The opinion of the court was delivered by: Shadur, Judge
MEMORANDUM OPINION AND ORDER
As this Court had requested, each of the parties has submitted a
current letter memorandum (cited here as "Mem.") addressing the motion of
ePartners, Inc. ("ePartners") to dismiss Count I of the Complaint brought
against it by DRL Enterprises, Inc. ("DRL") — a claim purporting to
sound in the Illinois Consumer Fraud and Deceptive Business Practices Act
("Act," 815 ILCS 505/1 to 505/12, cited simply "Act § —"
without the prefatory "815 ILCS 505/"). For the reasons stated in this
memorandum opinion and order, ePartners' motion to dismiss is granted.
There has been considerable caselaw dealing with the construction of
the Act as it was amended more than a decade ago to provide that "proof
of public injury, a pattern, or an effect on consumers generally shall
not be required" (Act § 10(a)).*fn1 Because none of those cases has
come from the Illinois Supreme Court, however, no Illinois decision can
be pointed to as definitive. This Court must perforce look to the
existing less-than-definitive holdings and discussions, including any
appropriate inferences from those sources.
For its part, DRL Mem. 2 cites to a number of Illinois Appellate Court
cases that it says stand for this proposition (emphasis added by DRL):
The "consumer nexus" test discussed in ePartners'
brief — requiring proof of trade practices
addressed to the public generally or implicating
consumer protection concerns — by its own terms
only applies "when a dispute under the Act includes
two businesses that are not consumers of each others'
But that statement impermissibly inserts the word "only," even though
none of the cited cases says just that. Instead each of the cited
Illinois cases announces the applicability of the "consumer nexus" test
where the directly quoted language applies, but none of them speaks
expressly to the question whether a "consumer nexus" test may also apply
to a case such as this one.
On that score our Court of Appeals has spoken to the subject in just
such global terms. Athey Prods. Corp. v. Harris Bank Roselle, 89 F.3d 430,
436 (7th Cir. 1996) upheld the post-Act-amendment dismissal of a claim
under the Act because "[t]here is nothing that would comply with the
requirements that these trade practices be directed to the market
generally or implicate consumer protection concerns." And Athey, id. at
436-37 went on to state:
This amendment was passed to clarify that a plaintiff
suing under the Act could state a claim based upon a
isolated injury, and based solely upon the plaintiff's
own injury. See Rubin v. Marshall Field & Co.,
232 Ill. App.3d 522, 173 Ill. Dec. 714, 720,
597 N.E.2d 688, 694 (1992). In Heath, we found that
the 1990 amendment to the Act was to be applied
retroactively, but did not decide what type of injury
was required to be alleged under the Act. 9 F.3d at
574-75. In diversity cases, we look to Illinois
courts' reading of the Act to decide the issue.
Although the Illinois Supreme Court has not had
occasion to speak to the subject, the intermediate
appellate courts have. Those courts and federal
district courts in Illinois have uniformly held that
claims under the Act must meet the consumer nexus test
by alleging that the conduct involves trade practices
directed to the market generally or otherwise
implicates consumer protection concerns. See Lake
County Grading Co. v. Advance Mechanical Contractors,
Inc., 275 Ill. App.3d 452, 211 Ill. Dec. 299, 305-06,
654 N.E.2d 1109, 1115-16 (1995); Scarsdale Builders,
Inc., v. Ryland Group, Inc., 911 F. Supp. 337, 340
(N.D. Ill. 1996);*fn2 Web Communications Group. Inc.
v. Gateway 2000, Inc., 889 F. Supp. 316, 322 (N.D.
Ill. 1995). Athey has failed to allege the necessary
nexus between the complained of conduct and consumer
protection concerns, and therefore summary judgment
was properly granted to Harris on Athey's claim under
the Deceptive Practices Act.
Unlike some of its respected colleagues who have departed from Athey's
teaching on the ground that its above-quoted statement "is far too broad"
(Anchor Mortgage Corp. v. Certified Credit Reporting, Inc., No. 00 C
4248, 2000 WL 1700147, at *4 n.1 (N.D. Ill. Nov. 8), agreed with and
followed in Nakajima All Co. v. SL Ventures Corp., No. 00 C 6594, 2001 WL
641415, at *3 n.3 (N.D. Ill. June 4)), this Court considers itself to be
bound by what our Court of Appeals has said in its reasoned analysis on
the subject — at least until either the Illinois Supreme Court or
the Court of Appeals itself states a narrower principle of the type urged
by DEL. It may be that future developments will. demonstrate that Athey
has portrayed Illinois law inaccurately. But in this Court's view
responsible jurisprudence calls for a District Court, even if it may
disagree with an opinion from its Court of Appeals, to adhere to and
follow that opinion.*fn3
As for DRL's contention that its attempted Act-based claim "is not
simply a `run-of-the-mill' breach of contract action and the consumer
nexus test does not apply" (its Mem. 4), that position is wholly
unpersuasive. What DRL seeks to do is to characterize its claim as not
involving "false promise" or "fraudulent breach of contract," but rather
as being predicated on "false representations" by ePartners. Any such
claimed differentiation based on the facts set out in the pleadings
involves an attenuated distinction without a difference, and it does not
take this case out of
the category requiring a "consumer nexus."
Accordingly ePartners' motion to dismiss DRL's Count I is granted. It
should of course be added that this ruling is subject to reexamination if
future authoritative ...