specially concurring:
I agree with the majority’s decision to reverse the appellate court, and I further agree with the majority’s reasons for doing so. The majority correctly concludes that summary judgment for defendant was proper because “deceptive advertising cannot be the proximate cause of damages under the Act unless it actually deceives the plaintiff.” 208 Ill. 2d at 525. I write separately, however, because the majority has included confusing and misleading dicta at the end of the opinion. After determining the proper outcome under the facts of this case, the majority endeavors to adjudicate a hypothetical case with different facts. In resolving this hypothetical, the majority sets forth a rule of law that contradicts the one in the controlling portion of the opinion. Because I do not agree that we should completely undo the opinion that we just finished delivering, I cannot join the majority opinion in its entirety.
In the main portion of the opinion, the majority properly rejects plaintiffs’ “market theory” of causation. The majority correctly describes this court’s holdings in Zekman and Oliveira and their effect on the allegations in this case. Here, the plaintiffs’ complaint failed to allege that they were actually deceived by the advertising. Thus, their case cannot survive summary judgment.
The majority opinion goes awry at the end when the majority explains what the result would have been if plaintiffs would have pled different facts:
“Although proof of actual deception of a plaintiff is required, this is not to say that the deception must always be direct between the defendant and the plaintiff to satisfy the requirement of proximate cause under the Act. For instance, if the product literature had in fact deceived a particular builder, architect, or contractor, resulting in the installation of defective siding on a home, the damage could arguably have occurred ‘as a result of the indirect deception, as required by section 10a(a) of the Act (815 ILCS 505/10a(a) (West 2000)). In those circumstances, the purchaser, who may have no independent knowledge of the qualities or expected performance standards of siding, is deceived because of the deception of the builder, architect or contractor, who reasonably should have had correct knowledge.” 208 Ill. 2d at 525-26.
Of course, this whole passage and everything that comes after it is dicta, and we should not be issuing an advisory opinion on what the result might be in a different case. See Oliveira, 201 Ill. 2d at 157 (advisory opinions are to be avoided); Best v. Taylor Machine Works, 179 Ill. 2d 367, 470 (1997) (generally, this court will not “engage in speculative analysis or *** render an advisory opinion *** where, as in the instant case, such analysis or opinion is not necessary for the disposition of the cause”). Putting that problem aside, however, the analysis in this paragraph is directly contrary to the rule we established in Zekman, Oliveira, and the non-dicta portions of the majority opinion. Indeed, this analysis actually revives the dissent in Oliveira, a position that was rejected less than two years ago.
In Oliveira, we rejected the plaintiffs attempt to rely on a “market theory” of causation under the Consumer Fraud and Deceptive Business Practices Act. A significant problem was that plaintiff had never seen the ads upon which he purported to base his claim:
“Indeed, plaintiff could not allege that defendant’s advertisements deceived him or misled him as to what he was receiving when he made his purchase. Because plaintiff does not allege that he saw, heard or read any of defendant’s ads, plaintiff cannot allege that he believed that he was buying gasoline which benefitted the environment or improved engine performance.” (Emphasis added.) Oliveira, 201 Ill. 2d at 154-55.
We then reiterated that the problem with plaintiff’s theory was that “purchasers of defendant’s premium gasolines who never saw the ads and, thus, were ‘not deceived’ [would] also have valid claims.” Oliveira, 201 Ill. 2d at 155. This was consistent with our decision in Zekman, in which we held that the plaintiff could not succeed on his claim that he was deceived by AT&T’s manner of billing for “900” number calls when he had not seen the bills: “In addition, we note plaintiffs statement in his deposition that he did not read or pay the bills himself, delegating those duties to his secretary. Accordingly, plaintiff could not have been misled by the allegedly deceptive nature of the bills.” Zekman, 182 Ill. 2d at 375.
Chief Justice Harrison dissented in Oliveira, particularly taking issue with the majority’s assertion that it must have been the plaintiff who was deceived by the advertising:
“The majority’s justification for reaching a contrary result is misguided. While it is true that someone must have been deceived in order to sustain a private cause of action for damages under the Consumer Fraud and Deceptive Practices Act, there is no requirement in the statute that it be the plaintiff. If others were deceived and acted in reliance on the deception in a way that harmed the plaintiff, the plaintiff is entitled to seek recovery for his damages under the Act even if he, himself, was not misled.” Oliveira, 201 Ill. 2d at 158 (Harrison, C.J., dissenting).
No other Justice joined Chief Justice Harrison’s dissent, but it finds new fife in the majority’s dicta.
Today’s case presented us with the opportunity to clarify once and for all the meaning of our cases in this area. Instead, the majority has issued an opinion that will further muddy the water. What will the bench and bar make of this case law in the future? In the main part of this opinion, we say for the third consecutive time that deceptive advertising cannot be the proximate cause of damages under the Act unless it actually deceives the plaintiff. The opinion then concludes with the seeming assertion that, if the facts were different, we would overrule Oliveira and go with the position expressed by Chief Justice Harrison in his dissent — that “[i]f others were deceived and acted in reliance on the deception in a way that harmed the plaintiff, the plaintiff is entitled to seek recovery for his damages under the Act even if he, himself, was not misled.” Oliveira, 201 Ill. 2d at 158 (Harrison, C.J., dissenting). The majority notes that in his dissent to the appellate court opinion, Justice Turner stated that he found “the majority’s insouciance to our supreme court’s decision in Oliveira vexing.” 336 Ill. App. 3d at 546 (Turner, J., dissenting). I find this court’s insouciance to our decision in Oliveira vexing.
For these reasons, I concur with the majority’s holding in this case, but cannot join the contradictory advisory opinion tacked on to the end.
JUSTICE GARMAN joins in this special concurrence.