St. Clair County State’s Attorney Brendan Kelly and private counsel David Cates must drop consumer fraud claims against a manufacturer of highway guardrails, U.S. District Judge David Herndon ruled on Jan. 10.  

He dismissed the first two counts in a statewide class action complaint against Trinity Industries, of Texas, leaving only a claim of unjust enrichment.  

The first two claims failed because Illinois consumer law protects persons, and St. Clair County doesn’t count as a person.  

Cates had sought to amend the complaint, but Herndon didn’t allow it.  

Cates sued Trinity in 2014, as special assistant to Kelly, seeking an order that would require replacement of every Trinity rail on county roads in Illinois.  

He amended the complaint last year and included all local governments.  

The first count alleged “breach of implied warranties of merchantability and fitness for a particular purpose.”  

“Defendants secretly redesigned, manufactured, and sold a product that it knew, or should have known, would cause the guardrail to lock in the throat of the unit creating a hazard to the occupants of the vehicle and others, killing or maiming several individuals,” Cates wrote.

The title of the second count alleged violation of the Uniform Deceptive Trade Practices Act, but the text quoted that law and consumer law.  

The second count asked for punitive damages.  

Cates titled the unjust enrichment count as, “Pleading in the alternative, should there be no other adequate remedy at law.”  

He sought restitution, claiming Trinity “sought only to reduce their manufacturing costs to the financial detriment of the plaintiffs and also at the expense of the safety of the public at large.”  

Trinity moved for judgment on the pleadings in September, claiming the deceptive practice law counts governments as persons but consumer law doesn’t.  

Andrew LeGrand of Dallas wrote, “Plaintiffs do not plead a separate Uniform Deceptive Trade Practices Act claim.”  

Cates answered in October, conceding the first count but pleading that the county believed it pursued the second count under the deceptive practice law.  

On the same date, he proposed to amend the complaint and add claims of racketeering, common law fraud, and civil conspiracy.  

Cates wrote that through discovery, new information had been disclosed.  

He wrote that the amendment wasn’t late in the case.  

“It is still in the initial stages,” he wrote. “Not one deposition has yet occurred.”  

He wrote that a new complaint wouldn’t change the focus.  

Magistrate Judge Stephen Williams denied the amendment in November, finding plaintiffs didn’t indicate what new discovery was critical to their new claims.  

“Such claims would change the nature of the action which defendants have been defending,” Williams wrote.  

Cates appealed to Herndon, who affirmed Williams on Jan. 10.  

“The record reveals that the discovery and the litigation is really at the tail end and that plaintiffs did have this material for a significant period of time,” Herndon wrote.

In the same order he granted judgment on the pleadings against the first two counts, with prejudice.

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