Illinois

• Pages: 175-192

175

CHAPTER 15

ILLINOIS

A. Scope of the Statute and Elements of a Cause of Action

The Illinois Consumer Fraud and Deceptive Business Practices Act

(ICFA)1 “is a regulatory and remedial statute intended to protect

consumers, borrowers, and business persons against fraud, unfair methods

of competition, and other unfair and deceptive business practices.”2

Specifically, the ICFA declares as unlawful:

[u]nfair methods of competition and unfair 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 o mission of such

material fact . . . in the conduct of any trade or commerce . . . .3

The ICFA governs “consumer transactions or those having a consumer

nexus.”4 “A consumer refers to ‘any person who purchases or contracts for

the purchase of merchandise not for resale in the ordinary course of his

trade or business but for his use or that of a member of his household.’”5

Where is it not clear that a consumer transaction exists,6 a consumer

nexus requires “conduct ‘of [a] sufficient magnitude to be likely to affect

the market generally.’”7 To sufficiently plead the “consumer nexus” test,

1. 815 ILL. COMP. STAT. 505/1 to 505/12.

2. Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002).

3. 815 ILL. COMP. STAT. 505/2.

4. Sabrina Roppo v. Travelers Commercial Ins. Co., 869 F. 3d 568, 595 (7th

Cir. 2017).

5. Solwest, LLC v. Fifth Third Bank, 2021 WL 1852211, at *4 (Ill. App. Ct.

2021) (quoting 815 ILL. COMP. STAT. 505/1(e)).

6. Breeze v. Bayco Prods., 475 F.Supp. 3d 899, 907 (S.D. Ill. 2020) (The

consumer nexus test is applied where, for example, the “representations at

issue . . . were not made between individual parties to a commercial

transaction . . . but rather were placed on Defendants' websites and directed

to the consumer public in general.”).

7. Hashmi v. 7-Eleven, Inc., 2020 WL 586822, at *3 (N.D. Ill. 2020) (quoting

Williams Elecs. Games, Inc. v. Garrity, 366 F. 3d 569, 579 (7th Cir. 2004))

(This generally excludes “a business purchaser [who] is not a consumer

because his only use of the purchased product is as an input into th e mak ing

176 State Consumer Protection Law

plaintiffs must demonstrate the following: “(1) that their actions were akin

to a consumer’s actions to establish a link between them and consumers;

(2) how defendant’s representations . . . concerned consumers other than

[plaintiff]; (3) how defendant’s particular [activity] involved consumer

protection concerns; and (4) how the requested relief would serve the

interests of consumers.”8

The ICFA also “creates a cause of action for ‘any person who suffers

actual damage as a result of a violation of this Act committed by any o ther

person.’”9

A plaintiff need not be an Illinois resident; an out-of-state plaintiff

may pursue a private cause of action under the ICFA so long as “the

circumstances that relate to the disputed transaction occur primarily and

substantially in Illinois.”10 “This is a fact-bound inquiry” that considers the

following:

(1) the claimant’s residence; (2) the defendant’s place of business; (3)

the location of the relevant item that is the subject of the disputed

transaction; (4) the location of the claimant’s contacts with the

defendant; (5) where the contracts at issue were executed; (6) the

contract’s choice of law provisions, if there are any; (7) where the

allegedly deceptive statements were made; (8 ) where payments for

services were to be sent; and (9) where complaints about the goods or

services were to be directed.11

Parties cannot contract around the ICFA’s territorial limitations; that

a contract contains choice of law and forum selection clauses in favor of

Illinois does not automatically permit a party to the contract to assert a

claim under the ICFA.12

The act broadly defines the terms “trade” and “commerce” to mean

“the advertising, offering for sale, sale, or distribution of any services and

any property, tangible or intangible, real, personal or mixed, and any other

of a product that he sells.”); see also Lululemon USA, Inc. v. 108 N. State

Retail, LLC, 2009 WL 1732103, at *4 (N.D. Ill. 2009).

8. Breeze v. Bayco Prods., 475 F. Supp. 3d 899, 906 (S.D. Ill. 2020).

9. Cummings v. TVI, Inc., 2020 WL 1065433, at *2 (S.D. Ill. 2020) (quoting

815 ILL. COMP. STAT. 505/10a(a)).

10. Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 854 (Ill. 2005).

11. Haught v. Motorola Mobility, Inc., 2012 WL 3643831, at *3 (N.D. Ill.

2012).

12. Morrison v. YTB Int’l, 649 F. 3d 533, 537 (7th Cir. 2011); Int’l Profit

Assocs. v. Linus Alarm Corp., 971 N.E.2d 1183, 1191-92 (Ill. App. Ct.

2012).