Currie v. Wisconsin Central

ILLINOIS OFFICIAL REPORTS
Appellate Court

Currie v. Wisconsin Central, Ltd., 2011 IL App (1st) 103095

Appellate Court KOREY CURRIE, Plaintiff-Appellant, v. WISCONSIN CENTRAL,
Caption LTD., Defendant-Appellee.

District & No. First District, Sixth Division
Docket No. 1-10-3095

Filed September 30, 2011

Held Plaintiff’s action alleging racial discrimination based on the conditions
(Note: This syllabus of his employment by defendant railroad was properly dismissed on res
constitutes no part of judicata grounds where plaintiff’s claims were precluded by the consent
the opinion of the court decree entered in a federal class action against several related railroads,
but has been prepared including the railroad named herein, since plaintiff’s claims were
by the Reporter of included in the class action complaint and the “Release” section of the
Decisions for the consent decree and plaintiff failed to opt out of the class action.
convenience of the
reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-11505; the
Review Hon. Bill Taylor, Judge, presiding.

Judgment Affirmed.
Counsel on John C. Kreamer and Susan J. Best, both of Best, Vanderlaan &
Appeal Harrington, of Chicago, for appellant.

Noah G. Lipschultz, of Littler Mendelson, P.C., of Minneapolis,
Minnesota, and Shanthi V. Gaur, of Littler Mendelson, P.C., of Chicago,
for appellee.

Panel PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
with opinion.
Justice Cahill concurred in the judgment and opinion.
Justice Garcia specially concurred, with opinion.

OPINION

¶1 Plaintiff, Korey Currie, is appealing the decision of the circuit court which granted
defendant’s motion to dismiss plaintiff’s complaint based on res judicata. The trial court
found that the claims were precluded by the federal class action decree in Barnes v. Canadian
National Railroad, No. 04-1249, Final Approval Order (N.D. Ill. Jan. 7, 2010) (Barnes class
action).
¶2 On appeal, plaintiff contends, first, that his claims were unique from the discrimination
claims in the Barnes class action. Second, plaintiff argues that, because the evidence of
discrimination in his lawsuit would not have been sufficient proof for the Barnes class
action, he seeks a remedy which was not included in the class action. Third, plaintiff argues
that he did not receive adequate notice of the class action; therefore, he could not have opted
out of the class. Finally, plaintiff contends that, by applying the doctrine of res judicata, the
circuit court created an unjust and inequitable result. For the following reasons, we affirm.

¶3 I. BACKGROUND
¶4 A. The Barnes Class Action
¶5 A class action was filed on February 18, 2004, against Canadian National Railway and
a number of its “indirect U.S. operating subsidiaries (including Wisconsin Central, Ltd.
(hereinafter, CN defendants) by named plaintiffs, Melvin Barnes, Tracy Steele, and Jeremy
Williams. The lead plaintiff was Barnes. The plaintiffs’ complaint proposed a class
consisting of “current, former, and future African-American employees of CN Defendants
who, from approximately February 18, 2000[,] to the present, have been subjected to one or
more aspects of the racial discrimination described in [the] Complaint.”
¶6 The complaint in the Barnes class action alleged “race discrimination with respect to a
number of different employment-related practices and policies, as well as a racially hostile

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 working environment and retaliation.” The third amended complaint in the Barnes action
contained three counts. The first two counts were class counts and the third count contained
an individual claim by Barnes for retaliation. Barnes alleged that he had been fired in
retaliation for bringing this class action. This third count stated that it was brought solely by
Barnes “in his individual capacity.”
¶7 On October 21, 2009, the class filed a motion for preliminary approval of a consent
decree, which established a settlement, and advocated for approval of the class. The
preliminary consent decree was approved on October 26, 2009.
¶8 The consent decree included a section devoted to the means of notifying the absent class
members of their rights in relation to the class. Specifically, each individual who fell into the
class of “[a]ll African-American employees of the Railroad from February 18, 2000[,] to the
date of Preliminary Approval of the Consent Decree” were to be mailed a form which
included information on how to “seek exclusion from the class” and “the binding effect of
the class judgment.” The proposed method of delivery for the notices was via first-class mail
and was handled by the claims administrator. If a class member wished to opt out of the
settlement, that intention was to be “set forth in writing, mailed via First Class Mail *** on
or before December 9, 2009,” and was required to “be personally signed by the class
member.” The date for returning the opt-out form was later extended to January 22, 2010.
On January 7, 2010, the federal district court issued its “Final Approval Order” accepting the
consent decree.

¶9 B. Plaintiff’s Lawsuit
¶ 10 Plaintiff is an African-American who worked as a trackman for defendant, Wisconsin
Central, for six weeks during June and July of 2008. The plaintiff’s allegations of
discrimination arise from his employment with the defendant.

¶ 11 1. Complaint
¶ 12 Plaintiff’s complaint alleges that he worked as a trackman for defendant for six weeks
during June and July of 2008. During this period, plaintiff alleges that he experienced
discrimination as an African-American. Specifically he alleges that he was forced to do work
that non-African-American employees were not asked to do and that the work environment
was hostile. He alleges that other employees hung nooses on machinery and made
inappropriate racial comments and that he reported the conduct to his superiors and nothing
was done to remedy the situation. After repeatedly reporting the discriminatory conduct,
plaintiff was discharged in July 2008. Plaintiff’s complaint states that he was discharged in
retaliation for filing complaints of discriminatory conduct with his superiors. Plaintiff’s
complaint states that, following his discharge, plaintiff filed a charge of discrimination with
the Illinois Department of Human Rights (IDHR). His IDHR complaint was investigated for
a year; and on September 10, 2009, the investigation was closed. Plaintiff alleges that IDHR
determined not to file charges. Plaintiff then appealed that decision to the circuit court of
Cook County in September 2009.

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¶ 13 2. Motion to Dismiss
¶ 14 Defendant filed a motion to dismiss under section 2-619(a) of the Code of Civil
Procedure claiming that plaintiff’s claims are “barred by res judicata” and “specifically
released by virtue of his failure to opt out” of Barnes v. Illinois Central Railroad, No. 04-
1249, Final Approval Order (N.D. Ill. Jan. 7, 2009). See 735 ILCS 5/2-619(a) (West 2010).
Barnes was a class action lawsuit filed in the federal district court for the Northern District
of Illinois. Plaintiff did not opt out of the class. However, plaintiff claims he did not receive
adequate notice to opt out by the indicated deadline.
¶ 15 In the case at bar, the trial court held an evidentiary hearing on September 16, 2010, to
determine whether plaintiff was adequately notified of the class action. Steven Platt, a claims
administrator, testified concerning the system used to notify class members, the steps taken
when a notification was returned, and the entire process of notification to potential class
members. Platt stated that the administrator can “track who was mailed what and when.”
Platt testified that the records indicated that notice was mailed to plaintiff on October 28,
2009.
¶ 16 Plaintiff testified that he “received [the notice] in December, approximately *** 3 days
before Christmas,” and that the notice was not received in time for him to opt out of the
class. Plaintiff also testified that when he read the notice he did not believe it was relevant
for him since “the common nucleus of fact in Barnes does not include those supporting
[plaintiff’s] claims of wrongful termination and retaliation on the basis of race” and that the
relief the class was requesting was different from what he was requesting in his lawsuit.
¶ 17 In his complaint, plaintiff requested the following relief:
“damages *** including but not necessarily limited to reinstatement, back pay, front
pay, wage differential, lost benefits, out of pocket pecuniary losses, reasonable
attorney’s fees, severe emotional distress, pain and suffering, *** compensatory
damages, punitive damages, *** and such other and further relief as this court may
deem appropriate.”
¶ 18 The Barnes class action requested:
“(1) a declaratory judgment that s [sic] have engaged in systematic racial
discrimination ***; (2) a permanent injunction against such continuing systematic
discrimination; (3) a restructuring of the CN Defendants’ selection and training
procedures ***; (4) a restructuring of CN Defendants’ workforce ***; (5) elimination
of the hostile working environment; (6) the implementation of a non-discriminatory
posting and bidding procedure; and (7) damages, backpay and other equitable
remedies necessary to make the named Plaintiffs and putative class members whole
from CN Defendants’ past discrimination.”
¶ 19 At the end of the evidentiary hearing on September 16, 2010, the trial court found that
plaintiff did have adequate notice and granted defendant’s motion to dismiss under section
2-619, based on res judicata.
¶ 20 Plaintiff then filed this timely appeal.

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¶ 21 II. ANALYSIS
¶ 22 On appeal, plaintiff contends, first, that his claims were unique from the discrimination
claims in the Barnes class action. Second, plaintiff argues that, because the evidence of
discrimination in his lawsuit would not have been sufficient proof for the Barnes class
action, he seeks a remedy which was not included in the class action. Third, plaintiff argues
that he did not receive adequate notice of the class action; therefore, he could not have opted
out of the class. Finally, plaintiff contends that, by applying the doctrine of res judicata, the
circuit court created an unjust and inequitable result. For the following reasons, we affirm.

¶ 23 A. Standard of Review
¶ 24 Defendant filed a section 2-619 motion to dismiss claiming plaintiff’s cause of action
was barred by a prior judgment. 735 ILCS 5/2-619(a)(4) (West 2008). Because a motion to
dismiss under section 2-619 accepts as true the facts alleged in the complaint and asks a
question of law, the standard of review is de novo. Sheffler v. Commonwealth Edison Co.,
2011 IL 110166, ¶ 23; see also Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.
2d 558, 579 (2006). De novo consideration means we perform the same analysis that a trial
judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 25 “When reviewing ‘a motion to dismiss under section 2-619, a court must accept as true
all well-pleaded facts in plaintiffs’ complaint and all inferences that can reasonably be drawn
in plaintiffs’ favor.’ ” American Service Insurance Co. v. City of Chicago, 404 Ill. App. 3d
769, 776 (2010) (citing Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008)). The trial
court may consider pleadings, depositions, and affidavits when ruling on a section 2-619
motion to dismiss. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262
(2004). However, if a genuine disputed question of fact is present, “the court may either: (1)
deny the motion without prejudice to the right to raise the subject matter of the motion by
answer; or (2) hear and determine the merits of the dispute based upon the pleadings,
affidavits, counteraffidavits, and other evidence offered by the parties.” Kirby v. Jarrett, 190
Ill. App. 3d 8, 13 (1989) (citing Etten v. Lane, 138 Ill. App. 3d 439, 443 (1985)). The trial
court below took the second approach with respect to the question of the adequacy of the
notice. “When the second approach is taken, the reviewing court must review not only the
law but also the facts, and may reverse the trial court order if it is incorrect in [applying the]
law or against the manifest weight of the evidence.” Kirby, 190 Ill. App. 3d at 13. “The issue
of whether plaintiff was provided proper notice is a question of law. As a result, the standard
of review is de novo.” Hwang v. Department of Public Aid, 333 Ill. App. 3d 698, 703 (2002)
(citing Hormel Foods Corp. v. Zehnder, 316 Ill. App. 3d 1200, 1204 (2000)).

¶ 26 B. Requirements for Res Judicata
¶ 27 Under section 2-619, “[d]efendant may, within the time for pleading, file a motion for
dismissal of the action or for other appropriate relief upon any of the following grounds,”
including “[t]hat the cause of action is barred by a prior judgment,” in other words, for res
judicata. 735 ILCS 5/2-619(a)(4) (West 2008).
¶ 28 The Illinois Supreme Court has held that “[f]or the doctrine of res judicata to apply, three

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 requirements must be met: (1) there was a final judgment on the merits rendered by a court
of competent jurisdiction; (2) there was an identity of causes of action; and (3) there was an
identity of parties or their privies.” Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335
(1996). In addition, res judicata “extends not only to what was actually decided in the
original action, but also to matters which could have been decided in that suit.” Rein, 172 Ill.
2d at 334-35. The party seeking to apply res judicata has the burden of proof. Therefore, the
defendant must “show with clarity and certainty the parties, the precise issues, and the
judgment of the former action.” Best Coin-Op, Inc. v. Paul F. Ilg Supply Co., 189 Ill. App.
3d 638, 650 (1989).
¶ 29 As stated above, the first requirement for res judicata is a final judgment on the merits.
Although plaintiff does not address the issue of a “final judgment on the merits,” we cannot
find that the first requirement is satisfied. There is a split between courts in Illinois on the
question of whether a settlement agreement operates as a final judgment on the merits. See
Jackson v. Callan Publishing, Inc., 356 Ill. App. 3d 326, 340 (2005) (noting split of
authority). We agree with the cases that do not view a settlement agreement as a final
judgment on the merits and therefore cannot find the settlement agreement in Barnes to
satisfy the first requirement for res judicata. Goodman v. Hanson, 408 Ill. App. 3d 285, 300
(2011). “[A]n agreed order is not a judicial determination of the parties’ rights, but rather is
a recordation of the agreement between the parties.” Kandalepas v. Economou, 269 Ill. App.
3d 245, 252 (1994). Since there was not a final decision on the merits in the Barnes class
action, we cannot find that it precludes the plaintiff’s claims under a theory of res judicata.

¶ 30 C. Binding Effect of the Consent Decree
¶ 31 In addition to arguing that plaintiff’s claims were barred by res judicata, defendant’s
motion to dismiss also argued that plaintiff’s “claims under the Illinois Human Rights Act
were specifically released by virtue of his failure to opt out of that litigation.” Although the
trial court granted the motion on the sole basis of res judicata, we can affirm on any basis
found in the record. Studt v. Sherman Health System, 2011 IL 108182, ¶ 48 (recognizing that
“an appellate court may affirm a trial court’s judgment on any grounds which the record
supports [citation], even where those grounds were not argued by the parties”).

¶ 32 1. Properly Considered Under Section 2-619
¶ 33 The defendant’s motion to dismiss under section 2-619(a) does not specify a subsection
of section 2-619(a) to support its claim that plaintiff’s claims were released by failing to opt
out of the Barnes class action. Section 2-619(a) does contain a subsection which includes the
claim that defendant made, in its motion to dismiss that, by failing to opt out of the class,
plaintiff released his ability to sue defendant. That section is section 2-619(a)(6). The Illinois
Appellate Court has held that a settlement can include a release when it is properly indicated
through the use of the words “ ‘release,’ ‘discharge,’ or ‘payment in full.’ ” Iloh v. Stein, 226
Ill. App. 3d 644, 648 (1992) (finding that in order for a settlement to be considered a release
“words of completeness, such as ‘any and all claims’ ” must be present).
¶ 34 Section 2-619(a)(6) allows for dismissal when “the claim set forth in the plaintiff’s

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 pleading has been released, satisfied of record, or discharged in bankruptcy.” 735 ILCS 5/2-
619(a)(6) (West 2010). Defendant argues in its motion to dismiss and then in its appellate
brief that, by not opting out of the class, plaintiff released his ability to sue defendant for
discrimination, because the consent decree included a waiver of the ability to sue in the
future. Illinois case law holds that “a release or covenant may be set aside under certain
circumstances if the agreement was entered into through a mutual mistake of fact.” Meyer
v. Murray, 70 Ill. App. 3d 106, 111 (1979) (citing Martin v. Po-Jo, Inc., 104 Ill. App. 2d 462,
467 (1969), and Welsh v. Centa, 75 Ill. App. 2d 305, 311-12 (1966)). “Once the defendant
establishes the existence of the document, legal and binding on its face, the burden shifts to
the plaintiff to prove it invalid by clear and convincing evidence.” Meyer, 70 Ill. App. 3d at
111. Here, defendant has established the existence of the Barnes consent decree, which was
the settlement agreement entered by the United States District Court for the Northern District
of Illinois. Thus, the burden shifts to the plaintiff to prove it invalid by clear and convincing
evidence.
¶ 35 Plaintiff opposes the validity of the consent decree for three reasons: (1) there is not an
identity of causes of action and, therefore, the claims in plaintiff’s complaint were not
included in the class and not waived through the consent decree, (2) the notice sent to
plaintiff was inadequate, and (3) plaintiff’s individual lawsuit was effectively notice of his
intent to opt out of the class. We address each of his arguments below. If plaintiff’s claims
were part of the Barnes class action, included in the consent decree as claims that were
released, and he failed to properly opt out of the class, then his claims are released under the
terms of the consent decree. See Iloh, 226 Ill. App. 3d at 648 (holding that a settlement can
operate as a release when it clearly indicates intent to do so).

¶ 36 2. No Identity of Causes of Action
¶ 37 As noted above, plaintiff argues, first, that his lawsuit does not stem from the same group
of facts as the Barnes class action because he focused on a claim of retaliation while the class
action claims were about a pattern and practice of discrimination in promotion and training.
Second, plaintiff claims that his individual experience with retaliation and discharge did not
arise from the same events and facts as Barnes’ individual discharge.
¶ 38 Plaintiff’s complaint alleges that defendant (1) “discriminated *** against [plaintiff] ***
with respect to training, discharge, privileges and conditions of employment on the basis of
his race,” (2) retaliated against plaintiff through “escalation of *** hostile work environment
through hostility and ostracization *** and ultimately, termination,” and (3) allowed plaintiff
to be “subject to pervasive and continuous unwelcome harassment.”
¶ 39 In response, defendant argues that the Barnes complaint included retaliation in discipline
and other terms and conditions of employment. The Barnes third amended complaint stated,
in paragraph 36 of its “Common Allegations” section:
“On February 18, 2004[,] Barnes filed this federal class action lawsuit seeking
redress for a class of African-American employees of CN Defendants that were
victims of CN Defendants’ racial discrimination, retaliation, and hostile environment,
including but not limited to, discrimination and retaliation in appointments, selection

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 decisions, job assignments, promotions, training, discipline, testing, compensation
benefits, evaluations, service ratings, and other terms and conditions of
employment.” (Emphasis added.)
¶ 40 In addition, the Barnes complaint included an individual claim for retaliation (count III)
due to the fact that Barnes, the lead plaintiff in the class action, was fired by one of the
defendants after filing the Barnes class action. Count III was entitled “Unlawful Retaliation
and Termination,” and stated “[t]his count is brought by Melvin Barnes in his individual
capacity.”
¶ 41 The complaint contained a total of three counts. As stated, count III was for an individual
claim. Only counts I and II were class claims, and they were for violation of title VII of the
Civil Rights Act of 1964 (count I) and for violation of the Civil Rights Act of 1866 (count
II). Except for incorporating by reference the “Common Allegations,” neither count referred
to retaliation.
¶ 42 Based on both the “Common Allegations” and count III, defendant argues that the Barnes
complaint included a class claim for retaliation. Plaintiff urges this court to view the class
action to include only the claims that are common to all class members and, therefore,
because Barnes’s additional count was not pursued to benefit the class, the class settlement
should not preclude other individuals, besides Barnes, from bringing claims of retaliation.
In Robinson v. Toyota Motor Credit Corp., 315 Ill. App. 3d 1086, 1093 (2000), we reasoned
that “an individual claim, not common to the class, that could not have been raised [in the
class action]” is not barred. While recognizing that the Illinois Supreme Court in River Park
determined that a bar “extends to what was actually decided in the first action, as well as
those matters that could have been decided in that suit,” this court in Robinson determined
that one of plaintiff’s claims was not common to the class and thus could not have been
brought in the first lawsuit. River Park, 184 Ill. 2d at 302; Robinson, 315 Ill. App. 3d at
1093.
¶ 43 However, the third amended complaint in the Barnes class action does include a claim
for retaliation that is common to the class. Both counts I and II include a paragraph including
all previous paragraphs as a part of the count. Count I states that “[p]laintiffs restate and
incorporate by reference Paragraphs 1 through 60, above as part of this Count of the
Complaint,” and count II includes “Paragraphs 1 through 71.” As stated above, with
paragraph 36 quoted in full, the third amended complaint included a “Common Allegations”
section which listed claims common to the class including claims of “racial discrimination,
retaliation, and hostile environment.” Therefore, both class counts (counts I and II) include
by reference paragraph 36 in which the common claim of retaliation is alleged.
¶ 44 Plaintiff’s allegations of a hostile work environment, discrimination with respect to
training, privileges, and conditions of employment, and retaliation are in identity with the
claims included in the Barnes class action complaint. Plaintiff’s three counts are for
“unlawful discrimination–race,” “retaliation,” and “hostile work environment.” Each of those
three claims is listed in paragraph 36 of the “Common Allegations” section of the Barnes
third amended complaint, which lists claims for “racial discrimination, retaliation, and
hostile environment,” and is later incorporated into both of the class counts (counts I and II).

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 Both plaintiff’s and the Barnes class action complaints include claims for racial
discrimination, retaliation, and a hostile work environment and, therefore, the two lawsuits
have an identity of causes of action.
¶ 45 Plaintiff is correct that his individual claim of retaliation arises out of a different series
of events than the events underlying Barnes’s individual claim. However, since we find that
plaintiff’s claim was included in the class claims, this does not affect our holding.

¶ 46 3. Insufficient Notice
¶ 47 Although plaintiff’s argument focuses on the release not being adequate because the
Barnes class action and his complaint did not have an identity of causes of action, defendant
argues that the consent decree is the document that demonstrates plaintiff’s claims were
released. Illinois law requires the defendant to establish a document that is legal and binding
on its face before the burden shifts to plaintiff to prove the document invalid. Meyer, 70 Ill.
App. 3d at 111. Defendant presented a consent decree which was accepted by the United
States District Court for the Northern District of Illinois, which is a legal and binding
document. As noted above, the burden now switches to the plaintiff to prove it is invalid.
Meyer, 70 Ill. App. 3d at 111.
¶ 48 Defendant argues that, by not opting out of the settlement agreement, plaintiff has
released his claims against the defendants because each of plaintiff’s claims is included in
the consent decree. The Barnes consent decree disclosed what the class was settling for, how
a class member could opt out of the settlement, and what rights the class member was waving
by failing to opt out. The consent decree stated, in the section entitled “Release”:
“Once the Court enters its Final Approval Order, all Class Members who have not
opted out, will be bound by the terms of the proposed Settlement with regard to these
claims and will have released and forever discharged [CN Defendants] for any
employment discrimination claims based on race that were made in the Third
Amended Complaint. This release includes all claims of racial discrimination,
retaliation and hostile working environment including but not limited to
discrimination and retaliation in appointments, selection decisions, job assignments,
promotions, training, discipline, testing, compensation, benefits, evaluations, service
rating, termination, racial harassment, intimidation and other terms and conditions
of employment.” (Emphasis added.) Barnes v. Canadian National Railway Co., No.
04-C-1249, Proposed Notice of Class Action Settlement and Hearing (Oct 21, 2009).
The consent decree specifically stated that it included “all claims of *** retaliation in ***
termination.” Therefore, plaintiff is bound by the settlement made in the decree if he failed
to opt out of the class.
¶ 49 The consent decree itself–and the notice sent to all class members, and received by
plaintiff–stated that the defendants were willing to settle and comply with an injunction
requiring equality in notice of training and advancement possibilities, prohibiting retaliation
against members of the class, and prohibiting harassment based on race. In consideration for
the injunction, the class members were bound by the consent decree and prohibited from
filing lawsuits in the future regarding the same claims as those included in the Barnes class

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 action. The above-quoted section of the notice included each of the claims the members are
precluded from bringing in the future. Even if a claim of retaliation was not specifically
included as a class count in the Barnes class action, it was specifically listed in the consent
decree as a claim that was released. The list of claims included in the “Release” section of
the notice of consent decree indicates that plaintiff’s claim was waived by his not opting out
of the class.
¶ 50 Since defendant has established the existence of a legal and binding document, the
burden is on the plaintiff to demonstrate that the document is invalid. Plaintiff argues that
the consent decree is invalid because he did not receive adequate notice of the settlement or
of the fact that his right to sue individually would be waived. Plaintiff testified that he did
not receive the notice until a few days before Christmas, which was after the deadline for
opting out. However, because the parties extended the deadline for opting out to January 22,
2010, plaintiff could still have opted out of the settlement after receiving the notice at the end
of December 2009.
¶ 51 Plaintiff urged the circuit court to find that in order for the notice to be adequate the
defendants should have been required to notify him through his attorney because at the time
of the notification it was known to defendants that plaintiff had representation and that the
rules of practice and procedure in the United States District Court for the Northern District
of Illinois require that an individual who is represented by counsel be contacted through
counsel. N.D. Ill. Loc. R. 83.54.2 (valid through June 1, 2011) (amended by N.D. Ill. Loc.
R. 83.50). Defendant refutes the application of the rule saying that plaintiff was not
represented by counsel in regards to the Barnes class action.
¶ 52 The United States District Court Rules for the Northern District of Illinois, where the
Barnes class action was heard, require that “[d]uring the course of representing a client a
lawyer shall not communicate or cause another to communicate on the subject of the
representation with a party the lawyer knows to be represented by another lawyer in that
matter unless the first lawyer has obtained the prior consent of the lawyer representing such
other party or as may otherwise be authorized by law.” N.D. Ill. Loc. R. 83.54.2 (valid
through June 1, 2011) (amended by N.D. Ill. Loc. R. 83.50 (following Ill. Rs. Prof’l Conduct
R. 4.2 (2011)). The rules for the United States District Court for the Northern District of
Illinois specify that the requirement of notice on an attorney may be waived if there is
another method which is “authorized by law.” The district court in the Barnes class action
instructed the defendants on how to carry out the notice process and specifically required that
a copy of the consent decree and waiver form be mailed to each individual class member at
his or her last known address. The district court did not require the defendants to determine
which class members had attorneys before sending the notice of the consent decree and this
court will not read that requirement into the notice process.
¶ 53 Plaintiff also argues that notice of the consent decree required actual notice on his person,
claiming that in a class action, absent class members seeking nonincidental money damages
“are entitled to personal notice and opportunity to opt out.” (Internal quotation marks
omitted.) Gates v. Towery, 456 F. Supp. 2d 953, 963 (N.D. Ill. 2006). Plaintiff received
notice at his current address and was provided with an opportunity to opt out of the class.
The notice received by plaintiff was adequate because the Illinois Supreme Court has held

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 that due process does not require individual notice to every member of the class in all
circumstances. People ex rel. Wilcox v. Equity Funding Life Insurance Co., 61 Ill. 2d 303,
312 (1975); see also People ex rel. Hartigan v. Illinois Commerce Comm’n, 148 Ill. 2d 348,
416 (1992) (Freeman, J., concurring in part and dissenting in part) (stating “it is well
established, as a matter of due process, individual notice to every class member is not
required in all circumstances”). The Illinois Code of Civil Procedure also does not require
notice on an individual in class action cases. See 735 ILCS 5/2-803 (West 2010). The Illinois
Code of Civil Procedure requires only “notice as the court deems appropriate.” 735 ILCS
5/2-803 (West 2010).
¶ 54 Defendant’s claims administrator testified to providing notice in the exact manner
required by the district court, which did not require actual notice. The district court has also
held that an individual “is bound by the terms of the settlement because notice to the class
was reasonable.” Purnell v. Sheriff of Cook County, No. 07 C 7070, 2009 U.S. Dist. LEXIS
37302, at *7-8 (N.D. Ill. May 4, 2009) (citing Fontana v. Elrod, 826 F.2d 729, 731-32 (1987)
(“While the notice must be adequate, it is not necessary that each member of the class
actually receive that notice.”)). The federal district court determined in the Barnes class
action that notice by first-class mail to the most recent address of each class member was
adequate notice, and the circuit court of Cook County agreed after holding an evidentiary
hearing regarding the system of notice.
¶ 55 Based on the testimony of the claims administrator at the evidentiary hearing, it is
apparent that the system of notice was designed to ensure the most success in notice delivery.
The claims administrator testified that the notices were mailed “to the most up-to-date
address that [they had] for the class members” “by way of First Class mail,” and when
notices were returned because they were undeliverable the claims administrator “update[d]
the address and then remail[ed] the notice.” According to the records of the claims
administrator, plaintiff was sent the “notification on October 28” and the notice was not
returned. Due process and the Federal Rules of Civil Procedure require that notice be “the
best notice that is practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2)(B). Due to
the large scale of the class action, the system of the claims administrator to determine the
most up-to-date address and resend any returned notices was the “best notice that [was]
practicable under the circumstances.” Although plaintiff testified that he did not receive the
mailed notice until after the date had passed to opt out of the consent decree, the testimony
provided to the circuit court concerning the system of notification indicates that the
procedure was proper and therefore notice was adequate.
¶ 56 This is not a case where a member of a class claims that he never received notice of a
class action settlement. Here the plaintiff claims that the notice came to him late via the
United States Post Office and there was no time to opt out of the class. He claims that he
received the notice approximately three days prior to Christmas and the opt-out was to be
postmarked on or before December 9, 2009. However, the opt-out date was extended to
January 22, 2010 and plaintiff made no attempt to contact any of the attorneys representing
the class or the claims administrator and totally disregarded the notice. By doing so he would
have found that he had more than sufficient time to opt out of the class.

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¶ 57 4. Plaintiff’s Lawsuit Was a Substitute for Notice
¶ 58 Plaintiff’s final argument is that, although he did not officially opt out of the class action,
the fact that he had filed an individual lawsuit against defendant was evidence of his “intent
to pursue remedies independently and not as a part of the class.” In re Brand Name
Prescription Drugs Antitrust Litigation, 171 F.R.D. 213, 216 (N.D. Ill. 1997) (allowing for
an individual lawsuit filed before the opt-out date to replace the formal opt-out requirement).
Defendant argues that, in order to properly opt out of the class, plaintiff had to complete the
opt-out form. Defendant also argues that, even if filing an individual lawsuit was enough to
signal the intent to opt out, plaintiff’s lawsuit was not officially served on defendant until
after the deadline for opting out had passed. “[T]he prevailing view [adopted by this court]
is that pending litigation is not a substitute for compliance with judicially ordered exclusion
procedures in a class action.” Robinson v. Toyota Motor Credit Corp., 315 Ill. App. 3d 1086,
1094-95 (2000) (finding that “[j]udicially ordered exclusion procedures and opt-out
deadlines ensure that class defendants can rely on the membership of a class becoming fixed
by a certain date and that such members will be bound by the resulting outcome of the class
action”). The district court in the Barnes class action had decided what the proper system for
notice should be and how an individual would be able to opt out of the class. Plaintiff was
notified by the method required by the district court and failed to comply with the opt-out
procedure as specified in the notice. Illinois law indicates that a pending litigation is not a
substitute for judicially ordered exclusion and therefore plaintiff’s individual lawsuit was not
sufficient to indicate his intent to opt out and he is bound by the terms in the consent decree.
¶ 59 Plaintiff released his claims by not opting out of the Barnes class. First, the consent
decree was binding and included plaintiff’s individual claims. Second, the notice was
adequate. Third, filing an individual lawsuit is not a substitute for properly opting out of the
class.

¶ 60 D. Equity
¶ 61 Plaintiff also argues that, because res judicata must be consistent with theories of justice
and equity, precluding him from completing his suit against defendant would provide him
with no means for relief since he received no portion of the Barnes monetary settlement and
does not benefit from the injunction entered in that case. We previously explained in this
case that we find that plaintiff is not precluded because of res judicata; plaintiff is precluded
because he did not opt out of the class action. The class action in Barnes was settled with an
injunction which required defendants to initiate equal hiring and promotion practices and to
make training opportunities available to African-American employees which had previously
been provided only to white employees. Since plaintiff is no longer with the railroad, the
injunction will not help him. As for the monetary award, the consent decree indicates that
“[t]he amount from the Settlement Fund to be paid to each Class Member [who file timely
and valid claim forms] shall be calculated based on the total number of days each Class
Member was employed by Railroad between February 18, 2000 and the Preliminary
Approval Date.” Plaintiff argues that the monetary award would not have adequately
compensated him because he sought “lost wages from the time of his wrongful termination

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 through the present, until such time as he obtains a position which adequately mitigates his
wages from Defendant.” Despite the fact that plaintiff does not benefit from the injunction
and does not believe he could have been adequately compensated by his portion of the
monetary settlement, he did have an opportunity to file a claim form to receive some portion
of the settlement or to opt out of it, or to object to the settlement itself.
¶ 62 After the consent decree, plaintiff claims he is left with no ability to sue or to collect
adequate compensation for his claimed discrimination, retaliation, and hostile work
environment if his case is dismissed. The Seventh Circuit has discussed the purposes of
claim preclusion and the equitable goals of the court system in an attempt to find a balance.
See Jones v. City of Alton, 757 F.2d 878, 885 (7th Cir. 1985) (stating “ ‘while the purpose
of the doctrine is to prevent a party from litigating the same issue twice, it should not be used
to preclude a party from litigating the matter at all’ ” (quoting Gay v. Open Kitchens, Inc.,
100 Ill. App. 3d 968, 972 (1981))).
¶ 63 In Jones, the Seventh Circuit determined that the defendant had not met its burden of
“showing with clarity and certainty that the issue was or could have been determined by the
prior judgment.” Jones, 757 F.2d at 886. The court further held that “the Illinois courts have
a policy not to apply claim or issue preclusion under circumstances where to do so would be
inequitable or unjust–either because the party against whom the prior judgment is asserted
did not have a fair opportunity to litigate the issue or because the basis of the prior court
judgment is not clear and convincing.” Jones, 757 F.2d at 886. In this case, the consent
decree was clear and convincing about which issues were decided and what the members of
the class were waiving by failing to opt out. Plaintiff did not opt out, attempt to opt out, or
petition the court for an extension to the opt-out period. Therefore this case is distinguishable
from Jones, where the plaintiff was prevented from presenting particular evidence. Jones,
757 F.2d at 886 (finding that “plaintiff was prevented from presenting his evidence on the
mistaken theory that racial discrimination was irrelevant to his discharge”). In the case at bar,
plaintiff had an opportunity to object to the class or opt out and did not.
¶ 64 This case is also distinguishable from Gay v. Open Kitchens, Inc., 100 Ill. App. 3d 968,
(1981), cited by plaintiff. Gay involved a personal injury action against two defendants,
Gullo International (Gullo) and Open Kitchens. Gay, 100 Ill. App. 3d at 969. After the trial
court granted summary judgment in favor of Gullo, Open Kitchens filed a third-party
indemnification complaint against Gullo to recover the amount that it owed Gay. Gay, 100
Ill. App. 3d at 970. Gullo attempted to use collateral estoppel, or issue preclusion, to argue
that the third-party complaint was precluded by the trial court’s grant of summary judgment,
which dismissed Gay’s claims against Gullo. Gay, 100 Ill. App. 3d at 970. The trial court
granted Gullo’s motion to dismiss under the theory of collateral estoppel and this court
reversed. We found that, because defendants were not previously adversaries, they had no
prior opportunity to bring claims against one another for indemnity. Gay, 100 Ill. App. 3d
at 971. We stated if “summary judgment were to collaterally estop Open Kitchens as to its
claims against Gullo, then Open Kitchens’ rights against Gullo were adjudicated with no
right of review, which would clearly be an unjust result.” Gay, 100 Ill. App. 3d at 971. Here,
unlike in Gay, plaintiff was not unable to bring his claims. Instead, plaintiff did not opt out,
object to the settlement, or request an extension to opt out of the class.

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¶ 65 Thus, we do not find persuasive plaintiff’s claims that he is entitled to some type of
equity.

¶ 66 III. CONCLUSION
¶ 67 Plaintiff’s claims were released by the consent decree under section 2-619(a)(6) because
plaintiff’s claims of racial discrimination, retaliation, and hostile work environment were all
included in both the Barnes complaint and the “Release” section of the Barnes class action
consent decree. Plaintiff was thus a member of the Barnes class and failed to opt out.

¶ 68 Affirmed.

¶ 69 JUSTICE GARCIA, specially concurring:
¶ 70 I differ with the majority on the reason the circuit court correctly dismissed the plaintiff’s
complaint. If, as the majority finds, the consent decree entered in the class action settlement
included all of the plaintiff’s claims, then I submit the plaintiff’s complaint is barred by res
judicata as the circuit court ruled. See Wiencek v. Woodfield Ford Sales, Inc., 232 Ill. App.
3d 471 (1992). I find the instant appeal falls within all fours of Wiencek.
¶ 71 In Wiencek, the plaintiff filed a complaint against the auto dealership individually and on
behalf of others similarly situated. The circuit court ruled the Wiencek complaint “was barred
by a settlement and judgment reached in an earlier class action suit.” Id. at 472. The circuit
court dismissed the entire complaint, including plaintiff’s individual claim, as “barred by the
settlement and judgment [reached in the first suit].” Id. at 473. We affirmed the dismissal
based on res judicata. Id.
¶ 72 I agree with the majority “that plaintiff’s claim was included in the class claims.” Supra
¶ 46. I also agree that “the consent decree [entered in the Barnes class] was binding [on the
plaintiff].” Supra ¶ 61. Given those two findings, I submit res judicata applies. Wiencek, 232
Ill. App. 3d at 475.

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