M & W GEAR CO. v. AW Dynamometer, Inc.

Mr. JUSTICE WEBBER, dissenting:

I respectfuUy dissent from the majority’s thinking.

Initially, I have serious reservations as to whether the Consumer Fraud and Deceptive Practices Act was ever intended to apply to the factual situation presented here.

The parties agree that the plaintiff and the defendant are the two principal manufacturers of dynamometers in the United States. The defendant adds, “and probably in the world.” By analogy, we have General Motors Corporation suing Ford Motor Company, two parties with equal sophistication and business acumen.

It may then be asked whether the statute is intended to protect the lambs from the wolves, or the wolves from each other. I think the former. The short title is the “Consumer Fraud and Deceptive Business Practices Act” (Ill. Rev. Stat. 1979, ch. 121/2, par. 272). The emphasis is on the consumer, and the apparent purpose is an effort to equalize economic power as between consumers and predators in the business world. Sections 2A through 2N of the Act (Ill. Rev. Stat. 1979, ch. 121)2, pars. 262A through 262N) set forth a list of prohibited practices, nearly all of which apply only in a situation where a customer is being overreached: for example, chain referral sales (section 2A), avoidance of direct sales at a residence (section 2B), coupon sales (section 2J.1), non-English-language transactions (section 2N). The addition of section 5(a) of the Federal Trade Commission Act ( 15 U.S.C. §45 ) is merely the legislature’s polite way of saying “etc.” The Federal government has had many more years experience with the resourcefulness and ingenuity with the business community.

I also deem it significant that the principal enforcement powers are given to the Attorney General. The private rights of action were not added until some 15 years later. The power of the State is lent to the consumer in an additional effort to redress the balance. The limitation period is tolled and extended while the Attorney General is acting. (Ill. Rev. Stat. 1979, ch. 121)2, par. 270a(e).) Section 5(a) of the Federal Trade Commission Act, incorporated by reference, deals with enforcement by the Federal Trade Commission, not by individuals. By adding the provisions for private enforcement, the legislature created a hodgepodge, but this in no way detracts from what I conceive to be the underlying purpose stated above, consumer protection, not policing of competition.

Apart from these philosophical considerations and assuming that plaintiff does have a cause of action, I find the proof woefully short. Plaintiff presented not a single witness to testify that he had been misled by the advertising. Instead, it relied on its profit-and-loss statement which admittedly showed a precipitous decline in profits. From this, plaintiff leaps to what has always been a logical fallacy: post hoc ergo propter hoc, an obscure but melodious way of saying that there is no causal connection. When dealing with lost profits, a slippery concept at best, it is not sufficient to say that there is a causal connection, it must be the causal connection. It is plain enough that you cannot sell many arctic boots in Chicago in July because of the weather, but is the same proposition true in December?

Since the first Athenian set up his trapezion in the agora, the morals of the marketplace have been something not likely to be tolerated by the Barbary pirates, but the solution as between equally potent parties lies not in litigation. For all its shortcomings, the market will see to it that he who lives by the sword will perish by the sword.

I would reverse the judgment in its entirety.