Eric Ristau

Attorney Ristau concentrates his practice in the areas of creditors' rights, wills and estate planning, business law, secured transactions, contracts, real estate and landlord/tenant law.

Is Your Office Bracket Pool Legal?

This is one of my favorite days of the year.  In addition to the green beer that is flowing, sports fans (and non-sports fans) get to spend an inordinate amount of time completing NCAA basketball tournament brackets in hopes of besting their friends, colleagues and often complete strangers.  The range of bracket pools varies nearly as much as the participants, from high-stakes pools involving fanatics with big money on the line, to office pools competing purely for bragging rights.

It seems like everyone completes a bracket.  But have you ever wondered if your bracket pool is legal?

According to this article on Forbes.com, free-to-enter pools are generally legal, but pay-to-enter pools are not.  As the article details, pay-to-enter pools may run afoul of at least three federal laws, and may be illegal in some states.  What about Wisconsin?

The answer comes down to whether your bracket entry is a “bet” and your pool is a “lottery.”

By statute, anyone who “makes a bet” is guilty of a Class B misdemeanor.[1]  Wis. Stat. § 945.01(1) defines a “bet” as “a bargain in which the parties agree that, dependent upon chance even though accompanied by some skill, one stands to win or lose something of value specified in the agreement.”  There are several exceptions from this definition (actual business transactions, prizes to actual competitors, etc.), unfortunately, they do not appear to exclude bracket pools.  Thus, the ability to win or lose “something of value” determines whether your bracket entry is a “bet.”  If you can win or lose money, it is a bet.  If it is for office bragging rights, it may not be (a very lawyerly answer, I know).

“A lottery is an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill.”  Wis. Stat. § 945.01(5)(a).[2]  There is at least a strong argument that success in bracket pools is determined by chance.  (Do you think Warren Buffet would be putting $1 Billion if the odds for winning were better than 1 in 9 quintillion?  How many times has your friend who picked based on uniform colors won?)  Similar to the “bet” discussion above, if money is required to enter the bracket pool, and if the winner receives a prize (usually money), the bracket pool is a lottery.

Now what about those trusted friends or colleagues who take time from their busy schedules to run your bracket pool?  These pool administrators may be engaging in “commercial gambling” and guilty of a Class I felony[3] if they do any of the following:

  • For gain, operating a bracket pool;
  • For gain, becoming a custodian (holding) of entry fees or records;
  • For gain, setting up an online pool; or
  • Conducting a lottery where the entry and prize is money.

As you would suspect with laws regulating gambling, it appears that money is the principal issue in determining whether your bracket pool is illegal gambling.

Thus, while money makes many things more exciting, if you are going to engage in a bracket pool, it may be better to put the checkbook away and stick to bragging rights.


[1] The maximum penalty for a Class B misdemeanor is $1,000 and 90 days imprisonment.

[2] As an aside, a lottery does not include bingo or certain raffle contests.  Good job Lutheran churches!

[3] The maximum penalty for a Class I felony is $10,000 and 3 years and 6 months imprisonment. Yikes!

Atty. Kindkeppel Honored as Fellow of the Wisconsin Law Foundation

Joshua J. Kindkeppel, attorney and shareholder with Eustice, Laffey, Sebranek & Auby, S.C., was recently nominated and accepted membership as a Fellow of the Wisconsin Law Foundation.  The Fellows organization was created in 1999 as a special means to honor members of the State Bar of Wisconsin who have both achieved significant accomplishments in their career and contributed leadership and service to their communities. Membership in the Fellows is considered a professional honor and includes the likes of Russ Feingold, Tommy Thompson, former members of the Wisconsin Supreme Court, and other well respected attorneys and retired judges.

Attorney Kindkeppel practices in the areas of business, real estate, employment, and civil litigation.  He was elected and served as president of the Dane County Bar Association in 2012-13, and collaborated with long-time Madison attorney Joseph Melli to create the Joseph A. Melli Mentorship Program to assist young Dane County attorneys. Kindkeppel is also active in the Sun Prairie Rotary Club, and serves on the planning committee for the Sun Prairie Kindness Retreats.

Blog Series: Buying or Selling Your Home

Spring is in the air (well, sort of).  Traditionally, the coming of spring brings to Wisconsin a number of things: the ability to occasionally go outside, renewed hope in our Milwaukee Brewers, and the start of the real estate season.  Traditionally, the spring and summer months are the busiest times of year for residential home transactions – and the times when our firm is contacted most frequently by prospective buyers and sellers.

Whether you are a first time homebuyer, or a seasoned veteran, the process of buying and selling a home – replete with deadlines, stacks of paperwork, and legal and technical jargon – may be intimidating.  Fear not!  We are here to help.  Over the next few weeks, this Blog will discuss the home buying or selling process, including the following concepts:

  • Listing Agreements,
  • Why and When to Hire an Attorney,
  • The Offer to Purchase,
  • Contingencies,
  • Title and Title Insurance, and
  • The Closing.

Along the way, we hope to not only inform you, our readers, of the basics, but also to discuss some common misconceptions and pitfalls, answer your questions, and show you ways that we can help.

We hope you will join us for this discussion.  If along the way you decide you would like to meet with one of our real estate attorneys, please contact us at (608) 837-7386.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

The “S” is for Super Lawyers: Two ELSA Lawyers Named as Super Lawyers

Eustice, Laffey, Sebranek & Auby, S.C. is proud to announce that Kevin M. Laffey and Kimberly P. Sebranek have been named by Wisconsin Super Lawyers Magazine as two of the top attorneys in the state for 2013.  Each year no more than 5% of lawyers in the state receive this honor.

From the Super Lawyers website: (www.superlawyers.com/about):

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Attorney Laffey is a shareholder in the firm and has significant experience representing financial institutions, businesses and individuals in the areas of business law, creditors’ rights, civil litigation, commercial transactions, and real estate law.  He is a graduate of the University of Wisconsin-Eau Claire, received his law degree from the University of Wisconsin Law School, and has been named a Super Lawyer in each of 2011, 2012, and 2013.

Attorney Sebranek is a shareholder in the firm with significant experience representing financial institutions and commercial clients.  Attorney Sebranek focuses her practice in the areas of creditors’ rights, bankruptcy (creditor side), banking, lender liability, business litigation, and business formation.  She is a graduate of Berea College in Berea, Kentucky, and received her law degree from the University of Wisconsin Law School. This is Attorney Sebranek’s third year as a Super Lawyer as she was selected in each of 2011, 2012, and 2013, after being honored twice as a Rising Star in 2006 and 2007.

Congratulations Kevin and Kym!

If you would like to meet with one of our Super Lawyers or one of our other experienced professionals about your legal needs, please contact us at (608) 837-7386.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

Dane County Bar to Celebrate Law Day on May 1, 2013

On the first day of May every year, local bar associations across the country celebrate Law Day, a nationally recognized day celebrating our nation’s commitment to justice and the rule of law.  According to the American Bar Association (ABA), Law Day was first celebrated in 1958, after being established by then-President Dwight D. Eisenhower.  Three years later, in 1961, Congress issued a joint resolution officially declaring May 1 the official date for Law Day.

Each year, a Law Day theme is chosen, and activities are planned which forward the message of that theme.  This year’s theme is “Realizing the Dream – Equality for All.”  To celebrate Law Day, on May 1, 2013, the Dane County Bar Association (DCBA) is hosting an open house at the Dane County Courthouse which includes a variety of activities, including a community mock trial, free legal consultations, free CLE courses for attorneys, and more.

For more information about this year’s Law Day events, please visit:

http://www.dcba.net/programs/lawday13.pdf.

Bench Bar Brawl on April 25, 2013

On Thursday, April 25, 2013, the Dane County Bar Association will host the 27th annual Bench Bar Brawl.  This year’s Brawl will take place at the Elks Lodge (711 Jennifer Street in Madison).  Cocktails and Hors D’ouevres will be served from 5-7 p.m., followed by an hour of entertainment, headlined by emcee Barry Levenson and featuring The Justus Singers.

The Brawl represents a great opportunity for members of the DCBA to mingle with each other as well as with members of the judiciary.  If you practice law in Dane County, we definitely recommend that you attend.  To register, simply click here and you will be transported to the DCBA’s secure registration website.  The deadline for registration is April 22, 2013, so sign up now!.

CA Court Bars Reading Phone GPS Map While Driving

http://www.marketplace.org/topics/tech/california-rules-against-reading-phone-maps-while-driving

A California appellate judge recently held that using a cellphone GPS mapping program while driving violated the State’s recently-enacted hands-free driving law.[1]  The California statute [Cal. Veh. Code § 23123(a)] specifically provides that:

A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.

In finding that the defendant had violated the statute, the Court reviewed the plain language of the statute and determined that

the primary evil sought to be avoided is the distraction the driver faces when using his or her hands to operate the phone … whether the wireless telephone was being used as a telephone, a GPS navigator, a clock or a device for sending and receiving text messages and emails.  (p. 3.)

In 2010, then-Governor James Doyle signed 2009 Wisconsin Act 220 into law, which provides that “No person may drive … any motor vehicle while composing or sending an electronic text message or an electronic mail message.”  Wis. Stat. § 346.89(3)(a).  A driver may, however, send a text or email while driving if using a “voice-operated or hands-free device if the driver of the motor vehicle does not use his or her hands to operate the device, except to activate or deactivate a feature or function of the device.”  Wis. Stat. § 346.89(3)(b)(4).

Given the explicit language “texting” language in Wisconsin’s statute, it seems the defendant may have had better luck defending his claim in Wisconsin.  What do you think?  Given the increased capabilities of cellular phones and wireless devices, do you think a similar broad prohibition is likely in our future?

Obviously, ELSA does not condone the use of electronic devices while driving and urges you to avoid any distractions which result in you taking your eyes off the road.  Stay safe!



[1] The entire opinion may be found here.

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Attorney Joshua J. Kindkeppel Announced as Shareholder

Eustice, Laffey, Sebranek & Auby, S.C. is pleased to announce that Joshua J. Kindkeppel has been named a shareholder with the firm.  Attorney Kindkeppel has been practicing law in Dane County since 2003 and joined Eustice, Laffey, Sebranek & Auby, S.C. in 2007.  His practice areas include business law, civil litigation, real estate, employment and administrative agency matters.  He is licensed to practice in Wisconsin and Minnesota and has been recognized as a Wisconsin “Rising Star” by Wisconsin Super Lawyers Magazine.

Attorney Kindkeppel is an active member of the Dane County Bar Association, currently serving as president-elect.  Attorney Kindkeppel takes great pride in the work that he and long-time Madison attorney Joe Melli did in developing and establishing Dane County’s attorney mentorship program, now known as the Joseph A. Melli Mentorship Program.  He also serves on several State Bar committees, is a member of the James E. Doyle Inns of Court and the Sun Prairie Rotary Club.

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Three ELSA Attorneys Named Super Lawyers

Eustice, Laffey, Sebranek & Auby, S.C. is proud to announce that Kevin M. Laffey and Kimberly P. Sebranek have been named by Wisconsin Super Lawyers Magazine as two of the top attorneys in the state for 2011.  Additionally, Joshua J. Kindkeppel has been named a Wisconsin Rising Star as one of the top up-and-coming attorneys in the state for 2011.  Each year, no more than 5% of lawyers in the state receive these honors.

From the Super Lawyers website (www.superlawyers.com/about):

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Attorney Laffey is a shareholder in the firm with 26 years of experience representing financial institutions, businesses and individuals in the areas of business law, creditors’ rights, civil litigation, commercial transactions and real estate law.  He is a graduate of the UW-Eau Claire and received his law degree from the University of Wisconsin Law School.

Attorney Sebranek is a shareholder in the firm with significant experience representing financial institutions and commercial clients.  Attorney Sebranek focuses her practice in the areas of creditors’ rights, bankruptcy, banking, lender liability, business litigation and business formation.  She is a graduate of Berea College in Berea, Kentucky and received her law degree from the University of Wisconsin Law School.

Attorney Kindkeppel is also a shareholder in the firm and is licensed to practice law in both Wisconsin and Minnesota.  This is the third time he has been recognized as a Rising Star. In addition, Attorney Kindkeppel was recently elected president-elect of the Dane County Bar Association and will assume that position for the 2012-2013 years.  Attorney Kindkeppel concentrates his practice in the areas of business law, civil litigation, real estate, employment law and administrative agency matters.  He is a graduate of Ripon College and received his law degree from the Hamline University School of Law in St. Paul, Minnesota.

If you would like to meet with one of our Super Lawyers about your legal needs, feel free to contact us at (608) 837-7386.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons..

Estate Taxes: The Lifetime Exemption

Over the past 18 months, the estate tax has been a hot topic in the news and on the floor of Congress.  Sometimes referred to as the “death tax”, the estate tax is a tax levied on “the transfer of the taxable estate of every decedent who is a citizen or a resident of the United States.”  26 U.S.C. § 2001(a).  A “decedent” is a deceased individual.  The decedent’s “taxable estate” includes the assets in a decedent’s estate after applying deductions.  Several of the available deductions and exemptions will be discussed in future posts.  For now we will just discuss the biggest of them all, the “lifetime exemption.”

The lifetime exemption gets all of the press when the media is discussing the estate tax.  When you someone in Congress or on cable TV ranting about the “estate tax” or “death tax”, this is what they are talking about.  Essentially, the lifetime exemption provides an individual the right to pass a specific dollar amount’s worth of assets to whomever they desire without incurring tax on those transfers.  Below is a chart of the federal lifetime estate tax exemptions for the past ten years and for next year:

Year Exclusion Amount Top Tax Rate
2001 $675,000 55%
2002 $1 million 50%
2003 $1 million 49%
2004 $1.5 million 48%
2005 $1.5 million 47%
2006 $2 million 46%
2007 $2 million 45%
2008 $2 million 45%
2009 $3.5 million 45%
2010 Repealed [1] 35%
2011 $5 million 35%
2012 $5 million 35%

To illustrate the lifetime exemption, assume that a single individual died in 2011 and has $6 million in assets.  Let’s also assume that the decedent does not read this blog, has not come in to meet with one of our estate planning attorneys and thus has not taken advantage of any other estate tax minimizing strategies (which will be discussed in future posts).  Given the $5 million lifetime exemption in 2011, the first $5 million of the decedent’s assets may be passed to his or her heirs tax free.  The remaining $1 million, however, will be subject to the estate tax ($1 million x 35% = $350,000.00 in taxes to be paid).

The estate tax is owed by the estate, not the recipients of the decedent’s assets.  Thus, the estate will have to withhold sufficient assets to make the $350,000 estate tax payment.  This means that $350,000 of assets, at least some of which could have gone to the decedent’s heirs, will have to be sold and paid to the IRS.  Accordingly, the personal representative of the estate should not disburse the estate property until the estate tax is paid (or until he or she knows how the estate tax will be paid from the estate assets).

Over the coming weeks we will discuss strategies by which the decedent could have reduced or potentially eliminated the estate taxes owed.  Stay tuned!



[1] An individual dying in 2010 would not have to pay any estate tax to transfer their assets to heirs, etc.  At the time, some were worried that allowing the estate tax to lapse would result in this.  In actuality, those concerns were largely unfounded, but there were some stories of estates legally transferring immense wealth to their heirs free of taxation. Like this one and this one.

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