Docket Nos. 89497, 89511 cons.–Agenda 19–May 2001.

MARK OLIVEIRA, Appellee and Cross-Appellant, v. AMOCO

	OIL COMPANY, Appellant and Cross-Appellee.

	JUSTICE McMORROW delivered the opinion of the court:

	The plaintiff, Mark Oliveira, filed a one count, amended class

action complaint against the defendant, Amoco Oil Company, in

the circuit court of Champaign County. The complaint alleged that

defendant violated the Consumer Fraud and Deceptive Business

Practices Act (Act) (815 ILCS 505/1 et seq. (West 1996)) by falsely representing in a series of advertisements that the use of its

premium gasolines would improve engine performance and benefit

the environment. The complaint further alleged that defendant’s

advertisements increased consumer demand for the premium

gasolines. This, in turn, allegedly permitted defendant to

“command an inflated and otherwise unsustainable price for its

premium gasolines,” thereby proximately causing actual damage to

all purchasers of the gasolines, regardless of whether they were

aware of the ads at the time of purchase. The complaint sought

certification of a nationwide class of consumers who had purchased

defendant’s premium gasolines.

	Defendant filed a motion to dismiss plaintiff’s complaint

pursuant to section 2–615 of the Code of Civil Procedure (735

ILCS 5/2–615 (West 1996)). The circuit court granted defendant’s

motion on the basis that plaintiff’s “proximate causation pleading

[was] inadequate to state a cause of action under the Illinois

Consumer Fraud Act.” At the same time, the circuit court also

denied plaintiff’s request for class certification, finding that there

were no predominating common issues of fact or law with respect

to plaintiff’s proposed class. On appeal, the appellate court

reversed the circuit court’s dismissal of plaintiff’s cause of action

and affirmed the circuit court’s denial of class certification. 311 Ill.

App. 3d 886. Plaintiff and defendant filed petitions for leave to

appeal from the appellate court’s decision. 177 Ill. 2d R. 315. We

granted both petitions and consolidated the appeals for review.

	BACKGROUND

	Plaintiff filed his amended class action complaint in the circuit

court of Champaign County on May 5, 1997. The single count

contained in the complaint alleged that defendant violated section

2 of the Act (815 ILCS 505/2 (West 1996)) by conducting a

deceptive advertising campaign over a period of several years.

Section 2 of the Act provides, in pertinent part, that “deceptive

acts or practices *** or the concealment, suppression or omission

of any material fact, with intent that others rely upon the

concealment, suppression or omission of such material fact *** in

the conduct of any trade or commerce are hereby declared unlawful

***.” 815 ILCS 505/2 (West 1996).

	According to plaintiff’s complaint, defendant ran a series of

television, radio and print advertisements for its premium gasolines,

including “Amoco Ultimate and/or Amoco Silver,” which touted

the gasolines’ environmental benefits and high performance

qualities. The advertisements allegedly represented that:

			“(A) Amoco Ultimate gasoline is superior to all other

brands of premium gasoline with respect to engine

performance or environmental benefits because it is refined

more than all other such brands;

			(B) The clear color of Amoco Ultimate gasoline

demonstrates the superior engine performance and

environmental benefits Amoco Ultimate provides

compared to other premium brands of gasolines that are

not clear in color;

			(C) A single tankful of Amoco Silver or Ultimate

gasoline will make dirty or clogged fuel injectors clean;

			(D) Amoco Silver or Ultimate gasoline provides

superior fuel injector cleaning compared to other brands

of gasoline; and

			(E) Automobiles driven more than 15,000 miles with

regular gasoline generally suffer from lost engine power or

acceleration which will be restored by the higher octane of

Amoco Silver gasoline.”

Plaintiff’s complaint alleged that defendant’s advertisements

omitted material facts and were “false and misleading.” According to plaintiff’s complaint, the representations in defendant’s ads were

“made without any competent and/or scientific substantiation” and

defendant’s premium gasolines were in fact “no better for the

performance of [consumers’] motor vehicles than [nonpremium]

gasolines.” The complaint also alleged that defendant’s

advertisements were made in the course of trade or commerce and

that defendant intended “that consumers would rely on these

advertisements in making their purchase decisions.” Therefore,

according to plaintiff’s complaint, defendant’s advertisements

violated section 2 of the Act.

	Plaintiff also alleged in his amended complaint that defendant’s

advertisements proximately caused him actual damage. Proximate

causation was a necessary element of plaintiff’s complaint because

his claim for consumer fraud was brought under section 10a(a) of

the Act (815 ILCS 505/10a(a) (West 1996)), the provision of the

Act which establishes the right to pursue a private cause of action

for consumer fraud. Section 10a(a) states, in part, that “[a]ny

person who suffers actual damage as a result of a violation of [the]

Act” may bring a cause of action against that person for consumer

fraud. 815 ILCS 505/10a(a) (West 1996). 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. Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 373 (1998).

	Plaintiff maintained in his complaint that he suffered actual

damage as a result of the allegedly deceptive advertisements when

he purchased defendant’s premium gasoline. Plaintiff did not allege,

however, that defendant’s advertisements induced him to buy the

gasoline or that he was deceived by the ads. Nor did plaintiff claim

that he saw, heard or read any of the allegedly deceptive

advertisements. Instead, plaintiff alleged that he was damaged by

defendant’s advertisements because the ads created an “artificially

inflated” price for the gasoline he purchased. In support of this allegation, plaintiff advanced a “market theory” of causation.1 According to plaintiff’s complaint, defendant’s allegedly deceptive

advertising scheme increased demand for defendant’s premium

gasolines. Because of this increase in demand, defendant “was able

to command an inflated and otherwise unsustainable price for its

premium gasolines.” Therefore, “all purchasers of Amoco’s

premium gasolines were injured irrespective of whether they did or

did not see or hear the specific advertisements and marketing

materials in question.” In other words, according to plaintiff’s

complaint, all consumers who purchased defendant’s premium

gasolines during the time the advertisements were running were

damaged when they made the purchase because they paid a higher

price for the gasoline then they would have paid in the absence of

the ads.

	In the prayer for relief, plaintiff’s complaint requested an order

from the circuit court certifying his action as a class action. See

735 ILCS 5/2–801 et seq. (West 1996). Plaintiff’s proposed class was defined as “[a]ll retail purchasers in the United States who

purchased Amoco Ultimate and/or Amoco Silver gasoline” during

the time the various advertisements ran, from approximately

November 6, 1991, through January 2, 1996.2 In support of his request for class certification, plaintiff submitted the affidavit of Dr.

William R. Latham III, a professor of economics at the University

of Delaware. Taking as a given that defendant’s advertisements

were misleading and that they had an effect on consumers, Latham

opined that “there exists a strong economic likelihood that a

substantial part of the price differential between Ultimate and/or

Silver and the other grades of Amoco gasoline was the result of the

greater demand for Ultimate and/or Silver gasoline caused by the

misleading advertisements for the premium gasolines. A necessary

result of the fact that the misleading advertising led some

consumers to demand Amoco premium gasolines was an increase

in demand that permitted Amoco to maintain a higher price for its

premium gasolines.” According to Latham, all individuals who

purchased defendant’s premium gasolines paid an increased price

because of the allegedly deceptive ads, regardless of whether they

saw or relied upon the advertisements at issue. Latham also stated

that the extent of the “inflated” price–the difference between the

price of the gasoline with the ads and the price of the gasoline

without the ads–could be determined by “using the basic

techniques of econometric analysis.”

	Defendant filed a motion to dismiss plaintiff’s complaint

pursuant to section 2–615 of the Code of Civil Procedure (735

ILCS 5/2–615 (West 1996)). Defendant also contested plaintiff’s

request for class certification. On February 24, 1998, in a ruling

issued from the bench, the circuit court concluded that plaintiff’s

“marketing theory” of causation was “not a correct statement of

proximate cause under the Illinois Consumer Fraud Act.”

Accordingly, the circuit court granted defendant’s motion to

dismiss “on the basis that the proximate causation pleading is

inadequate to state a cause of action under the Illinois Consumer

Fraud Act.”

	Although the circuit court dismissed plaintiff’s complaint, the

court nevertheless went on to consider plaintiff’s request for an

order certifying a nationwide class of consumers who had

purchased defendant’s premium gasolines. On this issue, the circuit

court concluded that there were “so many variables” that might

influence a consumer’s decision to buy a particular gasoline,

including, for example, the location of the gas station or other

services available at the station, that the court could not “find that

questions of fact would be common to the class or that the

common questions would predominate over any questions affecting

only individual members.” The circuit court also found that no

common questions of law existed because the Act “would not

extend to persons who were not Illinois consumers.” Consequently,

because there was “a lack of commonality of questions of law or

fact” with respect to plaintiff’s proposed class, the circuit court

denied plaintiff’s request for class certification.

	On appeal, the appellate court first considered the propriety of

the circuit court’s dismissal of plaintiff’s complaint and, in

particular, the circuit court’s conclusion that plaintiff had failed to

adequately plead proximate causation as required under section

10a(a) of the Act. As set forth by the appellate court, the parties’

arguments on this issue focused primarily on this court’s holding

in Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33 (1994).

	In Martin, this court considered a private cause of action brought under the Act in which it was alleged that a brokerage firm

misrepresented the nature of a certain securities fee. This court

addressed, among other issues, what type of causation the plaintiff

had to prove to recover damages for the defendant’s

misrepresentation. Relying on federal case law, this court adopted

a causation analysis found in federal decisions interpreting Rule

10(b)–5 of the Securities and Exchange Act of 1934. We

explained:

			“In order for a plaintiff to recover for a violation of Rule

10(b)–5, the great majority of Federal courts require

plaintiffs to show two types of causation: (1) transaction

causation; and (2) loss causation. [Citation.] Transaction

causation has been defined as meaning that ‘the investor

would not have engaged in the transaction had the other

party made truthful statements at the time required.’

[Citation.] Loss causation, on the other hand, has been defined as meaning ‘that the investor would not have

suffered a loss if the facts were what he believed them to

be.’ ***

			We find Illinois law to be similar to the analysis used by

these Federal courts which require both transaction

causation and loss causation in order to recover for

misrepresentation in securities cases.” Martin, 163 Ill. 2d at 60.

See also Adler v. William Blair & Co., 271 Ill. App. 3d 117, 128- 29 (1995); Bastian v. Petren Resources Corp., 271 Ill. App. 3d 232, 235 (1995) (in securities fraud, transaction causation occurs

when the defendant’s conduct causes the plaintiff to enter into a

transaction; loss causation refers to the reasons for the

investment’s decline in value).

	Before the appellate court in the case at bar, defendant argued

that, under Martin, any plaintiff seeking recovery under the Act must allege “transaction causation.” That is, a plaintiff must allege

that he would not have engaged in the transaction that resulted in

damage if the defendant had made truthful statements rather than

misleading ones. Defendant argued that plaintiff in the instant case

had not made any such allegation and, indeed, could not, since he

did not allege that he was even aware of defendant’s

advertisements. Therefore, according to defendant, plaintiff’s

complaint was properly dismissed.

	The appellate court rejected this argument. The appellate court

concluded that the term “transaction causation,” as used in Martin, was simply another name for reliance. See 311 Ill. App. 3d at 893.

The appellate court noted, however, that this court has stated in

several decisions that reliance is not a separate element of a

plaintiff’s cause of action under the Act. 311 Ill. App. 3d at 893

(citing Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501 (1996), Martin, 163 Ill. 2d at 76, and Siegel v. Levy Organization Development Co., 153 Ill. 2d 534, 542 (1992)). Attempting to reconcile Martin’s holding requiring proof of transaction causation with these latter statements, the appellate court concluded that

transaction causation, or reliance, was an element of a plaintiff’s

cause of action only in cases involving securities fraud brought

under the Act. 311 Ill. App. 3d at 893. Because plaintiff’s cause of action in the case at bar did not concern securities fraud, the

appellate court concluded that transaction causation was not a

relevant concern.

	Having rejected defendant’s argument regarding transaction

causation, the appellate court concluded that plaintiff’s marketing

theory of causation satisfied the proximate causation requirement

of the Act. The appellate court noted plaintiff’s allegation that, but

for defendant’s allegedly deceptive advertisements, defendant’s

premium gasolines would have cost less than they actually did. The

appellate court further noted that plaintiff had alleged that he

purchased defendant’s gasoline during the time the advertisements

would have had their effect, i.e., after they were published or broadcast. These allegations, the appellate court determined, set

forth a legally sufficient statement of proximate causation under the

Act. 311 Ill. App. 3d at 896.

	The appellate court rejected defendant’s additional arguments

that plaintiff’s complaint was properly dismissed because it was not

pled with the level of particularity required under the Act and

because it failed to plead a material misrepresentation. 311 Ill. App.

3d at 894-95. Accordingly, the appellate court reversed the circuit

court’s dismissal of plaintiff’s complaint.

	With respect to the question of class certification, however,

the appellate court affirmed the circuit court. The appellate court

noted that a suit may not be certified as a class action unless

“[t]here are questions of fact or law common to the class, which

common questions predominate over any questions affecting only

individual members” (735 ILCS 5/2–801(2) (West 1996)).

Addressing this requirement, the appellate court first held, as a

matter of statutory construction, that the Act did not apply to out-

of-state consumers. 311 Ill. App. 3d at 897-98. In addition, the

appellate court determined that the members of plaintiff’s proposed

class from outside Illinois lacked sufficient contacts with Illinois to

permit application of the Act. The court stated:

			“As the purchase of gasoline in his or her respective

state and the determinants of the price paid for it were

what triggered each potential plaintiff’s cause of action,

something that does not affect Illinois commerce or

consumers, no significant connection to Illinois justifies the use of Illinois law.” 311 Ill. App. 3d at 899.

Because the Act could not be applied to out-of-state members of

the proposed class, the appellate court concluded that those

members’ claims would be governed by the laws of each state

where the gasoline was purchased. 311 Ill. App. 3d at 899. Thus,

the appellate court held, there was “no common law to apply.” 311

Ill. App. 3d at 899. Further, because the elements of the consumer

fraud laws of some other states differ from the Act’s, the appellate

court concluded that “[t]he claims of out-of-state plaintiffs would

require individual fact finding and no predominance of common

fact exists.” 311 Ill. App. 3d at 899. Accordingly, the appellate

court affirmed the circuit court’s denial of class certification.

	Plaintiff filed a petition for leave to appeal the appellate

court’s judgment affirming the denial of class certification. 177 Ill.

2d R. 315. The petition was allowed and the case was docketed in

this court as No. 89511. Defendant filed a petition for leave to

appeal the appellate court’s judgment reversing the dismissal of

plaintiff’s cause of action. That petition was also allowed and the

case was docketed as No. 89497. The two appeals were

consolidated for review.

	We subsequently granted leave to the Illinois Trial Lawyers

Association to file an amicus curiae brief in support of plaintiff’s appeal. We also granted leave to the Product Liability Council, the

National Association of Independent Insurers, the American

Insurance Association and the Alliance of American Insurers, the

Illinois Automobile Dealers Association and the Chicago

Automobile Trade Association, Lawyers for Civil Justice, and the

Chamber of Commerce of the United States, to file amicus curiae briefs in support of defendant.

	ANALYSIS

	In No. 89497, defendant contests the appellate court’s holding

that plaintiff adequately pled a private cause of action for consumer

fraud under the Act. In No. 89511, plaintiff challenges the

appellate court’s holding that the circuit court properly denied class

certification. We first consider defendant’s appeal.

	No. 89497

	The circuit court granted defendant’s motion to dismiss

plaintiff’s amended class action complaint pursuant to section

2–615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West

1996)). A section 2–615 motion attacks the legal sufficiency of a

complaint by asserting that it fails to state a cause of action upon

which relief can be granted. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 491 (1999). In determining whether a complaint states a cause of action, the allegations

contained within the complaint are construed in the light most

favorable to the plaintiff and all well-pleaded facts and reasonable

inferences drawn from those facts are accepted as true.

Weatherman, 186 Ill. 2d at 491. The standard of review on appeal from an order granting a section 2–615 motion to dismiss is de novo. Weatherman, 186 Ill. 2d at 491.

	Plaintiff’s amended class action complaint alleges that

defendant violated section 2 of the Act (815 ILCS 505/2 (West

1996)). Section 2 prohibits deceptive acts or practices which are

committed in the course of trade or commerce and with the intent

that others rely upon them. Section 2 provides, in full:

			“Unfair methods of competition and unfair or deceptive

acts or practices, including but not limited to the use or

employment of any deception, fraud, false pretense, false

promise, misrepresentation or the concealment,

suppression or omission of any material fact, with intent

that others rely upon the concealment, suppression or

omission of such material fact, or the use or employment

of any practice described in Section 2 of the ‘Uniform

Deceptive Trade Practices Act’, approved August 5,

1965, in the conduct of any trade or commerce are hereby

declared unlawful whether any person has in fact been

misled, deceived or damaged thereby. In construing this

section, consideration shall be given to the interpretations

of the Federal Trade Commission and the federal courts

relating to Section 5(a) of the Federal Trade Commission

Act.” 815 ILCS 505/2 (West 1996).

	When originally enacted in 1961, the Act did not expressly

provide a private cause of action for violations of section 2. But see Rice v. Snarlin, Inc., 131 Ill. App. 2d 434 (1970) (holding that the Act impliedly permitted a private cause of action). Unlawful

business practices were generally prosecuted by the Attorney

General, who had the authority to pursue injunctive relief,

restitution and civil penalties. See 815 ILCS 505/3 through 7 (West

1996). In 1973, the General Assembly added section 10a(a) to the

Act (815 ILCS 505/10a(a) (West 1996)). Section 10a(a) expressly

authorizes private causes of action for deceptive business practices

proscribed 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 1996).

	Unlike an action brought by the Attorney General under

section 2, which does not require that “any person has in fact been

misled, deceived or damaged” (815 ILCS 505/2 (West 1996)), a

private cause of action brought under section 10a(a) requires proof

of “actual damage” (815 ILCS 505/10a(a) (West 1996)). Further,

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

proof that the damage occurred “as a result of” the deceptive act

or practice (815 ILCS 505/10a(a) (West 1996)). As noted

previously, this language imposes a proximate causation

requirement. See, e.g., Zekman, 182 Ill. 2d at 373; Martin, 163 Ill. 2d at 52-54, 58-61. Thus, to adequately plead a private cause of

action for a violation of section 2 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 plaintiff (5) proximately

caused by the deception. Zekman, 182 Ill. 2d at 373; Connick,174 Ill. 2d at 501.

	Defendant’s primary contention on appeal is that plaintiff’s

“marketing theory” of causation is a legally insufficient statement

of proximate causation and, therefore, that the circuit court

properly dismissed plaintiff’s amended complaint. In support of this

contention, defendant repeats the same arguments which it raised

in the appellate court regarding Martin. Defendant further argues that it was error for the appellate court to hold that Martin’s requirement of “transaction causation” applies only to cases

involving securities fraud brought under the Act.

	Defendant also raises an additional point regarding Martin. Defendant emphasizes that Martin’s causation analysis was based on common law principles of causation found in the tort of

fraudulent misrepresentation. See Martin, 163 Ill. 2d at 58-61. This fact is significant because, in the common law tort of fraudulent

misrepresentation, the causal link between the wrongdoer and the

damage to the plaintiff is provided by the concept of reliance. More

precisely, in the common law tort of fraudulent misrepresentation,

the element of cause-in-fact is defined as reliance. See Restatement (Second) of Torts §546, Comment a, at 103 (1977) (“If the [fraudulent] misrepresentation has not in fact been relied upon by

the recipient in entering into a transaction in which he suffers

pecuniary loss, the misrepresentation is not in fact a cause of the

loss”); 2 D. Dobbs, Law of Torts §474, at 1358 (2001) (“The

requirement of reliance in fact is a requirement that the defendant’s

representation is one of the causes in fact of the plaintiff’s harm,

although it need not be the sole cause”). Thus, defendant suggests

that reliance, although not listed as a separate element under

section 10a(a) of the Act, is necessarily subsumed under that

section’s causation requirement. See Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1041 (1992); Elipas Enterprises, Inc. v. Silverstein, 243 Ill. App. 3d 230, 235 (1993); M. Polelle & B. Ottley, Illinois Tort Law §9.05, at 9–32 (3d ed. 2001) (“without

any need to prove actual reliance it is difficult to imagine how a

plaintiff who chooses not to can show *** proximate cause”); see

also Weinberg v. Sun Co., 565 Pa. 612, 617, 777 A.2d 442, 445 (2001) (under state consumer fraud act requiring proof that the

plaintiff’s damage occurred “as a result of” the statutory violation,

the plaintiff must prove reliance).

	Although defendant makes the above observations regarding

causation and reliance, defendant maintains that the precise

relationship between those concepts under the Act need not be

decided in order to resolve this appeal. Instead, defendant argues

that the adequacy of plaintiff’s “marketing theory” of causation

may be decided under the narrower principles set forth in Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359 (1998), the most recent decision of this court to consider the element of

proximate causation required under section 10a(a) of the Act.

	Defendant maintains that, under Zekman, a plaintiff pursuing a claim for deceptive advertising under the Act must prove that he

was deceived by the ads in order to establish proximate causation.

If the plaintiff is unable to show that he was deceived, defendant

argues, then the plaintiff is too far removed from the wrongdoing

as a matter of law to establish the “immediate” and “direct”

relationship between the wrongdoing and the injury that is required

for proximate causation. See, e.g., Martin, 163 Ill. 2d at 58 (“ ‘the injury suffered by the plaintiff must be the natural and not merely

a remote consequence of the defendant’s act’ ”), quoting Town of Thorton v. Winterhoff, 406 Ill. 113, 119 (1950). Therefore, according to defendant, because plaintiff’s amended complaint

does not allege that he was deceived by defendant’s ads, the

complaint was properly dismissed.

	We agree with defendant that Zekman controls this appeal. We therefore address that case in some detail. In Zekman, the plaintiff received a series of allegedly deceptive mailings from a direct mail

marketer. These mailings stated that the plaintiff had won a prize

from among a list of prizes contained in the mailing. Some of the

prizes listed were large cash awards, while others were merely

discount coupons for various products or services. To claim his

prize, the mailings indicated that the plaintiff should call a “900”

phone number, although it was also indicated that he could reply

by mail. When the plaintiff phoned the “900” number, he incurred

charges of between $8 to $10 per call. The plaintiff made several

calls to various “900” numbers listed in the mailings but never won

a cash award. AT&T, which reviewed the direct marketer’s

mailings to ensure that they complied with its policies regarding

“900” numbers, billed the plaintiff for the phone charges. The

majority of the phone charges went to the direct marketer but

AT&T retained a percentage of the charges for itself. Zekman, 182 Ill. 2d at 363-64.

	The plaintiff filed a complaint against AT&T which alleged, in

pertinent part, that AT&T violated section 2 of the Act. Zekman, 182 Ill. 2d at 372. According to the plaintiff, AT&T violated the

Act by “reviewing, revising, and approving” the “deceptive solicitations” sent to him by the direct marketer. In addition, the

plaintiff alleged that AT&T violated section 2 of the Act by billing

the plaintiff for his calls to the “900” numbers in a misleading

manner. Zekman, 182 Ill. 2d at 372. In response, AT&T filed a motion for summary judgment. In this motion, AT&T argued that

the plaintiff was not deceived by the mailings or the phone bills

and, therefore, could not prove that AT&T’s alleged misconduct

caused him injury. In support of its motion for summary judgment,

AT&T relied upon deposition testimony given by the plaintiff

which, according to AT&T, showed that the plaintiff had not been

deceived. The circuit court granted AT&T’s motion for summary

judgment and the plaintiff appealed. Zekman, 182 Ill. 2d at 373.

	Before the appellate court, the plaintiff argued that his

deposition testimony was essentially irrelevant to the question of

whether he had established the element of causation required under

the Act. The plaintiff maintained that, “even if he had been

suspicious of certain deceptions in the solicitations, such awareness

had no bearing on the causal link between his damages and

violations of the Act” because “he reacted reasonably to the

mailings” and “acted in the manner in which defendants intended

a recipient of the mailing to act.” Zekman v. Direct American Marketers, Inc., 286 Ill. App. 3d 462, 468 (1997). The appellate court construed this argument as an assertion that “parties are not

required under the Act to show that they are actually deceived.”

Zekman, 286 Ill. App. 3d at 468. The court rejected this contention, holding that the element of proximate causation under

the Act is not satisfied “where a party was not deceived.” Zekman, 286 Ill. App. 3d at 468. Notably, in so holding, the appellate court

also made additional comments about the nature of proximate

causation and reliance. Like defendant in the case at bar, the

appellate court noted that “the theory of reliance is ambiguously

present within the parameters of the concept of proximate cause.”

Zekman, 286 Ill. App. 3d at 468.

	Although the appellate court held that the plaintiff had to

prove that he was deceived by the mailings in order to recover

under the Act, the court nevertheless reversed the circuit court’s

entry of summary judgment in favor of AT&T. The appellate court

held that the plaintiff’s deposition testimony was not entirely clear and that there remained “a genuine issue of fact as to whether [the

direct marketer’s] mailing caused plaintiff to believe that he had

won an award.” Zekman, 286 Ill. App. 3d at 469. Therefore, according to the appellate court, summary judgment was improper.

AT&T then appealed.

	On appeal, this court did not address the “ambiguity”

regarding the relationship between causation and reliance that was

noted by the appellate court. Instead, our decision turned solely on

the narrower issue of whether the plaintiff was deceived. We did

not disturb the appellate court’s holding that a plaintiff asserting a

claim of deceptive advertising under the Act must prove that he

was deceived by that advertising in order to establish proximate

causation. However, we reversed the appellate court’s holding that

there existed a question of material fact as to whether the plaintiff

was deceived. After discussing the plaintiff’s deposition testimony

at length we stated:

			“On this record, we do not believe that there exists a

genuine issue of material fact whether the allegedly

deceptive nature of the solicitations received by plaintiff

caused him to incur the charges for the ‘900’ number calls.

Rather, it appears that plaintiff understood the

requirements and costs of the program. ***

			The preceding discussion also answers the plaintiff’s

further contention that he was deceived by AT&T’s

manner of billing for the calls. By his own admission,

plaintiff knew that he had not necessarily won cash prizes,

that he did not have to call a ‘900’ number to learn if [he]

had won such a prize, and that he would incur a charge if

he did choose to learn his prize status by placing the calls.

*** In addition, we note plaintiff’s statement in his

deposition that he did not read or pay the bills himself,

delegating those duties to his secretary. Accordingly,

plaintiff could not have been misled by the allegedly

deceptive nature of the bills. ***

			In sum, based on the testimony by plaintiff at his

deposition, we do not believe that there remains a genuine

issue of material fact whether the alleged violations of the

Act by AT&T proximately caused his damage, for

plaintiff’s testimony demonstrates that he was not deceived by AT&T’s actions.” Zekman, 182 Ill. 2d at 375- 76.

	The plaintiff’s claims in Zekman failed as a matter of law because the plaintiff “was not deceived.” Zekman, 182 Ill. 2d at 376. Plaintiff’s amended class action complaint in the case at bar

suffers from a similar infirmity. Plaintiff does not allege that he

was, in any manner, deceived by defendant’s advertisements.

Plaintiff does not allege that he received anything other than what

he expected to receive when he purchased defendant’s gasoline,

i.e., a certain amount of gasoline, with a certain octane level, for the price listed on the pump. Indeed, plaintiff could not allege that

defendant’s advertisements deceived him or misled him as to what

he was receiving when he made his purchase. Because plaintiff

does not allege that he saw, heard or read any of defendant’s ads,

plaintiff cannot allege that he believed that he was buying gasoline

which benefitted the environment or improved engine performance.

	Plaintiff briefly attempts to distinguish Zekman, stating that the plaintiff in Zekman “knew the truth when he made the calls and was not deceived” and that the case is limited to that “specific

situation.” But as defendant points out, the “situation” rejected in Zekman is precisely what plaintiff is asserting in this case. Under plaintiff’s “market theory” of causation, purchasers of defendant’s

premium gasolines who saw the ads but never believed them, i.e., those who “knew the truth,” nevertheless have valid claims under

section 10a(a) of the Act. Moreover, purchasers of defendant’s

premium gasolines who never saw the ads and, thus, were “not

deceived” also have valid claims. These results are plainly at odds

with Zekman.

	Zekman makes clear that, to properly plead the element of proximate causation in a private cause of action for deceptive

advertising brought under the Act, a plaintiff must allege that he

was, in some manner, deceived. Contrary to these principles,

plaintiff’s amended class action complaint fails to allege that

plaintiff was deceived by defendant’s advertisements. Accordingly,

we reverse the judgment of the appellate court and affirm the

circuit court’s dismissal of plaintiff’s amended class action

complaint. Because we affirm the dismissal of plaintiff’s amended

complaint on the ground that proximate causation was not adequately pled, we need not address other arguments raised by

defendant in this appeal.

		No. 89511

	We now turn to plaintiff’s appeal. At issue in this appeal is

whether the appellate court erred in affirming the circuit court’s

denial of plaintiff’s request for class certification.

	Initially, defendant notes that, because this court has

determined that plaintiff’s amended class action complaint fails to

state a cause of action under the Act, plaintiff’s case has been

“entirely dispose[d] of.” Defendant argues, therefore, that any

issues pertaining to class certification are no longer of any

consequence to the resolution of plaintiff’s case and, thus, that

plaintiff’s appeal has been rendered moot. See, e.g., In re Adoption of Walgreen, 186 Ill. 2d 362, 364 (1999) (when the resolution of a question of law cannot affect the result of a case as to the parties,

the question is moot). We agree.

	It is established in Illinois that a circuit court may rule upon a

defendant’s motion to dismiss a class action complaint prior to

deciding whether the suit should be certified as a class action. See Schlessinger v. Olsen, 86 Ill. 2d 314, 320 (1981); Landesman v. General Motors Corp., 72 Ill. 2d 44, 48-49 (1978); K. Forde & K. Malloy, State Practice: Illinois’ Class Action Statute, in Class Actions §7.13 (Ill. Inst. for Cont. Legal Educ. 2001). In those

cases where the circuit court first considers a motion to dismiss a

class action complaint and holds, as an initial matter, that no cause

of action has been stated, it is unnecessary for the court to proceed

to the issue of class certification. The granting of the motion to

dismiss fully resolves the question of whether the plaintiff can

obtain relief. Further consideration of the issues pertaining to class

certification will have no effect on the court’s conclusion that the

complaint failed to state a cause of action and, hence, no effect on

the result of the case as to the parties. See Schlessinger, 86 Ill. 2d at 318. Consequently, “a dismissal for failure to state a cause of

action will render moot the question of certification of the class.”

4 R. Michael, Illinois Practice §30.2 n.2 (1989); Schlessinger, 86 Ill. 2d at 320 (granting of a motion to dismiss a class action

complaint eliminates the need to litigate the requirements of class

certification); see also O’Shea v. Littleton, 414 U.S. 488, 494 n.3, 38 L. Ed. 2d 674, 682 n.3, 94 S. Ct. 669, 675 n.3 (1974) (“There

was no class determination made in this case as the complaint was

dismissed on grounds [lack of standing] which did not require that

determination to be made”); Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995).

	In this case, for the reasons stated above, plaintiff’s amended

class action complaint failed to state a cause of action for which

relief can be granted under the Act. It is therefore unnecessary for

this court to address the merits of plaintiff’s request for class

certification. See Schlessinger, 86 Ill. 2d at 320. Any statements or holdings made by the lower courts with respect to the

appropriateness of class certification were wholly advisory, as

would be any statements made by this court on the issue. Advisory

opinions are to be avoided. See Barth v. Reagan, 139 Ill. 2d 399, 419 (1990). For this reason, we express no opinion on the

appropriateness of class certification in this case. We also vacate

those portions of the circuit and appellate court judgments which

addressed the issue of class certification. See Walgreen, 186 Ill. 2d at 366, citing In re Special Prosecutor, 126 Ill. 2d 208 (1988); Bluthardt v. Breslin, 74 Ill. 2d 246, 251 (1979).

		CONCLUSION

	In No. 89497, the judgment of the appellate court is reversed

and the judgment of the circuit court is affirmed. In No. 89511, the

judgments of the circuit and appellate court are vacated.

	No. 89497–Appellate court judgment reversed;

	circuit court judgment affirmed.

	No. 89511–Appellate court judgment vacated;

	circuit court judgment vacated.

	JUSTICE KILBRIDE took no part in the consideration or

decision of this opinion.

	CHIEF JUSTICE HARRISON, dissenting:

	Proximate cause is essential to a private right of action for

damages under section 10a(a) of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/10a(a) (West

1996)). Actual reliance by the plaintiff is not. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501 (1996). The appellate court correctly applied these concepts to the case before us. See 311 Ill.

App. 3d at 892-95. I would therefore affirm that portion of its

judgment reversing the circuit court’s order dismissing Oliveira’s

complaint for failure to state a cause of action.

	The majority’s justification for reaching a contrary result is

misguided. While it is true that someone must have been deceived

in order to sustain a private right of action for damages under the

Consumer Fraud and Deceptive Business Practices Act, there is no

requirement in the statute that it be the plaintiff. If others were

deceived and acted in reliance on the deception in a way that

harmed the plaintiff, the plaintiff is entitled to seek recovery for his

damages under the Act even if he, himself, was not misled.

	Our decision in Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359 (1998), does not hold otherwise. Although we

rejected the plaintiff’s claim in Zekman on the grounds that he had not been deceived by the defendant telephone company’s actions

(Zekman, 182 Ill. 2d at 376), that determination must be read in context. The plaintiff in Zekman was the only consumer involved, and, unlike the plaintiff in the present case, he did not assert that

others were misled in a way that harmed him. Accordingly, if he

was not deceived and did not act to his detriment on the basis of a

deception, then no one did. That being the  so, there was no need for

our court to go further and address the situation alleged in

Oliveira’s complaint, namely, that the plaintiff’s damages resulted

from reliance by third parties on the defendant’s deceptive conduct.

In Zekman, there was simply no reliance by anyone. Without that, there could be no possible causal link between the defendant’s

actions and the damages the plaintiff sought to recover. 

	The cause of action asserted by Oliveira here does not suffer

from the same impediment. According to Oliveira’s complaint,

there was reliance on Amoco’s false representations. It came from

the gasoline-purchasing public, who believed Amoco’s spurious

claims regarding the company’s premium gasoline and bought that

gasoline based on those claims. That reliance, and the purchases it

induced, resulted in damage to Oliveira by increasing demand for

the fuel, thereby driving the cost higher than what he and others would otherwise have had to pay. Accordingly, if the factual

allegations in Oliveira’s complaint are true, as we must assume

them to be (see Jackson v. South Holland Dodge, Inc., 197 Ill. 2d 39, 44-45 (2001)), there was a direct causal link between Amoco’s

misrepresentations and the actual damages Oliveira sustained.

	That the reliance involved third parties rather than the

individual plaintiff himself is a factor that sets Oliveira’s claim apart

from others we have considered under the Consumer Fraud and

Deceptive Business Practices Act. The novelty of the claim,

however, is no reason to turn it aside. Section 11a of the Act (815

ILCS 505/11a (West 1996)) expressly provides that the Act “shall

be liberally construed” to effectuate its purposes. We have

interpreted this to mean that the Act confers on Illinois courts a

clear mandate to utilize the Act to the utmost degree to eradicate

all forms of deceptive and unfair business practices and to provide

appropriate remedies to defrauded consumers. Warren v. LeMay, 142 Ill. App. 3d 550, 563 (1986). Consistent with these principles,

it is incumbent on our court to remain open to innovative

applications of the law’s provisions. Consumer fraud takes endless

forms, and it is imperative that we interpret the statute in such a

way that it remains flexible enough to address new problems as

they arise.

	For the foregoing reasons, I would hold that Oliveira’s

complaint was sufficient to allege a private right of action for

damages under the Consumer Fraud and Deceptive Business

Practices Act and should not have been dismissed on the pleadings.

I therefore dissent.