100.20 Annotation Discussing illegal chain distribution schemes. State v. Fortune in Motion, Inc., 214 Wis. 2d 148, 570 N.W.2d 875 (Ct. App. 1997), 96-2002.

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, 2001 WI 107, 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 the tenant’s 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, Inc., 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 the Department of Agriculture, Trade and Consumer Protection 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 A tenant who opts to enforce a lease containing a prohibited attorney’s fees provision pursuant to the holding in Dawson I, 2003 WI App 3, may sever the provision and enforce the remaining legally valid lease terms. Dawson v. Goldammer, 2006 WI App 158, 295 Wis. 2d 728, 722 N.W.2d 106, 04-2507.

100.20 Annotation Wisconsin Administrative Code ch. ATCP 110, entitled Home Improvement Practices (HIPA), was adopted under authority of this section. Violations are governed by the discovery rule and the six-year statute of limitations under s. 893.93 (1) (b) [now s. 893.93 (1m) (b)]. Sub. (5) authorizes the doubling of an entire damage award, even if a HIPA violation is combined with additional wrongdoing that contributes to the loss in question. A corporate employee may be personally liable for acts in violation of HIPA made on behalf of the corporate entity that employs the employee. Stuart v. Weisflog’s Showroom Gallery, Inc., 2008 WI 22, 308 Wis. 2d 103, 746 N.W.2d 762, 05-0886.

100.20 Annotation Under sub. (5), a person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages. Using the common understanding of the term “because of,” the “pecuniary loss” is clearly the amount suffered to be paid as a result of the violation of the order. When a general order promulgated under sub. (2) prohibits the retention or receipt of the customer’s money, the consumer suffers a pecuniary loss under sub. (5) in the amount that was wrongfully retained or received. Kaskin v. John Lynch Chevrolet-Pontiac Sales, Inc., 2009 WI App 65, 318 Wis. 2d 802, 767 N.W.2d 394, 08-1199.

100.20 Annotation An attorney fee award under sub. (5) is mandatory on successful claims. Boelter v. Tschantz, 2010 WI App 18, 323 Wis. 2d 208, 779 N.W.2d 467, 09-1011.

100.20 Annotation A reasonably prudent landlord would be able to understand, by reviewing the relevant statutes and administrative code provisions that, upon withholding some or all of a tenant’s security deposit, the landlord may be held criminally liable for failing to provide a tenant with a statement of withholdings. A landlord has sufficient notice that failure to comply with the requirements under s. ATCP 134.06 (4), Wis. Adm. Code, could result in a violation of this section as an unfair business or trade practice and, therefore, could be criminally prosecuted under s. 100.26 (3). The statutory scheme is not void for vagueness and comports with due process in this regard. State v. Lasecki, 2020 WI App 36, 392 Wis. 2d 807, 946 N.W.2d 137, 18-2340.

100.20 Annotation A tenant’s ability to collect double damages in a civil lawsuit under sub. (5) does not mean that a circuit court can order a landlord to pay a tenant double the tenant’s pecuniary loss as restitution in a criminal case under s. 973.20. A primary purpose of restitution is not to punish the defendant, but to compensate the victim for actual loss. In compensating the victim, the goal is to make the victim whole again. In this case, the effect of the court’s decision to award as restitution the double damages permitted by sub. (5) was either to punish the landlord or to compensate the tenants for a nonpecuniary injury in violation of s. 973.20. State v. Lasecki, 2020 WI App 36, 392 Wis. 2d 807, 946 N.W.2d 137, 18-2340.

100.20 Annotation Allegations that a Department of Agriculture 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 a three-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 this section except for violations of a Department of Agriculture, Trade and Consumer Protection order. Emergency One, Inc. v. Waterous Co., 23 F. Supp. 2d 959 (1998). But see Castle v. Kroger Co., 634 F. Supp. 3d 539 (2022).

100.20 Annotation Protection for Consumers Against Unfair and Deceptive Business. Jeffries. 57 MLR 559 (1974).

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 (1999).

100.20 Annotation Navigating Wisconsin’s Consumer Protection System. Greene. Wis. Law. Sept. 2017.

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) (b)

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) (c)

100.201(1)(c)1. 1. “Selected dairy products” means: