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Docket No. 95458-Agenda 29-September 2003.

MARK WEISS, Indiv. and on Behalf of All Others Similarly Situated,
Appellee, v. WATERHOUSE SECURITIES, INC., Appellant.

Opinion filed January 23, 2004.
 

JUSTICE FITZGERALD delivered the opinion of the court:

The defendant, Waterhouse Securities, Inc., appeals the judgment ofthe appellate court affirming in part and reversing in part the trial court'sorder on Waterhouse Securities' motion to strike plaintiff Mark Weiss'class action allegations and compel arbitration. Weiss has filed a motionto dismiss this appeal for lack of appellate jurisdiction.

Accordingly, there are two central issues in this case: whether wehave jurisdiction to hear Waterhouse Securities' interlocutory appeal, and,if so, whether the appellate court correctly held that Weiss' class actionallegations are sufficient as a matter of law to survive WaterhouseSecurities' motion to strike. For the reasons that follow, we deny Weiss'motion to dismiss this appeal and affirm the appellate court.

BACKGROUND

In October 1998, Weiss opened a "webBroker" account withWaterhouse Securities, a discount securities brokerage company. Withthis account and Waterhouse Securities' help, he hoped to trade securitieson his personal computer, by telephone, or through an assigned broker.The Waterhouse Securities "Account Agreement Booklet" governingWeiss' account contained an arbitration clause, which provided in part:

"I agree that any controversy relating to any of my accounts orany agreement that I have with [Waterhouse Securities] will besubmitted to arbitration conducted only under the provisions ofthe Constitution and Rules of the New York Stock Exchange,Inc. [NYSE] or pursuant to the code of the Arbitration of theNational Association of Securities Dealers, Inc. [NASD] ***No person shall bring a putative or certified class action toarbitration, nor seek to enforce any pre-dispute arbitrationagreement against any person who has initiated in court aputative class action, or who is a member of a putative class whohas not opted out of the class with respect to any claimsencompassed by the putative class action until: (i) the classcertification is denied; or (ii) the class is decertified; or (iii) thecustomer is excluded from the class by the court."⁽¹⁾

Weiss soon encountered problems accessing his account, both onlineand by telephone. On January 19, 1999, he filed a "Class ActionComplaint" against Waterhouse Securities on behalf of more than 1.5million of its customers, asserting claims for violation of the ConsumerFraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.(West 2002)), breach of contract, and fraud. On February 18, 1999,Waterhouse Securities removed the cause to federal court, but the UnitedStates District Court for the Northern District of Illinois remanded thecause back to the Cook County circuit court. More than six months later,on August 31, 1999, Waterhouse Securities filed a motion to dismissunder section 2-619 of the Code of Civil Procedure (735 ILCS5/2-619(a)(9) (West 2002)) in lieu of an answer. Waterhouse Securitiescontended that the agreement with Weiss disclosed the possibility that hemight experience interruptions or delays in accessing his account,disclaimed any liability for damages incurred from such serviceinterruptions or delays, and contained a choice of law provision whichbarred his claim under the Consumer Fraud Act. The trial court denied thismotion on April 14, 2000.

On April 10, 2000, Waterhouse Securities responded to Weiss'initial interrogatories and production requests. Waterhouse Securitiesresponses included "GENERAL OBJECTIONS" to Weiss' initialdiscovery efforts as

"premature, unreasonable, unduly burdensome, oppressive, andseeking potentially unnecessary and wasteful discovery to theextent: (a) that they seek documents and/or information prior tothe disposition of Waterhouse's pending motion to dismiss thisaction; (b) that they seek documents and/or informationregarding the merits of [Weiss'] claims and the claims of thepurported 'class' prior to the disposition of a motion for classcertification; and (c) that such discovery may be improper and/orimpermissible under the Illinois Uniform Arbitration Act, 710ILCS 5/1 et seq., and the parties' agreement to arbitrate thisdispute, in the event that both the motion to dismiss and motionfor class certification are denied."

Waterhouse Securities individually objected to 8 of Weiss' 10interrogatories. It responded to interrogatories regarding potential fact andopinion witnesses by indicating that it had not determined what witnessesto call at trial and would supplement its answers in due time.

Waterhouse Securities also objected to 37 of Weiss' 39 productionrequests, stating that it would produce only "all responsive non-privilegeddocuments" relating to Weiss himself. On April 25, 2000, Weiss' attorneysent Waterhouse Securities' attorney a Supreme Court Rule 201(k) letter(see 166 Ill. 2d R. 201(k)) attempting to resolve this discovery dispute.Waterhouse Securities' attorney responded to this letter on May 5, 2000,repeating and detailing Waterhouse Securities' objections to Weiss'discovery efforts and signaling its intention to file a motion to strike theclass allegations and compel arbitration.

On May 18, 2000, Waterhouse Securities filed such a motion,specifically asking the trial court for "an Order striking the class allegationsfrom the Complaint pursuant to 735 ILCS 5/2-801 [(West 2002)] andcompelling plaintiff's individual claims to arbitration." WaterhouseSecurities argued that Weiss' class action claims could not be certifiedbecause common issues of fact and law do not predominate and,therefore, asked that Weiss' individual claims be sent to arbitration,pursuant to the agreement. Waterhouse Securities conceded that themotion to compel was contingent on the trial court granting the motion tostrike. While this motion was being briefed, Weiss filed a motion tocompel discovery on August 30, 2000. Waterhouse Securities respondedto this motion on November 8, 2000, reiterating its objections to Weiss'discovery efforts as an "enormous burden." The motion to compel remainspending.

On January 30, 2001, the trial court decided Waterhouse Securities'motion to strike and compel. The trial court's order opened by noting,"This matter is before the Court on Defendant WATERHOUSESECURITIES, INC.'s Motion to Strike Class Allegations," omitting anyreference to the arbitration request. The order then stated that "commonquestions of law and fact predominate over questions involving individualclass members so that the class allegations as set forth by [Weiss] aresufficient as a matter of law." The order closed by holding, "it is herebyADJUDGED, ORDERED and DECREED that Defendant's Motion toStrike Class Allegations and Compel Arbitration is DENIED."(Emphasis added.)

Waterhouse Securities appealed pursuant to Supreme Court Rule307(a)(1) (188 Ill. 2d R. 307(a)(1)), which allows interlocutory appealsof orders denying injunctive relief. Waterhouse Securities claimed thatbecause the trial court's order denied a motion to compel arbitration, thatorder was appealable under Notaro v. Nor-Evan Corp., 98 Ill. 2d 268,271 (1983). In an unpublished order, the appellate court disputedWaterhouse Securities' characterization of the trial court's order. Theappellate court stated that Waterhouse Securities had, in effect, filed twoseparate motions: a motion to dismiss Weiss' class action allegations undersection 2-615(a) of the Code of Civil Procedure (see 735 ILCS5/2-615(a) (West 2002)) and a motion to compel arbitration of hisindividual claims:

"Given the nature of Waterhouse's motion, the court was initiallyforced to consider the legal sufficiency of plaintiff's class actionallegations. The court did that and, upon finding the classallegations adequate, denied Waterhouse's request to compelarbitration. Hence, the court's order constitutes two distinctrulings-one ruling denying Waterhouse's request for dismissalunder section 2-615 and another ruling denying Waterhouse'smotion to compel arbitration." No. 1-01-0680 (unpublishedorder under Supreme Court Rule 23).

The appellate court held it lacked jurisdiction over the trial court'sorder denying the first motion because that order was interlocutory andnot appealable. The appellate court, however, decided that it hadjurisdiction over the second motion under Rule 307(a)(1). Because noneof the arbitration conditions in the agreement had been met, the appellatecourt affirmed the trial court's order denying Waterhouse Securities'motion to compel arbitration.

Waterhouse Securities appealed to this court. We denied its petitionfor leave to appeal, but vacated the appellate court's order, directing thatcourt "to reconsider its judgment, including the propriety of the trial court'sorder denying defendant's motion to strike class allegations." See Weissv. Waterhouse Securities, Inc., 198 Ill. 2d 632 (2002) (supervisoryorder).

On remand, the appellate court affirmed in part, reversed in part, andremanded. 335 Ill. App. 3d 875. As an initial matter, the court addressedits jurisdiction and repeated its statements that, essentially, WaterhouseSecurities filed two motions-a motion to strike and a motion tocompel-and that, consequently, the trial court made two rulings. The courtconcluded, however, "While an order denying a motion for dismissal is nota final and appealable determination but, rather, is interlocutory in nature[citations], we nonetheless have jurisdiction to review the circuit court'sdenial of Waterhouse's motion to strike because that motion was anecessary and attendant part of the court's refusal to compel arbitration."335 Ill. App. 3d at 881.

On the merits, the appellate court noted that Illinois law is "not clear"about the extent to which a putative class action plaintiff must plead therequirements in section 2-801. 335 Ill. App. 3d at 882. The courtconcluded:

"[A] representative plaintiff is not required to allege all thedetails necessary to establish that his class action is maintainablepursuant to section 2-801 in bringing a claim or claims as a classaction. Rather, the plaintiff need only allege a viable individualcause of action, indicate that the claim is being brought as a classaction lawsuit, and contain factual allegations that are broadenough in scope to establish the possible existence of a classaction suit as contemplated by section 2-801. If there is nopossibility that a claim can be maintained as a class action, thendismissal of the class action allegations is proper pursuant tosection 2-615. On the other hand, if there is any possibility thata class action can be maintained for some members of a class,dismissal under section 2-615 is not warranted.

In determining whether a complaint brought as a class actionis legally sufficient under section 2-615, the circuit court shouldnot inquire into whether the factual allegations establish thestatutory prerequisites for maintaining a class action litigation.Whether the statutory prerequisites for a class action exists [sic]in a case should be decided only when the issue of certificationis specifically raised before the circuit court. *** A motion forcertification and a motion to dismiss under section 2-615 are notthe same thing and involve separate and distinct inquiries." 335Ill. App. 3d at 883-84.

The court held that Weiss' complaint sufficiently stated a class action:"The complaint alleges that plaintiff and a number of other Waterhousecustomers shared difficulties in using Waterhouse's trading services duringthe class period. Taking the complaint's allegations as true ***, thepossibility that plaintiff's claims can be maintained as a class action cannotbe ruled out." 335 Ill. App. 3d at 884. The court, however, expressed noopinion on whether the complaint would survive a certification hearing.335 Ill. App. 3d at 884-85.

Turning to Waterhouse Securities' "second" motion, the motion tocompel, the appellate court stated, "the issue of certification was neverproperly before the circuit court." 335 Ill. App. 3d at 886. None of theconditions triggering arbitration had occurred; thus, "[t]he issue of whetherplaintiff's individual claims should be compelled to arbitration, therefore,was not ripe for the circuit court's determination and, accordingly, thecourt's decision denying Waterhouse's motion to compel was premature."335 Ill. App. 3d at 886. The court affirmed that portion of the trial court'sorder denying Waterhouse Securities' motion to dismiss and reversedthose portions of the order finding common questions predominated anddenying its motion to compel. 335 Ill. App. 3d at 886.

Waterhouse Securities again appealed to this court, and we grantedits second petition for leave to appeal. See 177 Ill. 2d R. 315(a). Wegranted the Chamber of Commerce of the United States of America leaveto file a brief as amicus curiae in support of Waterhouse Securities. See155 Ill. 2d R. 345. Weiss filed a motion to dismiss this appeal for lack ofjurisdiction. We took this motion with the case.

ANALYSIS

Before proceeding to the merits of this appeal, we must initiallydecide Weiss' motion to dismiss. Weiss argues that this court lacksjurisdiction to review the trial court's order denying WaterhouseSecurities' motion to strike because that was an unappealableinterlocutory order. Weiss further argues that this court lacks jurisdictionto review the issues raised by Waterhouse Securities' motion to compelbecause the trial court never ruled on that motion. According to Weiss, thecourt's order was limited to the motion to strike. Even if the court hadruled on the motion to compel, Weiss contends, Waterhouse Securitiescannot bootstrap an unappealable interlocutory order onto the admittedlyappealable interlocutory order on the motion to compel.

Waterhouse Securities answers that this jurisdictional issue wasraised by Weiss in response to Waterhouse Securities' first petition forleave to appeal, and thus was previously considered by this court in itssupervisory order to the appellate court. According to WaterhouseSecurities, this court's order essentially conferred jurisdiction, and thisruling has become the law of the case. Further, Waterhouse Securitiesargues that the validity of the trial court's ruling on the motion to compeldepended upon the validity of its ruling on the motion to strike.

We agree with Waterhouse Securities. By ordering the appellatecourt to review the propriety of the trial court's order denying the motionto strike, we decided that the appellate court had jurisdiction. Our earlierdecision is now the law of the case. See People v. Tenner, 206 Ill. 2d381, 395 (2002). Additionally, the appellate court was right: the decisionson the motion to strike and the motion to compel were intertwined. Thatis, the validity of any order on the motion to strike class allegationsdetermined the validity of any order on the motion to compel arbitration,and the order denying the motion to compel arbitration was appealableunder Rule 307(a)(1). See Notaro, 98 Ill. 2d at 271; Federal SignalCorp. v. SLC Technologies, Inc., 318 Ill. App. 3d 1101, 1105 (2001).

Waterhouse Securities could have chosen a procedurally cleanerroute by filing only a motion to strike. If that motion were granted,Waterhouse Securities then could have filed a separate motion to compelarbitration. If the motion to strike were denied, Waterhouse Securitiesthen could have sought a finding under Rule 304(a) (155 Ill. 2d R.304(a)), making an interlocutory order appealable, or pursued a certified-question appeal under Rule 308 (155 Ill. 2d R. 308; see, e.g., McCarthyv. La Salle National Bank & Trust Co., 230 Ill. App. 3d 628 (1992);Elder v. Coronet Insurance Co., 201 Ill. App. 3d 733 (1990)). Theroute Waterhouse Securities followed, however, was not improper. Weneed not force a litigant to file two motions when the ruling on the motionto compel would be a foregone conclusion after the ruling on the motionto strike. We turn to the merits of this interlocutory appeal.

Waterhouse Securities contends that the appellate court erred inconcluding that the trial court should not inquire whether the plaintiff'scomplaint establishes the statutory class action prerequisites. WaterhouseSecurities asserts in its brief, "No court-other than the Appellate Court inthis case-has ever held that a motion to strike class allegations pursuantto Sections 2-615 and 2-801 was somehow procedurally improper."Waterhouse Securities, however, ignores the fact that its motion to strikeand dismiss refers only to section 2-801, which provides the prerequisitesfor class certification; it does not refer to section 2-615(a), or to section2 of the Uniform Arbitration Act (710 ILCS 5/2 (West 2002)("Proceedings to compel or stay arbitration")). More importantly,Waterhouse Securities misreads the appellate court's opinion. Theappellate court never held that defendants can no longer file motions tostrike class allegations. In fact, as Weiss correctly notes, the appellatecourt acknowledged that class action allegations may properly bedismissed "[i]f there is no possibility that a claim can be maintained as aclass action." 335 Ill. App. 3d at 883. This holding is consistent withlongstanding precedent.

Though the class action statute itself does not require the plaintiff toplead facts establishing the class action prerequisites (Arriola v. TimeInsurance Co., 296 Ill. App. 3d 303, 307 (1998)), "Illinois courts haveconsistently recognized that a class action complaint should be dismissedat the pleading stage if the complaint fails to meet the statutoryrequirements for class certification" (Bruemmer v. Compaq ComputerCorp., 329 Ill. App. 3d 755, 764 (2002), citing McCabe v. Burgess, 75Ill. 2d 457, 466-67 (1979)). Notably, in our first opinion construing thestatutory class action provisions, we held that, in reviewing the dismissalof a class action, "we shall measure this action in terms of the [class-action] statute." Steinberg v. Chicago Medical School, 69 Ill. 2d 320,337 (1977); accord Barliant v. Follett Corp., 74 Ill. 2d 226, 232(1978) ("The question, then, is whether in the instant case the [statutory]prerequisites *** for the maintenance of a class action, are met"); Elder,201 Ill. App. 3d at 755 (holding that the plaintiff's complaint failed toallege sufficiently "the prerequisites needed to maintain a class actionunder section 2-801"); Blake v. State Farm Mutual AutomobileInsurance Co., 168 Ill. App. 3d 918, 921 (1988); Scott v. AmbassadorInsurance Co., 100 Ill. App. 3d 184, 185 (1981) ("The sole issue, asstated by the parties, is whether the four prerequisites to a class actionwere sufficiently set forth *** to withstand a motion to dismiss"); Saldanav. American Mutual Corp., 97 Ill. App. 3d 334, 337 (1981); Morrissyv. Eli Lilly & Co., 76 Ill. App. 3d 753, 757-58 (1979); see also Hagertyv. General Motors Corp., 59 Ill. 2d 52, 59 (1974) ("the circuit courtwas correct in striking the class action allegations of the plaintiff'scomplaint"); Goetz v. Village of Hoffman Estates, 62 Ill. App. 3d 233,235 (1978) ("The sole issue for our consideration is whether plaintiffs'amended complaint sets forth facts sufficient to support the maintenanceof a class action"); see generally L. Tornquist, Roadmap to Illinois ClassActions, 5 Loy. U. Chi. L.J. 45, 65-66 (1974) ("The complaint mustcontain a plain and concise statement of the cause of action and shouldaffirmatively allege facts which indicate that the representative party has aright to maintain the class action and that he filed the action on behalf of allmembers of the class described in the pleading"). That much is clear.What is less clear is, as the appellate court put it, "[t]he extent to whicha plaintiff asserting a claim as a class action must plead the statutoryrequirements listed in section 2-801." (Emphasis added.) 335 Ill. App. 3dat 882. In other words, how much must a putative class representativeplead regarding these statutory requirements in order to survive a motionto strike?

As we have stated time and again, "Illinois is a fact-pleadingjurisdiction." Beahringer v. Page, 204 Ill. 2d 363, 369 (2003). That is,a plaintiff must allege facts sufficient to bring a claim within a legallyrecognized cause of action. Vernon v. Schuster, 179 Ill. 2d 338, 344(1997); Teter v. Clemens, 112 Ill. 2d 252, 256 (1986); see Gonzalez v.Thorek Hospital & Medical Center, 143 Ill. 2d 28, 35 (1991)(observing that a plaintiff must allege facts "necessary to recover" in orderto state a cause of action). When that cause of action is also a class action,the plaintiff must allege facts sufficient to bring the claim within the statutoryprerequisites for a class action. Section 2-801, "Prerequisites for themaintenance of a class action," provides:

"An action may be maintained as a class action in any courtof this State and a party may sue or be sued as a representativeparty of the class only if the court finds:

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

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

(3) The representative parties will fairly and adequatelyprotect the interest of the class.

(4) The class action is an appropriate method for the fair andefficient adjudication of the controversy." 735 ILCS 5/2-801(West 2002).

Here, the parties agree that the only statutory prerequisite at issue issection 2-801(2). The parties dispute whether Weiss' complaintsufficiently alleges that common questions of fact or law predominate overindividual questions. Quoting Key v. Jewel Cos., 176 Ill. App. 3d 91, 94-95 (1988), Waterhouse Securities asserts "the test for whether commonquestions predominate is 'whether the successful adjudication of theplaintiffs' claim will establish a right to recovery in the class members.' "According to Waterhouse Securities, Weiss' complaint fails this testbecause even if he establishes his individual claims, he does not necessarilyestablish claims for all class members because the class undoubtedlyincludes customers who never attempted to execute trades during serviceinterruptions or delays, as well as customers who may have benefittedfrom their inability to execute trades, customers who had other means ofexecuting trades through other accounts, customers who had subsequentopportunities to execute their contemplated trades at the same or betterprices, and customers whose access problems were not caused byWaterhouse Securities.

This "successful adjudication" test certainly applies to cases arisingin the class certification context, and some courts have employed it in thecontext of motions to strike class allegations. See, e.g., McCarthy, 230Ill. App. 3d at 634; Scott, 100 Ill. App. 3d at 187; Morrissy, 76 Ill. App.3d at 762; Goetz, 62 Ill. App. 3d at 236; Barton Chemical Corp. v.Hertz Corp., 52 Ill. App. 3d 214, 217 (1977). But applying this test inboth contexts is problematic because motions to certify a class andmotions to strike class allegations serve very different purposes. "Theappropriate way to determine whether to certify a class is by a motion forclass certification." Enzenbacher v. Browning-Ferris Industries ofIllinois, Inc., 332 Ill. App. 3d 1079, 1084 (2002). The appropriate wayto determine whether to strike insufficient class action allegations is by amotion to dismiss under section 2-615(a). The former motion is typicallybrought by a putative class action plaintiff, who asks the court, based onevidentiary materials adduced through discovery, to find that the case canproceed as a class action. The latter motion is typically brought by adefendant, who asks the court, based on the face of the complaint, todismiss the plaintiff's class action allegations as legally insufficient. Theshowing that Weiss must make in seeking class certification iscorrespondingly higher than the showing he must make to withstand amotion to strike class allegations. Unlike the class action prerequisites atcertification, here they are not a matter of proof, but a matter of pleading.

This distinction affects the standard of review on appeal. Acertification decision is reviewed for an abuse of discretion (see McCabe,75 Ill. 2d at 464); a dismissal is reviewed de novo (see Oliveira v.Amoco Oil Co., 201 Ill. 2d 134, 147-48 (2002)). As the appellate courtcorrectly observed, "If a motion to dismiss class allegations under section2-615 is allowed to raise the matter of certification, a reviewing court,upon review of the circuit court's certification decision, will be required toengage in an independent determination of the certification elements,despite the statutory directive that such a determination be vested with thecircuit court." 335 Ill. App. 3d at 884.

To the extent that "establish" means "prove" (see Black's LawDictionary 566 (7th ed. 1999)) as opposed to "allege," the appellate courtwas correct when it said the trial court should not inquire whether theputative class action plaintiff's complaint establishes the statutory classaction prerequisites. The plaintiff's complaint simply must containallegations which implicate, or bring the complaint within, theseprerequisites. It is enough that the factual allegations are sufficiently broadin scope to plead the possible existence of a class action claim undersection 2-801. 335 Ill. App. 3d at 883. Against this background, weexamine the allegations of Weiss' complaint de novo.

Weiss alleged that, in promotional materials and advertisements,Waterhouse Securities solicited customers to open low commissionsecurities trading accounts, which they could access instantly through theircomputers, telephones, or branch office brokers 24 hours a day.Beginning January 2, 1999, Weiss charged, he and his fellow customersrepeatedly tried, but "were unable to access their accounts to purchaseand sell securities through their personal computers" and "could notpurchase or sell securities through their assigned brokers, as their attemptsto reach their brokers by telephone were met with repeated busy signalsor excessive hold times." As a result, Weiss and his fellow customerspurportedly "have been unable to purchase and sell securities and takeadvantage of changing conditions in the market" and "were not evencertain at various times as to what securities positions they held in themarket because of lack of confirmations." When Waterhouse Securitiesmade its representations regarding 24-hour instant access, Weiss claimed,it knew or should have known that it lacked "sufficient equipment orpersonnel to make good on its promises." Weiss and his fellow customersrelied on these representations to their detriment; they would not haveopened accounts if they had known the truth about WaterhouseSecurities' services.

According to Weiss,

"There are questions of fact and law common to the Classwhich predominate over any individual questions affecting anyindividual Class members. These questions include:

a. Whether Waterhouse breached its contract with itscustomers by failing to provide customers: (i) access to theirTrading Accounts and the ability to purchase and sellsecurities through their personal computers; and (ii) access totheir assigned brokers by telephone during the Class Period.

b. Whether Waterhouse breached its covenant of goodfaith and fair dealing with its customers by failing to providecustomers: (i) access to their Trading Accounts and the abilityto purchase and sell securities through their personalcomputers; and (ii) access to their assigned brokers bytelephone during the Class Period.

c. Whether Waterhouse has acted deceptively or unfairlyand engaged in deceptive trade practices in solicitingcustomers and selling its services, including Trading Accounts,to those customers.

d. Whether Waterhouse has engaged in violations of theconsumer fraud laws of Illinois and other states.

e. Whether members of the Class have been damaged bythe inability of Waterhouse to allow members of the Class topurchase and sell securities and/or to confirm securities tradesduring the Class Period."

We agree with the appellate court that the possibility Weiss canmaintain these claims as a class action "cannot be ruled out." 335 Ill. App.3d at 884. The allegations of the complaint indicate that common issuesof fact or law may predominate. Clearly, despite his allegation that he"brings this action individually and on behalf of defendant's customers whohad brokerage accounts with defendant," Weiss represents only thoseWaterhouse Securities customers who sought to purchase securities, sellsecurities, or confirm either securities purchases or sales. For thesecustomers, the operative facts are identical. Waterhouse Securitiespromised 24-hour instant account access; class members accepted thispromise by opening accounts governed by the same agreement;Waterhouse Securities broke this promise when it experienced serviceinterruptions and delays during the class period; and class memberssuffered damages when these interruptions and delays prevented themfrom accessing their accounts to trade securities or to verify their marketpositions. These allegations are sufficient to bring Weiss' complaint withinsection 2-801(2).

We acknowledge that Waterhouse Securities raises valid concernsabout this class action. Similar concerns were recently addressed in asimilar case, Hoang v. E*Trade Group, Inc., 151 Ohio App. 3d 363,784 N.E.2d 151 (2003). In Hoang, the Ohio Court of Appeals held thatthe trial court abused its discretion in granting certification to a class ofinvestors who encountered account access problems with their securitiesbroker's online services. Hoang, 151 Ohio App. 3d at 365, 784 N.E.2dat 152. The court of appeals reasoned that, because the impact of theseproblems would have to be determined for each attempted trade, "liabilityas to each individual plaintiff's claims cannot be ascertained on a classwidebasis in a single adjudication." Hoang, 151 Ohio App. 3d at 371, 784N.E.2d at 157. However persuasive Hoang seems, it is inapposite here.Unlike the issue in Hoang, the issue in the case before us is not whetherthe trial court abused its discretion in granting class certification, butwhether the trial court correctly denied the defendant's motion to strikethe plaintiff's class action allegations. Waterhouse Securities is correct thatclass certification is improper where individual questions of factpredominate, but, we repeat, this case has not reached the classcertification stage. Waterhouse Securities is free to pursue such argumentson remand.

CONCLUSION

For the reasons that we have discussed, we deny Weiss' motion todismiss and affirm the judgment of the appellate court, which remandedthe cause for further proceedings.

Motion denied;

appellate court judgment affirmed.

1.   NYSE Rule 600(d)(iii) and NASD Code Rule 10301(d)(3) similarly prohibit a party from asking a court to compel arbitration until these same three prerequisites are met. See 2 N.Y.S.E. Guide Rs. 600(d)(iii)(A) through (d)(iii)(C), at 4311-12 (CCH 1999); Nat