[UPDATE:  Updating this drama that unfolded in June, see linked brief: the Plaintiff's objections to Judge Boylan's sanction (arguing that it did not go far enough and unfairly faulted plaintiff's tactics in the litigation as a basis for not delivering the death-blow of default judgment on defendants).  The issue will now be before U.S. Judge John R. Tunheim (D. Minn.)]

If somebody “in corporate law” says, “Stop deleting,” you MIGHT stop deleting?

(Well, the deponent (a Chief Financial Officer) who so testified, was under oath, so he should get credit for testifying truthfully?)

From a case covered previously on Minnesota Litigator that noted the matter is being hard-fought, comes a $100,000 sanction for spoliation of evidence.  Plaintiff had sought a default judgment but U.S. Mag. Judge Arthur J. Boylan (D. Minn.) appears to have been only slight more disgusted with defendants’ conduct than with plaintiff’s in the litigation, so he stopped short of “the ultimate sanction.”

As all U.S. civil litigators and regular readers of Minnesota Litigator know, the U.S. Supreme Court in recent years has substantially ratcheted up the requirements for pleading a complaint in federal court (see here, for example). What about the responsive pleadings — that is, answers to complaints (and, in particular, affirmative defenses raised by defendants)?  Do the heightened pleading standards apply to them too? Read the rest of this entry »

Google “Minnesota Nice” and you’ll get over 75,000 “hits” (and an apparently worthy cause right at the top, incidentally).   Whether owing to this regional pride in restraint and civility or other factors specific to the Minnesota bar, practitioners of civil litigation in Minnesota are well advised to proceed with caution when expressing of contempt, disgust, anger, or outrage in regard to opposing positions or opposing counsel.

You might even want to be careful inserting what you think might be a humorous quip in a brief if it is at the expense of an opposing party or counsel.  It could be that not everyone shares your sense of humor.

Read the rest of this entry »

[UPDATE:  This story's gotten some national attention along with coverage generally of in-house counsel's access (or restrictions) to the protections of whistle-blower laws under various states' laws.]

After a very long gestation, the Minnesota Supreme Court has finally issued its decision in Kidwell v. Sybaritic.  The delay can be explained by virtue of the fact that the Supreme Court’s decision comes in three fairly lengthy and researched opinions — a plurality opinion (Justices Gildea, Dietzen, G.B. Anderson), a concurring opinion (Magnuson, Chief Judge), and a dissenting opinion (Justices P. Anderson, Meyer, Page).

Minnesota Litigator will take a pass on a lengthy exegesis of the analysis of each opinion.  In summary, it is part of many in-house lawyers’ jobs to analyze the legality of company conduct and report that analysis to the company itself.  Some percentage of the time, this presumably results in reports of wrong-doing.  It seems that the majority of the Minnesota Supreme Court has some significant misgivings about treating these employees like any other Minnesota employees under the Minnesota whistle-blower statute.

(Though the Court does not say it, an inference could be that the Court has some concern that every in-house lawyer would almost invariably have automatic leverage when facing termination because he or she could almost always say the termination came after they “blew the whistle” on some conduct.)  Consequently, if Minnesota in-house lawyers find themselves having to report wrong-doing of such a severity that they have serious concern of a “shoot the messenger” reaction by the company, they would be well advised to tread with the greatest care and consult their own counsel as to how they might report that wrong-doing in a way that would give the best chance of preserving a claim under the statute.   The Supreme Court did not erect a per se bar against whistle-blower claims by in-house lawyers or other employees whose jobs might be characterized as rooting out wrong-doing (compliance officers, for example), but it set up parameters that do not apply to other Minnesota employees for this subset of employees within the state.

Back in late 2004, the now-defunct law firm of Sprenger & Lang found itself disqualified as counsel for a plaintiffs class in a class action against Cargill because a former Cargill executive shared his Cargill-privileged documents with the plaintiffs’ lawyers (related opinion here).

Now, in a class action lawsuit against Target Corp., the Halunen law firm has been disqualified on a very similar basis.  Notably, the Halunen firm had sought ethical guidance from the Minnesota Lawyers Professional Responsibility Board (to the effect that filing of the lawsuit notwithstanding contact with the former Target executive would violate no ethical rules) but such telephonic advisory opinions are non-binding on the Court, U.S. District Court Judge Ann Montgomery (D. Minn.) noted.   Read the rest of this entry »

After Bell Atlantic v. Twombly, U.S. civil litigators know that pleading requirements in federal court have been ratcheted up substantially, and probably in no area of law more than in the antitrust context, that is, the context of Twombly itself.

In the antitrust case brought against SuperValu pending before U.S. District Court Judge Ann D. Montgomery, Plaintiffs operate retail grocery stores and they allege that SuperValu conspired with C&S, another large wholesale grocer,  to violate antitrust laws when the two moved in on the bankrupt Fleming Companies, another wholesale grocer, in 2003 and, it is alleged conspired to divvy up the spoils along geographic lines and agreed not to compete with one another in each others’ respective markets.

SuperValu pointed to the applicable four-year statute of limitation as a basis for the dismissal of the antitrust complaint.  (Plaintiffs’ earliest complaint was filed 12/31/2008.)  SuperValu prevailed on the argument that the doctrine of fraudulent concealment was inapplicable to the allegations but lost on the argument that its on-going allegedly wrongful acts (e.g., charging supra-competitive prices) served to extend the statute.

SuperValu also invoked the “plausibility” requirement of Twombly, an argument that Judge Montgomery rejected quickly.

Judge Montgomery devoted considerably more time to her analysis Plaintiffs’ motion for partial summary judgment based on a finding that the SupreValu/C&S alleged “scheme” amounted to a “per se” antitrust violation but she rejected that argument as well.

Some time ago, Best Buy appears to have installed dryers in peoples’ homes in a manner inconsistent with manufacturers’ printed instructions on the dryers themselves — installing “metal foil vents,” which apparently present a known increased risk of fire from lint buid-up over time.

Ashleigh Frankel, of Georgia, with the help of an army of plaintiffs’ lawyers, brought a class action against Best Buy in U.S. District Court (D. Minn.) which is before U.S. District Court Judge John R. Tunheim, but probably not for long.  Best Buy, without admitting any fault or liability has agreed to swap out buyers’ foil vents with vents made of “heavy metal” or, if applicable, to seek reimbursement from Best Buy for the cost of having such a replacement done.  The interesting question, yet to be decided, is how much money will be awarded plaintiffs’ counsel, a question expressly put off for another day…

An out-of-state computer software company (Aspect, a Massachusetts company, which had purchased Melita, a Georgia company) terminated a Minnesota company (Automated Telemarketing Servs., Inc. (ATS)) with which Melita had had a sales representation agreement, for ATS’s supposed failure to meet a multi-million dollar annual sales quota in 2008.

ATS sued, taking the position that Aspect essentially subverted and manipulated its calculation of ATS’s annual quota to terminate ATC wrongfully under Minnesota law (among other claims).  The ATS/Melita contract provided for application of Georgia law, however.

Aspect (successor to Melita) moved to dismiss the claim under Minnesota law in light of the Georgia choice-of-law clause.  The claim was dismissed.   Like the living dead, however, the claim kept coming back and defendant’s motion for sanctions became increasingly shrill.   Read the rest of this entry »

Regular readers of Minnesota Litigator will be familiar with the lawsuit brought by Lyle Berman and Lakes Entertainment against the Milberg Weiss law firm, Bill Lerach, and other disgraced and fallen angels from the plaintiffs’ side securities fraud class action law firm that disintegrated after the revelation of improper payments made to co-defendant securities fraud damages expert, Paul Torkelson.  (The long string of Minnesota Litigator coverage of the case is collected here.)

In a nutshell, roughly: complaint filed, motion to dismiss granted, amended complaint filed, motion to dismiss amended complaint made, motion to amend again brought while second motion to dismiss pending, second motion to dismiss granted, motion to alter judgment and to amend again, today denied.   It would seem plaintiffs now must take it up with the U.S. Court of Appeals for the Eighth Circuit in St. Louis if they want to revive the action.

Let’s say an insured has two insurance policies from different companies for the same risk (call them Company A and Company B).  Can the insured elect to impose all of the defense and coverage costs on one of the two for whatever reason (say, due to a side-deal with Company B as to on-going premiums for other policies or policy periods)?  Can a court simply order Company B to be equally liable?

Last week, the Minnesota Supreme Court answered the following question:  ”Can a court order primary insurers, who insure the same insured for the same risks, and whose policies are triggered for defense purposes, to be equally liable for the costs of defense where there is otherwise no privity between the insurers?”  In order to answer, “Yes,” the Minnesota Supreme Court had to deal with the rule it established back in 1967:

Where it can be argued, legitimately and in good faith, that either of two insurers has primary coverage for a claim, both insurers have a duty to defend that claim.  If either insurer undertakes the defense, it is responsible for its own defense costs and cannot later seek reimbursement from the other. Read the rest of this entry »

There is a broad societal consensus, if maybe not a deep understanding or appreciation of legal costs and investments, that lawyers are “too expensive.”  (“Too expensive,” in comparison to what?  Medical care? Don’t think so.)

However, one point seems fairly evident and non-controversial:  if lawyers are compelled to work for free for certain clients, the law of supply and demand dictates that this sacrifice of time and income increases the cost of legal services to paying clients.

Lawyers compelled to work for free for certain clients???  Read the rest of this entry »

Plaintiff in Hart Security v. Number One Health (Middle East) et al. entered into a settlement with Defendant Gary Butters but, as sometimes happens, Butters does not appear to have been very eager to actually pay the settlement.

Plaintiff’s counsel brought this to the Court’s attention with a motion to enforce the settlement agreement, seeking an award of its attorneys’ fees for the expense of having to bring the motion.  U. S. Mag. Judge Raymond L. Erickson (D. Minn.) granted the motion, but not before going through the lawyer’s bill and giving it a haircut (50%). Read the rest of this entry »