The opinion
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Supreme Court Date: 2024.08.15
10:23:31 -05'00'
Tri-Plex Technical Services, Ltd. v. Jon-Don, LLC, 2024 IL 129183
Caption in Supreme TRI-PLEX TECHNICAL SERVICES, LTD., Appellee, v. JON-DON,
Court: LLC, et al., Appellants.
Docket No. 129183
Filed May 23, 2024
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of St. Clair County, the Hon.
Heinz M. Rudolf, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on Rubén Castillo, Joel D. Bertocchi, and Ildefonso P. Mas, of Akerman
Appeal LLP, and Gregory T. Fouts, of Morgan, Lewis & Bockius LLP, both
of Chicago, Charles A. Pierce, of Pierce Law Firm, P.C., Melissa C.
Meirink and Patrick B. Mathis, of Mathis, Marifian & Richter, Ltd.,
and Daniel Hasenstab, of Brown & James, P.C., all of Belleville,
Donald M. Flack, of Armstrong Teasdale LLP, of Edwardsville, and
Alexander B. Reich, of Kalish Law Firm LLC, of Cleveland, Ohio, for
appellants.
David C. Nelson, of Nelson & Nelson, P.C., of Belleville, and
Matthew H. Armstrong, of Armstrong Law Firm LLC, and Robert L.
King, both of St. Louis, Missouri, for appellee.
Dominic C. LoVerde, of Power Rogers, LLP, of Chicago, for amicus
curiae Illinois Trial Lawyers Association.
Justices 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 phosphorus, 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.”
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¶5 The plaintiff’s complaint contained separate counts directed against each defendant
alleging identical violations of the Deceptive Trade Practices Act and the 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 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
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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 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
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support of the plaintiff. Ill. S. Ct. R. 345(a) (eff. Sept. 20, 2010).
¶ 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”).
¶ 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.
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¶ 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 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
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regarding the Deceptive Trade Practices Act claims cannot 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:
“[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
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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 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
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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)).
¶ 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 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
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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.
¶ 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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