Appeal from the Circuit Court of Cook County. Honorable Dorothy Kinnaird, Judge Presiding.
Released for Publication June 25, 1997.
The Honorable Justice O'brien delivered the opinion of the court. Cahill, J., and Theis, J., concur.
The opinion of the court was delivered by: O'brien
JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiff, Julia Tudor, filed a three-count second amended complaint against defendant, Jewel Food Stores, Inc., alleging that defendant had improperly charged her for several grocery items over a four-day period in 1993 because electronically scanned prices differed from the advertised or shelf prices for those items. In count I, plaintiff pleaded that defendant's conduct violated section 2 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 1992)). In count II, plaintiff pleaded a violation of sections 2-714 and 2-715 of the Uniform Commercial Code (810 ILCS 5/2-714, 2-715 (West 1992)). In count III, plaintiff alleged a theory of unjust enrichment. The trial court granted defendant's section 2-615 motion to dismiss all three counts. 735 ILCS 5/2-615 (West 1992). Plaintiff appeals. We affirm.
In ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts and all reasonable inferences that can be drawn therefrom. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 8-9, 180 Ill. Dec. 307, 607 N.E.2d 201 (1992). The court should not dismiss a complaint under section 2-615 unless it clearly appears no set of facts could be proved under the pleadings that would entitle the pleader to relief. Johnson v. George J. Ball, Inc., 248 Ill. App. 3d 859, 863, 187 Ill. Dec. 634, 617 N.E.2d 1355 (1993). In making such a determination, the court is to interpret the allegations of the complaint in the light most favorable to plaintiff. Kolegas, 154 Ill. 2d at 9.
In order to state a cause of action under section 2 of the Consumer Fraud Act, plaintiff must allege facts establishing (1) a deceptive act or unfair practice; (2) an intent by defendant that plaintiff rely on the deception; and (3) the deception occurred during trade or commerce. Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d 307, 312, 214 Ill. Dec. 1036, 662 N.E.2d 602 (1996). Neither party disputes that defendant's actions occurred during trade or commerce, so we focus our analysis on whether defendant's acts were deceptive and/or unfair, and whether defendant intended for plaintiff to rely on any deception.
Plaintiff pleaded in count I of her second amended complaint that it is deceptive and unfair for defendant to charge an electronically scanned price higher than the price offered in the newspaper and on the shelf. However, plaintiff also pleaded that defendant's internal audits show its electronic scanners were accurate 96% of the time from 1991 through 1993, which exceeds the 75% to 92% accuracy rate indicative of a "serious violation" according to the Law and Regulations Committee of the National Conference of Weights and Measures. Further, plaintiff pleaded that defendant provided her with a receipt enabling her to determine whether the scanned prices accurately reflected the advertised and shelf prices. Plaintiff also pleaded that defendant has a policy providing "if the scanned price on any unmarked item is different from the price on the shelf, you will get the item free." The combination of the high accuracy rate of the scanners, along with the issuance of a receipt and defendant's policy of providing a money-back guarantee if the scanned price differs from the shelf price, indicates there was no deception by defendant.
Nor is defendant's conduct "unfair" under the Consumer Fraud Act. To be unfair under the Act, defendant's conduct must violate public policy, be so oppressive that the consumer has little alternative but to submit, and substantially injure the consumer. Saunders, 278 Ill. App. 3d at 313. Plaintiff contends overcharges resulting from a mistake of fact are against public policy and that the overcharges are "statistically significant" and therefore substantially injurious. However, even assuming plaintiff's arguments are correct, she has not adequately pleaded that she had no alternative but to pay the incorrectly scanned prices. In fact, as discussed above, plaintiff pleaded that defendant issues a receipt, enabling her to check whether she has been correctly charged, and offers a money-back guarantee if the scanned price differs from the shelf price. Thus, we find an absence of the oppressiveness and lack of meaningful choice necessary to establish unfairness.
Accordingly, we find plaintiff has failed to adequately plead the first prong of a Consumer Fraud Act violation, that defendant's acts were deceptive or unfair.
Further, the combination of the issuance of the receipt, along with the money-back guarantee if the scanned price differs from the shelf price, indicates defendant did not intend that plaintiff rely on an incorrectly scanned price. Thus, plaintiff has also failed to adequately plead the second prong of a Consumer Fraud Act violation, that defendant intend that plaintiff rely on its deceptive act or unfair practice. Accordingly, count I of plaintiff's second amended complaint failed to state a cause of action under section 2 of the Consumer Fraud Act.
Federal Trade Comm'n v. Pantron I Corp., 33 F.3d 1088 (9th Cir. 1994), cited by plaintiff, is inapposite. There, the court found the defendant's representation that its product was effective in arresting hair loss and stimulating hair regrowth in baldness sufferers constituted a false advertisement under the Federal Trade Commission Act. The court also held the existence of a money-back guarantee was insufficient to preclude a monetary remedy. Pantron, 33 F.3d at 1103.
Contrary to Pantron, plaintiff here does not argue that the products she bought from defendant did not work as advertised. Rather, she claims defendant overcharged her for those products by the use of its electronic scanners and defendant intended that she rely on the scanned prices to accurately reflect the advertised and shelf prices. Further, this case does not turn solely on the money-back guarantee for improperly scanned prices. Instead, the case turns on whether the 96% accuracy rate of the scanners, in conjunction with the receipt and the money-back guarantee, shows a violation of the Consumer Fraud Act. Thus, Pantron is factually different from this case and does not compel a different result.
The present case is also dissimilar to two other cases cited by plaintiff, People ex rel. Hartigan v. Stianos, 131 Ill. App. 3d 575, 86 Ill. Dec. 645, 475 N.E.2d 1024 (1985), and People ex rel. Hartigan v. Knecht Services, Inc., 216 Ill. App. 3d 843, 159 Ill. Dec. 318, 575 N.E.2d 1378 (1991). In Stianos, plaintiff appealed the trial court's order denying his motion for issuance of a preliminary injunction against defendants, retailers who overcharged for sales tax on each purchase. The appellate court reversed and remanded, finding defendants' conduct deceptive and unfair under the Consumer Fraud Act. In Knecht, the appellate court affirmed the trial court's judgment against defendants, finding that defendants' practice of advertising their home repair services at a "minimum charge," when they actually charged exorbitant prices, was deceptive under the Consumer Fraud Act. Neither Stianos nor Knecht involved a case ...