Blizzard (Photo by Emily Bell)
Minnesotans know that the weather here can be terrible (see this past winter). Personally, as a child who vividly remembers the 1991 blizzard on Halloween, I am well aware that the weather in Minnesota can be treacherous and derail important plans. However, sometimes those important plans (ones that have greater impact than not collecting a pillowcase full of candy) need to be completed by a certain date, like when a contract clause says that “time is of the essence” or there is an express condition precedent.
So what happens when weather threatens a deal closing when performance is due? We know that a defendant could argue that the weather made it impossible to close and therefore performance was excused; but could a plaintiff argue that the defendant still had to perform under the contract, even though the contract included an express condition precedent, because performance was temporarily impossible?
This was one of the arguments enXco made an attempt to avoid summary judgment in a huge breach of contract suit against Northern States Power (“NSP”) over a failed wind energy generation project in North Dakota. enXco claimed that NSP’s failure to perform caused over $245 million in damages.
Link Snacks, Inc., the makers of JACK LINK’S brand beef jerky, has filed a lawsuit in the United States District Court for the district of Minnesota (federal court, that is) alleging that 100 anonymous eBay users have sold counterfeit coupons and violating their trademarks. Link Snacks has also filed a motion for early discovery. Will Link Snacks find the culprits?
On December 10, Jammie Thomas-Rasset filed a petition for a writ certiorari with the U.S. Supreme Court (meaning that she seeks review of an intermediate appellate court’s ruling against her) asking to have a jury verdict reduced on the grounds that the award is excessive and violates her due process rights. Thomas-Rasset shared 24 songs on Internet, committing copyright infringement. That much is not in dispute. But do statutory damages become punitive if they no longer plausibly reflect actual injury? How much is too much, way too much, of a penalty for copyright infringement?
This past week, Plaintiff JJ Holland sued the Minneapolis law firm Fredrikson & Byron for attorney malpractice for a trademark application that went wrong. The case is pending before the Honorable Ann D. Montgomery (D. Minn.).
In 2000, JJ Holland hired Fredrikson to file an intent to use application for the YES! trademark. The application claimed the trademark for use on 21 different goods including cigarettes and related products like lighters and cigars but it was only using the trademark on cigarettes. When JJ Holland was ready to have the mark registered, Fredrikson lawyers allegedly advised that this posed no problem. It was a problem.
For our second profile of an interesting Minnesota trial lawyer (our first, Elliot Olsen, can be found here), we had the chance to sit down recently with Jim Behrenbrinker to talk about his diverse practice and the big excessive force/wrongful death claim he brought against the City of Minneapolis. Behrenbrinker was formerly at Robins Kaplan Miller & Ciresi L.L.P., but has been on his own practicing plaintiff’s personal injury, criminal defense, and small business employment defense for the past 10 years. He was also honored by Minnesota Lawyer as an Attorney of the Year in 2010.
Check out our conversation below. He talked about being a federal judicial clerk, his first real courtroom experience representing the indigent, his $2.1 million wrongful death verdict against the City of Minneapolis, his unexpected big referral source, and his advice for young lawyers. Continue reading
Jennifer Eisenbarth, of Shakopee, Minnesota lost a whole lot of weight, was a participant in the hit show, The Biggest Loser, and now sues certain weight-loss firms that, she alleges through her lawyers at M&G, “are wrongfully capitalizing on Plaintiff’s reputation and intellectual property rights to lure consumers into ordering their Infringing Products on the false premise that they have been utilized or recommended by Mrs. Eisenbarth when she has not.” (HT: Courthouse News Service)