{ "id": 3600414, "name": "MAUREEN BAKER et al., on Behalf of Themselves Indiv. and of All Others Similarly Situated, Plaintiffs-Appellants, v. JEWEL FOOD STORES, INC., Defendants-Appellees", "name_abbreviation": "Baker v. Jewel Food Stores, Inc.", "decision_date": "2005-01-12", "docket_number": "No. 1\u201403\u20141002", "first_page": "62", "last_page": "81", "citations": [ { "type": "official", "cite": "355 Ill. App. 3d 62" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "637 F.2d 105", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1353817 ], "year": 1980, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/f2d/637/0105-01" ] }, { "cite": "465 U.S. 752", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11337242 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "764" }, { "page": "786" }, { "page": "1471" } ], "opinion_index": 0, "case_paths": [ "/us/465/0752-01" ] }, { "cite": "37 F.3d 996", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1848627 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f3d/37/0996-01" ] }, { "cite": "475 U.S. 574", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205783 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "588" }, { "page": "553" }, { "page": "1356" }, { "page": "587" }, { "page": "553" }, { "page": "1356" } ], "opinion_index": 0, "case_paths": [ "/us/475/0574-01" ] }, { "cite": "186 F.3d 781", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 857731 ], "year": 1999, "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/f3d/186/0781-01" ] }, { "cite": "316 F.2d 884", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 169159 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "890" }, { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/f2d/316/0884-01" ] }, { "cite": "849 F. 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JEWEL FOOD STORES, INC., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE KARNEZIS\ndelivered the opinion of the court:\nPlaintiffs, Chicago area consumers who purchased milk at retail from defendants Jewel Food Stores, Inc. (Jewel), and Dominick\u2019s Finer Foods, Inc. (Dominick\u2019s), for the period from August 23, 1996, to August 23, 2000, filed a class action against defendants alleging that defendants conspired to fix, raise and maintain the price of milk in the Chicago area in violation of section 3(1) (a) of the Illinois Antitrust Act (740 ILCS 10/3(l)(a) (West 2002)) (the Antitrust Act or the Act). Plaintiffs appeal from the trial court\u2019s grant of defendants\u2019 motion for judgment at the close of plaintiffs\u2019 case pursuant to section 2 \u2014 Ill. of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 Ill. (West 2002)) (the Code). Plaintiffs argue that the court incorrectly applied section 2 \u2014 Ill. by (1) requiring plaintiffs to prove their case by clear and convincing evidence; (2) failing to find that plaintiffs proved a prima facie case; (3) requiring plaintiffs to present evidence of a manifest agreement and illicit motive in order to prove the price-fixing conspiracy; an- (4) excluding all evidence regarding defendants\u2019 milk prices after the date plaintiffs commenced their action. We affirm.\nBACKGROUND\nDefendants are the two dominant grocery store chains in the nine-county Chicago metropolitan area and have been for a number of years. They maintain a relatively stable share of the retail grocery market, with Jewel\u2019s market share approximating 42% and Dominick\u2019s 26%. The remaining 32% of the market is split among other grocery store chains, with no single chain having more than 6% of the market. On a store-by-store basis, Dominick\u2019s identified Jewel as its chief competitor for 90% of its stores.\nAll of the grocery stores sell milk, as do numerous other venues such as convenience stores and gasoline stations. Milk is a homogeneous product. It is available in various fat contents, whole, 2%, 1% and skim, hut the milk within each fat category is the same, regardless of who is selling it or the brand under which it is sold. Although defendants both sell \u201cpremium\u201d and \u201csecondary\u201d brands of milk, there is no difference between the premium and secondary brand milk. Only the brand names differ. Jewel\u2019s two product lines are Dean\u2019s and Fieldcrest and Dominick\u2019s are Dominick\u2019s and Nancy Martin.\nAlthough the wholesale prices for the different types of milk differ depending on the fat content, defendants both charge the same retail price for each type of milk within a brand, setting the price based on the cost of the higher-priced whole milk rather than using an average cost of the four milk types. As part of Dominick\u2019s milk pricing strategy, it exactly matches the price Jewel charges for premium brand milk as soon as possible after Jewel changes its milk price. Dominick\u2019s performs daily checks of Jewel stores and advertisements in order to keep abreast of Jewel\u2019s prices.\nDominick\u2019s also matches Jewel\u2019s price for secondary brand milk in those Chicago markets where Jewel is its major competitor. Defendants each price their secondary brand at 10 cents per gallon less than the premium brand in those markets, no matter the price charged for the premium brand. Therefore, each time Jewel changes its premium brand prices, its secondary brand prices will adjust similarly. Dominick\u2019s then follows Jewel\u2019s lead and prices its secondary brand accordingly. In neighborhoods where Jewel and Dominick\u2019s are not each other\u2019s nearest competitor, they each set their secondary brand milk prices based on the prices set by other competitors. Defendants\u2019 prices in those neighborhoods are generally lower than prices charged in markets where each is the other\u2019s closest competitor. For approximately 90% of its stores, Jewel is Dominick\u2019s closest competitor and in those markets, Dominick\u2019s matches Jewel\u2019s base price for both milk brands.\nIn 2000, Jewel\u2019s premium brand milk was priced at $2.38 per gallon in Milwaukee while the identical milk was sold in Chicago for $3.69 per gallon. When the wholesale price of milk decreased by 40 cents per gallon in December 1999, defendants did not decrease the prices they charged until after the instant suit was filed in late 2000. In markets where Jewel and Dominick\u2019s were each other\u2019s closest competition, Jewel\u2019s gross profit margin on its milk products exceeded 40% while Dominick\u2019s exceeded 50%, except when it ran its $1 off promotions at which time its profit margin still exceeded 40%.\nOn August 23, 2000, considering defendants\u2019 milk prices exorbitant given the market and the wholesale cost of milk, plaintiffs filed a class action against defendants alleging that defendants worked together to maintain an artificially high price for milk in the Chicagoland area in violation of section 3(l)(a) of the Antitrust Act. Following class certification, plaintiffs presented their case, at the close of which defendants moved for a finding in their favor pursuant to section 2 \u2014 Ill. of the Code and dismissal of the action. The court granted defendants\u2019 motion and plaintiffs appeal.\nANALYSIS\nStandard of Review\nThe court granted defendants\u2019 motion for a finding in their favor, filed at the conclusion of plaintiffs\u2019 case in chief pursuant to section 2 \u2014 Ill. of the Code, and dismissed the case. Section 2 \u2014 Ill. provides that in cases tried, as here, without a jury, a defendant may, at the close of the plaintiffs case, move for a finding or judgment in his or her favor. 735 ILCS 5/2 \u2014 Ill. (West 2002); People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 275, 786 N.E.2d 139, 148 (2003). Plaintiffs argue that we should review the court\u2019s decision de novo while defendants argue that we should review it under the manifest weight of the evidence standard. For the reasons that follow, we agree with defendants and must, therefore, determine whether the court\u2019s decision was against the manifest weight of the evidence.\nIn ruling on a section 2 \u2014 Ill. motion, a court must engage in a two-prong analysis. People ex rel. Sherman, 203 Ill. 2d at 275, 786 N.E.2d at 148. The court must first determine, as a matter of law, whether the plaintiff has presented a prima facie case. People ex rel. Sherman, 203 Ill. 2d at 275, 786 N.E.2d at 148. A prima facie case is established by presenting \u201cat least \u2018some evidence on every element essential to [the plaintiffs underlying] cause of action.\u2019 \u201d People ex rel. Sherman, 203 Ill. 2d at 275, 786 N.E.2d at 148, quoting Kokinis v. Kotrich, 81 Ill. 2d 151, 154, 407 N.E.2d 43 (1980). Should the plaintiff fail to meet this burden, the court must grant the motion and enter judgment in the defendant\u2019s favor, dismissing the action. 735 ILCS 5/2 \u2014 Ill. (West 2002); People ex rel. Sherman, 203 Ill. 2d at 275, 786 N.E.2d at 148. Because a court\u2019s determination that a plaintiff failed to present a prima facie case is a question of law, we review such a ruling de novo. People ex rel. Sherman, 203 Ill. 2d at 275, 786 N.E.2d at 148.\nIf the court determines that the plaintiff has established a prima facie case, the court then moves to the second prong of the inquiry in which, as the finder of fact, it must consider the totality of the evidence presented, including any evidence that is favorable to the defendant. People ex rel. Sherman, 203 Ill. 2d at 275-76, 786 N.E.2d at 149. Pursuant to section 2 \u2014 1110, the court does not view the evidence in the light most favorable to the plaintiff but rather must \u201cweigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence\u201d (735 ILCS 5/2 \u2014 Ill. (West 2000)) and draw reasonable inferences therefrom. People ex rel. Sherman, 203 Ill. 2d at 276, 786 N.E.2d at 149. Since the weighing process involves consideration of evidence presented by the defendant as well as by the plaintiff, the process \u201cmay result in the negation of some of the evidence presented by the plaintiff.\u201d People ex rel. Sherman, 203 Ill. 2d at 276, 786 N.E.2d at 149. After weighing the quality of all of the evidence presented by both parties, \u201cthe court should determine, applying the standard of proof required for the underlying cause, whether sufficient evidence remains to establish the plaintiffs prima facie case.\u201d People ex rel. Sherman, 203 Ill. 2d at 276, 786 N.E.2d at 149. If the court finds that the plaintiff failed to present sufficient evidence to establish its prima facie case, the court should grant the defendant\u2019s motion and enter a judgment dismissing the action. People ex rel. Sherman, 203 Ill. 2d at 276, 786 N.E.2d at 149. We will not reverse such a ruling unless it is contrary to the manifest weight of the evidence. People ex rel. Sherman, 203 Ill. 2d at 276, 786 N.E.2d at 149.\nThe court\u2019s order stated that the court \u201creviewed the evidence, considering the credibility of the witnesses and the weight and quality of the evidence,\u201d and stated the court\u2019s findings as to what the \u201ccredible evidence\u201d showed. The court determined that there were no facts regarding agreements, handshakes or conversations between defendants about the price of milk or other commodities during the class period and, therefore, no direct evidence of a conspiracy. The court then applied the clear and convincing standard of proof and determined that, although there was \u201csome evidence\u201d of parallel pricing, there was no additional evidence to support an inference that defendants conspired to fix the price of milk. The court found \u201cno adequate facts demonstrating conspiracy\u201d and held for defend\u00e1nts on their section 2 \u2014 Ill. motion. Under a section 2 \u2014 Ill. analysis, the credibility of witnesses, weight and quality of the evidence and underlying evidentiary standard are not considered unless the second prong of the analysis is reached. Since the court here did reach the second prong of the analysis, it had found that plaintiffs satisfied the first prong. Only after then considering all of the evidence under the second prong did the court find that the evidence was insufficient to sustain plaintiffs\u2019 case. Accordingly, given the court\u2019s weighing of the evidence, we consider the court\u2019s second-prong finding in favor of defendants under the manifest weight of the evidence standard of review. See People ex rel. Scott v. Convenient Food Mart, Inc., 21 Ill. App. 3d 97, 110, 315 N.E.2d 124, 135 (1974).\nUnderlying Standard of Proof\nPlaintiffs argue that the trial court erred in applying the clear and convincing standard of proof. Plaintiffs charged defendants with horizontal price-fixing, conspiring to fix the price of milk in violation of section 3(l)(a) of the Illinois Antitrust Act. Therefore, in ruling on defendants\u2019 section 2 \u2014 Ill. motion, the trial court should have (1) determined if plaintiffs offered evidence so as to establish a prima facie case of horizontal price-fixing and, if so, then (2) weighed the evidence under the salient standard of proof to determine whether a prima facie case still exists. Greenwald v. Spring Hill Ford, Inc., 173 Ill. App. 3d 857, 860, 527 N.E.2d 1095, 1097 (1988). Generally, in ruling on a section 2 \u2014 Ill. motion, such evidence must prove plaintiffs\u2019 case by a preponderance of the evidence; \u201chowever, when the underlying cause of action requires a clear and convincing standard of proof, the evidence must meet the higher standard.\u201d Greenwald, 173 Ill. App. 3d at 861, 527 N.E.2d at 1097-98.\nThe Antitrust Act is intended to preserve the freedom of consumers to buy in the open marketplace and to maintain freedom of competition. People ex rel. Scott, 21 Ill. App. 3d at 104, 315 N.E.2d at 130-31. To that end, section 3(1) (a) of the Antitrust Act is meant to prevent competitors or would-be competitors from joining forces to fix prices. People ex rel. Scott, 21 Ill. App. 3d at 104-05, 315 N.E.2d at 131. Section 3(l)(a) provides that it is a violation of the Act for anyone to\n\u201c[m]ake any contract with, or engage in any combination or conspiracy with, any other person who is, or but for a prior agreement would be, a competitor of such person:\na. for the purpose or with the effect of fixing, controlling, or maintaining the price or rate charged for any commodity sold or bought by the parties thereto, or the fee charged or paid for any service performed or received by the parties thereto!.]\u201d 740 ILCS 10/3(1)(a) (West 2002).\nPrice-fixing is so restrictive of free trade that it is considered a per se violation of the Antitrust Act, without regard to \u201cthe competitive and economic purposes and consequences\u201d of the price-fixing. 740 ILCS Ann. 10/3(1), Committee Comments \u2014 1967, at 15 (Smith-Hurd 2002); People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 309, 430 N.E.2d 1005, 1009 (1981); People ex rel. Scott, 21 Ill. App. 3d at 104, 315 N.E.2d at 131.\nThe Antitrust Act does not specify which evidentiary standard of proof should be applied to cases brought under the Act. Generally, therefore, courts would apply the preponderance of the evidence standard of proof applicable to most civil litigation. However, a section 3(l)(a) horizontal price-fixing conspiracy \u201c \u2018can seldom be proved by the evidence of witnesses to the effect that the parties have entered into a specific, oral or written agreement for that purpose. The proof usually consists of evidence of circumstances from which that conclusion follows.\u2019 \u201d People ex rel. Scott v. College Hills Corp., 91 Ill. 2d 138, 147, 435 N.E.2d 463, 467 (1982), quoting United States v. Johns-Manville, 67 F. Supp. 291, 293 (N.D. Ill. 1941). Therefore, antitrust conspiracies often have to be proven from inferences drawn from circumstantial evidence. People ex rel. Scott, 91 Ill. 2d at 146, 435 N.E.2d at 467, citing United States v. Parke, Davis & Co., 362 U.S. 29, 44, 4 L. Ed. 2d 505, 515, 80 S. Ct. 503, 511 (1960). Plaintiffs stated in their pretrial memorandum that they would \u201cprove their case with circumstantial evidence.\u201d For the reasons that follow, we find that where there is no direct evidence of a price-fixing conspiracy and such is provable solely by circumstantial and inferential evidence, the court should apply the clear and convincing standard of proof.\nSimilarly, horizontal price-fixing is a per se violation of section 1 of the Sherman Act (15 U.S.C. \u00a7 1 (2000)). In re Flat Glass Antitrust Litigation, 385 F.3d 350, 356 (3d Cir. 2004). Section 3(1) is patterned after section 1 of the Sherman Act. People ex rel. Scott, 91 Ill. 2d at 150, 435 N.E.2d at 469. Pursuant to section 11 of the Antitrust Act, when the language of the Antitrust Act \u201cis identical or similar to that of a federal antitrust law,\u201d courts \u201cshall use the construction of the federal law by the federal courts as a guide in construing\u201d the Act. 740 ILCS 10/11 (West 2002); Gilbert\u2019s Ethan Allen Gallery v. Ethan Allen, Inc., 162 Ill. 2d 99, 102, 642 N.E.2d 470, 472 (1994); People ex rel. Scott, 21 Ill. App. 3d at 106-07, 315 N.E.2d at 132. Illinois courts can, therefore, use federal case law interpreting section 1 of the Sherman Act as a guide in interpreting section 3(1). Gilbert\u2019s Ethan Allen Gallery, 162 Ill. 2d at 103, 642 N.E.2d at 472; People ex rel. Scott, 91 Ill. 2d at 150, 435 N.E.2d at 469. However, \u201c[t]he Federal decisions are not binding on our courts.\u201d Gilbert\u2019s Ethan Allen Gallery, 162 Ill. 2d at 103, 642 N.E.2d at 472. Despite section 11, we are not required to follow federal antitrust decisions, although we may do so if we find them persuasive. People ex rel. Scott, 21 Ill. App. 3d at 107, 315 N.E.2d at 132-33.\nIn civil tort litigation, where there is no direct evidence of a conspiracy and such is provable solely by circumstantial and inferential evidence, courts apply the clear and convincing evidence standard of proof. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 134, 720 N.E.2d 242, 258 (1999) (conspiracy to conceal danger of asbestos); Bosak v. McDonough, 192 Ill. App. 3d 799, 804, 549 N.E.2d 643, 646 (1989) (conspiracy to defraud); Tribune Co. v. Thompson, 342 Ill. 503, 529, 174 N.E. 561, 571-72 (1930) (conspiracy to defraud). The clear and convincing standard is reserved for \u201cexceptional cases,\u201d such as where \u201cthere is a special need for a greater burden of proof either due to contrary presumptions or the potential unreliability of the evidence in question.\u201d Arrington v. Walter E. Heller International Corp., 30 Ill. App. 3d 631, 639-40, 333 N.E.2d 50, 57-58 (1975); see Greenwald, 173 Ill. App. 3d at 861, 527 N.E.2d at 1098 (clear and convincing standard is applied where the evidence may be doubtful or capable of reasonable explanation by other theories). Clear and convincing evidence is \u201cthe quantum of proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the proposition in question,\u201d i.e., more than a preponderance while not quite approaching the degree of proof necessary for a criminal conviction. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995). Where no direct evidence of an agreement or conspiracy exists, circumstantial evidence presented as proof of a conspiracy is susceptible to more than one interpretation because the facts and circumstances relied upon may be \u201c \u2018as consistent with innocence as with guilt.\u2019 \u201d McClure, 188 Ill. 2d at 140, 720 N.E.2d at 261, quoting Tribune Co., 342 Ill. at 529. Therefore, the clear and convincing standard is appropriate in such conspiracy cases. McClure, 188 Ill. 2d at 140-41, 720 N.E.2d at 261.\nTwo Illinois courts deciding civil conspiracy cases brought pursuant to the Antitrust Act, Trowbridge Farm Supply Co. v. W.R. Grace & Co., 82 Ill. App. 3d 1140, 403 N.E.2d 311 (1980), and Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 594 N.E.2d 1344 (1992), have followed, without comment, the rule set in the civil tort conspiracy cases that proof of conspiracy must be clear and convincing if made solely by circumstantial evidence. Trowbridge, 82 Ill. App. 3d at 1144, 403 N.E.2d at 313-14; Ray Dancer, 230 Ill. App. 3d at 50, 594 N.E.2d at 1351. Notwithstanding plaintiffs\u2019 assertions to the contrary, we find the clear and convincing standard appropriate in horizontal price-fixing cases such as the one at issue here, where, due to the nature of the market in which defendants operate, the evidence is as susceptible to an interpretation consistent with innocence of a conspiracy as with an interpretation that defendants did tacitly agree to restrain competition.\nThe Chicago area retail grocery store market is an oligopolistic market, a market dominated by a few firms, here Jewel and Dominick\u2019s. In a such a highly concentrated market, one firm\u2019s pricing decisions will have a noticeable impact on its rivals and the market. In re Flat Glass Antitrust Litigation, 385 F.3d at 359. Because the firms are severely impacted by each other\u2019s pricing, any decision a firm makes must necessarily take into account the anticipated reaction of the other firm(s) in the market, often resulting in \u201cconscious parallelism\u201d in pricing. In re Flat Glass Antitrust Litigation, 385 F.3d at 359-60. If a firm is contemplating a price decrease in order to increase sales, unless it can be sure that it can hide the price decrease from its market competitors long enough to gain a substantial advantage before its rivals match that price, the price reduction would merely reduce the firm\u2019s profits, and the profits of the other firms as well. In re Flat Glass Antitrust Litigation, 385 F.3d at 359, quoting P. Areeda and H. Hovenkamp, Antitrust Law \u00a7 1429, at 207-08 (2d ed. 2003). Similarly, when a price increase is contemplated, the firm knows that the other firms may elect to maintain their existing lower price rather than raising theirs to follow the price leader and it will ultimately be forced to reduce its price to match theirs, resulting in loss of sales in the interim. In re Flat Glass Antitrust Litigation, 385 F.3d at 359, quoting P. Areeda and H. Hovenkamp, Antitrust Law \u00a7 1429, at 207-08 (2d ed. 2003). Because each firm is aware of this possibility, if a price increase occurs or is announced, each firm must decide independently whether it is better off matching the higher price or charging the old price. In re Flat Glass Antitrust Litigation, 385 F.3d at 359, quoting P. Areeda and H. Hovenkamp, Antitrust Law \u00a7 1429, at 207-08 (2d ed. 2003).\nDespite the apparent noncompetitive nature of such \u201cconscious parallelism,\u201d conscious parallelism alone is not violative of the Sherman Act because such interdependent behavior is not an \u201cagreement,\u201d as that term is construed under the Sherman Act. In re Flat Glass Antitrust Litigation, 385 F.3d at 360. In order to sustain an action based on inferences of conspiracy gleaned from consciously parallel behavior, additional \u201c \u2018plus factors\u2019 \u201d must also exist in order to ensure that courts punish \u201c \u2018concerted action,\u2019 \u201d an actual agreement, rather than the \u201c \u2018unilateral, independent conduct of competitors.\u2019 \u201d In re Flat Glass Antitrust Litigation, 385 F.3d at 360, quoting In re Baby Food Antitrust Litigation, 166 F.3d 112, 122 (3d Cir. 1999). If plus factors are established, \u201ca rebuttable presumption of conspiracy arises.\u201d In re Baby Food Antitrust Litigation, 166 F.3d at 122. Three such plus factors would be evidence that (1) the defendant had a motive to enter the price-fixing conspiracy, (2) the defendant acted contrary to its interests and (3) a traditional conspiracy is implied. In re Flat Glass Antitrust Litigation, 385 F.3d at 360, quoting Petruzzi\u2019s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1244 (3d Cir. 1993). Because the first two factors tend to restate the interdependence involved in parallel pricing, the most important evidence will generally involve the third factor, noneconomic evidence of an \u201c \u2018actual, manifest agreement not to compete.\u2019 \u201d In re Flat Glass Antitrust Litigation, 385 F.3d at 360-61, quoting In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 661 (7th Cir. 2002). Besides the usual indications of a conspiracy, such evidence may include \u201c \u2018proof that the defendants got together and exchanged assurances of common action or otherwise adopted a common plan even though no meetings, conversations, or exchanged documents are shown.\u2019 \u201d In re Flat Glass Antitrust Litigation, 385 F.3d at 361, quoting P. Areeda and H. Hovenkamp, Antitrust Law \u00a7 1434s, at 243 (2d ed. 2003); Petruzzi\u2019s IGA Supermarkets, Inc., 998 F.2d at 1244.\nIn McClure, the civil tort conspiracy case extensively cited by the trial court, our supreme court followed federal antitrust cases, as well as tort conspiracy cases from other jurisdictions, in holding that conscious parallel conduct alone is insufficient proof of the agreement element of the tort of conspiracy. McClure, 188 Ill. 2d at 142, 720 N.E.2d at 262. The court noted that federal courts require additional evidence besides conscious parallelism before an agreement violating the Sherman Act can be inferred in order to avoid the inadvertent condemnation of nonconspiratorial conduct. McClure, 188 Ill. 2d at 136, 720 N.E.2d at 259, citing Coleman v. Cannon Oil Co., 849 F. Supp. 1458, 1466 (M.D. Ala. 1993). \u201c \u2018The requirement is intended to help assure that there is a reasonable basis to conclude that persons exchanged assurances of common action or otherwise adopted a common plan, albeit not necessarily through meetings, conversations, or exchanged documents.\u2019 \u201d McClure, 188 Ill. 2d at 136, 720 N.E.2d at 259, quoting Coleman, 849 F. Supp. at 1466. Such additional evidence can include evidence of \u201c \u2018(1) actions contrary to the defendants\u2019 economic interests, and (2) a motivation to enter into such an agreement.\u2019 \u201d McClure, 188 Ill. 2d at 136, 720 N.E.2d at 259, quoting Petruzzi\u2019s IGA Supermarkets, Inc., 998 F.2d at 1242. Given the ambiguous nature of the evidence in a parallelism case, the court found support for its holding in the clear and convincing standard of proof applicable to conspiracy cases to be proven by circumstantial evidence, noting that under that standard, if the evidence relied upon is as consistent with guilt as with innocence, the court must find that the conspiracy has not been proved. McClure, 188 Ill. 2d at 140-41.\nIn the antitrust case Trowbridge Farm Supply Co., this court adopted the federal rule with respect to the need for additional evidence besides proof of parallel business conduct in order to show a conspiracy agreement or antitrust violation. Trowbridge Farm Supply Co., 82 Ill. App. 3d at 1144-45, 403 N.E.2d at 314. Citing federal law, Trowbridge examined the evidence for some indication that the entities who engaged in the parallel behavior \u201calso knew of the conduct of each other\u201d because \u201c \u2018[t]he substantive law of trade conspiracies requires some consciousness of commitment to a common scheme. *** Unless the individuals involved understood from something that was said or done that they were, in fact, committed to raise prices [or to restrain trade], there was no violation of the Sherman Act.\u2019 \u201d Trowbridge, 82 Ill. App. 3d at 1145, 403 N.E.2d at 314, quoting United States v. Standard Oil Co., 316 F.2d 884, 890 (7th Cir. 1963). As noted previously, Trowbridge also adopted, without comment, the clear and convincing standard of proof for an antitrust conspiracy.\nFederal courts have applied the preponderance of the evidence standard in civil price-fixing cases brought under section 1 of the Sherman Act. See In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d at 663; In re Brand Name Prescription Drugs Antitrust Litigation, 186 F.3d 781, 788 (7th Cir. 1999). But, where the plaintiff relies on ambiguous, circumstantial evidence of a Sherman Act antitrust conspiracy, \u201c \u2018antitrust law limits the range of permissible inferences\u2019 \u201d to be drawn therefrom. In re Flat Glass Antitrust Litigation, 385 F.3d at 357, quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 89 L. Ed. 2d 538, 553, 106 S. Ct. 1348, 1356 (1986). \u201cThis higher threshold is imposed in antitrust cases to avoid deterring innocent conduct that reflects enhan ed, rather than restrained, competition.\u201d In re Flat Glass Antitrust Litigation, 385 F.3d at 357. Acceptable inferences which may be drawn from circumstantial evidence \u201c \u2018vary with the plausibility of the plaintiffs\u2019 theory and the dangers associated with such inferences.\u2019 \u201d In re Flat Glass Antitrust Litigation, 385 F.3d at 357, quoting Petruzzi\u2019s IGA Supermarkets, Inc., 998 F.2d at 1232, following Matsushita Electric Industrial Co., 475 U.S. at 587, 89 L. Ed. 2d at 553, 106 S. Ct. at 1356. However, even where the plaintiffs theory is plausible, when the allegations concern, as here, horizontal price-fixing among oligopolists, federal courts have been cautious in accepting inferences from circumstantial evidence because of the interdependence among the oligopolists (In re Flat Glass Antitrust Litigation, 385 F.3d at 358-59), an analysis more in line with McClure's use of the clear and convincing standard of proof than a preponderance of the evidence standard.\nAccordingly, where there is no direct evidence of a price-fixing conspiracy and such is provable solely by circumstantial and inferential evidence, the court should apply the clear and convincing standard of proof and require evidence of conscious parallelism and additional plus factors. Because there was no direct evidence of a conspiracy here and, as they admitted in their pretrial memorandum, plaintiffs would \u201cprove their case with circumstantial evidence,\u201d the court did not err in applying the clear and convincing standard of proof in this case.\nManifest Weight of the Evidence\nThe court\u2019s finding that the evidence was insufficient to show the existence of a price-fixing conspiracy was not against the manifest weight of the evidence. Plaintiffs argue that the court erroneously required them to prove \u201can actual manifest agreement not to compete.\u201d Plaintiff is correct that a price-fixing conspiracy can exist even where there is no binding contract or agreement between competitors but rather informal agreements or understandings. \u201c[T]he ultimate facts needed to prove a violation of section 3(l)(a) are agreements among those who would otherwise be competitors for the purpose or with the effect of fixing the price charged for any goods or service received.\u201d Fahner, 88 Ill. 2d at 309, 430 N.E.2d at 1009. Therefore, in order to present a prima facie case for conspiracy to fix milk prices in violation of section (3)(l)(a), plaintiffs must present some evidence that defendants were competitors, or would otherwise be competitors absent the alleged conspiracy, who agreed or conspired to fix the price of milk, thereby injuring plaintiffs and causing them to suffer damages. However, as the committee comments to section 3(1) make clear, \u201cit is not necessary that there be a binding contract or agreement between competitors. Informal agreements or understanding or loose combinations or conspiracies to accomplish the forbidden purposes [here, price-fixing] would also violate this subsection.\u201d 740 ILCS Ann. 10/3(1), Committee Comments \u2014 1967, at 15 (West 2002).\nSimilarly, federal courts interpret Sherman Act language referring to \u201c \u2018contract,\u2019 \u201d \u201c \u2018combination\u2019 \u201d or \u201c \u2018conspiracy\u2019 \u201d as requiring \u201c \u2018some form of concerted action\u2019 \u201d (In re Flat Glass Antitrust Litigation, 385 F.3d at 357, quoting Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 999 & n.1 (3d Cir. 1994)), such that there must exist a unity of purpose, common design and understanding, meeting of minds or a \u201c \u2018 \u201cconscious commitment to a common scheme\u201d \u2019 \u201d (In re Flat Glass Antitrust Litigation, 385 F.3d at 357, quoting Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 79 L. Ed. 2d 775, 786, 104 S. Ct. 1464, 1471 (1984), quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir. 1980)). The section 1 statutory language is broad enough \u201cto encompass a purely tacit agreement to fix prices, that is, an agreement made without any actual communication among the parties to the agreement.\u201d In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d at 654. However, it is generally believed that an express, manifest agreement involving actual, verbalized communication must be proved in order to find an actionable price-fixing conspiracy. In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d at 654.\nThe court\u2019s order shows that it was well aware that no express, manifest agreement was required. Plaintiffs point to the court\u2019s statement that plaintiffs had to prove that there was an actual manifest agreement not to compete. Plaintiffs have taken the court\u2019s statement entirely out of context. The court made the above statement in the context of its discussion of the In re High Fructose Corn Syrup Litigation case. In its entirety, the court\u2019s statement reads, \u201cFurthermore, even in the face of non-competitive behavior, that is, parallel pricing of [high fructose corn syrup], the plaintiffs \u2018must prove . . . there was an actual manifest agreement not to compete.\u2019 \u201d The court then cautions the reader to \u201c[r]emember, in the Fructose case there was direct evidence of a conspiracy.\u201d (Emphasis in original.) The court then continued its analysis of the evidentiary requirements by stating that the court in McClure \u201cfurther honed the law,\u201d clearly showing its recognition that the Fructose case was not the final word on the evidentiary requirements.\nThe court quoted McClure, stating that \u201ca conspiracy \u2018is almost never susceptible to direct proof, but by inference and circumstantial evidence. Absent direct proof, the evidence must be clear and convincing.\u2019 \u201d It then stated McClure\u2019s holding that mere parallel pricing is insufficient to establish conspiracy and that \u201c \u2018additional evidence\u2019 \u201d called \u201c \u2018plus factors\u2019 \u201d is required and that \u201c[s]uch includes: 1) Actions contrary to the defendants^] economic interests and, 2) a motivation to enter into such agreement.\u201d Then, applying McClure, the court stated:\n\u201cApplying the law, there is no direct evidence of agreement to fix the price of milk. There is some evidence of parallel pricing, but not on all grades of milk offered for sale. Does the evidence, as required by law, show a concerted act contrary to the defendants [sic] economic interests with an illicit motive?\u201d\nClearly, the court understood that a manifest agreement was not required and that, if one was not apparent from direct evidence, the court had to look to evidence of parallel pricing and plus factors to determine whether a concerted act of price fixing occurred. Moreover, as the court in In re Flat Glass Antitrust Litigation recognized, in horizontal price-fixing cases occurring, as here, in an oligopolistic market, evidence of the two factors noted by the court, that defendants acted contrary to their own interest and they had a motive to enter a price-fixing conspiracy, tend to involve the same evidence of interdependence as that presented as evidence of parallelism. It is the third plus factor enumerated in Flat Glass, evidence that a traditional conspiracy is implied, which then necessarily takes on the most importance. And this third factor involves noneconomic evidence of an actual manifest agreement not to compete, even though an express agreement is not required in order to find either a section 3(l)(a) or a section 1 Sherman Act conspiracy.\nThere is no question that some parallel pricing existed between defendants\u2019 premium milk brands. Therefore, we must consider whether the court erred in finding that there was no clear and convincing evidence of the existence of one or more plus factors. Plaintiffs argue that the court erred in requiring them to prove both (1) that an individual defendant\u2019s action would not have been in its self-interest if there was no conspiracy and (2) a strong motivation of defendants to conspire. The court\u2019s order states that plus factors required in addition to evidence of parallelism \u201cinclude! ]: 1) actions contrary to the defendants^] economic interests and, 2) a motivation to enter into such agreement.\u201d The court is merely restating McClure, and although it only cites two factors, the court\u2019s use of the word \u201cinclude! ]\u201d reflects its recognition that this enumeration is not all-inclusive. Arguably, the court\u2019s statement could be read as requiring that both plus factors must be shown in order to sustain a conspiracy case. However, although evidence of a single plus factor can suffice to support an inference of conspiracy, individual plus factors are not examined in a vacuum but rather are examined as a whole. Evidence of a defendant\u2019s economic interests will generally be inexorably linked to evidence of its motive to enter into a price-fixing agreement.\nPlaintiffs point to the court\u2019s statement of the salient issue, \u201cDoes the evidence, as required by law, show a concerted act contrary to the defendants [sic] economic interests with an illicit motive?\u201d as reflecting the court\u2019s misunderstanding of the principles underlying the two plus factors that he cited. Plaintiffs are correct that the law does not \u201crequire\u201d that an act contrary to defendants\u2019 economic interests be proven. Acting against self-interest is but one of several possible plus factors, none of which is required.\nPlaintiffs also point to the court\u2019s statement that \u201c[t]he profit motive is, on the contrary, not against the mutual interest of the defendants\u201d as reflecting the court\u2019s misunderstanding of the law. Plaintiff is correct that the principle underlying the \u201cagainst self-interest\u201d plus factor concerns an individual competitor\u2019s self-interest rather than the alleged conspirators \u201cmutual\u201d self-interest. Evidence of that plus factor would concern how a competitor would act if it did not have an understanding that its competitor(s) would act the same way.\nAs stated previously, in a market dominated by only two firms, each competitor necessarily takes into account the actions of the other. One firm will lead and the other will follow. Even if the two roles switch back and forth between the two competitors, they will still always act interdependently. Such interdependent behavior occurs even in the absence of an implicit, tacit understanding, and it serves both competitors\u2019 profit-making motives. In such a market, if the competitors then agreed to coordinate their pricing, i.e., formalize in some fashion the way in which they had been doing business independently, neither would be acting against self-interest and each would be spurred by the same profit-making motive, and, under those circumstances, their mutual self-interest. Although the court may be technically incorrect in its statement, realistically, under the facts at issue here, it would appear that either competitor acting independently would act no differently than if it had an understanding with the other; save perhaps that, with an understanding between them, the profits for both would be even higher.\nThe existence of plus factors tends to exclude the possibility that defendants engaged in consciously parallel behavior were acting independently. Plaintiffs argue that the court erred in finding they failed to establish either of the enumerated plus factors because they presented the following evidence of plus factors tending to exclude the possibility that defendants\u2019 conscious parallelism was independent: (1) defendants high milk prices, their October 1999 retail price increase and their failure to reduce prices after the December 1999 wholesale cost decreases; (2) defendants\u2019 reciprocating agreement to price check each other\u2019s stores; (3) defendants\u2019 simultaneous switch to unitary pricing because it (a) makes adherence to parallel pricing easier and (b) the reasons offered for doing it were pretextual; (4) defendants\u2019 extraordinary profit margins on milk sales; (5) defendants\u2019 stable market shares; (6) defendants\u2019 strong motive to fix milk prices; (7) expert testimony; and (8) defendants\u2019 postcomplaint conduct. We do not find that the court\u2019s determination that the evidence shows competition rather than a price-fixing conspiracy is against the manifest weight of the evidence.\nIn order to create a rebuttable presumption of a conspiracy, plaintiffs had to clearly and convincingly show the trial court that defendants \u201c \u2018understood from something that was said or done that they were, in fact, committed to raise prices [or to restrain trade].\u2019 \u201d Trowbridge, 82 Ill. App. 3d at 1145, 403 N.E.2d at 314, quoting Standard Oil Co., 316 F.2d at 890. Here, however, given the two-firm oligopoly market in which defendants operate, plaintiffs\u2019 plus factor evidence is as susceptible to an interpretation of \u201c \u2018unilateral, independent conduct of competitors\u2019 \u201d (In re Flat Glass Antitrust Litigation, 385 F.3d at 360, quoting In re Baby Food Antitrust Litigation, 166 F.3d at 122) as it is of a concerted action, express or tacit, to illegally restrain the price of milk. There is no question that defendants\u2019 milk prices did not reflect the actual cost of the various types of milk or any decreases in the cost. But, as the court stated, it is not illegal to want to make a profit. If the market will bear two high-priced milk purveyors, why would one competitor attempt to undercut the other\u2019s prices only in order to sell greater quantities of milk at the lower price in order to make the same or smaller profit margin. Moreover, even if the lower price strategy is successful in driving sales and profits or perhaps in changing consumers\u2019 allegiance from one competitor to the other, the follower would just follow suit and reduce its price accordingly as soon as it realized what had happened and negate any advantage. This is illustrated by defendants\u2019 conduct in April 1999, wlien Jewel dropped the shelf price of its milk by 50 cents per gallon and Dominick\u2019s matched the decrease three days later because, as its\u2019 president explained, Dominick\u2019s \u201ccan\u2019t give them the edge like that.\u201d It is in each competitor\u2019s best interest to maintain a high price of milk, and in a market as we have here, this could occur naturally and need not be the result of a collusive understanding to violate the Antitrust Act. Indeed, the evidence showed that defendants\u2019 identical decision not to reduce their milk prices when the national wholesale cost of milk dropped by 40 cents in December 1999 was not just common to other retailers across the country but, in the Chicagoland area, was matched to the penny by Cub Foods and Eagle Food Centers.\nSimilarly, defendants\u2019 stable market shares and profit margins as well as their cooperation in price checking each other\u2019s stores and their use of the same pricing system are as susceptible to an \u201cinterdependent\u201d explanation as they are to an anticompetitive one. Defendants admitted that Jewel was the price leader and that Dominick\u2019s always followed Jewel\u2019s price lead in markets wherein each was the other\u2019s main competitor. Both made conscious business decisions on the basis of this knowledge but that does not mean that both \u201cagreed\u201d or \u201cunderstood\u201d that the reason behind the \u201cfollow the leader\u201d pricing was to illicitly fix prices. Although that is a possible inference, it is not so strong that it outweighs the inference that defendants were acting competitively in an oligopolistic market. This is especially true since, notwithstanding Dominick\u2019s following Jewel\u2019s lead on the base price for premium milk, it regularly undercut that base price through $1 off promotions, thus driving traffic into its stores on those promotional days. If it maintained a lower base price to start with, the promotions could not be as dramatic without sacrificing profits which could not be outweighed by greater sales volume. Why should either defendant be expected to experiment with pricing, as plaintiffs suggest, when each testified that the current pricing system works adequately for its purposes and is implemented according to each firm\u2019s business strategy? Why risk losing a sure profit just to make a short-term gain that your competitor will negate by adjusting its own price in short order? As plaintiffs expert Dr. Rogers testified, any competitive advantage gained by either competitor through undercutting its opponent\u2019s price soon would be eliminated when the opponent reduced its price to match.\nAny informal price-checking arrangements between defendants obviously facilitated parallel pricing and one could reasonably infer that such existed in aid of a tacit agreement to raise and maintain prices. Plaintiffs\u2019 expert, Professor Kamien, testified that such systems are not consistent with competition and are an integral part of a price-fixing conspiracy. Posted prices are public information and defendants could not prevent price checking. An open-door policy with regard to price checking by a competitor does not show the existence of an agreement.\nSimilarly, although defendants\u2019 use of unitary pricing across the types of milk would make coordinating prices with each other and adhering to parallelism much easier, it could also serve competitive purposes. By pricing milk the same within a product line, no matter the type of milk, consumers have an easier time comparing prices and the competitor can more easily administer its milk programs, having to generate promotions and sales for only a single \u201cbrand\u201d rather than for four different types of product within a brand. Further, by cuing the unitary price to the cost of whole milk, the most expensive type, as defendants do here, a competitor would generate higher profits than if it cued the price to an average cost of the four milk types.\nDominick\u2019s asserted that it switched to unitary pricing because (1) consumers could now choose from among four types of milk at the same price point rather than having to limit their selection to the lowest priced milk, which would always be skim milk if milk prices were cued to the wholesale cost of each milk type; (2) administering cost changes would be easier if all milk was priced the same; and (3) it would be easier to administer promotions. Plaintiffs may assert that Dominick\u2019s reasons for unitary pricing were \u201cpretextual,\u201d but that is for the trial court to decide based on the credibility of witnesses and their demeanor. The fact that the unitary milk price was based on the cost of the highest priced milk rather than the lowest makes profit-maximizing sense.\nPlaintiffs\u2019 three experts testified variously that, based on defendants\u2019 parallel pricing, cooperative price checking and similar promotional strategies, comparative statistical analyses of milk prices and profit margins, the type of market, fungible product and stable market shares, defendants\u2019 conduct was consistent with a collusive agreement not to compete on milk prices. The trial court was not swayed by the experts\u2019 opinions that defendants were acting in collusion and this determination was not against the manifest weight of the evidence given the testimony elicited on cross-examination. That testimony disclosed that two of the experts did not consider defendants\u2019 milk promotions, i.e., the price actually paid for milk regardless of the listed shelf price, in reaching their conclusions, even though one of them, Dr. Rogers, stated that such evidence was relevant to the question of price competition. The experts also acknowledged that \u201cfollow the leader\u201d pricing is common in the type of oligopolistic market defendants share, as are high prices and high profits, even in the absence of a conspiracy.\nPursuant to defendants\u2019 motion in limine, the court excluded evidence regarding defendants\u2019 milk prices occurring after the date the complaint was filed on August 23, 2000. Plaintiffs wanted to present evidence that (1) on August 31, 2000, eight days after plaintiffs filed their complaint, Jewel reduced its premium milk price from the price at which it had been set for nine months by 40 cents per gallon, allegedly reflecting the wholesale price drop that had occurred in December 1999, and that Dominick\u2019s followed suit shortly thereafter; and (2) Dominick\u2019s had advance notice of a Jewel price change as shown by an \u201curgent\u201d e-mail to Dominick\u2019s store managers on the day of the price change telling them to check Jewel\u2019s gallon milk prices and respond by the end of the day, rather than the following week as usual. Admissibility of evidence lies within the trial court\u2019s discretion. Evidence of conspiracy occurring before or after a plaintiffs damage period may be relevant to proving a conspiracy existed during the period. Here, however, where the evidence is merely cumulative of the other parallel-pricing evidence presented, the court did not abuse its discretion in excluding it. Both the price drop and the e-mail message merely show that Dominick\u2019s consistently followed Jewel\u2019s pricing lead. Moreover, it is hard to argue that the e-mail would have served as evidence of advance notice, presumably by Jewel, to Dominick\u2019s when the e-mail was disseminated the same day as Jewel\u2019s price decrease and any consumer calling Dominick\u2019s to complain about its higher price would have served as notice of the price change, thus alerting Dominick\u2019s that it should investigate further. The evidence was properly excluded.\nIn order to allow defendants\u2019 section 2 \u2014 Ill. motion, the court had to find plaintiffs\u2019 evidence \u201cso convincing and unequivocal as to enable it to draw inferences and reach the conclusions necessary to a finding that the antitrust statutes were violated.\u201d People ex rel. Scott, 21 Ill. App. 3d at 110, 315 N.E.2d at 135. Plaintiffs\u2019 evidence of parallel pricing and plus factors was as susceptible to an innocent, market-based, competitive explanation as to an anticompetitive one. Given the absence of clear and convincing plus factors tending to show that defendants\u2019 parallel behavior was pursuant to some agreement, tacit or otherwise, to illegally restrain the price of milk, the evidence here was not so convincing and unequivocal that the court could find a violation of section 3(l)(a) of the Antitrust Act. The court\u2019s decision was not against the manifest weight of the evidence. The court did not err in granting defendants\u2019 section 2 \u2014 Ill. motion.\nFor the reasons stated above, we affirm the decision of the trial court.\nAffirmed.\nHARTMAN and HOFFMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE KARNEZIS" } ], "attorneys": [ "Connelly, Roberts & McGivney, L.L.C. (Michael P Connelly, William E. Snyder, and Thomas R. Rakowski, of counsel), and Rock, Fusco & Garvey, Ltd. (Philip J. Rock, Andrew M. Hale, Kevin W. Horan, and John J. Rock, of counsel), both of Chicago, for appellants.", "Latham & Watkins, L.L.P (Gregory P Lindstrom, Timothy B. Hardwicke, Kevin C. May, and Matthew B. Mock, of counsel), McDermott, Will & Emery (Wilber H. Boies, PC., David Marx, Jr., and Lizaheth A. Boyer, of counsel), and Tabet, Divito & Rothstein, L.L.C. (Gina L. DiVito, of counsel), all of Chicago, for appellees." ], "corrections": "", "head_matter": "MAUREEN BAKER et al., on Behalf of Themselves Indiv. and of All Others Similarly Situated, Plaintiffs-Appellants, v. JEWEL FOOD STORES, INC., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 1\u201403\u20141002\nOpinion filed January 12, 2005.\nConnelly, Roberts & McGivney, L.L.C. (Michael P Connelly, William E. Snyder, and Thomas R. Rakowski, of counsel), and Rock, Fusco & Garvey, Ltd. (Philip J. Rock, Andrew M. Hale, Kevin W. Horan, and John J. Rock, of counsel), both of Chicago, for appellants.\nLatham & Watkins, L.L.P (Gregory P Lindstrom, Timothy B. Hardwicke, Kevin C. May, and Matthew B. Mock, of counsel), McDermott, Will & Emery (Wilber H. Boies, PC., David Marx, Jr., and Lizaheth A. Boyer, of counsel), and Tabet, Divito & Rothstein, L.L.C. (Gina L. DiVito, of counsel), all of Chicago, for appellees." }, "file_name": "0062-01", "first_page_order": 80, "last_page_order": 99 }