eastern district of wisconsin milwaukee county, employee

• Soderstrom: “I have training and qualification, but I would say I cannot do that
[project investment returns over the next two years]. I am not an attorney and not
an investment advisor. I am very good at running liability numbers, but as far as
projecting on assets….”
As noted above, under Wisconsin law “parties to a business transaction must use their faculties
and exercise ordinary business sense, and not call on the law to stand in loco parentis to protect
them in their ordinary dealings with other business people.” 105 Similarly, in Adolescent
Psychiatry, the Seventh Circuit dismissed an action when it determined that no person of
ordinary prudence would have relied on the challenged statements about the yield of a particular
annuity as “gospel statements.” 106
There is no plausible basis for the County to claim that it somehow reasonably relied on
Soderstrom’s comments as a “gospel statement” guaranteeing that the ERS would earn 12-13%
indefinitely, particularly where documents throughout their files reveal communications and
contracts with the ERS’ investment managers that repeatedly state that “past performance does
not guarantee future results, which will vary.” Although the question of justifiable reliance is
ordinarily a question of fact, it can be decided on summary judgment if no reasonable jury could
find that the plaintiff’s reliance on the defendant’s statements was justifiable. 107 Under all of the
circumstances here, it would have been patently unreasonable for County Supervisors to rely on
a single comment in a letter from Mercer or extemporaneous comments in the PSC hearing as a
promise that Mercer would somehow become the guarantor of the ERS’ investment returns until
2036.
105 Kalotis, 699 N.W.2d 20.
106 941 F.2d at 570.
107 Teamsters Local 282, 839 F.2d at 370 (“in order to avoid summary judgment, [plaintiff] must set forth enough
facts from which a jury could find by clear and convincing evidence that it was justified in relying on the
defendant’s alleged misrepresentation”); see also, Novell, 2008 WL 2185987 at 61 (“there are cases in which a
circuit court may determine as a matter of law that a plaintiff’s belief of a defendant’s representation is
unreasonable, and as a result the plaintiff’s reliance is therefore also unreasonable”).
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Case 2:06-cv-00372-CNC Filed 06/09/2008 Page 49 of 52 Document 110