Plaintiff’s lawyers, Joseph Larson, David Schlesinger, and Janet Olawsky might be both crying and celebrating after the award of $305,000 in legal fees for their lawsuit brought on behalf of Stephanie Jenkins.

They might cry because they sought $818,000 in legal fees and costs and the Court awarded them less than half.

They might celebrate because a jury awarded their client a verdict of one dollar ($1.00) in the sexual harassment case they brought against the University of Minnesota and Mr. Ted Swem.

“The most critical factor” in determining an appropriate fee award is “the debris degree of success obtained.”


BedUpdate (October 19, 2017): The linked document is a little puzzling but it looks like a total victory for the defendants.

Update (October 17, 2017): The extraordinarily hard-fought and long-standing civil litigation (trademark litigation, to be specific) between Minnesota bed behemoth, Select Comfort, and a smaller on-line bed-selling competitor, Personal Touch Beds and Personal Comfort Beds (et al.), finally went to trial before U.S. District Court Judge Donovan W. Frank (D. Minn.) over the past couple of weeks. The jury is deliberating…

Here-linked is the defendants’ motion for judgment as a matter of law filed this past week.


Original post (November 2, 2016) (“The Bed Battle Is On”): Back in January, we covered an on-going battle between Minnesota-based bed behemoth, Select Comfort, and a smaller competitor (one of many such battles that Select Comfort has waged to protect its Sleep Number™ empire).

Game on. Trial is set to begin on November 29, 2016. (Happy Thanksgiving 2016 to the warring lawyers!)

That means that the litigants are now setting the stage for trial, launching their barrages of motions in limine, trying to blow up some of the “evidence” proposed for use at trial by the other side.

Many questions arise, for example, is it in fact evidence that defendants conducted some of their business using pseudonyms? Should they get to exclude any such information at trial?

Many of us think the use of pseudonyms is a sign of dishonesty. At the same time, few would suggest that Samuel Clemens’ use of the pseudonym, Mark Twain, was evidence of the author’s dishonesty.

So when should a jury be allowed to hear evidence of a litigants use of a pseudonym?

This is not a difficult question, right?

When someone is charged with an act of fraud or dishonesty and accused of using a pseudonym in connection with the accused misconduct, that would seem to reflect an admission of wrong-doing.

On the other hand, sometimes pseudonyms are used for quite innocent reasons, even for safety reasons. People who work for debt collectors, for example, are known to use pseudonyms because one does not make many friends when collecting debts; one might even make an enemy or two. More generally, people in sales and customer service might choose to adopt pseudonyms in their work for any number of reasons, which unrelated to evidence of dishonesty. If your first name were Tadeusz and you were in telephone marketing, you might understandably introduce yourself as “Ted” or even “Sam.”

To me, the most interesting question about this motion in limine might be the meta-question: Why would defendants think that this proposed evidence, the use of pseudonyms in their work, is to be feared? Could this proposed evidence confuse a jury that has been asked to decide questions of false advertising, trademark infringement and dilution?

A fascinating challenge for trial lawyers is to anticipate and weigh the impact of discrete pieces of information that juries might hear. In my experience, as I march toward trial, I have a list of anywhere from 5 to 25 potential motions in limine and then I have to make difficult calls as to which motions have the highest probability of success and which actually matter. One never knows whether one made the right call. This is “the art of lawyering;” our decision-making may or may not be critical, it has no scientific basis, and it can never be validated.

Drawing of Anger, made possible by Creative Commons,

Imagine you are a business, a corporation, and you sell off part of your business to one of your executives. After the sale, you are convinced that the buyer, your former fellow shareholder, ripped you off to the tune of millions of dollars by concealing “the true value” of the spun-off asset.

You sue him.

How frustrating would it be to have to pay his legal fees to defend against the lawsuit that you brought against him?

Any Minnesota lawyer experienced in shareholder disputes should be aware of the corporate indemnification statute, which sweeps quite broadly. But Plaintiffs Richard Born and RBA, in a shareholder dispute, apparently cannot accept that the law applies to them. A special litigation committee, hired by Plaintiff RBA, held that Defendant Reinhart was entitled to indemnification by RBA. RBA refused to pay. U.S. Mag. Judge David T. Schultz (D. Minn.) ordered that reimbursement for legal fees be advanced to Mr. Reinhart. RBA still refused to pay.

We’re not sure if all of the heated rhetoric in Defendant Reinhart’s recent brief (calling one of Plaintiff’s arguments “inexcusable” and another as “flailing desperation”) is productive or will be appreciated by U.S. District Court Judge Susan R. Nelson (D. Minn.). On the other hand, we can identify with the frustration when an adversary simply won’t step up and concede a position that has already been rejected repeatedly.

Mr. Kenneth Udoibok’s passions, it seems, are justice and empowerment. He’s a 20+ year solo Minnesota litigator who focuses on criminal defense, police brutality,  employment cases and insurance coverage cases. He fights for “the little guy.”

His story, his journey from Nigeria to the Minnesota, is extraordinary as he, himself, is. Our interview concludes with an obviously heart-felt and important message from Mr. Udoibok about our legal system, about fairness, and about the challenges we still face with regard to prejudice and bias.

ML: How did you get to where you are today?

Udoibok: I don’t know. Frankly, I think I have a very low self-esteem. I’m just kidding. No, how did I get here? I don’t know that it was calculated. It was happenstance.

ML: You’re a Nigerian man.

Udoibok: Yes.

ML: You’re a Minnesota lawyer.

Udoibok: Yes.

ML: You’re probably the only Nigerian man who’s a Minnesota lawyer, am I right?

Udoibok: No, there are many.

ML: Really?

Udoibok: There are probably about 20 of us in Minnesota?

ML: How does that happen? How is it that you were born in Nigeria, and here you are, a Minnesota lawyer.


BunniesUpdate (October 11, 2017)Oops, I did it again…got lost in this game, oh baby. (Another successful prediction, below.) Congratulations to the winning lawyer team: Andrew L. Marshall, Mark R. Bradford, and Christine E. Hinrichs, Bassford Remele, P.A., Minneapolis.

Justice Gildea’s dissent (joined by Justice G. Barry Anderson) emphasizes that Minnesota is an employment-at-will state, where employers can fire for any or no reason (so long as there isn’t a statute providing otherwise implicated like anti-discrimination laws) (and employees can quit for any or no reason). The “anti-tip sharing statute” in Minnesota Fair Labor Standards act prohibits employers from requiring employees to share tips, but the dissenters argue that it does not provide for a wrongful discharge cause of action if an employer fires an employee for invoking his right under the statute.

Update (February 7, 2017): The Minnesota Supreme Court heard oral argument today in the case discussed here below last June. Counsel for Bunny’s Bar and Grill faced relentless tough questioning by the Minnesota Supreme Court and I predict that the Minnesota Court of Appeals’ decision (against Bunny’s) will be affirmed.

Original post (June 29, 2016): Who knew there was a Minnesota state law prohibiting employers from forcing employees to share gratuities (otherwise known as tips) that the employees receive on the job? (See Minn. Stat. 177.24, subd. 3.) Not the owners of the beloved St. Louis park establishment, Bunny’s Bar and Grill, apparently.


More recently than you might think, humans branded other humans’ flesh. In Canadian military prisons, officials apparently branded some prisoners with “BC,” standing for “bad character.” (We would have thought the good people of British Columbia would have strongly objected to that brand.)

Obviously, we now think of ourselves as living in a far more enlightened time and such practices are widely regarded as abhorrent.

But now, in our era, we encounter a new kind of human branding, stigmatizing certain people through what we will brand “data branding.”

That is, enormously powerful companies amass staggering amounts of data on all of us and, for some unlucky people, the data, whether fairly or unfairly, is digitally burned into their very identity, with potentially permanent consequences.



Photo by Jonathan Rotondo-McCord

When a client comes to you and says she is leaving her high-paying executive position at a company and wants to be sure to “do it right,” make the client aware of her obligation to return company property — ALL COMPANY PROPERTY.

Clients sometimes fail to appreciate that “all” means “all.” They fail to appreciate that there is no “carve-out” or exception for “harmless retention.” If a client fails to return ALL COMPANY PROPERTY, this lapse could result in the loss of huge benefits to which the departing employee or executive would have otherwise gotten (and other unpleasant consequences).

I predict that that is going to happen to Mr. John J. Capistrant, who used to work at Lifetouch.


Update (October 6, 2017): We did not exactly predict that Associated Bank would lose its bid for its attorneys’ fees in the original post, below, but we came pretty close.

The Bank’s attempted “end-around” the American Rule through a clever use of a request to admit failed this week. The maneuver works like this (1) Seek an admission: “Admit that you are going to lose this lawsuit,” (which will obviously be denied by the adversary) and then, having won the case on a motion for summary judgment; (2) Seek attorneys’ fees under Fed. R. Civ. P. 37(c)(2) (providing the possibility for award of attorneys’ fees for the “untrue denial”)).

The analysis is set out in a well-reasoned order by U.S. Mag. Judge Steven E. Rau (D. Minn.).

Original post (August 5, 2017): In our legal system, as all lawyers know, the so-called “American Rule,” generally applies. The American Rule is that each litigant pays for its own lawyers. This contrasts with “the English Rule” in which “loser pays,” also called “fee shifting.”

The implication infuriates many Americans. We can be sued, can be blameless, can defend the case at great expense, can win, but the other side does not have to pay our lawyers’ bills?

As a general matter, like it or not, this is how our system normally works.

We recently noted a motion for award of attorneys’ fees (that is, fee-shifting) that attempts to back into “the English Rule” in a clever (though maybe too clever) way.


The Naca lawsuit has been a repeat source of posts on Minnesota Litigator already (here, here, here).

“This lawsuit is about whether Plaintiff Kristin Naca was discharged because she solicited sex from a student prior to graduation and commenced a sexual relationship with the student days after graduation (as Defendant Macalester College contends) or because of discriminatory animus toward her religion, sexual orientation, gender, race, and/or ancestry (as Plaintiff contends).”

Recently, the case raised an interesting issue that comes up from time to time: the problem of a lawyer who is also a fact witness. This causes some obvious problems. It is analogous to “breaking the fourth wall” in theater, where a critical illusion is shattered: lawyers are no longer advocates or “officers of the court” separate and apart from the underlying dispute. They are witnesses, perhaps co-conspirators, etc.

So how will the Court resolve the issue that Ms. Naca’s lawyer, Hlee Vang, appears to be an eye-witness to alleged sexual harassment by another Macalester professor whose supposed wrong-doing did not result in discipline, as Ms. Naca’s did?

The first issue, can Macalester’s lawyers depose Ms. Vang? Later, the question could be whether Ms. Vang can continue to represent Ms. Naca…


What goes on in the mind of a four year-old? A five year-old? What dangers are “known and obvious” to four or five year-old children? A boy named Shawn went to the house of his great uncle, Peter Carlson, on the Mississippi River as part of a birthday party celebration. Everyone lost sight of Shawn until he was found face-down in the river, having suffered severe brain damage. His family sued Mr. Peterson, the party-thrower/property owner.

Justice David Lillehaug, writing for the majority of the Minnesota Supreme Court, stated the question the Court faced like this:


“[W]as the danger of returning to the Mississippi River to swim alone known or obvious to Carlson’s 4-year-old guest, Shawn, and, even if it was, should Carlson have anticipated the harm to Shawn?”

(1) Why are those the questions that decide the outcome of this case? (2) How are judges qualified to penetrate into the minds of the typical four-to-five year-old child?