MOUNT VERNON – Appellate judges found St. Clair County Circuit Judge Heinz Rudolf committed five errors when he dismissed a claim of unfair competition in the carpet cleaning business.
On Nov. 4, they found Tri-Plex Technical Services adequately alleged consumer fraud and unfair trade practices.
They remanded the case to Rudolf for further proceedings.
Tri-Plex develops and manufactures products for carpet care professionals.
It sued competitors Jon-Don, Legend Brands, Chemical Technologies International, Bridgepoint Systems, Groom Solutions, and Hydramaster in 2020.
It claimed their products contained more phosphorous than Illinois law allows.
The state’s Detergent Act provides that no one can sell any cleaning agent containing more than half a percent phosphorous by weight.
Tri-Plex also claimed products of Don-Jon and Legend Brands exceeded state standards for volatile organic materials.
Tri-Plex claimed consumers purchased the products because they cleaned better.
It claimed defendants knowingly and willfully misled customers and charged a premium as if the products were legal and superior.
It claimed defendants exposed consumers to harm.
It asserted a civil conspiracy claim against Don-Jon and Legend Brands.
Rudolf heard argument last year and dismissed the complaint with prejudice.
First, he found the state pollution control board had exclusive authority to enforce the detergent law and Tri-Plex couldn’t enforce laws and regulations.
Second, he barred claims of failure to adequately label products, due to compliance with federal regulations requiring disclosure of hazardous chemicals.
He found Tri-Plex didn’t allege that labels of defendants didn’t comply or identify any other regulation that would require defendants to notify consumers.
Third, he found Tri-Plex failed to adequately allege likelihood of confusion.
He found the likelihood only existed when a deceptive name or distinct symbol would likely mislead consumers as to the source or origin of a product.
Fourth, he found Tri-Plex lacked standing to allege consumer fraud because it wasn’t a consumer.
He also found Tri-Plex didn’t adequately allege under consumer law that it suffered damages that conduct of defendants proximately caused.
Fifth, he found the conspiracy claim failed because it depended on a viable cause of action under trade practice or consumer law.
Fifth District Justice Judy Cates rejected all five points, with Justices Thomas Welch and John Barberis concurring.
Cates found Tri-Plex didn’t bring suit under detergent law or environmental law.
She found Tri-Plex invoked laws and regulations as evidence to support its claims.
“A practice may offend public policy if it violates a standard of conduct set forth in an existing statute or common law doctrine that typically applies to such a situation,” she wrote.
She found the practices Tri-Plex sought to remedy were separate and distinct from decisions and actions of the pollution control board.
“We do not agree that the plaintiff used the Illinois Consumer Fraud Act and the Uniform Deceptive Trade Practices Act to enforce the Detergent Act or environmental laws governing emissions,” she wrote.
She found Rudolf didn’t discuss allegations regarding overall failure to notify consumers about ingredients, restrictions, and potential harm.
She found neither the labels nor the specific content were before Rudolf and the record didn’t support his findings.
“Grounds for dismissal that do not appear on the face of the pleadings should be supported by affidavit or other documentary evidence," she wrote.
“A motion to dismiss is legally insufficient when extrinsic facts crucial to the motion are not supported by affidavit or other documentary evidence.”
She found protections of consumer fraud law aren’t limited to consumers.
She quoted from its title that it protects consumers, borrowers and businessmen.
She found it affords redress for deceptive and unfair practices.
She found Rudolf incorrect about limits on likelihood of confusion.
"Any conduct that creates a likelihood of consumer confusion or misunderstanding is potentially actionable,” she wrote.
She found because Tri-Plex adequately asserted claims under trade practice and consumer laws, the civil conspiracy claim also survived the motion to dismiss.
David Nelson of Belleville, Matthew Armstrong of Brentwood, Missouri and Stuart Cochran of Dallas, Texas represent Tri-Plex.