…outside of the applicable standard of professional care. On defendant’s motion for judgment as a matter of law before trial, U.S. District Court Judge John R. Tunheim (D. Minn.) threw out the plaintiff’s breach of contract claim and the case then went to trial on the professional malpractice claim, with the jury finding in favor of the defendants.  Now the 8th Circuit has reversed Judge Tunheim as to the breach of contract claim again… Continue reading →

…der the Employment Agreements deprives the Federal Court of authority to grant a preliminary injunction. Under Eighth Circuit precedent, a preliminary injunction may be granted in a case subject to arbitration only where “the contract terms contemplate such relief and it can be granted without addressing the merits.” Therefore, injunctive relief is appropriate only if a contract has “qualifying contractual language”; i.e.,  language that provides… Continue reading →

…o rescission due to a lack of mutual assent because, when forming the stock sale agreement, there was no “meeting of the minds” to sell, purchase, and transfer the vacant lots. The Court recognized that the formation of sales contracts requires mutual assent among the parties involved in the transaction, and that this requires a meeting of the minds about the contract’s essentials.  Moreover, the existence of mutual assent if evaluated under an o… Continue reading →

It is a fact of modern life that commercial transactions are often documented but actual practices (and expectations) do not match up neatly with the written contract terms. So, for example, a contract might declare that a nominal dollar amount was exchanged “for good and valuable consideration,” a legal formality to ensure that the agreement is later deemed a legally enforceable contract for which there was mutual consideration (which, as ever… Continue reading →

… 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… Continue reading →

…was essentially premised on three arguments: (1) the lawsuit names not only ACC, a party therefore to the sales rep agreement, but also individuals, not, as such, parties to the forum selection clause, (2) ACC argued that the contract was a “contract of adhesion,” in which ACC had no bargaining power and had to enter into the contract as a matter of necessity, and (3) Florida is warmer. OK, the summary of the last argument is not quit… Continue reading →

The interesting fact pattern that gives rise to the problem in this case is what are the duties of a generic drug manufacturer if, after a drug’s initial federal approval (and approval (and then mandated use) of a specific warning label), new information comes to light about potentially harmful side effects?  Can a claim be brought against the manufacturer under state law for failure to warn? Gloria Mensing took a medicine, MCP, a gene… Continue reading →

…s of the drug, an antibiotic. Levaquin included a warning but sometime after Schedin’s incident, the warning was changed and made more prominent (made into a “black box” warning in 2008).  Subsequent warning label changes would be a classic “subsequent remedial measure” inadmissible at trial if it were not for the fact that the label change was mandated by the FDA, U.S. District Court Judge John R. Tunheim has held. … Continue reading →

…n sell to Walmart through an approved vendor, using the approved vendor’s Walmart vendor I.D. number. But then, when the deals goes South, is the “non-vendor vendor” held to the forum selection clause in the contract it never itself entered into (and which contract, importantly, had already expired when Plaintiff Webb started selling to Defendant Walmart)?  The question was decided by U.S. District Court Judge Patrick Schiltz th… Continue reading →

…mental health implications of lawyers’ work?  Maybe this is not something one should be light-hearted about? Still there are times when legal analysis seems crazy-making, as when two litigants take the position that the contract they have entered into is “unambiguous” but they take opposite positions as to its “unambiguous” meaning.  (This, as all experienced litigators know, is hardly an infrequent paradox).   And i… Continue reading →

From time to time, our legal system produces dull business cases whose only allure is that they seem convoluted to the point of being almost comic. For example, in Elsenpeter v. St. Michael Mall, a Wright County case (Judge Dale E. Mossey) recently decided by the Minnesota Court of Appeals (Schellhas, Hudson, Ross), plaintiff Tenant brought a lawsuit to compel an arbitration where the contract the defendant Landlord drafted provided for…a… Continue reading →