A Cook County judge has put a lid on a class action lawsuit against Walgreens brought by a man who claimed the drug store chain wrongly charged him and others a 5 cent city of Chicago sales tax on bottled drinks, which should have applied only to bottled water.
On Jan. 27, Cook County Circuit Judge Diane J. Larsen dismissed
with prejudice the complaint brought by plaintiff Destin McIntosh against the
Deerfield-based Walgreens Boots Alliance.
The original lawsuit had been filed last August. In that
complaint, McIntosh alleged Walgreens should be made to pay for improperly
charging the special Chicago city bottled water tax on an assortment of other
bottled beverages, including sparking water, soft drinks, flavored waters and
McIntosh specifically claimed he bought sparkling water
drinks from Walgreens stores in Chicago “on multiple occasions in 2015,”
asserting he shopped at Walgreens stores in the Loop, the South Loop, Rogers
Park and Lakeview, near his home, his job and friends’ homes.
McIntosh conceded he did not keep his receipts from the
purchases, but asked the judge for discovery to use Walgreens records to prove he
had been wrongly charged by the retailer under the city’s Bottled Water Tax.
McIntosh asserted Walgreens’ alleged overcharge violated the
Illinois Consumer Fraud Protection Act.
McIntosh noted his lawsuit had been spurred by news reports
about Walgreen’s alleged improper collection of the tax. And while Walgreens,
in response to those news reports, had publicly asserted the company had
corrected the taxation problem, McIntosh argued the company also should have
sought to refund the allegedly improper charges to its customers.
The lawsuit had asked the court to award unspecified “actual
and statutory damages,” plus attorney fees.
In November, Walgreens asked the judge to dismiss the case,
arguing the charges had been printed on receipts McIntosh would have received
at the time of purchase, yet McIntosh had never protested paying the tax until
after seeing news reports about it.
Under this so-called “voluntary payments doctrine,”
presented in case law in the 1985 Illinois First District Appellate Court
opinion in Lusinski vs Dominick’s Finer
Foods, plaintiffs in McIntosh’s position, who did not pay a tax under
protest, can have their claim barred if they cannot demonstrate “facts
sufficient to form a basis for protesting the tax under duress.”
In its motion to dismiss, Walgreens argued that, “absent
fraud, misrepresentation or mistake of fact, ‘money voluntarily paid under a
claim of right to payment and with knowledge of the facts by the person making
the payment cannot be recovered back on the ground that the claim was illegal.”
In her Jan. 27 dismissal order, Judge Larsen said she relied
on Walgreens’ arguments under Lusinski to dismiss the case.
McIntosh was represented in the case by attorney Joseph
Siprut of Siprut P.C., of Chicago.
Walgreens was defended by the firm of Morgan, Lewis &
Bockius LLP, of Chicago.
Editor’s note: Scott
Holland contributed to this report.