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McIntosh v. Walgreens Boots Alliance — Illinois Appellate Court Finds Voluntary Payment Doctrine Does Not Defeat Consumer Fraud Claims

The Illinois Appellate Court reversed a decision by the Illinois Circuit Court in a class action concerning the Consumer Fraud Act, where a retailer was alleged to have improperly collected taxes on exempt bottled water products. The court found that the voluntary payment doctrine did not apply to a payment that was allegedly obtained through deceptive business practices or acts. The court also found that an intent to deceive could be shown by evidence that the payment of the tax by the consumer was a predictable consequence of the retailer asking the consumer to pay the tax.

In 2008, the City of Chicago began imposing a five-cent tax on the sale of bottled water within city limits. Retailers are required to include the tax in the price of bottled water. The city excludes certain bottled beverages from the tax including certain brands of sparkling and mineral water, and other flavored and carbonated water products.

Destin McIntosh sued Walgreens Boots Alliance in Illinois state court. McIntosh filed a class action alleging that Walgreens violated the Consumer Fraud and Deceptive Business Practices Act by charging the bottled water tax on sparkling water sales that were supposed to be exempt. Walgreens attempted to dismiss the case, arguing that McIntosh’s claim was barred because the tax was disclosed to McIntosh at the time of purchase and that the tax was remitted to the city. The Illinois circuit court granted the motion, and McIntosh appealed.

McIntosh argued in the appellate court that the voluntary payment doctrine did not apply to claims under the Consumer Fraud Act and that even if the doctrine applied, his claim satisfied the doctrine’s exception for fraud. The appellate court first disagreed with McIntosh. The appellate court found that the Consumer Fraud Act was not per se exempt from the voluntary payment doctrine. The court then found, however, that the voluntary payment doctrine did not apply when a plaintiff asserted a claim under the Consumer Fraud Act which was based on deceptive business practice.

The court cited Nava v. Sears, Roebuck & Co. and Ramirez v. Smart Corp., stating that it had previously concluded that the voluntary payment doctrine does not apply to cases where the payment in question was obtained by deception or fraud. The panel stated that it also found in those cases that the doctrine could not apply to causes of action based on statutorily defined public policy, of which the Consumer Fraud Act was an example.

The appellate court then found that McIntosh sufficiently alleged a deceptive act on the part of Walgreens and that his complaint sufficiently stated a claim under the Consumer Fraud Act. The court determined, therefore, that the voluntary payment doctrine did not apply to the plaintiff’s claim. The court also stated that McIntosh could show intent to deceive by the fact that a customer’s payment of a tax was a natural and predictable result of a retailer asking a customer to pay such a tax.

You can view the full opinion here.

Our Oak Brook, Illinois consumer rights private law firm handles individual and class action gift card, data breach, privacy rights, deceptive advertising, predatory lending, unfair debt collection, lemon law, and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totaling over a million dollars to organizations including the National Association of Consumer Advocatesthe National Consumer Law Center, and local law school consumer programs. The Chicago consumer lawyers at Lubin Austermuehle are proud of our achievements in assisting national and local consumer rights organizations to obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Wheaton and Naperville consumer rights attorneys provide assistance in data breach, privacy violation, fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases our Chicago consumer lawyers have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Evanston and lake Forest consumer protection, gift card and data breach attorneys who can assist in consumer fraud, consumer rip-off, lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.  You can also call our toll-free number at (833) 306-4933.