McIntosh v. Walgreens Boots Alliance, Inc.
109 N.E.3d 747
Ill. App. Ct.2018Background
- Chicago imposed a bottled water tax (5¢ per bottle) but exempted certain carbonated/mineral/flavored waters (per City tax guide). Retailers displayed total prices that included taxes and remitted collected taxes to the City.
- McIntosh bought Perrier, LaCroix, and Smeraldina at Walgreens locations in 2015 and alleges Walgreens charged the bottled-water tax on those exempt products.
- McIntosh sued Walgreens in a putative class action under the Illinois Consumer Fraud and Deceptive Practices Act (Consumer Fraud Act), alleging Walgreens knowingly overcharged taxes and represented prices included only lawful taxes.
- Walgreens moved to dismiss under 735 ILCS 5/2-619(a)(9), invoking the voluntary payment doctrine because the tax was disclosed and remitted; the trial court granted dismissal with prejudice citing Lusinski.
- The appellate court reviewed de novo whether the voluntary payment doctrine bars Consumer Fraud Act claims alleging deceptive acts and whether McIntosh pleaded the fraud/deception exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the voluntary payment doctrine categorically bars Consumer Fraud Act claims | McIntosh: doctrine does not apply to claims enforcing statutorily defined public policy (Consumer Fraud Act) | Walgreens: doctrine bars recovery because tax was voluntarily paid and remitted with knowledge | Court: Not categorical — doctrine does not apply where the claim alleges deceptive act/fraud under the Consumer Fraud Act |
| Whether McIntosh pleaded a deceptive act/fraud sufficient to avoid the voluntary payment doctrine | McIntosh: alleged Walgreens knowingly charged tax on exempt products and intended reliance on its representations | Walgreens: complaint lacks factual detail showing intent to induce reliance; voluntary payment doctrine applies | Court: Complaint sufficiently alleges deceptive acts and intent (payment was a natural consequence), so fraud exception applies |
| Whether Lusinski controls dismissal where fraud is alleged | McIntosh: Lusinski did not involve fraud and is therefore inapplicable | Walgreens: Lusinski supports dismissal of tax-recovery claims absent fraud | Court: Lusinski is distinguishable; where deception/fraud is pleaded, voluntary payment doctrine is inapplicable |
| Remedy at pleading stage (2-619 dismissal) | McIntosh: facts alleged are sufficient; dismissal improper | Walgreens: affirmative defense defeats claim on its face | Court: on 2-619 review, accepting pleadings, Walgreens failed to show the defense definitively barred the claim; reverse and remand |
Key Cases Cited
- Lusinski v. Dominick’s Finer Foods, Inc., 136 Ill. App. 3d 640 (Ill. App. Ct.) (applied voluntary payment doctrine to tax overcharges absent fraud)
- Flournoy v. Ameritech, 351 Ill. App. 3d 583 (Ill. App. Ct.) (Consumer Fraud Act fraud/deception claims are not barred by voluntary payment doctrine)
- Ramirez v. Smart Corp., 371 Ill. App. 3d 797 (Ill. App. Ct.) (statutory duties can limit application of voluntary payment doctrine; Consumer Fraud Act implicated)
- Getto v. City of Chicago, 86 Ill. 2d 39 (Ill.) (describing voluntary payment doctrine principle)
- Jenkins v. Concorde Acceptance Corp., 345 Ill. App. 3d 669 (Ill. App. Ct.) (voluntary payment doctrine bars recovery absent fraud, misrepresentation, mistake, or compulsion)
- Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403 (Ill.) (elements required to plead a Consumer Fraud Act claim)