph (b) of the class definition: those customers who
were “fraudulently” induced to buy Yellowbook’s display advertising.
4

What’s more, the definition uses the term “beguiled,” which is not exactly a concrete
term that can be readily used to determine who is in the class and who is not.
5

Dubick’s argument that he is entitled to inferences in his favor is puzzling. He argues
that this Court has “recognized that Yellowbook’s unreasonable obstruction of discovery may
be a factor to consider on this motion, and expressly told Yellowbook that obstruction of

10

inherent in the proposed class definition, and are not merely problems with the factual
basis for the certification motion. Thus, the Court denies Dubick’s motion for class
certification. For the sake of completeness, the Court also will address Rule 23(a)’s
requirements as if Dubick had proposed an ascertainable class.
B.
1.
Before examining in detail whether Dubick has offered sufficient facts to satisfy
the requirements of Rule 23(a), the Court will first address whether a recent Supreme
case, which interpreted the commonality requirement, applies to this case. Wal–Mart
Stores v. Dukes, 131 S. Ct. 2541, 2551 (2011). Dukes held that, in order to satisfy the
commonality requirement, the class-wide proceeding must be capable of generating
“common answers apt to drive the resolution of the litigation.” Id. Here, Yellowbook
argues that Dubick has failed to meet the commonality requirement because the
proposed class would not create questions that have common answers. R. 137 at 23.
Dubick counters with two arguments. First, courts have explained that the
commonality requirement is “easily surmounted.” R. 148 at 25 (citing Kaufman v.
American Express Travel Related Services Co., Inc., 264 F.R.D. 438, 442 (N.D. Ill.

discovery may support this Court’s drawing inferences . . . .” R. 148 at 3. It is true that, during
a motion hearing, the Court stated that it might draw negative inferences in deciding the class
certification motion. R. 103, 04/28/11 Tr. at 4. But this Court explained that negative inferences
could possibly be drawn against the party that the magistrate judge finds at fault for failing
to provide discovery. Id. Eventually, the magistrate judge found that neither party was at fault.
R. 105, 05/03/11 Tr. at 45. And Dubick never did actually appeal any of the magistrate judge’s
discovery rulings to this Court. So Yellowbook’s conduct during discovery does not provide a
basis to draw inferences in Dubick’s favor.

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2009)). Second, Dukes does not apply here because the commonality discussion there
related only to cases involving injunctive relief under Rule 23(b)(2). R. 148 at 25. Here,
the class action is based on Rule 23(b)(3), and thus (according to Dubick) the class is
not subject to the requirements set forth in Dukes. Id.
That is incorrect. Dukes interpreted the commonality requirement of Rule
23(a)(2)—which applies to all class actions. 131 S. Ct. at 2550-51. The text of the rule
sets forth 4 prerequisites that must be satisfied before any case may be certified. Fed.
R. Civ. P. 23(a)(1)-(4). Not surprisingly, then, the Supreme Court stated that “[a] party
seeking class certification must affirmatively demonstrate . . . common questions of law
or fact . . . .” Id. at 2551. The opinion (like the Rule itself) contains no language limiting
the commonality requirement to injunctive relief cases.
Dubick believes that footnote 2 of the Supreme Court’s decision establishes that
Dukes does not apply to non-injunctive relief classes. R. 148 at 31-32. That footnote
reads, in pertinent part:
Rule 23(b)(3) states that a class may be maintained where “questions of law or
fact common to class members predominate over any questions affecting only
individual members,” and a class action would be “superior to other available
methods for fairly and efficiently adjudicating the controversy.” The
applicability of these provisions to the plaintiff class is not before us.
Dukes, 131 S. Ct. at 2549 n.2. But that language does not exempt non-injunctive relief
cases from Rule 23(a)(2). All class actions must satisfy both Rule 23(a) and Rule 23(b).
The Supreme Court was simply explaining the Rule 23(b) requirements, which did not
change the fact that all class actions—including those based on Rule 23(b)(3)—must
meet the requirements of Rule 23(a): numerosity, typicality, adequacy, and
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commonality. Id. at 2548. And for class-action certification to be proper under Rule
23(b)(3), the common questions of law or fact must “predominate” over individual
questions, and class treatment must be “superior” to other methods of adjudication. As
explained below, for each of the types of claims that Dubick asserts, at least one of the
Rule 23 requirements are not met.
2.
a.
Dubick’s first claim is that Yellowbook misled customers by offering them a free
reward, under what was called the Early Decision Incentive program, to induce the
customers to buy advertising. For example, Yellowbook would offer an additional free
ad under another heading. R. 120 ¶ 4(c). According to Dubick, the reward is really
illusory because customers have no remedy if the free reward is inadequate. Id.
Specifically, Dubick objects to two policies (embodied in the Terms and Conditions of
the contract signed by customers) that declare that (1) if the paid-for advertisement is
defective, the Incentive Reward’s value is credited to the customer as an adjustment;
and (2) customers receive no credit if the reward itself was defective. Id. According to
Dubick, those policies contradict the verbal agreements between Yellowbook and
customers, and thus there exists a class of aggrieved customers who were denied
Incentive Rewards to which the customers were rightfully entitled. Id. ¶ 4.
But the first Rule 23(a) requirement—numerosity—has not been met. To certify
a class action, the evidence must show that “the class is so numerous that joinder of
all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “Courts have also found the
13

numerosity requirement satisfied where the putative class would number less than
forty individuals.” E.g., McCabe v. Crawford & Co., 210 F.R.D. 631, 643 (N.D. Ill. 2002).
Dubick argues that numerosity is satisfied because Yellowbook has admitted that
dissatisfied customers have filed over 10,000 claims in all. R. 123 at 3. Dubick then
goes on to break down the number of claims due to problems with display artwork
(1,800), text errors (1,950), or claims of general product dissatisfaction (383). Id.
But these numbers say nothing about how many customers were promised Early
Decision Incentive Rewards only to later learn that they were not included in the
contract. The record does not include evidence or any estimates of how many
complaints are based on allegedly defective Incentive Rewards.6 Yellowbook does not
keep such specific records; that is, the descriptions Yellowbook uses to categorize
customer complaints does not identify which complaints were based on an Incentive
Reward. See R. 121, Exh. 18, 19. Nor do any of the notes taken down by the claims
adjusters reference complaints about the Early Decision Incentive Program. R. 121,
Exh. 32-37. Because there is no evidence showing how many complaints are based on
the Incentive Rewards, Dubick cannot meet his burden to demonstrate numerosity.
Moreover, these Incentive Reward claims do not meet the predominance
requirement for Rule 23(b)(3) class actions. The predominance requirement is similar

6

It is true that Yellowbook’s salespeople receive training on using the Early Decision
Incentive Program during the sales pitch. R. 122, Exh. 16 at 7-8. That suggests that some
customers, probably many customers, received an Incentive Reward, or at least the offer of one.
But Dubick has failed to provide evidence that there were sufficient complaints based on the
Incentive Reward.

14

to Rule 23(a)(3)’s typicality requirement. Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 623 n.18 (1997). Despite the similarity, “the predominance criterion is far more
demanding” than “Rule 23(a)’s commonality requirement.” Id. at 624. The Court must
compare the role of common issues of law and fact with the role of individual issues,
including whether individual transactions must be examined in adjudicating the claim.
Lady Di’s, Inc. v. Enhanced Servs. Billing, 654 F.3d 728, 738 (7th Cir. 2011).
Here, the individualized details of each customer agreement would predominate
over common questions. The record shows that the Early Decision Incentive Reward
could take many different forms. Yellowbook might have offered customers other
headings, coupons, color advertising, other directories, or a host of other benefits. R.
122, Exh. 16 at 8. A customer who signed up with Yellowbook based on an Incentive
Reward that included a discount coupon, for example, might have to show that she
never received the coupon. A customer who received an Incentive Reward with color
advertising might have to show that the printed listing contained incorrect colors.
These are individualized issues that would predominate over any common issues, as
far as the record discloses. The class-treatment evaluation might be different if the
record evidence showed that Yellowbook rarely performed on promised Incentive
Rewards, so that the central dispute would be over whether a complete nonperformance of the Incentive Reward is a permissible basis for liability. But that is not
what the record shows. Indeed, even if liability could be answered across-the-board,
questions of individual damages would also predominate. Yellowbook’s claimsresolution process is flexible and allows different customers to obtain different
15

remedies and solutions to their complaints. R.137, Exh. E. The example that
Yellowbook raises is illustrative: a claim for the same customer for the same error
resulted in varying adjustments. R. 137, Exh. 1 ¶¶ 19-27. Dubick concedes that there
are many individual issues on damages, but argues that the Court can use methods
such as “bifurcating liability and damages trials, appointing a magistrate judge or
special master to preside over individual damages proceedings, decertifying the class
after the liability trial and providing class notice to members concerning how they may
proceed to prove damages, creation of subclasses, or altering or amending the class.”
R. 148 at 46. But none of those mechanisms surmount this hurdle: Rule 23(b)(3)
requires that common questions predominate in order for class-action treatment to be
authorized.
b.
Similarly, the claims relating to the Return-On-Investment calculations fail to
raise common issues that predominate. It is true that Yellowbook provided training
materials to its sales force in the hopes that they would use the calculations to convince
prospective customers to buy an advertisement. R. 122, Exh. 16 at 4. That would seem
to suggest that at least some sales representatives used them in their sales pitches.
But just because a customer heard the calculations in the sales pitch does not mean
that the customer actually relied on them in deciding to buy Yellowbook advertising.
Indeed, the record does not contain evidence demonstrating that a substantial number
of customers complained about the Return-On-Investment calculations. Instead, the
parties would have to conduct an individualized inquiry to determine the identity of
16

those who actually believed and relied on the Return-On-Investment calculations, and
that customer-by-customer inquiry would predominate over any common issues. Again,
this might be a different case if there were some reason to believe that the Return-OnInvestment calculation was the central selling point to customers, but there is no
reason to think that is true.
c.
Dubick also cannot show the predominance of the claim that Yellowbook
allegedly failed to obtain Dubick’s approval on proofs of the advertisement (that is, the
test mock-up of the ad) before publishing the ad. The first problem is that an
individualized inquiry would be needed to determine the proofing process for each
customer. To be sure, there is some evidence that some salespeople verbally promised
that proofs would be sent to the customer for approval because three of the sample
customer complaints note that some customers complained about the proofing process.
E.g., R.122, Exh. 33, 35, 37. But there is no evidence that the process was widespread.
For example, the sales pitch training materials did not include any slides or
information on the proofing process.7 R. 122, Exh. 13-16.
Second, not all complaints about the proofing process are similar because the
factual basis for any given complaint is variable. For example, two of the three proofrelated complaints in the record state that the customer never received a proof that he
was promised. R. 122, Exh. 33 at 5, 37 at 12. But the third proof-related complaint, as

7

And because the proofing process was not part of the sales training, this claim cannot
meet the commonality requirement.

17

best as can be discerned, implied that a customer did send in a proof but Yellowbook
misprinted the phone number. R. 122, Exh. 35 at 8. So even the proof-related
complaints uncovered in discovery show that labeling a complaint with “proof-related”
does not mean that a common question will predominate over individual ones.
d.
Dubick’s final type of claim, that Yellowbook used a “sham claim adjustment
practice” to mollify and retain customers, R.120 ¶¶ 7-9, also fails the predominance
requirement. According to Dubick, Yellowbook gave out adjustments and allowances
to customers based on the particular customer’s perceived profitability, rather than
based on whether Yellowbook was at fault. R. 120 ¶ 8. But, not surprisingly, there is
substantial variation among customer complaints that lead to adjustments or credit.
Yellowbook organized its customer-complaint system into 25 different error types and
56 root causes. R. 137, Exh. B-D. Moreover, the actual benefit customers receive for the
same type of complaint varies widely. R.137, Exh. E. Yellowbook’s training materials
regarding the adjustment process advises adjusters to “[p]repare 2-3 adjustment offers”
in order to leave “room for negotiating . . . .” Id. The variation is also due to Yellowbook
giving front-line representatives the discretion to offer adjustments as they see fit. R.
137, Heron Decl. ¶ 7. With all of this variety in the adjustment process, no common
issue predominates over the individual ones.

18

3.
For the sake of further completeness, the Court also notes that Dubick’s claims
are not necessarily typical of the class. To certify a class, the Court must determine
that “the claims or defenses of the representative parties are typical of the claims or
defenses of the class.” Fed. R. Civ. P. 23(a)(3). The question of whether the plaintiff’s
claims are typical is closely related to the commonality inquiry. Keele v. Wexler, 149
F.3d 589, 595 (7th Cir. 1998). A claim is typical if “it arises from the same event or
practice or course of conduct that gives rise to the claims of other class members and
his or her claims are based on the same legal theory.” Id. (citing De La Fuente v.
Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983)).
Because the class definition is overbroad (any false promise made to a customer),
Dubick’s particular claims are not necessarily typical of the class. The class (as defined
by Dubick) would include anyone who was misled (or “beguiled”) by any false promise
made by Yellowbook. R. 120 ¶ 10(a). That group would include those customers with
complaints against Yellowbook that have nothing to do with the Early Decision
Incentive, the Return-On-Investment calculations, or the proofing-approval process.
Because Dubick’s case is based only on those three types of false promises (aside from
the “sham” adjustment process), his claims would not necessarily be typical of those
of the class members.8

8

If Dubick had narrowed the class definition to those who had complaints related to
those three alleged false promises, then typicality might be satisfied. But Dubick pursued a
too-broad definition.

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4.
One last note, again for completeness’s sake. To obtain class certification, a
plaintiff must also show that “the representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Adequacy of representation
is composed of two parts: ‘the adequacy of the named plaintiff’s counsel, and the
adequacy of representation provided in protecting the different, separate, and distinct
interest’ of the class members.” Retired Chicago Police Assn., 7 F.3d at 584, 598 (7th
Cir. 1993); see also Spano v. The Boeing Co., 633 F.3d 574, 586-87 (7th Cir. 2011).
Aside from the atypicality of the claims (discussed above), there is no particular
reason to doubt Dubick’s adequacy as a class representative. On adequacy of counsel,
the extensive effort that Plaintiff’s counsel has poured into this litigation and the
filings is sufficient to demonstrate counsel’s adequacy to represent a class (if it had met
all the other requirements of certification). But that conclusion was not clear-cut, for
three reasons. First, counsel plainly misinterpreted Walmart v. Dukes. As explained
above, Dukes’s interpretation of the commonality requirement is directly relevant to
this case, despite Plaintiff’s counsel’s arguments to the contrary. Second, it appears
that counsel’s filings skirted the Court’s page limits: when filing the class certification
motion, Dubick’s brief, R. 123, was 14 pages, but the motion itself, R. 120, consumed
another 14 pages and was filled with substantive argument (not to mention plentiful
single-spacing). That amounts to 28 pages of briefing, well beyond the 15-page limit set
by Local Rule 7.1. Third, Plaintiff’s counsel tried to support declarations in an affidavit
by citing to plainly inadmissible anonymous internet postings. R. 122, Exh. 19.
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Nevertheless, these three concerns do not rise to the level that would disqualify counsel
as inadequate.9 If this case had been certified for class-action treatment, then the
adequacy requirement would have been met.
IV.
The Court denies Dubick’s motion for class certification. R. 120. Because the
Court has now relied on briefs and materials filed in support of, and in opposition to,
the class certification motion, if a brief was sealed in its entirety, the filing party must
now file a publicly-accessible version redacting only that information fitting the narrow
categories of information deserving of under-seal status. Baxter Int’l v. Abbott
Laboratories, 297 F.3d 544, 546-47 (7th Cir. 2002); Union Oil v. Leavell, 220 F.3d 562,
567-68 (7th Cir. 2000). The parties have until October 17, 2012, to file those publiclyaccessible versions. Additionally, at the next status hearing, the parties should be
prepared to discuss how to move forward with Dubick’s individual claim.
ENTERED:
___________________________
Honorable Edmond E. Chang
United States District Judge

DATE: August 29, 2012
9

Yellowbook argues that Dubick’s failure to disclose his engagement agreement with
counsel means that Dubick cannot show adequacy. R. 137 at 38. The Court disagrees.
Yellowbook has cited no binding authority that requires disclosure of such agreements in order
to meet adequacy. Yellowbook did cite In re Ocean Bank, 2007 WL 1063042, at *6 (N. D. Ill.
April 9, 2007), but there a provision in the agreement empowered the attorneys to decide
whether or not to settle. The district court found that the provision made the plaintiff’s
interests antagonistic to the class interests, and determined that the plaintiff was inadequate.
Id. The court did not hold that engagement agreements must be disclosed in order to prove
adequacy.

21