Chapter 803

803.08(12)(c) (c) Standard for appointing class counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under sub. (12) (a) and (d). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.

803.08(12)(d) (d) Interim counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.

803.08(12)(e) (e) Duty of class counsel. Class counsel must fairly and adequately represent the interests of the class.

803.08(13) (13) Attorney fees and nontaxable costs. In a certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties’ agreement. All of the following procedures apply:

803.08(13)(a) (a) A claim for an award must be made by motion, subject to the provisions of this subsection, at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

803.08(13)(b) (b) A class member, or a party from whom payment is sought, may object to the motion.

803.08(13)(c) (c) The court may hold a hearing and must find the facts and state its legal conclusions under s. 805.17 (2).

803.08(13)(d) (d) The court may refer issues related to the amount of the award to a referee, as provided in s. 805.06.

803.08(14) (14) Prohibition against certain class actions. No claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state.

803.08 History History: Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 2011 a. 68; Sup. Ct. Order No. 15-06, 2016 WI 50, 369 Wis. 2d xxiii; Sup. Ct. Order No. 17-03, 2017 WI 108, 378 Wis. 2d xxi; 2017 a. 235.

803.08 Note NOTE: Sup. Ct. Order No. 17-03 states that “the Judicial Council Committee Notes above are not adopted, but will be published and may be consulted for guidance in interpreting and applying these rules.”

Effective date note Judicial Council Committee Notes, 2017: By S. Ct. Order 17-03, 2017 WI 108 (issued December 21, 2017, eff. July 1, 2018) the supreme court repealed and recreated s. 803.08. Recreated s. 803.08 is based on Rule 23 of the Federal Rules of Civil Procedure. Federal Rule 23 was adopted in its modern form in 1966, and it has been the subject of decades of careful review by the federal Advisory Committee on Civil Rules.

803.08 Note The Judicial Council’s intent was to craft a Wisconsin class action rule that tracks as closely as possible federal practice so that Wisconsin courts and practitioners can look to the well-developed body of federal case law interpreting Rule 23 for guidance. Additionally, the federal Advisory Committee Notes accompanying Rule 23 are instructive, though not binding, and should be consulted.

803.08 Note To the extent that the language of s. 803.08 differs from federal Rule 23, the Committee’s intent was to conform the federal rule to Wisconsin statutory drafting standards without changing the substantive meaning of any provision.

803.08 Note Subsection (6), Particular issues. In Waters ex rel. Skow v. Pertzborn, 243 Wis. 2d 703 (2001), the Wisconsin Supreme Court held that the circuit court was barred by statute from ordering separate trials before different juries on the issues of liability and damages arising from the same claim. The court’s holding was based on Wis. Stats. ss. 805.05 (2) and 805.09 (2).

803.08 Note Without deciding whether these rules would preclude a court from permitting a class action with respect to particular issues, the Committee has added the introductory phrase to this section to make it clear that such class actions are permitted. The inability to bring or maintain a class action with respect to particular issues would create an undesirable difference between Wisconsin practice and practice in the federal courts under Fed. R. Civ. P. 23(c)(4). Moreover, the Wisconsin Legislature has already adopted a former version of Rule 23(c)(4) as part of the procedure for class actions brought under the Wisconsin Consumer Act, in current s. 426.110 (10). (The procedures for class actions under that act are proposed for repeal as unnecessary after the adoption of revised s. 803.08.)

803.08 Note Subsection (10), Disposition of residual funds, and sub. (14), Prohibition against certain class actions, are the only provisions in recreated s. 803.08 that depart from the federal rule. Federal Rule 23 does not contain a provision comparable to sub. (10), which was originally adopted by the Wisconsin Supreme Court as s. 803.08 (2), effective January 1, 2017. Federal Rule 23 also does not contain a provision comparable to sub. (14), which was added by 2011 Wis. Act 68 to prohibit class action suits against the state seeking tax refunds, effective March 1, 2012.

803.08 Note Subsection (11), Appeals. Subsection (11) is modeled on F.R.C.P. 23(f). Interlocutory appeals specific to class certifications present unique considerations as compared to other appeals. The federal Advisory Committee Note 1998 amendment is instructive, though not binding, and should be consulted.

803.08 Annotation The class action statute, s. 260.12 [now this section], is part of title XXV of the statutes [now chs. 801 to 823], and the scope of title XXV is restricted to civil actions in courts of record. The county board is not a court of record. The class action statute can have no application to making claims against a county. Multiple claims must identify each claimant and show each claimant’s authorization. Hicks v. Milwaukee County, 71 Wis. 2d 401, 238 N.W.2d 509 (1976). But see Townsend v. Neenah Joint School District, 2014 WI App 117, 358 Wis. 2d 618, 856 N.W.2d 644, 13-2839.

803.08 Annotation The trial court did not abuse its discretion in determining that an action for damages caused by the negligent withdrawal of groundwater was not an appropriate class action. Nolte v. Michels Pipeline Construction, Inc., 83 Wis. 2d 171, 265 N.W.2d 482 (1978).

803.08 Annotation The test of common interest to maintain a class action is whether all members of the purported class desire the same outcome that their alleged representatives desire. Goebel v. First Federal Savings & Loan Ass’n of Racine, 83 Wis. 2d 668, 266 N.W.2d 352 (1978).

803.08 Annotation The maintenance of a class action involving nonresident class members does not exceed the constitutional limits of the jurisdiction of the courts of this state. The due process requisites for the exercise of jurisdiction over unnamed nonresident plaintiffs are adequate notice and representation. Schlosser v. Allis-Chalmers Corp., 86 Wis. 2d 226, 271 N.W.2d 879 (1978).

803.08 Annotation The trial court must decide if the named plaintiffs can fairly represent the common class interest that they share with the represented class and if joinder of all members is impracticable. O’Leary v. Howard Young Medical Center, 89 Wis. 2d 156, 278 N.W.2d 217 (Ct. App. 1979).

803.08 Annotation To bring a class action: 1) there must be a common or general interest shared by all members of the class; 2) the named parties must represent the interest involved; and 3) it must be impractical to bring all interested parties before the court. Mercury Records Productions, Inc. v. Economic Consultants, Inc., 91 Wis. 2d 482, 283 N.W.2d 613 (Ct. App. 1979).

803.08 Annotation In addition to considering the Mercury Records, 91 Wis. 2d 482 (1979), factors, the trial court must weigh the advantages of disposing of the entire controversy in one proceeding against the difficulties of combining divergent issues and persons. Cruz v. All Saints Healthcare System, Inc., 2001 WI App 67, 242 Wis. 2d 432, 625 N.W.2d 344, 00-1473.

803.08 Annotation The trial court did not err when it determined that a proposed class of “tens of thousands of presently and formerly employed hourly paid Wal-Mart employees” should not be certified because, among other reasons, the proposed class would be unmanageable, recognizing that much of the pertinent Wal-Mart payroll records were generated in the first instance by members of the proposed class and that, therefore, Wal-Mart had a right to examine each individual claimant regarding the circumstances of the claimant’s employment, and each instance of missed break time or off-the-clock work. Hermanson v. Wal Mart Stores, Inc., 2006 WI App 36, 290 Wis. 2d 225, 711 N.W.2d 694, 04-2926.

803.08 Annotation Nothing in Wisconsin law bars class action against a governmental body that is a mass action of named claimants bringing similar claims, provided that each claimant has complied with s. 893.80. Townsend v. Neenah Joint School District, 2014 WI App 117, 358 Wis. 2d 618, 856 N.W.2d 644, 13-2839.

803.08 Annotation The revised class certification rule directs courts to look to federal case law for guidance. Federal appellate courts review class certification decisions deferentially, in recognition of the fact that Federal Rule of Civil Procedure 23 gives the district courts broad discretion to determine whether certification of a class action lawsuit is appropriate. Federal appellate courts will reverse a class certification decision only when they find an abuse of discretion. Thus, a trial court’s decision to grant or deny a motion for class certification is committed to the trial court’s discretion. Harwood v. Wheaton Franciscan Services, Inc., 2019 WI App 53, 388 Wis. 2d 546, 933 N.W.2d 654, 18-1836.

803.08 Annotation Sub. (1) requires a plaintiff to first establish three facts about the proposed class and the representative—referred to as numerosity, commonality, and typicality—and one fact about the plaintiff’s ability to represent the class. Under sub. (2) (c), a trial court must find that the questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy—referred to as the predominancy and superiority requirements. Harwood v. Wheaton Franciscan Services, Inc., 2019 WI App 53, 388 Wis. 2d 546, 933 N.W.2d 654, 18-1836.

803.08 Annotation When a nonprofit corporation overcharged for the costs of obtaining medical records and later merged into a separate nonprofit corporation, in order to accurately define the scope of the certified class, the class notice should have identified the original corporation, rather than the successor corporation, as the entity whose alleged conduct triggered the claim. Successor liability under s. 181.1106 (3) [now s. 181.11055 (1) (c)] does not change the identity of a past actor; it merely carries liability for the past actor’s actions forward to that actor’s successor. Shannon v. Mayo Clinic Health System - Northwest Wisconsin Region, Inc., 2021 WI App 49, 398 Wis. 2d 685, 963 N.W.2d 115, 20-1186.

803.08 Annotation Speculation related to issues to be addressed later in the “merits” phase of a class-action lawsuit will not suffice to defeat certification of a class. Furthermore, the potential need for individual damage determinations later in the litigation does not itself justify the denial of certification. Hammetter v. Verisma Systems, Inc., 2021 WI App 53, 399 Wis. 2d 211, 963 N.W.2d 874, 19-2423.

803.08 Annotation The typicality requirement is met if a class member’s claim arises from the same practice or course of conduct that gives rise to the claims of other class members, is based on the same legal theory, and ultimately has the same essential characteristics as the claims of the class at large. Hammetter v. Verisma Systems, Inc., 2021 WI App 53, 399 Wis. 2d 211, 963 N.W.2d 874, 19-2423.

803.08 Annotation Viewpoint: A Call to Reform Wisconsin’s Class-Action Statute. Benson, Olson, & Kaplan. Wis. Law. Sept. 2011.

803.08 Annotation A Primer: Wisconsin’s New Class Action Statute. Leffel, Haas, & Wegrzyn. Wis. Law. Apr. 2018.

803.09 803.09 Intervention.

803.09(1) (1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.

803.09(2) (2) Upon timely motion anyone may be permitted to intervene in an action when a movant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order or rule administered by a federal or state governmental officer or agency or upon any regulation, order, rule, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely motion may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

803.09(2m) (2m) When a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense, the assembly, the senate, and the legislature may intervene as set forth under s. 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in s. 801.14.

803.09(3) (3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.

803.09 History History: Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 1975 c. 218; 2007 a. 20; 2015 a. 55; 2017 a. 369.

803.09 Annotation A postjudgment applicant for leave to intervene must show sufficient reason for having waited. Sewerage Commission of Milwaukee v. DNR, 104 Wis. 2d 182, 311 N.W.2d 677 (Ct. App. 1981).

803.09 Annotation Intervenors in an action cannot continue their claim once the original action is dismissed. Intervention will not be permitted to breathe life into a nonexistent lawsuit. Fox v. DHSS, 112 Wis. 2d 514, 334 N.W.2d 532 (1983).

803.09 Annotation A newspaper could intervene to protect the right to examine a sealed court file. State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983).

803.09 Annotation A newspaper’s postjudgment motion to intervene to open sealed court records was timely and proper. C.L. v. Edson, 140 Wis. 2d 168, 409 N.W.2d 417 (Ct. App. 1987).

803.09 Annotation Motions to intervene are evaluated practically, and not technically, with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. There is no requirement that the intervenor’s interest be judicially enforceable in a separate proceeding. Wolff v. Town of Jamestown, 229 Wis. 2d 738, 601 N.W.2d 301 (Ct. App. 1999), 98-2974.

803.09 Annotation After intervention, an intervenor’s status is the same as all other parties. Once a party intervenes, all claims and defenses against it may be asserted. Kohler Co. v. Sogen International Fund, Inc., 2000 WI App 60, 233 Wis. 2d 592, 608 N.W.2d 746, 99-0960.

803.09 Annotation A non-party to a circuit court action may intervene in an appeal brought by another party, even after the time for filing a notice of appeal has passed. City of Madison v. WERC, 2000 WI 39, 234 Wis. 2d 550, 610 N.W.2d 94, 99-0500.

803.09 Annotation In order to prevail, a prospective intervenor must demonstrate that: 1) the movant claims an interest relating to the property or transaction subject of the action; 2) the disposition of the action may as a practical matter impair or impede the proposed intervenor’s ability to protect that interest; 3) the movant’s interest will not be adequately represented by existing parties to the action; and 4) the motion to intervene was made in a timely fashion. Motions to intervene must be evaluated with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. M&I Marshall & Ilsley Bank v. Urquhart Cos., 2005 WI App 225, 287 Wis. 2d 623, 706 N.W.2d 335, 04-2743.

803.09 Annotation Timeliness is not defined by statute, and there is no precise formula to determine whether a motion to intervene is timely. The question of timeliness is a determination necessarily left to the discretion of the circuit court and turns on whether, under all the circumstances, a proposed intervenor acted promptly and whether intervention will prejudice the original parties. Postjudgment motions for intervention will be granted only upon a strong showing of justification for failure to request intervention sooner. Olivarez v. Unitrin Property & Casualty Insurance Co., 2006 WI App 189, 296 Wis. 2d 337, 723 N.W.2d 131, 05-2471.

803.09 Annotation Intervention by the legislature in a case with policy or budgetary ramifications when the executive branch, through the attorney general, fulfills its traditional role defending legislation before the court is not required. Legislators may often have a preference for how the judicial branch should interpret a statute, but such mere preferences do not constitute sufficiently related or potentially impaired interests within the meaning of sub. (1). Helgeland v. Wisconsin Municipalities, 2006 WI App 216, 296 Wis. 2d 880, 724 N.W.2d 208, 05-2540.

803.09 Annotation Affirmed on other grounds. 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation In the context of sub. (2), “defense” conveys that the person seeking to intervene, although not named as a defendant, could be a defendant to a claim in the main action or a defendant to a similar or related claim. Sub. (3) supports this construction of “defense,”conveying that the “claim” or “defense” is more than arguments or issues a non-party wishes to address and is the type of matter presented in a pleading—either allegations that show why a party is entitled to the relief sought on a claim or allegations that show why a party proceeded against is entitled to prevail against the claim. Helgeland v. Wisconsin Municipalities, 2006 WI App 216, 296 Wis. 2d 880, 724 N.W.2d 208, 05-2540.

803.09 Annotation Affirmed on other grounds. 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation Courts have no precise formula for determining whether a potential intervenor meets the requirements of sub. (1) The analysis is holistic, flexible, and highly fact-specific. Sub. (1) attempts to strike a balance between two conflicting public policies: that the original parties to a lawsuit should be allowed to conduct and conclude their own lawsuit and that persons should be allowed to join a lawsuit in the interest of the speedy and economical resolution of controversies. Despite its nomenclature, intervention “as of right” usually turns on judgment calls and fact assessments that a reviewing court is unlikely to disturb except for clear mistakes. Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation If a person has no right of intervention under sub. (1), the courts have no duty to join that person sua sponte as a necessary party under s. 803.03 (1) (b) 1. Whether a movant is a necessary party under s. 803.03 (1) (b) 1. is in all significant respects the same inquiry under sub. (1) as to whether a movant is entitled to intervene in an action as a matter of right, including the factor of whether the interest of the movant is adequately represented by existing parties. A movant who fails to meet that requirement for intervention as of right may not force its way into the action by arguing that the court must join the movant, sua sponte, as a necessary party under s. 803.03 (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

803.09 Annotation Certain institutional interests of the legislature were sufficient to defeat a facial challenge to the provisions of this section authorizing legislative intervention in certain cases and those requiring legislative consent to defend and prosecute certain cases. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614.

803.09 Annotation When the prerequisites in sub. (2m) are met, Wisconsin law gives the legislature, if it chooses to intervene, the power to represent the State of Wisconsin’s interest in the validity of its laws. Democratic National Committee v. Bostelmann, 2020 WI 80, 394 Wis. 2d 33, 949 N.W.2d 423, 20-1634.

803.09 Annotation The language of sub. (2m) implies that intervention should be automatic, without any input from the trial court, as long as the conditions for authorization under s. 13.365 are met. The right to intervene in a federal lawsuit is a purely procedural right, and, even in a diversity suit, it is the Federal Rules of Civil Procedure (FRCP) rather than state law that dictate the procedures, including who may intervene, to be followed. Sub. (2m) cannot supplant the FRCP and make intervention automatic. Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (2019). But see Berger v. North Carolina State Conference of the NAACP, 597 U.S. ___, 142 S. Ct. 2191, 213 L. Ed. 2d 517 (2022).

803.10 803.10 Substitution of parties.

803.10(1) (1) Death.

803.10(1)(a) (a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14 and upon persons not parties in the manner provided in s. 801.11 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

803.10(1)(b) (b) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in the action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

803.10(2) (2) Incompetency. If a party is adjudicated incompetent, the court upon motion served as provided in sub. (1) may allow the action to be continued by or against the party’s representative.

803.10(3) (3) Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in sub. (1).

803.10(4) (4) Public officers; death or separation from office.

803.10(4)(a) (a) When a public officer, including a receiver or trustee appointed by virtue of any statute, is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

803.10(4)(b) (b) When a public officer sues or is sued in an official capacity, the public officer may be described as a party by the official title rather than by name; but the court may require the officer’s name to be added.

803.10(5) (5) Death after verdict or findings. After an accepted offer to allow judgment to be taken or to settle pursuant to s. 807.01, or after a verdict, report of a referee or finding by the court in any action, the action does not abate by the death of any party, but shall be further proceeded with in the same manner as if the cause of action survived by law; or the court may enter judgment in the names of the original parties if such offer, verdict, report or finding be not set aside. But a verdict, report or finding rendered against a party after death is void.

803.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 652 (1975); 1975 c. 200, 218; 1993 a. 486; 2005 a. 387.

803.10 Annotation A letter to the court and opposing counsel stating that the plaintiff had died was not a “suggestion of death” under sub. (1) (a). Wheeler v. General Tire & Rubber Co., 142 Wis. 2d 798, 419 N.W.2d 331 (Ct. App. 1987).

803.10 Annotation A “suggestion of death” that failed to identify the proper party to substitute for the deceased did not trigger the running of the 90-day period under sub. (1) (a). Wick v. Waterman, 143 Wis. 2d 676, 421 N.W.2d 872 (Ct. App. 1988).

803.10 Annotation Service of the suggestion of death only on the deceased plaintiff’s attorney was insufficient to activate the 90-day period in which a sub. (1) (a) motion for substitution is to be filed. Sub. (1) (a) does not require service of the suggestion of death on all interested nonparties in every case but requires a determination of what nonparties should be served in that case and how burdensome the task will be to protect the interests of all persons and move the litigation toward a fair and expeditious resolution. Schwister v. Schoenecker, 2002 WI 132, 258 Wis. 2d 1, 654 N.W.2d 852, 01-2621.