Find Legal Information

APPELLATE COURT OF ILLINOIS

I. INTRODUCTION

Plaintiff, P.J.'s Concrete Pumping Service, Inc., filed a class action alleging that, by collecting, on behalf of municipalities, taxes from customers located in unincorporated areas, defendant, NextelWest Corporation, violated the Consumer Fraud and Deceptive Business Practices Act (ConsumerFraud Act) (815 ILCS 505/1 et seq. (West 2000)) and was guilty of common-law fraud. The trialcourt certified a class of defendant's customers residing in Illinois and 16 other states. The trial courtdenied defendant's motion for reconsideration but certified the following question for review pursuantto Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)): "Did the Illinois Supreme Court decision inOliveira v. Amoco Oil Co., [201 Ill. 2d 134 (2002)], change the pleading requirements formisrepresentation claims in a class action suit under the Illinois Consumer Fraud Act to require anallegation of actual deception by each individual class member?" We affirm the order certifying theclass, answer the certified question in the negative, and remand the cause.

II. BACKGROUND

Plaintiff's complaint alleges the following relevant facts. Defendant provides cellulartelephone service, and plaintiff was defendant's customer. Plaintiff's place of business was locatedin unincorporated Lake County, just outside the Barrington village limits. Defendant was authorizedto collect taxes on behalf of the municipalities that imposed them. The taxes were based on therevenues defendant generated from the cellular service it provided to customers residing within themunicipalities that imposed them. If the zip code the customer provided when signing up for servicewith defendant placed the customer within a zip code area including a municipality authorizing taxes,then defendant would assess such taxes against the customer. Plaintiff's monthly bills includedassessments for "City-Utility Tax" and "City-Gross Receipts Tax."

Plaintiff's complaint defined the class as "[a]ll persons who paid Defendant local, municipal,gross receipts or substantially similar taxes and do not live or have a place of business within amunicipality that authorizes defendant to assess the taxes." Plaintiff alleged that defendant engagedin deceptive acts and practices by collecting these taxes even though it knew at the time that thecustomers may not live in municipalities that authorized defendant to assess the taxes. Defendanteven continued to collect the taxes from those customers who informed defendant that they lived in unincorporated areas or in municipalities that did not authorize such taxes. Defendant intended thatplaintiff and the other class members rely on its representations that the taxes were owed and thatdefendant was authorized to collect them. Defendant's representations and omissions injured plaintiffand the other class members by causing them to pay defendant money they otherwise would not havepaid.

The complaint alleged that defendant violated the Consumer Fraud Act and similar acts of theother states in which defendant did business. Also, the complaint sought recovery for common-lawfraud and a declaration that defendant cannot assess local taxes against its customers who do not livein municipalities that authorize defendant to collect the taxes.

Defendant moved to dismiss the complaint pursuant to section 2--615 of the Code of CivilProcedure (Code) (735 ILCS 5/2--615 (West 2000)). Defendant argued that the Village ofBarrington was the proper defendant and that the voluntary payment doctrine barred plaintiff's claims. The trial court denied the motion. Defendant raised four affirmative defenses: (1) the voluntarypayment doctrine barred plaintiff's claims; (2) it was not the proper defendant; (3) it could not beliable because it merely relied on the Barrington address plaintiff provided; and (4) plaintiff failed tocomply with the subscriber agreement, which provided that, if a customer disputed a charge, thecustomer must provide a written explanation within 45 days of the disputed invoice.

Discovery revealed that plaintiff became defendant's customer in February 1997. In 1999,plaintiff moved to the location that is the subject of this suit. Plaintiff knew that its property did notlie within any municipality. The address plaintiff provided to defendant stated that the property wasin Barrington. Shortly after plaintiff purchased the property, it sent a letter to the Village of LakeBarrington asking that municipality to annex plaintiff's property. The Village of Lake Barringtonreplied that it was not interested in annexing the property.

In January 2000, defendant began collecting Barrington taxes from plaintiff. Plaintiff paid itsmonthly bills, including the tax assessments, without protest. Around January 2001, Mary Lareau,one of plaintiff's employees and the wife of plaintiff's president, first noticed the municipal taxassessments and believed that defendant had made a mistake. Ms. Lareau called defendant, and acustomer service representative informed her that defendant collected municipal taxes based on zipcodes and that plaintiff had to pay the tax. After speaking to the customer service representative, Ms.Lareau believed that the assessments were proper.

Arguing against class certification, defendant raised several contentions. According todefendant, several individual factual issues predominated over the common issues. The issues thatwould have to be addressed for each class member were reliance and proximate cause, the voluntarypayment doctrine, and where each customer received its bills in relation to a municipal boundary. Also, defendant argued that, because the class action implicated the tax ordinances of over 1,000local governments and the laws of 17 states, the individual legal issues predominated. Moreover,according to defendant, plaintiff was an inadequate class representative because it was subject tounique defenses about whether its own misstatements induced defendant to include line items forBarrington taxes on plaintiff's bills. Finally, defendant asserted that class certification wasinappropriate because it would preclude defendant from filing third-party claims against the out-of-state municipalities that ultimately received the taxes defendant collected from customers.

On May 18, 2002, the trial court certified the class as defined in the complaint. On September21, 2002, defendant asked the court to reconsider the certification order or alternatively to certify questions for an interlocutory appeal pursuant to Rule 308(a). Defendant argued that Oliveira,decided on June 20, 2002, impliedly overruled several of the cases upon which plaintiff, andpresumably the trial court, relied to certify the class. Oliveira held that a plaintiff alleging a violationof the Consumer Fraud Act must prove that he or she was actually deceived by the defendant'sconduct. Oliveira, 201 Ill. 2d at 155. Defendant argued that, because plaintiff was sophisticatedenough to discover that the tax assessments were incorrect but not zealous enough to refuse to paythem, it could not prove that defendant's conduct deceived it. Defendant asserted further that theclass members likely had different levels of knowledge about the correctness of the assessments andtherefore that class certification was inappropriate.

Defendant asked the trial court to certify the following questions in the event the court deniedthe motion to reconsider:

"(a) Whether Oliveira allows a [C]onsumer [F]raud [A]ct class action to proceed here,given the fact that the named plaintiff's testimony clearly demonstrates that the question of'actual deception' will require a different analysis for each class member; and

(b) Whether a nation-wide class action (as opposed to an action limited to Illinoiscustomers) is proper given the standards articulated in Oliveira."

The trial court found that there was substantial ground for difference of opinion about (1)"whether the Class should be certified, in light of Oliveira and its actual deception standard forproximate causation"; (2) "how Oliveira affects class certification generally and pleading requirementsspecifically"; and (3) "whether a nationwide consumer fraud class action may proceed here givenOliveira." Accordingly, the court certified the following question: "Did [Oliveira] change the pleadingrequirements for misrepresentation claims in a class action suit under the Illinois Consumer Fraud Actto require an allegation of actual deception by each individual class member?"

This court denied defendant's application for leave to appeal. Defendant petitioned for leaveto appeal to the supreme court. The supreme court entered a supervisory order vacating this court'sdenial of leave to appeal and directing us to consider the certified question. Pursuant to thesupervisory order, this court recalled its mandate and reinstated defendant's appeal.

III. DISCUSSION

Initially, we note that plaintiff complains that defendant's brief is deficient in several respects. After reviewing defendant's brief, we conclude that only two issues warrant comment. First, defendant's statement of facts does contain some statements bordering on legal argument. SeeOfficial Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(6), eff. October 1, 2001 (theappellant's brief shall contain a statement of "the facts necessary to an understanding of the case,stated accurately and fairly without argument or comment"). For example, on page nine of its brief,defendant states that "[t]he invoice did not deceive [plaintiff] into believing that it was liable for a citytax." We have reviewed the record and will disregard any parts of defendant's statement of facts thatare unsupported by the record. Second, we agree with plaintiff that defendant improperly relies onAbad v. The Reader's Digest Ass'n, Inc., No. 1--01--2010 (2003) (unpublished order under SupremeCourt Rule 23), filed on May 9, 2003. Although a motion to publish in Abad was pending whendefendant filed its brief, the court has since denied that motion. We note that, in September 2003,the Abad court withdrew the Rule 23 order and filed a modified Rule 23 order. Therefore, thedecision in Abad remains unpublished and has no precedential value. 166 Ill. 2d R. 23(e). Accordingly, we will not consider it.

A. Scope of Rule 308 Interlocutory Appeal

On appeal, defendant asks that we answer the certified question in the affirmative anddecertify the class. We note that our supreme court recently amended Supreme Court Rule 306(a)to provide for permissive interlocutory appeals from orders granting or denying certification of a classaction. Official Reports Advance Sheet No. 5 (March 5, 2003), R. 306(a)(8), eff. January 1, 2003. The amendment did not become effective, however, until after the proceedings giving rise to thisappeal.

This appeal is from a question certified pursuant to Rule 308(a). When a trial court entersan interlocutory order not otherwise appealable and finds that the order involves a question of lawabout which there is substantial ground for difference of opinion and that an immediate appeal fromthe order may materially advance the termination of the litigation, then the court shall so state inwriting and identify the question of law involved. 155 Ill. 2d R. 308(a). The parties dispute the scopeof this appeal. Defendant asserts that, to answer the certified question, we must address the proprietyof the order certifying the class. Plaintiff argues that we may answer only the question the trial courtcertified.

Generally, the scope of review in an interlocutory appeal brought under Rule 308 is strictlylimited to the certified question. Reich v. Gendreau, 308 Ill. App. 3d 825, 828 (1999). Thus, ourtask is to answer the certified question rather than to rule on the propriety of any underlying order. Danner v. Norfolk & Western Ry. Co., 271 Ill. App. 3d 598, 601 (1995). In the interests of judicialeconomy and reaching an equitable result, however, a reviewing court may go beyond the certifiedquestion and consider the appropriateness of the order giving rise to the appeal. Bright v. Dicke, 166Ill. 2d 204, 208 (1995); City of Waukegan v. Environmental Protection Agency, 339 Ill. App. 3d 963,972 (2003).

It is not uncommon for a reviewing court in class action to go beyond the certified questionand address the propriety of the decision to certify a class action. Arriola v. Time Insurance Co., 323Ill. App. 3d 138, 143 (2001); Gordon v. Boden, 224 Ill. App. 3d 195, 199 (1991). In Arriola andGordon, the reviewing courts addressed the propriety of the trial courts' class certification orders inaddition to the certified questions because the reviewing courts concluded that they could not " 'neatlycompartmentalize and independently resolve one issue and not the other.' " Arriola, 323 Ill. App. 3dat 143, quoting Gordon, 224 Ill. App. 3d at 199.

Similarly, the propriety of the class certification here is intertwined with the certified question. As the trial court found when it certified the question, there is substantial ground for difference ofopinion about whether a multi-state class action may proceed here in light of the "actual deception"requirement stated in Oliveira. Also, multi-state class actions place a tremendous burden on thestate's court system and taxpayers and have significant consequences for absent class members whowould be bound by an Illinois judgment. Arriola, 323 Ill. App. 3d at 143. Thus, our supreme courtrecognized long ago that Rule 308 is a means of reviewing an order granting class certification at anearly stage of the litigation. Frank v. Teachers Insurance & Annuity Ass'n of America, 71 Ill. 2d 583,590-91 (1978); see also Gordon, 224 Ill. App. 3d at 198.

For these reasons, in addition to answering the certified question, we will address whether thetrial court properly certified the class action. We note that, although the certified question refers topleading requirements, we do not believe that it is appropriate to review the trial court's order denyingthe motion to dismiss the complaint. It was the order certifying the class action, not the denial of themotion to dismiss, that gave rise to this interlocutory appeal. Therefore, we express no opinion hereabout the substantive issues raised in the motion to dismiss or the affirmative defenses.

B. Certified Question--Consumer Fraud Act

The Consumer Fraud Act is a regulatory and remedial statute intended to protect consumers,borrowers, and business persons against fraud, unfair methods of competition, and other unfair anddeceptive business practices. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 416-17(2002). The Consumer Fraud Act describes unfair or deceptive practices as:

"including but not limited to the use or employment of any deception, fraud, falsepretense, false promise, misrepresentation or the concealment, suppression or omission of anymaterial fact, with intent that others rely upon the concealment, suppression or omission ofsuch material fact, or the use or employment of any practice described in Section 2 of the'Uniform Deceptive Trade Practices Act' [(815 ILCS 510/2 (West 2002))] *** in the conductof any trade or commerce." 815 ILCS 505/2 (West 2002).

Any person who suffers actual damage as a result of another person's violation of theConsumer Fraud Act may bring an action against the other person. 815 ILCS 505/10a(a) (West2002). The elements of a claim under the Consumer Fraud Act are (1) a deceptive act or practice bythe defendant; (2) the defendant's intent that the plaintiff rely on the deception; (3) the occurrence ofthe deception in a course of conduct involving trade or commerce; and (4) actual damage to theplaintiff (5) proximately caused by the deception. Zekman v. Direct American Marketers, Inc., 182Ill. 2d 359, 373 (1998).

In Oliveira, the plaintiff filed a class action alleging that the defendant violated the ConsumerFraud Act by falsely representing in a series of advertisements that the use of its premium gasolineswould improve engine performance and benefit the environment. The plaintiff alleged that hepurchased the defendant's premium gasoline and suffered actual damage as a result of the allegedlydeceptive advertisements. The plaintiff did not allege, however, that he saw, heard, or read any ofthe advertisements or that the advertisements deceived him or induced him to buy the gasoline. Instead, the plaintiff advanced a "market theory" of causation and alleged that the advertisementscreated an artificially inflated demand and price for the gasoline. The trial court found that the"market theory" was not sufficient to allege causation under the Consumer Fraud Act and accordinglydismissed the complaint.

The supreme court in Oliveira concluded that Zekman controlled. In Zekman, the plaintiffreceived from a direct mail marketer a series of allegedly deceptive mailings stating that the plaintiffhad won a prize. The mailings listed as prizes large cash awards as well as discount coupons forvarious products or services. The mailings stated that the recipient could respond by mail or bycalling a "900" number and listed the odds of winning the prizes. They urged recipients to call the"900" number in order to claim their prizes immediately. By calling, the recipients incurred telephone charges between $8 and $10. The plaintiff called the "900" number several times and each time wononly discount coupons. During his deposition, the plaintiff acknowledged that he understood that hecould respond by mail and that he would incur charges by calling the "900" number.

The Zekman court held that a summary judgment for the defendants was proper because theplaintiff understood the requirements and costs of the direct marketer's program. Zekman, 182 Ill.2d at 375. According to the court, "we do not believe that there remains a genuine issue of materialfact whether the alleged violations of the [Consumer Fraud] Act by [the defendants] proximatelycaused [the plaintiff's] damage, for plaintiff's testimony demonstrates that he was not deceived by [thedefendants'] actions." Zekman, 182 Ill. 2d at 376.

The Oliveira court stated that "Zekman makes clear that, to properly plead the element ofproximate causation in a private cause of action for deceptive advertising brought under the[Consumer Fraud] Act, a plaintiff must allege that he was, in some manner, deceived." Oliveira, 201Ill. 2d at 155. The court concluded that the complaint before it was deficient in the same manner asthe complaint in Zekman. Oliveira, 201 Ill. 2d at 154. Because the plaintiff did not allege that hesaw, heard, or read any of the defendant's advertisements, he could not allege that he believed thathe was buying gasoline that benefitted the environment or improved engine performance. Oliveira,201 Ill. 2d at 155.

The court observed that, under the plaintiff's "market theory" of causation, purchasers of thedefendant's premium gasoline who saw the defendant's advertisements but never believed them wouldhave valid claims under the Consumer Fraud Act. Likewise, purchasers who never saw theadvertisements and thus were not deceived also would have valid claims. Such results plainly wouldhave been at odds with Zekman. Oliveira, 201 Ill. 2d at 155.

It has been recognized that a plaintiff bringing a class action suit need only allege a viableindividual cause of action, indicate that the claim is being brought as a class action, and include factualallegations broad enough to establish the possible existence of a class action. Weiss v. WaterhouseSecurities, Inc., 335 Ill. App. 3d 875, 883 (2002), appeal allowed, 203 Ill. 2d 571 (2003); see alsoHayna v. Arby's, Inc., 99 Ill. App. 3d 700, 711 (1981). We agree with this statement. Weiss reliedon Arriola v. Time Insurance Co., 296 Ill. App. 3d 303, 307 (1998), which stated that "[t]he classaction statute [(735 ILCS 5/2--801 (West 1994))] makes no reference to any requirement that thefacts establishing the class action prerequisites be pleaded." Class certification issues are typicallyfactual and should be decided with the benefit of discovery. Weiss, 335 Ill. App. 3d at 884.

After reviewing Oliveira, we do not believe that it changed the pleading requirements for classactions under the Consumer Fraud Act. Initially, we note that Oliveira did not address classcertification. Because the named plaintiff's complaint was dismissed, the class certification issue wasmoot. Oliveira, 201 Ill. 2d at 156-57. Thus, the decision did not expressly establish any requirementsgoverning class actions under the Consumer Fraud Act. Moreover, Oliveira did not announce anynew rule of law. It merely relied on Zekman, which in turn relied on established legal principles. SeeZekman, 182 Ill. 2d at 373. There is nothing in Oliveira that we read as imposing a pleadingrequirement that did not exist previously.

Because Oliveira did not purport to change the nature of Consumer Fraud Act claims, we donot believe that it did anything to affect the viability of class actions based on the Consumer FraudAct. Indeed, because Oliveira did not directly involve class action principles, it is difficult to say thatit imposed any requirement that would make it more difficult for a class action based on theConsumer Fraud Act to proceed. A multi-state class action based on the Consumer Fraud Act is nota novelty in Illinois. See Miner v. Gillette Co., 87 Ill. 2d 7 (1981); Gordon 224 Ill. App. 3d at 206. Oliveira merely held that the "market theory," which was premised on the assumption that neither theplaintiff nor anyone in the proposed class actually was deceived, could not establish the proximatecausation element of a claim under the Consumer Fraud Act. This cause is not based on such anassumption. Instead, it involves a uniform billing practice that, from what we can tell at this stageof the litigation, has at least the potential to deceive customers. Moreover, we believe that ourreasoning is consistent with the mandate that the Consumer Fraud Act be construed liberally toeffectuate its purpose. See Robinson, 201 Ill. 2d at 417. Therefore, our answer to the certifiedquestion is "no."

C. Class Certification

To certify a class action, the trial court must find that (1) the class is so numerous that joiningall members is impracticable; (2) there are questions of fact or law common to the class, and thecommon questions predominate over any questions affecting only individual members; (3) therepresentative parties will fairly and adequately protect the interests of the class; and (4) the classaction is an appropriate method for fairly and efficiently adjudicating the controversy. 735 ILCS 5/2--801 (West 2002). Whether to certify a class action is a matter within the sound discretion of the trialcourt, and we will reverse the trial court's decision only upon a showing that the court clearly abusedits discretion or applied impermissible legal criteria. Rubino v. Circuit City Stores, Inc., 324 Ill. App.3d 931, 942 (2001).

Defendant does not dispute that the class is so numerous that it would be impractical to joinall members. Defendant argues, however, that the class cannot be certified because individual issuesregarding actual deception predominate. We disagree. The trial court reasonably could have foundhere that there are common questions of law or fact that predominate over questions affecting onlyindividual members. It is proper to allow a class action where a defendant is alleged to have actedwrongfully in the same basic manner towards an entire class. Clark v. TAP Pharmaceutical Products,Inc., 343 Ill. App. 3d 538, 548 (2003). The purported class representative must establish that asuccessful adjudication of its individual claims will establish a right of recovery or resolve a centralissue on behalf of the class members. Avery v. State Farm Mutual Automobile Insurance Co., 321Ill. App. 3d 269, 280 (2001), appeal allowed, 201 Ill. 2d 560 (2002).

The primary factual issue in this case is a uniform billing practice that allegedly violated theConsumer Fraud Act in the same manner as to all class members. The propriety of such a uniformpractice is amenable to being resolved in a class action. Once the trial court finds that apredominating question of fact or law exists, the presence of individual questions does not necessarilydefeat class certification. Kennedy v. Commercial Carriers, Inc., 294 Ill. App. 3d 34, 39 (1997). Where it appears that the common issue is dominant and pervasive, something more than the assertionof minor hypothetical variations is required to prevent class certification. Miner, 87 Ill. 2d at19-20. Just as the class action in Miner was predicated on thousands of essentially identical transactionsfounded upon the language of the defendant's promotional offer (Miner, 87 Ill. 2d at 19), the actionhere is founded upon an essentially identical entry appearing on the class members' bills. The trialcourt reasonably could have found that individual class members' hypothetical reactions to thedisputed charges were not sufficient to prevent the class action from going forward.

Also, that some class members reside outside Illinois or that the laws of different states mayapply to the transactions at issue does not ordinarily prevent certification of the class. Avery, 321Ill. App. 3d at 281. Because 50-state class actions are not uncommon in Illinois (see, e.g., Clark, 343Ill. App. 3d at 547-48), that the laws of 17 states are potentially implicated here is not necessarilyproblematic. The trial court may simply divide the class into subclasses. Gordon, 224 Ill. App. 3dat 202. Defendant argues that the class action here would be unmanageable because it implicates thetax ordinances of over 1,000 local taxing bodies. The ordinances do not directly affect thesubstantive claims here, however. If the class members do not reside in municipalities authorizinga tax, then arguably no tax ordinance applies to them. It appears that the ordinances are relevantprimarily to identify the class members. In any event, this is a hypothetical problem and is not asufficient basis to deny certification of an otherwise proper class action. Gordon, 224 Ill. App. 3dat 202. If, during a later stage of the litigation, the subclassification becomes unmanageable, the trialcourt always has the option to set aside the class certification or a portion of it. Gordon, 224 Ill. App.3d at 202.

The purpose of the adequate representation requirement is to ensure that all class memberswill receive proper, efficient, and appropriate protection of their interests in the presentation of theclaim. Avery, 321 Ill. App. 3d at 285. The test to determine the adequacy of representation iswhether the interests of those who are parties are the same as those who are not joined. Miner, 87Ill. 2d at 14. Also, the named plaintiff's interest must not appear collusive. Steinberg v. ChicagoMedical School, 69 Ill. 2d 320, 338-39 (1977). Here, it is apparent that plaintiff's interests are alignedwith those of the class, and the record amply reveals plaintiff's desire to prosecute the claimvigorously on behalf of itself and the class members.

Defendant argues that plaintiff will be subject to unique defenses regarding proximate causethat impede its ability to represent the class. According to defendant, the deposition testimony revealsthat the cellular bills did not actually deceive plaintiff and that plaintiff provided inaccurateinformation about its location in an unincorporated area. The assertion of individual defenses doesnot necessarily defeat a plaintiff's ability to represent the class adequately, however. Purcell &Wardrope Chartered v. Hertz Corp., 175 Ill. App. 3d 1069, 1078 (1988). The trial court apparentlyfound that a question of fact existed on these issues. Plaintiff paid the bills for some time beforequestioning them. Even after questioning the bills, plaintiff continued to believe that it owed the tax. The proximate causation issues that defendant raises against plaintiff are really not materially differentfrom the issues affecting the entire class. Accordingly, it is not readily apparent that the presence ofthese potential defenses will interfere with plaintiff's ability to prosecute the claim on behalf of theclass.

In deciding whether a class action is an appropriate method to adjudicate the controversyfairly and efficiently, a court considers whether a class action can best secure economies of time,effort, and expense or accomplish the other ends of equity and justice that class actions seek toobtain. Clark, 343 Ill. App. 3d at 552. Our discussion about the first three elements of section 2--801 of the Code makes it evident that the trial court reasonably could have concluded that the fourthelement was fulfilled. Gordon, 224 Ill. App. 3d at 204. The consumer class action is an invitingprocedure to address alleged frauds that, like here, cause small damages to large groups. Gordon,224 Ill. App. 3d at 204.

Defendant argues that a class action is inappropriate here because the Illinois courts do nothave the power to regulate the tax collection procedures in jurisdictions outside Illinois. As we statedearlier, however, plaintiff's claim is not about the tax ordinances of the local governments on whosebehalf defendant collected the taxes. Instead, this claim is about defendant's billing practice of relyingonly on a customer's zip code to determine whether the customer owed a tax.

Finally, defendant contends that, because it will not be able to implead the out-of-statemunicipalities to which defendant remitted the taxes, the trial court should have at least limited theclass to Illinois residents. At this point, there is no indication of how many out-of-state municipalitiesmay have received tax revenue from nonresidents, as Barrington allegedly has. Moreover, defendantpresumably would be able to seek redress in the states in which the affected municipalities are located. Accordingly, we cannot say that the trial court was wrong to reject this concern as a basis for denyingclass certification at this stage of the litigation. After reviewing the elements of section 2--801 of theCode, we conclude that the trial court did not abuse its discretion in certifying the class action.

IV. CONCLUSION

We affirm the judgment of the circuit court of Lake County certifying the class action, answerthe certified question in the negative, and remand the cause.

Affirmed; certified question answered; cause remanded.

BOWMAN and GILLERAN JOHNSON, JJ., concur.