At least 30 days or more prior to the commencement of a class action for damages pursuant to the provisions of this section, any party must:
Notify the person against whom an alleged cause of action is asserted of the particular alleged claim or violation; and
Demand that such person correct, or otherwise remedy the basis for the alleged claim.
Such notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to such person at the place where the transaction occurred, such person's principal place of business within this state, or, if neither will effect actual notice, the department of financial institutions.
Except as provided in par. (e)
, no action for damages may be maintained under this section if an appropriate remedy, which shall include actual damages and may include penalties, is given, or agreed to be given within a reasonable time, to such party within 30 days after receipt of such notice.
Except as provided in par. (e)
, no action for damages may be maintained under this section upon a showing by a person against whom the alleged claim or violation is asserted that all of the following exist:
All customers similarly situated have been identified, or a reasonable effort to identify such other consumers has been made;
All customers so identified have been notified that upon their request such person shall make the appropriate remedy;
The remedy requested by such customers has been or in a reasonable time will be given; and
Such person has ceased from engaging, or if immediate cessation is impossible under the circumstances, such person will, within a reasonable time, cease to engage in any acts on which the alleged claim is based.
An action for injunctive relief may be commenced without compliance with par. (a)
. Not less than 30 days after the commencement of an action for injunctive relief, and after compliance with par. (a)
the customer may amend his or her complaint without leave of court to include a request for damages. The appropriate provisions of par. (c)
shall be applicable if the complaint for injunctive relief is amended to request damages.
The court shall permit the suit to be maintained on behalf of all members of the represented class only if:
The class is so numerous that joinder of all members, if permissible, would be impracticable;
There are questions of law and fact common to the class;
The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class. This paragraph shall not apply if the administrator is a representative plaintiff;
The representative parties will fairly and adequately protect the interests of the class.
An action may be maintained as a class action if the prerequisites of sub. (5)
are satisfied, and in addition:
The prosecution of separate actions by or against individual members of the class would create a risk of:
Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
The interest of members of the class in individually controlling the prosecution or defense of separate actions;
The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
The difficulties likely to be encountered in the management of a class action.
As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits. If the court determines that the action may not be maintained as a class action, it shall allow the action to proceed on behalf of the parties appearing in the action.
In any class action maintained under sub. (6) (c)
, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:
The court will exclude a class member from the class if the member so requests by a specified date;
The judgment, whether favorable or not, will include all members who do not request exclusion; and
Any member who does not request exclusion may, if the member desires, enter an appearance through the member's counsel.
The judgment in an action maintained as a class action under sub. (6) (a)
, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under sub. (6) (c)
, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in sub. (8)
was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
When appropriate, an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class, and this section shall then be construed and applied accordingly.
If the judgment is for a class of plaintiffs, the court shall render judgment in favor of the administrator and against the defendants for all costs of notice incurred by the administrator in such action.
In the conduct of actions to which this section applies, the court may make appropriate orders, which may be altered or amended as may be desirable from time to time, for any of the following purposes:
Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument.
Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action.
Imposing conditions on the representative parties or on intervenors.
Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly.
A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
A merchant shall not be liable in a class action for specific penalties under s. 425.302 (1) (a)
, 425.303 (1)
, 425.304 (1)
, 425.305 (1)
or 429.301 (1)
for which it would be liable in individual actions by reason of violations of chs. 421
or of conduct prescribed in sub. (2)
unless it is shown by a preponderance of the evidence that the violation was a willful and knowing violation of chs. 421
.No recovery in an action under this subsection may exceed $100,000.
A plaintiff who prevails shall be awarded a reasonable attorney's fee. Notwithstanding s. 425.308 (2)
, reasonable attorney's fees in a class action shall be determined by the value of the time reasonably expended by the attorney rather than by the amount of the recovery on behalf of the class. A legal aid society or legal services program which represents a class shall be awarded a reasonable service fee in lieu of reasonable attorney's fees, equal in amount to the amount of the attorney's fees as measured by this subsection.
The administrator, whether or not a party to an action, shall bear the costs of notice except that the administrator may recover such costs from the defendant as provided in sub. (11)
Sub. (4) (c) is procedural and not substantive as it does not grant or deny the substantive right to sue. Mace v. Van Ru Credit Corp. 109 F.3d 338
Debtors' remedies not affected.
The grant of powers to the administrator in this chapter does not affect remedies available to customers under chs. 421
or under other principles of law or equity.
REGISTRATION AND FEES
The registration requirements of this section apply to persons who do any of the following in this state:
Make or solicit consumer credit transactions, except a person who engages in consumer credit transactions solely through honoring credit cards issued by 3rd parties not related to such person.
Directly collect payments from or enforce rights against customers arising from such transactions, wherever made.
Each person subject to the registration requirements under sub. (1)
shall file a registration statement with the administrator within 30 days after commencing business in this state. The registration statement shall include all of the following information:
The name under which the person transacts business if different from par. (a)
The address of the person's principal office, which may be outside this state.
The addresses of all of the person's offices or retail stores, if any, in this state.
If consumer transactions or other business subject to this chapter are made otherwise than at an office or retail store in this state, a brief description of the manner in which they are made.
The address of the person's designated agent upon whom service of process may be made in this state.
The year-end balance of all consumer credit transactions held by the person. In this paragraph, “year-end balance" has the meaning given under s. 426.202 (1m) (a)
Such other similar information as the administrator may require to effectuate the purposes and policies of chs. 421
Except as provided in par. (b)
, each person subject to the registration requirements under sub. (1)
shall file a registration statement containing the information under sub. (2) (a)
no later than February 28 of each year following the year of the person's initial registration under sub. (2)
2. Paragraph (a)
does not apply if the person's year-end balance is not more than $250,000.
The administrator shall adopt rules governing the filing of changes, additions, or modifications of the registration statement required by this section, and shall adopt rules pertaining to form, verification, fees, and similar matters pertaining to the registration.
The following persons shall not be subject to this section solely by reason of their debt collection activities unless they are licensed debt collectors under s. 218.04
Attorneys authorized to practice law in this state or professional service corporations composed of licensed attorneys formed pursuant to ss. 180.1901
Duly licensed real estate brokers and real estate salespersons; and
Duly licensed insurance companies subject to the supervision of the office of the commissioner of insurance.
No person is subject to this section solely by reason of offering the discount described in s. 422.201 (8)
“Reporting period" means, for any registration statement, the last full calendar year preceding the date on which the registration statement is due.
“Year-end balance" means, for any reporting period, the outstanding balance of all consumer credit transactions that a person has entered into or has obtained by assignment, and that originated in this state, as of December 31 preceding the annual registration filing date under s. 426.201 (2m) (a)
Registration fee requirement.
Any person required to register under s. 426.201
shall pay a registration fee to the administrator when the person files the registration statement required under s. 426.201
Amount of registration fee.
The amount of the registration fee shall be determined in accordance with rates set by the administrator. In setting these rates, the administrator shall consider the costs of administering chs. 421
, including the costs of enforcement, education and seeking voluntary compliance with chs. 421
. The registration fee for a person shall be based on the person's year-end balance for the reporting period.
(4) Submission of data for calculating the amount of fee.
A person required to register under s. 426.201
shall submit such financial and other data as the administrator may require which will support the computation of the amount of the fee.
(5) Recovery of fees.
The administrator shall bring an action in any court of record to recover any fees that the administrator determines are due and owing under this section.
Whoever fails to comply with the registration requirements under s. 426.201
or fails to pay a fee required under s. 426.202
may be required to forfeit not more than $50. Each day that this failure continues constitutes a separate offense. Forfeitures received by the administrator under this section shall be credited to the appropriation account under s. 20.144 (1) (h)
and may be expended from the account only for consumer or merchant education programs.
History: 1995 a. 27