Clark v. Tap Pharmaceutical Product Inc.

Case Date: 10/01/2003
Court: 5th District Appellate
Docket No: 5-02-0316 Rel

NOTICE
Decision filed 10/01/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0316

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

_______________________________________________________________________________________________

ACIE C. CLARK, Individually and on 
Behalf of All Others Similarly Situated,

          Plaintiff-Appellee,

v.

TAP PHARMACEUTICAL PRODUCTS,
INC., TAP PHARMACEUTICALS, INC., and
ABBOTT LABORATORIES, INC., 

          Defendants-Appellants.

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Appeal from the
Circuit Court of
Williamson County.


No. 01-L-132



Honorable
Phillip G. Palmer,
Judge, presiding.


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PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

The defendants, TAP Pharmaceutical Products, Inc., Tap Pharmaceuticals, Inc.(collectively referred to as TAP), and Abbott Laboratories, Inc., appeal the trial court's ordercertifying a nationwide class of individuals and businesses under Illinois law. On appeal,the defendants seek the decertification of the class. We affirm the trial court's decision.

FACTS

Plaintiff class representative Acie C. Clark filed a class action complaint inWilliamson County. He alleged unjust enrichment and a violation of Illinois's ConsumerFraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq.(West 2000)). Acie alleged that, as a result of the defendants' fraudulent marketing and salesscheme, he, along with thousands of individuals and entities who paid copayment ordeductible amounts for beneficiaries under Medicare, overpaid for the prescription drugLupron, which is used to treat prostate cancer.

Acie alleged that Medicare reimbursement has historically relied on the "averagewholesale price" (AWP) published in Redbook, a pharmaceutical publication. Medicarereimbursed medical providers 80% of the allowable amount, and the Medicare beneficiarypaid the remaining 20%, referred to as the copayment amount. Acie contended that thedefendants wrongfully supplied Redbook with an inflated AWP, i.e., that the prices thedefendants charged private-sector purchasers for Lupron were significantly less than theprice published in Redbook and relied upon by Medicare and its beneficiaries. Acie claimedthat the defendants' fraudulent scheme induced medical providers to purchase, prescribe, andadminister Lupron at a low cost, bill Medicare at the inflated cost, and earn a profit from thedifference. Acie claimed that, therefore, in essence, the defendants created an improperkickback for their physician customers and increased their own profits and market share. Acie alleged that as a result of the defendants' wrongful inflation scheme, he and thosesimilarly situated substantially overpaid all or part of their 20% copayments for Lupron.

During his deposition on January 10, 2002, James Salanty, a former employee ofTAP, testified that the defendants calculated the AWP of Lupron, which was reported toRedbook, by multiplying the wholesale acquisition cost, a competitive price in themarketplace, by 1.25. Salanty testified that, in response to the lowest cost alternative (LCA)program, which some states implemented in 1997 to deal with such price-fixing and whichdecreased the physicians' reimbursement for Lupron, TAP further discounted the price fordoctors who were subject to the LCA reimbursement to maintain the spread.

The defendants submitted the affidavit of Christopher M. Gonzalez, M.D., who statedthat his compensation is completely unaffected by the amount of Lupron he prescribes, thathe generally was not aware of how patients pay for their services, i.e., whether they haveMedicare, and that he uses Lupron because of patient preference and ease of administration,as opposed to profit incentives.

The defendants also submitted the affidavit of Stanley Weintraub, director ofreimbursement for a health care consulting and advisory firm and a former senior policyadvisor for the Health Care Financing Administration, who stated that to determine therelationship between the class member's Medicare copayment and the AWP for Lupron, onemust define the following groups: "(a) individuals who were prescribed Lupron byparticipating physicians; (b) individuals who were prescribed Lupron by non[]participatingphysicians; (c) individuals who reside in states where a 'least costly alterative' reimbursementpolicy has been applied to Lupron reimbursement; (d) individuals who are 65 years or olderand still employed for whom Medicare is a secondary insurer; (e) insurers, both commercial(such as Medigap insurers) and non[]commercial (such as state Medicaid agencies, includingMedicaid Managed Care agencies), who paid claims for part or all of the 20% Medicare partB co[]payment and/or deductible for Lupron; and (f) individuals who are members ofMedicare HMOs [who do not pay copayments]."

At Rachel and Acie Clark's depositions on December 27, 2001, Rachel testified thatafter reading information regarding the overcharge for Lupron, she contacted her husband'sattorneys. Acie testified that his responsibility as a plaintiff in this suit was to represent thebest interests of the class. Acie stated that he, his wife, and his lawyer composed the class. Acie testified that he did not expect to receive funds from the lawsuit but expected to obtainLupron at a lower cost. Acie testified that he did not understand the claims described in thecomplaint and did not recognize the responses to the defendants' discovery requests that hehad signed.

Acie's class counsel also represent different named plaintiffs in a nationwide federalRacketeer Influenced and Corrupt Organizations (RICO) class action based on the samefactual allegations. Goetting v. TAP Pharmaceutical Products, Inc., No. 01-0703 (filed S.D.Ill. October 24, 2001). The Judicial Panel on Multidistrict Litigation consolidated theGoetting action with other federal class actions related to Lupron pricing practices. Theplaintiffs' counsel's multidistrict litigation complaint includes an action under Illinois'sConsumer Fraud Act and an action for unjust enrichment, in addition to five federal RICOcauses of action and a common law fraud action against these defendants.

On November 15, 2001, the plaintiffs in the case sub judice moved for classcertification, and on March 12, 2002, after hearing arguments, the trial court certified thefollowing as a nationwide class: "All individuals or non-ERISA third-party payor entities inthe United States who paid any portion of the 20% co[]payment or deductible amount forbeneficiaries under the Medicare Part B for Lupron during the period 1993 through thepresent (the class period)."

On April 19, 2002, the trial court, pursuant to Supreme Court Rule 308 (155 Ill. 2dR. 308), certified the following questions to facilitate an immediate appellate review by thiscourt:

"a. Whether common issues of fact and/or law predominate when each classmember based his or its decision to use or purchase Lupron on factorsunrelated to Lupron's [AWP] and when each class member was subject to oneof many different reimbursement methods depending on, inter alia: (a) thestate in which the class member resides or whose regulations govern the classmember's reimbursement; (b) the Medicare carrier responsible for theindividual class member's reimbursement; (c) the nature of the individual classmember's medical care provider's reimbursement request; (d) the type of entityfrom which the class member purchased Lupron; (e) the type of supplementalinsurance program(s), if any, in which the individual class member is enrolled;and (f) the nature of the third party-payor class member entity and the serviceswhich it contracted to provide or purchase.

b. Whether, under the United States Constitution and Illinois choice[-]of[-]lawprinciples, the Illinois Consumer Fraud Act can apply nationwide to claims ofclass members who are not Illinois residents and were not billed for Lupronin Illinois, especially in light of other similar class actions pending in variousstate and federal jurisdictions throughout the nation.

c. Whether, assuming the Illinois Consumer Fraud Act cannot apply nationwideto each class member's claims, variations in the 50 [s]tates' consumerprotections laws create individual issues of law that predominate over commonissues of law.

d. Whether a plaintiff who has a limited understanding of his own claims and thepurpose of his own lawsuit can adequately represent a nationwide class ofindividuals and third party-payor entities and serve as its class representative.

e. Whether plaintiff's counsel can simultaneously pursue this class action as wellas a separate and potentially conflicting class action and still adequatelyprotect the interests of the class in this case.

f. Whether a class action is an appropriate method for the fair and efficientadjudication of the controversy where: (a) mini[]trials will be necessary todetermine whether each class member has a right to recover; (b)sub[]classification will be necessary to address critical variations in theconsumer protection laws of the fifty states; and (c) multiple sets ofinstructions to the jury will be necessary to take into account the varyingprima facie elements, standards of proof, and damages available depending onwhich state's law applies."

On October 28, 2002, this court granted the defendants' petition for leave to appealthe national class-certification order.



ANALYSIS

To determine whether the proposed class should be certified, the court accepts theallegations of the complaint as true. Johns v. DeLeonardis, 145 F.R.D. 480, 482 (N.D. Ill.1992). The trial court has broad discretion to determine whether a proposed class satisfiesthe requirements for class certification and should err in favor of maintaining class actions. King v. Kansas City Southern Industries, Inc., 519 F.2d 20, 26 (7th Cir. 1975). The trialcourt's certification of a class will be disturbed only upon a clear abuse of discretion or anapplication of impermissible legal criteria. McCabe v. Burgess, 75 Ill. 2d 457, 464 (1979). "The scope of appellate review is limited to an assessment of the trial court's exercise ofdiscretion and does not extend to an independent, de novo evaluation of the facts alleged tojustify litigation of the case as a class action." Avery v. State Farm Mutual AutomoobileInsurance Co., 321 Ill. App. 3d 269, 279 (2001), appeal allowed, 201 Ill. 2d 560, 786 N.E.2d180 (2002).

To maintain a class action in Illinois, the court must find the following:

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

(2) There are questions of fact or law common to the class, which commonquestions predominate over any questions affecting only individual members.

(3) The representative parties will fairly and adequately protect the interest ofthe class.

(4) The class action is an appropriate method for the fair and efficientadjudication of the controversy." 735 ILCS 5/2-801 (West 2000).

Numerosity

The plaintiff's complaint alleges thousands of plaintiffs nationwide, and thedefendants do not dispute that the class is so numerous that the joinder of all members wouldbe impractical. Accordingly, the first prerequisite of section 2-801 of the Code of CivilProcedure (735 ILCS 5/2-801(1) (West 2000)) is met.

Common Questions of Fact or Law

The defendants assert that the application of Illinois law to non-Illinois classmembers, whose transactions with non-Illinois medical care providers occurred in statesother than Illinois, violates the due process and commerce clauses of the United StatesConstitution, principles of state sovereignty, and Illinois choice-of-law rules.

In Avery, 321 Ill. App. 3d at 281, precedent to which we are bound, this court rejectedthe argument that it is error to certify a nationwide consumer fraud class because the claimsof non-Illinois class members are governed by varying consumer fraud laws. "Illinois courtshave found class actions maintainable in situations where the class includes the residents ofother states." Avery, 321 Ill. App. 3d at 281.

The substantive law of Illinois, the forum state, may be applied, consistent with therequirements of procedural due process, where Illinois has significant contact or aggregationof contacts to the claims asserted by each member of the plaintiff class, contacts creatingstate interests ensuring that the choice of its law is not arbitrary or unfair. Martin v. HeinoldCommodities, Inc., 117 Ill. 2d 67, 82 (1987) (relying on Phillips Petroleum Co. v. Shutts, 472U.S. 797, 821-22, 86 L. Ed. 2d 628, 648, 105 S. Ct. 2965, 2979 (1985)). "The [ConsumerFraud] Act does not limit its application to resident consumers." Avery, 321 Ill. App. 3d at281. Non-Illinois consumers may pursue an action under Illinois's Consumer Fraud Actagainst a resident defendant where the deceptive acts and practices were perpetrated inIllinois. Avery, 321 Ill. App. 3d at 281; see also Miner v. Gillette Co., 87 Ill. 2d 7, 19 (1981)(a class action was certified that included nonresidents of Illinois and involved severalcounts, including one based on Illinois's Consumer Fraud Act).

The defendants' deceptive practices involving the fraudulent inflation of the cost ofLupron were designed, established, and initiated from the defendants' marketing and salesagents located at the defendants' corporate headquarters in Illinois and were designed to beuniformly relied upon by Medicare and its beneficiaries nationwide when they overpaid forLupron. See Avery, 321 Ill. App. 3d at 281. This common allegation implicates thelegitimate interest of the State of Illinois in ensuring that entities within its jurisdictionoperate in accordance with Illinois law. See Martin, 117 Ill. 2d at 82. "Illinois has alegitimate interest in applying its law to adjudicate this dispute and to insure that its residentscomply with its consumer-protection laws while serving Illinois and out-of-state consumers." Avery, 321 Ill. App. 3d at 282. Illinois has significant contacts to the claims asserted by thisclass so that the application of its consumer fraud laws to all class claimants is not arbitrary,capricious, or unfair and is not a violation of due process. See Avery, 321 Ill. App. 3d at 282.

Additionally, "[t]he resolution of this case under Illinois law does not violate anotherstate's sovereignty, nor is interstate commerce adversely impacted" (Avery, 321 Ill. App. 3dat 282). See also Healy v. Beer Institute, Inc., 491 U.S. 324, 336, 105 L. Ed. 2d 275, 109S. Ct. 2491, 2499 (1989) (the critical inquiry is whether the practical effect of regulation isto control conduct beyond the boundaries of the state). The practical effect of applyingIllinois law to the present case is to control conduct within the boundaries of Illinois, namely,the reporting by the defendants, headquartered in Illinois, of a deceptively inflated price forLupron to uniformly defraud Medicare and its beneficiaries. Although the defendants notethe variations in the states' consumer fraud laws, they fail to demonstrate that their deceptiveconduct is authorized by any other state's laws or that compliance with the substantive lawsof Illinois would lead them to violate a law imposed by another state, and therefore, thedefendants fail to distinguish Avery. See Avery, 321 Ill. App. 3d at 282.

Furthermore, applying Illinois's Consumer Fraud Act to the present case does notviolate Illinois's choice-of-law principles. To determine which law applies, we look to theconflicts law of Illinois, the forum state. Esser v. McIntyre, 169 Ill. 2d 292, 297 (1996). Thelocal law that has the most significant relationship with the occurrence and with the partiesdetermines their rights and liabilities. Ingersoll v. Klein, 46 Ill. 2d 42, 47 (1970). Todetermine the state of the most significant relationship, the forum considers the followingcontacts: (1) the place where the injury occurred, (2) the place where the conduct occurred,(3) the parties' domicile, nationality, place of incorporation, and place of business, and (4)the place where the parties' relationship is centered. Ingersoll, 46 Ill. 2d at 47-48.

The injury to the plaintiffs, in paying the inflated cost of Lupron, occurred throughoutthe country, including Illinois. The conduct leading to the injury occurred in Illinois, i.e.,the defendants' marketing and sales agents, located in the defendants' principal places ofbusiness in Illinois, concocted the fraudulent scheme to inflate the price of Lupron. Although the plaintiffs are domiciled throughout the country, the defendants' principal placesof business are in Illinois. The relationship of the parties, if any, is centered in Illinois,where the fraudulently inflated price of Lupron originated. Illinois may apply its law to theout-of-state occurrences because Illinois has the most significant relationship to the activityin question. See Ingersoll, 46 Ill. 2d at 48.

The defendants further contend that the class does not meet the predominanceprerequisite to class certification because individual issues of law, required by the need toapply all 50 states' laws to the nationwide class claims, along with individual issues of factrequired by the materiality, proximate cause, and injury elements of a Consumer Fraud Actclaim, are present. Specifically, the defendants assert that individual issues of fact, such ashow class members made copayments for Lupron, whether the copayments were based onthe published AWP for Lupron, and why their medical care providers administered Lupron,defeat class certification.

The plaintiffs assert that, at the trial, they will prove the following common questionsof fact and law: that because the defendants lied about the AWP for Lupron, class memberswere injured by paying a price for Lupron that exceeded the amount they should have paidhad the defendants properly disclosed the AWP; that Medicare and its patients wereovercharged for Lupron by a specified percentage above the AWP; and that although damagecalculations may be different based, for example, on whether the Medicare beneficiary wasin an LCA state, the overpayment may reasonably be applied on a subclass-wide basis.

We have previously determined that Illinois's Consumer Fraud Act may apply to thepresent case (see Avery, 321 Ill. App. 3d at 282-83), abrogating the need to apply the lawsof all 50 states to these claims and rendering irrelevant the defendants' argument that statelaw variances in the present case defeat the predominance of the common issues of fact andlaw. We therefore address whether the individual issues of fact required by the materiality,proximate cause, and injury elements of a Consumer Fraud Act claim defeat classcertification.

So long as questions of fact or law common to the class predominate over questionsaffecting only individual members of the class, the statutory requisite is met. Steinberg v.Chicago Medical School, 69 Ill. 2d 320, 338 (1977). "A common question may be shownwhen the claims of the individual class members are based upon the common application ofa statute or when the members are aggrieved by the same or similar conduct [citation] or apattern of conduct [citations]." Avery, 321 Ill. App. 3d at 280. A class action can properlybe prosecuted where the defendants allegedly acted wrongfully in the same basic manner asto an entire class, and in such circumstances, the common class questions predominate thecase, and the class action is not defeated. Gordon v. Boden, 224 Ill. App. 3d 195, 201(1991).

" '[A] class action will not be defeated solely because of some factual variationsamong class members' grievances.' " Heastie v. Community Bank of Greater Peoria, 125F.R.D. 669, 675 (N.D. Ill. 1989) (quoting Patterson v. General Motors Corp., 631 F.2d 476,481 (7th Cir. 1980)). "[I]t is appropriate to litigate the questions of law or fact common toall members of the class and, after the determination of the common questions, to determinein an ancillary proceeding or proceedings the questions that may be peculiar to individualclass members." Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co., 137Ill. App. 3d 84, 100 (1985), aff'd on other grounds, 114 Ill. 2d 278, 499 N.E.2d 1319 (1986);see Heastie, 125 F.R.D. at 675 (certifying class even though each class member must showthat the defendant's RICO violation caused injury to his or her property); Ridings v.Canadian Imperial Bank of Commerce Trust Co., 94 F.R.D. 147, 151 (N.D. Ill. 1982)(finding in a securities fraud case that individual questions of reliance do not bar classcertification on the common questions involved because, "[i]f necessary, the [c]ourt mayorder separate hearings on the individual questions of reliance after determination of thecommon questions of law and fact").

Individual questions of injury and damages do not defeat class certification. Heastie,125 F.R.D. at 675. That some members of the class are not entitled to relief because of someparticular factor will not bar the class action. Steinberg, 69 Ill. 2d at 338. Similarly, "[t]hefact that the class members' recoveries may be in varying amounts which must be determinedseparately does not necessarily mean that there is no predominate common question." Avery,321 Ill. App. 3d at 280. If the damage determinations are required on an individual basis,the court can utilize a number of procedures to determine damages, including creatingsubclasses. In re Folding Carton Antitrust Litigation, 75 F.R.D. 727, 735 (N.D. Ill. 1977).

The record reveals the question common to the class that predominates over questionsaffecting individual class members: whether the defendants engaged in a fraudulent anddeceptive scheme to charge Medicare, its beneficiaries, and third-party payors an inflatedcost for the prescription drug Lupron. See 815 ILCS 505/2 (West 2000); Thacker v. Menard,Inc., 105 F.3d 382 (7th Cir. 1997) (to state a claim under the Consumer Fraud Act, a plaintiffmust show a deceptive act or practice, an intent by the defendant that the plaintiff rely on thedeception, and that the deception occurred in the course of conduct involving trade orcommerce). If, after the trial, it is found that the defendants engaged in the deceptivepractice of inflating the price of Lupron, with the intent that Medicare beneficiaries rely onthe deception, then the defendants acted wrongfully in the same basic manner as to the entireclass, the liability question common to all class members has been established in favor of theplaintiffs, and the class members may recover a refund for their overpayment for Lupron. See Gordon, 224 Ill. App. 3d at 201.

The fact that some class members were billed based on the provider's actual cost, theprovider's "estimated acquisition cost," or the AWP for the "least costly alternative" toLupron involves questions of complexity or uncertainty regarding the amount of damagesand does not present individual issues to bar class certification. See In re Folding CartonAntitrust Litigation, 75 F.R.D. at 735; Avery, 321 Ill. App. 3d at 283 (the fact that the classmembers' claims for refunds may be in varying amounts which must be determinedseparately does not necessarily mean that the common question does not predominate). Thefact that some members did not make copayments also does not defeat class certification,because the elemental determination that some members of a class are not entitled to reliefbecause of some particular factor will not bar the class action. See Steinberg, 69 Ill. 2d at336. Whether the plaintiff was injured will be relatively easy to resolve, and the individualplaintiffs' damages will be measured by the difference between the reported AWP and theactual AWP, calculated according to the individual's copayment amount.

The defendants assert that the plaintiffs' unjust enrichment claim is also swamped withindividual issues of fact that overwhelm the common issues because, the defendants contend,to show that the defendants benefited from the increased sales and market share of Lupronthat flowed from the deceptive conduct, a physician-by-physician evaluation must beconducted to determine why each physician decided to administer Lupron. The plaintiffscounter that to establish their unjust enrichment claim, they will address the commonquestion of whether the defendants fraudulently inflated the cost of Lupron and determinethe defendants' profit from their illegal conduct, which would be unrelated to individual classmembers but divided among the class members based upon their out-of-pocket losses.

To prove a claim of unjust enrichment, a plaintiff must show that the defendant hasunjustly retained a benefit to the plaintiff's detriment and that the defendant's retention of thatbenefit violates fundamental principles of justice, equity, and good conscience. HPI HealthCare Services, Inc. v. Mount Vernon Hospital, Inc., 131 Ill. 2d 145, 160 (1989). We agreewith the plaintiffs' reasoning and conclude that common issues, regarding both the plaintiffs'consumer fraud claim and the plaintiff's unjust enrichment claim, predominate over the issuesthat affect only individual members. See 735 ILCS 5/2-801(2) (West 2000).

Representative Party

The defendants next assert that Acie and his counsel will not adequately represent theproposed class because Acie does not have a basic understanding of his claims or the classhe represents and because counsel are simultaneously pursuing an overlapping class actionin the federal multidistrict litigation proceedings, thereby creating a possible conflict ofinterest.

"The purpose of the adequate representation requirement is merely to ensure that allclass members will receive proper, efficient, and appropriate protection of their interests inthe presentation of the claim." Gordon, 224 Ill. App. 3d at 203. The plaintiff classrepresentative "need only have a marginal familiarity with the facts of his case[] and doesnot need to understand the legal theories upon which his case is based to a greater extent." Wilborn v. Dun & Bradstreet Corp., 180 F.R.D. 347, 355 (N.D. Ill. 1998); see alsoEggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 896 (7thCir. 1981) (recognizing that class certification was not defeated in Surowitz v. Hilton HotelsCorp., 383 U.S. 363, 366, 15 L. Ed. 2d 807, 86 S. Ct. 845, 847 (1966), even though "thenamed plaintiff [a Polish immigrant] did not understand her complaint at all, could notexplain the statements in it, had little knowledge of what the lawsuit was about, did not knowthe defendants by name, nor [sic] even the nature of the misconduct of the defendants" andrelied almost entirely on the explanations of her son-in-law).

Class certification is not defeated even though Acie's wife, as opposed to Acie,initiated contact with counsel, Acie may not understand the complexities of his complaint,and Acie has little knowledge of the intricacies of his lawsuit. See Surowitz, 383 U.S. at 366,15 L. Ed. 2d 807, 86 S. Ct. at 847. The interests of the named plaintiff are the same as thoseof the absentee class members-to seek damages based on the defendants' misrepresentationsto consumers concerning the price of Lupron. Acie is 82, is a Medicare recipient, and paidhis 20% copayment. Although the third-party payor entities' damages most likely willexceed the individual class members' losses, Acie understands the core issue of the case, i.e.,that he was overcharged for Lupron, Acie has a sufficient interest in the outcome to ensurevigorous advocacy (see Gilmore v. Southwestern Bell Mobile Systems, L.L.C., 210 F.R.D.212 (N.D. Ill. 2001)), and therefore, Acie is an adequate class representative. See 735 ILCS5/2-801(3) (West 2000).

Due process requires that the plaintiffs' attorney be qualified, experienced, and ableto conduct the proposed litigation. Steinberg, 69 Ill. 2d at 339. Neither the court nor thedefendants entertained doubt that the plaintiffs' attorneys possess the requisite skill andability to litigate the plaintiffs' claims. Moreover, the potential conflicts are speculative atthis time and do not render counsel inadequate. See Sheftelman v. Jones, 667 F. Supp. 859,865 (N.D. Ga. 1987) (the fact that the plaintiffs' counsel also represented other classesagainst other common defendants in an unrelated class action did not render counselinadequate for class-certification purposes). At this point, the federal class action suit doesnot create the kind of conflict that would defeat the other elements that render thecertification of this action proper or prevent Acie and class counsel from adequatelyprotecting the interests of the class. We note, however, that basic considerations of fairnessrequire the trial court to undertake a stringent and continuing examination of the adequacyof representation by the named class representative and his counsel at all stages of thelitigation (see Susman v. Lincoln American Corp., 561 F.2d 86, 89-90 (7th Cir. 1977)) andto be cognizant of actual conflicts that arise.

Class Action is Appropriate Method

The defendants assert that the class action is not the appropriate method for the fairand efficient adjudication of the controversy, given the need for extensive subclasses toaddress variations in state law, the need for minitrials to resolve individual issues of factattendant to each class member's claims, and the pendency of other actions around the nationthat will address the claims of the absent class members in this case.

To satisfy the "appropriate method" requirement, the plaintiff must demonstrate thatthe class action (1) can best secure the economies of time, effort, and expense and promotea uniformity of decision or (2) can accomplish the other ends of equity and justice that classactions seek to obtain. McCabe, 75 Ill. 2d at 468.

Applying these principles to the record before us, we conclude that a class action isappropriate in the case at bar. Initially, our holding that the first three prerequisites ofsection 2-801 of the Code of Civil Procedure have been established makes it evident that thefourth requirement has been fulfilled. See Steinberg, 69 Ill. 2d at 339. Additionally, this isa consumer class action, and in our large and impersonal society, class actions are often thelast barricade of consumer protection. See Gordon, 224 Ill. App. 3d at 204. The consumerclass action provides restitution to the injured and deterrence to the wrongdoer; thus, the endsof equity and justice are attained. See Gordon, 224 Ill. App. 3d at 204. Due to the numerousmembers of the class and the existence of common questions of fact and law, a class actionwill serve the economies of time, effort, and expense and prevent possible inconsistentresults. Litigating the individual lawsuits in the present case would be a waste of judicialresources, and addressing the common issues in one action would aid judicial administration. See Avery, 321 Ill. App. 3d at 279.

In conclusion, the record supports the trial court's decision. We caution the trial court,however, that in the future it should make findings to support its legal conclusions. SeeBesinga v. United States, 923 F.2d 133, 135 (9th Cir. 1991) (suggesting a bright-line rulerequiring trial courts to state their certification findings because the absence of those findingsoften leads reviewing courts to speculate as to certification decisions). Further, we note thatthe class action device is flexible in nature and may be modified by the trial court at a laterpoint in the litigation to accommodate changes or newly discovered facts. See Gordon, 224Ill. App. 3d at 202-03.

Having addressed the defendants' contentions and the trial court's questions, we affirmthe trial court's decision certifying the suit as a class action.

CONCLUSION

For the foregoing reasons, we affirm the order of the circuit court of WilliamsonCounty.

Affirmed.

WELCH and CHAPMAN, JJ., concur.