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FOURTH DIVISION

Filed: 12/04/02

1-01-4001

JUSTICE HOFFMAN delivered the opinion of the court:

Section 7 of the Consumer Fraud and Deceptive Business Practices Act (Consumer FraudAct) provides that either the Illinois Attorney General or a State's Attorney "may bring an action inthe name of the People of the State" when he or she "has reason to believe that any person is using,has used, or is about to use any method, act or practice" declared unlawful under the act. 815 ILCS505/7 (West 2000). The State's Attorney of Cook County initiated the instant case by filing a two-count complaint on behalf of the People of the State of Illinois alleging that the defendant, TimeConsumer Marketing, Inc. (Time), violated the Consumer Fraud Act with regard to certainsweepstakes mailings it sent to members of the public in Cook County. A short time later, theIllinois Attorney General and Time executed an "Assurance of Voluntary Compliance orDiscontinuance" with regard to Time's future sweepstakes mailing practices as part of which Timewas released from all claims which were or could have been asserted pursuant to the ConsumerFraud Act prior to the effective date of the assurance. Subsequently, the trial court granted Time'smotion to dismiss the instant action pursuant to section 2-619(a)(6) of the Code of Civil Procedure(Code) (735 ILCS 5/2-619(a)(6) (West 2000)), finding that the claims asserted herein had beenreleased. We affirm.

On June 27, 2000, the State's Attorney of Cook County filed a two count complaint allegingthat Time violated the Consumer Fraud Act by sending direct mail solicitations which contained anoffer to participate in a sweepstakes contest (hereinafter referred to as the sweepstakes mailing) tomembers of the public in Cook County. Count I of the complaint alleged that Time violated section2 of the Consumer Fraud Act (815 ILCS 505/2 (West 2000)) in that the sweepstakes mailingmisrepresented that: 1) persons had already won a prize; 2) persons were likely to win a prize; 3)persons would improve their chances of winning a prize by ordering merchandise from Time; 4)persons would improve their chances of winning a prize by submitting a sweepstakes entryaccompanied by an order for merchandise; and 5) persons must submit their entries within 5 or 10days after the arrival of the sweepstakes mailing to be eligible to participate in the sweepstakescontest. Count II of the complaint alleged that Time violated section 2P of the Consumer Fraud Act(815 ILCS 505/2P (West 2000)) in that it failed to disclose the following material terms in a clearand conspicuous manner at the outset of the sweepstakes mailing: 1) estimated odds of winning thegrand prize; 2) estimated odds of winning any extra and/or special prizes; 3) a requirement that aprize winner must sign and return an "Affidavit of Eligibility and Release of Liability & Publicity"to receive any prize; and 4) a requirement that entry into the sweepstakes and/or acceptance of aprize constitutes a grant of permission by the winner for Time to use his or her name, hometown,likeness, and prize won for purposes of advertising and promotion. By way of relief, the complaintrequested a finding that Time violated the Consumer Fraud Act and orders: temporarily restrainingand preliminarily and permanently enjoining Time from committing any further violations of theConsumer Fraud Act, including but not limited to the specific acts alleged in the complaint; requiringTime to pay restitution to all members of the public damaged by its violations of the ConsumerFraud Act; and assessing a $50,000 civil penalty against Time pursuant to section 7(b) of theConsumer Fraud Act (815 ILCS 505/7(b) (West 2000)). Time was served with the complaint in theinstant case on July 10, 2000, and filed its appearance on August 2, 2000.

At the time the State's Attorney of Cook County initiated the instant action, the IllinoisAttorney General was participating in a multi-jurisdiction investigation of Time's sweepstakesmailing practices. As a result of that investigation, in August 2000, the attorneys general of 48states, including Illinois, and the corporation counsel of the District of Columbia entered into an"Assurance of Voluntary Compliance or Discontinuance" (Assurance) with Time Inc. and its whollyowned subsidiaries, including Time. The Assurance provided that it would be effective August 22,2000. Pursuant to the terms of the Assurance, Time agreed to comply with numerous requirementsfor its future sweepstakes mailings and to pay the sum of $4,924,636, within 30 days of the effectivedate of the Assurance, to establish a consumer fund, out of which payments would be made toconsumers as directed by the participating states. The Assurance further required that Time pay thesum of $3,240,000, within 30 days after its effective date, "for the purpose of providing to theindividual States reimbursement for their attorneys' fees and other costs of the inquiry leading to"the Assurance. In exchange for the monetary payments and agreement to follow the enumeratedrequirements with regard to future mailings, Time received a release of all claims which had beenor could have been brought pursuant to the consumer protection statutes of the signatory states priorto the effective date of the Assurance based on the subject matter of the Assurance. Charles G.Fergus, Chief of the Consumer Fraud Bureau of the Illinois Attorney General's Office, signed theAssurance on behalf of the Illinois Attorney General.

On January 16, 2001, Time filed a motion to dismiss the instant action pursuant to section2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2000)). Time argued that the complaint should bedismissed pursuant to section 2-619(a)(6) of the Code (735 ILCS 5/2-619(a)(6) (West 2000))because, under the terms of the Assurance, the People of the State of Illinois had released it from theclaims asserted therein. Time also argued that the complaint should be dismissed pursuant to section2-615 of the Code (735 ILCS 5/2-615 (West 2000)) because it fails to state a cause of action for aviolation of the Consumer Fraud Act. In response, the State's Attorney of Cook County asserted thatthe release contained in the Assurance does not apply to the claims stated in the instant actionbecause he was not a party to the release and the Illinois Attorney General was not authorized torelease the claims he filed on behalf of the People of the State of Illinois.

After hearing arguments, the trial court found that the claims asserted in the instant actionhad been released by virtue of the Assurance and dismissed the complaint pursuant to section 2-619(a)(6). This appeal followed.

Section 2-619 of the Code is designed to provide a means for the disposition of issues of lawand easily proved issues of fact. Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000 (1995).A section 2-619 motion to dismiss admits the legal sufficiency of the complaint but raises someaffirmative matter, appearing on the face of the complaint or established by external submissions,which defeats the plaintiff's claim. LaSalle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780,789, 758 N.E.2d 382 (2001). Section 2-619(a)(6), pursuant to which the trial court dismissed thecomplaint in this case, provides for the dismissal of an action which states a claim that has beenreleased, satisfied of record, or discharged in bankruptcy. 735 ILCS 5/2-619(a)(6) (West 2000). Onreview of an order granting dismissal pursuant to section 2-619, we must determine whether agenuine issue of material fact existed which should have precluded dismissal and, if not, whetherthe dismissal was proper as a matter of law. Kedzie & 103^rd Currency Exchange, Inc. v. Hodge, 156Ill. 2d 112, 116-17, 619 N.E.2d 732 (1993). Our review is de novo. Kedzie & 103^rd CurrencyExchange, Inc., 156 Ill. 2d at 116.

In his brief to this court, the State's Attorney of Cook County first argues that, by its plainlanguage, the release contained in the Assurance does not encompass the claims asserted in theinstant action. At oral argument, however, he abandoned this argument and acknowledged that therelease does purport to apply to the relevant claims. An examination of the plain language of therelease provision reveals that any assertion to the contrary lacks merit. See Doctor's Associates, Inc.v. Duree, 319 Ill. App. 3d 1032, 1045, 745 N.E.2d 1270 (2001)(a release is a contract subject totraditional rules of contract interpretation); Bunge Corp. v. Northern Trust Co., 252 Ill. App. 3d 485,493, 623 N.E.2d 785 (1993) (in construing contract, primary objective is to determine parties'intention which, absent ambiguity, is determined from language of the contract itself). The releaseprovision contained in the Assurance provides that:

"Each State acknowledges by its execution hereof that this Assurance constitutes acomplete settlement and release of all claims on behalf of such State against Time,and all of its subsidiaries and affiliates, past and present, *** (all such releasedparties shall be collectively referred to as the "Releasees"), with respect to all claims,causes of action, damages, fines, costs and penalties which were asserted or couldhave been asserted prior to the Effective Date of this Assurance under the above-citedconsumer protection statutes and relating to or based upon the subject matter of thisAssurance."

The claims asserted in the instant case clearly allege violations of the Consumer Fraud Act based onconduct which is the subject matter of the Assurance, namely Time's sweepstakes mailing practices,and were brought prior to the effective date of the Assurance. Thus, as the State's Attorney of CookCounty conceded at oral argument, the release provision in the Assurance does encompass theclaims asserted in the instant case.

Having concluded that the release provision contained in the Assurance does purportedlyapply to the claims stated in this case, we now turn to the State's Attorney of Cook County'scontention that the release cannot be enforced with regard to the claims at issue because the IllinoisAttorney General does not have the authority to release a claim initiated by a State's Attorney onbehalf of the People of the State of Illinois pursuant to the Consumer Fraud Act. The State'sAttorney of Cook County contends that neither the Attorney General Act (15 ILCS 205/.01 et seq.(West 2000)), which sets forth the Illinois Attorney General's statutory duties generally, nor theConsumer Fraud Act, which sets forth the Illinois Attorney General's powers and duties with respectto actions thereunder, authorizes him or her to settle a claim filed by a State's Attorney. Timeresponds that, pursuant to section 6.1 of the Consumer Fraud Act (815 ILCS 505/6.1 (West 2000))and his common law powers, the Illinois Attorney General did have the authority to release Timefrom liability for all claims under the Consumer Fraud Act based on its past conduct, including anyclaim filed by a State's Attorney.

In order to resolve the issue before us, we must consider the constitutional and statutoryprovisions which set forth the powers and duties of the Illinois Attorney General.

Section 15 of article V of the Illinois Constitution of 1970 provides that "[t]he AttorneyGeneral shall be the legal officer of the State, and shall have the duties and powers that may beprescribed by law." Ill. Const. 1970, art. V,