Lubin Austermuehle Files Amicus Brief in Illinois Supreme Court on Behalf of the National Association of Consumer Advocates and Consumers for Auto Reliability and Safety

Our firm today filed an amicus brief or friend of the court brief in the on behalf of the National Association of Consumer Advocates and Consumers for Auto Reliability and Safety in an important consumer rights case and commercial law case, arising out of an interpretation of a provision of the Uniform Commercial Code. That provision expressly allows for consumers to revoke acceptance of and return for a full refund a product with hidden defects without having to allow the seller the opportunity to repair the defects. The express language of UCC requires this result yet the trial and the appellate court ignored the plain language of the UCC and that the majority of states interpret this provision of the UCC to allow for revocation of acceptance without any opportunity to cure. The Illinois Supreme Court decisions dictate that Illinois should follow the majority view of the other States in interpreting UCC provisions.

This case involves an RV that Plaintiffs bought in April for a summer vacation. When the RV turned out to be allegedly defective (massive water leaks), and when, by August, the RV Dealer/Warrantor allegedly would not give an estimate as to when it would repair the RV, and allegedly refused to “cure,” Plaintiffs revoked acceptance and canceled their contract. 

In the Friend of the Court brief we filed we noted that:

A defense that is often asserted to revocation is that the buyer has not provided the seller with a sufficient opportunity to cure the problem that caused the impairment in value. Stated in another way: The seller was always willing to cure the problem, or the seller never refused to work on the problem or the problem could have been solved by the seller easily and/or inexpensively. This defense is really a red herring. It is put forward by the defendant in an attempt to confuse the trier of fact. As stated above, UCC 2-608(1)(b) does not require that the buyer provide the seller with an opportunity to repair before revocation can be effective. It provides only that there be a non-conformity that is devaluing in the view of the buyer, and that the buyer notifies the seller of the revocation. That is precisely what occurred in the case at bar.

We also pointed out that Illinois courts should interpret a UCC provision by its plain language:

The court below, however, failed to follow this Court’s cardinal rule of statutory interpretation when it read into the statute a right to cure that was not granted by the legislature. …

Our argument is also consistent with the Illinois Supreme Court’s teaching that lower courts should adopt majority interpretations of the UCC, and given that the public policy of Illinois promotes simplicity and uniformity in interpretations of the Uniform Commercial Code, the Appellate Court should have adopted the majority interpretation of subsection (1)(b). The National Association of Consumer Advocates (“NACA”) is a non-profit association of hundreds of attorneys and consumer advocates committed to representing consumers’ interests. Our members are private and public sector attorneys, legal services attorneys, law professors and law students whose primary focus is the protection and representation of consumers. NACA’s mission is to promote justice for all consumers by maintaining a forum for communication, networking, and information sharing among consumer advocates across the country, particularly regarding legal issues, and by serving as a voice for its members and consumers in the ongoing struggle to curb unfair or abusive business practices that affect consumers.

Consumers for Auto Reliability and Safety (“CARS”) is a national, award-winning non-profit auto safety and consumer advocacy organization dedicated to preventing motor vehicle-related fatalities, injuries, and economic losses. CARS has spearheaded enactment of many landmark laws to protect the public and successfully petitioned the National Highway Traffic Safety Administration and various state agencies for promulgation of consumer protection regulations.

NACA and CARS interests, in this case, and their desire to inform the Illinois Supreme Court of their position, flow from their efforts to protect the uniformity, simplicity, and comprehensibility of Article Two. In the instant case, the rights of consumers and businesses coincide, because businesses also benefit from these principles. It is important that the courts not impose statutory interpretations of the UCC, which add to legal remedies terms and conditions that are not contained in the plain statutory language.

You can view NACA and CAR’s amicus brief here.  You can read the Plaintiffs’ full brief here.Super Lawyers named Chicago business dispute lawyers Peter Lubin a Super Lawyer and Patrick Austermuehle a Rising Star in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s DuPage County, Illinois business trial lawyers have over thirty years of experience in litigating auto fraud, franchise and dealer termination, breach of contract, complex class action, copyright, partnership, and shareholder oppression suits, noncompete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes.  Our Wilmette and Elmhurst franchise and dealer termination lawyers, civil litigation lawyers, and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago, Hinsdale, and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling at 630-333-0333.  You can also contact us online here.

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