10C-0189 American Orthodontics Corp. v. Epicor Software Corp.

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Contracts
DTPA

Where a contract’s integration clause preserved liability for fraud, the buyer’s claim under the Wisconsin Deceptive Trade Practices Act is viable.

“The problem with defendant’s argument is that, unlike the integration clauses at issue in Peterson, the integration clauses at issue in the present case do not specifically disclaim plaintiff’s right to rely on defendant’s fraudulent misrepresentations. To the contrary, the clauses explicitly preserve defendant’s liability for ‘fraud.’ (First Am. Compl., Ex. A, at p. 20, § 5.4; id. at p. 22, § 13.4.) Now, a DTPA claim is not necessarily a fraud claim, since to prevail on DTPA claim a plaintiff does not need to prove intent to deceive, Kailin v. Armstrong, 252 Wis. 2d 676, 705 n.22 (Ct. App. 2002), and thus the fraud exception in the integration clauses may not save the DTPA claim. However, the use of the term ‘fraud’ in the integration clauses could reasonably be understood to apply to a DTPA claim since, as defendant concedes, the DTPA ‘is generally designed to prevent fraudulent conduct.’ (Reply Br. at 9.) Thus, at the very least, the integration clauses are ambiguous as to whether they disclaim DTPA claims. Accordingly, I cannot find based on the pleadings alone that defendant’s reading of the integration clauses is correct.”

10C-0189 American Orthodontics Corp. v. Epicor Software Corp.

E.D.Wis., Adelman, J.