The dispute between Mr. Jon and Ms. Sonja Nelson and the International Paper Company over who owes whom what for a tree-farming/growing deal caught our eye because LEVENTHAL pllc also has a current case in which two parties entered into two agreements at the same time which are inconsistent.

On its face, the situation is almost absurd.

International Paper (“IP”) suggests “the parties rather inexplicably executed [two inconsistent] agreements [at the same time,]” as if IP were made up of newly discovered and mysterious subatomic particles rather than human decision-makers. (See here at p. 1).


IP, in arguing for summary judgment, has a simple solution to this inexplicable enigma: ignore one of the two agreements. That is, IP argues that “it is abundantly clear that the parties’ relationship was at all times governed” by one of the two agreements. Id. (IP suggests that the “objective conduct of the parties” shows which contract the two were operating under. (See here at p.10.))

The Nelsons, Minnesota Litigator readers will be shocked to read, see things differently.

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Strange Passions: A Raging Torrent of Mixed Emotions

The Minnesota Human Rights Act defines sexual harassment.

“Severe and pervasive” conduct is not included in the definition:

“Sexual harassment” includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, education, or housing;

(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment, public accommodations or public services, education, or housing; or

(3) that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.

Minn. Stat. 363A.03, subd. 43.

Courts engrafted this “severe and pervasive” requirement onto a sexual harassment claims over 30 years ago. (See the Kenneh v. Homeward Bound Minnesota Court of Appeals decision at p. 8) (and see here (the seminal case) (and see here (a thorough recent article on the subject by Sheila Engelmeier, Heather Tabery, with assistance by Colin Thomsen)). Why? Because the statutory definition of “sexual harassment” is so vague and subjective that the courts felt compelled to constrict its application to balance the rights and interests between employers and employees.

Earlier this year, there were legislative efforts to remove the “severe and pervasive” requirement from plaintiff’s burden in a sexual harassment case. Those efforts failed. Now we will see whether Ms. Assata Kenneh and her lawyers have better luck before the Minnesota Supreme Court, which has granted her petition for review of her case against Homeward Bound, Inc. (petition, here, response, here).

Julie Andrews Still Photo From The Sound of Music

Regular readers of Minnesota Litigator are familiar with our TAAFOMFT (“These are a few of my favorite things”) posts in which we engage in the fine art of whining via irony.

The title of this post comes from a famous negotiation in the 1960’s involving the United States and Vietnam in which the shape of the table for the negotiation was, itself, the subject of several months of negotiation.

We have not experienced a conflict over table-size or shape in our decades of civil litigation practice but civil litigators’ lives are all too consumed with similarly weighty (and, at the same time, seemingly weightless) skirmishes.

Such a squabble has come up in United States et al. ex. rel. Higgins v. Boston Scientific, where the parties are fighting over Fed. R. Civ. P. 30(d) — the duration of a key deposition.

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The AMA Opposes Lawsuit Abuse Against Physicians….

Now there’s a controversial take, right? An industry trade association against “lawsuit abuse” of its members?

Seriously, everyone everywhere opposes “lawsuit abuse against physicians.” Does this overblown rhetoric serve any purpose aside from venting outrage and causing a spike in blood pressure?

Has the Minnesota Supreme Court, in fact, given carte blanche to plaintiffs’ lawyers to engage in “lawsuit abuse against physicians”?

The Minnesota Supreme Court decided Warren v. Dinter last month. The decision is being treated by physicians and the medical malpractice defense bar as a devastating legal development.

“Imagine,” some are lamenting, “offering a casual comment at a dinner party — say, about someone’s labored breathing or a skin blemish — and being sued for a ‘misdiagnosis’ when there was never any physician-patient relationship…” (the proverbial “curbside consultation” (see here at p. 15)).

Even worse, “Imagine being sued by a patient whom you never saw or treated!” (see here, page 1 of the dissent, page 20 of the PDF).

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Settlement or Trial???

LEVENTHAL pllc has been on the threshold of trial twice this month. On one of these two (non) events, it got down to showing up at Court for day #1 of a week-long jury trial when the other side showed up, finally ready to pay money, not apparently all that ready or interested in going to trial. In the second case, we settled late Friday before an arbitration scheduled to start the following Wednesday (the day of this post, in fact).

So you will understand our incredulity that a “Drivers’ Privacy Protection Act” or “DPPA” case will actually go to trial, as scheduled, on June 10 in St. Paul before Sr. U.S. District Court Judge Donovan W. Frank. The case has been knocking around since December, 2013. Could this really happen?

There was a little cluster of DPPA cases that all came up about 6 years ago. They very often seemed to involve men in positions of public power or authority (for example, police officers) with access to state-controlled personal records (for example, drivers’ license records) looking at women’s pictures (and their personal information such as their addresses) without a proper or permissible purpose. Plaintiff Minneapolis Police Officer Amy Krekelberg found herself being “snooped” in this way.

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fearUpdate (6/7/19): We had the pleasure of wiring millions of dollars to clients this week and, while at the bank initiating the wire transfer, we noted a new filing in the bank-wire fraud case described below.

This made our transaction a bit more nerve-wracking than it otherwise would have been.

We link to another strong piece of advocacy by the defendant bank, Fifth Third, the bank’s opposition brief to the plaintiff’s motion in limine.

The question the bank is tackling: if an authorized person of a banking customer orders the bank to transfer money AND (hypothetically) the bank does not have commercial reasonable security procedures, who’s liable for a fraud loss? According to the bank (and the many cases on which it relies), the customer bears the loss. Executing the demand of an authorized person insulates the bank from liability for the transfer, according to the bank regardless of any evidence of the bank’s security procedures (or lack of them).

Quoting a law review article, Fifth Third points out: “The principle is fairly simple: The bank bears the loss from external fraud; the customer bears the loss from internal fraud.”

But, in a “man-in-the-middle” fraud such as this, is the fraud external or internal?

Update (May 24, 2019): When a fraudster scams a bank customer, when is the bank responsible for the customer’s loss? When is the customer responsible?

Read the bank’s well written Statement of the Case for the upcoming trial of the case described below (linked).  

Update (April 5, 2019) (under the headline: “The Smell of Fear”): We have covered Upsher-Smith vs. Fifth Third Bank for a while now (see below) and it is looking like trial may be coming soon (or not). It seems that the prospect of trial is quite disturbing to the defendant Fifth Third Bank, which appears desperate to avoid trial feeling strongly that the claims against it should not have survived summary judgment.

Plaintiff Upsher-Smith, represented by hard-chargers from one of the preeminent Minneapolis civil litigation firms, Anthony Ostlund Baer & Louwagie, are pushing hard against what it characterizes as Fifth Third’s attempt to delay the day of reckoning.

Chief Judge John R. Tunheim (D. Minn.) promptly rejected Fifth Third’s motion for reconsideration or, alternately, for interlocutory appeal this week.

The issues in this case are quite fascinating but, as we discuss below in this thread of posts, we have been somewhat limited in researching the case because much has been filed under seal. But that makes sense. The case is about an internet-related scam of multiple millions of dollars. Presumably internal bank safe-guards and other related information is best kept secret. On the other hand, apportioning legal responsibility between the various actors is of great public interest. We will continue to follow the case, hobbled though we are by the sensitive subject matter involved.

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Keystone Cops (often spelled “Keystone Kops”) were fictional, humorously incompetent policemen.

We recently concluded a legal malpractice lawsuit (Johnson et al. v. Biersdorf, et al.) in which counsel for the defendant lawyers argued that the defendant lawyers could not be liable for professional negligence because the underlying litigation, which the defendant lawyers had spear-headed, was a total loser. We characterized the position as doubling-down on incompetence: Not only did the lawyers foul up the case by missing a critical deadline but, they argued, when they sued in the first place, it was an unwinnable case (which, we argued, was not how they had advised their clients).) Thus, they argued, they could not be held liable for missing the critical deadline (or for the tens of thousands of dollars of fees that they billed their client).

That is, defense counsel argued that a plaintiff claiming professional malpractice against a Minnesota lawyer in connection with their conduct in litigation could never succeed or recover anything if the underlying litigation was unwinnable.

One can only bring a lawsuit for “litigation malpractice,” they argued, if the malpractice plaintiff can show that “but for” the lawyer’s malfeasance, the malpractice plaintiff would have won the underlying case (this is the so-called case-within-a-case model of a legal malpractice claim).

We strongly objected. What if lawyers encouraged their clients to undertake completely bogus lawsuits from the get-go (without informed consent, of course, which would be a different story)? No claim for professional malpractice ever, under any circumstances? Defense counsel was adamant that this is the law in Minnesota.

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What is the analysis that a federal court undertakes when a third-party comes into court seeking an order to break the seal on confidential deposition transcripts from another lawsuit?

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First U.S. Stamps 1847 Issue

Update (May 15, 2019): Congratulations to Dorsey lawyers for the win against the U.S. Post Office (described below) (for now, at least). U.S. Mag. Judge Becky R. Thorson (D. Minn.) has agreed with Dorsey that the U.S. Post office cannot hide behind a Glomar response (a response to a Freedom of Information Act (“FOIA”) request not only refusing to produce documents but refusing to say whether any documents exist) in response to Dorsey’s request to see certain agreements between the Post Office and other specified private businesses (“Negotiated Service Agreements” (“NSAs”)).  

Update (March 25, 2019):  The issues in the FOIA dispute, described below, involve “limited scope de novo review.” This term seems like an oxymoron. Does the Court get to do a complete re-evaluation (also known as “de novo review”) or is its review of “limited scope” (not de novo)?

And, the USPS points out in its reply brief, “While it is true that [FOIA] exemptions are ‘narrowly construed,’ the Supreme Court also ‘has recognized that the statutory exemptions are intended to have meaningful reach and application.’” This is not exactly oxymoronic, but it is a bit “three steps forward, three steps back reasoning” (at page 7).

Notwithstanding these equivocal utterances resembling koans (paradoxical anecdotes or riddles, used in Zen Buddhism to demonstrate the inadequacy of logical reasoning and to provoke enlightenment), the USPS’ reply brief is persuasive. We predict that the USPS will be able to rest on its Glomar response and stonewall Dorsey’s FOIA request.

Original post (March 4, 2019): We came across the caption Dorsey & Whitney LLP v. U.S. Postal Service recently and were intrigued.

We have recently been troubled by rising stamp prices and inexplicably delayed mail; perhaps, we wondered, Dorsey decided to do something about it?

Not quite. Dorsey’s Freedom of Information Act request of the U.S. Postal Service was rejected.

Is the information sought, ““information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed”? (5 U.S.C. § 410(c)(2)).

Who decides what “good business practice” is?

Dorsey, on behalf of some client who desires to go nameless, presumably, seeks information relating to “Negotiated Service Agreements (“NSAs”) between the Postal Service and three specific commercial partners.” The Postal Service responded with a flat-out “NO.” As if this were a matter of national security, the Postal Service even refuses to say whether any such NSAs exist. (This, apparently, is known as a “Glomar response.” The origin of the term is worth noting: see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes’ submarine retrieval ship, the Glomar Explorer)).

The Postal Service sets out its basis for claiming that, under good business practice, the existence (let alone the substance) would not be publicly disclosed here (at page 8-9). We’ll follow the case to see whether Dorsey can persuade Judge Wilhemina M. Wright (D. Minn.) that the firm has a right to see the Postal Service’s particular NSAs.

Impatiens Hawkeri, b/k/a Impatients...

Impatiens Hawkeri, b/k/a Impatients…

Update (May 14, 2019): Minnesota Litigator now has remote access to civil case files in Montgomery County, Texas, which uses the same technology vendor as the state of Minnesota uses: Tyler Technologies. It took about 30 seconds to fill out an application. We submitted the application for remote access and we had access within 5 minutes (literally). 

It is truly pathetic and inexcusable that our court system cannot yet figure out how to give its lawyers and citizens remote access to non-confidential civil court records.

Look at the string, below. What is the hold-up? Can anyone tell us???

Update (January, 15, 2019): In October, 2015, Minnesota litigator, Mr. Rick Linsk, wrote in Minnesota Bench & Bar, “As early as July 1, 2016, or else by January 1, 2017, all civil case documents…from Minnesota courts will be remotely accessible…” (See the linked article below.)

LOLOLOL.

We all know that bureaucracies move slowly but this is ridiculous. (Check out our string of posts below.)

The problem is not only that this obviously important access has been withheld for over five years when the federal court system figured this out a decade or more ago. An additional problem is that the Minnesota court system is quite opaque as to what the process is, what the hold-up is, and what the timeline is.

We had the opportunity this week to question Mr. Jeff Shorba, Minnesota’s state court administrator, about this very briefly. “Our fingers are crossed that we might get a pilot program out this calendar year,” we are told. We also learned from Mr. Shorba that, unsurprisingly, the state is working on this with Tyler Technologies, the company that runs the state’s current electronic case filing system. We wonder whether the contract with Tyler has any kind of term or incentive to get this done?

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