Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. George L. Schaller, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Steven Miner, plaintiff, filed a class action complaint in the circuit court of Cook County on behalf of a nationwide class of consumers against the defendant, Gillette Company, in connection with defendant's promotion of its "cricket" disposable butane lighters. Count I alleged that defendant's conduct amounted to an "unfair and deceptive act or practice" within the meaning of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121 1/2, par. 261 et seq.). Count II alleged breach of contract. Defendant moved to dismiss the class action. The motion was denied as to the Illinois class. The trial court dismissed the action brought on behalf of nonresident class members but found the question of law concerning the propriety of maintaining the class action on behalf of nonresident members one "to which there is substantial ground for difference of opinion" and, therefore, certified the issue for appeal pursuant to Supreme Court Rule 308 (73 Ill.2d R. 308). The appellate court initially denied plaintiff's application for leave to appeal. This court, in the exercise of its supervisory jurisdiction, ordered the appellate court to grant plaintiff's application for leave to appeal. Upon review the appellate court affirmed. (89 Ill. App.3d 315.) After allowing plaintiff's petition for leave to appeal, we allowed the Consumer Coalition to file an amicus curiae brief.
The plaintiff argues that neither due process nor the Illinois class action statute precludes an Illinois plaintiff from maintaining a multistate class action in Illinois. Defendant, on cross-appeal, contends that the action cannot proceed under section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.2) on behalf of any class, even if limited to Illinois residents.
The defendant conducted a sales promotion by offering to supply a free Accent Table Lighter (accent lighter) to persons remitting proof of purchase of two "cricket" lighters together with 50 cents for postage and handling. At the time, defendant had approximately 200,000 accent lighters from which it expected to fulfill responses to such offer. However, the response to the offer exceeded defendant's expectations and, although 70,000 additional accent lighters were assembled, defendant was unable to fill approximately 180,000 requests. Consequently, defendant mailed a letter to each of the 180,000 persons stating that the supply of accent lighters had been exhausted and apologizing for the inconvenience. At the same time, defendant returned to each of this group of persons the 50-cent postage-and-handling charge together with a free "cricket" lighter. Plaintiff was one of the 180,000 consumers.
Plaintiff contends that the due process clauses of the United States Constitution and the Constitution of Illinois do not prevent the maintenance of a class action on behalf of nonresident class members. In the present case, both the trial court and the appellate court relied on Spirek v. State Farm Mutual Automobile Insurance Co. (1978), 65 Ill. App.3d 440, in holding that absent "minimum contacts" with this State, Illinois courts> are without jurisdiction to render a binding judgment over nonresident plaintiffs in a class action suit in that such a judgment would violate due process. The court in Spirek, relying on concepts enunciated in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154, stated:
"The due process clause still `does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has not contacts, ties, or relations.'" Spirek v. State Farm Mutual Automobile Insurance Co. (1978), 65 Ill. App.3d 440, 453.
Defendant argues that the trial and appellate courts> correctly found that the multistate class action cannot be maintained because of the nonresident class members' lack of "minimum contacts" with this State. It bolsters its position by referring to language in various United States Supreme Court cases. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154; Hanson v. Denckla (1958), 357 U.S. 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228; Shaffer v. Heitner (1977), 433 U.S. 186, 53 L.Ed.2d 683, 97 S.Ct. 2569; World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L.Ed.2d 490, 100 S.Ct. 559.) Plaintiff and amicus do not contend that the relationship of nonresident class members with this State provides sufficient contacts to meet the "minimum contacts" test of International Shoe and its progeny. Rather, it is asserted that the test itself is inapplicable to plaintiffs in a class action case.
The question of whether the "minimum contacts" test is applicable to nonresident plaintiffs in a class action case was addressed in Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 567 P.2d 1292. The court found that International Shoe and the line of cases emanating from it dealt specifically with nonresident defendants.
"Whether all nonresident plaintiffs in a class action are required to have `minimum contacts' with the forum is a different matter. Because a class action must necessarily proceed in the absence of almost every class member, we hold the residential makeup of the class membership is not controlling. [Citation.] What is important is that the nonresident plaintiffs be given notice and an opportunity to be heard and that their rights be justly protected by adequate representation. These are the essential requirements of due process, and they must be satisfied in any class action by every court, state or federal, regardless of the residences of the absent class members. Therefore, while the essential element necessary to establish jurisdiction over nonresident defendants is some `minimum contacts' between the defendant and the forum state, the element necessary to the exercise of jursidiction over nonresident plaintiff class members is procedural due process." (Emphasis in original.) (Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 542-43, 567 P.2d 1292, 1305.)
(See Schlosser v. Allis-Chalmers Corp. (1978), 86 Wis.2d 226, 241-42, 271 N.W.2d 879, 886-87.) Moreover, the Supreme Court has recognized class actions as an exception to the rule requiring in personam jurisdiction over a party before he will be bound by a judgment rendered.
"To these general rules there is a recognized exception that, to an extent not precisely defined by judicial opinion, the judgment in a `class' or `representative' suit, to which some members of the class are parties, may bind members of the class or those represented who were not made parties to it. * * *
* * * Courts> are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction or because their whereabouts is unknown or where if all were made parties to the suit its continued abatement by the death of some would prevent or unduly delay a decree. In such cases where the interests of those not joined are of the same class as the interests of those who are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will proceed to a decree." Hansberry v. Lee (1940), 311 U.S. 32, 41-42, 85 L.Ed. 22, 26-27, 61 S.Ct. 115, 118.
This exception has been recognized and employed by this court in Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill.2d 583, 592, and Newberry Library v. Board of Education (1944), 387 Ill. 85, 90.
"This exception is made possible by a requirement that the representative parties fairly and adequately protect the interest of the class. * * * But adequate representation is not the sole touchstone of due process. There can be threshold findings of adequate representation with notice nevertheless required as a matter of due process to allow members of the class their constitutional opportunity to be heard." (Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill.2d 583, 592-93.)
This exception is justified when one examines the nature of a class action suit. Its very purpose is to allow a representative party to pursue the claims of a large number of persons with like claims. It consequently does not contemplate or necessitate the appearance of absent parties. The class action device is, in fact, predicated on the inability of the court to entertain the actual appearance of all members of the class as well as the impracticality of having each member prosecute his individual claim. The basic premise of the class action procedure is the fairness of having a proper representative act on behalf of the absent parties.
The constitutionality of the present class action on behalf of nonresident members must be determined by asking (1) if plaintiff adequately represents the nonresident parties and (2) if notice can insure the class of its constitutional opportunity to be heard and protect each member's option to choose not to participate.
The test applied to determine adequacy of representation is whether the interests of those who are parties are the same as those who are not joined and whether the litigating parties fairly represent those not joined. (Newberry Library v. Board of Education (1944), 387 Ill. 85, 90.) The attorney for the representative party "must be qualified, experienced and generally able to conduct the proposed litigation." (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 339.) Additionally, plaintiff's interest must not appear collusive. Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 338-39.
In the present case, the claim of plaintiff is identical to that of each of the other class members. Each performed in the identical manner by mailing the required proof of two purchases of "cricket" lighters and 50 cents postage and handling to defendant as required in the promotional offer. Each class member received the same letter of explanation and apology with a 50-cent refund and a free "cricket" lighter. At this stage of the proceedings, there is no evidence that plaintiff's claim is antithetical to those of other members of the class, nor is there evidence that the suit is a collusive or friendly action. These are matters for the trial court's future determination.
The question of what notice must be given to absent class members to satisfy due process necessarily depends upon the circumstances of the individual action. (Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill.2d 583, 593.) We believe that in the present circumstances, where the identity and address of each class member is readily accessible by use of defendant's files, individual notice is required in order to insure that each class member's right to pursue his claim is protected. The notice must ...