dissenting:
Section 2 — 804 of the Illinois Code of Civil Procedure provides in pertinent part, “Any class member seeking to be excluded from a class action may request such exclusion and any judgment entered in the action shall not apply to persons who properly request to be excluded.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 804(b).) Because I conclude that section 2 — 804 grants to the trial court the discretion to permit a defendant representative to be excluded from a defendant class action suit, I respectfully dissent.
In Gaffney v. Shell Oil Co. (1974), 19 Ill. App. 3d 987, 312 N.E.2d 753, the court held that a trial court may properly exercise its discretion in allowing a defendant, whom plaintiffs complaint has specified as representative of a purported defendant class action suit, to be excluded from the defendant class. In reaching this conclusion, the Gaffney court found significant that the plaintiff’s complaint specified only one defendant as representative of a large class of defendants, the defendant’s “financial stake in the outcome of the suit was not shown to be greater than that of any other of the hundreds of” defendants who were absent, and there was no allegation of “why [defendant] was the proper representative *** or why other[s] *** were not joined as defendants.” (Gaffney, 19 Ill. App. 3d at 994, 312 N.E.2d at 759.) These criteria are central to a determination of whether a particular defendant is properly named as representative by a plaintiff’s pleading. Based upon these considerations, a trial court’s exercise of its discretion to allow a defendant’s motion to be excluded from a defendant class action alleviates the potential for abuse by a plaintiff or harm to a defendant inherent to a defendant class action. (See Cardunal Savings & Loan Association v. Kramer (1984), 99 Ill. 2d 334, 342-43, 459 N.E.2d 929, quoting Gaffney, 19 Ill. App. 3d at 993-94, 312 N.E.2d at 758-59.) As the court observed in Gaffney.
“Ultimately, the decision as to the quality and the quantity of the representation [in a defendant class action suit] rests in the broad discretion of the trial court. A proposed class action must be closely examined and allowed only when complete justice is assured. When the right to proceed is doubtful, permission should be refused. (Reardon v. Ford Motor Co. [(1972), 7 Ill. App. 3d 338, 287 N.E.2d 519].) It has been suggested that the opportunities for improper practices in a defendant class suit-such as handpicking a favorable defendant — require the application of extraordinary scrutiny to those selected by the plaintiff to represent the defendant class. Gordon, 42 Ill. L. Rev. 518 (1947-1948).
While it is uniformly stated that one member of a class may sue or defend for the benefit of the whole class (59 Am. Jur. 2d Parties, §48, pp. 411-412; Story, Equity Pleadings (10th Ed.) §97) the right to sue cannot be equated with the duty to defend. There are significant distinctions between permitting one person to sue on behalf of a class and compelling one person to defend as the representative of a class. An individual who initiates a class action does so voluntarily. He willingly assumes the plaintiffs’ burden to correct a wrong, assert a right, recover funds or obtain damages in the expectation that he and his counsel ([s]ee Andrews, The Class Action Bar, Juris Doctor, Jan. 1974, p. 18) will profit or at least be compensated for their zeal and labor. However, an individual who is singled out as the representative of a defendant class is involuntarily shackled with a heavy responsibility. He must protect not only himself but innumerable other people. He must retain an attorney and spend time and money in the preparation of a defense which will do justice to people he does not know and then must represent their interests in a trial of uncertain duration. Further, unlike a plaintiff class action when its object is a money judgment, no fund becomes available to the defendant class to cover its costs in the event it is successful. (Gordon, 42 Ill. L. Rev. 518 (1947-1948).) If the plaintiff is unable to pay the costs which the defendant has a right to recover, the defendant will have a right without a remedy. Tomquist, 5 Loyola L.J. 45 (1974).” (Emphasis added.) 19 Ill. App. 3d at 993-94, 312 N.E.2d at 758-59.
In the instant case, the clear language of section 2 — 804(b) of the Code supports the trial court’s exercise of its discretion in allowing the named defendants to be excluded as representatives of the class. By adopting the extreme position that a defendant representative may never be permitted to opt out of the class, the majority places a defendant representative at substantial risk that he may be forced into the untenable position of representing others with conflicting interests and adverse defenses. This result also poses serious problems regarding constitutional rights to free association, as well as professional ethics. In my view, the trial court correctly refused to compel an unwilling representation by the defendants designated in plaintiff’s complaint.
Neither the express terms of section 2 — 804(b) nor principles of statutory construction support the majority’s assumption that the Illinois legislature's codification of procedures for class action certification sought to overturn established case precedent and the sound principles enunciated therein.
For these reasons, I answer affirmatively the certified question and respectfully dissent.