Learning Curve Toys. L.P. v.
Playwood Toys. Inc., 1999 WL 529572, *5 (N.D.Ill.) (claims sufficient if
alleged that consumers were harmed by the complained-of conduct or a
product was designed to mislead the public), Stickle Enterprises, Ltd. v.
CPC International, Inc., 1997 U.S.Dist. LEXIS 19538 *13 (N.D.Ill.)
(claims sufficient where public safety concerns are involved). Gerling
has alleged that third party and counterclaim defendants have made
misleading statements to dealers and consumers, and have implemented a
campaign that has kept consumers from accessing the services they
purchased. Under the minimal standard of 12(b)(6), Gerling has adequately
alleged a nexus with consumer protection concerns and the ICFA claim
Gerling has also brought a claim that third party and counterclaim
defendants committed civil conspiracy. It claims that the marketers, as
well as various auto dealers not named in the counterclaims, allegedly
agreed between and among themselves to disparage the products, services,
and business practices of Gerling, defame it, defraud it, and violate the
ICFA. Counterdefendants argue that Gerling's conspiracy claim adds
nothing to the counterclaims and should be dismissed for failing to
adequately allege a conspiratorial relationship.
Under Illinois law, a civil conspiracy claim must include allegations
of an agreement and a tortious act committed in furtherance of that
agreement. McClure v. Owens Corning Fiberglass Corp., 188 Ill.2d 102,
133, 720 N.E.2d 242, 258 (1999), citing Adcock v. Brakegate, Ltd.,
164 Ill.2d 54, 645. N.E.2d 888 (1994). Mere conclusory allegations of a
combination of acts as a conspiracy is not enough to state a claim for
conspiracy. Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill.2d 12,
23, 694 N.E.2d 565, 571 (1998). The alleged conspirators' agreement is an
essential part of the cause of action. McClure, 188 Ill.2d at 133.
Counterdefendants assert that Gerling has only alleged parallel conduct
of the parties, which does not rise to the level of civil conspiracy.
McClure, 188 Ill.2d at 135. While it is true that Gerling eventually will
have to show that the alleged actions were concerted rather than merely
parallel, at this stage Gerling is only required to allege agreement and a
tortious act committed in furtherance of the agreement. Gerling has
alleged that "Third Party and Counterclaim Defendants have worked
together and discussed the actions they would take with respect to their
scheme . . ." (Counterclaim ¶ 65). They have also listed alleged
tortious acts committed in furtherance of the agreement. Gerling has
satisfied the pleading requirements and the civil conspiracy claim
For the above reasons, defendants' motions to dismiss are granted in
part and denied in part, and third party and counterclaim defendants'
motion to dismiss is denied. Counts II, III, VI and VIII of the
consolidated complaint are dismissed and defendant ANPAC is dismissed
from count VII.
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