Vol. 81, No. 10, October 2008
Protecting Consumers in the Modern Age: Wisconsin's Deceptive Trade Practices Act
Wisconsin's Deceptive Trade Practices Act prohibits untrue, deceptive, or misleading representations in the sale of goods and services to the public. The Wisconsin Supreme Court recently has decided several important issues arising out of the Act's application in the ever-changing business and consumer world.
by Mark R. Hinkston
n 1913, the Wisconsin Legislature enacted the precursor to what is today known as the Deceptive Trade Practices Act (DTPA or the Act), set forth at section 100.18 of the Wisconsin Statutes.1 At the time of the law's enactment, print was the primary marketing media. Radio was still unavailable to most people and television had yet to be invented. The Internet, television infomercials, telemarketers, and cellular phones were likely unimaginable. The ensuing century brought exponential growth and technological complexity, spawning countless new products and ways to market them. Today's vastly different, and far more complex, consumer landscape makes the DTPA more valuable than ever in consumer protection.
The Act's primary proviso - a 225-word sentence - appears in section 100.18(1). It generally provides that no person or entity intending to sell, distribute, increase the consumption of, or in any way2 dispose of any real estate, merchandise, securities, employment, or service or intending to induce the public to enter into any contract relating thereto, may make any untrue, deceptive, or misleading advertisements, announcements, statements, or representations in conjunction with such transaction.
With the dramatic transformation of technology and marketing, the DTPA has been applied to new contexts, necessitating modern-day judicial interpretations of the Act's prima facie elements. Over the past few years the Wisconsin Supreme Court has had the opportunity to address, for example, who is a member of the public under the Act, the type of statements considered deceptive, and the concept of reliance. This article explores the history of the Act, the Act's components, and recent developments in its application and interpretation.
Purpose. Entitled "Fraudulent representations," section 100.18 is a multi-section statute "intended to protect the residents of Wisconsin from any untrue, deceptive or misleading representations made to promote the sale of a product."3 It is "broad in scope, affecting numerous entities, products, services, and means of communication."4 It "was enacted to address the shortcomings of common law protections for consumers" and to protect against both overt and implicit deception.5 Its general purpose "is to prevent certain activities deemed harmful to citizens' economic and social well-being," even though the damages from such illegal activities may not be easy to quantify.6
While today the Act is most commonly referred to as Wisconsin's Deceptive Trade Practices Act, it is colloquially referred to by several other names, such as the Wisconsin consumer fraud statute,7 Wisconsin's statutory misrepresentation law,8 the deceptive advertising statute,9 and Wisconsin's false advertising statute.10 The Act is sometimes interpreted by resort to cases involving similar federal laws,11 such as the Federal Trade Commission Act, which makes unlawful unfair or deceptive acts or practices in commerce.12
In addition to prohibiting untrue, deceptive, or misleading advertisements, announcements, statements, or representations in transactions with the public, the Act also addresses prohibited conduct in certain specific contexts. For example, it prohibits deceptive combination-sale13 and "closing-out sale" advertisements,14 prescribes standards for motor fuel price disclosure,15 and prohibits "bait and switch" advertising16 and deceptive pricing.17
DATCP Enforcement. The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) is granted authority to enforce the DTPA.18 The DATCP and the Wisconsin Department of Justice have authority to initiate a circuit court action to enjoin violations, and the court may order restitution.19 While there are no criminal penalties for violating section 100.18(1), civil forfeitures may be imposed.20
Private Cause of Action. Before 1970, parties had no private remedy under the DTPA. In that year, legislation was enacted to allow plaintiffs to sue in circuit court for money damages for DTPA violations.21 A plaintiff is entitled to recover for pecuniary losses, costs, and reasonable attorney fees.22 A person suffering pecuniary loss because of a violation of an injunction may recover double damages, costs, and reasonable attorney fees.23 An action must be commenced within three years after the occurrence of the alleged unlawful act or practice,24 not within three years of discovery.25
Scope. When originally enacted, the DTPA applied just to print "advertisements" in newspapers, circulars, pamphlets, and posters and not to verbal misrepresentations.26 Over the years, the legislature has expanded its reach "to afford consumers new protections to keep pace with increasingly sophisticated methods of disseminating information."27 For example, in 1945, the legislature added radio, television, and magazines to the list of media in the Act "to reflect the changes which had taken place in marketing methods."28
As a result of subsequent amendments, today the Act applies to representations "in a newspaper, magazine or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or television station, or in any other way similar or dissimilar to the foregoing."29 In other words, the Act now "prohibits deceptive, misleading, or untrue statements of any kind to the public made in a commercial setting, no matter how made."30
Despite the reference to traditional forms of advertising, section 100.18 provides a remedy for more than mere "false advertising." The Act is not limited to media advertising; it also applies to oral representations made in private conversations to prospective purchasers of products,31 such as part of a face-to-face sales promotion.32 The statement need not be made to a large audience because the DTPA covers fraudulent representations made to just one person.33
Expanding Contexts. Plaintiffs have asserted DTPA claims in a variety of settings and contexts. For example, section 100.18 provides a claim to purchasers of residential and commercial real estate for sellers' fraudulent representations.34 Plaintiffs also have premised DTPA claims on statements made via media that are not specifically referenced in the Act, such as Web sites.35 Claims also have been asserted against municipalities36 and state agencies.37 Consumers, with varying degrees of success, have brought class actions premised on alleged DTPA violations arising out of the sale of motorcycles,38 motor vehicles,39 printer cartridges,40 laser eye surgery,41 and securities.42
Mark R. Hinkston, Creighton 1988 cum laude, practices with Dye, Foley, Krohn & Shannon S.C., Racine.
The DTPA does not just apply to claims of consumers who are deceived by advertising for consumer products or services. Commercial entities also may assert claims under the Act.43 For example, commercial plaintiffs have asserted DTPA claims in situations involving a business's purchase of equipment or machinery from another business,44 a business entering into a contractual relationship to sell its products,45 and a business's purchase of commercial real estate.46 Other examples include cases in which an investor asserted a DTPA claim based on allegations that a holding company falsely represented that it would merge with a target company47 and in which a business alleged that a competitor's fraudulent representations regarding the business's product caused it to lose customers.48
Nonapplicability. The DTPA does not apply to every business and consumer transaction involving the public. For example, it is not applicable to the insurance business49 or to deceptive practices regarding the sale of food.50 It also does not apply to licensed real estate brokers or salespersons unless they have "directly made, published, disseminated, circulated or placed before the public an assertion, representation or statement of fact with the knowledge that the assertion, representation or statement of fact is untrue, deceptive or misleading."51
Elements. The DTPA "serves a remedial purpose, going further than the common law in providing a cause of action to consumers who have been deceived or mislead."52 Thus, while some courts have likened a section 100.18 claim to a fraud cause of action sounding in tort,53 section 100.18 is not a remedy for common law misrepresentation claims.54 Instead, it affords a distinct statutory cause of action.55
There are three elements in a cause of action under the DTPA: 1) The defendant made a representation to the public with the intent to induce an obligation. 2) The representation was untrue, deceptive or misleading. 3) The representation caused the plaintiff a pecuniary loss.56 Several recent appellate court decisions have helped to further interpret and define these elements by shedding light on the parameters of the public, considering the nature of puffery, and clarifying the concept of reliance.
The Public: Focus on "Particular Relationship"
To state a claim under the DTPA, the plaintiff must be considered a member of the public for the purpose of the subject transaction. Although "[p]otentially, any person or entity is a member of the public," Wisconsin courts have declined to hold that the term public includes everyone.57
The DTPA does not specifically define the public, likely because when the law was initially passed in 1913, it applied only to false print advertising. The first judicial interpretation of the public under section 100.18 came more than 60 years later, in 1974. In State v. Automatic Merchandisers of America Inc.,58 the state brought an action against vending machine sellers engaged in a marketing scheme to sell vending machines at excessive prices. Under the scheme, the defendants would contact at their homes persons who had responded to classified ads. In support of a claim under section 100.18, it was alleged that some of the promotional materials and oral representations presented to these persons at their homes were untrue, deceptive, or misleading.
The defendants contended that the statute did not apply because the transactions involved private statements to prospective purchasers and not dissemination to the public. In addressing the issue, the supreme court recognized the difficulty of defining public and the necessity of looking at each case's facts and circumstances. It noted that the number of people involved is not controlling and that even only one person could constitute the public. The important factor is whether there is a particular relationship between the defendant and the prospective purchaser that would distinguish the prospective purchaser from the public that the legislature intended to protect.59
The court did not specify when a relationship would be considered particular enough so that a plaintiff would not be part of the public under the Act. It held that there was "no peculiar relation between the defendants and the prospective purchasers which would distinguish the prospective purchasers from `the public' which the legislature intended to protect. These people simply responded to the defendants' notices in the classified sections."60
Almost 30 years later, the Wisconsin Court of Appeals further elaborated on the particular-relationship test. In Kailin v. Armstrong,61 commercial real estate purchasers asserted a section 100.18 claim. The court noted that once the purchase contract was entered into, the purchasers were no longer the public under the statute because at that point, they had a particular relationship with the seller - that of a contracting party. Because "[s]tatements made by the seller after a person has made a purchase or entered into a contract to purchase logically do not cause the person to make the purchase or enter into the contract," the court concluded that the plaintiffs' section 100.18 claim "was limited to representations that were made prior to the acceptance of the offer to purchase and that otherwise meet the requirements of the statute."62
In 2007, in K & S Tool & Die Corp. v. Perfection Machinery Sales Inc.,63 the Wisconsin Supreme Court further elaborated on the definition of the public. K & S, a tool and die maker, contacted the defendant, a seller of used industrial machines, to obtain a punch press with certain specifications. The defendant sold K & S a press that did not meet the specifications. K & S asserted numerous claims, including one under the DTPA. The jury found that K & S was a member of the public and that the defendant had violated the DTPA, causing damages of $306,000.
On appeal, in determining whether K & S was a member of the public, the supreme court applied the particular-relationship test used in Automatic Merchandisers and Kailin. It noted that the substance of a representation made to induce an obligation has more significance in the determination than does the form of the initial contact. Also, it hearkened back to Kailin to stress that a plaintiff is no longer a member of the public once he or she has entered into a contract to purchase the offered item.
The court concluded that sufficient evidence was presented to support the jury's conclusion that K & S was a member of the public. Because the defendant touted "the country's largest inventory of used late model presses, fabricating and metalworking equipment," and in view of its status as an industry leader, the jury could reasonably infer that K & S contacting the defendant for a used press would not be sufficient to create a particular relationship. Additionally, the jury could have determined that a prior equipment purchase was too isolated to establish a particular relationship. The jury also could reasonably infer that the defendant's agreement to make K & S aware of any suitable presses did not rise to the level of the defendant and K & S having a particular relationship if the defendant always tried to help customers in that same way.
The court concluded that there is no bright-line test to determine whether parties have a particular relationship. The existence of a particular relationship "will depend upon its own peculiar facts and circumstances and presents a question of fact."64 The supreme court stated that a plaintiff remains a member of the public unless a particular relationship exists between a plaintiff and a defendant.
The standard that a plaintiff is a member of the public unless a particular relationship exists between it and the defendant suggests that defendants will need to prove the existence of a particular relationship to avoid liability under the Act. In some cases, the determination will be fairly straightforward because, in view of the appellate court pronouncements and test, contracting parties65 and those with a significant business relationship66 generally will not qualify. In other cases, it will be up to the trier of fact to determine whether a plaintiff "cannot be expected to be educated enough about the other party to protect their own interests" and thus is within the public, or is "in a better position than most to protect themselves in the context of that relationship" as a result of a "long-term, established" relationship and thus outside the public and not in need of the DTPA's protections.67
Nature of Statements: Exceptions for Silence and Puffery
Under section 100.18(1), a plaintiff must prove that a subject representation "was untrue, deceptive or misleading." Proving that a statement is untrue is usually easier than proving that it is deceptive or misleading because the latter terms often do not have a clear definition. A statement is "untrue if it is false, erroneous, or does not state or represent things as they are" and is "deceptive or misleading if it causes a reader or listener to believe something other than what is in fact true or leads to a wrong belief."69 Even if a statement is literally true, it can be considered deceptive if it conveys a false meaning.70
In Tietsworth v. Harley-Davidson Inc.,71 the Wisconsin Supreme Court shed light on two situations in which statements will not give rise to a claim under section 100.18, namely when a defendant is accused of nondisclosure or when a defendant is accused of exaggeration as to a product's attributes (more commonly known as puffery). Owners and lessees of Harley motorcycles brought a class action, asserting among other claims a DTPA claim arising out of Harley-Davidson's advertising of its TC-88 motorcycle. The plaintiffs alleged that Harley-Davidson failed to disclose an engine defect. The court held that the plaintiffs did not state a claim under section 100.18 because a nondisclosure (or silence - "an omission to speak") does not constitute an "assertion, representation or statement of fact" under the Act. It concluded that the "DTPA does not purport to impose a duty to disclose, but, rather, prohibits only affirmative assertions, representations, or statements of fact that are false, deceptive, or misleading."72
The plaintiffs also premised their claims on allegations that Harley advertised the motorcycle engine as "premium" quality, "a masterpiece," and "[e]ighty-eight cubic inches filled to the brim with torque and ready to take you thundering down the road." The court held that these statements did not support a DTPA claim because they were mere commercial puffery. According to the court, puffery is "the exaggerations reasonably to be expected of a seller as to the degree of quality of his product, the truth or falsity of which cannot be precisely determined."73
In so holding, the court hearkened back to its 1988 decision in State v. American TV & Appliance of Madison Inc.,74 where it held that "[a] general statement that one's products are best is not actionable as a misrepresentation of fact" and concluded that the characterization of a product as "the best" or "the finest" and a sale as a "clearance" or "closeout" were examples of puffery, which, it noted, was "long considered an acceptable advertising technique."75 The Tietsworth court noted that "commercial puffs" are not actionable misrepresentations because they are "not capable of being substantiated or refuted," and a factfinder would have as "little hope" of determining whether the TC-88 was indeed "a masterpiece" as it would determining whether it was "the best." Furthermore, the statement that the TC-88 is "filled to the brim with torque and ready to take you thundering down the road" was too unspecific to allow it to be proved or refuted.76 In a dissent, Justice Abrahamson noted that "[t]he distinction between a statement of fact, a statement of opinion, and puffery is often faint, uncertain, and not easily drawn."77
Reasonable Reliance: Not A Prima Facie Element
The plaintiff also must prove that he or she sustained a pecuniary loss as a result of the untrue, deceptive, or misleading representation. The test is whether the plaintiff would have acted in the absence of the representation.78 While the representation need not be the sole motivation to proceed with the transaction, it must have been a material inducement (in other words, a significant factor contributing to the plaintiff's decision).79
In DTPA cases, a plaintiff's actions in response to representations are material in determining whether he or she has relied on the statements (or in other words, whether there has been a material inducement). Recently, in Novell v. Migliaccio,80 the Wisconsin Supreme Court addressed whether a plaintiff was required to prove that his reliance was reasonable. The plaintiff asserted a section 100.18 misrepresentation claim arising out of the purchase of a house with a leaky basement. The circuit court dismissed the claim on summary judgment, agreeing with the defendant sellers that the plaintiff was required to prove "reasonable reliance" on the defendants' allegedly fraudulent misrepresentations. It determined as a matter of law that because he did not do so he was not justified in relying on the sellers' misrepresentations.
The court of appeals reversed, concluding that reasonable reliance is not a prima facie element of a DTPA claim. The supreme court affirmed, concluding that based on the language and purpose of section 100.18 and case law interpreting the section, a plaintiff asserting a section 100.18 claim is not required to prove reasonable reliance. However, it noted that the reasonableness of a plaintiff's reliance is relevant in considering whether the representation materially induced (caused) the plaintiff to sustain a loss.
The supreme court concluded that the circuit court erred in granting summary judgment because there remained genuine issues of material fact as to whether the plaintiff's reliance on the representation was unreasonable (in other words, whether the representation here was a material inducement causing the plaintiff's loss). The evidence conflicted as to whether the plaintiff's reliance was unreasonable. A home inspection report indicating problems was contradicted with the sellers' statements that the basement walls had not been painted, that the cracks and bow in the walls had not moved, and that there had been no water in the basement during the nine years the sellers owned the house. The court noted that "[t]his is not a case where it is beyond any reasonable doubt that the homebuyer simply refused to take the definitive advice of a home inspector."81 The court also noted that "there are cases in which a circuit court may determine as a matter of law that a plaintiff's belief of a defendant's representation is unreasonable, and as a result the plaintiff's reliance is therefore also unreasonable. In such cases the circuit court may determine that the representation did not materially induce (cause) the plaintiff's decision to act as a matter of law. This, however, is not such a case."82
In noting that there are circumstances in which a circuit court may determine that a representation did not materially induce the plaintiff's decision to act and that the plaintiff would have acted in the absence of the representation, the supreme court discussed an example originally given by the court of appeals. It noted that a circuit court may determine that a plaintiff's reliance on a claim that a Superman cloak could "actually permit someone to fly" is unreasonable.83 On that basis, the court may further determine that such claim did not, as a matter of law, materially induce a person to purchase the cloak. Thus, the representation could not cause the buyer's pecuniary loss as a matter of law.
Of course, the vast majority of situations will involve claims that are far less clear than the "Superman cloak" scenario. As with the member-of-the-public analysis, because each scenario is different, it is impossible to devise a bright-line test to address every circumstance in assessing reliance. In the interim, in view of the court's confirmation that reliance is an aspect of the third element - whether a representation caused the plaintiff's pecuniary loss - and that evidence as to reasonableness may be presented on the causation issue, the pattern jury instruction (2418) for an unfair trade practice claim under section 100.18(1) should be supplemented to expressly reference that the defendant may present evidence of unreasonableness.
The fact that reasonable reliance is not a prima facie element for a section 100.18 claim is in contrast with common law misrepresentation claims, which mandate it.84 DTPA claims differ from common law misrepresentation claims in two other ways. First, in Kailin v. Armstrong,85 the court of appeals held that the economic loss doctrine (ELD) does not apply to bar a claim under section 100.18. According to the ELD, a purchaser of a product cannot recover on a tort theory for damages that are solely economic.
Recently, in Below v. Norton,86 the Wisconsin Supreme Court held that the ELD bars common law claims for intentional misrepresentation in residential real estate transactions. While it did not specifically address the issue of the ELD in the context of the DTPA, the court did note that the ELD's bar on the common law intentional misrepresentation claim would not leave the plaintiff without a remedy because a home purchaser "can be assured that applying the ELD still leaves statutory and contractual remedies available where misrepresentation has occurred."87 The court noted that the section 100.18 claim was still viable because it had been remanded to the circuit court.
Another difference is that with a common law intentional misrepresentation claim, a plaintiff must prove intent to deceive.88 Conversely, under the DTPA, a plaintiff need only show that the defendant had an intent to sell or distribute the particular product or intended to induce the purchase or use of the product. The statement need not be made with knowledge of its falsity or with an intent to defraud or deceive.89
Because a person who brings a DTPA claim need not prove intent to deceive or reasonable reliance and need not worry about the economic loss doctrine, the DTPA is an intriguing alternative to common law misrepresentation for fighting unfair trade practices. Continued technological growth and advancement in marketing techniques, both of which expand the potential contexts for deceptive trade practices and the number of people who will need the DTPA's protections, will present many new contexts ripe for its application. The absence of bright-line tests to determine whether a person is part of the public or reasonably relied on a representation and the inherent uncertainty in determining whether a statement is puffery, make it likely that further appellate court interpretation will indeed be necessary to flesh out the parameters of the various facets under the DTPA as the Act is applied in the future.