                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




    International Profit Associates, Inc. v. Linus Alarm Corp., 2012 IL App (2d) 110958




Appellate Court            INTERNATIONAL PROFIT ASSOCIATES, INC., and
Caption                    INTERNATIONAL TAX ADVISORS, INC., Plaintiffs and
                           Counterdefendants-Appellees, v. LINUS ALARM CORPORATION,
                           Defendant and Counterplaintiff-Appellant.



District & No.             Second District
                           Docket No. 2-11-0958


Filed                      June 20, 2012


Held                       The trial court properly dismissed defendant’s counterclaim alleging
(Note: This syllabus       violations of the Consumer Fraud and Deceptive Business Practices Act
constitutes no part of     on the grounds that the circumstances relating to plaintiffs’ allegedly
the opinion of the court   fraudulent activities occurred in Florida, not Illinois, and that the choice-
but has been prepared      of-law and forum-selection clauses in the parties’ contracts making
by the Reporter of         Illinois the chosen forum did not automatically allow defendant to bring
Decisions for the          its action in Illinois.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 10-L-647; the Hon.
Review                     David M. Hall, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Robert S. Reda, of Reda & Des Jardins, Ltd., of Lake Forest, for
Appeal                      appellant.

                            Ronald L. Bell, of Ronald L. Bell & Associates, P.C., of Buffalo Grove,
                            for appellees.


Panel                       JUSTICE BOWMAN delivered the judgment of the court, with opinion.
                            Justices Burke and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1          Defendant, Linus Alarm Corporation, appeals from the dismissal of two counts of its
        counterclaim against plaintiffs, International Profit Associates, Inc. (IPA), and International
        Tax Advisors, Inc. (ITA). The counts alleged claims based on the Illinois Consumer Fraud
        and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq.
        (West 2010)). Plaintiffs argued that under Avery v. State Farm Mutual Automobile Insurance
        Co., 216 Ill. 2d 100, 187 (2005), the Consumer Fraud Act is inapplicable to a non-Illinois
        resident who engaged in acts that occurred outside of Illinois, and the contracts here were
        entered into and performed in Florida. Defendant argued that contractual choice-of-law and
        forum-selection clauses required application of Illinois law, including the Consumer Fraud
        Act, regardless of any territorial limitations within the Act. Defendant alternatively argued
        that the transactions at issue occurred primarily and substantially in Illinois. The trial court
        granted plaintiffs’ motion to dismiss, and we affirm.

¶2                                       I. BACKGROUND
¶3          Plaintiffs brought a five-count complaint against defendant on July 14, 2010. They filed
        an amended complaint on November 3, 2010, that alleged as follows. On October 1, 2009,
        defendant entered into written contracts with plaintiffs for consulting work. Plaintiffs
        performed their duties under the contracts, but defendant had not paid them all of the monies
        due. Specifically, IPA billed defendant for $82,375.92 but was still owed $46,343.91 of that
        amount. ITA billed defendant for $16,274.74 but was still owed $10,333. Plaintiffs alleged
        claims of breach of contract and fraud.
¶4          Defendant filed a counterclaim in November 2010 and an amended counterclaim on
        February 7, 2011. It alleged breach of contract; fraudulent inducement; and two claims under
        the Consumer Fraud Act. Count IV, one of the claims under the Act, alleged as follows in
        relevant part. On September 9, 2009, an IPA telemarketer called defendant and spoke with
        its president, Michael Mazzuco. Mazzuco told the telemarketer that defendant could not


                                                  -2-
     afford any services from IPA, because it had laid off many employees. On September 23 and
     30, 2009, an Illinois IPA salesman, Christopher Angelo, met with Mazzuco. Angelo told him
     that a “Business Analysis” would provide an in-depth analysis of defendant’s business and
     would cost $450. In reliance on Angelo’s representations and the benefits advertised in the
     Business Analysis brochure, defendant entered into an “Analysis Contract” with IPA.
     However, IPA’s statements in its Analysis Contract, various brochures, and certain training
     manuals were false because, as indicated in the “IPA Survey Training Manual,” the sole
     purpose of the Business Analysis was to sell IPA’s and ITA’s consulting services. That is,
     the “Business Analysis [was] not designed and taught to ‘conduct a comprehensive analysis’
     of IPA clients[’] businesses as advertised and contracted.” Instead, IPA trained its analysts
     to be salesmen for its consulting services. IPA intended its false statements of material fact
     to induce defendant to enter into the Analysis Contract, because IPA intentionally printed and
     distributed advertisements and contracts touting the benefits of its Business Analysis while
     at the same time training its business analysts/salesmen not to perform the Business Analysis.
     Defendant relied on numerous false statements of material fact in entering into the Analysis
     Contract, in giving IPA’s analyst (Dan Light) access to its business records, and in giving
     Light control over its employees’ time. Defendant sought damages of $450 plus the loss of
     the value of its employees’ time, attorney fees and costs, and prejudgment interest. Defendant
     also sought injunctive relief against IPA.
¶5        In count V of the amended counterclaim, which also sought relief under the Consumer
     Fraud Act, defendant alleged as follows. While Light was allegedly performing the Analysis
     Contract on October 1, 2009, Mazzuco told him that he was heartbroken about having to lay
     off 14 employees over the last 24 months because of a drop in sales. Light told Mazzuco that
     he knew a way to get the employees back to work. Light also created an immediate
     “ ‘crisis’ ” by telling Mazzuco that defendant was going out of business within three months
     and that Mazzuco’s other company would also be liable. Light further stated that: IPA had
     jobs in Iraq and Afghanistan that it could award to defendant if defendant’s books were
     prepared to meet governmental regulations, which IPA consultants could do; IPA controlled
     some government grants and had stimulus money to help qualified small businesses;
     defendant was paying too much in taxes and ITA “could make it so [defendant] would not
     have to pay taxes”; IPA guaranteed a three-to-one return on its consulting services; and
     defendant would not have to pay if it did not have the money. Based on these representations,
     defendant entered into a contract with IPA for consulting services (the Consulting
     Agreement). From October 5 to 22, 2009, IPA’s consultant John Moreau told Mazzuco and
     other employees that he was working on defendant’s Quickbooks and accounting. During
     this same time, IPA’s consultant Tracy Hausman told Mazzuco that he was working on a
     proposal to raise money through the American Recovery and Reinvestment Act, the Small
     Business Administration, and other sources. During this time, IPA charged defendant
     $82,375.92 for its consulting services, of which defendant paid $49,237.25. After IPA’s
     consultants left, defendant discovered that no work had been done to its Quickbooks or
     accounting systems, that the proposal falsely inflated defendant’s annual sales figures, and
     that IPA did not control any overseas contracts, government grants, or stimulus money. IPA
     intended its false statements of material fact to induce defendant to enter into the Consulting


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       Agreement, and defendant relied on these statements in signing the contract and in giving
       IPA access to its business records and control over its employees’ time. Defendant sought
       damages of the $49,237.25 it had paid IPA under the Consulting Agreement, the value of
       defendant’s employees’ time, injunctive relief, attorney fees and costs, and prejudgment
       interest.
¶6         On March 10, 2011, plaintiffs filed a motion under section 2-619(a)(9) of the Code of
       Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2010)) to dismiss the aforementioned
       counterclaims (counts IV and V). Plaintiffs argued that under Avery, 216 Ill. 2d at 187, the
       Consumer Fraud Act does not apply to a non-Illinois resident who engaged in acts occurring
       outside of Illinois, and the contracts at issue here were entered into and performed in Florida.
¶7         On May 25, 2011, the trial court granted plaintiffs’ motion to dismiss counts IV and V.
       On June 22, 2011, defendant filed a motion requesting a finding under Illinois Supreme
       Court Rule 304(a) (eff. Feb. 26, 2010). The trial court granted the motion on August 24,
       2011. Defendant timely appealed.

¶8                                            II. ANALYSIS
¶9         On appeal, defendant challenges the dismissal of counts IV and V of its amended
       counterclaim. Plaintiffs’ motion to dismiss was brought pursuant to section 2-619(a)(9) of
       the Code. A section 2-619 motion admits the legal sufficiency of a claim but asserts certain
       external defects or defenses that defeat the claim. Solaia Technology, LLC v. Specialty
       Publishing Co., 221 Ill. 2d 558, 579 (2006). In reviewing the grant of a section 2-619 motion,
       we must interpret the pleadings and supporting documents in the light most favorable to the
       party bringing the action. Snyder v. Heidelberger, 2011 IL 111052, ¶ 8. A section 2-619
       dismissal resembles the grant of a motion for summary judgment; we must determine
       whether a genuine issue of material fact should have precluded the dismissal or, absent such
       an issue of fact, whether the dismissal was proper as a matter of law. Raintree Homes, Inc.
       v. Village of Long Grove, 209 Ill. 2d 248, 254 (2004). We review de novo the grant of a
       motion to dismiss under section 2-619. Sheffler v. Commonwealth Edison Co., 2011 IL
       110166, ¶ 23.
¶ 10       In their section 2-619 motion, plaintiffs sought dismissal of defendant’s claims that
       alleged violations of the Consumer Fraud Act. To establish a claim under the Act, a party
       must prove: (1) a deceptive act or practice; (2) the opponent intended that the party rely on
       the deception; (3) the deception took place in a course of conduct involving trade or
       commerce; and (4) actual damages (5) the deception caused. De Bouse v. Bayer AG, 235 Ill.
       2d 544, 550 (2009). Plaintiffs argued that defendant’s claims failed because the contracts
       were entered into and performed in Florida, and, under Avery, the Act does not apply to acts
       that occurred outside of this state.
¶ 11       In Avery, our supreme court held that consumer fraud claims may not be based only on
       a breach of a contractual promise. Avery, 216 Ill. 2d at 168-70. Otherwise, any breach-of-
       contract suit could be converted into a consumer fraud action, making the latter a redundant
       remedy. Id. at 169. The supreme court also held that the Consumer Fraud Act does not have
       extraterritorial effect, in that the legislature did not intend for the Act to apply to fraudulent

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       transactions that take place outside Illinois. Id. at 185. In determining whether transactions
       took place within this state, the court held that a nonresident plaintiff “may pursue a private
       cause of action under the Consumer Fraud Act if the circumstances that relate to the disputed
       transaction occur primarily and substantially in Illinois.” Id. at 187. The court stated that
       where a company policy is created or where a form document is drafted may be relevant
       factors to consider in determining the location of a consumer transaction, as is where the
       injury or deception took place, but these are just some of the relevant circumstances. Id. at
       186-87.
¶ 12        The plaintiffs in Avery had brought a class action suit against State Farm regarding its
       alleged undisclosed practice of using inferior replacement parts for vehicles damaged in
       crashes. Id. at 110. Our supreme court concluded that the out-of-state plaintiffs did not have
       a cognizable cause of action under the Consumer Fraud Act. Using the named plaintiff as an
       example, the supreme court stated that his car was garaged in Louisiana; the accident
       occurred there; his estimate was written in Louisiana and he received a “ ‘Quality
       Replacement Parts’ ” brochure there; the alleged deception of failing to disclose the parts’
       inferiority occurred in Louisiana; his contact with State Farm was through a Louisiana agent,
       a Louisiana claims representative, and a Louisiana adjuster; and there was no evidence that
       the plaintiff ever met or talked with any Illinois State Farm employee. Id. at 188. The
       supreme court stated that the overwhelming majority of the circumstances that related to the
       named plaintiff’s and the other out-of-state plaintiffs’ insurance claims, which were the
       disputed transactions in the case, occurred outside of Illinois. Id.
¶ 13        The Avery court distinguished Martin v. Heinold Commodities, Inc., 117 Ill. 2d 67
       (1987). In Martin, the nationwide plaintiffs brought a class action suit against a commodities
       broker, alleging that it had breached its fiduciary duty toward them by concealing substantial
       additional commissions. Id. at 70-71. Two of the counts alleged violations of the Consumer
       Fraud Act. Id. at 71. The supreme court held that the certification of the plaintiff class was
       proper because there were common issues of fact and Illinois substantive law could be
       applied to resolve the dispute. Id. at 82. The court stated that the application of Illinois law
       complied with procedural due process because each class member’s claim implicated
       Illinois’s interests. Specifically, the broker’s principal place of business was in Illinois and
       this fact was “made manifest” to the class members in the following ways: (1) payments were
       remitted to the broker’s Chicago office; (2) all complaints were directed to that office; (3)
       Illinois law governed the parties’ agreement; (4) all legal disputes were to be adjudicated in
       Illinois courts or federal courts in Illinois; and (5) the agreement establishing the agency
       relationship was binding only upon its receipt and approval by the broker at its Chicago
       office. Id. at 82-83.
¶ 14        Avery stated that Martin was distinguishable because Martin considered only whether the
       class certification comported with certain due process principles. It did not address the
       Consumer Fraud Act’s scope as a matter of statutory interpretation, because “that issue
       simply was not presented.” Avery, 216 Ill. 2d at 189. The Avery court further stated that, to
       the “extent that [Martin was] relevant,” it was distinguishable because there were “virtually
       no circumstances relating to the disputed claims practices at issue in [Avery] which occurred
       or existed in Illinois for those plaintiffs who are not Illinois residents.” Id. The court stated

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       that a singular finding that a scheme to defraud was disseminated from Illinois headquarters
       was insufficient to support a claim under the Consumer Fraud Act. Id.
¶ 15        Defendant argues that this case is distinguishable from Avery because plaintiffs’
       consulting contracts had choice-of-law and forum-selection clauses that mandate Illinois as
       the forum for disputes and mandate the application of Illinois law. Defendant argues that it
       would be “unusual” for plaintiffs to require in their form contracts that disputes be heard in
       Illinois under Illinois law and at the same time argue that Illinois’s Consumer Fraud Act is
       inapplicable because of an “alleged extraterritorial exception that [defendant] could not have
       known about.”
¶ 16        Defendant cites references to Avery and Martin in Barbara’s Sales, Inc. v. Intel Corp.,
       227 Ill. 2d 45, 70 (2007). Barbara’s Sales involved a class action suit consisting of
       nationwide plaintiffs. Id. at 47. The plaintiffs argued that, under Martin, California law
       should be applied to the case, because the defendant’s representation “emanated” from there.
       Id. at 70. The supreme court distinguished the Martin decision as specifically based on
       certain key factors, those being the five previously recited factors “ ‘manifest[ing]’ ” to each
       class member that the defendant’s place of business was in Illinois. Id. In contrast, in the case
       before it, only the defendant’s headquarters was in California. Id. at 71. The Barbara’s Sales
       court determined that Illinois law applied. It further held that the trial court was correct to
       limit the class to Illinois consumers because, under Avery, the Consumer Fraud Act applies
       only to transactions that primarily and substantially occur in Illinois. Id.
¶ 17        Defendant further cites Hall v. Sprint Spectrum L.P., 376 Ill. App. 3d 822 (2007). There,
       the plaintiff filed a lawsuit against Sprint on behalf of a nationwide class of customers. Id.
       at 822-23. The trial court certified the class and ruled that Kansas law applied based on an
       express choice-of-law provision in Sprint’s form contract. Id. at 824. On appeal, Sprint
       argued that a class certification based on the application of the Kansas Consumer Protection
       Act was improper because the Kansas act, like the Illinois Consumer Fraud Act, could not
       be applied extraterritorially. Id. at 825-27. The appellate court disagreed, stating that the case
       was distinguishable from Avery because there the plaintiff sought extraterritorial application
       of the statute based on the statute’s terms, whereas here the trial court enforced a voluntary
       and broadly worded choice-of-law provision in an adhesion contract that Sprint drafted. Id.
       at 825. The court continued:
            “[T]he issue is not the territorial application of the Kansas Consumer Protection Act but
            whether the parties chose to apply Kansas law to govern the validity of the provisions in
            their contract. The fact that Kansas law might not otherwise apply is irrelevant because
            the parties expressly agreed that Kansas law would apply.” Id. at 827.
       In support, the court cited Davis v. Miller, 7 P.3d 1223, 1229 (Kan. 2000) (parties could
       incorporate and bind themselves to a premarital act in their postmarital agreement, even
       though the premarital act was not intended to apply to postmarital agreements), and Bartlett
       Bank & Trust Co. v. McJunkins, 147 Ill. App. 3d 52, 59 (1986) (parties could incorporate
       Uniform Commercial Code into their agreement, even if it would otherwise be inapplicable).
       Hall, 376 Ill. App. 3d at 827.
¶ 18        In response to Sprint’s argument that the choice-of-law provision should not apply to it,


                                                  -6-
       because the plaintiff’s claims were “ ‘noncontractual,’ ” the Hall court stated that the
       different claims “do not reflect differing sources of the law so much as alternative theories
       whereby she and other class members can bring an action to enforce the same underlying
       legal principle that comes from contract law, not tort law.” Id. The court stated that, before
       Avery, Illinois courts “traditionally held” that the consumer protection law of the state
       designated in a choice-of-law provision would apply. Id. at 827-28. As an example, the court
       cited Potomac Leasing Co. v. Chuck’s Pub, Inc., 156 Ill. App. 3d 755, 757-60 (1987) (where
       parties’ contract had a choice-of-law provision designating Michigan law, that state’s law
       would be applied, even though its consumer protection law did not have a notice of
       cancellation provision, as did the Illinois Consumer Fraud Act). The Hall court noted that
       the appellate court in Barbara’s Sales, Inc. v. Intel Corp., 367 Ill. App. 3d 1013, 1021
       (2006), stated that Avery did not change choice-of-law precedent. Hall, 376 Ill. App. 3d at
       829. The Hall court concluded that the trial court correctly found that “the parties bound
       themselves to the provisions of the Kansas Consumer Protection Act by incorporating the
       express choice-of-law provision in their enforceable contract.” Id. at 827.
¶ 19        Plaintiffs respond that under Avery a choice-of-law clause is not dispositive, because a
       claim under the Consumer Fraud Act is independent of contract. Plaintiffs further argue that
       Hall misinterpreted Davis and Bartlett in arriving at its conclusion that Kansas’s Consumer
       Protection Act applied notwithstanding its territorial limitation. Plaintiffs argue that in Davis
       and Bartlett the parties were bound by otherwise inapplicable statutes because they
       specifically referred to those statutes in their contracts. Plaintiffs argue that the Consulting
       Agreement did not indicate that the Consumer Fraud Act would apply, while the Analysis
       Contract did not even contain a forum-selection clause. Plaintiffs maintain that the
       importance of the forum-selection clause in this case is de minimis and that the
       overwhelming majority of facts reflect that the transactions at issue occurred primarily and
       substantially in Florida.
¶ 20        The broader question the instant case raises is whether parties’ contractual choice-of-law
       provisions trump statutory territorial limitations. Several federal appellate courts have
       examined this issue in connection with other types of statutes and determined that the
       territorial restrictions still apply.1 For example, in Cromeens, Holloman, Sibert, Inc. v. AB
       Volvo, 349 F.3d 376 (7th Cir. 2003), some non-Illinois dealerships brought suit against
       Volvo, alleging breach of dealership agreements. The contracts provided for the application
       of Illinois law. Id. at 383. The dealers sought to apply the Illinois Franchise Dealership Act,
       which by its own terms is limited to Illinois franchises. Id. at 385. The Seventh Circuit
       discussed several cases holding that a state’s territorial limitations apply even where a
       choice-of-law provision invokes that state’s law, and it agreed with this outcome. Id. at 385-
       86. The court stated that, if Illinois law applies by virtue of the parties’ contract, then the
       court must look to the scope of Illinois law to determine the scope of application. Therefore,
       because the Illinois Franchise Dealership Act limited its scope to franchises within Illinois,

               1
                While we are not required to follow the decisions of federal courts other than the United
       States Supreme Court, decisions of lower federal courts can serve as persuasive authority and
       provide guidance. People v. Wheat, 383 Ill. App. 3d 234, 239 (2008).

                                                  -7-
       the dealers could not claim its protections. Id. at 386; see also Gravquick A/S v. Trimble
       Navigation International Ltd., 323 F.3d 1219, 1223 (9th Cir. 2003) (where a state law does
       not have geographical limits on its scope, courts will apply it to contracts governed by that
       state’s law, but if a state law has geographical limits on its application, courts will not apply
       it to parties falling outside of those limits, even though the parties had stipulated that the law
       should apply); Highway Equipment Co. v. Caterpillar Inc., 908 F.2d 60, 62-64 (6th Cir.
       1990) (Illinois Franchise Dealership Act was intended to protect only Illinois residents and
       did not apply extraterritorially even where the contract required the application of Illinois
       law); Peugeot Motors of America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355, 358
       (4th Cir. 1989) (New York regulatory acts with explicit geographical limitations did not
       apply to out-of-state parties, even though the parties’ contract called for the application of
       New York law).
¶ 21        While we express no opinion on whether statutory territorial limitations will always
       control over contractual choice-of-law provisions, we believe that the reasoning of Cromeens
       and the other federal appellate decisions cited is especially suited for actions under the
       Consumer Fraud Act. Avery holds that the Consumer Fraud Act has a territorial limitation
       in that it applies only to transactions that occur primarily and substantially in Illinois. Avery,
       216 Ill. 2d at 187. Avery also holds that a consumer fraud claim may not be based on breach
       of contract. Id. at 168-70. Particularly in a situation such as this one, where an action under
       the Act must be based outside of contract, it does not make sense to have a contractual
       choice-of-law provision automatically prevail over a statutory territorial limitation.
¶ 22        We find without merit defendant’s reliance on Martin for the proposition that choice-of-
       law and forum-selection clauses in the contracts alone mandate application of the Consumer
       Fraud Act. Martin stated that the fact that the broker’s principal place of business was in
       Illinois was manifested to class members in several ways, including that Illinois law
       governed the parties’ agreement and that legal disputes were to be adjudicated in Illinois
       (Martin, 117 Ill. 2d at 82-83); Martin did not hold that these two factors alone were
       dispositive. Moreover, Avery distinguished Martin on the basis that Martin considered only
       whether the class certification satisfied certain due process principles and was not presented
       with the issue of the Consumer Fraud Act’s scope as a matter of statutory interpretation.
¶ 23        Hall, in contrast, supports defendant’s position, but we disagree with its reasoning that
       a contractual choice-of-law provision will always take priority over a statutory territorial
       limitation in a consumer fraud act. The cases Hall relied upon, Davis and Bartlett, were
       grounded in contract, but, as stated, a claim under the Consumer Fraud Act cannot be based
       on contract. Avery, 216 Ill. 2d at 168-70. In response to the argument that fraud claims are
       not contractual, the Hall court stated that the plaintiff was bringing an action to enforce legal
       principles that come from contract law, rather than tort law. Hall, 376 Ill. App. 3d at 827.
       However, Avery specifically cautioned that the Consumer Fraud Act was not intended to be
       a redundant remedy to a contract action. Avery, 216 Ill. 2d at 169. Further, the Hall court
       relied on Potomac Leasing Co., 156 Ill. App. 3d at 757-60, in stating that the consumer
       protection law of the designated state will apply if there is an express choice-of-law provision
       (Hall, 376 Ill. App. 3d at 828), but Potomac Leasing Co. made no such sweeping statement.
       That case did find that Michigan law applied, but the issue of any statutory territorial

                                                  -8-
       limitations was not raised or considered. Hall also cited the appellate court’s decision in
       Barbara’s Sales for the proposition that Avery did not change choice-of-law precedent.
       However, in Barbara’s Sales our supreme court reiterated that the trial court was correct to
       limit the class to Illinois consumers because, under Avery, the Consumer Fraud Act applies
       only to transactions that primarily and substantially occur in Illinois. Barbara’s Sales, 227
       Ill. 2d at 71. In sum, Hall does not provide a persuasive analysis, and we decline to follow
       it.
¶ 24        Our conclusion that choice-of-law and forum-selection provisions will not automatically
       mandate the application of the Consumer Fraud Act is consistent with the Seventh Circuit’s
       recent holding on this precise issue. In Morrison v. YTB International, Inc., 649 F.3d 533,
       537 (7th Cir. 2011), the parties’ contract provided for litigation to take place in Illinois under
       Illinois law. The Seventh Circuit stated, “Avery holds that a choice-of-law clause is not
       dispositive, because a claim under the Consumer Fraud Act is independent of the contract
       [citation], but Martin says that it is nonetheless a mark in plaintiffs’ favor.” Id.; see also
       Shaw v. Hyatt International Corp., No. 05 C 022, 2005 WL 3088438, at *3 (N.D. Ill. Nov.
       15, 2005) (a choice-of-law clause specifying Illinois law did not require application of the
       Consumer Fraud Act, because the Act is limited to deceptive trade practices occurring
       primarily and substantially in Illinois, and the fact that Illinois law was selected to govern
       disputes did not further the contention that the allegedly deceptive practices occurred in
       Illinois).
¶ 25        Defendant alternatively argues that, even if the choice-of-law and forum-selection clauses
       do not automatically require application of the Consumer Fraud Act, the Act still applies
       because the facts giving rise to the relevant claims occurred primarily and substantially in
       Illinois. Defendant cites the following factors: IPA’s contract contains choice-of-law and
       forum-selection clauses specifying that any litigation would be conducted in Illinois, under
       Illinois law; IPA initiated the lawsuit against defendant in Illinois; IPA’s place of business
       is in Buffalo Grove, Illinois, and IPA has no offices in Florida; every IPA employee involved
       in the transactions is headquartered at, trained at, and paid through IPA’s Illinois offices; all
       of IPA’s employees are supervised by personnel from the Illinois headquarters; IPA’s
       customer relations department is in its Illinois headquarters; all of IPA’s correspondences
       emanate from its Illinois headquarters; invoices for services rendered are generated from
       headquarters, and IPA is paid through headquarters; IPA’s disputed billing and collection
       practices are conducted from headquarters; and the “performance of IPA’s Tax Services are
       supervised from and conducted with the assistance and input from supervisors located in
       IPA’s Illinois office.” Defendant argues that IPA has no offices in any other state, its entire
       operation is based in Illinois, and everything it does emanates from and returns to Illinois.
       Defendant argues that, therefore, IPA’s actions occurred primarily and substantially in
       Illinois.
¶ 26        Defendant cites IFC Credit Corp. v. Aliano Brothers General Contractors, Inc., No. 04
       C 6504, 2007 WL 164603 (N.D. Ill. Jan. 12, 2007). There, the defendant, a New Jersey
       company, entered into a lease for telecommunications equipment with NorVergence, Inc.,
       a company whose main offices were in New Jersey. NorVergence assigned the lease to the
       plaintiff, an Illinois corporation with its principal place of business in Illinois. The plaintiff

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       brought suit against the defendant for failing to make the required lease payments. The
       defendant filed a counterclaim, alleging, among other things, consumer fraud under the Act.
       Id. at *1. The plaintiff relied on Avery in arguing that the Act did not apply, because the
       fraudulent transactions took place outside of Illinois. The federal district court stated that
       Avery used the following factors to guide the analysis of whether a transaction occurred
       primarily and substantially in Illinois: (1) the plaintiff’s residence; (2) the location of the
       deception; (3) where the plaintiff’s damages occurred; and (4) whether the plaintiff
       communicated with the defendant or its agents in Illinois. Id. at *3. The district court
       determined that the alleged fraud underlying the dispute primarily and substantially occurred
       in Illinois. It reasoned that, although the defendant and NorVergence were in New Jersey, the
       defendant alleged that “a Master Program Agreement was in place to provide the assignment
       of the Agreement that was executed and performed in Illinois and that was governed by and
       is to be construed and enforced under Illinois law.” Id. Also, the assignment of the
       defendant’s agreement to the plaintiff took place in Illinois, and the defendant’s damages
       arose, in part, from the plaintiff’s Illinois suit against it to collect on the lease. Id.
¶ 27        Plaintiffs argue that the overwhelming majority of circumstances related to the Consumer
       Fraud Act claims occurred in Florida. Plaintiffs cite the following factors: defendant’s
       president, Mazzuco, was visited by IPA’s sales manager, Angelo, a Florida resident, at
       defendant’s offices in Florida; defendant claims that a brochure given to him at the meeting
       and misstatements Angelo made to him at that time fraudulently induced Mazzuco to sign
       the Analysis Contract; IPA analyst Light went to defendant’s offices in Florida, and the
       contracted business analysis was conducted there; based on Mazzuco’s reliance on Light’s
       statements in Florida at the completion of the business analysis, Mazzuco agreed to enter into
       the Consulting Agreement; the agreements for consulting services of both IPA and ITA were
       presented and executed in Florida; prior to beginning the consulting, plaintiffs and defendant
       prepared and signed a “Value Enhancement Program” at defendant’s Florida offices,
       outlining the objectives and scope of the consulting engagement; plaintiffs’ consulting
       services were conducted at defendant’s Florida offices; at the end of each of the four
       consulting weeks, Mazzuco signed a review that purported to convey his continual
       satisfaction with the work performed; all IPA invoices were accepted and signed by Mazzuco
       in Florida; and all payments tendered to IPA were accepted by IPA’s consultants at
       defendant’s offices in Florida.
¶ 28        Plaintiffs cite Landau v. CNA Financial Corp., 381 Ill. App. 3d 61, 63 (2008). There, the
       plaintiff argued that Illinois had the necessary connections to the transaction at issue to allow
       her to bring suit in Illinois under the Act. She argued that the defendant did the following
       acts in Illinois: created and designed the insurance policy at issue; adopted improper actuarial
       assumptions; created a false and misleading sales and marketing program; disseminated false
       and misleading marketing materials; trained agents on the sales materials; decided to raise
       premium rates; reviewed the application form she had completed; consummated the
       transaction in which she purchased the policy by accepting and approving it; accepted the
       initial premium payment; issued the policy; and instructed the plaintiff to send future
       premium payments to headquarters in Illinois. Id. at 64-65. The appellate court stated that
       “[m]ost of these circumstances are activities that occur routinely in corporate headquarters,”

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       and under Avery the “issuance of the allegedly fraudulent policy from the state whose laws
       the party seeks to invoke is not dispositive.” Id. at 65. The court stated that the majority of
       the circumstances relating to the alleged violation of the Consumer Fraud Act occurred
       outside of Illinois, in that: the plaintiff was a resident of Pennsylvania and bought her policy
       there; her contact with company representatives occurred only in Pennsylvania; she never
       spoke to Illinois representatives about her policy; and the alleged deceptive communication
       occurred in Pennsylvania, without additional communication from Illinois. Id. at 64-65.
¶ 29       Our supreme court stated in Avery that there is no bright-line test or formula in
       determining whether a disputed transaction occurred within Illinois. Avery, 216 Ill. 2d at 187.
       Instead, each case must be decided on its own facts, with the “critical question” being
       whether the circumstances relating to the disputed transactions occurred primarily and
       substantially in Illinois. Id. Here, as in Landau, the majority of the circumstances that
       defendant cites as occurring in Illinois, such as employee training, the drafting of contracts,
       correspondence, and payment practices, “are activities that occur routinely in corporate
       headquarters” and are not, standing alone, dispositive. Landau, 381 Ill. App. 3d at 65; see
       also Avery, 216 Ill. 2d at 189 (Consumer Fraud Act does not apply where only connection
       with Illinois is that the party’s headquarters are in this state or that the scheme to defraud
       originated here). Still, that plaintiffs’ headquarters are here can be considered as a factor, as
       is the fact that the Consulting Agreement had choice-of-law and forum-selection clauses
       choosing Illinois. See Morrison, 649 F.3d at 537.
¶ 30       That said, we agree with plaintiffs’ argument that the majority of circumstances relating
       to defendant’s Consumer Fraud Act claims occurred in Florida. Regarding count IV,
       defendant allegedly relied on an IPA employee’s false representations that were made to him
       in Florida and on deceptive materials given to him in Florida. Mazzuco signed the Analysis
       Contract in Florida, and the actual analysis took place there by IPA analyst Light, who was
       physically present. As plaintiffs also point out, the Analysis Contract did not have choice-of-
       law and forum-selection clauses. Given these factors, it is clear that the circumstances related
       to count IV did not occur primarily and substantially in Illinois.
¶ 31       As for count V, defendant alleged that it signed the Consulting Agreement based on its
       reliance on the numerous false representations Light made while performing the Analysis
       Contract. These false representations were therefore all made in Florida. The Consulting
       Agreement was also signed in Florida, and the “Value Enhancement Program,” which
       discussed the scope and objectives for the consulting project, was drafted and signed in
       Florida. Defendant further alleged that IPA employees Moreau and Hausman, who performed
       the consulting work, gave him false information; these false representations also occurred
       in Florida. The circumstances in count V arguably are more balanced than those in count IV
       because of the choice-of-law and forum-selection clauses. However, given that the alleged
       deception and injury took place in Florida, the majority of relevant facts relating to count V
       cannot be said to have taken place primarily and substantially in Illinois.
¶ 32       Our result is consistent with the case cited by defendant, IFC Credit Corp., 2007 WL
       164603. Using the factors cited there, the claimant’s residence is in Florida, the location of
       the deception was in Florida, the damages sought in the counterclaim occurred in Florida,
       and almost all of the communication related to the fraud claims occurred in Florida. The IFC

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       Credit Corp. court found that the alleged fraud there primarily and substantially occurred in
       Illinois because, in addition to a choice-of-law clause, the plaintiff had a “Master Program
       Agreement” with NorVergence that was executed and performed in Illinois, and the actual
       assignment of the defendant’s agreement to the plaintiff took place in Illinois. Id. at *3. Here,
       in contrast, no such significant events directly relating to the alleged fraud took place in
       Illinois.
¶ 33        In sum, the choice-of-law and forum-selection clauses in the parties’ contracts do not
       automatically allow defendant to bring suit under the Consumer Fraud Act. Instead, under
       Avery, defendant must show that the circumstances relating to the alleged fraud occurred
       primarily and substantially in Illinois. However, as we have concluded that most of these
       circumstances occurred in Florida rather than Illinois, the Act does not apply, and the trial
       court correctly granted plaintiffs’ motion to dismiss.

¶ 34                                   III. CONCLUSION
¶ 35       For the foregoing reasons, we affirm the judgment of the Lake County circuit court.

¶ 36       Affirmed.




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