The Seventh Circuit recently affirmed the Illinois Northern District’s Rule 12(b)(6) dismissal of class action plaintiffs’ fraudand deceptive practices claims against the owners of the Zillow.com online real estate valuation site.
The lower court in Patel v. Zillow, Inc. found the plaintiffs failed to sufficiently allege colorable consumer fraud and deceptive trade practices claims based mainly on the site’s “Zestimate” feature – an algorithm-based property estimator program.
The plaintiffs alleged Zillow scared off would-be buyers by undervaluing properties. When Zillow refused plaintiffs request to remove the low-ball estimates, plaintiffs sued under various Illinois consumer statutes.
Plaintiffs first alleged Zillow violated the Illinois Real Estate Appraiser Licensing Act, 225 ILCS 458/1 et. seq. (the “Licensing Act”) by performing appraisals without a license. In their fraud and deceptive practices complaint counts, plaintiffs alleged Zillow used distorted property value estimates to tamp down true property values and engaged in false advertising by giving preferential listing treatment to sponsoring real estate brokers and lenders.
The Seventh Circuit affirmed dismissal of the plaintiffs’ Licensing Act claim on the ground that the Licensing Act doesn’t provide for a private cause of action. Instead, the statute is replete with administrative enforcement provisions (fines of up to $25K) and criminal penalties (Class A misdemeanor for first offense; Class 4 felony for subsequent ones) for violations. Since there was no express or implied private right of action for the Licensing Act violation, that claim failed. [3]
Jettisoning the plaintiffs’ statutory Deceptive Trade PracticesAct and Consumer Fraud Act claims (815 ILCS 510/1 et seq.; 815 ILCS 505/1 et seq., respectively), the Seventh Circuit agreed with the lower court that Zestimates were not actionable statements of fact likely to confuse consumers.
Instead, like its name suggests (‘estimate’ is “built in”), a Zestimate is simply estimates of a property’s value. This point is confirmed by Zillow’s disclaimer-laden site that makes clear it is only a “starting point” for determining property values.
Expanding on the deceptive practices and consumer fraud claim deficits, the Court disagreed with plaintiffs’ thesis that removing faulty valuations would improve the algorithm’s overall accuracy. The Court noted that if Zillow was forced to remove estimates each time someone disagreed with a published value, it would “skew distribution,” dilute the site’s utility and either unfairly benefit or penalize buyers or sellers; depending on whether the retracted data was accurate. [4]
Turning to plaintiffs’ false advertising component of its claims, the Seventh Circuit held that all web and print publications rely on ad revenue to finance operations. The mere fact that Zillow sold ad space didn’t transmute property estimates into verifiable (therefore, actionable) factual assertions. Zestimates are estimates: “Zillow is outside the scope of the trade practices act.” [5]
Afterwords
The Seventh Circuit’s Zillow opinion cements the proposition that an actionable deceptive trade practices and consumer fraud claim requires a defendant’s assertion of a verifiable fact to be actionable.
The case also confirms where a statute – like the Licensing Act – sets out a diffuse administrative and criminal enforcement scheme, a court will not imply a private right of action based on a statutory violation.
