Decision opens door to Wisconsin smoker suits.

Byline: David Ziemer

In light of the U.S. Supreme Court opinion last week in Altria Group v. Good, Wisconsin consumers can plausibly sue tobacco companies under at least two different statutory provisions, sec. 100.20 and sec. 100.18.

Section 100.20, entitled Methods of competition and trade practices, provides generally, (1) Methods of competition in business and trade practices in business shall be fair.

Unfair methods of competition in business and unfair trade practices in business are hereby prohibited.

This is, for all material purposes, identical to the Maine statute at issue, which provides, Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful. Me.Rev.Stat.Ann., Tit. 5, sec. 207.

However, sec. 100.18 of the Wisconsin statutes, entitled Fraudulent representations, is even more applicable to suits alleging that the marketing of light cigarettes is misleading: (1) No person ... shall make, publish, disseminate, circulate, or place before the public, ... an advertisement, announcement, statement or representation of any kind to the public ... which ... contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.

The downside to suing under sec. 100.18 is that it contains a three-year statute of repose, and the discovery rule does not apply, limiting the potential damages, and the number of potential plaintiffs.

A plaintiff suing under sec. 100.18 can recover pecuniary loss, costs, and attorney fees.In contrast, sec. 100.20 offers better remedies, and less obstacles to recovery.

A plaintiff suing under sec. 100.20 can recover double his pecuniary loss, costs, and attorney fees. In addition, there is no statute of repose.

Instead, there is a six-year statute of limitations, and the discovery rule applies.

Issues of Proof

A plaintiff seeking to recover under sec. 100.18 need not show reasonable reliance, nor any reliance on the alleged misrepresentation, at all. However, he must still prove causation. A court may determine that the representation did not materially induce the plaintiff's decision to act and that plaintiff would have acted in the absence of the representation. Novell v. Migliaccio, 2008 WI 44.

The basis of the allegations of fraud against Altria Group is that, even...