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GARRETTO v. ELITE ADVISORY SERVS.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


May 22, 1992

MARIO GARRETTO, M.D., and DIGESTIVE DISEASE CONSULTANTS, S.C., Plaintiffs,
v.
ELITE ADVISORY SERVICES, INC., and ROBERT D. TOMLINSON, Defendants.

ROVNER

The opinion of the court was delivered by: ILANA DIAMOND ROVNER

Hon. Ilana Diamond Rovner

MEMORANDUM OPINION AND ORDER

 I. INTRODUCTION

 Dr. Mario Garretto, M.D., and Digestive Disease Consultants, S.C., plaintiffs in this action, have brought suit under Wis. Stat. § 551.59(1)(a) to recover $ 100,000 they invested in Elite Properties, Ltd., ("Elite Properties"). *fn1" Jurisdiction is founded upon diversity of citizenship. Plaintiffs argue that defendants, Robert Tomlinson and Elite Advisory Services, Inc. ("Elite Advisory"), solicited them to purchase securities in Wisconsin without a license as required by Wisconsin law, and, therefore, plaintiffs are entitled to the return of their full investment as well as interest and attorneys' fees. Plaintiffs have moved for summary judgment. For the reasons discussed below, plaintiffs' motion is granted.

 II. FACTS

 On May 7, 1991, plaintiffs filed a complaint asserting that they are entitled to return of their investment in Elite Properties, plus interest and attorneys' fees, due to the defendants' solicitation and sale of securities to plaintiff in Wisconsin without a license as required by Wis. Stat. §§ 551.31(1) and 551.31(3). *fn2" Section 551.31(1) provides that "it is unlawful for any person to transact business in [Wisconsin] as a broker-dealer or agent unless so licensed . . ." by the state of Wisconsin. Similarly, Section 551.31(3) provides that "it is unlawful for any person to transact business in [Wisconsin] as an investment adviser unless so licensed or licensed as a broker-dealer . . . ." Wis. Stat. § 551.31(3). Section 551.59(1)(a) further provides:

 Any person who offers or sells a security in violation of s. . . . 551.31 . . . is liable to the person purchasing the security from him or her. The person purchasing the security may sue . . . to recover the consideration paid for the security, together with interest at the legal rate under s. 8.04 from the date of payment, and reasonable attorney fees . . . .

 Wis. Stat. § 551.59(1)(a). *fn3"

 Plaintiffs allege that on February 18, 1988, Elite Advisory contracted with Garretto to provide financial planning and advisory services. (See Complaint P 6.) *fn4" Plaintiffs further allege that this contract, denominated as a Financial Planning Agreement, ultimately resulted in the solicitation and sale of securities by defendants to plaintiffs. (Complaint PP 8-15.) Because defendants were not licensed as broker-dealers or as investment advisers in Wisconsin, plaintiffs contend that they are entitled to the return of the moneys they invested.

 Plaintiffs have now moved for summary judgment against defendants. Plaintiffs argue that because there are no genuine issues of material fact with respect to their investment with defendants, they are entitled to judgment as a matter of law based upon the facts presently before the Court. These facts are summarized below.

 A. Undisputed Background Facts

 Plaintiffs and defendants agree that Garretto was a Wisconsin resident at all times material to this action. (Elite Answer P 1; Tomlinson Answer P 1); Defendants' Response to Plaintiffs' Statement of Facts ("Def. 12(n)") P 1.) *fn5" The parties also agree that Digestive Disease Consultants, S.C. ("Digestive") is a Wisconsin Corporation with its principal place of business in Kenosha, Wisconsin. (Elite Answer P 2; Tomlinson Answer P 2; Def. 12(n) P 2.) Garretto is a 50% shareholder in Digestive. (Elite Answer P 3; Tomlinson Answer P 3; Def. 12(n) P 2.)

 The parties further agree that Tomlinson is the president and sole shareholder of Elite Advisory, an Illinois Corporation. (Def. 12(n) P 7; see Elite Answer P 5 and Tomlinson Answer P 5.) The principal business of Elite Advisory is rendering financial services to the public, and, as Tomlinson testified at his deposition, acting as an "investment advisor providing counseling services and financial strategies to help fulfill [the] client's objectives." (Tomlinson Dep. Tr. at 23-24; Def. 12(n) P 7; Elite Answer P 5; Tomlinson Answer P 5.)

 B. Undisputed Facts Relating to Sale of Securities in Wisconsin

 The parties agree that Tomlinson and Garretto met in Illinois in 1986 to discuss whether Garretto was interested in using Tomlinson's financial planning services. (Def. 12(n) P 4.) *fn6" Later, in January of 1988, Tomlinson and Garretto spoke by telephone. (Def. 12(n) P 3; Plaintiffs' Exhibit 1.) *fn7" This conversation was confirmed by letter dated February 1, 1988. (Def. 12(n) P 5; Plaintiffs' Exhibit 1.)

 Tomlinson and Garretto met again on or about February 18, 1988 at Tomlinson's offices in Schaumburg, Illinois. (Def. 12(n) P 8.) At this meeting, Tomlinson discussed with Garretto various investment vehicles for Garretto's money. (Def. 12(n) P 13.) The parties agree that during the meeting, Garretto executed both the Financial Planning Agreement with Elite Advisory *fn8" and a commitment letter which required a deposit of $ 50,000 for use in a real estate syndicate to be formed by Elite Financial Services, Inc. ("Elite Financial"). (Def. 12(n) PP 12, 14.) *fn9" At this time, Garretto paid the first $ 2,000 of a total of $ 4,000 due to Elite Advisory under the Financial Planning Agreement for its services. (Def. 12(n) P 12.)

 Pursuant to the Financial Planning Agreement, Elite Advisory agreed to "provide financial planning and other services . . . to the Client for a period of one (1) year . . . ." (Def. Exhibit 7, P A.) Among the services which Elite Advisory agreed to provide was the preparation of "a financial plan (the "Plan") consisting of a written evaluation and analysis of the information provided by the Client and recommendations for a personalized financial program . . . ." (Def. Exhibit 7, P A(2)) (Emphasis supplied.) In return, Garretto agreed to pay Elite Advisory for the services provided. (Id. P M and p. 5.) Both Tomlinson and Garretto signed this agreement. (Id. at 4, 5.)

 Following the February 18, 1988 meeting, plaintiffs and defendants continued to communicate with each other regarding the investment opportunities open to Garretto. The parties agree that Garretto gave defendants two checks totalling $ 50,000; receipt of these checks was confirmed in a letter dated March 10, 1988 sent to Garretto in Kenosha, Wisconsin. (Def. 12(n) PP 15, 16; Def. Exhibit 16.) *fn10" The parties also agree that there were numerous telephone calls between Tomlinson and Garretto in the months following the February 18 meeting for the purpose of completing Garretto's financial plan. (Def. 12(n) P 18.) In addition, defendants sent at least thirteen letters to Garretto at his Kenosha, Wisconsin address. (Pl. Exhibits 12, 14, 16, 17, 18, 19, 22, 23, 24, 25, 28; Def. 12(n) P 19.) *fn11" Each of these letters was addressed to Garretto at his Kenosha residence, and Garretto confirms that he received them all at this address. (Pl. Reply Mem., Affidavit of Mario Garretto, PP 2, 3.) *fn12"

  Among the letters sent to Garretto at his home in Kenosha, Wisconsin was a letter dated May 3, 1988. The May 3rd letter was sent by Tomlinson on Elite Advisory letterhead and indicated that defendants planned on closing the first property acquisition by the real estate syndicate in which Garretto would be investing on May 13, 1988. (The letter reveals the property to be a Melrose Park, Illinois shopping center.) The letter stated:

 We are planning to close on this transaction, tentatively, May 13, 1988. If you have not already received a telephone call from me, I will be contacting you to discuss the financial demographics of this investment. I would like to review with you the logic of the acquisition and the mechanics that must be completed with you to effectively participate as an investor.

 Since we are anticipating the real estate closing on May 13, 1988, we will be sending you a confidential private placement memorandum along with a subscription agreement which you will need to sign and return to us. It is most likely that we will utilize an express delivery company.

 This entire process will need to be completed by no later than Thursday, May 12, 1988. Therefore, upon receipt of this letter, if there will be any reason we will not be able to locate you between now and May 12th, please contact us immediately and we will make special arrangements.

 (Pl. Exhibit 7; Def. Exhibit 18; Def. 12(n) P 21.)

 In addition to these letters, Tomlinson sent another letter to Garretto dated May 10, 1988 which was prepared on Elite Advisory letterhead and which bore Garretto's Kenosha address. (Def. Exhibit 19; Def. 12(n) P 22.) *fn13" The parties agree that this letter described the "concept" of Elite Properties, the real estate syndicate in which Garretto would be investing as a limited partner. (Def. 12(n) P 23.) A Private Placement Memorandum, a Subscription Agreement, and a Deposit Authorization letter were enclosed with the letter. (Pl. Exhibit 8; Def. Exhibit 19; Def. 12(n) PP 23, 24.) The letter requested that Garretto initial and sign the Subscription Agreement in designated places, sign the Deposit Authorization Letter so as to allow defendants "to use the funds to acquire the shopping center," and return the signed and initialed documents to Elite Advisory. (Def. 12(n) P 25; Pl. Exhibit 8; Def. Exhibit 19.) The parties agree that Garretto signed and returned these documents by overnight mail to Tomlinson on May 12, 1988. (Def. 12(n) P 26.) By this series of letters and meetings, Garretto purchased a one-half unit limited partnership interest in Elite Properties for $ 50,000. (Def. 12(n) P 27; Tomlinson Answer P 14; Elite Advisory Answer P 13.)

 Following this initial investment in Elite Properties, the parties completed a second transaction on behalf of Digestive. The parties agree that in June of 1988, Garretto forwarded a check for $ 50,000 to defendants which was applied toward the purchase, in Digestive's name, of another one-half unit limited partnership interest in Elite Properties. (Def. 12(n) PP 28, 29; Elite Answer P 15, Tomlinson Answer P 15.) *fn14" At this time, Garretto also paid the balance of $ 2,000 due to Elite Advisory under the Financial Planning Agreement for services rendered. (Def. (12(n) P 28.)

 The parties agree that during the course of these transactions, defendants were not licensed as investment advisers or broker-dealers in the State of Wisconsin. (Def. (12(n) P 30.) They also agree that in February of 1989, plaintiffs tendered their interests in Elite Properties and that defendants refused the tender. (Def. 12(n) P 31.) *fn15"

 III. ANALYSIS

 Federal Rule of Civil Procedure 56(c) requires summary judgment to be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Such is the case here.

 Wisconsin law imposes strict liability on individuals who solicit and sell securities as investment advisors or broker-dealers in Wisconsin without a license. The Wisconsin securities statute provides that "it is unlawful for any person to transact business in [Wisconsin] as a broker-dealer or agent unless so licensed" by the state of Wisconsin. Wis. Stat. § 551.31(1). Likewise, "it is unlawful for any person to transact business in [Wisconsin] as an investment adviser unless so licensed or licensed as a broker-dealer" by the State of Wisconsin. Wis. Stat. § 551.31(3). To determine whether defendants have violated these provisions, the Court must confront three issues. First, the Court must examine the capacity in which defendants dealt with plaintiffs. Second, the court must determine whether the transaction in this case falls within the definition of "transacting business." Third, the Court must determine whether these activities occurred in Wisconsin within the meaning of Section 551.31.

 The Court notes at the outset of this discussion that the parties have not cited, nor has the court discovered, any guiding case law from Wisconsin on the precise issues presented in this case. Nevertheless, the terms of the statute are so clear, and defendants' course of conduct so plainly within the scope of the statute, that liability is apparent based upon the undisputed facts presently before the Court.

 A. Capacity in which Defendants Conducted Business

 The first issue the Court must address is whether defendants acted as broker-dealers or investment advisers when dealing with plaintiffs. Defendants, in opposing the motion for summary judgment, argue that they were acting as issuers, who need not be licensed under Wisconsin law. Wisconsin law defines an issuer as "any person who issues or proposes to issue any security and any promoter who acts for an issuer to be formed." Wis. Stat. § 551.02(8). The issuer exception which defendants invoke, however, only applies to broker-dealers and not to investment advisers. Compare Wis. Stat. § 551.02(3)(b) with § 551.02(7). *fn16" Thus, if the defendants acted as investment advisers within the meaning of the statute, a license was required under Wisconsin law.

 Following standard rules of statutory construction, the Court must first look to the plain language of the statute and may look to outside sources only if the language is ambiguous. Ardestani v. Immigration and Naturalization Service, 116 L. Ed. 2d 496, U.S. , 112 S. Ct. 515, 520 (1991); Robert Hansen Trucking, Inc. v. Labor and Industry Review Commission, 126 Wis. 2d 323, 377 N.W.2d 151, 155 (Wis. 1985); Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913, 917 (App. 1991), review granted, 482 N.W.2d 105 (Wis. 1992).

 Wisconsin law defines an investment adviser as:

 Any person who, for compensation, engages in the business of advising others, either directly or through publications, writings, or electronic means, as to the value of securities or as to the advisability of investing in, or purchasing or selling securities, or who, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities.

 Wis. Stat. § 551.02(7). Having in mind the ordinary meaning of the terms used by the Wisconsin legislature in defining "investment advisers" *fn17" (see Ardestani, 112 S. Ct. at 520; State v. Temby, 108 Wis. 2d 521, 322 N.W.2d 522, 526 (App. 1982)), the Court turns to the facts presented by the record and considers whether defendants' actions fall within this definition.

 As set forth above, the financial relationship between Garretto and Tomlinson developed in 1988. On February 18, 1988, Garretto met with Tomlinson in Tomlinson's office in Schaumburg, Illinois. At this meeting, the two men executed the Financial Planning Agreement and Garretto paid defendants the first $ 2,000 of the $ 4,000 fee required under that agreement. (Def. 12(n) P 12.) Later, after a series of followup phone calls and letters between the parties, Garretto and then Digestive each invested $ 50,000 in Elite Properties through Tomlinson and Elite Advisory. *fn18"

 The undisputed facts reveal that in this relationship, defendants held themselves out as advisers, developed an investment plan, guided plaintiffs through the investment process and received a fee for so doing. The Financial Planning Agreement executed by the parties specifically states that Elite Advisory will provide investment advice and recommendations for a "personalized financial program." (Def. Exhibit 7, P A(2).) Tomlinson described the role of Elite Advisory Services as that of an "investment advisor providing counseling services and financial strategies to help fulfill [the] client's . . . objectives." (Tomlinson Dep. Tr. at 23-24.) The letters which Tomlinson and Elite Advisory sent to Garretto confirm that they did not serve as mere functionaries with respect to plaintiffs' investments. Rather, defendants held themselves out as a source of guidance as to the appropriate vehicle for the funds that Garretto and Digestive wished to invest. See, e.g., Pl. Ex. 18 (letter of Feb. 1, 1988) ("The purpose of the [February 18] meeting will be to explain our financial planning concept and to collect all of your relevant personal and financial data."); 6 (letter of Feb. 18, 1988) ("As soon as you can, please forward the balance of the information we will need to complete your financial plan."); 14 (letter of June 27, 1988) (discussing investment strategies and concluding "we are going to start writing to you regularly with this type of information to keep you informed and to share our concern about, not only your financial plan, but the impact of this information on your personal lives"); 17 (letter of October 21, 1988) ("Essentially, the purpose of this letter is to formalize a meeting date before the holidays and begin to get programs in place regarding the funding for the boys' education needs, review your portfolio, mutual funds, etc."); 19 (letter of November 3, 1988) ("In an ongoing attempt to better match your portfolio's characteristics with your individual 'investment personality', I have enclosed a questionnaire. . . . Your response to this questionnaire will be instrumental in . . . providing you detailed investment recommendations in the future."); 18 (letter of December 2, 1988) ("It was a pleasure meeting you the other day and I look forward to implementing your Financial Objectives."); 22 (letter of December 6, 1988) (setting forth a "summary of our 1989 forecast for the next several quarters," a series of investment recommendations, and concluding "one of the objectives of our firm will be to currently analyze all client investment portfolios to be put in a state of readiness for our upcoming recommendations for 1989."); 24 (letter of Feb. 6, 1989) ("Bob [Tomlinson] would like to schedule an appointment to review accomplishments to date as well as future objectives."); and 26 (letter of May 18, 1989) ("Enclosed you will find an article dated Wednesday, May 17, 1989 of the Wall Street Journal. We thought this article would be of particular interest to you since Mutual Shares are some of the funds we have recommended for a portion of your portfolio."). Finally, the record makes clear that it was defendants who guided plaintiffs through their investment in Elite Properties. (See Pl. Exhibits 7, 8; Def. 12(n) PP 20-29.)

 The parties do not cite, and the Court has been unable to discover, any case law applying Wisconsin's definition of "investment advisor." The only authorities cited by plaintiffs are several administrative rulings, one of which specifically states that the decision applies only to the facts presented and should not be considered the formal opinion of the Commission. While these rulings are certainly not binding on the Court, they reinforce the Court's conclusion that defendants were acting as investment advisors in their relationship with plaintiffs.

 For example, In re Investment Advisory Activities of Richard N. Van Eerden, 1978 Wisc. Sec. Lexis 5 (Nov. 10, 1978), *fn19" indicates that a firm may be deemed to be giving investment advice within the meaning of the Wisconsin statute even when it makes only generalized investment recommendations. Van Eerden involved an individual who, like defendants in this case, developed investment plans for clients. Typically, in the course of preparing such a plan, Van Eerden would give a client only general advice about various categories of investments (e.g., tax shelters); not until after the plan had been presented to the client and the client asked Van Eerden to implement it would he make any specific recommendations about particular investments. Even so, the Wisconsin Securities Commission opined that any general advice which Van Eerden might have given in the course of drawing up the investment plan constituted investment advice within the meaning of the state law:

 It is not necessary for the firm to give specific recommendations about securities before the definition applies. A firm falls within the definition if it gives, for compensation, general investment advice about the advisability of investing in, purchasing or selling securities even though a particular security is not named.

 1978 Wisc. Sec. Lexis 5 at*3. See also In re Gaarder & Miller, Inc., 1979 Wisc. Sec. LEXIS 18 at *3 (Jan. 8, 1979) ("In our view, the making of recommendations as to the appropriateness of investments in general categories of securities falls within the statutory definition of 'investment advisor'").

 As these administrative rulings reveal, defendants' conduct was more than sufficient to render them "investment advisors" for purposes of Section 551.02(7). Tomlinson and Elite Advisory not only provided general investment advice to plaintiffs, but, in the course of creating a financial plan for Garretto, they also specifically provided information about, and accepted plaintiffs' investment in, Elite Properties. See Pl. 12(m) P 13, Def. 12(n) P 13; Pl. 12(m) PP 21-29, Def. 12(n) P 21-29. See also Pl. Ex. 7 (letter of May 3, 1988) (describing Garretto's forthcoming real estate investment in Elite Properties); and 8 (letter of May 10, 1988) (describing concept of Elite Properties). *fn20"

 B. Transacting Business as Investment Advisors

 The same rules of statutory interpretation apply as the Court considers the second issue: Whether defendants "transacted business" as investment advisers.

 Wisconsin law provides that "it is unlawful for any person to transact business in [Wisconsin] as an investment adviser unless so licensed or licensed as a broker-dealer." Wis. Stat. § 551.31(3). The term "transact business" is defined as follows:

 (5) "Transact business" as used in ch. 551, Stats., includes:

 . . .

 (b) For purposes of s. 551.31(3), Stats., advising any person in this state through the United States mail, by telephone or by other means from outside or from within this state as to the value of securities, the advisability of investing in, purchasing or selling securities, or issuing analyses or reports concerning securities to any person in this state through the United States mail, by telephone or by other means; and

 (c) For purposes of s. 551.31(1) and (3), Stats., soliciting any person in this state through the United States mail, by telephone or by other means from outside or from within this state to become a customer, client or subscriber of the person on whose behalf the soliciting is performed.

 21 Wis. Admin. Code, § SEC 1.02(5), 3 Blue Sky L. Rep. (CCH) P 64,502, at 56,501 (1990). This broad definition covers the defendants' activity here.

 As described by the summary of undisputed facts, defendants clearly transacted business as investment advisors with plaintiffs. After executing the Financial Planning Agreement, there were numerous phone calls and letters exchanged between Tomlinson and Garretto for the purpose of completing Garretto's financial plan. (Def. 12(n) P 18.) Moreover, as the Court has noted above, included among these communications were letters specifically advising Garretto as to the investment in Elite Properties and requesting him to return various materials in order to effectuate that investment. See Pl. 12(m) P 13, Def. 12(n) P 13; Pl. 12(m) PP 21-29, Def. 12(n) P 21-29; Pl. Exhibits 7, 8.

 These calls and letters, being integral to plaintiffs' investments in Elite Properties, fall readily within the broad definition of "transacting business" as that term is used in Section 551.31(3) and defined in the Wisconsin Administrative Code. Geared as they were toward development of a financial plan for plaintiffs and toward finalizing the purchase of limited partnership interests in Elite Properties, these calls and letters may be characterized both as communications advising plaintiff about investing in a particular security and as communications soliciting plaintiffs to become clients of Tomlinson and Elite Advisory. Cf. In re Maas, 1981 Wisc. Sec. LEXIS 69 at *1, PP 2, 3 (June 12, 1981) (consent order) (suggesting that advising at least one person in Wisconsin is sufficient to constitute transacting business).

 C. Conduct in Wisconsin

 Finally, the Court must determine whether defendants' activities as investment advisors amounted to conduct which took place in Wisconsin for purposes of Section 551.31(3).

 The record reveals that a significant portion of defendants' conduct did take place in Wisconsin. Although all of the meetings between Garretto and Tomlinson appear to have taken place in Illinois, much of the exchange of information necessary in order to prepare a financial plan for Garretto and to execute plaintiffs' investment in Elite Properties took place via telephone calls and letters to and from Garretto in Wisconsin. Thus, for example, Tomlinson's letters of May 3 and May 10, 1988, described the pending real estate acquisition by Elite Properties and enclosed, for Garretto's execution and return, documentation such as the Subscription Agreement and Deposit Authorization letter which was necessary in order to implement Garretto's investment in Elite Properties, in addition to the Private Placement Memorandum which outlined the framework of Elite Properties. These letters, together with the other correspondence and phone calls directed to Garretto at his Kenosha residence, reflect a course of conduct through which defendants, to borrow a phrase commonly used in personal jurisdiction analysis, "purposefully established" and maintained contact with Wisconsin residents and procured their purchase of securities. See Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 108-09, 107 S. Ct. 1026, 1030, 94 L. Ed. 2d 92 (1987). In this context, the fact that the meetings between Tomlinson and Garretto took place outside of Wisconsin is irrelevant, for neither Section 551.31(3) nor the administrative definition of "transacting business" requires that all or even most of the business between the parties have taken place within the borders of Wisconsin. See Hardtke v. Love Tree Corp., 386 F. Supp. 1085, 1091 (E.D. Wis. 1975) (where defendants had conducted preliminary negotiations with plaintiff in Wisconsin for the sale of stock and certificate of stock was mailed to plaintiff in Wisconsin, defendants had offered or sold unregistered securities within scope of Wisconsin securities statute despite the fact that the plaintiff paid defendants for the stock in Iowa; "the fact that a portion of the transaction may have occurred in some other state is not controlling"). See also Feitler v. Midas Associates, 418 F. Supp. 735, 739 (E.D. Wis. 1976) (where defendants had given plaintiff an unexecuted limited partnership agreement at meeting in New York, plaintiff had completed his portion of the agreement in Wisconsin and returned it to defendants in New York, and defendants had then completed their portion of the agreement and sent plaintiff a letter informing him that the agreement had been executed, there was both an offer to purchase a security from a Wisconsin resident and an acceptance directed to a Wisconsin resident which brought the transaction within the scope of the Wisconsin securities statute).

 Defendants spend much of their brief arguing that they did not know that Garretto was a Wisconsin resident, and were not aware that they were sending letters to Garretto's residence. (Def. Mem. at 11-12; Def. 12(n) P 1.) *fn21" However, the terms of Sections 551.31(1) and 551.31(3) impose strict liability on those who violate them. The statute is not phrased as to incorporate a requirement of knowledge or intent. Compare Wis. Stat. § 551.58 (imposing criminal liability, inter alia, for false or misleading statements when person making them knew or had reason to know they were false or misleading). Therefore, the defendants' subjective belief as to where Garretto resided is simply not relevant. Because defendants admit that both Garretto and Digestive were Wisconsin residents at all times material to the complaint (see p. 4 & n.5, supra), and the record reflects a sustained course of activity directed to plaintiffs in Wisconsin, there is no genuine issue of material fact as to whether defendants were transacting business in Wisconsin.

 In a closely related context, Wisconsin courts have twice rejected the contention that an intent requirement should be read into a portion of the Wisconsin securities statute which imposes criminal liability upon those who willfully engage in conduct which operates as a fraud or deceit upon a person. In Van Duyse v. Israel, 486 F. Supp. 1382 (E.D. Wis. 1980), a habeas proceeding challenging the defendant's conviction under this provision, the district court explained:

 The plain meaning of the statutory provisions indicate that the State need only prove that the accused willfully engaged in conduct which operates or would operate as a fraud or deceit upon any person. It is the nature of the act which is dispositive, not the state of mind of the actor. In this sense, the statute imposes a form of strict liability. Once the seller has willfully engaged in conduct which operates or would operate as a fraud or deceit, he will not be heard to argue that he did not intend the consequences of his acts.

 Accord People v. Mitchell, 175 Mich. App. 83, 437 N.W.2d 304, 308 (1989). In State v. Temby, supra, 108 Wis. 2d 521, 322 N.W.2d at 526, the Wisconsin appellate court likewise held that the absence of the word "intent" from the statute signaled that intent was not an element of the offense. These cases lend strong support to the Court's conclusion that the absence of the word "knowingly" from Sections 551.31(1) and 551.31(3) obviates any requirement that a broker-dealer or investment advisor realize he is dealing with a Wisconsin resident. *fn22"

 Moreover, defendants' arguments as to their purported ignorance are completely unsupported by the evidence. Defendants sent letter after letter to Garretto in Kenosha, Wisconsin in the months surrounding the transactions. Moreover, Garretto listed his Wisconsin address and phone number on the attachment to the "Subscription Agreement" he signed in connection with the investments in Elite Properties (see Def. Exhibit 21 at 9; Def. Exhibit 27 at 9). *fn23" Indeed, defendants themselves, under the heading "Residence Address/Telephone," listed Garretto's Kenosha, Wisconsin residence and telephone number (and no Illinois address or number) on the June 3, 1988 "Personal Financial Planning Case Analysis" which they prepared for Garretto. (Pl. Ex. 13 at 3.) *fn24" That defendants were dealing with a Wisconsin resident and a Wisconsin corporation was, at minimum, something they should have realized; and the evidence presently before the Court strongly suggests that they were in fact aware of this circumstance. *fn25"

 D. Remedy

 The penalty for violating the license requirement is clear. Anyone who offers or sells a security in violation of Section 551.31 is liable to the purchaser for "the consideration paid for the security, together with interest at the legal rate under Section 138.04 from the date of payment, and reasonable attorney fees . . . ." Wis. Stat. § 551.59(1)(a). Plaintiffs are therefore entitled to recover the total of $ 100,000 they paid for the partnership interests they purchased in Elite Properties. In addition, an award of attorneys' fees is mandatory, as the court held in Criticare Systems, Inc. v. Sentek, Inc., 159 Wis. 2d 639, 465 N.W.2d 216, 221 (App. 1990), review denied, 471 N.W.2d 509 (Wis. 1991):

 The intent of the statute was to provide for enforcement of state securities laws largely by civil suits brought by citizens. 3 Loss, Securities Regulation, 1631, 1643 (1961). Inadequate budgets and uneven enforcement of Blue Sky laws make civil liability the only really effective sanction. Id. at 1631. We conclude that the award of reasonable attorney's fees encourages private enforcement of ch. 551, Stats. If a securities violation is found to exist, attorney's fees therefore are mandated.

 The court went on to hold that the same was true for interest. 465 N.W.2d at 221. Accordingly, plaintiffs are also entitled to recover interest from the dates upon which the partnership interests in Elite Properties were purchased, together with reasonable attorneys fees.

 No calculation of these amounts has been submitted to the Court. Plaintiffs shall file a statement of the amounts for which they seek recovery, including accrued interest and attorneys' fees, no later than May 29, 1992. Any request for attorneys' fees shall provide reasonable detail and supporting affidavits from plaintiffs' counsel as to the work performed. Defendants shall file any objections to the amounts sought no later than June 5, 1992.

 IV. CONCLUSION

 For the reasons set forth above, plaintiffs' motion for summary judgment is granted, the Court finding that defendants transacted business as investment advisors in Wisconsin without a license. Entry of final judgment is held in abeyance pending the submission and review of a statement of the amounts plaintiffs are owed in principle, interest, and reasonable attorneys' fees.

 ENTER:

 ILANA DIAMOND ROVNER

 UNITED STATES DISTRICT JUDGE

 Dated: May 22, 1992


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