{ "id": 5766037, "name": "SAM PAPPAS et al., Indiv. and as Parents and Next Friends of Thanos Pappas, and on Behalf of a Class of Others Similarly Situated, Plaintiffs-Appellants, v. PELLA CORPORATION et al., Defendants-Appellees", "name_abbreviation": "Pappas v. Pella Corp.", "decision_date": "2006-02-21", "docket_number": "No. 1-05-1702", "first_page": "795", "last_page": "806", "citations": [ { "type": "official", "cite": "363 Ill. App. 3d 795" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "805 N.E.2d 213", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "208 Ill. 2d 517", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463089 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "525" }, { "page": "520" }, { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0517-01" ] }, { "cite": "405 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722077 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0233-01" ] }, { "cite": "775 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "201 Ill. 2d 403", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477014 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "417-18" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0403-01" ] }, { "cite": "634 N.E.2d 1184", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "home builder liable for misrepresentations that house would be free of water problems where builder constructed garage floor below the level of the roadway" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2851576 ], "year": 1994, "pin_cites": [ { "parenthetical": "home builder liable for misrepresentations that house would be free of water problems where builder constructed garage floor below the level of the roadway" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0531-01" ] }, { "cite": "643 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "seller of condominiums allegedly failed to disclose history of water infiltration problems" } ], "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 790", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333181 ], "year": 1994, "pin_cites": [ { "parenthetical": "seller of condominiums allegedly failed to disclose history of water infiltration problems" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0790-01" ] }, { "cite": "668 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "car dealership allegedly engaged in deceptive advertising regarding purchasing and financing terms" } ], "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 486", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159499 ], "year": 1996, "pin_cites": [ { "parenthetical": "car dealership allegedly engaged in deceptive advertising regarding purchasing and financing terms" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0486-01" ] }, { "cite": "717 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "developer of condominiums allegedly failed to maintain adequate reserves for repairs and to disclose the status of the reserve account" } ], "opinion_index": 0 }, { "cite": "307 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173534 ], "year": 1999, "pin_cites": [ { "parenthetical": "developer of condominiums allegedly failed to maintain adequate reserves for repairs and to disclose the status of the reserve account" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0614-01" ] }, { "cite": "751 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "car manufacturer allegedly misrepresented extent of coverage under extended warranty" } ], "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 825", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126364 ], "year": 2001, "pin_cites": [ { "parenthetical": "car manufacturer allegedly misrepresented extent of coverage under extended warranty" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0825-01" ] }, { "cite": "759 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "seller of car allegedly concealed defect that resulted in \"excessive oil consumption and [caused] severe damage to the engine from insufficient oil\"" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 1139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570734 ], "year": 2001, "pin_cites": [ { "page": "1143", "parenthetical": "seller of car allegedly concealed defect that resulted in \"excessive oil consumption and [caused] severe damage to the engine from insufficient oil\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1139-01" ] }, { "cite": "834 N.E.2d 952", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "seller of home allegedly failed to disclose that basement had flooded once before sale" } ], "opinion_index": 0 }, { "cite": "359 Ill. App. 3d 897", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5596043 ], "year": 2005, "pin_cites": [ { "parenthetical": "seller of home allegedly failed to disclose that basement had flooded once before sale" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0897-01" ] }, { "cite": "363 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765044 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "370" }, { "page": "369", "parenthetical": "\"[t]he diminished value of a product due to defects associated with the product is a compensable injury in consumer fraud *** causes of action\" where the value of car was allegedly diminished due to defective front height sensors" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0365-01" ] }, { "cite": "808 N.E.2d 1026", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "348 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4022631 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0001-01" ] }, { "cite": "449 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "96 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3113729 ], "year": 1983, "pin_cites": [ { "page": "153-54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0150-01" ] }, { "cite": "691 N.E.2d 807", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45687 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0001-01" ] }, { "cite": "724 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415350 ], "year": 2000, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0308-01" ] }, { "cite": "835 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "216 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828029 ], "weight": 20, "year": 2005, "pin_cites": [ { "page": "110" }, { "page": "156" }, { "page": "168-69" }, { "page": "169" }, { "page": "169" }, { "page": "178" }, { "page": "193" }, { "page": "170" }, { "page": "170-71" }, { "page": "171" }, { "page": "197" }, { "page": "196" }, { "page": "173-74" }, { "page": "173", "parenthetical": "phrases \" 'quality replacement parts' \" and \" 'very high performance criteria' \" amounted to nonactionable puffing" }, { "page": "199" }, { "page": "200" }, { "page": "200" }, { "page": "202" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0100-01" ] }, { "cite": "684 N.E.2d 859", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725130 ], "weight": 5, "year": 1997, "pin_cites": [ { "page": "61" }, { "page": "69" }, { "page": "68" }, { "page": "69" }, { "page": "68-69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0059-01" ] }, { "cite": "682 N.E.2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351012 ], "year": 1997, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0252-01" ] }, { "cite": "675 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "174 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223623 ], "weight": 10, "year": 1996, "pin_cites": [ { "page": "501" }, { "page": "504" }, { "page": "487-88" }, { "page": "504" }, { "page": "505" }, { "page": "505" }, { "page": "505" }, { "page": "504" }, { "page": "505" }, { "page": "504", "parenthetical": "\"the required allegation of proximate cause is minimal since that determination is best left to the trier of fact\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0482-01" ] }, { "cite": "695 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "182 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864532 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "373" }, { "page": "375-76" }, { "page": "375-76", "parenthetical": "affirming summary judgment in favor of the defendant because the plaintiffs deposition testimony established he was not actually deceived by the defendant's advertising" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0359-01" ] }, { "cite": "713 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "186 Ill. 2d 472", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243943 ], "year": 1999, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0472-01" ] }, { "cite": "776 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "201 Ill. 2d 134", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477003 ], "weight": 8, "year": 2002, "pin_cites": [ { "page": "147" }, { "page": "147" }, { "page": "147" }, { "page": "149" }, { "page": "140-41" }, { "page": "154" }, { "page": "154-55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0134-01" ] } ], "analysis": { "cardinality": 1085, "char_count": 25544, "ocr_confidence": 0.78, "pagerank": { "raw": 2.2674947160821675e-07, "percentile": 0.7833765597917098 }, "sha256": "ae1281660e877d3ae612d4d7df23f1caf597ebe2130d6d680fb92cf98a18c045", "simhash": "1:f2bf97561f7dd7a5", "word_count": 4034 }, "last_updated": "2023-07-14T18:25:30.372916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SAM PAPPAS et al., Indiv. and as Parents and Next Friends of Thanos Pappas, and on Behalf of a Class of Others Similarly Situated, Plaintiffs-Appellants, v. PELLA CORPORATION et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nPlaintiffs Sam and Mary Pappas bought windows from defendants Pella Corporation and Pella Windows and Doors (Pella). They claim the windows were defective, causing premature wood rot and deterioration. They allege Pella knew about the defects but did not inform buyers. The question is whether the plaintiffs have successfully pleaded a cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2000)). The trial court dismissed the plaintiffs\u2019 complaint. We reverse and remand.\nFACTS\nIn their third amended complaint, plaintiffs allege Pella knew of and concealed or failed to disclose to plaintiffs the following facts: (1) the aluminum cladding applied to the bottom sash of the windows was manufactured and designed with an upward facing seam that allowed water to enter the space between the aluminum cladding and wooden sash; (2) the butyl sealant applied to the upward facing seam would prematurely deteriorate and allow water to enter the space; (3) the preservative applied to the wooden sash failed to prevent deterioration and wood rot; and (3) the wooden sashes of the aluminum-clad windows were deteriorating and rotting due to water damage.\nPlaintiffs allege all of the aluminum-clad windows manufactured and sold by Pella, including the windows sold to plaintiffs, had latent, undiscoverable defects at the time of sale. Pella never publicized the defects or attempted to notify customers of the defects or recalled the defective windows.\nAs a direct and proximate result of the defects, say the plaintiffs, the wooden frames of their windows experienced premature wood rot and deterioration. Plaintiffs say they would not have purchased the windows had they known of the defects. They allege Pella\u2019s concealment, suppression, or omission of material facts constitutes unfair, deceptive, or fraudulent business practices under the Consumer Fraud Act. They allege the concealment had an effect on consumers generally, implicated the general market, and was immoral, unethical, oppressive, unscrupulous, and otherwise presented consumer protection concerns. Their complaint contains three counts \u2014 fraudulent concealment, unjust enrichment, and consumer fraud.\nPella brought a motion to dismiss under section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 2002)). Pella contended plaintiffs failed to plead an actionable omission because the complaint contained only \u201copinions and conclusions unsupported by specific factual allegations.\u201d Pella contended plaintiffs\u2019 complaint was an attempt to circumvent a warranty claim based on their failure to plead a breach of warranty in the complaint.\nThe trial court dismissed all three counts of plaintiffs\u2019 complaint. The Consumer Fraud Act count was dismissed with prejudice. The court found the plaintiffs failed to state how Pella\u2019s alleged conceal-ments were \u201cimmoral, unethical, oppressive, or unscrupulous.\u201d The court held plaintiffs failed to allege how the contract between the parties, specifically the warranty provisions, would not provide adequate relief to the plaintiffs. The trial court\u2019s order did not address the class action claims. The plaintiffs\u2019 appeal is limited to their individual Consumer Fraud Act claim.\nDECISION\nA motion under section 2 \u2014 615 attacks the legal sufficiency of the complaint by asserting that it fails to state a cause of action on which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147, 776 N.E.2d 151 (2002), citing Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 491, 713 N.E.2d 543 (1999). In determining whether a complaint states a cause of action, the allegations in the complaint are construed in the light most favorable to the plaintiff. Oliveira, 201 Ill. 2d at 147. We accept as true all well-pleaded facts and reasonable inferences drawn from those facts. Our review is de novo. Oliveira, 201 Ill. 2d at 147.\nSection 2 of the Consumer Fraud Act prohibits:\n\u201c[ujnfair 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 *** in the conduct of any trade or commerce.\u201d 815 ILCS 505/2 (West 2002).\nSection 10a(a) of the Act provides for a private cause of action for \u201c[a]ny person who suffers actual damage as a result of a violation of this Act.\u201d 815 ILCS 505/10a(a) (West 2002).\nTo adequately plead a cause of action under the Act, a plaintiff must allege: (1) a deceptive act or practice by the defendant, (2) the defendant\u2019s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception. Oliveira, 201 Ill. 2d at 149; Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 373, 695 N.E.2d 853 (1998). A \u201ccomplaint alleging a violation of consumer fraud must be pled with the same particularity and specificity as that required under common law fraud.\u201d Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501, 675 N.E.2d 584 (1996).\nAn omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. Connick, 174 Ill. 2d at 504. Concealment is actionable where it is employed as a device to mislead. First Midwest Bank, N.A. v. Sparks, 289 Ill. App. 3d 252, 257, 682 N.E.2d 373 (1997).\nIn Connick, the plaintiffs filed a class action lawsuit alleging that the Suzuki Samurai vehicles they purchased were unsafe due to their excessive rollover risk. Connick, 174 Ill. 2d at 487-88. The plaintiffs contended, among other things, that Suzuki fraudulently concealed material facts by failing to inform consumers of the Samurai\u2019s rollover tendency and selling the Samurai without disclosing the safety risks. Connick, 174 Ill. 2d at 504.\nThe court held the plaintiffs adequately pled a consumer fraud violation. Connick, 174 Ill. 2d at 505.\n\u201cPlaintiffs alleged that Suzuki was aware of the Samurai\u2019s safety problems, including its tendency to roll over and its inadequate protection for passengers. Plaintiffs further alleged that Suzuki failed to disclose these defects. Finally, plaintiffs alleged that the safety problems of the Samurai were a material fact in that they would not have purchased the vehicles if Suzuki had disclosed the Samurai\u2019s safety risk.\u201d Connick, 174 Ill. 2d at 505.\nIn a similar case, Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59, 61, 684 N.E.2d 859 (1997), the plaintiffs alleged defendants knowingly concealed defects in their Audi vehicles that caused \u201cunintended acceleration.\u201d Plaintiffs alleged Audi was aware of the Audi 5000\u2019s safety problems but failed to disclose those defects. Plaintiffs further alleged the unintended acceleration was a material fact in that they would not have purchased the Audi 5000 vehicles if Audi previously had disclosed the safety risk. Perona, 292 Ill. App. 3d at 69. The court held the plaintiffs adequately alleged a consumer fraud violation based on a material omission by Audi. Perona, 292 Ill. App. 3d at 68.\nRelying on the Illinois Supreme Court\u2019s decision in Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 835 N.E.2d 801 (2005), Pella contends the plaintiffs are at most alleging a simple breach of warranty while refusing to pursue their warranty remedies. Merely alleging that a defendant failed to call its product defective, Pella says, does not convert a breach of warranty into consumer fraud.\nThe plaintiffs\u2019 claim in Avery was based on State Farm\u2019s specification of non-OEM (\u201cOriginal Equipment Manufacturer\u201d) replacement parts. Avery, 216 Ill. 2d at 110. State Farm contended the plaintiffs\u2019 consumer fraud count was simply a duplicate of the breach of contract count and should be dismissed. State Farm pointed to language in the complaint asserting that State Farm installed inferior parts despite having \u201c \u2018promised\u2019 \u201d to use parts of \u201c \u2018like kind and quality.\u2019 \u201d Avery, 216 Ill. 2d at 156. In their appellate brief, the plaintiffs repeatedly referred to State Farm\u2019s violation of the express written promises in its policies and State Farm\u2019s failure to fulfill its contractual obligations. Avery, 216 Ill. 2d at 168-69.\nThe court held a breach of contractual promise, without more, is not actionable under the Consumer Fraud Act. Avery, 216 Ill. 2d at 169. \u201c \u2018Were our courts to accept plaintiffs assertion that promises that go unfulfilled are actionable under the Consumer Fraud Act, consumer plaintiffs could convert any suit for breach of contract into a consumer fraud action.\u2019 \u201d Avery, 216 Ill. 2d at 169, quoting Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 312, 724 N.E.2d 988 (2000).\nIn this case, there is no evidence that the claims in plaintiffs\u2019 third amended complaint are based on a simple breach of warranty or breach of contract by Pella. Plaintiffs allege Pella knew its aluminum-clad windows would allow water to enter, causing wood rot and deterioration, and failed to disclose these facts to plaintiffs prior to their purchase of the windows. Plaintiffs do not allege Pella breached any promises to them. They say, rather, that Pella knowingly withheld material facts about its windows, that they would not have purchased the windows had they been informed of those facts.\nIt is not necessary for plaintiffs to plead that the warranty provisions of their contract would not provide them adequate relief. There is no such requirement in the Act. See 815 ILCS 505/2, 10a(a) (West 2002). \u201cThe Act was intended to protect consumers against fraud, unfair methods of competition, and unfair or deceptive acts or practices in the conduct of trade or commerce.\u201d Elson v. State Farm Fire & Casualty Co., 295 Ill. App. 3d 1, 14, 691 N.E.2d 807 (1998). The Act was designed to provide broader protection for consumers than the common law action of fraud. Elson, 295 Ill. App. 3d at 14. A consumer fraud action is different from a warranty action. In some cases, courts have affirmed the dismissal of plaintiffs\u2019 breach of warranty claims while allowing Consumer Fraud Act claims to stand. See Connick, 174 Ill. 2d at 505; Perona, 292 Ill. App. 3d at 69.\nPella\u2019s references to plaintiffs\u2019 prior complaints and their \u201cabandoned\u201d claims and theories, including breach of warranty, are irrelevant. Where a party files an amended pleading that does not refer to or adopt the prior pleadings, the earlier pleadings cease to be a part of the record. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54, 449 N.E.2d 125 (1983). The prior allegations no longer are at issue.\nThe plaintiffs in Avery also contended State Farm failed to disclose the categorical inferiority of the non-OEM parts. The plaintiffs contended the failure to disclose constituted \u201c \u2018the concealment, suppression or omission of any material fact,\u2019 \u201d in violation of the Consumer Fraud Act. Avery, 216 Ill. 2d at 178, quoting 815 ILCS 505/2 (West 1998). The court rejected the plaintiffs\u2019 argument:\n\u201cUnder plaintiffs\u2019 reasoning, it would appear that to avoid liability under the Act, every knowing sale of a brand of product which is not the top brand would have to carry a disclaimer: \u2018Notice, our brand is not, on the whole, as good as our competitor\u2019s.\u2019 Thus, adopting plaintiffs\u2019 argument would appear to work a significant expansion of liability under the Act.\u201d Avery, 216 Ill. 2d at 193.\nPella contends the allegations in plaintiffs\u2019 complaint are equivalent to a claim that Pella\u2019s products are inferior or disappointed plaintiffs\u2019 commercial expectations. Pella says Avery means the Consumer Fraud Act does not require it to proclaim the alleged inferiority of its products.\nWe are not persuaded by Pella\u2019s reliance on the Avery decision. In Avery, the plaintiffs did not claim that any of the non-OEM parts specified by State Farm in its repair estimates was defective. Avery, 216 Ill. 2d at 170. The plaintiffs\u2019 claim was more general in nature\u2014 that non-OEM parts, as a whole, were not as good as OEM parts. Avery, 216 Ill. 2d at 170-71. The court declined to hold that State Farm\u2019s specification of \u201c \u2018categorically inferior\u2019 \u201d nondefective parts, in and of itself, was fraudulent. Avery, 216 Ill. 2d at 171. In addition, the court found the plaintiffs had not suffered any actual damage. Avery, 216 Ill. 2d at 197. The non-OEM parts used on the vehicle did not affect the value of the vehicle. Avery, 216 Ill. 2d at 196.\nHere, the plaintiffs do not contend Pella should have disclosed its windows were inferior to other windows from other manufacturers. Rather, the plaintiffs specify a feature of the windows that allowed water to enter the frames and cause damage to the windows. Further, the plaintiffs allege they suffered actual damage because their windows underwent rotting and deterioration. Unlike the plaintiffs in Avery, the plaintiffs contend the windows they purchased contained undisclosed defects.\nWe next consider Pella\u2019s contention that plaintiffs have not made reference to any legal definition of \u201cdefect.\u201d Pella contends that under Illinois law, a product is not \u201cdefective\u201d unless it is \u201cunreasonably dangerous.\u201d See Mele v. Howmedica, Inc., 348 Ill. App. 3d 1, 808 N.E.2d 1026 (2004); Illinois Pattern Jury Instructions, Civil, No. 400.02 (2005). Pella criticizes plaintiffs for failing to plead according to this standard. Pella appears to argue that where an allegedly defective product is involved, a plaintiff must plead that a product is \u201cunreasonably dangerous\u201d to state a claim under the Consumer Fraud Act. Pella\u2019s citations do not support its implicit argument. The Mele decision concerns strict product liability and negligent design claims, both product liability claims. The decision makes no reference to the Consumer Fraud Act. Similarly, the pattern jury instructions cited concern only strict product liability, not the Consumer Fraud Act.\nPella\u2019s suggestion that the Consumer Fraud Act incorporates a strict product liability standard is not supported by Illinois law. While a plaintiff bringing a product liability claim must allege that a defect renders a product \u201cunreasonably dangerous,\u201d neither \u201cdefect\u201d nor \u201cunreasonably dangerous\u201d is an element of a Consumer Fraud Act claim. Rather, for a claim based on an omission, plaintiffs are required to allege an omission of a material fact in the conduct of trade or commerce. See Connick, 174 Ill. 2d at 504, citing 815 ILCS 505/2 (West 1994). A material fact exists where a buyer of a product would have acted differently if it had known about the allegedly omitted information or where that information is the kind a buyer would be expected to rely on in deciding whether to purchase the product. Connick, 174 Ill. 2d at 505.\nA defect need not be life-threatening. Dewan v. Ford Motor Co., 363 Ill. App. 3d 365, 370 (2005). A defect could fall well short of the \u201cunreasonably dangerous\u201d standard yet still be serious enough that a reasonable buyer would not purchase the product if made aware of the defect.\nAn omission need not concern potential bodily harm. The Consumer Fraud Act provides remedies for omissions resulting in purely economic injury. See, e.g., Dewan, 363 Ill. App. 3d at 369 (\u201c[t]he diminished value of a product due to defects associated with the product is a compensable injury in consumer fraud *** causes of action\u201d where the value of car was allegedly diminished due to defective front height sensors); Bauer v. Giannis, 359 Ill. App. 3d 897, 834 N.E.2d 952 (2005) (seller of home allegedly failed to disclose that basement had flooded once before sale); Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1143, 759 N.E.2d 66 (2001) (seller of car allegedly concealed defect that resulted in \u201cexcessive oil consumption and [caused] severe damage to the engine from insufficient oil\u201d); Oldendorf v. General Motors Corp., 322 Ill. App. 3d 825, 751 N.E.2d 214 (2001) (car manufacturer allegedly misrepresented extent of coverage under extended warranty); Board of Managers of Weathersfield Condominium Ass'n v. Schaumburg Ltd. Partnership, 307 Ill. App. 3d 614, 717 N.E.2d 429 (1999) (developer of condominiums allegedly failed to maintain adequate reserves for repairs and to disclose the status of the reserve account); Garcia v. Overland Bond & Investment Co., 282 Ill. App. 3d 486, 668 N.E.2d 199 (1996) (car dealership allegedly engaged in deceptive advertising regarding purchasing and financing terms); Washington Courte Condominium Ass'n-Four v. Washington-Golf Corp., 267 Ill. App. 3d 790, 643 N.E.2d 199 (1994) (seller of condominiums allegedly failed to disclose history of water infiltration problems); Grove v. Huffman, 262 Ill. App. 3d 531, 634 N.E.2d 1184 (1994) (home builder liable for misrepresentations that house would be free of water problems where builder constructed garage floor below the level of the roadway).\nPella further contends the plaintiffs\u2019 complaint amounts to a claim of nonactionable puffery and \u201csubjective and comparative opinions.\u201d \u201c \u2018Puffing\u2019 denotes the exaggerations reasonably to be expected of a seller as to the degree of quality of his or her product, the truth or falsity of which cannot be precisely determined.\u201d Avery, 216 Ill. 2d at 173-74. The claim that Pella should have advertised that its windows are defective, Pella says, is a corollary to Pella stating that its products are high quality. The court in Avery affirmed that mere puffery cannot form the basis of a consumer fraud claim. See Avery, 216 Ill. 2d at 173 (phrases \u201c \u2018quality replacement parts\u2019 \u201d and \u201c \u2018very high performance criteria\u2019 \u201d amounted to nonactionable puffing). We disagree with Pella\u2019s suggested recharacterization of the complaint in this case. Plaintiffs\u2019 claim is not based on any affirmative representations, of any kind, true or false, made by Pella. It is based on the alleged concealment or omission of material facts. We see nothing in the plaintiffs\u2019 third amended complaint to suggest puffery is at issue.\nPella contends, and the trial court held, that plaintiffs failed to plead with specificity \u201chow Defendants\u2019 statements were \u2018immoral, unethical, oppressive, or unscrupulous\u2019 as to these Plaintiffs.\u201d In their complaint, plaintiffs alleged:\n\u201cThe above-described concealments, suppressions or omissions by Pella have had an effect on consumers generally, implicate the general market, are immoral, unethical, oppressive, unscrupulous, and otherwise present consumer protection concerns. Pella knew of the material defects and continued to manufacture, distribute and sell the windows to the unsuspecting public (consumers) without disclosure. Furthermore, Pella knew of the defects and failed to recall or repair the defects.\u201d\nIt is not a requirement in every case under the Consumer Fraud Act for plaintiffs to plead the defendant\u2019s actions were \u201cimmoral, unethical, oppressive, or unscrupulous.\u201d The Act declares unlawful \u201c[u]nfair methods of competition and unfair or deceptive acts or practices.\u201d (Emphasis added.) 815 ILCS 505/2 (West 2002).\nBecause the statute is in the disjunctive, and because the plaintiffs allege deception, not unfairness, we see no need to require plaintiffs to plead the elements of unfairness. The factors to be considered in determining unfairness are: (1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; and (3) whether it causes substantial injury to consumers. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417-18, 775 N.E.2d 951 (2002), citing Federal Trade Comm'n v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n.5, 31 L. Ed. 2d 170, 179 n.5, 92 S. Ct. 898, 905 n.5 (1972). As the court said in Robinson: \u201cRecovery may be had for unfair as well as deceptive conduct.\u201d Robinson, 201 Ill. 2d at 417. Robinson was treated as an unfairness case.\nPella also contends plaintiffs do not sufficiently plead proximate cause. Pella contends plaintiffs never pleaded facts in their third amended complaint to establish they were \u201cactually deceived\u201d by Pel-la\u2019s alleged material omissions or misrepresentations regarding the quality of the windows.\nOur supreme court has held that \u201cin a cause of action for fraudulent misrepresentation brought under the Consumer Fraud Act, a plaintiff must prove that he or she was actually deceived by the misrepresentation in order to establish the element of proximate causation.\u201d Avery, 216 Ill. 2d at 199. See also Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 805 N.E.2d 213 (2004); Oliveira, 201 Ill. 2d 134, 776 N.E.2d 151; Zekman, 182 Ill. 2d 359, 695 N.E.2d 853.\nIn Shannon, Oliveira, and Zekman, the court held deceptive advertising could not be the proximate cause of damages under the Act unless the advertising actually deceived the plaintiffs. Shannon, 208 Ill. 2d at 525; Oliveira, 201 Ill. 2d at 140-41; Zekman, 182 Ill. 2d at 375-76.\nIn Oliveira, the plaintiff contended the defendant\u2019s advertisements for its premium gasoline were false and misleading and omitted material facts. Relying on Zekman, the supreme court affirmed the dismissal of the plaintiffs claim under the Act because his complaint failed to allege that the representative plaintiff \u201cwas, in any manner, deceived by defendant\u2019s advertisements.\u201d Oliveira, 201 Ill. 2d at 154. Because the plaintiff did not see, hear, or read any of the defendant\u2019s ads, he could not contend he believed he was buying gasoline that benefitted the environment or improved engine performance. Oliveira, 201 Ill. 2d at 154-55. See also Zekman, 182 Ill. 2d at 375-76 (affirming summary judgment in favor of the defendant because the plaintiffs deposition testimony established he was not actually deceived by the defendant\u2019s advertising).\nIn Shannon, the plaintiff contended the defendant\u2019s composite siding was defective because it was subject to rotting, buckling, warping, wick moisture, and general failure. The plaintiffs contended the defendant deceptively advertised the composite siding as \u201c Tow maintenance,\u2019 \u201d \u201c \u2018of inherent good quality,\u2019 \u201d and \u201c \u2018durable.\u2019 \u201d Shannon, 208 Ill. 2d at 520. The supreme court affirmed summary judgment in favor of the defendant because the defendant\u2019s advertising \u201cdid not in any way deceive the plaintiffs.\u201d Shannon, 208 Ill. 2d at 525. The court said:\n\u201cIt is certainly possible that evidence might demonstrate that the siding would not have been installed on plaintiffs\u2019 homes but for [defendant\u2019s] promotional literature. It does not follow, however, that the literature distributed to unnamed persons 20 or more years ago, who may or may not have been deceived, induced plaintiffs to accept the siding. Without such a nexus, the alleged deception is simply too remote from the claimed damages to satisfy the element of proximate causation.\u201d Shannon, 208 Ill. 2d at 525.\nIn Avery, the supreme court held the plaintiff had to establish he was actually deceived by the defendant\u2019s representations or omissions in order to prove his claim. Avery, 216 Ill. 2d at 200. The court concluded the notion that the plaintiff was deceived by omissions or representations in his repair estimate and brochure into accepting inferior automotive parts was categorically refuted by the record. Avery, 216 Ill. 2d at 200. The plaintiffs deposition testimony made it abundantly clear that he was not actually deceived by anything the defendant said or did not say. Avery, 216 Ill. 2d at 202. The court, relying on Oliveira, concluded plaintiff had failed to establish proximate causation. Avery, 216 Ill. 2d at 203.\nUnlike the plaintiffs in Avery, Shannon, Oliveira, and Zekman, plaintiffs here are not relying on allegedly deceptive advertising in order to establish their consumer fraud claim against Pella. Instead, plaintiffs allege that Pella, even though aware of a material defect, never notified its customers that the aluminum-clad wood windows were defective. In effect, plaintiffs allege they relied on Pella\u2019s concealment by silence. Requiring anything more would eviscerate the spirit and purpose of the Consumer Fraud Act.\nWe find plaintiffs adequately pleaded proximate causation in their third amended complaint for consumer fraud. See Connick, 174 Ill. 2d at 504 (\u201cthe required allegation of proximate cause is minimal since that determination is best left to the trier of fact\u201d); Perona, 292 Ill. App. 3d at 68-69.\nCONCLUSION\nWe reverse the trial court\u2019s decision dismissing plaintiffs\u2019 third amended complaint and remand this cause for further proceedings.\nReversed and remanded.\nGARCIA, EJ., and HALL, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Childress, Duffy, Goldblatt, Ltd., of Chicago (Michael Childress, Thomas J. Loucks, Jason G. Shanfield, and Peter L. Currie, of counsel), for appellants.", "Wildman, Harrold, Allen & Dixon, LLP, of Chicago (John A. Roberts, of counsel), and Faegre & Benson, LLP, of Minneapolis, Minnesota (James O'Neal and John P. Mandler, of counsel), for appellees." ], "corrections": "", "head_matter": "SAM PAPPAS et al., Indiv. and as Parents and Next Friends of Thanos Pappas, and on Behalf of a Class of Others Similarly Situated, Plaintiffs-Appellants, v. PELLA CORPORATION et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1-05-1702\nOpinion filed February 21, 2006.\nRehearing denied March 22, 2006.\nChildress, Duffy, Goldblatt, Ltd., of Chicago (Michael Childress, Thomas J. Loucks, Jason G. Shanfield, and Peter L. Currie, of counsel), for appellants.\nWildman, Harrold, Allen & Dixon, LLP, of Chicago (John A. Roberts, of counsel), and Faegre & Benson, LLP, of Minneapolis, Minnesota (James O'Neal and John P. Mandler, of counsel), for appellees." }, "file_name": "0795-01", "first_page_order": 813, "last_page_order": 824 }