(Ill.App. 5th Dist. 1991)), its language is far too broad to support such an interpretation. Sullivan, id. at 1376 & n.1 (citation omitted), takes the identical view of Laughlin that this Court has reached:
While the construction placed on the FTCA by the Federal courts should be considered in construing the Consumer Fraud Act, the two statutes are not coextensive. Just because conduct may run afoul of the FTCA or section 2(c) of the Clayton Act does not mean that it automatically violates the Consumer Fraud Act. To the contrary, our supreme court has now held quite explicitly that, unlike the Federal law, the reach of the Consumer Fraud Act "is limited to conduct that defrauds or deceives consumers or others." Thus, Sullivan's cause of action must stand or fall on whether defendants' conduct was deceptive. If it was not deceptive, whether it violated other laws or ethical standards is irrelevant.
For that reason Illinois Supreme Court Justice William Clark felt compelled to file a concurring opinion in Laughlin strongly disagreeing with the proposition that CFA does not encompass "unfair" practices (133 Ill.2d at 394, 550 N.E.2d at 994-95).
So Kedzioras cannot state a claim under CFA for "unfair" practices unless the practices are also "deceptive." Pre-Laughlin it was possible under Illinois law to scrutinize business forms and pronounce them nondeceptive as a matter of law, but only after applying a very broad notion of deception, one not requiring proof of fraud ( Harwood v. Piser Memorial Chapels, 102 Ill.App.3d 514, 518, 430 N.E.2d 553, 555, 58 Ill. Dec. 521 (1st Dist. 1981)):
What is required is a showing that the acts and practices were capable of being interpreted in a misleading way.
Although Laughlin might also arguably have been read as narrowing the definition of deception to require proof of scienter--intent to defraud--the Illinois Supreme Court has even more recently restated the broader view: It is enough that a business form be "misleading," and whether it is in fact "misleading" is a factual question not susceptible to decision as a matter of law ( People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 1991 Ill. LEXIS 92, at *42, 165 Ill. Dec. 655 , 585 N.E.2d 51 (Ill. S. Ct. Oct. 17, 1991)). Even though Datacom Systems does not discuss Laughlin, it is more recent and therefore this Court will treat it as controlling in that respect.
What this all boils down to is that Kedzioras must make only a minimal showing that the form Lease was susceptible to misleading interpretation. Their own argument seems to presuppose that the Lease is "deceptive" as a matter of Illinois law only to the extent that it violates federal law (P. Mem. 37). Thus Count V survives only insofar as Kedzioras' federal counts survive.
It follows that Kedzioras may pursue their claim under CFA only as they pertain to the few remaining aspects of Count I. And before granting relief on any of those aspects, this Court would certainly require further elucidation by the parties of the relevant Illinois standards for determining what is and is not "misleading."
In summary, then, portions of Count I survive the motion to dismiss. Counts II and III are dismissed in their entirety. Count IV survives to the extent that the corresponding portions of Count I survive. That is true of Count V as well. Kedzioras and Citicorp are directed to appear before this Court at 10 a.m. on November 25, 1991 for a status hearing on the future course of this case.
Milton I. Shadur
United States District Judge
Date: November 19, 1991