Page 48 - John Hundley 2012

the judgment in the earlier suit barred the son’s later attempt to claim that attempts to impose the
earlier judgment upon him violated the CFDBPA.

The court also ruled that American Express’ attorneys were exempt from liability because they
were representing clients in the practice of law under Cripe v. Leiter, 184 Ill.2d 185 (1998).

Intent to Defraud Not Required for $50,000 CFDBPA Penalty

We previously reported how the CFDBPA does not require either a consumer transaction (Sharp
Thinking No. 72 (Nov. 2012) or fraud (Sharp Thinking No. 19 (April 2009)) to support an action
thereunder. Now an appellate panel in Chicago has ruled that the plaintiff need not have proven an
intent to defraud for the court to impose a $50,000 civil penalty for violations of the CFDBPA.

In People v. Smith, 2012 IL App (1st) 113591, the State had brought an action against a home
repair and remodeling firm for repeated violations of the CFDBPA and the Home Repair &
Remodeling Act (815 ILCS 513). The defendant admitted acts which violated the CFDBPA, but
claimed it lacked the intent required to support the penalties the court entered. The panel said the
intent required under that act “is merely the defendant’s intent that the plaintiff in the action rely on the
*** information the defendant gave to plaintiff as opposed to any intent to deceive as required under
the common law.” While the panel acknowledged that “intent to defraud” is required for imposition of
penalties of up to $50,000 per violation (815 ILCS 505/7(b)), it said that that intent was not required to
support a single $50,000 penalty.

The court also ruled that intent to defraud was not required to violate the Home Repair &
Remodeling Act (see generally Sharp Thinking No. 31 (March 2010) and No. 38 (Oct. 2010)). It also
rejected defendant’s challenge to the court’s injunction under the CFDBPA permanently barring him
from performing any home repair work in the state.

Enforcement of ‘Morning After’ Rule Violates Conscience Act

An appellate panel has held that enforcement of the successor to the “Plan B” or “morning after”
contraception rule violates the Health Care Right of Conscience Act (745 ILCS 70).

The rule at issue in effect would require pharmacists to dispense the “Plan B” or “morning after”
contraceptives notwithstanding conscientious objections, and is derived from the emergency
regulation promulgated by then-Gov. Rod Blagojevich and litigated in Morr-Fitz, Inc. v. Blagojevich,
231 Ill.2d 474 (2008). See generally Sharp Thinking No. 15 (Dec. 2008). That decision held that the
pharmacists had “standing” to challenge the regulation but left the determination of legality to be
addressed on remand. On remand, the trial court held the successor regulation violated the
“Conscience Act”, the Religious Freedom Restoration Act (775 ILCS 35), and the First Amendment to
the U.S. Constitution. The Appellate Court affirmed under the “Conscience Act” and did not reach the
other grounds. Morr-Fitz, Inc. v. Quinn, 2012 IL App (4th) 110398. The appeals court modified the
resultant injunction to provide that defendants were enjoined from enforcing the current rule against
the particular plaintiffs at issue.

- John T. Hundley, Jhundley@lotsharp.com, 618-242-0246

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