Even in the midst of trending de-regulation, consumers have protections from shady business practices in Illinois. The Illinois Consumer Fraud and Deceptive Business Practices Act is alive and well, and it allows individuals to bring actions against businesses that engage in “unfair methods of competition and unfair and deceptive acts or practices, including but not limited to any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact…in the conduct of trade or commerce.” 815 ILCS 505/2.
Individuals are sometimes dissuaded from pursuing their rights against these businesses by the term “fraud” – perhaps the term carries too high of a burden in their minds, paints too severe a picture of what happened to them or draws too close a resemblance to something criminal. The Consumer Fraud Act, though, carves out with specificity the consumer’s rights to pursue actions on deceptive practices that were not specifically aimed at defrauding that single individual. Deception for the purpose of inducing reliance of the public, generally, is enough to state a claim under the act, assuming the plaintiff was harmed by that deception in some way, e.g. they bought, leased, or rented a product or paid for a service based on some expectation created by the deceptive practice, misrepresentation or concealment. It also allows consumers to recover not only their actual damages, which may be relatively small, but also their court costs, attorneys’ fees, and sometimes punitive damages against businesses practicing deception. This makes recoveries on legitimate claims brought under the Act much larger than the actual dollar amount lost by the consumer in reliance on the fraud.
To prevail against a deceptive business, a plaintiff needs to be able to allege and ultimately prove (1) a deceptive act or practice by the defendant company, (2) the defendant company’s intent that the plaintiff (or that any member of the public) rely on that deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce (regular business), and (4) actual damage to the plaintiff that was (5) proximately caused by the deception. Pappas v. Pella Corp., 363 Ill. App. 3d 795 (1st Dist. 2006). This is explicitly distinguishable from common law fraud which requires that a material misstatement or omission be made directly to the plaintiff by the defendant to induce reliance on that misstatement. In other words, if a business’ deceptive practice catches you in its trap, you may have a claim regardless of whether the business has ever made any direct representations to you, personally.
As always, it is important to temper expectation with reality. Just because a business breaches a contract with a consumer does not mean that the consumer has a cause of action against the business for a violation of the Consumer Fraud Act, and the two claims should not be confused. Lake County Grading Company of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 452 (2d Dist. 1995). However, even regular breach of contract actions brought by a consumer against a business can include claims under the Consumer Fraud Act depending on the nature of the contract and depending on how damages awarded to that consumer may serve the interests of other consumers, among other factors. Brody v. Finch University of Health Sciences/Chicago Medical School, 298 Ill. App. 3d 146 (2d Dist. 1998). This is relevant because breach of contract claims usually do not allow for an attorneys’ fee award which often excludes individuals who cannot afford an attorney to enforce their rights. An attorneys’ review of your contract is important in making this distinction.
If you or someone you know has been damaged by a deceptive business practice, do not hesitate to contact Tom Griseta, Bill Factor, or Jeffrey Paulsen at (312) 878-6976 for a free consultation to discuss whether you have rights against that entity, and about whether those rights trigger the Consumer Fraud and Deceptive Business Practices Act.