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IN RE MONTGOMERY WARD CATALOG SALES LITIG.
October 26, 1987
IN RE: MONTGOMERY WARD CATALOG SALES LITIGATION; This Document Relates To: Balsinger, Pena, Logue and Jeffries
The opinion of the court was delivered by: GREEN
Plaintiff class has moved to strike certain defenses asserted by defendants and for partial summary judgment on the claims of alleged violations of the Illinois Franchise Disclosure Act (the "Franchise Act") Ill. Rev. Stat. Ch. 121 1/2, para. 701 et seq.1 The motion is based upon the contention by plaintiffs that defendants made statements and admissions that the business entities resulting from the catalog sales agency program were franchises. After careful examination of the memoranda and data submitted by the parties, it is clear that the statements relied upon by plaintiffs were not admissions by defendants that the catalog sales agency program created franchises within the meaning of and subject to the Franchise Act. Thus, the contentions of plaintiffs premised upon doctrines of judicial and collateral estoppel are not supported by any evidence. Accordingly, plaintiffs' motion to strike and/or to bar defendants from asserting or defending on the ground that the Illinois Franchise Act does not apply to these transactions must be denied.
In addition, plaintiffs move for summary judgment as to liability on their claim that plaintiffs are franchisees as defined by the following provision of the Franchise Act:
§ 3. Definitions. As used in this Act:
(1) 'Franchise' means a contract or agreement, either expressed or implied, whether oral or written, between 2 or more persons by which:
(a) a franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services, under a marketing plan or system prescribed or suggested in substantial part by a franchisor; and
(b) the operation of the franchisee's business pursuant to such plan or system is substantially associated with franchisor's trademark, service mark, trade name, logotype, advertising, or other commercial symbol designating the franchisor or its affiliate; and
(c) the person granted the right to engage in such business is required to pay, directly or indirectly, a franchise fee of $ 100 or more;
Provided that this Act shall not apply to any franchised business which is operated by the franchisee on the premises of the franchisor or subfranchisor as long as such franchised business is incidental to the business conducted by the franchisor or subfranchisor at such premises, including, without limitation, leased departments and concessions.
Ill. Rev. Ch. 121 1/2 para. 703.
Defendants also seek summary judgment as to the Franchise Act claim. Defendants argue that plaintiffs are unable to offer evidence to establish, on a classwide basis, ...
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