EclipseUpdate (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…)

Julie Andrews Still Photo From The Sound of Music

Julie Andrews Still Photo From The Sound of Music

Rather than saying, “your response to this discovery is due in 30 days,” why don’t our court rules require the proponent of discovery to identify a date certain: “Your response to this discovery is due on or before January 18, 2015″ (that is, requiring the identification of a specific date (30 days, more or less, from the date of service))?

This would have the benefit of clarity, specificity, and lawyers would not waste time, money, and life-meaning, fighting about what “within 30 days after being served” means.

The rule could provide that a 30-day response time is presumptively reasonable absent a court order or stipulation providing for a greater or smaller amount of time. The rule could provide that the receiving party could object to the specified response date as unreasonable within 7 days of receipt if the receiving party took the position that the designated response time was unreasonable, after which the propounding party could have 7 days to amend the identified deadline if the propounding party thought the receiving party’s position had merit.

If that were the way that civil discovery was served, we would not have preposterous “day-counting squabbles:” the subject of Volume 6 of Minnesota Litigator’s toungue-in-cheek TAAFOMFT series (“These are a few of my favorite things”).

In Arctic Cat v. Bombardier, the court ordered that discovery should proceed in order “to be completed by September 1, 2014.” So plaintiff served discovery (requests for admission) on August 1, 2014, calling for a response within 30 days. This would mean a deadline of August 31 to most people. But that’s a Sunday. Since, under the rules, you cannot have a deadline on a Sunday and since Labor Day was on following Monday, Bombardier took the position that the discovery was not due until September 2. As such, the discovery could not be completed by September 1, so, Bombardier argued (unsuccessfully), that it did not have to answer the discovery.


Update (December 18, 2014): Insurers lose coverage battles all the time. They lick their wounds, they cut the checks (to their adversary and to their lawyers, of course), they may change their policy language to avoid similar losses in similar cases and/or maybe they bump up their premiums. In games of chance (is insurance anything but?), the house always wins.

Last summer, I noted, that “American Family’s lawyer, Mark Bradford, seemed to face a skeptical Court” as he argued on behalf of an insurer who fought an appraisal panel’s decision on the scope of the insurer’s obligation with regard to replacing siding for a condo complex. My sense was correct. This week, American Family lost before the Minnesota Supreme Court.

Watching Paint DryUpdate (June 11, 2014) (under the Subject Line: “Watching paint dry…”): As it turns out, the drama of whether insurers have to replace building materials entirely or partially (discussed below) may be a frequent (if deadly boring) niche of legal disputes. The Minnesota Supreme Court heard argument this past week as to whether American Family can properly refuse to pay for replacement of all siding because there was only damage to some of the siding when the policy agrees to replace siding with “comparable” siding and there is no available comparable siding (maybe). An appraisal panel concluded that “the amount of loss included all of the siding” because, they concluded, the available new siding would not match the undamaged original siding. American Family’s lawyer, Mark Bradford, seemed to face a skeptical Court


prison-barsStillwater promotes itself as “the birthplace of Minnesota.”

And Minnesota’s Stillwater State Correctional Facility is home to the Prison Mirror, the nation’s oldest, continuously-operated offender newspaper, which “has won many national awards for outstanding penal journalism.” I wonder if former Stillwater mayor Kenneth Frank Harycki will be looking at himself in a prison mirror or penning penal journalism some time soon. Today, we have the news that Harycki’s been charged with conspiracy to defraud the United States.

Seems like only a few weeks ago I was pondering how we seem to have such a lower threshold of morals and scruples when it comes to stealing from the government. It seems that some people view taxes us unamerican and therefore tax evasion is patriotic (seriously).


Image by Jeroen Moesz, subject to Creative Commons license.

Trials are relatively infrequent and they are expensive. They are one-time (normally) theatrical productions or, if you prefer, laboratory experiments – that is, they are multi-player orchestrations, requiring a great deal of preparation, resources, and time. So courts understandably are extremely reluctant to order “encores.”

This reluctance, in turn, gives trial lawyers the incentive to bend, if not break, the rules — not egregiously so that they are all but assured stern condemnation and punishment, but just so much, just enough to help their cause without tanking the entire effort.

Giving into this temptation presents obvious and serious risk. I would invariably advise against it, across the board, in any case. But, on the other hand, lawyers can and do get away with shenanigans…



By Vaikoovery (Own work) [GFDL ( or CC-BY-3.0 (], via Wikimedia Commons

A few steps down memory lane to December, 2013 brings us to the Minnesota Litigator post about a well-known Minneapolis St. Paul lawyer who noted to a court that he billed 3.04 hours for “reviewing an email regarding dislike for him and the lawsuit and researching how to respond.” This was in the context of a petition for award of attorneys’ fees for $65,000 for a settled class action that he represented plaintiffs in.

U.S. District Court Judge Joan N. Ericksen (D. Minn.) torpedo’d the motion for $65,000 in legal fees. In short, she suggested that we wait a while and just get a feel for the size of the benefit the plaintiffs’ counsel ultimately recovered for their class. How many people got and used the vouchers at the St. James Hotel, Veranda, Clara’s Gift Shop, Jimmy’s Pub, Port Restaurant, and Shoe Box Café recovered as a result of the Red Wing fixtures’ alleged failure to comply with the Electronic Funds Transfer Act?


jean-michel_basquiat_icon_6_d5858832hIf you sold bogus cancer cures for even a mere $10-a-pop, you are a sleaze and we all hope that the government will root you out and prosecute you. If you sold the image to the left (Icon 6 by Jean Michel Basquiat, painted in 1982) at auction for $2,201,453 earlier this month, you are the renowned Christie’s Auction House in Paris. Congratulations!

The difference, of course, is that sellers of bogus cancer cures prey on desperate buyers who are are being deceived. Christie’s, on the other hand, is simply getting the highest price it can get for an object that some obviously regard as extremely valuable (though most of us do not).259px-Sapphire_Gem

The extremes of when the government should step in and when the government should leave markets alone are uncontroversial and obvious to most of us. Let the rich throw their money around however they please. Prevent fraudsters from tricking people. These are easy calls (to most of us (exceptions: extreme libertarians or Marxists)).

But what about the vast swath of commercial transactions between the extremes? The kinds that we are all involved in every day. What about the Gem Shopping Network (“GSN”)?


Patriotic T-Shirt

Random Patriotic T-Shirt

“Oh, what a tangled web we weave/When first we practise to deceive!” were a couple of lines in a poem published in 1808 called Marmion by Walter Scott about the Battle of Flodden Field. Marmion is a tale of lust, treachery, deceit, redemption, heroism, justice and honor according to Wikipedia. (No one has actually admitted to reading Marmion for over 150 years.)

For thousands of years and to this day, we desperately need tales like Marmion — constant new ones, that is, but along the same lines — because our lives (in particular our work lives), in truth, are generally devoid of drama, heroism, and justice. For years on end. Admit it. For the most part they are as dull as reading back issues of a trade publication. Some days, it is miraculous that none of us crumple to the floor in a state of catatonia induced by a complete lack of honest-to-god intellectual stimulation.

That is, the daily grind might be dull until you’re the person on the hook for $560,000 worth of patriotic t-shirts that were ordered but the t-shirt maker never got paid. (The maker was paid $75,000 for the >$600,000 order.) That might seem a little dramatic if the cash were coming out of your pocket anyhow…


Money Roll

Update (12/12/2014): Last week, U.S. District Court Judge Donovan W. Frank (D. Minn.) ordered the final pretrial settlement conference for the Securian v. Wells Fargo case to occur on January 14, 2015. The jury trial is currently scheduled to start on March 16, 2015. The sequelae of banks’ insane reckless overly optimistic investment practices are still working their way through our legal system. Securian Financial Group filed this lawsuit in October, 2011. Remember? That was back when there was the civil war in Libya and former Beatle Sir Paul McCartney married American heiress Nancy Shevell at a ceremony in London.

Original post (12/3/2013): A Wells Fargo executive described a particular investment opportunity for some Wells Fargo clients as “free money.”  That opportunity was Wells Fargo’s “Securities Lending Program” (or “SLP”), a program that heavily invested in “structured investment vehicles (or “SIVs”).

In March 2008, however, Wells Fargo Chief Executive Officer John Stumpf allegedly said publicly that Wells Fargo did not invest in SIVs because they were “nonsense” and enormously risky.  At that time, the evidence suggests that Wells Fargo’s own SLP was “heavily invested in SIVs” (a.k.a., “enormously risky nonsense” (?)).


Poker ChipsDramatic reversals of fortune in judicial proceedings do not seem to be consistent with the idea of justice. One judge finds a contractual clause “unambiguously” favors Party A, for example. Three reviewing judges, looking at the came clause, find it “unambiguously” favors Party B, and not A. How can that be?

Flips like this can be nauseating. It seems almost impossible to suggest that a system that violently zig-zags from one result to the opposite extreme can merit the term “justice system.”

On the other hand, few would suggest that an institution that was incapable of “changing its mind,” or that failed to include any appellate review (that is, that did not have, built in, the realistic possibility of “changing its mind”), was consistent with the idea of “justice.”

To understand and appreciate how our justice system, while far from perfect, is truly a model of integrity, fairness, and justice worth world-wide respect, we have to recognize that (1) it, and any human institution, certainly is not only capable of error but, like all people, includes some element of inevitable error, and (2) rather than judging the entire system on a particular decision or even a handful of decisions, it is critical to take in the broader picture. Thousands of courts make tens of thousands of decisions nationwide every day. Pointing to a small number and showing conclusively that they’re wrong is unpersuasive.

Having said that, we all should be sympathetic to cases in which the case goes down in flames after an earlier resounding win.