Section 100.20. Methods of competition and trade practices.

 

(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.

(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.

(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 .

(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.

(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.

(2)  

(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.

(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.

(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.

(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 .

(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.

(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.

1975 c. 308 ; 1985 a. 284 ; 1993 a. 158 , 496 ; 1997 a. 229 ; 2001 a. 16 , 102 ; 2003 a. 326 ; 2005 a. 25 , 45 . Cross-reference: See s. 136.001 (2) concerning future service plans. Cross-reference: See also chs. ATCP 102 , 109 , 113 , 114 , 117 , 121 , 122 , 123 , 124 , 125 , 127 , 128 , 131 , 132 , 134 , 136 , and 139 , Wis. adm. code. 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). 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). 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). 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). 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). 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). 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). 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 . Illegal chain distribution schemes are discussed. State v. Fortune in Motion, Inc. 214 Wis. 2d 148 , 570 N.W.2d 875 (Ct. App. 1997), 96-2002 . 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 . 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 . 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 . 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 . 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 . 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 . 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 . 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 . 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 , 295 Wis. 2d 728 , 722 N.W.2d 106 , 04-2507 . 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 6-year statute of limitations under s. 893.93 (1) (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 . 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 . 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 . 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). Federal law did not preclude the enforcement of this section. Time Warner Cable v. Doyle, 847 F. Supp 635 (1994). 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). Protection for consumers against unfair and deceptive business. Jeffries, 57 MLR 559. State Deceptive Trade Practices and Consumer Protection Acts: Should Wisconsin Lawyers be Susceptible to Liability Under Section 100.20? Anderson. 83 MLR 497.