                                                             2020 WI 2

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2017AP2361


COMPLETE TITLE:        Chris Hinrichs and Autovation Limited,
                                 Plaintiffs-Appellants-Petitioners,
                            v.
                       The DOW Chemical Company d/b/a Dow Automotive,
                                 Defendant-Respondent-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 386 Wis. 2d 351,927 N.W.2d 156
                                     (2019 – unpublished)

OPINION FILED:         January 9, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         October 3, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Waukesha
   JUDGE:              Kathryn W. Foster

JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ROGGENSACK, C.J., ZIEGLER and DALLET, JJ.,
joined and REBECCA GRASSL BRADLEY, J., joined with respect to
Parts I, II, and III. REBECCA GRASSL BRADLEY, J., filed an
opinion concurring in part and dissenting in part.
NOT PARTICIPATING:
KELLY and HAGEDORN, JJ.

ATTORNEYS:



      For the defendant-respondent-petitioner, there were briefs
filed by Patrick M. Harvey, Gabrielle Baumann Adams, and Husch
Blackwell LLP, Milwaukee. There was an oral argument by Patrick M.
Harvey.


      For the plaintiff-appellant-petitioner, there were briefs
filed by Terry J. Booth and Rogahn Jones LLC, Waukesha. There was
an oral argument by Terry J. Booth.
                                                                     2020 WI 2
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.    2017AP2361
(L.C. No.   2016CV1544)

STATE OF WISCONSIN                       :              IN SUPREME COURT

Chris Hinrichs and Autovation Limited,

            Plaintiffs-Appellants-Petitioners,
                                                                 FILED
      v.
                                                             JAN 9, 2020
The DOW Chemical Company d/b/a Dow Automotive,
                                                                Sheila T. Reiff
            Defendant-Respondent-Petitioner.                Clerk of Supreme Court




ANN WALSH BRADLEY, J., delivered the majority opinion of the Court,
in which ROGGENSACK, C.J., ZIEGLER and DALLET, JJ., joined and
REBECCA GRASSL BRADLEY, J., joined with respect to Parts I, II,
and III. REBECCA GRASSL BRADLEY, J., filed an opinion concurring
in part and dissenting in part.

KELLY and HAGEDORN, JJ., did not participate.




      REVIEW of a decision of the Court of Appeals.           Affirmed.



      ¶1    ANN WALSH BRADLEY, J.     In this case we are asked to

address a multitude of issues that arise out of common law and

statutory misrepresentation claims.    Along the way, we discuss the

economic loss doctrine together with its exceptions and examine
statutes and their applications.
                                                              No.   2017AP2361



     ¶2   Both parties to this case seek review of aspects of an

unpublished, per curiam decision of the court of appeals.1                The

court of appeals affirmed the circuit court's dismissal of Chris

Hinrichs and Autovation Limited's (collectively, Hinrichs) common

law misrepresentation claims against the DOW Chemical Company

(Dow) and reversed the circuit court's dismissal of Hinrichs'

statutory claim made pursuant to Wis. Stat. § 100.18 (2015-16).2

     ¶3   Hinrichs   appeals   the       dismissal    of   his   common   law

misrepresentation claims.      Specifically, he contends that the

court of appeals erred by applying the economic loss doctrine to

bar such claims.   He argues that the "fraud in the inducement" and

"other property" exceptions to the economic loss doctrine apply

and that as a result his common law claims should go forward.

     ¶4   Dow cross-petitioned for review of the court of appeals'

determination that Hinrichs' Wis. Stat. § 100.18 claim survives

its motion to dismiss.     It asserts first that Hinrichs' statutory

claim is barred by the economic loss doctrine.             Next, it contends

that Hinrichs is not "the public" within the meaning of § 100.18
and that this court should overrule its previous decision in State

v. Automatic Merchs. of Am., Inc., 64 Wis. 2d 659, 221 N.W.2d 683

(1974).   Finally,   Dow   contends      that   the   heightened    pleading

standard set forth by Wis. Stat. § 802.03(2) for claims of fraud

     1 Hinrichs v. The DOW Chemical Co., No. 2017AP2361,
unpublished slip op. (Wis. Ct. App. Feb. 6, 2019) (per curiam)
(affirming in part and reversing in part an order of the circuit
court for Waukesha County, Kathryn W. Foster, Judge).
     2 All subsequent references to the Wisconsin statutes are to
the 2015-16 version unless otherwise indicated.

                                     2
                                                             No.     2017AP2361



applies to claims made under § 100.18, and that Hinrichs' complaint

fails to meet those heightened standards.

      ¶5   In examining Hinrichs' common law claims, we conclude

that the "fraud in the inducement" exception to the economic loss

doctrine does not apply to allow Hinrichs' common law claims to go

forward because the alleged misrepresentation is related to the

quality and characteristics of the product in question and is thus

not extraneous to the contract.            We further conclude that the

"other property" exception to the economic loss doctrine does not

apply to allow Hinrichs' common law claims to go forward because

the JeeTops and adhesive are components of an integrated system.

      ¶6   With regard to Hinrichs' statutory claim, we conclude

first that the economic loss doctrine does not serve as a bar to

claims made under Wis. Stat. § 100.18.            We conclude second that

one   person   can   be   "the   public"   for   purposes   of     Wis.   Stat.

§ 100.18(1) and decline Dow's invitation to overrule Automatic

Merchandisers.       The court of appeals correctly determined that

dismissal for failure to meet "the public" component of a § 100.18
claim in this case was in error.           Finally, we conclude that the

heightened pleading standard set forth by Wis. Stat. § 802.03(2)

for claims of fraud does not apply to claims made under Wis. Stat.

§ 100.18 and that Hinrichs' complaint states a claim under the

general pleading standard.

      ¶7   Accordingly, we affirm the decision of the court of

appeals.




                                      3
                                                               No.    2017AP2361



                                      I

     ¶8    The facts set forth below are taken from Hinrichs'

complaint.       Because   we   are    reviewing     the   circuit     court's

determination of a motion to dismiss for failure to state a claim,

we must assume that these facts are true.3

     ¶9    Hinrichs developed a product called JeeTops, which he

manufactures and installs through his company, Autovation Limited.

He obtained a patent for the JeeTops in 2010.

     ¶10   JeeTops are acrylic skylights installed aftermarket in

the roofs of Jeep Wrangler vehicles equipped with a certain type

of hardtop.    The complaint describes the JeeTops as giving "front-

seat passengers unparalleled views of the outdoors" and rear-seat

passengers "unprecedented panoramic views."            After installation,

"[t]he cumulative effect is to give the Wrangler's occupants the

sensation of directly experiencing the environment through which

they are driving."

     ¶11   Installation    of   JeeTops     is     accomplished      using   an

adhesive manufactured by Dow.         The adhesive performs a dual role,
attaching the JeeTops to the existing Jeep and maintaining a

watertight seal.

     ¶12      In 2013, Mark Formentini, an agent for Dow, informed

Hinrichs that Dow had a new primer available for use with the

adhesive   employed   in   installing     JeeTops    panels.         Formentini



     3 See Yacht Club at Sister Bay Condominium Ass'n, Inc. v.
Village of Sister Bay, 2019 WI 4, ¶4, 385 Wis. 2d 158, 922
N.W.2d 95.

                                      4
                                                               No.      2017AP2361



further informed Hinrichs that the primer would be tested with the

acrylic used in JeeTops.

     ¶13   Shortly     thereafter,   Hinrichs        relayed   to       Dow   that

customers were experiencing cracks in their JeeTops panels.                    Dow

responded that the acrylic used in the JeeTops had been sent to

its labs for testing.

     ¶14   After completing testing, Dow sent a report to Hinrichs

claiming that the adhesive was properly functioning.                 The report

further indicated that Dow found "[n]o evidence of any crazing or

surface cracking . . . ."

     ¶15   Hinrichs continued purchasing and using Dow adhesives to

install JeeTops, but customers continued to observe crazing and

fracturing of the acrylic.        By October of 2014, one-third of all

JeeTops panel installations using the Dow adhesive system had

failed.

     ¶16   Investigation eventually revealed that the Dow adhesive

was attacking the integrity of the acrylic, which caused the panels

to leak, and subsequently to craze and fracture.                 By this time
JeeTops had received extensive negative publicity, high profile

customers had stopped purchasing the product, and dealers had

dropped JeeTops from their product lines.

     ¶17   In   time   Hinrichs    was   able   to    identify      a    suitable

replacement adhesive, but by then the product had suffered a rash

of negative publicity.     As a result, Hinrichs alleges that despite

the warm reception JeeTops initially received, he is unable to

sell them because of the perception that they are unreliable.


                                     5
                                                        No.   2017AP2361



     ¶18    Following these events, Hinrichs brought four causes of

action against Dow:      negligent misrepresentation, intentional

misrepresentation,    strict   responsibility   misrepresentation   and

violation of Wis. Stat. § 100.18(1).4      Dow moved to dismiss the

complaint for failure to state a claim upon which relief can be

granted.5



     4   Wisconsin Stat. § 100.18(1) provides:

     No person, firm, corporation or association, or agent or
     employee thereof, with intent to sell, distribute,
     increase the consumption of or in any wise dispose of
     any real estate, merchandise, securities, employment,
     service, or anything offered by such person, firm,
     corporation or association, or agent or employee
     thereof, directly or indirectly, to the public for sale,
     hire, use or other distribution, or with intent to induce
     the public in any manner to enter into any contract or
     obligation relating to the purchase, sale, hire, use or
     lease of any real estate, merchandise, securities,
     employment or service, shall make, publish, disseminate,
     circulate, or place before the public, or cause,
     directly or indirectly, to be made, published,
     disseminated, circulated, or placed before the public,
     in this state, in a newspaper, magazine or other
     publication, or in the form of a book, notice, handbill,
     poster, bill, circular, pamphlet, letter, sign, placard,
     card, label, or over any radio or television station, or
     in any other way similar or dissimilar to the foregoing,
     an    advertisement,     announcement,    statement    or
     representation of any kind to the public relating to
     such purchase, sale, hire, use or lease of such real
     estate, merchandise, securities, service or employment
     or   to  the   terms    or  conditions   thereof,   which
     advertisement,       announcement,      statement      or
     representation contains any assertion, representation or
     statement of fact which is untrue, deceptive or
     misleading.
     5   See Wis. Stat. § 802.06(2)(a)6.

                                   6
                                                                   No.    2017AP2361



       ¶19   The circuit court granted Dow's motion to dismiss.                  As

relevant here, the circuit court determined first that the economic

loss    doctrine   barred     Hinrichs'     common    law   misrepresentation

claims.      It characterized Hinrichs' losses as purely economic in

nature and rejected Hinrichs' argument that either the "fraud in

the inducement" exception or "other property" exception applied.

       ¶20   Second, the circuit court determined that Hinrichs' Wis.

Stat. § 100.18 claim must fail because Hinrichs is not "the public"

within the meaning of the statute. Specifically, the circuit court

based     its   conclusion     on     the    "plain     inference        from   the

complaint . . . that Dow's agent had already been dealing with

Plaintiff, and was merely offering another product to them."

       ¶21   Hinrichs appealed and the court of appeals affirmed in

part and reversed in part.            The court of appeals affirmed the

circuit court's determination that the economic loss doctrine bars

Hinrichs' common law misrepresentation claims.               Like the circuit

court, the court of appeals concluded that neither of the claimed

exceptions to the economic loss doctrine applied.             Hinrichs v. The
DOW Chemical Co., No. 2017AP2361, unpublished slip op., ¶¶14-16

(Wis. Ct. App. Feb. 6, 2019) (per curiam).

       ¶22   However,   the   court    of   appeals     reversed    the    circuit

court's determination with regard to the Wis. Stat. § 100.18 claim.

It concluded that "dismissal of the Wis. Stat. § 100.18 claim based

upon the failure to meet 'the public' component of the first

element was improper.         The issue requires further exploration

through the discovery process."             Id., ¶22.     Hinrichs petitioned
for review of the court of appeals' conclusion regarding the common
                                        7
                                                                       No.   2017AP2361



law misrepresentation claims, and Dow cross-petitioned for review

of the § 100.18(1) issue.

                                            II

     ¶23    We     are    asked        to   review     the     court    of   appeals'

determination affirming in part and reversing in part the circuit

court's grant of Dow's motion to dismiss for failure to state a

claim.     Whether a motion to dismiss was properly granted is a

question     of    law    this    court          reviews   independently      of    the

determinations rendered by the circuit court and court of appeals.

Town of Lincoln v. City of Whitehall, 2019 WI 37, ¶21, 386

Wis. 2d 354, 925 N.W.2d 520.

     ¶24    A motion to dismiss tests the legal sufficiency of the

complaint.       Meyers v. Bayer AG, Bayer Corp., 2007 WI 99, ¶21, 303

Wis. 2d 295, 735 N.W.2d 448.                Under our established methodology

for review of a motion to dismiss, we accept all facts pleaded in

the complaint as true.           Id.

     ¶25    In our review, we are called upon to review the court of

appeals'    determination        that       the    economic    loss    doctrine    bars
Hinrichs' common law misrepresentation claims.                     The application of

the economic loss doctrine to a set of facts presents a question

of law we review independently from the determinations of the

circuit court and court of appeals.                  Insurance Co. of N. Am. v.

Cease    Elec.    Inc.,    2004    WI       139,    ¶15,     276   Wis. 2d 361,     688

N.W.2d 462.

     ¶26    Next, we are asked to review the court of appeals'

conclusion that Hinrichs' claim under Wis. Stat. § 100.18(1) may
proceed.     In our review, we must interpret §§ 100.18(1) and Wis.
                                             8
                                                            No.     2017AP2361



Stat. 802.03(2).      Statutory interpretation likewise presents a

question of law we review independently without deference to the

interpretations of the circuit court or court of appeals.               Maple

Grove Country Club Inc. v. Maple Grove Estates Sanitary Dist.,

2019 WI 43, ¶25, 386 Wis. 2d 425, 926 N.W.2d 184.

                                   III

     ¶27   We address first whether the economic loss doctrine bars

Hinrichs' common law misrepresentation claims.            For context, we

initially set forth the legal principles underlying the economic

loss doctrine.    Subsequently, we address the applicability of the

"fraud in the inducement" and "other property" exceptions to the

economic loss doctrine in this case.

     ¶28   Second, we address whether the court of appeals properly

determined that Hinrichs' Wis. Stat. § 100.18 claim survives Dow's

motion to dismiss.    In our review, we analyze whether the economic

loss doctrine can bar claims made pursuant to § 100.18(1).             Next,

we examine whether Hinrichs is properly "the public" for purposes

of § 100.18(1).      We then address whether a claim pursuant to
§ 100.18(1) is subject to the heightened pleading standard set

forth by Wis. Stat. § 802.03(2) for claims of fraud and whether

Hinrichs' complaint meets the applicable standard.

                                    A

     ¶29   The   economic   loss   doctrine   is   a   judicially    created

doctrine with three primary purposes.         Van Lare v. Vogt, Inc.,

2004 WI 110, ¶17, 274 Wis. 2d 631, 683 N.W.2d 46 (citing Daanen &

Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 403, 573
N.W.2d 842 (1998)).    First, the doctrine exists to "maintain the
                                    9
                                                               No.   2017AP2361



fundamental distinction between tort law and contract law . . . ."

Id.   Second, it protects "commercial parties' freedom to allocate

economic risk by contract . . . ."           Id.      Third, the doctrine

encourages "the party best situated to assess the risk [of]

economic loss, the commercial purchaser, to assume, allocate, or

insure against that risk."    Id.    The doctrine has been part of our

jurisprudence   since   it   was   first    adopted      by   this   court   in

Sunnyslope Grading, Inc. v. Miller, Bradford and Risberg, Inc.,

148 Wis. 2d 910, 437 N.W.2d 213 (1989).

      ¶30   We have described the economic loss doctrine as holding

that "a commercial purchaser of a product cannot recover solely

economic losses from the manufacturer under negligence or strict

liability   theories . . . ."       Van    Lare,   274   Wis. 2d 631,     ¶18.

"Economic loss" in the context of the doctrine is defined as "the

loss in a product's value which occurs because the product is

'inferior in quality and does not work for the general purposes

for which it was manufactured and sold.'"             Insurance Co. of N.

Am., 276 Wis. 2d 361, ¶23 (quoting Wausau Tile, Inc. v. Cty.
Concrete Corp., 226 Wis. 2d 235, 246, 593 N.W.2d 445 (1999)). Both

direct and consequential economic loss are encompassed within this

definition.   Daanen & Janssen, Inc., 216 Wis. 2d at 401.

      ¶31   The upshot of the economic loss doctrine is that it

"requires transacting parties in Wisconsin to pursue only their

contractual remedies when asserting an economic loss claim, in

order to preserve the distinction between contract and tort." Ins.

Co. of N. Am., 276 Wis. 2d 361, ¶24 (quoting Digicorp, Inc. v.
Ameritech Corp., 2003 WI 54, ¶34, 262 Wis. 2d 32, 662 N.W.2d 652).
                                    10
                                                                  No.     2017AP2361



It "precludes parties under certain circumstances from eschewing

the more limited contract remedies and seeking tort remedies."

Id.

                                      B

      ¶32   We have recognized several exceptions to the economic

loss doctrine, two of which are at issue here.                        See John J.

Laubmeier, Demystifying Wisconsin's Economic Loss Doctrine, 2005

Wis. L. Rev. 225, 228 (2005).        First, we address the "fraud in the

inducement"   exception.         Subsequently,     we    turn    to     the   "other

property" exception.

      ¶33   This   court   has    recognized      "a    narrow   fraud        in   the

inducement exception" to the economic loss doctrine.                          Kaloti

Enters.,    Inc.   v.   Kellogg   Sales    Co.,    2005    WI    111,    ¶42,      283

Wis. 2d 555, 699 N.W.2d 205. We have emphasized the limited nature

of this exception.      See id.

      ¶34   As explained by the Michigan court of appeals, on whose

opinion we relied in Kaloti Enters.,

      Fraud in the inducement presents a special situation
      where parties to a contract appear to negotiate freely—
      —which normally would constitute grounds for invoking
      the economic loss doctrine——but where in fact the
      ability of one party to negotiate fair terms and make an
      informed decision is undermined by the other party's
      fraudulent behavior.
Huron Tool and Eng'g Co. v. Precision Consulting Servs., Inc., 532

N.W.2d 541, 545 (Mich. Ct. App. 1995).

      ¶35   Pursuant to this exception, "a fraud in the inducement

claim is not barred by the economic loss doctrine where the fraud
is extraneous to, rather than interwoven with, the contract."


                                      11
                                                                           No.     2017AP2361



Kaloti   Enters.,      283      Wis. 2d 555,         ¶42    (citations      and    internal

quotation omitted).             To invoke the "fraud in the inducement"

exception, a plaintiff must demonstrate three elements:                            (1) that

the defendant engaged in an intentional misrepresentation; (2)

that   the   misrepresentation           occurred          before   the    contract      was

formed; and (3) that the alleged misrepresentation was extraneous

to the contract.       Id.      Stating the third element differently, the

misrepresentation          must      "concern[]        matters       whose        risk    and

responsibility did not relate to the quality or the characteristics

of the goods for which the parties contracted or otherwise involved

performance of the contract."                 Id.

       ¶36   A     misrepresentation            relates       to     the     quality       or

characteristics of the goods sold if it is expressly dealt with in

the contract's terms.            Id., ¶43.          If not addressed explicitly in

the contract, a misrepresentation is still related to the quality

or characteristics of the goods sold, precluding the application

of     the   "fraud        in     the     inducement"          exception,          if    the

misrepresentation          informs      the    reasonable      expectations         of    the
parties to the risk of loss in the event the goods purchased did

not meet the purchaser's expectations.                     Id. (citations omitted).

       ¶37   Hinrichs urges us to apply the "fraud in the inducement"

exception    here     to    preclude      application         of    the    economic      loss

doctrine.        He contends that his prior purchases of adhesive from

Dow do not preclude a claim where a subsequent purchase is induced

by a misrepresentation.

       ¶38   We disagree with Hinrichs.               His argument ignores a fatal
shortcoming:        that the alleged misrepresentation regarding the
                                              12
                                                                 No.   2017AP2361



effectiveness of Dow's adhesive is related to the quality and

characteristics   of    the   product    in   question     and   is    thus   not

extraneous to the contract.        As the court of appeals correctly

stated, "[w]hether the Dow adhesive was properly functioning on

the acrylic used in JeeTops directly relates to its quality and

characteristics——in particular its ability to maintain a water-

tight seal, which was one of its main functions."                Hinrichs, No.

2017AP2361, unpublished slip op., ¶14.          Hinrichs therefore cannot

fulfill the third necessary element for application of the "fraud

in the inducement" exception.

     ¶39   Therefore,    we    conclude       that   the    "fraud      in    the

inducement" exception to the economic loss doctrine does not apply

to allow Hinrichs' common law misrepresentation claims to go

forward because the alleged misrepresentation is related to the

quality and characteristics of the product in question and is thus

not extraneous to the contract.

                                     C

     ¶40   We turn now to the "other property" exception to the
economic loss doctrine.       Pursuant to this exception, the economic

loss doctrine "does not bar a commercial purchaser's claims based

on personal injury or damage to property other than the product,

or economic loss claims that are alleged in combination with

noneconomic losses."     Daanen & Janssen, Inc., 216 Wis. 2d at 402;

Grams v. Milk Products, Inc., 2005 WI 112, ¶24, 283 Wis. 2d 511,

699 N.W.2d 167.   In other words, the economic loss doctrine bars

"the recovery of purely economic losses in consumer transactions
through tort remedies where the only damage is to the product
                                    13
                                                           No.   2017AP2361



purchased by the consumer."   State Farm Fire and Cas. Co. v. Hague

Quality Water, Int'l, 2013 WI App 10, ¶6, 345 Wis. 2d 741, 826

N.W.2d 412 (citing State Farm Mut. Auto. Ins. Co. v. Ford Motor

Co., 225 Wis. 2d 305, 341, 348, 592 N.W.2d 201 (1999)).

     ¶41     To determine whether the "other property" exception

applies, we apply a two part test.      Id.   First, we consider whether

the defective product and the damaged property are part of an

"integrated system." Id., ¶7. If the product and damaged property

are part of such a system, then any damage to that property is

considered to be damage to the product itself.       Id.   That is, "once

a part becomes integrated into a completed product or system, the

entire product or system ceases to be 'other property' for purposes

of the economic loss doctrine."        Selzer v. Brunsell Bros., Ltd.,

2002 WI App 232, ¶38, 257 Wis. 2d 809, 652 N.W.2d 806 (citations

omitted).6



     6 Hinrichs urges us to adopt a new test he terms the "product
bargained for" test in determining whether products constitute an
"integrated system." He explains such a test as based on "what
the buyer agreed to buy and what the seller agreed to sell." In
Hinrichs' view, the adhesive and JeeTops were not an integrated
system because the bargain he entered into with Dow was for the
purchase of the adhesive as a standalone product and not as part
of a fully integrated system.

     We decline to adopt Hinrichs' "product bargained for"
analysis. Hinrichs does not identify any infirmity in the current
test that would require us to depart from our prior case law.
Further, we observe that the Wausau Tile court rejected a similar
contention that the "integrated system" rule does not apply where
a party buys only a component and not the fully integrated system.
See Wausau Tile, Inc. v. Cty. Concrete Corp., 226 Wis. 2d 235, 252
n.10, 593 N.W.2d 445 (1999).

                                  14
                                                             No.   2017AP2361



      ¶42   If the damaged property and the defective product are

not part of an integrated system, we then apply the second part of

the "other property" test——the "disappointed expectations" test.

State Farm Fire and Cas. Co., 345 Wis. 2d 741, ¶7.            In doing so,

we focus on the product's expected function and whether the

purchaser should have foreseen that the product could cause the

damage at issue.    Id.   When claimed damages are merely the result

of   disappointed   expectations   of    a    product's   performance,   the

exception will not apply and the economic loss doctrine will bar

recovery in tort.    Grams, 283 Wis. 2d 511, ¶3.

      ¶43   The court of appeals here concluded that the JeeTops and

the adhesive were components of an integrated system.              Hinrichs,

No. 2017AP2361, unpublished slip op., ¶15.                It reasoned that

"[t]hey became components of an integrated system once the adhesive

was applied to bond the JeeTops to the motor vehicle.               At that

point, they were integral parts of a greater whole and did not

serve an independent purpose."          Id.    Accordingly, the court of

appeals concluded that the "other property" exception did not
apply.    Id.

      ¶44   We agree with the court of appeals that the JeeTops and

the adhesive formed an integrated system.7                Wausau Tile, 226

      7Because we determine that the JeeTops and adhesive were
components of an integrated system, we need not consider the second
part of the "other property" test——disappointed expectations. See
State Farm Fire and Cas. Co. v. Hague Quality Water, Int'l, 2013
WI App 10, ¶7, 345 Wis. 2d 741, 826 N.W.2d 412 ("If the damaged
property is not part of an integrated system with the defective
product, then courts apply the 'disappointed expectations'
test . . . .") (emphasis added).

                                   15
                                                         No.   2017AP2361



Wis. 2d 235, provides a useful analogy.      In that case, Wausau Tile

purchased cement from Medusa Corporation for use in manufacturing

concrete paving blocks.    Id. at 241.    Wausau Tile claimed that the

concrete it received from Medusa was defective and brought claims

against Medusa sounding in both contract and tort.        Id. at 242.

     ¶45    This court determined that the economic loss doctrine

barred Wausau Tile's tort claims.        Id. at 241.   Rejecting Wausau

Tile's argument that the "other property" exception applies, this

court reasoned that "the pavers were integrated systems comprised

of several component materials, including Medusa's cement."          Id.

at 251.    "[V]arious substances incorporated into finished products

constitute integral components of those products."        Id. (citation

omitted).

     ¶46    Similarly here, when the adhesive joins a JeeTops to the

body of a Jeep, it creates an integrated system.       An adhesive does

not function on its own——its basic purpose is to integrate two

parts by adhering them together.       Like the court of appeals did,

we see no relevant difference between the products here and others
that courts have determined to be components of an integrated

system, such as the cement in a concrete paving block in Wausau

Tile, a window in a house,8 a gear in a printing press,9 a generator




     8 Selzer v. Brunsell Bros., Ltd., 2002 WI App 232, ¶38, 257
Wis. 2d 809, 652 N.W.2d 806.
     9 Cincinnati Ins. Co. v. AM Int'l, Inc., 224 Wis. 2d 456, 463,
591 N.W.2d 869 (Ct. App. 1999).

                                  16
                                                              No.      2017AP2361



connected to a turbine,10 and a drive system in a helicopter.11

Hinrichs, No. 2017AP2361, unpublished slip op., ¶15 n.2 (citing

Selzer, 257 Wis. 2d 809, ¶¶38-39).

     ¶47    Accordingly,   we     conclude   that   the    "other   property"

exception to the economic loss doctrine does not apply to allow

Hinrichs'   common   law   misrepresentation        claims   to   go    forward

because the JeeTops and adhesive are components of an integrated

system.

                                     IV

                                      A

     ¶48    We   address   next    Hinrichs'   claim      under   Wis.    Stat.

§ 100.18.    Section 100.18(1) provides in relevant part:

     No person, firm, corporation or association, or agent or
     employee       thereof,       with       intent       to
     sell . . . merchandise . . . or with intent to induce
     the public in any manner to enter into any contract or
     obligation relating to the purchase, . . . shall make,
     publish, disseminate, circulate, or place before the
     public, or cause, directly or indirectly, to be made,
     published, disseminated, circulated, or placed before
     the   public, . . . an   advertisement,    announcement,
     statement or representation of any kind to the
     public . . . contain[ing] any assertion, representation
     or statement of fact which is untrue, deceptive or
     misleading.
     ¶49    This section is part of Wisconsin's Deceptive Trade

Practices Act, the purpose of which is "to protect consumers from

     10Midwhey   Powder  Co.,   Inc.  v.   Clayton   Indus.,                 157
Wis. 2d 585, 590-91, 460 N.W.2d 426 (Ct. App. 1990).
     11Midwest Helicopters Airways, Inc. v. Sikorsky Aircraft,
Div. of United Technologies Corp., 849 F. Supp. 666, 672 (E.D.
Wis. 1994), aff'd Nos. 94-1645, 94-1700, 1994 WL 682906 (7th Cir.
1994).

                                     17
                                                        No.   2017AP2361



untrue, deceptive or misleading representations to promote the

sale of a product."     Bonn v. Haubrich, 123 Wis. 2d 168, 173, 366

N.W.2d 503 (Ct. App. 1985).    It is also intended "to deter sellers

from making false and misleading representations in order to

protect the public."     Novell v. Migliaccio, 2008 WI 44, ¶30, 309

Wis. 2d 132, 749 N.W.2d 544.

      ¶50    As a threshold matter, we consider whether the economic

loss doctrine bars claims made pursuant to Wis. Stat. § 100.18.

The court of appeals has previously concluded that the economic

loss doctrine does not serve as such a bar.      Kailin v. Armstrong,

2002 WI App 70, ¶43, 252 Wis. 2d 676, 643 N.W.2d 132.

      ¶51    In Kailin, the court of appeals rejected an argument

that Wis. Stat. § 100.18 does not create a new cause of action,

but instead provides a remedy for common law claims.          Id., ¶42.

Because Wis. Stat. § 100.18 creates a new cause of action, the

court   of    appeals   therefore   saw   "nothing   supporting   [the]

conclusion that the economic loss doctrine applies to claims under

§ 100.18."     Id.   The Kailin court further found "no argument to
link the rationale for the economic loss doctrine to the purpose

of § 100.18 . . . ."     Id.

      The legislature has plainly chosen in § 100.18 to
      provide protection and remedies for false advertising
      that do not exist at common law. The underpinnings of
      the economic loss doctrine——protecting parties' freedom
      to allocate economic risk by contract, encouraging the
      purchaser to assume, allocate, or insure against that
      risk, and maintaining the fundamental distinction
      between tort and contract law——are either irrelevant to,
      or inconsistent with, that legislative choice.
Id.

                                    18
                                                             No.       2017AP2361



       ¶52    Dow urges us to reject Kailin's approach and apply the

economic loss doctrine to bar the Wis. Stat. § 100.18 claim in

this case.      It contends that Kailin was decided in the context of

a consumer relationship, and is therefore distinguishable from the

sophisticated commercial relationship in which the claim arises

here.

       ¶53    For support, Dow turns to two federal district court

cases.       First, in MBI Acquisition Partners, L.P. v. Chronicle

Publ'g Co., 301 F. Supp. 2d 873, 885-86 (W.D. Wis. 2002), the court

granted the defendants summary judgment on the plaintiff's Wis.

Stat. § 100.18 claims on the basis of the economic loss doctrine.

Second,      in Weather Shield Mfg., Inc. v. PPG Indus., Inc., No. 97-

C-707-S, 1998 WL 469913, at *6 (W.D. Wis. June 11, 1998), the court

applied the economic loss doctrine to § 100.18 claims, reasoning,

"exempting § 100.18 claims from the effects of the economic loss

doctrine would virtually nullify the doctrine since § 100.18 is

broad enough to encompass nearly every misrepresentation claim in

the commercial sales context, and claims arising from product
failure can readily be recast as misrepresentation claims."

       ¶54    The federal court cases on which Dow relies are not

binding on this court.         State v. Wood, 2010 WI 17, ¶18, 323

Wis. 2d 321, 780 N.W.2d 63.         Further, MBI Acquisition Partners,

the one published case Dow cites in support, applied the economic

loss    doctrine   to   § 100.18   claims   with   little   in   the    way   of

analysis.      See MBI Acquisition Partners, 301 F. Supp. 2d at 885-

86.


                                     19
                                                                   No.    2017AP2361



      ¶55   We   reject   Dow's    argument.            Rather    than    adopting

nonbinding authority with scant analysis, we instead reaffirm the

Kailin court's determination on this issue.                      Wisconsin Stat.

§ 100.18 created a new cause of action, providing "protection and

remedies for false advertising that do not exist at common law."

Kailin, 252 Wis. 2d 676, ¶42; see also K & S Tool & Die Corp. v.

Perfection Mach. Sales, Inc., 2007 WI 70, ¶36, 301 Wis. 2d 109,

732   N.W.2d 792    (determining     that    "the   legislature          created    a

distinct cause of action" pursuant to § 100.18).                   As the Kailin

court stated, the policies underlying the economic loss doctrine—

—the allocation of risk and the distinction between tort and

contract    law——are    irrelevant   to     the   legislature's          choice    to

provide a purely statutory cause of action and remedy by way of

§ 100.18.   Kailin, 252 Wis. 2d 676, ¶42.           A common law restriction

like the economic loss doctrine therefore does not apply to

Hinrichs' statutory claim.

      ¶56   Therefore, we conclude that the economic loss doctrine

does not serve as a bar to claims made under Wis. Stat. § 100.18.
                                      B

      ¶57   Having determined that the economic loss doctrine does

not bar claims made pursuant to Wis. Stat. § 100.18, we turn now

to Dow's assertion that Hinrichs is not "the public" for purposes

of the statute.

      ¶58   To prevail on a claim under Wis. Stat. § 100.18, a

plaintiff    must      demonstrate     that       the     defendant        made     a

representation to "the public."             K & S Tool & Die Corp., 301


                                     20
                                                                        No.    2017AP2361



Wis. 2d 109, ¶19.               "The public" is not defined in                 § 100.18,

although courts have interpreted the term.                     Id., ¶20.

     ¶59    In      the     seminal      case      on    the      subject,     Automatic

Merchandisers, a company was alleged to have engaged in a marketing

scheme to sell vending machines at prices in excess of their actual

value.      64     Wis. 2d at         660.      The     company    placed     classified

advertisements in newspapers, and subsequently contacted those who

responded to the advertisement at their homes with deceptive

promotional materials and oral representations.                      Id.

     ¶60    In     its    analysis,      the      Automatic     Merchandisers      court

examined "whether or not Sec. 100.18(1), Stats. applies to oral

representations          made    in   private     conversations       to     prospective

purchasers of the defendants' products."                    Id. at 662.       The court

determined that the statute applies in such a situation:                         "While

the representations were made privately to prospective purchasers

their only relationship to the defendants was that they had

responded     to    advertisements           in    the    classified       sections   of

newspapers.        These persons were members of 'the public' as that
term is used in this statute."               Id. at 663.

     ¶61    Further, the court recognized that "the number of people

involved is not controlling and that 'the public' may be only one

person."     Id. at 664 (citing Ford Hydro-Electric Co. v. Town of

Aurora, 206 Wis. 489, 240 N.W. 418 (1932)).                    "The use of the term

'the public' does not mean that the statements be made to a large

audience."       Id.      Indeed, the use of the term "contemplates the

individual action of one member of the public."                      Id.     Rather than


                                             21
                                                                     No.   2017AP2361



the number of people involved, "[t]he important factor is whether

there is some particular relationship between the parties."                       Id.

      ¶62     Following Automatic Merchandisers, Wisconsin courts have

consistently        applied    the     "particular      relationship"      test     in

determining whether a plaintiff is a member of "the public" for

purposes of Wis. Stat. § 100.18(1).                See, e.g., K & S Tool & Die

Corp., 301 Wis. 2d 109, ¶27; Kailin, 252 Wis. 2d 676, ¶44.                         The

test provides that "a plaintiff remains a member of 'the public'

unless a particular relationship exists between him or her and the

defendant."        K & S Tool & Die Corp., 301 Wis. 2d 109, ¶27.                Whether

such a relationship exists is a question of fact that depends on

the peculiar facts and circumstances of the case.                    Id., ¶¶27, 30

(citing Cawker v. Meyer, 147 Wis. 320, 326, 133 N.W. 157 (1911)).

      ¶63     Dow contends that our previously established framework

of   analysis       strays    from    the     plain   language      of   Wis.    Stat.

§ 100.18(1).        Specifically, it asserts that one person cannot be

"the public" and that consequently we should overrule Automatic

Merchandisers.          In    Dow's     view,      Automatic    Merchandisers       is
inconsistent with the plain meaning of "public."

      ¶64     We    decline    Dow's     invitation     to     overrule    Automatic

Merchandisers.        First, as Automatic Merchandisers states, the use

of   "the    public"    in    Wis.    Stat.      § 100.18(1)    "contemplates      the

individual action of one member of the public." Automatic Merchs.,

64 Wis. 2d at 664; see also Wis JI——Civil 2418 (2017) (referring

to a representation made to "one or more members of the public").

"While      the    readily    apparent      legislative      goal   underlying     the
enactment of § 100.18 is to protect all members of [the] public
                                            22
                                                        No.   2017AP2361



from fraudulent advertisements and deceptive marketing practices,

in its practical application, the section individually protects

each member of the public."        Jersild v. Aker, 775 F. Supp. 1198,

1205 (E.D. Wis. 1991).

     ¶65   For     example,   in      Automatic   Merchandisers,    the

misrepresentation induced action when any individual member of the

public entered into a private interaction with the vending machine

company.   See Automatic Merchs., 64 Wis. 2d at 660.      If only one

person saw the newspaper ad at issue, responded, and formed a

relationship with Automatic Merchandisers, Wis. Stat. § 100.18(1)

was implicated.       Similarly here, a single representation to a

single person is enough to trigger § 100.18(1)'s protections.

     ¶66   Second, the doctrine of stare decisis12 militates against

the precipitous change in the law that Dow seeks.        Stare decisis

is fundamental to the rule of law.          Johnson Controls, Inc. v.

Emp'rs Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 655

N.W.2d 227.      Indeed, "[t]his court follows the doctrine of stare

decisis scrupulously because of our abiding respect for the rule
of law."   Id.

     ¶67   "Fidelity to precedent ensures that existing law will

not be abandoned lightly.     When existing law is open to revision



     12"Stare decisis" refers to the principle that requires
courts to "stand by things decided."       State v. Harrell, 199
Wis. 2d 654, 667, 546      N.W.2d 115 (1996) (Abrahamson, J.,
concurring); see Black's Law Dictionary 1626 (10th ed. 2014)
(defining "stare decisis" as "[t]he doctrine of precedent, under
which a court must follow earlier judicial decisions when the same
points arise again in litigation").

                                    23
                                                                       No.     2017AP2361



in every case, deciding cases becomes a mere exercise of judicial

will, with arbitrary and unpredictable results."                             Schultz v.

Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266 (internal

quotation and citations omitted).                   Accordingly, any departure from

stare decisis requires "special justification."                    Id.

       ¶68    Our      case       law   has    identified    several     criteria     for

overturning prior cases.                Johnson Controls, Inc., 264 Wis. 2d 60,

¶98.    "First, changes or developments in the law have undermined

the rationale behind a decision."                    Id.   "Second, there is a need

to make a decision correspond to newly ascertained facts."                            Id.

"Third,      there     is     a    showing     that    the   precedent    has    become

detrimental to coherence and consistency in the law."                           Id.    We

also consider "whether the prior decision is unsound in principle,

whether      it   is    unworkable        in    practice,    and   whether     reliance

interests are implicated."                Id., ¶99.

       ¶69    In this case, these criteria do not support overturning

Automatic Merchandisers.                As analyzed above, its interpretation is

consistent with both the plain language and the purpose of Wis.
Stat. § 100.18(1).            Cases subsequent to Automatic Merchandisers

have consistently and coherently followed it.                      See, e.g., K & S

Tool & Die Corp., 301 Wis. 2d 109, ¶¶23-27; Bonn, 123 Wis. 2d at

173 n.4.      The particular relationship test is clear and workable.

       ¶70    Accordingly, we reaffirm that one person can be "the

public" for purposes of Wis. Stat. § 100.18(1) and decline Dow's

invitation to overrule Automatic Merchandisers.                          The court of

appeals correctly determined that dismissal for failure to meet


                                               24
                                                     No.   2017AP2361



"the public" component of a § 100.18 claim in this case was in

error.

     ¶71   We emphasize that we are not determining in this opinion

whether Hinrichs is in fact a member of "the public," but rather

that we agree with the court of appeals that dismissal on that

ground was in error.    See Hinrichs, No. 2017AP2361, unpublished

slip op., ¶22.    Whether Hinrichs and Dow were in a "particular

relationship" so as to remove Hinrichs from the realm of "the

public" pursuant to Wis. Stat. § 100.18(1) remains an open question

to be determined by the circuit court after further discovery.

See K & S Tool & Die Corp., 301 Wis. 2d 109, ¶27.

                                 C

     ¶72   Finally, we address whether Hinrichs' claim pursuant to

Wis. Stat. § 100.18 is subject to the heightened pleading standard

set forth by § 802.03(2) for claims of fraud and whether Hinrichs'

complaint states a claim under the appropriate standard.    This is

an issue of first impression that was not addressed by the court

of appeals in this case.
     ¶73   Wisconsin Stat. § 802.03(2) provides in relevant part:

"In all averments of fraud . . . the circumstances constituting




                                25
                                                                     No.    2017AP2361



fraud . . . shall        be    stated    with    particularity."13            To   put

defendants on notice so that they can prepare meaningful responses,

this    statute   requires      that    allegations     of   fraud    specify      the

particular individuals involved, where and when misrepresentations

occurred, and to whom the misrepresentations were made.                        Kaloti

Enters., Inc., 283 Wis. 2d 555, ¶21 (citations omitted).                     In other

words, "[p]articularity means the 'who, what, when, where and

how.'"       Ferris v. Location 3 Corp., 2011 WI App 134, ¶10, 337

Wis. 2d 155, 804 N.W.2d 822 (citing Friends of Kenwood v. Green,

2000 WI App 217, ¶14, 239 Wis. 2d 78, 619 N.W.2d 271).

       ¶74    Dow asserts that Wis. Stat. § 802.03(2)'s heightened

pleading requirements apply to Hinrichs' claim under Wis. Stat.

§ 100.18(1).        Hinrichs      apparently      concedes     this        point   and

accordingly contends that his complaint was sufficient to meet the

heightened standard.

       ¶75    However,    we    are     not    bound   by    Hinrichs'       apparent

concession of law.        See Fletcher v. Eagle River Memorial Hosp.,

Inc., 156 Wis. 2d 165, 179, 456 N.W.2d 788 (1990).                   Consequently,


        The Wis. Stat. § 802.03(2) pleading standard for fraud
       13

claims is more stringent than the standard employed for most other
claims.    Generally, for claims not subject to § 802.03(2) a
plaintiff need only plead "[a] short and plain statement of the
claim, identifying the transaction or occurrence or series of
transactions or occurrences out of which the claim arises and
showing that the pleader is entitled to relief."        Wis. Stat.
§ 802.02(1)(a); see Cattau v. Nat'l Ins. Servs. of Wis., 2019 WI
46, ¶4, 386 Wis. 2d 515, 926 N.W.2d 756 (per curiam); Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶21, 356 Wis. 2d 665,
849 Wis. 2d 693 (citing Strid v. Converse, 111 Wis. 2d 418, 422-
23, 331 N.W.2d 350 (1983)).     Thus, we refer to § 802.03(2) as
creating a "heightened" standard.

                                          26
                                                                         No.       2017AP2361



we    examine    the    question     Dow   poses     and   arrive    at        a   contrary

conclusion.

       ¶76     By its terms, Wis. Stat. § 802.03(2) applies to "all

averments        of      fraud."           Although        entitled        "Fraudulent

representations," the text of Wis. Stat. § 100.18 does not include

the word "fraud."            The title of a statute may be helpful in

resolving ambiguities in a statute, but it is not part of the

statute.       State v. Dorsey, 2018 WI 10, ¶30, 379 Wis. 2d 386, 906

N.W.2d 158; Wis. Stat. § 990.001(6).                 Therefore, we cannot rely on

the    title    of     "fraudulent    representations"        to    determine           that

§ 100.18 is a "fraud" statute to which § 802.03(2) applies.

       ¶77     Case    law   has    previously       indicated   that      Wis.       Stat.

§ 100.18 creates a new cause of action and does not simply provide

a remedy for common law fraud claims. See Kailin, 252 Wis. 2d 676,

¶42.    Through the enactment of § 100.18, "[t]he legislature has

plainly chosen . . . to provide protection and remedies for false

advertising that do not exist at common law."                      Id.     Kailin thus

indicates that common law restrictions do not apply to § 100.18.
See id.      That Wis. Stat. § 802.03(2) may apply to common law fraud

claims therefore does not affect our determination of whether it

also applies to purely statutory claims under § 100.18.

       ¶78     Further, considering the purpose of Wis. Stat. § 100.18

we arrive at the conclusion that the application of heightened

pleading standards would run counter to that purpose.                          As stated,

§ 100.18       serves    a   dual   purpose     of    protecting      consumers          and

deterring sellers from making deceptive representations.                                 See
supra, ¶49; Bonn, 123 Wis. 2d at 173; Novell, 309 Wis. 2d 132,
                                           27
                                                          No.   2017AP2361



¶30.    It is aimed at preventing "certain activities deemed harmful

to citizens' economic and social well-being."        Tim Torres Enters.,

Inc. v. Linscott, 142 Wis. 2d 56, 72, 416 N.W.2d 670 (Ct. App.

1987).

       ¶79    "Section 100.18 has maintained its central importance in

consumer protection for more than a century since its enactment."

John S. Greene, Navigating Wisconsin's Consumer Protection System,

90 Wis. Law. 22, 24 (Sept. 2017); see also James D. Jeffries,

Protection for Consumers Against Unfair and Deceptive Business

Practices in Wisconsin, 57 Marq. L. Rev. 559, 595-605 (1974). "The

state, individual consumers, and business consumers regularly

invoke Wis. Stat, section 100.18 to pursue claims of deceptive

representations."      Greene, supra, at 24.

       ¶80    Consistent with this history and purpose, Wis. Stat.

§ 100.18(11)(b)2. provides for a private cause of action.14            As

       14   Wis. Stat. § 100.18(11)(b)2. provides:

       Any person suffering pecuniary loss because of a
       violation of this section by any other person may sue in
       any court of competent jurisdiction and shall recover
       such pecuniary loss, together with costs, including
       reasonable attorney fees, except that no attorney fees
       may be recovered from a person licensed under ch. 452
       while that person is engaged in real estate practice, as
       defined in s. 452.01(6). Any person suffering pecuniary
       loss because of a violation by any other person of any
       injunction issued under this section may sue for damages
       therefor in any court of competent jurisdiction and
       shall recover twice the amount of such pecuniary loss,
       together with costs, including reasonable attorney fees,
       except that no attorney fees may be recovered from a
       person licensed under ch. 452 while that person is
       engaged in real estate practice, as defined in s.
       452.01(6).

                                    28
                                                                   No.    2017AP2361



such, a successful plaintiff is entitled to recover pecuniary

losses, costs, and reasonable attorney fees.                 § 100.18(11)(b)2.;

see Mark R. Hinkston, Protecting Consumers in the Modern Age:

Wisconsin's Deceptive Trade Practices Act, 81 Wis. Law. 14, 16

(Oct. 2008).    Double damages are available for any violation of an

injunction      previously            issued    pursuant          to      § 100.18.

§ 100.18(11)(b)2.; see Wis. Stat. § 100.18(11)(d) (authorizing the

Department of Agriculture, Trade, and Consumer Protection, the

Department of Justice, or any district attorney to seek a temporary

or permanent injunction of "any violation of this section").

     ¶81   "We have previously recognized that an individual who

brings an action to enforce a statutory right may be acting as a

'private attorney general' to enforce the public's rights under

the statute."     Watkins v. Labor and Indus. Review Comm'n, 117

Wis. 2d 753,    764,        345   N.W.2d 482    (1984)   (citing         Shands   v.

Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506 (1983)).                   Absent

such a private right of action and the prospect of attorney fees,

many victims of deceptive representations "would not be in an
economic position to advance the private and public interest at

stake."      Estate    of    Miller    v.   Storey,   2017   WI    99,    ¶58,    378

Wis. 2d 358, 903 N.W.2d 759.            We must look at Wis. Stat. § 100.18

through this lens when examining the applicable pleading standard.

     ¶82   Heightened pleading requirements may prevent private,

pro se parties from seeking redress for deceptive representations.

Such a requirement would run counter to Wis. Stat. § 100.18's

purpose as a consumer protection statute with a broad scope.                      See
Tim Torres Enters., Inc., 142 Wis. 2d at 72 ("The broad remedial
                                         29
                                                                No.    2017AP2361



scope of sec. 100.18 and its protective purpose make it similar to

the remedial provisions of the federal antitrust laws in that to

eliminate or rectify a wrong the traditional standards of proof

may be relaxed if necessary.").

     ¶83   Accordingly, we conclude that the heightened pleading

standard set forth by Wis. Stat. § 802.03(2) for claims of fraud

does not apply to claims made under Wis. Stat. § 100.18.

     ¶84   We    therefore     apply    general      pleading   standards       to

determine if Hinrichs' complaint states a claim.                Thus, we must

examine whether Hinrichs' complaint pleads facts, which if true,

would entitle him to relief.           See Cattau v. Nat'l Ins. Servs. of

Wis., 2019 WI 46, ¶4, 386 Wis. 2d 515, 926 N.W.2d 756 (per curiam);

Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶21, 356

Wis. 2d 665,     849    Wis. 2d 693     (citing   Strid    v.   Converse,    111

Wis. 2d 418, 422-23, 331 N.W.2d 350 (1983)).

     ¶85   Specifically with regard to a claim made pursuant to

Wis. Stat. § 100.18(1), a plaintiff must allege facts that would

fulfill three elements:        (1) the defendant made a representation
to one or more members of the public with the intent to induce an

obligation;     (2)    the   representation    was    untrue,   deceptive       or

misleading;     and    (3)   the   representation     materially      induced    a

pecuniary loss to the plaintiff.            Novell, 309 Wis. 2d 132, ¶49;

see Wis JI——Civil 2418 (2017) (referring to "one or more members

of the public[,]" consistent with this court's conclusion in

Automatic Merchs., 64 Wis. 2d at 663-64).                 Hinrichs' complaint

alleges facts that, if true, meet each of these elements.


                                       30
                                                                      No.    2017AP2361



      ¶86    First, as analyzed above, the complaint alleges that Dow

made a representation to "the public" within the meaning of Wis.

Stat.     § 100.18.        The    complaint         further      alleges    that   the

representation was made "with the intent of inducing Mr. Hinrichs

to continue purchasing Dow adhesives."

      ¶87    Second,      as   the    court    of      appeals    determined,      "the

complaint sufficiently alleges that Dow made representations that

were untrue, deceptive or misleading."                  Hinrichs, No. 2017AP2361,

unpublished slip op., ¶23.             Specifically, the complaint alleges

that "[t]he report prepared and produced by Dow claimed the Dow

adhesive was properly functioning on the acrylic used by Mr.

Hinrichs in the JeeTops panels . . . ."                       The complaint further

alleges     that   this    representation         was    untrue,     deceptive,     or

misleading in that the Dow adhesive actually was the cause of the

structural breakdown of the JeeTops panels.

      ¶88    Finally,      the       complaint        amply     alleges     that    the

representation materially induced a pecuniary loss to Hinrichs.

Hinrichs alleges that Dow's representations destroyed his ability
to   sell   further     JeeTops       panels     by    negatively    affecting     the

product's    reputation.         The    complaint        specifically       references

negative commentary on social media and elsewhere within the Jeep

enthusiast community, as well as allegations that high profile

customers stopped purchasing the product and that dealers dropped

JeeTops from their product lines.

      ¶89    We therefore conclude that Hinrichs' complaint states a

claim under the general pleading standard.


                                          31
                                                             No.     2017AP2361



                                    V

     ¶90    In sum, with regard to Hinrichs' common law claims, we

conclude that the "fraud in the inducement" exception to the

economic loss doctrine does not apply to allow Hinrichs' common

law claims to go forward because the alleged misrepresentation is

related to the quality and characteristics of the product in

question and is thus not extraneous to the contract.               We further

conclude that the "other property" exception to the economic loss

doctrine does not apply to allow Hinrichs' common law claims to go

forward because the JeeTops and adhesive are components of an

integrated system.

     ¶91    Concerning Hinrichs' statutory claims, we conclude first

that the economic loss doctrine does not serve as a bar to claims

made under Wis. Stat. § 100.18.           We conclude second that one

person can be "the public" for purposes of § 100.18(1) and decline

Dow's invitation to overrule Automatic Merchandisers.               The court

of appeals correctly determined that dismissal for failure to meet

"the public" component of a § 100.18 claim in this case was in
error.    Finally, we conclude that the heightened pleading standard

set forth by Wis. Stat. § 802.03(2) for claims of fraud does not

apply to claims made under Wis. Stat. § 100.18 and that Hinrichs'

complaint states a claim under the general pleading standard.

     ¶92    Accordingly, we affirm the decision of the court of

appeals.

     By    the   Court.—The   decision   of   the   court   of     appeals   is

affirmed.


                                    32
                                                      No.   2017AP2361



    ¶93   DANIEL   KELLY   and   BRIAN   HAGEDORN,   JJ.,   did   not

participate.




                                 33
                                                                No.   2017AP2361.rgb




     ¶94       REBECCA      GRASSL    BRADLEY,     J.    (concurring     in   part,

dissenting in part).               I agree with the majority's decision to

affirm the court of appeals' dismissal of Hinrichs'1 common law

misrepresentation claims because the economic loss doctrine bars

them,    and       the    "other    property"    and    "fraudulent    inducement"

exceptions to that doctrine do not apply.                   Accordingly, I join

parts I, II, and III of the majority opinion.                         However, the

majority's interpretation of Wis. Stat. § 100.18(1) (2015-2016)2

does not apply the plain meaning of "the public," which would

exclude Hinrichs based upon the particularized statements Dow made

solely to Hinrichs within the context of the ongoing business

relationship between the parties.                I would therefore reverse the

court    of    appeals'      decision,    which    allows    Hinrichs'    § 100.18

fraudulent representation claim against Dow to proceed despite the

absence       of    any     "advertisement,      announcement,    statement      or

representation" "to the public" or "to induce the public" as

required under the statute.            Accordingly, I dissent from part IV.B
of the majority opinion.3


     1 Like the majority, I use "Hinrichs" to refer to Chris
Hinrichs and Autovation Limited collectively.
     2 All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
     3 Because I conclude Hinrichs is not a member of "the public"
within the meaning of Wis. Stat. § 100.18(1) and the statute
therefore does not provide an avenue for Hinrichs' claim, I need
not address whether the economic loss doctrine bars a claim under
this statute (part IV.A of the majority opinion) or whether the
heightened pleading requirements apply to § 100.18(1) (part IV.C
of the majority opinion).

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                                   I

     ¶95   The foundation for Wis. Stat. § 100.18(1) arose in 1913,

when the Wisconsin Legislature first enacted a law prohibiting

untrue and deceptive advertisements to induce the purchase of a

good.    See § 1, ch. 510, Laws of 1913.   In 1925, the legislature

adopted the precursor to the current version of § 100.18(1).       See

§ 2, ch. 264, Laws of 1925.   In the text of the original Act, like

the current language of § 100.18(1), the phrase "the public"

appeared five times.   See § 100.18(1); § 2, ch. 264, Laws of 1925.

The text of § 100.18(1) currently comprises a single lengthy

sentence, prompting one court to remark "its length would put even

Dickens to shame."4 Eliminating repetitive words, as well as those

portions inapplicable in this case, condenses the statute to the

following more readable statement:

     No . . . corporation . . . with intent to    sell . . .
     any . . . merchandise . . . to the public . . . or with
     intent to induce the public . . . to enter into any
     contract or obligation relating to the purchase . . . of
     any . . . merchandise . . . shall make . . . or place
     before the public, or cause . . . to be made . . . or
     placed                     before                    the
     public, in this state . . . an advertisement . . .
     statement or representation of any kind to the public
     relating       to       such        purchase . . . which
     advertisement, . . . statement     or     representation
     contains any assertion, representation or statement of
     fact which is untrue, deceptive or misleading.
§ 100.18(1) (emphasis added).   Based merely on the number of times

the phrase appears in the statutory text, "the public" has manifest

importance to the law's meaning.


     4 Uniek, Inc. v. Dollar General Corp., 474 F. Supp. 2d 1034,
1036 (W.D. Wis. 2007).

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     ¶96   This court's first interpretation of the meaning of the

phrase "the public" appeared in State v. Automatic Merchandisers

of Am., Inc., 64 Wis. 2d 659, 663-64, 221 N.W.2d 683 (1974).                    A

full recitation of that case is unnecessary here, as the majority

already outlined it.       See majority op., ¶¶59-61.              In Automatic

Merchandisers,   the     court    held    Wis.    Stat.   § 100.18(1)    reaches

private face-to-face oral representations between a seller and

prospective purchasers responding to newspaper advertisements.

Automatic Merchs. of Am., Inc., 64 Wis. 2d at 663.                    The court

recognized that "in some situations one person can constitute the

public" and the alleged misrepresentation need not be communicated

to a wide audience.      Id. at 664.          Generally, the court concluded

§ 100.18 "protect[s] the residents of Wisconsin from any untrue,

deceptive or misleading representations made to promote the sale

of a product."      Id. at 663.              The court identified as "[t]he

important factor" in defining "the public" whether there is a

"particular relationship" between the parties.              Id. at 664 (citing

Cawker v. Meyer, 147 Wis. 320, 326, 133 N.W. 157 (1911)).
     ¶97   In    this     case,     the        majority   expands      Automatic

Merchandisers' interpretation of "the public" beyond the plain

meaning of Wis. Stat. § 100.18.               While just a single individual

may receive a representation prohibited under § 100.18, in order

for the representation to run afoul of that statute, it must have

been "made . . . or placed before the public."                   See Automatic

Merchs., 64 Wis. 2d at 664; majority op., ¶¶64-65.                  In Automatic

Merchandisers,    "the    representations          were   made     privately   to
prospective purchasers" whose "only relationship" to the sellers

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consisted    of   responding    "to   advertisements     in     the    classified

sections of newspapers."         Automatic Merchs., 64 Wis. 2d at 663.

The court's statement that "'the public' may be only one person"

simply recognized that even if only one prospective purchaser

responded to the advertisement and heard the misrepresentation

from   the   seller,   then    that   person   would    have    a    claim    under

§ 100.18(1) as a member of "the public."         See id. at 664 (citations

omitted).     In contrast, at the time Hinrichs alleges Dow made a

misrepresentation regarding its adhesive, Hinrichs and Dow were

businesses in a commercial relationship.          Because Hinrichs alleges

Dow's misrepresentation was made solely to Hinrichs, and in regard

to Hinrichs' unique application of Dow's adhesive to Hinrichs'

particular product, unlike the generalized representations made

privately    in   Automatic    Merchandisers    to     anyone    responding      to

classified advertisements, Dow's representation was not made to

"the public," and therefore does not fall within the scope of

§ 100.18.

       ¶98   A textual approach to statutory interpretation gives
language "its common, ordinary, and accepted meaning . . . ."

State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,

¶45, 271 Wis. 2d 633, 681 N.W.2d 110.          We presume the "legislature

says in a statute what it means and means in a statute what it

says there."      Milwaukee Dist. Council 48 v. Milwaukee Cty., 2019

WI 24, ¶25, 385 Wis. 2d 748, 924 N.W.2d 153 (quoting Connecticut

Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)); see also

Kalal, 271 Wis. 2d 633, ¶39 (quoting the same).                As a fundamental
tenet of statutory interpretation, where possible, we render no

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word in a statute surplusage, but instead give meaning to every

word.    See, e.g., Enbridge Energy Co., Inc. v. Dane Cty., 2019 WI

78, ¶28, 387 Wis. 2d 687, 929 N.W.2d 572 (Statutory construction

should not "create[] an avoidable surplusage problem[;]" rather,

"'[i]f possible, every word and every provision is to be given

effect (verba cum effectu sunt accipienda).                   None should be

ignored.        None should needlessly be given an interpretation that

causes it . . . to have no consequence.'"             (quoting Antonin Scalia

& Bryan Garner, Reading Law:            The Interpretation of Legal Texts

174 (2012))); see also Kalal, 271 Wis. 2d 633, ¶46 ("Statutory

language is read where possible to give reasonable effect to every

word, in order to avoid surplusage."          (citations omitted)); State

v. Martin, 162 Wis. 2d 883, 894, 470 N.W.2d 900 (1991) ("A statute

should be construed so that no word or clause shall be rendered

surplusage and every word if possible should be given effect."

(quoting Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817

(1980))).

      ¶99   "[T]he ordinary and common meaning of a doubtful word
may be established by the definition of a recognized dictionary."

In re Nottingham's Estate, 46 Wis. 2d 580, 588, 175 N.W.2d 640

(1970).     Wisconsin Stat. § 100.18(1) uses the word "public" as a

noun.    When used in this manner, the word "public" refers to people

in the general community. See Public, Black's Law Dictionary (11th

ed.     2019)     ("The   people   of   a   country     or   community    as   a

whole . . . ."); Public, American Heritage Dictionary (5th ed.

2011) ("The community or the people as a whole."); Public, Oxford
Dictionary (6th ed. 2007) ("People collectively; the members of

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the community.");    see also Public, Funk & Wagnalls New Standard

Dictionary (1923) ("The people collectively, or in general, as of

a particular locality, state, or nation, or of the world at

large . . . ."); Public, Black's Law Dictionary (2d ed. 1910) ("As

a noun, the word 'public' denotes the whole body politic, or the

aggregate of the citizens of a state, district, or municipality."

(citations    omitted)).       Read    in     conjunction    with      Automatic

Merchandisers, these definitions inform the interpretation of "the

public"   under   § 100.18(1),        indicating    that     the     prohibited

"representation" must be "made" or "placed before" people within

the general community.       See Automatic Merchs., 64 Wis. 2d at 664.

In Automatic Merchandisers, the prohibited representations were

made to whomever responded to the seller's classified newspaper

advertisements published to the general community.                 Id. at 664.

     ¶100 The majority's construction of "the public," as used in

Wis. Stat. § 100.18(1), would include a business in an ongoing

commercial    relationship    with    another     business     whose     alleged

misrepresentation relates to a particularized use of the product
and was directed at no one other than that purchaser.                  Automatic

Merchandisers does not support this reading.            Instead, that case

interpreted    § 100.18(1)      as    protecting      "the     residents       of

Wisconsin"——meaning anyone who happened to respond to classified

advertising directed at the community in general.                      Automatic

Merchs., 64 Wis. 2d at 663-64.             In similar fashion, "[t]he word

'public' has been construed under comparable statutes to mean that

any person who invites the trade of the general populace in a given
area, or who is engaged in his principal business, is dealing with

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the 'public.'" James D. Jeffries, Protection for Consumers Against

Unfair and Deceptive Business Practices in Wisconsin, 57 Marq. L.

Rev. 559, 561 n.14 (1974) (emphasis added) (citing to cases in

Texas, Michigan, Missouri, and Wisconsin).           The email from Dow's

agent to Hinrichs conveyed lab testing reports and results——

requested by Hinrichs——regarding the application of Dow's adhesive

to Hinrichs' product.    The representation in that email responded

to Hinrichs' unique concerns and in no way invited the trade of

the general populace in a given area.

     ¶101 The majority broadens the meaning of a "representation"

"made . . . or placed before the public" to encompass an email

between two businesses in a commercial relationship.              See majority

op., ¶70.5 Under the majority's interpretation, "the public" means

everyone and therefore has no meaning, which creates an avoidable

surplusage problem:     the majority causes "the public" to have no

operative effect whatsoever in the statute.          As the District Court

for the Western District of Wisconsin has recognized, this court's

ever-expanding   construction   of       "the   public"   under    Wis.   Stat.

     5 The majority blurs the boundary between statutory claims
under Wis. Stat. § 100.18(1) (the Deceptive Trade Practices Act)
and breach of contract claims under general contract law.       See
generally Donald R. Stroud III, Beyond Deception:           Finding
Prudential Boundaries Between Breach of Contract and Deceptive
Trade Practices Act Violations in Wisconsin, 93 Marq. L. Rev. 1157
(2010) (criticizing this court's decision in K & S Tool & Die Corp.
v. Perfection Machinery Sales, Inc., 2007 WI 70, 301 Wis. 2d 109,
732 N.W.2d 792, allowing for the possible extension of § 100.18(1)
claims to commercial parties, and discussing the impact on contract
law).   The majority in this case permits commercial parties to
avoid negotiated contract terms by bringing DTPA claims in lieu of
breach of contract actions, thereby escaping bargained-for
liability limitations and remedies and upending the parties'
allocation of risk. See Stroud, supra at 1159, 1164-72.

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§ 100.18(1) renders it "anachronistic to interpret 'the public' as

having any limitation" and now "any person or entity is a member

of the public."      Uniek, Inc. v. Dollar General Corp., 474 F. Supp.

2d 1034, 1038 (W.D. Wis. 2007).                However outmoded under this

court's    errant      jurisprudence,       "the   public"   must    have    some

parameters in order to avoid being rendered superfluous.                Excising

"the public" from the statutory text yields the same meaning the

majority gives it:

       No . . . corporation . . . with intent to sell . . .
       any . . . merchandise . . . shall make . . . in this
       state . . . an advertisement . . . statement or
       representation of any kind . . . relating to such
       purchase . . . which advertisement, . . . statement or
       representation contains any assertion, representation or
       statement of fact which is untrue, deceptive or
       misleading.
The majority reads "the public" out of the statute entirely by

"needlessly" giving that phrase "an interpretation that causes

it . . . to have no consequence."            See Scalia & Garner, supra ¶98,

at 174.

       ¶102 In cases with similar facts, other courts concluded that

"the public" cannot mean two businesses in an ongoing commercial

relationship.     For example, the Uniek court held a distributor was

not a member of "the public" within the meaning of Wis. Stat.

§ 100.18(1) because it had a 13-year business relationship with

the defendant.      Uniek, 474 F. Supp. 2d at 1039-40.        The Uniek court

reasoned that if anything were to distinguish the distributor from

"the   public,"     surely   this   longstanding      business      relationship

would.     Id.    at    1040.    Although      not   specifically      based   on
§ 100.18(1), our court of appeals clarified the common, ordinary,

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and accepted meaning of "the public" by differentiating private

clubs patronized by members only, from restaurants "open to the

public."      See City of Wausau v. Jusufi, 2009 WI App 17, ¶¶14-16,

315 Wis. 2d 780, 763 N.W.2d 201.           In Jusufi, the court of appeals

concluded a smoking ban ordinance did not violate equal protection

even though it treated restaurants differently than private clubs.

See id., ¶1.      The court of appeals held there was a rational basis

for "distinguishing private clubs from other restaurants," namely,

the protection of "the greatest number of restaurant patrons, while

preserving the right to associate in truly private clubs that are

not open to the public."        Id., ¶14 (emphasis added).        The court of

appeals recognized that while restaurants are open to everyone in

the community, i.e. "the public," private clubs are not.              See id.,

¶16.    While the canons of statutory construction compel giving

"the public" this common, ordinary, and accepted meaning, the

majority instead continues the capricious approach of supplanting

the text of § 100.18(1) with a judicially-preferred standard.

                                      II
       ¶103    The   majority     perpetuates     the     judicially-created

"particular relationship" test for determining whether a person is

part of "the public" within the meaning of Wis. Stat. § 100.18(1).

Majority op., ¶62.        This test has no foundation in the statutory

text.         Automatic   Merchandisers      introduced    the    "particular

relationship" test in attempting to divine "the intent of the

legislature," in particular whom "the legislature intended to

protect." 64 Wis. 2d at 663.        The court's entire analysis in that
case rests on the defective foundation of the fiction commonly

                                      9
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called "legislative intent."6            "An interpretation based on what

the legislature intended a statute to mean is improper."              State v.

Lopez, 2019 WI 101, ¶39, __ Wis. 2d __, 936 N.W.2d 125 (Rebecca

Grassl Bradley, J., concurring).           Aside from the impossibility of

assigning a collective "intent" motivating a body of individual

lawmakers, "[i]t is the enacted law, not the unenacted intent,

that is binding on the public."          Kalal, 271 Wis. 2d 633, ¶44.       "It

is the law that governs, not the intent of the lawgiver[,]" and

"[m]en may intend what they will; but it is only the laws that

they enact which bind us."         Id., ¶52 (emphasis omitted) (quoting

Antonin Scalia, A Matter of Interpretation:            Federal Courts and

the Law 17 (Princeton University Press 1997)). "[I]t is the text's

meaning,     and    not   the   content    of   anyone's    expectations     or

intentions, that binds us as law." Id., Lawrence H. Tribe, Comment

in Scalia, A Matter of Interpretation at 66; see also Winebow,

Inc. v. Capitol-Husting Co., 2018 WI 60, ¶40, 381 Wis. 2d 732, 914

N.W.2d 631         (Rebecca     Grassl      Bradley,       J.,    dissenting)

("[L]egislative intent behind enactment of a law . . . cannot
govern statutory interpretation.           Rather, our analysis must focus

on the statutory language itself[.]"); State v. Grandberry, 2018

WI 29, ¶55, 380 Wis. 2d 541, 910 N.W.2d 214 (Kelly, J., concurring)


     6 See Antonin Scalia & Bryan A. Garner, Reading Law:       The
Interpretation of Legal Texts 391-96 (2012) ("[C]ollective intent
is pure fiction because dozens if not hundreds of legislators have
their own subjective views on the minutiae of bills they are voting
on[.]"); see also Robert E. Keeton, Keeton on Judging in the
American Legal System 210-11 (Lexis Pub. 1999) ("'[L]egislative
intent' . . . is a legal fiction. Only a natural person can have
a state of mind such as intent.       No legal entity such as a
legislature can have an 'intent' in a strictly factual sense.").

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("[W]e give effect only to what the legislature does, not what it

tried to do."      (footnote omitted)).

       ¶104 Rather than displacing the actual text of the statute

with a judicially-created "particular relationship" test to define

"the public" in the context of Wis. Stat. § 100.18(1), courts

should instead determine who constitutes "the public," based on

the plain meaning of § 100.18(1).                  See supra ¶¶98-102.               Using the

"particular     relationship"         test    in    the    context       of        § 100.18(1)

inappropriately        adds    words    to        the    statutory       text        that   the

legislature      did   not     write    into       the     law,       while        introducing

additional      ambiguity      into    the    meaning       of    "the    public."            In

construing a statute, "we interpret the words the legislature

actually enacted into law" and "[u]nder the omitted-case canon of

statutory interpretation, '[n]othing is to be added to what the

text   states    or    reasonably      implies          (casus    omissus          pro    omisso

habendus     est).'"          State    v.     Fitzgerald,         2019        WI    69,     ¶30,

Wis. 2d 384, 929 N.W.2d 165 (quoting Lopez-Quintero v. Dittman,

2019 WI 58, ¶18, 387 Wis. 2d 50, 928 N.W.2d 480 (quoting Scalia &
Garner, Reading Law at 93)); see also Fond du Lac Cty. v. Town of

Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)

("One of the maxims of statutory construction is that courts should

not add words to a statute to give it a certain meaning." (citation

omitted)).

       ¶105 Instead of analyzing the words the legislature actually

wrote in Wis. Stat. § 100.18(1)——whether a person is a member of

"the   public"——courts         have    digressed         into     a    consideration         of
whether the parties have a "particular relationship."                                 Applying

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this test only raises additional questions, such as whether the

parties have a contractual relationship or (as Hinrichs advances)

an "effective contractual relationship," thereby disconnecting the

analysis even further from the actual statutory text. For example,

in K & S Tool & Die Corp. v. Perfection Machinery Sales, Inc., the

court stated that "a plaintiff is no longer a member of 'the

public' for the purpose of § 100.18(1) once he or she has entered

into a contract to purchase the offered item."                       2007 WI 70, ¶26,

301 Wis. 2d 109, 732 N.W.2d 792 (citation omitted).                        K & S Tool &

Die Corp. relied on Kailin v. Armstrong for this proposition.                          Id.

In Kailin, the court of appeals held "[o]nce the contract was made,

the     Kailins        were        no      longer       'the         public'         under

[§ 100.18(1)] . . . ."             Kailin,       2002    WI    App    70,     ¶44,    252

Wis. 2d 676, 643 N.W.2d 132.              However, "[i]f the Wisconsin courts

had intended to exclude from the law only contracting parties, it

could    have    stated      the   rule    as     whether      the    parties    had     a

'contracting      relationship,'         but     they   have    employed       the    more

general language, 'particular relationship.'"                   Uniek, 474 F. Supp.
2d at 1039.       This muddying of the plain language of the statute

prompted one federal court, struggling to discern a clear rule of

law by which to apply § 100.18(1), to "question whether" Wisconsin

courts' adoption of the extra-textual "particular relationship"

test    "leads    to   the    most      logical    distinctions        between       those

plaintiffs      that   fall    within      the    statute      and   those     that    are

excluded."       Id.   It doesn't, but returning to the proper plain

meaning approach certainly would.
                                          III

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     ¶106 Even if Hinrichs did constitute a member of "the public"

under Wis. Stat. § 100.18(1), Dow's statement to Hinrichs cannot

be deemed "untrue, deceptive or misleading," as required by the

statutory text.    The majority does not address this requirement in

its analysis of § 100.18(1).    See majority op., ¶¶57-71.      Nothing

in the Complaint creates even an inference of this element.          The

Complaint characterizes as "untrue, deceptive or misleading" Dow's

statement that "[n]o evidence of any crazing or surface cracking

was observed."     Complaint, ¶¶24-25 (emphasis added).        Hinrichs

does not allege that Dow disclaimed its adhesive as the cause of

the cracking.     To the contrary, Hinrichs alleges Dow advised "we

are assisting in determining the root cause of the issue and

apologize for the inconvenience."         Complaint, ¶27.      Hinrichs

alleges only that Dow stated it did not observe any crazing or

cracking during testing.    Nothing in the Complaint supports even

an inference that at the time Dow made this statement, it knew the

statement was "untrue", or that the statement was "deceptive or

misleading."    Accordingly, Hinrichs' § 100.18(1) claim should not
be allowed to proceed.

                                  IV

     ¶107 The plain meaning of "the public" under Wis. Stat.

§ 100.18(1), as confirmed by dictionaries, common parlance, and

cases, means people in the general community, not businesses in an

ongoing commercial relationship.       "On its face, a statement made

to 'the public' suggests an attempt to communicate with a large

audience rather than a private message directed at one party."
Uniek, 474 F. Supp. 2d at 1037 (citing to an additional dictionary

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beyond   those      mentioned    in   ¶99,    referring   to     "public"      as   a

collective     entity).     As    the    majority   acknowledges,        statutory

interpretation presents a question of law and it is therefore

beyond the province of the factfinder to determine the meaning of

"the public" as used in § 100.18(1). Majority op., ¶26 ("Statutory

interpretation likewise presents a question of law we review

independently . . . .").         As a matter of law, Hinrichs was not a

member   of    "the   public"    under    § 100.18(1)     when    Dow       made   the

statement Hinrichs alleges to be a misrepresentation because Dow

directed      the   statement    to   Hinrichs   alone,    not       "the    public"

generally.      Because the majority's interpretation of "the public"

empties the phrase of any meaning, I respectfully dissent.




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