United States District Court, N.D. Illinois, Eastern Division
July 2, 2004.
TERRY XYDAKIS, on behalf of himself and all other persons similarly situated, Plaintiff,
TARGET, INC., d/b/a MARSHALL FIELDS, Defendant.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Terry Xydakis brought this action alleging violations
of the Illinois Consumer Fraud and Deceptive Business Practices
Act, 815 ILCS 505/1 et seq. (the Act), arising from a newspaper
advertisement that allegedly appeared in the Chicago Tribune on
August 4, 2002, through August 10, 2002. On June 9, 2004, we
granted defendant Target, Inc.'s motion to dismiss, finding that
plaintiff failed to allege actual damages and therefore failed to
state a claim for relief under the Act. Plaintiff now seeks
reconsideration of that order, arguing that he did not need to
allege actual damages because he alleges that defendant acted
intentionally in violating the statute. For the following
reasons, plaintiff's motion is denied.
The Act explicitly states that only a person who suffers actual
damages as a result of a violation my bring a private action. 815
ILCS 505/10a. Some courts in this district, relying on Duran v.
Leslie Oldsmobile, 594 N.E.2d 1355, 1362 (Ill.App. 2 Dist.
1992), have allowed plaintiffs to bring suits for nominal damages
if they allege that defendants intentionally violated the Act.
Singleton v. Montgomery Ward Credit Corp., 2000 WL 1810012,
*3(N.D. Ill.); Egli v. Bass, 1998 WL 560270, *3 (N.D. Ill.);
Cellular Dynamics, Inc. v. MCI Telecommunications Corp., 1997
WL 285830, *3 (N.D. Ill); Villarreal v. Snow, 1996 WL 28308,
*10 (N.D.Ill.). Those cases, however, do not discuss Duran at
length and we believe they are based on a misreading of that case.
In Duran, the plaintiff alleges that defendant made oral
misrepresentations relating to a vehicle which plaintiff relied
on when purchasing the car. 594 N.E.2d at 1034. The plaintiff was
able to return the car to the dealership without making any
payments as required by the retail agreement. Id. at 1043. In
discussing the plaintiff's claim, the court found that damages
are an element of a private cause of action under the Act, even
though a defendant may violate the Act without causing damages.
Id. at 1040. The appellate court then discussed the traditional
common law rule that damages are presumed whenever a right is
infringed. Id. That rule, however, was abandoned in Illinois in
negligence actions and the presumption remains only for
intentional torts. Id. In codifying consumer protection law,
the Illinois legislature eliminated the mental state requirement
and determined that interests of consumers would be better served
by finding that even innocent misrepresentations should be
actionable. Id. at 1040-41. The court concluded its discussion
of the issue by stating that "[i]n the absence of a mental state
equivalent to that of an intentional tort, we find damages may
not be presumed under the Consumer Fraud Act." Id. at 1041.
Courts in this jurisdiction have repeatedly cited to this
sentence from Duran, without detailed explanation, as support
for the contention that plaintiffs may bring a private cause of
action even in the absence of actual damages if defendants
intentionally violated the Act. See Egli, 1998 WL 560270 at
*3. We do not believe that was the holding of the appellate
court. Instead, the appellate court simply held that intent is no
longer an issue in cases brought under the Act. In fact,
plaintiff in Duran also brought claims for fraudulent
misrepresentation, in addition to claims for violations of the
Act. 594 N.E.2d at 1357. In spite of those claims for intentional
torts, the court stated that it "disposed both of plaintiff's
assertion that damages are unnecessary under the Consumer Fraud
Act or that a presumption of damages arises from a violation of such act in identifying the elements of a cause of
action for statutory fraud." 594 N.E.2d at 1364. In any case, the
court in Duran ultimately concluded that the plaintiff failed
to state a claim for damages under the Act.
This reading of Duran is supported by Smith v. Prime Cable
of Chicago, in which a class of plaintiffs brought suit against
their cable operators, claiming that Prime Cable had advertised a
concert as a three-hour event when it was, in fact, only two
hours long. 658 N.E.2d 1325, 1328 (Ill.App. 1 Dist. 1995). The
plaintiffs sought both compensatory and punitive damages pursuant
to the Act and the Uniform Deceptive Trade Practices Act, 815
ILCS 510/1 et seq. Id. Following a lengthy discussion of
remedies available under the Act, the appellate court affirmed
the dismissal of plaintiff's claims, holding that although the
allegations amounted to a violation of the Act there were no
damages. Id. at 1336. Although the court did not explicitly
discuss the presumption of damages, it dismissed plaintiff's
complaint even though it contained allegations that plaintiffs
acted "knowingly" and "falsely, deceitfully and fraudulently."
Id. at 1336-37.
Smith and Duran give support to the text of section 505/10a
of the Act. The Illinois legislature determined that consumer
interests would be better preserved by eliminating the intent
requirement from consumer fraud cases and allowing plaintiffs to
recover damages for innocent violations of the Act. In doing so,
however, the legislature also made it clear that only parties
actually harmed by such a violation could bring a private action
We also note that plaintiff, in his brief in support of this
motion, implies that he did suffer some actual damages as a
result of defendant's alleged violations of the Act. In doing so,
he relies on Roche v. Fireside Chrysler-Plymouth, Mazda, Inc.,
600 N.E.2d 1218, 1228 (Ill.App. 2 Dist. 1992), in which the
court determined that a jury award of $750 for "aggravation and
inconvenience" was not erroneous. In Roche, however, the
plaintiff had demonstrated that she suffered other harm as a result of the defendant's wrongdoing and
her aggravation was only part of the award. Id. at 1225. In any
case, plaintiff fails to allege any such harm and, as we stated
when dismissing the claim, fails to allege any actual damages
resulting from defendants' conduct.
For the foregoing reasons, plaintiff's motion to reconsider is
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