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

anned the parts, deemed specification of such parts to be fraudulent, or required disclosure
of “possible safety concerns” or part “inferiority.” Instead, the vast majority of states allow
specification subject to consent or disclosure, and two states — Massachusetts and Hawaii
— affirmatively favor the use of non-OEM parts. See page 7, supra.
The circuit court decided that it knew better than all the state legislatures in America.
It implicitly assumed that all non-OEM parts are inferior; that consent pursuant to state
statutes is never valid; that state-mandated disclosures are always deceptive; and that the
express preferences of Massachusetts and Hawaii for non-OEM parts have no practical
effect. ICFA has never before been used to arrogate power in this way, and this Court
should not permit it now.
Plaintiffs undoubtedly will respond, as they have before, that no state would tolerate
specification of non-OEM parts that are not of “like kind and quality,” making the circuit
court’s factual finding of inferiority consistent with the various states’ laws. C. 30964. But
this twisted reasoning ignores the legislative record. Every state that authorizes use of non-
OEM parts has concluded — often based on extensive hearings — that at least some
significant number of non-OEM parts are of like kind and quality; otherwise, the numerous
statutes authorizing (or affirmatively requiring) the use of non-OEM parts would have been
meaningless acts. See, e.g., R. 10684-85, 11879-80.
Thirty-seven states have concluded that consent or specified disclosures are sufficient
to protect consumers. These states could have required the disclosures that the circuit court
apparently deemed necessary, but none did. Indeed, the circuit court converted state
disclosure laws into traps for the unwary, because there is no way to comply without
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