dissenting:
I dissented in the majority opinion as modified upon denial of rehearing (Shannon, 328 Ill. App. 3d at 631-33, 766 N.E.2d at 1144-45 (Turner, J., dissenting)), and vacated by the Illinois Supreme Court with directions to reconsider (Shannon, 201 Ill. 2d 615 (2002)). Upon reconsideration, the majority reinstates its original decision. I again respectfully dissent.
I find the majority’s insouciance to our supreme court’s decision in Oliveira vexing. As the majority notes, in Oliveira, the supreme court stated explicitly that a plaintiff pleading a private cause of action under the Act must allege that he or she was deceived. 336 Ill. App. 3d at 537. Nevertheless, the majority continues to ignore, as it did in its original reversal, that plaintiffs here do not allege they were deceived. Plaintiffs instead rely on a “market theory” of causation, under which they assert defendant’s deceptive advertising created a market for defendant’s siding that would not have otherwise existed and thus resulted in defendant’s siding being installed on plaintiffs’ homes.
In Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164, our supreme court noted two infirmities with the plaintiffs “market theory” that produced results at odds with the court’s earlier decision in Zekman. The first one is pointed out by the majority, where it states “[ujnder the Oliveira plaintiffs ‘ “market theory” ’ of causation, even purchasers of Amoco’s gasoline who saw the ads but never believed them, i.e., those who ‘ “knew the truth,” ’ would have valid claims under section 10a(a) of the [Act].” 336 Ill. App. 3d at 536, quoting Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164. Here, we have the same infirmity because plaintiffs’ “market theory” requires us to assume some unknown individuals at some time saw the ads. Accordingly, some of those unknown individuals may not have believed the ads but still purchased the siding anyway. The people whose homes the siding was installed upon would still have a valid claim under the Act under plaintiffs’ theory.
Additionally, the majority believes this infirmity does not exist because “a purchaser who buys the home at a discount because of known problems with the siding has not been damaged and would have no claim.” 336 Ill. App. 3d at 537. However, as noted in my previous dissent, several of the plaintiffs in this case knew they had damaged siding when they purchased their homes. Shannon, 328 Ill. App. 3d at 633, 766 N.E.2d at 1145 (Turner, J., dissenting). Moreover, the majority’s analysis is irrelevant because plaintiffs do not assert that anyone, including defendant, made deceptive representations about their homes’ siding to them before they purchased their homes.
The majority attempts to dismiss the second infirmity, that “purchasers of defendant’s premium gasolines who never saw the ads and, thus, were ‘not deceived’ also have valid claims.” Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164. The majority asserts “Oliveira does not lay down the inflexible rule that plaintiff must have read the ads.” 336 Ill. App. 3d at 537. However, in Zekman, 182 Ill. 2d at 376, 695 N.E.2d at 862, the supreme court found the plaintiff had not demonstrated proximate cause because the plaintiff was not deceived where he had not read the deceptive material. As noted, the Oliveira court rejected the plaintiffs attempt to distinguish Zekman and again found a plaintiff who never saw the ads was not deceived. Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164. Likewise, here, plaintiffs never saw defendant’s siding ads and, thus, were not deceived.
Additionally, the majority asserts that “ [purchasers of homes employ builders, architects, and engineers to examine the product literature for them; and it is a mistake to say that home purchasers do not rely on that product literature.” 336 Ill. App. 3d at 537. However, none of the plaintiffs here employed builders, architects, or engineers. In fact, plaintiffs do not allege that anyone connected in some way to their homes saw defendant’s ads. The majority appears to evade the actual facts of this case, as it does the actual pleadings.
The majority acknowledges that “[u]nder Oliveira, a plaintiff must allege *** ‘that he was, in some manner, deceived’ ” and concludes “[pjlaintiff does so here.” 336 Ill. App. 3d at 537, quoting Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164. Plaintiffs most assuredly do not do so here. Indeed, the very essence of plaintiffs’ “market theory” is to allow liability to attach without demonstrating any deception to plaintiffs whatsoever. Therefore, I find the majority’s opinion to be at odds with Zekman and Oliveira and would affirm the trial court’s grant of summary judgment in defendant’s favor. I also reinstate my original dissent. See Shannon, 328 Ill. App. 3d at 631-33, 766 N.E.2d at 1144-45 (Turner, J., dissenting).