In GoHealth, LLC v. Zoom Health, Inc., 2013 WL 6183024, the Northern District provides a detailed summary of the necessary Illinois pleading elements of some signature business torts in a diversity contract dispute involving the sale of insurance products.
Plaintiff and defendants entered into a written agreement where plaintiff would sell insurance product leads to defendants for a fee. The defendants would in turn use the leads in peddling insurance products to its own customers. The relationship soured and each side filed claims against each other. Defendant’s counterclaims sounded in consumer fraud and common law fraud. Each side moved to dismiss.
The Court struck defendants’ fraud and negligent misrepresentation claims and upheld its consumer fraud and trade secrets counts.
Fraud Claim and Negligent Misrepresentation Claims
The Court dismissed the defendants’ common law fraud and negligent misrepresentation claims. An Illinois fraud plaintiff must allege a (i) knowingly false statement, (ii) intended to induce reliance in the plaintiff, (iii) reliance by the plaintiff and (iv) damages resulting from the reliance.
Negligent misrepresentation has the same elements as fraud except the plaintiff must allege a negligent or reckless (instead of intentional) false statement. Federal specificity-in-pleading rules under Rule 9(b) don’t apply to a negligent misrepresentation claim. *9-10.
Defendants’ fraud count asserted that plaintiff falsely inflated defendants commission and renewal rates and misstated some sales projections.
The Court found that these two statements non-actionable as they involved future events (e.g. future sales and commissions projections). Statements of future intent, opinions or of financial projections don’t equal fraud under the law.
The Court also rejected defendants’ argument that plaintiff was in business of providing information for the guidance of others in their business dealings – a key exception to the economic loss rule (this rule posits that you can’t recover in tort where a contract governs the parties’ relationship.)
The Court held that plaintiff was contractually obligated to provide sales leads and nothing else. It wasn’t hired to provide sales projections or renewal forecasts – the bases for defendants’ fraud and negligent misrepresentation claims. Any information provided by plaintiff in connection with the leads was peripheral to the contract’s core purpose. *11.
Consumer Fraud Claims – Allowed
The court sustained defendants’ consumer fraud counterclaim. 815 ILCS 505/1 (the “Act”). The consumer fraud count was based on plaintiff furnishing over 40,000 bogus and recycled sales leads to defendant instead of fresh leads.
Allowing the claim, the Court broadly construed the Act to encompass business-to-business relationships: “the protections of the Act are not limited to consumers”, but applies broadly to “persons”, including businesses. *12.
The court found the defendant was a “consumer” of plaintiff’s sales leads which constituted intangible property under the Act. (The Act applies to intangible property.)
The defendants’ claim that plaintiff supplied a high volume of duplicate leads also stated a deceptive act under the Act. *12.
This case is post-worthy for its application of the consumer fraud statute to a purely business-to-business setting and its discussion of what constitutes “information” in the context of a negligent misrepresentation claim that will beat an economic loss rule challenge.