Wis. Stat. § 100.18
Wis. Stat. § 100.18
Sub. (1) applies to oral representations made in private conversations to prospective purchasers. State v. Automatic Merchandisers of America, Inc., 64 Wis. 2d 659, 221 N.W.2d 683 (1974). See also Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361. A complaint alleging deceptive advertising contrary to sub. (1) stated a cause of action not only against the corporate defendant but against its officer personally when the complaint's use of the word "continue" indicated reference to both past and future conduct and when use of the word "defendants" referred to both the corporation and its officer. State v. Advance Marketing Consultants, Inc., 66 Wis. 2d 706, 225 N.W.2d 887 (1975). Sub. (2) is constitutional. State v. Amoco Oil Co., 97 Wis. 2d 226, 293 N.W.2d 487 (1980). The state may join as parties defendant assignees of contracts allegedly obtained by deceptive practices, even though the assignees did not engage in deception. State v. Excel Management Services, 111 Wis. 2d 479, 331 N.W.2d 312 (1983). A consumer is protected from untrue, deceptive, or misleading representations made to promote the sale of a product. Advertising need not be involved. Bonn v. Haubrich, 123 Wis. 2d 168, 366 N.W.2d 503 (Ct. App. 1985). Subs. (1) and (9) (a) require that a complaint do more than merely state that there were incentives to sell a more expensive product: it must allege instances of prohibited conduct to withstand a motion to dismiss. State v. American TV, 146 Wis. 2d 292, 430 N.W.2d 709 (1988). See also Meyer v. The Laser Vision Institute, LLC, 2006 WI App 70, 290 Wis. 2d 764, 714 N.W.2d 223, 05-1233. A party prevailing on appeal is entitled to reasonable appellate attorney fees. Radford v. J.J.B. Enterprises, Ltd., 163 Wis. 2d 534, 472 N.W.2d 790 (Ct. App. 1991). The statute of limitations under sub. (11) (b) 3. commences at the time of the act or transaction, not on the date of discovery. Skrupky v. Elbert, 189 Wis. 2d 31, 526 N.W.2d 264 (Ct. App. 1994). When a claim of negligent representation was fully tried, it was not necessary that a claim under this section should have been pleaded in order for the plaintiff to assert a post-verdict claim for attorney fees under sub. (11) (b) 2. Gorton v. American Cyanamid Co., 194 Wis. 2d 203, 533 N.W.2d 746 (1995). An award of reasonable attorney fees under this section belongs to the person suffering the pecuniary loss, not the attorney. However, the ultimate ownership of the award may be controlled by the parties' fee agreement. Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 577 N.W.2d 617 (1998), 96-2776. Sub. (11) (b) 3. is a statute of repose. A cause of action must be commenced within three years of the false representation regardless of when the resulting injury is discovered. Kain v. Bluemound East Industrial Park, Inc., 2001 WI App 230, 248 Wis. 2d 172, 635 N.W.2d 640, 00-2250. This section provides a cause of action and remedies separate from common law claims of intentional misrepresentation, strict liability misrepresentation, and negligent misrepresentation. Kailin v. Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132, 01-1152. A statement made to one person may constitute a statement made to "the public" under this section. Once a contract was made, buyers are no longer "the public." The section is aimed at untrue, deceptive, or misleading statements made to induce certain actions. Statements made by the seller after a person entered into a contract to purchase do not cause the person to make the purchase or enter into the contract. Kailin v. Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132, 01-1152. See also Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361. The elements of a viable claim under this section are: 1) the defendant advertised the product; 2) the advertising was misleading; and 3) the plaintiff suffered pecuniary loss as a result of the misleading advertising. Tietsworth v. Harley-Davidson, Inc., 2003 WI App 75, 261 Wis. 2d 755, 661 N.W.2d 450, 02-1034. That the sellers themselves did not make any representations to the buyers with respect to the property sold and that the buyers cannot hold real estate agents liable under this section for misrepresentations the agents do not know are untrue does not require that the sellers cannot be held statutorily liable for the representations. Ricco v. Riva, 2003 WI App 182, 266 Wis. 2d 696, 669 N.W.2d 193, 02-2621. A general statement that one's products are best is not actionable as a misrepresentation of fact and cannot support a claim under this section. "Premium quality" equates to "the best," and is squarely within the definition of puffery. The term "masterpiece" is arguably more precise than "the best," insofar as it connotes a specific engineering achievement, but this does not move the term out of the domain of puffery. Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, 270 Wis. 2d 146, 677 N.W.2d 233, 02-1034. When the statutory background of this section and s. 100.183 is considered, it becomes clear that the legislature does not intend "merchandise" in this section to include articles of food. The only sanction for violating s. 100.183 is the criminal penalty specified in s. 100.26(1) while sub. (1) is amenable to only civil remedies and cannot be enforced via a criminal prosecution. Gallego v. Wal-Mart Stores, Inc., 2005 WI App 244, 288 Wis. 2d 229, 707 N.W.2d 539, 04-2533. A plaintiff remains a member of "the public" under this section unless a particular relationship exists between him or her and the defendant, the existence of which will depend upon its own peculiar facts and circumstances and must be tested by the statute in the light of those facts and circumstances. In this case, whether the plaintiff was a member of the public presented a question of fact. K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc., 2007 WI 70, 301 Wis. 2d 109, 732 N.W.2d 792, 05-2148. Although the reasonableness of a plaintiff's reliance may be relevant in considering whether the representation materially induced the plaintiff's pecuniary loss, the plaintiff does not have the burden of proving reasonable reliance. K&S Tool & Die Corp. v. Perfection Machinery Sales, Inc., 2007 WI 70, 301 Wis. 2d 109, 732 N.W.2d 792, 05-2148. A plaintiff is not required to prove reasonable reliance as an element of a misrepresentation claim under this section, but the reasonableness of a plaintiff's reliance may be relevant in considering whether the representation materially induced (caused) the plaintiff to sustain a loss. The reasonableness of a person's actions in relying on representations is a defense and may be considered by a jury in determining cause. A court may determine that the representation did not materially induce the plaintiff's decision to act and that the plaintiff would have acted in the absence of the representation. Novell v. Migliaccio, 2008 WI 44, 309 Wis. 2d 132, 749 N.W.2d 544, 05-2852. A nondisclosure is not an assertion, representation, or statement of fact under sub. (1), and silence is insufficient to support a claim under sub. (1). Goudy v. Yamaha Motor Corporation, USA, 2010 WI App 55, 324 Wis. 2d 441, 782 N.W.2d 114, 09-0617. A reasonable jury could find that painting over evidence of a leaky basement was a representation that a basement did not leak. Any conduct capable of being turned into a statement of fact is a representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts. Novell v. Migliaccio, 2010 WI App 67, 325 Wis. 2d 230, 783 N.W.2d 897, 09-1576. The state had a constitutional right to a jury trial on its claim under sub. (1). State v. Abbott Laboratories, 2012 WI 62, 341 Wis. 2d 510, 816 N.W.2d 145, 10-0232. The plain language of the statute shows that statements or representations may be actionable even when contained in bills or other documents not traditionally considered "advertisements." The statute includes "bill" as an example of a document that may contain a deceptive or misleading representation and includes documents "similar or dissimilar" to the enumerated items, so long as that document contains misrepresentations. MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc., 2013 WI App 14, 346 Wis. 2d 173, 828 N.W.2d 575, 08-1830. If a party violating this section could defend its actions using the voluntary payment rule, then the broad, remedial purpose of this section would be undermined. MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc., 2013 WI App 14, 346 Wis. 2d 173, 828 N.W.2d 575, 08-1830. This section does not provide that a plaintiff may recover fees and costs only to the extent that the plaintiff has incurred fees and costs or is contractually obligated to pay fees and costs to its counsel. To the contrary, both sub. (11) (b) and Gorton, 217 Wis. 2d 493, support the idea that the award of attorney fees based on private counsel's work was appropriate in this case. State v. Abbott Laboratories, 2013 WI App 31, 346 Wis. 2d 565, 829 N.W.2d 753, 10-0232. A salesperson engages in puffery when he or she gives voice to exaggerations reasonably to be expected of a seller as to the degree of quality of a product, the truth or falsity of which cannot be precisely determined. Exaggerations of this sort do not subject the speaker to liability under this section because they convey only the seller's opinion and are not capable of being substantiated or refuted. When a salesperson represented to a client that a specific problem had been fixed, the salesperson was making a specific, factual statement. That the salesperson may not have been familiar with the problems prior to the conversation, or had any idea whether they had been addressed, does not transform the factual statement into puffery. United Concrete & Construction, Inc. v. Red-D-Mix Concrete, Inc., 2013 WI 72, 349 Wis. 2d 587, 833 N.W.2d 714, 11-1566. Sub. (11) (b) 2. grants the right to recover attorney's fees to the plaintiff. Concluding that the client's right to recover statutory attorney's fees is equitably subrogated to the attorney once counsel is retained, despite a fee agreement that does not clearly assign that right, would undermine the legislature's explicit directive to the contrary. Betz v. Diamond Jim's Auto Sales, 2014 WI 66, 355 Wis. 2d 301, 849 N.W.2d 885, 12-0183. Based upon this section's plain language and the deterrent purpose of the statute as recognized in case law, a "pecuniary loss" can include monetary remedies like the cost of repair or diminution in value and may also include the possibility of a full refund of the purchase price. A "pecuniary loss" does not, however, include rescission as a non-monetary remedy. Mueller v. Harry Kaufmann Motorcars, Inc., 2015 WI App 8, 359 Wis. 2d 597, 859 N.W.2d 451, 14-0351. "As is" and exculpatory clauses in a contract did not relieve a property seller of liability under sub. (1) for its deceptive representation in the contract that induced agreement to those terms. The fact that the parties were in negotiations over terms when the misrepresentation was made did not take the potential purchaser out of the realm of "the public" and outside the coverage of sub. (1). A sub. (1) claim requires proof that the misrepresentation caused the plaintiff a pecuniary loss. The test to be applied is whether the plaintiff would have acted in its absence. Fricano v. Bank of America NA, 2016 WI App 11, 366 Wis. 2d 748, 875 N.W.2d 143, 15-0020. The economic loss doctrine does not serve as a bar to claims made under this section. Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361. The heightened pleading standard set forth by s. 802.03(2) for claims of fraud does not apply to claims made under this section. Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361. The purpose of this section is to protect the residents of Wisconsin from any untrue, deceptive, or misleading representations made to promote the sale of a product. Nothing in this section supports an interpretation that would render liable any standards-setting organization so long as a manufacturer could show that it lost sales as a result of allegedly inaccurate technical data in the standard. When nothing in a standard published by the standards-setting organization suggested that consumers choose one product over another and when the standards-setting organization's actions were not part of a commercial transaction, a claim for a violation of this section failed. Thermal Design, Incorporated v. American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc., 755 F.3d 832 (2014). This section is reasonably geared toward notice and workable precision and is not so imprecise as to be constitutionally vague. Carpets By The Carload, Inc. v. Warren, 368 F. Supp. 1075 (1973). One person can constitute "the public" under sub. (1). Jersild v. Aker, 775 F. Supp. 1198 (1991). Actual interest payments incurred as a result of misrepresentations may be recovered by the defrauded party. Jersild v. Aker, 775 F. Supp. 1198 (1991). The protections under this section are not restricted to Wisconsin residents. A cause of action under this section requires actual pecuniary loss, not a mere showing of deception. Demitropoulous v. Bank One Milwaukee, 915 F. Supp. 1399 (1996). There is no indication that the application of this section is restricted to use by consumers. Stoughton Trailers, Inc. v. Henkmel Corp., 965 F. Supp. 1227 (1997). Sub. (11) (b) 3. is a statute of repose to which the discovery rule does not apply. Staudt v. Artifex, 16 F. Supp. 2d 1023 (1998). Under Wisconsin law the economic loss doctrine does not bar recovery under this section, and it does bar recovery under s. 895.80, at least under the facts of this case. Dow v. Poltzer, 364 F. Supp. 2d 931 (2005). While plaintiff, a seller of goods through its Web site, may have been subject to misrepresentations regarding the source of customers directed to its web site from defendants' Web sites through a "typosquatting scheme," the misrepresentations could not be characterized as statements made to the public relating to the purchase of merchandise and were not subject to this section. Land's End, Inc. v. Remy, 447 F. Supp. 2d 941 (2006). If the Wisconsin courts had intended to exclude from the law only contracting parties as members of the public, it could have stated the rule as whether the parties had a "contracting relationship," not the more general "particular relationship." There was a "particular relationship" when the plaintiff had an ongoing relationship with defendant for 13 years, selling as much as $12 million of merchandise in a single year, and thus plaintiff was not a member of the public. Uniek, Inc. v. Dollar General Corp., 474 F. Supp. 2d 1034 (2007). This section does not explicitly require a misrepresentation to the plaintiff, only to "the public." However, the question is whether the representation materially induced the plaintiff's decision to act and whether the plaintiff would have acted in the absence of the representation. Grice Engineering, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915 (2010). This section does not provide a cause of action for misrepresentations made to non-parties; this section is not designed to protect product manufacturers from the deceptive acts of their competitors. Riddell, Inc. v. Schutt Sports, Inc., 724 F. Supp. 2d 963 (2010). This section applies to only commercial transactions. Thermal Design, Inc. v. American Society of Heating, 775 F. Supp. 2d 1082 (2011). A nondisclosure of facts, combined with an affirmative representation that is undermined by the non-disclosed facts, may result in liability under sub. (1). In such situations, the existence of the undisclosed facts may show that the affirmative representation is untrue, deceptive, or misleading. Price-related misrepresentations that the defendant purportedly made to consumers namely, that its goods were "regularly" priced at certain values were indeed related to corresponding omissions namely, that the "regular" prices appearing on the defendant's goods were not accurate. These affirmative representations were actionable representations of fact under this section. Murillo v. Kohl's Corp., 197 F. Supp. 3d 1119 (2016). Sub. (1) is disjunctive, prohibiting "untrue, deceptive, or misleading" representations. Nothing in sub. (1) states that a plaintiff must plead that a representation is untrue or that it is true but deceptive or misleading. In the same vein, Wisconsin case law does not suggest that a plaintiff must allege the representation was literally true but deceptive or misleading. Wisconsin courts group these three concepts together. Blitz v. Monsanto Co., 317 F. Supp. 3d 1042 (2018). Substantively, sub. (1) does not appear to require anything different from or additional to a labeling or packaging requirement under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 USC 136 et seq. Under Bates, 544 U.S. 431 (2005), therefore, the two statutes' requirements are "equivalent," and the plaintiff's cause of action under sub. (1) is not preempted by FIFRA. Although a verdict awarding damages in favor of the plaintiff might well motivate the defendant to change its label, such a verdict does not create the kind of legal "requirement" prohibited under FIFRA's preemption statement. Blitz v. Monsanto Co., 317 F. Supp. 3d 1042 (2018). The Resurgence of Caveat Emptor: Puffery Undermines the Pro-Consumer Trend in Wisconsin's Misrepresentation Doctrine. Goretzke. 2003 WLR 171. Protection for consumers against unfair and deceptive business. Jeffries. 57 MLR 559. Private enforcement of consumer laws in Wisconsin. Waxman. WBB May 1983. Protecting Consumers in the Modern Age: Wisconsin's Deceptive Trade Practices Act. Hinkston. Wis. Law. Oct. 2008. Navigating Wisconsin's Consumer Protection System. Greene. Wis. Law. Sept. 2017.