Mulligan v. QVC

THIRD DIVISION
May 7, 2008

No. 1-07-0616

ROSEMARY MULLIGAN, ) Appeal from
Individually and on Behalf of ) the Circuit Court
All Others Similarly Situated, ) of Cook County.
)
Plaintiff-Appellant, )
) No. 04 CH 03620
v. )
)
QVC, INC., a Corporation, ) Honorable
) Dorothy K. Kinnaird,
Defendant-Appellee. ) Judge Presiding.

JUSTICE THEIS delivered the opinion of the court:

Plaintiff Rosemary Mulligan brought this putative consumer class action lawsuit against

defendant QVC, Inc., for violations of the Illinois Consumer Fraud and Deceptive Business

Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)) and unjust

enrichment. Mulligan alleged that QVC’s listed “retail value” overstated the prevailing market

price for certain products it sold and falsely created the impression that consumers were

receiving a bargain by purchasing at lower QVC prices. The circuit court denied Mulligan’s

motions for class certification, finding that individual issues of law and fact predominated.

Thereafter, the circuit court granted QVC’s motion for summary judgment on Mulligan’s

individual claims and denied her cross-motion for summary judgment, ruling that Mulligan

failed to create a genuine issue of material fact to support the elements of her consumer fraud
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and unjust enrichment claims.

On appeal, Mulligan contends that the circuit court erred in granting summary judgment

because she has presented sufficient facts to support each element of her cause of action.

Additionally, she maintains that the circuit court abused its discretion in denying class

certification because the common issue of QVC’s deceptive comparative pricing practice

predominates over any individual issues.

BACKGROUND

QVC sells various consumer products through its nationwide television programming and

its Internet web site. In offering its products for sale, it generally uses a comparative pricing

system. For 70% of its products, QVC advertises a “retail value” for the product, then offers the

product to the consumer at a lower, discounted QVC price or at an even lower “special price.”

QVC’s viewer education spot on television provides a definition for “retail value” as follows:

“When you see ‘retail value’ for an item, that figure represents

either an actual comparison-shopped price or the price QVC

believes that the same or a comparable product would be offered

by department stores or other retailers using a customary markup

for that product category. The ‘retail value’ does not necessarily

represent the prevailing retail price in every community, or the

price at which the item was previously sold by QVC.”

Mulligan purchased over 200 products and several items of jewelry from QVC over the

years. Specifically relevant to this cause of action, on April 1, 2003, she purchased an “Ultrafine

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Cigar Band Ring” for $37.38. QVC listed a retail value for this product of $60. On May 17,

2003, she purchased a “Jade and Gemstone Bypass Ring” for $38.12. QVC listed a retail value

for this product of $55. On July 19, 2003, Mulligan purchased a “Geometric Flexible Link

Bracelet” for $28.98. QVC listed a retail value for this product of $55. On January 2, 2004, she

purchased a “Pave Enamel Flex Bracelet” for $26.75. QVC listed a retail value for this product

of $39.

Mulligan’s jewelry purchasing decisions were based upon many factors, including

whether the product was appealing, affordable, an impulse purchase, on sale, and whether she

was searching for a particular product. She also considered the host’s description of the product.

Mulligan watched QVC programming for various reasons, including better prices, the variety of

products, and “of course, it was convenient shopping. Everything is right there in front of you.”

There were particular features of the show that she liked. “When you watched it, they made you

feel like, you know, you were part of this family.”

Mulligan had seen QVC’s televison spot which explains the definition of “retail value.”

At the time she purchased products with a listed retail value, “[s]ometimes [she] thought [the

retail value] seemed high ***. It just seemed like that was awfully high--you know, [she’d] see

it and think it was high for some item, higher than what [she] would have thought it would have

been.” However, that knowledge did not prevent her from buying the product because she

thought that the price she actually paid was a fair price.

She would have purchased the products from QVC even if QVC listed no retail value, but

the retail value impacted her purchasing decisions because she believed she was getting a

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bargain at the QVC prices. If she could have bought the products in a store for the same amount

or less than what she paid for it at QVC, she would have gone to the store instead of paying the

extra shipping and handling fee to buy it from QVC.

Mulligan does not dispute that she continued to purchase products from QVC even after

filing this lawsuit, and acknowledges that a consumer could not legitimately claim to be actually

deceived by QVC’s listed retail values if the consumer continued to purchase the products after

suing QVC.

On February 27, 2004, Mulligan filed her class action lawsuit against QVC, seeking

damages under the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 2004)) and under a

theory of unjust enrichment. Thereafter, she filed a motion for certification of a nationwide

class. On June 6, 2005, the trial court denied the motion, finding that individual issues of

proximate cause and actual damage predominated. This court denied Mulligan’s petition for

leave to appeal that ruling. Thereafter, Mulligan filed a second motion for class certification

limited to a class of Illinois consumers who purchased specific products sold by QVC. The trial

court also denied that motion, again finding that individual issues predominated.

Subsequently, QVC filed its motion for summary judgment on Mulligan’s individual

claims, arguing that Mulligan had adduced no evidence of prices at which other retailers had sold

any of the products she had bought from QVC and, therefore, could not prove a deceptive act or

practice or resulting damage. Additionally, QVC argued that, because Mulligan purchased

products from QVC for a variety of reasons, she could not establish that QVC’s alleged

deception proximately caused her actual damage.

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In response, Mulligan presented an expert jewelry appraiser. Heidi Harders testified in

her deposition that she determined comparable prices for the products Mulligan purchased from

QVC by using a cost and a market approach to valuation. Harders estimated the retail value of

the cigar band ring at $25 to $35. With respect to the sterling jade and gemstone ribbed bypass

ring, she estimated its retail value at between $30 and $40. With respect to the flexible link

bracelet, Harders estimated its retail value at between the $30 to $40 range. With respect to the

enamel bracelet, she estimated its retail value at between $20 to $30.

In doing her appraisal, Harders did not factor in any applicable sales tax, shipping and

handling, or other additional costs. She agreed that the margin of error on her appraisal could be

$5 higher than the appraised prices. Harders also acknowledged that there were other factors to

consider in determining the retail value, including the retailers’ overhead, the quality of the

product, and the demand for the product at a given time.

In her response, Mulligan also presented the deposition testimony of QVC’s retail

coordinator to establish several inherent inaccuracies in the process by which QVC obtains its

retail values, including: (1) the limited market in which QVC finds its comparable goods despite

it being a national advertiser; (2) the limited “category shops” conducted each year; (3) the way

QVC treats comparable goods that are on sale; and (4) the small percentage of goods for which

they find comparable products.

As a result, Mulligan argued that she did not receive the benefit of the bargain QVC

claimed she had received and, therefore, calculated her damages as the difference between the

actual retail value as expressed by Harders and the value those items would have had if the QVC

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listed retail value was in fact correct. The following chart summarizes those values.

Product QVC Retail Values Purchase Price Harders’ Retail Values
Cigar Band Ring $60 $37.38 $25-35
Bypass Ring $55 $38.12 $30-40
Flexible Link Bracelet $55 $28.98 $30-40
Pave Enamel Bracelet $39 $26.75 $20-30

In reply, QVC presented a report by jewelry appraiser Lorraine Oakes. Oakes conducted

an independent appraisal of the retail value of the four products Mulligan purchased. Her report

was critical of Harders’ methodology and included evidence of comparable priced items in the

Chicago area that were within or higher than QVC’s listed retail values.

On January 31, 2007, after briefing and oral argument, the circuit court granted QVC’s

motion for summary judgment and denied Mulligan’s cross-motion. The court found that

Mulligan failed to create a genuine issue of fact to support evidence of a deceptive practice,

proximate cause, or actual damage. Mulligan filed this timely appeal.

ANALYSIS

Mulligan contends that the circuit court erred in granting summary judgment on her

Consumer Fraud Act and unjust enrichment claims because the court improperly resolved

disputed issues of fact. Summary judgment is appropriate where the “pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.” 735

ILCS 5/2-1005(c) (West 2004). In ruling upon a motion for summary judgment, a court has a

duty to construe the evidence strictly against the movant and liberally in favor of the nonmovant.

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Chatham Foot Specialists, P.C. v. Health Care Service Corp., 216 Ill. 2d 366, 376, 837 N.E.2d

48, 55 (2005). Nevertheless, “[i]f the plaintiff fails to establish any element of the cause of

action, summary judgment for the defendant is proper.” Bagent v. Blessing Care Corp., 224 Ill.

2d 154, 163, 862 N.E.2d 985, 991 (2007). We review the grant of summary judgment de novo.

Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 524, 805 N.E.2d 213, 217 (2004).

Section 2 of the Consumer Fraud Act provides 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 2004). Section 10a(a) of the

Act authorizes private causes of action for practices proscribed by section 2. Section 10a(a)

states, in pertinent 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 2004).

To prove a private cause of action under section 10a(a) of the Act, a plaintiff must

establish the following: “(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.” Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d

100, 180, 835 N.E.2d 801, 853 (2005). The Act is to be construed liberally to effect its purposes.

815 ILCS 505/11a (West 2004).

Consistent with Mulligan’s theory, state and federal regulations recognize the possibility

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that retail price comparisons can be deceptive and misleading. See, e.g., 14 Ill. Adm. Code §470

adopted at 13 Ill. Reg. 11441 (eff. June 29, 1989) (retail pricing);16 C.F.R. §233.2 (2008) (FTC

guides against deceptive pricing). Illinois has adopted regulations specifically relevant to

Mulligan’s cause of action. The Illinois Attorney General has recognized:

“Price comparison advertising is a form of advertising used

in the sale of products whereby current prices are compared with *

** the prices of other sellers, or other stated values, to demonstrate

price reduction or cost savings. It is the intent of this Part to

ensure that the comparative price used in any price comparison

advertisement provides accurate information and meaningful

guidance to the consumer. The use of misleading price

comparisons is injurious to both the consuming public and

competitors and is an unfair or deceptive act and an unfair method

of competition under Section 2 of the Consumer Fraud and

Deceptive Business Practices Act.” 14 Ill. Adm. Code §470.110,

adopted at 13 Ill. Reg. 11441 (eff. June 29, 1989).

More specifically, the following regulations identify the circumstances under which a seller’s

comparison prices amount to a deceptive practice under the Act:

“It is an unfair or deceptive act for a seller to compare his

price with the price at which he or any other seller is offering a

comparable product (for example: ‘69, compare at $99,’

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‘[c]omparable value $99') unless:

(a) The comparable product is currently being

offered at the stated higher comparative price *** by a reasonable

number of other sellers in the sellers’ trade area *** ; and

(b) There are no substantial differences in quality,

grade, materials, or craftsmanship between the comparable product

and the product offered by the seller.” 14 Ill. Adm. Code

§470.270, adopted at 13 Ill. Reg. 11441 (eff. June 29, 1989).

“Trade area” is defined in the regulations as “the geographic area where the seller’s outlets are

located and where the seller’s advertisements are disseminated.” 14 Ill. Adm. Code §470.120,

adopted at 13 Ill. Reg. 11441 (eff. June 29, 1989). These regulations have the force of law in

Illinois. 815 ILCS 505/4 (West 2004); B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 168 F.3d

967, 971 (7th Cir. 1999); United Consumers Club, Inc. v. Attorney General, 119 Ill. App. 3d

701, 705, 456 N.E.2d 856, 859 (1983).

Mulligan maintains that she has presented a genuine issue of fact to support a deceptive

comparative pricing practice based upon Harders’ testimony that the retail values for the four

specific items Mulligan purchased were significantly lower than QVC’s stated retail values.

QVC’s expert attacks the basis of Harders’ opinions and the methodology she applies to reach

those opinions, arguably creating a factual dispute regarding whether comparable products were

being offered at the stated higher comparative price “by a reasonable number of other sellers in

the sellers’ trade area.”

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Nonetheless, even if we were to accept Mulligan’s expert testimony that the retail values

were overstated, we find that Mulligan failed to create a genuine issue of material fact to support

the elements of actual damage and proximate cause, and that QVC is entitled to judgment as a

matter of law.

Although the Attorney General may prosecute a violation of the Act without showing

that any person has in fact been damaged, it is well settled that in order to maintain a private

cause of action under the Consumer Fraud Act, a plaintiff must prove that she suffered actual

damage as a result of a violation of the Act. Avery, 216 Ill. 2d at 195, 835 N.E.2d at 859.

Mulligan focuses her argument on the proper measure of calculating her damages and argues that

the benefit-of-the-bargain rule applies here.

We acknowledge that in the context of claims for consumer fraud, Illinois courts have

adopted the benefit-of-the-bargain rule as applied to common law fraudulent misrepresentation,

whereby damages are generally calculated by assessing the difference between the actual value

of the property sold and the value the property would have had at the time of the sale if the

representations had been true. Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill. 2d 179,

195, 538 N.E.2d 530, 538 (1989). The rule is based on the theory that a defrauded party is

entitled to the benefit of his bargain in a transaction and should be placed in the same position

that he would have occupied had the false representations on which he acted been true.

Schwitters v. Springer, 236 Ill. 271, 274, 86 N.E.102 (1908). Under the rule, damages are

determined by looking at the loss to the plaintiff rather than the gain to the defendant. Petty v.

Chrysler Corp., 343 Ill. App. 3d 815, 823, 799 N.E.2d 432, 439 (2003).

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Here, Mulligan argues that her damages should be calculated based upon the difference

between the actual retail value of the jewelry and the value those items would have had if the

QVC listed retail value was accurately stated. However, Mulligan’s damages model is flawed

because before she can calculate her damages, she must establish that she in fact suffered actual

damage. 815 ILCS 505/10(a) (West 2004). Whereas damages are the recompense or

compensation awarded for the damage suffered, damage is the loss, hurt, or harm which results

from the injury. Giammanco v. Giammanco, 253 Ill. App. 3d 750, 758, 625 N.E.2d 990, 997

(1993). Thus, before we can apply the benefit-of-the-bargain rule, we must first consider

whether Mulligan has been actually harmed as a result of QVC’s alleged deceptive practice.

We note that no reported decision in the country has yet considered a similar private

cause of action by a consumer for comparative price deception. These claims have either been

brought by the Federal Trade Commission, the various states Attorneys General or by a

competitor as an unfair trade practice claim. See, e.g., Niresk Industries, Inc. v. Federal Trade

Comm’n, 278 F.2d 337, 340 (7th Cir. 1960) (FTC ordered mail order distributor to cease and

desist from falsely representing appliance as being offered at a reduced price), cert. denied, 364

U.S. 883, 5 L. Ed. 2d 104, 81 S. Ct. 173; Giant Foods Inc. v. Federal Trade Comm’n, 322 F.2d

977 (D.C. Cir. 1963) (FTC ordered retailer to cease and desist from using deceptive

manufacturer’s list price in advertising); B. Sanfield, Inc., 168 F.3d 967 (7th Cir.1999)

(competitor sued jewelry retailer for deceptive advertising but court on remand ultimately found

no damages); May Department Stores Co. v. State ex rel. Woodard, 863 P.2d 967 (Colo. 1993)

(Colorado Attorney General sought injunction and civil penalties to punish the retailer for

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deceptive comparative pricing policies). Mulligan has also failed to cite any authority allowing

recovery for the misrepresentation of savings in a consumer transaction.

We begin our analysis by examining the bargain that Mulligan made in the context of the

procedural posture of the case. She agreed to purchase some jewelry items for a certain price.

At best, QVC induced her to purchase those items at that price by representing to her a certain

savings from what it would cost her to purchase the items in the marketplace. Nevertheless,

taking Harders’ values for the jewelry items Mulligan purchased, Mulligan received the benefit

of her bargain because the prices she paid were indeed lower than the prices at which she

purportedly could have purchased comparable products in the marketplace. Even if QVC’s

alleged inflated retail values may have induced Mulligan into altering her purchasing decision

because of the represented bona fide savings, she suffered no actual pecuniary loss. Thus, she

cannot establish that the value of what she received was less than the value of what she was

promised. See Giammanco, 253 Ill. App. 3d at 759, 625 N.E.2d at 998.

The cases cited by Mulligan illustrate the point because in each case, the plaintiff did not

receive the benefit of the bargain. The plaintiffs were harmed because they paid more than the

actual value of the property. See, e.g., Kleinwort Benson North America, Inc. v. Quantum

Financial Services, Inc., 285 Ill. App. 3d 201, 673 N.E.2d 369 (1996) (plaintiff purchased

company for premium over book value in reliance on false representations about the company’s

assets); Munjal v. Baird & Warner, Inc., 138 Ill. App. 3d 172, 485 N.E.2d 855 (1985) (plaintiff

paid more than the actual value of the real estate misrepresented to have no defects); Gerill

Corp., 128 Ill. 2d 179, 538 N.E.2d 530 (1989) (plaintiff paid more than the actual value for a

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company misrepresented to have few liabilities). Here, Mulligan paid less than the actual value

of the property and, therefore, had no pecuniary loss in the bargain.

Mulligan relies heavily on Giammanco to support her contentions. However, that case

involved a unique set of circumstances, highly distinct from the transaction presented in this

case. There, two brothers, Peter and Joseph, jointly owned a business and were fighting. Peter

offered to buy Joseph out of the business, but Joseph refused to sell to Peter. They ultimately

agreed to sell to an independent third party. Unbeknownst to Joseph, Peter had a side-deal with

the third party and essentially ended up with the business after it was sold to the third party.

Joseph sued Peter and the third party for fraud. Giammanco, 253 Ill. App. 3d at 751-753, 625

N.E.2d at 993-995. The trial court held that Joseph failed to adequately plead damages.

Giammanco, 253 Ill. App. 3d at 757, 625 N.E.2d at 997.

On appeal, the court recognized that the benefit-of-the-bargain rule is normally only

applied in fraud cases where a buyer has been misled about a physical or pecuniary aspect of the

transaction, and acknowledged that the rule did not apply to Joseph because he was not misled in

that way. Giammanco, 253 Ill. App. 3d at 762, 625 N.E.2d at 1000. However, under the unique

circumstances of the case, the court found that Joseph’s insistence on an independent buyer was

so fundamental to the bargaining process and that Peter’s alleged scheme altered Joseph’s

fundamental assumption regarding the party with whom he agreed to bargain. Thus, the court

held that Joseph’s right to bargain with whomever he desired, and to know with whom he was

bargaining, was of a pecuniary character, and the deprivation of that right constituted damage for

which Joseph was entitled to recover. Giammanco, 253 Ill. App. 3d at 762-63, 625 N.E.2d at

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1000-002.

In contrast, Mulligan knew with whom she was dealing, accepted the jewelry at a

particular price for a myriad of different reasons, and ultimately received the benefit of her

bargain. As the trial court noted, the only product for which the price Mulligan paid does not fall

below Harders’ retail value range is the cigar band ring, which purportedly could have cost as

much as $2.38 less than what Mulligan paid for it. However, given that Mulligan’s own expert

indicated that her retail value appraisal had a $5 margin of error, Mulligan has not presented any

evidence that she sustained any actual damage. “ ‘If the plaintiff is not materially harmed by the

defendant's conduct, however flagrant it may have been, there may be no recovery.’ ”

Giammanco, 253 Ill. App. 3d at 762, 625 N.E.2d at 1000, quoting Shults v. Henderson, 625 F.

Supp. 1419, 1426 (W.D.N.Y. 1986).

Furthermore, to allow Mulligan to recover damages here would bestow a windfall on her.

As it has been stated, the purpose of compensatory damages is not to punish defendants or

bestow a windfall upon plaintiffs, but rather to make the plaintiff whole. Best v. Taylor Machine

Works, 179 Ill. 2d 367, 406, 689 N.E.2d 1057, 1076 (1997). Here, providing Mulligan with

compensatory damages is not necessary to make her whole.

Additionally, we reject Mulligan’s argument that we should consider the cost of shipping

and handling in our analysis of damage. Neither expert applied it in her analysis. Harders

explicitly excluded “additional expenses which might be incurred in purchasing,” and QVC’s

listed retail value did not include shipping and handling. Moreover, to consider the cost of

shipping and handling of the QVC products would require a fair comparison of the market price

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which would also include additional costs, by way of, for example, the cost of transportation to

the store in Chicago where her expert claims she could have purchased comparable products, or

the shipping and handling if the retailer was an Internet retailer. Thus, it would be inappropriate

to consider shipping and handling where such a theory does not account for any of the additional

costs Mulligan would have incurred had she purchased the products from other retailers.

Accordingly, for all of the foregoing reasons, Mulligan has failed to present a genuine issue of

material fact that she was actually harmed by the alleged deception and, therefore, summary

judgment in favor of QVC was proper on that basis as a matter of law.

Moreover, under a Consumer Fraud Act claim, the plaintiff must have actually been

deceived by the defendant’s alleged misrepresentations of fact. Barbara’s Sales, Inc. v. Intel

Corp., 227 Ill. 2d 45, 60, 879 N.E.2d 910, 919 (2007); Shannon v. Boise Cascade Corp., 208 Ill.

2d 517, 525, 805 N.E.2d 213, 217 (2004). As explained in Price v. Philip Morris, Inc., 219 Ill.

2d 182, 269-70, 848 N.E.2d 1, 52 (2005), the deception must have been the cause-in-fact or the

“but for” cause of the injury. The relevant inquiry is whether the harm would have occurred

absent the defendant’s conduct. Evans v. Shannon, 201 Ill. 2d 424, 434-35, 776 N.E.2d 1184,

1190 (2002). Although proximate cause is generally a question of fact for the jury, the lack of

proximate cause may be determined by the court as a matter of law where there is no genuine

issue of material fact or only one conclusion is clearly evident. Williams v. University of

Chicago Hospitals, 179 Ill. 2d 80, 88, 688 N.E.2d 130, 134 (1997). Thus, in the context of this

case, Mulligan must present some evidence that the deception created by the allegedly overstated

retail value was the “but for” cause of her purchasing decisions. In other words, she must show

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that she would not have purchased the jewelry absent the inducement of the discounted price.

Mulligan stated that she would have indeed purchased the jewelry regardless of whether

QVC listed a retail value. She acknowledged that she purchased the jewelry from QVC for a

myriad of different reasons unrelated to the savings, including the desire for the item, the

convenience of shopping from her home, and the hosts’ descriptions. Additionally, Mulligan

was aware that the retail value displayed by QVC did not “necessarily represent the prevailing

retail price in every community.” She admitted that she thought the retail prices that QVC often

quoted seemed high, evidencing that she was aware that the retail value may not reflect the

actual prices in her community. Accordingly, based upon the undisputed facts, Mulligan cannot

establish that “but for” the representations about the retail value, she would not have purchased

the jewelry. Consequently, because there is no genuine issue of material fact remaining,

summary judgment was also proper on that basis as a matter of law.

With respect to Mulligan’s claim for unjust enrichment, we note that Mulligan has not

argued any points on appeal in support of her claim and, therefore, has waived review of this

claim on appeal. 210 Ill. 2d R. 341(h)(7). Notwithstanding, this court has held that such a claim

is not a separate cause of action that, standing alone, would justify an action for recovery.

“‘Rather, it is a condition that may be brought about by unlawful or improper conduct *** such

as fraud, ***, and may be redressed by a cause of action based upon that improper conduct.’ ”

Alliance Acceptance Co. v. Yale Insurance Agency, Inc., 271 Ill. App. 3d 483, 492, 648 N.E.2d

971, 977 (1995), quoting Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co., 137

Ill. App. 3d 84, 90-91, 484 N.E.2d 349, 354 (1985). Thus, where the underlying claim for fraud

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is deficient, we have dismissed claims for unjust enrichment. See, e.g., Mosiman v. BMW

Financial Services NA, Inc., 321 Ill. App. 3d 386, 392, 748 N.E.2d 313, 318 (2001). As applied

to the present case, in the absence of a private cause of action for consumer fraud, unjust

enrichment cannot form the basis for liability. Therefore, the trial court properly granted

summary judgment in favor of QVC on that basis as well.

As explained in Avery, Mulligan’s failure to establish a private right of action is fatal not

only to her cause of action, but to the entire class action. When a class representative has not

proven his claim for consumer fraud, the consumer fraud claim asserted on behalf of the class

cannot stand. Avery, 216 Ill. 2d at 203, 835 N.E.2d at 863. Accordingly, for all of the foregoing

reasons, we affirm the judgment of the circuit court granting summary judgment in favor of QVC

and denying summary judgment in favor of Mulligan, and affirm the circuit court’s denial of

class certification.

Affirmed.

QUINN, P.J., and GREIMAN, J., concur.

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