2005AP1512 Go America, L.L.C. v. Kwik Trip, Inc.

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“The legislature has chosen to create certain exceptions in Wis. Stat. § 100.30(6)(a) to the prohibition of sales at less than the statutorily defined cost; subd. 7. provides that one of these exceptions is retail and wholesale sales ‘made in good faith to meet an existing price of a competitor.’ This exception applies to all retail and wholesale sales, regardless of the size of the business, and expresses the legislature’s policy choice that lowering prices for this purpose is not the type of unfair competition the act is intended to prohibit. Indeed, as Kwik Trip points out, not permitting Wisconsin sellers to lower prices in good faith to meet the prices of out-of-state competitors puts Wisconsin businesses at a competitive disadvantage with Iowa sellers of motor vehicle fuel. The absence of a limitation on ‘competitor’ to in-state competitors is not unreasonable and is not inconsistent with the purposes of the act….

“The circuit court correctly granted summary judgment in favor of Kwik Trip. The court correctly construed the phrase ‘existing price of a competitor’ in Wis. Stat. § 100.30(2)(cj) and the phrase “meet an existing price of a competitor” in § 100.30(6)(a)7 and (7)(a) to apply to a competitor that is located in a bordering state. Assuming that the defendant must establish that it acted in good faith in order to be immune from liability under § 100.30(7)(c)2, the circuit court correctly concluded that the undisputed facts showed Kwik Trip acted in good faith.”

Affirmed.

Recommended for publication in the official reports.

Dist IV, Dane County, O’Brien, J., Vergeront, J.

Attorneys:

For Appellant: McGraw, Brian C., Muscoda; White, Timothy S., Cedar Rapids; Reilly, Matt J., Cedar Rapids

For Respondent: Conley, William M., Madison; Simmons, Jeffrey, Madison