• 12, 13 Concealment is actionable where employed as a device to mislead. ( Perlman v. Time, Inc. (1978), 64 Ill. App.3d 190, 197, 380 N.E.2d 1040.) In order to be material, the concealed fact must be such that had the other party been aware of it, he would have acted differently.

However, where the representation as to value is not a mere expression of opinion but is made as a statement of fact for the listener to rely upon, the representation is treated as a statement of fact and the speaker is bound thereby. ( Perlman v. Time, Inc. (1978), 64 Ill. App.3d 190, 380 N.E.2d 1040; Auman v. McKibben (1913), 179 Ill. App. 425; Howell v. Wyatt (1912), 168 Ill. App. 651; and see Nicosia v. Riley (1957), 13 Ill. App.2d 247, 141 N.E.2d 663 (abstract).) As stated by the Illinois Supreme Court in Buttitta v. Lawrence (1931), 346 Ill. 164, 173, 178 N.E. 390, 393:

The concealment of a material fact during a business transaction is actionable if "done `with the intention to deceive under circumstances creating an opportunity and duty to speak.'" Perlman v. Time, Inc., 64 Ill. App. 3d 190, 195, 380 N.E.2d 1040 (1978), quoting Lagen v. Lagen, 14 Ill. App. 3d 74, 79, 302 N.E.2d 201 (1973). A statement that is technically true may nevertheless be fraudulent where it omits qualifying material since a "half-truth" is sometimes more misleading than an outright lie.

This statute has received considerable judicial interpretation. (See Duhl v. Nash Realty, Inc. (1981), 102 Ill. App.3d 483, 429 N.E.2d 1267; Perlman v. Time, Inc. (1978), 64 Ill. App.3d 190, 380 N.E.2d 1040; Brooks v. Midas-International Corp. (1977), 47 Ill. App.3d 266, 361 N.E.2d 815.) These cases and others generally stand for the proposition that the ICFDBPA has created a new cause of action different from the traditional common law tort of fraud.

Whether a statement is one of fact or of opinion depends on all the facts and circumstances of a particular case. Buttitta v. Lawrence, 346 Ill. 164, 178 N.E. 390, 393 (1931); Duhl v. Nash Realty Inc., 102 Ill.App.3d 483, 57 Ill.Dec. 904, 910, 429 N.E.2d 1267, 1273 (1981); Perlman v. Time, Inc., 64 Ill. App.3d 190, 20 Ill.Dec. 831, 837, 380 N.E.2d 1040, 1046 (1978); Parker v. Arthur Murray, Inc., 10 Ill.App.3d 1000, 1003, 295 N.E.2d 487, 490 (1973); see also Kinsey, 79 Ill.Dec. at 589, 463 N.E.2d at 1364 (misrepresentation of law with respect to city's building code treated as a misrepresentation of fact "under the circumstances"). Although a statement may be technically true, it may be considered fraudulent if necessary qualifying material is omitted.

Assertions about commission rates and trading practices would then be part of the scheme. See also Perlman v. Time, Inc., 64 Ill. App.3d 190, 380 N.E.2d 1040, 20 Ill. Dec. 831 (1st Dist. 1978). The claim is also strengthened at several points by the allowances the law makes for differences in the level of knowledge between one party and another. For example, when an assertion concerns a matter peculiarly within the knowledge of the party making it, Illinois law will usually consider it a statement of fact, not merely an opinion of value.

"The ABC is a private non-profit organization which periodically audits and certifies the circulation of magazines [and newspapers]." Perlman v. Time, Inc., 64 Ill. App.3d 190 ( 380 N.E.2d 1040) (1978). Article B 8.3 of the ABC bylaws provides as follows: "When a dealer's account is over three months in arrears such portion of the draw which is in arrears over three months shall not be considered as measuring up to the Bureau's definition of paid circulation..."

W.W. Vincent & Co. v. First Colony Life Insurance Co., 351 Ill.App.3d 752, 762, 286 Ill.Dec. 734, 814 N.E.2d 960 (2004) (citing Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482, 500, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996) ). Defendants cite in support W.W. Vincent, which states: “The concealment of a material fact during a business transaction is actionable if ‘done “with the intention to deceive under circumstances creating an opportunity and duty to speak.” ’ ” W.W. Vincent, 351 Ill.App.3d at 762, 286 Ill.Dec. 734, 814 N.E.2d 960 (quoting Perlman v. Time, Inc., 64 Ill.App.3d 190, 195, 20 Ill.Dec. 831, 380 N.E.2d 1040 (1978), quoting Lagen v. Lagen, 14 Ill.App.3d 74, 79, 302 N.E.2d 201 (1973) ). “A statement that is technically true may nevertheless be fraudulent where it omits qualifying material since a ‘half-truth’ is sometimes more misleading than an outright lie.” W.W. Vincent, 351 Ill.App.3d at 762, 286 Ill.Dec. 734, 814 N.E.2d 960 (citing Perlman, 64 Ill.App.3d at 195, 20 Ill.Dec. 831, 380 N.E.2d 1040, citing St. Joseph Hospital v. Corbetta Construction Co., 21 Ill.App.3d 925, 953, 316 N.E.2d 51 (1974) ). ¶ 107 A duty to disclose a material fact may arise out of several situations.

"`Wherever a party states a matter which might otherwise be only an opinion but does not state it as the expression of the opinion of his own but as an affirmative fact material to the transaction, * * * the statement clearly becomes an affirmation of the fact within the meaning of the rule against fraudulent misrepresentation.'" Heider v. Leewards Creative Crafts, Inc., 245 Ill. App.3d 258, 266 (1993), quoting Perlman v. Time, Inc., 64 Ill. App.3d 190, 197 (1978). "Thus, the general rule is that it is not `the form of the statement which is important or controlling, but the sense in which it is reasonably understood.'"

The Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act or Act) creates a cause of action different from the traditional common law tort of fraud and affords greater consumer protection than does the common law action since the Act prohibits any "deception" or "false promise." ( Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App.3d 237, 511 N.E.2d 1330; Perlman v. Time, Inc. (1978), 64 Ill. App.3d 190, 380 N.E.2d 1040.) Section 2 of the Act provides in pertinent part: