In any Wisconsin case involving possible auto dealer sales fraud, it is always important to consider whether Wisconsin’s fraudulent representations statute, Wis. Stat. § 100.18, might apply to the situation. Wis. Stat. § 100.18, sometimes referred to as Wisconsin’s Deceptive Trade Practices Act or Wisconsin’s false advertising statute, prohibits individuals and companies from making untrue, deceptive or misleading statements and representations in the sale of a service, product, security or real estate. The statute also prohibits or places restrictions on certain other sales activities, such as combination sales, closeout sales, clearance sales, and comparison pricing, among other things.
The are several reasons to always consider Wis. Stat. § 100.18 in possible auto fraud cases. First, the statute is very expansive, in that it applies to both oral and written statements and representations. Second, the statute does not require a plaintiff prove that the auto dealer intentionally made the untrue, deceptive or misleading statement or representation. And third, the plaintiff does not necessarily have to prove that a statement or representation was untrue to prevail on his or her claim. A plaintiff can also prevail by simply showing that the statement or representation was deceptive or misleading.
The most well-known and widely used provision in Wis. Stat. § 100.18—the one prohibiting individuals and companies from making statements and representations that are untrue, deceptive or misleading—is found in subsection (1). That section provides:
No person, firm, corporation or association, or agent or employee thereof, with intent to sell, distribute, increase the consumption of or in any wise dispose of any real estate, merchandise, securities, employment, service, or anything offered by such person, firm, corporation or association, or agent or employee thereof, directly or indirectly, to the public for sale, hire, use or other distribution, or with intent to induce the public in any manner to enter into any contract or obligation relating to the purchase, sale, hire, use or lease of any real estate, merchandise, securities, employment or service, shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state, 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, an advertisement, announcement, statement or representation of any kind to the public relating to such purchase, sale, hire, use or lease of such real estate, merchandise, securities, service or employment or to the terms or conditions thereof, which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.
Although Wis. Stat. § 100.18(1) is poorly written and unnecessarily prolix—it packs 225 words, many of them repetitive, into one sentence—it is actually quite simple once you separate the wheat from the chaff. Distilled down to its most essential elements, the statute reads like this:
No person…with intent to sell…anything offered by such person…directly or indirectly, to the public for sale…shall make…an advertisement, announcement, statement or representation…which is untrue, deceptive or misleading.
To prevail on a claim under Wis. Stat. § 100.18(1), a plaintiff must prove the following elements:
- the individual or company made a statement or representation to the plaintiff;
- the statement or representation was untrue, deceptive or misleading; and
- the statement or representation caused the plaintiff damages.
Wis. Stat. § 100.18(1) applies to consumer and commercial transactions and provides a distinct statutory cause of action separate from the common law tort claims of intentional misrepresentation, strict liability misrepresentation and negligent misrepresentation.
Unlike some other laws, Wis. Stat. § 100.18(1) does not require that a plaintiff prove that an individual or company intentionally made a statement or representation that was untrue, deceptive or misleading. Rather, the statute only requires a plaintiff prove that an individual or company made a statement or representation that was untrue, deceptive or misleading and that the representation caused the plaintiff damages.
Importantly, Wis. Stat. § 100.18(1) applies to written and oral statements and representations, including those made in face-to-face sales presentations. The statute is aimed at untrue, deceptive or misleading statements and representations made in order to induce another to either purchase a good or service or enter into a contract to purchase a good or service. Thus, the statute does not apply to statements and representations made after a person purchases the good or service or after the person enters into a contract to purchase the good or service.
Wis. Stat. § 100.18(1) applies only to statements and representations of fact, not sales puffery. Sales puffery, unlike a statement or representation of fact, is a subjective statement incapable of being disproved. Descriptive terms such as “best” or “finest” are classic examples of sales puffery.
Wis. Stat. § 100.18(1) does not impose a duty to disclose information on the seller but does prohibit the seller from making any affirmative statements or representations of fact that are false, deceptive or misleading. However, other statutes or administrative rules may require the seller to disclose certain information to the prospective purchaser and, in those cases, the seller is prohibited from making statements or representations that are false, deceptive or misleading.
The statute of limitations on a claim under Wis. Stat. § 100.18(1) is three years from the date the seller makes any untrue, deceptive or misleading statement or representation. Any plaintiff prevailing on a claim under the statute is entitled to recover his or her “pecuniary loss,” which is the law’s fancy way of saying “damages,” along with costs, including reasonable attorney fees.
Overall, Wis. Stat. § 100.18(1) is a very useful statute when litigating auto dealer sales fraud cases because almost all auto sales consist of a mixture of both oral and written statements and representations. If an auto dealer makes an untrue, deceptive or misleading statement or representation during the sales process, whether orally or in writing, then a consumer most likely has a valid claim under Wisconsin’s fraudulent representations statute—assuming the consumer suffered damages because of the statement or representation and the consumer brings the claim within three years of the date the dealer made the statement or representation.
Visit my article, “Wisconsin Law Governing Advertising and Representations in Automobile Sales,” to learn about two Wisconsin laws—Wis. Stat. § 218.0116(1), a statute, and Wis. Admin. Code § Trans. 139.03, an administrative rule—that specifically address auto dealer advertising and representations in the context of automobile sales.