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Northside Chiropractic, Inc., and Michael Dubick, For Themselves and Others Similarly Situated v. Yellowbook

August 29, 2012

NORTHSIDE CHIROPRACTIC, INC., AND MICHAEL DUBICK, FOR THEMSELVES AND OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
YELLOWBOOK, INC., FORMERLY KNOWN AS YELLOW BOOK SALES AND DISTRIBUTION COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff Dr. Michael Dubick, as a proposed class representative, has sued Defendant Yellowbook, Inc.*fn1 Dubick seeks damages based on common law breach of contract and on the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. Dubick has filed a motion for class certification [R. 120]. For the reasons explained below, the motion is denied.

I.

In August 2005, Dr. Michael Dubick, an officer and shareholder of Northside Chiropractic, was approached by sales representatives from Yellowbook, a company that publishes telephone directories. R. 147 ¶ 21. The salespeople brought with them a clipping of an advertisement for Northside they found in the Lakeview Telephone Directory, and promised Dubick that Yellowbook could print a far superior advertisement. Id. ¶¶ 21-23. The Lakeview advertisement included:

(a) Dr. Dubick's name.

(b) Dr. Dubick's picture.

(c) The logo for Northside Chiropractic.

(d) The statements "Evening and Weekend Hours," "Insurance & Credit Cards Welcome," and "Convenient Safe Location."

(e) The statements "Patients who regularly visit Northside Chiropractic feel healthier," and "Dr. Dubick delivers a compassionate, personal approach to your health."

(f) A testimonial from a customer named "Joan R." stating: "Dr Dubick is concerned about his patients. He really listened and cared."

(g) A zip code.

Id. ¶ 33. See also R. 153, Exh. B.

Throughout the negotiations, the salespeople made several promises to Dubick. First, they promised that the Yellowbook advertisements would be identical or substantially similar to the Lakeview Directory advertisement. Id. ¶ 24. Dubick responded by explaining to the salespeople that he was in the process of updating his headshot. R. 147 ¶ 24. The salespeople promised that they would obtain the new headshot before publishing the Northside advertisement. Id. ¶ 28. They also promised that Yellowbook would forward proofs of the advertisement (that is, the test mock-up of the ad) to Dubick before publication. Id.

Second, the salespeople promised Dubick that for the quoted price, Yellowbook would publish the Northside advertisement in two separate locations: under the "Chiropractors" heading and under the "Massage Therapeutic" heading.*fn2 Id. ¶ 25. An Internet listing would also be included. Id. The salespeople promised that publishing the advertisement under these headings would produce greater revenues than the Lakeview advertisement. Id.

Third, the salespeople promised that if Dubick purchased a Yellowbook advertisement, he would gain dramatic increases in revenue. Id. ¶ 27. To help persuade Dubick, the salespeople used a "Return On Investment" calculation. R. 120

¶ 6. The investment-return calculation is based off of Northside's business information (solicited from Dubick) and relies on certain assumptions and projections that ostensibly prove that a Yellowbook advertisement will pay for itself overnight. Id. The salespeople also claimed that if Dubick failed to buy an advertisement, he would suffer substantial economic harm. R. 147 ¶ 27. The salespeople used a so-called "reverse" calculation to show that Dubick would lose massive business opportunities if he failed to buy a Yellowbook advertisement. R. 120 ¶ 6.

Based on these promises, Dubick agreed to buy advertising with Yellowbook. R. 147 ¶ 30. Dubick was then presented with a contract, R. 153, Exh. C, that supposedly embodied all the promises the salespeople made during the negotiations. Id. The front of the contract listed Dubick's order information and provided a space for Dubick's signature. R. 153, Exh. C. The back of the contract contained a 2,500 word "Terms and Conditions" section. Id; see also R. 120 ¶ 4(f). This section included the following five provisions:

"Publisher will endeavor to furnish proofs of new and revised display print advertisements, but failure to do so will not relieve Customer of its obligations under this agreement." R. 153, Exh. C at 2 § 7(A). "Publisher will determine all headings that appear in its directories . . . Publisher does not guarantee the position of an advertisement under a particular heading. Failure to publish an advertisement in a particular position shall not be the basis for a claim or adjustment to the amount owed by Customer." Id. § 7(C). "In no event will Publisher . . . be liable to Customer for any other damages including . . . claims based on breach of contract . . . or rights arising from statutory enactment." Id. § 7(E). "Customer acknowledges that publisher shall retain any deposit, which will be applied to any future print services or Internet Services purchased by Customer, within two years from the date of this agreement. At the end of such two-year period, Customer will forfeit any right to apply the deposit to future print services or Internet Services." Id. § 8. "The signer of this agreement does, by his execution personally and individually undertake and assume the full performance hereof including payments of amounts due hereunder." Id. § 15(F).

The salespeople did not explain these five provisions, nor did they explain any of the other Terms and Conditions. R. 147 ¶ 29. Instead, the salespeople implored Dubick to pay a deposit in order to reserve space in Yellowbook. Id. ¶ 28. According to Dubick, these five provisions negated elements of his verbal agreement with the salespeople. R. 120 ¶ 4(g). Unaware of these provisions, Dubick signed the contract and paid a deposit of $549 (equal to the cost of one month of advertising) to reserve his advertisement.R.147 ¶¶ 29-30.

The advertisement was eventually published without Dubick submitting any proofs of the ad back to Yellowbook. R. 147 ¶ 31. The parties dispute whether Yellowbook requested proofs from Dubick, Id., R. 137 at 7-8, but there is no dispute that Dubick was unhappy with what was eventually published in Yellowbook. The Yellowbook advertisement was missing elements that were included in the Lakeview advertisement. R.147 ¶ 33. Specifically, it was missing Dubick's name and picture; Northside's logo and zip code; the customer testimonial; and other statements that were included in the Lakeview advertisement. Id. Moreover, Yellowbook apparently published the advertisement under the "Massages - Non-Therapeutic" (emphasis added) heading instead of the "Massages - Therapeutic" heading. Id. ¶ 34. Non-therapeutic services are less reputable, according to Dubick, and therefore, the incorrect listing caused damage to Northside's image and reputation. Id. Dubick believes that the erroneous placement, along with the deficient advertisement, caused Northside to suffer substantial business losses. Id. ¶¶ 37-38.

In June 2009, Dubick and Northside filed this class-action lawsuit against Yellowbook in the Circuit Court of Cook County. R. 1, Exh. A. Yellowbook removed the case to federal district court shortly afterwards. R. 1. Dubick has since amended the complaint, R. 147, and has filed a motion for class certification, R. 120. That motion is now fully briefed before this Court.

II.

Courts usually should decide the question of class certification before turning to the merits of a given action. See Weismueller v. Kosobucki, 513 F.3d 784, 786--87 (7th Cir.2008). To be entitled to class certification, a plaintiff must satisfy each requirement of Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-as well as one subsection of Rule 23(b). See Harper v. Sheriff of Cook Co., 581 F.3d 511, 513 (7th Cir.2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir.2006). "Failure to meet any of the Rule's requirements ...


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