See also ch. DHS 174
, Wis. adm. code.
Fraudulent representations. 100.18(1)(1)
No person, firm, corporation or association, or agent or employee thereof, with intent to sell, distribute, increase the consumption of or in any wise dispose of any real estate, merchandise, securities, employment, service, or anything offered by such person, firm, corporation or association, or agent or employee thereof, directly or indirectly, to the public for sale, hire, use or other distribution, or with intent to induce the public in any manner to enter into any contract or obligation relating to the purchase, sale, hire, use or lease of any real estate, merchandise, securities, employment or service, shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or television station, or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to such purchase, sale, hire, use or lease of such real estate, merchandise, securities, service or employment or to the terms or conditions thereof, which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.
In advertising or otherwise representing the sale or furnishing of any property or services combined with or conditioned on the purchase of any other property or services described in such advertisement or other representation, it is deceptive for a retailer to:
Fail to state the price or amount which must be paid for the property or services included in such sale, along with any other condition to the receipt of such property or services, if the advertisement or representation does not refer to the price of the property or services as the “regular price". The price or amount which must be paid shall be set forth clearly, conspicuously and in such manner that the total price or amount to be paid may be readily ascertained.
Sell the property or services at more than the regular price or fail to state any other condition to the receipt of the property or services included in the sale, if the advertisement or representation refers to the price of the property or services as the “regular price".
Mark up the regular price of the property or services which must be purchased.
Substitute property or services of inferior value or quality for the property or services which must be purchased.
This subsection does not apply to advertisements or representations concerning custom-made property.
In this subsection, “
regular price" means the lowest price for the same quantity and quality of product or the same services, at which the seller or advertiser of the product or services openly and actively sold the product or services in the geographic trade area of the advertisement or representation during the seller's or advertiser's most recent and regular 30-day course of business.
It shall be deemed deceptive advertising, within the meaning of this section, for any person, firm or corporation, engaged in the business of buying or selling new or secondhand furs, wearing apparel, jewelry, furniture, pianos, phonographs, or other musical instruments, motor vehicles, stocks, or generally any form of property, real, personal or mixed, or in the business of furnishing any kind of service or investment, to advertise such articles, property or service for sale or purchase, in any manner indicating that the sale or purchase is being made by a private party or householder not engaged in such business. And every such firm, corporation or association, engaged in any such business, in advertising goods, property or service for sale or purchase, shall affirmatively and unmistakably indicate and state that the seller or purchaser is a business concern and not a private party.
It is deceptive advertising to represent the retailing of merchandise to be a selling-out or closing-out sale if the merchandise is not of a bankrupt, insolvent, assignee, liquidator, adjuster, trustee, personal representative, receiver, wholesaler, jobber, manufacturer, or of any business that is in liquidation, that is closing out, closing, or disposing of its stock, that has lost its lease or has been or is being forced out of business, or that is disposing of stock on hand because of damage by fire, water, or smoke. This subsection does not apply to any “closing-out sale" of seasonal merchandise or any merchandise having a designated model year if the person conducting the sale is continuing in business.
Any person, firm, corporation or association engaged in any business mentioned in sub. (3)
, or in any other kind of business, whether conducting such business in a store, business block, residence or other building, shall at all times keep a conspicuous sign posted on the outside of his or her establishment and another conspicuous sign in the salesroom, which sign shall clearly state the name of the association, corporation or individual who actually owns said merchandise, property or service which is being offered to the public and not the name of any other person; provided, however, that the exterior sign shall not be required where the seller has no control over the exterior of the premises where such business is conducted.
All advertising that shows or in any manner relates to the price at which motor fuel is offered for sale at retail, except multiple gallon computers attached to or forming a part of any dispensing equipment, shall show only one of the following:
The single gallon unit price including all applicable taxes in one amount, except that a person who sells less than 15,000 gallons of motor fuel in this state per year may show the half-gallon unit price including all applicable taxes in one amount.
The single gallon product price, the taxes applicable to the product price, and the total single gallon unit price including all applicable taxes, except that a person who sells less than 15,000 gallons of motor fuel in this state per year may show the half-gallon product price, the taxes applicable to the product price, and the total half-gallon unit price including all applicable taxes.
In any advertising under this subsection, all numerals that represent either price or taxes shall be of the same type and size except that fractions of a cent shall be shown in figures one-half the height, width, and prominence of the whole numbers.
Every wholesaler and every other person selling or distributing motor fuel in this state shall keep posted in a conspicuous place, most accessible to the public at his or her place of business, and on every pump from which delivery is made directly into the fuel tank attached to a motor vehicle, a placard showing the net selling price per gallon of all grades of motor fuel and the amount of all taxes per gallon on all grades of motor fuel, except that a person who sells or distributes less than 15,000 gallons of motor fuel in this state per year may show the net selling price and amount of taxes per half-gallon. On pumps or other dispensing equipment from which motor fuel is sold and delivered directly into fuel supply tanks attached to motor vehicles, the posting under this subsection shall be in figures not less than one inch high, except that no placard shall be required on a computer pump on which the total net selling price per gallon or half-gallon including all taxes is legibly shown on its face. Except for sales to drivers of motor vehicles used by physically disabled persons under s. 100.51 (5)
, all sales shall be made at the posted price. Delivery slips shall also show the net selling price per gallon of all grades of motor fuel and the amount of all taxes per gallon on all grades of motor fuel, except that a person who sells or distributes less than 15,000 gallons of motor fuel in this state per year may show the net selling price and amount of taxes per half-gallon. If the wholesaler or person has more than one place of business in this state, the wholesaler or person shall post the placard required under this subsection at all of his or her places of business. All prices posted shall remain in effect for at least 24 hours after they are posted. It shall be considered deceptive advertising to advertise or represent in any manner the price of motor fuel offered for sale at retail to be less than the price posted on each pump.
It is deemed deceptive advertising, within the meaning of this section, for any person or any agent or employee thereof to make, publish, disseminate, circulate or place before the public in this state in a newspaper or other publication or in the form of book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label or over any radio or television station or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to the purchase, sale, hire, use or lease of real estate, merchandise, securities, service or employment or to the terms or conditions thereof which advertisement, announcement, statement or representation is part of a plan or scheme the purpose or effect of which is not to sell, purchase, hire, use or lease the real estate, merchandise, securities, service or employment as advertised.
This section does not apply to the owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, or of a radio or television station, who in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published or takes part in the publication of such advertisement.
It is deemed deceptive advertising to misrepresent the nature of a local energy resource system under s. 101.175
It is deceptive to misrepresent the nature of any business by use of the words manufacturer, factory, mill, importer, wholesaler or words of similar meaning, in a corporate or trade name or otherwise.
It is deceptive to represent the price of any merchandise as a manufacturer's or wholesaler's price, or a price equal thereto, unless the price is not more than the price which retailers regularly pay for the merchandise. The effective date of this subsection shall be January 1, 1962.
It is deceptive or misleading advertising for a person who sells new motor vehicles to compare new motor vehicle selling prices, including the offered prices or the actual sale prices, to the manufacturer's suggested retail price for that vehicle unless it is clearly and conspicuously disclosed that the latter price is a manufacturer's suggested retail price and may not represent actual sale prices.
It is deceptive and misleading for a person who is conducting business in a community or region from a location outside that community or region to use the name of the community or region, or other description of the community or region, in the corporate or trade name of the business or in any other information that is published if the use of the name or description of the location creates the misrepresentation that the business is located in the community or region.
The department of agriculture, trade and consumer protection shall enforce this section. Actions to enjoin violation of this section or any regulations thereunder may be commenced and prosecuted by the department in the name of the state in any court having equity jurisdiction. This remedy is not exclusive.
Any person suffering pecuniary loss because of a violation of this section by any other person may sue in any court of competent jurisdiction and shall recover such pecuniary loss, together with costs, including reasonable attorney fees, except that no attorney fees may be recovered from a person licensed under ch. 452
while that person is engaged in real estate practice, as defined in s. 452.01 (6)
. Any person suffering pecuniary loss because of a violation by any other person of any injunction issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including reasonable attorney fees, except that no attorney fees may be recovered from a person licensed under ch. 452
while that person is engaged in real estate practice, as defined in s. 452.01 (6)
No action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action. No injunction may be issued under this section which would conflict with general or special orders of the department or any statute, rule or regulation of the United States or of this state.
Whenever the department has reason to believe that a person is in possession, custody or control of any information or documentary material relevant to the enforcement of this section it may require that person to submit a statement or report, under oath or otherwise, as to the facts and circumstances concerning any activity in the course of trade or commerce; examine under oath that person with respect to any activity in the course of trade or commerce; and execute in writing and cause to be served upon such person a civil investigative demand requiring the person to produce any relevant documentary material for inspection and copying.
The department, in exercising powers under this subsection, may issue subpoenas, administer oaths and conduct hearings to aid in any investigation.
Service of any notice by the department requiring a person to file a statement or report, or service of a subpoena upon a person, or service of a civil investigative demand shall be made in compliance with the rules of civil procedure of this state.
If a person fails to file any statement or report, or fails to comply with any civil investigative demand, or fails to obey any subpoena issued by the department, such person may be coerced as provided in s. 885.12
, except that no person shall be required to furnish any testimony or evidence under this subsection which might tend to incriminate the person.
The department or the department of justice, after consulting with the department, or any district attorney, upon informing the department, may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction any violation of this section. The court may in its discretion, prior to entry of final judgment, make such orders or judgments as may be necessary to restore to any person any pecuniary loss suffered because of the acts or practices involved in the action, provided proof thereof is submitted to the satisfaction of the court. The department and the department of justice may subpoena persons and require the production of books and other documents, and the department of justice may request the department to exercise its authority under par. (c)
to aid in the investigation of alleged violations of this section.
In lieu of instituting or continuing an action pursuant to this section, the department or the department of justice may accept a written assurance of discontinuance of any act or practice alleged to be a violation of this section from the person who has engaged in such act or practice. The acceptance of such assurance by either the department or the department of justice shall be deemed acceptance by the other state officials enumerated in par. (d)
if the terms of the assurance so provide. An assurance entered into pursuant to this section shall not be considered evidence of a violation of this section, provided that violation of such an assurance shall be treated as a violation of this section, and shall be subjected to all the penalties and remedies provided therefor.
This section does not apply to the insurance business.
This section does not apply to a person licensed as a broker or salesperson under s. 452.09
while that person is engaged in real estate practice, as defined in s. 452.01 (6)
, unless that person has directly made, published, disseminated, circulated or placed before the public an assertion, representation or statement of fact with the knowledge that the assertion, representation or statement of fact is untrue, deceptive or misleading.
See s. 136.001 (2)
concerning future service plans.
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
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
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
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
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
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
Sub. (11) (b) 3. is a statute of repose. A cause of action must be commenced within 3 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
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
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
The elements of a viable claim under this section are: 1) the defendant advertised the product; 2) the advertising was misleading; 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
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
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
When the statutory background of ss. 100.18 and 100.183 is considered, it becomes clear that the legislature does not intend “merchandise" in s. 100.18 to include articles of food. The only sanction for violating s. 100.183 is the criminal penalty specified in s. 100.26 (1) while s. 100.18 (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
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
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
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
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
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
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
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
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
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
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
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
“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
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, Incorporated, 755 F.3d 832
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
One person can constitute “the public" under sub. (1). Jersild v. Aker, 775 F. Supp. 1198
Actual interest payments incurred as a result of misrepresentations may be recovered by the defrauded party. Jersild v. Aker, 775 F. Supp. 1198
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
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
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
Under Wisconsin law the economic loss doctrine does not bar recovery under s. 100.18, 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
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
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 Corporation, 474 F. Supp. 2d 1034
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
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
This section applies to only commercial transactions. Thermal Design, Inc. v. American Society of Heating, 775 F. Supp. 2d 1082