Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—N.D. Ill.: Injunction claim against self-cleaning oven manufacturer found half-baked, (Dec 11, 2015)

By Edward L. Puzzo, J.D.

An injunction sought under the Illinois Uniform Deceptive Trade Practices Act, brought against Whirlpool Corporation based on alleged deceptive practices relating to the sale of self-cleaning ovens, could not be sustained because the plaintiff was unable to allege facts indicating that she was likely to be damaged by Whirlpool's conduct in the future, the federal district court in Chicago has ruled (Kljajich v. Whirlpool Corporation, December 10, 2015, St. Eve, A.).

As part of a putative class action, plaintiff Beth Klljajich brought a claim under the Illinois Uniform Deceptive Trade Practices Act (IDTPA) against Whirlpool Corporation. Kljajich alleged that, based on Whirlpool's representations concerning the benefits of a self-cleaning cycle in its ovens, she purchased one of their electric ovens with that feature.

Kljajich sought injunctive relief based on Whirlpool's alleged violation of the IDTPA. Whirlpool moved to dismiss her complaint due to the failure to plead a cognizable future harm. The dismissal was granted, but Kljajich was allowed to re-plead the claim. Whirlpool reasserted its motion to dismiss against the re-pleaded claim.

When the self-cleaning cycle is activated, the oven doors lock and the oven is brought to extremely high temperatures for two to four hours. Kljajich alleged that the first time she used the self-cleaning feature on her Whirlpool oven, the extreme heat damaged the oven's thermostat, fuses, control panel, motherboard and other components, resulting in the oven locking up and becoming unusable. After several attempts to repair her oven were unsuccessful, Kljajich sent a complaint to the Illinois Attorney General. Whirlpool then replaced her oven with a new one, also including a self-cleaning feature. However, the installation technician warned her that if she used the self-cleaning feature in the new oven, it was likely to damage components and again leave her with an unusable oven.

Future harm. In order to maintain a consumer action under the IDTPA, the court explained, the consumer must allege facts indicating that she is likely to be damaged by defendant's conduct in the future. Ordinarily, however, this is not the case, as the harm has already occurred.

Here, Kljajich alleged (1) that the ovens—lacking insulation and a thermostat sufficient to protect the electronic components from damage by the high heat used in the self-cleaning cycle—were defective, and (2) that Whirlpool's contradictory statements made her uncertain whether a defect existed.

Kljajich argued that, under Brennan v. AT&T Corp. (2006 WL 306755), an IDTPA claim for injunctive relief can be stated even when a plaintiff is aware of defendant’s deceptive conduct if plaintiff is likely to be damaged by defendant’s conduct in the future that "creates a likelihood of confusion or misunderstanding." But Brennan involved improper charges made to a plaintiff that was not a customer of the defendant, a situation that differed from the situation here, the court stated. Indeed, most of the other cases cited by Kljajich affirmed the dismissal of IDTPA claims where, as here, the plaintiff knew of the alleged deceptive trade practices. Confusion or misunderstanding also could be based on the defendant's denial of the allegedly deceptive conduct, since such a denial was likely present in every case.

Although Kljajich's allegations adequately pleaded deceptive trade practices, stated the court, injunctive relief under the IDTPA includes the separate and distinct requirement that defendant's conduct will likely cause plaintiff to suffer damages in the future. Regardless of any mixed messages from Whirlpool, Kljajich was at least aware that a defect may exist, arming her with the knowledge she needed to avoid the problem from Whirlpool's allegedly deceptive practices in the future. Thus, she could not allege "future harm." The court therefore dismissed her claim with prejudice.

The case is No. 1:15-cv-05980.

Attorneys: William W. Blair (Onder, Shelton, O'Leary & Peterson, LLC) for Beth Kljajich. Andrew M. Unthank (Wheeler Trigg O'Donnell LLP) and Bradley B. Falkof (Barnes & Thornburg LLP) for Whirlpool Corporation.

Companies: Whirlpool Corporation

Cases: StateUnfairTradePractices IllinoisNews