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four of Plaintiffs’ substantive causes of action for professional negligence, intentional misrepresentation, negligent misrepresentation and breach of contact. First, with regard to Plaintiffs’ professional negligence claim, Wisconsin has adopted the Restatement (Second) of Torts § 552, which provides in relevant part: § 552. Information Negligently Supplied for the Guidance of Others. (1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. 85 Thus, a professional negligence claim against an actuarial consultant like Mercer whose profession involves providing information for the guidance of others necessarily requires proof that the consumer of that information relied on it, and that his or her reliance was justified. Second, with regard to Plaintiffs’ intentional misrepresentation claim, it is black letter law in Wisconsin that an intentional misrepresentation cause of action also requires the plaintiff to have justifiably relied on an intentional misrepresentation by the defendant: The elements of intentional misrepresentation are that: (1) the defendant made a representation of fact; (2) the representation was false; (3) the defendant made the representation knowing it was untrue or recklessly without caring whether it was true or untrue; (4) the representation was intended to deceive and induce the plaintiff to act upon it; and (5) the plaintiff believed the representation to be true and justifiably relied on it to his or her pecuniary damage. 86 85 Restatement (Second) of Torts, § 552 (emphasis added); see also, Citizens State Bank v. Timm, Schmidt & Co., 335 N.W.2d 361 (Wis. 1983). 86 See WIS JI-CIVIL 2401; see also, Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, 13, 270 Wis.2d 146, 677 N.W.2d 233. QBACTIVE\6280487.1 38 Case 2:06-cv-00372-CNC Filed 06/09/2008 Page 38 of 52 Document 110
Further, failure to disclose a material fact may be misrepresentation if the nondisclosing party has a duty to disclose that fact. 87 Third, Plaintiffs’ negligent misrepresentation claim is also governed by the Restatement (Second) of Torts, § 552, which Wisconsin has adopted, and which holds that negligent misrepresentation claims based upon advice from a professional require “justifiable reliance” by the plaintiff. 88 The very recent Wisconsin Supreme Court case of Novell v. Migliacco confirms that “justifiable reliance” is an element of all common law misrepresentation claims. 89 Moreover, Wisconsin law also “requires men in their dealing with each other, to exercise proper vigilance and apply their attention to those particulars which may be supposed to be within the reach of their observation and judgment, and not close their eyes to the means of information accessible to them.” 90 This formulation is tantamount to a requirement that parties like the County who hire consultants like Mercer are not thereby absolved of their responsibility to exercise their independent judgment and common sense in making decisions. It is true that the elements of Plaintiffs’ fourth cause of action for breach of contract ordinarily do not include reliance. Causation, however, is an element of a breach of contract claim. But causation here necessarily requires reliance, because, absent reliance on Mercer’s advice to their detriment, Mercer’s advice could not have caused anything. 91 Notably, under 87 See Ollerman v. O’Rourke, 288 N.W.2d 95 (Wis. 1980). 88 See WIS JI-CIVIL 2403 (emphasis added). 89 ____ N.W.2d ___ , 2008 WL 2185987 at 46 (Wis., May 28, 2008). In Lambert v.Hein, 582 N.W.2d 84, 92 (Wis.App.1998) , the Wisconsin Court of Appeals had reached a similar result, noting that a claim based on negligent misrepresentation “inquires whether the buyer was negligent in relying upon the representation.” 90 See, e.g., Kanack v. Kremski, 291 N.W.2d 864, 867 (Wis. 1980). 91 In this context, it is worth recalling that the breach of contract alleged by Plaintiffs is based on the same facts as the Plaintiffs’ misrepresentation and professional negligence claims. See, e.g., Complaint, 87-92. The allegations supporting the Plaintiffs’ breach of contract claim simply incorporate by reference all of the allegations supporting their other claims against Mercer. QBACTIVE\6280487.1 39 Case 2:06-cv-00372-CNC Filed 06/09/2008 Page 39 of 52 Document 110
Page 1 and 2: MILWAUKEE COUNTY, EMPLOYEE‘S RETI
Page 3 and 4: submitted a memorandum to the PSC d
Page 5 and 6: UNDISPUTED MATERIAL FACTS The undis
Page 7 and 8: negotiating contracts with County e
Page 9 and 10: 2001, has testified that the ERS wa
Page 11 and 12: 4. The Plaintiffs’ Claims Against
Page 13 and 14: Again, Dobbert confirmed these fact
Page 15 and 16: The “attached letter” was a let
Page 17 and 18: we don't know what you're talking a
Page 19 and 20: A. Yes. Q. Now as a PSC member or a
Page 21 and 22: calculating a $718,000 annual cost
Page 23 and 24: Indeed, it was one of the central c
Page 25 and 26: assist the author in preparation of
Page 27 and 28: Indeed, the “crux of the report,
Page 29 and 30: Mercer here was responding to a req
Page 31 and 32: In fact, the Plaintiffs have repeat
Page 33 and 34: Contrary to Plaintiffs’ allegatio
Page 35 and 36: Again, Soderstrom is advising the P
Page 37: ARGUMENT I. SUMMARY JUDGMENT STANDA
Page 41 and 42: B. Mercer Is Not Liable To The Coun
Page 43 and 44: him the investments were safe and c
Page 45 and 46: 3. In any event, the County, throug
Page 47 and 48: every ordinance submitted to the Mi
Page 49 and 50: • Soderstrom: “I have training
Page 51 and 52: those benefits the County Board has

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