“A Tough Knot to Crack” (photo by Jay Fanelli)
Update (December 9, 2013): The Minnesota Supreme Court heard argument on this case this past week. Kay Nord Hunt argued for appellant AWUM. Tom Gunther argued on behalf of the Leiendeckers. There are many strands in this difficult legal knot so the Minnesota Supreme Court will have its hands full. The analytical challenge is off to a bad start when Minnesota’s “anti-SLAPP” statute requires that a party who invokes the statute come forward in response to a motion to dismiss with “clear and convincing evidence” to support its anti-SLAPP claim. As the Court pointed out, is it not a conundrum of a paradox of an enigma of a mystery that a jury might theoretically find for a plaintiff under a lower standard of “preponderance of the evidence” (the applicable legal standard for civil liability) but the trial court could theoretically throw the case out before it ever gets to a jury due to lack of “clear and convincing evidence” (not to mention before any discovery)?
Original Post (September 6, 2013): (modified) Leiendecker v. AWUM is a multi-year saga that includes lawyers suing lawyers for suing lawyers.
The Minnesota Supreme Court has recently granted the AWUM’s petition for review of the most recent Court of Appeals decision in this seemingly endless fiasco.
Update (December 6, 2013): On news of the win of the Mille Lacs Band of Ojibwe, Minnesota Litigator wondered out loud whether the Band, at the end of the day, would be able to cash in its chips (otherwise known as “enforce the judgment that it won”). The Band and its lawyers plainly share that concern.
Original Post (October 7, 2013): Minnesota Litigator has previously covered the legal battle between the Corporate Commission of the Mille Lacs Band of Ojibwe Indians and Money Centers of America (“MCA”) (here and here).
The case has gone badly for MCA all along and now the tribe has prevailed on summary judgment against MCA to the tune of $5,623,690.83, plus prejudgment interest at a rate of 10% per year. (Congratulations to the phalanx of Faegre lawyers, Jane E. Maschka and Michael Krauss and others, who have represented the tribe.) And MCA’s counterclaims against the tribe have been tossed out.
It seems that this lawsuit, started in the Spring of 2012, was never really close. This, in turn, might suggest that the challenge for the plaintiff was never whether it would prevail but whether it will ever collect. District of Minnesota Sr. U.S. District Court Judge Richard H. Kyle’s order on cross-motions for summary judgment has the faintest hint of the potential challenge, concluding that summary judgment was emphatically “against MCA only” (and not the individual defendants). MCA apparently did not have the cash to run its business with the Plaintiff properly, where will it come up with the cash now?
Image from Miss B’s Science Blog
Recently, I met someone socially whose distant relative was single-handedly responsible, the family lore goes, for federal truth in advertising laws some fifty years or so ago. The distant relative made his money selling “50 large new towels” for $1.00 (+ $ 0.25 postage), with a print promotion that included a photo of the “towels.” The image suggested something other than the small pile of fabric “wipes” that buyers received by mail if they pounced on this “unbelievable bargain.”
I imagine a crotchety consumer taking the “towel” seller to task and the seller answering, “Well, it might not be what you expected, but they’re towels. They work to dry things off and so on…” The Federal Trade Commission had to step in to protect consumers. Otherwise, who would bother to try to vindicate their rights for a loss of $1.25 (that is, about $14.50 adjusted for inflation)?
Actually, it is a significant challenge for an unhappy buyer to recover from a purchase that hovers somewhere between imperfect and useless even when the loss is in the 100,000′s of dollars.
Courts of law are places in our society where people go to obtain justice — to get a fair hearing, to obtain a decision or a judgment in surroundings specifically designed to preserve the best possible medium for dispensing justice.
Deadlines fit into this model for obvious reasons. In order for the court and the adversarial process to work, there must be clarity and consistency in communications between parties and in communications to and from the court. Far-reaching decisions made without notice or on short notice do not comport with the concept of justice.
On the other hand, overly rigid adherence to deadlines, deciding cases based on missed deadlines rather than the merits of the dispute is also at odds with the notion of justice. ”Deadlines are sometimes missed; accidents happen,” as Sr. U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) ruled last week.
A Wells Fargo executive described a particular investment opportunity for some Wells Fargo clients as “free money.” That opportunity was Wells Fargo’s ”Securities Lending Program” (or “SLP”), a program that heavily invested in “structured investment vehicles (or “SIVs”).
In March 2008, however, Wells Fargo Chief Executive Officer John Stumpf allegedly said publicly that Wells Fargo did not invest in SIVs because they were “nonsense” and enormously risky. At that time, the evidence suggests that Wells Fargo’s own SLP was “heavily invested in SIVs” (a.k.a., “enormously risky nonsense” (?)).