Daphne Smith v. RecordQuest LLC ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2084
DAPHNE SMITH,
Plaintiff-Appellant,
v.
RECORDQUEST, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:19-cv-00025 — Lynn Adelman, Judge.
____________________
ARGUED JANUARY 13, 2021 — DECIDED FEBRUARY 26, 2021
____________________
Before FLAUM, BRENNAN, and SCUDDER, Circuit Judges.
BRENNAN, Circuit Judge. Federal courts defer to state courts
on state-law issues, but not without reservation. In this case,
Daphne Smith claimed RecordQuest, LLC charged excessive
fees when satisfying her request for health records. So Smith
sued, alleging violation of Wisconsin’s health records statute
and unjust enrichment. The district court dismissed Smith’s
claims. Soon after, the Wisconsin Court of Appeals decided a
2 No. 19-2084
case in which it expressly disagreed with the district court’s
analysis of Smith’s statutory claim.
Although we have our own views on the proper interpre-
tation of Wisconsin’s health records statute, we defer to the
decision of the Wisconsin Court of Appeals in these circum-
stances. We reverse the district court’s judgment on Smith’s
statutory claim but affirm on different grounds the district
court’s judgment on Smith’s unjust enrichment claim.
I. Background
Daphne Smith suffered an injury from a car accident in
May 2014 and retained an attorney to represent her for a per-
sonal injury action.1 As part of that representation, Smith au-
thorized her attorney to obtain her health care information.
The attorney requested Smith’s medical records from Mil-
waukee Health Services, Inc. (“MHS”), on three different oc-
casions between September 2014 and March 2015. But health
care records company RecordQuest, LLC, not MHS, an-
swered these requests and charged Smith’s attorney (who
paid on her behalf) two different fees—a $20.96 handling fee
and a $8.26 certification fee—each time.
Smith later brought a class action in state court, which
RecordQuest removed to federal court. Smith alleged these
charged fees contravened the permissible fee schedule set out
in Wis. Stat. § 146.83(3f)(b) for health care records requests
and resulted in the unjust enrichment of RecordQuest.
1 On a motion to dismiss, we treat all factual allegations as true and
view them in the light most favorable to the plaintiff, Smith. Menzies v.
Seyfarth Shaw LLP, 943 F.3d 328, 332 (7th Cir. 2019).
No. 19-2084 3
RecordQuest moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6).
The district court, primarily by applying agency princi-
ples, dismissed both of Smith’s claims. Smith v. RecordQuest,
LLC, 380 F. Supp. 3d 838 (E.D. Wis. 2019). On Smith’s statu-
tory claim, the district court observed that § 146.83(3f)(b) im-
poses a duty upon only “health care providers.” Id. at 842.
RecordQuest is not a “health care provider” but is the agent
of a health care provider, MHS. Id. For the district court, “no
principle of agency law holds that a principal’s liability is im-
puted to the agent when the agent performs the act that re-
sults in the principal’s liability.” Id. at 843. So the district court
did not hold RecordQuest liable under § 146.83(3f)(b). Id. at
842–44. Even so, the district court concluded that this reason-
ing did not affect the liability of a principal like MHS, leaving
no remedial gap for a plaintiff like Smith. Id. at 842, 844.
The district court also rejected Smith’s reliance on Wis.
Stat. §§ 146.84(1)(b) and 990.001(9). That § 146.84(1)(b) and
(bm) provide a cause of action against “[a]ny person … who
violates § 146.82 or 146.83” did not change that the statutory
duty, and therefore the liability, always lies with the principal
and not the agent. Id. at 844. Moreover, § 990.001(9)—“[i]f a
statute requires an act to be done which may legally be done
by an agent, such requirement includes all such acts when
done by an authorized agent”—simply means that “the
agent’s acts are the principal’s acts[,]” so an agent may fulfill
a principal’s statutory duty. Id. at 843–44. The district court
also noted that its holding would be no different than if Smith
sued an MHS billing clerk (who, like RecordQuest, is not a
health care provider). Id. at 844.
4 No. 19-2084
Smith’s unjust enrichment claim failed for the same rea-
sons. The district court held that any excessive fees—or, un-
just benefit—that Smith allegedly conferred to RecordQuest
belonged to MHS as RecordQuest’s principal. Id. at 845. Even
if RecordQuest kept the excessive fees, it would be MHS who
conferred the benefit to RecordQuest because “under its
agency agreement with MHS, the fee was RecordQuest’s com-
pensation for rendering records-retrieval services to MHS.”
Id. Additionally, no inequity would result from allowing
RecordQuest to keep the excessive fees as Smith could always
sue MHS directly, according to the district court. Id.
Two other conclusions by the district court merit mention.
That court declined to consider RecordQuest’s argument that
the statute of limitations barred Smith’s statutory and unjust
enrichment claims. Id. at 841. And it did not sua sponte grant
Smith leave to amend her complaint because she had not con-
tended she could cure the legal defects in her claims. Id. at
845–46.
II. Discussion
We consider (A) whether RecordQuest can, as an agent of
MHS, be liable for excessive fees under § 146.83(3f)(b); (B)
whether alleged violations of that statute form the basis for an
unjust enrichment claim against RecordQuest; and (C) if
Smith’s claims are time barred.
“Our review of a district court’s grant of a motion to dis-
miss for failure to state a claim is de novo, and we may affirm
on any basis in the record.” UWM Student Ass’n v. Lovell, 888
F.3d 854, 859 (7th Cir. 2018).
No. 19-2084 5
A. Excessive Fees under Wis. Stat. § 146.83(3f)(b)
Wisconsin law contains detailed statutory provisions gov-
erning health care records, which require that “if a person
requests copies of a patient’s health care records, provides in-
formed consent, and pays the applicable fees … , the health
care provider shall provide the person making the request
copies of the requested records.” Wis. Stat. § 146.83(3f)(a).
This duty applies to twenty-six different classes of medical
professionals listed in Wis. Stat. § 146.81(1). In addition,
§ 146.83(3f)(b) sets forth a fee schedule and prohibits health
care providers from charging more than what is listed as per-
missible.
Under these statutes, liability arises for “[a]ny person …
who violates § 146.82 or 146.83” either willfully or negli-
gently. Wis. Stat. § 146.84(1)(b), (bm). As for damages, willful
and negligent violations vary only in degree. Compare Wis.
Stat. § 146.84(1)(b) (providing that willful violations result in
“actual damages to that person, exemplary damages of not
more than $25,000 and costs and reasonable actual attorney
fees”), with Wis. Stat. § 146.84(1)(bm) (providing that negli-
gent violations result in “actual damages to that person, ex-
emplary damages of not more than $1,000 and costs and rea-
sonable actual attorney fees”).
Wisconsin law also codifies certain interpretive canons
and rules. See Wis. Stat. § 990.001 (“In construing Wisconsin
laws the following rules shall be observed unless construction
in accordance with a rule would produce a result inconsistent
with the manifest intent of the legislature … .”). One such
rule, entitled “Acts by agents,” states: “If a statute requires an
act to be done which may legally be done by an agent, such
6 No. 19-2084
requirement includes all such acts when done by an author-
ized agent.” Wis. Stat. § 990.001(9).
Smith’s statutory excessive fees claim requires us to inter-
pret these Wisconsin health care records statutes. When we sit
in diversity and interpret state law, we must exercise care and
caution, because “[w]hen interpreting state law, a federal
court’s task is to determine how the state’s highest court
would rule.” Rodas v. Seidlin, 656 F.3d 610, 626 (7th Cir. 2011).
“In the absence of guiding decisions by the state’s highest
court, we consult and follow the decisions of intermediate ap-
pellate courts unless there is a convincing reason to predict
the state’s highest court would disagree.” ADT Sec. Servs., Inc.
v. Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir.
2012). So while a state supreme court’s rule would control, a
state appellate court’s decision can provide controlling guid-
ance as well. See In re Zimmer, NexGen Knee Implant Prod. Liab.
Litig., 884 F.3d 746, 751 (7th Cir. 2018). At bottom, “we must
interpret the law as we think Wisconsin’s courts would.”
Winebow, Inc. v. Capitol-Husting Co. Inc., 867 F.3d 862, 868 (7th
Cir. 2017), certified question answered and remanded, 2018 WI 60,
381 Wis. 2d 732.
The Wisconsin Supreme Court has not addressed liability
for health care records companies or third parties under
§ 146.83(3f)(b), but the Wisconsin Court of Appeals has done
so. In Townsend v. ChartSwap, LLC, that appeals court ex-
pressly disagreed with the district court’s analysis in this case.
2020 WI App 79, ¶¶ 11–12 (Wis. Ct. App. 2020) (citing and dis-
tinguishing the district court decision in Smith, 380 F. Supp.
3d at 844), petition for cert. filed, 2019AP2034 (Dec. 16, 2020). To
the appeals court, the district court’s decision “not only un-
dermines the underlying purpose of WIS. STAT.
No. 19-2084 7
§ 146.83(3f)(b), which is to protect patients from being
charged excessive fees for access to information … , but it also
misinterprets WIS. STAT. § 990.001(9) because the statute does
not specifically deal with the imputation of liability.” Id. at
835. The appeals court concluded that “agents of health care
providers have no greater power to charge fees in excess of
those permitted by § 146.83(3f)(b) than the providers them-
selves.” Id. Fearing a gap in the remedial scheme, the appeals
court held that ChartSwap, a health care records company like
RecordQuest, fell within § 146.83(3f)(b) as an agent of Mil-
waukee Radiologists, a health care provider like MHS. Id. at
736. On appeal, Smith urges us to follow ChartSwap, and
RecordQuest asks us to disregard it.
Given that we are to “consult and follow the decisions of
intermediate appellate courts[,]” ADT Sec. Servs., Inc., 672
F.3d at 498, we defer here to ChartSwap. But we do so with
pause. The district court here offered sound points rejecting
liability for health care records companies under
§ 146.83(3f)(b), some of which we echo.
In ChartSwap, the appeals court’s view of statutory pur-
pose superseded the statutory text. See 2020 WI App 79, ¶ 14
(“To allow a third-party to circumvent the statutory limitation
on health care providers simply because it does not provide
actual health care services would defeat the purpose of Wis.
Stat. § 146.83(3f)(b) … .”); but cf. Mohamad v. Palestinian Auth.,
566 U.S. 459, 460 (2012) (“[P]etitioners’ purposive argument
simply cannot overcome the force of the plain text.”). Under
the text of the health records statute, RecordQuest is not a
health care provider. Cf. Wis. Stat. § 146.81(1) (listing twenty-
six definitions for health care providers). And the text of
§ 146.83(3f)(b) imposes no duty upon agents of health care
8 No. 19-2084
providers. Cf. State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶ 45, 271 Wis. 2d 633, 663 (noting that the
Wisconsin Supreme Court has “repeatedly held that statutory
interpretation ‘begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the in-
quiry’”) (quoting Seider v. O'Connell, 2000 WI 76, ¶ 43, 236
Wis. 2d 211, 232). The district court’s emphasis on the text of
§ 146.83(3f)(b) here is persuasive.
The ChartSwap decision also unduly fears a loophole in the
statutory remedy. Smith could have sued MHS directly, clos-
ing any supposed gap in the remedial scheme that would re-
sult from the district court’s interpretation. See RESTATEMENT
(THIRD) OF AGENCY § 7.03(1) (2006) (“A principal is subject to
direct liability to a third party harmed by an agent’s conduct
when … the agent acts with actual authority or the principal
ratifies the agent’s conduct and … the agent’s conduct, if that
of the principal, would subject the principal to tort liabil-
ity[.]”). Again, the district court’s reasoning here is sound.2
We also interpret Wis. Stat. § 990.001(9) differently than
the appeals court did in ChartSwap. The Wisconsin Court of
Appeals read § 990.001(9) as “codif[ying] the general rule of
agency law, which is that if a statute requires a certain action,
that requirement applies equally to a principal’s agents.”
ChartSwap, 2020 WI App 79, ¶ 13. But like the district court,
we read that interpretive rule—“[i]f a statute requires an act
to be done which may legally be done by an agent, such
2 Open questions, such as whether Wisconsin courts treat violations
of Wis. Stat. § 146.83(3f)(b) as torts, or whether a principal’s delegation of
duty would allow it to avoid vicarious liability, provide even more reason
for us to defer in a case like this.
No. 19-2084 9
requirement includes all such acts when done by an author-
ized agent”—to mean what it says: An agent may fulfill a
principal’s statutory duty because the agent’s acts are the
principal’s acts. The Wisconsin Court of Appeals in ChartSwap
approvingly cited Rosecky v. Tomaszewski, 225 Wis. 438, 274
N.W. 259 (1937). Yet that case appears to support the plain
reading of this court and the district court. Rosecky, 274 N.W.
at 261 (noting the predecessor statute to § 990.001(9) “pro-
vides that when a statute requires an act to be done which
may by law as well be done by an agent as by the principal,
such requisition shall be construed to include all such acts
when done by an agent”). This is to say that because an agent
may fulfill a principal’s duty does not mean that the agent
must be liable for statutory violations from that fulfillment.
Any decision, state or federal, should meaningfully engage
with these points.
We flag these issues, yet do not decide them, for that is the
role of state courts. Erie Railroad. v. Tompkins, 304 U.S. 64, 78
(1938) (“[W]hether the law of the state shall be declared by its
Legislature in a statute or by its highest court in a decision is
not a matter of federal concern.”). Since Erie’s advent, federal
courts and state courts often employ different interpretive
methodologies. Compare ChartSwap, 2020 WI App 79, ¶ 14
(noting a worry that the district court’s interpretation “would
defeat the purpose of Wis. Stat. § 146.83(3f)(b) in and of it-
self”), with INTL FCStone Fin. Inc. v. Jacobson, 950 F.3d 491, 499
(7th Cir. 2020) (“Plain text trumps purpose.”). This case is no
exception. “But absent a conflict with the Constitution or a
federal law, we cannot overturn established state precedent.
The so-called ‘Erie guess’ is not an Erie veto.” Sanchelima Int’l,
Inc. v. Walker Stainless Equip. Co., LLC, 920 F.3d 1141, 1146 (7th
Cir. 2019). We may disagree with ChartSwap, but we cannot
10 No. 19-2084
convincingly say that the Wisconsin Supreme Court would do
the same. Cf. ADT Sec. Servs., Inc., 672 F.3d at 498. Our system
of dual sovereignty is well served by a respectful dialogue be-
tween state and federal courts. But deference to state courts
does not prevent us from expressing our own views on state-
law issues.
We also do not conclude that certification of this question
to the Wisconsin Supreme Court is the proper solution. That
court may answer only certified questions “to which it ap-
pears to the certifying court there is no controlling precedent
in the decisions of the supreme court and the court of appeals of
this state.” Wis. Stat. § 821.01 (emphasis added). This case may
not even be certifiable under Wisconsin law because
ChartSwap is controlling precedent under Wis. Stat. § 821.01.
Cf. Sanchelima Int’l, Inc., 920 F.3d at 1146 (noting that SEVENTH
CIR. R. 52(a), which governs certification, relies upon the cer-
tification rules of the forum state).
At this time, ChartSwap guides us. Cf. Todd v. Societe Bic,
S.A., 21 F.3d 1402, 1414 (7th Cir. 1994) (Flaum, J., dissenting)
(“When this court sits in diversity, federalism requires us to
enforce the substantive law of the forum state, even when we
conclude we see a more enlightened path.”). We therefore re-
verse the district court’s judgment as to Smith’s statutory vi-
olation out of deference to the Wisconsin Court of Appeals.
B. Unjust Enrichment and Wis. Stat. § 146.83(3f)(b)
In addition to her statutory claim, Smith asserts a
common-law claim for unjust enrichment based on her
payments to RecordQuest. Under Wisconsin law, unjust
enrichment is an equitable doctrine that is “grounded on the
moral principle that one who has received a benefit has a duty
No. 19-2084 11
to make restitution where retaining such a benefit would be
unjust.” Watts v. Watts, 137 Wis. 2d 506, 530 (1987). An unjust
enrichment claim requires: “(1) a benefit conferred upon the
defendant by the plaintiff, (2) appreciation by the defendant
of the fact of such benefit, and (3) acceptance and retention by
the defendant of the benefit, under circumstances such that it
would be inequitable to retain the benefit without payment of
the value thereof.” Lindquist Ford, Inc. v. Middleton Motors, Inc.,
557 F.3d 469, 477 (7th Cir. 2009) (footnote omitted) (quoting
Seegers v. Sprague, 70 Wis. 2d 997, 1004 (1975)).
The district court dismissed Smith’s unjust enrichment
claim primarily because MHS, as principal, would receive any
benefit given to its agent, RecordQuest. But we affirm on dif-
ferent grounds: Smith cannot resort to a remedy in equity (un-
just enrichment) when she has a remedy at law
(§ 146.83(3f)(b)). See UWM Student Ass’n, 888 F.3d at 859 (not-
ing that, when reviewing a motion to dismiss, “we may affirm
on any basis in the record”). In Wisconsin, a claim for unjust
enrichment is typically a quasi-contractual claim that pro-
vides an equitable remedy when no legal remedy exists. See
Watts, 137 Wis. 2d at 530 (“Because no express or implied in
fact agreement exists between the parties, recovery based
upon unjust enrichment is sometimes referred to as ‘quasi
contract,’ or contract ‘implied in law’ rather than ‘implied in
fact.’ Quasi contracts are obligations created by law to prevent
injustice.”). Indeed, “[o]ne of the firmly-established rules of
equity is that where a court of law can do as full justice to the
parties as can be done in equity, a court of equity will not in-
terfere.” Kramer v. Bohlman, 35 Wis. 2d 58, 65 (1967) (footnote
omitted).
12 No. 19-2084
So it is here. Under § 146.83(3f)(b), Smith has a remedy at
law for any “injustice” that allegedly resulted from excessive
payments she made to RecordQuest. The equitable remedy
that Smith seeks in unjust enrichment is derivative of, and
predicated upon, that statutory claim. Put differently, Smith
unjustly enriched RecordQuest only if RecordQuest violated
§ 146.83(3f)(b). Allowing a double recovery for these inter-
twined claims may itself be inequitable. We therefore affirm
the district court’s dismissal of Smith’s claim for unjust en-
richment.3
C. Statute of Limitations for Wis. Stat. § 146.83(3f)(b)
and Unjust Enrichment
On appeal, RecordQuest reasserts an argument that the
district court declined to consider: that the two-year statute of
limitations of Wis. Stat. § 893.93(2)(a) bars both Smith’s statu-
tory claim under § 146.83(3f)(b) and her unjust enrichment
claim. For RecordQuest, Smith’s statutory and unjust
3A later decision by this district court is also relevant. In Harwood v.
Healthcare Tech. Enabled Servs., LLC, the court observed that City of
Sheboygan v. Finnegan, 245 Wis. 349, 352 (1944), and Wright v. Eaton, 7 Wis.
595, 608 (1859), “support a different theory of liability against Change
Services [a company analogous to RecordQuest]—one based on the
common law of agency rather than on unjust enrichment.” No. 18-C-1941,
2019 WL 10351680, at *2 (E.D. Wis. June 10, 2019). Specifically, “[i]f the
health-records statute prohibited the health care providers from charging
the fee, then the health care providers may not have been legally entitled
to collect the fee. Thus, under cases such as City of Sheboygan or Wright,
Change Services, as the agent of the health care providers, might be liable
to the plaintiff for returning the fee.” Id. We are not convinced that
Wisconsin courts have recognized this specific cause of action under
common law. But Smith has not pleaded it in her complaint, so we need
not consider it here.
No. 19-2084 13
enrichment claims rise and fall together; both are time barred
because § 146.83(3f)(b) results in a “statute penalty,” trigger-
ing the two-year limitation period of § 893.93(2)(a). That the
excessive fees allegedly occurred between September 2014
and March 2015 made Smith’s November 20, 2018 complaint
untimely, so RecordQuest’s argument goes. According to
Smith, however, Wis. Stat. § 893.93(1)(a)’s six-year statute of
limitations applies to her statutory claim under § 146.83(3f)(b)
as no “statute penalty” under § 893.93(2)(a) follows. Smith
also contends that her unjust enrichment claim, as a quasi-
contract, falls under the six-year statute of limitations for con-
tracts under Wis. Stat. § 893.43(1).4
We begin with the text of the two statutes of limitations at
issue. Section 893.93(1)(a) creates a catch-all six-year limita-
tions period for “[a]n action upon a liability created by statute
when a different limitation is not prescribed by law.” Section
893.93(2)(a) sets a two-year limitations period for “[a]n action
by a private party upon a statute penalty, or forfeiture when
the action is given to the party prosecuting therefor[e] and the
state, except when the statute imposing it provides a different
limitation.” Traditionally, Wisconsin courts have applied the
two-year limitations period to actions that principally benefit
the public at large (a “statute penalty”), and the six-year lim-
itations period to actions that principally benefit the plaintiff
at issue (no “statute penalty”). E.g., State ex rel. Leung v. City of
Lake Geneva, 2003 WI App 129, ¶ 6, 265 Wis. 2d 674, 679 (Wis.
App. Ct. 2003) (“The Wisconsin Supreme Court has held that
the two-year statute of limitations applies where the action by
4 Although the Wisconsin Legislature amended the relevant portions
of § 893.93 in 2018, we apply the version in effect at the time that Smith’s
claims first accrued in 2014 and 2015.
14 No. 19-2084
a private party upon a statute penalty is for the benefit of the
public, while the six-year statute of limitations applies when
private individuals seek private relief.”).
Smith’s § 146.83(3f)(b) claim is a private action for private
relief, so it is timely under § 893.93(1)(a)’s six-year limitations
period. Relief under § 146.83(3f)(b) entails “actual dam-
ages[,]” “exemplary damages[,]” and “costs and reasonable
actual attorney fees.” Wis. Stat. § 146.84(1)(b), (bm). If Smith
succeeds in her suit, these remedies would principally redress
her injury from the allegedly excessive fees, not any harm
done to the public. This cause of action, then, concerns a pri-
vate individual in Smith seeking private relief against a pri-
vate defendant in RecordQuest. No “statute penalty” results.
Cf. State ex rel. Leung, 265 Wis. at 679 (“Complaints under the
open meetings law are not brought in the individual capacity
of the plaintiff but on behalf of the state. Thus, an action
brought under the open meetings law falls squarely under
§ 893.93(2).”). Although § 146.84(1)(b) and (bm) authorize
“exemplary damages” (i.e., punitive damages), that authori-
zation is not the “statute penalty” talisman that RecordQuest
claims. See Erdman v. Jovoco, Inc., 181 Wis. 2d 736, 762 (1994)
(“Although the legislature has created an incentive for em-
ployers to comply with the statute by providing double dam-
ages, the statute is primarily intended to benefit individual
employes [sic].”). What matters is who, on balance, the cause
of action benefits—the private individual or the general pub-
lic. Because § 146.83(3f)(b) is primarily private in nature and
does not result in a “statute penalty” for the public’s benefit,
the six-year limitations period of § 893.93(1)(a) applies here.
Smith’s unjust enrichment claim is also timely. Wisconsin
law imposes a six-year statute of limitations for contract-
No. 19-2084 15
based claims: “[A]n action upon any contract, obligation, or
liability, express or implied, including an action to recover
fees for professional services, except those mentioned in
§ 893.40, shall be commenced within 6 years after the cause of
action accrues or be barred.” Wis. Stat. § 893.43(1). And as
discussed, a claim for unjust enrichment is a quasi-contractual
claim. Accordingly, Wisconsin courts have applied
§ 893.43(1)’s six-year limitations period for contract-based
claims to quasi-contractual claims. See Boldt v. State, 101 Wis.
2d 566, 578 (1981) (holding that “a claim based on quasi-
contract … was subject to the six-year statute of limitations of
[§ 893.43]”). We do the same here and hold that Smith timely
made her unjust enrichment claim.
Smith’s final argument is that she should have been
granted leave to amend her complaint to address the issues of
Wisconsin agency law raised in Harwood, 2019 WL 10351680,
at *2. But “[w]here a plaintiff does not move to amend, the
district court is under no obligation to amend the complaint
sua sponte.” Cleveland v. Rotman, 297 F.3d 569, 575 (7th Cir.
2002). Because Smith did not move for leave to amend her
complaint, the district court committed no error by declining
to grant leave sua sponte.
III. Conclusion
This case presents an interpretive question regarding Wis-
consin’s health records statutes best resolved by that state’s
courts. Out of deference to the Wisconsin Court of Appeals in
ChartSwap, we REVERSE the dismissal of Smith’s statutory
claim under § 146.83(3b)(f). For the reasons given above, we
AFFIRM the dismissal of Smith’s unjust enrichment claim.