Case No. 2017 AP 344

RECEIVED
01-28-2019

In the

CLERK OF SUPREME COURT
OF WISCONSIN

State of Wisconsin
Supreme Court

YASMEEN DANIEL, Individually, and as Special Administrator
of the Estate of Zina Daniel Haughton,
Plaintiff-Appellant,
TRAVELERS INDEMNITY COMPANY OF CONNECTICUT,
as Subrogee for Jalisco’s LLC,
Intervening Plaintiff,
― v. ―
ARMSLIST, LLC, an Oklahoma Limited Liability Company,
BRIAN MANCINI and JONATHAN GIBBON,
Defendants-Respondents-Petitioners,
BROC ELMORE, ABC INSURANCE CO., the fictitious name for an unknown insurance
company, DEF INSURANCE CO., the fictitious name for an unknown insurance company
and ESTATE OF RADCLIFFE HAUGHTON, by his Special Administrator Jennifer
Valenti,
Defendants,
PROGRESSIVE UNIVERSAL INSURANCE COMPANY,
Intervening Defendant.
_______________________________________

On Appeal from Circuit Court of Milwaukee County, Civil Division, No. 2015CV008710.
The Honorable Glenn H. Yamahiro, Presiding Judge.
Reversed by the State of Wisconsin, Court of Appeals, District IV.

BRIEF OF AMICI CURIAE
MEMBERS OF THE UNITED STATES CONGRESS ON THE MEANING OF THE
COMMUNICATIONS DECENCY ACT

(COUNSEL FOR AMICI LISTED ON INSIDE COVER)

COUNSEL PRESS ∙ (866) 703-9373

PRINTED ON RECYCLED PAPER

 GREGORY M. DICKINSON
HARTER SECREST & EMERY LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
Telephone: (585) 232-6500
Facsimile: (585) 232-2152
gdickinson@hselaw.com

EMILY LONERGAN (Bar No. 1070486)
JOHN C. PETERSON (Bar No. 1010965)
PETERSON, BERK & CROSS, S.C.
200 E. College Avenue, P.O. Box 2700
Appleton, Wisconsin 54912-2700
Telephone: (920) 831-0300
Facsimile: (920) 831-0165
jpeterson@pbclaw.com
elonergan@pbclaw.com

Counsel for Amici Curiae
Members of Congress

 TABLE OF CONTENTS
PAGE
STATEMENT OF INTEREST ................................................................................ 1
ARGUMENT ........................................................................................................... 1
I.

TEXT AND PURPOSE OF COMMUNICATIONS DECENCY ACT SECTION 230 .... 1

II.

EARLY COURTS’ APPROACH TO SECTION 230 ............................................... 2

III.

THE SHIFT TOWARD NARROWER IMMUNITY ................................................. 3

IV.

CONGRESSIONAL REPUDIATION OF ZERAN’S BROAD IMMUNITY................... 5

V.

A.

Sex Trafficking and Backpage.com ........................................... 5

B.

FOSTA Clarifies Section 230’s Scope ...................................... 6

CDA SECTION 230 DOES NOT IMMUNIZE ARMSLIST .................................... 9

CONCLUSION ...................................................................................................... 10

 TABLE OF AUTHORITIES
PAGE
Cases
Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist,
Inc.,
519 F.3d 666 (7th Cir. 2008) (Easterbrook, J.) ................................................ 3, 9
City of Chi. v. StubHub!, Inc.,
624 F.3d 363 (7th Cir. 2010) .......................................................................... 4, 10
Doe v. Backpage.com, LLC,
817 F.3d 12 (1st Cir. 2016) .......................................................................... 5, 6, 8
Doe v. Internet Brands, Inc.,
824 F.3d 846 (9th Cir. 2016) .......................................................................... 4, 10
Fair Hous. Council v. Roommates.com, LLC,
521 F.3d 1157 (9th Cir. 2008) (en banc) (Kozinski, J.) ............................. 1, 4, 10
J.S. v. Vill. Voice Media Holdings, LLC,
359 P.3d 714 (Wash. 2015) ........................................................................ 4, 6, 10
Lansing v. Sw. Airlines Co.,
980 N.E.2d 630 (Ill. App. Ct. 2012)................................................................... 10
Reiter v. Sonotone Corp.,
442 U.S. 330 (1979) ............................................................................................. 3
Sigler v. Kobinsky,
No. 06-CV-1143, 2007 WL 7328792 (Wis. Cir. Ct. Nov. 20,
2007), aff’d 314 Wis. 2d 784 (Wis. Ct. App. 2008) ....................................... 4, 10
Stratton Oakmont, Inc. v. Prodigy Servs. Co.,
No. 31063/94, 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. May
24, 1995) ............................................................................................................... 2
Universal Commc’n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413 (1st Cir. 2007) ................................................................................ 5
Zeran v. Am. Online, Inc.,
192 F.3d 327 (4th Cir. 1997) .................................................................... 2, 3, 5, 9

 Statutes
47 U.S.C. § 230 ................................................................................................. passim
Allow States and Victims to Fight Online Sex Trafficking Act of
2017 (FOSTA), Pub. L. 115-164, 132 Stat. 1253 .................................... 6, 7, 8, 9
Legislative Materials
H.R. Rep. No. 104-458 .............................................................................................. 2
H.R. Rep. No. 115-572, Part 1 ................................................................................... 8
H.R. Rep. No. 114-214 .............................................................................................. 8
H.R. Rep. No. 115-199 .............................................................................................. 8
164 Cong. Rec. S1849 (daily ed. Mar. 21, 2018) ...................................................... 8
163 Cong. Rec. S4633 (daily ed. Aug. 1, 2017) ........................................................ 8
164 Cong. Rec. H1269 (daily ed. Feb. 27, 2018) .................................................. 8, 9
Treatises and Other Authorities
Antonin Scalia & Bryan A. Garner, Reading Law (2012) ......................................... 3
Benjamin Edelman & Abbey Stemler, From the Digital to the
Physical: Federal Limitations on Regulating Online
Marketplaces, ___ Harv. J. on Legis. ___ (forthcoming 2019) ........................... 3
Danielle Keats Citron & Benjamin Wittes, The Internet Will Not
Break: Denying Bad Samaritans § 230 Immunity, 86 Fordham L.
Rev. 401 (2017) .................................................................................................... 3
Joel R. Reidenberg et al., Section 230 of the Communications
Decency Act: A Survey of the Legal Literature and Reform
Proposals, Report of Center on Law and Information Policy at
Fordham Law School ........................................................................................... 3
Note, Gregory M. Dickinson, An Interpretive Framework for
Narrower Immunity Under Section 230 of the Communications
Decency Act, 33 Harv. J. L. & Pub. Pol’y 863 (2010) ..................................... 3, 4
John Palfrey & Urs Gasser, Born Digital: Understanding the First
Generation of Digital Natives (2008) .................................................................. 3

 STATEMENT OF INTEREST
Amici are current and past members of Congress, who enacted the
Communications Decency Act (CDA) or who enacted the recent amendment
clarifying CDA Section 230, the Allow States and Victims to Fight Online Sex
Trafficking Act (FOSTA). As supporters who participated firsthand in its
development, Amici are familiar with Section 230’s meaning and scope. Amici are
concerned that some courts have applied the statute in a manner inconsistent with
its text and have disrupted the state courts’ longstanding role in developing and
applying state tort law.
Amici include Senator Richard Blumenthal, who sponsored and coauthored
FOSTA; Representative Bobby Rush, a FOSTA cosponsor who also voted to enact
the CDA in 1996; retired Representative Jim Moran, another original supporter of
the CDA; and retired Representative Luis Gutiérrez, who supported both the CDA
and FOSTA.
ARGUMENT
I.

TEXT AND PURPOSE OF COMMUNICATIONS DECENCY ACT SECTION 230
Congress enacted CDA Section 230 with two aims: to address children’s

unrestricted access to offensive material on the internet, but to do so while still
promoting the burgeoning array of informational resources becoming available on
the internet. See 47 U.S.C. § 230(a), (b); Fair Hous. Council v. Roommates.com,
LLC, 521 F.3d 1157, 1163–64 & n.12 (9th Cir. 2008) (en banc) (Kozinski, J.)
(detailing legislative history).

 To these ends, Section 230 includes two key provisions. First, Section
230(c)(1) immunizes computer service providers from any theory of liability that
treats them “as the publisher or speaker of any information provided by” someone
else. Second, Section 230(c)(2) provides that “[n]o provider . . . of an interactive
computer service shall be held liable on account of . . . any action taken in good
faith to restrict access to . . . [objectionable content].”
In crafting Section 230, Congress had in mind the then-recent decision
Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 N.Y. Misc.
LEXIS 229 (N.Y. Sup. Ct. May 24, 1995), which held an internet service provider
liable for defamatory content posted by one of its users. H.R. Rep. No. 104-458, at
194. Stratton Oakmont reasoned that by taking steps to screen content, Prodigy took
on the role of a newspaper-like publisher and could be liable for repeating the
defamer’s words. Id. at *10. With CDA Section 230, Congress rejected that
rationale, freeing websites to screen objectionable content without fear of being held
liable as publishers of whatever content they choose not to censor.
II.

EARLY COURTS’ APPROACH TO SECTION 230
Early courts construed Section 230 broadly, to bar “any cause of action

that would make service providers liable for information originating with a thirdparty user.” See, e.g., Zeran v. Am. Online, Inc., 192 F.3d 327, 330 (4th Cir.
1997). These courts extended immunity without considering whether a theory of
liability treated the defendant as a publisher or whether the defendant attempted
to filter objectionable material.
2

 That approach serves part of Section 230’s goal quite well: If Section 230
creates immunity from any action involving third-party content, there can be no
recurrence of Stratton Oakmont. But, read this way, the statute creates no
incentive to filter objectionable content—the purpose of the CDA. If websites
that censor third-party content are already immune under subsection (c)(1)
against any cause of action involving third-party content, what is the purpose of
subsection (c)(2), which grants immunity if they censor? Such a reading defies
both common sense and the canon of surplusage, which instructs that “[i]n
construing a statute we are obliged to give effect, if possible, to every word
Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979); accord
Antonin Scalia & Bryan A. Garner, Reading Law 176 (2012) ( “canon prevents
. . . an interpretation that renders [a provision] pointless”).
III.

THE SHIFT TOWARD NARROWER IMMUNITY
Recent decisions have led a departure from Zeran toward interpretations that

are more consistent with the Section 230’s text and address growing concerns1 about

1

See generally, e.g., Benjamin Edelman & Abbey Stemler, From the Digital to the Physical:
Federal Limitations on Regulating Online Marketplaces, ___ Harv. J. on Legis. ___ (forthcoming
2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3106383; Danielle Keats
Citron & Benjamin Wittes, The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity,
86 Fordham L. Rev. 401 (2017); Joel R. Reidenberg et al., Section 230 of the Communications
Decency Act: A Survey of the Legal Literature and Reform Proposals, Report of Center on Law
and Information Policy at Fordham Law School; Note, Gregory M. Dickinson, An Interpretive
Framework for Narrower Immunity Under Section 230 of the Communications Decency Act, 33
Harv. J.L. & Pub. Pol’y 863 (2010); John Palfrey & Urs Gasser, Born Digital: Understanding the
First Generation of Digital Natives 106–07 (2008) (“The scope of the immunity the CDA provides
for online service providers is too broad . . . . There is no reason why a social network should be
protected from liability related to the safety of young people simply because its business operates
online.”).

3

 the statute’s scope. See, e.g., Chi. Lawyers' Comm. for Civil Rights Under Law, Inc.
v. Craigslist, Inc., 519 F.3d 666, 669 (7th Cir. 2008) (Easterbrook, J.) (Although the
Zeran “view has support in other circuits, . . . § 230 cannot be understood as a
general prohibition of civil liability.”); J.S. v. Vill. Voice Media Holdings, LLC, 359
P.3d 714, 721 (Wash. 2015) (“[I]t is difficult to reconcile an expansive reading
finding ‘broad immunity’ with the actual language of the statute.”); see also
Roommates.com, 521 F.3d at 1163–64.
First, courts have read Section 230(c)(1) to bar only actions that treat a
website as a “publisher or speaker.” As Judge Easterbrook put it, “[Section 230]
limits who may be called the publisher of information that appears online. That
might matter to liability for defamation, obscenity, or copyright infringement. But
Chicago’s amusement tax [action based on StubHub!’s decision not to include a taxcollection function on its website] does not depend on who ‘publishes’ any
information or is a ‘speaker.’ Section 230(c) is irrelevant.” City of Chi. v. StubHub!,
Inc., 624 F.3d 363, 366 (7th Cir. 2010); accord Doe v. Internet Brands, Inc., 824
F.3d 846, 851 (9th Cir. 2016) (“negligent failure to warn claim does not seek to hold
Internet Brands liable as [a] publisher or speaker”); Sigler v. Kobinsky, No. 06-CV1143, 2007 WL 7328792 (Wis. Cir. Ct. Nov. 20, 2007), aff’d 314 Wis. 2d 784 (Wis.
Ct. App. 2008) (“A defendant must establish . . . that the cause of action treat[s] the
defendant as a publisher.”).
Second, recent decisions have recognized that a website that plays a role in
developing damaging content, either itself or in cooperation with another, cannot
4

 avail itself of Section 230(c)(1), which immunizes only in cases of “information
provided by another.” 47 U.S.C. § 230(c)(1); accord Roommates.com, 521 F.3d at
1165; J.S., 359 P.3d at 718; see also Dickinson, Interpretive Framework, supra, at
879–80, n.79 (vicarious liability theories such as conspiracy, respondeat superior,
and some types of ratification survived after Section 230).
IV.

CONGRESSIONAL REPUDIATION OF ZERAN’S BROAD IMMUNITY
A.

Sex Trafficking and Backpage.com

But the shift has not been universal. Although many courts have rejected
Zeran and adopted narrower, text-focused interpretations, others have continued to
apply Section 230 broadly—with sometimes-disastrous consequences.
For example, in 2016, the First Circuit considered an action by sextrafficking victims against Backpage.com, Doe v. Backpage.com, LLC, 817 F.3d 12
(1st Cir. 2016). The plaintiffs alleged that Backpage “deliberate[ly] structure[ed] its
website to facilitate sex trafficking” by, for example, removing postings connected
with law-enforcement “sting” operations and scrubbing metadata from escort
photographs to limit their usefulness to law-enforcement agencies. Id. at 16–17.
Even though the action sought to hold Backpage.com liable not as the
“publisher or speaker” of the material on its website, but for its own conduct—
participation as a member of a sex-trafficking-for-profit conspiracy—the court
found Backpage immune under Section 230. The plaintiffs’ circumstances
“evoke[d] outrage,” but the First Circuit felt bound by an earlier decision adopting
Zeran’s approach to immunity, Universal Communication Systems, Inc. v. Lycos,

5

 Inc., 478 F.3d 413 (1st Cir. 2007). “Precedent cinches the matter. In Lycos, we
considered [and rejected] the argument that the prophylaxis of section 230(c) did
not encompass decisions regarding the construct and operation of a defendant’s
websites. . . .” Backpage.com, 817 F.3d at 16–17.2
B.

FOSTA Clarifies Section 230’s Scope

Appalled that some courts had stretched Section 230 to immunize even even
websites like Backpage.com, Congress took action. FOSTA clarifies that Section
230 is no bar to actions like that against Backpage.com, which sought to hold the
defendant liable for its own wrongful conduct. The stated purpose of FOSTA is “to
clarify that section 230 of [the] Act does not prohibit the enforcement . . . [of] civil
law relating to sexual exploitation of children or sex trafficking, or for other
purposes.” Pub. L. 115-164, 132 Stat. 1253. Section 230 “was never intended to
provide legal protection to [such] websites.” Id. at § 2(1).
Perplexingly, after relying extensively on Backpage.com before the Court of
Appeals,3 Armslist now argues that FOSTA’s repudiation of Backpage.com actually
supports its position in this appeal. According to Armslist, “[t]hat Congress saw the
need to amend the CDA to exclude protection for certain sex trafficking crimes”

2

Bound by its precedent, the First Circuit’s decision contrasted sharply with that of the Washington
Supreme Court. Compare J.S., 359 P.3d at 718 (“Backpage’s [posting rules were] . . . specifically
designed so that pimps can . . . traffic in sex.”; id. at 720–21 (“If the elements of a cause of action
include proof that an ISP is the publisher or speaker . . . then the action cannot proceed. But
subsection 230(c)(1) does not protect the ISP from liability for other causes of action.”) (Wiggins,
J. concurring), with Backpage.com, 817 F.3d at 21 n.5 (declining to follow Washington Supreme
Court because foreclosed by First Circuit precedent).
3

See Respondents’ Br. 3, 4, 7, 10, 14–15, 19, 26–29, 31, 33.

6

 proves that the First Circuit’s broad reading of Section 230 was correct, because
otherwise “the amendment would not have been necessary.” Respondents’ Br. 20.
Armslist’s interpretation of FOSTA is astonishing, bold, and completely inaccurate.
First, Armslist misunderstands the operation of FOSTA. Congress did not
enact FOSTA to narrow Section 230’s applicability to traditional sex-trafficking
actions. Traditional “sex trafficking crimes are clearly outside th[e] scope” of
“speaking and publishing.” Armslist’s Br. 20. FOSTA, however, created a new
breed of sex-trafficking actions based on the sort of publication-related conduct that
Section 230 ordinarily immunizes: (1) “facilitating a violation of” sex-trafficking
law, including by “publishing information designed to facilitate sex trafficking,”
132 Stat. 1255, at § 5; and (2) operation of a website or other “interactive computer
service” “in reckless disregard of the fact that such conduct contributed to sex
trafficking,” 132 Stat. 1253–54, at § 3.
Because the new actions impose liability for publication of user-created
information, Congress amended Section 230 by adding subsection (e)(5), which
prevents websites from invoking Section 230(c)(1) to escape liability. The
amendment permits liability—even for publication of third-party content—when
that publication violates FOSTA’s new provisions. The amendment makes no
change regarding actions, such as this one, which were already permitted under
Section 230 because not based on the defendant’s publication of third-party content.
Indeed, FOSTA expressly prohibits such a construction. 132 Stat. 1255, at § 7

7

 (“Nothing in this Act . . . shall be construed to limit . . . any civil action . . . that was
not [previously] limited or preempted by Section 230.”).
Second, Congress most certainly did not enact FOSTA because it agreed with
Backpage.com’s Zeran-line interpretation of Section 230. Congress enacted FOSTA
because it thought those cases were dead wrong. The purpose of FOSTA was to
“clarify” what was already true—“that section 230 of [the CDA] does not prohibit”
suits like Backpage.com. See 132 Stat. 1253. FOSTA’s legislative history is replete
with denunciations of those courts that have interpreted Section 230 to create broad
immunity:
H.R. Rep. No. 115-572, Part 1, at 4 (“In civil litigation, bad-actor websites have
been able to successfully invoke this immunity provision despite engaging in
actions that go far beyond publisher functions.”)
H.R. Rep. No. 114-214, at 5 (lamenting that “Backpage persuaded the district court
to dismiss the case [under the CDA]” but adding that “[t]he Supreme Court of
Washington State, however, has reached a contrary conclusion”).
H.R. Rep. No. 115-199, at 2 (Section 230’s “protections have been held by courts
to shield from civil liability . . . nefarious actors, such as the website
Backpage.com.”)
164 Cong. Rec. S1852 (daily ed. Mar. 21, 2018) (statement of Sen. Blumenthal,
D-Connecticut, coauthor and cosponsor of FOSTA) (“I want to make absolutely
clear, this legislation is not intended to prejudice the rights of anyone who has been
victimized by a crime online other than sex trafficking. For example, I disagree
with the courts that have held that the [CDA] immunizes online firearm sales—
like Armslist—for facilitating illegal gun sales. While this legislation does not
address those cases, nobody should infer that Congress believes they were rightly
decided.”)
163 Cong. Rec. S4670–71 (daily ed. Aug. 1, 2017) (statement of Sen. Portman, ROhio, coauthor and cosponsor of FOSTA who voted to enact the CDA)
(“[Backpage.com] found that the victims made a strong case that backpage tailored
its site to make underage sex trafficking easier” but found it immune “no matter
how complicit the website was. . . . [That] law was not intended to protect those
who willingly facilitate illegal conduct, such as sex trafficking.”).

8

 164 Cong. Rec. S1853 (daily ed. Mar. 21, 2018) (statement of Sen. Heitkamp, DNorth Dakota, who sponsored FOSTA) (“I never believed that the [CDA]
protected [Backpage.com] from . . . civil penalty if they were complicit and, in
fact, abetted these crimes. I never believed that, but there were judges in America
who did.”) (emphasis added).
164 Cong. Rec. H1277 (daily ed. Feb. 27, 2018) (statement of Rep. Collins, RGeorgia, who supported FOSTA) (“[S]ome websites have successfully invoked
the section 230 immunity provision despite engaging in actions that venture far
outside the scope of those envisioned by the statute . . . Doe v. Backpage . . . held
that . . . this law shielded the company from the claims that were filed by the child
victims. . . . FOSTA is a recommitment to Americans that Congress never intended
to create a system that allows business to commit crimes online that they could not
commit offline.”)
164 Cong. Rec. H1291 (daily ed. Feb. 27, 2018) (statement of Rep. Roby, RAlabama, who sponsored FOSTA) (“Thanks to broad interpretation of existing
law, specifically section 230 in America’s courts, these websites are essentially,
immune from State and local prosecutions.”)
164 Cong. Rec. H1295 (daily ed. Feb. 27, 2018 (statement of Rep. Maloney, DNew York, who sponsored FOSTA) (“[T]oday . . . we have the opportunity to
declare that the intention of the law was never to protect traffickers and companies
that [enable them]. . . . Let’s show the world, the courts, the families, the victims
where we stand.”) (emphasis added).

With FOSTA, Congress rejected Backpage.com’s Zeran-line interpretation of
Section 230, finding the results of that court’s approach so troubling that it enacted
legislation that clarifies Section 230’s scope and ensures that the outcome can never
be repeated—even in jurisdictions that, like the First Circuit, are precedentially
committed to Zeran.
V.

CDA SECTION 230 DOES NOT IMMUNIZE ARMSLIST
For this Court, the path is simpler. Wisconsin never embraced Zeran in the

first place. In interpreting the statute, Amici respectfully suggest that the Court be
guided by recent decisions in the Seventh Circuit and around the country that have
read Section 230 to do just what it says: “What § 230(c)(1) says is that an online

9

 information system must not be ‘treated as the publisher or speaker of any
information provided by’ someone else.” Chicago Lawyers, 519 F.3d at 671.
Section 230 bars actions that hold websites liable as publishers of third-party
content, but is irrelevant to claims unrelated to such publications—for example,
claims that the defendant helped develop the content at issue, negligently supervised
another’s online communications, failed to include website functionality to collect
taxes, failed to warn of dangers of using its website, or designed a website to
facilitate wrongful conduct. See Roommates.com, 521 F.3d at 1172; Lansing v. Sw.
Airlines Co., 980 N.E.2d 630, 639–41 (Ill. App. Ct. 2012); Sigler, 2007 WL
7328792; StubHub!, 624 F.3d at 366; Internet Brands, 824 F.3d at 853; J.S., 359
P.3d at 722. If a claim does not treat the defendant as a publisher, Section 230 does
not apply, even if the defendant happens to publish third-party content and even if
such publication is a but-for cause of the plaintiff’s injury. See Internet Brands, 824
F.3d at 853 (publication of third-party content a but-for cause of injury, but failure
to warn claim did not treat defendant as publisher).
In this case, Ms. Daniel asserts claims against Armslist for its own conduct,
not its publication of third-party content. Section 230 is irrelevant. See Compl. ¶¶
37–208; Daniel’s Br. 20–38.
CONCLUSION
Section 230 does not immunize defendants for their own actions or against
causes of action not predicated on publication. Just like brick-and-mortar
establishments, websites can engage in all manner of tortious conduct. They should
10

 not escape liability merely because they operate in cyberspace. Congress intended
no such reworking of state tort law. Those courts that have so expanded Section 230
immunity have strayed from the text, upset the rule oflaw, and undermined the state
courts' role as arbiters of private law. It is the state courts that are entrusted with
that duty, and Amici affirm their great faith in the state courts to discern wellpleaded from frivolous tort claims and apply time-honored doctrines to new
contexts. The viability of Ms. Daniel's claims is for the Wisconsin courts, not
Congress, to decide.

Dated:

January 24, 2019

GREGORY M. DICKINSON*
HARTER SECREST & EMERY LLP
1600 Bausch & Lomb Place
Rochester, New York 146704
Telephone: (585) 232-6500
Facsimile: (585) 232-2152
Email: gdickinson@hselaw .com
* pro hac vice

Respectfully Submitted,

EMILY L ERGAN (Bar No. 1070486)
JOHN C. PETERSON (Bar No. 1010965)
PETERSON, BERK & CROSS, S.C.
200 E. College Avenue, P.O. Box 2700
Appleton, Wisconsin 54912-2700
Telephone: (920) 831-0300
Facsimile: (920) 831-0165
E-mail: jpeterson@pbclaw .com
elonergan@pbclaw .com

Attorneys for Amici Curiae Members ofCongress

11

 CERTIFICATION PURSUANT TO WIS. STAT.§ 809.19(8)(d)
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of this brief is 2,997 words.

Uv/.~
~
E~rgan ;;---7
State Bar No.: 1070486

PETERSON, BERK & CROSS, S.C.

200 E. College Avenue, P.O. Box 2700
Appleton, Wisconsin 54912-2700
Telephone: (920) 831-0300
Facsimile: (920) 831-0165
E-mail: elonergan@pbclaw .com

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filed with the Court and served on all opposing parties.

State Bar No.: 1070486
PETERSON, BERK & CROSS, S.C.

200 E. College Avenue, P.O. Box 2700
Appleton, Wisconsin 54912-2700
Telephone: (920) 831-0300
Facsimile: (920) 831-0165
E-mail: elonergan@pbclaw.com