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Borowiec v. Gateway 2000

April 01, 2004

MICHAEL BOROWIEC ET AL., APPELLEES,
v.
GATEWAY 2000, INC., APPELLANT.



The opinion of the court was delivered by: Justice Freeman

PUBLISHED

Docket No. 94235-Agenda 10-March 2003.

In this appeal, we consider whether the circuit court of Cook County erred in denying the motion to dismiss or to compel arbitration filed by Gateway 2000, Inc. (Gateway), in each of three cases seeking, inter alia, damages for breach of express and implied warranties under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (15 U.S.C. §2301 et seq. (1994)), and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1998)). The appellate court consolidated the cases and affirmed the circuit court's denial of each motion to dismiss or to compel arbitration. 331 Ill. App. 3d 842. We granted Gateway's petition for leave to appeal pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315), and now reverse and remand for further proceedings.

BACKGROUND

A. Michael Borowiec

In November 1999, plaintiff Michael Borowiec purchased a Gateway Performance 600 PC computer and a three-year parts and on-site labor services contract from Gateway. In connection with the purchase, Gateway extended a limited money-back guarantee to Borowiec, upon notification to Gateway within 30 days of shipment of the computer and prompt return of the computer. Gateway also warranted that the computer was free from defects in materials and workmanship. Both the "Labor Services Service Contract" and the "Limited Warranty Agreement" contained a dispute resolution clause whereby the parties agreed that any dispute between them would be "resolved exclusively and finally by arbitration administered by the National Arbitration Forum (NAF) and conducted under its rules."

In June 2000, Borowiec filed a complaint against Gateway in the circuit court of Cook County. In the complaint, Borowiec alleged that the computer had numerous defects and non-conformities. Borowiec also alleged that Gateway refused to perform on-site repair of the computer. As a consequence, Borowiec delivered the computer to Gateway on numerous occasions for repair. Gateway was unable to repair the computer to Borowiec's satisfaction. On May 13, 2000, Borowiec revoked his acceptance of the computer. The complaint sought damages for breach of written and implied warranties pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Magnuson-Moss Act or MMWA) (15 U.S.C. §2301 et seq. (1994)), violation of the Illinois Consumer Fraud and Deceptive Business Practices Act *fn1 (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)), and common law fraud.

On September 1, 2000, Gateway filed a motion to dismiss the complaint, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)), for lack of subject matter jurisdiction and to compel arbitration. The circuit court denied the motion to dismiss and Gateway appealed.

B. Dorota and Tadeusz Kobik

In January 2001, plaintiffs Dorota and Tadeusz Kobik purchased a Gateway Performance 1000 PC computer, and a one-year on-site service, three-year labor and parts contract from Gateway. In connection with the purchase, Gateway extended a limited money-back guarantee to the Kobiks, upon notification to Gateway within 30 days of shipment of the computer and prompt return of the computer. Gateway also warranted that the computer was free from defects in materials and workmanship. The "Limited Warranty Agreement" contained a dispute resolution clause whereby the parties agreed that any dispute between them would be resolved exclusively and finally by arbitration administered by the NAF.

In October 2001, the Kobiks filed a complaint against Gateway in the circuit court of Cook County. In the complaint, the Kobiks alleged that the computer had numerous defects and non-conformities, including a defective hard drive. The Kobiks also alleged that Gateway refused to perform on-site repair of the computer. As a consequence, the Kobiks delivered the computer to Gateway on numerous occasions for repair. Gateway was unable to repair the computer and the Kobiks lost confidence in the computer's reliability. On August 30, 2001, the Kobiks revoked their acceptance of the computer. The complaint sought damages for breach of written and implied warranties pursuant to the Magnuson-Moss Act and violation of the Consumer Fraud Act.

Pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)), on October 22, 2001, Gateway filed a motion to dismiss the complaint or, in the alternative, to compel arbitration and stay the proceedings pending completion of arbitration. The circuit court denied the motion and Gateway appealed.

C. Leslie Waldron

In November 2000, plaintiff Leslie Waldron purchased a Gateway Essential 866 computer and a labor services contract from Gateway. In connection with the purchase, Gateway extended a limited money-back guarantee to Waldron, upon notification to Gateway within 30 days of shipment of the computer and prompt return of the computer. Gateway also warranted that the computer was free from defects in materials and workmanship. The "Limited Warranty Agreement" contained a dispute resolution clause whereby the parties agreed that any dispute between them would be resolved exclusively and finally by arbitration administered by the NAF.

In November 2001, Waldron filed a complaint against Gateway in the circuit court of Cook County. In the complaint, Waldron alleged that shortly after the purchase the computer exhibited numerous defects and non-conformities, including a defective CD-ROM, motherboard, power supply, and processor. Waldron also alleged that Gateway refused to perform on-site repair of the computer and required that Waldron bring the computer to Gateway's facility for repairs. Waldron delivered the computer to Gateway on numerous occasions for repair. Gateway was unable to repair the computer, and Waldron lost confidence in the computer's reliability. On October 1, 2001, Waldron revoked her acceptance of the computer. The complaint sought damages for breach of written and implied warranties pursuant to the Magnuson-Moss Act, revocation of acceptance pursuant to the Magnuson-Moss Act, and violation of the Consumer Fraud Act.

Pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)), on November 21, 2001, Gateway filed a motion to dismiss the complaint or, in the alternative, to compel arbitration and stay the proceedings pending completion of arbitration. The circuit court denied the motion, and Gateway appealed.

D. Common Facts

In the consolidated appeals, the appellate court held that the Magnuson-Moss Act precluded binding arbitration of the consumer disputes. 331 Ill. App. 3d at 848. The court reasoned that Congress intended to preserve a judicial forum for consumers. 331 Ill. App. 3d at 848. Gateway's limited warranty agreement, with its binding arbitration clause, violated the Magnuson-Moss Act and was therefore unenforceable. 331 Ill. App. 3d at 851. Accordingly, the court affirmed the decisions of the circuit court denying Gateway's motion to dismiss and compel arbitration.

We granted Gateway's petition for leave to appeal. We allowed the Chamber of Commerce of the United States of America and the Consumer Electronics Association to file an amicus curiae brief in support of Gateway. We also allowed the National Association of Securities and Commercial Law Attorneys to file an amicus curiae brief in support of the plaintiffs.

ANALYSIS

A. Standard of Review

As noted above, Gateway filed a motion to dismiss Borowiec's complaint for lack of subject matter jurisdiction and to compel arbitration pursuant to section 2-615 of the Code of Civil Procedure. See 735 ILCS 5/2-615 (West 2000). In the actions initiated by Waldron and the Kobiks, Gateway filed motions to dismiss and to compel arbitration pursuant to section 2-619 of the Code of Civil Procedure. See 735 ILCS 5/2-619 (West 2000). A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). Such a motion does not raise affirmative factual defenses, but alleges only defects appearing on the face of the complaint. Illinois Graphics, 159 Ill. 2d at 484; Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 8 (1992). Thus, the question presented by a section 2-615 motion is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997); Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86-87 (1996). When ruling on a 2-615 motion, a trial court is to dismiss the cause of action only if it is clearly apparent that no set of facts can be proven which will entitle the plaintiff to recovery. Bryson, 174 Ill. 2d at 86-87; Illinois Graphics, 159 Ill. 2d at 488. A court of review determines de novo whether the trial court should have granted dismissal. Beahringer v. Page, 204 Ill. 2d 363, 369 (2003).

In contrast, a section 2-619 motion provides for the involuntary dismissal of a cause of action based on certain defects or defenses. Amongst the enumerated grounds for a 2-619 dismissal are that the court does not have jurisdiction of the subject matter of the action (735 ILCS 5/2-619(a)(1) (West 2000)) and that the claim asserted is barred by other affirmative matter which avoids the legal effect of or defeats the claim (735 ILCS 5/2-619(a)(9) (West 2000)). Affirmative matter must be supported by affidavit, unless apparent on the face of the pleading attacked (735 ILCS 5/2-619(a) (West 2000)), and, in ruling on the motion, the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997). The standard of review on appeal is de novo. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 480 (1999); Chicago Flood Litigation, 176 Ill. 2d at 189.

Initially we note that Gateway's motion to dismiss Borowiec's complaint was for lack of subject matter jurisdiction and was supported by affidavit. The motion was more appropriately designated a motion pursuant to section 2-619 than a motion pursuant to section 2-615. Borowiec, however, was not prejudiced by the improper designation, and responded appropriately to the motion. Accordingly, we will consider the motion as though it had been filed under section 2-619. Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002); City of Burbank v. Czaja, 331 Ill. App. 3d 369, 374 (2002).

B. Federal Arbitration Act

Turning to the merits of the appeal, we consider first the history and purpose of the Federal Arbitration Act (Arbitration Act or FAA) (9 U.S.C. §1 et seq. (1994)). Congress enacted the Arbitration Act in 1925 "to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 114 L. Ed. 2d 26, 36, 111 S. Ct. 1647, 1651 (1991). The Arbitration Act provides:

"A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction *** shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. §2 (1994).

The Arbitration Act also provides for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement. 9 U.S.C. §4 (1994). The Arbitration Act reflects a "liberal federal policy favoring arbitration agreements." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 74 L. Ed. 2d 765, 785, 103 S. Ct. 927, 941 (1983).

In Gilmer, 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647, the Court commented on the interplay between the Arbitration Act and statutory remedies created by Congress. The Court observed:

"It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. Indeed, in recent years we have held enforceable arbitration agreements relating to claims arising under the Sherman Act, 15 U.S.C. §§1-7; §10(b) of the Securities Exchange Act of 1934, 15 U.S.C. §78j(b); the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1961 et seq.; and §12(2) of the Securities Act of 1933, 15 U.S.C. §77l(2). [Citations.] In these cases we recognized that `[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.' [Citation.]
Although all statutory claims may not be appropriate for arbitration, `[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.' [Citation.] In this regard, we note that the burden is on [the plaintiff] to show that Congress intended to preclude a waiver of a judicial forum for [the statutory] claims. [Citation.] If such an intention exists, it will be discoverable in the text of the [act], its legislative history, or an `inherent conflict' between arbitration and the [act's] underlying purposes. [Citation.] Throughout such an inquiry, it should be kept in mind that `questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.' " Gilmer, 500 U.S. at 26, 114 L. Ed. 2d at 37, 111 S. Ct. at 1652.

Lastly, in Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 684-85, 134 L. Ed. 2d 902, 907, 116 S. Ct. 1652, 1655 (1996), the Supreme Court commented on the preemptive effect of the Arbitration Act:

"In Southland, we held that §2 of the FAA applies in state as well as federal courts [citation] and `withdr[aws] the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration,' [citation]. We noted in the pathmarking Southland decision that the FAA established a `broad principle of enforceability,' [citation], and that §2 of the federal Act provided for revocation of arbitration agreements only upon `grounds as exist at law or in equity for the revocation of any contract.' In Perry, we reiterated: `[S]tate law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with [the text of §2].'[Citation.]" (Emphasis in original.)

In the present case, both the labor services service contract and the limited warranty agreement contained a dispute resolution clause whereby the parties agreed that any dispute between them would be resolved by binding arbitration. Thus, the claims advanced by the plaintiffs are subject to arbitration unless the plaintiffs show that Congress intended to preclude a waiver of a judicial forum for their federal statutory claims. Further, plaintiffs' state law claims may not be premised solely on the fact that a contract to arbitrate is at issue. We turn then to provisions of the Magnuson-Moss Act.

C. The Magnuson-Moss Act

The Magnuson-Moss Act was enacted in 1975 to "improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products." 15 U.S.C. §2302(a) (1994). To that end, the Magnuson-Moss Act establishes standards governing the content of consumer product warranties and service contracts. 15 U.S.C. §§2301 through 2308 (1994). The Magnuson-Moss Act also provides a statutory private right of action to consumers who are "damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract." 15 U.S.C. §2310(d)(l) (1994). The consumer may bring an action in either federal or state court and may recover costs and expenses that were reasonably incurred in connection with the commencement and prosecution of the action. As part of costs and expenses, the consumer may recover attorney fees, unless the court determines that such an award is inappropriate. 15 U.S.C. §2310(d)(2) (1994).

The Magnuson-Moss Act does not expressly prohibit arbitration, and, in fact, does not refer either to binding arbitration or to the Arbitration Act. The Magnuson-Moss Act does provide, however, that, prior to filing an action for failure to comply with any obligation under a written or implied warranty or service contract, a consumer give the person obligated under the warranty or service contract a reasonable opportunity to cure such failure to comply. 15 U.S.C. §2310(e) (1994). Also, the Magnuson-Moss Act provides for the establishment of informal dispute settlement mechanisms, and authorizes the Federal Trade Commission (FTC) to prescribe rules setting forth the minimum requirements for the procedures. 15 U.S.C. §2310(a) (1994). If a warrantor establishes an informal dispute settlement procedure which complies with the requirements of the FTC rules, and the warrantor incorporates in a written warranty a requirement that the consumer resort to such procedure, the consumer may not commence a civil action unless he initially resorts to the procedure. 15 U.S.C. §2310(a)(3) (1994). Furthermore, in any civil action instituted by a consumer "arising out of a warranty obligation and relating to a matter considered in [the informal dispute resolution] procedure, any decision in such procedure shall be admissible in evidence." 15 U.S.C. §2310(a)(3) (1994). The Magnuson-Moss Act nowhere defines the terms "informal dispute settlement procedures" and "informal dispute settlement mechanisms."

In enforcing the Magnuson-Moss Act, the FTC has determined that decisions of an informal dispute settlement mechanism "shall not be legally binding on any person" (16 C.F.R. §703.5(j) (2003)) and has defined the term "mechanism" broadly to include binding arbitration. 40 Fed. Reg. 60167, 60210, 60211, 60218 (1975). The FTC has also ruled that "[a] warrantor shall not indicate in any written warranty or service contract either directly or indirectly that the decision of the warrantor, service contractor, or any designated third party is final or binding in any dispute concerning the warranty or service contract." 16 C.F.R. §700.8 (2003). In 1999, the FTC affirmed that the regulations "will continue to prohibit warrantors from including binding arbitration clauses in their contracts with consumers that would require consumers to submit warranty disputes to binding arbitration." 64 Fed. Reg. 19700, 19708-09 (1999).

D. Binding Arbitration

The appellate court recognized that federal policy strongly favors the judicial enforcement of arbitration agreements. 331 Ill. App. 3d at 847. However, from its examination of the text of the Magnuson-Moss Act, the appellate court determined it was Congress' intent to ultimately preserve a judicial forum for consumers. 331 Ill. App. 3d at 848. In arriving at this conclusion, the appellate court noted the Magnuson-Moss Act provides that a decision in an informal dispute resolution procedure shall be admissible in evidence in any civil action arising out of a warranty obligation and relating to a matter considered in the informal dispute resolution procedure. 331 Ill. App. 3d at 849. The appellate court opined that an informal dispute settlement procedure is a prerequisite, not a bar, to relief in court. 331 Ill. App. 3d at 849. The appellate court also referenced legislative history to the effect that an informal dispute settlement procedure is not a bar to legal action. 331 Ill. App. 3d at 849-50. Lastly, the appellate court relied on the FTC's ruling that informal dispute resolution mechanisms, including arbitration, may not be binding upon the consumer.

In this court, plaintiffs urge affirmance of the appellate court decision. Plaintiffs ask that we defer to the FTC's interpretation of the Magnuson-Moss Act and argue that the agency's interpretation is supported by the legislative history of the Act. Plaintiffs also maintain that, while the Arbitration Act policy favoring arbitration and the Magnuson-Moss Act consumer protection objectives are generally not in conflict, a conflict arises when a binding arbitration clause is inserted in an agreement purporting to extend a warranty to the consumer. Plaintiffs believe this conflict must be resolved by giving precedence to the Magnuson-Moss Act over the Arbitration Act. We disagree with the reasoning of the appellate court and the arguments advanced by plaintiffs.

In arriving at our decision, we note that the federal circuits which have considered the issue have rejected the FTC's interpretation. We find the Fifth Circuit's analysis in Walton v. Rose Mobile Homes LLC, 298 F.3d 470 (5th Cir. 2002), particularly helpful. In Walton, the court of appeals reversed the district court's order denying the manufacturer's motion to compel arbitration of the consumer's Magnuson-Moss claim. The court first examined the roles of the judiciary and the FTC in interpreting the Magnuson-Moss Act:

"When we review an agency's construction of a statute that it administers, we must defer to that agency's interpretation of the statute if: (1) Congress has not spoken directly to the issue; and (2) the agency's interpretation `is based on a permissible construction of the statute.' [Citation.] `The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent ... . If a court, employing traditional tools of statutory construction, ascertains that ...

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