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. Although federal court interpretations of Wisconsin law 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 across a broad range of substantive areas, including tort, civil procedure, health care, business, employment, and insurance law.

Wisconsin Tort Law – Strict Liability of Online Retailers

Strict liability permits persons injured by defective products to seek relief from manufacturers and those in a product’s “chain of distribution,” even absent evidence of negligence or other culpable conduct. Strict liability rests on the notion that the costs associated with a defective product should be borne by the entities that make the product available to consumers. The doctrine has been a part of Wisconsin common law since 1967.¹

In 2011, the Wisconsin Legislature enacted a strict-product-liability statute as part of a package of tort reform legislation.² The statute, codified as Wis. Stat. section 895.047, continues the common law of strict liability for product manufacturers and also makes sellers or distributors of defective products liable in certain circumstances. In State Farm Fire & Casualty Co. v. Amazon.com Inc., the U.S. District Court for the Western District of Wisconsin considered the statute’s applicability to Amazon, the dominant player in the ubiquitous world of online commerce.³

State Farm’s insured purchased a bathtub faucet adapter from a third party through Amazon. The adapter later failed and caused a flood in the insured’s home. State Farm could not identify the manufacturer of the adapter, and the Chinese company that listed the adapter for sale on Amazon had no presence in the United States.⁴ After paying the homeowner’s claim, State Farm brought a subrogation action against Amazon under the product liability statute.

Amazon had contracted with the Chinese company to make its products available for sale on Amazon’s website. In exchange for indemnity from the company and a percentage of the purchase price, Amazon agreed to store and ship the company’s products from Amazon’s warehouses, guarantee timely delivery, facilitate payment processing, and handle returns and refunds.⁵

Amazon sought summary judgment, arguing that it could not be held liable as a “seller” or “distributor” under the product liability statute because it never held title to the adapter. The statute focuses liability initially on manufacturers; sellers or distributors are not liable unless the liable manufacturer 1) has transferred its duty to design, manufacture, or warn to the seller; 2) is not subject to service in Wisconsin; or 3) is judgment proof.⁶

The district court rejected Amazon’s argument. Because the statute does not define the terms “seller” or “distributor,” and dictionary definitions of those terms supported each side’s position, the court looked to the overall structure and purpose of the statute. It construed the provision regarding seller liability as encapsulating two concepts: 1) A product’s manufacturer is the “preferred target,” but 2) in the manufacturer’s absence, “the entity responsible for getting the defective product into Wisconsin is liable.”⁷ The court then observed that the statute should be construed broadly, in keeping with its remedial purpose as evinced by a related statute that recognizes that product liability law should protect the right to a certain remedy enshrined in the Wisconsin Constitution.⁸

The district court next turned to Wisconsin case law, drawing a distinction from several decisions between intermediaries that played “only a peripheral role” in introducing a product into the stream of commerce and those that played a more “integral” role in the chain of distribution.⁹ Because Wisconsin courts had previously held intermediaries strictly liable even though they did not obtain title to a defective product, the district court declined to adopt Amazon’s position that transfer of ownership was a predicate to liability.¹⁰

The court then reviewed the undisputed facts regarding Amazon’s role in the transaction and its contractual relationship to the Chinese supplier. Amazon set its price for facilitating transactions, required the supplier to register each product it sold with Amazon, and reserved the right not to sell any of them. It was the only avenue through which the supplier’s products could reach customers in Wisconsin. These facts suggested Amazon was well positioned to allocate or insure against the risk that a defective product would reach a Wisconsin consumer.¹¹ Amazon also guaranteed that products it sold would be delivered on time and in good condition and implicitly represented that products purchased through its website were not defective.¹²

These considerations led the district court to conclude that Amazon served as “a critical component of the chain of distribution” and that Wisconsin law would hold it strictly liable for the defective adapter.¹³

Wisconsin Civil Procedure – Choice of Law

Federal courts can have significant influence in shaping state law when existing state statutes and case law do not answer the question presented in a case. Such was the situation in Eaton Corp. v. Westport Insurance Co., a decision in which the U.S. District Court for the Eastern District of Wisconsin applied Wisconsin choice-of-law analysis.¹⁴

Eaton filed a declaratory-judgment action seeking insurance coverage for asbestos claims related to products manufactured from the 1920s to the 1980s by a company with which Eaton had merged. Several insurance companies had issued to the manufacturer excess-liability policies that covered various periods during that time, and one insurer had issued policies to Eaton after the merger. Eaton argued that it had exhausted the limits of the underlying primary policies and sought coverage under these excess policies.¹⁵

To obtain coverage, Eaton would have to prove that the third-party claims fell within the scope of the excess policies. But this could prove difficult: Asbestos-related injuries often result from continuous exposures that span many years and often the date of injury is uncertain. Courts have developed various approaches to determine which policies are “triggered” by such claims. Under one theory called “continuous trigger,” a claim is deemed to fall within the scope of all policies in force from the time of the claimant’s first exposure to the time the claimant’s disease manifests.¹⁶ Wisconsin follows the continuous trigger approach.

The excess carriers objected to the application of Wisconsin law, arguing that their policies were governed by Ohio law, which has not adopted any “trigger” theory.¹⁷ Presented with competing requests to apply the law of different states, the district court applied Wisconsin’s choice-of-law analysis.¹⁸

First, it looked to determine whether Wisconsin law and Ohio law were actually in conflict.¹⁹ Unable to reliably predict which trigger theory the Ohio Supreme Court would adopt, the district court was left to consider whether the Wisconsin Supreme Court would find a conflict if a legal issue was settled in one state but not another.²⁰

To answer this question, the district court first looked to a decision in which the Illinois Supreme Court had concluded that no true conflict exists when one state has not resolved a particular issue because that situation presents only the possibility of a future conflict, not a current actual conflict.²¹ The district court opined that the Wisconsin Supreme Court would likely reach the same conclusion based on the strength of the Illinois court’s reasoning.

The district court also drew support for its prediction from two Wisconsin Supreme Court cases, one that held that the law of a foreign country is presumed to be the same as Wisconsin’s when it cannot be proven and another that declined to find a conflict when neither Wisconsin nor another jurisdiction had addressed a particular issue.²² Though neither of these cases was factually on point, they reinforced the district court’s view that its role in performing choice-of-law analysis is not to anticipate and resolve conflicts among jurisdictions that might never come to pass but to presume that no conflict will arise and simply apply Wisconsin law.²³

Wisconsin Health Care Law – Access to Health Records

Section 146.83 of the Wisconsin Statutes entitles patients to obtain copies of their health care records from their medical providers and sets forth the charges providers may assess to fulfill such requests.²⁴ Section 146.84 creates a private right of action for individuals who are assessed charges in excess of those permitted.²⁵ The Eastern District interpreted these statutes and applied Wisconsin’s common law of agency in Smith v. RecordQuest LLC.²⁶

Smith’s lawyers requested records from her medical providers as they prepared to file a personal injury claim on her behalf.²⁷ RecordQuest responded to one of the requests for one of Smith’s medical providers. It sent the requested records to her lawyers along with invoices detailing the charges for the copies.²⁸ Believing the charges to be excessive, Smith sued RecordQuest for violating Wis. Stat. section 146.83 and for unjust enrichment.²⁹

RecordQuest filed a motion to dismiss, arguing among other things that it could not be held liable for violating Wis. Stat. section 146.83 because it did not fit within the statute’s definition of a “health care provider.”³⁰ Section 146.81 of the Wisconsin Statutes lists more than 20 providers and associations of providers that are considered “health care providers” under the records statute.³¹ Smith agreed that RecordQuest did not fit within any of these categories.³²

Instead, Smith argued that RecordQuest could be liable because the provider had designated RecordQuest to act as its agent for the purpose of responding to records requests.³³ As support for her position, Smith pointed to language in Wis. Stat. section 146.84 that specifies that any “person” who violated the records statute can be held liable.³⁴

The district court disagreed with Smith’s reading of the relevant statutory provisions. Though Wis. Stat. section 146.84 states that any person who violates the records statute can be held liable, the records statute, Wis. Stat. section 146.83, can be violated only by a “health care provider.”³⁵ Because providers retain the obligation to provide records and charge no more than allowed under the statute, any violations of the statute by RecordQuest were imputable to the health care provider under agency principles. In this respect, RecordQuest’s actions were indistinguishable from those of a person directly employed by the provider to process records requests.³⁶ In both cases, the acts of the agent were, in effect, the acts of the provider.

The district court explained that Smith’s theory of RecordQuest’s liability was untenable because it would impute a principal’s liability to its agent simply because the agent had performed the act that gave rise to the principal’s liability.³⁷ Though an agent can be held liable for its own unlawful conduct committed within the scope of its agency, the records statute overrode that principle because it was not “written in a manner that would allow a person who is not a health care provider to violate the provision establishing a maximum fee for providing records.”³⁸

Finally, the district court rejected Smith’s reliance on a Wisconsin statute that codifies the interpretive principle that if a statute requires an act that an agent may perform, “such requirement includes all such acts when done by an authorized agent.”³⁹ The district court found the meaning of this statute difficult to determine but ultimately construed it as codifying the common-law rule that an agent’s acts are those of its principal. Thus it did not, as Smith contended, support a reading of the records statute that would impose liability on RecordQuest.⁴⁰

Wisconsin Fair Dealership Law

The Wisconsin Fair Dealership Law gives protections to businesses that enter into dealership arrangements with manufacturers if the manufacturer improperly terminates or alters the relationship.⁴¹ One of the most frequently litigated issues under the statute is whether the relationship at issue meets the statutory definition of a “dealership.” The Seventh Circuit explored this issue in PMT Machinery Sales Inc. v. Yami Seiki USA Inc.⁴²

To be considered a dealership under the statute, a relationship must meet three criteria. First, it must involve “a contract or agreement, either express or implied, whether oral or written, between 2 or more persons.” Second, the relationship must grant either “the right to sell or distribute goods or services” or the right to “use a trade name, trademark, service mark, logotype, advertising or other commercial symbol.” Third, the parties must share a “community of interest” in selling or distributing the goods or services.⁴³

The Seventh Circuit’s analysis in PMT Machinery focused on the second element. PMT, a Wisconsin corporation, engaged in discussions with Yama Seiki, a California manufacturer of machine tools, about becoming Yama Seiki’s exclusive dealer in eastern Wisconsin.⁴⁴ Yama Seiki offered a letter outlining terms of the dealership, which PMT rejected because it did not believe it could meet the sales requirements. The discussions continued, and though the parties never agreed to written terms, a Yama Seiki manager informed PMT that PMT was in “exclusive status” to sell Yama Seiki’s turning machines.⁴⁵

PMT facilitated sales of Yama Seiki’s machines for several years by soliciting customers, negotiating prices, and arranging for post-sale installation and warranty work. PMT did not take possession of any machines, however, and customers always paid Yama Seiki directly. For its services, PMT received the difference between the dealer price and the negotiated sales price. Yama Seiki never declined to fill an order that PMT arranged.⁴⁶ PMT also spent about one-third of its advertising expenditures on Yama Seiki over the period of its alleged dealership and used Yama Seiki’s logo and advertised its products online, along with those of other manufacturers.⁴⁷

PMT filed suit after learning that other companies were selling Yama Seiki’s machines in its territory. The district court granted summary judgment to Yama Seiki after determining that the parties’ relationship did not constitute a dealership under the WDFL.⁴⁸

The Seventh Circuit affirmed. Reviewing the factual record and drawing on Wisconsin case law interpreting the definition of dealership, the panel concluded that PMT had not acquired either of the rights in the second element of the statutory definition: the right to sell Yama Seiki’s machines or to use its trade logos.⁴⁹

Turning first to whether PMT had a “right to sell” Yama Seiki’s products, the panel identified the key inquiry as whether the alleged dealer can transfer a manufacturer’s product (or title to the product) or commit the manufacturer to a sale at the moment of the agreement to sell.⁵⁰ PMT could not do so and thus lacked the “significant control over the sales process” required under the statute.⁵¹ Because PMT did not maintain an inventory of Yama Seiki’s machines, approve sales terms, or process customer payments, its relationship to Yama Seiki was more like that of a “manufacturer’s representative” than a dealer.⁵² That Yama Seiki never refused to fill an order arranged by PMT was not sufficient to show that PMT exercised sufficient control over the sales.⁵³

The appeals court then examined PMT’s marketing activities and use of Yama Seiki’s trade logos. Drawing on its decision in John Maye Co. v. Nordson Corp., the court stated that the statutory definition requires more than a de minimis use of a manufacturer’s trade symbols because only a “substantial investment” ties the dealer to the manufacturer in the public’s mind and creates the disparity between the parties that merits legal protection for the dealer.⁵⁴ PMT relied primarily on its placement of Yama Seiki’s logos on its website, but the panel concluded that this use, together with the modest amount of PMT’s advertising dollars that were spent on Yama Seiki’s products, was not sufficiently substantial to bring the parties’ relationship within the statute.⁵⁵

Wisconsin Employment Law – Applicability of Overtime Regulations to Nonprofit Organizations

Wisconsin law empowers the Department of Workforce Development (DWD) to promulgate regulations concerning wages and working hours that are consistent with the goal of protecting worker health, safety, and welfare.⁵⁶ Under that authority, the DWD issued a regulation requiring certain employers to pay overtime wages to employees who work more than 40 hours per week.⁵⁷ In Paczkowski v. My Choice Family Care Inc., the Western District considered whether this regulation applies to nonprofit organizations.⁵⁸

Resolving this issue proved to be no small feat; the district court’s analysis traveled through multiple canons of statutory construction, regulatory definitions, and dictionary definitions. The court began by examining the DWD regulation that applies the overtime regulation to restaurants, hotels, “mercantile establishments,” and other private and governmental entities.⁵⁹ The parties agreed that My Choice, a nonprofit organization that provides managed health care services, would only be subject to the regulation if it was a “mercantile establishment.”⁶⁰

To answer this question, the district court examined another DWD regulation stating that “mercantile” means “pertaining to merchants or trade and is synonymous with the word commercial.”⁶¹ The district court found the regulation difficult to parse and ultimately ambiguous as applied to nonprofit organizations.⁶²

My Choice argued that the definition’s linking of “mercantile” and “commercial” as synonymous meant that the regulation applied only to for-profit businesses. Paczkowski, citing a dictionary definition of “synonym,” argued that “synonymous” did not limit “mercantile” only to those businesses that met the regulatory definition of “commercial” but was broad enough to reach organizations similar to commercial organizations.⁶³

 The district court did not find Paczkowski’s reading of “synonymous” persuasive. Drawing on dictionary definitions of that term, as well as of “mercantile” and “nonprofit,” the court determined that the regulation intended that mercantile and commercial be considered interchangeable.⁶⁴

But that did not end the inquiry, because a second part of the regulatory definition of “mercantile” states that the term “commercial” is “viewed with regard to profit or designed for profit; designed for mass appeal, emphasizing skill and subjects useful in business.”⁶⁵ The district court struggled to determine the meaning and scope of this language but ultimately concluded that it could not rule out the possibility that it could apply to My Choice, which meant that the regulation was ambiguous.⁶⁶

To resolve the ambiguity, the district court turned to the DWD’s interpretation of the regulation, which it could give “due weight” and follow so long as it was not clearly erroneous or inconsistent with the regulation itself.⁶⁷ The court looked to guidance on a Q&A page on the DWD website, which stated that nonprofits generally did not have to pay overtime except to employees who worked in certain establishments such as restaurants or hotels.

The district court concluded from this statement that the overtime regulation was only intended to apply to nonprofit organizations in limited circumstances, a reading it found “consistent with the regulatory language and the ordinary understanding of the term ‘commercial.’”⁶⁸ Giving due weight to the DWD’s interpretive guidance, the court concluded that My Choice was not subject to the overtime regulation.

Wisconsin Consumer Act – Debt Collection Practices

Wisconsin’s federal district courts examined provisions in the Wisconsin Consumer Act (WCA) that regulate a debt collector’s ability to commence litigation to collect a debt in a pair of recent decisions, Boerner v. LVNV Funding LLC⁶⁹ and Bahena v. Jefferson Capital Systems LLC.⁷⁰

After Boerner and Bahena fell behind on their credit card payments, the issuing banks charged off their accounts and transferred them to debt collection agencies. The agencies retained a law firm that sent letters to the individuals concerning their outstanding debts and later commenced collection lawsuits in Wisconsin state courts. Boerner and Bahena responded by suing the agencies for violating the federal Fair Debt Collection Practices Act and the WCA. The plaintiffs alleged that the debt collectors did not comply with the WCA before commencing the collection actions.⁷¹

Two provisions in the WCA were central to their claims. Section 425.104 of the Wisconsin Statutes provides that a merchant who believes a consumer has defaulted on a debt “may give the consumer written notice of the alleged default and, if applicable, of the customer’s right to cure any such default.”⁷² Section 425.105 of the Wisconsin Statutes states that a merchant may not file an action to collect on a debt unless it believes the customer is in default and then “only upon the expiration of 15 days after a notice is given pursuant to s. 425.104 if the customer has the right to cure.”⁷³

Boerner and Bahena argued that the debt collectors had violated the FDCPA’s prohibition on making false statements in connection with the collection of a debt because they implicitly and falsely represented that the debts could be sued on by filing the collection actions without first sending them written notice under the WCA.⁷⁴

The debt collectors sought summary judgment on multiple grounds, including that written notice of a default and right to cure is not required before a collection action is filed because Wis. Stat. section 425.104 states that notice “may” be given.⁷⁵ The district court in each case rejected this argument, concluding that it could not be reconciled with the terms of Wis. Stat. section 425.105,⁷⁶ which prohibits the filing of an action to collect on a debt until 15 days after notice under Wis. Stat. section 425.104 is given.

Reading these statutes together, the district courts determined that while merchants are not required to provide notice under Wis. Stat. section 425.104 when a debt goes into default, they must do so before pursuing litigation to collect it.⁷⁷ Because neither debt collector had provided notice that comported with the requirements of Wis. Stat. section 425.104, they were not entitled to summary judgment.

Wisconsin Insurance Law – Illusory Coverage

In Crum & Forster Specialty Insurance Co. v. DVO Inc., the Seventh Circuit applied Wisconsin’s insurance coverage analysis to determine whether a professional “errors & omissions” (E&O) policy provided only the appearance of coverage.⁷⁸

DVO entered into a contract to build an anaerobic digester, a machine used to break down biodegradable material. The buyer later sued DVO in state court, alleging that DVO had breached the contract by failing to properly design portions of the machine. DVO asked its insurer, Crum & Forster, to pay the costs to defend the case. After initially agreeing to do so, Crum & Forster pulled its defense and filed a lawsuit in federal court seeking a declaration that it had no duty to defend DVO.⁷⁹

Wisconsin law uses a three-step analysis to determine whether an insurer must provide a defense to an insured that is sued by a third party. First, the court compares the allegations of the third party’s complaint to the policy’s insuring agreement to determine if the policy provides an initial grant of coverage. If it does, the court then examines whether any exclusions in the policy negate coverage. If an exclusion applies, the court’s final task is to determine whether any exceptions to the exclusion reinstate coverage.⁸⁰

Crum & Forster had issued multiple policies to DVO, which included commercial general liability and E&O coverage. The E&O portion of the policy covered DVO for damages caused because of a “wrongful act,” but an exclusion barred coverage if the damages were “[b]ased upon or arising out of” a breach of any contract, whether oral or written, express or implied.⁸¹ DVO argued that these provisions rendered Crum & Forster’s coverage illusory – that is, the exclusion swept so far beyond the scope of the initial grant of coverage that Crum & Forster’s coverage obligation would effectively never be triggered.⁸²

The district court rejected DVO’s argument, concluding that coverage was not illusory. In the district court’s view, E&O coverage was not foreclosed in all circumstances; though the breach-of-contract exclusion would bar coverage for claims of professional negligence brought by a party to a contract with DVO, it would not apply claims brought by nonparties to the contract.⁸³

The Seventh Circuit disagreed, concluding that the district court’s analysis did not square with the broad scope of the exclusion. Specifically, the court of appeals emphasized that the exclusion barred coverage for any claims “based on” or “arising out of” a contract. Citing prior Wisconsin decisions that broadly construed the phrase “arising out of,” the appellate panel stated that the exclusion would apply to claims brought by strangers to a contract if they have “some causal relationship” to the breach of contract.⁸⁴

Having determined that coverage under the E&O policy was illusory, the court of appeals remanded the case to the district court for further proceedings on the question of how to reform the policy to give effect to DVO’s reasonable expectations of coverage.⁸⁵

Endnotes

¹ Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967).

² Wis. Stat. § 895.047.

³ State Farm Fire & Casualty Co. v. Amazon.com Inc., 390 F. Supp. 3d 964 (W.D. Wis. 2019).

⁴ Id. at 967.

⁵ Id.

⁶ Id. at 968 (citing Wis. Stat. § 895.047(2)).

⁷ Id. at 970.

⁸ Id. at 970-71 (citing Wis. Stat. § 895.046 and Wis. Const. art. I, § 9).

⁹ Id. at 972.

¹⁰ Id. at 971-72 (discussing Kemp v. Miller, 154 Wis. 2d 538, 453 N.W.2d 872 (1990)).

¹¹ Id. at 972.

¹² Id.

¹³ Id. at 973.

¹⁴ Eaton Corp. v. Westport Ins. Co., 387 F. Supp. 3d 931 (E.D. Wis. 2019).

¹⁵ Id. at 933-34.

¹⁶ Id. at 934.

¹⁷ Id. at 935.

¹⁸ Id. When more than one state’s law might apply to a dispute, a federal court applies the choice-of-law rules of the state in which it sits. Id. (citing NewSpin Sports LLC v. Arrow Elecs. Inc., 910 F.3d 293, 300 (7th Cir. 2018)).

¹⁹ Id. at 935.

²⁰ Id. at 937.

²¹ Id. (discussing Bridgeview Health Care Ctr. v. State Farm Fire & Cas. Co., 10 N.E.3d 902 (Ill. 2014)).

²² Id. at 938 (discussing Wilcox v. Wilcox, 26 Wis. 2d 617, 133 N.W.2d 408 (1965) and Humana Medical Corp. v. Peyer, 155 Wis. 2d 714, 456 N.W.2d 355 (1990)).

²³ Id.

²⁴ Wis. Stat. § 146.83.

²⁵ Wis. Stat. § 146.84(1).

²⁶ Smith v. RecordQuest LLC, 380 F. Supp. 3d 838 (E.D. Wis. 2019), appeal filed, No.19-2084 (7th Cir. June 7, 2019).

²⁷ Id. at 840-41.

²⁸ Id. at 841.

²⁹ Id.

³⁰ Id.

³¹ Wis. Stat. § 146.8(1)(a)-(s).

³² Smith, 380 F. Supp. 3d at 842 (citingWis. Stat. § 146.81).

33Id.

34Id. (citing Wis. Stat. § 146.84(1)(b)-(bm)).

35Id. at 842.

36Id.

37Id. at 843.

38Id.

39Id. (citing Wis. Stat. § 990.001(9)).

40Id. at 843-44.

41Wis. Stat. ch. 135.

⁴² PMT Mach. Sales Inc. v. Yama Seiki USA Inc., 941 F.3d 325 (7th Cir. Oct. 2019).

⁴³ Wis. Stat. § 135.02(3)(a).

⁴⁴ PMT Mach. Sales, 941 F.3d at 327.

⁴⁵ Id.

⁴⁶ Id. at 327-28.

⁴⁷ Id. at 328.

⁴⁸ Id.

⁴⁹ Id. at 329.

⁵⁰ Id. (citing John Maye Co. v. Nordson Corp., 959 F.3d 1402, 1406 (7th Cir. 1992)).

⁵¹ Id.

⁵² Id. (discussing John Maye and two Wisconsin Supreme Court decisions, Benson v. City of Milwaukee, 2017 WI 65, 376 Wis. 2d 35, 897 N.W.2d 16, and Foerster Inc. v. Atlas Metal Parts Co., 105 Wis. 2d 17, 313 N.W.2d 60 (1981)).

⁵³ Id. at 330.

⁵⁴ Id.

⁵⁵ Id. at 331.

⁵⁶ See Wis. Stat. § 103.02.

⁵⁷ Wis. Admin. Code § DWD 274.03.

⁵⁸ Paczkowski v. My Choice Family Care Inc., 384 F. Supp. 3d 991 (W.D. Wis. 2019).

⁵⁹ Wis. Admin. Code § DWD 274.015.

⁶⁰ Paczkowski, 384 F. Supp. 3d at 994.

⁶¹ Wis. Admin. Code § DWD 274.01(5).

⁶² Paczkowski, 384 F. Supp. 3d at 994 (stating that “DWD’s definition is so turbid that it defies unequivocal exegesis”).

⁶³ Id. at 994-95.

⁶⁴ Id. at 995.

⁶⁵ Id.

⁶⁶ Id. at 996-97.

⁶⁷ Id. at 997 (discussing Wisconsin Supreme Court’s replacement of “great-weight” deference with “due-weight” standard in Tetra Tech EC Inc. v. Wisconsin Department of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21).

⁶⁸ Id. at 997-98.

⁶⁹ Boerner v. LVNV Funding LLC, 358 F. Supp. 3d 767 (E.D. Wis. 2019).

⁷⁰ Bahena v. Jefferson Capital Syst. LLC, 363 F. Supp. 3d 914 (W.D. Wis. 2019).

⁷¹ Boerner, 358 F. Supp. 3d at 772-73; Bahena, 363 F. Supp. 3d at 919-20.

⁷² Wis. Stat. § 425.104(1).

⁷³ Wis. Stat. § 425.105(1)

⁷⁴ Boerner, 358 F. Supp. 3d at 773; Bahena, 363 F. Supp. 3d at 920.

⁷⁵ Boerner, 358 F. Supp. 3d at 775; Bahena, 363 F. Supp. 3d at 922.

⁷⁶ Boerner, 358 F. Supp. 3d at 775-76; Bahena, 363 F. Supp. 3d at 922.

⁷⁷ Boerner, 358 F. Supp. 3d at 775-76; Bahena, 363 F. Supp. 3d at 922.

⁷⁸ Crum & Forster Specialty Ins. Co. v. DVO Inc., 939 F.3d 852 (7th Cir. 2019).

⁷⁹ Id. at 853-54.

⁸⁰ Id. at 854 (citing Marks v. Houston Cas. Co., 369 Wis. 2d 547, 881 N.W.2d 309 (2016)).

⁸¹ Id. at 855.

⁸² Id.

⁸³ Id.

⁸⁴ Id. at 856 (discussing Great Lakes Beverages LLC v. Wochinski, 2017 WI App 13, 373 Wis. 2d 649, 892 N.W.2d 333).

⁸⁵ Id. at 858-59.