MEMORANDUM OPINION AND ORDER
Carole Billie Oshana (“Oshana”) filed this class action against The Coca-Cola Compa
BACKGROUND
Oshana alleges Coca-Cola employs an unfair and deceptive marketing scheme that conceals and misleads consumers into believing diet Coke from the fountain is the same product as diet Coke sold in a can or bottle. Second Am. Compl. at ¶ 1. Unlike bottled diet Coke, which is sweetened exclusively with aspartame, fountain diet Coke is sweetened with a mixture of aspartame and saccharin. Id. As a result, Oshana contends Coca-Cola has sold millions of dollars in beverages it would not have otherwise sold. Id. at ¶ 2. In addition, Oshana contends Coca-Cola has been unjustly enriched at the expense of Oshana and potential class members. Id. Oshana seeks certification of a boundless class of Illinois consumers of fountain diet Coke defined as:
All individuals who purchased for consumption and not resale fountain diet Coke in the State of Illinois from March 12, 1999, through the date of the entry of an order certifying the class. Excluded from this Class are employees, officers, and directors of Coca-Cola.
Id. at ¶ 8. Oshana contends the proposed class meets the certification requirements of Fed.R.Civ.P. 23(a), 23(b)(1)(B) and/or 23(b)(3). Id. at If 9. For the alleged Consumer Fraud Act violation, Oshana seeks disgorgement to the class of Coca-Cola’s profits from its conduct since March 12, 2001, and her individual damages for her fountain diet Coke purchases since March 12, 2001. Id. at ¶ 61. For the unjust enrichment claim, Oshana seeks disgorgement of Coca-Cola’s profits from its conduct since March 12, 1999. Id. at ¶ 67.
DISCUSSION
I. Collateral Estoppel
Before addressing the merits of the class certification motion, the court must address Coca-Cola’s argument that the motion for class certification is collaterally estopped by Zapka v. The Coca-Cola Co., No. 99 CV 8238,
The court denied Zapka’s motion for class certification, rejecting the first proposed class definition because “an identifiable class does not exist if membership in the class is contingent on the state of mind of the prospective members.” Id. at *3,
Collateral estoppel, or issue preclusion, applies when: (1) a plaintiff was fully represented in the prior action; (2) the issue sought to be precluded was involved in the prior action; (3) the issue was actually litigated to final judgment; and (4) determination of the issue was essential to the final judgment. Adair v. Sherman,
Coca-Cola relies on In re Bridge-stone/Firestone,
While Bridgestone/Firestone holds that in some circumstances denial of class certification may be given estoppel effect, courts are cautioned not to read the case as holding any ruling denying class certification is binding in future litigation. Carnegie v. Household Int’l, Inc.,
II. Class Certification
A. Legal Standard
A court has broad discretion to determine whether class certification is appropriate. Keele v. Wexler,
B. Fed.R.Civ.P. 23(a)
A plaintiff seeking class certification must satisfy the requirements of Fed.R.Civ.P. 23(a), which specifies that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Rosario v. Livaditis,
1. Identifiable Class
Courts have implied two prerequisites to class certification that must be satisfied prior to addressing the requirements of Rule 23(a): (1) the class must be sufficiently defined so that the class is identifiable; and (2) the named representative must fall within the proposed class. Guillory v. American Tobacco Co., No. 97 C 8641,
Coca-Cola argues Oshana has failed to satisfy Rule 23(a)’s requirement that there be an identifiable class, ascertainable by reference to objective criteria, because the proposed class definition would require an examination of every class member who allegedly saw deceptive advertisements. Further, Coca-Cola argues the proposed class may improperly include individuals who were neither deceived nor harmed.
Oshana contends she is not required to identify class members as a prerequisite to certification. Her argument misses the mark. The identities of class members do not need to be specified for certification, but the proposed class must be sufficiently definite in order to demonstrate that a class actually exists. See Simer,
Further, an identifiable class does not exist if membership is contingent on a particular state of mind. Zapka,
Oshana’s proposed class is inadequately defined. Considerable cost and time would have to be expended by the court and parties before the class could even theoretically be identified. Id. Even if this court were to attempt to redefine the class, the effort would be futile. As 'discussed below, Oshana fails to satisfy the remaining requirements of Rule 23 because the massive number of individualized factual issues render her claim unmanageable as a class action. See Guillory,
1. Rule 23(a)(1) — Numerosity
The standard for evaluating numerosity is whether the class is so numerous that joinder of all parties is impracticable. Oshana contends Rule 23(a)(l)’s numerosity requirement is easily satisfied because Coca-Cola sells millions of fountain diet Coke drinks in Illinois each year. She asserts it is impracticable to join all purchasers of fountain diet Coke and class action status is appropriate. Courts should make common sense assumptions when assessing numerosity. Grossman v. Waste Management,
2. Rule 23(a)(2) — Commonality
Rule 23(a)(2) requires the existence of questions of law or fact common to the class. This requirement is satisfied when a common nucleus of operative facts exists. Rosario v. Livaditis,
3. Rule 23(a)(3) — Typicality
Rule 23(a)(3)’s typicality requirement is closely related to Rule 23(a)(2)’s commonality requirement. Rosario,
Coca-Cola relies on Retired Chicago Police Ass’n v. Chicago,
Oshana contends her claims are similar to those in Tylka v. Gerber Prods. Co.,
Tylka is not factually analogous to this case. Coca-Cola does not advertise and sell fountain diet Coke — it sells syrup. In any event, Oshana’s claims are not sufficiently typical of the class to support class certification. Factual distinctions between her claims and those of putative class members do not necessarily defeat a typicality finding. De La Fuente,
4. Rule 23(a)(4) — Fair and Adequate Representation
Rule 23(a)(4) requires the named plaintiff to fairly and adequately protect the interests of the class. This determination requires fulfillment of two conditions: (1) plaintiffs attorney must be qualified, experienced, and generally able to conduct the proposed litigation; and (2) the named plaintiff must not have interests antagonistic to those of the class. See Secretary of Labor v.
Oshana asserts her attorneys are members of good standing in their respective state bars, have prosecuted hundreds of class actions and have the resources necessary to prosecute this action. Coca-Cola does not challenge the adequacy of Oshana’s counsel and the court finds no reason to do so.
Oshana contends her interests are co-extensive with those she seeks to represent. Coca-Cola lists five factors that render her an inadequate class representative: (1) she did not see any advertisements during the relevant class period; (2) she continues to purchase fountain diet Coke despite knowing it contains saccharin; (3) she avoids saccharin because of the taste, as opposed to health reasons; (4) she knows saccharin warning labels were removed and that the government does not consider saccharin a health risk; and (5) she can taste a difference between the sweeteners in fountain diet Coke and bottled diet Coke. Coca-Cola contends Oshana is therefore subject to unique defenses not applicable to the proposed class.
These factors certainly appear to weaken Oshana’s case, but they do not necessarily render her inadequate to represent the interests of the class. For example, her failure to see advertisements during the relevant class period and her continued purchase of fountain diet Coke may differentiate her from' other class members, but it does not necessarily preclude her from recovery. Under the Consumer Fraud Act, a plaintiff must establish proximate cause, but proof of reliance is not required. See Zapka,
C. Rule 23(b)
Oshana’s defective class definition and failure to establish the typicality of her claims renders her unable to meet the requirements of Rule 23(a). However, even if she met Rule 23(a)’s requirements, she fails to satisfy the certification requirements of Rule 23(b)(1)(B) or Rule 23(b)(3).
1. Rule 23(b)(1)(B)
Rule 23(b)(1)(B) requires a showing that: The prosecution of separate actions by or against individual members of the class would create a risk of adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.
See also Ortiz v. Fibreboard Corp.,
Oshana contends Coca-Cola’s removal from the Circuit Court of Cook County was based on satisfaction of the $75,000 diversity requirement on a theory of disgorgement of all Coca-Cola’s profits from the sale of fountain diet Coke. If Oshana prevails individually and disgorges all Coca-Cola’s profits from its alleged wrongful conduct in Illinois, she contends Coca-Cola will likely argue it would not have profits to disgorge if it is subsequently sued by another class member. She argues individual adjudication of this case would be dispositive of other putative class members’ interests and Rule 23(b)(1)(B) certification is appropriate, whether the court views the disgorgement claim as a common undivided interest or an individual claim for disgorgement of profits Coca-Cola has made from all putative class members.
Under 23(b)(1)(B), class members are not provided notice and an opportunity to exclude themselves from class membership. Ortiz,
[I]t cannot in good faith be disputed that Coca-Cola has adequate resources to pay claims of other putative class members. Even if Ms. Oshana were awarded a full disgorgement of all of Coca-Cola’s profits from the sale of fountain diet Coke in Illinois, that amount would be only a small percentage of Coca-Cola’s profits from the sale of fountain diet Coke in the United States and an even smaller fraction of Coca-Cola’s profits from the sale of all of its products.
Coca-Cola Resp. at 36-37. In light of the requirement that Rule 23(b)(1)(B) be construed narrowly, and because Oshana has failed to demonstrate a valid rationale, limited fund or otherwise, Rule 23(b)(1)(B) certification must be denied.
2. Rule 23(b)(3)
Rule 23(b)(3) requires a showing that:
Questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy.
“In considering Rule 23(b)(3)’s requirements, the court must review the substantive elements of plaintiffs’ cause of action, the proof necessary for the various elements and the manageability of the trial on these issues.” Rodriguez v. Ford Motor Credit Co., No. 01 C 8526,
A. Individual Questions of Law or Fact Predominate
Oshana contends there is at least one question common to the class that predominates over questions affecting individual members: “whether Coca-Cola misrepresented or omitted material facts regarding the ingredients of fountain diet Coke, and whether this practice violates the Consumer Fraud Act and constitutes unjust enrichment.” Oshana Mot. at 13. Coca-Cola responds that individual issues regarding proximate causation predominate over common issues, and certification should be precluded based on Oliveira v. Amoco Oil Co.,
The Consumer Fraud Act provides:
Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act”, ... in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.
815 ILCS 505/2.
The Consumer Fraud Act did not originally provide a private cause of action for violations of Section 2; unlawful business practices were generally prosecuted by the state attorney general. Oliveira,
In Oliveira, the plaintiff alleged the defendant violated the Consumer Fraud Act by misrepresenting in nationwide advertising that its gasolines cleaned car engines and benefited the environment. Id. The plaintiff alleged the advertising increased demand for the gasoline and permitted defendant to charge inflated prices. Id. The plaintiff contended all purchasers were injured, whether or not they were exposed to the advertisements, by paying inflated prices. Id. The Oliveira court rejected this “market theory” of proximate causation for deceptive advertising because the plaintiffs did not allege they were deceived in any way by defendant’s ads. Id.
In P.J.’s Concrete Pumping Serv., Inc. v. Nextel West Corp.,
Coca-Cola argues that the proposed class action necessarily requires individual inquiries into whether each class member was actually deceived. This argument fails in light of Nextel because a Consumer Fraud Act violation does not require a showing of actual deception. However, the remaining elements of proof demonstrate that individualized issues will predominate over common issues of fact or law. Oshana contends the mix of representations seen by the class members is irrelevant and insufficient to preclude certification because her claim rests on uniform omission of information. However, causation remains an inherent part of the liability equation. Zapka,
The same analysis applies to Oshana’s unjust enrichment claim. In her complaint, Oshana alleges class members were “tricked” by Coca-Cola’s marketing scheme into purchasing fountain diet Coke that they would not have otherwise purchased. Compl. at 111163-64. Individualized issues of detriment and whether each member was tricked would predominate over any common issues of law or fact.
Consideration of the substance of Oshana’s claims, as well as the form that resolution of these issues would take, mandate a finding that the highly individualized nature of the inquiries predominates over issues common to the class. See Simer,
B. Class Action is Not a Superior Method of Adjudication
The obvious difficulties in managing this purported class action are pertinent to the court’s decision to deny certification. Rule 23(b)(l)(3). The proposed class action is unmanageable in light of essential individualized inquiries. The boundless class definition creates a purported class of millions. Considerations of manageability and judicial economy would not be served by certification.
CONCLUSION
For the foregoing reasons, the motion for class certification is denied.
Notes
. The court subsequently denied Coca-Cola's summary judgment motion,