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PRESIDING JUSTICE McBRIDE delivered the opinion of the court:

Plaintiff-appellant, Dr. Leonard Saltzman, appeals fromsummary judgment entered in favor of defendants-appellees, EnhancedServices Billing, Inc. (ESBI), and Infodex, Inc. (Infodex),⁽¹⁾ onplaintiff's second amended complaint (complaint). The complaint,filed as a class action, alleged in count I that ESBI violatedsection 2 of the Consumer Fraud and Deceptive Business PracticesAct (Consumer Fraud Act) (815 ILCS 505/2 (West 2000)). Count IIwas a claim for restitution that was dismissed by the trial courton August 25, 2000. On October 5, 2001, the trial court grantedsummary judgment in favor of ESBI on the ground that knowinglyreceiving benefits from someone else's fraud was not covered undersection 2 of the Consumer Fraud Act. Plaintiff appeals from thatorder.

The sole issue on review is whether summary judgment in favorof ESBI was proper. "Summary judgment is proper 'where thepleadings, affidavits, depositions, admissions, and exhibits onfile, when viewed in the light most favorable to the nonmovant,reveal that there is no genuine issue as to any material fact andthat the movant is entitled to judgment as a matter of law.'[Citation.]" Zekman v. Direct American Marketers, Inc., 182 Ill.2d 359, 374, 695 N.E.2d 853 (1998). "Although use of the summaryjudgment procedure can be an efficient means for disposing ofcertain lawsuits, it is a drastic measure that should be employedonly when the right of the moving party is clear and free fromdoubt. [Citation.]" O'Banner v. McDonald's Corp., 173 Ill. 2d 208,211-12, 670 N.E.2d 632 (1996). On a summary judgment motion, ourstandard of review is de novo. Zekman, 182 Ill. 2d at 374. Westate the following background facts.

Infodex was a telecommunications information service providerthat furnished information when a consumer phoned a certain "900"number. Specifically, the complaint alleged that Infodex provided"services such as sports and weather information when consumerstelephone a particular phone number with a '900' prefix." Aconsumer's "900" number activity was recorded on a magnetic tape orwas electronically transmitted by Infodex to billing clearinghouses for the collection of fees. ESBI is an enhanced billingclearing house that bills consumers directly, or through localtelephone companies, for services provided from other businesseswithin the telecommunications industry. ESBI and Infodex had acontract in which ESBI would process the magnetic tapes andelectronic transmissions from Infodex. ESBI would then send thebilling information to the local exchange carriers, such asAmeritech, for inclusion on the customer's telephone bill.

Plaintiff alleged that, during 1997, he received a series oftelephone bills from Ameritech, his local telephone serviceprovider, that included a charge for an "Infodex Net Listing"service from ESBI. Plaintiff paid these charges without realizingwhat they were for. He alleged that he never authorized these"Infodex" or "Net Listing" services that were charged from ESBI.

After receiving a phone bill from Ameritech dated July 10,1997, which contained another ESBI charge in the amount of $5.86,plaintiff telephoned Ameritech and ESBI and sought to determine whoauthorized the ESBI charges that had been appearing on his phonebill. Plaintiff alleged that neither Ameritech nor ESBI couldprovide any information on who authorized the charge or whatInfodex was. He further alleged that he received nothing for theseInfodex listing services.

On September 10, 1997, plaintiff claimed that he receivedanother telephone bill containing charges from ESBI. He was ableto have this charge cancelled but he could not cancel the earliercharges for which he had already paid.

In paragraph 25 of the complaint, plaintiff specificallyalleged:

"It is the practice of ESBI to receivebilling information from Infodex, and withoutany reasonable evidence of authorization, andknowing that ESBI could not provide anyreasonable evidence of authorization, to placethe bogus charge on the victim's telephonebill. The placing of the bogus charge on avictim's phone bill is a representation thatthe victim actually owes the bogus charge."

In paragraph 27 of the complaint, plaintiff alleged:

"The placement of a bogus charge on aphone bill is misleading and deceptive, inthat victims are led to believe that thecharges on the utility bill are legitimate byits very inclusion on the amount owed to thetelephone company. Moreover, withholding theamount due from the phone bill subjects thevictim to late fees and credit problems withthe phone company, so the victim paysregardless of whether he thinks it is actuallyowed."

In paragraph 28, the complaint alleged, in relevant part:

"When the telephone company obtainspayment of the bogus charges, the money isrelayed to [ESBI]. [ESBI] then subtracts theamount of their fees off the top, and forwardsthe remaining money to Infodex."

As a result of the above conduct, the complaint alleged thatESBI engaged in unfair and deceptive acts and practices by addingcharges to customer's telephone bills for which it could notproduce any contract or authorization. Such conduct, according toplaintiff, amounted to a violation of section 2 of the ConsumerFraud Act.

On June 5, 2001, ESBI moved for summary judgment on the groundthat that ESBI did not violate section 2 of the Consumer Fraud Act. In an affidavit, Jeanne Jackson, vice president of customerservice for ESBI, testified that ESBI had a contract with Infodexwhere ESBI processed the magnetic tapes and/or electronictransmissions provided by Infodex. Once ESBI received the chargesfrom its customers and performed a data processing function, ESBIthen sent the billing information to Ameritech for inclusion on thecustomer's telephone bill. In short, Jackson explained that ESBIacted "as a middleman in transferring the funds between the localexchange carrier [Ameritech] and its customers, including Infodex." Because ESBI was simply performing a data processing function,Jackson claimed that ESBI had no way of knowing whether a givencharge was erroneous.

She also stated that, if a telephone customer complained aboutan error on his or her bill, either ESBI, its client, or Ameritechwould investigate the claim. If a charge was made in error, ESBIwould forward an electronic credit to Ameritech in order to creditthe customer's account for the amount erroneously billed. Jacksonsaid that she examined plaintiff's account records regarding theInfodex bills. Those records demonstrated that Infodex chargesappeared on plaintiff's phone bill five times during the periodbetween April and August 1997, amounting to $27.15. She furthersaid that plaintiff telephoned ESBI on September 8, 1997, andregistered a complaint regarding the Infodex charges that appearedon his bill. ESBI registered plaintiff's complaint and arrangedtwo credits for Infodex charges at that time. ESBI then reviewedplaintiff's records and issued him credits for the remaining threeInfodex charges. According to Jackson, therefore, plaintiffreceived a full refund for all the Infodex charges that appeared onhis telephone bill.

In her deposition, Jackson, without any explanation, statedthat ESBI relied upon the contract between it and Infodex to ensurethe Infodex charges to customers were legitimate. She also saidthat ESBI did not individually contact customers to make sure thecharges were authorized and that ESBI presumed the charges werelegitimate. As a billing clearinghouse, Jackson said, ESBI wasnot in a position to determine whether the Infodex charges on acustomer's bill were authorized. She stated that no Infodex lettersof authorization from customers existed in the ESBI database andthat, to her knowledge, ESBI got paid its fee from Infodexregardless of whether the charge was authorized by the customer.

Jackson also testified that it was ESBI's general practice toremove charges for customers who called in and stated that thecharges were not authorized. She further stated that it was morethan likely that ESBI would issue credit to 100% of the customerswho called ESBI and complained that the charges were unauthorized. However, she also said that, if customers did not call andcomplain, ESBI would retain its fee anyway regardless of whetherthe charge was authorized.

Plaintiff testified in his deposition that, after missing thefirst or second charges, he noticed an Infodex charge from ESBI ona subsequent telephone bill sent to him by Ameritech. He said that he had no idea what these Infodex charges were. As a result, hecontacted a customer service representative from ESBI. Therepresentative, however, could not tell him the basis for thecharges and informed him that ESBI just passed along the billing. Plaintiff also said that when he contacted ESBI, he asked if it hada contract with his authorization signature on it and ESBI saidthat it would look into it and would let him know. Plaintiff saidthat he never heard back from ESBI on the matter. Plaintifftestified that he was charged on three billing dates in the amountof $5.43, and that he received two credits from ESBI in the amountof $10.86, but he did not think he was ultimately credited for allof the charges.

Plaintiff also stated that, when he called Ameritech about thesuspect charges and asked it what would happen if he did not paythat portion of the bill, Ameritech informed him that he must paythe entire bill. He explained that he chose to sue ESBI becausethe company's name appeared on his bill and he felt he was beingcharged by ESBI for services he had never requested or authorized. On October 5, 2001, the trial court granted summary judgmentin favor of ESBI based on the supreme court's ruling in Zekman,which held that liability under section 2 of the Consumer Fraud Actcould not be extended to those who knowingly received the benefitof another's fraud as opposed to those who actually or directlyparticipated in the fraud. Zekman, 182 Ill. 2d at 370. Specifically, the trial court stated:

"It is my conclusion that that language[from plaintiff's complaint] is the equivalentof knowingly receiving the benefit ofanother's fraud. Accordingly, under the firstpart of the Zekman case whether we like it ornot, what it says is that: Knowingly receivingbenefits from someone else's fraud is notcovered under the Act.

We then go to the discussion of theFourth Amended Complaint [in Zekman]. It's myconclusion for [the instant] complaint tosurvive it must allege something that istantamount to reviewing, revising, andapproving or something which establisheddirect knowledge - directly violating thestatute as opposed to this is secondaryviolating the statute.

So I think the Zekman case is prettystrong."

We now address whether the summary judgment entered in favorof ESBI was proper. Section 2 of the Consumer Fraud Act states, inpertinent part:

"Unfair methods of competition and unfairor deceptive acts or practices, including butnot limited to the use or employment of anydeception, fraud, false pretenses, falsepromise, misrepresentation or the concealment,suppression or omission of any material fact,with intent that others rely upon theconcealment, suppression or omission of suchmaterial fact, or the use or employment of anypractice described in Section 2 of the'Uniform Deceptive Trade Practices Act', ***in the conduct of any trade or commerce arehereby declared unlawful whether any personhas in fact been misled, deceived or damagedthereby. In construing this sectionconsideration shall be given to theinterpretations of the Federal TradeCommission and the federal courts relating toSection 5(a) of the Federal Trade CommissionAct." 815 ILCS 505/2 (West 2000).

ESBI contends, based upon the holding in Zekman, that thetrial court properly entered summary judgment in its favor becausethe undisputed facts established that ESBI did not actively ordirectly participate in the alleged fraud. Plaintiff responds byasserting that Zekman is not controlling because ESBI activelyparticipated in the fraud by charging consumers for services theynever received when ESBI knew or should have known that the chargeswere "bogus." At the very least, plaintiff suggests that the trialcourt erred in granting summary judgment for ESBI because aquestion of fact exists as to whether ESBI was a direct participantin the alleged fraud.

In Zekman, the plaintiff filed an amended class action suitagainst Direct American Marketers, Inc. (Direct American), AT&T,and Illinois Bell Telephone Company. Count V of the first amendedcomplaint alleged that AT&T violated section 2 of the ConsumerFraud Act by knowingly receiving the benefits of Direct American'sfraud. The trial court granted AT&T's motion to dismiss the claim. The plaintiff filed second and third amended complaints that werewithdrawn in response to motions to dismiss filed by AT&T. Theplaintiff then filed a fourth amended complaint which, in count V,alleged that AT&T directly violated section 2 of the Consumer FraudAct. Specifically, count V of this complaint asserted that AT&Tdirectly violated the Consumer Fraud Act by "reviewing, revising,and approving Direct American's deceptive solicitations andrecorded messages." The trial court granted AT&T's and DirectAmerican's motions for summary judgment. The plaintiff appealedboth the decision to dismiss the plaintiff's claim in count V ofthe first amended complaint and the grant of summary judgment oncount V of the fourth amended complaint. The appellate courtreversed.

On review in the supreme court, the facts revealed that theplaintiff received a series of separate mailings from DirectAmerican which generally indicated that the plaintiff had won aprize. While it was possible to respond by using the mail, themailings encouraged recipients to call a "900" number in order toimmediately claim their prize. The prizes ranged from discountcoupons to cash rewards. By calling the "900" number, recipientsincurred charges on their telephone bill, which were disclosed inthe mailings, usually between $8 and $10 dollars per call. Theplaintiff made numerous calls to various "900" numbers and won onlydiscount coupons, never a cash reward. AT&T billed the plaintifffor the charges, retained a percentage, and the remainder of thecharges went to Direct American.

AT&T reviewed Direct American's mailings for the purpose ofensuring that they complied with AT&T guidelines, and state andfederal laws prohibiting false, deceptive, and misleadingadvertising and trade practices. Periodically, AT&T determinedthat Direct American's proposed mailings were misleading andrequired Direct American to make certain changes before they weremailed. AT&T also had a policy to provide refunds for customerswho contested charges for their calls to Direct American.

During the course of the litigation, the plaintiff wasdeposed. In his deposition, the plaintiff testified that when hegot the mailings from Direct American, he responded to them becausehe thought that his name on the card meant something. He furthersaid that he read the mail pieces in a cursory fashion, meaningthat he only spent enough time reading the mailing to determinethat his name was on it, "and if there was a cash award on it." Zekman, 182 Ill. 2d at 365. In his testimony, the plaintifftestified that he was aware that he could have determined whetherhe had won by using the mail, but he chose not to because he waseager to find out if he had won a prize and he would find out morequickly by calling. He further said that he knew that there wouldbe a charge associated with calling the "900" number and that heheard a message at the beginning of the call indicating that, if hehung up, he would not be charged for the phone call. Zekman alsoacknowledged that his telephone records indicated that he made 11calls to various "900" numbers on October 8, 1991, and that he made13 calls to various "900" numbers on October 26, 1991. Zekman, 182Ill. 2d at 366.

After examining section 2 of the Consumer Fraud Act, thesupreme court in Zekman agreed with the trial court's dismissal ofcount V of the first amended complaint because section 2 of theConsumer Fraud Act only contemplated actions taken directly by theperpetrator of the fraud. Zekman, 182 Ill. 2d at 370. The courtstated that "[k]nowingly receiving the benefits of another's fraud*** more closely resemble[d] a form of secondary liability." Zekman, 182 Ill. 2d at 370. As a result, it found that liabilitycould not be extended to those who knowingly receive the benefitsof another's fraud. Zekman, 182 Ill. 2d at 370. It thereforeaffirmed the trial court's dismissal of count V of the firstamended complaint.

With regard to count V of the fourth amended complaint filedby Zekman, the supreme court determined that a private individualsuing under the Consumer Fraud Act must demonstrate that the fraudcomplained of proximately caused the plaintiff's injury. Zekman,182 Ill. App. 3d at 373. Since the plaintiff testified in hisdeposition that he willingly made the calls because he was eager tofind out whether he had won an award, the court held that thistestimony precluded him from establishing that AT&T's allegedmisconduct proximately caused his damages. Zekman, 182 Ill. 2d at374-75. On this ground, the court found that the trial courtproperly entered summary judgment in favor of AT&T. Zekman, 182Ill. 2d at 377.

Based upon our review of Zekman and the pleadings, affidavits,depositions, admissions, and exhibits on file, we conclude thatquestions of fact remain with regard to whether ESBI was a directparticipant in the alleged fraud set out in plaintiff's complaint.

In the instant case, Jackson stated in her affidavit that ESBIsent billing information to Ameritech for inclusion on thecustomer's phone bill. In her deposition, she testified that,while ESBI had no records of authorization from Infodex or thecustomer, it presumed the charges billed were authorized. She alsosaid that ESBI was paid by Infodex whether or not the charges wereauthorized by the customer. When a customer complained, Jacksonstated that it was the general practice of ESBI to remove thecharges and issue the customer credit. However, if the customerdid not complain, ESBI would take its fee regardless of whether thecustomer had authorized the charge.

Thus, Jackson admitted that, while ESBI had no way ofverifying the Infodex charge, it still billed plaintiff for thecharge, represented to plaintiff that the charge was owed,identified itself on plaintiff's bill, and did not refund money forunauthorized charges until plaintiff complained. Significantly,had plaintiff not complained to ESBI, he would have incurredcharges that were not authorized and for which he received novalue.

Further, plaintiff testified that he never authorized these"Infodex" or "Net Listing" services that were charged from ESBI. He further stated that neither Ameritech nor ESBI could provide anyinformation on who authorized the charge. He also said that hereceived nothing for the Infodex listing services for which he wasallegedly billed.

As we noted above, the complaint in this case alleged that itwas ESBI's practice to receive billing information from Infodex,and without any evidence of authorization, place the "bogus" chargeon the victim's telephone bill, in effect, representing that thecustomer owed the charge. In our view, these allegations are different from the one made in count V of the first amendedcomplaint in Zekman, which only alleged that AT&T knowinglyreceived the benefits of Direct American's deceptive practices inviolation of section 2 of the Fraud Act.

Here, paragraph 25 of the complaint alleged that it was ESBI'spractice to receive billing information from Infodex, and withoutany reasonable evidence of authorization, place these charges ontoa customer's bill. In effect, ESBI affirmatively represented thatthe victim actually owed these charges, without any verificationthat the charges were legitimate. It then profited when thecustomer paid the phone bill regardless of whether the charges wereauthorized. As we noted above, Jackson, in her deposition,admitted that it was the practice of ESBI to credit a customer whocomplained almost 100% of the time because ESBI had no way ofdetermining whether the charges were valid. In the event acustomer did not complain, however, ESBI would take its fees andpass the reminder on to Infodex.

In People ex rel.Hartigan v. Stianos, 131 Ill. App. 3d 575,475 N.E.2d 1024 (1985), a case cited by plaintiff, a compliant forinjunctive and other relief was brought against the defendants, theowners of a Mini Mart in Lake County, Illinois. The defendantswere engaged in the sale of food and nonprescription drugs forwhich the applicable sales tax rate in Lake County was 1.25%. Thecomplaint alleged that an investigator from the Attorney Generalpurchased Bayer Aspirin, a nonprescriptive drug, from thedefendants on April 24, 1984, and was charged 8 cents for salestax, which was a rate of 6.20% for the purchase. On June 11, 1984,an investigator purchased Vicks Cough Syrup from the defendants for$2.99, and was charged 18 cents for sales tax, which was a rate of6.02%. Finally, on July 5, 1984, the investigator purchasedAnacin, a nonprescriptive drug, from defendants for $2.99 and wascharged 18 cents for sales tax, which was a rate of 6.02% for thepurchase.

In the complaint, the Illinois Attorney General, under theConsumer Fraud Act, sought to enjoin the defendants from chargingto consumers sales tax in excess of the amount authorized by law. Based on the allegations in the complaint, the trial court entereda temporary restraining order. The defendants moved to dismiss thecomplaint on the ground that it failed to state a cause of action. The trial court granted the motion in part, striking one part ofthe prayer for relief which sought civil penalties. At the closeof the plaintiff's case, the defendants sought a motion fordirected finding, which was granted by the trial court on threegrounds: (1) the plaintiff failed to prove the defendants engagedin the conduct complained of with the intent to deceive; (2) theconduct was de minimis; and (3) the plaintiff failed to show alikelihood of success on the merits. The trial court then deniedthe preliminary injunction and dissolved the temporary restrainingorder. The Attorney General appealed.

The appellate court, after reviewing section 2 of the ConsumerFraud Act, concluded that the practice described in that case wasdeceptive and unfair as those terms were used in the statute. Stianos, 131 Ill. App. 3d at 581. It also found that the supremecourt recognized the terms "deceptive" and "unfair" were "notcapable of precise definition, and whether a given practice [was]unfair or deceptive must be determined on a case-by-case basis."Stianos, 131 Ill. App. 3d at 581. The appellate court additionallyobserved that section 2 of the Consumer Fraud Act provides that,"in determining whether a practice is unlawful as unfair ordeceptive, consideration is to be given to the interpretations ofthe Federal Trade Commission and the Federal courts" under theFederal Trade Commission Act (15 U.S.C.