Tri-Plex Technical Services, Ltd. v. Jon-Don, LLC , 2024 IL 129183 ( 2024 )

2024 IL 129183IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 129183)
TRI-PLEX TECHNICAL SERVICES, LTD., Appellee, v.
JON-DON, LLC, et al., Appellants.
Opinion filed May 23, 2024.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White, Rochford,
and O’Brien concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Tri-Plex Technical Services, Ltd., filed a complaint in the circuit
court of St. Clair County against the defendants, Jon-Don, LLC; Legend Brands,
Inc.; Chemical Technologies International, Inc.; Bridgepoint Systems; Groom
Solutions; and Hydramaster, LLC, alleging violations of the Illinois Uniform
Deceptive Trade Practices Act (Deceptive Trade Practices Act) (815 ILCS 510/1
et seq. (West 2020)) and the Illinois Consumer Fraud and Deceptive Business
Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2020)). The
circuit court dismissed the plaintiff’s complaint with prejudice on numerous
grounds, including that the plaintiff failed to allege sufficient facts to state a claim
and that the plaintiff lacked standing. The appellate court reversed the judgment of
the circuit court and remanded the case for further proceedings. 2022 IL App (5th)
210210-U. For the following reasons, we reverse the judgment of the appellate
court and affirm the judgment of the circuit court dismissing the plaintiff’s
complaint.
¶2 BACKGROUND
¶3 The plaintiff is an Illinois corporation that develops, manufactures, distributes,
and sells commercial-grade carpet cleaning products to carpet cleaning companies.
The defendants are the plaintiff’s competitors and are companies that also either
develop, manufacture, distribute, and/or sell commercial-grade carpet cleaning
products in Illinois.
¶4 On March 25, 2020, the plaintiff filed its complaint pursuant to the Deceptive
Trade Practices Act and the Consumer Fraud Act. As ultimately amended, the
plaintiff’s complaint alleged generally that each defendant “omit[s] from its
labeling” and “fail[s] to disclose” that its cleaning products contain excessive
amounts of phosphorous, in violation of the Regulation of Phosphorus in
Detergents Act (Detergents Act) (415 ILCS 92/5 (West 2020)), as well as excessive
amounts of volatile organic material (VOM), in violation of an environmental
regulation promulgated by the Pollution Control Board (VOM regulation) (35 Ill.
Adm. Code 223.205(a)(17)(B) (2012)). The complaint asserted that the amounts of
phosphorus and VOM in the defendants’ products render the products “illegal in
Illinois,” unbeknownst to the commercial carpet cleaning companies that purchase
the defendants’ products. The complaint further alleged that this harms the plaintiff
because the plaintiff’s “products comply with Illinois law” and the carpet cleaning
companies “prefer and purchase [the defendants’] products because they contain
[phosphorus] and clean better, albeit illegally.”
¶5 The plaintiff’s complaint contained separate counts directed against each
defendant alleging identical violations of the Deceptive Trade Practices Act and the
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Consumer Fraud Act. In the Deceptive Trade Practices Act counts, the complaint
alleged that each defendant distributed and sold its products in Illinois while
“omitting the material fact” that the products “violate Illinois law.” This created “a
likelihood of confusion or misunderstanding” and, therefore, according to the
complaint, constituted a deceptive trade practice within the meaning of the
Deceptive Trade Practices Act. The complaint further alleged that each defendant
willfully engaged in these deceptive practices and that the plaintiff “suffered and
continues to suffer a loss of the ability to compete in the marketplace and a loss of
sales” caused by the deceptive practices. The complaint asked the circuit court to
find that the defendants willfully engaged in deceptive trade practices, to enjoin the
defendants from distributing or selling their products in Illinois, to award the
plaintiff attorney fees, and for other “just and proper” relief.
¶6 In the Consumer Fraud Act counts, the plaintiff’s complaint alleged that the
defendants each employed “deception, fraud and false pretenses to conceal,
suppress and omit the material facts” that their products “do not comply with
Illinois law” and that the products “exposed reasonable consumers to unwanted,
harmful, illegal levels of chemical exposure.” The complaint further alleged that
the defendants intended for others to rely upon these material omissions and that,
if the defendants had stated on their labeling or packaging that their products are
“illegal under Illinois law and that they could neither be purchased nor sold legally
in Illinois, then no reasonable person would purchase” those products. The
complaint asserted that the plaintiff “is unable to fairly compete” with the
defendants and, therefore, the defendants’ “conduct directly and proximately
caused substantial injury” to the plaintiff. The complaint asked the circuit court to
find that the defendants willfully violated the Consumer Fraud Act; to enjoin the
defendants from distributing or selling their products in Illinois; to award the
plaintiff actual damages, reasonable attorney fees, and costs; to assess punitive
damages against the defendants for their “willful violations of Illinois law”; and for
other “just and proper” relief.
¶7 The plaintiff’s complaint also contained a single count alleging a civil
conspiracy by two of the defendants, Jon-Don, LLC, and Legend Brands, Inc. The
complaint alleged that the two defendants entered into an agreement to develop and
sell carpet cleaning products that violate Illinois environmental laws. That
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agreement is alleged to have caused the plaintiff “to suffer a significant loss of
sales.”
¶8 The defendants filed separate motions to dismiss the plaintiff’s complaint for
failure to state a cause of action under section 2-615 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615 (West 2020)), as well as motions to dismiss the
complaint for lack of standing under section 2-619 of the Code (id. § 2-619). The
defendants adopted each other’s arguments.
¶9 Following a hearing on the defendants’ motions, the circuit court dismissed the
plaintiff’s complaint with prejudice. Relevant here, the circuit court determined that
“the State maintains exclusive enforcement authority” over the environmental laws
at issue in this case and, therefore, the violations of those laws cannot be “within
the scope of conduct” covered by the Deceptive Trade Practices Act and the
Consumer Fraud Act. The circuit court concluded that the plaintiff could not use
the Deceptive Trade Practices Act and the Consumer Fraud Act as a “back door
method” to bring an otherwise impermissible private cause of action against the
defendants for violation of the State’s environmental laws. Accordingly, the circuit
court dismissed the Deceptive Trade Practices Act and the Consumer Fraud Act
counts of the plaintiff’s complaint for failure to state a cause of action.
¶ 10 The circuit court also found that the plaintiff had failed to establish standing
with respect to its claims under the Consumer Fraud Act. The circuit court further
determined that, to establish standing for these claims, the plaintiff was required to
satisfy the so-called “consumer nexus test,” since the plaintiff was not a purchaser
or consumer of the defendants’ products. The circuit court concluded that the
plaintiff did not satisfy this test because the defendants’ alleged conduct, which
formed the basis of the plaintiff’s complaint, was directed at other businesses.
Specifically, the defendants’ conduct was directed at businesses such as
commercial carpet cleaning companies and was not marketed to consumers directly
or generally. The trial court then dismissed the remaining civil conspiracy claim
since it was “based on the same alleged conduct” as the other failed claims.
¶ 11 The plaintiff appealed, and the appellate court reversed the judgment of the
circuit court. 2022 IL App (5th) 210210-U. The appellate court held that the circuit
court erred in finding that violations of the Detergents Act and the VOM regulation
could not form the basis for claims under the Deceptive Trade Practices Act and
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the Consumer Fraud Act. Id. ¶ 28. The appellate court reasoned that, while
environmental laws are enforced by the State, the plaintiff’s claims were not
brought under those laws. Id. ¶ 27. “Rather, the plaintiff invoked those laws and
regulations as evidence to support its claims of unfair competition and unfair
practices.” Id. The appellate court found that the plaintiff’s complaint simply used
the environmental laws as “a quantum of proof regarding the deceptive actions.”
Id. ¶ 28. The appellate court therefore held that the circuit court improperly
dismissed the plaintiff’s complaint on the grounds that violations of the Detergents
Act and the VOM regulation could not support its claims under the Consumer Fraud
Act and the Deceptive Trade Practices Act. Id.
¶ 12 The appellate court then turned to the circuit court’s determination that the
plaintiff did not establish standing for its Consumer Fraud Act claims. Id. ¶ 39. The
appellate court noted that the Consumer Fraud Act’s protections are not limited to
consumers, as the full title of the Consumer Fraud Act is “ ‘An Act to protect
consumers and borrowers and businessmen against fraud, unfair methods of
competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce ***.’ ” Id. ¶ 42 (quoting Sullivan’s Wholesale Drug Co. v. Faryl’s
Pharmacy, Inc., 214 Ill. App. 3d 1073, 1082 (1991)). Because the plaintiff
conceded it is not a consumer of the defendants’ products, the appellate court stated
it needed to determine “whether the plaintiff has alleged sufficient facts to establish
standing under the ‘consumer nexus’ test.” Id. ¶ 43. The appellate court found that
the plaintiff satisfied the consumer nexus test because it alleged that the defendants
directed deceptive practices toward consumers and created an anticompetitive
effect on the market. Id. ¶ 45. Thus, the appellate court held that the plaintiff had
established standing through the consumer nexus test for its Consumer Fraud Act
claims and so the circuit court improperly dismissed the plaintiff’s complaint for
lack of standing. Id. Finally, the appellate court held that, since the plaintiff
adequately asserted claims under the Consumer Fraud Act and the Deceptive Trade
Practices Act, its civil conspiracy claim also survived. Id. ¶ 62.
¶ 13 This court granted the defendants’ petition to appeal. Ill. S. Ct. R. 315(a) (eff.
Oct. 1, 2021). We allowed the Illinois Trial Lawyers Association leave to file an
amicus curiae brief in support of the plaintiff. Ill. S. Ct. R. 345(a) (eff. Sept. 20,
2010).
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¶ 14 ANALYSIS
¶ 15 Deceptive Trade Practices Act Claims
¶ 16 The Deceptive Trade Practices Act states, in relevant part, that
“[a] person engages in a deceptive trade practice when, in the course of his or
her business, vocation or occupation, the person:
***
(2) causes likelihood of confusion or of misunderstanding as to the
source, sponsorship, approval, or certification of goods ***;
***
(5) represents that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that they do not
have ***; [or]
***
(12) engages in any other conduct which similarly creates a likelihood
of confusion or misunderstanding.” 815 ILCS 510/2(a)(2), (5), (12) (West
2020).
¶ 17 The purpose of the Deceptive Trade Practices Act is to prohibit unfair
competition. Phillips v. Cox, 261 Ill. App. 3d 78, 81 (1994). As such, the statute
“ ‘is primarily directed towards acts which unreasonably interfere with another’s
conduct of his business.’ ” Id. (quoting Popp v. Cash Station, Inc., 244 Ill. App. 3d
87, 98 (1992)). The Deceptive Trade Practices Act does not provide a private cause
of action for damages. Glazewski v. Coronet Insurance Co., 108 Ill. 2d 243, 253
(1985). Instead, the statute authorizes private lawsuits for injunctive relief. 815
ILCS 510/3 (West 2020) (“A person likely to be damaged by a deceptive trade
practice of another may be granted injunctive relief upon terms that the court
considers reasonable.”); see Glazewski, 108 Ill. 2d at 252 (noting that plaintiffs
under the Deceptive Trade Practices Act will “often be more interested in stopping
the unlawful conduct than collecting damages, which may not be readily
measurable”).
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¶ 18 In this case, the defendants contend that, as a matter of law, the plaintiff has not
pled a deceptive act or practice within the meaning of the Deceptive Trade Practices
Act. The defendants rest their argument on the premise that both the Detergents Act
and Illinois’s Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West
2020)) and its associated regulations “can only be enforced by the State.” The
defendants argue that the Deceptive Trade Practices Act cannot be used by the
plaintiff “to assert claims that rest entirely on allegations that [the defendants] have
violated environmental laws that are not otherwise privately enforceable.” To allow
the plaintiff’s claims to go forward under the Deceptive Trade Practices Act, the
defendants reason, would impermissibly create a private cause of action for
violations of environmental laws when such an action is not permitted under Illinois
law. For this reason, the defendants contend, the circuit court properly dismissed
the Deceptive Trade Practices Act claims.
¶ 19 We agree with the defendants that the circuit court properly dismissed the
plaintiff’s Deceptive Trade Practices Act claims. However, we reach this result for
reasons other than those asserted by the defendants.
¶ 20 Contrary to the defendants’ assertions, the State does not maintain the exclusive
authority to enforce environmental laws in Illinois. Section 45(b) of the Act
provides that “[a]ny person adversely affected in fact by a violation of this Act” or
of regulations adopted thereunder “may sue for injunctive relief against such
violation.” Id. § 45(b). Significantly though, this statement comes with an
important qualification. The next sentence of section 45(b) states that “no action
shall be brought under this Section until 30 days after the plaintiff has been denied
relief by the Board in a proceeding brought under subsection (d)(1) of Section 31
of this Act.” Id. Section 31(d)(1) of the Act provides, in turn, that “[a]ny person
may file with the [Pollution Control] Board a complaint *** against any person
allegedly violating this Act, any rule or regulation adopted under this Act, any
permit or term or condition of a permit, or any Board order.” Id. § 31(b).
¶ 21 Notably, the Act expressly authorizes the State, through the attorney general or
a state’s attorney, to file original actions for injunctive relief in the circuit court for
violations of environmental laws and regulations. See id. § 43(a). However, no such
authorization exists for the filing of injunctive claims by private parties. Instead,
for private parties, the plain language of section 45(b) dictates that a plaintiff
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seeking injunctive relief based on environmental violations must first pursue an
administrative remedy before the Pollution Control Board, the adjudicative body
charged with hearing environmental disputes.
¶ 22 For private parties, section 45(b) bars a complaint for injunctive relief in circuit
court based on violations of environmental laws until a ruling from the Pollution
Control Board is first obtained. That did not happen here. The alleged violations of
both laws underlying the plaintiff’s complaint could have been brought under
section 31(d)(1): the Detergents Act is enforced by the Pollution Control Board
(415 ILCS 92/5(e) (West 2020)), and the VOM regulation was promulgated by the
Pollution Control Board under the authority of the Act (415 ILCS 5/27(a) (West
2020)). Yet, despite this available procedural avenue, counsel for the plaintiff
indicated during oral argument before this court that the plaintiff has not sought nor
pursued administrative relief.
¶ 23 The plaintiff notes that its primary reason for seeking an injunction to stop the
defendants from selling their products was to prevent the loss of the plaintiff’s
customers and not to protect the public from environmental harm caused by the
defendants. Nevertheless, the fact remains that the relief sought by the plaintiff
under its Deceptive Trade Practices Act claims—an injunction based on violations
of the relevant environmental laws—is indistinguishable from what is initially
required to be considered by the Pollution Control Board. Fundamentally, the
plaintiff’s Deceptive Trade Practices Act claims in this case are not “substantially
different than the normal dispute over alleged environmental damage which the
legislature has determined should be brought in the first instance before the
Pollution Control Board when not brought by a public official.” Decatur Auto
Auction, Inc. v. Macon County Farm Bureau, Inc., 255 Ill. App. 3d 679, 685 (1993).
Accordingly, the plaintiff’s claims under the Deceptive Trade Practices Act seeking
injunctive relief for violations of the Detergents Act and the VOM regulation must
be dismissed for failure to exhaust administrative remedies. Id.¶ 24 Consumer Fraud Act Claims
¶ 25 Unlike the plaintiff’s Deceptive Trade Practices Act claims, its claims under the
Consumer Fraud Act are not limited solely to seeking injunctive relief. For this
reason, our analysis regarding the Deceptive Trade Practices Act claims cannot
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completely resolve the Consumer Fraud Act claims. Nevertheless, for the following
reasons, we conclude that the circuit court properly dismissed those counts of the
plaintiff’s complaint alleging a violation of the Consumer Fraud Act.
¶ 26 A plaintiff who asserts a private cause of action under section 10a(a) of the
Consumer Fraud Act must allege the following elements: “(1) a deceptive act or
practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the
deception, (3) the occurrence of the deception in the course of conduct involving
trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused
by the deception.” Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 149 (2002); see
De Bouse v. Bayer, 235 Ill. 2d 544, 550 (2009); Barbara’s Sales, Inc. v. Intel Corp.,
227 Ill. 2d 45, 72 (2007); Avery v. State Farm Mutual Automobile Insurance Co.,
216 Ill. 2d 100, 180 (2005). Section 10a(a) of the Act expressly requires proof that
the plaintiff suffered “actual damage,” as well as proof that the damage occurred
“as a result of” a violation of the Consumer Fraud Act. 815 ILCS 505/10a(a) (West
2020); Oliveira, 201 Ill. 2d at 149. This statutory language “imposes a proximate
causation requirement” for private causes of action under the Consumer Fraud Act.
Oliveira, 201 Ill. 2d at 149. In order to establish the element of proximate causation,
a plaintiff must prove that it was actually deceived by the misrepresentation. Avery,
216 Ill. 2d at 199. If the plaintiff has neither seen nor heard a deceptive statement,
it cannot have relied on the statement and, consequently, cannot prove that the
statement was the proximate cause of its injury. De Bouse, 235 Ill. 2d at 555.
¶ 27 This court elaborated on the proximate causation requirement in Shannon v.
Boise Cascade Corp., 208 Ill. 2d 517 (2004). There, a group of homeowners filed
a private cause of action under the Consumer Fraud Act against the manufacturer
of the composite siding on their homes. Id. at 519-20. The homeowners alleged that
the manufacturer had deceptively advertised the composite siding, making false
representations as to its quality and failing to disclose that the siding had a “ ‘high
rate of failure’ ” and required “ ‘highly particularized maintenance.’ ” Id. at 520.
The homeowners conceded that they had not received any representations regarding
the siding from the manufacturer. Id.¶ 28 Relying on Oliveira, this court held that, because the deceptive advertising was
not received by the homeowners, it could not be the proximate cause of their
injuries. Id. at 525. We explained:
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“[The homeowners’] complaint in this case does not allege that any deceptive
advertising by [the manufacturer] was received by any [homeowner], or that it
was received by any builder, architect, engineer, or other like person somehow
connected with a [homeowner]. *** The advertising in Oliveira and in this case
did not in any way deceive the plaintiffs, and thus could not have proximately
caused the claimed damages, whatever their nature.” Id.While the deceptive statements need not be conveyed directly to the plaintiffs,
proximate cause requires that the plaintiffs must be the intended target of the
alleged deception. Id. Accordingly, because the homeowners’ pleadings relied only
on an alleged deception of unspecified persons having no demonstrated connection
to the homeowners, their Consumer Fraud Act claim failed. Id. at 528.
¶ 29 Like the homeowners in Shannon, the plaintiff in this case fails to allege in its
complaint that the defendants intended for the plaintiff to rely upon the alleged
misrepresentations on their product labels. Rather, the plaintiff alleges that the
defendants intended for the carpet cleaning companies that purchased the
defendant’s products to rely upon the alleged misrepresentations. Furthermore, the
plaintiff concedes it is not a purchaser or consumer of the defendants’ products.
The allegations in the plaintiff’s complaint thus are insufficient to establish the
proximate cause element for a cause of action under the Consumer Fraud Act. See
Oliveira, 201 Ill. 2d at 149 (to adequately plead a private cause of action for a
violation of the Consumer Fraud Act, a plaintiff must allege a deceptive act or
practice by the defendant and the defendant’s intent that the plaintiff rely on the
deception). As such, the plaintiff has failed to plead all the elements of a Consumer
Fraud Act claim.
¶ 30 Nevertheless, the appellate court below held that the plaintiff sufficiently
alleged a cause of action under the Consumer Fraud Act because it satisfied the so-
called “consumer nexus test.” 2022 IL App (5th) 210210-U, ¶¶ 43-45. Although
the appellate court couched its holding in a discussion about “standing,” the
practical effect of the appellate court’s ruling was to excuse the plaintiff from
pleading the proximate cause element of its cause of action. We disagree with this
analysis.
¶ 31 The term “consumer nexus” does not appear in the Consumer Fraud Act, and
this court has never addressed the “consumer nexus test.” The first mention of the
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term in the appellate court appeared in a 1998 decision, Brody v. Finch University
of Health Sciences/The Chicago Medical School, 298 Ill. App. 3d 146 (1998). In
Brody, the plaintiffs filed a complaint for breach of implied contract, common-law
fraud, and a violation of the Consumer Fraud Act against the defendant medical
school. Id. at 149. The plaintiffs alleged that the defendant falsely represented that
students who enrolled in the defendant’s “Applied Physiology Program” and
received a grade point average of 3.0 or higher would be admitted to the defendant’s
medical school; then it reneged on that promise on the first day of orientation. Id.Following a trial, the circuit court ruled that the plaintiffs failed to introduce
sufficient evidence in support of their cause of action under the Consumer Fraud
Act, and it entered a judgment for the defendant on that claim. Id. at 152-53. The
appellate court affirmed the trial court’s judgment as to the Consumer Fraud Act
claim. Id. at 160-61.
¶ 32 The Brody court first held that the evidence at trial established all the required
elements for a violation of the Consumer Fraud Act. Id. at 158. Nevertheless, the
court held that the plaintiffs’ claim failed because they did not satisfy their
obligation to “plead an implication of consumer protection concerns” in their
complaint. Id. at 159-60. The court held that the Consumer Fraud Act is not
intended to apply to every commercial transaction or every dispute arising from a
breach of contract. Id. at 158-59. In short, “[a] breach of contract, without more, is
insufficient to sustain a cause of action cognizable under the Consumer Fraud Act.”
Id. at 159. For this reason, the court held, claims brought under the Consumer Fraud
Act must satisfy the “ ‘consumer nexus test.’ ” Id. The court explained that this test
involves the following inquiry:
“ ‘[W]here a plaintiff attempts to allege a violation of the [Consumer Fraud]
Act in a case which appears on its face to involve only a breach of contract, the
relevant inquiry is “whether the alleged conduct [involves trade practices
addressed to the market generally or otherwise] implicates consumer protection
concerns.” ’ ” Id. at 159 (quoting Lake County Grading Co. of Libertyville, Inc.
v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 452, 459 (1995),
quoting Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc., 190
Ill. App. 3d 524, 534 (1989)).
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¶ 33 To the extent that the appellate court below applied the consumer nexus test as
set forth in Brody, we find that Brody and its progeny have no bearing on this case.
This case does not involve a breach of contract or any other commercial transaction
between the parties. The plaintiff has not alleged any contractual or transactional
relationship between itself and the defendants. Accordingly, we make no ruling on
the validity of the consumer nexus test if it takes place in the context of a complaint
arising out of an alleged breach of contract.
¶ 34 We recognize, however, that there is another line of state and federal cases that
have applied the “consumer nexus test” in a slightly different fashion. For instance,
in Downers Grove Volkswagen, Inc., a car dealership filed suit against another car
dealership, alleging three claims: a violation of the Consumer Fraud Act, tortious
interference with business, and libel, all based on the defendant’s brochure that
allegedly reported false information about the plaintiff’s services. Downers Grove
Volkswagen, Inc., 190 Ill. App. 3d at 526. The trial court dismissed the plaintiff’s
Consumer Fraud Act count for failure to state a cause of action because the plaintiff
was not a “consumer” under the Act. Id. at 527. The appellate court reversed the
judgment of dismissal. Id. at 534.
¶ 35 The appellate court in Downers Grove Volkswagen, Inc. stated that the
Consumer Fraud Act should be liberally construed and is not limited exclusively to
the protection of consumers. Id. The court further held that, where a Consumer
Fraud Act claim involves a dispute between two businesses who are not consumers
of each other’s products, a court should apply the following test to determine
whether the claim is actionable:
“ ‘[D]eceptive conduct is not actionable under the Consumer Fraud Act unless
the conduct involves trade practices addressed to the market generally or
otherwise implicates consumer protection concerns. [Citation.] However,
businesses have standing to sue under the Consumer Fraud Act to redress
competitive injury they suffer when other businesses deceive customers.
[Citation.]’ ” Id. at 532 (quoting Pain Prevention Lab, Inc. v. Electronic
Waveform Labs, Inc., 657 F. Supp. 1486, 1493 (N.D. Ill. 1987)).
¶ 36 Applying this test, the appellate court held, “[h]ere, where plaintiff has alleged
defendant published false information about its prices for services, plaintiff has
alleged conduct which implicates consumer-protection concerns. Thus, plaintiff has
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standing to sue under the [Consumer Fraud] Act.” Id. at 534. Having found that the
plaintiff alleged it had standing pursuant to the test set forth above, the appellate
court reversed the circuit court’s judgment dismissing the complaint for the failure
to plead a sufficient cause of action under the Consumer Fraud Act. Id.
¶ 37 Subsequent cases in our appellate court and the federal courts have referred to
the test set forth in Downers Grove Volkswagen, Inc., 190 Ill. App. 3d at 534, as
the “consumer nexus test” and applied it to a variety of disputes involving
Consumer Fraud Act claims brought by businesses who are not consumers of the
defendant’s products. However, the problem with this body of case law is that it is
irreconcilable with the language in the Consumer Fraud Act that imposes a
proximate cause requirement. As we explained in Oliveira, the statutory language
expressly requires a plaintiff to plead and prove that the deceptive act or practice
proximately caused the plaintiff’s injury, which means that the plaintiff must be the
intended target of the alleged deception. Oliveira, 201 Ill. 2d at 149; Shannon, 208
Ill. 2d at 525. Moreover, Downers Grove Volkswagen, Inc., and many cases that
adopted the analysis in that opinion predated this court’s decision in Oliveira, where
we held that a plaintiff who brings a cause of action under the Consumer Fraud Act
must allege “(1) a deceptive act or practice by the defendant, (2) the defendant’s
intent that the plaintiff rely on the deception, (3) the occurrence of the deception in
the course of conduct involving trade or commerce, and (4) actual damage to the
plaintiff (5) proximately caused by the deception.” Oliveira, 201 Ill. 2d at 149.
¶ 38 Accordingly, to the extent that Downers Grove Volkswagen, Inc. and other
appellate court decisions hold that a business bringing a claim under the Consumer
Fraud Act need not allege or establish all the elements set forth in Oliveira, those
decisions are overruled. A business plaintiff must meet the same requirements and
allege the same elements as any other plaintiff when bringing a claim under the
Consumer Fraud Act. There is no “consumer nexus” exemption that relieves a
business plaintiff from alleging facts in support of the element of proximate cause.
Because the plaintiff in this case did not plead that it was the intended recipient of
the defendants’ alleged deceptions, it failed to plead all the elements of a Consumer
Fraud Act claim. Accordingly, the circuit court correctly dismissed those counts of
the plaintiff’s complaint alleging a violation of the Consumer Fraud Act.
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¶ 39 Civil Conspiracy
¶ 40 “Civil conspiracy is defined as a combination of two or more persons for the
purpose of accomplishing, by some concerted action, either an unlawful purpose or
a lawful purpose by unlawful means.” Lewis v. Lead Industries Ass’n, 2020 IL
124107, ¶ 19. To state a civil conspiracy claim, a plaintiff must allege an agreement
and a tortious act committed in furtherance of that agreement. Id. ¶ 20.
¶ 41 The essence of a conspiracy claim is not the agreement but rather the tortious
acts performed in furtherance of the agreement. Adcock v. Brakegate, Ltd., 164 Ill.
2d 54, 63 (1994). It necessarily follows, therefore, that a conspiracy is not an
independent tort and, where a plaintiff fails to state an independent cause of action
underlying the conspiracy allegations, the claim for conspiracy also fails. See Süd
Family Ltd. Partnership v. Otto Baum Co., 2024 IL App (4th) 220782, ¶ 59.
¶ 42 Here, the parties do not dispute that the plaintiff’s conspiracy claim rests upon
the validity of the Deceptive Trade Practices Act and the Consumer Fraud Act
claims. For the reasons set forth above, the plaintiff has failed to state an
independent cause of action under either of those statutes. Consequently, the circuit
court correctly dismissed the civil conspiracy count of the plaintiff’s complaint.
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, the judgment of the appellate court is reversed. The
judgment of the circuit court dismissing the plaintiff’s complaint is affirmed.
¶ 45 Appellate court judgment reversed.
¶ 46 Circuit court judgment affirmed.
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