Beaton v. SpeedyPC Software

Filing 201

MEMORANDUM Opinion signed by the Honorable Andrea R. Wood on 10/19/2017. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ARCHIE BEATON, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SPEEDYPC SOFTWARE, a British
Columbia company,
Defendant.

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No. 13-cv-08389
Judge Andrea R. Wood

MEMORANDUM OPINION
Plaintiff Archie Beaton (“Beaton”) has sued Defendant SpeedyPC Software
(“SpeedyPC”), a Canadian computer software company, claiming that it engaged in fraudulent
and deceptive marketing of SpeedyPC Pro, a software product that SpeedyPC claims diagnoses
and repairs various computer errors, optimizes computer performance, and protects computers
from malware. SpeedyPC’s customers would first run a diagnostic scan using its free software.
After receiving the results of the scan, customers would be invited to purchase SpeedyPC’s
premium software, SpeedyPC Pro—and many of them accepted that invitation. Beaton claims to
be one such customer. He claims that he purchased SpeedyPC’s software and installed it on his
laptop computer, but the software did not satisfy SpeedyPC’s promises. As result, according to
Beaton, SpeedyPC breached implied warranties of fitness for a particular purpose and
merchantability and committed fraudulent misrepresentation under various consumer protection
laws. Now under the Court’s consideration is Beaton’s motion to certify a class and subclass of
purchasers of SpeedyPC’s software. For the reasons discussed below, the Court grants Beaton’s

motion to certify the class and also grants the request to certify a subclass but with a modified
class definition.
BACKGROUND
This putative class action arises out of Beaton’s purchase of a license to use the
SpeedyPC’s software. SpeedyPC promotes its software through online advertisements and on
websites as being capable of increasing computer speed and performance, removing harmful
computer errors, and protecting users’ privacy and security. (Compl. ¶ 15, Dkt. No. 1.) Beaton
alleges that these representations do not reflect the software’s true capabilities. (Id. ¶ 22.)
Instead, the software has two main functions: first, it is a registry cleaner;1 and second, it
removes superfluous “temporary” files from a user’s hard drive. (Id.) According to Beaton, these
functions “do not come close to squaring with SpeedyPC’s representations about the
functionality of SpeedyPC Pro.” (Id.)
Beaton claims that SpeedyPC engages in a deceptive marketing scheme to induce
consumers to purchase the premium version of its software. Online ads for the premium version
of the software promise that the software can, among other things, “[b]oost your PC’s speed and
performance,” “[f]ind your PC’s performance potential,” and “improve[] your PC’s health.” (Id.
¶ 16.) Consumers who click on one of SpeedyPC’s advertisements are directed to one of
SpeedyPC’s websites, which warns consumers about various risks to their computers. (Id. ¶ 17.)
The websites recommend that consumers download the trial version of the software to detect
issues that the product is supposedly designed to identify and fix. (Id. ¶ 24.) Once a consumer
downloads and runs the trial version of the software, it displays hundreds or thousands of serious
problems that it claims are affecting the computer and “require attention.” (Id. ¶ 28.) After
1

Registry cleaner software is a type of utility program designed to remove unwanted or redundant items
from the Microsoft Windows operating system registry. The “registry” is a database of configuration
settings that help facilitate the operation of computer applications in the operating system. (Id. ¶ 21 n.1.)

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presenting the results of the diagnostic scan, the software displays to the user a half-page
warning with bold red letters stating: “SpeedyPC Pro has determined that your computer requires
immediate attention!” and is in “Serious” or “Critical” condition. (Id. ¶ 29.) The user is then
given the option to purchase the premium version of the software to fix and repair the supposedly
harmful errors that have been detected. (Id.)
In August 2012, while browsing the Internet for software to repair and optimize his
computer, Beaton encountered one of SpeedyPC’s ads. (Id. ¶ 42.) Based on various
representations made in the ad, Beaton went to one of SpeedyPC’s websites, which presented
more representations regarding the utility of the software. (Id. ¶ 43.) Beaton includes in his
Complaint screenshots of several of these representations. One such screenshot makes the claim
that the software can “clean and optimize your computer for peak performance.” (Id. ¶ 43 fig.
10.) Based on SpeedyPC’s representations, Beaton downloaded and installed the software. (Id. ¶
44.) The software scanned Beaton’s computer and reported that it detected hundreds of serious
errors, some of which were causing damage to the computer. (Id. ¶ 45.) The software warned
Beaton that these problems were decreasing his computer’s performance and compromising his
security, and urged him to purchase the software to “fix” the problems. (Id.) Beaton clicked on a
button labeled “Fix All,” which forwarded him to a SpeedyPC website that urged him to register
the software to fix the problems identified. (Id. ¶ 46.) After reaching the registration webpage,
SpeedyPC again represented to Beaton that it “detected some problems that needed to be fixed”
and instructed him to “Register SpeedyPC Pro now!” (Id. (citing ¶ 43 fig. 10).) Relying on these
representations about the software’s capabilities and his computer’s condition, Beaton paid to
activate the software and repair the purported errors. (Id. ¶ 47.) After he downloaded the
software, every time Beaton ran it, the software reported harmful errors that were adversely

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affecting his computer and that he needed to fix. The software continued to report harmful errors
even though Beaton repeatedly ran the program and “fixed” any errors that were found. (Id. ¶
49.) Beaton’s computer performance did not improve despite his repeatedly running the
software’s scan. (Id.)
In addition to his personal experience with the software, Beaton, through his attorneys,
also engaged an expert to examine it. (Ex. 6 to Pl.’s Mot. to Certify Class at 4, Dkt. Nos. 125-6
& 127-3.) The expert concluded that the diagnostic function of SpeedyPC’s software is designed
to report that a computer has “low” performance without conducting any diagnosis, scan, or
analysis of the user’s computer. (Id. at 21.) Beaton’s expert further concluded that supposed
errors identified by the software were not in fact credible threats to a computer’s functionality.
(Id. at 22.)
DISCUSSION
To be certified, a proposed class must satisfy the four requirements of Rule 23(a): (1) the
class is so numerous that joinder of all members is impracticable (“numerosity”); (2) there are
questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the
representative parties will fairly and adequately protect the interests of the class (“adequacy of
representative”). Fed. R. Civ. P. 23(a). If Rule 23(a) is satisfied, the proposed class must then fall
within one of the three categories in Rule 23(b), which the Seventh Circuit has described as: “(1)
a mandatory class action (either because of the risk of incompatible standards for the party
opposing the class or because of the risk that the class adjudication would, as a practical matter,
either dispose of the claims of non-parties or substantially impair their interests), (2) an action
seeking final injunctive or declaratory relief, or (3) a case in which the common questions

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predominate and class treatment is superior.” Spano v. Boeing Co., 633 F.3d 574, 583 (7th Cir.
2011).
I.

Definitions of Class and Subclass

Beaton first proposes as the Class:
All individuals living in the United States who downloaded a free trial of
SpeedyPC Pro and thereafter purchased the full version between October 28, 2011
and November 21, 2014.
On behalf of the Class, Beaton seeks to litigate contractual warranty claims for breaches of the
implied warranties of fitness for a particular purpose and merchantability. These claims arise
under British Columbia law.
Beaton also proposes as the Subclass:
All Class members who reside in Illinois, California, Colorado, Florida, New
York, Oregon, Alabama, Tennessee, New Jersey, North Carolina, New
Hampshire, Hawaii, Vermont, Massachusetts, Michigan, and Washington, D.C.
On behalf of the Subclass, Beaton seeks to litigate claims for fraudulent misrepresentation under
the consumer-protections laws of each of the respective jurisdictions. The Court observes that,
apart from identifying the Illinois Consumer Fraud and Deceptive Business Practices Act
(“ICFA”), 815 ILCS 505/1, et seq., Beaton has not identified the laws of any of the other
jurisdictions under which he seeks to assert the Subclass’s claim. Beaton apparently has in mind
the similar consumer-protection laws of these jurisdictions, but the Court is unable to divine
what statutes Beaton has in mind. This is problematic because the applicable statutes may have
different elements, different statutes of limitation, and different damages that are available.
Beaton, as Plaintiff, bears the burden of proving that class certification is appropriate, Retired
Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993), and without
identifying the statutes underlying the Subclass claims Beaton has not satisfied this burden.

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Thus, for purposes of this motion the Court will deny the motion to certify this Subclass and
instead restrict the Subclass to the Revised Subclass consisting of “all Class members who reside
in Illinois.”
For both the Class’s and Revised Subclass’s claims, Beaton’s basic theory is that the free
version of SpeedyPC’s software “blindly report[s]” that the customer’s computer has low
performance, thereby inducing the customer to purchase the premium version of SpeedyPC’s
software that ultimately confers no benefit on the customer. Consequently, Beaton moves to
certify both the Class and Revised Subclass under Rule 23(b).
II.

Analysis under Rule 23(a)

A.

Preliminary Considerations on Class Propriety

SpeedyPC raises two preliminary concerns for why class certification should be denied.
First, SpeedyPC claims that Beaton’s proposed Class is improper as the definition in his motion
for class certification differs from the definition in his Complaint. But nothing prevents this
Court from considering a revised definition or, indeed, sua sponte revising the definition of a
proposed class. Green v. Serv. Master on Location Servs. Corp., No. 07-cv-4705, 2009 WL
1810769, at *3–4 (N.D. Ill. June 22, 2009) (revising class definition sua sponte); Kress v. CCA of
Tenn., LLC, 272 F.R.D. 222, 232 (S.D. Ind. 2010) (“[T]he Court has broad discretion to modify
the class definition if necessary.” (citing Harden v. Raffensperger, Hughes & Co., Inc., 933 F.
Supp. 763, 769 n.5 (S.D. Ind. 1996) (modifying class definition sua sponte ))). Here, there is no
prejudice to SpeedyPC in this Court’s consideration of Beaton’s revised class definition and
doing so is in the interests of judicial economy.
Second, SpeedyPC argues that Beaton’s Class definition is vague. In particular,
SpeedyPC states that the phrase “living in the United States” does not specify a time period. As

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such, it is not clear whether “an individual living in Ireland [who] purchased the software in
2013 and since that time has moved to Wisconsin” is in Beaton’s proposed Class. (Def.’s Resp.
to Pl.’s Mot. for Class Cert. at 8, Dkt. No. 135.) In his response, Beaton clarifies that this phrase
means “the class individuals [of] who purchased the product while living the United States.”2
(Pl.’s Reply at 4 n.1, Dkt. No. 151.) With this revision, the Court concludes that any potential
vagueness has been cured.3
B.

Numerosity

SpeedyPC’s records reflect that over 574,000 individuals downloaded the free trial of
SpeedyPC’s software before purchasing the full version of SpeedyPC’s software. (Ex. 14 to
Memo. to Pl.’s Mot. to Certify Class at 1, Dkt. No. 125-14.) The Revised Subclass has over
19,000 individuals. (Ex. 5 to Pl.’s Mot. to Supp. Mot. for Class Cert. at 1, Dkt. No. 171-5.) These
numbers are sufficiently large to make joinder impracticable with respect to both the Class and
Revised Subclass. See, e.g., Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir.
2017) (“While there is no magic number that applies to every case, a forty-member class is often
regarded as sufficient to meet the numerosity requirement.”). Thus, both the Class and Revised
Subclass are sufficiently numerous under Rule 23.
C.

Commonality

“For class certification, only one question of law or fact common to the class is required.
However, some factual variations among class members’ experiences will not defeat class

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SpeedyPC does not raise the vagueness concern with respect to the proposed Subclass, but the Court
will assume that the phrase in the Revised Subclass “who reside in Illinois” similarly refers to Class
members who purchased the software when they lived in Illinois.

3

SpeedyPC also complains that it is unsure whether the Class includes “[a]ll individuals and entities”—as
stated in Beaton’s Complaint—or just “[a]ll individuals”—as stated in Beaton’s motion for class
certification. Beaton does not respond to this point in its reply brief. As such, the Court will use Beaton’s
revised definition, which simply says “[a]ll individuals.”

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certification when the legal issues are the same for all. The central issue is the same for all when
defendants have engaged in standardized conduct toward members of the proposed class.
Accordingly, [c]lass actions . . . cannot be defeated on commonality grounds solely because there
are some factual variations among the claims of individual members.” Kazarov v. Achim, No. 02cv-5097, 2003 WL 22956006, at *5 (N.D. Ill. Dec. 12, 2003) (internal citations omitted and
alterations in original); Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992) (“The fact that
there is some factual variation among the class grievances will not defeat a class action.”).
Here there are undoubtedly questions of law and fact that are common to the Class and
Revised Subclass. The Class’s contractual warranty claims raise legal questions about whether
customers can avail themselves of these warranties or whether they have been disclaimed by the
End User License Agreement accompanying SpeedyPC’s software. These claims will also
include factual questions about what function SpeedyPC’s software was marketed as performing,
whether the software did in fact perform that function, whether customers expressly or impliedly
made known that they were purchasing the software for that purpose, and whether customers
were harmed. See, e.g., British Columbia Sale of Goods Act, RSBC 1996, Ch. 410, §18(a) (“[I]f
the buyer or lessee, expressly or by implication, makes known to the seller or lessor the
particular purpose for which the goods are required, so as to show that the buyer or lessee relies
on the seller’s or lessor’s skill or judgment, and the goods are of a description that it is in the
course of the seller’s or lessor’s business to supply, whether the seller or lessor is the
manufacturer or not, there is an implied condition that the goods are reasonably fit for that
purpose.”). And these factual questions also arise with respect to the Revised Subclass’s ICFA
claims. See Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill. 1996) (“The elements of a
claim under the Illinois Consumer Fraud Act (815 ILCS 505/2 (West 1994)) are: (1) a deceptive

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act or practice by defendant; (2) defendant’s intent that plaintiff rely on the deception; and (3)
that the deception occurred in the course of conduct involving trade and commerce.”).
D.

Typicality

Beaton’s claims appear to be entirely typical of the other Class and Revised Subclass
members’ claims. In interacting with SpeedyPC’s free software, Beaton appears to have seen the
same representations as the other users of SpeedyPC’s free software, and the software appears to
operate in the same way on each computer. (Ex. 6 to Pl.’s Mot. to Certify Class at 4–5, Dkt. Nos.
125-6 & 127-3.) SpeedyPC does not point to any counterexamples in which different customers
saw different representations or the software functioned differently on one type of computer than
another. Rather SpeedyPC contends that, in Beaton’s deposition, he conceded that his experience
with SpeedyPC’s software was different than that of other customers. To this end, SpeedyPC
cites Beaton’s deposition testimony where SpeedyPC’s counsel showed Beaton an anonymous
positive internet review of SpeedyPC’s software and he responded, “I’m just going on my own
experience. My own experience does not coincide with this individual’s response or his
computer.” (Def.’s Resp. to Pl.’s Mot. for Class Cert. at 10, Dkt. No. 135 (citing Ex. D to Def.’s
Resp. to Pl.’s Mot. for Class Cert. at 116, Dkt. No. 137).) This does not constitute a concession
by Beaton that his experience with SpeedyPC’s software was different from others. Beaton’s
response implied that he had no knowledge of the posting individual’s experience. As such, he
was simply saying that because he had a negative experience with SpeedyPC’s software, he
differed in opinion from the anonymous positive internet review he was shown. Nowhere did he
concede that SpeedyPC’s software functioned differently for other people or computers. Thus,
SpeedyPC has provided no reason to think that Beaton’s claims are atypical.

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E.

Adequacy of Representative and Counsel

“To determine whether the class representatives will adequately represent the class as a
whole, courts examine whether: (1) the representatives have antagonistic or conflicting claims
with the other class members; and (2) the counsel for named plaintiffs can sufficiently represent
the class.” Birnberg v. Milk St. Residential Assocs. Ltd. P’ship, No. 02 V 0978, 2003 WL
21995177, at *2 (N.D. Ill. Aug. 20, 2003) (citing Retired Chicago Police Assoc. v. City of
Chicago, 7 F.3d 584, 598 (7th Cir. 1993)). SpeedyPC takes a scattershot approach to arguing that
Beaton and his counsel, Edelson, P.C., are inadequate, arguing: (1) Beaton was convicted of
felony manslaughter; (2) Beaton is not credible; (3) Beaton did not purchase the software, but
rather his business purchased the software; (4) Beaton does not represent Class members who
were satisfied with the software; (5) Beaton committed spoliation of evidence; and (6) opposing
counsel in other cases have accused Edelson of sanctionable conduct and incompetence.4 The
Court considers each of these arguments in turn.
First, the Court rejects SpeedyPC’s argument that Beaton’s felony conviction and
allegedly false deposition testimony renders him inadequate as a class representative. Beaton’s
felony manslaughter conviction stems from conduct occurring over 30 years ago, and in any
event does not bear any relation to this case. There is no bar on felons being class
representatives. Streeter v. Sheriff of Cook Cty., 256 F.R.D. 609, 613 (N.D. Ill. 2009). Moreover,
SpeedyPC has not explained how Beaton’s conviction differentiates him from other class
members or makes his interests different from or antagonistic to the other class members. And

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SpeedyPC also argues that Beaton cannot represent members of his proposed Subclass who reside
outside of Illinois. Because the Court has revised the definition of Beaton’s Subclass to include members
of the Class who reside in Illinois, this argument is moot.

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Beaton’s purportedly “false” deposition testimony in connection with this lawsuit is not nearly as
clear or provocative as SpeedyPC suggests.
Second, the Court finds unpersuasive SpeedyPC’s recitation of purported lies that Beaton
told. For example, SpeedyPC points to Beaton’s assertion in his declaration that he used his
laptop “primarily for personal use” as contradicting his deposition testimony that it was used for
both business and personal use. (Def.’s Resp. to Pl.’s Mot. for Class Cert. at 20, Dkt. No. 135
(citing Ex. 15 to Pl.’s Memo. in Supp. of Class Cert. ¶ 3, Dkt. No. 125-15 (January 27, 2017
declaration); Ex. D to Def.’s Resp. to Pl.’s Mot. for Class Cert. at 51, Dkt. No. 137 (July 28,
2016 deposition testimony)).) But these statements are not contradictory at all—it is possible to
use a laptop for both business and personal use, but still use it primarily for personal use.
Another example SpeedyPC highlights is that Beaton alleged in his Complaint and sworn
interrogatory responses that he paid $39.94 for SpeedyPC’s premium software; but documents
Beaton produced showed that he paid $9.97 for the software. (Id. at 20 (citing Compl. ¶ 38, Dkt.
No. 1; Ex. E to Def.’s Resp. to Pl.’s Mot. for Class Cert. at 4 of 9, Dkt. No. 138 (produced
document)).) But that appears to have simply been a mistaken assertion in his Complaint, which
was corrected by Beaton’s production of documents. Finally, SpeedyPC claims that Beaton
originally testified at his deposition that no one performed any maintenance on his laptop, but
later in his response to SpeedyPC’s motion for sanctions Beaton explained in a declaration that
he had his laptop reformatted by an IT expert. (Id. at 20–21 (citing Ex. D to Def.’s Resp. to Pl.’s
Mot. for Class Cert. at 59, Dkt. No. 137 (July 28, 2016 deposition testimony); Decl. to Pl.’s
Memo. in Opp. to Mot. for Sanctions ¶ 3, Dkt. No. 133-2).) This apparent contradiction again
appears to be the product of an uncharitable reading of Beaton’s deposition testimony.
SpeedyPC’s counsel asked Beaton about his normal use of his laptop. (Ex. D to Def.’s Resp. to

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Pl.’s Mot. for Class Cert. at 59, Dkt. No. 137.) In the course of this questioning, Beaton
responded that he performed maintenance on the laptop himself and he did not take the laptop to
anybody else to have maintenance done. (Id.) Beaton did take the laptop to an IT professional,
but only after he stopped using this laptop and instead was using his other computers. (Mem. in
Supp. of Def.’s Mot. for Sanctions at 2–3, Dkt. No. 114.) Thus, when Beaton was answering
SpeedyPC’s counsel’s queries about his maintenance of the laptop, it is plausible that he was
referring to his routine conduct, and not whether he had ever taken it to service. All in all,
SpeedyPC has not provided any persuasive reason to think that Beaton is not credible or that any
issues with his credibility require his removal as class representative. See, e.g., CE Design Ltd. v.
King Architectural Metals, Inc., 637 F.3d 721, 728 (7th Cir. 2011) (“[F]ew plaintiffs come to
court with halos above their heads; fewer still escape with those halos untarnished. For an assault
on the class representative’s credibility to succeed, the party mounting the assault must
demonstrate that there exists admissible evidence so severely undermining plaintiff’s credibility
that a fact finder might reasonably focus on plaintiff’s credibility, to the detriment of the absent
class members’ claims.” (internal quotations omitted)).
SpeedyPC’s third argument is similarly unpersuasive. SpeedyPC argues that Beaton’s
business, the Chlorine Free Products Association (“CFPA”), actually bought the software, not
Beaton. As such, SpeedyPC’s argument is that Beaton does not possess any claims against
SpeedyPC; those would belong to CFPA. And because CFPA is not an individual, it would not
fit in the definition of the Class or Revised Subclass. In support of this argument, SpeedyPC
points out that Beaton used his business’s credit card to purchase the software from Speedy,
therefore the business was the actual purchaser of the software. But Beaton owns that business,
Beaton purchased the software under his own name, and Beaton indicated that the software was

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used for his personal purposes. (Ex. D to Def.’s Resp. to Pl.’s Mot. for Class Cert. at 116, Dkt.
No. 137 (Beaton stating that he started his own company CFPA); Ex. 10 to Memo. to Pl.’s Mot.
to Certify Class at 1, Dkt. No. 125-10 (indicating that Beaton was the customer of the SpeedyPC
premium software purchase); Ex. 15 to Memo. to Pl.’s Mot. to Certify Class at 1, Dkt. No. 12515 (Beaton declaring he used the software primarily for personal purposes).) Under these
circumstances the Court declines to find that Beaton did not purchase the software himself.
SpeedyPC’s argument that Beaton does not seek to represent people who were satisfied
with SpeedyPC’s software is simply mistaken. SpeedyPC mischaracterizes Beaton’s testimony:
Beaton never says that he does not wish to represent people satisfied with SpeedyPC’s software;
in fact, Beaton expressly states that he wishes to represent them. (Ex. D to Def.’s Resp. to Pl.’s
Mot. for Class Cert. at 107, Dkt. No. 137 (“If the individuals have had the same program that I
bought[,] . . . I would like to represent them. . . . Regardless [of whether they are satisfied,] I
would only assume that they had suffered the same way I have.”).) Importantly, even if
customers were satisfied with SpeedyPC’s software, they might still have a claim against
SpeedyPC. Dissatisfaction with the software does not appear to be an element of the contractual
warranty claims or the ICFA. Insofar as people satisfied with SpeedyPC’s software have claims,
Beaton is clearly willing to represent them.
Regarding SpeedyPC fifth argument, SpeedyPC simply states that it brought a motion for
sanctions for spoliation of evidence and that his alleged spoliation renders Beaton inadequate as
a class representative. The Court has rejected SpeedyPC’s motion for sanctions for spoliation of
evidence. (Order at 4–5, Dkt. No. 184.) These allegations relate to Beaton engaging the help of
an IT professional to fix his computer, which resulted in the reformatting of the hard drive of the
laptop on which SpeedyPC’s software was downloaded. (Id. at 4.) The Court determined that

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SpeedyPC had not shown that Beaton reformatted his hard drive to destroy evidence. (Id. at 5.)
Speedy PC offers no other reason why Beaton’s conduct in reformatting his laptop’s hard drive
renders him inadequate as a class representative. Thus, given the Court’s ruling denying the
motion for sanctions, the Court also rejects SpeedyPC’s argument that Beaton is inadequate as a
class representative on the basis of the purported spoliation of evidence.
Finally, the fact that opposing counsel in other cases have accused Edelson of
sanctionable conduct and incompetence does not disqualify them as class counsel. SpeedyPC
only trudges up adversarial claims against Edelson—SpeedyPC has not pointed to any judicial
rulings on those adversarial claims. The most SpeedyPC does is point out that in another class
action case against Speedy, Bastion v. SpeedyPC Software, Case No. 3:12-cv-04739 (N.D. Cal.),
Edelson had to change the named plaintiff and then subsequently voluntarily dismissed its
complaint. (Def.’s Resp. to Pl.’s Mot. for Class Cert. at 22, Dkt. No. 135.) In essence, SpeedyPC
asks this Court to disqualify Edelson from class-action litigation for once voluntarily dismissing
a case. That is not enough and thus the Court rejects the request. Based on a review of the
dockets of the cited Edelson matters and Edelson’s conduct in this matter, the Court has not
seen anything indicating Edison lacks the competence to adequately litigate this case. Thus, the
Court finds that Beaton and his counsel Edelson are adequate representatives of the Class and
Revised Subclass.
Consequently, the Court finds that Beaton’s proposed Class and Revised Subclass meet
the requirements of Rule 23(a).
III.

Analysis under Rule 23(b)

Based on Beaton’s motion, it appears that Beaton seeks to litigate this class action under
Rule 23(b)(3), which states:

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A class action may be maintained if Rule 23(a) is satisfied and if . . . the court
finds that the questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). Thus, the Court considers whether questions of law or fact common to
the Class and Revised Subclass claims predominate and whether a class action is superior to
other available methods for fairly and efficiently adjudicating the Class and Revised Subclass
claims.
A.

Predominance of Common Questions

“Generally, predominance is satisfied when common questions represent a significant
aspect of [a] case and . . . can be resolved for all members of [a] class in a single adjudication. In
other words, common questions can predominate if a common nucleus of operative facts and
issues underlies the claims brought by the proposed class. The presence of some individual
questions is not fatal, but individual questions cannot predominate over the common ones.”
Kleen Prod. LLC v. Int’l Paper, 306 F.R.D. 585, 593 (N.D. Ill. 2015) (internal quotations and
citation omitted and alteration in original). As discussed, there are common questions of law and
fact to the Class and Revised Subclass. SpeedyPC does not address these common questions, but
rather poses ten material questions that it claims require individual attention such that they would
predominate over the common questions relating to the Class and Revised Subclass:
(1)
(2)
(3)

Who did the class member purchase the software from?
Was the software purchased primarily for business or personal use?
Did the software work?
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(4)
(5)
(6)
(7)
(8)
(9)
(10)

Was the class member deceived into purchasing the software?
What was the value of the software as promised to the class member?
What was the value of the software as delivered to the class member?
Did the class member provide notice of its claim to Speedy?
Is the class member’s claim time barred?
Did the class member request a refund?
Was a refund issued to the class member?

The Court disagrees and does not find that these questions predominate over the common
questions that relate to the Class and Revised Subclass.
Question (1) is best addressed through a common proceeding because the evidence shows
that the class members purchased the premium version of SpeedyPC’s software through the free
version’s portal and were directed to one of two payment processors. (Ex. 9 to Memo. to Pl.’s
Mot. to Certify Class at 24, 39, Dkt. No. 125-9.) Thus, if SpeedyPC intends to argue that this
does not result in the requisite privity to ground the class’s contractual warranty claims, that
argument can be resolved for the entire class through one proceeding.
Similarly, questions (3), (4), (5), and (6) too can be addressed through a common
proceeding, because each of these questions is intricately related to SpeedyPC’s representations
about the software and the function of the software. Beaton alleges that SpeedyPC’s software did
not properly diagnose problems with computers and therefore did not confer any benefit on
customers of SpeedyPC’s premium software product. This claim can be resolved in a common
proceeding, because, as discussed, the Class members received the same software product, the
software appears to operate in the same way on each computer, and all of the Class members
were exposed to the same representations in SpeedyPC’s free software. Moreover, even if there
are differing individual damages based on the impact of SpeedyPC’s software on each Class and
Revised Subclass member’s computer, such damages issues do not predominate over the
common issues concerning the representations and operation of SpeedyPC’s software. Mullins v.

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Direct Digital, LLC, 795 F.3d 654, 671 (7th Cir. 2015) (“It has long been recognized that the
need for individual damages determinations at [a] later stage of the litigation does not itself
justify the denial of certification.”); see also Kalow & Springut, LLP v. Commence Corp., 272
F.R.D. 397, 407 (D.N.J. 2011) (granting certification in computer software class action case and
ruling that the presence of differing individual damages did not bar certification because class
issues still predominated).
Questions (2), (7), (8), (9), and (10) are questions that may require individual responses
and evidence, but they do not predominate over the common questions relevant to the Class and
Revised Subclass. Each of these questions is, as a general matter, sufficiently simple that there
are streamlined mechanisms available to determine which of the Class members has a viable
claim. For example, as all of these questions have straightforward binary answers, the parties
could utilize a form affidavit, with accompanying audit procedures, to address these questions.
B.

Superiority of Class Action

In light of all this, the Court determines that the class action is a superior way of
proceeding. Chiefly, as discussed, there are common questions of law and fact relating to the
Class and Revised Subclass that predominate over any individual questions. Moreover, the
claims of the Class and Revised Subclass are manageable. The Class’s claim is under the law of
British Columbia, Canada and the Revised Subclass’s claim is under the ICFA. And as
discussed, the relevant individual questions can be addressed through a streamlined process, with
appropriate auditing procedures. Finally, because SpeedyPC sold its software for between $9.95
and $39.97, each Class and Revised Subclass member stands to recover an amount too small to
make individual litigation economically feasible. Carnegie v. Household Int’l, Inc., 376 F.3d
656, 661 (7th Cir. 2004) (“The realistic alternative to a class action is not 17 million individual

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suits, but zero individual suits, as only a lunatic or a fanatic sues for $30. But a class action has
to be unwieldy indeed before it can be pronounced an inferior alternative—no matter how
massive the fraud or other wrongdoing that will go unpunished if class treatment is denied—to
no litigation at all.”). Indeed, if SpeedyPC did engage in misconduct, allowing a class action to
proceed will not only compensate the Class members, but it will also ensure that there is
appropriate deterrence. Murray v. New Cingular Wireless Servs., Inc., 232 F.R.D. 295, 305 (N.D.
Ill. 2005) (allowing a class action of over 700,000 class members and stating that “[c]lass actions
were designed ‘not only to compensate victimized members of groups who are similarly
situated . . . but also to deter violations of the law, especially when small individual claims are
involved” (internal quotations omitted)).
CONCLUSION
For the foregoing reasons, the Court grants Beaton’s motion to certify the class to bring
contractual warranty claims for breaches of the implied warranties of fitness for a particular
purpose and merchantability. The Court grants in part Beaton’s motion to certify the subclass.
Specifically, the Court revises the subclass definition to include “all Class members who reside
in Illinois” in order to bring claims for fraudulent misrepresentation under the ICFA.

ENTERED:

Dated: October 19, 2017

__________________________
Andrea R. Wood
United States District Judge

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