No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

for this Court to alter that authority now. The First and Second Districts agree that plaintiffs
must prove ICFA violations by “clear and convincing” evidence. See Lidecker v. Kendall
College, 194 Ill.App.3d 309, 314 (1st Dist. 1990); Munjal v. Baird & Warner, Inc., 138
Ill.App.3d 172, 183 (2d Dist. 1985). 57/
For decades, the Illinois Supreme Court has required that common law fraud claims
be proven by “clear and convincing evidence” to ensure that liability is not based on mere
suspicions of dishonesty. See, e.g., McKennan v. Mickelberry, 242 Ill. 117, 134 (1909). The
rationale for applying the “clear and convincing” standard in common law fraud cases
applies fully to statutory fraud. ICFA expands the definition of fraud and streamlines the
elements, but it remains, as its name confirms, about fraud, and therefore triggers “[t]he
general rule of American law, long recognized as equally true both at law and in equity” that
fraud is “not to be presumed,” and must be “clearly proven.” 9 STUART M. SPEISER ET AL.,
THE AMERICAN LAW OF TORTS § 32:103, at 443-45 (1992). Indeed, the Illinois Supreme
Court has already recognized that the procedural safeguards that protect defendants in
common law fraud cases apply to ICFA, holding that “a complaint alleging a violation of
consumer fraud must be pled with the same particularity and specificity as that required
under common law fraud.” Connick, 174 Ill.2d at 501. There is thus every reason to believe
that, when presented with the opportunity, the Illinois Supreme Court will agree with this
Court and hold that ICFA claims must be proven by clear and convincing evidence. 58/
The Third District is alone in reading ICFA to permit proof by a “preponderance of
the evidence.” Malooley v. Alice, 251 Ill.App.3d 51, 56 (3d Dist. 1993).
57/
58/
In addition, the Illinois Supreme Court has consistently held that the “clear and
convincing” standard must be applied to claims for the imposition of a constructive trust,
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