100.195(2)(a)
(a) Bill a consumer for consumer goods or services that the consumer has not agreed to purchase or lease.
100.195(2)(b)
(b) Bill a consumer for consumer goods or services at a price that is higher than a price previously agreed upon between the seller and consumer unless the consumer agrees to the higher price before the seller bills the consumer. This paragraph does not prohibit a seller from increasing the price of goods or services under a sale or lease agreement of indefinite duration if the seller gives the consumer reasonable disclosure of the proposed increase and the opportunity to cancel the agreement without penalty at or before the time of a delivery at the increased price. If a seller proposes an increased price at the time of a delivery of goods or services and the consumer elects to cancel the agreement, the seller shall pay the costs of returning the goods or services.
100.195(2)(c)
(c) Bill a consumer for a delivery of consumer goods or services that the seller initiates under an agreement that is no longer in effect when the seller initiates the delivery.
100.195(2)(d)
(d) Offer a consumer a prize or prize opportunity or free or reduced-price goods or services, the acceptance of which commits the consumer to receive or pay for other consumer goods or services, unless the seller makes a disclosure of that commitment at or before the time the consumer agrees to purchase the goods or services.
100.195(2)(e)
(e) Misrepresent to a consumer, directly or by implication, that the consumer's failure to reject or return a delivery of consumer goods or services that was not authorized by the consumer constitutes an acceptance that obligates the consumer to pay for those goods or services.
100.195(3)(a)(a) Subsection (2) does not apply to the conduct of an agent or representative of a seller when providing billing services if the agent or representative did not know or have reason to know that its conduct violates
sub. (2).
100.195(3)(b)2.
2. A contractual plan or arrangement under which a seller, on a periodic basis, ships a similar type of goods to a consumer who has consented in advance to receive the goods on a periodic basis, if the plan or arrangement does not impose a binding commitment period or require a minimum purchase amount.
100.195(4)
(4) Acceptance of free goods or services. For purposes of
sub. (2), the acceptance of free goods or services does not, of itself, constitute an agreement to purchase or lease the goods or services.
100.195(5m)(a)(a) The department may exercise its authority under
ss. 93.14 and
93.15 to investigate violations of this section.
100.195(5m)(b)
(b) Any person suffering pecuniary loss because of a violation of this section may commence an action to recover the pecuniary loss. If the person prevails, the person shall recover twice the amount of the pecuniary loss, or $200 for each violation, whichever is greater, together with costs, including reasonable attorney fees.
100.195(5m)(c)
(c) The department may commence an action in the name of the state to restrain by temporary or permanent injunction a violation of this section. Before entry of final judgment, the court may make any necessary orders to restore to a person any pecuniary loss suffered by the person because of the violation.
100.195(5m)(d)
(d) The department or a district attorney may commence an action in the name of the state to recover a forfeiture to the state of not less than $100 nor more than $10,000 for each violation of this section.
100.195(5m)(e)
(e) A person who violates this section is subject to a fine of not less than $25 nor more than $5,000 or imprisonment not to exceed one year or both for each violation.
100.195 History
History: 2005 a. 458.
100.20
100.20
Methods of competition and trade practices. 100.20(1)(1) Methods of competition in business and trade practices in business shall be fair. Unfair methods of competition in business and unfair trade practices in business are hereby prohibited.
100.20(1m)
(1m) It is an unfair trade method of competition in business 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.
100.20(1n)
(1n) It is an unfair method of competition or an unfair trade practice for any person to sell cigarettes to consumers in this state in violation of
s. 139.345.
100.20(1r)
(1r) It is an unfair method of competition in business or an unfair trade practice 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.
100.20(1t)
(1t) It is an unfair trade practice for a person to provide any service which the person has the ability to withhold that facilitates or promotes an unfair method of competition in business, an unfair trade practice in business, or any other activity which is a violation of this chapter.
100.20(2)(a)(a) The department, after public hearing, may issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair. The department, after public hearing, may issue general orders prescribing methods of competition in business or trade practices in business which are determined by the department to be fair.
100.20(2)(b)
(b) Notwithstanding
par. (a), the department may not issue any order or promulgate any rule that regulates the provision of water or sewer service by a manufactured home community operator, as defined in
s. 101.91 (8), or manufactured home community contractor, as defined in
s. 101.91 (6m), or enforce any rule to the extent that the rule regulates the provision of such water or sewer service.
100.20(3)
(3) The department, after public hearing, may issue a special order against any person, enjoining such person from employing any method of competition in business or trade practice in business which is determined by the department to be unfair or from providing service in violation of
sub. (1t). The department, after public hearing, may issue a special order against any person, requiring such person to employ the method of competition in business or trade practice in business which is determined by the department to be fair.
100.20(4)
(4) The department of justice may file a written complaint with the department alleging that the person named is employing unfair methods of competition in business or unfair trade practices in business or both. Whenever such a complaint is filed it shall be the duty of the department to proceed, after proper notice and in accordance with its rules, to the hearing and adjudication of the matters alleged, and a representative of the department of justice designated by the attorney general may appear before the department in such proceedings. The department of justice shall be entitled to judicial review of the decisions and orders of the department under
ch. 227.
100.20(5)
(5) Any person suffering pecuniary loss because of a violation by any other person of any order 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 a reasonable attorney's fee.
100.20(6)
(6) The department may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction the violation of any order issued under 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 may use its authority in
ss. 93.14 and
93.15 to investigate violations of any order issued under this section.
100.20 Cross-reference
Cross-reference: See s.
136.001 (2) concerning future service plans.
100.20 Cross-reference
Cross Reference: See also chs.
ATCP 102,
104,
109,
111,
113,
114,
117,
121,
122,
123,
124,
125,
127,
128,
131,
132,
134, and
136, Wis. adm. code.
100.20 Annotation
Department of agriculture rules prohibiting a chain distributor scheme are valid. Unfair practices that may be prohibited are not limited to those affecting competitors. HM Distributors of Milwaukee, Inc. v. Department of Agriculture,
55 Wis. 2d 261,
198 N.W.2d 598 (1972).
100.20 Annotation
The elements of misappropriation are: 1) the expenditure of time, labor, or money creating the misappropriated thing; 2) competition; and 3) commercial damage to the plaintiff. Mercury Record Productions, Inc. v. Economic Consultants, Inc.
64 Wis. 2d 163,
218 N.W.2d 705 (1975).
100.20 Annotation
The trial court properly relied upon an administrative rule promulgated under sub. (2) in instructing the jury. State v. Clausen,
105 Wis. 2d 231,
313 N.W.2d 819 (1982).
100.20 Annotation
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).
100.20 Annotation
Attorney fees for successful appellate work are recoverable under sub. (5). Fees are recoverable even when the person is represented at no charge by a legal services organization. Shands v. Castrovinci,
115 Wis. 2d 352,
340 N.W.2d 506 (1983).
100.20 Annotation
Sub. (6) does not require a threat of future harm in order to obtain an injunction. State v. Fonk's Mobile Home Park & Sales, Inc.
117 Wis. 2d 94,
343 N.W.2d 820 (Ct. App. 1983).
100.20 Annotation
A plaintiff-tenant who prevails in an action for the violation of an order under this section is entitled to attorney fees irrespective of the amount of damages the landlord may recover in a counterclaim. Paulik v. Coombs,
120 Wis. 2d 431,
355 N.W.2d 357 (Ct. App. 1984).
100.20 Annotation
In cases when a landlord complies with the notification requirements and provides an accounting of amounts withheld from a security deposit, an award of double damages under sub. (5) is subject to offset for actual damages to the landlord. A damage award in the amount of double the security deposit, regardless of the landlord's damages, applies when the landlord fails to provide the accounting. Pierce v. Norwick,
202 Wis. 2d 587,
550 N.W.2d 451 (Ct. App. 1996),
96-0067.
100.20 Annotation
The lender liability limits under s. 422.208 (4) do not limit the liability of lenders subject to the Home Improvement Trade Practices Code promulgated under this section. A homeowner may proceed under sub. (5) when there is a violation of the Code. If a home improvement was financed by an interlocking consumer loan, full payment before discovering the violations of the Code does not eliminate the consumer's cause of action against an assignee of the loan for the total amount that the consumer was obligated for at the time of entering into the contract. Jackson v. DeWitt,
224 Wis. 2d 877,
592 N.W.2d 262 (Ct. App. 1999),
98-0493.
100.20 Annotation
The ordinary civil burden of proof applies to actions for damages occasioned by a violation of an administrative rule adopted under sub. (2). Benkoski v. Flood, 2001 WI App 84,
242 Wis. 2d 652,
626 N.W.2d 851,
00-1250.
100.20 Annotation
When the plaintiff lost a sale of property as the result of a violation of an administrative rule adopted under sub. (2), it was proper to double the lost sale price of property prior to deducting the market price of the property in setting damages under sub. (5). Benkoski v. Flood, 2001 WI App 84,
242 Wis. 2d 652,
626 N.W.2d 851,
00-1250.
100.20 Annotation
A contract in violation of an administrative rule adopted under this section does not result in per se unenforceability of the contract. A lease provision requiring a tenant to pay all landlord attorney fees, in violation of a rule, was unenforceable because severing the clause from the remainder of the lease would undermine the goals of eliminating such clauses and preventing the intimidation of tenants that the clauses may cause. Baierl v. McTaggart, 2001 WI 107,
245 Wis. 2d 632,
629 N.W.2d 277,
98-3329.
100.20 Annotation
Under Baierl, a lease containing a provision violating an administrative rule is not necessarily void, but rather, may be unenforceable by one or both parties under certain circumstances. While a landlord cannot seek damages for abandonment of a lease that contains a code violation, a tenant who seeks to prospectively enforce the lease waives his or her rights pursuant to Baierl in the event of a breach on the part of the tenant. By seeking to enforce a lease, a tenant reaffirms the terms of the lease and the landlord's reciprocal right to enforce those provisions. Dawson v. Goldammer, 2003 WI App 3,
259 Wis. 2d 664,
657 N.W.2d 432,
01-3075.
100.20 Annotation
To sue for double damages, costs, and attorney's fees under sub. (5), a party must establish a pecuniary loss because of a violation. Failure to allege any pecuniary loss for an alleged administrative code violation barred recovery under sub. (5). Snyder v. Badgerland Mobile Homes, 2003 WI App 49,
260 Wis. 2d 770,
659 N.W.2d 887,
02-0714.
100.20 Annotation
Holding individual wrongdoers accountable is necessary in order to adequately effectuate the purpose behind this section, protecting consumers from unfair dealings. When the corporate veil frustrates the purpose of a statute, it must be assumed that the legislature intended to pierce it. Rayner v. Reeves Custom Builders, Inc. 2004 WI App 231,
277 Wis. 2d 535,
691 N.W.2d 705,
03-3235.
100.20 Annotation
Nothing in this section or ch. 97 evinces a legislative intent to preclude DATCP from declaring, by rule, that a violation of department rules governing food labeling is an unfair trade practice amenable to private enforcement action under sub. (5). Gallego v. Wal-Mart Stores, Inc. 2005 WI App 244,
288 Wis. 2d 229,
707 N.W.2d 539,
04-2533.
100.20 Annotation
Wisconsin Administrative Code ch. ATCP 110, entitled Home Improvement Practices ,was adopted under authority of this section. Violations of sub. (5) and ATCP 110 constitute a basis for the imposition of civil liability separate and apart from any breach of contract. As such, the discovery rule covering tort claims applies in this case. Stuart v. Weisflog's Showroom Gallery, Inc. 2006 WI App 109, ___ Wis. 2d ___, ___ N.W.2d ___,
05-0886.
100.20 Annotation
Apportionment of damages between a misrepresentation subject to the penalties under this section and negligence was improper. There is no place within the statutory and regulatory framework for apportioning damages when the damages flowed from the initial misrepresentation. Stuart v. Weisflog's Showroom Gallery, Inc. 2006 WI App 109, ___ Wis. 2d ___, ___ N.W.2d ___,
05-0886.
100.20 Annotation
Disparity between the amount of damages and requested attorney fees alone does not mean the fees are unreasonable under sub. (5). An award of attorney fees may well exceed the amount of double damages to encourage attorneys to undertake such cases. Stuart v. Weisflog's Showroom Gallery, Inc. 2006 WI App 109, ___ Wis. 2d ___, ___ N.W.2d ___,
05-0886.
100.20 Annotation
A tenant who opts to enforce a lease containing a prohibited attorney's fees provision pursuant to our holding in Dawson I may sever the provision and enforce the remaining legally valid lease terms. Dawson v. Goldammer, 2006 WI App 158, ___ Wis. 2d ___, ___ N.W.2d ___,
04-2507.
100.20 Annotation
Allegations that a department rule prohibiting chain distributor schemes as an unfair trade practice abridged the 1st amendment protection of commercial speech were not so obviously without merit so as to be insubstantial for purposes of the statute requiring hearing and determination by 3-judge court. Holiday Magic, Inc. v. Warren,
497 F.2d 687 (1974).
100.20 Annotation
Federal law did not preclude the enforcement of this section. Time Warner Cable v. Doyle,
847 F. Supp 635 (1994).
100.20 Annotation
No private cause of action exists under s. 100.20 except for violations of a department order. Emergency One, Inc. v. Waterous Co., Inc.
23 F. Supp. 2d 959 (1998).
100.20 Annotation
Protection for consumers against unfair and deceptive business. Jeffries, 57 MLR 559.
100.20 Annotation
State Deceptive Trade Practices and Consumer Protection Acts: Should Wisconsin Lawyers be Susceptible to Liability Under Section 100.20? Anderson. 83 MLR 497.
100.201
100.201
Unfair trade practices in the dairy industry. 100.201(1)(1)
Definitions. Unless context requires otherwise:
100.201(1)(a)
(a) "Broker" means any person engaged in negotiating sales or purchases of selected dairy products for or on behalf of a retailer or wholesaler or both.
100.201(1)(b)1.1. "Retailer" means every person making any sale of selected dairy products at retail within this state unless otherwise excepted; provided, that in the case of a person making both sales at retail and sales at wholesale such term shall apply only to the retail portion of such sales. "Retailer" does not include the United States, the state, any municipality as defined in
s. 345.05 (1) (c), or any religious, charitable or educational organization or institution, but does include any other person engaged in the business of making retail sales wholly or in part for the person's own profit at an institution operated by such an exempt party.
100.201(1)(b)2.
2. For the purpose of this section any subsidiary or affiliate corporation, limited liability company, cooperative, or unincorporated cooperative association, and any officer, director, partner, member or manager of a corporation, cooperative, unincorporated cooperative association, partnership or limited liability company which is a retailer of selected dairy products, and any individual, corporation, cooperative, unincorporated cooperative association, partnership, limited liability company, association or any other business unit which owns, controls or franchises any retailer or which has any retailer as an affiliate, member or subsidiary, is deemed to be a retailer of selected dairy products and the prohibitions of
sub. (2) shall also apply to any such person or business unit which sells any selected dairy product at wholesale.
100.201(1)(c)1.a.
a. Milk, skim milk, fortified milk, flavored milk, flavored skim milk, buttermilk, cream, sour cream, half and half, whipping cream, whipped cream and cottage cheese; and
100.201(1)(c)1.b.
b. Ice cream, ice milk, sherbet, custard, water ices, quiescently frozen ices and frozen dessert novelties manufactured from any such products.
100.201(1)(c)2.
2. The department may by rule, after hearing, designate as selected dairy products such other products derived in whole or in part from milk as it finds necessary to effectuate the purposes of this section.
100.201(1)(c)3.
3. In no event shall there be designated as selected dairy products any of the following:
100.201(1)(c)3.b.
b. Condensed, concentrated or evaporated milk in hermetically sealed containers.
100.201(1)(d)
(d) "Sell at retail," "sales at retail" and "retail sales" include any transfer for a valuable consideration made in the course of trade or conduct of the seller's business, of title to tangible personal property to the purchaser for consumption or use other than resale or further processing or manufacturing, and include any transfer of such property where title is retained by the seller as security for the payment of the purchase price.
100.201(1)(e)
(e) "Sell at wholesale," "sales at wholesale" and "wholesale sales" include any transfer for a valuable consideration made in the course of trade or conduct of the seller's business, of title to tangible personal property to the purchaser for purposes of resale or further processing or manufacturing, and include any transfer of such property where title is retained by the seller as security for the payment of the purchase price.
100.201(1)(f)1.1. "Wholesaler" means every person making sales of selected dairy products at wholesale within this state, unless otherwise excepted; provided, that in the case of a person making both sales at retail and sales at wholesale such term shall apply only to the wholesale portion of such business.
100.201(1)(f)2.
2. For the purpose of this section any subsidiary or affiliate corporation, limited liability company, cooperative, or unincorporated cooperative association, and any officer, director, partner, member or manager of a corporation, cooperative, unincorporated cooperative association, partnership or limited liability company which is a wholesaler of selected dairy products, is deemed to be a wholesaler of selected dairy products.
100.201(1m)
(1m) Applicability. This section is applicable to consignment sales and a consignor shall be deemed to be a wholesaler and a consignee to be a retailer for the purposes of this section.
100.201(2)
(2) Prohibitions. Each of the practices described in this subsection is declared to be an unfair trade practice. It is unlawful for any person to be engaged in such practices. No wholesaler shall:
100.201(2)(a)1.1. Give or extend discounts or rebates, directly or indirectly, to retailers or other wholesalers on selected dairy products or give or extend to such purchasers any services connected with the delivery, handling or stocking of such products except in accordance with published price lists. A wholesaler may sell selected dairy products at a price different from or with services less than or additional to those in said published price list in order to meet a bona fide offer by a competitor to a particular retailer or wholesaler, but such discount, rebate or service shall not be given until the wholesaler first makes a written record of the date of such competitive offer, the terms thereof, the name of the retailer or wholesaler to whom made and the name of the competitor by whom made. Such record shall be available within this state for inspection and copying by any retailer or wholesaler upon the retailer's or wholesaler's written request therefor. It is the duty of every wholesaler under this subsection to prepare and publish as hereinafter provided current price lists giving the prices of all selected dairy products sold by the wholesaler at wholesale, directly or indirectly, to retailers or other wholesalers, including all discounts, rebates and services connected with the delivery, handling or stocking of such products, giving the effective dates of such prices, and giving the amount paid or anything of value given or granted by the wholesaler for such sales made through a broker as commission, brokerage, allowance or other compensation. Such price lists shall be available within this state for inspection and copying by any retailer or wholesaler upon the retailer's or wholesaler's written request therefor.
100.201(2)(a)2.
2. Every wholesaler shall file with the department the address of the wholesaler's principal business office in this state, if any. If a wholesaler has such a principal business address in this state written request for any record or price list required to be made available under this subsection shall be sent to such business office and the information requested shall be made available there. A wholesaler having no principal business office within this state shall file with the department or a designated agent approved by the department such current records or price lists required to be made available under this subsection. Such current records or price lists shall be available for inspection and copying by any retailer or wholesaler upon the retailer's or wholesaler's written request therefor. The failure or refusal of any wholesaler to make available for inspection and copying any record or price list required to be made available under this subsection within 24 hours after a request has been received or to file with the department current records or price lists as required shall be prima facie evidence of a violation of this subsection.
100.201(2)(a)3.
3. In case of the failure or refusal of any wholesaler to make available or file any record or price list as required by this paragraph, any court of record of competent jurisdiction shall, upon a showing of such failure or refusal, and upon notice, order said wholesaler to give to the retailer or wholesaler so requesting, within a specified time, an inspection thereof, with permission to make a copy therefrom, or to file such information with the department.
100.201(2)(b)
(b) Discriminate in price, directly or indirectly, between different purchasers of selected dairy products of like grade and quality where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. Proof made at any proceeding under this paragraph that there has been discrimination in price shall be prima facie evidence of the truth of such charges. The burden of rebutting such prima facie evidence by a showing of justification shall be upon the person charged with the violation. Nothing in this paragraph shall prevent any person charged with a violation of this paragraph from rebutting such prima facie evidence by showing that the person's lower price was made in good faith to meet an equally low price of a competitor. Nothing in this paragraph shall be construed to apply to the submission of bids to or sales to the United States, the state, any municipality as defined in
s. 345.05 (1) (c), or any religious, charitable or educational organization or institution. Nothing in this paragraph shall prevent:
100.201(2)(b)1.
1. Price differentials which merely allow for differences in the cost of manufacture, sale or delivery resulting from the differing methods or quantities in which such selected dairy products are sold or delivered to such purchasers.
