May 13, 2010 − A private entity is not subject to a 120-day statutory notice requirement when filing an antitrust claim against a governmental body, the appeals court recently held.
Before filing suit against a governmental body, Wis. Stat. section 893.80(1) requires a party to give notice of the injury “[w]ithin 120 days after the happening of the event” and a notice of claim to which the governmental body has 120 days to respond.
These provisions provide a governmental body with proper notice to investigate the injury, time to compromise without suit, and time to budget for settlement or litigation.
In E-Z Roll Off, LLC v. County of Oneida, 2009AP775 (May 11, 2010), the circuit court for Oneida County dismissed E-Z Roll Off’s (EZ) complaint for failure to provide Oneida County a timely notice of injury and anti-trust claim. EZ argued that its anti-trust claim was exempt from the section 893.80(1) notice requirement. This appeals court agreed with EZ.
EZ, which is in the solid waste hauling business, challenged a June 2003 agreement providing for a preferential $5.25 per ton rate for waste that Waste Management Wisconsin Inc. delivered to the county’s transfer station. EZ asserted others haulers, including EZ, were charged $45 or $54. But EZ’s owners did not file a notice of anti-trust claim or injury until 2005. Those notices, the circuit court concluded, were not timely under 893.80(1).
Exceptions to notice requirement under section 893.80(1)
The appeals court noted that Wisconsin courts recognize at least eight statutes that preclude application of the section 893.80(1) notice requirements. To determine, on a case-by case basis, whether an exception apples, the court applied a three-factor test.
First, the court determines if “there is a specific statutory scheme for which the plaintiff seeks exemption.” Second, the court determines “whether enforcement of section 893.80(1) would hinder a legislative preference for a prompt resolution of the type of claim under consideration.” Lastly, the court examines “whether the purposes for which section 893.80(1) was enacted would be furthered by requiring that a notice of claim be filed.”
Regarding the first factor, EZ argued that section 133.16 – providing injunction and other relief in antitrust cases – provides the statutory scheme of enforcement. The court rejected Oneida County’s argument that providing for injunction or other relief was not specific enough. A “vague sentence mentioning ‘injunction’ and ‘legal action’ and providing no further enforcement mechanism,” the court stated, is specific enough.
The court also concluded that sections 133.16, 133.18(4), and 133.18(5) set forth requirements for prompt resolution of the antitrust claim, so enforcing section 893.80(1) notice requirements would indeed hinder a legislative preference for prompt resolution.
Further, the court found that the section 893.80(1) requirements should not apply despite conflicts with sections 133.16 and 133.18 because the county failed to sufficiently address that issue, and in any event, the purposes of 893.80(1) − to investigate the injury, provide time to compromise without suit, and time to budget for settlement or litigation − would not necessarily be furthered by applying it.
