Does the waiver-and-release language in our consumer paperwork hold?
Not for a transaction the Wisconsin Consumer Act covers. Wis. Stat. § 421.106(1) provides that, except as otherwise provided in chs. 421 to 427, a customer may not waive or agree to forego rights or benefits under chs. 421 to 427. A disputed claim may still be settled by agreement under § 421.106(2), but § 421.106(4) makes a settlement in which the customer waives or agrees to forego those rights invalid if the court as a matter of law finds the settlement unconscionable at the time it was made, and it lists what the court may consider, including the customer's education, ability to speak and read the language of the contract, prior consumer experience, any deception or coercion, the legal advice received and the value of the consideration. Separately, Wis. Stat. § 100.18(1) makes it unlawful to place before the public an advertisement, announcement, statement or representation containing any assertion, representation or statement of fact which is untrue, deceptive or misleading.
The trap
The two statutes do not cover the same ground and neither is a general consumer-contract rule. Section 421.106 operates only on rights and benefits 'under chs. 421 to 427', so it protects a customer in a transaction those chapters reach and the row does not establish which transactions those are: the definitions in ch. 421 were not read here. Section 100.18(1) is about a statement made to the public in connection with a sale, not about a waiver clause at all, and its own words ('with intent to sell ... to the public') carry a scope this rule does not enlarge. Two whole subjects sit outside § 100.18 altogether: it does not apply to the insurance business, and no action may be commenced under it more than 3 years after the unlawful act or practice sued on. It also exempts the messenger rather than the seller: it does not apply to the owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, or of a radio or television station, who publishes or takes part in publishing the advertisement in good faith and without knowledge of its falsity or deceptive character. The liability the section creates is the advertiser's, not the medium's. § 100.18 also steps back from licensed real estate work: “This section does not apply to a person licensed as a broker or salesperson under s. 452.09 while that person is engaged in real estate practice, as defined in s. 452.01 (6) ,” unless that person personally made, published, disseminated, circulated or placed the assertion before the public with knowledge of its falsity. So the section reaches a broker only through their own knowing statement. And § 421.106(1)'s non-waiver rule has a federal ceiling that the section's own words do not show: in Cottonwood Financial the Court of Appeals held that under AT&T Mobility LLC v. Concepcion the Federal Arbitration Act preempts any state law classifying an arbitration agreement as unconscionable simply because it bars an individual from proceeding as a member of a class, so a class-action waiver inside an arbitration agreement is not made unconscionable by the Consumer Act's non-waiver provision.
11 authorities
- statuteWis. Stat. § 421.106enactment date not established
The words that state the rule
Except as otherwise provided in chs. 421 to 427 , a customer may not waive or agree to forego rights or benefits under chs. 421 to 427 .
- statuteWis. Stat. § 421.106enactment date not established
The words that state the rule
A settlement in which the customer waives or agrees to forego rights or benefits under chs. 421 to 427 is invalid if the court as a matter of law finds the settlement to be unconscionable at the time it was made.
- statuteWis. Stat. § 100.18enactment date not established
The words that state the rule
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.
- statuteWis. Stat. § 100.18enactment date not established
The words that state the rule
This section does not apply to the owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, or of a radio or television station, who in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published or takes part in the publication of such advertisement.
- statuteWis. Stat. § 100.18enactment date not established
The words that state the rule
(a) This section does not apply to the insurance business. 100.18(12)(b) (b) This section does not apply to a person licensed as a broker or salesperson under s. 452.09 while that person is engaged in real estate practice, as defined in s. 452.01 (6) ,
- statuteWis. Stat. § 421.106enactment date not established
The words that state the rule
A claim by a customer against a merchant for an excess charge, other violation of chs. 421 to 427 or civil penalty, or a claim against a customer for default or breach of a duty imposed by chs. 421 to 427 , if disputed in good faith, may be settled by agreement.
- statuteWis. Stat. § 421.106enactment date not established
The words that state the rule
In this regard the court may consider the competence of the customer as measured by his or her education, ability to speak and read the language of the contract, and his or her prior consumer experience; any deception or coercion practiced upon the customer; the nature and extent of the legal advice received by the customer; and the value of the consideration.
- statuteWis. Stat. § 100.18enactment date not established
The words that state the rule
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,
- statuteWis. Stat. § 100.18enactment date not established
The words that state the rule
unless that person has 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.
- statuteWis. Stat. § 100.18enactment date not established
The words that state the rule
No action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action.
- case2012 WI App 12Cottonwood Financial, Ltd. v. EstesWis. Ct. App.decided 2012read it at the source ↗
The words that state the rule
Concepcion's holding is clear: the FAA preempts any state law that classifies an arbitration agreement as unconscionable, and therefore unenforceable, simply because the agreement prohibits an individual from proceeding as a member of a class. Accordingly, under Concepcion, the waiver of classwide proceedings *483 in Estes's arbitration agreement with Cottonwood does not render the agreement substantively unconscionable.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.