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.

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*** MINNESOTA LAWYERS ALERT ***

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.

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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.

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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?

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It was an honor getting to know Bill Tilton a little recently. We had not met before and knew little of him, but someone recommended him for a profile. He seems legendary and inspiring.

Bill Tilton describes himself like this: “I grew up in the middle of a middle-sized clan in a middle of a mid-size city, in the middle of the mid-west and here I am in the middle of all sorts of fun stuff. I’m a privileged guy. I’m a white guy. Robert Street’s named after my great-grandfather, so my family didn’t have money, but had expectations that you could do things and you should do things.”

And Bill has an inspiring watchword, a mission statement, if you will: “[T]o whom much is given, much is expected.”

ML:  So you’ve been practicing now for over 40 years?

Bill Tilton: I’m on year 40 now, or 41. Yes, I graduated in ’77.

ML: Where did you learn your lawyering, not that you’re not learning it every day to this day, but who taught you early on in your career?

Bill Tilton: I was privileged to share offices with a man named Ken Tilsen, who I’m often been confused with, which I love. Ken was a legendary old lefty lawyer. He and Solly Robins, the two of them started the St. Paul office of what was then Robins, Davis and Lyon, which is now the Robins Kaplan firm. Ken is one the many excellent lawyers that came out of that firm and went off on his own.

I met him about the same time my father died, 1969. My father died and I met Ken and we were politically sympathetic, I’m an old lefty political guy, as was he. We met working in the civil rights movement. He actually represented me, I got in my own trouble with anti-war activities. When I then started practicing law, it was just natural that I went to Ken. I rented office space from him. He threw me a few cases now and then, but taught me so much.

He was just an all-around good guy and an all-around lawyer. He got to be well known because he took on civil rights cases and anti-war and anti-draft cases, but he was a master of real estate litigation. He did wills, he did trusts and estates. He did personal injury. At a time when there were generalists around and he was among the best. I learned at the elbow of Ken Tilsen.

ML: You never worked for a large firm or even so-called medium size firm?

Bill Tilton: Never.

ML: The practice of law has changed a whole lot over your 40 years and you just mentioned how there used to be generalists and there are fewer now, if any. You wouldn’t describe yourself as a generalist?

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Update (September 27, 2017): Some class actions are obviously appropriate because the plaintiffs’ class is uniform and each class member’s claimed damages are insufficient to justify an individual lawsuit.

Some class actions are obviously inappropriate; there are individualized and specific issues for individual class members claims and class members have a realistic opportunity to vindicate their claims individually.

Some class actions fall in the middle so that whether the class action procedure is justified can be an extremely difficult question to answer wisely.

The case described below involves an employer’s time-keeping system which, if the computer keyboard and mouse are idle for more than two minutes, clocks out the worker. Assuming this were the end of the story, one can see how many workers might be deprived of pay for real work (as when they end a team meeting or do any of a number of work activities that do not call for the use of the computer keyboard or mouse).

According to the employer, iQor, however, this is very much NOT the end of the story. iQor argues that many workers log work in different ways, there is the possibility of manual overrides, decided at the managerial level and, for the class members, there are many different managers and varying practices with regard to the manual entry of time.

Plaintiffs, on the other hand, predictably highlight that forcing each one of them to refile “over 3,500 individual lawsuits in district courts across the country would be the antithesis of efficiency.”

It is hard to argue with that.

In a sense, the class action procedure might be considered a form of rough justice, a determination NOT to get mired in the details of thousands of claims, but, rather, an effort to approximate a collective remedy in the name of efficiency and practicality. Shoots v. Iqor and cases like it highlight the enormously difficult question of when “rough justice” crosses the line and is more accurately injustice.

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Upsher-Smith Laboratories got tricked and lost about $37 million in an internet scam. Some foreign evil-doer(s) posed as the company’s CEO and sent orders to a now former Upsher-Smith employee to wire money for bogus foreign exchange trades.

Upsher-Smith’s bank, Fifth Third, received the wiring instructions and acted upon them.

This kind of scam is more common than most people believe and a typical reaction among victims is to try to place blame or responsibility on one’s bank.

It rarely works.

It comes down to who is “the least cost avoider“? Or, to put that into clearer English, who is in the best position to minimize the identified risk (here, financial fraud) at the lowest cost?

In most but not all cases, the answer is the financial fraud victim rather than the bank. When a client gives a bank wiring instructions and tells the bank to wire the money for a specified account (which banks do many times every day, of course), do we really want banks to have to vet the legitimacy of the underlying transaction? Isn’t the bank customer, whose money it is, in a better position to implement internal policies and procedures to prevent these scams (requiring verbal confirmation, requiring double-signatures, requiring supervisory approval for transactions over a certain $$ threshold)?

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SpankingUpdate (September 22, 2017): The signature style of U.S. District Court Judge Patrick J. Schiltz is the antithesis of the lawyer appearing before him as plaintiff’s counsel in Naca v. Macalester.

Judge Schiltz is often short and to the point. And he was this week in chastising Plaintiff’s counsel, Mr. Peter Nickitas. Judge Schiltz rejected Mr. Nickitas’ appeal of the Magistrate Judge’s order rejecting his motion to amend the complaint to add claims against Brian Rosenberg, Macalester’s President.

In this case and in several other cases before the Court, Naca’s counsel has regularly violated the Federal Rules of Civil Procedure and the local rules of this District. The Court will no longer tolerate such violations.”

Judge Schiltz rejected Plaintiff Naca’s motion because Mr. Nickitas had serially defied court rules and also, even if he’d followed them, the proposed amendment lacked merit. The proposed claim against Pres. Rosenberg would not have survived a motion to dismiss.

Meanwhile, this sorry battle rages on.

The case reminds us of a 2011 post (under the headline, “It’s a messy job but someone has to do it”) in which we said

Many of us can boast of ties to class-mates on distinguished courts or with inspiring national practices (and a few of us have the skills and good fortune to attain those lofty heights), but, by and large, most of the nation’s lawyers are dealing with somewhat less glamorous disputes — the blood, guts, and other bodily fluids of real life.

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Photograph by Maura Teague

It is a shame when a justice system behaves unjustly.

In Minnesota, when a client is sued in state court and removes the case to federal court, the client is obligated to pay a “filing fee” to the state court for the simple filing of a one-page Notice of Filing of Removal in the state court (at least in Hennepin County). (Federal law requires the filing of this “Notice of Filing” to the state court.)

Imagine getting a bill when you RSVP “no” to a wedding.

Your submission in case 27-CV-17-XXX, ABC vs XYZ has been rejected.

Reason(s) for Rejection: Our records show that you have not paid the initial filing fee. Plese resubmit your document with the fee of $299.00.

Comment: Our records show that you have not paid the initial filing fee. Please resubmit your document with the fee of $299.00.

Envelope Number: xxxxxxx
Filing Code : Notice of Removal to Federal Court
Filing Description: Notice of Filing of Removal
Date Submitted: 9/12/2017

Lawyers typically pass these costs on to their clients, of course, and, for many clients a $299 court filing fee (plus an added $5 fee to use the e-filing system (which we are required to use)) is a drop in the bucket.

This is too often how fortunes are made — by opportunistic “nickle and diming.” One might even say that these ubiquitous little surcharges, fees, or spiffs, are inherent in any market system. (For example, you get a new car and have to pay some grossly inflated amount for the floor mats, etc.)

But it is a problem when our courts play by these marketplace rules because (1) they are a monopoly; (2) they are supposed to exist to provide Minnesotans with the “just, speedy, inexpensive determination of every action.

Rule 1 of our civil court system continues:

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.

It is impossible to square charging $304 for the one-time filing of a required one-page notice with these stated goals and responsibilities.

Among civil litigators, the variety of legal practice is staggering. It is hard to believe that we think of ourselves as having the same job. In fact, we most certainly do not.

Many lawyers at Messerli & Kramer do debt collection work (like Josh Hasko in the case discussed in this post), for example. These litigators spend relatively little time on prejudgment litigation. After all, their adversaries, almost by definition have no money so they are not up for a fight. Furthermore, the cases often boil down to, “Defendant borrowed money. Defendant failed to repay.” There’s not a lot to fight about in most of these case.

But getting a judgment for their clients is really a prologue to the performance that takes up most of their days.

We came across an order, issued this week, from U.S. District Court Judge Donovan W. Frank (D. Minn.) issuing a warrant for the arrest of debtors for their contempt of court orders to return commercial trailers to the financing company who put up the money for purchase of them.

The order is interesting in that it shows the due process that our courts give dead-beats. Here is one of two previous orders apparently ignored by the debtors. There is a lengthy procedure in place in which debtors are given every opportunity to defend the claims against them. If and when the axe falls, the defendants will be hard-pressed to object to the proceeding. On the other hand, it is refreshing to see that the debt collector also getting due process. Judge Frank has given defendants ample time but, on the other hand, he has kept the action moving forward.