134.90(6)(a)(a) Except as provided in
par. (b), this section displaces conflicting tort law, restitutionary law and any other law of this state providing a civil remedy for misappropriation of a trade secret.
134.90(6)(b)
(b) This section does not affect any of the following:
134.90(6)(b)1.
1. Any contractual remedy, whether or not based upon misappropriation of a trade secret.
134.90(6)(b)2.
2. Any civil remedy not based upon misappropriation of a trade secret.
134.90(6)(b)3.
3. Any criminal remedy, whether or not based upon misappropriation of a trade secret.
134.90(7)
(7) Uniformity of application and construction. This section shall be applied and construed to make uniform the law relating to misappropriation of trade secrets among states enacting substantially identical laws.
134.90 History
History: 1985 a. 236.
134.90 Note
NOTE: 1985 Wis. Act 236, which created this section, contains extensive notes describing this section and other sections affected by Act 236.
134.90 Annotation
For a general discussion of this provision and its application, see: Minuteman, Inc. v. Alexander,
147 Wis. 2d 842,
434 N.W.2d 773 (1989).
134.90 Annotation
A party asserting a trade secret need not spell out details that would destroy what the party seeks to protect, but the party must include with some specificity the nature of the trade secret that is more than a generalized allegation that there is a trade secret. ECT International, Inc. v. Zwerlein,
228 Wis. 2d 343,
597 N.W.2d 479 (Ct. App. 1999),
98-2041.
134.90 Annotation
By limiting the period in which an employee agrees not to divulge trade secrets, an employer manifests its intent that there is no need to maintain the secrecy after the specified period. ECT International, Inc. v. Zwerlein,
228 Wis. 2d 343,
597 N.W.2d 479 (Ct. App. 1999),
98-2041.
134.90 Annotation
Under sub. (4), "actual loss caused by the violation" may include losses that result when a misappropriator uses a trade secret unsuccessfully and produces and sells a defective product that causes the plaintiff's business to suffer. World Wide Prosthetic Supply, Inc. v. Mikulsky, 2002 WI 26,
251 Wis. 2d 45,
640 N.W.2d 764,
00-1751.
134.90 Annotation
Subs. (6) (a) and (b) 2. together do the following: 1) replace all pre-existing definitions of trade secret and remedies for tort claims dependent solely on the existence of a specific class of information statutorily defined as trade secrets; and 2) leave available all other types of civil actions that do not depend on information that meets the statutory definition of a trade secret. Therefore, any civil tort claim not grounded in a trade secret, as defined in the statute, remains available. Burbank Grease Services, LLC v. Sokolowski, 2006 WI 103,
294 Wis. 2d 274,
717 N.W.2d 781,
04-0468.
134.90 Annotation
Although a court may grant injunctive relief against a person who misappropriated a trade secret, the injunction should only be for a period reasonable to eliminate commercial advantage that the person who misappropriated the secret would otherwise derive from the violation. Once the defendant would have discovered the trade secret without the misappropriation, any lost profits from that time forward are not caused by the defendant's wrongful act. Minnesota Mining and Manufacturing Company v. Pribyl,
259 F.3d 587 (2001).
134.90 Annotation
Nondisclosure agreements under sub. (6) between suppliers and users of intellectual property are not subject to rules that govern noncompete agreements between employers and employees. A much greater scope of restraint is allowed in contracts between vendors and vendees than between employers and employees. IDX Systems Corp. v. Epic Systems Corp.
285 F.3d 581 (2002).
134.90 Annotation
An independent contractor presumptively owns his or her work product. In the absence of an agreement, non-exclusivity is the norm. The law of trade secrets follows the same approach to ownership. Wisconsin does not require an express, written contract of confidentiality. An independent contractor does not acquire any rights in his or client's trade-secret data just because he or she used those data in the performance of his or her duties. Breach of an implicit promise to hold information for the client's sole benefit in turn violates sub. (2) (a). Hicklin Engineering, L.C. v. Bartell,
439 F.3d 346 (2006).
134.90 Annotation
Revisions to the law of trade secrets. Whitesel and Sklansky. WBB Aug. 1986.
134.93
134.93
Payment of commissions to independent sales representatives. 134.93(1)(a)
(a) "Commission" means compensation accruing to an independent sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales made by the independent sales representative or as a percentage of the dollar amount of profits generated by the independent sales representative.
134.93(1)(b)
(b) "Independent sales representative" means a person, other than an insurance agent or broker, who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission. "Independent sales representative" does not include any of the following:
134.93(1)(b)1.
1. A person who places orders or purchases products for the person's own account for resale.
134.93(1)(b)2.
2. A person who is an employee of the principal and whose wages must be paid as required under
s. 109.03.
134.93(1)(c)
(c) "Principal" means a sole proprietorship, partnership, joint venture, corporation or other business entity, whether or not having a permanent or fixed place of business in this state, that does all of the following:
134.93(1)(c)1.
1. Manufactures, produces, imports or distributes a product for wholesale.
134.93(1)(c)2.
2. Contracts with an independent sales representative to solicit orders for the product.
134.93(1)(c)3.
3. Compensates the independent sales representative, in whole or in part, by commission.
134.93(2)(a)(a) Subject to
pars. (b) and
(c), a commission becomes due as provided in the contract between the principal and the independent sales representative.
134.93(2)(b)
(b) If there is no written contract between the principal and the independent sales representative, or if the written contract does not provide for when a commission becomes due, or if the written contract is ambiguous or unclear as to when a commission becomes due, a commission becomes due according to the past practice used by the principal and the independent sales representative.
134.93(2)(c)
(c) If it cannot be determined under
par. (a) or
(b) when a commission becomes due, a commission becomes due according to the custom and usage prevalent in this state for the particular industry of the principal and independent sales representative.
134.93(3)
(3) Notice of termination or change in contract. Unless otherwise provided in a written contract between a principal and an independent sales representative, a principal shall provide an independent sales representative with at least 90 days' prior written notice of any termination, cancellation, nonrenewal or substantial change in the competitive circumstances of the contract between the principal and the independent sales representative.
134.93(4)
(4) Commissions due; payment on termination of contract. A principal shall pay an independent sales representative all commissions that are due to the independent sales representative at the time of termination, cancellation or nonrenewal of the contract between the principal and the independent sales representative as required under
sub. (2).
134.93(5)
(5) Civil liability. Any principal that violates
sub. (2) by failing to pay a commission due to an independent sales representative as required under
sub. (2) is liable to the independent sales representative for the amount of the commission due and for exemplary damages of not more than 200% of the amount of the commissions due. In addition, the principal shall pay to the independent sales representative, notwithstanding the limitations specified in
s. 799.25 or
814.04, all actual costs, including reasonable actual attorney fees, incurred by the independent sales representative in bringing an action, obtaining a judgment and collecting on a judgment under this subsection.
134.93 History
History: 1997 a. 71.
134.93 Annotation
"Person" in this section is subject to the definition in s. 990.01 (26), which includes not only natural persons, but also partnerships, associations, and bodies corporate and politic. Industry to Industry, Inc. v. Hillsman Modular Molding, Inc. 2002 WI 51,
252 Wis. 2d 544,
644 N.W.2d 236,
00-2180.
134.95
134.95
Violations against elderly or disabled persons. 134.95(1)(a)
(a) "Disabled person" means a person who has an impairment of a physical, mental or emotional nature that substantially limits at least one major life activity.
134.95(1)(b)
(b) "Elderly person" means a person who is at least 62 years of age.
134.95(1)(c)
(c) "Major life activity" means self-care, walking, seeing, hearing, speaking, breathing, learning, performing manual tasks or being able to be gainfully employed.
134.95(2)
(2) Supplemental forfeiture. If a fine or a forfeiture is imposed on a person for a violation under
s. 100.171,
100.173,
100.174,
100.175,
100.177,
134.71,
134.72,
134.73, or
134.87 or
ch. 136 or a rule promulgated under these sections or that chapter, the person shall be subject to a supplemental forfeiture not to exceed $10,000 for that violation if the conduct by the defendant, for which the fine or forfeiture was imposed, was perpetrated against an elderly person or disabled person and if any of the factors under
s. 100.264 (2) (a),
(b), or
(c) is present.
134.96
134.96
Use of lodging establishments. 134.96(2)
(2) Any person who procures lodging in a lodging establishment and permits or fails to take action to prevent any of the following activities from occurring in the lodging establishment is subject to the penalties provided in
sub. (5):
134.96(2)(a)
(a) Consumption of an alcohol beverage by any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age.
134.96(2)(b)
(b) Illegal use of a controlled substance or controlled substance analog.
134.96(3)
(3) An owner or employee of a lodging establishment may deny lodging to an adult if the owner or employee reasonably believes that consumption of an alcohol beverage by an underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age, or illegal use of a controlled substance or controlled substance analog, may occur in the area of the lodging establishment procured.
134.96(4)
(4) An owner or employee of a lodging establishment may require a cash deposit or use of a credit card at the time of application for lodging.
134.96(5)
(5) A person who violates
sub. (2) or a local ordinance which strictly conforms to
sub. (2) shall forfeit:
134.96(5)(a)
(a) Not more than $500 if the person has not committed a previous violation within 12 months of the violation; or
134.96(5)(b)
(b) Not less than $200 nor more than $500 if the person has committed a previous violation within 12 months of the violation.
134.96 History
History: 1989 a. 94;
1991 a. 295;
1995 a. 27,
448;
1999 a. 82;
2005 a. 155 s.
41; Stats. 2005 s. 134.96.
134.97
134.97
Disposal of records containing personal information. 134.97(1)(am)
(am) "Dispose" does not include a sale of a record or the transfer of a record for value.
134.97(1)(b)
(b) "Financial institution" means any bank, savings bank, savings and loan association or credit union that is authorized to do business under state or federal laws relating to financial institutions, any issuer of a credit card or any investment company.
134.97(1)(d)
(d) "Medical business" means any organization or enterprise operated for profit or not for profit, including a sole proprietorship, partnership, firm, business trust, joint venture, syndicate, corporation, limited liability company or association, that possesses information, other than personnel records, relating to a person's physical or mental health, medical history or medical treatment.
134.97(1)(e)
(e) "Personal information" means any of the following:
134.97(1)(e)1.
1. Personally identifiable data about an individual's medical condition, if the data are not generally considered to be public knowledge.
134.97(1)(e)2.
2. Personally identifiable data that contain an individual's account or customer number, account balance, balance owing, credit balance or credit limit, if the data relate to an individual's account or transaction with a financial institution.
134.97(1)(e)3.
3. Personally identifiable data provided by an individual to a financial institution upon opening an account or applying for a loan or credit.
134.97(1)(e)4.
4. Personally identifiable data about an individual's federal, state or local tax returns.
134.97(1)(f)
(f) "Personally identifiable" means capable of being associated with a particular individual through one or more identifiers or other information or circumstances.
134.97(1)(g)
(g) "Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics.
134.97(1)(h)
(h) "Tax preparation business" means any organization or enterprise operated for profit, including a sole proprietorship, partnership, firm, business trust, joint venture, syndicate, corporation, limited liability company or association, that for a fee prepares an individual's federal, state or local tax returns or counsels an individual regarding the individual's federal, state or local tax returns.
134.97(2)
(2) Disposal of records containing personal information. A financial institution, medical business or tax preparation business may not dispose of a record containing personal information unless the financial institution, medical business, tax preparation business or other person under contract with the financial institution, medical business or tax preparation business does any of the following:
134.97(2)(a)
(a) Shreds the record before the disposal of the record.
134.97(2)(b)
(b) Erases the personal information contained in the record before the disposal of the record.
134.97(2)(c)
(c) Modifies the record to make the personal information unreadable before the disposal of the record.
134.97(2)(d)
(d) Takes actions that it reasonably believes will ensure that no unauthorized person will have access to the personal information contained in the record for the period between the record's disposal and the record's destruction.
134.97(3)
(3) Civil liability; disposal and use. 134.97(3)(a)(a) A financial institution, medical business or tax preparation business is liable to a person whose personal information is disposed of in violation of
sub. (2) for the amount of damages resulting from the violation.
134.97(3)(b)
(b) Any person who, for any purpose, uses personal information contained in a record that was disposed of by a financial institution, medical business or tax preparation business is liable to an individual who is the subject of the information and to the financial institution, medical business or tax preparation business that disposed of the record for the amount of damages resulting from the person's use of the information. This paragraph does not apply to a person who uses personal information with the authorization or consent of the individual who is the subject of the information.
134.97(4)(a)(a) A financial institution, medical business or tax preparation business that violates
sub. (2) may be required to forfeit not more than $1,000. Acts arising out of the same incident or occurrence shall be a single violation.
134.97(4)(b)
(b) Any person who possesses a record that was disposed of by a financial institution, medical business or tax preparation business and who intends to use, for any purpose, personal information contained in the record may be fined not more than $1,000 or imprisoned for not more than 90 days or both. This paragraph does not apply to a person who possesses a record with the authorization or consent of the individual whose personal information is contained in the record.
134.97 History
History: 1999 a. 9;
2005 a. 155 s.
52; Stats. 2005 s. 134.97.
134.97 Annotation
Disposing Medical, Financial Records. Franklin. Wis.Law. Dec. 1999.
