Over the past few years, whenever a person is charged with retail theft (shoplifting) from a large merchant, he or she frequently receives a letter from a law firm-- usually from some other state-- demanding $300 damages. This is because Sec. 943.51, Stats., provides for exemplary civil damages of up to $300 for each offense. The statute provides that this is in addition to any criminal fines imposed.
Clients frequently ask, "Should I pay this?" This $300 in exemplary civil damages is not the same as making restitution. Firstly, these "law firms" that send the letters likely are law firms in name only. In reality, they are large businesses, probably run by a lawyer, that send out thousands of these letters per day (depending on how many merchants the law firm has as clients). We don't know exactly what the fee arrangement is between the "law firm" and the business, but it is safe to assume that the law firm keeps a percentage of the money received. In other words, the merchant probably will not even know that you made the payment.
Nevertheless, the statute is clear. If the plaintiff (merchant) can prove that the defendant committed retail theft, then the court must award the merchant exemplary damages.
As a practical matter, the real question is, if you don't informally agree to pay the exemplary damages, will the merchant file a law suit. As a matter of practical experience, I have never had a client come to me with a civil lawsuit for exemplary retail theft damages. This makes perfect sense. It is not cost-effective for a merchant to pay a lawyer to sue a person for $300. Thus, if you do not pay, it seems like there is little chance that you will be sued in civil court.
Although a criminal conviction for retail theft is not a prerequisite to bringing a civil action under the statute, the plaintiff (merchant) in a civil case must prove a violation of the retail theft statute. Certainly, this is made much easier if the defendant has been convicted of retail theft in criminal court. Therefore, even if you intend to pay the civil exemplary damages, you should wait until your criminal case is resolved. If you are found not guilty, or if the case is dismissed, you might consider holding the plaintiff (merchant) to its burden of proof in civil case that is very unlikely to happen.
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