Aug. 1, 2011 – Reversing an appeals court ruling, the Wisconsin Supreme Court recently held (5-2) that an antitrust action against a governmental body is not exempt from the notice of claim requirement.
E-Z Roll Off LLC, which is in the business of collecting and hauling commercial and residential waste, sued Oneida County, claiming Oneida County engaged in a conspiracy to restrain trade in violation of Wis. Stat. section 133.03 by giving favorable rates under contract to Waste Management, Inc.
Specifically, the agreement, executed in June of 2003, allowed Oneida County to charge Waste Management a $5.25 fee for each ton of waste Waste Management delivered to the County’s solid waste facility. Other haulers, like E-Z Roll Off, paid $54 to unload waste at the facility.
But section 893.80(1) determines that “no action” can be brought against a governmental body without giving the governmental body written notice of the circumstances of the claim within 120 days of the happening of the event giving rise to the claim.
These provisions provide a governmental body with proper notice to investigate the injury, time to compromise without suit, and time to budget for settlement or litigation.
Oneida County filed a motion for summary judgment, arguing that E-Z Roll Off did not provide it with notice of the claim within the statutory 120-day period.
The circuit court rejected E-Z Roll Off’s argument that its antitrust claims under section 133.03 are exempt from the statutory notice requirement, but the appeals court reversed.
The Town of Burke test
In E-Z Roll Off LLC v. County of Oneida, 2011 WI 71 (July 13, 2011), the Wisconsin Supreme Court reversed the appeals court, concluding that E-Z Roll Off’s antitrust claims are barred by the statutory notice requirements of section 893.80(1).
The supreme court majority – in an opinion written by Justice Michael Gableman – distinguished Gillen v. City of Neenah, 219 Wis.2d 806, 580 N.W.2d 628 (1998), which the appeals court relied upon to conclude that the antitrust action was exempt from section 893.80(1)’s statutory notice requirement.
In Gillen, the appeals court applied a three-factor test articulated in Town of Burke v. City of Madison, 225 Wis. 2d 615, 593 N.W.2d 822 (Ct. App. 1999). Under Town of Burke, the court examines whether there’s a specific statutory scheme that exempts the plaintiff from the notice requirement, whether enforcement of the notice requirement would hinder a legislative preference for prompt resolution, and whether the purposes of the notice requirement statute would be furthered by enforcing it.
Unlike the plaintiffs in Gillen, which sought immediate injunctive relief under section 133.16, E-Z Roll Off seeks declaratory relief and damages under section 133.18, the majority explained. Section 133.18 has a six-year limitations period for violations of the antitrust law.
The majority noted that injunctive relief is designed to prevent immediate injury, but “declaratory relief is not, by its nature, in conflict with providing governmental entities a 120-day period to review a claim.” Thus, the majority ruled that claims for declaratory relief and damages under section 133.18 do not conflict with the general notice requirement of section 893.80.
The majority also concluded that enforcing the 120-day limitations period would not hinder a legislative preference for prompt resolution of the claim under section 133.18(5), which calls for antitrust claims to be “expedited in every way.”
“As the circuit court correctly recognized, applying the notice of claim requirements to antitrust actions brought pursuant to § 133.18 promotes, rather than hinders, the legislature’s preference for expediency in the adjudication of such claims,” Justice Gableman wrote.
Finally, the majority rejected E-Z Roll Off’s argument that barring its claim would thwart the purpose of section 893.80 because that would punish its attempt to settle with Oneida County before filing suit.
“If the notice of claim statute were not applied a § 133.18 antitrust actions, claimants would have six years to file their complaint.” This would not, the majority explained, further the purpose of giving governmental entities greater opportunity to evaluate claims and budget for potential litigation.
120-day period not met
The supreme court majority concluded that E-Z Roll Off did not meet the 120-day limitations period to file a notice of claim with Oneida County, rejecting E-Z Roll Off’s argument that a new cause of action accrued to E-Z Roll Off each time it paid a higher fee than Waste Management.
“If the continuing violations doctrine were to apply, it would be much more difficult for governmental entities to budget for litigation,” Justice Gableman noted.
The majority also rejected E-Z Roll Off’s argument that an exception to the notice requirement applied, noting that E-Z Roll Off could not prove Oneida County did not suffer prejudice from the delay in filing its claim notice. Thus, it upheld the order granting summary judgment in favor of Oneida County.
Justice Patience Roggensack filed a dissenting opinion (joined by Chief Justice Shirley Abrahamson), arguing that E-Z Roll Off’s antitrust claim met the three-part test for an exception to section 893.80(1).
Michele M. Ford of Crivello Carlson S.C., Milwaukee, represented the County of Oneida. James B. Connell of Crooks, Low & Connell S.C., Wausau, represented E-Z Roll Off.