dissenting:
My colleagues glibly proclaim “no harm, no foul” in concluding that the plaintiff failed to establish that it suffered any damages. The majority finds no harm because they reason that the defendants could have increased the price of the CD-ROMs legitimately anyway under the subscription agreement to a price that would have included the amount the plaintiff claims the defendants improperly charged for shipping and handling. The majority believes that the plaintiff therefore still got the benefit of the bargain.
This analysis is flawed. Disguising a charge that the defendants were not legally entitled to under the agreement before November 1, 1997, and, thereafter, surreptitiously misrepresenting the charge as a price increase are precisely the kinds of deception that both the Illinois Consumer Fraud Act and the Minnesota consumer fraud statute were intended to protect the public against. These actions amount to an overcharge, pure and simple.
The fact that the defendants did not pay any state sales tax on the $6 charge prior to 1999 (which it was required to do if the charge was not for shipping, transportation, and handling), coupled with the defendants’ own internal memoranda, establishes that the $6 charge was in reality for shipping-and-handling costs.
I believe that there was ample evidence to support the trial court’s finding that the defendants’ actions amounted to an overcharge. I further believe that the plaintiff put on credible evidence of the overcharge damages. The judgment was not therefore manifestly against the weight of the evidence, and it should have been upheld. See Croft v. Lamkin, 112 Ill. App. 2d 321, 251 N.E.2d 88 (1969); In re Marriage of Divelbiss, 308 Ill. App. 3d 198, 719 N.E.2d 375 (1999).
I would consequently affirm the trial court’s judgment awarding compensatory damages and costs and further affirm the court’s denial of attorney fees and prejudgment interest.