EclipseUpdate (February 12, 2016):  California lawyer, Steven Lobbin, the sanctioned lawyer (see earlier posts, below), sought appellate relief (his voluminous brief, here, and the response, here) and, this week, got none. Will Aviva Sports, Inc. or its lawyers finally get the sanctions award???

Update (December 19, 2014): Without comment, a generous reader took the time to send Minnesota Litigator a few documents related to the case, described below (here and here). The first represents that Eclipse Group finally paid the sanction fees ordered against it. The second represents a different case in which additional misconduct of the Eclipse Group law firm is alleged in a separate case.

As I have written many times here, Minnesota Litigator is only as good as its active readers. Please keep tips coming. This is my hearfelt thank-you to all tippers on behalf of Minnesota Litigator and your fellow readers.

Update (November 19, 2014): Should the sanctioned lawyer and his sanctioned law firm get some kind of “bonus points” for effort or for the creativity for their response to the latest motion brought against them to pay up on the sanction levied against them last summer, described below? What are they thinking? (more…)

ContortionistU.S. District Court Judge Patrick J. Schiltz (D. Minn.) recently denied an insurer’s motion to dismiss an insurance coverage claim (for “personal and advertising injury”) by a Minnesota cell phone financial services company (Cachet) and a Minnesota broadband internet service company.Scarecrow Wizard of Oz Pointing

If you have any interest in trying to follow how insurance coverage disputes are resolved, I strongly recommend that you read Judge Schiltz’s order as it navigates the thicket as well and as carefully as anyone could.

And, if you have a quirky sense of humor and an affection for absurdity (as I do), you might also enjoy the decision on that score.  (more…)

William Holman Hunt, The Scapegoat (1854)

William Holman Hunt, The Scapegoat (1854)

Update (February 8, 2016): If a company says that “Jane Doe has left the company and now we have hired someone for her position who will further enhance a culture of legal compliance at the company,” has the company defamed Doe?

The statement says nothing false about Ms. Doe but isn’t there at least a hint, a trace, whiff, inkling, and an insinuation that the company felt that Doe’s conduct fell a little short in terms of “enhancing a culture of legal compliance”? 

And what if Jane Doe quit the company and her replacement was hired over a year later? Doesn’t that make the company announcement misleading, at best?

Enter the doctrine of “defamation by implication.”

Sweet vindication for Plaintiff (and Minnesota lawyer, F. Chet Taylor) in the case discussed below in the form of a recent $600,000 jury verdict in his favor on a claim for defamation by implication. The case was before Hennepin County Judge James Moore. Victorious plaintiff’s counsel were Kevin Hofman and Ryan Wahlund. Counsel for defendant Feltl were David Marshall and Leah Janus.

Regular Minnesota Litigator readers know that I am preoccupied by the extremely complex phenomenon of “reputation” among lawyers and here, of course, we have many la(w)yers to ponder. In reviewing documents related to this case, can we draw any inferences at all about Mr. Taylor? About the winning lawyers, Hofman/Wahlund? About the losing lawyers, Marshall/Janus?

Data scientists have a term: Noisy data. Noisy data is meaningless data. The term has often been used as a synonym for corrupt data. However, its meaning has expanded to include any data that cannot be understood and interpreted correctly by machines, such as unstructured text. The fact is that assessing lawyer competence and integrity accurately in our chattering professional world is monumentally challenging. Impugning the reputation of a lawyer unfairly can impose terrible harm and should expose trash-talkers to significant financial risk.

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Photograph by Maura Teague

Photograph by Maura Teague

Notwithstanding the familiar meme of “run-away juries” and “frivolous lawsuits,” both of which exist but as flukes, statistically weak anomalies, our legal system generally short-changes the vast majority of meritorious litigants (whether plaintiffs or successful defendants). As discussed in the immediately preceding post (below), for example, many types of damages and harm are deemed “speculative” and, therefore, are not recoverable. If you are a civil plaintiff who has lost $X due to a defendant’s wrong-doing, it is extremely unlikely that you will net $X even if you sue and win.

You might win your lawsuit and, as the prevailing party, you might be entitled to your “costs,” which will undoubtedly be welcome news but there are two problems.

First, as all litigators (but surprisingly few clients, in my experience) know, “costs” do not include any of the client’s attorneys’ fees. Being able to recover “costs” but not “attorneys’ fees” is a bit like being allowed to feast at an all-you-can-eat buffet for $1, but being required to serve yourself with tweezers on a dime-sized plate. What first appears to be a sweet deal is, on further inspection, a rip-off.

Second, “costs” not only exclude “attorneys’ fees” — the big ticket cost (as most people understand the word “cost”)– they also exclude quite a lot of other things that people (and even trial lawyers) would normally think of as costs.

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The_Booze_Hangs_High_(1930)_screenshot_2_bottle21 percent of practicing attorneys qualify as problem drinkers, 28 percent struggle with some degree of depression and 19 percent demonstrate symptoms of anxiety. We can question the numbers. We can discount the numbers as the result of a single study whose methodology we have not scrutinized. (You think the study sponsor, Hazelden, might have a bias?)

Or we can simply face facts, as hard as that can be. The Star Tribune reported this recent study today. I have posted about this issue directly and indirectly here, here, and here (and more).

I have included a link to Lawyers Concerned for Lawyers in many posts and do so again here.

The Star Tribune article points to various potential causes (pressures of the job, alcohol-infused marketing [perceived] obligations, a culture of denial, and so on). Another word for “causes” might be “excuses.” The article did not talk about effects — domestic abuse, criminality, negligence, death (cirrhosis, suicide), etc. etc.

Alcoholism, as we all know, is a widespread illness but no one should be surprised if data shows that lawyers, in particular, are particularly hard hit, given what has happened in their industry over the past ten years (and counting).

EP_WellsFargoPlaza

There are countless instances in life where people and businesses are hurt by wrongful acts or omissions by others but the harm suffered is “speculative,” and therefore not compensable in a court of law. The most obvious example is defamation. If someone talks trash about you, in almost every instance, you will be hard-pressed to tie the calumny to specific monetary losses.

Parties to contracts often agree between themselves that, if particular provisions of the contract are breached, the harm will be “irreparable.” Clauses of this sort reflect widespread recognition that many harms exist, indeed terribly destructive harms, where the link between the wrong done and the harm suffered is difficult to establish. In theory, this “irreparable harm” contractual term makes it easier for the injured party to go to Court to get an injunction — an order from the court prohibiting conduct — regardless of a party’s inability to nail down a specific dollar amount to its injury.

 

When Party A and Party B agree that breach of an agreement would result in irreparable harm, can a Court find that aggrieved Party A, alleging a breach of contract, has failed to prove irreparable harm?

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INT. FEDERAL COURTROOM MINNEAPOLIS MINNESOTA  – DAY

At one table, a lone middle-aged man, distinguished, impeccably-dressed, scowling. At another, three government lawyers, bored. Enter Law Clerk from door behind judicial bench, also bored.

LAW CLERK

All rise! The Honorable Judge Patrick J. Schiltz presiding…

Enter U.S. District Court Judge Patrick J. Schiltz (D. Minn.) from door behind judicial bench, brusquely seating himself behind the judge’s bench.

SCHILTZ

Thank you. Take your seats. We’re here in the case of Dr. Geerish — am I saying that right, Dr. Sahu? — maybe we should start by your telling us, Doctor, the correct pronunciation of your name?

SAHU

Yes, thank you, Judge Schlitz, my name is….

FADE TO:……………

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American_law_digestsIn Minnesota, as in many states, courts draw a distinction between claims that company shareholders can bring: direct vs. derivative claims. In short, shareholders sometimes bring claims against companies because, they allege, the companies have harmed the shareholders directly. In other cases, however, shareholders bring claims against companies, alleging that company actions hurt the company itself and the shareholders are indirectly or derivatively harmed due to their ownership interests in the companies.

Because there are important differences between the legal processes (and likely recoveries) for direct vs. derivative shareholder claims, disputes can arise as to whether a shareholder’s claims are one or the other.

Wouldn’t it be nice to get some additional analysis and direction from Minnesota’s appellate courts on this?

Why, yes it would be nice. So why would the Minnesota Court of Appeals issue a ruling on this thorny subject in a large and significant lawsuit but then designate the decision “unpublished,” which means the decision is “not precedential”?

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CatAndMouseChaseJeorenMoeszRegular Minnesota Litigator readers will be familiar with earlier coverage of “brain raids,” as I call them — the competition between corporate adversaries for “human capital,” that is, experienced, talented, motivated, specialized employees or corporate officers (click here, here, here, or here, for examples of previous posts on the subject).

“Brain raids” don’t just pit corporations against corporations. They pit individual human beings against corporations.

Last week brought the latest installment of St. Jude v. Delgado and Biotronik — in the form of Biotronik’s brief seeking partial summary judgment. The brief is, in my opinion, an excellet piece of legal advocacy. I look forward to Plaintiff St. Jude’s response because the excellence and tenacity of its counsel have been demonstrated time and again.

These brain-raid cases provoke me to reflect on the larger issue of corporation v. person, with a particular focus on lawyers (because I am self-centered).

How will the proliferation of multi-national global corporations affect the future of labor, and the future of lawyer labor in particular? There can be no doubt that individuals or small businesses cannot compete against Medtronic, Boston Scientific, St. Jude, Biotronik, etc. Not only can’t they compete, they struggle to exist. Are solo/small lawyers similarly doomed? Do future lawyers get to look forward to corporate life, with all of its promises, threats, rewards, and deprivations? (more…)

Mug ShotUpdate (January 26, 2016): One more revolution in the slow wheel of justice…. (Attorney Timothy Oliver is suspended from the practice of law pending the petition for his disbarment.)

Update (September 15, 2014): Reporter Jim Hammerand, Minneapolis St. Paul Business Journal (subcription required) reported attorney Timothy J. Oliver’s guilty plea to felony wire fraud this past week.

Update (December 16, 2011):  The earlier post concerned multiple layered financial transactions and queried whether the structure, in the end, was legitimate or fraud.  U.S. District Court Judge Donovan W. Frank weighed in this week, finding fraud against some defendants, not against others.  

Original Post (November 16, 2011) (original headline: Turtles All The Way Down): The way many businesses are organized, with entities owning parts of entities holding parts of entities, can remind one of “Russian Nesting Dolls” or even the cosmological conundrum expressed in by shorthand expression “turtles all the way down.”

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