Plaintiffs move for class certification. The putative class consists of all the vendors and their assigns, including factors, that sold goods to defendant department stores from December 10, 1999 until this complaint was filed, over 4,000 entities.

Plaintiff CLC/CFI Liquidating Trust (hereinafter, the Trust) holds the property of two vendors that underwent a joint Chapter 11 bankruptcy in the United States Bankruptcy Court for the Central District of California at Los Angeles. Chorus Line Corporation (CLC) and California Fashion Industries, Inc. (CFI) sold goods to defendants. Timothy J. Yoo is the court-appointed trustee of the Trust and acts for the Trust. Plaintiff Nick DeLeo is the purchaser of the property and interests of two vendors that underwent bankruptcy and are now defunct, William B. Inc. (William B.) and Royal Apparel Group, LLC (Royal).

Defendants are retailers belonging to Federated Department Stores, Inc. (Federated). They buy goods to supply over 850 department stores nationwide. Since this case began, all the defendants, except for Bloomingdales, have been converted to Macy's stores.

Plaintiffs seek monetary damages on the ground of defendants' alleged uniform policy and practice of improper conduct towards vendors. Defendants' first alleged wrong consists of taking deductions for nonconforming goods, without giving the vendors beforehand notice that the goods are nonconforming. The second alleged wrong is that defendants systematically make late payments to vendors, but take discounts intended to be applied when payment is timely, and always fail to add interest to the late payments. It is alleged that these abuses are widespread and endemic and that, due to the power imbalance between vendors and stores, the vendors are essentially powerless to effect redress, except by use of the proposed class action.

Federated maintains a centralized accounts payable division to handle all matters related to vendors. The procedures for ordering goods and paying for them are uniform for all stores. Federated and its vendors enter into purchase orders/contracts, which are the same for all vendors. Thus, plaintiffs allege, all vendors are subject to a single policy administered by a single centralized office.

The purchase orders incorporate Federated's General Terms and Conditions, Federated's [*2]Vendor Standards Manual, and the Retail Industry Conventions and Implementations Guidelines. Most of the particulars of the agreements between Federated and its vendors, including the items at issue in this case, are stated not in the purchase orders or the vendors' invoices, but in one of the incorporated documents.

Purchase orders provide specifications for packing and shipping goods, and a list of deductions, also known as offsets or chargebacks, to be subtracted from the price of goods that do not conform to the specifications. The offsets at issue in this case are known as floor ready expense offsets. The purchase orders require the vendors to send their goods in a condition ready for immediate placement on the selling floor. Vendors may correct any defects or nonconformities in their goods only if defendants consent. The purchase orders do not provide when the stores must give notice of defects to the vendors.

When a carton of goods arrives at a store, a floor ready expense offset team checks to see if the goods conform to the requirements. The team records any nonconformities or defects, such as, for example, garments lacking hangers. Although the stores' declared policy is to correct nonconformities before placing the goods for sale, they do not always do so. Whether or not the nonconformities are corrected, the goods are usually placed on the sales floor the day after receipt and, by then, according to plaintiffs, evidence of any defects is gone.

Plaintiffs allege that, as of August 19, 2003, only 10 of Federated's approximately 400 stores had floor ready expense offset teams. The stores that lack such teams do not record nonconformities. The offsets applied to the nonconformities captured at one store are extrapolated to all the goods of the same type that arrived in the same shipment but that were routed to other stores, on the assumption that all the goods have the same nonconformities.Plaintiffs allege the following. Once a week, the expense offset teams relay the offsets to Federated's centralized payment division. Within 24 hours of receiving a report, the payment system deducts the offset from the amount owed to the vendor. Those vendors which subscribe to Federated's computerized offset notification system can find out about an offset, at the earliest, 24 hours after the offset is released to the payment system. That is usually several days after the corresponding nonconformity was recorded, and well after all physical evidence of it is gone. A vendor that does not subscribe to the computerized system does not learn of the offset until it actually receives the check for the reduced payment.

Plaintiffs' first claim for relief is that defendants' practice of not notifying a vendor of nonconformities until after defendants have applied the remedy for the nonconformity by taking a chargeback violates UCC 2-607. The statute provides that a buyer that accepts goods must notify the seller of a breach within a reasonable time or be barred from any remedy. According to plaintiffs, defendants never give notice within a reasonable time, since taking the chargeback before giving notice can never be deemed reasonable. According to plaintiffs, a reasonable notification time would give the vendors an opportunity to verify the breach. Defendants' policy of putting the goods on the sales floor immediately after recording a breach ensures that the vendors have no opportunity to verify the breach. Plaintiffs also seek relief under UCC 2-709 (action for the price) on the basis that defendants, by taking improper offsets, fail to pay the correct price for the goods.

The second claim for relief is also asserted under UCC 2-709. Each purchase order incorporates the terms of payment, including discounts. According to plaintiffs, these discounts are cash discounts, meaning discounts available to the purchaser if an invoice is paid by an agreed-upon [*3]date. It is alleged that defendants discount the invoice prices although they pay late.

Defendants' initial objection to the motion for class certification is that plaintiffs did not comply with a condition precedent to suit. Each purchase order provides that the party raising a dispute shall provide the other with notice and, if the parties do not resolve the dispute within 30 days of the notice date, either party may seek any remedy, including a judicial resolution. Defendants contend that plaintiffs' failure to give notice of the disputes raised here should prevent them from maintaining suit.

Plaintiffs dispute defendants' allegations. In any event, the provision at issue appear not to constitute a condition that, if unfulfilled, prevents a party from suing. To support such a reading, the provision would have to expressly state that the party may not sue until after giving notice of the dispute (see Oppenheimer & Co., Inc. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 691 [1995]). The provision does not so state. When a party violates a provision of the sort at issue here, the remedy for the nonbreaching party is to sue the breaching party for any damages caused by failing to give notice of the dispute. The remedy is not that the breaching party is barred from commencing an action. Plaintiffs may maintain this action, even if they did not give notice of their disputes to defendants.

CPLR Article 9 governs the use of the class action device. Article 9 is modeled on Rule 23 of the Federal Rules of Civil Procedure, which governs class actions in the federal courts (Brandon v Chefetz, 106 AD2d 162, 168 [1st Dept 1985]). Provided that the party seeking certification satisfies the prerequisites of Article 9, the decision to certify or not is discretionary for the court (Feder v Staten Island Hosp., 304 AD2d 470, 471 [1st Dept 2003]; Englade v HarperCollins Publishers, Inc., 289 AD2d 159, 159 [1st Dept 2001]). Courts place a liberal construction on Article 9, and are authorized to err on the side of allowing class certification (Matter of Colt Indus. Shareholder Litig., 155 AD2d 154, 158-159 [1st Dept 1990], affd as mod, 77 NY2d 185 [1991]). But certification will not be granted, where unwarranted on the law and facts of a case (Evans v City of Johnstown, 97 AD2d 1, 2 [3d Dept 1983]).

Class certification does not depend on the merits of the claims, provided that those are not shown to be utterly valueless (Simon v Cunard Line, 75 AD2d 283, 288 [1st Dept 1980]; see also Caridad v Metro-North Commuter R.R., 191 F3d 283, 291, 293 [2d Cir 1999]; Brandon, 106 AD2d at 168). At the same time, in considering whether certification is proper, "the court may go beyond the pleadings and consider the range of proof necessary to support class certification" (Daniels v City of New York, 198 FRD 409, 413 n 5 [SD NY 2001]). "Furthermore, the court has an independent duty to determine the propriety of class certification and is not limited to arguments made by the parties" (id.). In this case, both sides introduce a great deal of evidence for consideration, including deposition transcripts, affidavits, and other documentary evidence to make their case against or for class certification.

CPLR 901 (a) provides that the party seeking to certify a class must demonstrate class numerosity, questions of law or fact common to the class which predominate over any questions affecting only individual members, typicality of issues between the class representative and members, the adequacy of the class representative to protect the interests of all class members, and the superiority of a class action over other available methods for the fair and efficient adjudication of the controversy (Ackerman v Price Waterhouse, 252 AD2d 179, 191 [1st Dept 1998]). The failure [*4]to make a showing of any of the requisite elements for class certification will result in the denial of the motion for certification.

Once the requirements of CPLR 901 are satisfied, the court will consider the considerations listed in CPLR 902, to wit, the possible interest of class members in maintaining separate actions and the feasibility thereof, the existence of pending litigation regarding the same controversy, the desirability of the proposed class forum and the difficulties likely to be encountered in the management of a class action.

The parties' most contentious issue is whether the proposed class meets the requirements of CPLR 901 (a) (2) in that questions of law or fact common to the class predominate over any questions affecting only individual members. On the one hand, commonality does not require that class members have identical claims (Ackerman, 252 AD2d at 201; Weinberg v Hertz Corp., 116 AD2d 1, 6 [1st Dept 1986], affd 69 NY2d 979 [1987]). On the other hand, to be certified, the class members' claims must be similar enough to render group determinations practical and feasible (see Moore v PaineWebber, Inc., 306 F3d 1247, 1253 [2d Cir 2002]). The issues must turn on questions of law applicable in the same manner to each member of the class (Califano v Yamasaki, 442 US 682, 701 [1979]). Where the class members' claims require that each member present its own proof of defendants' wrongdoing, class certification is precluded (see Solomon v Bell Atl. Corp., 9 AD3d 49, 54-55 [1st Dept 2004]; Hazelhurst v Brita Products Co., 295 AD2d 240, 241-242 [1st Dept 2002]; McKinnon v International Fid. Ins. Co., 281 AD2d 283, 283-284 [1st Dept 2001]).

To certify the class of vendors, plaintiffs must show that the claims against defendants allow for mass proof, rather than proof on an individual basis. Regarding their first claim for relief, plaintiffs allege that it does not involve the merit of any particular chargeback, an inquiry that would necessarily differ from vendor to vendor. Rather, the issue here is only whether giving notice of nonconformities after taking the remedy can ever be deemed to be notice given within a reasonable time. Defendants argue that the reasonableness of the timing of the notice depends upon many different factors which vary from vendor to vendor.

Generally, whether notice of a nonconformity was timely given under UCC 2-607 is a question of fact that depends upon the circumstances (Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398, 404 [1968]; Cliffstar Corp. v Elmar Indus., 254 AD2d 723, 724 [4th Dept 1998]; Panda Capital Corp. v Kopo Intl., 242 AD2d 690, 692-693 [2d Dept 1997]). Defendants allege that the reasonableness of notice to the vendors depends upon many factors, such as the nature of the nonconformity, the course of dealings between the stores and the particular vendor or factor (both sides acknowledge that many vendors, including the four represented here, are factored), instructions concerning notice given by the vendor or factor to the particular defendant, the location of the vendor and the merchandise, the urgency of getting the merchandise on the selling floor quickly, evidence that the vendor may have known of the breach when shipping the merchandise, and other considerations. Defendants allege that vendors provide stores with varying instructions for the provision of notice and that some knowingly ship nonconforming goods rather than take the time to correct defects. In such cases, the vendors already have notice of the nonconformities.

Plaintiffs seek a ruling that notice given after taking the remedy is always notice not given within a reasonable time. Defendants argue that the practical effect of this ruling would be that nonconforming goods could not be moved to the selling floor quickly and would have to be set aside to permit inspection. Such conduct, they argue, is contrary to the commercial realities faced by [*5]vendors, who want their goods moved to the selling floor as soon as possible after receipt and who sometimes knowingly send nonconforming goods in order to get them sold quickly. Many vendors prefer to bear the cost of the chargeback rather than the cost of the delay caused by an opportunity to inspect the defects. Because of the different courses of dealing established with different vendors, what is reasonable for one may not be reasonable for another. Defendants contend that individual vendors would have to produce evidence about their dealings with vendors and that precludes class certification.A ruling that defendants unreasonably delayed giving notice would affect all class members. Yet, as defendants persuasively argue, it would not be congenial to all of them. Moreover, even if the vendors approved of the ruling, each vendor's case would be subject to individualized inquiry. Defendants' evidence shows that the proposed class lacks commonality, given the differences between vendors in regard to notice and chargebacks. Plaintiffs have failed to show that the class is more bound together by mutual interest in settlement of common questionsthan it is divided by individual members' interest in matters peculiar to it. Therefore, class certification is not appropriate on the issue of notification of nonconformities and chargebacks.

Plaintiffs' second claim contends that defendants pay late but take discounts meant to be applied only for timely payment. Plaintiffs allege that the purchase orders incorporate cash discounts. As stated, these are discounts permitted when purchasers pay vendors by an agreed- upon time. According to plaintiffs, the terms that indicate the discounts are standard to stores and vendors and always have the same meaning. Defendants contend that the discounts are trade discounts, which are not related to when payment is made.

The language at issue is stated, not on the face of the purchase orders, but on vendor invoices and in various Federated documents. Plaintiffs submit internal Federated documents, apparently meant for training purposes, and vendor invoices sent to Federated that tend to support plaintiffs' construction of the terms at issue. For example, a Federated training manual provides that "8%30 ROG" means the purchaser takes an 8% discount 30 days after the receipt of the goods (Seltz Affirmation, Ex. 5, at 0016159). "8%/10 EOM" means an 8% discount taken the tenth of the following month, if the goods are received before the 25th (id.). Alternatively, it may mean the discount is taken the tenth of the second following month, if the goods are received on or after the 25th (id.). Another Federated guideline, apparently meant for internal use, refers to "Terms Discount Percent" which is available to the purchaser if an invoice is paid on or before a set payment date (id., Ex. 12). Vendor invoices submitted to Federated state "8/30 days" and "8/10 EOM" (id., Exs. 10, 40, 41).

Defendants assert that the language denotes trade discounts, which are related to such factors such as gross margin agreements, which cause variations in payments. Defendants allege that every gross margin agreement is the result of separate negotiations with a specific vendor and that agreements vary from vendor to vendor. Vendors may also discount their wares based on the quantity ordered, delivery date, availability of goods, and other factors. The president of CFI from 1974 to 2000 and the CFO of another vendor state in their affidavits that the discounts have always been understood as trade discounts, unrelated to the date of payment.

Defendants additionally contend that even if plaintiff is correct that the terms signify cash discounts, there still would remain the question of what kind of discount actually applied to each vendor. Even if the terms mean cash discounts, defendants argue, the fact remains that the stores actually took trade discounts, unrelated to cash discounts. In response to this argument, plaintiffs [*6]point to the fact that on its face, each purchase order provides that it may not be "supplemented, amended, waived, or otherwise affected by any inconsistent Vendor act or inconsistent or additional language in any vendor documentation" (Seltz Affirmation, Ex. 8, Purchase Order, ¶ 27). A purchase order may be modified only in a writing signed by both (id.). "Purchaser's failure to enforce any provision of this Purchase Order or to exercise any right or remedy resulting from a breach thereof shall not be construed as a waiver of any Vendor breach or as a consent to any deviation" from the purchase order terms" (id.). Neither "Purchaser's acceptance or full or partial Vendor performance nor Purchaser's past custom or practice shall be construed as a waiver of any such Vendor breach or as such a consent thereto" (id.). According to plaintiffs, these provisions mean that the vendors could not, regardless of conduct, change the terms of the parties' agreement regarding payment.

A signed agreement that excludes modification except by another signed writing cannot be otherwise modified (UCC 2-209 [2]). Any agreement purporting to modify the original agreement must satisfy the UCC statute of frauds at UCC 2-201 (UCC 2-209 [3]). However, an attempt at modification that is not represented by a signed writing and does not comport with the statute of frauds can nonetheless operate as a waiver (UCC 2-209 [4]; PC COM, Inc. v Proteon, Inc., 946 F Supp 1125, 1130 (SD NY 1996]; Stinnes Interoil, Inc. v Apex Oil Co., 604 F Supp 978, 982 [SD NY 1985]). Whether a party to a contract has waived any terms of the contract by its conduct is a question of fact (Feinberg v Federated Dept. Stores, Inc., 15 Misc 3d 299, 303 [Sup Ct, New York County 2007]). According to defendants, determining whether the vendors waived the terms of the purchase orders in order to permit the stores to take trade discounts, rather than cash discounts, would require vendor-by-vendor inquiries, unsuitable for class certification.

It may be possible to determine that the discount terms have a meaning that is standard in the vendor industry and that they mean cash discounts. It may also be possible to dispose of the argument that vendors waived the terms of the purchase orders. Plaintiffs argue that the parties' agreements are grossly unfair to the vendors and that the purchase orders are drafted by defendants and offered to the vendors on a take it or leave it basis. The purchase orders prevent stores from waiving vendor breaches, but not vendors from waiving store breaches. Nonetheless, there would then be the question of determining exactly what kind of discount a store actually took for each vendor, a legitimate trade discount (since it does appear that the stores take trade discounts which are not related to cash discounts) or an improper cash discount. If a store took an improper cash discount, figuring the vendor's damages would require determining when its goods were delivered, because the date of delivery sets the payment date. Certainly where common questions predominate regarding liability, the need to compute damages individually does not defeat class certification (see Broder v MBNA Corp., 281 AD2d 369, 371 [1st Dept 2001]; Godwin Realty Assoc. v CATV Enter., 275 AD2d 269, 270 [1st Dept 2000]). However, courts have denied class certification when the money damages of any member of the class are so individualized that a class action would be unmanageable (see Emilio v Robison Oil Corp., 15 AD3d 609, 610 [2d Dept 2005]; Eisner v City of New York, 118 Misc 2d 672, 673 [Sup Ct, New York County 1983] [while the issue of negligence would be common to the class, issues of causation and damages would have to be adjudicated on a case-by-case basis]). In this case, the damages inquiry appears to require extensive adjudication which may not be suitable for class certification.

Next is the suitability of plaintiffs to represent the proposed class. In this case, the class [*7]representatives are the Trustee of the bankruptcy Trust of two vendors and the purchaser of claims previously belonging to two vendors. Determining whether a representative party or lead or named plaintiff "will fairly and adequately protect the interests of the class" involves a number of considerations, including whether a conflict of interest exists between the representative and the class members (CPLR 901 [a] [4]; Pruitt v Rockefeller Ctr. Properties, 167 AD2d 14, 24 [1st Dept 1991]). "A class representative acts as principal to the other class members and owes them a fiduciary duty to vigorously protect their interests" (City of Rochester v Chiarella, 65 NY2d 92, 100 [1985]). While the claims of the class representative need not be identical to those of the class, they must arise from the same underlying transactions (Pruitt, 167 AD2d at 22). The class representative must be part of the class, possess the same interest, and suffer the same injury as the class members (General Tel. Co. of the Southwest v Falcon, 457 US 147, 156 [1982]). Since class actions will result in judgments which will bind or inure to the benefit of many persons who have not expressly authorized suit on their behalf, the court must ensure adequacy of representation (Tanzer v Turbodyne Corp., 68 AD2d 614, 619 [1st Dept 1979]).

The infrequency of bankruptcy trustees acting as class representatives was discussed in Dechert v Cadle Co. (333 F3d 801, 802-804 [7th Cir 2003]), which vacated a class certification on the ground that a bankruptcy trustee was not a proper class representative.

As explained in Dechert, an inherent conflict exists between a trustee's duties to the bankrupt party and its claimants and a class representative's duties to the class. A bankruptcy trustee owes a fiduciary duty to the debtor's estate and its creditors (In re McCann, Inc., 318 BR 276, 287 [SD NY 2004]). A trustee has the duty to maximize the estate's collection of debts and the distribution to the creditors (id.). In a class action, the named plaintiff is generally a nominal party who usually derives small benefit from settling or prosecuting the class action (Dechert, 333 F3d at 802). Most of the benefits obtained in a class action go, not to the named plaintiff, but to other class members and to the lawyers for the class (Dechert, 333 F3d at 802). Where the named plaintiff is the trustee for a bankrupt estate, the estate's creditors receive less benefit than class members, which constitutes a violation of the trustee's duties (id.; see also Morlan v Universal Guar. Life Ins. Co. 298 F3d 609, 619 [7th Cir 2002]).

Alternatively, the class action may favor the plaintiffs, which is unfair to the class members (Dechert, 333 F3d at 803). In a class action, the lawyer for the class is the real party (id.; see also Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum L Rev 149, 150 [2003] [generally, the class representative is a figurehead who exercises little or no supervision over the conduct of the litigation by class counsel]; Zupanec, 18 No. 8 Federal Litigator 3 [Westlaw ed, Aug., 2003] [litigation proceeds under the leadership of lawyers for the class, with whom the vast majority of class members have neither contracted for legal representation nor even met]; Haig, 2 Bus & Com Litig Fed Cts § 16:3 [Westlaw 2d ed] [the mantle of class counsel provides tremendous power to the attorneys who act in that capacity]).In the usual class action, the lawyer has no reason to favor the named plaintiff over the rest of the class members, but when the named plaintiff is a fiduciary, he or she is duty bound to favor the interests of the debtor and maximize the value of the debtor's claim (id.). But a representative must protect the interests of the class by working to pursue a remedy which benefits the class as much as it does counsel and the representative. The position of counsel raises a real possibility of conflict between the trustee's duties to the bankrupt and his or her duties to the class members (id.). [*8]

Here, there exists a conflict of interest between the Trustee's duties to the bankrupt parties and to the proposed class. Plaintiffs do not address the conflict, except in the most cursory manner. Plaintiffs fail to demonstrate that the Trustee's fiduciary duties do not create an actual conflict, or that any conflict is neither so direct nor significant as to be an obstacle to representation.

Moreover, the Trustee has no experience in the industry that he seeks to represent. During his deposition, the Trustee acknowledged that the idea of a class action germinated with counsel. In fact, plaintiffs' counsel was also counsel for the committee of unsecured creditors established in CFI's and CLC's bankruptcies (Brutzkus Affidavit, ¶ 12). Those facts, by themselves, are not reasons to find that the class representative is inadequate. But they are significant in light of the Trustee's complete noninvolvement in the industry he seeks to represent. "While we acknowledge that functionally the plaintiffs' attorney is most often the true driving force behind the representation of the class, the named representatives are still required to be more than window dressing or puppets for class counsel" (Davidson v Citizens Gas & Coke Util., 238 FRD 225, 229 [SD IN 2006]). The lead plaintiff must play some independent role, even if very small, and demonstrate some measure of independence from counsel (Tanzer, 68 AD2d at 619-620; see also Meachum v Outdoor World Corp., 171 Misc 2d 354, 370 [Sup Ct, Queens County 1996]). The Trustee here does not demonstrate the level of interest in the vendor industry that a representative should have in the class in order to adequately represent the class.

As noted in Dechert (333 F3d at 803), there may be cases where only a person such as the Trustee may be available to be lead plaintiff. That is not shown to be the case here. As discussed below, the plaintiffs' arguments are unpersuasive that the vendors are so weak vis- a-vis the stores, that only an unengaged person such as the Trustee is available to prosecute these claims.

Dechert also noted that the generally protracted nature of class-action litigation also conflicts with the provision of the Bankruptcy Code, 11 USC § 740 (1), that requires the trustee to complete his work expeditiously (id.; see also generally Davidson, 238 FRD 225 at 230; Birmingham Steel Corp. v Tennessee Valley Auth. 353 F3d 1331, 1334 (11th Cir 2003]; Haig, § 16.3 [class actions are generally two to three times longer than other actions]). Although Dechert concerned a Chapter 7 bankruptcy, the principles regarding the timeliness of the trustee's duties are the same for Chapter 11 cases. Indeed, the Joint Liquidating Trust Agreement for CLC and CFI provides that the Trustee must take dispose of the estate in a "prompt" fashion and make "timely distributions" and "not unduly prolong the duration of the" Trust (Defendants' Ex. E, at 6-7). Based on the foregoing, the Trustee is not an appropriate class representative.

Plaintiff DeLeo's affidavit explains how he came to own the claims of the vendors he seeks to represent. In October 2001, he was employed as a consultant for William B. In late 2001, the factor foreclosed on William B. In April 2002, DeLeo formed Royal and purchased certain William B. assets. Royal and William B. had the same factor. In May of 2003, Royal was placed in involuntary bankruptcy in California. In July 2004, the bankruptcy court granted the factor relief from the automatic stay so it could foreclose against Royal's assets. Then the factor sold DeLeo and his wife all Royal's claims against Federated. DeLeo took out a promissory note to buy the claims and pledged the claims as security for his debt under the note.

Defendants allege that DeLeo is unsuitable as a class representative because, for one thing, he is in default under the notes and the factor, as pledgee, may own the notes. Plaintiffs do not dispute that there is a default under the note. Defendents also allege that the factor could not have [*9]sold the accounts of William B. to DeLeo, because the factor did not own those claims. Plaintiffs take issue with these allegations. However, they need not be addressed.

Defendants object to DeLeo as class representative on the ground that he is not interested enough in the effect of a class action on the vendors. DeLeo was a vendor for a very brief period. They argue that he has not suffered the injuries ascribed to the putative class. Defendants cite In re Public Offering Fee Antitrust Litigation (2006 WL 1026653, *4, 2006 US Dist LEXIS 21076, *13 [SD NY, April 18, 2006]) to the effect that allowing DeLeo to represent the proposed class would be to "treat class membership as a transferable asset, and that could plainly lead to very serious problems indeed in the class action field." This reasoning is persuasive; DeLeo is not a proper class representative. He does not share the same interests as the other class members and a desire to maximize class recovery. The named representative must have sufficient interest in the outcome to ensure vigorous advocacy, and there is no showing that DeLeo has such an interest in the vendor business. Neither proposed lead plaintiff is suitable.

Moreover, the proposed class consists of vendors, whose sizes range from large vendors who make billion dollar sales to defendants, to small vendors, such as Royal. Plaintiffs allege that the vendors are powerless and that they are too afraid to move individually against department stores to the extent that they would join a committee to combat retailer abuses only if membership were anonymous. Federated owns a large share of the retail business and the vendors are afraid of losing business if they complain. Because there is risk in suing defendants, it does not follow that vendors must be represented by persons with a slim interest in the vendor industry and whose interests may be antagonistic. Plaintiffs have acknowledged that the proposed class will consist of wealthy and famous vendors and others very small and obscure. The large ones are certainly capable of commencing their own litigation and assuming the risk of displeasing the purchasers, who, it may be assumed, need the vendors as much as the vendors need them. Plaintiffs do not show anything to the contrary. If vendors were interested, they could bring their own individual cases or even a class action, assuming that the claims were suitable.

Plaintiffs' cites Allapattah Servs. v Exxon Corp. (333 F3d 1248 [11th Cir 2003]) and Cox v Microsoft Corp. (10 Misc 3d 1055A, 2005 WL 3288130, 2005 NY Misc LEXIS 2712 [Sup Ct, NY County, July 29, 2005]), as examples of class actions where large and small business entities were joined as plaintiffs. A crucial difference exists between those cases and this one. In Allapattah, Exxon dealers brought a class action on behalf of 10,000 other dealers. There was no dispute regarding the adequacy of the representatives or their interest in benefitting the entire class of dealers. In Microsoft, the class consisted of all persons and entities who indirectly purchased a Microsoft product for their own use and not for purposes of further selling, leasing or licensing. One of the causes of action was for consumer fraud under General Business Law § 349. Assuming that the class members had widely varying claims, which seems likely, they had all purchased a product from Microsoft. They were suing as consumers. Therefore, they had a similar interest in the claims.

Generally, class actions are regarded as a way to vindicate the claims of those whose damages are too small to make it worth suing on their own (Englade v HarperCollins Publ., 289 AD2d 159, 160 [1st Dept 2001] [class certification granted since the damages suffered by many individual authors would likely be insufficient to warrant their institution of separate suits]; see also Stoudt v E. F. Hutton & Co., 121 FRD 36, 38 [SD NY 1988]). Certification is appropriate for affording relief to those who are in a poor position to seek legal redress, either because they do not know enough or [*10]because redress is too expensive (Schwab v Philip Morris USA, Inc., 449 F Supp 2d 992, 1254-1255 [ED NY 2006]). The historic mission of Rule 23 "has been to take care of the smaller guy" (In Re Cardinal Industries, Inc., 139 BR 703, 707 [Bankr SD OH 1991] [citations omitted]). That is certainly not the case here.

In addition, it has been noted that the class action is " a means of inducing socially and ethically responsible behavior on the part of large and wealthy institutions which will be deterred from carrying out policies or engaging in activities harmful to large numbers of individuals'" (Whalen v Pfizer, Inc., 9 Misc 3d 1124(A), *7, 2005 WL 2875291, 2005 NY Misc LEXIS 2429 [Sup Ct, NY County, Sept. 22, 2005], quoting Friar v Vanguard Holding Corp., 78 AD2d 83, 94 [2d Dept 1980]). Again, that is certainly not the case here.

Certifying a class in this case would satisfy none of the purposes of the class action device, whether taking care of the little guy or discouraging behavior harmful to the public. As noted in Stoudt, claimants should not be allowed to employ the class action device "to strengthen their bargaining position by threatening their adversaries with the prospect of class-wide relief and large attorney fee awards" (id.; see also In re Microsoft Corp. Antitrust Litig., 218 FRD 449, 451 [D MD 2003]) [on the danger of using the class action device as "a source of lawyer-driven, rather than client-driven, litigation"]). Stoudt involved large claimants with the power to bring individual cases, but the same danger of misuse of the class action device exists here, given that those bringing the action do not belong to the proposed class and do not share the likely concerns of that class.

In conclusion, it is

ORDERED that plaintiffs' motion for class certification is denied.

Dated:___________________

ENTER:

_____________________

J.S.C.