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    Wisconsin Lawyer
    May 01, 2006

    Protecting Business Interests With Covenants Not to Compete

    A buyer of a business often will want to prevent the seller from competing with the buyer, and employers often want to prevent employees from using resources and information gained from the employer in competing against the employer. Read about the characteristics of each form of covenant, and learn how Wisconsin law affects the enforceability of such agreements.

    James McNeilly JrDarla Krzoska

    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 5, May 2006

    Protecting Business Interests With Covenants Not to Compete

    A buyer of a business often will want to prevent the seller from competing with the buyer, and employers often want to prevent employees from using resources and information gained from the employer in competing against the employer. Read about the characteristics of each form of covenant in both the sale of a business context and in the employment context, and learn how Wisconsin law affects the enforceability of such agreements.

    business men struggling


    by James W. McNeilly Jr., & Darla A Krzoska

    Many Wisconsin attorneys encounter covenants not to compete, most often in one of two contexts: employment relationships and sales of businesses. In the business sale context the noncompetition agreement is directed at preventing the seller from competing with the buyer. In the employment context, the agreement is directed at preventing employees from competing with their employers using resources and information provided by the employer or gained from the employment.

    Covenants not to compete usually take one of three forms:

    1) "traditional noncompetes," which prohibit the involvement with a competing business, for a specified period of time, within a defined geographic area;

    2) "nonsolicitation" agreements, which prohibit the solicitation of a business's customers; and

    3) "confidentiality agreements," which prohibit the use of information a business wants to keep private.

    Each of these types of agreements often is referred to generically as a "noncompete," however, this article uses the phrase "covenant not to compete" when referring generically to all of these agreements, regardless of the type.

    This article explores the characteristics of each form of covenant not to compete and how Wisconsin law affects the enforceability of such agreements. This article is merely an overview; lawyers should read the case law in depth to obtain a complete understanding of the subject.

    James W. McNeilly Jr.James W. McNeilly Jr., U.W. 1981, is managing director of Lakelaw Wisconsin, with an office in La Crosse and one to be located in Kenosha. He focuses on business law, including real estate, creditor-debtor, and estate planning.

    Darla Krzoska

     Darla A. Krzoska, U.W. 1998, is with Bosshard Parke Ltd., La Crosse, where she focuses on business law, real estate, estate planning, and probate.

    The Employment Context

    Employee covenants not to compete are governed by Wis. Stat. section 103.465. The statute provides:

    "A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal. Any covenant, described in this subsection, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint." (Emphasis added.)

    Soon after the enactment of section 103.465, the Wisconsin Supreme Court, in Lakeside Oil Co. v. Slutsky,1 set forth a five-part test for the enforceability of a covenant not to compete in the employment context.

    1) Is it necessary for the employer's protection?

    2) Does it provide for a reasonable time period?

    3) Does it cover a reasonable territory?

    4) Is it unreasonable as to the employee?

    5) Is it unreasonable as to the general public?

    The following cases provide guidance on the application of each of these

    factors. In Wausau Medical Center S.C. v. Asplund,2 the Wisconsin Court of Appeals stated that the following

    factors will make it more likely that a covenant will be found to be necessary for the former employer's protection: 1) the business is based on customer contacts; 2) the employee has access to confidential information; 3) the employee's reputation was established through work with the former employer; and 4) the employee obtained unique skills through the work with the former employer.

    Many cases have indicated that two years or less would be a reasonable duration for a covenant.3 Similarly, many cases have determined that the geographic limitation should be limited to the area of the employer's business.4

    In Rollins Burdick Hunter of Wisconsin Inc. v. Hamilton,5 the Wisconsin Supreme Court stated: "[a]s to whether the [covenant] is unreasonable to the employee, we do not see how such a determination could be made without considering the extent to which the [covenant] actually inhibits the employee's ability to pursue a livelihood in that enterprise, as well as the particular skills, abilities, and experience of the employee sought to be restrained."

    In determining whether the covenant is unreasonable as to the general public, the court will consider factors such as whether enforcing the covenant would stifle competition or create a monopoly, and whether there are customers of the employee who want to deal only with that individual and not the former employer.6

    Even if a covenant not to compete passes the five element test outlined in Lakeside and in Wis. Stat. section 103.456, the employee also must be given adequate consideration in exchange for signing the covenant.7 The provision of new employment to a potential employee would, of course, constitute "consideration." However, when an employer requests a current employee to sign a covenant not to compete, there is a question of whether the mere continuation of employment constitutes consideration or whether some additional consideration is necessary. In NBZ Inc. v. Pilarski,8 the court of appeals suggested (but did not definitively state) that additional consideration might be necessary. While some states find that continued employment is not adequate consideration for a covenant not to compete,9 other states have found that continued employment can be adequate consideration under certain circumstances.10

    It is important to note that unlike other states, in Wisconsin an employee may be terminated for refusing to sign a covenant not to compete. In Tatge v. Chambers & Owen Inc.,11 an employee was terminated for failing to sign a covenant and sued the employer for wrongful discharge, alleging that the covenant was not enforceable. The Wisconsin Supreme Court refused to create a cause of action for wrongful discharge, stating that the time of enforcement of the covenant, not the time of its execution, is the proper time to consider the validity of a covenant.

    Employers outside Wisconsin sometimes include a choice of law provision that applies the laws of a state other than Wisconsin in a covenant not to compete to be used with Wisconsin employees. In Beilfuss v. Huffy Corp.,12 the Wisconsin Court of Appeals held that public policy concerns about the covenant provisions trumped the choice of law provision, and the court required the application of Wisconsin law.

    Wis. Stat. section 103.465 has also been applied in situations other than the traditional employer-employee relationship. The statute has been applied to a covenant involving an independent contractor and has been used to void a provision in a profit sharing and retirement plan and to strike down an agreement between two parties who did not have an employer and employee relationship.

    In Pollack,13 the Wisconsin Court of Appeals, after applying the rules set forth in Wis. Stat. section 103.465 and cases decided thereunder, upheld a covenant involving an independent contractor.

    In Holsen v. M&I Bank,14 the operative provision was part of a profit sharing and retirement plan and stated that an employee "who intends to engage directly or indirectly" in a competing business shall receive only 50 percent of his or her vested benefits. The Wisconsin Supreme Court held that the provision violated Wis. Stat. section 103.465, because it contained no time or area limitations as the statute required.

    In Heyde Co. v. Dove Healthcare LLC,15 the supreme court held that two employers cannot agree to restrict employment of each other's employees through a no-hire provision, without the consent of the employees. The court held that such a provision is an unreasonable restraint of trade, a violation of Wis. Stat. section 103.465, and a violation of public policy. However, the court stated that "[the plaintiff could have] adequately protect[ed] its interest through a reasonable restrictive covenant in accordance with Wis. Stat. § 103.465."16

    Traditional Noncompetes

    The first covenants not to compete typically were "traditional noncompetes," as referred to in this article. Wis. Stat. section 103.465 and the cases decided soon after its enactment in 1957 concern such agreements. Basically, these covenants prohibit the employee from competing in a business similar to that of the employer's, for a specified time, and within a specified geographic area. Therefore, traditional noncompetes are best used for businesses with local, well-defined customer bases.

    Most often, the issues in cases involving traditional covenants not to compete revolve around whether the employer has a protectible interest and whether the covenant is reasonable as to territory. For example, in Lakeside Oil Co., the court found that the employer had a protectible interest because the employee had been hired to develop customers for the employer. The court found that the territorial provision, which prohibited the employee from competing in Milwaukee County, was reasonable, because 75 percent of the employer's business was derived from that county.

    In Wausau Medical Center, the employee signed a traditional noncompete. The court found that at the inception of employment the employer had a reasonable expectation of a protectible interest, because the employment would provide the employee with a client and referral base and would enhance the employee's reputation. However, the court refused to enforce the covenant, because the employee had only worked for 3.5 months and had not received many referrals from the employer. Therefore the employer had not yet acquired a protectible interest when the employment was terminated.

    In Pollack, the plaintiff (Pollack), an osteopathic physician, signed a traditional noncompete with a clinic. The agreement prohibited him from engaging in the type of business (pain relief) conducted by that clinic within a 20-mile radius of Racine. The court found that the clinic had "expended considerable time, effort and advertising to generate new patients, most of whom were referred to Pollack," and that the clinic contributed to Pollack's expertise in pain management.17 The court further found it reasonable to believe that: many of the clinic's patients would have followed Pollack to a new location; Pollack had full access to the clinic's extensive patient lists; and "the protection of a business's stock of customers is a legitimate interest for the employer."18 Based on those facts, the court found that the clinic had a protectible interest. Also, while the "bulk" of the clinic's patients lived within five to seven miles of the clinic, the court found that the advertising "generated numerous patients from within a twenty-mile radius of Racine," making the territorial limit reasonable.19

    Confidentiality Agreements

    Confidentiality agreements prohibit the employee from disclosing or using certain information provided by the employer. Wis. Stat. section 103.465 applies to confidentiality agreements.20 In addition to meeting the requirements of the five-part Slutsky test, the drafter of a confidentiality agreement also must define what information is to be kept "confidential."

    For purposes of this discussion, information that employers attempt to keep confidential may be divided into two categories: 1) information that qualifies as a trade secret under Wis. Stat. section 134.90, Wisconsin's Uniform Trade Secrets Act, and 2) information that does not so qualify.

    The Uniform Trade Secrets Act, in contrast to Wis. Stat. section 103.465, protects trade secrets without any time or geographic limits, presumably because trade secrets may be used anywhere in the world to compete with a former employer, and oftentimes will not lose their character as trade secrets, even over an extended period.

    However, it is important to note that information that does not qualify as a trade secret sometimes also may be used anywhere in the world by a former employee to compete with a former employer, even after the standard two-year limit of a covenant not to compete has expired.

    Some forms of confidentiality agreements attempt to use the same language to protect both the trade secret information and the information that does not qualify as a trade secret. Such an agreement, if it complies with the requirements of Wis. Stat. section 103.465 by including time and geographic limits, fails to fully protect the employer from unfair use of the trade secret information. If the agreement omits time and geographic limits so as to fully protect the trade secret information, the agreement potentially is unenforceable under Wis. Stat. section 103.465.

    Other confidentiality agreements treat the trade secret information separately from the nontrade secret information. The prohibition on the use of trade secrets in these agreements contains no time or geographic limitations. The prohibition on the use of the nontrade secret information contains time and geographic limitations. Although this form of agreement protects against the misuse of the trade secret information, it fails to protect the employer against the detrimental misuse of the nontrade secret information anywhere in the world or after the time limit expires even when such use would harm the employer.

    It is important to note that in IDX Systems Corp. v Epic Systems Corp.,21 the Seventh Circuit Court of Appeals stated that Wisconsin law does not require time or geographic limits for confidentiality agreements that involve intellectual property, even though intellectual property does not rise to the level of a trade secret. Although IDX Systems did not involve an employer/employee relationship, the court implied that requiring such limits on the prohibition of the use of such property in an employer/employee relationship also would not make sense, stating: "it is impossible to understand how a non-disclosure agreement could place `geographical' limits on the dissemination of intellectual property comparable to those restricting the locale where a salesman may try to drum up customers for a new employer," and "knowledge does not respect borders."22

    Nonsolicitation Agreements

    Nonsolicitation agreements typically prohibit the employee from contacting or servicing the former employer's customers for a set period of time after the termination of employment.

    Chuck Wagon Catering Inc. v. Raduege23 is one of the early cases involving the nonsolicitation of customers. In Chuck Wagon, the nonsolicitation clause prohibited a lessee from soliciting customers along the lessee's route for one year after termination of the lease. The Wisconsin Supreme Court, after applying the Wis. Stat. section 103.465 requirements to the nonsolicitation covenant, upheld the covenant even though it contained no geographical limitation per se. The court stated "[in] Wisconsin a covenant is considered reasonable as to territory if, like this covenant, it is limited to the route or customers defendant actually services."24

    Similarly, in Farm Credit Services of North Central Wisconsin ACA v. Wysocki,25 the Wisconsin Supreme Court found that even without such a geographic restriction, a covenant that prohibited an employee from performing accounting and tax services for customers the employee serviced in the one year before termination of employment was not invalid on its face, because the covenant was narrowly tailored to a customer list.

    However, limiting the covenant to a customer list is not always enough. In Mutual Service Casualty Insurance Co. v. Brass,26 the Wisconsin Court of Appeals held that a covenant prohibiting an employee from contacting any of the employer's customers, whether known or unknown, anywhere in the world, was unreasonable. Additionally, in Equity Enterprises Inc. v. Milosch,27 the court of appeals refused to enforce a nonsolicitation clause that prohibited the employee from doing business with any customer of the employer with whom the employee had done business at any time during his employment.

    The courts in the cases following Chuck Wagon examine the reasonableness of a particular nonsolicitation agreement by defining the customers the former employee is being prohibited from contacting in terms of a geographical or territorial limitation. As more fully explained in the article "Wisconsin Courts Struggle with Geography in Nonsolicitation Agreements,"28 "discussions of territorial scope are generally irrelevant in assessing the reasonableness of a nonsolicitation agreement. All nonsolicitation agreements contain an implicit limit to their geographic scope." As the article authors make clear, with nonsolicitation agreements, viewing customers in terms of a geographic limit is at best, unnecessary, and at worst, unworkable. The language in the cases after Chuck Wagon has misled some practitioners into believing that to be enforceable, a nonsolicitation agreement must contain a geographical limitation that is separate from the list of customers the employee is prohibited from soliciting.

    No matter how the limitation is defined, in terms of territory or otherwise, it is imperative to narrowly define exactly which customers the employee is prohibited from soliciting after employment is terminated.

    Enforcing Employee Covenants Not to Compete

    In addition to the stringent requirements set forth in Wis. Stat. section 103.465 and the cases decided thereunder, the supreme court in Farm Credit Services29 stated: "Consistent with encouraging the free movement of employees, we have applied the following canons of construction to covenants not to compete: (1) such covenants are prima facie suspect; (2) they must withstand close scrutiny to pass legal muster as being reasonable; (3) they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires; and (4) they are to be construed in favor of the employee." The employer bears the burden of proof as to the covenant's enforceability.30

    Businesses that hire employees who have signed a previous employer's covenant not to compete can be sued for intentional interference with contract. The following are essential elements of intentional interference with contract in this context: 1) The covenant not to compete was a valid contract between the employee and the former employer. 2) The new employer interfered with the covenant not to compete. 3) The interference was intentional. 4) The interference caused damage to the former employer. 5) The interference was not justified.31

    Sometimes an employee will sign a covenant not to compete without reading it, relying instead on the employer's or manager's misrepresentations as to its true nature. In Bank of Sun Prairie v. Esser,32 the Wisconsin Supreme Court held that a party who signs a contract without first reading it is not barred from claiming fraud in the inducement. The elements of a fraud-in-the-inducement as a defense to an action to enforce a covenant not to compete are: 1) the person presenting the document for signature misrepresented the document's substance and significance; 2) the employee relied on the misrepresentation; and 3) the reliance was reasonable.33

    Another defense to an action to enforce a covenant not to compete is that the employer's actions constituted a breach of the contract. For example, an employer might give an employee a raise concurrent with requiring the employee to sign a covenant and then later reduce the employee's compensation. If the employer's breach of the employment contract is material, the employee may successfully defend against an action to enforce the covenant not to compete.34

    If the court finds a covenant to be valid, the court may award actual damages. Many covenants provide for liquidated damages, which, if not penal in nature, may be awarded.35 If by breaching the covenant the employee violates the Uniform Trade Secrets Act, the court also may award damages for actual losses and unjust enrichment.36

    The court also may enjoin the employee from violating the covenant. Injunctions are considered a reasonable and necessary means to enforce the covenant.37 In recognition of the fact that the employee may have the ability to damage the employer's business during the pendency of a case, the employer often moves for a temporary injunction. The court will grant the injunction if the employer can show that it has a reasonable probability of success on the merits, has no adequate remedy at law, and will suffer irreparable harm if an injunction is not issued.38 The temporary injunction hearing often becomes the real "day of reckoning." If the employer prevails at this hearing, even if the covenant is later held to be unenforceable, the employee is enjoined from competing until the trial, which often is not held until several months later. As a result, the employee usually cannot work for the new employer and may have financial difficulty proceeding with the case. The fear of this result often convinces employees not to compete with former employers.

    The Sale of Business Context

    Buyers of businesses almost invariably desire to prevent the seller from competing with the business the buyer is purchasing. As a result, most sale-of-business agreements provide for the seller to execute a traditional noncompete covenant, although the buyer could require the seller to execute one of the other types of covenants not to compete. Many sales involve businesses that have local clientele (for example, accounting offices and taverns). The traditional noncompete is well suited to protecting the buyer's interests with these types of businesses, because it prohibits the seller from competing within the area customarily served by the business being sold for a period of time long enough for the buyer to establish a relationship with the seller's former customers.

    Although traditional noncompete covenants used in the business context very often are worded in a manner similar to those involved in employment relationships, Wis. Stat. section 103.465 is not applicable to the sale of a business. In Reiman Associates Inc. v. R/A Advertising Inc., the Wisconsin Court of Appeals set forth the criteria by which a covenant not to compete would be judged:

    "If a covenant not to compete is unreasonable, it is unenforceable. Whether such a covenant is reasonable is a matter of law to be determined from the writing, and is determined `with reference to the particular case.' In determining reasonableness, the court must examine whether the covenant is (1) reasonably necessary for the protection of the beneficiary; (2) reasonable as between the parties, and particularly as to the party restrained, considering time, space, purpose, and scope; and (3) not specially injurious to the public.

    "Covenants not to compete incidental to the sale of a business are not subject to exacting scrutiny.... Additionally, covenants incidental to the sale of a business benefit from full application of the rule of partial enforcement: even an unreasonable restraint will be enforced to the extent necessary and reasonable under the circumstances."39

    Determining whether a covenant not to compete pertains to an employer-employee relationship or to a business sale context is crucial to determining the covenant's validity. In Corporate Express Office Products Inc. v. Brown,40 the U.S. District Court for the Western District of Wisconsin applied different standards to a covenant not to compete between the parties to the sale of a business than it applied to a covenant not to compete, between the same parties, that was contained in an employment agreement, even though the language of both covenants was essentially the same. The court held that the covenant not to compete incident to employment was unenforceable but then partially enforced the agreement incident to the sale.


    Wis. Stat. section 103.465 and the case law decided under it impose severe restrictions on the terms of covenants not to compete used in employment contexts. The statute and cases set forth stringent requirements that the covenant must meet to be enforceable. If the covenant is unreasonable even in part, the statute and the case law require the court to void the entire covenant; the court is powerless to enforce those parts of the covenant that are reasonable or to amend the covenant so that it is reasonable.

    The case law on traditional noncompetes has developed in a way that makes it relatively easy to draft such covenants. A traditional noncompete, however, does not fully protect an employer whose customers do not come from a well-defined local area, much like the customers of many Internet-based businesses. Unfortunately, the statute appears to have been drafted with traditional noncompetes in mind, and thus the statute does not fit confidentiality agreements or nonsolicitation agreements nearly as well. As a result, the cases deciding the validity of confidentiality and nonsolicitation agreements often are confusing. Finally, even though confidentiality and nonsolicitation agreements appear to be less of a burden on the employee compared to a traditional noncompete (because they do not prohibit the employee from opening a business in the same area as the employer, and thus do not require the employee to move), Wisconsin courts have been just as strict in their analysis of confidentiality and nonsolicitation agreements as in their analysis of traditional noncompetes. It is significantly more difficult to draft enforceable confidentiality and nonsolicitation agreements due to the combination of a governing statute that is not directed at these agreements, confusing case law interpreting those agreements, and stringent court review.

    In contrast, the restrictions on covenants involved in the sale of a business are significantly less stringent, and the courts will almost always enforce such covenants as drafted. Even if the covenant is unreasonable as drafted, the court has the power to enforce the covenant "to the extent necessary and reasonable under the circumstances."41


    1Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157, 98 N.W.2d 415 (1959).

    2Wausau Med. Ctr. v. Asplund, 182 Wis. 2d 274, 283, 514 N.W.2d 34 (Ct. App. 1994).

    3E.g. Pollack v. Calimag, 157 Wis. 2d 222, 238, 458 N.W.2d 591 (Ct. App. 1990); Fields Found. Ltd. v. Christensen, 103 Wis. 2d 465, 480, 309 N.W.2d 125 (Ct. App. 1981).

    4Lakeside, 8 Wis. 2d at 165-66.

    5Rollins Burdick Hunter of Wis. Inc. v. Hamilton, 101 Wis. 2d 460, 470, 304 N.W.2d 752 (1972).

    6 Lakeside, 8 Wis. 2d at 166-67.

    7NBZ Inc. v. Pilarski, 185 Wis. 2d 827, 835-37, 520 N.W.2d 93 (Ct. App. 1994).


    9See, e.g., Insurance Agents Inc. v. Abel, 338 N.W.2d 531 (Iowa Ct. App. 1983); National Recruiters Inc. v. Cashman, 323 N.W.2d 736 (Minn. 1982); Sandborn Mfg. Co. v. Currie, 500 N.W.2d 161 (Minn. Ct. App. 1993).

    10See, e.g., Curtis 100 v. Suess, 24 F.3d 941 (7th Cir. 1994) (applying Illinois law); Abel v. Fox, 654 N.E.2d 591 (Ill. App. Ct. 1995); Ackerman v. Kimball Int'l, 634 N.E.2d 778 (Ind. Ct. App. 1994).

    11Tatge v. Chambers & Owen Inc., 219 Wis.2d 99, 579 N.W.2d 217 (1998).

    12Beilfuss v. Huffy Corp., 2004 WI App 118, 274 Wis. 2d 500, 685 N.W.2d 373; see also General Med. Corp. v. Kobs, 179 Wis. 2d 422, 507 N.W.2d 381 (Ct. App. 1993).

    13Pollack, 157 Wis. 2d 222, 458 N.W.2d 591 (Ct. App. 1990).

    14Holsen v. M&I Bank, 52 Wis. 2d 281, 190 N.W.2d 189 (1971).

    15Heyde Cos. v. Dove Healthcare LLC, 2002 WI 131, 258 Wis. 2d 28, 654 N.W.2d 830.

    16Id. ¶ 26.

    17Pollack, 157 Wis. 2d at 237.

    18Id. at 237-38.

    19Id. at 238.

    20Gary Van Zeeland Talent Inc. v. Sandas, 84 Wis. 2d 202, 267 N.W.2d 242 (1978).

    21IDX Sys. Corp. v. Epic Sys. Corp., 285 F.3d 581 (7th Cir. 2002).

    22Id. at 586.

    23Chuck Wagon Catering Inc. v. Raduege, 88 Wis. 2d 740, 277 N.W. 2d 787 (1979).

    24Id. at 754.

    25Farm Credit Servs. of N. Cent. Wis. v. Wysocki, 2001 WI 51, 243 Wis. 2d 305, 627 N.W.2d 444.

    26Mutual Serv. Cas. Ins. Co. v. Brass, 2001 WI App 92, 242 Wis. 2d 733, 625 N.W.2d 648.

    27Equity Enters. Inc. v. Milosch, 2001 WI App 186, 247 Wis. 2d 172, 633 N.W.2d 662.

    28Bradden C. Backer & John J. Kalter, Wisconsin Courts Struggle with Geography in Nonsolicitation Agreements, 75 Wis. Law. 10 (February 2002).

    29Farm Credit Servs., 2001 WI 51, ¶ 9, 243 Wis. 2d 305.

    30Geocaris v. Surgical Consultants Ltd., 100 Wis. 2d 387, 388, 302 N.W.2d 76 (Ct. App. 1981).

    31Charolais Breeding Ranches Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 279 N.W.2d 493 (Ct. App. 1979).

    32Bank of Sun Prairie v. Esser, 155 Wis. 2d 724, 456 N.W.2d 585 (1990).

    33Douglas-Hanson Co. v. BF Goodrich Co., 229 Wis. 2d 132, 598 N.W.2d 262 (Ct. App 1999).

    34Management Computer Servs. Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 557 N.W.2d 67 (1996).

    35Fields Found. Ltd., 103 Wis. 2d at 465.

    36Wis. Stat. § 134.90(4).

    37See Eureka Laundry Co. v. Long, 146 Wis. 205, 131 N.W. 412 (1911); Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157, 98 N.W.2d 415 (1959).

    38Werner v. A.L. Grootemaat & Sons Inc., 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977).

    39Reiman Assocs. Inc. v. R/A Adver. Inc. 102 Wis. 2d 305, 309-10, 306 N.W.2d 292, (Ct. App. 1981).

    40Corporate Express Office Prods. Inc. v. Brown, 2001 WL 34381111 (W.D. Wis. 2001).

    41Reiman, 102 Wis. 2d at 310.

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