promissory estoppel and intentional infliction of emotional distress. Both claims require
individual inquiries, resulting in a lack of typicality. Plaintiffs’ promissory estoppel claim
requires individual inquiries into the reliance by the individual Plaintiffs on a promise to his or
her detriment and whether the reliance was reasonable in numerous individual circumstances.
See Miller v. Taylor Insulation Co., 39 F.3d 755, 759 (7th Cir. 1994). This level of individual
inquiry defeats the typicality requirement under Rule 23(a). See Diehl v. Twin Disc, Inc., 1995
WL 330637 (N.D. Ill. May 30, 1995) (denying class certification on promissory estoppel claims
due to lack of typicality); see also Thompson v. Community Ins. Co., 213 F.R.D. 284, 296 n. 8
(S.D. Ohio 2002) (“promissory estoppel [claims] are generally inappropriate for class treatment
because of the need to provide individualized evidence of reliance”). Plaintiffs’ intentional
infliction of emotional distress claim would also require the highly individualized inquiry of
whether the Defendants’ conduct caused severe emotional distress in numerous individuals. See
McGrath v. Fahey, 126 Ill. 2d 78 (1988). Accordingly, Plaintiffs have failed to establish the
typicality requirement under Rule 23(a) as to the proposed Class 1.

The amended proposed Class 3 would be certified as to Count VIII, an antitrust claim,
and Count IX, a restraint on alienation claim. The proposed definition of the first class is:

All Illinois Voortman distribution route owners who owned their
route on or after January 28, 1998.

As to proposed Class 3, Plaintiffs present evidence of at least twenty class members.
Accordingly, Plaintiffs have demonstrated numerosity.
Plaintiffs have demonstrated that the class members share common questions of law and

fact and that the claim arises from the same course of actions by both Plaintiffs and the


Rule 23(b)
Plaintiffs seek class certification under Rule 23(b)(1)(A). Rule 23(b)(1)(A) provides that
an action may be maintained as a class action if:
(1) the prosecution of separate actions by or against individual
members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing the class
Fed. R. Civ. P. 23(b)(1)(A).
ANALYSIS
The amended proposed Class 1 would be certified as to several Illinois state law claims:
Count H, a procuring cause claim, Count IV, an interference with prospective economic
advantage claim; Count V, a breach of contract claim; Count VJ, a breach of implied contract
claim; Count VII, a quantum meruit claim; Count XI, an intentional infliction of emotional
distress claim; and Count XII, a promissory estoppel claim. The amended proposed definition of
the first class is:
All Illinois Voortman distribution route owners who purchased their
route after the deep-discount buy-in program was in place, and who
still owned their route when the deep-discount buy-in program was
effectively terminated.
Citing to the Court’s previous finding of commonality and numerosity as to Class 2,

Plaintiffs essentially argue that commonality and typicality are also met in proposed Class 1

without actually addressing these requirements.' Plaintiffs’ proposed Class | includes claims for

‘Plaintiffs also failed to adequately address these issues in their original motion for class
certification as to this proposed class.


Defendants. Plaintiffs’ claims of antitrust violations and illegal restraints on alienation allege
that Voortman’s termination of the program materially depreciated the Plaintiffs’ ability to sell
their particular territories at fair market value. Through the formula within the Policy Manual
regarding the determination of the value of a territory, Voortman restricted and restrained the
price for which a distributor could sell his territory even though the Policy Manual also stated
that each distributor was an independent businessman that had the right to sell his territory. The
restriction and restraint had a severe effect on competition in the relevant market. The potential
class plaintiffs were parties to the same agreements with Defendants. The central question of law
is whether Defendants restricted and restrained the potential class plaintiffs’ rights to sell their
territories at a certain price. The question refers to the same conduct on the part of Defendants
toward members of the class, representing a common nucleus of operative facts that is based on
the same legal theory. Accordingly, Plaintiffs have satisfied both the commonality and typicality
requirements. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (“Common nuclei of fact
are typically manifest where . . . the defendants have engaged in standardized conduct towards
members of the proposed class. . . .”).

No conflicts between Plaintiffs and the class members have been identified nor has an
inadequacy in Plaintiffs’ counsel’s ability to protect the interests of the class been shown.
Accordingly, Plaintiffs have met the requirements under Rule 23(a).

Lastly, as to proposed Class 3, in light of the central question of law and the similarity of
facts between the individual class members and the Defendants, the prosecution of separate
actions by individual members of the class could create a risk of inconsistent or varying

adjudications with respect to individual members of the class which could establish incompatible


CF”

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CATHLEEN M. ROWELL, et al., )
)
Plaintiffs, )
) No. 02 C 0681

v. )

) Judge John W. Darrah
VOORTMAN COOKIES, LIMITED, a Canadian )
corporation; and HARRY VOORTMAN, )
Individually, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs, on behalf of themselves and a class of similarly situated individuals, filed a
fourteen-count Complaint against Defendants, Voortman Cookies, Limited and Harry Voortman,
alleging that the Defendants breached an exclusive distributorship agreement. In August 2002,
this Court dismissed Counts III, V, X, XI, and XIV without prejudice and dismissed Count XIII
with prejudice. Plaintiffs filed a fourteen-count Second Amended Complaint. In January 2003,
this Court dismissed Counts III and X without prejudice and dismissed the new Count XIII with
prejudice. In November 2004, Plaintiffs moved to certify the case as a class action with three
different proposed classes. In January 2005, this Court granted in part and denied in part
Plaintiffs’ Motion to Certify Case as a Class Action. Plaintiffs’ proposed second class (‘‘Class
2”), which included only Illinois Voortman distributors, was certified as to Plaintiffs’ Illinois
Sale Representative Act claim. The Court denied certification of Plaintiffs’ proposed first and

third classes (“Class 1” and “Class 3”, respectively), holding that the Plaintiffs failed to


standards of conduct for the Defendants. Accordingly, Plaintiffs have demonstrated certification
is proper pursuant to Rule 23(b)(1).
CONCLUSION
For the foregoing reasons, the Plaintiffs’ Motion to Alter or Amend the Denial of the
Motion to Certify as Class Action as to Classes One and Three is granted in part and denied in
part. The motion is denied as to proposed Class 1. The motion is granted as to proposed Class 3.
The class, as to Counts VIII and IX, is defined as:

All Illinois Voortman distribution route owners who owned their
route on or after January 28, 1998.

Dated: lgon AD], 2005- \/ [ “hee

JOHN W. DARRAH
United States District Judge



demonstrate commonality in light of the proposed nationwide classes, which were state actions
with varying state laws. Plaintiffs now move to alter or amend the denial of the class
certification of Class 1 and Class 3, proposing such classes be certified as Illinois statewide
classes instead of nationwide classes.

LEGAL STANDARD

Allegations made in support of class certification are considered true. Hardin v.
Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993). As a general matter, the court does not
examine the merits of the case. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584,
598 (7th Cir. 1993). However, a court “may look beyond the pleadings to determine whether
the requirements of Rule 23 have been satisfied.” Dhamer v. Bristol-Myers Squibb Co., 183
F.R.D. 520, 529-30 (N.D. I!1 1998), citing Castano v. American Tobacco Co., 84 F.3d 734, 744
(5th Cir. 1996). The party seeking certification bears the burden of establishing that class
certification is proper. See Trull v. Plaza Assoc., 1998 WL 578173 (N.D. Ill. Sept. 3, 1998).

To obtain class certification, a party must satisfy all four elements of Rule 23(a), which
include: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P.
23(a). The party must also satisfy at least one of the three provisions under Rule 23(b).
Numerosity

Rule 23(a)(1) requires that the class be so numerous that joinder of all the members is

impracticable. Fed. R. Civ. P. 23(a)(1). Plaintiff need not demonstrate the exact number of


class members so long as a conclusion is apparent from good-faith estimates (Peterson v. H &R
Block Tax Servs., 174 F.R.D. 78, 81 (N.D. Ill. 1997)), and the court is entitled to make
“common sense assumptions” in order to support a finding of numerosity (Grossman v. Waste
Management, Inc., 100 F.R.D. 781, 785 (N.D. Ill. 1984)).

Commonality and Typicality

Commonality exists if the class members share common questions of law or fact. The
requirement is usually satisfied when a common nucleus of operative facts unites a class.
Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). The presence of some factual
variations among the class members does not defeat commonality, so long as there is at least
one question of law or fact common to the class. Rosario, F.2d at 1017.

The typicality requirement of Rule 23(a)(3) is closely related to the commonality
requirement of Rule 23(a)(2). Ruiz v. Stewart Associates, Inc., 171 F.R.D. 238, 242 (N.D. Ill.
1997). A plaintiff's claim is typical if it arises from the same event or practice or course of
action that gives rise to the claims of other class members and if his or her claims are based on
the same legal theory. Rosario, 963 F.2d at 1018.

Adequacy of Representation

The class representatives must “fairly and adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a). In determining adequacy of class representation, the court considers
whether (1) any conflicts of interest exist between the named plaintiffs and the class members
and (2) the named plaintiffs’ counsel will adequately protect the interests of the class. Gaspar,

167 F.R.D. at 58.