Each year, the U.S. Court of Appeals for the Seventh Circuit and Wisconsin’s two federal district courts issue decisions interpreting Wisconsin statutes and common law or determining how the Wisconsin Supreme Court would rule on as-yet unaddressed questions. Although these federal decisions are not binding on Wisconsin courts, they influence how Wisconsin law develops, including in cases pending in Wisconsin state appellate courts and circuit courts.

This article reviews eight recent federal decisions interpreting and applying Wisconsin statutes and common law in the areas of products liability, defamation, false advertising, civil procedure, insurance law, commercial law, business organizations, and privacy law.

Products Liability – Negligence and Strict Liability

The Seventh Circuit analyzed Wisconsin’s negligence and strict liability law in Burton v. E.I. du Pont de Nemours & Co.¹ Three plaintiffs alleged cognitive injuries resulting from their ingestion, as children, of white lead carbonate from paint in their homes.² The plaintiffs asserted negligence and strict liability claims against former manufacturers of white lead carbonate under Wisconsin’s “risk contribution” theory of liability, which relieved them of the obligation to identify which manufacturer’s product had caused their injuries.³ A jury found three manufacturers liable and awarded substantial damages.⁴ The following discussion highlights the Seventh Circuit’s resolution of two of the issues raised on appeal.

First, one manufacturer challenged the district court’s decision to allow the plaintiffs to proceed to trial on an “ordinary” negligence claim against it – that is, a claim based on an alleged breach of the “general duty of ordinary care” that did not require the plaintiffs to prove that the manufacturer’s product was defective.⁵ The Seventh Circuit reviewed the evolution of Wisconsin products liability law, starting with the Wisconsin Supreme Court’s decision in Dippel v. Sciano in which it adopted the rule of strict liability in Restatement (Second) of Torts § 402A.⁶ The Seventh Circuit observed that negligence and strict liability differ in that negligence generally focuses on a defendant’s conduct while strict liability focuses on the condition of a product.⁷

But in the products liability context, Wisconsin law requires a plaintiff to prove that the product was defective under both negligence and strict liability.⁸ (Wisconsin law recognizes three types of product defects: 1) design defects, 2) manufacturing defects, and 3) defects based on the lack of adequate warnings.)⁹ Because the district court had allowed the plaintiffs to pursue a negligence claim without proof that the manufacturer’s product was defective, the Seventh Circuit granted the manufacturer judgment as a matter of law on this claim.

The other two manufacturers challenged a ruling by the district court concerning the plaintiffs’ strict liability claims, which were predicated on the manufacturers’ alleged failure to provide adequate warnings.¹⁰ In a pretrial ruling, the district court granted summary judgment with respect to the plaintiffs’ negligent-failure-to-warn claim because the “plaintiffs’ caregivers already knew that lead pigment was dangerous and needed no further warning.”¹¹ But the district court allowed the strict liability failure-to-warn claim to go forward based on its determination that the duty to warn in strict liability is owed to “ordinary consumer[s]” who purchased the product, rather than to the plaintiff who is ultimately injured.¹²

Finding no Wisconsin Supreme Court precedent on point, the Seventh Circuit drew on decisions from other courts applying Wisconsin law to conclude that the manufacturer’s duty to warn is the same under negligence and strict liability and runs to the plaintiff (or the plaintiff’s caregivers) under either theory.¹³ Because the district court’s framing of the duty to warn for purposes of strict liability was not consistent with Wisconsin law, the Seventh Circuit granted the manufacturers judgment as a matter of law with respect to this claim.¹⁴

Defamation – Competitor’s Privilege

In Next Technologies Inc. v. Beyond the Office Door LLC, the Seventh Circuit considered the limits of a defamation claim under Wisconsin law in the context of a manufacturer’s published criticisms of a competitor’s product.¹⁵

Next Technologies and Beyond the Office Door compete in the standing-desk market. Beyond the Office Door published reviews of two Next Technologies desks that criticized certain aspects of the desks, such as mismatches in color, lack of a collision-protection feature, and a tendency for lubricant to accumulate as the desks are raised and lowered.¹⁶ Next Technologies sued Beyond the Office Door for defamation under Wisconsin common law, but the district court granted summary judgment to Beyond the Office Door after determining that its statements were protected by the First Amendment.¹⁷

The Seventh Circuit affirmed the district court’s judgment but disagreed with its analysis. Specifically, the court of appeals found no support in Wisconsin law for the implicit assumption in the parties’ arguments and the district court’s decision that a claim of product defamation is governed by the same First Amendment standards that apply when an individual alleges defamation.¹⁸

Finding no Wisconsin authority on point, the Seventh Circuit observed that other states, as reflected in the Restatement (Second) of Torts, have distinguished between 1) personal defamation, 2) corporate defamation, and 3) product defamation by a competitor.¹⁹ With respect to product defamation, Restatement section 649 recognizes that a competitor is conditionally privileged to make “unduly favorable comparison[s] of the quality” of its products with those of a competitor, so long as the comparison does not contain “false assertions of specific unfavorable facts regarding the rival competitor’s things.”²⁰

The Seventh Circuit determined that Beyond the Office Door’s criticisms were covered by the conditional privilege because they were not “false assertions of specific unfavorable facts” but critiques of the sort that competitors regularly use to disparage competing products.²¹ Then it turned to whether the Wisconsin Supreme Court would follow the Restatement’s approach to competitor disparagement. Finding little guidance on point, the Seventh Circuit applied its presumption that states will follow the Restatement absent a contrary indication and concluded that Next Technologies’ claims were barred by the competitors’ privilege.²²

False Statements in Advertising

In Weaver v. Champion Petfoods USA Inc., the Seventh Circuit considered whether statements on packages of dog food violated the prohibition in Wis. Stat. section 100.18 on false, misleading, or deceptive statements in advertising.²³

Weaver purchased dog food manufactured and packaged by Champion at its facilities in Canada and Kentucky.²⁴ He later filed a putative class action alleging that three statements on Champion’s packaging violated section 100.18: 1) Champion’s food was “biologically appropriate”; 2) Champion’s food is made of fresh, local ingredients; and 3) Champion’s food is “never outsourced” but instead is made by Champion at its facilities.²⁵ In affirming the district court’s grant of summary judgment to Champion, the Seventh Circuit applied the standards developed by Wisconsin courts for proving a violation of the statute.

Weaver argued that Champion’s assertion that its food was “biologically appropriate” was misleading because of a risk that the food contained bisphenol A (BPA), a chemical used to make plastics and resins.²⁶ He argued further that Champion misleadingly advertised its dog food as containing fresh, regional ingredients, when in fact some ingredients either were frozen or otherwise not fresh or were sourced far from its manufacturing facilities.²⁷ Finally, Weaver asserted that Champion’s claim that its food was “never outsourced” was misleading because it includes some ingredients obtained from third parties.²⁸ The Seventh Circuit determined that each of these statements was not clearly misleading on its face.²⁹ Thus, to prevail at summary judgment, Weaver had to present evidence, in the form of consumer surveys or market research, from which a reasonable juror could conclude that each assertion was likely to materially mislead a reasonable consumer.³⁰

The Seventh Circuit determined that Weaver had not met his burden with respect to any of the three assertions he challenged. In opposing summary judgment, Weaver had presented only his own testimony explaining why he found each assertion misleading.³¹ Because the statements at issue were not misleading on their face, Weaver’s testimony was not enough for a reasonable juror to conclude that a reasonable consumer would be materially misled by the assertions.³²

Service of Process – Service by Publication

A hit documentary series provided the backdrop for the Eastern District of Wisconsin’s discussion of Wisconsin law concerning service by publication in Colborn v. Netflix Inc.³³

In December 2015, Netflix premiered Making a Murderer, which chronicled legal proceedings involving Steven Avery, who was charged with and convicted of murder after being exonerated of unrelated crimes and released from prison.³⁴ Colborn, who was featured in the documentary in what he believed to be an inaccurate and damaging light, filed a defamation action in Wisconsin state court against Netflix and other defendants in December 2018, near the end of the applicable statute of limitation.³⁵

Colborn did not attempt to serve his initial complaint; instead, less than two weeks before the 90-day window to accomplish service expired, he filed an amended complaint, dropping several defendants but keeping claims against Netflix, two individuals who filmed and produced the series, and their production company in the case.³⁶ After unsuccessfully attempting to serve the filmmakers and the production company’s registered agent personally, Colborn attempted service by publication by filing publication summonses with the court and publishing them in the Los Angeles Times.³⁷ After Netflix removed the case to federal court, the filmmakers and their production company moved to dismiss for lack of proper service.³⁸

Wisconsin Statutes section 801.11(c) permits service by publication if other methods of service cannot be accomplished with “reasonable diligence.” Describing this standard as “highly factual,” the district court determined that Colborn’s efforts to personally serve the filmmakers and the production company showed reasonable diligence.³⁹ Colborn’s process server made multiple attempts to serve the filmmakers at their home and business addresses and had attempted to serve the production company’s registered agent four times at his business address and three times at his home address.⁴⁰ Colborn’s counsel also engaged a second process server and conducted internet research on the filmmakers to determine other potential service locations.⁴¹ The district court determined that these efforts demonstrated reasonable diligence notwithstanding the fact that Colborn did not start his attempts to serve the defendants until less than two weeks of the 90-day service period remained.⁴²

The district court also rejected the defendants’ argument that Colborn had not properly accomplished publication service. Colborn presented evidence showing that a publication summons in the required form had been inserted into the newspaper on four occasions, the first of which occurred before expiration of the 90-day period.⁴³ In addition, Colburn presented proof that he mailed copies of the publication summons and his original and amended complaints to the defendants.⁴⁴ Because Colburn’s evidence demonstrated valid publication service, the district court declined to dismiss the claims against the filmmakers.

Insurance Law – Recovery of Costs of Defense

In Hayes v. Wisconsin & Southern Railroad LLC, the Eastern District of Wisconsin considered whether an insurer can recover costs it paid to defend its insured against a third-party claim through unjust enrichment.⁴⁵

An injured worker sued Wisconsin & Southern, which tendered defense of the suit to Zurich American Insurance Co., one of its insurers.⁴⁶ Zurich agreed to defend the railroad under a reservation of rights and thereafter obtained a ruling from the district court that its policy did not cover the injured worker’s claim.⁴⁷ After Zurich’s attempt to seek a separate judgment to finalize the coverage determination was deemed untimely, Zurich asserted a counterclaim for unjust enrichment against Wisconsin & Southern seeking to recoup the costs it had incurred to defend the railroad in the case.⁴⁸ The railroad moved to dismiss the claim.⁴⁹

To predict whether the Wisconsin Supreme Court would allow an unjust enrichment claim in these circumstances, the district court first looked to Wisconsin case law but found nothing on point.⁵⁰ Surveying treatment of the issue by commentators and courts in other states, the district court found no clear weight of authority in either direction, with outcomes “often heavily fact dependent[.]”⁵¹ The district court also examined several decisions by other Wisconsin federal district courts, including one in which the Western District had rejected an insurer’s attempt to recoup defense costs.⁵² After reviewing these authorities and Wisconsin’s black-letter law on unjust enrichment, the district court concluded that Zurich’s counterclaim should be dismissed for three reasons.

First, the district court cited the principle that unjust enrichment is generally not available when the parties’ dispute centers on their contractual relationship.⁵³ Zurich’s policy did not give it a right to seek reimbursement of defense costs if a claim was determined not to be covered, and Zurich could not use unjust enrichment “to expand the scope of its rights under the policy” to obtain reimbursement of such costs.⁵⁴

Second, the district court concluded that allowing Wisconsin & Southern to retain the benefit of a defense paid for by Zurich was not unjust because Wisconsin law incentivizes insurers to defend claims that might not be covered by imposing significant liability for wrongfully failing to defend an insured.⁵⁵ Thus, an insurer’s decision to do so is not “an accidental overpayment” but rather the result of the insurer’s “cost-benefit determination based on its own interests in light of the consequences” if a no-coverage determination is reversed on appeal.⁵⁶

Finally, the district court stated that allowing recovery through unjust enrichment could discourage insurers from promptly seeking coverage determinations.⁵⁷

Economic Loss Doctrine

In Levendoski v. Associated Milk Producers Inc., the Western District of Wisconsin denied a motion to dismiss negligence claims based on the defendants’ contention that they were barred by the economic loss doctrine.⁵⁸

The plaintiffs operated a dairy that sold milk to Associated Milk Producers Inc. (AMPI), a distributor.⁵⁹ AMPI sent samples of the milk to Eurofins DQCI (Eurofins) to be tested for quality and safety.⁶⁰ After discovering that their dairy herd was infected with mycoplasma, the plaintiffs sued AMPI and Eurofins for negligence in collecting and testing the samples, the results of which had shown no infection.⁶¹ Each defendant moved to dismiss, arguing that the plaintiffs’ claims were barred by the economic loss doctrine, which generally seeks to preserve the distinction between contract and tort law by limiting parties in contractual relationships to contractual remedies to recover economic or commercial losses.⁶²

As to the claim against AMPI, the district court stated that Wisconsin law has recognized an exception to the doctrine when the duty allegedly breached exists independent of the contract.⁶³ The district court found such a duty in the “heavily regulated” relationship between milk producers and distributors, which includes a regulation requiring distributors to collect milk samples and deliver them to the producer or its designated laboratory for testing.⁶⁴ Because AMPI owed this duty to the plaintiffs, and the duty arose “regardless of any contractual relationship between them,” the district court declined to dismiss the claim against AMPI.⁶⁵

The district court then turned to the plaintiffs’ claim against Eurofins, the testing laboratory. Eurofins provided services, rather than a product, and Wisconsin law generally excludes contracts for services from the economic loss doctrine’s reach.⁶⁶ Eurofins argued, however, that its services were provided incidental to the plaintiffs’ sales to AMPI and thus were subject to the doctrine.⁶⁷ The district court found this characterization premature because the plaintiffs’ complaint did not provide facts detailing the nature of the relationship between the defendants.⁶⁸ The court again noted a dairy producer’s right under Wisconsin regulations to designate a testing laboratory and stated that if the plaintiffs had picked Eurofins to test its milk, that service would “appear predominantly, if not wholly, separate from the original sale of milk between plaintiffs and AMPI” and thus would not be barred by the economic loss doctrine.⁶⁹

Piercing the Corporate Veil

Under Wisconsin law, a creditor seeking to pierce the corporate veil to impose personal liability for a corporate debt must prove three things: 1) the owner completely dominated the entity’s finances and operations as to the transaction at issue, depriving the entity of a separate existence or mind; 2) the owner used its control to commit a fraud, breach a duty, or otherwise act unjustly to the creditor’s detriment; and 3) the control and unjust conduct proximately caused injury to the creditor.⁷⁰ The Eastern District of Wisconsin applied this test in Orlando Residence Ltd. v. Alpert.⁷¹

Orlando Residence Ltd. (ORL) docketed a judgment in Wisconsin circuit court and then served an earnings garnishment action on Alpert Holdings LLC, which allegedly had employed one of the judgment debtors.⁷² The circuit court entered a default judgment against Alpert Holdings after it failed to answer the garnishment.⁷³ ORL later filed a collection action, which was stayed when the sole member and manager of Alpert Holdings filed a Chapter 11 bankruptcy petition. ORL filed a claim in the bankruptcy seeking to pierce the corporate veil and impose personal liability for the garnishment judgment on the member.

Following an evidentiary hearing, the bankruptcy court found that ORL had not met its burden of proof.⁷⁴ The district court reviewed the bankruptcy court’s findings and affirmed its decision. Although the evidence showed some dominance by the member, such as the use of company funds to pay personal expenses, the district court focused on the second and third elements of the test.⁷⁵

As to the second element, the district court noted that some of the member’s acts that were inconsistent with the entity’s separate existence occurred before ORL obtained its judgment, which undercut the notion that the member had acted improperly toward ORL. The district court distinguished the case from other Wisconsin cases in which a defendant had violated some duty to the creditor and attempted to hide behind the corporate veil.⁷⁶ ORL’s judgment did not “stem from its relationship” with the member, and there was no evidence that the member was using Alpert Holdings to violate a duty to ORL.⁷⁷

Turning to the third element, the district court reviewed evidence that the member had not capitalized Alpert Holdings when it was formed but had managed to pay its debts and expenses during its existence.⁷⁸ In addition, the district court emphasized that ORL had not shown that its inability to collect its judgment was caused by Alpert Holdings or the member.⁷⁹ Having failed to establish this required causal link, the district court affirmed the bankruptcy court’s dismissal of ORL’s claim.

Right-of-privacy Statute

Section 995.50 of the Wisconsin Statutes recognizes a right of privacy, provides relief for the unauthorized use of a person’s “name, portrait or picture” for advertising or trade purposes, and directs that the right be construed “in accordance with the developing common law of privacy.”⁸⁰ In Walkowicz v. American Girl Brands LLC, the Western District of Wisconsin considered whether allegations were sufficient to state a claim under the statute.⁸¹

American Girl Brands makes a line of dolls for children.⁸² Lucianne Walkowicz, an astronomer who worked on NASA’s mission to explore a constellation containing a star named Vega, alleged that American Girl violated her rights under the federal Lanham Act and Wisconsin’s right-of-privacy statute by manufacturing an astronaut-themed doll named “Luciana Vega” without her consent.⁸³ Walkowicz alleged that a representative of American Girl attended several of her speaking engagements in Wisconsin several years before it began working with NASA to ensure the accuracy of its dolls.⁸⁴ Thereafter, Walkowicz alleged, American Girl registered trademarks for a space-themed doll named “Luciana Vega,” whose hair and clothes were similar to hers.⁸⁵

After determining that Walkowicz’s allegations plausibly stated a claim under the Lanham Act, the district court turned to Wisconsin’s right-of-privacy statute. Given the sparse Wisconsin authority applying the statute, the district court looked to New York law, upon which Wisconsin’s statute was based.⁸⁶ Walkowicz argued that the American Girl doll used her “portrait or picture” because certain aspects of the “Luciana Vega” doll – hair, shoes, and dress – were based on her own appearance.⁸⁷ To evaluate this argument, the district court examined a recent decision from the New York Court of Appeals in which that court stated that a claim for use of one’s “portrait” was viable only if the jury could reasonably conclude “that the challenged image is identified as the plaintiff solely from the image itself[.]”⁸⁸ The district court determined that Walkowicz’s allegations did not meet this standard because the only bodily feature she identified on the doll as being similar to hers was the doll’s hair.⁸⁹

Walkowicz also cited the similarity between her name and the doll’s in arguing that American Girl unlawfully used her name.⁹⁰ The district court disagreed because it was not plausible that the doll’s name would make people obviously think of Walkowicz.⁹¹ The district court also rejected Walkowicz’s argument that the doll’s last name – “Vega,” a star with which Walkowicz was publicly associated – could be considered her “name” under the statute.⁹²

Endnotes

¹ Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791 (7th Cir. 2021). (Author’s note: The author of this article represented one of the defendants in Burton that was not involved in the appeal.)

² Id. at 802.

³ Id.

⁴ Id.

⁵ Id. at 817.

⁶ Id. (citing Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967)).

⁷ Id. at 818.

⁸ Id. at 817-18 (discussing Dippel; Godoy ex rel. Gramling v. E.I. du Pont de Nemours & Co., 2009 WI 78, 319 Wis. 2d 91, 768 N.W.2d 674; and Morden v. Continental AG, 2000 WI 51, 235 Wis. 2d 325, 611 N.W.2d 659).

⁹ Id. at 806 (citing Godoy, 2009 WI 78, ¶ 29, 319 Wis. 2d 91).

¹⁰ Id. at 821.

¹¹ Id. at 808.

¹² Id. at 809.

¹³ Id. at 822-23.

¹⁴ Id. at 823.

¹⁵ Next Techs. Inc. v. Beyond the Office Door LLC, 992 F.3d 589 (7th Cir. 2021).

¹⁶ Id. at 591-92.                                                       

¹⁷ Id. at 590.

¹⁸ Id. at 592.

¹⁹ Id.

²⁰ Id. at 593 (quoting Restatement (Second) of Torts § 649).

²¹ Id. at 593.

²² Id.

²³ Weaver v. Champion Petfoods USA Inc., 3 F.4th 927 (7th Cir. 2021).

²⁴ Id. at 931.

²⁵ Id. at 933. In addition to his claim under Wis. Stat. section 100.18, Weaver also asserted claims for fraud and negligence under Wisconsin common law. Id. at 939-40. The court of appeals affirmed the district court’s grant of summary judgment with respect to the common law claims on the same grounds it affirmed the district court’s ruling on the Wis. Stat. section 100.18 claim.

²⁶ Weaver, 3 F.4th. at 935.                

²⁷ Id. at 936-37.

²⁸ Id. at 938.

²⁹ Id. at 936, 937, 939.

³⁰ Id. at 934-35.

³¹ Id. at 936, 937, 939.

³² Id.

³³ Colborn v. Netflix Inc., __ F. Supp. 3d __, No. 19-cv-0484-bhl, 2021 WL 2138767 (E.D. Wis. May 26, 2021).

³⁴ Id. at *1.

³⁵ Id.

³⁶ Id. at *2. Under Wisconsin law, a case is “commenced” for statute-of-limitation purposes when the summons and complaint are filed with the court, if service of an authenticated copy of the summons and a copy of the complaint is completed within 90 days after filing. Id. at *4 (citingWis. Stat. § 801.02(1)).

³⁷ Id. at *2-3.

³⁸ Id. at *3.

³⁹ Id. at *4 (citing Haston v. Austin, 47 Wis. 2d 67, 176 N.W.2d 309 (1970), and Haselow v. Gauthier, 212 Wis. 2d 580, 569 N.W.2d 97 (Ct. App. 1997)).

⁴⁰ Id. at *4-5.

⁴¹ Id. at *5.

⁴² Id. at *4-5.

⁴³ Id. at *5. A publication summons is “deemed served on the first day of required publication.” Wis. Stat. § 801.13(2).

⁴⁴ Id. at *6.

⁴⁵ Hayes v. Wisconsin & S. R.R. LLC, 514 F. Supp. 3d 1055 (E.D. Wis. 2021).

⁴⁶ Id. at 1058.

⁴⁷ Id.

⁴⁸ Id.

⁴⁹ Id.

⁵⁰ Id. at 1059 (“Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals have addressed the question presented.”).

⁵¹ Id. at 1060.

⁵² Id. at 1060-61 (examining Kreuger Int’l Inc. v. Federal Ins. Co., 647 F. Supp. 2d 1024 (E.D. Wis. 2009), Appleton Papers Inc. v. George A. Whiting Paper Co., No. 08-C-16, 2009 WL 62988 (E.D. Wis. Jan. 8, 2009) (unpublished), and Hanover Ins. Co. v. BMOC Inc., No. 18-cv-325-wmc, 2019 WL 949215 (W.D. Wis. Feb. 27, 2019) (unpublished)).

⁵³ Id. at 1062.

⁵⁴ Id.

⁵⁵ Id.

⁵⁶ Id. at 1063.

⁵⁷ Id.

⁵⁸ Levendoski v. Associated Milk Producers Inc., No. 20-cv-402-wmc, 2021 WL 1626694 (W.D. Wis. Apr. 27, 2021) (slip copy).

⁵⁹ Id. at *1.

⁶⁰ Id.

⁶¹ Id.

⁶² Id. (citing Digicorp. Inc. v. Ameritech Corp., 2003 WI 54, 262 Wis. 2d 32, 662 N.W.2d 652).

⁶³ Id. at *2 (citing Madison Newspapers Inc. v. Pinkerton’s, Inc., 200 Wis. 2d 468, 545 N.W.2d 843 (Ct. App. 1996)).

⁶⁴ Id. at *3 (discussing Wis. Admin. Code § ATCP 65.38(2)).

⁶⁵ Id. at *3.

⁶⁶ Id. at *3-4.

⁶⁷ Id. at *4.

⁶⁸ Id.

⁶⁹ Id.

⁷⁰ See Consumer’s Co-Op of Walworth Cnty. v. Olsen, 142 Wis. 2d 465, 419 N.W.2d 211 (1988).

⁷¹ Orlando Residence Ltd. v. Alpert, 526 F. Supp. 3d 410 (E.D. Wis. 2021).

⁷² Id. at 413.

⁷³ Id.

⁷⁴ Id. at 416.

⁷⁵ Id. at 417-18.

⁷⁶ Id. at 419.

⁷⁷ Id.

⁷⁸ Id. at 420.

⁷⁹ Id.

⁸⁰ Wis. Stat. § 995.50(1), (2)(am)2., (3).

⁸¹ Walkowicz v. American Girl Brands LLC,No. 20-cv-374-jdp, 2021 WL 510729 (W.D. Wis. Feb. 11, 2021) (slip copy).

⁸² Id. at *1.

⁸³ Id. at *2.

⁸⁴ Id. at *1.

⁸⁵ Id. at *2.

⁸⁶ Id. at *5.

⁸⁷ Id.

⁸⁸ Id. (quoting Lohan v. Take-Two Interactive Software Inc., 97 N.E.2d 389, 395 (N.Y. 2018)).

⁸⁹ Id. at *7.

⁹⁰ Id.

⁹¹ Id.

⁹² Id.

» Cite this article: 94 Wis. Law. 26-33 (December 2021).