Opposition Brief — State Farm Mutual Automobile Insurance v. Speroni
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Supreme Court, U.S.
FILED
AHE—LEG 1998
In The } OFFiee OF THE CLERK |
Supreme Court of the United States
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October Term, 1997
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
THE HONORABLE JOHN SPERONI, TAMMY SNIDER
and MICHAEL AVERY,
On Petition for Writ of Certiorari
to the Supreme Court of Illinots
BRIEF IN OPPOSITION FOR RESPONDENTS
TAMMY SNIDER, MICHAEL AVERY AND
PLAINTIFF CLASS
ELIZABETH J. CABRASER
Counsel of Record
MORRIS A. RATNER
SCOTT P. NEALEY
LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
Attorneys for Respondents
Tammy Snider, Michael Avery
and Plaintiff Class
275 Battery Street, 30th Floor
San Francisco, CA 94111
(415) 956-1000
COUNSEL PRESS
QUESTIONS PRESENTED
Defendant State Farm filed its petition after the Illinois
Supreme Court declined, without opinion, to grant its request
for extraordinary relief to seek interlocutory review of pretrial
orders (1) certifying a consumer litigation class; and (2) directing
implementation of an initial class notice program. The
underlying lawsuit is ongoing. The parties are engaging in pre-
trial discovery. The trial on the merits is scheduled to commence
on April 13, 1999. The questions before this Court on the limited
record now available are:
1. Whether this Court’s jurisdiction is properly invoked
under 28 U.S.C. § 1257 to review a State court’s discretionary
denial of leave to file a petition for a writ of mandamus, writ of
prohibition and/or supervisory order when the denial is without
opinion and further review is not foreclosed;
2. Whether the Due Process Clause of the Fourteenth
Amendment requires a State’s highest court to afford mandatory
interlocutory review of State trial court decisions certifying class
actions or ordering class notice;
3. Whether, for purposes of making its initial determination
that a multi-state class may be certified, a trial court can
constitutionally find that forum state law will likely apply to all
claims at the anticipated trial under a state’s choice-of-law rules,
where the misconduct is alleged to have been conceived in,
implemented from, and controlled by the defendant from its
headquarters in the forum state;
4. Whether the Due Process Clause entitles a defendant to
insist on eliciting the individual testimony of each of the millions
of the policyholders that comprise the class, where the evidence
submitted by the parties demonstrates, and the trial court
determines, that the case presents predominantly common issues
of fact that can be determined at trial on a class-wide basis from
the defendant’s own documents and records, third-party
evidence, and expert testimony, and the trial court has made no
order depriving defendant of a reasonable defense: and
ul
5. Whether the Due Process Clause of the Fourteenth
Amendment prohibits a State court from ordering dissemination
of class notice through an intensive multi-media notice
publication program, when defendant does not provide an
accurate or complete list of class members to whom mailed notice
could be sent, and where the notice program is proved to be
effective in providing actual notice to the class.
ill
TABLE OF CONTENTS
Page
I fod Be a ein k's a Din wena i
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Be Sa TI oa ac os din ecccceacescussece V
eee aa da nah hek Manes we ee Oo l
NE Cr DUUUOGEIDUD no ence nce veedvedeskcves l
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A. The Trial Court’s Certification Order Was Based
On A Substantial Factual Record Submitted By
Both Parties At A Four-Day Evidentiary Hearing.
ee ae a sil ce ane ae WS l
B. The Trial Court’s Notice Order Was Based Upon
The Evidence Presented By The Parties. ...... 4
C. Petitioner State Farm Has Pursued Multiple
Appeals And Otherwise Acted To Delay The
PERILS nod cdc eecavsenecéead se 4
ee kar ccd v ene eels beuk ss 05 6
measous for Denying the Writ ........ccecvecceess 7
I. This Court Cannot And Should Not Entertain
Petitioner’s Request For Interlocutory Review.
EDRWL Sah SRE OMEN RES Rhea ee awa eee O55 7
iv
Contents
Page
A. There Is No “Final Judgment” To Be
POUR. ows ce Radke tasks ear creties 7
B. There Is No Federal Question. .......... 12
C. This Court Should Decline To Reach Any
Purported Federal Issues Before They Are
NG neh cash peaknd ba deeb eeeee es 13
Il. A Requirement Of Mandatory Interlocutory
Review Of Class Certification Orders Is Foreclosed
By Principles Of Federalism. ............... 14
III. The Trial Court Did Not Make A Choice Of Law
Decision And The Class Is Certifiable Under
Illinois Or Multiple States’ Laws. ........... 18
IV. The Trial Court’s Decision To Certify The Class
Raises No Federal Question. ............... 21
V. InApproving The Class Notice Program The Trial
Court Correctly Applied Illinois Precedent And
The Due Process Rulings Of This Court To Its
WR -CO o wc vk inbwhas alee cet 52 24
CIN oc 6G ch ees been cb Curia aes eae: 30
CO ee
Vv
TABLE OF CITED AUTHORITIES
Cases Cited: Page
Adams v. Robertson, 520 U.S. 83 (1997) ........... 13
Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) ..... 20
AmChem Prods. Inc. v. Windsor, 117 S. Ct. 2231
GROREE S55 Gpsdiccectanciuuaks baeracueece a ae ae
Anderson v. City of Bessemer, 470 U.S. 564 (1985) .. 27
Ashwander v. TVA, 297 U.S. 288 (1936) ........... 14
Bazemore v. Friday, 478 U.S. 385 (1988) .......... 23
BMW of North America, Inc. v. Gore, 517 U.S. 559
CRP 4 86655 chk sss be Leuyseus sean eee 18, 19
Board of Educ. of Los Angeles v. Superior Court,
OG Ta. See CODON coe w caw s ceaanvewebkies 12
Branch v. European Autohaus, Ltd, 424 N.E. 2d 6 (Ill.
SUED 56S 5n a oar ku sends Cendiad Gerckhe eae 8
Branti v. Finkel, 445 U.S. 507 (1981) .............. 27
Carey v. Scotillo, 417 N.E. 2d 1356 (Ill. 1981) ...... 11
Cartt v. Superior Court, 124 Cal. Rptr. 376 (Cal. App.
SO VAE SiS EUCL CRN auc aeres 666 SE Rei ce vEhes 29
City of New York v. New York, New Haven & Hartford
ek ek Be eee 28, 29
|
|
vi
Table of Cited Authorities
Page
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)
-chovedbd bts bes Wk wae hawelebaee nee 6, 10, 11, 17
Cope v. Metropolitan Life Insurance Co., 696 N.E. 2d
POUL SAU ROOD cdc f-wntawes Casta deesee ee ead 22, 23
Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) .... 10, 12
Department of Banking of Nebraska v. Pink, 317 U.S.
BOW C29GE) 6 6 ck hisses ee te eee 8, 9, 10, 11
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) .. 28
Ex Parte Masonite, 681 So. 2d 1068 (Ala. 1996) .... 14, 15
Flanagan v. United States, 465 U.S. 259 (1984) ..... 7
Flores v. Dugan, 435 N.E. 2d 480 (Ill. 1982) ....... 9
Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ...... 13
Frank v. Teachers Ins. Annuity Assoc. of America, 71 Ill.
BE POO MAS TOD 66.506 eRe Rese ec cele eke caeeenl 28
GE v. Joiner, 118 S. Ct. $512 (1997) ............... 24
Gillette Co. v. Miner, 459 U.S. 86 (1982) ........... 11
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) .. 27
Gordon v. Boden, 586 N.E. 2d 461 (Ill. App. 1991) .. a
Table of Cited Authorities
Page
Gospel Army v. Los Angeles, 331 U.S. 543 (1947) ... 8
Hanlon v. Chrysler Corp., 1998 U.S- App. LEXIS 11957
SES SEED oeekhia sa ecader sansa thes bie ae 25
Hansberry v. Lae, 311 U.S. SZ CIDR) cccccscccnnes 25
Herd v. Pitcairn, 324 U.S. 117 C1945) 2c ccceccssces 13
Hernandez v. New York, 500 U.S. 352 (1991) ....... 27
Illinois v. Gates, 462 U.S. 213, (1983) ............. 18
In re Domestic Air Antitrust Litigation, 141 F.R.D. 534
Se SEE hacen hace deaweer wed eee 29
In re: Prudential Ins. Co. Am. Sales Practices Lit. Agent
Actions, 1998 U.S. App. LEXIS 17057 *92-93 (3d
ee eae dees eeeee Rr hee eeareiweusy a3
Johnson v. Frankell, 117 S. Ct. 1800, (1997) ....... 14, 17
Lindsey v. Normet, 405 U.S. 56 (1972) ............. 24
sient
Lockwood Motors, Inc. v. General Motors Corp., 162
Pa ee a es RD eae Ween ks de aean eens 23
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .. 25
Lynch v. New York Ex Rel Pierson, 293 U.S. 52 (1934)
Piece uke k WERE EAs CPSES OL RE RKe eae CeS eS 13
vill
Table of Cited Authorities
Page
Lynumn y. Illinois, 372 U.S. 528 (1963) ........... 13
Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir.
IPR TD havin sind beeen ¥iskeeeks cou 23
Market St. Railway Co. v. RR. Comm'n of California,
ae Gh Ue LAE conn ak 0a 0 bs laa eeereee ane 8,9
Maryland and Virginia Eldership of the Churches of
God v. Church of God at Sharpsburg, 396 U.S. 367
LPP pik wa dale <o-53 450.40 00k ok eee ee 21
Miner v. Gillette Co., 428 N.E. 2d 478 (Ill. 1981), cert.
dismissed, 459 U.S. 86 (1962) 2... ccccccceccecs 4, 11
| am Ewe iy § io 0S | Peer 17
Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
ee LN SUREE 6 cs oho kee ieee keke a chanes 27, 28, 29, 30
National Marine, Inc. v. The Illinois Env’n Protection
Agency, 639 N.E. 2d 571 (Ill. 1994) ............ 14
North Dakota State Bd. of Pharmacy v. Snyder’s Drug
weeens, fae... S14 UR, 2b CaP iae ok sven seadeoss 7,8
O’Hara v. State Farm Mut. Auto. Ins. Co., 484 N.E. 2d
oe eS errr rr eee Serer Tre Tee 9
Owen v. Mann, 475 N.E. 2d 886 (Ill. 1985) ........ 5
ix
Table of Cited Authorities
Page
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ..... 15
The People ex rel. Hartigan v. The Illinois Commerce
Comm'n, 117 Ill. 2d 120, 510 N.E. 2d 865 (1987)
St UR paeweneh kab ransbcependekchwaseanebeos en 18
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)
Bs ct hee Ne eg ie eh gue aituaar aaa BM e 2, 6, 15, 18, 19, 20, 21, 25, 28, 29
Radio Station WOW, Inc. v. Johnson, 326 U.S. 120
GREE Lednss eee enad acd tliin ok Senet kde wees 7,8
Regional Rail Reorganization Act Cases, 419 U.S. 102
FOTO \kckved cata whoobabnetes s+ seceehauakess 7
Relph v. The Bd. of Educ. of DePue Sch. Dist., 420 N.E.
Bt ee he 4 5 ccs bawankceacee da wecskas 9
Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62
Edin Cee Red tha 4 oe aUEs ChE URS bene ee 7,8
Simcox v. Simcox, 546 N.E. 2d 609 (Ill. 1989) ...... 14
3
. South Chicago Community Hosp. v. The Industrial
Comm'n, 254 N.E. 2d 448 (Ill. 1969) ........... 9
Sperry Rand Corp. v. Larson, 554 F.2d 868 (8th Cir.
: Ee RR eee a eed REE ae 21
Statland v. Freeman, 493 N.E. 2d 1075 (Ill. 1986) ... 5
Table of Cited Authorities
Page
Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003
CEE 5 ako WEA GA ea oc we keeeueeawn ciuaaes 13
Stembridge v. Georgia, 343 U.S. 541 (1952) ........ 18
Street v. New York, 394 U.S. 576 (1969) ............ 13
Sun Oil v. Wortman, 486 U.S. 717 (1988) .......... 15
Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) .... 10
Texaco-Cities Service Pipeline Co. v. McCaw, 695 N.E.
De ee Ge SE 5 bic peea cece cae’ 18
Texas v. United States, 118 S. Ct. 1257 (1998) ...... 13
United States v. Armour & Co., 402 U.S. 673 (1971)
BP ES re Pe re Ee ne Se eR ee re 24
United States v. Johnston, 268 U.S. 220 (1925) ..... 21
United States v. Scheffer, 118 S. Ct. 1261 (1998) .... 24
Walker v. City of Hutchinson, 352 U.S. 112 (1956) .. 28, 29
Warth v. Seldin, 422 U.S. 490 (1975) .............. 13
Wolf v. Weinstein, 372 U.S. 633 (1963) ............. 21
Wright v. Stone Container Corp., 524 F.2d 1058 (8th
Ga Stee bead pcuw aon 05 0a ee ee 21
xi
Table of Cited Authorities
Page
Statutes Cited:
Ry See OER eb ig b bed 600d dado ek Keves ees 18
Wes BEE E oo cs Vaceciiasuers. Sy Bee Fo Ot Bde 48
Se TE Sia oo ad heen ae oes 10
Se ee RO 4S chr Ka ed eee he 17
806 Fla. Admin. Cod. Ann. 4-166-027(10) ......... 20
United States Constitution Cited:
Pe He hs oe yk Se A ee eRe 7
PO MUI oo os oink k ce ck nace i, ii
Rules Cited:
PO RE eee ecu ciacsateakios cieneewis 2, 16, 28
Wa Sh a OED hoe ke eeciyee casei kucacs 5, 16
Ps Se ME hb Ais kk ay b 5 Ok Kee k ok che ee 24
Pee We Ss PE ie hak oe shah nas ae ch 24
WN I I a a a A ee 24
xl
Table of Cited Authorities
Page
ee ee 8 Bee rr rT eee 5, 9, 11, 16
eee a ee errr es 4, 16, 17
ees SU. Ss EE i Sc Sonos anus unkes cee 1]
eo eK . era ee ee i ere a 1]
CR BU OUD oo vgn Aish 5 4b oe eee 10
Other Authorities Cited:
ee eR eR RD ho kn kn os es ee ee 20
wee GE EEE Gaba neous ecu 19
Address of Chief Justice Vinson before the American Bar
Association, September 7, 1949, 69 S. Ct. v, vi ... 21
Cabraser, “Life after AmChem: The Class Struggle
Continues,” 31 L.A. L. Rev. 373 (1998) ......... 15
Forde, Class Actions (Ill. Inst. for CLE 1996) ....... 15
Manual for Complex Litigation, Third (Federal Judicial
Center 1995), § 30.232 to designate subclasses,
Fa Ea SEE & hk CA a dak ee hoe eh hes 9
Fae EE. ook ie baa eee eae 15
Fae Cee Dk. kw cb kde Kawa icone 15
Tae Se SE hob ob ke kad 2
xili
Table of Cited Authorities
Page
SE I ob a i Se vy soda oe 9, 23
Te ean eave 9
Robert L. Stern, et. al., Supreme Court Practice 108 (7th
ad ei aii uwdseedesds os 12
APPENDIX
Appendix A — Order Of The Supreme Court Of Illinois
I ccc ccacceseseees la
Appendix B — Transcript Of Proceedings Dated February
os a ia vs ng cot ed es scenc 2a
Appendix C — Record Sheet ..................... 1Sa
Appendix D — Court-Ordered Class Action Notice .. 16a
l
OPINIONS BELOW
Respondents note two additional opinions below: (1) A
January 21, 1998 Illinois Supreme Court unreported order, without
opinion, taking no action on State Farm’s first petition for
extraordinary writ (Res. App. A); (2) The Trial Court’s
February 26, 1998 unreported order denying State Farm’s request
for leave to file interlocutory appeals of the class certification and
notice rulings (Res. App. B).
STATEMENT OF JURISDICTION
This Court lacks jurisdiction to entertain this Petition under
28 U.S.C. § 1257. See infra at 7-14.
STATEMENT OF THE CASE
The underlying iawsuit, Snider v. State Farm Mut. Auto. Ins.
Co., is a straightforward consumer deceptive practices and breach
of uniform contract case, involving one company’s common course
of conduct, and a comparison of what plaintiffs claim is a deceptive
and illegal disparity between its standard contract provisions and
its actual auto repair practice. The suit was brought in Illinois,
where State Farm is headquartered, and from where the conduct at
issue emanates. The suit was filed in Illinois State court because
there is no federal statute involved and the minimum amount in
controversy for diversity jurisdiction is not met. Lead plaintiff/class
representative Tammy Snider was a resident of Marion, Williamson
County, Illinois, where the suit was filed. The Trial Court certified a
plaintiff class, and ordered the dissemination of notice. The parties are
preparing for trial. State Farm has attempted to delay these proceedings
by, inter alia, pursuing multiple specious interlocutory appeals.
A. The Trial Court’s Certification Order Was Based On A
Substantial Factual Record Submitted By Both Parties at a Four-
Day Evidentiary Hearing.
l. The class certification hearing conducted by the Trial Court
included a four day evidentiary hearing that included exhaustive
testimony from both parties, and the admission of 189 exhibits
from Plaintiffs, plus substantial evidence from State Farm,
regarding the way State Farm determines what it will pay to repair its
2
insureds’ cars when accident claims are made. (/d. at 6, 8-9.) The
evidence proved that State Farm’s insurance policies include materially
identical contractual provisions that require State Farm to pay to restore
insureds’ cars to their pre-loss condition using parts of “like kind and
quality.” In an alleged violation of this contractual language, State
Farm allows coverage only for the cheapest parts, even when such
parts are imitation “non-original equipment manufacturer” (‘‘non-
OEM”) parts.
Plaintiffs demonstrated at the class certification hearings that the
trial in this case will involve common issues: First, the Trial Court
must decide if the 25 imitation, non-OEM “crash parts” that are the
subject of the Snider action (the order attached as Pet. App. C defines
the class of insureds and specifies the 25 crash parts involved in this
case) are categorically and inherently inferior. Second, the Trial Court
must resolve the legal question of whether Petitioner, by requiring the
uniform use of these parts, and through a course of conduct designed
to conceal the true import of this practice from its policyholders,
breached its contractual obligations and committed consumer fraud.'
2. On December 5; 1997, the Trial Court issued its 17-page
opinion summarizing the evidence and finding that plaintiffs satisfied
the numerosity, commonality, typicality, adequacy of representation,
predominance and practicability requirements of 735 ILCS 5/2-801,
et seq., Illinois’ counterpart to Fed. R. Civ. P. 23, warranting certification
of the plaintiff class, whose members reside in 48 states. Trial Court’s
opinion, the culmination of five months of intensive Class-related
briefing and hearings, reflects careful consideration of applicable Illinois
state precedent and federal jurisprudence, including AmChem Prods.
Inc. v. Windsor, 117 S. Ct. 2231 (1997) and Phillips Petroleum Co. v.
Shutts, 472 U.S. 797 (1985), and the evidence, arguments and proposed
orders and findings presented by both sides.
1. Nothing in this lawsuit will prevent State Farm or anyone else from using
non-OEM parts, provided it does so under appropriate policy language and that it
fully discloses its claims practice. Plaintiffs seek from the Trial Court a judgment that
corrects State Farm’s deceptive practice, enables consumers to make fully informed
decisions about their insurance coverage, and gives State Farm’s policyholders what
they paid for, nothing more and nothing less.
3
Petitioner incorrectly asserts that the Trial Court made a choice-
of-law ruling in its certification order; it did not. Instead, the Trial
Court held that, under the particular factual circumstances of this
case, it was likely that the Court could apply Illinois law to all
claims. The Snider court held:
While it is not necessary for the Court at this time
to decide upon choice of law as to the breach of
contract claim, it does note that the eventual
decision as to choice of law will not prevent the
certification of the Class in this case. .. . The Court
retains the right to divide the litigation into a
manageable number of sub-classes under 2-802(b)
Should differences in law present themselves.
(Pet. App. at lla (emphasis added)). Illinois law, and United
States Supreme Court precedent, provide that the Trial Court
may apply forum law classwide or, in the alternative, apply
multiple states’ laws and create any necessary subclasses. The
Trial Court’s class certification order recognizes these
alternatives. (/d. at 10a-11a.)?
At the Trial Court concluded: “Plaintiffs will now have the
opportunity to try and prove the merits of their claims, which is an
entirely different matter from establishing the requirements for class
certification.” (Pet. App. at 16a.)
B. The Trial Court’s Notice Order Was Based Upon The
Evidence Presented By The Parties.
Both parties extensively briefed the notice issue with each
party submitting a class notice proposal supported by evidence
and affidavits. The Trial Court then held a full-day evidentiary
hearing on December 29, 1997. (Lodging App. at 12.) Afterwards,
2. When the Trial Court makes a choice of law determination, class
members and other interested persons (including State Attorneys General and
Commissioners of Insurance, all of whom are aware of the Snider action) may
seek to demonstrate that a particular state’s law affords more protection and
better remedies to class members resident in that state. In that instance, the Court
may (and has indicated that it will) create subclasses for the benefit of such
residents. (/d. at 11a.)
4
both parties submitted additional briefing. On February 25, 1998,
the Trial Court issued a 13-page order directing implementation of
a notice plan similar to the plan submitted by Respondents. As
refined by the trial court, the Snider notice plan (described in more
detail, infra at 26-27) called for publication of notice in six major
national publications and over 850 local newspapers, covering
every state. The notice was disseminated over the Internet and by
“earned media” efforts which generated news and feature stories
on the Snider action. The notice plan, which has now been
completed, cost over $585,000, and reached over 78% of the
potential class members (7/9/98 Notice Imp. Aff. at 2), a
substantially higher percentage than Petitioner’s mailed notice
would have reached.
. response to Petitioner’s contentions that due process required
mailed notice in this case, the Trial Court found that petitioner was
unable to provide a reasonably accurate or complete list or class
members, and that mailed notice was therefor ineffective and
impracticable. (/d. at 26a.) The Court held:
[nJothing in Mullane requires individual mailed
notice be afforded to an inaccurate and incomplete
list of class members, especially given the equally
or more effective published notice campaign which
can be implemented in this case.
(Id. at 29a.)
C. Petitioner State Farm Has Pursued Multiple Appeals And
Otherwise Acted To Delay The Pretrial Proceedings.
1. Although Illinois practice (like federal practice) allows for
interlocutory appeal when the trial court finds that “immediate
appeal from the order may materially advance the ultimate
determination of the litigation,” Ill. Sup. Ct. Rule 308(a), and
although this procedure is available to review class certification
orders, Miner v. Gillette Co., 428 N.E. 2d 478, 480 (Ill. 1981),
cert. dismissed, 459 U.S. 86 (1982); Gordon v. Boden, 586 N.E.
2d 461 (Ill. App. 1991), Petitioner chose to voluntarily bypass
this normal procedure for seeking appellate review. Instead, on
the close of business on December 23, 1997, Petitioner filed a
eee eee ee ee
5
petition for extraordinary writ with the Illinois Supreme Court.
Petitioner chose to appeal directly to the Illinois Supreme Court
despite the fact that mandamus is an “extraordinary remedy,”
Statland v. Freeman, 493 N.E. 2d 1075, 1977 (Ill. 1986), which
“will not lie to correct an abuse of discretion.” Owen v. Mann,
475 N.E. 2d 886, 890 (Ill. 1985).°
On January 21, 1998, the Illinois Supreme Court declined to
grant Petitioner’s request for discretionary extraordinary relief. (Res.
App. A.)
2. Next, State Farm filed for and received an ex parte
temporary restraining order on January 28, 1998, from the Hon.
Albert Green to stop the ongoing Snider v. State Farm litigation.*
1/28/98 Hearing at 18-22. After Respondents made a special
appearance, Judge Green determined that he had been misinformed,
and presented incomplete and misleading information by State
Farm, and had erred in issuing the temporary restraining order.
2/4/98 Hearing at 34-36.
3. On February 25, 1998, after briefing and hearing, the Trial
Court entered its order approving the class notice plan. (Pet. App.
D.) Petitioner then requested leave under II]. Sup. Ct. Rule 308 to
seek interlocutory review of the court’s certification and notice
orders. Declining Petitioner’s request, the Trial Court noted:
In the almost three months since this class was
certified, there has not been any request for a
3. Because Illinois practice currently affords the opportunities for
discretionary review of class certification orders that Federal practice may
prospectively provide under the new Rule 23(f), anticipated to become effective
December 1, 1998, this case does not present the Question of a lack of adequate
review that Petitioner and amicus assert. Rather, Petitioner failed at what we
assume to be a strategic choice to attempt to end run the normal course of
interlocutory appeal in its home State’s courts.
4. Anearlier case involving non-OEM parts, Krusinski v. State Farm, No.
87C7 10253 had been filed in Cook County Illinois Court and assigned to the
Hon. Albert Green. Judge Green certified an Illinois-only class after State Farm
had agreed to settle claims arising from its use of non-OEM parts which had
occurred prior to April 16, 1994. This case was entirely concluded, and the Snider
class definition excluded these claims.
6
Rule 308 appeal by State Farm or really any inkling
given to the Court that any such request would be
made. We are now 11 months away from the
scheduied trial date in this case, and... significant
resources have already been expended. .. . [A] Il the
issues ... that State Farm requests for interlocutory
appeal can, of course, be decided by direct appeal
[after] trial. (Res. App. at 13a.)
The next day, Petitioner again filed a request for extraordinary
writ with the Illinois Supreme Court, raising the three issues it
raises before this Court. After extensive briefing on March 24,
1998, that Court issued an order denying, without opinion, the
motion for extraordinary writ. ( Pet. App. A.)
SUMMARY OF ARGUMENT
State Farm’s Petition should be denied on the following
grounds:
¢ Jurisdiction. This Court lacks jurisdiction under 28 U.S.C.
§ 1257 because there is no final judgment, and no federal issue.
* Ripeness. Even if jurisdiction did exist, this Court should
decline review because issues raised by Petitioner are not ripe for
review; the underlying orders are inherently tentative and subject
to alteration by the state trial court.
¢ No Mandatory Review of Certification Orders. Petitioner’s
request for mandatory interlocutory review of a trial court decision
certifying a class is improper, under this Court’s decision in Coopers,
and under the principles of federalism which protect the ability of
State courts to control their own appellate procedures.
* Choice of Law. The Trial Court’s finding that any eventual
decision as to choice of law would not bar certification raises no
federal question. The eventual hearing before the Trial Court will
show there are no true conflicts under Philips Petroleum Co. v.
Shutts, assuming, arguendo, any conflicts existed, Illinois has
sufficiently substantial governmental interests to apply its law to
all claims. Petitioner and Amicus will have a full opportunity to
7
present their choice-of-law arguments to the Trial Court before
any final determination is made.
¢ Class Certification. The Trial Court’s class certification
decision was consistent with the substantial evidentiary record
created by the parties, raises no federal question, and is consistent
with applicable law.
* Notice. No rule of law or reason requires a trial court to
order notice by mail, where such notice is demonstrated to be
impracticable and effective, and where notice by publication is
proved to be effective in providing actual notice.
REASONS FOR DENYING THE WRIT
I. THIS COURT CANNOT AND SHOULD NOT
ENTERTAIN PETITIONER’S REQUEST FOR
INTERLOCUTORY REVIEW.
A. There Is No “Final Judgment” To Be Reviewed.
This Court’s power to review State court decisions is limited
by Art. U.S. Const. Art. III § 2, which gives this Court “appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.” Ever since
1789, Congress has granted this Court power to review only “[f]inal
judgments or decrees rendered by the highest court of a State in
which a decision could be had.” 28 U.S.C. § 1257.5
5. The final judgment rule is an important component of our federal system.
Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67 (1 948). First, the final
judgment rule “avoids the mischief of economic waste and of delayed justice,”
Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945), by allowing
cases to proceed to and through trial without being subjected to expensive and
time-consuming piecemeal review by this Court. See Flanagan v. United States,
465 U.S. 259, 264 (1984) (same). Second, by requiring a full trial and appellate
record the rule “avoids giving advisory opinions in cases where there may be no
real ‘case’ or ‘controversy’ in the sense of Art. III.” North Dakota State Bd. of
Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 159 (1973); see also
Regional Rail Reorganization Act Cases, 419 U.S. 102, 144 (1974) (same). Third,
the final judgment rule allows consideration of state law issues first, thereby
avoiding premature or unnecessary constitutional adjudication. Republic Natural
(Cont'd)
TSE CNS Oe ee t e me e
—— amma
8
The judgment upon which review is sought is not final. Any
reviewable judgment must be final in two senses:
It must be subject to no further review or correction
in any other state tribunal; it must also be final as an
effective determination of the litigation and not of
merely interlocutory or intermediate steps therein. It |
must be the final word of a final court.
Market St. Railway Co. v. RR. Comm’n of California, 324 U.S.
548, 551 (1945).
[T]he test is not whether under the local rules of
practice the judgment is denominated final . . . but
rather whether the record shows that the order of
the appellate court has in fact fully adjudicated
rights and that that adjudication is not subject to
further review by a state court.
Department of Banking of Nebraska v. Pink, 317 U.S. 264,
268 (1942) (per curiam) (emphasis added).
eS Se ee a ee ee,
— rT. Se.
The effect of a judgment under local practice plays a key role
in determining if a judgment is final. As in Gospel Army v. Los
Angeles, 331 U.S. 543, 548 (1947), where jurisdiction was found
lacking because “the effect of the judgment under state practice is
to remand the case for a new trial,” the practical effect of the
judgment below under Illinois law will begin our analysis of the
lack of a “final judgment” below.
Under Illinois law, finality “is determined by the substance as
opposed to the form of the order.” Branch v. European Autohaus,
Ltd, 424. N.E. 2d 6, 8 (Ill. 1981). A final judgment is “a
determination by the court on the issues presented by the pleadings
which ascertains and fixes absolutely and finally the rights of the
(Cont'd)
Gas Co., 334 U.S. at 71. Finally, as Justice Frankfurter noted in Radio Station
WOW, Inc., “this prerequisite to review derives added force when the jurisdiction
of this court is evoked to upset the decision of a State court,” /d., 326 U.S. at
124, as it “leave[s] at a minimum federal intrusion in state affairs.” North Dakota
State Bd. of Pharmacy, 414 U.S. at 159.
a
3
sil
9
parties in the lawsuit.” Flores v. Dugan, 435 N.E. 2d 480, 482
(Ill. 1982). “Where an order of the court leaves a cause still pending
and undecided, it is not a final order.” O'Hara v. State Farm Mut.
Auto. Ins. Co., 484 N.E. 2d 834, 836 (Ill. App. 1985).
Denial of review is not a final judgment. As the court in South
Chicago Community Hosp. v. The Industrial Comm’n, 254 N_E.
2d 448, 449 (Ill. 1969), found:
[t]he order which dismissed writs of certiorari . . . is
plainly interlocutory. It did not decide the right to
compensation, nor did it determine a separate issue
of the litigation which will result in its final
disposition.
See also Relph v. The Bd. of Educ. of DePue Sch. Dist., 420 N.E.
2d 147, 150 (Ill. 1981) (denial of leave “has no precedential
effect and in no way amounts to a consideration of the merits.”).
Under Illinois practice the decision below is therefore not a
final judgment. The order neither ascertained nor fixed absolutely
and finally either Respondents’ or Petitioner’s rights. The order
upon which certiorari is sought left the underlying dispute still
pending, with discretionary interlocutory relief under III. Sup. Ct.
Rule 308, direct appeal as of right under III. Sup. Ct. Rule 301 or
further petition via writ to the Illinois Supreme Court still available.®
Because “further review or correction” Market St. Railway Co.,
324 U.S. at 551, is available under Illinois state procedure as a
matter of discretion and right, and the decision of the Illinois
Supreme Court has not “in fact fully adjudicated rights,” Pink,
6. The underlying orders of the Trial Court are not final orders. Under
Illinois law the certification order is not final and can — as the Trial Court did
with its February 11, 1998 order, modifying the class definition to add a “crash
parts” definition — be modified at any time. See 735 ILCS § 5/2-802. Likewise
the court is free to order additional notice, see 735 ILCS
§ 5/2-802(b); Manual for Complex Litigation, Third (Federal Judicial Center
1995), § 30.232 to designate subclasses, 735 ILCS 5/2-803, or to make a choice
of law determination at an appropriate time.
10
317 U.S. at 268. Review by this Court is therefore foreclosed as a
matter of federal law under 28 U.S.C. § 1257.’
State Farm implies that “finality,” for purposes of 28 U.S.C.
§ 1257 jurisdiction, is the rejection by a State’s highest court of
any particular petition for review, even if review may be obtained
at a later date by the filing of a subsequent appeal. This semantic
argument is unable to nullify the express limits placed on this
Court by 28 U.S.C. § 1257.8
7. The Trial Court’s orders would not be final under 28 U.S.C. § 1291
either. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978).
First, such an order is subject to revision in the District Court. . . .
Second, the class determination generally involves considerations
that are “enmeshed in the factual and legal issues comprising the
plaintiff's cause of action.” . . . Finally, an order denying class
certification is subject to effective review after final judgment,
Id. (internal citations omitted). Coopers applies with equal force to the review of
State court judgments under 28 U.S.C. § 1257. C.f., Cox Broad. Corp. v. Cohn,
420 U.S. 469, 502 (Rehnquist, J. dissenting). Foreclosing review in this case
this Court noted: “we hold that orders relating to class certification are not
independently appealable under § 1291 prior to judgment.” Coopers & Lybrand,
437 U.S. at 470.
8. By neither raising nor relying upon the exceptions to finality under
28 U.S.C. § 1257 contained in Cox Broad. Corp., supra, State Farm waived
these arguments under Sup. Ct. Rule 14.1(a). See Taylor v. Freeland & Kronz,
503 U.S. 638, 645 (1992) (issues may not be raised for first time in opening
brief). Respondents feel constrained, however, to note that this is not a
circumstance where these special rules might apply.
First, this is not the case where “the federal issue is conclusive or the outcome
of further proceedings preordained,” Cox Broad. Corp., 420 U.S. at 477, 479.
Although Respondents would be pleased to have Petitioner concede liability,
both trial on the merits and Petitioner’s right to an appeal persist. Both present
Opportunities to decide the case without decision on the federal issues. Second,
this is not a circumstance where “the federal issue, finally decided by the highest
court in the State, will survive to require decision regardless of the outcome of
further state-court proceedings.” /d. at 480. Any number of rulings prior to or at
trial, or the eventual judgment itself in this case, could be against Respondents,
thereby removing the need to decide the Federal issues. Third, this is not a situation
(Cont'd)
1]
The flaw in Petitioner’s apparent argument is shown by Gillette
Co. v. Miner, 459 U.S. 86 (1982). In Miner, the Illinois Supreme
Court had provided interlocutory review of class certification issues
under Ill. Sup. Ct. Rule 308, see Miner, 428 N.E. 2d at 480, and
remanded the case to the trial court. Jd. at 20. In a per curiam
opinion this Court held, “[t]here being no final judgment, the writ
of certiorari is dismissed for want of jurisdiction.” Gillette Co.,
459 U.S. at 86.
Both Interlocutory appeals under Ill. Sup. Ct. Rule 308 and
petitions for extraordinary writ under Rule 381 and 383 are at the
court’s discretion, and the result on remand — further
proceedings — are identical. Carey v. Scotillo, 417 N.E. 2d 1356,
1359 (Ill. 1981). Allowing jurisdiction to be founded merely on
the name of the relief sought; mandamus vs. interlocutory appeal;
as Petitioner appears to argue, would disregard this Court’s
admonition that:
The test is not whether under the local rules of
practice the judgement is denominated final . . . but
rather whether the record shows that the order of
the appellate court has in fact fully adjudicated rights
and that the adjudication is not subject to further
review by a state court.
Pink, 317 at 268. Where the results of the order below are
identical to that in Gillette Co.; further proceedin gs in the trial
court, this Court’s conclusion must be identical — there is no
jurisdiction under 28 U.S.C. § 1257.
(Cont'd)
where “the federal claim has been finally decided . . . [and] later review of the
federal issue cannot be had, whatever the ultimate outcome of the case.” /d.
at 801. Nothing in Illinois law prevents Petitioner from raising these issues again.
Fourth, this is not a circumstance where “the federal issue has been finally decided
in the state courts . . . [and] arefusal immediately to review the state-court decision
might seriously erode federal policy.” /d. at 482-483. The argument that special
tules of finality are necessary in class actions to prevent parties from settling was
unanimously rejected in Coopers & Lybrand, 437 U.S. at 467-470. This ruling
requires rejection of any argument by Petitioner that if it cannot secure review, it
may have to compromise the underlying action. See also infra, n.14 (empirically
challenging Petitioner’s contention).
12
The cases cited by Petitioner entirely fail to support its simplistic
argument that because other mandamus petitions have been “final,”
the Illinois Supreme Court’s denial of mandamus is “final” under
28 U.S.C. § 1257. Each case cited by Petitioner is distinguishable
because the underlying State court’s action (styled as mandamus
or prohibition): (1) addressed and decided the federal issues on
the merits with no further review available; and (2) conclusively
determined the constitutional limits of a lower court’s jurisdiction.
Here, the only issues raised by State Farm concern a trial court’s
findings on the record; none concern issues of power to adjudicate,
which are traditionally raised in separate proceedings. Also, here
there is no indication the Illinois Supreme Court based its decisions
on the federal question Petitioner asserts, nor did its decision
foreclose further review.’ Petitioners have not cited a single case
arising in circumstances similar to those of this Petition were this
Court has found jurisdiction, and the undersigned counsel have
been unable to locate one.
B. There Is No Federal Question.
The denial of leave below without opinion also raises serious
jurisdictional questions which foreclose review at this time. The
Illinois Supreme Court may have declined leave as a matter of
discretion, on state substantive or procedural grounds, or due to
the lack of a federal issue. It is impossible to know, or to divine,
the reasoning of the Illinois Supreme Court or to determine if they
decided, or erred in deciding, a federal issue.
9. The final opinion cited by Petitioner, Board of Educ. of Los Angeles v.
Superior Court, 448 U.S. 1343 (1980), is merely a statement of probable jurisdiction
by then-Justice Rehnquist sitting as Circuit Justice. It is also not clear that the
jurisdictional issues were clearly raised or briefed by the parties. Then-Justice
Rehnquist's statement in Board of Educ. of Los Angeles should be viewed as an
example of the exceptions in Cox Broad. Corp., supra, n.8, not at issue here. Petitioners
in that case requested a stay of an action they contended would destroy their federally
protected rights, thereby implicating the fourth Cox Broad. exception. See id. No
such claim is or can be made by Petitioner here.
Defendant also cites to Robert L. Stern, et. al., Supreme Court Practice 108
(7th ed. 1993). However, nowhere in that work do the authors suggest that jurisdiction
exists in the circumstances of this case.
SSS eT ELE RE
13
It is well-recognized that this Court lacks jurisdiction to review
decisions based upon independent and adequate state grounds.
Fox Film Corp. v. Muller, 296 U.S. 207 (1935). This being so,
this Court has held that it lacks jurisdiction absent a showing by
Petitioner that the court below decided the federal issue, and rested
its decision on federal grounds, ‘rather than state law. As Chief
Justice Hughes noted:
jurisdiction cannot be founded on surmise .. . It is
essential to the jurisdiction of this Court in reviewing
a decision of a court of a State that it must appear
affirmatively from the record. ... that its decision
of the federal question was necessary to the
determination of a cause, and that it was actually
decided.
Lynch v. New York Ex Rel Pierson, 293 U.S. 52, 54 (1934).
Because there is no opinion below, this Court should presume
that the Illinois Supreme Court’s refusal to entertain State Farm’s
request for extraordinary writ was an exercise of that court’s
discretion or a decision on matters of local practice. See Adams v.
Robertson, 520 U.S. 83 (1997); Street v. New York, 394 U.S. 576,
582 (1969) (Harlan, J.). The presumption that the decision below
was not made on a federal issue should be at its strongest when, as
here, see, e.g., infra, n.10, 14, adequate and independent
grounds — which were highlighted in Respondents’ briefs to the
Illinois Supreme Court — appear on the record, and there is no
indication that the State court based its decision on federal law.
Herb v. Pitcairn, 324 U.S. 117, 128 (1945); cf. Lynumn vy. Illinois,
372 U.S. 528, 535 (1963).
C. This Court Should Decline To Reach Any Purported
Federal Issues Before They Are Ripe.
Whether the issue is considered one of standing, see, e.g.,
Warth v. Seldin, 422 U.S. 490, 516 (1975); Steel Co. v. Citizens
for a Better Env’t, 118 S. Ct. 1003, 1016 (1998): avoidance of
advisory opinions, see, e.g., Herb, 324 U.S. at 126; refusal to
consider issues not ripe for decision, see, e.g., Texas v. United States,
118 S. Ct. 1257, 1259 (1998); or the respect for sister courts
ia
required by our system of federalism. See, e.g., Johnson v. Frankell,
117 S. Ct. 1800, 1807 (1997), it is well established that this Court
will not reach and decide issues prior to the necessity of their being
decided. See Ashwander v. TVA, 297 U.S. 288, 346 (1936)
(Brandeis, J. concurring). Each of these doctrines, compels the
conclusion that this Court must decline to decide an issue thai the
state courts of Illinois have neither addressed (the choice of law
issue) or which can be modified or overturned prior to the issue
reaching this Court (the class certification and notice decisions)."°
Accordingly, none of the issues raised in State Farm’s Petition is
ripe for review, and the Petition should therefore be denied.
Il. A REQUIREMENT OF MANDATORY INTER-
LOCUTORY REVIEW OF CLASS CERTIFICATION
ORDERS IS FORECLOSED BY PRINCIPLES OF
FEDERALISM.
Petitioner contends, without empirical or factual support, that
defendants are compelled to settle large class actions once they are
certified, and that therefore, “it is critical that the Court act now to
review the class certification order rather than wait until after the
trial on the merits.” (Petition at 28.)'' In other words, Petitioner
10. The Illinois Supreme Court also refuses to issue advisory opinions or
entertain cases before they are ripe, National Marine, Inc. v. The Illinois Env’n
Protection Agency, 639 NE. 2d 571,575 (ill. 1994); Simcox v. Simcox, 546 N.E. 2d
609, 612 (Ill. 1989), which constitutes independent and adequate state grounds.
11. Thiscontention is refuted by the Snider record (see Lodging App.); Plaintiffs
are preparing for trial, not pressing for settlement. To support itSclaim that certification
decisions are coercive, defendant cites to a single case, Naef v. Masonite, contending
itis an example of a trend of coercive settlements that require a new rule of immediate
interlocutory relief. These arguments are wrong. First, the undersigned counsel was
one of Plaintiffs’ counsel in the Masonite case. Rather than settling as a result of the
Class certification order itself, the defendant actually settled after defendant had availed
itself of the opportunity for interlocutory review via petition for writ of mandate to
the Alabama trial court, which was denied, Ex Parte Masonite, 681 So. 2d 1068
(Ala. 1996), followed by a jury trial that decided, after a four-week trial, that
defendant’s product had been defective. Second, the regional chauvinism and disdain
for State courts that infects Petitioner’s argument has no place in this Court’s
- consideration. Petitioner’s suggestion that the filing of class actions asserting
(Cont'd)
aa 2am a a wa
15
argues that this Court should interpose itself to keep the class from
trial because Petitioner might lose.'? Respondents are charged with
“forum shopping,” as if this Court could or should rewrite the
laws that entitle plaintiffs to file cases where they live against
defendants who conduct business there. What rule would Petitioner
have this Court impose that could remove Snider from its current
venue? Petitioner can hardly claim surprise, prejudice or
inconvenience with respect to Snider’s filing in Williamson County,
Illinois. Petitioner has chosen to subject itself to Illinois venue
laws, which provide for venue in any county in which a defendant
does business; or, in the case of insurers, where an insured resides.
See 735 ILCS 5/2-101, 2-103(e). Petitioner has long been
headquartered in Illinois and does substantial business throughout
the State. By its own count, Petitioner insures one in three Illinois
(Cont'd)
state claims in certain State courts subverts due process is belied by the record
and the facts of both Masonite and Snider. Nor is there basis for Petitioner’s
undifferentiated and offensive disparagement of State courts. As noted in Cabraser,
“Life after AmChem: The Class Struggle Continues,” 31 L.A. L. Rev. 373, 368-
94 (1998) (from which Petitioner quotes a single sentence wildly out of context),
State court experience with class actions predates the Federal Rules: moreover,
“there is an entirely justified preference for State courts as class certification
courts of first resort since these are courts of general, not limited, jurisdiction and
must address the [state law] issues.” Jd. at 387. The certification of nationwide
Classes by State courts is hardly a novel or aberrant phenomenon, and this Court
has upheld their propriety. See, e.g., Shutts, supra; Sun Oil v. Wortman, 486 U.S.
717 (1988). Illinois has a rich and well-developed body of class action precedent,
and its class action rules are fully congruent with, and predate, those of the
federal courts. See Forde, Class Actions (Ill. Inst. for CLE 1996).
12. This Court previously rejected Petitioner’s fundamental argument that
because it has chosen to break its contract and defraud many millions of
individuals (rather than just a few people), it should be entitled to special
procedural protections under the Due Process Clause. That a party’s exposure to
liability should be coextensive with the magnitude of its conduct constitutes the
essence of Due Process, not its violation. See Pennzoil Co. v. Texaco, Inc., 481
U.S. 1, 34 (1987) (Stevens, J. concurring) (“The character of harm that may
flow from this litigation is not different from that suffered by other defeated
litigants . . . The price of even-handed administration of justice is especially high
in some cases, but our duty to deal equally with the rich and the poor does not
admit of a special exemption for multibillion-dollar corporations or transactions”).
16
residents. Petitioner did not seek removal to federal court. Under
current federal and state law, the Trial Court has, and has properly
exercised, jurisdiction over Petitioner and the Respondent Class.
Whatever the merits of Petitioner and Amici’s policy arguments
that this Court should somehow “federalize” all class action law,
this case does not present an opportunity to consider the issue.
Noting the proposed amendments to Fed. R. Civ. P. 23 giving
the federal courts of appeals discretion to hear appeals from the
grantor denial of class certifications, Petitioner argues “[t]his wise
change to the federal rules currently has no counterpart in most
states, including Alabama, Illinois, and other magnets for class
action litigation.” Petition at 30. This argument is disingenuous.
Rather than utilizing the provisions of II]. Sup. Ct. Rule 308(a), to
request the discretionary interlocutory relief Petitioner claims it
was denied, Petitioner voluntarily chose to bypass the available
normal procedure for appellate review and seek mandamus directly
from the Illinois Supreme Court under the more stringent standard
applicable to that relief. Only after having been rejected on its first
end run to the Illinois Supreme Court did Petitioner approach the
Trial Court and request leave under Ill. Sup. Ct. Rule 308 to review
that Court’s notice order and the December 5, 1997 certification
order — in short, current Illinois state and federal practice are
consistent.and Petitioner had access to the relief it claims it was
denied.
Petitioner in essence seeks an order from this Court legislating
the mandatory review of class certification orders, something
proposed Fed. R. Civ. P. 23(f) does not itself contemplate.'? The
imposition of such a requirement of interlocutory relief, or a ruling
from this Court holding that it is an abuse of discretion not to
13. Proposed Rule 23(f) was submitted to Congress by this Court on
April 24, 1998. It will provide as follows:
(f) APPEALS. A court of appeals may in its discretion permit an
appeal from an order of a district court granting or denying class
action certification under this rule if application is made to it within
ten days after entry of the order. An appeal does not stay
proceedings in the district court unless the district judge or the
court of appeals so orders. {emphasis supplied]
17
entertain direct interlocutory appeal to the state’s highest court rather
than an intermediate appellate court, would be at odds with prior
decisions of this Court, and significantly upset the carefully crafted
balance between federal and state courts. In Coopers & Lybrand,
437 U.S. at 476, this Court unanimously rejected Petitioner’s
argument and held that “[t]he Courts of Appeals have correctly
concluded that orders granting class certification are interlocutory,”
id., and that allowing mandatory appeals “involve questions of
policy for Congress.” Jd.
For these reasons (which apply with equal force to State Farm’s
petition), this Court rejected the essence of Petitioner’s argument:
“the fact that an interlocutory order may induce a party to abandon
his claim before final judgment is not a sufficient reason to consider
it a ‘final decision’ within the meaning of § 1291.” Jd at 477. In so
holding, this Court pointed to the availability of discretionary
interlocutory review under 28 U.S.C. § 1292(b) — which confers
rights identical to those available under IIl. Sup. Ct. Rule 308(a) —
as the appropriate vehicle for review.
In Johnson, supra, this Court unanimously rejected the claim
that a State court must allow mandatory interlocutory appeals of
some federal issues, id., 117 S. Ct. at 1805, and rejected the
principle that a failure to entertain interlocutory appeals is ‘outcome
determinative,’ noting that “the claim will be reviewable . . . after
the trial court enters a final judgment, thus providing the petitioners
with a further chance to urge their” claims. Jd. at 1806.
Given that the Due Process Clause does not require Petitioner
be afforded any appeal at all, M.L.B. v. S.L.J., 117S. Ct. 555,
566 (1996), the extensive opportunities for interlocutory relief
Illinois has afforded Petitioner are far more process than is due.
18
III. THE TRIAL COURT DID NOT MAKE A CHOICE
OF LAW DECISION AND THE CLASS IS CERTIFIABLE
UNDER ILLINOIS OR MULTIPLE STATES’ LAWS.
Asserting arguments not raised before the Trial Court,'*
Petitioner wrongly attacks a choice-of-law decision which the Trial
Court has not yet made, and that the Trial Court expressly reserved
for decision at a later time."°
1. The Trial Court’s discussion of choice-of-law issues was
strictly and properly limited to the issue of whether variations in
law might preclude certification of a class. In determining they
would not the Trial Court discussed Shutts, supra, and Illinois
precedent that had applied the Illinois Consumer Fraud Act to the
claims of out-of-state plaintiffs under Shutts.
Rather than presenting the Trial Court with relevant differences
in state law, requesting that subclasses be created, or requesting
any ruling on the choice-of-law issue, Petitioner instead sought
mandamus from the Illinois Supreme Court. The arguments
Petitioners and amici make to this Court aré properly to be made,
: 14. Before the Trial Court, State Farm relied exclusively on Shutts, supra,
neither discussing BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996),
nor the Commerce Clause on which it now relies. Likewise, Petitioner failed to
raise the McCarran-Ferguson Act, 15 U.S.C. § 1011 and much of the extensive
material contained in the Petition at 12, n.7. Arguments not raised before a trial
court, including constitutional challenges, are waived under Illinois law. Texaco-
Cities Service Pipeline Co. v. McCaw, 695 N.E. 2d 481 (Ill. 1998); The People
ex rel. Hartigan v. The Illinois Commerce Comm'n, 117 Ill. 2d 120, 131,510
N.E. 2d 865, 869 (1987). Claims not properly raised in State court are not
reviewable in this Court. /llinois v. Gates, 462 U.S. 213, 217-19 (1983).
Stembridge v. Georgia, 343 U.S. 541, 547-8 (1952).
15. Petitioner does not contend that the Trial Court erred in finding that
any eventual choice-of-law decision would not bar certification. Nothing in this
Court’s decisions, requires that the choice-of-law issue be conclusively
determined at the time certification is granted. Shutts, 472 U.S. at 801. Instead,
the Trial Court, looking at the facts of this case, determined only that choice-of-
law issues would be manageable because Illinois would likely apply to all claims,
and, if not, because a limited number of sub-classes could be created to address
any variations of law.
19
if at all, to the Trial Court. Any class member or other person
whose legal interests are affected by the choice of law determination
may address this matter in the Trial Court at any time. Because
there has been no final decision on this issue, this Court should
reject Petitioner’s request to interfere with the trial court’s decision-
making process and prematurely decide a constitutional issue. See
supra, at i3-14.
2. Even if the Trial Court had decided to apply Illinois law
to all class members’ claims, its decision would have been fully
consistent with Shutts. “There could be no injury in applying [forum
state] law if it is not in conflict with that of any other jurisdiction
connected to this suit.” Shutts, at 816 (bracketed text added).
The Petition contains an extensive footnote which attempts to
show — for the first time on appeal — the existence of true conflict
of law.'® Each of these purported conflicts is false, and does not
trigger the need to make an interest determination under Shutts.
The Massachusetts regulation cited by Petitioner requires the use
of non-OEM parts only when such parts are “of like kind and
quality,” 211 CMR 1303-04(1). This presents no conflict, and
16. Petitioner’s argument, in effect, is that if such a conflict exists then
application of Illinois law will undercut the principles of BMW of North America,
Inc. v. Gore, 517 U.S. 557 (1995). This argument is based upon a false premise
that the underlying lawsuit will foreclose use of non-OEM crash parts. Plaintiffs
do not challenge the use of non-OEM crash parts other than to the extent that
Petitioner has contracted to restore policyholders’ vehicles to their “pre-loss
condition” or to use parts of “like kind and quality.” Nothing in the underlying
lawsuit seeks to prohibit the use of non-OEM crash parts other than under
Petitioner’s current contractual language.
Gore is also distinguishable. Gore was not a multistate class action, as is
this case, but an individual action brought by a single plaintiff. Rather than
involving choice-of-law determinations, Gore concerned the permissible scope
of punitive damages in a non-class case. Finally, unlike this case, Gore involved
an arguable attempt by a State court to control defendant’s conduct in other
States whose residents or claims were not before the court or connected in any
way to Alabama. Here, ail plaintiffs’ claims are fundamentally connected to
Illinois because the misconduct emanates and is ultimately controlled from Illinois
and all transactions between Petitioner and the class have an Illinois nexus.
20
instead raises the common fact issue which will be adjudicated on
the merits by the Trial Court. Similarly, Hawaii’s provision cited
by Petitioner requires the availability of “‘a like kind and quality
part of an equal or better quality than the original equipment
manufacturer part only if such part is available.” HRS § 431:10C-
313.6(a) (emphasis added). Again, this Hawaii regulation raises
but does not answer exactly the same issues raised in this case: are
non-OEM external body “crash parts” of like kind and quality to
OEM parts? Neither State requires or even recommends the use of
imitation parts if they are not equivalent to OEM parts.
Petitioner’s reliance upon disclosure statutes to show a “true
conflict” exists is similarly unavailing. The weakness of Petitioner’s
argument is demonstrated by its citation to Florida regulations in
claiming that “some States permit the use of non-OEM parts even
without disclosure.” Petition at 12, n.7. 806 Fla. Admin. Cod.
Ann. 4-166-027(10), reads in its entirety:
No insurer shall require the use of replacement parts
in the repair of an automobile unless the parts are at
least equal in kind and quality to the original parts
in terms of fit, quality, and performance.
This regulation raises no “true conflict,” and in fact supports
the Trial Court’s determination that possible conflicts of law
would not prevent certification of the class.
More generally, as the brief discussion of these regulations
shows, a determination if true conflicts exist is an inherently fact-
based inquiry which is not appropriate for resolution by this Court
on the basis of a few misleading citations by Petitioner. Shutts,
472 U.S. at 823.
Finally, assuming, arguendo, that true conflict exists, Illinois
law may nevertheless be constitutionally applied to all Plaintiff’s
claims. If a true conflict exists, the state’s substantive law can be
constitutionally applied if “that State [has] a significant contact or
significant aggregation of contacts, creating state interests, such
that choice of its law is either arbitrary or fundamentally unfair.”
Shutts at 818 (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302,
312-313 (1981)). Not only is Petitioner headquartered in Illinois,
21
but the relevant contract language, fraudulent practices, practice of
using non-OEM parts, and control over the policy of non-OEM
parts use originated in, was directed from, and was implemented
through State Farm executives located in, and operating from, the
State of Illinois. This conduct “implicates the legitimate interests
of the State of Illinois in ensuring that persons and entities within
its jurisdiction . . . [act] in accordance with its law.” (Pet. App. at
11a.) It is also not unfair, arbitrary, or beyond “the expectation of
the parties,” Shutts, 472 at 822, that Illinois law might be applied
to all claims against Petitioner; State Farm should reasonably expect
that Illinois law may control a case involving an Illinois insurance
company and conduct which emanated from Illinois.
IV. THE TRIAL COURT’S DECISION TO CERTIFY
THE CLASS RAISES NO FEDERAL QUESTION.
Based upon review of an extensive factual record, and its
application of the correct law to those facts the Trial Court found
that the litigation should be managed as a class action, and should
ultimately be tried on a class basis. Petitioner now seeks to relitigate
this non-final decision before this Court. See 735 ILCS 5/2-802.
Because the discretionary certification decision of the Trial Court
raises no substantial federal question, this Court should deny review.
See Maryland and Virginia Eldership of the Churches of God v.
Church of God at Sharpsburg, 396 U.S. 367, 367 (1970); Wolf v.
Weinstein, 372 U.S. 633, 636 (1963).
1. The decision to certify, or not to certify, a case is
discretionary and inherently fact-specific. Wright v. Stone
Container Corp., 524 F.2d 1058, 1061 (8th Cir. 1975). Petitioner
improperly requests de novo by this Court to the Trial Court’s
factual findings regarding certification. Such relief is not available.
Sperry Rand Corp. v. Larson, 554 F.2d 868, 873 (8th Cir. 1977).'”
17. This Court “is not, and never has been, primarily concerned with the
correction of errors in lower court decisions.” Address of Chief Justice Vinson
before the American Bar Association, September 7, 1949, 69 S. Ct. v, vi. See
also United States v. Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a
certiorari to review evidence and discuss specific facts.”’).
22
2. Petitioner’s principal challenge to the State court’s trial
certification decision rests on State Farm’s assumption that it will
prevail on the merits, i.e., that Plaintiffs will not be able to prove at
trial that non-OEM crash parts are categorically inferior and sub-
standard, and, that the case is therefore not manageable. The Trial
Court rejected this argument based upon the factual submissions
of both parties. (Pet. App. at 10a, 15a.)
In arguing the Trial Court erred in deciding this case could be
tried by Plaintiffs on the basis of classwide proof, Petitioner fails
to inform this Court that at least two courts, including one in Illinois,
have certified state-wide classes involving exactly the same issues
which were certified in this case for trial against this same
Defendant.
More generally, Petitioner’s argument on manageability rests
on irrelevant cases decided in unrelated factual situations. Here,
the Trial Court was presented with sufficient classwide proof that
State Farm’s form contracts and actual practices were standard,
and that Plaintiffs can rest their case on common evidence that the
non-OEM crash parts at issue are inferior. This decision neither
erred nor raises a substantial federal question suitable for review
by this Court.
The appropriateness of certification in cases like this for trial
through class-wide proof was most recently recognized in Cope v.
Metropolitan Life Insurance Co., 696 N.E. 2d 1001 (Ohio 1998)
in which the Ohio Supreme Court reversed the trial and appellate
courts’ rulings denying class certification, rejecting the contention
that “individualized proof” or “individualized scrutiny of each
transaction” would be necessary to determine each claim. Cope
restates the prevailing view of the federal and State courts in the
consumer context:
Courts generally find that the existence of common
misrepresentations obviates the need to elicit
individual testimony. ... They recognize that when
a common fraud is perpetrated on a class of persons,
those persons should be able to pursue an avenue of
23
proof that does not focus on questions affecting only
individual members.
Id. at 1004 (citing federal cases). As Cope also noted:
Courts also generally find that a wide variety of
claims may be established by common proof in cases
involving similar form documents or the use of
standardized procedures and practices.
Id.; see also AmChem, 117 S. Ct. at 2250; In re: Prudential
Ins. Co. Am. Sales Praciices Lit. Agent Actions, 1998 U.S.
App. LEXIS 17057 *92-93 (3d Cir. 1998); cf. Bazemore v.
Friday, 478 U.S. 385, 398 (1988). Rejecting the argument
Petitioner makes in this case, one court recently noted,
considering the tacts of the case presented, a claim
will meet the predominance requirement when there
exists generalized evidence which proves or
disproves an element on a simultaneous, class-wide
basis, since such proof obviates the need to examine
each class member’s individual position.
Lockwood Motors, Inc. v. General Motors Corp., 162 F.R.D.
569, 580 (D. Mn. 1995).
Class certification in this case will enhance due process by
allowing individuals who could not otherwise challenge Petitioner’s
uniform practice of specifying inferior non-OEM parts in the repair
of their vehicles to seek recompense. See AmChem, 117 S. Ct. at
2246 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344
(7th Cir. 1997). (“The policy at the very core of the class action
mechanism is to overcome the problem that when small recoveries
do not provide the incentive for any individual to bring a solo
action prosecuting his or her rights.”’).
Petitioner now argues that due process is abridged by a trial
court’s decision to try a case on a class basis. This argument attempts
to prove too much. A class certification order properly prevents
Defendant from usurping Plaintiffs’ prerogative to choose the
method of proof of their claims. Only if sufficient class-wide proof
is presented at trial to show that State Farm’s specification of the
, '
24
non-OEM crash parts at issue cheats policyholders or constitutes a
breach of its contract, will the Class prevail. Defendant is not
prevented from showing its practices are proper or justified. The
class certification decision in no way deprives Petitioner of its right
to a defense; it merely frames the issues relevant to Plaintiffs’ case
in chief.
The cases cited by Petitioner, without regard for their holdings
or context, entirely fail to support Petitioner’s argument that the
class action device, by allowing class-wide proof, violates due
process. Lindsey v. Normet, 405 U.S. 56, 66 (1972) and United
States v. Armour & Co., 402 U.S. 673, 682 (1971), stand for the
principle that an individual has a right to make its arguments to a
court; they do not require the court to allow an individual to
continue to argue a discredited point once the court has ruled.
As with decisions to exclude evidence, see United States v.
Scheffer, 118 S. Ct. 1261 (1998), or expert testimony, see GE v.
Joiner, 118 S. Ct. 512 (1997), no due process principle allows
Petitioner to require the opposing party to present evidence or
proof the Trial Court found inadmissible and irrelevant. See Fed.
R. Ev. 401, 402. In fact, the express power to do, what State Farm
claims the certification order did as a matter of fact — exclude
irrelevant issues as a “waste of time” — is expressly granted to trial
courts by Fed. R. Ev. 403. Simply put, there is nothing in the
process of allowing a Plaintiff Class to attempt to prove its claims
by common, rather than individual proof, that violates any principle
embedded in the historical meaning of the Due Process Clause. In
any event, no evidence or defense has been excluded, since the
trial has not yet taken place!
V. IN APPROVING THE CLASS NOTICE PROGRAM
THE TRIAL COURT CORRECTLY APPLIED ILLINOIS
PRECEDENT AND THE DUE PROCESS RULINGS OF
THIS COURT TO ITS FACTUAL FINDINGS.
Petitioner’s notice argument has two primary defects:
(1) Petitioner incorrectly assumes — contrary to the trial court’s
findings — that mailed notice is practicable or effective under the
circumstances of this case, where the only record of class member
25
addresses is inaccurate and out-of-date; and (2) Petitioner assumes
that regardless of the ineffectiveness of mailed notice, mailed notice
must always be given in lieu of a demonstrably more effective
published notice campaign, as if the “best practicable notice”
standard mandated a slavish commitment to form rather than
result.'®
To meet the “best practicable” notice standard, under the
particular circumstances of the Snider action, Plaintiffs submitted
a comprehensive fifty-six page notice plan supported by evidence
as to its “reach”’® and effectiveness. The Plan has been
implemented. It consisted of three elements:
18. Because Petitioner must “have suffered an ‘injury in fact’ — an invasion
of a legally protected interest which is (a) concrete and particularized. . . . and (b)
‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (internal citations omitted) and no such injury exists in this
case, Petitioner lacks standing to assert rights of class members to a particular form of
notice. Petition’s citation to Shutts in an effort to show standing fails to note that this
Court allowed defendant to raise the claim that the court did not have jurisdiction
over members of the plaintiff class, Shutts,47 U.S. at 806, such that any judgment in
defendant's favor would have been a nullity —a concrete injury. Because the right
to opt out is personal to the individual and opt-outs do not have the right to pursue
competing class actions, Hanlon v. Chrysler Corp., 1998 U.S. App. LEXIS 11957
at 25 (9th Cir. 1998), the only harm that Petitioner potentially faces is the risk that, if
Petitioner succeeds on the merits, an individual might argue that notice was inadequate
and — assuming that she could convince a court that: (1) she had no actual notice;
(2) if mailed notice had been sent, she would have received it; and (3) would then
have exercised her opt-out rights — file an individual claim. Asa practical matter,
the doctrine of collateral estoppel would likely bar any such individual claims,
Hansberry v. Lee, 311 U.S. 32 (1940), and given the small size of the individual
claims at issue in this lawsuit, the threat of harm Petitioner claims is at best merely
“hypothetical.” See AmChem, 117 S. Ct. at 2246.
19. In marketing/communications parlance, “reach” is a term of art referring
to the ability of a message to be actually read or heard by the intended recipient. By
contrast, the fact that a mailed notice may (or may not) be placed in an addressee’s
mailbox does not demonstrate that it has actually “reached” (been opened or read
by) that person. To the contrary, evidence developed by the U.S. Postal Service
through their household diary study, presented by Plaintiffs, unrefuted by Defendant,
and noted by the trial court, showed that 46.6% of official and governmental mailings
are not read immediately, completely and/or are discarded unread.
26
First, the Plan included a nationwide publication plan which
placed the notice in publications targeted to reach the highest
number of class members. Notice was placed in major magazines,
as well as over 850 newspapers nationwide. (Pet. App. at 23a.)
The notice was prominently placed in the main news section in
readable type with eye-catching headings. (Hilsee Aff. at 6.) Second,
the plan generated news coverage of the lawsuit and the opt-out
deadline. (Pet. App. at 23a.)” Third, the plan involved placing
notice on the Internet at a dedicated website promoted via placement
on all major Internet search engines and through Banner advertising.
(Id.)
In support of this comprehensive multi-part notice plan
Plaintiffs presented expert testimony and scientifically verifiable
figures that the notice program would “reach” at least 76.4% of
the class members. (/d. at 24a.) As implemented, the notice plan
reached over 78% of class members. (Notice Impl. Aff. at J 6.)
Petitioner proposed a notice plan, rejected by the Trial Court,
that relied on mailed notice to an inaccurate list of names. Petitioner
suggested that notice be mailed to one of two alternate lists: (1) an
admittedly grossly under-inclusive list that contained 1.8 million
names and addresses, some substantial portion of whose addresses
were outdated and incorrect, (Pet. Aff. at 26a); and (2) an admittedly
grossly over-inclusive list of nearly 19.1 million State Farm policy
holders, only a small portion of whom were class members, and
many of whose addresses were also inaccurate. (/d.)
In deciding what notice to provide, the Trial Court indicated
its assessment of the credibility of Respondent’s submissions,
noting that their notice expert’s testimony was credible, (id. at 24a),
and then that the data presented to the court to show that the notice
plan would have a ‘net reach’ of at least 76.4% of the potential
class members were “supportable and verifiable.” (/d.) The Trial
Court determined that Petitioner’s claims (now renewed before
this Court) were factually not credible. (Jd. at 25a.)
20. Those efforts were fully implemented, resulting in at least 6,197 articles
and broadcast appearing, thereby reaching a total audience of over 36,600,000
people. (Notice Impl. Aff. at { 6.)
27
The Trial Court found that “State Farm has not presented,
and is not able to present, a reasonably accurate list of potential
class members from its records,” (id. at 27a), or “any scientifically
verifiable facts which indicate that the reach of their proposed
mailing (if it could be done accurately) and limited publication
notice plan equals or surpasses the reach of Plaintiffs’ Notice Plan.”
(Id. at 27a.) Petitioner asks this Court to disregard Petitioners’ own
submissions below, and the Trial Court’s carefully factual findings,
to independently declare that the Trial Court’s determinations of
credibility and its weighing of the evidence was erroneous, and to
simply substitute the findings Petitioner sought, but could not
support, below, for those the Trial Court made.?!
In requesting review of these factual determinations, Petitioner
raises no substantial Federal Issue nor does it cite to any evidence
the Trial Court ignored, or any flaws in its reasoning. Rather,
Petitioner claims that the Trial Court’s “principal rationale was its
conclusion that mailed notice would be no more effective than
publication notice” in all cases. Petition at 22. The court below
found that the specific notice plan submitted by respondents was
more effective than the mailed notice plan submitted by Petitioner,
which called for mailing to an inaccurate and incomplete list of
individuals, and thus was not reasonably calculated to reach the
members of the class under the particular circumstances of this
case.
In deciding the notice issue, the Trial Court expressly
considered Mullane v. Central Hanover Bank & Trust Co., 339
21. This Court’s usual practice is to “defer to state-court factual findings,
even when those findings relate to a constitutional issue.” Hernandez v. New
York, 500 U.S. 352, 366 (1991). The presumption of correctness of a trial court’s
factual findings is especially strong when, as in this case, those findings “are
based on determinations regarding the credibility of witnesses.” Anderson v.
City of Bessemer, 470 U.S. 564, 575 (1985). When this Court reviews judgments
which are truly final, as this judgment is not, it has the benefit afforded bya
review of the record by both the trial court and one or several appellate courts
and need not consider the factual issues “absent the most exceptional
circumstances.” Branti v. Finkel, 445 U.S. 507,512 (1981); Goodman v. Lukens
Steel Co., 482 U.S. 656, 665 (1987).
28
U.S. 306 (1950), and Shutts, supra, and found that due process
required the flexible notice requirement, also embodied in Illinois
decisions, which required the best notice practicable given the
unique circumstances of this case. (Pet. App. at 29a.)
Petitioner cites to Eisen v. Carlisle & Jacquelin, 417 U.S. 156
(1974), and other cases (Petition at 22-23) for the erroneous
proposition that notice by mail is always required, regardless of
the facts of a case. However, the cited quotes from Eisen (and the
other cases cited by Petitioner) stand for a different proposition:
that “notice by publication has long been recognized as a poor
substitute for actual notice.” Id. 417 U.S. at 175 (emphasis added).”
It is, of course, self-evident that there may be a considerable
difference between actual notice and even the best practicable notice
available in a case, whether that notice is mailed or published. It is
the latter, not the former that is required. Shutts, 472 U.S. at 812.
In each case Petitioner cites to support its per se preference for
mailed notice, there were two major differences from the
comprehensive notice published in this case. First, in each,
“tombstone” notice was buried in the back of a newspaper — in
effect a notice designed not to give actual notice, to “reach” the
class, or to be read. Mullane, 339 U.S. at 315. See Walker v. City
of Hutchinson, 352 U.S. 112, 113(1956); City of New York v.
New York, New Haven & Hartford RR Co., 344 U.S. 293, 294
(1953); Mullane, 339 U.S. at 309. Here, by contrast, the notice
22. The Trial Court committed no error in relying upon decisions of the
Illinois Supreme Court in Frank v. Teachers Ins. Annuity Assoc. of America,
71 Ill. 2d 583, 594 (1978) and other courts that Eisen was neither constitutionally
based, nor required notice via mail to the inaccurate and incomplete list petitioner
presented to the Trial Court. Petitioner’s contention that Eisen is constitutionally
binding is belied by the language of that case and by how it was cited by this
Court in Shutts. Shutts based its requirement as to what notice was constitutionally
required under the Due Process Clause in multi-state class actions squarely upon
this Court’s holding in Mullane. See Shutts,472 U.S. at 812 (quoting Mullane).
In his opinion for the Court, then-Justice Rehnquist merely cited to Eisen as a
“cf’ citation, suggesting it was not direct support as to what notice was
constitutionally required. The Eisen opinion itself repeatedly makes crystal clear
that its decision rested upon the requirements of Rule 23, not Due Process. See,
e.g., Eisen, 417 U.S. at 172, n.10, 172-73, 177.
areal
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29
was placed prominently to catch class members’ attention and was
distributed nationwide with multiple opportunities for class
members to read it. Second, unlike here, the actual address of the
person sought to be reached in each case cited by Petitioner was
known. See Walker, 352 U.S. at 116; City of New York, 344 U.S. at
296; Mullane, 339 U.S. at 318. Petitioner’s cases are therefore
inapposite.
It is not the selection of a particular medium of notice (é.g.,
mail) that is essential, but the selection of the most effective medium
of notice that is practicable in a particular case. Shutts, 472 U.S. at
812 (“ ‘The notice must be the best practicable ‘reasonably
calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an Opportunity to
present their objections.’ Mullane, 339 U.S. at 314-315.”)
Rejecting the per se rule petitioner advocates one court noted:
Here — for all the reasons previously noted — all
we know is that among the 70,000 addresses there
will be a substantial number of class members. As
for the rest — perhaps as many as half— the mailing
is an idle act.... Neither due process nor the
integrity of the class action process demands such
useless and wasteful procedures.
Cartt v. Superior Court, 124 Cal. Rptr. 376, 381 (Cal. App.
1975) (emphasis added); In re Domestic Air Antitrust Litigation,
141 FR.D. 534 (N.D. Ga. 1992).
At bottom, the rule proposed by Petitioner fails to comport
with the essential (and common sense) holding of Mullane that
“the means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it.”
Id. 339 U.S. at 315. Basing notice on a mailing list containing
significant inaccuracies would never be the means employed oy
one reasonably desirous of actually reaching a group of individuals,
especially if the list only contained a small portion of the individuals
sought to be reached, as did the list rejected by the Trial Court.
Indeed, the mailing list Petitioner presented to the Trial Court is
the functional and due process equivalent of the published notice
30
rejected by this Court in Mullane. Based upon the Trial Court’s
factual determinations, this Court’s precedent, and common sense,
this Court must decline Petitioner’s invitation to relitigate these
pretrial procedural determinations by the Trial Court.
CONCLUSION
The Court should deny the petition for a writ of certiorari.
Respectfully submitted,
ELIZABETH J. CABRASER
Counsel of Record
MORRIS A. RATNER
SCOTT P. NEALEY
LIEFF, CABRASER, HEIMANN
& BERNSTEIN, LLP
Attorneys for Respondents
Tammy Snider, Michael Avery
and Plaintiff Class
275 Battery Street, 30th Floor
San Francisco, CA 94111-3339
(415) 956-1000
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APPENDIX A — ORDER OF THE SUPREME COURT
OF ILLINOIS DATED JANUARY 21, 1998
Supreme Court of Illinois
January 21, 1998
No. 84639
No. 84640
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
Petitioner,
SUZANNE M. KRUSINSKI, ET AL.,
Respondents.
THE COURT HAS TODAY ENTERED THE FOLLOWING
ORDER IN THE CASE OF:
This cause coming to be heard on the motions of the
movant, State Farm Mutual Automobile Insurance Company,
responses having been filed by respondents, replies having been
filed by the movant, and the Court being fully advised in the
premises;
There being sufficient votes to allow or deny any of the
motions, the Court takes no action on the motions.
Chief Justice Freeman, Justice Miller, and Justice McMorrow
would have allowed the motion to transfer and consolidate,
and the motion to stay.
Justice Bilandic took no part in these cases.
2a
APPENDIX B — TRANSCRIPT OF PROCEEDINGS
DATED FEBRUARY 26, 1998
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL
CIRCUIT WILLIAMSON COUNTY, ILLINOIS
No. 97-L-114
JEANNE M. TETER TAMMY SNIDER, and MICHAEL E.
EVERY, On Behalf of Themselves and All Others Similarly
Situated,
Plaintiffs,
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY,
Defendant.
REPORT OF PROCEEDINGS
Report of proceedings of the motion hearing before the
Honorable John Speroni on February 26, 1998.
APPEARANCES:
FOR THE PLAINTIFFS:
G. PATRICK MURPHY
FOR THE DEFENDANTS:
KENT BRANDON
Jennifer J. Young, CSR
Williamson County Courthouse
Marion, Illinois 62959
CSR# 084-003584
3a
Appendix B
THE COURT: The Court is going to call to order Case
number 97-L-114, Snider et al., versus State Farm. Present in
open court is Attorney Patrick Murphy representing the Plaintiffs
and Attorney Kent Brandon on behalf of the Defendants, State
Farm.
The court would note for the record that yesterday —
yesterday being February 25th C the Court entered an order
setting the exclusion request deadline, approving the form of
notice of class certification, and directing the implementation
of the notice plan.
After the Court entered the order and the order was filed
with the clerk, State Farm filed several motions, two of which
specifically being the motion for reimbursement of discovery
costs and the motion to redact portions of its data bases or, in
the alternative, for in camera review of opinion work product,
don’t have anything to do with the matters we are here on today,
nor does a motion to continue trial dates, which was filed.
Another motion, however, is entitled motion for leave to
respond to Plaintiffs’ new notice submissions and the — excuse
me — stay the effects of any order providing for publication
on the class in the pending presentation of Rule 308 motion.
This morning when I arrived at the courthouse, my
secretaries advised me that there had been a request for a hearing
this morning. And thereafter, State Farm filed a motion — when
I say “this morning”, it’s February 26, 1998 — State Farm had
filed a motion entitled State Farm’s motion to certify for
interlocutory appeal requests regarding class certification and
notice, and, Two, to stay proceedings. And that is the motion
the Court believes the parties wish to proceed on or have asked
the Court to hear today.
4a
Appendix B
Before we proceed to arguments, Mr. Brandon, as I would
read State Farm’s motion for leave to respond to Plaintiffs’ new
notice submissions and to stay the effects of any order providing
for publication on the class in the pending presentation of the
Rule 308 motion, I would see that motion as moot at this point
since the Court had already ruled before the motion was filed,
and since apparently we are here already on a 308 motion.
MR. BRANDON: I believe that’s correct, Your Honor.
THE COURT: Well, the Court then from the bench is
simply going to rule on that motion and deny it as moot.
Are there any other housekeeping matters we need to take
up before we hear arguments on the motion filed today to certify
for interlocutory appeal certain questions? Mr. Murphy?
MR. MURPHY: No.
THE COURT: Mr. Brandon?
MR. BRANDON: No, Your Honor.
THE COURT: All right. Mr. Brandon, I’ll hear State Farm’s
arguments on the motion to certify interlocutory appeal certain
questions.
MR. BRANDON: May it please the Court, I believe the
Court has accurately stated the procedural history at this point.
I would say this, Your Honor, however. There was some
indication in the prior order of the Court that the Court was
planning to — that the parties should assume the Court was
going to rule by February 27th. And I think based on that,
Sa
Appendix B
State Farm, without knowing that the Court had entered this
order on the 25th, had prepared and was going to hand deliver
to the Court the motion which the Court has now indicated is
moot. And State Farm had prepared that motion and was going
to file it prior to the time that the Court had ruled. And when I
arrived at the courthouse, of course, I received — I filed my
motion then proceeded to the judges’ secretaries desk where I
obtained the order of the Court.
So procedurally, the motion did become moot, but State
Farm was not aware of that.
THE COURT: The reason I did the 27th, just for clarity, I
wanted to give myself as much as time as possible. My schedule
today and tomorrow was pretty open, but I managed to work
on it earlier and got it done.
MR. BRANDON: I understand, Your Honor. I’m just
saying that the time sequence was very close together.
THE COURT: It was. It was.
MR. BRANDON: In regard to the motion that State Farm
is filing now, I think it has real similarities to the one that was
filed yesterday. And basically I think the motion is self-
explanatory. State Farm seeks from the Court the opportunity
to file — to pursue a Rule 308 procedure and is requesting this
Court to certify for immediate interlocutory appeal the notice
question. And we want to do that.
We also give the Court an opportunity to consider this
motion. And the problem that we have in the order the Court
entered yesterday by the Court, in Paragraph 31, that order
6a
Appendix B
specifically finds that the notice campaign is so to commence
upon the entry of this order.
Now, I take that to mean it would commence as soon as the
order was entered on February 25th. That being the case, State
Farm has no opportunity whatsoever to come into court and
request of the Court consideration under Rule 308 and to certify
this. And I think that by denying State Farm that opportunity,
it creates a prejudice on the part of the company.
I think in this particular case that once this notice starts and
the campaign begins, then it’s going to be very difficult to stop
that. It’s kind of like trying to unring the bell, so to speak. And
I think at least State Farm should have the opportunity to present
to the Court its 308 request to have this matter certified
interlocutory appeal. And asking for a brief amount of time to
do that certainly would not be prejudicial to the Plaintiffs.
This case is not set for trial for nearly a year. I think it’s set
on February Ist of 1999. The time frame that’s built into the
Court’s order allows an opt-out date of June Sth of 1998, which
is more than 90 days away. And if for whatever reason the
Court should have made an incorrect ruling and the Appellate
Court should see fit to alter it in any way or to reverse the
Court’s ruling, then the damage of State Farm has been done.
If the Appellate Court, after considering the 308, decides
the Court is correct, the matters can proceed accordingly. But
by not giving State Farm the opportunity to present the 308
and having things go forward without any possibility of the
308 request puts State Farm in a very difficult position.
And I think that this particular case certainly does meet the
requirements of Supreme Court Rule 308. The issue we are
7a
Appendix B
talking about here that was certification of the class involves a
question of law to which there is a substantial basis for a
difference of opinion. And one of the things we presented to
the Court is a ruling by a judge in Cook County, a ruling in a
case involving Allstate where it’s quite similar to this case, where
he found that he wouldn’t certify the class.
And it’s just an example that there might be a difference of
opinion here. And certainly the way this case has progressed I
think has demonstrated to the Court that there is a substantial
difference of opinion. And State Farm on other occasions
presented to the Court a ruling in the Deans and Sessions cases
regarding this same matter.
THE COURT: MR. Brandon, excuse me for interrupting.
But just as a point of clarification, are you asking for additional
time to present the 308 motion? Because what was filed today,
as I read it, is State Farm’s motion to certify the interlocutory
appeal and also a memorandum in support of State Farm’s
motion to certify for interlocutory appeal the class certification
and notice issues. It’s a 13-page brief.
MR. BRANDON: No. I’m sorry. I don’t mean to imply
we want more time to present the motion. That was the yesterday
motion.
THE COURT: I just wanted to make clear —
MR. BRANDON: We are just trying to establish — what I
am doing, hopefully now, is establishing to the Court the reason
why this is an appropriate 308 motion based on the statutes.
THE COURT: All right. Because that’s what I understood
we were —
8a .
Appendix B
MR. BRANDON: Exactly. Exactly.
THE COURT: And that’s why I gave you guys, in essence,
an emergency setting this morning.
MR. BRANDON: That’s correct, Your Honor. But as I
indicated, we have attached for the Court’s benefit a ruling from
the Cook County’s Allstate case where a judge there came to a
different conclusion than the Court did in this case.
And we have also presented testimony and evidence
regarding the finding, I believe, in the Deans case in Tennessee
which also is not certified.
In this particular case, an immediate appeal from this order
would materially advance the ultimate termination of litigation.
If this — if the Appellate Court should decide that this class
was not properly certified, that would have the effect of basically
ending this litigation. So the requirements of 308, I believe, are
present here.
You have got a question of law where there could be a
substantial difference of opinion. And we have demonstrated
that to the Court. And you have got a situation where if the
Appellate Court were to in any way alter your ruling or to
reverse it, it would materially advance the ultimate termination
of litigation. I think that the essence of our arguments are
contained in the motion and in the memorandum which we
have filed.
But basically State Farm believes that by not giving it the
opportunity to take the interlocutory appeal, that its rights are
being very prejudiced in this case. And by the same token, I
9a
Appendix B
don’t think the Plaintiffs’ rights would be prejudiced, because
we would get a result which we would all then know whether
or not this case should go forward.
So for this reason, State Farm is requesting that the Court
immediately certify this case for interlocutory appeal on the
questions presented here pursuant to Supreme Court Rule 308.
THE COURT: MR. Murphy?
MR. MURPHY: Your Honor, yesterday at, I believe it was,
five o’clock Pacific time, we, in fact, implemented the notice
program. We are now contractually committed, and money is
spent, and it is under way. That’s just a fact.
Now, as to the 308 matter, as Your Honor knows, that’s
well within the discretion of the trial court. We are very
comfortable with the fact that the Court’s orders are correct on
both issues well within the discretion of the trial court.
There really is no substantial dispute here as to what the
law is. Elizabeth Cabraser did the research herself on the issue
of what notice is required under these circumstances. And it is
reflected in our submissions. And we think so much of her
research and your order that we have irrevocably committed
ourselves to that particular course of action.
There is no reason to give State Farm a special appeal in
this case. They will from time to time apply to you or any other
judge they can find anywhere for some kind of special relief as
they have shown in the past. That’s just going to happen. As
we speak, we have people waiting at the Supreme Court because
we expect that they will probably make an application to the
10a
Appendix B
Supreme Court. And we have people in Cook County waiting
for them. But that’s just going to happen.
But the bottom line here is there just really isn’t any issue
that deserves this special treatment. We very carefully researched
the issue. I know Your Honor read it, because I read your order.
And there is no reason to give them this special relief. And the
only thing I want to make very clear for the record — and Mr.
Brandon wasn’t here, so he didn’t get the full flavor of what’s
happened. And I’m sure he is thankful he wasn’t — in their
memorandum they keep speaking of our new notice
submissions. We have not made any new submissions. Your
Honor ordered us to file on the 20th a proposed order containing
conclusions of law and finding of facts. And that’s just exactly
what we did. And we gave them a copy of it.
So any suggestions in their memos and their arguments
that we have snuck something in on them or done something,
which is the flavor of what they are saying, is just wrong. We
have not done any of that. We did exactly what we were ordered
to do.
So I am not going to take any more of your time. The
motion for 308 certification should be denied. There is nothing
special here that deserves this treatment. And we are irrevocably
committed as of yesterday to the notice plan. It’s under way
right now.
THE COURT: Mr. Brandon, any follow-up?
MR. BRANDON: I do not, Your Honor.
THE COURT: The Court is going to take a recess. I have
started reading the memorandum in support of State Farm’s motion
lla
Appendix B
to certify for interlocutory appeal questions regarding class
certification and notice and the — and to Stay proceedings. I
want to take the time to read that carefully and look at any law
that I need to look at. And I’ll come back as soon as I can and
rule on the record on State Farm’s motion to certify the questions
for interlocutory appeal. Where will you gentlemen be so that —
MR. MURPHY: Could I address the Court on that, Your
Honor?
THE COURT: Certainly.
MR. MURPHY: I know Mr. Brondon has to fly. If he needs
to run. If he needs to run. If he would authroize me, I would
advise him of the — I mean, I would wait and then advise your
office exactly what the Court did today.
THE COURT: Mr. Brandon, what time does your plane
leave?
MR. BRANDON: I’m not on an airplane. I am on a drive
to St. Louis.
THE COURT: And your deposition is at two o’clock?
MR. BRANDON: Yes.
THE COURT: So as long as you left by 11:30?
MR. BRANDON: I think that would be fine.
THE COURT: It’s ten minutes until 10:00. And I think I
could get through things in 30 or 45 minutes, an hour or so.
12a
Appendix B
MR. BRANDON: I don’t want to rush the Court.
THE COURT: I am not. I have read Rule 308 before. So
I’ll see what cases you have. And believe me, I'll take whatever
time I need. If it runs into more time, it just will. We will be in
recess. I’ll be back in, and we will have our ruling.
MR. BRANDON: Thank you, Your Honor.
(At which point in the proceedings a break was taken.)
THE COURT: Back on the record in 97-L-114, Snider, et
al., versus State Farm. The Court heard arguments on State
Farm’s motion to certify for interlocutory appeal questions
regarding class certification and notice, and, Two, to stay
proceedings earlier today.
The Court has now read the motion and read State Farm’s
memorandum in support of State Farm’s motion to certify for
interlocutory appeal questions regarding class certification and
notice, and, Two, to stay proceedings. The Court would note
for the record that Attorney Brandon and Attorney Murphy are
present in Court.
The Court, having read the motion and memorandum,
having done its own research both yesterday and today, and
considering the record in this case, is ready to rule on the motion.
The statute involved in an interlocutory appeal is Supreme
Court Rule 308. 308(A) provides when the trial court, in making
an interlocutory order not otherwise appealable, finds that the
order involves a question of law as to which there is substantial
-grounds for difference of opinion and that an immediate appeal
13a
Appendix B
from the order may materially advance the ultimate termination
of litigation, the Court is to so state in writing and identify the
question of law involved. And that triggers the procedure for
the Appellate Court to decide whether or not it wished to hear
the interlocutory appeal.
Both of the matters raised by State Farm, the issue of class
certification and the notice and notice plan are, in the Court’s
mind, interlocutory orders not otherwise appealable. So Rule
308 applies.
The Court would note that its class certification order was
initially entered in this case on December Sth, 1997. State Farm
in its memorandum filed today states and cites cases that the
issue of class certification is the most Significant decision
involved in a class action lawsuit.
In the almost three months since this class was certified,
there has not been any request for a Rule 308 appeal by State
Farm or really any inkling given to the Court that any such
request would be made. We are now eleven months away from
the scheduled trial date in this case, and the Court, from what it
has just seen concerning filings in the record of deposition
notices and the discovery matters the Court has been called to
rule upon already finds that significant resources have already
been expended. And Attorney Murphy earlier today in open
Court advised the Court that the notice plan which was ordered
by the Court was contractually bound, if I remember the time
correctly, at five o’clock Pacific Standard Time yesterday.
Of course, all the issues — all — both of the issues that
State Farm requests for interlocutory appeal can, of course, be
decided by direct appeal after trial. These issues of interlocutory
14a
Appendix B
appeal can really come up in every case. In fact, every time a
Defendant files a motion to dismiss, the issue becomes or could
become whether or not an interlocutory appeal is appropriate.
The Court believes the case indicates it’s something that
should be sparingly used, but should be used in an appropriate
case. So the Court, having read State Farm’s motion seeking an
interlocutory appeal and the memorandum, having done its own
research and considered the entire record and proceedings in
this case does not find that there is a question of law as to
which there is a substantial ground for difference of opinion
and that an immediate appeal from the order may materially
advance the ultimate termination of litigation. And State Farm’s
motion is denied in all respects.
Anything further from the Plaintiffs or the Defendants?
MR. MURPHY: No.
MR. BRANDON: No, Your Honor. Thank you.
7 3 * END OF PROCEEDINGS * * *
15a
APPENDIX C — RECORD SHEET
(Omitted here but printed separately as Lodging Appendix)
l6a
APPENDIX D — COURT-ORDERED CLASS
ACTION NOTICE
If you have had vehicle repairs under your State Farm auto
insurance policy, this notice may affect your rights.
Please read this Court-ordered Class Action Notice carefully.
In the Circuit Court for the First Judicial Circuit, Williamson
County, Illinois, a lawsuit is now pending titled: Tammy Snider
and Michael Avery, on behalf of themselves and all other
similarly situated, Plaintiffs, vs. State Farm Mutual Automobile
Insurance Company, Defendant, No. 97-L-114. This Notice is
directed to all members of the Plaintiff Class, defined as: All
persons in the United States, except those residing in
Arkansas and Tennessee, who (1) were insured by a vehicle
casualty insurance policy issued by Defendant State Farm
and (2) made a claim for vehicle repairs pursuant to their
policy and had non-factory-authorized and/or non-OEM
(Original Equipment Manufacturer) “crash parts” ~*
installed on their vehicles or else received monetary
compensation determined in relation to the cost of such parts.
“Crash parts” are vehicle components typically repaired or replaced
as a result of crash damage rather than as a result of normal vehicle usage.
The non-factory-authorized and/or non-OEM crash parts involved in this
Plaintiff Class are of the following types: 1) fenders, 2) hoods, 3) doors,
4) deck lids, 5) luggage lid panels, 6) quarter panels, 7) rear outer panels,
8) front end panels, 9) header panels, 10) filler panels, 11) door shells,
12) pickup truck beds, box sides, and tail gates, 13) radiator/grill support
panels, 14) grilles, 15) head lamp mounting panels/brackets/housings/lenses/
doors, 16) tail lamp mounting panels/brackets/housings/lenses, 17) outer body
mouldings, 18) door body side moulding, 19) front wheel opening mouldings,
20) side mouldings, 21) front and rear fascias, 22) outer panel mounting
brackets, supports and surrounds, 23) bumpers (excluding chrome bumpers),
24) bumper covers/face bars, and 25) bumper brackets/supports.
17a
Appendix D
Excluded from the Class are employees of Defendant State
Farm, its officers, its directors, its subsidiaries, or its affiliates.
In addition, the following persons are excluded from the
Class: (1) persons who resided or garaged their vehicles in
Illinois and whose Illinois insurance policies were issued/
executed prior to April 16, 1994, and (2) persons who
resided in California and whose policies were issued/
executed prior to September 26, 1996.
Notice of this lawsuit is given pursuant to Illinois statutes,
and by order of the Court, to inform you of the Court’s decision
to certify a Plaintiff Class, the nature of Plaintiffs’ claims, and
your right to participate in or exclude yourself from the Class.
Individual and representative Plaintiffs Tammy Snider and
Michael Avery have been appointed by the Court to function
as representatives of the Plaintiff class. Plaintiffs’ claims concern
the contractual language contained in standard form State Farm
automobile insurance policies issued nationwide, which, either
obligates State Farm to restore a policyholder’s vehicle to “its
pre-loss condition” after an accident, or to “pay to repair or
replace the property or part with like kind and quality.” While
State Farm has designed form policies specific to each state, the
contractual obligations at issue in this case are stated in
substantially identical form in State Farm policies issued
nationwide.
Under this contractual language, State Farm uniformly
specifies the use of certain non-original equipment manufacture
(“non-OEM”) replacement parts (referred to as “quality
replacement parts” by State Farm and “imitation parts” by
Plaintiffs) when these parts are available and priced lower than
original equipment manufacturer’s (OEM) parts. Plaintiffs
18a
Appendix D
contend that non-OEM crash parts are neither of “like kind and
quality,” nor are they sufficient to restore a policyholder’s
vehicle to its “pre-loss condition.” For this reason, Plaintiffs
contend that State Farm has breached its contract with its
policyholders. Plaintiffs also contend that State Farm’s use of
non-OEM crash parts and the term “quality replacement parts”
are violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act (815 ILCS 505/1 et seq.); Plaintiffs request
compensatory damages and an injunction against State Farm.
State Farm denies any wrongdoing and contends that non-
OEM parts are of “like kind and quality” to OEM crash parts,
and that they fully restore a policyholder’s vehicle to its “pre-
loss condition.” State Farm also contends that its policyholders
are informed whenever non-OEM crash parts are used, and that
its use of the term “quality replacement parts” is not misleading.
The Court has certified for litigation and trial the Plaintiff
Class of State Farm policy holders described above. The Court’s
class certification order does not decide the merits of Plaintiffs’
claims or State Farm’s defenses. Plaintiffs will be required to
prove the Class claims at trial set to commence on February 2,
1999.
Class Counsel have been appointed by the Court to
represent the interests of the Class. Class Counsel include
G. Patrick Murphy, Barrett Law Offices, the Rose Law Firm,
Much Shelist Freed Denenberg Ament Bell & Rubenstein, P.C.,
and Lieff, Cabraser, Heimann & Bernstein, LLP. You will not
be charged for Class Counsel’s services. Instead, if they obtain
a recovery for the Class, Class Counsel may apply to the Court
for payment of their reasonable attorneys’ fees and costs by
State Farm or out of any funds recovered before distribution of
19a
Appendix D
~
the net proceeds to the Class. You have the right to hire your
own attorney. If you hire your own attorney, you will be
responsible for paying that attorney’s fee. You also have the
right to seek to intervene or appear in the action with the Court’s
permission.
If you wish to remain a member of the Class, YOU NEED
NOT DO ANYTHING AT THIS TIME. As Class members,
you will be bound by all orders and judgments of the Court,
and your claims will be terminated by the judgment in this
case.
You may exclude yourself from the Class by writing to the
address below, and expressly stating in a letter postmarked by
June 5, 1998, that you wish to be excluded from the Class. If
you exclude yourself from the Class, you cannot participate in
any recovery for the Class, and you will not be bound by any
Court orders or judgments. If you wish to remain a Class
member, DO NOT send an exclusion letter.
If you have questions regarding this litigation, you may
write to: Snider, et al. v. State Farm, et al., Plaintiffs’ Class
Counsel, P.O. Box 1500, Marion, Illinois 62959. You may
also call 1-888-299-9777, or see the website at
www.sfparts.com.
PLEASE DO NOT CONTACT THE COURT.
Dated: February 25, 1998. Honorable John Speroni
Associate Circuit Court Judge.
www.sfparts.com 1-888-299-9777
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.