Northside Chiropractic doctor Michael Dubick made the mistake of--after a cold call from salesmen--buying advertising space in Yellowbook. He negotiated for a certain kind of advertisement, but the published ad looked nothing like what he had asked for, and lacked even basic information about his business (like his name). So he sued, and added class allegations to his complaint. Yellowbook also listed his advertisement under "Massages - Non-Therapeutic," a possible crack about chiropractors at best, and solicitation of a whole different kind of client at worst.
So Dr. Dubick filed a class action against Yellowbook, and moved for certification. (Northside Chiropractic Inc. v. Yellowbook, Inc., 2012 U.S. Dist. LEXIS 122827 (N.D. Ill. Aug. 29, 2012).) Dubick's proposed class was a textbook example of a fail-safe class, including all those who:
- after being beguiled and misled by Yellowbook sales personnel with false promises and material misrepresentations;
- were fraudulently induced to make purchases of Yellowbook print display advertising, with placement of advertising in one or more Yellowbook directories distributed within the State of Illinois;
- signed sales agreements or contracts containing terms substantially similar to those signed by the named Plaintiffs;
- made complaints or claims concerning Yellowbook's failure to properly publish and provide the requested advertising services that conformed to advertising requirements that were agreed upon by such persons and Yellowbook; and
- were denied full refunds, or appropriate compensation for the damages sustained as a result of Yellowbook's failures and misconduct.
(Emphases added.) Yellowbook quite rightly argued that the class was not ascertainable, and the court agreed (adding a good discussion of the policy justifications for an ascertainability requirement). But it also went on to explain why even an amended class definition would not save the class:
- The plaintiff did not prove numerosity. Dr. Dubick pointed to evidence that Yellowbook received more than 10,000 complaints. But, as the court pointed out, there were no numbers showing how many complaints related to his specific claims that he had been promised a Early Decision Incentive Award that turned out to be valueless.
- The plaintiff did not prove commonality. Another set of claims Dr. Dubick advanced involved Return-On-Investment calculations that Yellowbook's sales reps used to persuade potential buyers. Dr. Dubick heard these calculations in his sales pitch, but, as the court pointed out, he could not prove that others heard or relied on them.
- The plaintiff did not prove typicality. Since the class definition was overboard, including anyone "misled or beguiled," it would include all kinds of alleged misrepresentations, not just those that Dr. Dubick had heard.
- The court expressed some misgivings about adequacy of counsel (most notably that they had "plainly misinterpret Walmart v. Dukes," but held that these "concerns do not rise to the level that would disqualify counsel as inadequate."
What can defense counsel take from this opinion? Lots. But most importantly, it's an excellent reminder of a point I tried to make in the Strafford CLE on ascertainability several weeks ago. If there are flaws in the class definition, they often indicate larger flaws with the class proposal.