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Price v. Philip Morris12/15/2005
IV. Conclusion
Today marks the second time in just six months that this court has completely reversed a multibillion dollar verdict in favor of a corporate defendant. See Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100 (2005). To do so in Avery, the court construed an insurance contract strictly against an insured despite its ambiguities and our own precedent to the contrary. See Avery, 216 Ill. 2d at 215-29 (Freeman, J., concurring in part and dissenting in part, joined by Kilbride, J.). In this case, the court does so by interpreting section 10b(1) so narrowly that it dilutes the very purpose of the Act. In addition, not content with just speaking to section 10b(1), the two specially concurring justices engage in nothing more than a conclusory analysis on damages-an analysis which, as I have detailed above, overlooks or ignores several salient legal points which serve to greatly undercut their position. Suffice it to say, the issue of damages is not as cut and dry as these justices would have one believe.
The manner in which these two, highly publicized cases have been decided by this court leads me to several troubling conclusions. First, a majority of this court has become increasingly desensitized to the interests of the average Illinois consumer. There is little doubt in my mind that these decisions will send a chill wind over consumer protection. That said, I am not blind to the very real problems that exist in the world of class action lawsuits. As I stated in my separate opinion in Avery, I share in the concerns that the class action vehicle has the potential to be greatly abused. However, that concern must not transcend the rules of law that have been set by this court in past decisions. In my view, this means that all cases, even class actions filed in our Fifth District, must be guided by the same long-recognized standards of review, rules of construction, procedural requirements, and burdens of proof that have guided all other types of actions over the years. Aspects of the court's opinion today and in its opinion in Avery cause me to fear that a majority of my colleagues will continue to hold large class actions to different standards in an effort to reduce the perception that the Illinois court system serves as a playpen for the disingenuous class action practitioner.
JUSTICE KILBRIDE joins in this dissent.
JUSTICE KILBRIDE, also dissenting:
I fully agree with all aspects of Justice Freeman's dissent and I join in it. I write separately to express additional concerns with the majority opinion.
The majority notes that neither party has offered argument regarding the meaning of the phrase "by laws administered by" in section 10b(1) of the Consumer Fraud Act. Slip op. at 49. The majority then concludes that the phrase reflects legislative intent requiring deference to agency policy and practice in its performance of duties delegated by Congress or the General Assembly. Slip op. at 49. As support for this conclusion, the majority asserts the legislature would have referred to state or federal statutes, rather than laws, if it intended to require that specific authorization be contained in the law itself. Slip op. at 49- 50. The majority fails to explain or describe any conceptual difference between "laws" and "statutes." The majority's conclusion therefore does not logically follow from the premise. Further, although the majority acknowledges that the term "specifically authorized" in the statute "indicates a legislative intent to require a certain degree of specificity or particularity in the authorization" (slip op. at 49), it points to no specificity or particularity in the claimed authorization
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