SB645: Bill Text

SB645,5 Section 5. 218.0126 of the statutes is amended to read:

SB645,9,25 218.0126 Promotional allowances. A claim made by a franchised motor vehicle dealer for promotional allowances or other incentive payments shall be either approved or disapproved within 30 days after the claim is submitted to the manufacturer, importer or distributor in the manner and on the forms the manufacturer, importer or distributor reasonably prescribes. An approved claim shall be paid within 30 days after its approval. If a claim is not specifically disapproved in writing or by electronic transmission within 30 days after the date on which the manufacturer, importer or distributor receives it, the claim shall be considered to be approved and payment shall follow within 30 days after approval. A manufacturer, importer or distributor retains the right to audit a claim for a period of 2 years after the date on which the claim is paid and to charge back any amounts paid on claims that are false or unsubstantiated. If there is evidence of fraud, this section does not limit the right of the manufacturer to audit for longer periods and charge back for any fraudulent claim, subject to the limitations period under s. 893.93 (1) (1m) (b).

SB645,6 Section 6. 426.110 (4m) of the statutes is created to read:

SB645,10,8 426.110 (4m) Actions commended under this section shall be conducted in accordance with the procedures set forth in s. 803.08.

SB645,7 Section 7. 426.110 (5) to (13) of the statutes are repealed.

SB645,8 Section 8. 426.110 (16) of the statutes is amended to read:

SB645,10,13 426.110 (16) 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).

SB645,9 Section 9. 628.46 (1) of the statutes is amended to read:

SB645,11,7 628.46 (1) Unless otherwise provided by law, an insurer shall promptly pay every insurance claim. A claim shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of the loss. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after written notice is furnished to the insurer. Any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer. For the purpose of calculating the extent to which any claim is overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the U.S. mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery. All overdue payments shall bear simple interest at the annual bank prime loan rate of 12 percent per year as reported by the federal reserve board in federal reserve statistical release H. 15 in effect on January 1 of the year in which the insurer is furnished written notice of the fact of a covered loss, plus 1 percent.

SB645,10 Section 10. 801.01 (2) of the statutes is amended to read:

SB645,11,14 801.01 (2) Scope. Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule. Chapters 801 to 847 shall be construed , administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.

SB645,11 Section 11. 802.06 (1) of the statutes is renumbered 802.06 (1) (a).

SB645,12 Section 12. 802.06 (1) (b) of the statutes is created to read:

SB645,11,21 802.06 (1) (b) Upon the filing of a motion to dismiss under sub. (2) (a) 6., a motion for judgment on the pleadings under sub. (3), or a motion for more definite statement under sub. (5), all discovery and other proceedings shall be stayed during the pendency of the motion unless the court finds good cause upon the motion of any party that particularized discovery is necessary.

SB645,13 Section 13. 803.08 (1) of the statutes, as affected by Supreme Court Order 15-06, is renumbered 803.08 (1) (intro.) and amended to read:

SB645,12,6 803.08 (1) Class actions may be maintained action prerequisites . (intro.) When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one One or more members of a class may sue or defend for the benefit of the whole, except that no claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state. be sued as representative parties on behalf of all members only if all of the following apply:

SB645,14 Section 14. 803.08 (1) (a) to (e) of the statutes are created to read:

SB645,12,9 803.08 (1) (a) The class is so numerous that joinder of all members is impracticable.

SB645,12,10 (b) There are questions of law or fact common to the class.

SB645,12,12 (c) The claims or defenses and type and scope of injury of the representative parties are typical of the claims or defenses and type and scope of injury of the class.

SB645,12,14 (d) The representative parties will fairly and adequately protect the interests of the class.

SB645,12,17 (e) The members of the class are objectively verifiable by reliable and feasible means without individual testimony from putative class members and without substantial administrative burden.

SB645,15 Section 15. 803.08 (2) of the statutes, as created by Supreme Court Order 15-06, is renumbered 803.08 (11).

SB645,16 Section 16. 803.08 (3) to (10) of the statutes are created to read:

SB645,12,22 803.08 (3) Types of class actions. A class action may be maintained if sub. (1) is satisfied and if the court finds that any of the following applies:

SB645,12,24 (a) Prosecuting separate actions by or against individual class members would create a risk of one of the following:

SB645,13,3 1. Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.

SB645,13,7 2. Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members who were not a party to the individual adjudications or would substantially impair or impede another member's ability to protect his or her interests.

SB645,13,10 (b) The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

SB645,13,15 (c) The court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. In making this determination, the court shall consider all of the following factors:

SB645,13,17 1. The class members' interests in individually controlling the prosecution or defense of separate actions.

SB645,13,19 2. The extent and nature of any litigation concerning the controversy already begun by or against class members.

SB645,13,21 3. The desirability of concentrating the litigation of the claims in the particular forum.

SB645,13,22 4. The likely difficulties in managing a class action.

SB645,13,25 (4) Certification order. (a) Time to issue. At an early practicable time after a person sues or is sued as a class representative, the court shall determine by order whether to certify the action as a class action.

SB645,14,3 (b) Defining the class; appointing class counsel. An order granting class certification shall define the class, shall identify the class claims, issues, or defenses, and shall appoint class counsel under sub. (13).

SB645,14,5 (c) Altering or amending the order. The order granting or denying class certification may be altered or amended before final judgment.

SB645,14,7 (5) Notice. (a) For any class certified under sub. (3) (a) or (b), the court may direct appropriate notice to the class.

SB645,14,12 (b) For any class certified under sub. (3) (c), the court shall direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall state clearly and concisely in plain, easily understood language, all of the following:

SB645,14,13 1. The nature of the action.

SB645,14,14 2. The definition of the class certified.

SB645,14,15 3. The class claims, issues, or defenses.

SB645,14,17 4. That a class member may enter an appearance through an attorney if the member so desires.

SB645,14,19 5. That the court will exclude from the class any member who requests exclusion.

SB645,14,20 6. The time and manner for requesting exclusion from the class.

SB645,14,21 7. The binding effect of a class judgment on members under sub. (6).

SB645,14,23 (6) Judgment. Whether favorable or unfavorable to the class, the judgment in a class action shall do all of the following:

SB645,14,25 (a) For any class certified under sub. (3) (a) or (b), include and describe those persons who the court finds to be class members.

SB645,15,3 (b) For any class certified under sub. (3) (c), include and specify or describe the persons to whom the court directed notice under sub. (5) who have not requested exclusion and who the court finds to be class members.

SB645,15,6 (7) Particular issues. Notwithstanding ss. 805.05 (2) and 805.09 (2), when appropriate, an action may be brought or maintained as a class action with respect to particular issues.

SB645,15,8 (8) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this section.

SB645,15,10 (9) Conducting the action. (a) In conducting an action under this section, the court may issue orders for any of the following purposes:

SB645,15,12 1. To determine the course of proceedings or to prescribe measures to prevent undue repetition or complication in presenting evidence or argument.

SB645,15,14 2. In order to protect class members and fairly conduct the action, to require that appropriate notice be given to some or all class members of any of the following:

SB645,15,15 a. Any step in the action.

SB645,15,16 b. The proposed extent of the judgment.

SB645,15,19 c. The members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise participate in the action.

SB645,15,20 3. To impose conditions on the representative parties or on intervenors.

SB645,15,23 4. To require that the pleadings be amended to eliminate allegations regarding the representation of absent persons and to require that the action proceed accordingly.

SB645,15,24 5. To deal with similar procedural matters.

SB645,16,2 (b) An order under par. (a) may be altered or amended from time to time and may be combined with an order under s. 802.10.

SB645,16,6 (10) Settlement, voluntary dismissal, or compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. All of the following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

SB645,16,8 (a) The parties seeking approval shall file a statement identifying any agreement made in connection with the proposal.

SB645,16,10 (b) The court shall direct notice in a reasonable manner to all class members who would be bound by the proposal.

SB645,16,12 (c) If the proposal would bind class members, the court may approve it only if it finds after a hearing that the proposal is fair, reasonable, and adequate.

SB645,16,16 (d) If the class action was previously certified under sub. (3) (c), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

SB645,16,19 (e) Any class member may object to the proposal if it requires court approval under this subsection, and the objection may be withdrawn only with the court's approval.

SB645,17 Section 17. 803.08 (12) to (15) of the statutes are created to read:

SB645,17,3 803.08 (12) Interlocutory appeal of class certification. (a) When 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. If the court finds that the action should be maintained as a class action, it shall certify the action accordingly on the basis of a written decision setting forth all reasons why the action may be maintained and describing all evidence in support of the determination. An order under this subsection may be altered, amended, or withdrawn at any time before the decision on the merits. The court may direct appropriate notice to the class.

SB645,17,10 (b) An appellate court shall hear an appeal of an order granting or denying class action certification, or denying a motion to decertify a class action, if a notice of appeal is filed within 14 days after entry of the order. During the pendency of an appeal under this subsection, all discovery and other proceedings shall be stayed, except that the trial court shall retain sufficient jurisdiction over the case to consider and implement a settlement of the action if a settlement is reached between the parties.

SB645,17,13 (13) Class counsel. (a) Unless otherwise provided by law, a court that certifies a class shall appoint class counsel. In appointing class counsel, the court shall consider all of the following:

SB645,17,15 1. The work that counsel has done in identifying or investigating potential claims in the action.

SB645,17,17 2. Counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action.

SB645,17,18 3. Counsel's knowledge of the applicable law.

SB645,17,19 4. The resources that counsel will commit to representing the class.

SB645,17,20 (b) In appointing class counsel, the court may do any of the following:

SB645,17,22 1. Consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class.

SB645,17,24 2. Order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs.

SB645,18,2 3. Include in the appointing order provisions about the award of attorney's fees or nontaxable costs under sub. (14).

SB645,18,3 4. Issue further orders in connection with the appointment.

SB645,18,5 (c) Class counsel must fairly and adequately represent the interests of the class.

SB645,18,9 (d) When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is found to be adequate under pars. (a) and (c). If more than one adequate applicant seeks appointment, the court shall appoint the applicant best able to represent the interests of the class.

SB645,18,11 (e) The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.

SB645,18,14 (14) Attorney fees and nontaxable costs. In a certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties' agreement. All of the following procedures apply:

SB645,18,18 (a) A claim for an award shall be made by motion, subject to the provisions of this subsection, at a time designated by the court. Notice of the motion shall be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

SB645,18,20 (b) A class member, or a party from whom payment is sought, may object to the motion.

SB645,18,22 (c) The court may hold a hearing at which it finds facts and states its legal conclusions regarding fees and costs, in accordance with s. 805.17 (2).

SB645,18,24 (d) The court may refer issues related to the amount of the award to a referee, as provided in s. 805.06.

SB645,19,3 (15) Prohibition of certain class actions. No claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state.