The NAM filed an amicus brief 3/17/03 urging reversal of an appellate court decision that allows consumers to sue product manufacturers for defects under state consumer fraud act (tort), when the proper remedy should be under contract law. Unless the ruling is changed, consumers who never heard alleged misrepresentations in advertising could still sue for deceptive advertising. On 4/2/03, the Supreme Court of Illinois refused to accept the NAM brief, but the result nevertheless turned out well.
The Illinois Supreme Court ruled on 2/5/04 that consumers who do not hear deceptive advertising cannot sue the manufacturer for damages related to the advertising. The court rejected the theory that the advertising created a market that would not have otherwise existed, thus giving rise to a claim for damages for plaintiffs who made purchases in that market. This is a substantial victory for Boise and all manufacturers whose products are advertised and sold to consumers in Illinois, and is additional precedent for the argument that this fraud-on-the-market theory should not be accepted other states.