Remedies Available Under the CFA Lawyer Manual

Remedies under the CFA

The Act provides for civil and criminal liability and a private cause of action to all persons who suffer damage as a result of a violation of the Act. Ashkanazy v. I Rokeach & Sons, Inc. 757 F. Supp. 1527 (1977); Bank One Milwaukee v. Sanchez, 336 Ill. App. 3d 319 (2 Dist 2003).

Private right of action

The CFA allows any person a private right of action for actual damages and "for any other relief which the court deems proper."

The elements of a private cause of action are:

1. The deceptive act or practice by the person making the statement;
2. The person making the statement intended the other person to rely on the statement;
3. The deception occurred in the course of conduct involving trade of commerce; and
4. Actual damages to the person hearing the statement proximately caused by the deception.

The terms of the Act are liberally construed and have generally been understood to include punitive damages. Warren v. LeMay, 491 N.E.2d 464, 483 (5th Dist. 1986). Actual damages can include loss of use of the car, measured by the reasonable cost of a rental. Gent v. Collinsville Volkswagen, Inc., 451 N.E.2d 1385 (5th Dist. 1983). The courts have allowed compensatory damage awards under the CFA to include recovery for aggravation and inconvenience. Roche v. Fireside Chrysler-Plymouth, 235 Ill. App.3d 70, 86, 660 N.E.2d 1218, 1228 (2nd Dist. 1992). The CFA generally does not require proof of a public injury, a pattern or an effect on consumers in general. 

Standard of proof

The standard of proof under the Consumer Fraud Act is the preponderance of the evidence standard. Cuculich v. Thomson Consumer Electronics, Inc., 317 Ill. App. 3d 709, 717 (1st Dist. 2000).

Special provisions for car dealers

Numerous provisions were added to the CFA in 1993 and 1996 to lessen its impact on new car dealers. The Illinois Supreme Court, in Allen v. Woodfield Chevrolet, Inc., 208 Ill.2d 12 (2003), declared all of these provisions unconstitutional.  But the legislature has yet to remove these provisions from the statute.  See 815 ILCS 505/10a(a)(f)(g)and (h).

No right to jury trial in state court

The Consumer Fraud Act does not permit jury trial in state court.  Martin v. Heinhold Commodities, Inc., 163 Ill 2d. 33, 75 (1994).  But federal courts, using a different standard, have allowed CFA cases to go to jury trial.  Kremers v. The Coca-Cola Company, 714 F.Supp.2d 912 (2009).

Attorneys fees

The Act gives express authority to award attorney fees and costs to prevailing plaintiffs. 815 ILCS 505/10a(c).

Statute of limitations

Action must be commenced within 3 years after the cause of action accrued. 815 ILCS 505/10a(e). The limitations period is tolled during the pendency of related actions brought by the Attorney General or States Attorney, and for 1 year thereafter. The statute of limitations begins to run when a person knows or reasonably should know of his injury and also knows, or reasonably should know, that it was wrongfully caused. Sommer v. United Savings Life Insur. Co., 471 N.E.2d 606, 615 (2d Dist 1984).

Injunctive relief

Injunctive relief under the CFA is available to a person bringing suit under the Act, as well as to the Attorney General or a State's Attorney. 815 ILCS 505/10a(c).

Practice considerations

Do actual damages justify the litigation costs? Is there a potential award of punitive damages? Is injunctive relief feasible? Can consumer claims be aggregated in a class action? How do you calculate actual damages? Consumers should argue that the statute should be liberally construed to authorize the broadest damage remedy possible. Consider "loss-of-bargain" damages, rather than out-of-pocket damages. Also, consider proximate damages. For example, in a car case, damages may be not only the purchase price, but repair costs, alternate transportation, storage, and other inconveniences.