Docket No. 103287.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

BARBARA’S SALES, INC., et al., Indiv. and on Behalf of All Others

Similarly Situated, Appellees, v. INTEL CORPORATION et

al. (Intel Corporation, Appellant).

Opinion filed November 29, 2007.

JUSTICE FITZGERALD delivered the judgment of the court,

with opinion.

Justices Freeman, Kilbride, Garman, and Karmeier concurred in

the judgment and opinion.

Chief Justice Thomas and Justice Burke took no part in the

decision.

OPINION

In the early part of this decade, Intel Corporation (Intel) engaged

in a massive worldwide advertising campaign touting the high

performance of its “Pentium 4” microprocessor. The alleged

disappointment of a nationwide group of purchasers led to this class

action filed in Madison County, Illinois, by named plaintiffs from

Illinois and Missouri against Intel, a Delaware corporation with its

principal place of business in California. With alternate counts under

California and Illinois consumer fraud laws, plaintiffs alleged that Intel

deceived the entire class with a false representation implicit in the
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name Pentium 4, that the microprocessor was the best and fastest

processor on the market. The circuit court ruled that Illinois

substantive law controls this case and certified a class of Illinois

consumers only. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R.

308), the circuit court certified questions for an interlocutory appeal

of this ruling. The appellate court answered that California law

governs and that the circuit court should reconsider its class

certification order in light of California law. 367 Ill. App. 3d 1013. We

allowed Intel’s petition for leave to appeal. 210 Ill. 2d R. 315(a). For

the following reasons, we conclude that Illinois law governs this case

and that class certification was improper.

BACKGROUND

The record reveals the following background information which,

although not directly relevant to the named plaintiffs, is pertinent to

the motion for class certification. A computer’s microprocessor is

often referred to as the “brain” of a computer. The performance of

microprocessors has steadily increased since they were first introduced

in the 1970s. A principal measure of performance for the common

consumer is speed. As the speed of a processor increases, the more

instructions a processor can process, resulting in less time a computer

requires to open software applications, refresh screens, and depict

ever more realistic video game characters. One historical measure of

speed is called “clock speed,” which is measured in hertz. Intel’s first

microprocessor, the 4004, ran at 108 kilohertz per second (108,000

hertz), compared to the Intel Pentium 4 processor’s initial speed of

1.4 gigahertz per second (1.4 billion hertz). Intel has marketed various

performance advancements in succeeding generations of

microprocessors under advancing brand names such as the 286, 386,

486, Pentium, Pentium Pro, Pentium II, Pentium III, and the Pentium

4. At issue is whether the initial version of the Pentium 4

microprocessor, known within Intel as the “Willamette” family

(hereinafter “Pentium 4,” “P4” or “Willamette”), lived up to Intel’s

explicit and implicit representations as to its advancement in

performance over the Pentium III and the processors of a competitor

manufacturer, American Micro Devices (“AMD”).

Intel introduced the Pentium 4 in November 2000 and shipped its

one millionth Pentium 4 processor sometime in the first quarter of
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2001. Along with various new features in its architecture, these

processors had higher clock speeds than the Pentium III and AMD

processors. Further, computers with a Pentium 4 processor were

priced, at least initially, at a premium over similarly equipped

computers containing a Pentium III processor. However, the actual

superiority of the Willamette Pentium 4 over the Pentium III and the

AMD processor was in doubt.

The record reveals various internet and mass media reports

questioned the Pentium 4’s performance immediately after it was

released. These reports noted that superior clockspeed does not tell

the whole story as to the actual performance of a microprocessor.

Several sources criticized the microarchitecture underlying the

Pentium 4 as being “marchitecture.” In other words, Intel’s

representations as to high clock speeds were a deliberate marketing

attempt to make it appear faster to the uninformed consumer than the

slower-clocked Pentium III and AMD processors. Performance tests,

commonly known as benchmarks, showed that the slower clocked

Pentium III and an AMD processor were “faster” than the Pentium 4.

The extent of the speed discrepancy between the processors depended

on the benchmark and was often measured in milliseconds. Other

benchmarks noted the Willamette’s excessive heat dissipation and

power usage. For example, the Pentium 4 was slower at some

common office applications using older operating software, but faster

at the video game Quake. Another common criticism of the

Willamette Pentium 4 concerned its memory capabilities.

Intel’s public response to these criticisms varied. According to

Intel, testing software had not been optimized for the Pentium 4.

Further, according to Intel, the Pentium 4’s greatest advances were in

areas such as 3D gaming, digital video creation, MP3 encoding, and

streaming video. Intel also emphasized that the new microarchitecture

had a high potential for increased performance as the manufacturing

process improved. Intel explained that differences in system hardware

and software design may affect actual performance for particular

users, apart from the performance of the actual microprocessor.

Finally, Intel emphasized that the processor itself was not defective,

and that it performed well even on those benchmarks that labeled it

“slower.”
 

1The claims against Gateway were severed due to arbitration agreements,

while Hewlett Packard and HP Direct remain named defendants in this

lawsuit but have not filed briefs in this case.

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On June 3, 2002, plaintiffs filed a nationwide class action

complaint asserting consumer fraud claims against Intel, Gateway Inc.,

Hewlett Packard Company, and HP Direct, Inc.1 The plaintiffs’

original complaint alleged that Intel misled the public by asserting in

public statements that the Pentium 4 was the “highest performance

processor.” Intel also allegedly suppressed and concealed the Pentium

4’s lack of performance gains over the Pentium III. Plaintiffs brought

consumer fraud claims under California’s Unfair Competition Law

(Cal. Bus. & Prof. Code §17200 (Deering 2007)), the California

Consumer Legal Remedies Act (Cal. Civ. Code §1750 et seq.

(Deering 2005)), and, alternatively, under the Illinois Consumer Fraud

and Deceptive Business Practices Act (Consumer Fraud Act) (815

ILCS 505/1 et seq. (West 2002)). Plaintiffs sought an award of actual

damages, restitution, attorneys’ fees, prejudgment and postjudgment

interest, and their costs of suit, amounting to cumulatively less than

$75,000 per class member.

Intel filed several motions to dismiss. The circuit court denied

Intel’s first motion to dismiss the California counts premised upon

choice-of-law principles. A motion to dismiss based upon forum non

conveniens principles was similarly denied. Intel also moved to dismiss

the Illinois Consumer Fraud Act counts, arguing, inter alia, that

plaintiffs failed to state a cause of action because of a failure to allege

proximate cause. Specifically, Intel argued that plaintiffs were

required, under Oliveira v. Amoco Oil Co., 201 Ill. 2d 134 (2002), to

allege actual deception of the named plaintiffs. As no named plaintiff

was allegedly aware of any specific representation made by Intel, these

representations could not have proximately caused plaintiffs’ injuries.

The circuit court agreed and dismissed plaintiffs’ Illinois Consumer

Fraud Act counts.

Plaintiffs subsequently added allegations in their first amended and

second amended complaints that they were actually deceived by Intel.

The circuit court found, over yet another motion to dismiss based on

Oliveira, that these new allegations adequately stated a cause of
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action. These allegations included: (1) “Plaintiffs and Class Members

have been actually deceived by Defendant’s failure to disclose material

information and/or by their affirmative misrepresentations,” and (2)

“Intel has conditioned the consumer, through its marketing and

naming practices, to believe that each of its high-performance

processors is superior in speed and performance to the previous

model.” On April 24, 2004, plaintiffs filed the current, third amended

complaint, which included another relevant allegation that Intel,

through its marketing practices, “conditioned the market to believe

that megahertz measures relative performance and that a processor

with a higher clock speed will deliver faster performance.”

Plaintiffs thereafter moved for certification of the nationwide class.

The evidence submitted by both parties is voluminous, and we

highlight only those portions of the evidence submitted to the court

that are necessary for this opinion. Plaintiffs relied on extensive

evidence obtained in discovery concerning Intel’s marketing practices

and the performance of Pentium 4 processors. Plaintiffs stressed

Intel’s massive advertising campaign and its overall strategy for that

campaign. Plaintiffs noted that as part of Intel’s worldwide billion

dollar marketing scheme, the Pentium 4 campaign garnered roughly

$300 million worldwide and $100 million in the United States. Those

dollar amounts included Web site promotions, television, radio and

print advertisements, informational brochures, product

demonstrations, training of retail sales agents, and promotional events.

Intel made a number of public statements that its processor was the

highest performing processor on the market. Several statements made

by computer manufacturers that the Pentium 4 was the “fastest” were

also highlighted in the motion.

Plaintiffs’ essential complaint common to all class members is that

Intel was teaching the market that “4 is better than 3.” As such,

plaintiffs highlighted several statements by computer manufacturers

that the Pentium 4 processor was the “fastest” processor on the

market. Plaintiffs repeatedly emphasized an Intel “consumer

campaigns overview” slide shown to a group at Comp USA, which

they assert summarized Intel’s core strategy. It stated, in part:

“I would like to focus on what we will do to promote the

Pentium 4 processor this year, which is at the core of this

strategy.
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Specifically, why buy a P4P?

The most important thing is our Brand and what it stands

for. We have taught the market that four is better than three.”

Plaintiffs also directed the circuit court’s attention to several other

places in the record to demonstrate that Intel was trying to teach the

market that “four is better than three.”

The “four is better than three” scheme of which plaintiffs complain

is also reflected, according to plaintiffs, in the deposition testimony of

Intel employees Ann Lewnes and Pam Pollace. Lewnes, Intel’s vicepresident of sales and marketing and the director of the “Intel Inside”

program, testified in her deposition “that the name Pentium 4 is

intended to communicate that it’s better than Pentium III.” Lewnes

testified that she was unaware if Intel had communicated to the public

that the Pentium 4 was not better for particular usage models. She

was also unaware if the word “best” was ever used in connection with

the marketing of the Pentium 4. Pam Pollace, head of Intel’s

Corporate Marketing Group, stated in her deposition that: “Our intent

was that 4 was better in many ways than III,” and that “it was better

for many aspects.”

Plaintiffs submitted expert opinions concerning the effect of Intel’s

marketing campaign. One of plaintiffs’ marketing experts, Dr. Tulem

Erdem, opined in an affidavit that processor performance matters to

consumers in the personal computer market and is a key driver of

consumer decisionmaking.Professor Urdem stated, “Intel strategically

chose the Pentium 4 sub-brand to signal higher overall performance

compared to Pentium 3. To amplify this effect, Pentium 4 was offered

at higher clock speed levels than Pentium 3.” He also asserted, “Intel

communications clearly positioned Pentium 4 as Intel’s ‘best,’

Pentium 3 as Intel’s ‘better’ and Celeron as Intel’s ‘good’

performance processors. Pentium 4 was also depicted as the best

performing chip in the industry at the time.”

According to another of plaintiffs’ marketing experts, Dr. Joel

Cohen, Intel communicated to purchasers that the Pentium 4

processor was the fastest and highest processor available for PCs. In

other words, according to Dr. Cohen, it is a fact that the Pentium 4

processor name universally communicates increased performance as

compared with the Pentium III processor name, and that
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representation was material to purchasers. Dr. Cohen stated that it

was reasonable for purchasers to believe the promises of increased

speed and performance of the processor. Intel’s market segmentation

of consumers on a spectrum of those having little computer

knowledge, to those highly knowledgeable, does not diminish the fact

that Intel’s implicit promise of increased performance associated with

the Pentium 4 would be reasonably believed by all segments of the

class. Further, Intel failed to properly qualify its representations and

promises of increased performance associated with the Pentium 4

processor. Dr. Cohen concluded, “To the extent that Pentium 4 based

personal computers do not deliver these expected results, the naming,

advertising, marketing and promotion efforts by Intel are misleading

and deceptive.”

Each plaintiff testified in deposition form and in interrogatory

answers that they were misled by the “four is better than three”

marketing scheme. Several named plaintiffs submitted the following,

virtually identical, interrogatory answer and affirmed these answers in

deposition testimony:

“Plaintiff states that while she remembers seeing

advertisements, printed materials and commercials about

Pentium 4/P4 processors in personal computers, she cannot

specifically remember any particular advertisement or

statement. She based her decision to purchase the computer

on the label Pentium 4/P4 which meant to her that the

computer was faster than the Pentium III or PIII.”

Other named plaintiffs could not recall any specific advertisements,

from any source, containing a specific statement made by Intel that the

Pentium 4 microprocessor was faster than the Pentium III processor.

Each named plaintiff took advantage of sources of information other

than the mere name “Pentium 4.” These included advertisements from

computer manufacturers; consultations with friends, family, and sales

clerks; and/or feature and price comparisons at retail stores and online

sources.

Intel submitted a number of expert opinions in opposition to the

motion for class certification, which comprise many pages of the

record. The gist of these opinions was, however, that a computer

purchaser does not make a decision simply based on the number 4

being higher than the number 3. These experts stated that the purchase
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of a computer was a highly individualized decision based on many

factors including price, memory, and the brand name of the original

equipment manufacturer, and advice from various sources. Further,

Dr. John Lynch, Intel’s marketing expert, disagreed with the

implication that they were teaching the market that “4 was better than

3.” He explained, “I don’t think we’re actually teaching the market

that 4 is better than III. I think we were telling people the benefits of

the Pentium 4.” In other words, plaintiffs could not have purchased a

computer based on the name “Pentium 4” alone.

The parties also submitted contrary opinions on whether it could

be proved that the Willamette Pentium 4 was outperformed by the

Pentium III and AMD processors. Plaintiffs submitted the testimony

from a computer expert, Dr. Edward Davidson, who opined that the

speeds of the Pentium 4 and the Pentium III could be compared under

one benchmark. Intel submitted an expert opinion disputing Dr.

Davidson’s opinion that one benchmark could indicate the superiority

of any particular version of the Willamette Pentium 4 processor over

particular versions of the Pentium III processor and AMD processors.

After discovery, briefing, and arguments, the circuit court entered

its class certification order. The circuit court found that Illinois

retained the more significant relationship to the controversy over

California, thus requiring the application of Illinois law. The circuit

court also found that Illinois law could not be applied to a nationwide

class, and class certification extended only to consumers who lived in

or purchased a computer in Illinois. The circuit court held the

numerosity requirement was met because of the sheer size of the

computer sales figures in the State of Illinois.

The circuit court further held that, with respect to claims of Illinois

purchasers under the Illinois Consumer Fraud Act, common questions

of fact and law predominated over individual issues. The court found

nine common issues, including: “[w]hether the Willamette 4 processor

is in fact faster and more powerful than the Pentium III, Celeron, and

AMD Athlon processor”; “[w]hether the Defendant intended the

public to be misled into believing that the Pentium 4 processor was

faster and/or more powerful and/or superior to the Pentium III and/or

the AMD processor”; and “whether the Defendant’s conduct is in

violation of the [Illinois Consumer Fraud Act].” The circuit court also

noted that Intel raised several defenses that were common to all class
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members, including that its advertising, marketing, and naming

practices were mere puffery that no reasonable consumer would rely

on. Finally, the circuit court rejected Intel’s argument that “questions

regarding consumer expectations, knowledge, technicalsophistication

and the alleged complexity of determining the performance of the

Pentium 4 processor should weigh against certification.” Accordingly,

the trial court certified the following class:

“All persons or entities, who reside in Illinois or purchased in

Illinois, and that are end use purchasers of ‘Willamette’

Pentium 4 branded processors or computers containing

‘Willamette’ Pentium 4 branded processors that are used for

personal, family or household services.”

Both parties sought interlocutory review of this ruling, and the

circuit court certified the following question for review under

Supreme Court Rule 308 (155 Ill. 2d R. 308):

“Whether the circuit court erred in certifying a class of Illinois

consumers under Illinois law, rather than certifying a

nationwide or Illinois class under California law (as plaintiffs

requested) or holding that the action should not proceed as a

class action (as Intel requested).”

The appellate court reversed the circuit court’s choice-of-law

ruling–not only as to Illinois residents, but as to all putative class

members nationwide–finding that California law applied. 367 Ill. App.

3d at 1021. The appellate court based its decision largely on section

6 of the Restatement (Second) of Conflict of Laws. 367 Ill. App. 3d

at 1021, citing Restatement (Second) of Conflict of Laws §6 (1971).

The appellate court also directed the circuit court to reconsider its

class certification order in light of California law. It cautioned, “our

decision today should not, however, be considered a new rule

requiring our courts to always apply the consumer fraud law of a

foreign state to adjudicate the claims of Illinois residents for products

purchased in Illinois” and that the decision was “a narrow one.” 367

Ill. App. 3d at 1020. The appellate court also found our decision in

Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d

100 (2005), “not relevant,” as it did not deal with choice-of-law

precedent. 367 Ill. App. 3d at 1021.
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We granted Intel’s petition for leave to appeal. 210 Ill. 2d R.

315(a). We subsequently granted leave to the “Conflict of Law

Professors” to file an amicus curiae brief in support of the plaintiffs.

DaimlerChrysler Corporation and the Product Liability Advisory

Counsel, Inc., were also granted leave to file amicus curiae briefs in

support of defendant.

DISCUSSION

Our review of this certified question is governed by Supreme

Court Rule 308 (155 Ill. 2d R. 308(a)). We are limited to the question

certified by the trial court, which, because it must be a question of law

and not fact, is reviewed de novo. Vision Point of Sale, Inc. v. Haas,

226 Ill. 2d 334, 342 (2007); Thompson v. Gordon, 221 Ill. 2d 414,

426 (2006). The certified question presents us with two major issues:

(1) which law to apply to plaintiffs’ nationwide class action suit, and

(2) under that law, whether to allow the motion for class certification.

I. Choice of Law

Choice-of-law problems arise when significant aspects of a lawsuit

traverse state borders. These problems are numerous in this case. Intel

is a Delaware corporation with its principal place of business in

California. The Intel employees responsible for designing and

marketing the “Willamette” version of the Pentium 4 microprocessor

were primarily located in California, and also located in Oregon.

Intel’s decision to brand the Willamette processors with the Pentium

4 name took place in California. Intel’s Press Relations group, the

Intel Inside program, the Brand Campaign Strategy group, and

Reseller Products Group are all located in California. Intel made its

marketing decisions in California. It conducted marketing activities

relating to the Willamette Pentium 4 to original equipment

manufacturers and consumers throughout the nation. Intel retains

offices and production plants throughout the world.

Eight of the eleven named plaintiffs are Illinois residents, six of

whom purchased their computers in Illinois. The remaining two

Illinois plaintiffs purchased their computers over the telephone from

the Dell Corporation in Texas. The other three plaintiffs are from

Missouri, two of whom purchased their computers in Missouri, and
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one of whom purchased her computer over the telephone from Dell.

All plaintiffs received and relied upon Intel’s communications–the

alleged implicit representation of performance contained in the

Pentium 4 name–in Illinois or Missouri. The named plaintiffs represent

a nationwide class of consumers who have made purchases and

received representations in all 50 states and the District of Columbia.

We need not engage in a choice-of-law analysis if the consumer

fraud laws of the states are all similar, i.e., the differences between the

laws would not be outcome determinative. However, the parties agree

as to the existence of substantial differences in the laws of the 50

states. See, e.g., Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352-

55 (Tex. Ct. App. 2003) (surveying cases). These substantial

differences in the states’ laws are the varying degrees to which the law

allows a private right of action and class actions, the limitations

periods, what constitutes a violation, what form of scienter is

required, what form of reliance is required, and damages. Tracker

Marine, 108 S.W.3d at 352-53. As the Supreme Court has noted, “the

States need not, and in fact do not, provide such protection in a

uniform manner. *** The result is a patchwork of rules representing

the diverse policy judgments of lawmakers in 50 States.” BMW of

North America, Inc. v. Gore, 517 U.S. 559, 569-70, 134 L. Ed. 2d

809, 822-23, 116 S. Ct. 1589, 1596 (1996); accord In re

Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir. 2002);

Tracker Marine, 108 S.W.3d at 352-55; Lyon v. Caterpillar, Inc., 194

F.R.D. 206, 219-21 (E.D. Pa. 2000). Hence, the conflict among these

laws dictates that we cannot affirm the appellate court’s application

of California law on that basis alone.

Plaintiffs’ framing of their cause of action narrows our analysis.

Although the instant lawsuit implicates the class members and

consumer fraud laws of all 50 states and the District of Columbia, the

plaintiffs, as the masters of their complaint, seek relief only under

Illinois or California law. Plaintiffs have not sought a separate cause

of action under Missouri law. Indeed, the certified question asks only

“Whether the circuit court erred in certifying a class of Illinois

consumers under Illinois law, rather than certifying a nationwide or

Illinois class under California law (as plaintiffs requested).” Further,

we have recently held that the Illinois Consumer Fraud Act applies

only to fraudulent transactions which take place “primarily and
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substantially” in Illinois. Avery, 216 Ill. 2d at 186. Therefore, while the

Missouri and Illinois contacts are relevant to whether California law

should be applied, transactions occurring entirely outside Illinois are

not relevant to whether Illinois law should be applied because our

decision in Avery precludes relief arising out of these transactions.

Therefore, we need only concentrate on California and Illinois law.

Importantly, the parties concede that Illinois and California laws

conflict and this conflict may have an outcome-determinative

difference. In short, plaintiffs need not prove actual deception of the

named plaintiffs under California law as found in California’s Unfair

Competition Law, as they would under Illinois law as found in the

Illinois Consumer Fraud Act. Compare 815 ILCS 505/10a (West

2002); Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 525 (2005)

(“deceptive advertising cannot be the proximate cause of damages

under the Act unless it actually deceives the plaintiff”); with Cal. Bus.

& Prof. Code §17200 (Deering 2007); Massachusetts Mutual Life

Insurance Co. v. Superior Court, 97 Cal. App. 4th 1282, 1288, 119

Cal. Rptr. 2d 190, 193 (2002) (individualized proof of deception and

reliance is not required under the Unfair Competition Law). Stated

differently, specific class members proceeding under California law

need prove only an inference of “common reliance” on the part of the

class as opposed to actual reliance on any particular deception.

Massachusetts Mutual Life Insurance Co., 97 Cal. App. 4th at 1293,

119 Cal. Rptr. 2d at 198. Because California and Illinois law conflict,

we next look to the conflicts law of our forum state, Illinois. Esser v.

McIntyre, 169 Ill. 2d 292, 297 (1996); Nelson v. Hix, 122 Ill. 2d 343

(1988); Restatement (Second) of Conflict of Laws §122 (1971).

Illinois has adopted the approach found in the Second Restatement

of Conflict of Laws. Morris B. Chapman & Associates, Ltd. v.

Kitzman, 193 Ill. 2d 560, 568 (2000); Esser v. McIntyre, 169 Ill. 2d

292, 297 (1996). Following the Restatement, we apply the broad

principle that the rights and liabilities as to a particular issue are to be

governed by the jurisdiction which retains the “most significant

relationship” to the occurrence and the parties. Kitzman, 193 Ill. 2d

at 568; Ingersoll, 46 Ill. 2d at 44; Restatement (Second) of Conflict

of Laws, Introduction, at VII-VIII (1971). We have jettisoned the lex

loci delicti rule–also termed the place-of-the-injury rule (Ingersoll, 46

Ill. 2d at 47)–and do not merely count contacts, recognizing that other
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jurisdictions may have an interest in the controversy that are not

adequately reflected by a simple tally. Rather, our approach in seeking

the appropriate applicable law is informed by the issues raised.

The parties agree that both Illinois and California have significant

relationships to this consumer fraud action, but differ as to which

relationship is paramount. Plaintiffs emphasize that Intel’s injurycausing conduct occurred in California and also that the false

representations emanated from California. Intel asserts Illinois

possesses the more significant contacts, as it is the place where the

majority of the plaintiffs received the representations, the place where

their reliance occurred, and the place of injury. The plaintiffs urge this

court to follow the appellate court in relying on section 6 of the

Restatement, which applies general principles to all causes of action.

Plaintiffs additionally assert that section 145, which applies general

principles to all torts, should also be used as the framework for our

decision. Intel responds that section 148 of the Restatement provides

the best means for analyzing the issues presented in this suit, as it

applies specifically to fraudulent misrepresentation cases.

Section 6 of the Restatement sets forth seven elementary

principles for choice-of-law determinations, the following of which are

relevant here: (a) the relevant policies of the forum state, Illinois; (b)

the relevant policies of California and the relative interests of

California in the determination of the particular issue; and (c) the ease

in the application of the law to be applied. Restatement (Second) of

Conflict of Laws §6(2) (1971); Kitzman, 193 Ill. 2d at 568-69

(utilizing relevant factors); Esser, 169 Ill. 2d at 299 (same); Nelson,

122 Ill. 2d at 350-51 (same). As the Restatement notes, the general

principles in section 6 “leave *** the answer to specific problems very

much at large,” and therefore the Restatement provides “a secondary

statement in black letter setting forth the choice of law” rules in a

given situation. Restatement (Second) of Conflict of Laws,

Introduction, at VIII (1971). The admitted generality found in this

commentary leads us to conclude that we should apply the “secondary

statement in black letter setting forth the choice of law” found in

section 148. Further, we believe “the bench and bar have

overemphasized the general sections of the Second Restatement of

Conflict of Laws, and have undervalued the specific presumptive

rules.” Townsend v. Sears, Roebuck & Co., No. 103858, slip op. at 12
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(November 29, 2007). Nevertheless, the employment of these section

6 principles do not compel the application of California law in the

present matter.

As to the relevant policies of the forum consideration, we have

recently held that “Illinois courts have an interest in not being

burdened with applying foreign law in the absence of strong policy

reasons and a strong connection to the case.” Gridley v. State Farm

Mutual Automobile Insurance Co., 217 Ill. 2d 158, 175 (2005)

(rejecting the application of Louisiana law under forum non

conveniens principles). We can identify no strong policy reasons or

strong connection to direct us to apply California law. First, Illinois

might prefer to apply its law if it would better protect Illinois

consumers. However, because California does not require

“individualized deception,” California law seems to better protect

consumers. Yet, it is not apparent that any individual consumer will

not be able to pursue a cause of action under Illinois law for his or her

individual injuries caused by Intel or the specific computer

manufacturer. Thus, there does not appear to be any interest on the

part of Illinois in the application of its standards in preference or

deference to California’s standards to protect Illinois consumers.

Next, the majority of the named plaintiffs are Illinois residents who

received Intel’s representations and purchased their computers in

Illinois or over the phone or internet from their homes. The remainder

of the named plaintiffs are Missouri residents. Conversely, Illinois has

no connection with the nationwide class consisting of foreign residents

purchasing computers containing the Pentium 4 in a foreign state.

Further, we have recently held that the Consumer Fraud Act applies

only to fraudulent transactions that take place “primarily and

substantially” inside Illinois. Avery, 216 Ill. 2d at 186. Thus, the

relevant policy interest of Illinois would be to apply Illinois law to the

claims of Illinois consumers, while excluding those claims which do

not have a strong connection to Illinois.

Next, as to the policies and interests of California, it is

undoubtedly true that California has an interest in regulating Intel, as

its principal place of business is located there. Further, it is also true

that California has a consumer-friendly consumer protection law–as

a suit may be brought alleging “common reliance” rather than “actual

deception”–which may inure to the benefit of plaintiffs. However,
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neither California consumers, nor the interests of California in

regulating Intel, will necessarily suffer if Illinois law is applied in the

instant matter. California has no interest in extending its laws to

noncitizens and to actions that occurred outside of California borders.

Norwest Mortgage, Inc. v. Superior Court, 72 Cal. App. 4th 214, 222,

85 Cal. Rptr. 2d 18, 23 (1999). Moreover, the courts of California

will likely have the opportunity to decide this issue under its own law.

The record reveals another putative nationwide class action with

allegations similar to those advanced in this case. This class action

seeks a nationwide application of California’s consumer protection

statutes and is currently pending in California state court. Skold v.

Intel Corp., Case No. RG 04 145635 (Cal. Super. Ct. Alameda

County).

Finally, as to section 6’s third relevant factor, ease of application,

it is self-evident that while use of California law may not be difficult,

the use by a forum of its own laws does not present any further

difficulty. See, e.g., Tracker Marine, 108 S.W.3d at 358.

The appellate court reversed the circuit court on a

misinterpretation of another general factor from section 6, a factor

which is not particularly relevant to our analysis. Without citation, the

appellate court stated, “[t]he needs of the interstate system ***

require one forum with one result rather than results in 51 jurisdictions

with the distinct possibility of conflicting decisions.” 367 Ill. App. 3d

at 1019. This declaration completely ignores the distinct interests of

the differing states embodied in our federalist system and

constitutional precedent. BMW of North America, Inc. v. Gore, 517

U.S. 559, 570-71, 134 L. Ed. 2d 809, 823-24, 116 S. Ct. 1589, 1596-

97 (1996); In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018

(7th Cir. 2002). Further, to satisfy due process guarantees, the

Supreme Court has explained that a court “may not take a transaction

with little or no relationship to the forum and apply the law of the

forum in order to satisfy the procedural requirement that there be a

‘common question of law’ ” Phillips Petroleum Co. v. Shutts, 472

U.S. 797, 821-23, 86 L. Ed. 2d 628, 648-49, 105 S. Ct. 2965, 2979-

80 (1985).

Moreover, an examination of the reasoning behind this factor

shows that it is not fit for the appellate court’s purpose to obtain “one

forum with one result.” The goals of the “needs of the interstate
-16-

system” principle are “to make the interstate and international systems

work well,” to promote “harmonious relations,” and “to facilitate

commercial intercourse between them.” Restatement (Second) of

Conflict of Laws §6, Comment d (1971). The Restatement also directs

courts to strive to adopt “the same choice of law” rules reflected in

other states’ precedent. Restatement (Second) of Conflict of Laws §6,

Comment d (1971). The application of California law or Illinois law,

as plaintiffs urge in this nationwide class, to a citizen of Washington

state who purchased his computer in Washington state does nothing

to improve the harmonious relations between the states. Thus, we are

not persuaded that section 6 of the Restatement compels us to apply

California law.

We now turn to section 145 of the Restatement. Section 145 sets

forth principles to be applied to tort cases, but also is cast in “great

generality” and directs that the “best way to bring precision into the

field is by attempting to state special rules for particular torts and for

particular issues in tort.” Restatement (Second) of Conflict of Laws

§145, Comment a (1971); see also Townsend, slip op. at 23 (stating

that a court should begin a choice-of law analysis by ascertaining

whether a specific presumptive rule applies to the conflict). The

Restatement commentary therefore directs us to consider section 148

because that is the most precise section involved. Nevertheless,

plaintiffs cite to this passage from section 145, comment f: “the place

of injury does not play so important a role for choice-of-law purposes

in the case of false advertising *** as in the case of other kinds of

torts. Instead, the principal location of the defendant’s conduct is the

contact that will usually be given the greatest weight in determining

the state whose local law determines the rights and liabilities that arise

from false advertising.” Restatement (Second) of Conflict of Laws

§145, Comment f (1971). However, this is a misleading discussion of

the Restatement commentary discussing “false advertising” claims.

The “false advertising” addressed in comment f to section 145

involves a single-business plaintiff injured in multiple states as a

consequence of a competitor’s “false advertising.” As comment f

explains, in such a circumstance the place of injury has less

significance because the individual plaintiff’s injury occurs in multiple

jurisdictions: “The injury suffered through false advertising is the loss

of customers or of trade. Such customers or trade will frequently be
-17-

lost in two or more states.” Restatement (Second) of Conflict of Laws

§145 comment f (1971). Therefore, our reading of section 6 and

section 145 reveals that section 148 is more appropriate because it is

applied more precisely to claims based on false representations and

thus provides the proper analytical framework for our “most

significant relationship” approach.

Section 148 applies to “actions brought to recover pecuniary

damages suffered on account of false representations, whether

fraudulent, negligent or innocent.” Restatement (Second) of Conflict

of Laws §148, Comment a (1971). According to this section, “[w]hen

the plaintiff’s action in reliance took place in whole or in part in a state

other than that where the false representations were made,” we are to

consider these relevant factors: (a) the state where plaintiff acted in

reliance upon defendant’s representations, (b) the state where plaintiff

received the representations, (c) the state where defendant made the

representations, (d) the domicil, residence, place of incorporation, and

place of business of the parties, and (e) the place where a tangible

thing which is the subject of the transaction between the parties was

situated at the time. Restatement (Second) of Conflict of Laws

§148(2) (1971). Following these factors, the named plaintiffs’ lawsuit

presents us with the majority of contacts in Illinois, while also

providing contacts in Missouri, Delaware, California, and possibly

Texas. As we do not resolve this issue by a mere counting of contacts,

but rather by the issues raised, we examine the listed factors in

conjunction with the comments accompanying Restatement section

148.

Following factors (a), (b), and (c) above, plaintiffs acted in

reliance in Illinois and Missouri; plaintiffs received the representations

in Illinois and Missouri; and Intel made the representations in

California. Comment g states that the place where plaintiff received

the representations “constitutes approximately as important a contact

as does the place where the defendant made the representations. On

the other hand, this place is not so important a contact as is the place

where the plaintiff acted in reliance on the defendant’s

representations.” Restatement (Second) of Conflict of Laws §148,

Comment g (1971). Here, it is undisputed that plaintiffs both received

and relied on the representations in their home states, thus favoring

the application of Illinois or Missouri law.
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Under factor (d) of section 148, plaintiffs were domiciled in

Illinois and Missouri, while Intel’s place of incorporation is Delaware

and principal place of business is California. Comment i explains the

relative importance of the parties’ domiciles:

“The plaintiff’s domicil or residence *** are contacts of

substantial significance when the loss is pecuniary ***. This is

so because a financial loss will usually be of greatest concern

to the state with which the person suffering the loss has the

closest relationship. *** The domicil, residence and place of

business of the plaintiff are more important than are similar

contacts on the part of the defendant.” Restatement (Second)

of Conflict of Laws §148, Comment i (1971).

The financial loss here was the Illinois and Missouri residents’ and

businesses’ payment of money, which occurred in Illinois or Missouri,

not California. We agree with the Restatement that this contact is of

substantial significance and is the greatest concern to Illinois or

Missouri because the persons suffering the loss have the closest

relationship there. Further, the plaintiffs’ domicil, Illinois or Missouri,

is “more important than are similar contacts on the part of” Intel in

California. Restatement (Second) of Conflict of Laws §148, Comment

i (1971).

According to factor (e), the place where the tangible thing that

was the subject of the dispute was located in Illinois and Missouri.

The record is not clear as to where the computers purchased over the

telephone from Dell were located at the time of the transaction,

although Dell is headquartered in Texas. According to comment i,

“place where the thing is situated at the time of the transaction is a

contact of some importance provided, at least, that both parties were

aware that the thing was situated in this place at that time.” Because

it is not apparent that Intel had any specific notion where the named

plaintiffs’ computers and microprocessors were located at the time of

the purchase, the contact is of little significance.

The general approach to section 148 is found in comment j, and

favors the application of Illinois law. Expounding that no “definite

rules” can be stated, it asserts, “If any two of the *** contacts, apart

from the defendant’s *** place of business, are located wholly in a

single state, this will usually be the state of the applicable law with

respect to most issues.” Restatement (Second) of Conflict of Laws
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§148, Comment j (1971). Unquestionably, more than two of the

contacts for each Illinois and Missouri named plaintiff are located in

Illinois and Missouri, not California. As comment j further explains,

when a plaintiff purchases goods in the plaintiff’s home state based on

representations received in plaintiffs’ home state, the law of that home

state–not the defendant’s principal place of business–will usually

govern:

“So when the plaintiff acted in reliance upon the defendant’s

representations in a single state, this state will usually be the

state of the applicable law, with respect to most issues, if (a)

the defendant’s representations were received by the plaintiff

in this state, or (b) this state is the state of the plaintiff’s

domicil or principal place of business.” Restatement (Second)

of Conflict of Laws §148, Comment j (1971).

Here, comment j directs us away from California law, as Illinois and

Missouri were the places of plaintiffs’ reliance, where plaintiffs

received the representations, and the state of plaintiffs’ domicile or

place of business.

We reject several of plaintiffs’ arguments against the use of section

148. First, plaintiffs argue that section 148 was written with common

law fraud cases, rather than consumer protection cases, in mind. Thus,

according to plaintiffs, it should be discounted because “reliance” is

not at issue here. That there was some loose form of reliance in this

case is so unavoidable that plaintiffs even argue in their briefs that

“Every plaintiff testified that he or she purchased Pentium 4

processors in reliance on, and was deceived by, Intel’s conduct.” The

“actual deception” and “as a result of” requirement of Illinois law (see

815 ILCS 505/10a (West 2002)) is directly analogous to the broad use

of “reliance” in the Restatement; i.e., to identify the place where the

plaintiff “purchased” a “tangible thing” based upon the representation

at issue. Restatement of Conflict of Laws §148, Comment c (1971).

Further, it is undisputed that at least some form of reliance is required

under the laws of California, Illinois, and various other states

throughout the nation.

Plaintiffs’ further attempt to tie this case to California law because

Intel’s representation emanated from there does not accord with any

previous precedent of any Illinois court. Thus, we are not persuaded

by plaintiffs’ citation of our decision in Martin v. Heinhold
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Commodities, Inc., 117 Ill. 2d 67 (1987), where we applied Illinois

law to a nationwide class. As we explained recently, the decision in

Martin was “specifically based” on certain key facts not present in this

case. Avery, 216 Ill. 2d at 189. In Martin, defendant’s place of

business was in Illinois and was “made manifest to each member” of

the plaintiff class. Specifically, this court noted that Martin was based

on the fact that: “(1) the contracts containing the deceptive statements

were all executed in Illinois; (2) the defendant’s principal place of

business was in Illinois; (3) the contract contained express choice-oflaw and forum-selection clauses specifying that any litigation would

be conducted in Illinois under Illinois law; (4) complaints regarding

the defendant’s performance were to be directed to its Chicago office;

and (5) payments for the defendant’s services were to be sent to its

Chicago office.” Avery, 216 Ill. 2d at 189, citing Martin, 117 Ill. 2d

at 82-83. Indeed, apart from the simple fact that both Intel and the

defendant in Martin were headquartered in the state whose law

plaintiffs sought to apply, there are no other similarities in the facts.

This conclusion is indistinguishable from our proclamation in Avery,

where we stated, “The appellate court’s conclusion that a scheme to

defraud was ‘disseminated’ from State Farm’s headquarters is

insufficient.” Avery, 216 Ill. 2d at 189.

Plaintiffs’ reliance on Ingersoll v. Klein, 46 Ill. 2d 42 (1970), is

also inapposite. That case concerned a traditional tort: a drowning in

the Iowa territorial boundaries of the Mississippi River. We stated

there that “the local law of the State where the injury occurred should

determine the rights and liabilities of the parties, unless Illinois has a

more significant relationship with the occurrence and with the parties,

in which case, the law of Illinois should apply.” Ingersoll, 46 Ill. 2d at

45. Here, Illinois and Missouri are the locations where plaintiffs were

allegedly deceived into purchasing a product, and this transaction is

both the place of the “injury” and the place with the most “significant

relationship with the occurrence and the parties.”

While either Illinois or Missouri law could possibly apply

separately to the named plaintiffs’ individual causes of action

according to the individual facts, plaintiffs have only sought relief

under Illinois law. Further, the certified question presents us with a

choice between only Illinois and California. We therefore answer that

Illinois law applies here. Hence, we agree with the circuit court’s
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ruling and reverse the appellate court’s ruling on this issue. After

finding that Illinois law applied to this case, the circuit court certified

a class solely consisting of Illinois consumers. Plaintiffs make no

further argument that Illinois law should be applied to a nationwide

class. Nevertheless, we agree that the circuit court was correct to limit

the class to Illinois consumers only, as the Illinois Consumer Fraud

Act applies to transactions that occur “primarily and substantially” in

Illinois. Avery, 216 Ill. 2d at 186. We now review the propriety of this

certification ruling under Illinois law.

II. Class Certification

The Code of Civil Procedure allows the maintenance of a class

action only if: (1) the class is so numerous that joinder of all members

is impracticable; (2) there are questions of fact or law common to the

class, which common questions predominate over any questions

affecting only individual members; (3) the representative parties will

fairly and adequately protect the interests of the class; and (4) the

class action is an appropriate method for the fair and efficient

adjudication of the controversy. 735 ILCS 5/2–801 (West 2002). The

party seeking certification bears the burden of demonstrating that it is

appropriate. Gridley, 217 Ill. 2d at 167. We need not determine

whether plaintiffs satisfy class requirements because, as a threshold

matter, the representation identified by the plaintiffs does not form the

basis of an actionable claim under the Consumer Fraud Act.

Section 10a(a) of the Consumer Fraud Act authorizes causes of

action for deceptive business practices prohibited by the Act. Section

10a(a) states, in relevant part: “Any person who suffers actual damage

as a result of a violation of [the] Act committed by any other person

may bring an action against such person.” 815 ILCS 505/10a(a) (West

2002). A private cause of action brought under section 10a(a) requires

proof of “actual damage.” 815 ILCS 505/10a(a) (West 2002). Section

10a(a) requires proof that the damage occurred “as a result of” the

deceptive act or practice. 815 ILCS 505/10a(a) (West 2002). To

adequately plead a private cause of action for a violation of section

10a of the Act, a plaintiff must allege: (1) a deceptive act or practice

by the defendant, (2) the defendant’s intent that the plaintiff rely on

the deception, (3) the occurrence of the deception in the course of

conduct involving trade or commerce, and (4) actual damage to the
-22-

plaintiff, (5) proximately caused by the deception. Avery, 216 Ill. 2d

at 180. The “as a result of” language in section 10a(a) imposes an

obligation upon a private individual seeking actual damages under the

Act to “demonstrate that the fraud complained of proximately caused”

those damages in order to recover for his injury. Oliviera, 201 Ill. 2d

at 140, citing Zekman v. Direct American Marketers, Inc., 182 Ill. 2d

359, 373 (1998). Plaintiffs argue that the uniform representation

implicit in the name “Pentium 4”–allegedly that this processor was the

best and fastest on the market–was sufficient to afford recovery under

the Consumer Fraud Act. Intel responds that this implicit

representation is nothing more than puffery, and therefore is not a

“deceptive act” within the purview of the Act. We agree with Intel.

Puffing denotes the exaggerations reasonably expected of a seller

as to the degree of quality of his or her product, the truth or falsity of

which cannot be precisely determined. Avery, 216 Ill. 2d at 173-74.

“Puffing in the usual sense signifies meaningless superlatives that no

reasonable person would take seriously, and so it is not actionable as

fraud.” Speakers of Sport, Inc. v. Proserv, Inc., 178 F.3d 862, 866

(7th Cir. 1999), citing Noll v. Peterson, 338 Ill. 552 (1930); see also

Black’s Law Dictionary 1269 (8th ed. 1999) (“the expression of an

exaggerated opinion–as opposed to a factual misrepresentation–with

the intent to sell a good or service. • Puffing involves expressing

opinions, not asserting something as fact. Although there is some

leeway in puffing goods, a seller may not misrepresent them or say

that they have attributes that they do not possess”). In Avery, this

court held that the statement that the product was a “quality

replacement part” was puffing. We also cited to a string of cases that

identified the following phrases as puffery: “high-quality,” “expert

workmanship,” “custom quality,” “perfect,” “magnificent,”

“comfortable,” and “picture perfect.” Avery, 216 Ill. 2d at 174.

Importantly, we further noted that words such as “best” are not

actionable representations of fact. Avery, 216 Ill. 2d at 174 (stating

“ ‘A general statement that one’s products are best is not actionable

as a misrepresentation of fact’ ”), quoting State v. American TV &

Appliance of Madison, Inc., 146 Wis. 2d 292, 302, 430 N.W.2d 709,

712 (1988).

Plaintiffs contend that Intel conditioned the market to believe that

each generation of the “Pentium” processor would be better than the
-23-

last and that the Pentium 4 was “the best,” as it was the latest

generation processor. In support of that position, plaintiffs highlight

a number of statements made by Intel showing that it sought to teach

the market that “four is better than three.” Plaintiffs also point to their

interrogatory answers and deposition testimony which state that the

individual named plaintiffs relied on the name “Pentium 4” in making

their purchases. But plaintiffs can only identify one statement, the

name “Pentium 4,” that was communicated to the entire class.

Because this is indistinguishable from the use of the term “best,” a

statement we found not actionable as puffery in Avery, we also find

that the implicit representation inherent in the name Pentium 4 is mere

puffery. Avery, 216 Ill. 2d at 174, quoting American TV & Appliance

of Madison, Inc., 146 Wis. 2d at 302, 430 N.W.2d at 712.

Our precedent disallowing such actions premised on puffery is

based on the sound reasoning that no reasonable consumer would rely

on such an implicit assertion as the sole basis for making a purchase.

A reasonable consumer would not rely on it because there is nothing

specific or explicit about the name “Pentium 4,” or even its alleged

implicit meaning of “4 is better than 3” or “best,” that can be said to

have a specific attribute other than the actual processor itself. One can

say almost anything is the “best” because it is a mere suggestion, a

belief, or an opinion. It is not, standing alone, a representation of fact.

Though plaintiffs may have correctly felt that “4 meant better than 3,”

it is merely, as plaintiffs call it, “implicit” that it was best. No concrete

inferences may be made. Further, an implicit representation is not an

affirmative one, and plaintiffs point to no affirmative representations

made uniformly to the class as a whole. Indeed, no named plaintiff

solely consulted the name “Pentium 4” before making the purchase.

For example, plaintiff Donald Braddy consulted a Dell advertisement

touting the Pentium 4’s high performance as well as viewed different

computers in retail stores before making his purchase on Dell’s Web

site.

Plaintiffs mistakenly make much of their expert’s opinion that the

“performance” of any Pentium 4 can be compared to any Pentium III

according to a single benchmark. This is an issue the parties dispute

and, if this case were to go forward, would need to be resolved at

trial. However, there is nothing in the “4 is better than 3” marketing

formulation that presents more than a vague promise of something
-24-

better. Notably, the word “performance” was not a word that was

communicated to the entire class. As such, plaintiffs’ theory requires

vague suggestion upon vague suggestion: that “best” means

“performance,” that “performance” means “speed,” and that “speed”

can be tested for all P4s and P3s according to one benchmark.

An example illustrates our point. The parties agree that it can be

determined whether the 1.4 Ghz Willamette Pentium 4 is “faster” at

the video game Quake than a specific Pentium III run on the same

computer model with the same configuration. But this stands in fierce

relief with a claim that the Pentium 4 is “better” or “best,” a claim so

vague as to leave the standards for interpretation open to a number of

plausible criteria for judgment. This could mean that the Pentium 4 is

cheaper, smaller, more reliable, of higher quality, better for resale,

more durable, creates less heat, uses less electricity, is more

compatible with some versions of software, or is simple the latest in

a temporal line of processors. Because the term “better” as a mere

suggestion in the name “Pentium 4” is not capable of precise

measuring, it is mere puffery and therefore not actionable under our

precedent. That is true even if, as the appellate court concluded, “Intel

specifically set out to show [the market] that the Pentium 4 was the

best processor to date.” 367 Ill. App. 3d at 1015.

Tangentially, we also note that a number of additional statements

made by Intel are not actionable because no plaintiff was aware of

these statements. Under Oliveira and its progeny, plaintiffs must

prove that each and every consumer who seeks redress actually saw

and was deceived by the statements in question. Avery, 216 Ill. 2d at

200, citing Oliveira, 201 Ill. 2d at 155; see also Zekman, 182 Ill. 2d

at 373; Shannon, 208 Ill. 2d at 525. In their briefs, plaintiffs cite

internal documents relating to Intel’s role in developing new

benchmarks as allegedly deceptive to consumers. Internal Intel

documents also show that Intel was aware of the Pentium 4’s

inferiority on certain tests. Nevertheless, it is not apparent that Intel

ever made any false public claims as to benchmarking. Further,

plaintiffs do not argue that Intel made any uniform misrepresentation

regarding clock speed, or falsely claimed that its product possessed a

clock speed that it did not have. Intel merely asserted that its product

was the highest performance microprocessor, a representation which

the class members do not allege they all received in common.
-25-

Accordingly, the class members’ uniform representation–plaintiffs’

allegation that “Intel has conditioned the consumer through its

marketing and naming practices, to believe that each generation of its

high-performance processors is superior in speed and performance to

the previous generation” and the name “Pentium 4” was an implicit

representation of processor performance that deceived all

consumers–is not actionable under the Illinois Consumer Fraud Act.

Therefore, we overturn the circuit court’s decision regarding class

certification. Avery, 216 Ill. 2d at 125-26; Smith v. Illinois Central

R.R. Co., 223 Ill. 2d 441 (2006). Because this is an adequate basis to

resolve this dispute, we do not consider Intel’s other argument

regarding the individualized purchasing decisions of plaintiffs

preventing any predominant questions and damages. We find that the

lawsuit as presently constituted should not proceed as a class action.

CONCLUSION

For the foregoing reasons, we answer the certified question as

follows: Illinois law governs the issues of liability and damages in the

present case; the action should not proceed as a class action.

Accordingly, we reverse the judgment of the appellate court and

remand the cause to the circuit court.

Certified question answered;

appellate court reversed;

cause remanded.

CHIEF JUSTICE THOMAS and JUSTICE BURKE took no part

in the consideration or decision of this case.