No. 2--07--1031 Filed: 6-25-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ WILF REDO CRUZ, MATTHEW ALL BEE, ) Appeal from the Circuit Court GUADAL

UPE VAREL

A, RAUL TORRES, ) of

Ka ne Co un ty. and KENNETH JOSEPH, Individually and ) on Behalf of a Class of Similarly Situated ) Persons, ) ) Plaintiff s-Appell ants, ) ) v. ) No. 05--CH--259 ) UNIL OCK CHICAGO, I

NC., ) Honorable

) Michael

J. Colwell, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Plaintiff s, Wilfredo Cruz, Matthew Allbee, Guadalupe Varela, Ra ul Torre s, and Ke nneth Joseph, timely filed a petition for leave to appeal pursuant

to Supre me Court Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)), seeking to appeal the or der of the circui t court of K ane County deny ing plaintiff s' motion for class certification. We granted plaintiffs le ave to appeal. On appeal, plaintiffs contend that the trial court abused its discretion and relied on improper

legal standards in deny

ing their moti on for cl ass cer

tificatio n. We reve

rse and r emand the

cause w ith instructions. The following summary

of facts is taken from the allegations of plaintiffs' complaint

as well
as the evide

nce comp iled and p

resente d by

the part ies in supp ort of the

ir position s on the c lass certification. In our factual recitation, we also seek to present

the purported factual issues identifiedNo. 2--07--1031

-2-

by the parties. Plaintiffs are five current and former employ ees in the Aurora manufacturing plant of defenda nt, Uniloc

k Chicag o, Inc. Cruz wor ked for d efenda nt from Ma

y 20 02 to March 200 4. During his employment, Cruz performed as sembly line work in the tumbl er depa

rtment, a nd, at some point, Cruz became a line supervisor with certain clerica l responsibilities. Allbee was employed by defend ant from June 2000 to September 2004 in the maintenance department, repair ing and servicing defend ant's equipment. Varela worked for defe ndan t fr om May 1995 to September 2004 in the quality control department and as a tumbler, strapper, and loade r driver. Torre s is current ly employed by d efenda nt, having

begun h is employ

ment in 199 7. Torre s has wor ked in qua

lity control, in maintenance , and in the yard as a machine operator and as a strapper . Joseph was employed by d efenda nt from Ap

ril 2002 to

Septembe

r 2005 in de

fendant 's maint

enance departm ent. Plaintiffs seek to represent a class of former and current hourly

wage employees who have worked for defendant in production and maintenance positions since June 1 999. Plaint iffs assert that the proposedclass consists predominantly of Spanish-spea king persons of Mexican descent who speak English as a second language, many of whom ha

ve a limite d ability

to read a nd write b oth Spanish and English. Plaintiff

s furthe r asser t t hat the propo sed clas s is geog raphica lly d isperse d becau se many of its memb ers have

reloca ted to Mexic o or to othe

r states in the United States. Defendant

is an Aurora-based manufacturer of de corative paving stones used in, e.g. , drivewa ys, patios, and retaining walls. The paving stones are not actually stones but are fabricated from concre te int o vari ous s hapes , siz es, co lors, and te xtu res. D efenda nt's facility operate s all year, butits busiest

time coinc ides with c onstruct i on se ason--March through the middle of November
. During its peak operations, defendant employ s about 100 ho url y production and maintena nce worker s. Defend ant lay s off most of the production employees in November, at the end of the peakNo. 2--07--1031

-3-

season. Defendant usually rehires most of the laid-off production employ ees in the follow in g March, when the peak season begins ag ain. During its peak season, defendant's fac ility operates 24 hours a da y, 6 day s a wee k, in 2 shifts: predomin antly

a 6 a.m. to

6 p.m. shi ft, and a 6 p.m. to 6 a.m. shift. Some employees w ork
on a different schedule but maintain the 12-hour shift structure. Employ ees are given a

one-half hour lu nc h p er io d d ur in g t he da y, s o t he y re ce iv e w ag es fo r a n 1 1. 5- ho ur wo rk da y. Plaintiffs assert

that, before this suit was filed, defendant had a rule a nd a uniform practice that employees we

re required to be at their work areas 10 to 15 minute s before

the start of their s hift. Plaintiffs allege that this was to allow the workers from the previous shift to brief the workers from the next shift about any

events th at had oc curred

during t he previ ous shift. Plaintiffs also assert that employees were required to wear uniforms at their work stations and that they ty pically would arr

ive 15 to 30 minutes before the scheduled start of the shift t o chang e into the

ir unifor ms and still

make it to the work area

10 to 15 minu

tes befo re the sc heduled s tart of th

e shift. Accordin g to plaintiffs, this preshift time was recorded by defendant but it was not counted as compensable time. Defendant

purports to controve

rt plainti ffs' a ssertions . Defen dant asse rts that there was no ruleor practice that employees we re expected to arrive at their work areas befor e the scheduled beginning of the shift. Defendant also asserts that there was no mandatory briefing of the

next shift by the previous shift. Instead, defe ndant asserts that employees, of their own volition and in order to begin their shifts on time, would typica lly arrive a

t the facility any

where from 10 to 30 minutes before the start of their shift. Employees would punch in, talk, eat, drink coffee, read the ne wspaper, and otherwis e wait for the beginning of their shift. The y did not perform any

work before the beginning of

the shift even though they had already

punched in. Defendant asserts that employ eesNo. 2--07--1031

-4-

knew that they could punch in whenever they

wished because they

understo od that the

y w orked on

ly their scheduled times. Defendant implemented grace periods f or punch ing in to a ccount f or the ea rly punches , but not all of the e mploy ees wer

e subjec t to the g

race pe riods. Defendant

also asserts that its policy reg arding uniforms was different from what plaintiffs portraye d it to be. Defendant states that it did not require each employ

ee to wear a

uniform but that any employee wa s allowed to wear a uniform if he chose to do so. Defendant also disputes that employees had a co nsistent pr actice of chang

ing into u

niforms- -defendant cla

ims that som

e employees chang ed into the ir unifor ms at home a

nd wore t hem to wor

k and some

wore the uniforms homeat the end of the day . Defendant also asserts that many employees cha

nged into their uniforms
on the clock. Defendant

illustrates this point with excerpts from the depositions of plaintiffs Allbee, Varela , a nd Torre s. Defe ndant poin

ts to Allbe e's de

position te stimony

that he, a

long with "most maintenance guys," "had a set of uniforms." Accor ding to Allbee, th e m ai nt en an ce wo rk er s " al wa ys
wore a different change of clothes, but it was never the uniform. " Vare la and Torr es testif ied in the ir de po si ti on s t ha t t he y ch an ge d o ut of th ei r u ni fo rm s o n t he cl oc k a t t he en d o f t he da y. Plaintiffs assert that the end -of-s hift requirements were a mirror imag e of the preshift require ments. According to plaintif fs, employ

ees wer e not per mitted to le ave thei

r work a reas unt il they were re lieved by the next shif

t. They were re quired to clean up the work area a nd partic ipate in briefing the next shift. After this was accomplished, they were a llowed to wash u p and c hange outof their dus ty a

nd dirty uniforms. Occasio nally , accor ding to plaintiffs, employees would stay lateat their work areas, working, but any time rec orded after the scheduled end of the shift wa s not counted as compensable time.No. 2--07--1031

-5-

Defend ant, by contrast, asse rts that employees were paid for any after-shift work. Further, according to defendant, employees finished working at the scheduled end of the shift and, in many instance s, stopped working a few minutes before the sc hed ule d end of th

e shift. D efenda

nt also asserts t hat emplo ye es were

not requi red to wa it for the next shift' s employ

ees to re lieve the m. Defendant

also note s that empl oyees were given c leanup du

ties for t heir work areas, but the clean ing wor k was completed well before the scheduled e nd of the shift. Defendant asserts that cleaning up the conc

rete an d other ma

terials used in its manufac turing p rocess t ook a con siderab le amount of time. Defendant asserts that the cleanup work wa s performed on the clock and that employees were pa

id for all of the cleanup time. Cleanup, according to defendant, ty pically started about two hours before the end of the shift. After the cle aning was finished , employ ees coul d wash (and cha nge the ir clothe s, if they

desired) and the

n they restart ed the ma chines f or the ne xt shift. Accord ing to pla intiffs, employees re gularly were required to cut

short their lunchtimes or to wo rk thr ough t heir l uncht imes. Empl oyees were n ot pai d for t heir l unch b reaks. Accord ing t o plaintiff s, defenda

nt had pro gramme d its timek eeping sy stem to deduct automatically 30 minutes from each employ ee's daily

time to ref

lect a lunch break. Plaintiffs assert that an employ ee who worked during his lunchtime was not paid for that time. Defendant

agrees that the 30-minute lunch period was uncompensated. However, defendant asserts that all employees we re provided with their full 30-minute lunch breaks. Defendant denies that there was a practice of requiring employees to w ork durin g all or part of th

eir lunc h breaks
. Defendant

asserts that, if an employee took a short lunch and began working ag ain, he was paid for the extra time. Defendant also asserts that the time records did not alway s reflect the actual lunch period taken by an e

mployee, as many

employees would punch ba ck int o the timekeeping sy stemNo. 2--07--1031

-6-

in the middle of t heir lunc h breaks so that they w ould not forget to do so when their lunch breaks ended. Defendant also asserts that, likewise, many employees would for

get to punch in or out

for lunch. Plaintiffs assert that defendant maintained a single timekeeping and pay

roll system for all of its hourly production and

maintenance employ ees. All employee s were subject to the same policies and rules. Ac cording

to plaintif

fs, none of the plant employees had very muc h knowledge about the time records and most of

them had never se en their time records. During the time period cover ed by plaintiffs' allegations, plant employ ees were required to punch in an d out accurately , including during the lunch period. Plaintiffs concede that the time records kept bef ore this actio n was filed
were generally

accurate rega

rding the compensable time worked by plant employees. De

fendant does not sp ecifica

lly c ontrover

t plaintif fs' ass ertions. Plaintiffs assert that defendant programmed a nd designed the timek e eping sy stem. According to plaintif

fs, the sy stem has a

"presh ift defa ult" that automatic ally

disreg ards and

deducts up to 30 minut es of recorded time before the sche duled start of the shift, a "postshift default" that automatic ally

disregards and deducts up to 15 minutes of recorded time after the schedule d end of the shift, and a "lunch default" that automatically deducts 30 minutes for lunch regardless of whethe r employees actually

worked d uring th eir lunc h breaks . The def

aults app lied to alm

ost every pr e-2005 employee. Plaintiffs assert that the defaults were create d in order to "for ce [the] em

ploy ee's [ sic ] to f it within the

11.5 hour s [daily ] budget. " Defe ndant did not specif

ically provide a

ny f actu a l statemen ts or evid ence to c ontrover

t plaintif fs' ass ertions. Plaintiffs assert th at, in addition to the aut omatic defaults programmed into the timekeeping sys tem, defendant manually edited the time records. Plaintiffs assert that manual editing would beNo. 2--07--1031

-7-

used when an employee punched into the system e arlier than 30 minutes before the scheduled start time. Plaintiffs assert that defendant ha d a practice a nd pattern of manually editing the proposed class 's time rec ords and t hat this ed

iting ap plied equ ally

to almost a

ll pre-20 05 employ

ees. A ccording to plaintiffs, the plant manager would have the time rec ords printed out every w eek i n order to make e dits to the t

ime reco rds. Plain

tiffs e sti mate that the plant manager would make between50 to 55 ed

its for ea ch pay period by

crossing out t ime recorded for employ ees on the printout. An administrative assistant would change the time records in the c o mpute rize d timekeeping sys tem. Afte r the cha nges we re made to employ

ees' tim e recor ds, the (now edited) records would be sent to defendant's pay roll ser vice provider, who would then pay the employees basedon the edi

ted time r

ecords. Plaintiff

s assert t hat defen dant's editing affected a ll plant employees, no matter

the department or the pay classification. Defendant

disputes plaintiffs' assertions, justifying the necessity of editing the time records to adjust fo

r the laxity

of its timek

eeping practic es and the

ir regu larity of employ

ees' p ractice s. According to defendant, it e dited the time rec ords in or

der to make the

m accur ately reflec t the time that employees actually worked. Defendant asserts that the edits added missing punchesor deleted extrapunches. Edits both added and took away compensable time. Defendant asserts that its review of "all of the edits over the

years r elevant to this case established that, as a whole, the edits involving time ad ju st me nt s a ct ua ll y increased the time wo rked, and that [defendant's] employees were not actually shorted a

ny pay ." (Emphasis in original.) Plaintiffs assert that, following the instigation of this case, defendant implemented a new timekeeping policy, effective June 24, 2004. According to plaintiffs, plant employees ar e required to punch in a

nd out within seven minutes of the beginn ing and the end of their shifts (the seven-No. 2--07--1031

-8-

minute rule), and defendant no longer a utomatically deducts 30 minutes for their lunch bre aks. Plaintiffs assert th at, when defenda nt first implement

e d the seven-minute rule, it instructed employees not to punch in more th an seven minutes be

fore the beginn ing of th e shift an d not to punch out more th an seven minutes af

ter the e nd of the s hift. Accord

in g to plaintiffs, defendant modified the timekeeping system to prevent it from recording time morethan seven minutes before
a s hift begins and mor

e than se ven minute s after a

shift end s. Plaintif

fs concl ude that t he se ven minute rule "results in a rounding practice that almos t alway s inures to the benefit

of the employer ." Defendant

did not provide any fa

ctual recitation or evidence that specific ally

responded to plainti ffs' allega tions. Plaintiffs further assert that, since the implementation of the seven-minu te rule, employ

ees' work routines remain the same. According to plaintiffs, any pre- or postshift work, inclu ding donning and doffing uniforms and washing up, is done off the clock, either before punching in at the start of the shift or after punching out at the end of the shift. Plaintiffs further assert that it is now defend ant's ex pl ic it po li cy n ot to pa y e mploy ees for donning or doffing their unif orms or work clothes. Defend ant does n ot specif ically reply to these a ssertions
. Plaintiffs instituted

this action in

order to recover wages alleg edly not paid for time worked and to recov er over

time wag es alleg edly

not paid f

or work in

excess of 40 hours a week. Plaintiffs alleged that these

claims cover ti me periods from June 1999 through the present day . Plaintiffs alleged that defendant's conduct

violated the Illinois Wage Pay ment and Collection Act (82 0 IL CS 115/1 et seq. ( West 2004)) and the Minimum Wage Law (820 I LCS 105/1 et seq. (West 2004)). Plaintiffs also mo ved to certify a plaintiff class consisting of all current and forme r employees ofNo. 2--07--1031

-9-

defendant who were pa id hourly. Plaintiffs contended that the c lass contained more than 300 persons. The parties submitted evidence and argument on the motion to c er ti fy the class. The trial court denied plaintiffs' motion for certification. I t considered the evidence submitted by both parties and determined that plaintiffs had failed to demonstrate any of the elements of numerosity, c ommon questions of fact or law, predominance of common q uest ions, adequacy

of representation, or appropr iatenes s of a cla ss action

to fairly and efficiently

adjudicate the controversy
. Considering the
nume rosity requirement, the trial court ruled that plaintiffs had established that no more than 10 employees had claimed

to have beenharmed b y de fendant 's compe

nsation a nd timeke eping p olicies. Sp ec if ic al ly, the trial

court de termined that, whil e defendant req uired em ploy ees to be pre sent 10 to15 minutes before the start of their shift, it also allowed them to leave 10 to15 minutes before the end of their s hift. The

trial cou rt also fo und th at many

emplo ye es believed that t hey were pa id
corr ectly for the hours they

worked. Further, considering a n expert witness's report, the cour t concluded

that the manual edits of time records increased employ ees' compensable time and that employees were not actually shorted an y pay . Th e trial c ourt fur ther det ermined that plain

tiffs'
a llegat i ons concerning the geog raphical distribution of the proposed class, the knowledge a nd sophistication of the pr

oposed c lass members , the amou nts of the claims of

the individ

ual clas s members, and the nature of the ca use o f action were not germane, be cause plaintiffs had not demonstratedthe existence of a class size of between 25 and 40 members but, instead, had demonstrated that not even as many as 10 employees ha

d been harmed. The trial court concluded that plaintiffs' proposed class did not satisfy the numerosity prer

equisite.No. 2--07--1031

-10-

The trial c ourt also held that common questions of fact or law did not predominate ov e r questions affecting the individ ual clas s members. The tria l court de termined that def endant' s time records would

show only that an employ ee's time was edited

and would not show that the time had been properly or

improperly edited. F

urther, the trial court held that plaintiffs had not established the existence of a company -wide po licy conce r ning wearing uniforms or working through lunch. It concluded that the successful adjudication of plaintiffs' c laims would not establish a right of recovery for the unnamed members of the class and that the level of individu alized proo f to determi ne whether

an individ

ual emplo ye e was ha

rmed at a

ll would ove

rwhelm a ny p ossi bl e
common issues of fact or law. Accordingly , the trial court held that commonality and pr edominance were la cking. The trial court also held that adequacy of representation was lacking. One of the named plaintiff s, Cruz, held a supervisory position. The trial cour t noted that super vi so rs ma y b e inapprop riate as named

plaintiff s becaus e of conf

licts betw een them

and hour ly e mp loyees and because supervisors may be the

cause of class members' complaints. The trial court noted that there
was evidence that supervisors would roust hourly employees and

force them to their work areas 10 to 15 minutes before the sched ul ed start o f their sh

ift. The t rial cou rt held tha

t, becau se of this potential conflict of interest between supervisors and hourly employees, the na

med plaintiffs were inadequa te to represent the interests of the class. Further, the trial cou rt held that, because plaintiffs had failedto show numerosity and commonality and predominance of common questions of fact or law, a class a

ction would be an in appropr iate mea ns by which to r

esolve the issues in

this a ction
. Accord ingly , the tria

l court de nied plaintiffs'

motion to ce

rtify the clas s.No. 2--07--1031

-11-

Plaintiffs filed a timely motion for lea ve to appeal pursuant to Supreme Court Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)). We g ranted the motion and now consi der plai ntiffs' contenti ons on app eal. On appeal, plaintiff

s contend

that t he trial court abused its discretion or applied impermiss ible legal c

riteria in deny in g the mot ion for class certification. Plaintiffs assert that the trial court imp roperly made findings of fact and improperly assessed the credibility of witnesses regarding disputed facts, making rulings that determined the mer its of plaintiffs' claims. Plaintiffs also contend t

hat the tr ial cour t's dete rmination on each of the cl ass prer

equisites(nume

rosity , co mm on al it y, adequa

cy of repr esentat ion, and a

ppropria teness of a class a ction) wa s errone ous. Plaintiffs also argue

that the trial court erred by failing to address or rule uponplaintiffs' post-sevenminute-r ule claim s. As an initial matter, we consider the stand ard of ou

r revie w, noting

that the p arties sh arply disagree on the role o f the tria

l court in p assing u

pon a motio n for cla ss certif ication. Plaintiff

s, relying upon some Illinois authority , argue that the trial court must take their allega tions a s true. Defend ant, relying

upon federal authority , argues that the trial court may c onduct limited inquiries into the factual record pertaining to cla ss certification. The parties agree about the basic f ramework governing

class certification. Section 2--801 of the Code of Civil Procedure (Code ) sets fort h the req uiremen ts neces sary

to maintain a class action: "An action may be ma intained as a class action in any court of this Stat

e and a p arty may sue or be sued as a repres entative

party of the cl ass only

if the court finds: (1) The class is so numerous that joinder of all members is impracticable.No. 2--07--1031

-12- (2) There are questions of

fact or law common to the class, which common questions predomin ate over

any questionsaffec ting only

individua

l members
. (3) The representative parties will fairly and adequately

protect the interes t of

the class. (4) The class action is an appropriate method for the fair and efficient

adjudication of the controversy ." 735 IL CS 5/2--801 (West 2006). Section 2--801 is patterned after Rule 23 of the Federa l Rules of Civil Procedure and, bec ause of t his close relationship between the state and federal provisions, "federal decisions interpreting Rule 23
are persuasive au thority with regard t o question s of class cert ification in Illinois. " Avery v. State Farm Mutual Automobile Insurance Co. , 216 I ll. 2d 100, 1 25 (2005) . The pro ponent of the clas s action bears the burden to establish all four of the prerequisites set forth in section 2--801. Avery , 216 Ill. 2d at 125. The decision regarding c lass certification is within the discretion of the trial court and will notbe disturbed on appeal unless the trial court abused its discretion or applied impermissible legal criteria. Smith v. Illinois Central R.R. Co. , 223 Ill. 2d 441, 447 (2006). The trial court's discretion regarding the ce

rtification of a class is not without limits; the trial court's discretion is bounded by and must be exercised within the framework of the rules of civil pr

ocedure gover ning cla ss action s. Smith , 223 Ill. 2d at 447. The scope of appellate review is limited. Health Co st Controls v. Sevilla , 365 Ill. App. 3d 795, 805 (2 006). The appellate court is limited to an assessment of the trial court's e xerc ise o f dis cretion; the appellate court cannot indulge in an independe nt, de novo evaluation of the fact s alleged and the facts of record

to justify class certifica

tion. Health Co st Controls , 365 Ill. App. 3dNo. 2--07--1031

-13-

at 805. In reviewing

the trial court's decision on the question of cl ass cer

tificatio n, the app ellate court "is only to assess the discre tion exercised by the trial c ourt and may not instea

d assess t he fact s of the case and con clude for it self that a cas e is well-su ited for a clas s action." Health Co st Controls , 365 Ill. App. 3d at 805. Where, for example, the trial court has denied class certification, in order to reverse, the appellate cour t would hav e "to find that no other reasonable conclusion could be reached but that a cl ass action w ould be appro priate." Health Co st Controls , 365 Ill. App. 3d at 805. The parties are divided

regar ding the scope of the trial court' s inquiry . While plaintiffs not e that the trial court is to

conduct a

rigorous analy sis o f the certification issue, plaintiffs rely upon Clark v. TAP Pharmaceut ica l Products, Inc. , 343 Ill . App. 3d 538 , 545 ( 2003) , citi ng Johns v. DeLeonardi s , 145 F.R.D. 480, 482 (N.D. Ill. 1992), which states that the trial court is to accept the allegations of the complaint as true. The appellate court in Clark did no t expla

in why , in or

der " [t]o determine whether the proposed class should be certified, the c our t accep ts the allegations of the complaint as true." Clark , 343 Ill. App. 3d at 544-45. The cour t's factual rec itation doe s not entir ely clari fy the procedural posture of the case; howe ver, the court reference s evidence take n fro m depositions and affidavits and not solely from alleg ations in the plaintiff's complaint in setting forth the facts of the case. Clark , 343 Ill. App. 3d at 542-43. Thus, Clark

appear s not to actually follow its own statement that the allegations of the complaint be taken as true. Defendant

contends that

the trial court must be allowed to conduct a factual inquiry into the proprie ty of class certification based on the evidence contained in the record a t the time certification is sought. In su

pport of its conten

tion, def endant c ites Szabo v. Bridgeport Machines, I nc. , 249 F.3d 672 (7th Cir. 2001). Szabo explained:No. 2--07--1031

-14-

"The proposition that a district judge m ust acce pt all of the complaint's allegations when deciding whether to certify a class cannot be found in Rule 23 and has nothing to recommend it. The reason why

judges accept

a complaint's factual allega tions when ruling on motions to dismiss under Rule 12(b)(6) i s that a motion to dismiss tests the legal sufficiency of a plead ing. Its factual sufficiency will be tested lat er -- by a motion for summary judgment under Rule 56, and if necessary

by trial. By contr

ast, an order certify

ing a class usually

is the districtjudge' s last

word on the subjec t; there i s no later test of the decision's factual premises (and, if the case is settled, there could not be such an examination even i f the d istr ict j udge viewedthe certification as provisional). Before deciding whether to allow a

case to proceed
as a class action, therefore, a judg e should make whatever factual and leg al inquiries are necessary under Rule 23." (Emphasis in original.) Szabo , 249 F.3d at 675-76. Szabo fu rt he r d is cu ss ed th e s co pe of th e f ac tu al in qu ir y: "Questions such as these require the exercise of judgment and the appli cation of sound discretion; they diffe r in kind fromlegal rulings under Rule 12(b)(6). A nd if some of the considerations under

Rule 23(b)(3), such

as 'the difficul ties likel y to be encountered

in the management of a class action' , overlap the merits--as they do inthis case, where it is not possible to evaluate impending difficulties without makinga choice of law, and not possible to make a sound choic e of law without dec iding whether B ridgep ort auth oriz ed or ratified the dealer s' repr

esentat ions--the n the judg e must

make a pr eliminar y inquiry into the merits." Szabo , 249 F.3d at 676. Szabo concluded its comments on factual inquiries, noting that, " [w]hen jurisdiction or venue depends on contes ted fac ts--eve n facts c losely

linked to th e meri ts of t he clai m--th e dist rict j udgeNo. 2--07--1031

-15-

is free to hold a

hearing and resol ve the disp ute before all owing the case t o proceed." Szabo , 249 F.3d at 676-77. In c onsidering the issue of whether the trial court may conduct a factual inquiry, w e disco v ered

cases supporting each party 's position. For example, Rami rez v. Midwa y Moving & Storage, Inc. , 378 Ill. App. 3d 51, 53 (20 07), q uoti ng Clark , 343 I ll. App. 3d at

544-45, s tated tha

t,

" '[t]o determine whether the proposed class should be certified, the court accepts the a llegations of the complaint

as true.' " L

ike Clark , however, Ramirez offered no further analy sis of why the trial court should do this. In its discussion of commonality a nd predom inance, Ramir ez offered the following :

" 'Determining whether issues common to the class pr edominate over ind ividual issues requires the court to identify the substantive i ssues tha

t will contr

ol the outc ome, asse ss which issues will predominate, and then determine whether these issues are common to the class. [Citation.] Suc

h an inquir

y r equiresthe cour

t to look be

yond the plea

dings t o understandthe claims, defenses, relevant facts, and applicable s ubstanti ve law.' " Ramirez , 378 Ill. App. 3 d at 54 -55, q uoti ng Smith , 223 Ill. 2d at 449. Th i s recitat

ion of the

law surr ounding the commo nality

and pred

ominance element o f class certification would seem to call for a more sear ching inquiry a

nd, potentially, some sort of factual determination. Ramirez , then, is not entire ly clear a nd consistent in its suggestion that the allegations of the complaint be accepted a s true in resolving a motion for class certification. On the other hand, in Enzenbacher v. Browning-F err is In dustries of Illinois, Inc
. , 332 I ll. App. 3d 10 79, 1084 ( 2002), thi s court e xplained:No. 2--07--1031

-16- "The appropr

iate way to deter mine whet

her to ce rtify a class isby a

motion for

class certification. At the time such a moti on is presen ted fo r heari ng, the trial court may c onsider any matters of law or

fact pr operly present ed by the rec ord, incl

uding ple adings, depositio ns, affida vits, answers to interrogatories, and any evidence adduced at hearing on the motion." Likewise, in Brown v. Murphy , 278 Ill. App. 3d 981, 989 (1 996), quot ing Gordon v. Boden , 224 I ll. App. 3d 195, 199(1991), t he court stated tha

t, in deci ding whe

ther toce rt if

y a class, the court may
cons ider " 'an y ma tters of f act or la w proper ly p resente d by

the rec ord, incl

uding the ple adings , depositio ns, affidavits, answers to interrogatories a nd any evidenc e that may have been adduced at hearings.' " These cases too, however, off e r littl e in the way of

explanation as to why the court should do this. Additionally, we note that the Clark

- Ramirez line of case s appear s to exist sep arately from the Enzenbacher

line of cases and that

neither line appears to acknowledge , let alone question, any elements of the statements of law in the other. Thus, neither line provides a particularly forceful rational e for its adopt ion. On the other hand, Clark 's st at em en t o f t he la w s ee ms un du ly c ur so ry, while Szabo takes the time to explain why the trial court ca nnot unreflectingly

accept the allegations of the complaint as true. Having considered the argume nts and authorities presented by the parties, as well as our own research, we belie

ve that Szabo providesa sound a nd coge nt explana

tion of why

the trial court is to look beyond the allegations of the complaint when a party seeks class certification. Enzenbacher , 332 Ill. App. 3d at 1084, appears to imply that it hasadopted t

his idea ev en if

it is si le nt as to wh y. Given th e reasoned and thoughtful explanation in Szabo versus the cursory and unexplained statement in Clark , w e c ho os e t o f ol lo w t he gu id an ce su gge st ed by Szabo . Accordingly , we hold that the trial court may c onduct any fa ctual inquiry nece ssary to resolve the issue of cl ass cert ificationNo. 2--07--1031

-17-

presented by the r e cord. However, we emphasize that the trial court' s discretion is limited to an inquiry " 'into whether [the] plaintiff is asserting a claim which, assuming its merits, will satisfy the require ments of [section 2--801] as distinguished from an inquiry into the merits of

[the ] pla inti ff's particular individu al claims. ' " Szabo , 249 F.3d at 677, q uoti ng Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130 , 657 F.2d 890, 895 (7th Cir. 1981). Thus, the tri a l court is n ot to determine the merits of the complaint, but on ly the propr iety of class ce

rtification, and its factual inquiry and resolution of fa ctual issues is to be limited solely to that determination. Stating the rule, how ever, isonly the first step; we m

ust impleme

nt the rule , too. While

the parties have cited

no authority

illustrating how th

e factu al inquiry

surround ing cla ss certif

ication is to be conducted, certain of the federal circuit cour ts of appeal have provided us with guidance. For example, Szabo is exceed ingly clear th at a

trial court need not accept a plaintiff' s assertion that the class size is 10,000 where the evidence shows it to be only 10. Szabo , 249 F.3d at 676. It is the trial court 's proper role to resolve such a dispute. L ikewise, in In re New Motor Ve hicles Canadian Export Antitrust Litigation , 522 F.3d 6 (1st Cir. 2008), the court acknowledged that " weighing whether to certify a plaintif f class may inevitably

overlap with some critical assessment regar ding the merits of

the case ," but it ju stified th is overlap by r

easoning that "[i]t would be contrary to the 'rigorous analysis of the pre requisites established by

[section 2--801] before certify ing a class' to put blinders on as to an issue

simply because it implicat

es the me rits of the case." Canadian Export , 522 F .3d at 17, quot ing Smilow v. Southwestern Bell Mobile System, I nc. , 323 F.3d

32, 38 (1s t Ci r . 2003). The court cautioned, however, that, wh ile the tri al cou rt is requi red to make fi ndin gs regarding the class c ertification issue, theNo. 2--07--1031

-18-

"use of the term 'finding s' in

this c onte xtshoul d not be con fused with bind ing fin dings on the merits. The judge's consideration of mer its issues atthe clas s certif ication st age pe rtains on ly to that stag e; the ultimate factfinder, whether judge o r jury , must still reach its ow n determinat ion on thes e issues." Canadian Export , 522 F.3d at 24. We also note

the dang er of allowing a

defenda nt to assist in de

termining class certifi cation, b ecause it is "a bit like permitting a fox, although with a pious countenance, to take charge of the chicken house." Eggleston , 657 F.2d at 895. Following

theseguidelines, we will therefore car efully consider whether the trial court's determinations were limited to the issue of class certificationor whether they impermiss ibly

stray ed into re solving t

he meritsof plainti ffs' c laims ag ainst def endant. We turn to pla

inti ffs' content ions on appeal. Plaintiffs first contend that the trial court improper ly decided the merits of certain fact ual issu es. This c ontention , howeve r, essen tially coincides with plaintiffs' specific co ntention t hat the trial court ruled improperly regarding
nu me ro si ty. Thus, rather than split our discussion into parts, we will addr ess plaintiffs' general contentions regarding fact finding (which are al l related to numerosi ty i ssues) to gether

with plain

tiffs' sp ec if ic co nt en ti on re ga rd in g t he tr ia l c ou rt 's ru li ng on nu me ro si ty. Ac co rd in gl y, we turn first to plaintiffs' general contentions about imper miss ible f act fi ndin g. Plai ntiffs initially challenge the numerosity determination with instance s of general and impermiss ible fact finding on the part of the trial cour t. Plaint iffs contend that the trial court conclusi vely

determined that employees were required to be at their work stations 10 to 15 minutes before their sch eduled st arti ng times. According to plaintiffs, the trial court also dete rmined that employees wh o w er e a t t he ir st at io ns ea rl y al l l ef t t he ir st at io ns a s im il ar nu mb er of mi nu te s e ar ly. Plaintiffs furthe r cont end th at the trial court impro perly cred ited d efenda nt's ex pert w itnes s'sNo. 2--07--1031

-19-

conclusion that "employees as a whole were not shorted pay ," and improperl y concluded that the plant manager che cked with the super

visors to d

etermine whether each em ploy ee had a

ctually workedthe time a

ppearin g in the t ime records. Plaintiffs argue that these issues were prope rly the provinc e of the finder of f act at tr ial and should not ha

ve been decided at the cla ss certif

icati o n stage. We agree. We begin by

analyzing the tria

l court's ruling on numerosity in light of plaintiff s' ge neral factfinding contenti ons. The trial court began i ts con sider ation of num erosi ty by first no ting ea ch part y's position--plaintiffs asserted that the proposed class contained at least 200 to 300 member s; defendant asserted that it was much smaller. The trial court then reviewed the evidence submitted reg arding the compositio n of the c lass. The trial court noted, in that context, that the "early arrival policy" was "appar ently accomp anied by an 'early out poli cy' " and reco unted depos itio n test imon y and plead ings that supported the existence of an "early out policy." The issue with the early- out policy, however, is whether

the clas s membersaffec ted by it were t hrough working at the point they

left thei r stations , or whether they

still performed work functions by washing up, or

changing their uniforms. The trial court also accepted as conclusive defenda nt 's e vi den ce o n t he e xi st enc e of an e arl y-ou t p ol icy. In
our view, then, the trial court erred in assessing pretrial the e ffect of the early -out policy, as it bears directly on the issue of w hether the proposed class was not fully paid for its time. Also, in attem ptin g t o ascer tain the si ze of the p

roposed c lass, the

trial cou rt noted th at a number of employees'

affidavits submitted on the motion f or class certification indicated that they believedthat they

had bee n paid cor rectly for the time they

worked. The tria

l court c oncluded

that, rather t han a class size of 200 to 300, the evidence supported a class size of no more than 10 employees expressly claiming to have been harm ed by defen dant's policies. The trial courtNo. 2--07--1031

-20-

confirmed

this conclusion by

referring to the report of de fendant's expert witness, which concluded that there was no sound statistical evidence containe d in the time records to support the allegation that defend ant's employees we re required to work off the clock or we re shorted compensable time. This too, intrudes upon ultima te questio ns. The tr

ial cour t viewed t he appro ximately

30 affid avits defendant s ubmitted, indicating that the affia nts believed themselves to have been fully compensated,
as meaning

that the r est of the 160 to 260 or so class members who had not been asked to submit any evidence must also ha

ve believed thems elves to have been fully

compensated. Likewise, the expe rt's
co nclusion that the employees, a s a whole, had not been shorted time, begs the question whether plaintiffs and any

other individual class members were shorted time and compensation. The issue to be resolved here

is not whether

defendant's employ

ees in general had been f

ully compensated, but whether a sufficient number had not, making their joinder in the action impracticable. Neverth eless,
we recog nize that it

is plaintif

fs' bur den to demonstrate the existence of the elements necessary

for class certifi cation. I

t is the tria

l court' s burden t

o resolve factua l issues pe rtaining to those elements
. We hold that, in some

of its factual determinations, the trial cou rt crossed the line

into the ult

imate issues of plaintiff s' compl aint. The conclusion regarding the purpo se of the

edits tothe time c ards is a lso an intr usion into the ultimate merits. At this point, the issue is not why they changed, but, rather, were they chang ed. The parties c an then e

xplain why

at trial. Further , if

plaintiffs demonstrate that everyone was subject to editing, then they

would appear to have made a rea sonable case that the clas s i s suffici ently
numerous . The trial court erred in resolving the why

of this issue rather than determining whether there existed a policy to edit time.No. 2--07--1031

-21-

Next, we consider plaintiffs' specific contentions conc erning numerosity . Plaintiffs contend that the trial court

either applied impermissible legal standards or abused its discre tion by ignoring critical evidence regarding each of the four elements necessa ry to support class ce

rtification and identified in section

2--801. With respe ct to nume rosity , plaintif

fs argue that t

he trial co urt
errone ously

determined that the proposed class wa s insuffic iently

numerous to support a class action and to make joinder impracticable. Plaintiffs specifically c

hallenge the trial court's deter mination in four re spe cts. Fir st, plaintiffs argue that the trial court er roneousl y r equired that eac h class me

mber must

believe or be
awareof his injury in order to be include d in the proposed class. Second, plaintiffs contend that the trial court erroneously c oncluded that th e e ar ly- ou t p ol ic y ac te d a s a n o ff se t t o t he ea rl y-i n p ol ic y, thereby relieving defendant of liability for the early -in policy. Third, plaintiffs contend that the trial court erred in crediting the report of de fendant's expert witness and in using it to determine that members of the proposed class had not been underpaid. Last, plaintiffs contend that the trial court di d n ot co ns id er al l t he ev id en ce in th e r ec or d i n r en de ri ng it s d ec is io n r eg ar di ng nu me ro si ty. We do not precisely a

ddress ea ch of t he specific points raised by plaintiffs, because we believe a few examples will demonstrate the errors in the trial court' s analysis. For the first example,
we note that plaintiffs submit time sh eet evid ence, th eir exhibit

T from the

ir motion f

or class certification, to demonstrate that upwards of 90 employees were de nied cor re ct ov er ti me pa y. Defendant

do es no t exp ressly controve rt exhibit T. Instead, defendant, conclusorily , argues that plaintiffs manipulated the time sheets to reach their conclusion concer ning the unde rpayment of overtime wage s. If

the trial court we re to re solve this d

ispute, then defe

ndant would have to demonstr ate how plain

tiffs man ipulated the data or offe r a compe

ting exhib it that expr

esslyNo. 2--07--1031

-22-

demonstrates the error of plaintiffs' claims. Tellingly , defendant does not do th is . In its appell ate response brief, defendant do es not cit e to any submission it made that might controve rt either plaintiff s' conte ntio n or th eir con clusi on st emmi ng from their exhi bit T . Con trary to d efenda nt's argume nt, we believe that the existence of 80 to 90 employee s who have been de nied full o vertime wages in one pay

period c ertainly

supports a finding of numerosity
. Further, both sides in this appeal appear to be comf

ortable with the id

ea that o ne general exa

mple sugge sts that oth

ers may exist too. Based on the fac t that 80 to 90 pers ons can b e identif ied as ha ving be en denie d their fu ll compensation in one pay per iod, it would not be unreasonable to believe that others in other pay periods may

also exist. Defendant points to nothing in the record to refute this reasoning. The trial court should, therefore, have

determined that pl aintiffssatisfie d the nume rosity require ment, and its failure to do so amounts to an abuse of discretion. Our next example is the approximately 30 affidavits defendant submitted to oppose c lass
c ertification. The trial court drew from them the conclusion that the approximately 30 affian t s represented

that they had bee

n fully com

pens ated, because they

checked their pay

stubs and the amounts they

had bee n paid we re accurate a

ccordin g to the numbe

r of hour s they

purporte dly

worked
as reflec ted on the

pay stubs. This , however, begs the question of whether the time reflected

on the pay stubs was accurate. At most, it suggests that the a ffiants believed they

worked 11.5 hours every day and wer e paid ac cordin gly . It does not a nswer the question o f whethe

r the time was prop erly recorded and attr ibuted to ea ch affi ant. Thus , each a ffiant' s belief t

hat he ha

d been fu

lly compensated

does not really he

lp to determine if defendant's timekeeping polici es inured to the benefit or detriment

of its empl oyees. The trial court erroneously accepted the affidavits as serving to undermine plaintif

fs' allegations of numer

osity . Additiona

lly, based on

the roug hly 30 defendant-No. 2--07--1031

-23-

submitted affidavits, the trial court improperly concluded that those employees had not beenharmed by its timekeeping policies. The most the trial court was entitledto conclude was that the a ffiants
w ere unaware of the effect of the policies. Evidence in the record establishes that few e mployees had access to or understood the weekly time cards. The affian

ts' beli ef that th

ey had bee n fully paid does not answer the question of whether all of their time had bee n counted. Ad di ti on al ly, we are troubled that the trial court wo uld accept only e

xpress statements of harm as sufficient to qualify a n employee for

class membership. If, as is supported by the rec ord, employees didnot review their time cards, then they cannot know if they w ere credited for all of the hours worked. Verify

ing thei r pay based on the

hours reflected on their pay stubs is a mechanical calculation, but it

does not shed any lig

ht on the ultimate question of whether all of the compensa

ble time was included on each employ ee's pay stub. The trial court erred in conclu ding that the defenda nt-submitt

ed affi davits fo

reclose d plaintif

fs' ce rtifica tion attem

pt. Another example is t

he trial c ourt's d

etermina tion of the

effec t of the " appare

nt" early- out po li cy. The trial court first determined that the evidenc e established the existence of an early -in policy for the production and maintenan ce employ ees. This would appear to support a finding of numerosity. Then, based on three depositions (one was of defenda nt's former

plant manager), the trial court concluded that

defendant had a

reciprocal early -out policy that canc eled any a nd all harm attributa ble to the earl y- in policy . Wefind that t his is a conclusion o n the ultima te merits of the ca se and thus imper

missible. T

he effect of the

early -in and e arly -out polic ies is pre cisely what plaintiffs
are attemptin g to litig ate through the vehic le of a c lass acti on suit. Fo r the tria l court to conclude that the early -out polic y nullifies a ll harm fr om the ea rly -in policy

improper ly u surps the

role of the trier of fact. Further, in concluding that the e arly-out policy balances the early- in policy, the trial courtNo. 2--07--1031

-24-

has effec tively

determined that it i s an offs et nullify ing one of plainti ffs' c laims. Yet, there are unanswered

questions surrounding the early -out policy, such as, did employ ees continue to work or otherwis e perfor

m activitie s necess ary

and integ

ral to the ir employ ment for w

hich they should continue to b e c omp en sa

te d? J ust because any

employee may

have been able to leave his station early does not me an that he

could not b e paid fo

r clean ing up a nd chang ing his un iform. The trial court erred in reaching a f

actual conclusion on this issue. These examples, then, demonstrate the tr ial court's error in concluding that plaintiffs did not suffic iently demonstrate the num erosit y require ment. We turn t o defen dant's arguments in suppo rt of the t

rial cou rt's rulings, be ginning

with defend ant's responses to plaintiffs' specific arg uments regarding numeros ity , followe d by its responses to plaintiffs' general fact-finding issues. Defend ant mainta ins that the

trial cou rt correctly determinedthat plaintiffs' proposed class defi nition was conclusory and overbro ad. Def endant po ints particularly

to the fact that plaintiffs have suggeste d no way to identify those employeeswho were in fact shorted time

and pay . Defen dant urg es that, a s a resul t, this case

is analy tically identica l to Petty v. Wal-Mart

Stores, Inc. , 148 Ohio App. 3d 348, 773 N.E.2d 576 (2002), and Jackson v. WalMart Stores, Inc. , No. 258498 (Mich. App. November 29, 2005). In Petty , the plaintiff defined the proposedclass as all past and present employ ees of the defendant. According to the plaintiff

, this amounted to around

174,000 pe

rsons. The trial c ourt deni ed the cl ass cer tificatio n becau se th e evidence showed that not all of the proposed class members had suffered the harm of working of f the clock. Petty , 148 Ohio App. 3d at 354, 773 N.E.2d at 580. The appellate court ag reed, finding that the huge size of the class divorced it from any connection with the alleged harm, rendering the proposedclass members unidentifiable. Petty , 148 Oh io App. 3d at 355, 773 N.E.2d at 581.No. 2--07--1031

-25-

Likewise, in Jackson , the plai ntiff att empted to define t he classof perso ns requir ed to work

off the clock as all current and for

mer hourl y employ

ees, totaling some 96,000 persons. The plaintiff offered no allegations or evidence reg arding the number o f persons who actually e xperienced the harm of working off th

e clock, and the tr

ial cour t c ould not asce

rtain whe ther the numerosity requirement had been met. Jackson , slip. op at ___. Defendant

asserts that plaintiffs' allegations here suf ficiently para

llel those in Pet tyan d Jackson to warrant following the rationa les in those cases. Defendant arg ues that, because plaintiffs have not provided a means to identify those class members w ho experienced the harm complained of, namely, working

uncompensated for periods of time, plaintiffs ca nnot satisf

y the numero sity requirement. We disagree. Plaintiff s' evidence in this case distinguishes it from both Petty and Jackson
. Here, plaintiffs have presented evidence, which the trial court a ccepted, of

an earl y- in policy affecting all members of the class. At

least at this point in the proceedings, this raises the likelihood that all members were required to work off the clock. The trial court's conclusion that the ear ly-in policy

was balanced or offset by an ea rly-out policy

is unwarranted

as an imper missible intrusion upon the merits of plaintiff s' claims, and is inappropriate for purposes of determining class certification. I n addition, plaintiffs specifically point to a pa y period in wh

ich 80 to 90 worke

rs were shorted o vertime compensation. Defendant does not specifically controvert this evidence; rather, defenda nt concluso rily asserts o nly

that plaintiffs somehow manipulated the time records. While this evidence
covers a smaller portion of the proposed class and a much smaller period of time thanthe proposed class period, it is illustrative of the existence of a sufficient number of individuals who have been harmedby

defendant's conduct and policies. See Marcial v. Coronet Insurance Co. , 880 F.2d 954,No. 2--07--1031

-26-

957 (7th Cir. 1989) (noting that numerosity issues may be resolved later

on in a suit , after

initial cla ss certification). Likewise, even t hough plaintiffs define the proposed class as all current and f ormer production and maint

enance employ ees, it is narro wly

targe ted to only

one of de fendant 's fac ilities, and the number of persons eligible is relatively small--200 or 300. Thus, Petty a nd J ackson are factua lly distinct a

nd provide

little gu idance in the cir

cum stances plaintiffs have presented here. Ac co rd in gl y, plaintiffs have present ed suffi cient evidence a

t this stag e in the proceedings to satisfy their bur den of sho wing the

numerosity o f the cla ss. We reject defe ndant' s argum

ent. Defendant

also assa ils plaintif

fs' evi dentiar

y su bmission in

support of

their moti on for cl ass certification. However, from this submission, the trial court was able to determine theexistence of
an early-in p olicy on d efenda nt's part. Likewise, the trial court found that the e vidence established that e mpl oyees'

time was edited, even if the court did not believe that plaintiffs established a motivation for the edits. Plai ntiffs' submission also established the existence of a time-rounding algorithm employed by

defendant. We b elieve, then, tha t the evid

ence pla intiffs su bmitted is sufficie nt to demon strate th at plainti ffs have met their numerosity r

equirem ent. Defendant

also highlights the trial court's determination that "the class size is overbroad

and conclusory. Plaintiffs have offered no detailed information on the number of persons in the cla ss,
nor a m ethod by which the c ourt may asce rtain the number of persons in the class." Of cou rse , pl aintif fs need not demonstrate a precise figur e for the class size, because a good- faith, nonspec ulati ve estimate

will suffice ( Arenson v. Whitehall Convalescent & Nursing Home, I nc. , 164 F.R.D. 659, 662 (N.D. Ill. 1 996)); r ather, p laintiff

s need de

monstrate only that the c lass is sufficie ntly numerous to make joinder of all of the members impracticable ( Ramirez , 378 Ill. App. 3d at 54). Our analy sis above confirms that plaintiffs haveoffered sufficient evidence and a good-No. 2--07--1031

-27-

faith estimate of the class size approaching 200 individuals. While we do not disagree with the trial court 's implicit co nclusion t hat plain tiffs' c lass def

init ion may be problema tic, plaintiffs have, neverth eless, present

ed suffi cient evidence t

o carry their burden of showing that they have met the numerosity require

ment. We reject defendant's contention. Defendant

argue s that its a

ffidavit s indicate

that there is no company-wide policy to require employees to work of

f the clo ck. That

conclusi on, howev er, is effec tively on the ultimatemerits of the complaint--plaintiffs contend that there is such a policy and defendant contends that there is no such policy. This issue is squarely for the me rits at trial, and the trial court erred by reaching it at the class certification stage. We reject defendant's contention. Defendant

makes a simi lar po int re gardin g t he editi ng of time records. Again, we believe that this is a que stion per

taining to the ultimate merits. Plaintiffs have identified widespread editing to which all or virtually all of the propose d class membe rs were subj ect. T he effe ct of t he edi ting, however, needs to b e proved in order for plain tiffs to pr evail on their c omplaint. The trial court erred in holding that there was no evidence to indicate that the edits were made to depr ive employees of their earned wages , becau se that is a question o f the mer

its. Rathe

r, the tri al court

s hould have stopped once it a scerta

ined th at plainti ffs demonstrated that all or nearly all of the class members
were subjected to having their time edited. Plaintiffs also demonstrated that in a number of cases the edits decreased the time compensated. T h is alone establishes sufficient numerosity of the proposedclass. De

fendant 's evide

nce that the edits, considered as a whole, actually increased the time compe

nsated is evidence directed at the merits of the complaint and not at the nume rosity of the class. The trial court errone ously considere d it at the class certification stage. We rejec t defendant's contention.No. 2--07--1031

-28-

Defendant

contends that the trial court wa s corre ct to cons ider its e xpert's r eport in deciding the motion for class certification. According to def endant, the expert re ported th at plainti ffs' conception of the evidence so far addu ced in dis c overy wa s flawed, that the time records did not support plaintiffs' contention s, and that the time records did not support the conclusion that defendant had shorted its employees a ny time or pay lawfully due to the

m. While we agree that the trial court could consider the report of defendant's expert

(see Kitzes v. Home Depot U.S.A., Inc. , 374 Ill. App. 3d 1053, 1060 (2007) (considering submissions from the defenda nt's exper ts in deciding a motion for class certification)), here the report was directed at the successof plainti ffs' claims and not the pr opriety of cla ss certification, particularly numerosity. Defe

ndant's argument is misplaced. Summing up our discussion regarding numerosity , we have identified several areas in which the trial cou

rt overs tepped it s bounds a nd imprope

rly intruded on the ultimate issue s of plain tiffs' complain t. Defendant's c ontention s show a sim ilar ben t toward t he merits of plaintiffs' complaint
as opposed to

controve rting a nd rebutt ing the a llegat ions that w ould esta

blish nume

rosity . As a result, we believe that the trial court relied upon impermissible criteria in determining that plaintiffs failedto sa ti sf

y th e n um er os it y r equ irement. Our consideration of the record demonstra tes that plaintiffs adequat ely es tablished the requisite evidence to show that joinder of all members of the class would be impracticable. We nex t consi der the commonality and pr edominance prerequisites for class cer tification. See 735 I LCS 5/2--801 (2) (West

2006). Se ction 2-- 801(2) se ts forth the

require ment that t

here mus t be questions of fact or law that are common to the class and t hat pr edominate over any questions affecting only

individua

l membersof the cl ass. 735 I LCS 5/2 --810(2 ) (West 200 6). "The purposeNo. 2--07--1031

-29-

of the predominance requirement is to ensure t hat the propo sed clas s is suffic iently cohesive to warrant adjudication by repr

esentation, and it is a far more demanding requirem ent than t h e commonality

requirement ." Smith , 223 I ll. 2d at 448. P redominance is shown not by w hether
common issues outnumber individual issues, but by whether com mon iss ues or ind

ividual iss ues will be the focus of most of the efforts of the parties and the c ourt. Smith , 223 Ill. 2d at 448-49. I n order to de termine whet her comm on issues p

redomina te over individual

issues, the court i s requir ed to identify the substantive issues that will control the outcome, assess which issues will predominate, and then determine whether these issues are common to the class. Smith , 223 Ill. 2d at 449. In order to satisfy the

predominance requirement, the proponent must show that favora ble adjudication of the claims of the na

med plain tiffs will establish a right of reco very

in other class members. Smith , 223 Ill. 2d at 449. In other

words, wh

ere pre dominanc e is estab lished, a judgmen t in favor of the cl ass members sh ou ld de ci si ve ly settle the contr oversy , and all t

hat should

remain isfor the o ther cla ss members to file proof of their claims. Smith , 223 Ill. 2d at 449. With these principles in mind, we turn to the trial court's decision. The trial court held: "The commonality requireme nt is not met in this case. The re is no evidence of a company-wide

policy, or even a

department-wide polic y[,] de priving proposed

class members of the ir law fully earn ed wage s. Plainti ff has offered no evidence suppor ting the contention that Plant M anage r Jonathon H arn edit

ed employ

ee's [ sic ] ti m e records to stay withi n budget . Nor is the re evide nce that the time e dits by

Harn we re any thing oth er th a n the corrections he c laimed the m t o be. Instead, the evidence indicates that Harn checked withemployees'

supervisors in an attempt to determine whet her an e mployee had a

ctually workedthe time a

ppearin g in the record. Some employ ees *** testified they ha d workedNo. 2--07--1031

-30-

throu gh lunch but w ere not p aid, but far more emp loy ees testi fied the y a lway s got the

ir lunch, making the prospect of a class[-]wide lunch violation unlikely. [Citation.] Further, it was cle ar that so me employ ees wer e requir ed to wea r unifor ms and/or safety equipmen

t, while others were not. Some employ ees testifi ed they ch anged into and/or out of the uniforms or cleaned up o n work time, ot hers did so on their own time, still others did not change clothes at all. *** Whether the programmed

parameters of [defendant's] timekeeping system resulted in unlawful deductions from hours worked pre-shift, post-shift, and duringlunch, whether defe ndan t[']s manual edits of

class mem

bers' t ime, and w

hether d efenda nts [ sic ] failed to pay class members for all overtime hours worked in excess o f 40 hoursin the work week based
on missed lunc

hes or time

spent changingclothes are thus questions requiring individualized de te rmination s. They ca nnot be answered simply by reviewing defendant' s time system records." As to the predominance issue specifically , the court first reviewed a number of ca ses provide d b y the parties. Then it held:

"Contrary to plaintif

f's [ sic ] contentio n, the use of defendant's records he re will only show that an e

mploy ee's time was edited, not that the employee 's time was properly or improper ly ed it ed . N o c om pa ny- wi de po li cy r equire d employees to wea r uniforms, or required employ ees to work thro

ugh lunc h. As a result, th e succe ssful adju dication

of these questions of law and fact as to plaintiffs Allbee, Varela , or Torr es will not

establish a right of recovery for the proposed class of 200-300 persons gen erally. While individualized damages de terminat

i ons are proper and will not defeat a class a ction, individualizedNo. 2--07--1031

-31-

determinations of liabi lity are not. The leve

l of individ

ualized pr

oof requ ired her e to establish whether or

not an employee w as harmed at all overwhelms any

possible common issues. As a result, commonality and predominance are lacking." Plaintiffs argue that the trial court erred in finding that they

had not establish ed common ality and predominance. Regarding the trial court' s commonality determination, plaintiffs challenge that there was no evidence submitted of any company

-wide policies. Plaintiffs argue that the trial court made i mpermissi

ble de terminat

ions of the

substantiv e merits a s to the exist ence of company policies,
or else igno red the evidence altogether. Plaintiffs specifica lly identify

the "no-pay " policies they assert defendant followed: the early -in policy , the requi rement of changing into uniform and c leaning up, and the a

utomatic t ime deductions programmed into the timekeeping system (including the timerounding system). Plaintiffs assert that all class membe rs were affected by

these policies and that the trial cou

rt imprope

rly ignore d the evid

ence or resolve d the me

rits in denying the

existence of company policies that af

fected the pay

employees received. Defendant argues that the trial c ourt determined that plaintiffs raisedfour common factual i ssues: (1) th e edit ing of t ime re cords by the pla nt man ager for the pu rpose of sta ying within th e budget ; (2) a class-wide practice of requ iring e mplo yees to wo rk thr ough lunch; (3) a company or plant-wide prac tice regarding changing into and out of uniforms; (4) and time-rounding pr actices that had the effect

of shorting employees compensable time. Defendant then arg ues that the trial court properl y determined that there wa s no evide nce to su pp or t a ny of the factual issues it identified. Contrary to defendant's argument, the tria l court repeatedly

acknowledged

the existence of evidence supporting plaintiffs' contentions . For a s i ngle example, the trial court cited specific evidenc e demonstrating that some employees c hanged into and out of uniforms on work time, others changedNo. 2--07--1031

-32-

on their own time at work, and others never chang ed or never wore a uniform. This is hardly "no evidence." Inste ad, the tr ial cour t impermiss ibly

oversta ted it s conclusion. Moreover, the trial court 's conclusi on of "no evidenc e" in

the f ace of contradictory

evidence supplied by

plaintiffs sugge sts that

it considered and weighed the evidenc e to resolve the evidentiary dispute. And this, in turn, concedes plaintiff s' point t hat the tr ial cour t improper

ly determined the merits of the common factua l issues. T he issue of the purpose of the edits to time records appears to be c ommon across the proposedclass. Employees whose time wa s notedited would not have been harmed by the practice; employees whose time was edited may have been harmed, depending on the resolution of the issue of the purpo se of the

editing practic e. Resolu

tion of thisissue would appear to advance the merits of the claims and, thus, we hold this to be a common issue. The trial court erred by

resolving the merits of the time-editing issue to conclude that there
was no evidence to support plaintiffs' conception of the time-editing issue. At the class certification stage of this matter, the trial court was only to ascertain the existence of common factual issues and not t o resolve their merits. By resolving the merits, the trial court effectively conditioned clas s certificationon plaintif

fs' abi li ty t o prevail on the merits. This practice is strongly disapproved. Eggleston , 657 F.2dat 895 (tr ial cour t may not condu ct a preliminary inquiry into the me

rits of the suit in order to determine whether it may be maintained as a class action). Likewise, the existence of a policy or practice of requiring employees to work thr ough the ir lunch periods i s a common issue unde

r plaintif fs' all e gations. Th at the evidence advanced at the class certifi cation sta

ge may be weak should not fore close pla

intiffs' opportuni

ty to attempt to prove the issue. See Eggleston , 657 F.2d at 895. Si mi la rl y, the is sues r elati ng to u nifor ms, t ime-r oundi ng,No. 2--07--1031

-33-

and automatic

time deductio ns are a

ll common is sues that , at this stage in the proceedings, plaintiffs should be allowed to develop. Defendant

generally approves of the trial court's holding that "[t]here is no evide

nce" to support the common issues identified above. As we explained, however, the trial court ove rstated its conclusion and further erred in weig hing and determining the effect of the evidence in rela tion to common issues. Its judgment went more to the ultimate success of plaintiffs' case tha n to whether it could identify common issues, the resolution of which would det

ermine th e matter . As a re sult, we reje ct defe

ndant' s argum

ent. Once again, we note

that the trial court encroached into the merits of plaintiffs' claims when attempting to resolve the issue of commonality. I n deciding theis su e o f c om mo na li ty, the trial court didnot need t

o weigh and reso lve the evidence ; rather , it needed only to identify

the common factual and legal questions present in this matter. The resolution of the common factual and legal issues will
occur du ring proceedings on the merits. Given that a ny discovery

at this stage should have be e n aimed at ascertaining the existence of a c las s, crediting defendant's evide nce on the merits was
erroneous and premature. Accordingly , we hold that the trial court impermissibly resolved factual disputes in order to conclude that plaintiffs failed to present common factual and legal issues, and this repr esents the applic ation of a n imprope

r lega l standar d in the tri al court 's judgment. We now turn to whether the trial court app r opriately deter mined if common issues predominated over individual issues. The trial court held, pertinently , that individualized liability determinations overwhelmed any po ssible common issue s. Plaintiffs argue that the issues of whether employees were required to wear uniforms and whether the time spent donning and doffing uniforms
was compensa

ble aff ect all of the clas s members . Like wise, the time-rou nding, a utomatic t

imeNo. 2--07--1031

-34-

deductio ns, and e diting a

pply to all cla ss member s, and fa vorable determin ations wou

ld entitle all affected class members to recover; any individual variations would be in the amount of damages and notin liability. Defendant counter s by arg uing that the effec t on each individua

l of each issue will determine defendant's liability to thatindividual. Thus, defendant argues that the uniform issue must be deter mined for each ind ividual e mploy ee. While

true, thisoverlook s plaintif fs' contention that the automatic time deductions were initiated to account for the donning a n d doffing

of unifor ms. Based on this, pla

intiffs' view that resolution of the issue will be more in the nature of a calculation of damage s appear s corre ct. I f a trial on the mer

its of the u

niform iss ue reveals that there wa s a policy regarding wea

ring uniforms, a policy

regarding compensa

ting donn ing and doffing uniforms, and an automatic time deduction to accoun t for donn ing and doffing uniforms, then it wou

ld become
a damages calculation to determine those employ ees who were ha

rmed by these pol icies. Th e bulk of the parties' efforts apparentl y w ould be directed toward the legal re solution of the issues, and individual damages determinations would be accomplished by mechani cally pro cessi ng defen dant's time re co rd s. Ac co rd in gl y, the trial court er red in de termining that this is sue would

not predo minate over indi vidual issu es assoc iated wit h it. The effect of

time-rounding appears to be a common issue as well. I f plaintiffs establish that the time-rou

nding pr actice favors d efenda nt and tha

t defend ant furth

er implem

ented the early -in policy to take adva

ntage of the time-rounding, then class membe rs would be entitled to recover. Likewise, wor ki ng t hro ugh lu nch is a pr edo mi nan tl y com mo n i ss ue. If there were

a policy and if defe

ndant' s timekee

ping sy stem automatically deducte d a lunch p erio d, then esta blishing these facts would entitle the class members to recover.No. 2--07--1031

-35-

We also believe that time-editing is a predominantly common issue. Plaintiffs are attem pt ing to demonstrate that time-editing was done for the purp ose of depriving workers of compensa ble time. We can see that evidence showing that defenda nt was att empting to stay within budget, or to c ome in under budget, or showing that defe ndant's managers wer

e pressured

to meet expe

nse budgets, or to reduce expenses, would be relev ant to th is inquiry . We note, however , that at the classcertifi cation sta

ge plaintiffs do not have to make tha t showing --it is fo

r the mer its. Based on these considerations, wehold thatthe trial court erred in determining that common issues did notpredomin ate over individua

l issues. Whi le we disc ern that , if the common issues are provedin favor

of plaintiffs, the trial cou

rt would f ace significan

t individua

l variati ons in dama

ges, this should not defeat the determination that the commonality /predominance prere quisite is sa tisfied. Clark , 343 Ill. App. 3d at 549 ("[i]ndividual questions of injur y and d amage s do not def eat cla ss certification"). The esta

blishment o f these

common issu es would

allow class members affected by eachissue to recover. The individual determination of whether each member was affected is more in the nature of a damages ca lculation than a liability determination. Defendant

reli es o n Avery

and Smithin argu

ing that individua

l determinations of

liability
o utwei gh any common issues. We disag ree. In Avery , the individual issues of determining the wording of each

separa te and dis tinct con

tract tha t each c lass membe

r agreed to and i

ts legal effect outweighed

any conc eivable common issues. Avery , 216 Ill. 2d at 135. Here, b y c ontrast, determ inin g, for example, whether there was a policy to we ar auniform, who was affected, and whether donning and doff ing the u niform wa s "work " are a

ll issues tha

t will aff ect many if not all class members in the same fashion. There is not the individualit

y in the inquiry as in determining the legal effect of

a number of different insurance policies. L ikewise, in Smith , proximate causationNo. 2--07--1031

-36-

depended on individual assessmen ts to de termine liability. Smith , 223 Ill. 2d at 454. Here, the determination of defendant's policies and practice regarding timekeeping, uniforms, and the like will affect the members of the proposed class in the same way . Resolution of the issues can be had as
a mass, rather than individually-- the individuality will come in the damages calcul ation s (ass umin g,
as we must

at this stage, that plaintiffs' claims are meritorious (see Szabo , 249 F.3d at 677, quoting Eggleston , 657 F.2d at 895 (inquiry into class certification is limited to determining " 'whether [the] plaintiff is asserting a claim which, assuming its merits, will satisfy the req u irements ' " for

class certification)), and individual variations in damages will not defeat class cer tification ( Clark , 343 Ill. App. 3d at 549 ("[i]ndividual questions of *** damages do not defe at class certification")). Defendant

also defends the trial court's factual r esolut ions of the issu es of t ime ed itin g, uniforms and safe

ty equipment, and time- rounding . This arg ument is without meri

t becaus e the trial court should have identified that the issues existed, rather than resolved the issues on their me

rits. Ac co rd in gl y, the trial court erred in holding that plaintiffs fa i led to demonstrate that the common issues predominated. Section 2--801(3) requires that the repr esentat ive part ies will fa irly and adequately

protect the interests of the class. 735 IL CS 5/2--801(3) (Wes t 2006) . "The purpose of the adeq uate representationrequirement is to ensure that all class members will re ceive proper, efficient, and appropr iateprotection of their interests in the presentation of the claim." P.J .'s Concrete Pumping Service, In c. v. Nextel We st Corp. , 345 I ll. App. 3d

992, 1004 ( 2004). Th

e test of a

dequate representationis whether the interests of the named parties are the same as the interests of those who
are not named. P.J .'s , 345 Ill. App. 3d at 1004. The tria l c ourt held that, because named plaintiff Cruz had b een a supervi sor, and some of the claims involved employ ees being "rousted" byNo. 2--07--1031

-37-

supervis ors, this could cause a conflict between class members a nd the named plaintiffs. The trial court concluded, based on this, that the named plaintiffs were inadequa te to represent thecla ss interests. Plaintiffs argue

that this w as erro r. Plaintiffs argue that, because Cruz was a low- level supervisor

and experienced the same detriments of uncompens ated time, his interests are not antagonistic to those of class members who suffere d the samedetrimen t but were not super visors. Plaintiffs further

argue that, even if Cruz's interests ar e not identical to those of the class as a whole, the proper procedure would be to de certify Cruz alone

if the othe

r named p laintiff

s are otherwise adequate. We agree. The trial cou

rt relie d on defe

ndant' s argum

ent that th

ere is a n inhere nt co nflict of

interest betweensupervisors and their subordinates in determiningthat Cruz would not satisfy the adequa cy prerequisite. In tur

n, defendants quot

ed from Allen v. City of C hicago , 828 F. Supp. 543, 553 (N.D. Ill. 1993), in making that argument. Allen , however, does not stand for such a proposition. Instead, it found that conflict actually existed between the class representatives and the class members w here multiple class members a

nd repre sentative s would be competin g to be r

einstate d to the sa

me position. Allen , 828 F. Supp. at 553. There is no similar argument raised her e that th e class members would be competing amongst themselves for limited relief. The trial court also relied on Harrison v. Wal-Mart Stores, Inc. , 170 N.C. App. 545, 5 54, 613 S.E.2d 322, 329 (2005), for the proposition that, as a result of the conflict between supervisors and their subordinates, supervisors may be inappropriate class representatives because they may be the caus e of ano ther cl ass me mber's complain t. In Harrison , however, there was uncontroverted evidence in the rec ord that some of the supervisor-named

repres entat ives d enied causi ng subordinat es to work off the c lock, eve

n whileNo. 2--07--1031

-38-

th ere was other evidence that the same supervisor-na med representatives directed or know ingl y allowedtheir subordinates to work off theclock. H ere, by contras t, the trial court noted that other supervisors (but it

did not specify whethe

r they wer e also class members) had

been complained about for "rousting" cla ss members to attend to their work stations before their shifts began, but Cruz was not among those supervisors. We therefore find the trial cour t's reliance on Allen and Harrison to be misplaced. Instead, we note that the supervisor-subordinate conflict may disappear

when the supervisor shares the same

interest as the subordinate in ending the improper practice. Jefferso n v. Windy City Maintenance, Inc. , No. 96--C--7686 (N.D. Ill. Aug ust 4, 1998). Here, Cruz alleges that he, like all other class mem

bers, wa s not give

n credit for the c ompensab le time that he worked before and after his shift and during lunch. His interest in recei ving all the p ay due him fo

r the time he worked is identical to that of t

he other class mem

bers. Moreover, in the absence of any allegations or evidence that Cru z directed other class members to work off the clock, or that, as in Harrison , Cruz denied giving such directions in sp ite of dir ectl y c ontradic ting evidence, we do not believe it was appropr iateto deny

his adequ acy

as a cla ss repre sentative

given h is identical interest in receivingfull pay for all the time he worked. I f such evidencewere to come to light during discovery, howe

ver, then he could be discharged as a c lass representative. Moreover, we do not believe that, even if Cruz was not an adeq uate represen tative for the class, this de stroyed the ad equacy of the re maining named pla

intiffs. T he trial c ourt held

that, because of the inchoate and unsubstantiated co nflict b etween Cruz, a supervisor, and the other namedplaintiff

s (nonsupe

rvisors) , all of the named plaintiffs wer e not adequate cl ass repr esentat ives. This holding was clearly e rroneous. Rather th an invali dating a ll class r eprese ntatives, an inade quateNo. 2--07--1031

-39-

representativemay

be remov ed and le ave may be gra nted to the

plaintiff s to seek a

substitute representativewho adequa tely repres ents the class. See In re Discovery Zone Securities Litig ation , 169 F.R.D. 104, 109 (N.D. Ill.1996) (where a conflict of interest is likely with a class representative, he or she may be

discharged and a replac ement may be soug ht). We fail to see the logic in deny ing certificationto a class that includes nonsupervisors simply bec ause a supervisor was proposed to be
a class representative. Inste ad, it seems better to discharge the supervisor a nd allow the class to be certified if the othe

r prerequisites a

re met. Accordingly , we hold that the trial court applied improper legal criteria in holding that all of the named plaintiffs would not a dequate ly repres ent the in

terests of the class. The last prer

equisite i s that a c lass acti on must be a n approp riate me thod to fa

ir ly an d efficie ntly adjudicate the controversy . 735 IL CS 5/ 2--801( 4) (West 20 06). The

appropr iatenes s requirement

is satisfied if the plaintiff can demonstrate that "the class action (1) can best secur e the economies of

time, eff ort, and e xpense and

promote a unifor mity of decis ion or (2) can acc omplish the other ends o f equity and justi ce that class actions seek to obtain ." Clark , 343 Ill. App. 3d at 552. Th e fact that we have determined that plaintiffs have e stablished the previous three prerequisite s (numerosity, commonality , representation) makes it eviden t that a cl ass action is appropriate. See Clark , 343 Ill. App. 3d at 552. The numerous individuals in the proposed class and the existence of predominant

common questions of fact or law indicate that a class action would serve the economies of time, effort, and expense as well as prevent inco nsist ent results. Litigating the c laims on an individual basis would waste j udicial r esource s, while a

ddressin g the co mmon is sues ina single procee ding would aid

judicial e

fficiency and admin

istration . Accor

dingly , we hold t

hat the tr ia l court erred in determining that

a class action was not an

appropriate method to adjudicate the matter.No. 2--07--1031

-40-

Plaintiffs additionally arg ue that the trial court failed to make any find ings regar ding the

ir post-sev en-minute -rule

claims. Plaintiffs contend that the trial court's ruling encompassed only the time period be

fore defendant

implement

ed its sev en-minute

rule re quiring

emp loy ees to punch in and out within s even minu tes o f th e schedu

led beg inning a

nd end of their shif

ts. Acco rding to plaintiff s, this requirement r

esults in employees'

performing substantial amounts of uncompensated work, because defendan

t's ti mekeeping sy stem rounds to the quarter-hour. Thus, up to seven minutes before

the shift s tarts will

be round ed forw ard to the

time the shift starts, and up to seven minutes after th

e shift ends will be r

ounded ba

ck to the t ime the shi ft ends. Plaintiffs maintain that the class consists of the more-than-300 former and curr ent hourly production and maintena nce employ ees. Plaintiff

s furthe r contend th at defendant's records conc ede that a large number of
em pl oye es we re af

fe ct ed by t he se ve n- mi nu te ru le in co nj un ct io n w it h i ts ro un di ng po li cy. We agree that the trial court did not render a ruling on this issue. However, we also believe that our d etermina tions abov e can be

extended t

o the post- seven-m

inute-ru le claims
. With regard to numerosity, plaintiffs identify all current and

former production and maintenance employees as potential members o f the cla ss. Plaintif fs note th at defe

ndants ar gue tha t as many as h al f of all
c urrentan d f or me r p ro du ct io n a nd ma in te na nc e e mp lo yee s h av e n ot be en af fe ct ed by t he po li cy. Even if this is so , upward s of 100 ind ividuals h ave bee

n affected by

the polic y, a

nd this would satisfy the numerosity require

ment. The effect of

the seve n-minute- rule pre sents a c ommon issue . All of the employee s subject to it wo ul d a pp ea r t o b e e qu al ly a ff ec te d. Ac co rd in gl y, commonality appear s to have been shown. Predominance is likewise apparent, as determining the effect, good

or ill, of t he seven -minute r

ule will resolve the issue. The representation of the proposed class appea rs to be the same as articulatedNo. 2--07--1031

-41-

above. We

also note that all of

the name d plaintif

fs except Cruz appe ar to hav e been su bjected to the seven-minute rule. The appropriateness requir ement is generally

satisfied where the preceding prerequisites have been determined. Thus, we believe that the c lass can be cert ified for t he postseven-m inute-ru le claims as well and

that the tr

ial cour t's fai lure to c onsider t

he claimswas likel

y
an overs ight. W e now consider the relief to grant. Ofte n, where a trial court abuses its di scretion b y employing

impermissible legal criteria, the reviewing court wi ll point out the proper criteria and remandfor the tr

ial cour t to exerci se its discretion through the application of the appropriate criteria. However, we note that, in class certification cases with postures similar to this one, there is support for an out righ t reve rsal by

the appe llate cou rt and a r emand to t

he trial c ourt with instructio ns to certify the class. See Ramirez v. Smart Corp. , 371 Ill. App. 3d 797 ( 2007) (denia l of class certificationwas rev ersed a nd the ca use rema nded for further procee dings co nsis tent with the appella te court' s opinion) ; In re Nassau C o unty Strip Search Cases , 461 F.3d 219 (2d Cir. 2006) (denial of ce rt if ic at io n r ev er se d; di st ri ct co ur t i ns tr uc te d t o c er ti fy a class a s to liability and to consider anew whether to certify

a class as to damages). We follow these ca ses here and reverse the judgment of the trial court denying

class certification, remand the cause, a nd direc t the tria

l court to certify the class. (We note that, unlike in Nassau Co unty , no issue has been presented or ruled upon regarding creating a dama

ges cla ss or othe

r subcla sses. As a result, our instructi ons are d

irected to the sole issue of class certification presented in this appeal.) For the foregoing reasons, the judg ment of the circuit court

of Kane County is re

versed, and the cause is remanded with instructions for further proc eedings consistent with this disposition. Reverse d and remanded with instruc tions.No. 2--07--1031

-42-

BYRNE and ZENOFF, JJ., concur.