APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
WALTER LAUGHLIN et al., Trustees of Masonry Institute,
Welfare Fund of Bricklayers Local 21, et al., on
their own behalf and on behalf of a class of
516 N.E.2d 468, 163 Ill. App. 3d 10, 114 Ill. Dec. 313 1987.IL.1569
Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.
Rehearing Denied December 8, 1987.
JUSTICE WHITE delivered the opinion of the court. McNAMARA, P.J., and FREEMAN,* J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
Plaintiffs are the trustees of two union health benefit plans that pay the cost of hospital services for their members. Defendants are 10 Chicago-area hospitals which have contracted with Health Care Services Corporation , the administrator of the Illinois Blue Cross plan, to provide medical services for Blue Cross subscribers. The defendants' contracts with HCS provide that the medical expenses incurred by Blue Cross subscribers are paid by HCS, and that any amount in excess of 105% of a hospital's cost in treating Blue Cross patients is refunded to HCS. The form of these contracts was reviewed and approved by the Illinois Department of Insurance in 1952. Plaintiffs filed a complaint alleging violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.) and the Illinois Antitrust Act (Ill. Rev. Stat. 1985, ch. 38, par. 60-1 et seq.). The trial court dismissed the complaint for failure to state a cause of action; plaintiffs appeal.
Count I of plaintiffs' complaint alleges that "by paying rebates to Blue Cross but not to plaintiffs or any other third-party payor, defendants have violated the Illinois Consumer Fraud and Deceptive Business Practices Act," and that plaintiffs "have been damaged in that they have been . . . required to pay defendants higher prices for hospital services than Blue Cross." Plaintiffs claim that this allegation states a cause of action under the consumer fraud statute because that statute is to be interpreted as the Federal Trade Commission Act (FTC Act) (15 U.S.C. sec. 45 (1982)) has been interpreted by the Federal courts. They argue that violations of the Clayton Antitrust Act (15 U.S.C. sec. 12 et seq. (1982)) have been held to be violations of the FTC Act, and that the complaint sufficiently alleges Clayton Act violations.
The consumer fraud statute, which prohibits unfair methods of competition and unfair and deceptive trade practices, provides that "[in] construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the Federal courts relating to Section 5(a) of the Federal Trade Commission Act." (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 262.) The FTC Act, which also prohibits unfair methods of competition and unfair and deceptive trade practices, has consistently been interpreted to be violated by violations of the Clayton Act. (See Times-Picayune Publishing Co. v. United States (1953), 345 U.S. 594, 609, 97 L. Ed. 1277, 1290, 73 S. Ct. 872, 880-81; FTC v. Motion Picture Advertising Service Co. (1953), 344 U.S. 392, 394-95, 97 L. Ed. 2d 426, 429-30, 73 S. Ct. 361, 363-64.) The Illinois Supreme Court, however, has refused to interpret the Illinois statute as including all violations of the Federal antitrust laws. In Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790, a defendant who had successfully moved at trial for dismissal of a consumer fraud claim argued that the appellate court's reinstatement of that claim improperly incorporated Clayton Act prohibitions into our statute. The supreme court stated with approval that the appellate court "did not, as contended by defendant, construe section 2 of the [Consumer Fraud and Deceptive Practices] Act to mean that every violation of section 2(c) of the Clayton Act [citation] was an unfair or deceptive practice." (72 Ill. 2d 179, 184, 380 N.E.2d 790.) Though the supreme court affirmed the appellate court's finding that a cause of action was stated under the statute, its Conclusion was based on the allegation that defendant's failure to disclose a material fact resulted in unreasonable and unnecessary charges to plaintiff. Fitzgerald, therefore, indicates that the allegation of a Clayton Act violation, while stating a claim under the FTC Act, does not ipso facto state a cause of action under the consumer fraud statute.
Fitzgerald also indicates that a complaint such as that in the instant case may state a cause of action if it sufficiently alleges unfair methods of competition or unfair or deceptive trade practices. The practice found to be deceptive in that case was a seller's secret rebate of portions of a buyer's payments to the buyer's agent. The court held that a cause of action for deception was stated because knowledge of the rebates would have allowed the buyer to recover them from his intermediary. (72 Ill. 2d 179, 188, 380 N.E.2d 790.) We do not believe that the facts alleged in the instant case are comparable. We decline to rule that a buyer states a sufficient claim of material deception merely by alleging that he was unaware that his seller, in a contract which was a matter of public record, granted a competitor a lower price for services. In addition, we find no support for plaintiffs' argument that defendants' conduct was unfair. This court, in addressing a claim that price discrimination was unfair under the statute, has found "no authority which has held or even implied that a seller is prohibited from charging different customers different prices, or from granting bigger discounts to volume buyers than cost savings alone would justify." (Perrin v. Pioneer National Title Insurance Co. (1980), 83 Ill. App. 3d 664, 673, 404 N.E.2d 508.) Since the supreme court's opinion in Fitzgerald decided that our consumer fraud statute, unlike the FTC Act, is not an additional enforcement provision of the antitrust laws, and since we are presented with no precedent for finding defendants' actions to be "unfair" under the statute, we agree with the trial court's Conclusion that plaintiffs failed to state a cause of action under the statute. Accordingly, we affirm the dismissal of count I of plaintiffs' complaint.
Count II of the complaint alleges that defendants' differential pricing "constitutes an unreasonable restraint of trade or commerce" and therefore violates the Illinois Antitrust Act (Ill. Rev. Stat. 1985, ch. 38, par. 60-1 et seq.). That statute enumerates several specific practices as unlawful; those practices are the price-fixing and market-division schemes targeted by the Sherman Antitrust Act (15 U.S.C. sec. 1 et seq. (1986)). The statute also prohibits contracts which "unreasonably restrain trade." (Ill. Rev. Stat. 1985, ch. 38, par. 60-3(2).) Plaintiffs contend that price discrimination which unreasonably restrains trade violates the statute and that their complaint thus states a cause of action under the statute. ...