Sixth Division                                                          December 24, 1996Nos. 1-94-2277)     1-94-3423)     1-94-3424) Cons.ROBERT ORMAN, on behalf of himself      )  Appeal from theand all similarly situated Schwab       )  Circuit Court ofcustomers,                              )  Cook County.                                        )     Plaintiff-Appellant,               )                                        )     v.                                 )                                          )CHARLES SCHWAB & CO., INC.,             )  Honorable                                        )  Edward C. Hofert,     Defendant-Appellee.                )  Judge Presiding.________________________________________)                                        )GORDON RUBENSTEIN, on behalf of himself )and all similarly situated Quick &      )Reilly customers,                       )                                        )     Plaintiff-Appellant,               )                                        )     v.                                 )                                          )QUICK & REILLY, INC., and U.S.          )CLEARING CORP.,                         )  Honorable                                        )  Arthur L. Dunne,     Defendants-Appellees.              )  Judge Presiding.________________________________________)LEONARD M. BLAND, on behalf of himself  )and all similarly situated Olde         )Discount Corporation customers,         )                                        )     Plaintiff-Appellant,               )                                        )     v.                                 )                                          )OLDE DISCOUNT CORPORATION,              )  Honorable                                        )  Arthur L. Dunne,     Defendant-Appellee.                )  Judge Presiding.     JUSTICE RAKOWSKI delivered the opinion of the court:     Plaintiffs, Robert Orman, Gordon Rubenstein, and Leonard M.Bland (Customers) filed complaints against defendants, CharlesSchwab & Co., Quick & Reilly, Inc., and Olde Discount Corporation(Brokers), respectively, alleging that Brokers violated statecommon and statutory law when they conducted stock trades onbehalf of Customers.  In particular, the Brokers breached theirfiduciary duties by keeping certain profits (order flow payments)without adequate disclosure to or authorization from theCustomers.  Each suit was dismissed on the Brokers' combinationmotions under sections 2-615 and 2-619 of the Code of CivilProcedure.  735 ILCS 5/2-615 and 5/2-619 (West 1994).  The trialcourt, in each case, found that the Customers' claims werepreempted by federal law.  Plaintiffs appeal contending the trialcourts erroneously held that their actions were preempted.  Thecases were consolidated for appeal.       The sole issue is whether the Customers' claims based onstate common and statutory law are preempted by the SecuritiesExchange Act of 1934 (the Act).  15 U.S.C. � 78a et seq. (1994). We affirm.                                   FACTS     As stated in the facts by the parties, pursuant to standardform contracts between the Customers and Brokers, each Broker wasemployed to buy and/or sell stocks on the Customers behalf forwhich the Broker would received a commission.  In such capacity,the Broker acted as the Customer's agent.  When a Customer placedan order, the Broker could execute it in various markets.  TheBroker would contact a market maker of its choice to effectuatethe required trade.  The price obtained was negotiated betweenthe Broker and the market maker.  The market maker made a profiton every trade.  To induce Brokers to deal through them, marketmakers shared part of their profit with the Broker.  Thispractice is known as order flow payments.  It is a recognized andwidespread practice in the industry and part of the competitivemarket.       Brokers retained the order flow payments and did not passthem on to Customers.  In their complaints, plaintiffs allegethat the Brokers breached their fiduciary duties by retaining thepayments without adequate disclosure to them or authorizationfrom them.  Subsequent to each transaction, the Broker sent aconfirmation slip to the Customer containing the disclosurerequired by the Securities and Exchange Commission (the SEC);however, the Brokers did not disclose order flow payments.     Plaintiffs filed suits alleging claims for breach offiduciary duty, unjust enrichment, unfair and deceptive businesspractices, and breach of contract based on the Brokers retentionof the order flow payments.                                   ANALYSIS     "The purpose of a motion to dismiss under section 2-619 ***is to afford litigants a means to dispose of issues of law andeasily proved issues of fact at the outset of a case, reservingdisputed questions of fact for a jury trial."  Zedella v. Gibson,165 Ill. 2d 181, 185 (1995).  All well-pleaded facts in thecomplaint are admitted but conclusions of law and factunsupported by specific allegations are not.  Draper v. FrontierInsurance Co., 265 Ill. App. 3d 739, 742 (1994).  The trial courtmust construe the motion and supporting documents in the lightmost favorable to the nonmovant.  Draper, 265 Ill. App. 3d at742.  "Section 2-619(a)(9) allows dismissal when 'the claimasserted *** is barred by other affirmative matter avoiding thelegal effect of or defeating the claim.' "  Zedella, 165 Ill. 2dat 185.  Preemption is an affirmative matter.  Russo v. Boland,103 Ill. App. 3d 905, 909-10 (1982).  "The question on appeal is'whether the existence of a genuine issue of material fact shouldhave precluded the dismissal, or absent such an issue of fact,whether dismissal is proper as a matter of law.' "  Zedella, 165Ill. 2d at 185-86.  We review the trial court's decision de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112,116 (1993).     Congress promulgated the Act which created the SEC anddelegated to it the responsibility for oversight of thesecurities industry.  Federal oversight was designed to: (1)protect the investing public; (2) remove impediments to smoothoperation of the national market; and (3) impose reportingrequirements that ensure a fair and honest market.  Dahl v.Charles Schwab & Co., 545 N.W.2d 918, 924 (Minn. 1996).  In 1977,the SEC adopted Rule 10b-10 which outlined the necessarydisclosure brokers were required to furnish its clients.  17 CFR240.10b-10 (1994).  Rule 10b-10 mandated brokers to furnishwritten notification at or before completion of a transactionwhich included:           "The source and amount of any other          remuneration received or to be received by          him in connection with the transaction:          Provided, however, *** the written          notification may state whether any other          remuneration has been or will be received and          that the source and amount of such other          remuneration will be furnished upon written          request of such customer."  17 CFR 240.10b-          10(a)(7)(iii) (1994).Originally, the Rule made no specific reference to order flowpayments.     The Rule was amended effective October 2, 1995, which addeddisclosure requirements concerning order flow payments.  The Rulenow states that brokers must provide customers with: "a statementwhether payment for order flow is received by the broker ordealer for transactions in such securities and that the sourceand nature of the compensation received in connection with theparticular transaction will be furnished upon written request ofthe customer."  17 CFR 240.10b-10(a)(7)(iii) (1996).  Thisdisclosure must be made to the customer at the time the customeropens his or her account.  17 CFR 240.11Ac1-3(a) (1996).     All of the acts giving rise to the instate case occurredprior to the 1995 amendment.     Plaintiffs contend the Act does not preempt state regulationof securities.  They argue this is particularly true in light ofsection 28(a) which provides that: "[t]he rights and remediesprovided by this title shall be in addition to any and all otherrights and remedies that may exist at law or in equity."  15U.S.C. �78bb(a) (1994).  They further contend that the pre-1995version of Rule 10b-10 did not encompass order flow payments andtherefore, does not preempt state law.     The parties submit decisions from four jurisdictions, andindependent research has disclosed no others.  Three of thejurisdictions (New York, Minnesota, and California) find thatfederal law preempts state regulation of securities.  Only thefederal district courts for Louisiana hold that state claimsbased on state laws are not barred.  All acts giving rise to eachof these cases occurred prior to the 1995 amendment of Rule 10b-10, as in the instant case.     Federal law may preempt state law either expressly orimpliedly.  No express preemption exists here.  See Dahl, 545N.W.2d at 923.  Thus, if state claims are preempted, it must beby implication.          "The United States Supreme Court has          identified a two-pronged analysis for          determining whether Congress made such an          implication [implied preemption].  State law          is preempted if Congress has entirely          displaced the possibility of state regulation          or if state regulation conflicts with federal          law.  [Citation.]  The Court has indicated          that four main considerations are relevant to          an inquiry into whether Congress has          impliedly displaced possible state          regulation: 1) the scheme of federal          regulation may be so pervasive as to leave no          room for supplemental state action; 2) the          federal interest may be so dominant that          state regulation will be presumptively          precluded; 3) the objective of the federal          regulation may reveal a preemptive purpose;          or 4) the state policy may produce a result          inconsistent with that federal objective.           [Citation.]  State law will conflict with          federal law when 'compliance with both          federal and state regulations is a physical          impossibility' or where state law 'stands as          an obstacle to the accomplishment and          execution of the full purposes and objectives          of Congress.'"  Dahl, 545 N.W.2d at 924.     In Guice v. Charles Schwab & Co., No. 200 (N.Y. October 17,1996), the New York Court of Appeals held that plaintiffs' stateclaims were preempted.  Plaintiffs argued defendants breachedtheir fiduciary duties by retaining order flow payments withoutadequate disclosure.  The court rejected this argument findingthe state claims preempted by the 1975 amendments to the Act asimplemented by SEC regulations.  The Guice court determined thatthe 1975 amendments granted the SEC authority to shape a newnational market system, gave it power to regulate, and authorizedit to police the new system.  One of the goals of the 1975amendments was to develop a "national market system for securitytrading" which was to be policed by a "coherent and nationalregulatory structure."  The SEC was directed to administered thisstructure which it did through regulations.  In furtherance ofthese goals, in 1977, the SEC adopted Rule 10b-10, a "uniform"rule for all transactions in the "national market."  According toGuice, the SEC had monitored and studied the securities industryfor years and consistently applied Rule 10b-10 to order flowpayments.  The Guice court noted that the SEC amended Rule 10b-10after recognizing that order flow payments furthered purposes ofCongress "by enhancing more efficient and less costly executionof customers' orders and by promoting competition."  Guice, No.200, slip op. at 18.  Although the amendment occurred after thefacts giving rise to the claims in Guice, the court implied thatthis amendment demonstrated the SEC's continued regulation oforder flow payments.     Guice rejected plaintiffs' argument that section 28(a)foreclosed preemption of areas other than those explicitly listedin that section.     In finding preemption, the court reasoned that state claimswould serve as an obstacle to federal goals and thus, could notendure.  It based its rationale on the legislative history of the1975 amendments and the SEC's history of regulating order flowpayments.  First, the court was:          "[C]onvinced that permitting the courts of          each State to enforce [their] common-law          agency standards of disclosure on the          practice of order flow payments *** would          unavoidably result in serious interference          with the 'accomplishment and execution of the          full purposes and objectives of Congress'          [citation], in enacting the 1975 amendments,          and would directly conflict with SEC          regulations limiting the disclosure          requirements regarding receipt of order flow          payments ***."  Guice, No. 200, slip op. at          16-17.Likewise:               "Permitting the courts of each State to          impose civil liability on national securities          brokerage firms, ***, for failure to meet          more stringent common-law agency standards of          disclosure of receipt of order flow payments          (rather than the federally-mandated uniform          specific disclosure ***) would inevitably          defeat the congressional purpose of enabling          the SEC to develop and police that 'coherent          regulatory structure' for a national market          system."  Guice, No. 200, slip op. at 18.If each state were allowed to specify the nature of disclosure,brokerage firms would be required to tailor their disclosurestatements to each state's law and the "carefully-crafted SECdisclosure requirements would have little, if any, influence." Guice, No. 200, slip op. at 19.  Because the state law wouldadversely affect the SEC's ability to regulate uniformly, thestate law was preempted.     The Guice court also determined the objectives of Congresswould be thwarted in a second way: order flow payments would beeliminated.  "At worst, onerous stricter disclosure costs plusthe threat of lawsuits all around the country, based on breach ofcommon-law agency relationships, would likely result in manybrokerage firms abandoning acceptance of order flow paymentsaltogether, an even more drastic undermining of congressionalobjectives."  Guice, No. 200, slip op. at 20.  The SEC clearlyauthorizes the use of order flow payments and recognizes itsbenefit to the industry.  Any activity which defeats this goal isan obstacle to federal law.     In sum, the court stated:          "The stricter standards of order flow payment          disclosure which may be required under State          common-law agency principles inevitably will          supplant the disclosure rules of the SEC on          the same subject and come to dominate the          relationship between broker and customer ***          [thus] upset[ting] the policy-based delicate          balance Congress directed the SEC to achieve          in the regulatory regime envisaged under the          1975 amendments to the Securities Exchange          Act."  Guice, No. 200, slip op. at 21-22.     In Dahl, 545 N.W.2d 918, the Minnesota Supreme Court ruledthat the SEC rules preempted plaintiffs' state common andstatutory law actions.  Before stating its rationale for findingpreemption, the court rejected several of the parties' argumentswhich correspond to arguments raised in the instant case.  First,it rejected plaintiffs' argument that only those areasspecifically identified in section 28(a) and no others, werepreempted stating that the savings clause provision in section 28did "not prevent implied preemption of areas of securities lawnot specified in the clause."  Dahl, 545 N.W.2d at 923.  Second,it rejected defendants' argument that the pre-1995 version ofRule 10b-10 expressly preempted state law.  The Dahl court statedthat the "SEC *** had no rule in place expressly mentioning orderflow payments."  Dahl, 545 N.W.2d at 923.  Third, it concludedthat Rule 10b-10 as amended in 1995 did not apply since it wasnot in effect at the time the trades giving rise to the claims inDahl were conducted.     The Dahl court found implied preemption based on state lawsbeing an obstacle to federal goals.  Because the securitiesindustry is not only national, but also international, the Dahlcourt asserted that a decision by any particular state courtwould reach beyond the state's border.  Thus, although it wouldbe possible for brokers to comply with both state and federaldisclosure regulations, individual disclosure requirements wouldfrustrate the federal objectives.  In Dahl, as in the case beforeus, plaintiffs sought to impose a duty upon brokers to eitherobtain the consent of the customer to retain order flow paymentsprior to a transaction, or to remit the payments to customers. Defendants contended, as do they in the instant case, that such arequirement would in effect lead to the extinction of order flowpayments.  The court agreed with defendants.            "For Schwab to fully comply with these state          agency law requirements, it would need to be          able to ascertain the exact amounts of these          profits [order flow payments] in order to          seek its clients' consent, or to remit them          to its customers if consent were withheld.           Since it cannot parse out order flow payments          to such a degree, compliance with the          potential consent requirements of Minnesota          law might put an end to the practice of order          flow payments, which is allowed under federal          law.  Thus, the remedy [customers] seek could          frustrate the objectives of the SEC and          Congress."  Dahl, 545 N.W.2d at 925.     Finally, in McKey v. Charles Schwab & Co., BC139314 (Cal.Super. Ct. September 10, 1996), and Miller v. Charles Schwab &Co., BC137133 (Cal. Super. Ct. September 10, 1996), the superiorcourt of California for Los Angeles County found plaintiffs'state claims preempted.  It too noted that the pre-1995 versionof Rule 10b-10 is part of an "overall regulatory scheme" whichwould be frustrated by allowing individual state adjudication ofdisclosure requirements.  According to this court, "[i]t strikesthe Court as poor public policy to create confusion, by allowinga proliferation of common law disclosure standards, fromCalifornia and presumably 49 other states, in the interest ofprotecting an intangible principle of 'better disclosure' wherethere is no tangible damage."  In sum, the "additional standardsproposed by *** plaintiff[s] would stand as an obstacle to thefederal regulatory scheme."     Conversely, the federal district courts for both the Easternand Western District of Louisiana have held that state claims arenot preempted.  Thomas v. Charles Schwab & Co., No. 95-0307 (W.D.La. July 12, 1995); Dumont v. Charles Schwab & Co., No. 95-0606(E.D. La. May 4, 1995).     In Thomas, the court stated "Congress has not expresslypreempted state law and, after a review of the record, this courtfinds that congressional intent to preempt state law cannot beinferred."  Thomas, No. 95-0307, slip op. at 3.  Thomas concludedthat:          "[A]dditional disclosure regarding 'amount of          renumeration' and that 'the renumeration was          paid by a party whose interests are adverse          to those of the customer' will not conflict          with this SEC regulation nor act as an          obstacle to the protection of a fair          competitive market and investor interests.               In addition, defendant has not persuaded          this court that it was Congress' intent to          provide comprehensive regulation dealing with          the disclosure of order flow payments to the          exclusion of all state laws regarding agency          and fiduciary duties."  Thomas, No. 95-0307,          slip op. at 4.     In Dumont, the court determined that section 28(a) neitherexpressly preempted state law nor demonstrated a pervasivefederal regulatory scheme.  Based on this finding, the courtstated:               "Where as here, Congress has not          explicitly or implicitly displaced all state          regulation in a specified field, preemption          arises only if compliance with both federal          and state law is an impossibility or when the          state law is an obstacle to the          accomplishment of the purposes of the federal          scheme.  Although applying the Louisiana          standard of fiduciaries to a national          brokerage company such as Schwab may require          a stricter standard of care to its customers,          the application of Louisiana law does not          conflict with the SEC's authority and power          to regulate the securities industry, and          compliance with both federal regulations and          the stricter Louisiana standard of care is          not impossible.  Moreover, since greater          disclosure could benefit the investor, the          applicable of Louisiana law may indeed serve          the basic purpose of federal laws and          regulations.  Dumont, No. 95-0606, slip op.          at ___.     We find the decisions from New York, Minnesota, andCalifornia persuasive.  Each extensively discussed the historyand scheme of the securities market and federal participation init.  As all of them commented, the securities industry is anational market which must be regulated uniformly.  To allowplaintiffs' causes of action to survive in the Illinois statecourts, the federal uniformity goal will be frustrated, if not,destroyed.  If different state disclosure requirements must bemet by brokerage firms across the nation, uniformity will notexist.  If uniformity is not to prevail, neither Rule 10b-10 northe SEC would serve any function or purpose in regulatingdisclosure.  Accordingly, the goals of the federal governmentwould be frustrated.  While stricter disclosure requirements maybe advantageous, as Rule 10b-10 now requires, the SEC's amendmentof the Rule demonstrates its intent to regulate the area and toset forth the necessary disclosure requirements.     While we agree with Thomas and Dumont that state disclosureregulations may not directly conflict with federal law, we do notagree with their conclusions that state law is no obstacle to thefederal goals.  Although stricter disclosure may serve thefederal goal of protecting investors, the Dumont court ignoresthe fact that the law of Louisiana may be different than the lawsof the 49 other states.  It gives no rationale regarding the lackof uniformity among the states nor the affect different lawswould have on the securities industry.  The Thomas court lookedonly to and was concerned with the law of Louisiana. Additionally, the Thomas court cites no authority in support ofits decision and fails to discuss or even address Rule 10b-10except in passing.  The court in Dumont relied on section 28(a)with only a brief discussion of Rule 10b-10 and provided little,if any, basis for its decision.  Thus, we find Thomas and Dumontunconvincing.     For these reasons and those additional reasons outlined inGuice and Dahl, we conclude plaintiffs' claims were barred byfederal preemption, thus, defeating them.  Consequently, thetrial court properly dismissed plaintiffs' complaints as a matterof law.     For the foregoing reasons, the decision of the circuit courtof Cook County is affirmed.     Affirmed.     McNAMARA, J., concurs.     ZWICK, P.J., dissenting.JUSTICE ZWICK, dissenting:     The majority concludes that common law agency principles areimplicitly pre-empted by the implementation by the Securities andExchange Commission Rule 10b-10. They reach this conclusion byadopting the sweeping and erroneous premise that "the securitiesindustry is a national market which must be regulated uniformly."Slip op. at 15. In my view, the majority has gotten it exactlybackwards. The disclosure by an agent to his principle that he isearning additional renumeration or a "kickback" does nothing tointerfere with uniform regulation of the securities industry.      In passing the securities laws, Congress deliberately created adual system of regulation in which both federal and state lawsgovern industry participants, so long as state regulation is notinconsistent with federal law. Merrill Lynch, Pierce, Fenner &Smith, Inc. v. Ware, 414 U.S. 117, 137, 94 S. Ct. 383, 38 L. Ed. 2d348 (1973). Section 28(a) of the Exchange Act could not be clearer:"[t]he rights and remedies provided by this title shall be inaddition to any and all other rights and remedies that may exist atlaw or in equity." 15 U.S.C. 78bb(a)(Emphasis added). To this end,Rule 10b-10 was promulgated by the SEC in 1977 to set forth theminimum disclosure requirements, not displace those disclosuresrequired by the common law.      Rule 10b-10 is entitled "Confirmation of Transactions" and setsforth various disclosures that a broker or dealer must make tocustomers in writing at or before the completion of certaintransactions. In the release announcing the adoption of the Rule,the SEC stated in pertinent part:          "The rule does not attempt to set forth all          possible categories of material information to          be disclosed by broker-dealers in connection          with a particular transaction in securities.          Rule 10b-10 only mandates the disclosure of          information which can generally be expected to          be material. Of course, in particular          circumstances, additional information may be          material and disclosure may be required." Securities Exchange Act Release No 13,508 [1977-1978 Decisions] Fed.Sec. L. Rep. (CCH) Par. 81,143, at 87,930 n. 28 (May 5, 1977). Thus,Rule 10b-10 was never intended to serve as a "safe harbor."      Throughout the process of adopting, and then amending, Rule10b-10, the Securities and Exchange Commission has maintained theposition that additional disclosure beyond the SEC rules may berequired. See e.g., Ettinger v. Merrill Lynch, Pierce, Fenner &Smith, 835 F.2d 1031, 1035 (3rd Cir. 1987). Although the SECultimately adopted a safe harbor for brokers and dealers in Rule11Ac1-3 (17 C.F.R. � 240.11Ac1-3), which provides a mechanismpursuant to which brokers and dealers can effectively disclosepayment for order flow concerns to customers prior to theestablishment of a agent/principal relationship, it is important tokeep in mind that this new Rule was not in effect at the time thetransactions now at issue took place. Rule 11Ac1-3, therefore, issimply not relevant to the plaintiffs' claims or to our preemptionanalysis.     If the allegations of plaintiffs' complaint are taken as true,as they must be at this stage of the proceedings, it is clear thatthe plaintiffs have alleged a valid cause of action. This case isindistinguishable from Janes v. First Federal Savings and LoanAss'n, 57 Ill. 2d 398, 312 N.E.2d 605 (1974), in which a lender thatobtained title insurance for its customers and then received rebatesfrom the title company for sending it the business was held to havea fiduciary duty to pass the rebate money on to the customers. Thesupreme court noted that, "[u]nless otherwise agreed, an agent whomakes a profit in connection with transactions conducted by him onbehalf of the principal is under a duty to give such profit to theprincipal." Janes, 57 Ill. 2d at 410, quoting Restatement (Second)of Agency, � 388. There are any number of similar opinions, fromIllinois as well as from other jurisdictions, stating this samelong-standing and fundamental agency principle.     The prior disclosures required by the common law for an agentto keep the type of "kickbacks" that order flow payments representin no way represents an obstacle to the federal goal of establishingan efficient and equitable national market. If brokers and dealerswish to earn a profit in executing their clients orders in additionto their bargained-for commissions, all that the common law requiresis for brokers and dealers to disclose this additional renumerationprior to entering into the agency relationship with their clients,as Rule 11Ac1-3 now contemplates. In that they hold otherwise, thecases relied upon by the majority are wrongly decided.     The Guice court reasoned that since the 1975 amendments to theSecurities Exchange Act were designed, in part, to create a"uniform" national market, the SEC must have intended to promote a"uniform" rule for order flow payments when it promulgated Rule 10b-10 in 1977. Yet my research indicates that payment for order flow isa fairly recent practice which grew up after the SEC's promulgationof Rule 10b-10 in 1977. Order flow payments appear to have firstcome to the attention of the news media and the National Associationof Securities Dealers only in 1985. See Note, The Perils of Paymentfor Order Flow, 107 Harv. L.Rev. 1675, 1676, fn. 8 (1994); JaneSasseen, Dirty Little Secret, Forbes, June 17, 1985, at 203. Itfollows that payment for order flow by brokers could not have beencontemplated or specifically regulated in 1977 by Rule 10b-10 whenthe SEC promulgated the rule. It is not surprising, therefore, thatthe 1976 SEC release asking for public comment on then proposed Rule10b-10 does not mention payment for order flow. Instead, the releaseexplains that the proposed rule is designed to deal with a quitedifferent problem, namely, "with agency crosses in the over-the-counter market where the broker acts as agent for both the buyer andthe seller." SEC Proposed Rulemaking, Exchange Act Release No. 12806(Sept. 16, 1976) (Emphasis added.) Similarly, the 1977 SEC releasewhich accompanied the final rule discusses how the rule would beapplied when a brokerage firm represents the buyer and seller in thesame transaction. Exchange Act Release No. 13508 (May 5, 1977).      The Minnesota Supreme Court's recent opinion in Dahl is no morecompelling. The Dahl court concludes that, "For [defendant] Schwabto fully comply with these state agency law requirements, it wouldneed to be able to ascertain the exact amounts of these profits inorder to seek its clients' consent, or to remit them to itscustomers if consent were withheld." Dahl, 545 N.W.2d at 925. Thisconclusion is unsupported by agency law, logic or the record in ourcase.     An agency is a consensual relationship. State SecurityInsurance Co. v. Frank B. Hall & Co., 258 Ill.App.3d 588, 595, 630N.E.2d 940 (1994). As such, the relationship can be modified bymutual agreement as the parties see fit. All the defendants needhave done to comply with the common law is to have informed theirclients that, as a condition of accepting client business, thedefendants would insist on retaining any order flow paymentsreceived in connection with the execution of client orders.Defendants elected not to do so. If the defendants now believe theyhave an onerous obligation under the common law to refund order flowpayments, I can only conclude that they have brought this obligationupon themselves by not fully informing their clients of the truenature of their renumeration.     For the above reasons, I respectfully dissent.