The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court are several motions: (1) defendant's motion for summary judgment; (2) plaintiff's motion for summary judgment on Count II; and (3) plaintiff's motion for class certification. For the reasons explained below, defendant's motion for summary judgment is granted; plaintiff's motion for summary judgment on Count II is denied; and plaintiff's motion for class certification is denied.
In this action, plaintiff John Michael Rickher claims that defendant The Home Depot, Inc. ("Home Depot") violated the Illinois Consumer Fraud and Deceptive Business Practices Act (the "CFA"), 815 ILCS 505/2 et seq., in connection with Home Depot's sale of damage waivers to tool and equipment rental customers in Illinois.
Plaintiff alleges that when he rented tools from Home Depot stores, he was presented with a rental agreement that by default included an assessment for a damage waiver equal to ten percent of the rental cost, without being informed that the damage waiver was optional and without being asked whether he wanted to purchase the damage waiver. The two-count Second Amended Complaint alleges that Home Depot's conduct was unfair and/or deceptive in violation of the CFA because the damage waiver is worthless and because customers were deceived into believing it is a mandatory charge when it is in fact optional. Plaintiff seeks to represent a class of persons who rented tools or equipment from Home Depot stores in Illinois, and who paid damage waiver charges, during the three years before the filing of the complaint.*fn1
The undisputed material facts are as follows. Over the last several years, plaintiff rented tools from Home Depot stores in Chicago, usually from either the North Avenue store or the Elston Avenue store. For each rental, the salesperson gave plaintiff a Rental Agreement, and plaintiff signed the Rental Agreement. The Rental Agreement consists of three pages: (1) Home Depot's copy of the Rental Agreement (the "Front Page"), which includes the customer's signature; (2) the customer's copy of the Rental Agreement; and (3) the Terms and Conditions page (the "Terms Page").
Home Depot offers a damage waiver for tool rentals, which is optional and listed as a separate charge on the Front Page. The Rental Agreement defines the rights and obligations of the parties, and it also describes the terms and conditions of the damage waiver, including the scope of protection from liability for damage to the rented tools. From November 2000 to March 2005, Home Depot used a version of the Rental Agreement that included a box labeled "Special Terms and Conditions" on the Front Page. Inside the box were a number of statements that apparently could vary depending on the type of tool or equipment rented, but which usually included the following statement: "I ACCEPT THE BENEFITS OF THE DAMAGE WAIVER (IF APPLICABLE) DESCRIBED IN PARAGRAPH 11 IN THE TERMS AND CONDITIONS OF THIS RENTAL AGREEMENT." Underneath the box was the statement "I HAVE READ AND AGREE, AS INITIALED TO THE RIGHT, TO THESE SPECIAL TERMS AND CONDITIONS." Next to that statement was another box labeled "Customer Initials." The bottom portion of the Front Page called for the customer's signature underneath text that included the sentence "I agree to the terms and conditions printed on this page and on the other page(s) of this agreement." (Def.'s Reply, Ex. A to Ex. 3.)
From November 2000 to November 2005, the Terms Page of the Rental Agreement provided as follows with regard to the damage waiver:
Damage Waiver. If I pay the damage waiver charge for any Equipment, this agreement shall be modified to relieve me of liability for accidental damage to it, but not for any losses or damages due to theft, burglary, misuse or abuse, theft by conversion, intentional damage, disappearance or any loss due to my failure to care properly for such Equipment in a prudent manner (including without limitation by using proper fuel, oil and lubricants and not exceeding such Equipment's rated capacity, if applicable).
Home Depot has issued a Standard Operating Procedure ("SOP") document to its employees that governs its tool rental policies and procedures. At the times relevant to the complaint, Home Depot's SOP (a version created in 1999) provided that an employee should perform the following pertinent steps in renting a tool: greeting the customer; "qualifying" the customer; recommending tools and/or accessories and related items; creating the contract; and explaining how to use and maintain the tool. (Ex. 4 to Pl.'s Brief in Opp'n to Def.'s Mot. for Summ. J. at 2:1.) The "qualification" step included obtaining the customer's identification and a deposit as well as the following step regarding the damage waiver:
Inform the customer about the benefits of accepting the Damage Waiver option on the Rental Agreement contract. Quote a price (not a percentage) to the customer for the Damage Waiver.
Note: The cost of the Damage Waiver is equal to 10% of the tool's basic rental charge. (Id. at 2:4.) After particular tools and accessories were recommended, the SOP provided that the next step was to create the contract. The first two sub-steps in this step were "create and print Rental Agreement" and "review with customer." (Id.) As for the "review" sub-step, the "Rental and Fees" section of the SOP provided in relevant part:
To process Damage Waivers, follow these steps:
1. Review the contract with the customer. Circle the Damage Waiver provision in the Special Terms and Conditions section of the agreement.
2. Explain to the customer what the Damage Waiver covers. Discuss the benefits of having the Damage Waiver as part of the contract.
3. Ask the customer if they want the Damage Waiver.
4. If they do not want the Damage Waiver, remove the fee from the contract. Reprint the contract if necessary. Note: A Damage Waiver fee can be removed from a contract in one of three ways:
* Touch Change from the Summary screen
* Touch Change Contract from the Main Menu
* Touch Remove Damage Waiver from the Change Options screen
(Ex. 4 to Pl.'s Brief in Opp'n to Def.'s Mot. for Summ. J. at 2:35.)
Plaintiff paid for a damage waiver in connection with the great majority of his tool rentals from June 2000 through March 2005. (On December 28, 2004, January 6, 2005, March 18, 2005, and at least one other occasion, plaintiff declined to purchase the damage waiver.) Plaintiff testified at his deposition that although he could not remember the exact details of each and every tool rental transaction, he did not recall that Home Depot employees ever complied with the Home Depot SOP and asked him whether he wanted to purchase the damage waiver. Rather, the typical occurrence when plaintiff rented a tool was that the employee would simply print the Rental Agreement (which included a charge for the damage waiver), give it to plaintiff for signature, and plaintiff would sign the Agreement. According to plaintiff, he was aware that he was paying for a damage waiver when he signed the Agreements, but he was not aware that the waiver was optional.
Plaintiff testified that he did not discover that the damage waiver was optional until January 2005, when he rented a pipe wrench and asked the salesperson if he could decline the waiver. After some delay, and after initially being told that the waiver was "automatically" on the rental agreement, the waiver charge was removed from the rental agreement. (Tr. of Pl.'s Dep. at 144-45, 149.)
Plaintiff never damaged any of the tools or equipment that he rented; therefore, plaintiff never invoked the damage waiver for any of his rentals.
Home Depot now moves for summary judgment. Plaintiff has filed a cross-motion for summary judgment on Count II of the Second Amended Complaint as ...