Minnesota Litigator has been tracking the case for some time about Dr. McKee and an unhappy customer with access to the internet and no reservations about using it to express his dissatisfaction with Dr. McKee.

And last week, the Minnesota Supreme Court granted a request to review the case.  The intermediate Court of Appeals had reversed the trial court’s decision in favor of Defendant Dennis Laurion.

The tally, this week alone, is three cases pending in Minnesota regarding free speech rights and the internet (ACLU v. Minnewaska School District, Amanda Tatro v. U of M, and McKee v Laurion).

Update (April 4, 2012):  Plaintiff Bank of Montreal (“BMO”) survives (in significant part) defendants’ motion to dismiss BMO’s second amended complaint.

BMO [, the party claiming it was the victim of fraud,] cannot assert a claim based on Defendants’ statements to BMOCM/Steenbergen unless those statements were actually conveyed to BMO. It is not enough to allege that Defendants intended the statements to be conveyed to BMO…[Therefore, some counts of BMO's  complaint were again dismissed.]

[As for defendants' claim that BMO's other fraud claims were "implausible," a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.  This is not a ‘probability requirement,’ but only requires ‘more than a sheer possibility that a defendant has acted unlawfully.’  The Court denies Defendant’s motion to dismiss based on implausibility….

BMO alleges that, at some point, Defendants knew that Lakeland was in trouble and that their money was at risk, so they attempted to shift the risk to BMO by fraudulently inducing it to enter the RFA and lulling BMO into not investigating Lakeland’s financial soundness.  According to this theory, Defendants put more money into Lakeland to avoid immediate default, in the hopes of later extracting their investment, leaving BMO holding the bag.  This theory is not lacking in plausibility.

(Also some interesting analysis of motion to dismiss veil-piercing claims, btw.)

Original Post (March 15, 2012):  U.S. state and federal law provide remedies for outright financial fraud but the law sits it out when a sophisticated investor just has made a bad call and lost a pile of money.  The law’s role (and its lack of one) at these polar extremes of economic loss are clear. Continue reading →

Update (March 29, 2102): U.S. District Court Judge Patrick J. Schiltz gave fair warning (see below).  The “show me the note” foreclosure defense is now officially not only a losing defense but a sanction-triggering one.

Original Post (under Subject Line:Pied Piper or Consumer Advocate Sticking Up for Underdogs?) (March 1, 2012):  The pied piper of Hamelin from old fairy tales, some may recall, was a frightening and deceitful menace that is said to have victimized the German town of Hameln (the correct spelling) back in the middle ages.  Hired by the towns folk to rid the town of a rat infestation, instead, he stole all of the town’s children, who according to some renditions were never to return.

Is William Butler of Butler Liberty Law LLC a heroic figure doing battle against some of our economy’s largest and most powerful interests or is he exploiting the downtrodden, appearing to offer help (for a small fee) when he has none to offer (and worse)?

That would depend on whom you ask. Continue reading →

These days, the great majority of consumers are aware of the complex world of “price discrimination,” also known as “price differentiation,” in which sellers charge different consumers different prices for more or less identical goods or services.

“Early adopters” of high-technology bric-a-brac pay a premium for the latest/greatest gadget when it first comes on the market.  The rest of us wait 3 months and buy the same device for 10-25% less (or the next superior version at the same price).  Business travelers (traveling on someone else’s dime) may pay substantially more for one seat on an airplane than the leisure flier in the next seat.

It is generally ok to discriminate or differentiate between such groups (that is, early adopters/restivus, leisure fliers/business travelers).  But it is obviously NOT ok to discriminate based on gender, religion, or race.

What about discrimination based on stupidity or laziness?  Is it ok for sellers to discriminate or differentiate based on stupidity or laziness — “a stupidity tax”? Continue reading →

SuperValu subsidiary, Jewel Food Store, created a graphic congratulating one of the greatest basketball players of all time, Michael Jordan.  Michael Jordan is more than a mere human being and more than a Hall of Fame basketball player.  His name and his image can be valuable assets — his valuable assets.

So, was this “a tribute by an established Chicago business to Chicago’s most accomplished athlete,” (that is, non-actionable “noncommercial speech” protected by the First Amendment) or was this a business trying to free-load on Jordan’s fame for commercial advantage (potentially actionable “commercial speech”)?

Jordan sued Jewel Food Store for violation of the his right of publicity, alleged false endorsement, alleged false designation of origin, alleged deceptive business practices and alleged unfair competition “to remedy the damage caused by Jewel-Osco’s unauthorized advertisement.”

Tony Zeuli and Scott Johnston of Merchant & Gould in Minneapolis represented SuperValu and won summary judgment before U.S. District Court Judge Gary Feinerman (N.D. Illinois), however. Continue reading →

This linked article on the potential failure of a simultaneously nation-wide and hyper-local one-journalist “newspaper” blog business effort, “Patch,”  is the impetus for this note.  (Southwest Minneapolis Patch is here, by the way. (There are  25 “Patch” publications in Minnesota.)

There are obvious rewards and opportunities for single-author blogs and solo lawyers — the autonomy, the personal connection (“hyper-local”), the minimal overhead — but there are equally obvious disadvantages: the isolation, the limits and homogeneity of the brain trust (one brain (amazing though it may be) (or not) (it’s all relative)).

These limitations can, of course, be overcome or, at least mitigated through office-sharing, professional networking, rigorous knowledge management (sometimes the best advice might be a reminder of a similar situation in an earlier case), and, finally “blog sharing” or “guest posters.”

This is by way of saying a public and heartfelt THANK YOU to Minnesota Litigator Guest Posters: T.J. Conley, Fred Ramos, Jake Smith, Rob Shainess, Corwin Kruse, Eric Rice, and Sara Peterson.

A public and heartfelt THANK YOU to the offices of Skolnick & Shiff, P.A., whose offices I share and whose lawyers’ and staff’s insights and help I do not acknowledge enough.

And THANK YOU to commenters/tipsters to Minnesota Litigator.  Please understand that reader contributions (that is, constructive ones, which, I am happy to say, are the only kinds we post) are vital to the on-going vitality and interest of Minnesota Litigator.

The Minnesota bar is rich with talented, experienced, ethical, and exceptional lawyers, many of whom have interesting niche practices so that their sterling reputations are confined to a community of cognoscenti.  (A few, on the other hand, have such a specialized practice areas that their reputations are nationwide (like this guy)).

In weeks to come, Minnesota Litigator will be profiling individual Minnesota trial lawyers from time to time, who might not be so widely known but whose experiences and expertise are remarkable and worth recognition.

A recent decision by Federal District Court Judge David Doty in Laitinen v. Per Mar Security provides an excellent overview of some of the less common claims that can arise in employment disputes.

Continue reading →

Update (March 27, 2012):  Bernard Berrian has been unable to serve complaints on two of his targeted defendants and a third has gotten off the hook, for the time being at least, on a motion to dismiss for lack of personal jurisdiction.  (Here is the Second Amended Complaint.)  So the botched extortion claim has been the subject of civil litigation for 15 months or so and one has to wonder whether the on-going prosecution of plaintiff’s claim could possibly end up with a recovery making the effort worthwhile.

Original post (January 31, 2011):  Minnesota Vikings wide receiver Bernard Berrian went to the one device in Vegas fairly certain to yield a pay-out for cash, an ATM machine, but walked away from the ATM leaving his Blackberry™ smartphone behind.

Apparently Ronald R. Jones, AKA Ronald R. Sullivan or “Rod” decided that gambling $30,000 on extortion based on stumbling on Berrian’s blackberry was better odds than going against the house but it might not turn out that way for him.  Chris Madel and Denise Rahne of Robins, Kaplan, Miller & Ciresi, representing Berrian, have had success before U.S. District Court Joan N. Ericksen in changing Mr. Jones’ likely payout dramatically.  (Here is the Star Tribune coverage.  Here is the original complaint.)

Under Minnesota law, there is something called the “implied duty of good faith and fair dealing,” an amorphous concept that, very roughly, means that a party to any legally enforceable agreement (better known as “a contract”) must do more than abide by the express obligations and requirements of the contract under Minnesota law.

If you are a party to a contract there are “implied” responsibilities — implicit obligations — perhaps the most obvious of which is you cannot seek to bind another party to the contract while simultaneously making it difficult or impossible for them to perform it.

(For those who understand better with a concrete example: you cannot contract with a company to pour a concrete foundation, then not let them on the property where you want the foundation poured, and then sue them for breach of contract.  Indeed, not only couldn’t you sue, you could be liable yourself for breach of the covenant of good faith and fair dealing.)

In the context of insurance litigation, it is not uncommon to see claims that not only that the insurer has breached an insurance contract but, also, that it behaved unreasonably in conducting its responsibilities under the insurance contract (by, for example, taking a year to make its coverage determination).   Continue reading →

E-discovery expenses can be significant. Can they be taxed to the losing party as standard (although now high tech) exemplification fees or the costs of making copies?

In Race Tires America, the U.S. Court of Appeals for the Third Circuit limited taxable e-discovery costs to scanning and file conversion. Scanning and file conversion are typically not the big ticket items of an e-discovery invoice so, in the Third Circuit at least, most of your e-discovery costs would not be taxable.

Under 28 U.S.C. § 1920(4), which codifies the “American” rule of limiting cost shifting (the Court summarizes nicely how we came to this rule and the 1853 law that first established the “American” rule), only fees for exemplification or the costs of making necessary copies are taxable.

The Third Circuit determined that among ALL the e-discovery services undertaken (and billed), which included (1) preservation and collection of ESI, (2) processing the collected ESI, (3) keyword searching, (4) culling privileged material, (5) scanning and TIFF conversion, and (6) optical character recognition conversion, only scanning and TIFF conversion and OCR were the equivalent of making copies. These were the only charges allowed to be taxed against the losing party.   Continue reading →