Update (March 21, 2018): Another successful prediction by Minnesota Litigator

Original post (November 8, 2017): Esmeralda Sorchaga sued Ride Auto in connection with her purchase of a used pick-up truck (specifically, a 2008 Ford F-350) from Ride Auto. She alleged fraud by the salesman. Following a bench trial, the district court awarded Sorchaga $14,366.03 in damages and $21,949.35 in attorney fees. The Minnesota Court of Appeals affirmed. Ride Auto sought Minnesota Supreme Court review.

At oral argument last week, out of the blocks, attorney Robert Bruno, counsel for Auto Ride, stumbled, beginning his argument by pointing out that the buyer and Ride Auto salesperson spoke to one another in Spanish. Justice Lillehaug promptly questioned how that had any relevance to the case. Mr. Bruno did not seem to have a satisfactory answer. It was odd strategy to highlight this at the outset of Ride Auto’s argument.

And it did not get much better from there.

Mr. Bruno argued that a car seller could tell a prospective car buyer, “Pay no attention to the ‘as-is’ term in this car sale contract. If you buy this car and have problems, we’ll fix it for free,” and, Mr. Bruno argued, the “as is” clause would still be enforceable. Mr. Bruno suggested that there is no recourse for oral fraud in connection with the sale of a used car if the car is sold “as is.”

We might call this doctrine Xtreme Caveat Emptor™.

Minnesota Supreme Court Justice David Lillehaug seemed gobsmacked: “No matter how drastic the fraud, no matter how sleazy the salesperson behaves, that word, ‘as-is,’ ends the case as far as the warranty of merchantability?”

In response, Mr. Bruno denied Justice Lillehaug’s hypothetical though, at other times in his argument, Mr. Bruno adopted, endorsed, and embraced the very argument that he rejected in response to Justice Lillehaug’s question.

Justice Stras asked Mr. Bruno about duress. “Let’s say the salesperson put a gun to a customer’s head and said, ‘You need to sign that sales contract right now…would we enforce that contract?”

Mr. Bruno answered that this would not be an enforceable contract since the contract was compelled under duress. Justice Stras suggested that Mr. Bruno’s distinction between duress and fraud made no sense.


Update (March 23, 2018)The original post, below, is nearly 10 years old. We still stand by it. These remain valuable practice pointers. 

The lawsuit between Blu Dot Manufacturing against Stitch Industries d/b/a Joybird in U.S. District Court (D. Minn.) seems to be an illustration of Mistake #6, “buyer’s remorse.”

At least according to Blu Dot, the adversaries hammered out a deal and, after they reached a deal, Joybird backtracked.

Blu Dot accused Joybird of making knock-off furniture (copyright infringement is the legal term). The case against Joybird looked pretty strong (check out the linked document at pages 4-6). This bears a strong resemblance to what we have previously dubbed a “zombie case.” Will the U.S. District Court (D. Minn.) allow Joybird to escape the deal it appears to have entered into, prolonging a case where there appears to be no genuine dispute but the case nevertheless lumbers on?

(Incidentally, what experienced civil litigator has NOT had a client (or many clients) suggest material changes to settlement agreements after the settlement agreement has been reached? If advocates think their clients might be fickle, indecisive, or ambivalent in settlement negotiations, the risk is easily mitigated with a clause to this effect: “This Agreement is valid and binding only when it has been signed by all the parties.” (But then be very sure to have everyone sign the agreement, of course.))


Ouroboros: The Self-Devouring Snake

There is a significant risk in our civil litigation system of legal disputes “flipping upside-down.” We use the expression as it is used in the context of mortgage lending: after the 2008 mortgage meltdown, the debt attached to a property (i.e., the mortgage loans) exceeded the value of the properties in many cases. This is disastrous for everyone who has a financial interest involved.

In the context of civil litigation, being “upside down” means the litigation costs exceed the amount in dispute.

Civil litigators will undoubtedly disagree what the minimum amount at stake in U.S. litigation is below which the litigants are guaranteed to end up “upside down.”

But we can all agree that fights about where depositions should be taken, about the order of depositions, about the scope of questioning of a corporate-designated witness, about the completeness of discovery responses or document productions — that is, disputes about the dispute resolution process itself — increase expense and raise the risk of a dispute’s flipping upside down.


“A Tough Knot to Crack” (photo by Jay Fanelli)

This post is for the small number of civil litigators in Minnesota (and other 8th Circuit States) who do ERISA litigation. This past week, U.S. Mag. Judge Katherine Menendez (D. Minn.) held that the “fiduciary exception” applied to the insurer’s asserted attorney-client privilege in Christoff v. Unum Life Insurance Company. The 8th Circuit has yet to weigh in on the question.

Unum Life Ins. Co. of America relied heavily on Wachtel v. HealthNet, a 2007 decision from the 3rd Circuit. That decision, Judge Menendez noted, has been heavily criticized (citing and quoting Stephan v. Unum, 697 F.3d 917, 931 n.6 (9th Cir. 2012)  (“Every district court that has considered the question since, however, has rejected Wachtel’s approach and held that the fiduciary exemption does apply to insurance companies.”).

The issue is, however, a tough knot to crack.


We started the week discussing the unsuccessful class action claims against SuperValu for data breaches which, apparently, caused no provable actual financial losses to anyone.

We end the week noting that the Uber data breach proposed class action may be even weaker because, on top of the challenge of showing actual financial losses from the breach, which seems to be a challenge, there is the pesky arbitration clause that we’ve all apparently signed onto (that is, all of us who have ever “ubered”).

Those sympathetic to the plaintiffs in these case will point out the fix plaintiffs are in.


Minnesota litigators all know the basic rules for calculating deadlines under the Minnesota Rules of Civil Procedure.  For example, we know that weekends and holidays are excluded in calculating deadlines for time periods less than 7 days.  That rule – and other rules governing time calculations – may be changing down the road.

The Minnesota Supreme Court has been considering proposed amendments to the rules of civil procedure.

One proposed amendment to Rule 6 would establish the “day is a day” approach.  When counting days, all days would be counted regardless of the number of days in the period.  So, weekends and holidays would not be excluded in counting days for short periods.

The proposed amendments would make counting backward to calculate deadlines more clear.  If, when counting backward, a deadline would fall on a weekend or holiday, the deadline would be set at the earlier day.

If, when counting forward from an event, a deadline would fall on a weekend or holiday, the deadline would be set at the later day.

And, the proposed amendments would generally adopt a 28-21-14-7 day schedule, as under the federal rules.

So, for example, an answer to a complaint served personally would have to be served within 21 days (not 20 days) as under the current rules.  A reply to a counterclaim in an answer will be due 21 days (not 20 days) from service of the answer.  If, for example, the Court denies a motion to dismiss under Rule 12.01, the responding pleading must be served 14 days (not 10) after service of notice of the court action.


When people are arrested and charged with a crime, their paramount concern is generally their personal freedom and the accused (the smart ones, at least) quickly retain criminal defense lawyers or work with public defenders assigned to them.

But there are often tag-along proceedings that follow criminal prosecutions: forfeitures, which are particularly prominent in the context of drug-related prosecutions (but by no means limited to alleged drug crimes). People lose sight of these tag-along proceedings at their peril.

Forfeiture can apply to money, cars, drugs, drug paraphernalia, guns, etc. And once the government gives notice of its intent to seize an accused’s property, the accused has sixty days to challenge the forfeiture. When that deadline passes, even by one day, no challenge will be heard.

Whether missing the deadline is a criminal defense lawyers’ fault, the clients’ fault, or both can be blamed, is it consistent with one’s sense of a justice system that the 60-day deadline is “jurisdictional,” that there is apparently no relief or remedy if the deadline is not met, no matter how compelling the circumstances?


It is looking like plaintiffs’ class action lawyers may end up empty-handed after nearly four years of litigation against SuperValu based on a data breach of SuperValu’s credit card processing system caused by malicious hackers.

The bottom line: the plaintiffs’ lawyers were apparently unable to find a single customer who can establish that he or she lost money as a result of the massive data breach. And this after the unauthorized and illegal access to cardholders’ “personal identifying information” (that is, their names, account numbers, expiration dates, card verification value (“CVV”) codes, and personal identification numbers (“PINs”)) in more than 1,000 grocery stores.

Although this comes after nearly four years of litigation, the court’s electronic court file has only 24 entries so perhaps there were not thousands of plaintiffs’ lawyers’ uncompensated hours invested in this ultimately worthless lawsuit (assuming the plaintiffs’ lawyers do not succeed on a second trip to the U.S. Court of Appeals for the Eighth Circuit).

Grace, 1918, Photo by Eric Enstrom

A faithful reader directed Minnesota Litigator to a puzzling Minnesota statute passed in 1992 and adopting state-wide zero tolerance for violence. [H/T: AG]

This is one of many odd statutes where one has to wonder what prompted it.

Minnesota’s “zero-tolerance-for-violence” statute is located in Chapter 1 of Minnesota Statutes. Chapter 1 seems to include some important state laws but also some pretty silly ones.

For example, Chapter 1 includes statutes proclaiming our state: bird, fish, gemstone, fruit, grain, soil, mushroom, drink, muffin, butterfly, sport, and photograph (see “Grace,” the image to the left, made our state photograph in a colorized version (copyright protected, apparently) in 2002).

Naturally, our state soil is lester and, yes, there is, of course, a Ballad of Lester Soil. Because what state does not have an official soil honored in a ballad?


Update (March 7, 2018): There’s protracted litigation and then there is PROTRACTED litigation and the case of Mr. John Drewitz, described below, falls in the ALLCAPS camp.

The duration of this civil lawsuit is particularly unsettling because it is not complex or massive multi-party litigation. Even worse, it probably qualifies as a “zombie case,” which we define as a lawsuit in which there might never have been a genuine factual or legal dispute but the case, nevertheless will not die.

We have previously advocated “sanctions” as a means of reducing the needless expense of zombie cases. Plaintiff advocated for a close cousin of sanctions in the Drewitz case: punitive damages. The trial court denied Plaintiff’s motion to amend to add a claim for punitive damages, suggesting that the motion was untimely. The Court of Appeals affirmed. The Minnesota Supreme Court denied Mr. Drewitz’s petition for further review.

Minnesota courts seem to really hate punitive damages. Courts often seem to deny the motions as premature or untimely. We suspect in the Drewitz case that the trial court’s conclusion boiled down to,”enough is enough.” Adding a claim for punitive damages would have prolonged what was already a ridiculously lengthy dispute, the court pointed out. But such a rationale, if it was the decisive factor, is short-sighted. What is to deter the duplicitous and determined zombie? What message does this send to other litigants who would rather litigate for 10+ years than cut a check (few though they may be)?