“There is no privity of contract between these parties, and if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue. Lord Abinger, Winterbottom v. Wright, 152 ER 402, Meeson & Welsby 109; pages 109 – 116 (1842); see also, Tweddle v. Atkinson, EWCH J57 (QB) (1861). 

“Privity is an elusive concept.” Manley v. Hain Celestial Grp., Inc., 417 F. Supp. 3d 1114, 1122 (N.D. Ill. 2019).

Those of us “of a certain age” might remember studying the above-mentioned old English case, probably in your contracts class. It may also be the first time that you were exposed to the term “privity,” not a word used in everyday parlance. Privity is, basically, a central aspect of the commercial relationship between buyer and seller. Simply stated, it is “that connection. . . which exists between two or more contracting parties.”¹ Both under the Uniform Commercial Code, and at common law, privity has been, and remains, an essential element in many of an aggrieved buyer’s claims against a seller for non-performance of the goods bought and sold.²

Practitioners of tort law might also recall that in 1965 the Illinois Supreme Court abolished the defense of privity of contract in tort actions involving personal injury, as part of the still-developing body of product liability law in Illinois. Suvada v. White Motor Co.,³ making “explicit that which was implicit” in such earlier cases as Lindroth v. Walgreen Co.⁴ and Gray v. American Radiator and Standard Sanitary Corp.⁵

The next major milestone in the evolution of Illinois product liability law may be said to have come in the case of Moorman Mfg. Co. v. National Tank Co.⁶, in which the Illinois Supreme Court held that economic loss – defined as “damages for inadequate value, cost of repair and replacement of the defective product, or consequent loss of profits . . . without any claim of personal injury or damage to other property . . .”⁷ – was not recoverable under tort theories. The court thereby resolved the Santor/Seeley debate for Illinois⁸, and answered a question left unresolved by Suvada, i.e. “whether a consumer could recover under a strict liability in tort theory for solely economic loss.”⁹

Having been relegated to a contract theory for disappointed commercial expectations, the aggrieved consumer faces another hurdle on the road to recovery – privity – a concept whose very existence was challenged before the Illinois Supreme Court in the case of Szajna v. General Motors Corp.¹⁰

The Szajna and Rothe Cases.

Mr. Szajna purchased a 1976 Pontiac Ventura but subsequently discovered that the car contained a Chevette transmission, which was allegedly inferior to the Pontiac transmission Szajna thought he had purchased. He brought a class action lawsuit against General Motors on his own behalf and on behalf of all others who had purchased a 1976 Pontiac Ventura. The class action alleged breach of both express and implied warranties along with other counts. Damages were based solely on economic loss, with plaintiff claiming that the Chevette transmissions required more repairs, had shorter service lives and lessened the value of the cars in question. Also, additional damages were claimed for the cost of replacing the transmission.

Among its other rulings, the trial court dismissed the plaintiff’s implied warranty of merchantability claim, and the Appellate Court affirmed,¹¹ finding no privity between Szajna and General Motors which, the court held, was fatal to the plaintiff’s UCC-based implied warranty claim. 

At the Illinois Supreme Court, Szajna urged the court “to abolish the privity requirement in suits for breach of implied warranty when a plaintiff seeks to recover for economic loss.”¹²

The court reviewed the various commentators and case law regarding recovery for purely economic loss, which the court recognized “most certainly is not uniform in all jurisdictions.”¹³

Citing its decision in Moorman four years earlier, the court said, “we held that recovery for economic loss must be had within the framework of contract law.”¹⁴

Noting that the distinction between the two standards of recovery (tort and contract) is not arbitrary but rests upon an understanding of the nature of the responsibility a manufacturer must undertake in distributing his product, the court said the consumer should not be charged with bearing the risk of physical injury when he buys a product on the market, but he can, however, fairly be charged with the risk of disappointed commercial expectations in the quality or performance of a product.¹⁵

The court expressed its belief that “it is preferable to relegate the consumer to the comprehensive scheme of remedies fashioned by the UCC, rather than requiring the consuming public to pay more for their products so that the manufacturer can insure against the possibility that some of his products will not meet the business need of some of his customers.”¹⁶

The same rationale, the court concluded, supports the prohibition of recovery for economic loss by non-privity plaintiffs. The court therefore declined to abolish the privity requirement in implied warranty economic loss cases, and affirmed the judgment in favor of the defendant on the plaintiff’s UCC warranty claim.¹⁷

As to plaintiff’s implied warranty claim based upon the Magnuson – Moss Act,¹⁸ however, the Supreme Court resurrected this claim, reversing the dismissal of this count and remanding it to the trial court.¹⁹

The privity rules in Szajna were endorsed two years later in Rothe v. Maloney Cadillac, Inc.,²⁰ when the Illinois Supreme Court again ruled that “with respect to purely economic loss, the UCC article ll implied warranties give a buyer of goods a potential cause of action only against his immediate seller”, and not against a remote manufacturer.²¹

As in Szajna, however, the plaintiff’s implied warranty claim based upon the Magnuson – Moss Act was allowed to stand, despite the absence of privity between the plaintiff and the remote manufacturer, ruling that the effect of the Act imposes against the remote manufacturer the same warranty obligations as would be imposed against the immediate seller.²²

Post-Szajna/Rothe Rulings.

The last time the Illinois Supreme Court weighed in on the issue of implied warranties arising under the UCC and the Magnuson-Moss Act was in the case of Mydlach v. DaimlerChrysler Corp.,²³ a 2007 decision that dealt primarily with questions of which statute of limitations applied to plaintiffs’ claims, when was it triggered, and whether the remedy of revocation was available against the remote manufacturer of the motor home plaintiffs had purchased from an independent RV dealer. 

Refusing to extend the remedy recognized by the court in the Szajna decision to the facts of the case, the court said that the limited implied warranty created by the Magnuson-Moss Act does not provide a basis for relief against a remote manufacturer by a purchaser of a used motor vehicle.

The most recent appellate-level case to discuss the issue of privity in the context of an implied warranty of merchantability under the UCC is Zaffiri v. Pontiac RV, Inc.,²⁴ a 2012 decision from the Fourth District Appellate Court of Illinois.

In Zaffiri, the plaintiffs purchased a motor home from the defendant that experienced problems with the exterior and interior walls. After multiple attempts to obtain repairs the plaintiffs sued multiple defendants under a number of theories, one of which was a UCC-based claim for breach of the implied warranty of merchantability. As to one of the defendants with whom the plaintiffs had not directly dealt, the court recognized their privity defense, stating that under the UCC, “a plaintiff must be in vertical privity of contract with the seller in order to file a claim for economic damages for breach of implied warranty of merchantability . . . Thus, pursuant to the UCC, a buyer of good seeking purely economic damages for a breach of implied warranty has ‘a potential cause of action only against his immediate seller.’”²⁵

Plaintiffs invited the court to abandon the concept of privity, arguing that “most states hold that the existence of privity in order to enforce an implied warranty is not necessary”,²⁶ but the court declined, holding that “[a]lthough the vertical privity requirement has been challenged on a number of occasions, our supreme court has consistently declined to abolish the doctrine in cases where, as here, purely economic damages are sought.”²⁷

As will be seen in the following section, the vast majority of federal courts, including the Seventh Circuit, have disagreed with the Illinois Supreme Court and have rejected its rulings in Szajna and Rothe concerning the viability of implied warranty claims brought under the Magnuson- Moss Act. 

The Privity Rule in the Illinois Federal Courts.

As can be seen from the number of cases cited below, the federal courts sitting in Illinois, particularly the Northern District, have been very active on the topic of privity, perhaps because of the federal nature of Magnuson-Moss claims. Ironically, however, those claims have fared much better in the Illinois state courts than in their federal counterparts.

The United States District Court for the Northern District of Illinois has taken a very different approach from the Illinois Supreme Court regarding the viability of a claim for breach of an implied warranty arising under the Magnuson – Moss Act while agreeing with the state court as to the dismissal of UCC – based implied warranty claims. 

In Larry J. Soldinger Assocs. V. Aston Martin Lagonda of N. Am., Inc. (“Soldinger”)²⁸ the plaintiff purchased a very expensive automobile which was beset with a myriad of mechanical problems. Plaintiff sued the American distributor of the British manufacturer, with whom he was not in privity. Plaintiff’s suit included implied warranty claims under both the UCC and the Magnuson-Moss Act. The court readily disposed of the UCC-based implied warranty claim, citing Szajna and Rothe, supra.²⁹

 In support of his Magnuson-Moss implied warranty action, the plaintiff cited the same two above-referenced cases, which he claimed constituted controlling law, and which he argued eliminated the need for privity in a Magnuson-Moss implied warranty claim. 

The defendant relied upon a Second Circuit case³⁰ as well as an earlier Northern District of Illinois ruling,³¹ both of which held that implied warranty claims asserted under the Magnuson-Moss Act are subject to state-law privity rules and that only purchasers from states not requiring privity could maintain an implied warranty action, because the Act did not create a federal cause of action for breach of implied warranty without privity.³²

Noting that “[t]he Seventh Circuit had not yet addressed the question of whether privity of contract is a prerequisite to a Magnuson-Moss breach of implied warranty claim brought in Illinois”,³³ the court declined to follow Szajna and Rothe and instead found “the Abraham line of authority [from the Second Circuit, requiring privity in Magnuson-Moss implied warranty claims] more persuasive.”³⁴ 

While recognizing that it was “not bound by a Second Circuit decision, Abraham holds greater sway than Szajna, since the Seventh Circuit asks that district court[s] give ‘substantial weight’ to the ‘direct authority of a sister circuit.’”³⁵ 

The court examined the legislative history of the Magnuson-Moss Act and, like the observations in Walsh³⁶ and Skelton,³⁷ concluded that “Magnuson-Moss does not create a federal cause of action for breach of implied warranty sans privity.”³⁸

The Voelker decision.

The Seventh Circuit itself weighed in on the matter of privity in the context of implied warranty claims under the Magnuson-Moss Act four years later in the case of Voelker v. Porsche Cars N. Am., Inc.³⁹ In Voelker, the plaintiff leased a car from a Porsche dealer. As part of plaintiff’s lease, he was provided with a “New Car Limited Warranty” which obligated Porsche to “repair or replace any factory-installed part that was defective in material or workmanship under normal use.”⁴⁰

The plaintiff was involved in an accident with an SUV shortly thereafter which did extensive damage to the car, necessitating major repairs and replacement of parts. The car was in the shop for several months while awaiting parts from Porsche which were in short supply. The plaintiff stopped making lease payments on the car, and the Porsche-affiliated finance company demanded the surrender of the car for overdue payments, in response to which the plaintiff filed suit against Porsche under a number of theories, including breach of implied warranty under the Magnuson-Moss Act.

The court noted that the Act allows for breach of “‘an implied warranty arising under State law (as modified by sections 2308 and 2304(a) of this title)’”⁴¹

“Because secs. 2308 and 2304(a) do not modify or discuss in any way [the court continued], a state’s ability to establish a privity requirement, whether privity is a prerequisite to a claim for breach of implied warranty under the Magnuson-Moss Act therefore hinges entirely on the applicable state law. “⁴²

Since, under the law of Illinois, privity of contract is a prerequisite to recover economic damages for breach of implied warranty,⁴³ the plaintiff’s claim against Porsche was properly dismissed.⁴⁴

The Federal/State Court Split, Examined.

Perhaps the most comprehensive description of the complexities of the conflict between the Illinois state courts and their federal counterparts, both in Illinois and nationally, can be found in a 2004 decision from the First District Appellate Court of Illinois in the case of Mekertichian v. Mercedes-Benz U.S.A., L.L.C.⁴⁵

In Mekertichian, the plaintiff purchased a new Mercedes-Benz automobile from a dealership in Illinois. The car came with a 48-month or 50,000-mile limited written warranty issued by the defendant-manufacturer. Shortly after the purchase, the plaintiff began experiencing problems with the car and returned it to the dealership on several occasions for repairs. Ultimately the dealership said it was unable to repair the vehicle, and the plaintiff thereafter filed suit against the defendant-manufacturer claiming breach of written and implied warranties under the Magnuson-Moss Act.

 As to the plaintiff’s claim for breach of the implied warranty of merchantability, the defendant argued that since the plaintiff did not purchase the vehicle directly from the manufacturer, no vertical privity existed and therefore the breach of implied warranty claim could not be sustained. The defendant-manufacturer moved for partial summary judgment on this basis on the implied warranty claim but because of the rulings in the Szajna and Rothe cases (holding that Magnuson-Moss expanded Illinois state law to excuse the absence of vertical privity to allow a direct action by a consumer against a remote manufacturer), the trial court denied the motion, but certified for immediate appeal the question of whether privity was required to maintain such a suit. The appellate court denied the defendant’s application for leave to appeal, but the Illinois Supreme Court issued a supervisory order directing the interlocutory appeal to proceed.⁴⁶

The appellate court began its analysis of the certified question by reviewing the language and effect of the Magnuson-Moss Act which provides that actions predicated upon a breach of an implied warranty brought under the Act are governed by state law. Under common law, as well as under the Uniform Commercial Code, actions for breach of the implied warranty of merchantability seeking economic damages require privity between buyer and seller.⁴⁷ The Illinois Supreme Court had ruled, however, in 1986, and again in 1988, that the Magnuson-Moss Act served to modify state law with regard to the privity requirement, eliminating it in order to “furnish broad protection to a consumer”⁴⁸. . . “where a manufacturer has expressly warranted a product to a consumer.”⁴⁹

In such instances “vertical privity will be deemed to exist with respect to the consumer,”⁵⁰ allowing direct actions by the consumer against a remote manufacturer in Illinois state courts.

This finding, eliminating the requirement of vertical privity in implied warranty cases brought under the Magnuson-Moss Act, has been rejected by every federal appellate circuit to have ruled on the issue, as well as by the overwhelming majority of federal district courts,⁵¹ which have taken the position that the Magnuson-Moss Act, by itself, has not relaxed the privity requirement, and that the need for privity must be determined by state law. Since “Illinois requires contractual privity as a prerequisite for breach of implied warranty claims under internal law”, the federal courts hold, “there must also be vertical privity in breach of implied warranty claims brought pursuant to Magnuson-Moss in Illinois.”⁵²

In taking the position, it staked out in the Szajna and Rothe decisions, the Illinois Supreme Court, according to Mekertician, was “not purporting to construe state law, which still requires privity, but purports to construe federal law,”⁵³ and while the Illinois supreme court has said in the past that “federal decisions are considered controlling on Illinois state courts interpreting a federal statute,”⁵⁴ six months later the Illinois supreme court held that it need not follow Seventh Circuit precedent interpreting a federal statute where there is a split in the federal circuits on the issue, where the Supreme Court of the United States has not yet ruled, and where it believed that the Seventh Circuit had wrongfully decided on the issue.⁵⁵

Hence, federal court decisions, including those of the Seventh Circuit, are considered persuasive, but not binding, on Illinois state courts in the absence of a decision by the Supreme Court of the United States.⁵⁶

Until then, Illinois courts remain bound by the Szajna and Rothe cases in deeming privity to be present between a consumer and a remote manufacturer in implied warranty cases brought under the Magnuson-Moss Act.⁵⁷

District Court Cases After Voelker.

Post-Voelker decisions from the Northern District of Illinois remain consistent with the ruling of that Seventh Circuit holding, rejecting the Magnuson-Moss exception to the privity rule that the Supreme Court of Illinois announced in the Szajna and Rothe cases. 

A very instructive case that discussed in detail the history and rationale of the Illinois/federal distinction is Watson v. Coachman Rec. Vehicle Co.⁵⁸ Plaintiff purchased a motor home from an RV dealership, which was not a party to the case. The defendant-manufacturer provided a written warranty covering all “parts, components and features” of the motor home while limiting its liability under the warranty to repair or replacement of defects in materials or workmanship.⁵⁹ 

Shortly after taking possession of the motor home, the plaintiff began to experience various problems with the motor home and after giving the dealer sufficient opportunity to repair the defects, sued the manufacturer for, inter alia, breach of the implied warranties of merchantability and fitness for a particular purpose. The manufacturer asserted the defense of lack of privity, in response to which plaintiff attempted to use the manufacturer’s written warranty as an exception to the no-privity defense, citing Szajna and Rothe, to which the district court responded: “[a]s The Court has already determined not to follow the Illinois Supreme Court’s holding[s] in Szajna and Rothe, it finds the Plaintiff’s instant argument unavailing. . .”⁶⁰

Before announcing its decision, as mentioned, the district court provided a comprehensive contrast between “The Illinois View” and “The Federal View” regarding the privity defense, and whether the existence of a written warranty from a manufacturer provides an exception to the privity rule,⁶¹ finding it did not, and ruling in favor of the defendant-manufacturer. 

Another significant post-Voelker case is Rodriguez v. Ford Motor Co.⁶² This case involved an alleged defect in the trunk lid wiring harness of the plaintiff’s car which caused intermittent failure of the backup camera, which was said to be a common problem among Ford Mustang vehicles manufactured between 2015 and 2017. Plaintiff sued the defendant-manufacturer with whom he had no direct dealings, having purchased the car from an authorized Ford dealership. In response to the manufacturer’s defense of lack of privity, plaintiff attempted to invoke one of the court-created exceptions to the privity requirement known as the “direct dealing exception”, which is the subject of the following section. As more fully discussed, infra, this exception only applies when there are direct dealings between the customer and the remote manufacturer and has been applied quite restrictively by the courts.

The Direct Dealing Exception to the Privity Requirement.

In discussing the history and evolution of the direct dealing exception to the privity requirement, one court said: “Much as all roads led to Rome, the cases that mention a ‘direct-dealing’ exception to the privity requirement under Illinois law seem to trace back to one case, Rhodes Pharmacal Co. v. Continental Can Co.” (citation omitted).⁶³ 

In Rhodes, the plaintiff was a marketer of various cosmetic and hair beauty products. It purchased from a distributor a certain type of “rustproof” aerosol cans manufactured by the defendant. When the plaintiff began receiving complaints from its customers that the aerosol cans were leaking, causing not only loss of the product but damage to the inventory of its customers, the plaintiff complained to the manufacturer of the cans who responded that the contents of the cans was incompatible with the “rustproof” linings of the cans, resulting in corrosion.⁶⁴ 

When plaintiff sued the manufacturer for breach of implied warranty, the defendant asserted a lack-of-privity defense. Plaintiff argued that the absence of privity should not foreclose its implied warranty action since it alleged that its employees had direct dealings with the manufacturer of the cans, in that they had met with the manufacturer to discuss various design issues.⁶⁵ The Appellate Court agreed, concluding that the plaintiff could sue the manufacturer on a third-party beneficiary theory, given that the plaintiff had worked directly with the defendant-manufacturer on product specifications for the cans.⁶⁶

The holding in Rhodes eventually evolved into two distinct exceptions to the privity rule in implied warranty cases; the “direct dealing exception” which “applies when there are direct dealings between the manufacturer and the remote customer,”⁶⁷ and the “third-party beneficiary exception” which allows warranty claims “to bypass the privity requirement if ‘the manufacturer knew the identity, purpose and requirements of the dealer’s customer and manufactured or delivered the goods specifically to meet those requirements.’”⁶⁸

Having observed the number of cases “which evidence the increasing disregard for the privity requirement through the continued expansion of the class of permissible plaintiffs under [the] third-party beneficiary doctrine”, the Illinois Supreme Court, beginning with Rozny v. Marnul,⁶⁹declined any further erosion of the privity requirement. Written advertisements cannot serve as the basis for a direct dealing relationship.⁷⁰

Also, “Illinois courts have made clear that their direct-dealing exception does not extend to goods mass-produced and sold at retail to a third party who is not a beneficiary of the manufacturer-seller contract.”⁷¹

Given the fact that “the Illinois Supreme Court has hammered home the necessity of privity in claims for breach of implied warranty”⁷² at least one court has been led to believe that if the Illinois Supreme Court is squarely faced with the issue of the continued viability of the exceptions to vertical privity in implied warranty cases, “[t]his Court is not alone in doubting the Illinois Supreme Court would recognize any exceptions to the requirement of privity for implied warranty cases.”⁷³

Conclusion.

“Since the mid-nineteenth century, courts have used privity of contract as a way of limiting relief based on warranties.”⁷⁴

“Thus, remote sellers were relieved of liability for injuries to persons other than those for whom the goods were constructed or to whom they were sold.”⁷⁵

The adoption of sec. 402A of the Restatement of Torts rendered the privity rule irrelevant in cases involving personal injury,⁷⁶ but instances of purely economic loss remained the province of warranty law.⁷⁷

At present, the federal/state court split appears to remain, with state court cases excusing the absence of privity in implied warranty cases brought pursuant to the Magnuson-Moss Act, with cases holding that (while absent), vertical privity will be “deemed” to be present, thus allowing direct actions by consumers against remote manufacturers. Federal courts, on the other hand, have strictly interpreted Illinois common law to require actual privity in all such cases.

Vertical privity has withstood its challenges in the Illinois state and federal courts and, in certain cases, remains a viable defense to remote sellers from whom purely economic losses are sought to be recovered. Therefore, at least for now, there remains a legitimate place for the notion of vertical privity in Illinois contract jurisprudence.

1.  BLACK’S LAW DICTIONERY 1079 (5th ed. 1979).
2. Szajna v. General Motors Corp., 115 Ill. 2d 294, 311, 503 N.E. 2d 760, 767 (1986), see also, J. White & R. Summers, Uniform Commercial Code (2d ed. 1980).
3.  32 Ill. 2d 612, 210 N.E. 2d 182 (1965).
4.  407 Ill.121, 94 N.E. 2d 847 (1950).
5.  22 Ill. 2d 432, 176 N.E. 2d 761 (1961).
6.  91 Ill.2d 69, 435 N.E. 2d 443 (1982).
7. Note, Economic Loss in Product Liability Jurisprudence, 66 Colum. L. Rev. 917, 918 (1966).
8.  Compare, Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965) (allowing a direct action in warranty by a purchaser against a manufacturer despite an absence of privity between the parties, and inferring, in dicta, that recovery in tort for a product’s diminished value was also possible) and Seely v. White Motor Co., 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (1965) (denying recovery in tort for economic losses).
9.  Moorman, 91 Ill. 2d at 74.
10.  115 Ill. 2d 294, 503 N.E. 2d 760 (1986).
11.  Szajna v. General Motors, Corp., 130 Ill. App. 3d 173, 474 N.E.2d 397 (1st Dist. 1985).
12.  Szajna, 115 Ill. 2d at 301, 503 N.E. 2d at 762.
13.  Id., 115 Ill. 2d at 302, 503 N.E. 2d at 763.
14.  Id., 115 Ill. 2d at 304, 503 N.E. 2d at 764.
15.  Id., referencing Seeley v. White Motor Co., 63 Cal. 2d 9 at 18, 45 Cal. Rptr. 17 at 23, 403 P.2d 145 at 151 (1965), and Moorman, supra, 91 Ill. 2d at 81, 435 N.E. 2d at 448.
16.  Szajna, 115 Ill. 2d at 310, 503 N.E.2d at 767, quoting Moorman, 91 Ill. 2d at 79-80, 435 N.E. 2d at 448.
17.  Id., 115 Ill. 2d at 311, 503 N.E. 2d at 767.
18.  Specifically, 15 U.S.C. Sec. 2310(d)(1).
19.  Id., 115 Ill.2d at 317, 503 N.E. 2d at 769.
20.  119 Ill. 2d 288, 518 N.E. 2d 1028 (1988).
21.  119 Ill. 2d at 292, 518 N.E.2d at 1029.
22.  119 Ill. 2d at 294, 518 N.E.2d at 1030.
23.  226 Ill. 2d 307, 865 N.E. 2d 1047 (2007).
24.  2021 IL App (4th) 120042-U, 2021 Ill. App. Unpub. LEXIS 2211, 2021 WL 7050429 (4th Dist. 2012).
25.  Zaffiri, 2012 IL App (4th) 120042-U at P88, quoting Mekertichian, supra, 347 Ill. App. 3d at 1168.
26.  Id., at P89.
27.  Id., at P90.
28.  1999 U.S. Dist. LEXIS 14765, 1999 WL 756174 (N.D. Ill. Sept. 13, 1999).
29.  Soldinger, 1999 U.S. Dist. LEXIS 14765 at *18.
30.  Abraham v. Volkswagen of Am., 795 F.2d 238 (2d Cir. 1986).
31.  Skelton v. General Motors Corp, No. 79 C 1243,1985 U.S. Dist. LEXIS 18649, 1985 WL 1860 (N.D. Ill. June 21, 1985).
32.  Abraham, 795 F.2d at 249; Skelton, 1985 U.S. Dist. LEXIS 18649 at *7,8.
33.  Soldinger,1999 U.S. Dist. LEXIS at *21.
34.  Id., at 22.
35.  Id., at *29, quoting Richards v. Local134, Int’l Bhd. Of Electrical Workers, 790 F.2d 633, 636 (7th Cir. 1986).
36.  Walsh v. Ford Motor Co., 807 F.2d 1000 at 1012 (D.C. Cir. 1986).
37.  Skelton, supra, 1985 U.S. Dist. LEXIS 18649 at*7, 1985 WL 1860 at *3.
38.  Id.
39.  353 F.3d 516 (7th Cir. 2003).
40.  353 F.3d at 520.
41.  353 F.3d at 525, quoting 15 U.S.C. sec. 2301(7).
42.  Walsh, supra, 807 F.2d at 1014; Abraham, supra, 795 F.2d at 249.
43.  Rothe, supra, 119 Ill. 2d at 292, 518 N.E.2d at 1029-30.\
44.  See also, Soldinger, supra, 1999 U.S. Dist. LEXIS 14765 at **27-31, 1999 WL 756174 at **6-10.
45.  347 Ill. App. 3d 828, 807 N.E. 2d 1165 (1st Dist. 2004).
46.  Mekertician, 347 Ill. App. 3d at 830, 807 N.E. 2d at 1167.
47.  See, Szajna, 115 Ill. App. 2d at 311, 503 N.E. 2d at 767; Rothe, 119 Ill. 2d at 292, 518 N.E. 2d at 1029-30.
48.  Szajna, 115 Ill. 2d at 315-16, 503 N.E. 2d at 769: Rothe, 119 Ill. 2d at 294, 518 N.E. 2d at 1030
49.  Mekertichian, 347 Ill. App. 3d at 832, 807 Ill. App. 2d at 1168.
50.  Id.
51.  Id., 347 Ill. App. 3d at 833, 807 N.E. 2d at 1168 (citing cases).
52.  Id.
53.  Id.
54.  Wilson v. Norfolk & Western Ry. Co., 187 Ill. 2d 369 at 383, 718 N.E. 2d 172 at 179 (1999) (following a Seventh Circuit interpretation of the Federal Employers’ Liability Act, 45 U.S.C. sec. 51 et seq. (1994)).
55.  Wieland v. Telectronics Pacing Systems, Inc., 188 Ill. 2d 415 at 423, 721 N.E. 2d 1149 at 1154 (1999).
56.  See, Sprietsma v. Mercury Marine, 197 Ill. 2d !!2, 757 N.E. 2d 75 (2001), rev’d on other grounds, 537 U.S. 51, 123 S. Ct. 518, 154 L. Ed. 2d 466 (2002); see also, Bishop v. Burgard, 198 Ill. 2d 495 at 507, 764 N.E. 2d 24 at 33 (2002).
57.  See, People v. Spahr, 56 Ill .App. 3d 434 at 438, 371 N.E.2d 1261 at 1264 (1st Dist. 1978) ( holding that Illinois supreme court decisions are biding on all Illinois courts, but decisions of federal courts, other than the Supreme Court of the United States, are not binding on Illinois courts).
58.  No. 05-CV-524, 2006 U.S. Dist. LEXIS 15087, 2006 WL 8455882 (N.D. Ill. March 31, 2006).
59.  Watson, 2006 U.S. Dist. LEXIS 15087 at *4.
60.  Id., at *27. 
61.  Id., at *15 -26; see also, Mekertichian v. Mercedes-Benz U.S.A., L.L.C., supra.
62.  596 F. Supp. 3d 1059 (N.D.) Ill. 2022.
63.  Manley v. Hain Celestial Grp., Inc., 417 F. Supp. 3d 1114, 1123 (N.D. Ill. 2019).
64.  Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill. App. 2d 362, 366, 219 N.E.2d 726, 729 (1st Dist. 1966).
65.  Rhodes, 72 Ill. App. 2d at 372, 219 N.E. 2d at 732.
66.  Id.
67.  See, e,g., Edward v. Electrolux Home Prods., Inc., 214 F. Supp. 3d 701, 705 (N.D. Ill. 2016).
68.  F.E. Moran, Inc. v. Johnson Controls, Inc., 697 F. Supp. 3d 786, 797 (N.D. Ill. 2023), quoting Frank’s Maintenance & Eng’g , Inc., v. C.A. Roberts Co., 86 Ill. App. 3d 980, 408 N.E. 2d 403 (1st Dist. 1980); see also, Redmon v. Whirlpool Corp., No. 20 C 6626, 2021 U.S. Dist. LEXIS 81628, 2020 WL 9396529 (N.D. Ill. April 28, 2021) (collecting cases).
69.  43 Ill. 2d 54, 250 N.E. 2d 656 (1969).
70.  In re VTech Data Breach Litig., No.15 C 10889, 2018 U.S. Dist. LEXIS 65060 at *18, 2018 WL 1863953 at *5 (N.D. Ill. Apr. 18, 2018) ( “I am not persuaded that the Illinois Supreme Court would conclude that advertising alone creates a direct relationship between a manufacturer and a customer. . .” )
71.  Harris v. Kashi Sales, LLC, 609 F. Supp.3d 633, 643 (N.D. Ill. 2022); see also, Harmon v. Lenovo (U.S.) Inc., No. 3:23-CV-1643, 2024 U.S. Dist. Lexis 74091, 2024 WL 1741264 (S.D. Ill. Apr. 23, 2024).
72.  Manley, supra, 417 F. Supp. 3d at 1124.
73.  Id., (citing Caterpillar, Inc. v. Usinor Industeel, 393 F. Supp. 2d 659, 678 (N.D. Ill. 2005) (emphasis added).
74.  Arlie R. Nogay, Comment: Enforcing the Rights of Remote Sellers Under the UCC: Warranty Disclaimers, the Implied Warranty of Fitness for a Particular Purpose and the Notice Requirement in the Nonprivity Context, 47 U. Pitt. L. Rev. 873 (Spring, 1986), at p. 882, citing Winterbottom v. Wright, 152 Eng. Rep. 402 (Exch. 1842) (sustaining a demurrer to suit by injured coachman for breach of warranty against a third party who had contracted to maintain the coach), (see also, the reference to same at the beginning of this article).
75.  Id.
76.  See, Suvada, supra, n. 1.
77.  See, Moorman, supra, n. 4.