Wisconsin Appellate Law

The back-and-forth between Wisconsin’s legislature and its supreme court created a unique six-year window from 2005-2011 when plaintiffs could sue manufacturers of white lead carbonate, a substance formerly used in some paints, under a tort theory called “risk-contribution.”  This theory allows a plaintiff who can identify the product he asserts caused his injury—but not its specific manufacturer (due to the passage of time or other factors)—to sue all the defendants that could have manufactured that product during the relevant time period and apportion liability among them.  Around 170 lawsuits were filed on this theory, and three went to trial in…
Employers—particularly those in Illinois, Indiana and Wisconsin—should revisit their military leave policies in light of the Seventh Circuit’s holding in White v. United Airlines Inc., No. 19-2546 (Feb. 3, 2021), that failure to provide paid military leave, while simultaneously offering paid time off for other absences such as for jury duty or sick leave, might violate the Uniformed Services Employee and Reemployment Rights Act (USERRA).  Judge Diane Wood wrote the opinion, which addressed this issue of first impression; she was joined by Judges Michael Brennan and Michael Scudder. On February 17, 2021, United Airlines filed a petition for rehearing
On Monday and Tuesday of this week, the United States Court of Appeals for the Seventh Circuit issued a series of decisions addressing the Article III standing of consumer plaintiffs alleging violations of the Fair Debt Collection Practices Act (“FDCPA”). The court—in five opinions resolving six different appeals arising out of putative class actions—revisited the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), clarifying how an FDCPA plaintiff must allege and prove an “injury in fact” sufficient to establish subject-matter jurisdiction in a federal court. Two of the five opinions resulted in converting Rule 12(b)(6)…
The old adage tells us that you can’t fight city hall, but a recent decision from Wisconsin’s court of appeals, which handed a victory to property taxpayers who received a favorable decision from a board of review, teaches that sometimes city hall can’t fight back. In State ex rel. City of Waukesha v. City of Waukesha Board of Review, No. 2019AP1479 (Nov. 18, 2020), a decision from District II written by Chief Judge Lisa Neubauer and joined by Judges Mark Gundrum and Jeff Davis, the court of appeals held that the City of Waukesha had no right to seek…
You represent a business owner who ends up arbitrating a dispute with a supplier.  After spending tons of time and money preparing for the 5-day evidentiary hearing, you look up to hear snoring from the arbitrator – he fell asleep for part of the proceedings!  Surely you’ll be able to get the result vacated by the circuit court on appeal, right?  Well, no – not if you slept on your objection by failing to first specifically raise it with the arbitrator, according to the Wisconsin Court of Appeals’ recent decision in Loren Imhoff Homebuilder, Inc. v. Lisa Taylor, et al.,
Under most of the federal civil rights laws, employers are covered only if they employ 15 or more employees.  See, e.g., 42 U.S.C. § 2000e(b) (Title VII).  Businesses that employ fewer than 15 employees are not subject to the laws, the result of a Congressional policy judgment that requiring smaller enterprises to understand and follow the laws might be too burdensome. Of course, some businesses that employ fewer than 15 employees have sister and parent corporations that also employ workers.  Are those entities subject to the federal civil rights laws? No, said the Seventh Circuit in Prince v. Appleton Auto,
The Seventh Circuit’s decision in Brickstructures, Inc. v. Coaster Dynamix, Inc., No. 19-2187 (March 11, 2020), highlights the challenges that a party faces when appealing a district court’s finding that it has waived the right to arbitrate.  The parties in Brickstructures entered into a joint-venture agreement to create a LEGO-compatible model rollercoaster kit. When the collaboration fell to pieces, Brickstructures sued Coaster Dynamix. Citing the joint-venture agreement’s arbitration clause, Coaster Dynamix moved to dismiss the complaint on the ground that venue was improper; however, it withdrew the motion after receiving a letter from Brickstructures threatening to seek sanctions for advancing a frivolous…
This week, two federal appellate courts published notable opinions on the intersection between personal jurisdiction jurisprudence and Rule 23 class action procedure. The defendants in both cases face nationwide class actions, and each argued that the Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773, precludes district courts from exercising specific jurisdiction over the claims of unnamed putative class members from other states. The majority of a D.C. Circuit panel decided to resolve the appeal before it on alternate grounds. But in dissent, Judge Silberman explained why he understands Bristol-Myers’s holding to…
Wisconsin’s Chapter 128 has long been something of a “wild west” of insolvency proceedings. Modeled on the provisions of the federal Bankruptcy Act of 1898, the statute empowers a circuit court to appoint a receiver to administer a debtor’s estate and to issue a protective order enjoining creditors from taking enforcement actions. But it lacks any direction for subjects addressed in detail in the modern Bankruptcy Code, such as the treatment of executory contracts or the operation of a debtor’s business during the pendency of the proceeding. One area where the Legislature has provided some guidance is preference claims. Section
In 2017, the Wisconsin Supreme Court adopted a new class action rule, modeled after Fed. R. Civ. P. 23, with the avowed purpose of aligning state class-action practice with the federal practice and encouraging resort to the body of case law interpreting the federal rule.  In the first published appellate opinion of which I’m aware that undertakes that charge, written by Judge Kitty Brennan of District I, the Wisconsin Court of Appeals affirmed certification of a class of persons claiming that they had been overcharged by a hospital for copies of their medical records. The decision is Harwood v. Wheaton Franciscan