2017 Wisconsin Statutes & Annotations
Chapter 803. Civil procedure — parties.
803.08 Class actions.
803.08 Class actions.
(1) Class actions may be maintained. When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole, except that 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.
(2) Disposition of residual funds.
(a) In this subsection:
1. “Residual Funds" means funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorney fees and other court-approved disbursements in an action under this section.
2. “WisTAF" means the Wisconsin Trust Account Foundation, Inc.
(b)
1. Any order entering a judgment or approving a proposed compromise of a class action that establishes a process for identifying and compensating members of the class shall provide for disbursement of any residual funds. In class actions in which residual funds remain, not less than fifty percent of the residual funds shall be disbursed to WisTAF to support direct delivery of legal services to persons of limited means in non-criminal matters. The circuit court may disburse the balance of any residual funds beyond the minimum percentage to WisTAF for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class.
2. This subsection does not prohibit the trial court from approving a settlement that does not create residual funds.
The class action statute, s. 260.12 [now s. 803.08], 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 (1974). But see also Townsend v. Neenah Joint School District, 2014 WI App 117, 358 Wis. 2d 618, 856 N.W.2d 644, 13-2839.
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 Const. Inc. 83 Wis. 2d 171, 265 N.W.2d 482 (1978).
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 Association, 83 Wis. 2d 668, 266 N.W.2d 352 (1978).
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).
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).
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 Record v. Economic Consultants, 91 Wis. 2d 482, 283 N.W.2d 613 (Ct. App. 1979).
In addition to considering the Mercury 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.
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 his or her 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.
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.
A Call to Reform: Wisconsin's Class-Action Statute. Benson, Olson, & Kaplan. Wis. Law. Sept. 2011.
