{ "id": 864532, "name": "THEODORE ZEKMAN, Appellee, v. DIRECT AMERICAN MARKETERS, INC. (American Telephone and Telegraph Company et al., Appellants)", "name_abbreviation": "Zekman v. Direct American Marketers, Inc.", "decision_date": "1998-05-21", "docket_number": "No. 82817", "first_page": "359", "last_page": "377", "citations": [ { "type": "official", "cite": "182 Ill. 2d 359" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "286 Ill. App. 3d 462", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544446 ], "weight": 5, "pin_cites": [ { "page": "471" }, { "page": "471" }, { "page": "471" }, { "page": "472", "parenthetical": "Gordon, J., dissenting" }, { "page": "472", "parenthetical": "Gordon, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0462-01" ] }, { "cite": "173 Ill. 2d 549", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "142 Ill. 2d 42", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236685 ], "year": 1991, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0042-01" ] }, { "cite": "96 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3113729 ], "year": 1983, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0150-01" ] }, { "cite": "145 Ill. 2d 475", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595712 ], "year": 1991, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0475-01" ] }, { "cite": "167 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222757 ], "year": 1995, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0449-01" ] }, { "cite": "172 Ill. 2d 386", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55982 ], "year": 1996, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0386-01" ] }, { "cite": "138 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5577212 ], "year": 1990, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0533-01" ] }, { "cite": "133 Ill. 2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260127 ], "year": 1990, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0374-01" ] }, { "cite": "159 Ill. 2d 206", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781328 ], "year": 1994, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0206-01" ] }, { "cite": "131 Ill. App. 2d 434", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2912257, 2905485 ], "year": 1970, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0434-02", "/ill-app-2d/131/0434-01" ] }, { "cite": "174 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223623 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "501", "parenthetical": "though plaintiff need not establish reliance, valid claim by private plaintiff must show that alleged fraud proximately caused injury complained of" }, { "page": "501" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0482-01" ] }, { "cite": "142 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450117 ], "year": 1986, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0550-01" ] }, { "cite": "169 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909164 ], "year": 1996, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0325-01" ] }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] } ], "analysis": { "cardinality": 1074, "char_count": 29239, "ocr_confidence": 0.785, "pagerank": { "raw": 8.706694161179961e-07, "percentile": 0.9774427003273164 }, "sha256": "60405d6b8a8e103395b2ff834fc8bc5fb4c7967c148c421203403e281d8d5dbc", "simhash": "1:db9adcffc1b495f7", "word_count": 4977 }, "last_updated": "2023-07-14T18:59:33.883421+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THEODORE ZEKMAN, Appellee, v. DIRECT AMERICAN MARKETERS, INC. (American Telephone and Telegraph Company et al., Appellants)." ], "opinions": [ { "text": "JUSTICE MILLER\ndelivered the opinion of the court:\nPlaintiff, Theodore Zekman, brought this action in the circuit court of Cook County against American Telephone and Telegraph Company, American Telephone and Telegraph Company of Illinois, AT&T Communications, Inc., and AT&T Communications of Illinois, Inc. (collectively, AT&T), seeking damages under statutory and common law theories of recovery. The circuit court dismissed some of these claims and granted AT&T summary judgment on others. The appellate court reversed. 286 Ill. App. 3d 462, 471. We allowed AT&T\u2019s petition for leave to appeal (166 Ill. 2d R. 315) and now reverse the judgment of the appellate court and affirm the judgments of the circuit court.\nBACKGROUND\nThe procedural history of this case may be stated briefly. Patricia Rick filed a class action in the circuit court of Cook County on May 20, 1992, against Direct American Marketers, Inc. (Direct American), AT&T, and Illinois Bell Telephone Company. Plaintiff was substituted as the named plaintiff and class representative and filed an amended class action complaint (first amended complaint). Count V of the first amended complaint alleged that AT&T violated sections 2 and 2P of the Consumer Fraud and Deceptive Business Practices Act (Act) (815 ILCS 505/2, 2P (West 1992)) by knowingly receiving the benefits of Direct American\u2019s fraud. Plaintiff also alleged, in count VI, that AT&T acquired moneys by means of a deceptive practice in violation of section 9 of the Act (815 ILCS 505/9 (West 1992)). The trial judge granted AT&T\u2019s motion to dismiss these claims. Plaintiff later filed second and third amended class action complaints, which he withdrew in response to AT&T\u2019s dismissal motions. Plaintiff then filed a fourth amended class action complaint (fourth amended complaint), which alleged violations of section 2 of the Act by AT&T. These allegations differed from those allegations in the first amended complaint in that plaintiff now alleged direct conduct by AT&T in violation of the Act. Plaintiff also alleged that AT&T committed common law fraud and knowingly accepted the benefits of fraud in violation of the common law. The trial judge granted AT&T\u2019s and Direct American\u2019s motions for summary judgment.\nPlaintiff appealed both the decision to dismiss plaintiff\u2019s claims against AT&T in counts V and VI of the first amended complaint and the grant of summary judgment on the fourth amended complaint. The appellate court reversed and remanded the cause to the circuit court. 286 Ill. App. 3d at 471. First, the appellate court found that summary judgment was improper on the fourth amended complaint because there was a genuine issue of fact as to whether Direct American\u2019s mailings caused plaintiff to believe that he had won an award. 286 111. App. 3d at 469. Next, the appellate court reversed the trial court\u2019s ruling dismissing counts V and VI of the first amended complaint. 286 Ill. App. 3d at 471.\nBoth AT&T and Direct American filed petitions for leave to appeal in this court. We denied Direct American\u2019s petition (173 Ill. 2d 549) but allowed AT&T\u2019s petition (166 Ill. 2d R. 315). We granted leave to the American Association of Retired Persons to file a brief as an amicus curiae. 155 Ill. 2d R. 345. As the question of class action status has not yet been reached, it is not at issue here.\nFACTS\nOn review of an order granting a motion to dismiss, all well-pleaded facts in the complaint are accepted as true. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991). The following general facts are relevant to our inquiry, and additional facts are supplied as needed. Plaintiff received a series of separate mailings from Direct American. The mailings generally did not solicit plaintiff to purchase any product or service. Instead, the mailings indicated that plaintiff had won a prize. Prizes listed on each mailing included large cash awards, as well as discount coupons for various products or services. While it was possible to respond by use of the mail, the mailings urged recipients to call a \u201c900\u201d number in order to immediately claim their prize. By calling the \u201c900\u201d number, recipients incurred charges, usually between $8 and $10 for the call. In addition to stating the charge that applied to the call, the mailings informed the recipient of the procedure for responding by mail and gave the odds of winning the prizes. This information usually was in less conspicuous type. The mailings often listed plaintiffs name next to the largest cash award. Plaintiff made numerous calls to various different \u201c900\u201d numbers. Each time plaintiff called, he won only discount coupons, and never a cash award. AT&T billed plaintiff for the charges and retained a percentage of the charge for itself; the majority of the charge went to Direct American.\nAT&T can provide billing services for companies soliciting \u201c900\u201d number calls so that the charge appears on the caller\u2019s long-distance bill. AT&T has guidelines that impose minimum standards on those companies that use its services. AT&T reviewed Direct American\u2019s mailings for the purpose of ensuring that they complied with the AT&T guidelines and state and federal laws prohibiting false, deceptive, and misleading advertising and trade practices. At times, AT&T determined that Direct American\u2019s proposed mailings were misleading and required Direct American to make changes before they were sent. Sometimes AT&T did not determine a mailing to be misleading until after it was already sent to customers and the customers had made and been billed for calls to the \u201c900\u201d number. It was AT&T\u2019s policy to provide refunds for customers who contested charges for their calls to Direct American.\nPlaintiff was deposed. His deposition testimony provides in pertinent part:\n\u201cQ. Well, was there a time when you were getting cards but you were not responding, you were simply throwing them away?\nA. No. I responded to \u2014 my name was on them. And I thought that my name being on them meant something.\n* * *\nQ. All right. When you received the mail piece, did you read it?\nA. In a cursory fashion.\nQ. Approximately how much time did you spend reading it?\nA. Enough time to see if my name was on it and if there was a cash award on it. But I did not read the card carefully in any other way.\nQ. And you made a telephone call?\nA. Yes.\nQ. Were you aware that you could have also found out whether or not you won by mailing in and asking?\nA. Yes. I had determined that from previous mailings when I began getting them. However, I chose not to mail them in because it was emphasized that it would take three or four weeks before it would even be acted upon. And in that period of time, you wouldn\u2019t know.\nQ. All right. Did you have any \u2014 strike that.\nYou also, knew, did you not, that there would be a charge from the telephone company associated with the call to the 900 number?\nA. Yes.\nQ. And when you called, did you hear a message that told you that you could hang up and not get charged for the telephone call?\nA. Yes, I did.\n* * *\nQ. Were you being compelled to respond?\nA. I wasn\u2019t compelled.\nQ. It was your own decision?\nA. Yes.\nQ. And you were being given information in the mailing pieces, correct?\nA. I was responding to the fact that I have [sic] been given a mailing that had my name on it with a certain amount of money that I had won as an award.\nQ. You said money\u2014\nA. Or a claim.\n* * *\nQ. Dr. Zekman, does that [referring to an exhibit of a mailing] disclose to you that there are six different types of awards? Do you see in the box where it says awards are?\nA. Yes. But I did not carefully read what all the awards were. I was only interested in whether I won an award.\nQ. Right. And is it your testimony that you believed after you read this that you had won a cash award?\nA. I did not know whether I had won an award, a cash award. I was responding to instructions in the hope that I did win a cash award.\nQ. And you called rather than wrote because you were eager to find out?\nA. Yes.\n^ ^ ^\nQ. Do you remember approximately how many 900 number calls you had placed\u2014\nA. No. I don\u2019t.\nQ. More than ten?\nA. I don\u2019t know because I don\u2019t see the bills. I don\u2019t pay the bills. My secretary does that.\nifc $$c\nQ. And why did you save [the mailing pieces]?\nA. Because I was becoming disillusioned with the whole process that my name was appearing on the card and that I was told I had won something and I did not.\u201d\nPlaintiff acknowledged at his deposition that his telephone records revealed that on October 8, 1991, he made 11 calls to various \u201c900\u201d numbers and, on October 26, 1991, he made 13 calls to various \u201c900\u201d numbers.\nTHE FIRST AMENDED COMPLAINT\nCounts I through IV of the first amended complaint were against Direct American, and count VII was against Illinois Bell; neither defendant is a party to this appeal. In count V of the first amended complaint, plaintiff alleged that defendant AT&T knowingly\nreceived the benefits of Direct American\u2019s deceptive practices in violation of sections 2 and 2P of the Act. In count VI, plaintiff incorporated the allegations contained in count V and further alleged that AT&T violated section 9 of the Act by acquiring moneys by means of a deceptive practice under the Act. AT&T filed a motion to dismiss counts V and VI, arguing that the complaint failed to state a cause of action. On January 26, 1993, the trial judge dismissed those counts with prejudice. The judge stated that there was nothing in the Act, its legislative history, or case law to expand the Act \u201cto those who provide the vehicle by which the deception is promulgated.\u201d Pursuant to Supreme Court Rule 304(a), the trial judge found that there was \u201cno just reason to delay enforcement of or appeal from\u201d the order. On plaintiff\u2019s motion to rehear and vacate the order, the trial judge entered an order on March 12, 1993, vacating the January 26 dismissal order. The March 12 order dismissed the counts without prejudice, allowed plaintiff to file a second amended complaint, and vacated the Rule 304(a) language in the January 26 order.\nOn April 12, 1993, plaintiff filed an \u201cAgreed Motion\u201d with no objection from AT&T. The \u201cAgreed Motion\u201d contained a proposed order to replace the March 12 order. In the motion, plaintiff explained that he wanted to be able to both amend the complaint as to AT&T and preserve the appealability of the trial court\u2019s dismissal of counts V and VI of the first amended complaint. On April 12, the trial judge entered the order as agreed. The order: (1) vacated the March 12 order; (2) dismissed with prejudice counts V and VI of the first amended complaint; (3) vacated the Rule 304(a) language of the January 26 order; (4) allowed plaintiff to file a second amended complaint; and (5) was entered nunc pro tunc as of March 12, 1993.\nInitially, we address the status of counts V and VI of the first amended complaint. Normally, a party filing an amended pleading waives any objection to the trial court\u2019s ruling on former complaints. Foxcroft Townhome Owners Ass\u2019n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153 (1983). Thus, plaintiff would apparently have waived appeal of the dismissal of counts V and VI of the first amended complaint when he filed his second amended complaint. As a general matter, however, a waiver rule is an admonition to the litigants, not a limitation on the jurisdiction of the reviewing court. American Federation of State, County & Municipal Employees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480 (1991). Here, plaintiff filed the \u201cAgreed Order\u201d of April 12 \u201cin order to preserve the appealability of the Court\u2019s dismissal of Counts V and VI\u201d of the first amended complaint and to allow plaintiff leave to amend his complaint. The trial judge entered the order the same day, and AT&T has not questioned that part of plaintiff\u2019s appeal brought on the first amended complaint. The ability to bring an appeal from two separate complaints based on the same cause of action was neither raised nor briefed in this court. We make no finding regarding its propriety at this time and address counts V and VI of the first amended complaint on their merits.\nCount V of plaintiff\u2019s first amended complaint alleged that AT&T violated sections 2 and 2P of the Act by knowingly receiving the benefits of Direct American\u2019s fraud. We must determine whether knowingly receiving the benefits of another\u2019s fraud will support liability under sections 2 and 2P of the Act.\nIn construing a statute, courts are required to ascertain and give effect to the intent of the legislature. Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 454 (1995). Faced with a question of statutory construction, courts should first look to the language of the statute to determine the intent of the drafters. Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). When the statutory language is clear, no resort is necessary to other aids of construction. Henry v. St. John\u2019s Hospital, 138 Ill. 2d 533, 541 (1990).\nSection 2 lists conduct that violates the Act. Section 2 states:\n\u201cUnfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation 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, or the use or employment of any practice described in Section 2 of the \u2018Uniform Deceptive Trade Practices Act\u201d, approved August 5, 1965 [815 ILCS 510/2 (West 1992)], in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.\u201d 815 ILCS 505/2 (West 1992).\nWe agree with AT&T that the plain language of section 2 of the Act does not include anything that makes it unlawful to knowingly receive the benefits of another\u2019s fraud. As this court stated in Laughlin v. Evanston Hospital, 133 Ill. 2d 374, 390 (1990), \u201c[t]he language of the Act shows that its reach was to be limited to conduct that defrauds or deceives consumers or others.\u201d To allow plaintiff to recover for AT&T\u2019s knowingly receiving the benefits of Direct American\u2019s fraud would require us to read into the statute violations that are not a part of the statutory text.\nCanons of statutory interpretation additionally guide our decision that knowingly receiving the benefits of another\u2019s fraud is not actionable under section 2 of the Act. When a statute provides a list that is not exhaustive, as section 2 does (\u201cincluding but not limited to ***\u201d), the class of unarticulated things will be interpreted as those that are similar to the named things. Board of Trustees of Southern Illinois University v. Department of Human Rights, 159 Ill. 2d 206, 211 (1994). The common feature of the forms of conduct listed in section 2 of the Act is that they involve actions directly done by the perpetrator of the fraud. Knowingly receiving the benefits of another\u2019s fraud, however, more closely resembles a form of secondary liability. We believe that a claim for knowingly receiving the benefits of another\u2019s fraud is not so similar to the enumerated violations of section 2 of the Act that the legislature intended for it to be a cause of action under that statute. With no clear indication from the legislature that such conduct violates section 2 of the Act, we cannot extend liability to those who knowingly receive the benefits of another\u2019s fraud.\nSection 10a of the Act, which is the provision that authorizes a private individual to bring a cause of action under the Act, supports our decision. Section 10a(a) states that \u201c[a]ny person who suffers damages as a result of a violation of this Act committed by any other person may bring an action against such person.\u201d 815 ILCS 505/10a(a) (West 1992). The plain language of section 10a(a) provides a private cause of action against \u201csuch person\u201d that \u201ccommitted\u201d the violation of the Act. The statute does not provide for a cause of action against those who knowingly receive benefits from the person committing the violation. In the face of such language, we will not create a cause of action under section 2 of the Act for knowingly receiving the benefits of another\u2019s fraud.\nPlaintiff also alleged in the first amended, complaint that AT&T violated section 2P of the Act by knowingly receiving the benefits of Direct American\u2019s fraud. Section 2P specifically relates to the disclosure of conditions on offers of free prizes, gifts, or gratuities. Section 2P states:\n\u201cIt is an unlawful practice for any person to promote or advertise any business, product, or interest in property, by means of offering free prizes, gifts or gratuities to any consumer, unless all material terms and conditions relating to the offer are clearly and conspicuously disclosed at the outset of the offer so as to leave no reasonable probability that the offering might be misunderstood.\u201d 815 ILCS 505/2P (West 1992).\nWe believe that this provision clearly relates only to the person offering the free prizes, gifts or gratuities. The plain language of this statute does not pertain to those who knowingly receive the benefits of another\u2019s fraud.\nWe also conclude that plaintiff fails to state a cause of action under section 9 of the Act, as alleged in count VI of the first amended complaint. Section 9 states:\n\u201cSubject to an order of the court terminating the business affairs of any person after receivership proceedings held pursuant to this Act, the provisions of this Act shall not bar any claim against any person who has acquired any moneys or property, real or personal, by means of any practice herein declared to be unlawful.\u201d 815 ILCS 505/9 (West 1992).\nThe language of section 9 states that the provisions of the Act \u201cshall not bar\u201d certain claims. We do not believe that this language affirmatively gives rise to any claims. Further, the reference in section 9 to receivership proceedings must logically be read in conjunction with section 8 of the Act, which pertains to the distribution of assets of a person placed in receivership. When understood in that context, section 9 appears to refer only to claims against sellers placed in receivership. See Rice v. Snarlin, Inc., 131 Ill. App. 2d 434, 442 (1970). As this situation is not before us, section 9 is inapposite and count VI of the first amended complaint must be dismissed.\nWe hold that sections 2 and 2P of the Act do not provide for a cause of action against a person who knowingly receives the benefits of another\u2019s fraud. Further, section 9 of the Act is inapplicable in the present case. Thus, we reverse that portion of the appellate court decision that reversed the trial court\u2019s order dismissing counts V and VI of the first amended complaint.\nTHE FOURTH AMENDED COMPLAINT\nIn count V of the fourth amended complaint, plaintiff again alleged that AT&T violated section 2 of the Act. Unlike the allegations in the first amended complaint, that AT&T knowingly received the benefits of a fraud, the allegations here asserted that AT&T directly violated the Act by reviewing, revising, and approving Direct American\u2019s deceptive solicitations and recorded messages. Plaintiff further alleged that AT&T violated the Act by billing plaintiff for his calls to the \u201c900\u201d numbers in an allegedly misleading manner. The remaining counts against AT&T in the fourth amended complaint \u2014 counts VI and VII \u2014 alleged common law fraud. AT&T moved to dismiss the fourth amended complaint. A trial judge temporarily assigned to the case denied AT&T\u2019s motion to dismiss the counts against it in the fourth amended complaint; AT&T then answered the complaint.\nAT&T later filed what it termed a \u201cMotion for Summary Judgment on Unique Facts of Plaintiff\u2019s Individual Claim.\u201d AT&T argued in the motion that plaintiff\u2019s deposition testimony demonstrated that plaintiff was not actually deceived by the mailings or the telephone bills and that plaintiff therefore could not establish that any of AT&T\u2019s alleged misconduct had caused him injury. With specific reference to the statutory cause of action pleaded in count V of the fourth amended complaint, AT&T contended that the plaintiff\u2019s deposition established that the conduct complained of was not the proximate cause'of any harm, as the Act requires. See Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501 (1996) (though plaintiff need not establish reliance, valid claim by private plaintiff must show that alleged fraud proximately caused injury complained of). AT&T also argued that it was entitled to summary judgment on the common law counts. Following a hearing, the trial court granted AT&T\u2019s motion for summary judgment.\nOn review, the appellate court agreed with AT&T\u2019s contention that the Act required the plaintiff to establish proximate cause. The appellate court found plaintiff\u2019s deposition testimony to be inconclusive and incomplete on this issue, however, and therefore reversed the trial judge\u2019s grant of summary judgment. Dissenting, Justice Gordon believed that \u201cplaintiff\u2019s admitted conduct precludes him from seeking any recovery under the relevant provisions of [the] Act.\u201d 286 Ill. App. 3d at 472 (Gordon, J., dissenting).\nThe elements of a claim under section 2 of the Act are: (1) a deceptive act or practice by the defendant; (2) defendant\u2019s intent that plaintiff rely on the deception; and (3) the occurrence of the deception in the course of conduct involving trade or commerce. Connick, 174 Ill. 2d at 501. As we noted in our earlier discussion, section 10(a) of the Act, which governs private causes of action under the statute, mandates that an individual\u2019s damages be \u201ca result of a violation of [the] Act.\u201d 815 ILCS 5/10a(a) (West 1992). Thus, this court requires that a successful claim by a private individual suing under the Act also demonstrate that the fraud complained of proximately caused plaintiff\u2019s injury. Connick, 174 Ill. 2d at 501; see also Warren v. LeMay, 142 Ill. App. 3d 550, 569 (1986). This requirement would pertain as well to alleged violations of section 2P of the Act, which plaintiff also cites.\nUnlike the allegations in the statutory counts in the first amended complaint, discussed previously, count V of the fourth amended complaint asserts that AT&T directly violated the statute. At issue here is whether AT&T is entitled to summary judgment on these allegations because plaintiffs deposition establishes that the conduct complained of was not the proximate cause of his injury. Summary judgment is proper \u201cwhere the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant, reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.\u201d Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). Our review of an order granting summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).\nWe believe that plaintiffs deposition testimony precludes him from establishing that the alleged misconduct by AT&T, including its supposed participation in Direct American\u2019s own asserted violations of the Act, proximately caused his damages. In the deposition, plaintiff acknowledged that when he received the mailings he did not know whether he had won a cash award and that he made the telephone calls only in the hope that he had won such an award. Plaintiff also said that he understood that he would be charged for each call he made. Plaintiff recalled that at the beginning of each call, he heard a recorded message telling him that he could avoid any charge for the call by immediately hanging up.\nPlaintiff further acknowledged in the deposition that he knew that he could respond to the award notices by means of the mail instead of by calling the designated \u201c900\u201d number. Plaintiff explained that he did not use the mail, however, because he was eager to learn if he had won a cash prize. Plaintiff said that he continued to make calls even though he knew he had won only discount coupons with every previous call. On occasion, plaintiff made numerous calls in short periods of time, winning only discount coupons with each call.\nOn this record, we do not believe that there exists a genuine issue of material fact whether the allegedly deceptive nature of the solicitations received by plaintiff caused him to incur the charges for the \u201c900\u201d number calls. Rather, it appears that plaintiff understood the requirements and costs of the program. Aware that he could respond to the solicitations through the mail, plaintiff instead voluntarily chose to learn about the prizes in a more expeditious, yet more expensive, manner.\nThe preceding discussion also answers the plaintiff\u2019s further contention that he was deceived by AT&T\u2019s manner of billing for the calls. By his own admission, plaintiff knew that he had not necessarily won cash prizes, that he did not have to call a \u201c900\u201d number to learn if had won such a prize, and that he would incur a charge if he did choose to learn his prize status by placing the calls. Nonetheless, plaintiff alleged that the bills were deceptive because they failed to disclose that his long-distance service would not be terminated if he refused to pay for the calls to Direct American. We note that plaintiff has not cited any authority in support of the contention that AT&T bore that duty. Although apparently it was AT&T\u2019s policy not to charge for calls to these numbers if customers complained about them, AT&T\u2019s conduct in that regard appears to be voluntary. In addition, we note plaintiff\u2019s 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. Plaintiff also alleged that the bills misrepresented that they contained only tariffed telephone charges when, in fact, they contained contest entry fees, which are not tariffed charges. The bills, which are included in the record, do not make any representation regarding whether the charges are tariffed or not, however, and they plainly identify each \u201c900\u201d call and the cost of the particular call.\nIn sum, based on the testimony by plaintiff at his deposition, we do not believe that there remains a genuine issue of material fact whether the alleged violations of the Act by AT&T proximately caused his damage, for plaintiff\u2019s testimony demonstrates that he was not deceived by AT&T\u2019s actions. Plaintiffs statement in the deposition that he became disillusioned with the fact that his name appeared on cards and he \u201cwas told [he] had won something and [he] did not\u201d is insufficient to show proximate cause between the alleged fraud by AT&T and plaintiffs alleged damage. In fact, plaintiff always did win something, though the prizes \u2014 discount coupons \u2014 were disappointing to him. As noted by the dissenting justice below, plaintiff was induced to place the calls \u201cby the mere receipt of a personalized notice announcing that he won a prize, which, by his own admission, could have consisted of coupons rather than cash.\u201d 286 Ill. App. 3d at 472 (Gordon, J., dissenting). We therefore reverse that portion of the appellate court judgment that reversed the trial court\u2019s grant of summary judgment on count V of plaintiffs fourth amended complaint.\nAs a final matter, we note that AT&T has asserted, in its briefs and oral argument before this court, that plaintiff did not appeal from the portion of the circuit court judgment that granted AT&T\u2019s motion for summary judgment on the two common law counts against the company. The appellate court opinion does not address these counts. AT&T has not shown the plaintiffs supposed abandonment of these counts, however, by evidence in the record, nor has it presented in this appeal anything more than a brief argument in opposition to those counts. Still, plaintiff does not dispute AT&T\u2019s contention that he failed to appeal that portion of the adverse circuit court judgment, or make any argument in support of the common law counts. In view of plaintiffs silence on this question, we do not feel compelled to search the record in this case to rebut AT&T\u2019s claim of abandonment. Accordingly, we offer no opinion on the merits of those counts.\nCONCLUSION\nFor the foregoing reasons, the judgment of the appellate court is reversed, and the judgments of the circuit court of Cook County are affirmed.\nAppellate court judgment reversed;\ncircuit court judgments affirmed.", "type": "majority", "author": "JUSTICE MILLER" } ], "attorneys": [ "David F. Graham, Susan A. Weber and Eric S. Mattson, of Sidley & Austin, of Chicago, for appellants.", "Michael J. Freed, Michael B. Hyman and William H. London, of Much, Shelist, Freed, Denenberg, Ament, Bell & Rubenstein, P.C., Steven M. Levin, of Levin & Perconti, and Robert S. Levin, Joseph A. Ginsburg and Donald B. Levine, of Levin & Ginsburg, Ltd., all of Chicago, for appellee.", "Deborah M. Zuckerman, of Washington, D.C., for amicus curiae American Association of Retired Persons." ], "corrections": "", "head_matter": "(No. 82817.\nTHEODORE ZEKMAN, Appellee, v. DIRECT AMERICAN MARKETERS, INC. (American Telephone and Telegraph Company et al., Appellants).\nOpinion filed May 21, 1998.\nDavid F. Graham, Susan A. Weber and Eric S. Mattson, of Sidley & Austin, of Chicago, for appellants.\nMichael J. Freed, Michael B. Hyman and William H. London, of Much, Shelist, Freed, Denenberg, Ament, Bell & Rubenstein, P.C., Steven M. Levin, of Levin & Perconti, and Robert S. Levin, Joseph A. Ginsburg and Donald B. Levine, of Levin & Ginsburg, Ltd., all of Chicago, for appellee.\nDeborah M. Zuckerman, of Washington, D.C., for amicus curiae American Association of Retired Persons." }, "file_name": "0359-01", "first_page_order": 371, "last_page_order": 389 }