Recent decisions concerning the Consumer Fraud and Deceptive Business Practices Act form the basis for this month’s Civil Litigation FlashPoints – serving as helpful reminders for practitioners and exciting cocktail conversation for consumer fraud hobbyists. As a refresher, a private cause of action under the Act requires 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. See Avery v. State Farm Mutual Ins. Co., 216 Ill. 2d 100, 180, 835 N.E. 2d 801, 850 (Ill. 2005).
First, we examine a case reinforcing the oft-stated legal cliché that relying on your sister for driving directions and travel advice will not subject a performance venue or the band *NSYNC to liability under the Consumer Fraud and Deceptive Business Practices Act when you fail to achieve an on-time automotive arrival. In Petrich v. MCY Music World, plaintiff brought suit against Route 66 Raceway, *NSYNC, and related corporate entities due to plaintiff’s failure to arrive at an *NSYNC concert on time – plaintiff claimed that the defendants failed to provide proper parking facilities or adequate driving directions to deal with the heavy traffic for such shows, but also relied on her sister’s advice for said directions (a shame, as this was their tour supporting their No Strings Attached album – and apparently the live extended guitar solo on “Just Got Paid” was quite the monster jam). Petrich v. MCY Music World, 2007 Ill. App. LEXIS 81 (1st Dist. 2007). In affirming the dismissal of plaintiff’s consumer fraud claim, the appellate court in Petrich found that plaintiff had failed to state her allegations of fraudulent conduct with the requisite specificity – pointing out that if the conduct occurred after the concert tickets were purchased, the allegations could not form the basis of a consumer fraud action (the court in Petrich also showed a wonderful grasp of concert history in a footnote that corrected plaintiff’s allegation that the *NSYNC concert in question echoed the Beatles’ 1965 performance at Wrigley Field – as the court astutely pointed out, the Beatles actually performed at Comiskey Park).
Second, the court in Tkacz v. Weiner offers a helpful reminder that Illinois courts have interpreted “trade or commerce” under the Consumer Fraud and Deceptive Business Practices Act to not include medical, dental, or legal services. Tkacz v. Weiner, 368 Ill. App. 3d 610, 858 N.E. 2d 514 (1st Dist. 2006). 815 ILCS 505/2 provides, in relevant part:
[U]nfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act” in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.
In interpreting “trade or commerce” to not include medical, dental, or legal services, Illinois courts have held that such services are not ordinary commercial enterprises or practices and therefore are not covered by the Consumer Fraud and Deceptive Business Practices Act – however, the business aspects of medical, dental, and legal services have been found to be subject to claims under the Act.
Finally, the court in Jensen v. Bayer AG offers the additional useful reminder that a recall announcement cannot serve as evidence of concealment under the Act. Jensen v. Bayer AG , 2007 Ill. App. LEXIS 74 (1st Dist. 2007). The plaintiff in Jensen brought suit against defendant for his past use of defendant’s cholesterol medication that was subsequently taken off the market. The court in Jensen affirmed the trial court’s grant of summary judgment to the defendant on plaintiff’s claim under the Act as plaintiff failed to offer any evidence of an intent to conceal on defendant’s behalf, other than the defendant’s recall announcement. As stated by the court in Jensen:
The most natural and unstrained interpretation of defendant’s [recall announcement]…indicated that defendant’s ongoing monitoring of [the product] revealed that [the product] may no longer be safe to the public. This is not an admission, either implicitly or explicitly, that defendant concealed the safety of its product from the public. Jensen v. Bayer AG, 2007 Ill. App. LEXIS 74 at *15 [emphasis in original].
