133.03 Unlawful contracts; conspiracies.
(1) Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is illegal. Every person who makes any contract or engages in any combination or conspiracy in restraint of trade or commerce is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $100,000 if a corporation, or, if any other person, may be fined not more than $50,000.
(2) Every person who monopolizes, or attempts to monopolize, or combines or conspires with any other person or persons to monopolize any part of trade or commerce is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $100,000 if a corporation, or, if any other person, may be fined not more than $50,000.
(3) As an alternative to the criminal penalties for violation of this section, the department of justice or district attorney may bring an action for a civil forfeiture. In an action for a civil forfeiture under this subsection a corporation may be required to forfeit not more than $100,000 and any other person may be required to forfeit not more than $50,000.
(4) This section does not apply to ambulance service contracted for under ss. 59.54 (1), 60.565, 61.64 and 62.133.
History: 1979 c. 209; 1991 a. 39; 1995 a. 201; 1997 a. 283; 2001 a. 109.
“Rule of reason" and “illegal per se" rules are discussed. Grams v. Boss, 97 Wis. 2d 332, 294 N.W.2d 473 (1980).
Only unreasonable restraints on trade are prohibited. Independent Milk Producers Coop. v. Stoffel, 102 Wis. 2d 1, 298 N.W.2d 102 (Ct. App. 1980).
Refusal by a city to provide sewage service to a portion of a town unless inhabitants agreed to annexation of that portion did not violate antitrust law. Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982).
The antitrust law demonstrates the legislature's intent to subordinate city home-rule authority to its provisions. Unless legislation at least impliedly authorizes a city's anticompetitive action, the city has violated the antitrust law. Amer. Med. Transp. v. Curtis-Universal, 154 Wis. 2d 135, 452 N.W.2d 575 (1990).
The test for applicability of the state antitrust law is whether the legislature intended to allow municipalities to undertake such actions. A city may tie the provision of sewage services to an area outside the city to the acceptance by the area's inhabitants of the city's other services. Town of Neenah Sanitary District No. 2 v. City of Neenah, 2002 WI App 155, 256 Wis. 2d 296, 647 N.W.2d 913, 01-2520.
To prove an allegation of predatory pricing, the plaintiff must show: 1) the prices and other direct revenues from the practice complained of are below an appropriate measure of the defendant's costs; and 2) the defendant has a dangerous probability of recouping its investment losses in its below-cost prices by later raising prices above competitive levels. Conley Publishing Group, Ltd. v. Journal Communications, Inc. 2003 WI 119, 265 Wis. 2d 128, 665 N.W.2d 879, 01-3128.
Chapter 133, particularly s. 133.03, applies to interstate commerce in some circumstances. A complaint under ch. 133 must allege that: 1) actionable conduct, such as the formation of a combination or conspiracy, occurred within this state, even if its effects are felt primarily outside Wisconsin; or 2) the conduct complained of substantially affects the people of Wisconsin and has impacts in this state, even if the illegal activity resulting in those impacts occurred predominantly or exclusively outside this state. Olstad v. Microsoft Corporation, 2005 WI 121, 284 Wis. 2d 224, 700 N.W.2d 139, 03-1086.
The public interest and welfare of the people of Wisconsin are substantially affected, as required in Olstad, if prices of a product are fixed or supplies thereof are restricted as the result of an illegal combination or conspiracy. Meyers v. Bayer AG, 2006 WI App 102, 293 Wis. 2d 770, 718 N.W.2d 251, 03-2840.
The test for substantial effects under Olstad requires that the appellants allege: 1) specific effects on Wisconsin commerce, not merely effects that are nationwide; and 2) that these effects on Wisconsin are more than a general nationwide effect on price. Szukalski v. Crompton Corporation, 2006 WI App 195, 296 Wis. 2d 728, 726 N.W. 2d 304, 03-3132.
When the circumstances involve interstate commerce and the challenged conduct occurred outside of Wisconsin, a complaint under ch. 133 is sufficient if it alleges price fixing as a result of the formation of a combination or conspiracy that substantially affected the people of Wisconsin and had impacts in this state. Plaintiffs are not required to assert allegations of disproportionate impacts on Wisconsin. An allegation that thousands of Wisconsin consumers paid supracompetitive prices as a result of monopolistic conduct by an interstate seller states a basis for recovery. Meyers v. Bayer AG, 2007 WI 99, 303 Wis. 2d 295, 735 N.W.2d 448, 03-2840.
Chapter 125 contemplates and expressly directs that regulation is to supersede competition in the retail sale of alcohol beverages. The regulatory scheme indicates a legislative intent to make state antitrust law not applicable by authorizing contrary or inconsistent conduct by granting municipalities broad statutory authority to prescribe or orchestrate anticompetitive regulation in the sale and consumption of alcohol if that regulation serves an important public interest. Private parties are eligible for antitrust immunity when they act in concert, in an anticompetitive manner, in direct response to pressure bordering on compulsion from a municipality. Eichenseer v. Madison-Dane County Tavern League, Inc. 2008 WI 38, 308 Wis. 2d 684, 748 N.W.2d 154, 05-1063.
The state antitrust statute was intended to be a reenactment of the federal Sherman Antitrust Act and is generally controlled by federal court decisions. Lerma v. Univision Communications, Inc. 52 F. Supp. 2d 1011 (1999).