The StarTribune reported a recently filed action in Hennepin County district court this week.The action describes itself as “Petitioner Air T, Inc.’s Rule 27.01 Petition to Perpetuate The Testimony of Yahoo! Inc.”

Apparently, an anonymous person going by the name of “Blueskiesforme1” has been blasting Air T, Inc., on a Yahoo! “message board” with criticism.

Air T “anticipates that it may be a party to an action…[It] expects that any such action will involve claims for…breach of contract for violation of a non-disparagement clause…”

How does Air T know that the anonymous hater is a party to an agreement that includes a non-disparagement clause? The hater, we’re told, “is likely someone with access to inside information…” (See here on p. 2.) What’s the evidence to support that?


Photo Taken on April 16, 1990 on the steps of the U.S. Supreme Court after the arguments in Maislin v. Primary Steel (opinion linked here: From left to right are Brent Primus, Bill Augello, Bruce Hocum and Sam Rubenstein

We recently had the honor of interviewing Brent Wm. Primus of Primus Law Office, P.A. who has been practicing law in Minnesota for about 45 years. His experience is a vivid and inspiring illustration of the essential blend of blind luck and individual initiative that life requires for professional (and personal) success.

ML: Forty-five years of legal practice and all at the same firm?

Brent Primus: Correct.  It will be 45 years in September.

ML: I understand it is your firm now (with law partner, Laurel Learmonth) but it was your father’s firm originally. And how long has the firm been in existence?

Brent Primus: Well, my father, Lee B. Primus, moved to Minnesota in 1948 or so. At first, he just had a few insurance company clients where he did insurance defense work, and then at some point in the early fifties he went out on his own. He first officed in the Wesley Temple building, which is now part of the convention center next to Wesley Church. When I was quite little, I remember going there and seeing — he was actually an early innovator — he had a dictaphone system that used wax-coated cylinders. As he dictated, the cylinders would turn and it worked like a lathe. There’d be a blade peeling off a thin layer of plastic waxy material, which, as a young boy, intrigued me no end.

He later moved to the First National Bank building, but not the new edifice there now, and then by the mid-50’s he landed in what was then known as the Midland Bank Building where the firm stayed until 2007 when we moved across the street to the Tri-Tech Building.

ML: I note in your C.V. that you began your legal career investigating auto accidents while still in high school?

Brent Primus: You know, high school summers, like if someone’s family runs a grocery store or a dry cleaner, they help out there. In my case, my dad had a law office and by that time he was on his own doing plaintiff’s work, so I’d take the Polaroid camera, which in its day was high-tech, and go out to the accident scene and take various pictures from various angles all over town. And I’d also try to see if there were any witnesses. I’d knock on a few doors and see if someone had seen the accident.

ML: Did you go to college with the intention of becoming a lawyer?

Brent Primus: No, not at all really. In fact, during college, I decided not to be a lawyer, but then later that changed, of course.


Update (April 23, 2018): The Minnesota Supreme Court reversed the Court of Appeals’ indemnification decision in the collapsed table accident, described in earlier posts:

Although we may uphold the enforceability of a contractual indemnity clause, we disfavor agreements seeking to indemnify the indemnitee for losses occasioned by its own negligence… Accordingly, we strictly construe such indemnity clauses….For an indemnity clause to pass strict construction, the contract must include an express provision that indemnifies the indemnitee for liability occasioned by its own negligence; such an obligation will not be found by implication. Such a provision need not include the word ‘negligence,’ but it must use specific, express language that clearly and unequivocally states the contracting parties’ intent for the indemnitor to indemnify the indemnitee for the indemnitee’s own negligence. [internal quotes and cites omitted]


Update (April 20, 2018): Large U.S. law firms are multi-million dollar businesses, as we all know. Not one, to our knowledge, is a monarchy, a tyranny, or an institution with a single almighty decision-maker. This fact has its advantages and its drawbacks.

A single decision-maker can make decisions a lot more quickly. Sometimes, this can be an advantage. On the other hand, sometimes the more collaborative and deliberative process makes for better decisions.

This comes to mind in considering a marketing decision made by a small Minneapolis law firm that appears to be run by one decision-maker, Minneapolis civil litigator, Chris Madel.

What was he thinking? (more…)

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Update #5 (April 18, 2018): Both sides appealed their losses on summary judgment. Both sides lost their appeals. Have these bacon battlers had enough or is it time to head to the U.S. Supreme Court in this porcine battle royale?

Update #4 (July 26, 2016) (under the headline: The Bacon Battle Royale Rages On…(But for How Much Longer?): Unitherm has survived cross-motions for summary judgment but just by a hair (of its chinny chin chin?). U.S. District Court Judge Joan N. Ericksen (D. Minn.) has almost thrown out the whole case, leaving only the issue of the ownership of “the hybrid cooking process” as between Hormel and Unitherm. On the other hoof, the value of ownership of that process might be substantial.

Update #3 (March 16, 2016): It is impossible to assess arguments when one only has documents redacted to conceal information pertinent to the dispute. On the other hand, from where I sit, the bacon battle against home-town honey ham Hormel (based in Austin, Minnesota), discussed in several earlier posts below, looks to be going poorly for Plaintiff Unitherm.

Perhaps the out-of-town under-pig will complain of a home-trough bias. But my pessimism for Unitherm’s case comes from objective factors, such as its lack of success in the case to date and a very strong brief by Hormel in support of its motion for summary judgment. (Unitherm’s own brief in support of its own cross-motion for summary judgment is more heavily redacted and so more difficult to assess.)

From the cheap seats, at least, my money’s on Hormel. Unitherm seems to rely in some large degree on (1) a supposed obligation on Hormel’s part to keep public information secret, and (2) the idea that Hormel should be liable for keeping its own secrets from Unitherm at a time when it had agreed not to divulge Unitherm’s shared secrets to any third party. (Agreeing to keep shared information secret is not the same as agreeing not to have any secrets from one’s counter-party.) These alleged acts, if true, might trigger liability…when pigs fly.220px-Sus_scrofa_avionica


Photo by Molly:

If a personal injury plaintiffs reject medical care, can they sue tortfeasors for their injuries, including their pain and suffering?

If personal injury plaintiffs sue tortfeasors for their injuries, do they have to run their medical treatment plans past the tortfeasors to get their ok as a prerequisite to recovering their medical costs from the tortfeasors?

In Fick v. Edwards, Mr. Herbert Fick sued Mr. Edwards for injuries that Mr. Fick sustained in a bike accident, allegedly caused by Mr. Edwards’ negligence.

After the accident, Mr. Fick refused pain medication. Then Mr. Fick sought to hold Mr. Edwards financially responsible for his pain and suffering. Does that seem right?


Leonetti’s Frozen Foods, Inc. hired Rew Marketing to help promote Leonetti’s frozen stromboli. Through Rew, Leonetti’s was working on a deal to get its stromboli into Sam’s Club, the huge retail warehouse club/grocer owned by Walmart.

Rew helped Leonetti’s meet the stringent requirements that Sam’s Club imposed (“two crucial tests”) to get its stromboli sold at the Sam’s Club in-store cafes. When an email was broadly sent out to Rew and Sam’s Club employees that Leonetti’s stromboli passed the Sam’s Club tests, with accompanying photos, one Rew employee responded to the good news (“replying all”):

“Nice job[. we] could even use slides 2-5 in our Costco Presentation next week :).”

Sam’s Club was not happy to learn that Rew was going to use photos from its work with Sam’s Club to sell Leonetti product to Costco, Sam’s Club’s big rival. Sam’s Club terminated discussions with Leonetti’s the next month.

What lessons should we learn from this?


Update (April 13, 2018): Following up on the putative Uber data breach class action, discussed below in an earlier post, here is the plaintiffs’ argument for why the Court should disregard the arbitration clause in Uber’s Terms & Conditions:

Defendants do not seek to compel arbitration on a bad ride, an over-charge, or the like, which would fall under the [Uber] Terms and for that reason might be arbitrable. Instead, Defendants seek to compel arbitration concerning the manner in which Uber collects, uses, and shares Plaintiff’s personal information (which, again, falls under the Privacy Policy, which does not contain an arbitration agreement).

Minnesota Litigator will not predict the outcome of this motion, tempting though it may be. It is all the more tempting because, according to the plaintiffs’ lawyers, there’s a significant likelihood that the Court will never have the opportunity to decide the motion because of proceedings going on in a related case: In re: Uber Data Breach Litigation, MDL No. 2826, pending in the Northern District of California. So maybe we could never be proved wrong?

Original post (March 16, 2018): 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.


Photo by Jonathan Rotondo-McCord

Update (April 9, 2018): We recently stumbled across the linked order from U.S. District Court Chief Judge John R. Tunheim (D. Minn.) in which he denied plaintiffs’ request to amend their securities fraud class action complaint (Lusk v. Lifetime) because the plaintiffs made no formal motion to amend until the hearing on the motion for judgment on the pleadings.

In fact, it is a big stretch to say that plaintiffs’ counsel “made a formal motion to amend” at the hearing. It is even a stretch to say that plaintiffs’ counsel made any motion at the hearing, formal or informal.

After the hearing, plaintiffs’ brought a (defective) formal motion to amend. U.S. Mag. Judge Becky Thorson (D. Minn.) rejected the motion because it failed to comply with local rules.

Then, Judge Tunheim granted the defendants’ motion for judgment on the pleadings.

Then, the plaintiffs tried to bring a motion to amend but they no longer had the benefit of the rather liberal standards that apply to motions to amend. Rather, they faced (and flunked) the far more difficult standards that apply to a motion to amend a judgment or a motion for relief from judgment.

In our experience, it is common include, in a response to a motion to dismiss, a little note asking for leave to amend if the court should find merit in the motion to dismiss (sometimes a footnote, sometimes a section of the brief). To our surprise, it appears that the Lusk plaintiffs failed to include this common stop-gap/risk mitigation measure in their response to defendants’ motion for judgment on the pleadings. But, even if they had included “a little note asking for leave to amend” in a response brief, would Court would have considered that to be a “formal motion”?

If not, then, in theory, this ruling could significantly alter how civil litigators proceed when they are on the receiving ends of rule 12 motions. That would be unfortunate. Forcing a “formal motion” to amend before a hearing or decision on a motion to dismiss would be needlessly expensive. More importantly, the plaintiffs would obviously not have the benefit of the court’s analysis of how the initial complaint was deficient when seeking to amend the complaint to address perceived deficiencies.


Painting by Otto Dix, Photo by Molly:

Those of you who live by Betteridge’s Law of Headlines will pounce on the “NO” answer but think again.

Susan Warren went to Essentia Hibbing Clinic in August, 2014 complaining of abdominal pain, fever, chills, and other symptoms. She saw a nurse practitioner who thought Ms. Warren should be admitted to the hospital but the nurse practitioner did not have the authority to admit Ms. Warren to the hospital. The nurse practioner contacted a “hospitalist,” a physician who had authority to admit Ms. Warren to the hospital. He exercised his judgment based on the information he had and said that she would not be admitted to the hospital.

The next day, Ms. Warren died due to sepsis brought on by a staph infection.

Without more information (and expert review), we cannot judge the “hospitalist’s” decision but want to reconsider your “No” answer to the question posed in the headline?