133.03 AnnotationThe public interest and welfare of the people of Wisconsin are substantially affected, as required in Olstad, if prices of a product are fixed or supplies thereof are restricted as the result of an illegal combination or conspiracy. Meyers v. Bayer AG, 2006 WI App 102, 293 Wis. 2d 770, 718 N.W.2d 251, 03-2840.

133.03 AnnotationThe test for substantial effects under Olstad requires that the appellants allege: 1) specific effects on Wisconsin commerce, not merely effects that are nationwide; and 2) that these effects on Wisconsin are more than a general nationwide effect on price. Szukalski v. Crompton Corporation, 2006 WI App 195, 296 Wis. 2d 728, 726 N.W. 2d 304, 03-3132.

133.03 AnnotationWhen the circumstances involve interstate commerce and the challenged conduct occurred outside of Wisconsin, a complaint under ch. 133 is sufficient if it alleges price fixing as a result of the formation of a combination or conspiracy that substantially affected the people of Wisconsin and had impacts in this state. Plaintiffs are not required to assert allegations of disproportionate impacts on Wisconsin. An allegation that thousands of Wisconsin consumers paid supracompetitive prices as a result of monopolistic conduct by an interstate seller states a basis for recovery. Meyers v. Bayer AG, 2007 WI 99, 303 Wis. 2d 295, 735 N.W.2d 448, 03-2840.

133.03 AnnotationChapter 125 contemplates and expressly directs that regulation is to supersede competition in the retail sale of alcohol beverages. The regulatory scheme indicates a legislative intent to make state antitrust law not applicable by authorizing contrary or inconsistent conduct by granting municipalities broad statutory authority to prescribe or orchestrate anticompetitive regulation in the sale and consumption of alcohol if that regulation serves an important public interest. Private parties are eligible for antitrust immunity when they act in concert, in an anticompetitive manner, in direct response to pressure bordering on compulsion from a municipality. Eichenseer v. Madison-Dane County Tavern League, Inc. 2008 WI 38, 308 Wis. 2d 684, 748 N.W.2d 154, 05-1063.

133.03 AnnotationThe state antitrust statute was intended to be a reenactment of the federal Sherman Antitrust Act and is generally controlled by federal court decisions. Lerma v. Univision Communications, Inc. 52 F. Supp. 2d 1011 (1999).

133.04(1)(1) No person may discriminate, either directly or indirectly, in price between different purchasers of commodities of like grade and quality, for the purpose or intent of injuring or destroying competition in any level of competition or any person engaged therein.

133.04(3)(3) As an alternative to the criminal penalty for violation of this section, the department of justice or district attorney may bring an action for a civil forfeiture. In an action for a civil forfeiture under this subsection a person who violates this section may be required to forfeit not more than $25,000.

133.04 AnnotationCivil violations of this section must meet the ordinary civil burden of proof. Carlson & Erickson v. Lampert Yards, 190 Wis. 2d 650, 529 N.W.2d 905 (1995).

133.04 AnnotationPromotional price cutting and section 2 (a) of the Robinson-Patman Act. Gifford. 1976 WLR 1045.

133.05(1)(1) The secret payment or allowance of rebates, refunds, commissions or unearned discounts, whether in the form of money or otherwise, or the secret extension to certain purchasers of special services or privileges not extended to all purchasers purchasing upon like terms and conditions, such payment, allowance or extension injuring or tending to injure a competitor or destroying or tending to destroy competition, is an unfair trade practice and is prohibited.

133.05(3)(3) Any person knowingly violating this section may be fined not more than $25,000 or imprisoned in the county jail for not more than one year or both.

133.05(4)(4) As an alternative to the criminal penalty for violation of this section, the department of justice or district attorney may bring an action for a civil forfeiture. In an action for a civil forfeiture under this subsection a person who violates this section may be required to forfeit not more than $25,000.

133.05 AnnotationCompetitive injury is a required element under this section, but intent to injure is not. OB-GYN Assoc. of Neenah v. Landig, 129 Wis. 2d 362, 384 N.W.2d 719 (Ct. App. 1986).

133.05 AnnotationA violation of sub. (1) occurs when a discount, both secret and unearned, tends to injure or injures competition. “Earned” discount is defined. Jauquet Lumber v. Kolbe & Kolbe Millwork, 164 Wis. 2d 689, 476 N.W.2d 305 (Ct. App. 1991).

133.05 AnnotationThis section is not unconstitutionally vague. Knowledge is an element of a violation of sub. (2). Carlson & Erickson v. Lampert Yards, 183 Wis. 2d 220, 515 N.W.2d 305 (Ct. App. 1994).

133.05 AnnotationCivil violations of this section must meet the ordinary civil burden of proof. Carlson & Erickson v. Lampert Yards, 190 Wis. 2d 650, 529 N.W.2d 905 (1995).

133.05 Annotation“Rebates,” “refunds,” and “discounts” in sub. (1) mean essentially the same thing, a reduction or credit that is tied to the price of the good or service being purchased by the recipient of the reduction or credit. To be a “discount” a payment or allowance must be a reduction from the price that would be paid if the “discount” were not given. Tele-Port, Inc. v. Ameritech Mobile Communications, Inc. 2001 WI App 261, 248 Wis. 2d 846, 637 N.W.2d 782, 00-2627.

133.05 AnnotationCivil violations of this section must be proved by clear, satisfactory and convincing evidence.

133.06(1)(1) No corporation with its principal place of business in this state may elect or appoint any person as a director or permit any person to serve as a director, if: