Update (March 24, 2012):  State legislators have no doubt heard from constituents about what many see as the excesses of Petters clawback litigation, as innocent people and charitable institutions have been sued for the return of years-old gifts and donations.   

Bryan Lake, “our man in St. Paul,” notes a new statute, HF1384, passed by the Senate Judiciary Committee, that carves out a shorter statute of limitations to protect charities and religious institutions from clawback efforts.

The bill, as proposed, would affect causes of action existing on, or arising on or after the day following final enactment (and so, in that way, would have some retroactive effect, one might say).  

Continue reading →

In business litigation, particularly in litigation between businesses that have had an on-going relationship, like more than a few couples, there is a recognition that divorce is traumatic and divorce lawyers expensive.  There is, therefore, a build-up, pre-filing skirmishing, sometimes for weeks, months, or years before a complaint is filed in court.

But there comes a time when one or both sides concludes that only litigation will resolve the problem and then there can a “race to the courthouse” to pick one’s favored forum, one’s home field advantage.

Litigators need to be careful of what they say in their pre-suit jousting because anything they say can and will be used against them, if possible, down the road.   Continue reading →

Update (March 22, 2012):  Plaintiffs have voluntarily dismissed their case.  Apparently, the filing of the complaint sufficed for the airing of grievances.  

Original post (March 7, 2012):  Our federal bankruptcy system uses court-appointed “bankruptcy trustees” who are entrusted to preside over bankrupt estates and, through the bankruptcy court system, to maximize the value of the estates.

What is to stop bankruptcy trustees from making up allegations of financial wrong-doing against innocent people to “shake them down” and force them to hand-over money to the trustee?  What is to stop them from recklessly or thoughtlessly making half-baked or simply incorrect criminal allegations that can tarnish or ruin the reputations of otherwise successful businesses and business people?  Anything? Continue reading →

Mr. H signed up for a Discover credit card in September, 2002, married Ms. H in October, 2002, and called Discover in November, 2002 to add Ms. H to the Discover credit card.

Three years later Mr. and Mrs. H were history (divorced).  In the divorce decree, it was agreed that Mr. H would be responsible for the $3,286.17 on the Discover card. Continue reading →

Literature and art that exercise our emotions deal with extremes but our realities are in the ambiguous gray middle.

So it is with the United States federal court statistics for 2011, which reflect a great deal of data, which does not present a single over-arching theme (at least to the casual observer).

The district of Minnesota is at the high end of federal case loads “per Authorized judgeship) (see p.22).  The number of bankruptcy filings, nationwide, went down, unsurprisingly, as there would have to be a regression to the mean after the recent spike.

This past week, 1st Fidelity Loan Servicing, LLC had its foreclosure of plaintiff Doris Ruiz thrown out on appeal because, the Minnesota Court of Appeals held, the Hennepin County District Court (Daly, J.) erroneously required only “substantial compliance” of the foreclosing party rather than “strict compliance” with Minnesota’s non-judicial foreclosure process.

So, for example, a recorded assignment to “1st Fidelity” rather than the full name, “1st Fidelity Loan Servicing, LLC” was fatal.  (The opinion also notably discusses lock-changing and door being broken down (“self-help”) — conduct that the trial court appears to have concluded reflected badly on the plaintiff but the Court of Appeals seems to have been more inclined to fault the defendant.)

The Bank of New York Mellon fared considerably better recently in defending a claim made by its foreclosed Minnesota borrower (but still was chided by the Court).   Continue reading →

Update (March 15, 2012): James Noblin argued on behalf of the E-Shops appellant.  Peter Carter, of Dorsey & Whitney, argued on behalf of U.S. Bank before Judges Bright, Murphy, and Gruender.

Original Post (June 10, 2011):  Unless one is in the business, what happens in the credit card world when there has been credit card fraud is not widely known.   How are these transactions “reversed” and who is ultimately left with an uncompensated debit?

In the case of E-Shops paint-ball internet commerce transactions where U.S. Bank cardholders complained of unauthorized charges on their credit cards, U.S. Bank refunded the money to these accounts and then satisfied that amount from E-Shop’s bank account at HSBC.   E-Shops, however, claims that the fraudulent charges were the result of a U.S. Bank data breach, which should therefore bear responsibility for the loss.

Continue reading →

The focus of Minnesota Litigator is “news and commentary about Minnesota litigation” but its owner permits it to wander occasionally to keep things lively.

The article, “Privacy R.I.P.,” by Super Lawyer and 30-year Twin Cities litigator, Gary A. Weissman (most recently of Jackson Hole, Wyoming) in the March issue of The Hennepin Lawyer is Minnesota Litigator’s detour into this not-Minnesota-specific, not-litigation, post.

In a nutshell, Gary A. Weissman has profound concerns and reservations about privacy and about the exploitation of our private and personal information by business and government.  Apparently, these concerns are not new to Mr. Weissman if this is the Gary A. Weissman who sued the C.I.A. in the 1970′s.

But others have a different take.   Continue reading →

The Carlton County District Courthouse in Carlton, Minnesota (population 862 in 2010 U.S. Census) was built in the  1920′s.  We won’t be seeing new courthouses with mosaic tiling in the alcoves, wooden railings, the ironwork of the balusters any time soon so enjoy them while you still can.

Incidentally, it has been Minnesota Litigator’s experience that lawyers, from time to time, find themselves knocking around such courthouses with nothing to do for hours.  Snap some pictures.  Email them to Minnesota Litigator.  Minnesota trial lawyers are privileged to visit interesting places across the state and it might be fun to amass a compilation of images from these important civic hubs.

There has been a vigorous dispute in the federal courts over the extent to which the Computer Fraud and Abuse Act (“CFAA”) may be used by employers to impose civil liability on employees who access confidential or trade secret information with an improper purpose (i.e. to start a competing company).  Judge David Doty has now joined two of his Minnesota colleagues (an earlier ML post on such a case is here) in adopting a narrow interpretation of the Act, holding that there must be allegations of unauthorized access, not just improper use, in order to state a claim under the Act.

Continue reading →